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209 Va. 594 (1969)
BOARD OF ZONING APPEALS OF ROANOKE COUNTY, ET AL.
v.
BLUE RIDGE STONE CORPORATION.
Record Nos. 6843, 6844.
Supreme Court of Virginia.
March 10, 1969.
Robert C. Fitzgerald (Raymond R. Robrecht, Commonwealth's Attorney; Fitzgerald and Smith, on brief), for appellants in Record No. 6843.
Furman Whitescarver, Sr. for appellants in Record No. 6844.
R. S. Kime; Joseph W. Smith (Kime, Jolly & Clemens; Hazlegrove, Carr, Dickinson, Smith & Rea, on brief), for appellees in Record Nos. 6843 and 6844.
Present, All the Justices.
1. Board of Zoning Appeals which heard appeal and which was appointed by court while court proceedings were pending consisted of same persons ostensibly acting as Board at the time of decision. In any event the Board was authorized to act under the saving clause of the statute calling for court appointment.
2. Ordinance provided mining operation undertaken and discontinued for one year should not be resumed. Road contractor acquired stone in place on three tracts constituting one body of land and agreed with an operator to mine rock first on two of the tracts and later on the third. Road contractor subsequently brought in another operator who undertook and then discontinued mining rock on the third tract. Not error for court to permit first operator to begin mining on third tract as part of continuous operation on entire body of land.
Appeal from a decree of the Circuit Court of Roanoke County. Hon. Frederick L. Hoback, judge presiding.
BUCHANAN
BUCHANAN, J., delivered the opinion of the court.
These are appeals from a decree of the Circuit Court of Roanoke County which held that the zoning ordinance of the county did not prohibit Blue Ridge Stone Corporation, herein called Blue Ridge, from continuing quarrying operations on one of three tracts of land under its contract with Adams Construction Company.
Adams Construction Company, a partnership, referred to herein as Adams, is engaged in road building which requires large quantities of stone. Adams does not ordinarily operate stone quarries but concerns itself with searching for available stone deposits. Sometime prior to the construction of Interstate 81 in the Roanoke area, Adams, in June 1959, purchased a stone-bearing tract of 130 acres, referred to as the Thomas tract. In drilling on this tract Adams found that the rock deposit continued into two adjoining tracts, referred to as the Todd tract and the France tract. In December 1959, Adams purchased the stone in place on six acres of the Todd tract, which adjoined the Thomas tract; and in April 1960, Adams purchased the stone in place on about four acres of the France tract, which adjoined the Todd tract.
By agreement dated June 23, 1960, Adams conveyed to Blue Ridge its interest in the Todd and France tracts and the exclusive right to quarry stone from the Thomas tract if the stone on the other two tracts was exhausted before the interstate highway was completed (extended to ten years by a supplemental agreement dated September 1, 1962), together with the right to install on the Thomas tract all machinery, crushing plant and structures convenient for processing and storing stone from the Todd, France and Thomas tracts.
Shortly after the execution of the above agreement, Adams constructed on the Thomas tract an asphalt plant for the treatment of stone furnished by Blue Ridge and used by Adams in its road-building work, and it has been continuously operated to the time of the decree appealed from in this case.
It developed in the fall of 1963 that the stone supplied by Blue Ridge from the Todd and France tracts was not sufficient to meet the needs of Adams in its road-building contract. Adams then requested and received from Blue Ridge permission to quarry stone from the Thomas tract to meet Adams' needs. Adams accordingly employed Ararat Stone Company to quarry and stockpile from *596 the Thomas tract the required stone. Ararat quarried stone from the Thomas tract until about May 15, 1964, and then vacated the premises.
In the spring of 1965, Blue Ridge had finished its quarrying from the Todd and France tracts and in June of that year it was preparing to move its equipment to the Thomas tract. Before that was accomplished, however, the administrator of the zoning ordinance of Roanoke county notified Blue Ridge, by letter of August 30, 1965, that since the quarry on the Thomas tract had not been operated for more than a year, it could not under the provisions of the zoning ordinance be reopened.
Blue Ridge thereupon ceased its operations and filed its appeal to the Board of Zoning Appeals. It stated therein, among other things, that the stone deposit and other rights which it acquired under the agreement of June 23, 1960, with Adams, i.e., on the Thomas, Todd and France tracts, constituted one area and that this area had been continuously used without interruption for the purpose for which it was zoned, and that its intention was to quarry the same as one area, exhausting first, as it was required to do, the stone on the Todd and France tracts. A hearing was had on November 22, 1965, before the Board of Zoning Appeals, consisting then of four members, one member being absent. Evidence was introduced and at its conclusion the board was evenly divided, two voting to permit Blue Ridge to continue operating and two voting that it not be allowed to do so.
Thereafter, on petition of Blue Ridge, the court below ordered the issuance of a writ of certiorari, according to the provisions of Code | 15.1-497, to which return was made and the court entered a decree referring the cause to one of its commissioners, who was directed to report whether Blue Ridge had the right to continue on the Thomas tract or had lost its right under paragraph 9-2-6 of the county zoning ordinance. The commissioner was directed to take evidence, consider the pleadings and exhibits and also the evidence before the Board of Zoning Appeals.
The commissioner filed his report on October 11, 1966. He said that the facts were not in dispute, and stated them to be about as set out above, with the following in addition:
The Roanoke County Zoning Ordinance was adopted April 18, 1960, and the Thomas, Todd and France tracts were zoned "Industrial District M-2". The three tracts are shown on a map in the *597 record as they adjoin each other. Section 9-1-12 of the ordinance * provides that "stone works, quarries, crushing plants, asphalt plants, and mining operations" are permitted uses in Industrial District M-2, and | 9-2-6 of the ordinance further provides:
* The ordinance is not exhibited in either the printed or the manuscript record, but the accuracy of the quotations from it seems not to be questioned.
{"In any Industrial M-2 area where the operation of quarries, stone works, crushing plants, asphalt plants, and mining operations has been undertaken and discontinued for a period exceeding one year, said operations shall not be resumed, nor shall said areas be used for any of the other permitted uses in Industrial District M-2."
At the time of the adoption of the ordinance there were no stone quarries, crusher plants, mining operations or asphalt plants in operation on the Thomas, Todd or France tracts. Quarrying and asphalt plant operations were contemplated, however.
Shortly after the agreement of June 1960, between Adams and Blue Ridge, Adams located its asphalt plant on the Thomas tract so as to operate efficiently with stone taken from the Thomas, Todd and France tracts. Blue Ridge's evidence is that it considered the Thomas, Todd and France tracts as one area, and it intended to quarry the Todd and France tracts first and then move over to the Thomas tract.
The commissioner then refers to the permission granted by Blue Ridge to Adams in the agreement of September 1, 1962, to quarry stone on the Thomas tract to supplement Blue Ridge's production on the other two tracts and to the fact that Ararat quarried, processed and stockpiled a large quantity of stone for Adams which it has continued to use in its road construction and asphalt surfacing business, and that a part of the stockpile is still on the Thomas tract.
The commissioner then states that the sole issue is whether Blue Ridge has lost its rights by the discontinuing of quarrying on the Thomas tract for more than one year, as to which Blue Ridge contends: (1) that paragraph 9-2-6 of the zoning ordinance is not applicable; and (2) that this paragraph is arbitrary and unreasonable and lacks certainty and definiteness.
The commissioner agreed with the second contention and found *598 that paragraph of the ordinance to be indefinite and uncertain and therefore invalid. Accordingly he reported that Blue Ridge has the right to commence and continue its quarrying and crushing operations on the Thomas tract.
The board and administrator filed exceptions to the commissioner's report, as did the intervenors in Record No. 6844, none of which is printed. Thereafter, the court filed a written opinion holding that the exceptions should be overruled and the report of the commissioner confirmed.
The court agreed with the commissioner that the zoning ordinance was vague and indefinite with respect to the meaning of "area," in paragraph 9-2-6, and that the said paragraph was void for uncertainty.
The court concluded that under all the circumstances of the case Blue Ridge should be granted the required permit "to proceed with quarrying operations over the lands in question."
Accordingly the court entered the decree of March 14, 1967, appealed from, stating its opinion that paragraph 9-2-6 of the zoning ordinance is vague and indefinite and is subject to diverse and conflicting interpretations and is plural in its application, "and further that it clearly appears from the evidence in this case that there was never a cessation in quarrying, crushing or in the operation of the asphalt operations discontinued for a period exceeding one year on the three combined tracts of land known as the Todd tract, the France tract and the Thomas tract, all of which contiguous tracts were acquired by plaintiff either by lease or purchase, and the Court doth so find, and it is thus so ADJUDGED, ORDERED and DECREED."
On August 2, 1966, two months after the decree of reference to the commissioner had been entered, A. M. Evans and others, appellants in Record No. 6844, presented a "Petition of Intervention and Motion to Dismiss," stating that after appearing and actively participating in the hearing on November 22, 1965, before "what was supposed to be" the Roanoke County Board of Zoning Appeals, "it was determined" that the board was not legally constituted, not having been appointed by the court as required by | 15.1-494 of the Code, as amended. By order of August 2, 1966, the petition and motion to dismiss were filed and the motion to dismiss was overruled. In its opinion the court stated:
{"* * * It is true that the Board of Zoning Appeals was appointed *599 by this Court pursuant to the request of the Board of Supervisors after these proceedings were pending, nevertheless, the same persons, who were ostensibly acting as a Board of Zoning Appeals at the time of the decision in question, were appointed by this Court, and it is logical to assume that their holding would be the same if the matter came before the Board again for another hearing. * * *" And the court added: "* * * certainly the Defendants should not now be permitted to complain of their own failure to comply with the Code provisions as to the appointment of a Board of Zoning Appeals. * * *"
In any event it is provided in | 15.1-429 of the Code that "boards of zoning appeals heretofore established shall continue to operate as though created under the terms of this chapter [ch. 11]."
There was no error in this ruling of the court.
The other assignments of error to the court's decision by the intervenors and by the Board of Zoning Appeals and the administrator are, in substance, first, that the court below did not have jurisdiction to review the legality of the Roanoke county zoning ordinance. The court did not undertake to review the legality of the ordinance as a whole. Its review was of the decision of the board that under paragraph 9-2-6 Blue Ridge was barred from quarrying stone on the Thomas tract of land under its contract with the owner of the tract. That jurisdiction was conferred explicitly by | 15.1-497 of the Code, in which it is provided that the court "may reverse or affirm, wholly or partly, or may modify the decision brought up for review."
Appellants' second assignment of error is to the holding that the term "area" as used in | 9-2-6 of the zoning ordinance was so vague and indefinite as to render that section of the ordinance invalid. In support of this assignment, appellants assert that | 15.1-497 does not give the court jurisdiction to review the zoning ordinance upon which the borad's decision was based, but that "the power granted to the court is only that of reviewing the decision of the Board of Zoning Appeals, not the ordinance."
Here the court undertook to review the decision of the board that paragraph 9-2-6 of the ordinance as written prohibited Blue Ridge from operating a quarry on the Thomas land. It was construing the ordinance as enacted by the Board of Supervisors, not questioning the power of the board to enact it. In determining the *600 meaning of the paragraph the court concluded that the word "area" was too indefinite to afford a means of determining what it included, and hence that the paragraph was "void for uncertainty".
This court has not previously dealt with the specific question of the power of the court on an appeal from a board of zoning appeals to make such an adjudication, and other courts have disagreed about it. See "Fundamentals of Zoning Law," 46 Va. Law Rev. 362; 58 Am. Jur., Zoning, | 232, p. 1063; Rathkopf, The Law of Zoning and Planning, Vol. 2, ch. 63, p. 63-7; Carter City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747; Union Trust Company Lucas, (Fla. Dist. Ct. of App. 1960), 125 So.2d 582. Cf. City of Richmond Southern Ry. Co., 203 Va. 220, 225, 123 S.E.2d 641, 645; and see Ciaffone
Community Shopping Corp., 195 Va. 41, 48, 77 S.E.2d 817, 821.
In the present case we do not find it necessary to decide whether the trial court had jurisdiction to declare paragraph 9-2-6 of the zoning ordinance void for uncertainty. While expressing that opinion, the court in the decree appealed from held that said paragraph was not applicable to Blue Ridge because it clearly appeared from the evidence that it had not discontinued the operation of quarries, crushing plants and asphalt plants for a period exceeding one year on the contiguous and combined tracts of land known as the Todd, France and Thomas tracts. Therefore, said the court, Blue Ridge had the right to proceed with its quarrying, stone crushing and asphalt plant operations thereon.
We agree with that holding. The evidence clearly established that these three tracts constituted one body of land, grouped by its owner and included in one contract which granted the right to Blue Ridge to quarry the stone from a vein that ran through the three tracts, and to use the surface of any or all for the purpose of crushing the stone, treating it and stockpiling it to meet the needs of the owner in its road-building business.
The contract required that Blue Ridge first quarry the stone on the two small Todd and France tracts. While it was doing so, Adams needed more stone than Blue Ridge was producing, and at the request of Adams Blue Ridge agreed that Adams could quarry stone from the Thomas tract for its purposes. Adams contracted with Ararat to do the work, and it quarried enough stone to meet Adams' needs and then moved away. When Blue Ridge completed its quarrying on the two small tracts it prepared to begin quarrying *601 on the Thomas tract in accordance with its contract and its plan but was stopped by the administrator of the zoning ordinance.
At that time Blue Ridge was not prohibited from quarrying on the Thomas tract by the terms of paragraph 9-2-6. It had not then undertaken any quarrying on that tract and it had not discontinued for a period exceeding one year its operation of quarries, crushing plants and asphalt plants on the area of which the Thomas tract was a part. It is clear, we think, that the prohibition of paragraph 9-2-6 did not by its terms or by its intent apply to the quarrying by Blue Ridge of the stone on the Thomas tract in accordance with its contract with Adams, the owner.
The decree appealed from, which permitted Blue Ridge to proceed with its quarrying and other operations on the Thomas tract, is therefore JUSTICES CARRICO and GORDON concur in result.
Affirmed.
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NO. 07-12-0428-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
--------------------------------------------------------------------------------
NOVEMBER 9, 2012
--------------------------------------------------------------------------------
EDWARD L. MARTINEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2004-405,843; HONORABLE JOHN J. "TREY" MCCLENDON, III, PRESIDING
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Memorandum Opinion
--------------------------------------------------------------------------------
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Edward L. Martinez appeals from a trial court order denying his "Motion for Discovery and Public Information Documents" for purposes of post-conviction litigation. He asks that we grant his motion, appoint him counsel and bench warrant him back to Lubbock County. We dismiss the appeal.
On October 3, 2012, we sent appellant a letter asking him to demonstrate why this court has jurisdiction over the matter and gave him until November 5, 2012, to do so. Appellant responded by asking that the matter be abated back for the appointment of counsel, "or in the alternative [appellant] ask[s] that such matter (appeal) be dismissed without prejudice or stayed until [appellant] can file the necessary pleadings."
An appellate court has jurisdiction to hear an appeal only if it is from a final judgment, Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001), and we have
jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998). The trial court's order denying appellant copies of documents in the record for purposes of post-conviction litigation does not invoke our jurisdiction. Self v. State, 122 S.W.3d 294 (Tex. App. - Eastland 2003, no pet.); Diaz v. State, No. 07-10-00328-CV, 2011 Tex. App. Lexis 1985, at *3 (Tex. App. - Amarillo January 21, 2011, pet. ref'd) (mem. op.). Furthermore, we have no jurisdiction over post-conviction writs of habeas corpus in felony cases. See Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2012); Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995).
Without a final, appealable order, we are without jurisdiction to entertain this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.
Brian Quinn
Chief Justice
Do not publish.
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Crossland v. Anchor Glass
IN THE
TENTH COURT OF APPEALS
No. 10-95-061-CV
JOHN HARVEY CROSSLAND AND
JULIETH CROSSLAND,
Appellants
v.
ANCHOR GLASS CONTAINER
CORPORATION,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court # 90-00-00714-CV
O P I N I O N
John Harvey and Julieth Crossland (the Crosslands) bring this appeal contesting the
granting of a summary judgment in favor of appellee Anchor Glass Container Corporation (Anchor
Glass). We affirm.
I. Procedural and Factual Background
On December 14, 1988, Anchor Glass and HAG Steel Contractors (HAG Steel), entered
into a contractual agreement whereby HAG Steel would prepare for shipment three large machines
used for the melting of glass, known as forehearths, and move them from Anchor Glass' facility
in Corsicana to another Anchor Glass facility located in New York. In an effort to fulfill its
contractual obligations, HAG Steel contracted with Robert DePriest, a trucking contractor, to pick
up one of the forehearths in Corsicana and deliver it to the Anchor Glass facility in New York.
In the morning of December 18, John Crossland, an employee of Robert DePriest, arrived
in Corsicana to pick up one of the forehearths. After a forehearth was placed on the back of the
bed of the truck, a winch truck was used by some employees of HAG Steel to pull it forward on
the truck. Once these employees determined that the forehearth was properly situated on the
truck, Crossland left the premises and drove to a nearby business that weighs motor vehicles. His
truck was weighed and Crossland discovered that the weight of the load over his back axle was,
according to the applicable road regulations, 8,000 pounds too heavy. Apparently uncertain what
to do about the problem, Crossland telephoned the Anchor Glass factory. Someone from Anchor
Glass informed him that four or five men were present at the factory that night and that these men
would be able to help him. Accordingly, he returned to the factory.
When Crossland arrived at the factory, several HAG Steel employees determined that the
forehearth needed to be shifted forward on the truck to more evenly distribute the weight of the
load between the front and rear axles; however, the winch truck was no longer on the premises.
Nevertheless, these HAG Steel employees decided to shift the load by using chains, "come-alongs," and binding tools. Crossland and John Albert Vaughn, a security guard employed by
Corsicana Security, a business with whom Anchor Glass had contracted to provide security
services for its factory, watched nearby. As the HAG Steel employees struggled with the chains,
come-alongs, and binders, something snapped under the pressure, flew through the air, and struck
Crossland in the head, injuring him severely. The Crosslands then decided to sue for
compensation for Crossland's injuries.
The Crosslands, for an unknown reason, chose not to sue HAG Steel, instead bringing their
lawsuit solely against Anchor Glass. They asserted two causes of action: one, that Anchor Glass
was liable under the doctrine of respondeat superior for the negligent acts of the HAG Steel
employees in moving the forehearth and, two, that Anchor Glass was liable under a theory of
premises liability for providing inadequate lighting to illuminate the HAG Steel employees' work
area. Anchor Glass moved for summary judgment under both causes, contending that it could not
be responsible under respondeat superior because it did not exercise sufficient control over the
actions of HAG Steel's employees to render it liable and that it could not be liable under the
Crosslands' premises liability theory because the proximate cause of Crossland's injuries was not
inadequate lighting at its facility but the decision of HAG Steel to move the forehearth with chains,
come-alongs, and binders. The trial court granted summary judgment for Anchor Glass under
both causes of action.
The Crosslands bring three points of error: first, they argue that a genuine issue of fact
exists about whether Anchor Glass possessed sufficient control over HAG Steel's employees to
render it liable under respondeat superior for any negligence in moving the forehearth; second,
they assert a genuine issue of fact exists about whether inadequate lighting was the proximate
cause of Crossland's injuries; and third, they contend the trial court erred in allowing into
evidence an affidavit of an Anchor Glass employee, Rufus F. Carroll.
II. The Respondeat Superior Cause of Action
In their first point of error the Crosslands argue the trial court erred in concluding that no
fact issue exists regarding whether Anchor Glass exercised sufficient control over HAG Steel's
employees to render it liable under respondeat superior for their torts.
As a general rule, the owner or occupier of certain premises does not have a duty to see
that an independent contractor performs his work in a safe manner. Redinger v. Living, Inc., 689
S.W.2d 415, 418 (Tex. 1985). However, when the owner or occupier exercises some control over
the independent contractor's work, he may be liable unless he exercises reasonable care in
supervising the independent contractor's work. Id. This exception to the general rule has been
stated in section 414 of the Second Restatement of Torts, which has been adopted by our supreme
court:
One who entrusts work to an independent contractor, but who retains control of any
part of the work, is subject to liability for physical harm to others for whose safety
the employer owes a duty to exercise reasonable care, which is caused by his
failure to exercise his control with reasonable care.
Id. (quoting Restatement (Second) Torts § 414 (1965)).
The control contemplated by section 414, however, is more than a general right to order
the work to start or to stop, to inspect progress, or to receive reports. Id. The control must be
over the manner, method, and means by which the independent contractor performs his designated
tasks. See id. The word "control" in section 414 means control over the physical conduct of the
worker in performing the work and is shown by such matters as control over when and where to
begin and stop work, the regularity of hours and the amount of time spent on particular aspects
of the work, the physical method and manner of accomplishing the end result or results, the
selection of the type of tools and appliances used to perform the work, and the ownership of the
tools and appliances used. See Thompson v. Travelers Indem. Co. of Rhode Island, 789 S.W.2d
277, 278-79 (Tex. 1990); Restatement (Second) Torts § 414 cmt. c.
The control necessary to render the putative principal liable under section 414 can be
exercised in two different ways; first, if there is evidence that the putative principal explicitly
retained control in the contract with the contractor, or second, if the putative principal actually
exercised control over the work of the contractor. Welch v. McDougal, 876 S.W.2d 218, 222
Tex. App.—Amarillo 1994, writ denied). With these principles in mind, we will consider the
summary judgment evidence.
We will first address the summary judgment evidence provided by Rufus Carroll. In
deposition testimony that was included in the summary judgment evidence, Carroll, a distribution
manager for Anchor Glass, stated that no one employed by Anchor Glass either directed or had
the authority to order HAG Steel employees to do anything. To the contrary, Carroll testified that
Richard Hood, a co-owner of HAG Steel, was the only person on the premises on December 18
who could have ordered the HAG Steel employees to perform any activities. He also testified that
at the time of the incident, Anchor Glass had three employees on the premises while HAG Steel
had between twelve and fifteen and that none of the Anchor Glass employees had the express
authority to assist either HAG Steel or one of HAG Steel's subcontractors in loading or unloading
its trucks on December 18.
Carroll testified that the HAG Steel employees knew what tasks they needed to perform
not due to any on-the-job instructions issued by Anchor Glass but because HAG Steel had
performed similar duties for Anchor Glass as well as other companies on several occasions in the
past. Moreover, said Carroll, the items to be removed from the premises were listed in their
contract.
Carroll stated neither he nor anyone else employed by Anchor Glass examined HAG Steel's
employees' work to determine whether it was satisfactory, nor did anyone check on their progress
or supervise their work. He also stated that all the equipment used to move the forehearth forward
on Crossland's trailer, including the chains and come-alongs, belonged to HAG Steel.
Deposition testimony was provided by Vaughn, the security guard, that no one from
Anchor Glass was present when the load on Crossland's truck was moved. He stated that while
he and Crossland were watching, HAG Steel employees were attempting to fasten a binder that
was connecting two different chains: one chain was connected to the forehearth and the other was
connected to Crossland's truck. The employees put a pipe or a bar around the handle of the binder
to allow them greater leverage in trying to fasten it. According to Vaughn, he and Crossland were
standing approximately 12 to 15 feet from these men at the time. Something then broke, whether
the binder, come-along, or a chain, Vaughn was uncertain, and then an unknown object flew
through the air, striking Crossland in the head.
Crossland testified in his deposition that after he had his truck weighed he called the
Anchor Glass plant to inform them of the problem. Someone at the plant told Crossland that the
winch truck was no longer available but four or five guys were available at the plant to shift the
forehearth forward on the truck. He further testified that he and Vaughn watched as several men
used the chains, come-alongs, and binders to move the forehearth until the accident occurred.
Crossland could not, however, remember the details of the accident.
In their response to Anchor Glass' summary judgment motion, the Crosslands asserted that
the contract reserved to Anchor Glass control over many elements of the operation. The contract
granted Anchor Glass the authority to specify which machinery was to be moved and to determine
the time by which the work needed to be completed. It stipulated that HAG Steel bore the
responsibility of providing its own equipment to perform the job; it established the rate of pay
Anchor Glass would provide to each of HAG Steel's employees; it set a maximum amount of
money that Anchor Glass would be willing to pay HAG Steel for the completion of the job; and
it required HAG Steel to use its own tools in performing the job.
We note further that the contract provided that HAG Steel would ship the forehearths the
cheapest way possible unless otherwise specified by Anchor Glass, that HAG Steel warranted its
services would conform to Anchor Glass' specifications, that HAG Steel warranted its work would
not cause damage to Anchor Glass' invitees, that HAG Steel would comply with all applicable
regulations of the Occupational Safety and Health Administration, and that all services rendered
by HAG Steel were subject to the approval of Anchor Glass.
Other relevant summary judgment evidence was that HAG Steel employees operated the
winch truck used to load the forehearth onto Crossland's truck the first time and that Anchor Glass
owned the premises at the time of the accident.
a. Control under the Contract
The summary judgment evidence is clear that under the contract Anchor Glass possessed
no right to control any of the actions of HAG Steel's employees in performing their contractual
duties. HAG Steel was made aware by the contract of the duties they were required to perform;
however, nothing in the contract indicated that anyone from Anchor Glass possessed the authority
to direct anyone from HAG Steel in the details of how to perform his duties. The provisions in
the contract which the Crosslands argue bestowed upon Anchor Glass control over the actions of
HAG Steel have nothing to do with directing the manner, method, and means by which HAG Steel
was to complete its duties. These provisions established only that HAG Steel was required to
perform its duties in a safe manner and that Anchor Glass retained the right to inspect the quality
of its work to determine if it was satisfactory. Drennan v. Community Health Inv. Corp., 905
S.W.2d 811, 819 (Tex. App.—Amarillo 1995, writ filed) (where an employer is interested only
in the results, and the contracting party independently determines the details of the method by
which the desired results are attained, an independent contractor relationship exists and the rule
of respondeat superior does not apply); Davis v. R. Sanders & Assoc. Custom Builders, Inc., 891
S.W.2d 779, 782 (Tex. App.—Texarkana 1995, no writ) (in order to be liable the putative
principal must do more than dictate the results of the work or have a general right to order the
work stopped or resumed, to inspect its progress that need not necessarily be followed, or to
prescribe alterations and deviations). Provisions such as a deadline by which work needs to be
completed and that the work must conform to OSHA regulations have nothing to do with control
over the details of the operation. Id. The control that section 414 speaks to means control over
the details, not the stipulation of standards by which the quality of the contractor's work will be
judged.
b. Control in Practice
The summary judgment evidence is equally clear that Anchor Glass, in practice, did not
exercise any control over the actions of HAG Steel's employees. The closest evidence of any
involvement of Anchor Glass in the actions of HAG Steel was that an Anchor Glass employee
informed Crossland that several employees were on hand to shift the forehearth closer to the front
of his truck. Construing the facts in the light most favorable to the Crosslands, we presume the
person to whom Crossland spoke was an Anchor employee; however, the summary judgment
evidence establishes conclusively that only HAG Steel employees were involved in the actual
shifting of the forehearth. All this Anchor Glass employee did was refer Crossland to the HAG
Steel employees. This is not the kind of control section 414 contemplates. See Hoechst Celanese
Corp. v. Compton, 899 S.W.2d 215, 220 (Tex. App.—Houston [14th Dist.] 1994, no writ)
(instructions by putative principal of the location and time the contractor is to perform his duties
is not a sufficient exercise of control to render the putative principal vicariously liable). Having
concluded that Anchor Glass did not exercise sufficient control over the actions of the HAG Steel
employees to render it vicariously liable under section 414 of the Second Restatement of Torts,
we overrule the Crosslands' first point of error.
III. The Premises Liability Cause of Action
In their second point the Crosslands argue that the trial court erred in granting Anchor
Glass' motion for summary judgment on the premises liability, or inadequate lighting, cause of
action. We disagree.
An owner or occupier of land has a duty to use reasonable care to keep the premises under
his control in a safe condition. Redinger, 689 S.W.2d at 417. The Crosslands contend that
Anchor Glass, by failing to provide adequate lighting at the factory, neglected its duty to
Crossland to keep the premises safe and, therefore, Anchor Glass must be liable for any injuries
occurring as a result of the inadequate lighting under a theory of premises liability.
In its motion for summary judgment, Anchor Glass attacked the proximate cause element
of the Crosslands' complaint, arguing that the reason for Crossland's injury was not inadequate
lighting at the factory but the negligence of HAG Steel employees in shifting the forehearth with
chains, come-alongs, and binders. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)
(proximate cause is an element of a premises liability cause of action). The Crosslands argue on
appeal that Anchor Glass failed to prove its contention as a matter of law and that a fact issue
exists on the proximate cause element.
Proximate cause has two elements: cause in fact and foreseeability. Travis v. City of
Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Cause in fact means that the act or omission of the
defendant was a substantial factor in bringing about the injury, and without it harm would not have
occurred. Id. Foreseeability means that the defendant, as a person of ordinary intelligence,
should have anticipated the dangers that his negligent act created for others. Id. If a defendant
by his summary judgment proof conclusively disproves either of the two elements, he will have
established as a matter of law that his alleged negligence could not have been the proximate cause
of the plaintiff's injuries. See id.; Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex. 1975).
We will address only the cause in fact element.
The summary judgment evidence establishes that the lighting, or lack thereof, had nothing
to do with the accident that resulted in Crossland's injuries. It was the HAG Steel employees' use
of chains, come-alongs, and binders in attempting to move the forehearth forward on Crossland's
truck that ultimately led to the equipment breaking with one of the pieces flying through the air
at Crossland. Crossland was present in a dangerous situation when the HAG Steel employees
attempted to move the forehearth, but the danger arose not from the condition of the Anchor Glass
premises but from the actions of the HAG Steel employees. The accident would have occurred
regardless of the amount or quality of the light illuminating the work area where the accident
occurred. In other words, it cannot be said that but for the allegedly poor lighting present at the
scene and at the time of the accident John Crossland would not have been injured. See
Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 165 (Tex. App.—Waco 1995, no writ).
Therefore, inadequate lighting cannot be considered the proximate cause of Crossland's injury as
a matter of law. See Abalos v. Oil Dev. Co. of Texas, 544 S.W.2d 627, 631 (Tex. 1976); Shell
Chemical Co. v. Lamb, 493 S.W.2d 742, 746-47 (Tex. 1973); Staublein v. Dow Chemical Co.,
885 S.W.2d 502, 505-06 (Tex. App.—El Paso 1994, no writ). The Crosslands' second point is
overruled.
IV. The Admissibility of the Carroll Affidavit
In their third point of error, the Crosslands argue the trial court erred in considering as
summary judgment evidence Carroll's affidavit for two reasons: one, it contained only legal
conclusions, and, two, it was the uncontroverted testimony of an interested witness. In their
response to Anchor Glass' motion for summary judgment, the Crosslands included objections to
Carroll's affidavit on these grounds; however, the Crosslands failed to obtain a ruling on their
objections. Therefore, their complaints have not been preserved for our review. Roberts v.
Friendswood Dev. Co., 886 S.W.2d 363, 365 (Tex. App.—Houston [1st Dist.] 1994, writ denied);
Thompson v. Chrysler First Business Credit Corp., 840 S.W.2d 25, 29 (Tex. App.—Dallas 1992,
no writ); Hopkins v. Highlands Ins. Co., 838 S.W.2d 819, 822 (Tex. App.—El Paso 1992, no
writ) (the general rule under Tex. R. App. P. 52(a) that a ruling on an objection must be obtained
to preserve a complaint for appellate review is also applicable in the summary judgment context).
The Crosslands' third point is overruled.
The judgment is affirmed.
BOBBY L. CUMMINGS
Justice
Before Justice Cummings and
Justice Vance
Affirmed
Opinion delivered and filed February 21, 1996
Do not publish
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9 F.3d 1537
U.S.v.Roberts
NOS. 92-1430, 92-1499
United States Court of Appeals,Second Circuit.
Oct 19, 1993
1
Appeal From: S.D.N.Y.
2
AFFIRMED.
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84 Ariz. 325 (1958)
327 P.2d 1005
COUNTY OF MARICOPA, a body politic, Appellant,
v.
SHELL OIL COMPANY, a corporation, Appellee.
No. 6405.
Supreme Court of Arizona.
July 10, 1958.
*326 Lewis, Roca, Scoville & Beauchamp and Walter Cheifetz, Phoenix, for appellant.
Fennemore, Craig, Allen & McClennen, Phoenix, for appellee.
JOHNSON, Justice.
This was an action in condemnation instituted by the County of Maricopa, appellant, pursuant to § 27-901, A.C.A. 1939.[*] In 1948 appellee, Shell Oil Company, leased a parcel of land located at the southeast corner of the intersection of East Thomas Road and 24th Street, Maricopa County, Arizona. The lease was for a base term of fifteen years from June 1, 1948, and for an additional five-year term. The lease rental was a flat $150 per month for the first five years, and thereafter $150 per month, plus one cent per gallon for any gallons up to 10,000 delivered during the month in excess of 15,000. The leased parcel was rectangular in shape, and consisted of 127 feet of frontage on East Thomas Road and 100 feet of frontage on 24th Street. The Shell Oil Company erected a 100 feet by 100 feet service station on the parcel and in so doing did not utilize the east 27 feet of the parcel. The station had two pump islands, one on the Thomas Road side and one on the 24th Street side. The station's lighting system included lights perched on three tall poles located respectively at the northeast, northwest and southwest corners of the station.
The Shell Oil Company subleased the station to a tenant who operated it from July of 1952 until October of 1953. The tenant paid a rental of $150 per month and later $175 per month. During the latter part of October, 1953, the station was subleased to another tenant who since that time has operated the station. The second subtenant paid Shell Oil Company $185 per month rent.
On February 19, 1954, the condemnation action was initiated to obtain additional right-of-way with which to widen East Thomas Road. A right-of-way over the north seven feet of the service station property was obtained.
Prior to the trial a stipulation was entered into whereby it was agreed that the value of the seven-foot strip sought to be condemned was the sum of $2,100 apportioned as damages for the land taken by awarding to the Shell Oil Company the sum of $1168.65 and by awarding to the owner of the fee the sum of $931.35. The owner *327 of the fee claimed no severance damages, and the only issue before the trial court for determination was the amount, if any, to be awarded to the Shell Oil Company for severance or consequential damages to its leasehold estate.
The trial court awarded the Shell Oil Company severance damages in the sum of $10,000. The County of Maricopa has perfected this appeal, and makes the following assignments of error: (1) that the severance damages in the sum of $10,000 is excessive, contrary to the evidence, and contrary to the law; and (2) that the trial court in fixing severance damages failed to adopt the measure of damages which gives the lowest figure.
Appellee had the burden of proof in establishing the severance or consequential damages sustained to its leasehold estate as a result of the partial taking of the land. Town of Williams v. Perrin, 70 Ariz. 157, 217 P.2d 918. In Pima County v. De Concini, 79 Ariz. 154, 285 P.2d 609, we laid down the rule that when only a part of the property is taken, the measure of severance damages is the difference between the market value of the property not taken, before and after the taking.
In State ex rel. Morrison v. Carlson, 83 Ariz. 363, 321 P.2d 1025, 1027, we recognized the difficulty of measuring damages where a portion of a leasehold estate is taken in condemnation:
"* * * It is well recognized that leases commonly are not assignable without the consent of the landlord, and are infrequently sold, and vary so much in length of term, rent reserved and other particulars, as well as in the character of the property, that it is impossible to apply the customary test of market value to a leasehold interest. United States v. Petty Motor Co., supra [327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729]; 4 Nichols on Eminent Domain, § 12.42(3), p. 179."
Appellee, in proof of the severance damages, relies on the testimony of a qualified real estate appraiser who testified the fair market value of the leasehold before the condemnation was $41,550 and the fair market value thereof after the taking was $28,112 or a differential of $13,440. The witness's opinion as to the value before the taking was determined by multiplying the average monthly gallonage of 18,363 gallons for the three-year period prior to condemnation by the rental value of $.02 per gallon which produced the product of $367.26, which he rounded out to $365 as the rental value per month. This figure was then multiplied by 12 which produced $4,280 (the correct product was $4,380 which the witness corrected on cross-examination) as the annual rental value. He then multiplied $4280 by 9.4, being the present worth factor, at 6% for fourteen years and three months, the term of the lease, which produced *328 $41,550. The witness arrived at the fair market value of the leasehold after the taking by applying an estimated 30% judgment factor to the value of $41,588. His testimony in connection with the 30% judgment factor was as follows:
"Q. You mentioned an item of 30% or a factor of 30%; will you explain what you meant by that? A. The 30% is a judgment factor, you just don't reach up and pull something out of the air. We did try to verify it and use judgment on it. It is predicated on several factors, No. 1, immediately after the pole was moved, which was before condemnation by four months no, by six months the gallonage of the station dropped about 17 or 18%, from 18,000 to 14,000 five, or 14,000, an average number. We took that into consideration and the position that the service station was placed in with the handicap of ingress egress on 24th Street to their island as well as the fact that to use the outside portion of the Thomas Street island customers would be trespassing on city property.
"Q. As I understand it, in your opinion these things you have just mentioned reduced the desirability and utility of the station by 30%? A. Yes.
"Q. Plus that portion of the property lost by condemnation? A. Yes."
On cross-examination the witness stated his opinion as to the amount of severance damage included the value of the land taken. Nevertheless, his opinion as to the amount of severance damage after deducting the award made for the value of the land taken is in excess of the judgment.
A direct conflict exists in the testimony of the expert witnesses who testified for both parties as to the severance damage to the leasehold estate. Appellant contends, however, that the testimony of appellee's expert witness cannot sustain the judgment for the reason his opinion as to value was based on an erroneous factual premise and an improper method of capitalizing income.
The average gallonage of the station for the first three months of 1956 was 11,880 gallons, which was approximately 30% less than the 18,363 gallons per month average for the three-year period preceding the movement of the light pole. The gallonage records also indicate a decline in the average monthly gallonage of 17% for the eight months preceding the movement of the light pole, and a 13% decline in gallonage after the condemnation. Obviously the decline in gallonage of 17% prior to condemnation cannot be charged to appellant. At one point in his testimony the expert witness stated he considered the 30% decline in gallonage as a factor. However, subsequently in his testimony, above quoted, in defining the 30% judgment factor, he used a 17% or 18% decline in gallonage *329 along with other factors to determine the differential in value before and after the taking. We do not think a variance of 3% or 4% in the decline in gallonage after the condemnation is sufficient to destroy the probative value of the opinion but merely goes to the weight of the evidence. The argument of appellant that the decline in gallonage subsequent to the condemnation may be due to functional obsolescence of the station or to postwar competition, or some other cause, is purely conjectural and without proof thereof does not impair or invalidate the use of such a premise by the expert for his opinion.
The expert witness, as previously pointed out, capitalized the gross rental income as a basis for his opinion of the fair market value of the leasehold prior to the taking. Appellant contends in the actual appraisal process in determining value from income the witness should have capitalized the net income, and cites Nichols on Eminent Domain, Vol. 4, § 12.312(3), at page 75:
"With respect to the actual appraisal process in determining value from income it is the common practice to capitalize the net income. In other words, the value is such sum as will, in accordance with the prevailing local rate of earning, produce annually a sum equivalent to the net annual income. * *"
We are well aware that often in condemnation cases a wide variation will exist in the opinions of experts as to value. We are also aware of the existence of various appraisal processes for the determination of value. As a general rule the courts accede to the view that rental income from property is an element of consideration in arriving at the market value or measure of compensation to be paid for taking property in condemnation proceedings. 65 A.L.R. 455; 134 A.L.R. 1125. Appellant's expert witnesses conceded that the rental income of $.02 per gallon was the fair rental value of the station. The expert witnesses differed, however, as to whether the net or gross rental income should be capitalized. Applying the appraisal process of capitalizing the net rental income we find no great variance in the measure of severance damages as would warrant this court to substitute its judgment for the trial court on the ground the judgment was excessive.
Appellee, in another approach to its proof of damage, introduced evidence to show the cost of relocating the station. Appellant contends such evidence was improper under the rule laid down in the De Concini case:
"The rule also is that in arriving at the market value of land which has been damaged by the exercise of the right of eminent domain the court has a right to admit evidence of possible expenditures which, if expended, would diminish the damages. * * * [T]his class of evidence cannot operate to increase *330 the damages above what they would be without the expenditure."
Appellee, pursuant to a stipulation, introduced in evidence an estimate of a contractor in the sum of $12,000 as the cost of relocating the station. An engineer for appellee testified in substance that the only way appellee could be made whole or restored as near as possible to its former position would be to relocate the station. The testimony of appellee's expert witness established severance damage of $13,440 less the value of the land taken of $1,168.65, or a net severance damage of $12,271.35. The evidence of possible expenditure of relocating the station at a cost which was less than the severance damages, established by the opinion of appellee's real estate expert, tended to diminish the damages and it was not error for the trial court to consider such evidence.
There was a direct conflict in the testimony of the witnesses on the questions of the method of providing adequate lighting, the cost of relocating light poles and islands, and possible offset benefits to the service station as a result of the widening. We have repeatedly held that where there is a conflict in the evidence we will not disturb the judgment of the trial court where there is any reasonable evidence to support it. Sturges v. Tongeland, 83 Ariz. 148, 317 P.2d 941.
We therefore hold there was reasonable evidence under the circumstances of this case to sustain the trial court's judgment. Judgment affirmed.
WINDES, PHELPS and STRUCKMEYER, JJ., concur.
UDALL, C.J., dissents.
NOTES
[*] Now A.R.S. § 12-1111.
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111 F.Supp.2d 1135 (2000)
SAVE GREERS FERRY LAKE, INC., An Arkansas Not-For-Profit Corporation, Plaintiff,
v.
UNITED STATES ARMY CORPS OF ENGINEERS; Colonel Thomas A. Holden, Jr., District Engineer; Brig. Gen. Edwin J. Arnold, Division Commander, U.S. Corps of Engineers; Lt. Gen. Joseph N. Ballard, Chief of Engineers, U.S. Army Corps of Engineers; Joseph Westphal, Assistant Secretary (Civil Works), U.S. Department of the Army; and Louis Caldera, Secretary of the United States Department of the Army Defendants
No. 1:00-CV-051-WRW.
United States District Court, E.D. Arkansas, Northern Division.
July 31, 2000.
*1136 Richard H. Mays, Little Rock, AR, for Save Greers Ferry Lake, Inc., plaintiff.
Richard M. Pence, Jr., U.S. Attorney's Office, Eastern District of Arkansas, Little Rock, AR, for Department of Defense, United States Army Corps of Engineers, Colonel Thomas A Holden, Jr, Brigadier General Edwin J Arnold, Lt. Gen. Joseph N Ballard, Joseph Westphal, Louis Caldera, defendants.
Jim L. Julian, Mark Wilson Hodge, Chisenhall, Nestrud & Julian, P.A., Little Rock, AR, for intervenors and movants.
AMENDED AND SUBSTITUTE ORDER
WILSON, District Judge.
Pending is the First Amended Motion for Intervention (Doc.#31) filed on behalf of the following individuals: John E. Allen, Richard E. Atkins, Paul E. Barley, Gene Rudd, Charles Purtle, Joe Coe, Neil Beinsenstein, Michael Biggs, Barry Kincl, James Amos, William Payne, Samuel Boellner, James Bolhuis, William Avrett, Bill Hebert, Timothy Henwood, Gene Cutrell, Stacy Schmidt, Wesley Harris, Chuck Case, S.C. Cooke, Carol Fink, Bob Pittman, John Reaves, Bill Julian, Shelby Moore, Edmund Massey, Kenneth Nadeau, John Gillenwater, Jim Gowen, Jim Hale, Cecil Roberts, Michael Stuart, Clement Valys, Jim Wallis, Larry Jolley, and John Olsen[1]. Plaintiff, Save Greers Ferry Lake, Inc., has responded to petitioners' Motion to Intervene with a Motion to Dismiss the Motion to Intervene (Doc.#29). For the reasons set forth below, the petitioners' motion to intervene is GRANTED, but only for the limited purpose of appealing. Plaintiff's Motion to Dismiss the Motion to Intervene is, accordingly, DENIED.
FACTUAL BACKGROUND
The United States Corps of Engineers ("the Corps") is responsible for establishing and maintaining shoreline management programs at Greers Ferry Lake, Arkansas. The Corps does this by periodically implementing Shoreline Management Plans ("SMP" or "plan"). Each SMP basically consists of a map of the lake which *1137 indicates which portions of the shoreline are open or closed to specific activities and facilities. The shoreline at Greers Ferry Lake has four categories of use: (1) limited development[2]; (2) public recreation; (3) protected shoreline; and (4) prohibited access.
Some portions of the SMPs are implemented through the use of permits. For example, to install a boat dock, one must have their property zoned "limited development," and then must apply for and receive a boat dock permit.
On October 16, 1998, the Operations Manager at Greers Ferry Lake made a written request for a review of the lake's SMP, and the Corps' District Engineer approved the request on November 13, 1998. Early in the review process, the Corps informed the public that it would accept reallocation or rezoning requests until April 1, 1999. The Corps developed criteria to evaluate each rezoning request, and by the April 1, 1999 deadline, 123 requests had been received. The Corps' district personnel evaluated the 123 requests before holding a public workshop on June 15, 1999, where the evaluations were made public.
During that same workshop, the Corps gave notice of a 30-day comment period during which the public would be allowed to propose changes to the lake's SMP. By the time the comment period closed on July 15, 1999, two major areas of concern had been identified: (1) the additional zones for private and community boat docks; and (2) demands for a relaxation of the Corps' mowing restrictions.
After roughly two years of public meetings, considering substantial public comment, and keeping the public informed about the changes it was considering, the Corps drafted four alternative SMPs, and paid a private firm to conduct an environmental impact study on each of the options. The Corps then considered that study, along with the public comments, and chose Alternative #2 a plan that, among other things, allowed for more boat docks on the lake.
The Corps approved its 2000 SMP on March 14, 2000. Plaintiff, Save Greers Ferry Lake, Incorporated, brought suit on April 12, 2000, alleging that the Corps had adopted the plan in violation of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-71. Eight days later, on April 20, 2000, the plaintiff requested a Preliminary Injunction to prevent further implementation of the plan.
Two hearings were held before the plaintiff's Preliminary Injunction Motion was granted on May 30, 2000. On June 9, 2000, petitioners, as dock permit holders, moved to intervene.
ANALYSIS
NEPA, among other things, requires government agencies like the Corps to determine whether "major" proposed changes to government property might result in federal actions that "significantly" affect the environment. See 40 C.F.R. § 1502; 33 C.F.R. § 230.6 If an agency determines that proposed changes may cause significant damage to the environment, NEPA requires that the agency conduct a large-scale environmental study before the proposed changes are undertaken.[3]
Preliminary Injunction hearings were held in this case on May 25, 2000, and May 30, 2000. In deciding whether to grant the injunction, this Court could only consider the Corps' administrative record, but within that comprehensive record were the results of the environmental study which the private firm conducted for the Corps before the 2000 SMP was selected. That study's final results were published as an Environmental Assessment ("EA").
*1138 The EA examined 13 areas for each of the four proposed SMPs.[4] In some of the 13 areas tested, the EA indicated that there would be no consequences; for many of the key areas, however, the EA concluded that if the Corps implemented Alternative plan # 2, which it did, there would be "long-term adverse impacts" to the lake's: (1) highly erodible soils, (2) surface water quality, (3) wetlands, (4) aquatic resources, (5) vegetation, (6) wildlife, and (7) recreation.[5]
After two hearings and a study of the entire administrative record, the Court concluded that the Corps had implemented its 2000 SMP by improperly relying upon semantics, i.e., the Environmental Assessment concluded that there would be "long-term adverse effects" in nearly every environmental category studied, but never actually used NEPA's trigger language "significant environmental impacts." The Court, however, determined that the EA did, in effect, predict "significant environmental impacts."[6] Thus, the Corps violated NEPA when it adopted the 2000 SMP without first conducting the proper environmental studies, which are required when "significant environmental impacts" are predicted by the EA.
The preliminary injunction was issued on May 30, 2000 ten days before the petitioners filed their motion to intervene (Doc.#21). As discussed below, that injunction did not automatically void the 2000 SMP or petitioners' dock permits, but it did prevent the Corps from further implementation of the plan.
Before the injunction, many of the petitioners had already entered into contracts for boat docks (some of them quite expensive) relying on the Corps to give them valid dock permits. They obviously have a considerable financial interest in having a place on the lake to put those docks. Since the preliminary injunction has already been granted, it appears that the petitioners seek to join this suit before the Permanent Injunction is issued so that the Court might balance the financial harm facing the petitioners if the docks are not allowed, against the environmental harm that will be permitted if the docks are allowed. That is to say, petitioners seek relief in the Permanent Injunction Order which would enjoin the Corps from further violations of NEPA, but which would allow, as a matter of equity, some new boat docks to be placed on the lake.
In their attempt to intervene, petitioners insist that they should be allowed to join this suit as necessary and indispensable parties under Rule 19 of the Federal Rules of Civil Procedure, i.e., they contend that, until they are made parties to this action, this Court does not have the authority to enjoin the use of their dock permits.
Are the petitioners necessary and indispensable? As discussed above, there is no question that they have an interest in the outcome of this case, but are they necessary and indispensable now that the Court has determined that the 2000 SMP, and all permits created under it, were in violation of NEPA? In view of that determination, evidence about boat dock contracts and potential money losses obviously will not cure the Corps' NEPA violations. Also, as explained below, it does not appear that this Court has the authority to grant them the relief they seek, even if they are joined, i.e., the Court does not have the *1139 authority to allow the docks to be placed on the lake in violation of NEPA.
It is important to understand that the permits in question were revokable at any time the Corps determined that it was in the public interest or emergency circumstances dictated that they be terminated.[7] After the Preliminary Injunction was granted, the Corps immediately sent a letter dated May 31, 2000, to each of the dock permit holders. Although the Corps has denied that the letter revoked the permits, the Court views it as a plain-language revocation. Be that as it may, the impact of the decision issued by the Corps on June 9, 2000, spells curtains for the petitioners' motion to intervene. The Corps' letter of June 9, 2000, states in pertinent part: "... the 2000 Shoreline Management Plan for Greers Ferry Lake is hereby canceled and withdrawn retroactively effective 30 May 2000...." (Doc. 25). Plaintiff argues correctly, the Court believes that no plan means no permits.
The petitioners and the Corps argue that, even though the Corps has abandoned the 2000 SMP, the permits issued under that plan before May 30, 2000, remain valid. That argument is flawed by one critical fact those dock permits were issued in violation of NEPA and will continue to violate NEPA until the Corps does the required environmental tests, which it has apparently decided that it will do. Nonetheless, the Corps' retroactive cancellation of the 2000 SMP back to May 30, 2000, does not cure the NEPA violations which began when the Corps adopted the 2000 SMP on March 14, 2000.
There appear to be only two ways which the petitioners' dock permits can now be validated. The first would require a reversal by the Eighth Circuit, holding that this Court erred with respect to its May 30, 2000 decision on the NEPA issue. The Corps has announced that it does not intend to appeal to the Eighth Circuit. Therefore, in order to keep this door open for the petitioners, they will be allowed to intervene for the limited purpose of appealing this Court's May 30, 2000 decision. See, e.g., Conner, et al. v. Burford, et al., 848 F.2d 1441 (9th Cir.1988). If the Eighth Circuit reverses, the permits issued before the Corps' retroactive cancellation of the 2000 SMP may then become valid, depending on the Eighth Circuit's opinion.[8]
The second way the dock permits could become valid, would require the Corps to comply with NEPA by completing the necessary environmental studies. Because it now appears that the Corps will be conducting those studies, the dock permits may become valid if the Corps' Environmental Impact Study has favorable results and if the Corps reimplements the 2000 SMP.
Petitioners contend that there is a third way to validate the dock permits. They suggest that this Court has the authority to balance the equities, and issue a Permanent Injunction against the Corps which would allow the petitioners to keep both their dock permits and to fulfill their dock construction contracts. In support of this proposition, petitioners cite several cases involving contracts and permits issued before NEPA violations were enjoined. For example, in Ohio v. Callaway, 497 F.2d 1235 (6th Cir.1974), the Corps of Engineers was enjoined during the construction of two reservoir projects for filing insufficient Environmental Impact Statements. A construction association that had entered into agreements with the Corps for construction projects around the lakes was allowed to intervene. The Callaway Court *1140 permitted completion of specific phases of the intervener's pre-injunction contracts after finding that "....the environmental damage incident to the execution of the contracts awarded had already occurred. .." and that completion of those contracts would "....not significantly damage or otherwise affect the environment." Callaway, 497 F.2d at 1239.
The cases cited by petitioners, including the Callaway case, are distinguishable from the case at bar. This is primarily because this Court can say, based upon the Environment Assessment that is part of the Corps' administrative record in the case at bar, that the environmental damage related to the dock permits has not yet occurred, but, when it does, its adverse impact on the environment will likely be long-term - - the Court has considerable confidence that the record supports this conclusion.
Petitioners have cited no authority for the proposition that permits issued in violation of NEPA can be used after the issuing government agency has withdrawn and canceled the plan under which those permits were issued. Additionally, if this Court issued an injunction that allowed the docks to be placed on Greers Ferry Lake without the required environmental studies first having been conducted, this Court would be side-stepping Congressional intent by authorizing ongoing NEPA violations.
CONCLUSION
It is impossible for this Court to allow the use of the petitioners' dock permits without creating a continuing violation of NEPA. The Court does not have this authority.
The petitioners' motion to intervene is GRANTED, but only for the limited purpose of appeal. No other boat docks may be placed on the lake and all dock permits issued under the 2000 SMP will remain inoperative until the Corps completes its environmental studies and complies with NEPA, or the Eighth Circuit reverses this Court's decision of May 30, 2000.
The four boat docks that have already been situated on the lake may remain in place pending the Eighth Circuit's decision or the completion of the Corps' environmental study, but they must not be used. If the Corps is not able to comply with NEPA and the Eighth Circuit does not reverse, those four docks will have to be removed from the lake.
NOTES
[1] These individuals will be referred to collectively as "petitioners."
[2] Boat docks are allowed only in "limited development" areas.
[3] The final form of this study is called an Environmental Impact Statement.
[4] Because Alternative # 2 was the Corps' "preferred alternative," and the one ultimately adopted as the SMP of 2000, the other three proposed plans are not addressed.
[5] For example, the EA concluded that, "[t]he approval of the 103 facility (dock) rezoning requests is expected to have a long-term adverse impact on the surface water quality of the reservoir. See EA § 5.3.3.1, p. 5-8. Further, "[u]nder the Proposed Action Alternative [2], there would be long-term adverse impacts to wetland vegetation at Greers Ferry Lake as a result of accepting and approving approximately 103 facility (dock) rezoning requests." See EA § 5.3.4, p. 5-8.
[6] The Court uses the word "impact[s]" only because the applicable statutes and regulations use it.
[7] The dock permits issued by the Corps state: "....the district commander may revoke this permit whenever the public interest necessitates such revocation or when the permittee fails to comply with any permit condition or term, [and] ... if in the opinion of the district commander, emergency circumstances dictate otherwise, the district commander may summarily revoke the permit." See Application For Shoreline Use Permit, §§ 26-27.
[8] The Corps would also have to reimplement the 2000 SMP.
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904 P.2d 110 (1995)
Curtis Edward McCARTY, Appellant,
v.
STATE of Oklahoma, Appellee.
No. F-89-1057.
Court of Criminal Appeals of Oklahoma.
September 12, 1995.
David Autry, Norman, Don Ed Payne, Hugo, for appellant at trial.
Robert H. Macy, Barry Albert, Oklahoma City, for State at trial.
Jamie D. Pybas, Assistant Appellate Public Defender, Norman, for appellant on appeal.
Susan Brimer Loving, Attorney General of Oklahoma, Dan Connally, Assistant Attorney General, Oklahoma City, for appellee.
*114 OPINION
STRUBHAR, Judge:
The homicide in this case occurred in the early morning hours of December 10, 1982. Almost three and one half years later on March 17-26, 1986, Appellant was tried by a jury in the District Court of Oklahoma County, Case No. CRF-85-2637. Appellant was convicted of First Degree Murder and sentenced to Death. This conviction was appealed to this Court in Case No. F-86-343. In an opinion handed down in December of 1988, Appellant's case was reversed and remanded for a new trial based upon numerous trial errors. McCarty v. State, 765 P.2d 1215 (Okl.Cr. 1988). Appellant was retried in September of 1989, almost seven years after the crime was committed. Again, the jury found him guilty of First Degree Murder and assessed punishment at Death. Appellant was sentenced accordingly. It is from the Judgment and Sentence that Appellant has perfected his appeal to this Court.
FACTS
On December 5, 1982, due to marital problems, Dale Coffman moved out of the house that the shared with his wife Melanie Coffman. On that same day, Pam Willis moved into the house with Melanie. Close to 1:15 a.m. on December 10, 1982, Dale called the house to talk with Melanie, but when the phone was answered no one spoke. He hung up and called again. This time he heard a woman's voice on the other end call out "help" or "Dale, help me."[1] After this, Dale drove by Melanie's house and noticed the lights were on and Pam's car was in front but Melanie's car was not there. He did not go inside, but went first to a nearby convenience store and called the house to see if Melanie was there. No one answered the phone. After he drove back to the house, Dale *115 walked to the front porch where he noticed that one of the windows to the side of the front door was broken. He looked through the front door window into the house and saw nothing. Dale walked to the side of the house and looked into the side windows where he observed a pair of bare legs on the floor between the dining room and the kitchen area. Because he could not see the rest of the person he did not know who it was. He ran back to the front porch and beat on the door but no one responded so he ran to get help. Dale called the police from a neighbor's home and then waited for them to arrive. The police arrived at around 2:00 a.m., within three or four minutes of the call. One of the officers kicked in the front door and entered the house. Dale followed and observed the naked body of a woman laying on the floor. Because her face was covered Dale was unable to identify her. However, she was eventually identified as Pam Willis. Pursuant to subsequent investigation Appellant was arrested and charged with the murder of Pam Willis. Additional facts will be discussed as necessary in the following propositions of error.
PRETRIAL ISSUES
In his tenth assignment of error, Appellant argues the trial court improperly restricted his questioning of jurors during voir dire. Appellant complains defense counsel was prohibited from asking potential jurors to speculate about circumstances they would consider to be mitigating. This Court has, in the past, upheld a trial court's ruling prohibiting this line of questioning, finding that such ruling was not an abuse of discretion. See Fox v. State, 779 P.2d 562, 569 (Okl.Cr. 1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990). We are not now persuaded to hold otherwise, especially in light of the fact that defense counsel was able to determine, through proper questioning, whether the jurors could follow instructions to consider mitigating evidence.
Appellant also argues defense counsel was improperly restricted from questioning the potential jurors regarding the strength of their opinions on the death penalty. A review of the record does not support this assertion. Defense counsel was prohibited from informing the jurors that if they could not agree upon a verdict of death, the trial court would sentence Appellant to life. However, defense counsel was not prohibited from discussing with the jurors the strength of their opinions about the death penalty. This proposition is without merit.
Appellant argues in proposition eleven that the trial court erred when it refused defense counsel's request to voir dire the jurors individually because of extensive pretrial publicity concerning this case. This Court has noted there is no right to sequestered, individualized questioning during jury selection although such may be allowed at the discretion of the trial court. Cannon v. State, 827 P.2d 1339, 1341 (Okl.Cr. 1992). Further, "[t]he existence of extensive pretrial news coverage does not itself demand individual or sequestered voir dire.... The crux of the issue is whether defendant can receive fair and impartial jurors." Vowell v. State, 728 P.2d 854, 858 (Okl.Cr. 1986).
The record reflects that at the time defense counsel argued the motion to have jurors questioned individually on the question of pretrial publicity, counsel acknowledged there had not been much recent publicity concerning this case. Rather, counsel's request was based upon concern that jurors might remember publicity from the first trial in 1986. The trial court ruled that while he would not start out with individual voir dire, he would conduct individual voir dire if something occurred which indicated such to be necessary. Indeed, the record reflects the trial court did follow through with this ruling. At the beginning of the second day of voir dire, defense counsel called to the trial court's attention that one of the television news stations had run a story on the case the preceding night. Defense counsel requested the trial court to ask the jurors as a whole if they had seen the story and then question individually those who indicated that they had. The trial court complied with this request. From this, it appears the trial court proceeded in a way which allowed defense counsel to adequately determine whether potential jurors had been prejudiced by pretrial *116 publicity. We find the trial court did not abuse its discretion in so ruling.
FIRST STAGE ISSUES
Appellant argues in his first proposition that the evidence presented at trial was insufficient to support his conviction for First Degree Murder. In support of this argument, Appellant directs this Court's attention to much of the circumstantial evidence introduced at trial. Appellant approaches this proposition by discussing separately each portion of evidence and how if falls short of proving his guilt. He first complains about the testimony of forensic chemist Joyce Gilchrist concerning the hair comparison analysis. Gilchrist testified that sixteen scalp hairs and one public hair found at the scene of the homicide were consistent with Appellant's hair and therefore, could have come from him. She also testified that a single fragment of scalp hair removed from the screen that had been pulled back from the window in the bedroom exhibited similarities to Appellant's scalp hairs. However, because of the damage to this hair, no meaningful conclusion could be reached. Appellant argues this evidence was not inconsistent with innocence for several reasons. He first notes that Gilchrist acknowledged hair comparison cannot be used to make positive identification. Further, because Appellant had admittedly been in the house on several occasions prior to the night of the homicide, he argues that evidence of his hair being found at the crime scene does nothing to support the State's case establishing his presence in the house at the time the homicide was committed.
The limited value of hair comparison evidence was discussed at length during trial. While Gilchrist readily acknowledged hair comparison cannot be used to make positive identification, she also noted that it can positively exclude persons as donors of the hair. In fact, she testified that no hairs found in the residence or on Willis' body could have been deposited by several other persons who had provided hair samples, including Willis' boyfriend, Kevin Bowser, and Melanie Coffman's husband, Dale, both of whom had either spend time at the house or around Willis shortly before the homicide. Further, one of the scalp hairs which Gilchrist testified was consistent with Appellant's scalp hair was found inside a knife wound on Willis' body. The jury may reasonably have found this testimony probative as to the issue of whether Appellant was present at the time the crime was committed. Accordingly, while the testimony regarding hair comparison analysis is not disposition, it is not insignificant.
Appellant also argues that flaws in the chain of custody concerning the hair evidence render its reliability highly suspect. He specifically refers to discrepancies between Gilchrist's forensic report and her testimony regarding a public hair found on Willis' chest. At trial Gilchrist testified this hair was consistent with public hairs taken from Appellant. However, in her forensics report she initially noted that the hair was inconsistent with hairs taken from either Willis or Appellant. This discrepancy was discussed at trial where Gilchrist explained that it was due to a typographical error made by her secretary which she failed to notice prior to signing the forensic report. She testified that her work notes reflected the public hair at issue was consistent with those submitted by Appellant. Gilchrist amended her forensic report prior to trial to correct this typographical error. She discussed this discrepancy both during direct examination and cross examination. Defense counsel thoroughly questioned her about the error, affording the jury and opportunity to consider the discrepancy when determining the reliability of her analysis.
Next Appellant complains the serological evidence presented at trial did not eliminate every reasonable hypothesis except that Appellant had been the donor of the semen found at the crime scene. Gilchrist testified Willis and Appellant had the same blood type and secretor status and they shared common genetic markers with the exception of two. Even so, she could not say Appellant was the donor of the semen; he simply could not be eliminated as such based upon the blood analysis. However, neither could a number of other persons tested, including Kevin Bowser, Dale Coffman, Rick Terry, and Shawn McCarthy. Accordingly, if the serological *117 evidence was the only evidence presented at trial which purported to connect Appellant with the commission of the crime, it clearly would be insufficient to do so. However, this was but a small portion of the evidence presented and while it did not connect him to the crime scene, neither did it exclude him.
Similarly, Appellant challenges the relevance of testimony concerning a cigarette butt found floating in the toilet at the house where Willis was killed. Gilchrist testified that several persons could not be excluded as donors of antigens detected on the cigarette butt, one of which was Appellant. Again, this testimony did not necessarily connect Appellant to the crime scene.
Appellant also argues that while a fingerprint found on the base of the vase on the coffee table did indicate he had been in the residence, it did not connect him to the commission of the crime. Appellant admitted having been in the house several times in the past, most recently the day before Willis was killed. Appellant's argument concerning the limited value of this evidence is supported by the testimony of the fingerprint analyst, John Hill, who could not testify as to how long the print had been on the vase before it was lifted. He also could not say that if the vase had been wiped with a cloth, as Melanie Coffman claimed to have done the morning of the day Willis was killed, the print would have necessarily been removed. Accordingly, Appellant contends this evidence did not establish his presence at the house at the time the homicide occurred.
The State presented evidence that the rope found wrapped around Willis' neck was like those that had been manufactured for the Air Refiners Plant where Appellant had been employed in 1982. Appellant argues the evidence concerning this rope was not conclusively connected to him. Again, this is true. Although like ropes had been seen laying about at the plant where all employees had access to them, there was also testimony that the ropes and clips attached to the ropes could be purchased by the general public and the devices were not patented.
Appellant also discusses evidence presented by the State that on the night Willis was killed, Appellant was driving his white Volkswagen and it broke down leaving him stranded. Yolanda McCarthy, a friend of Appellant's, testified about a telephone conversation with Appellant she thought to have occurred around the last of 1982 or the first part of 1983. She later testified that she thought the phone call occurred before Christmas. Appellant called Yolanda some time after 10:00 at night from a Circle K Store on the outskirts of Moore because he was stranded and needed a ride home; his car had broken down. He told her that a girl had been killed over drugs and he didn't want to stay at the store very long because he would be seen by either the person at the store or by the police. Because she could not help him she told him to call Cindy Parks. Yolanda recalled Appellant's Volkswagen as being light blue or white.
Cindy Parks testified that on December 10, 1982, she received several calls from Appellant after 2:00 a.m. asking for help with his car which had broken down. Appellant was calling from a convenience store and told Parks he was afraid the clerk would remember him because he kept using the phone so much. Parks testified Appellant sounded nervous but she did not know why. She told Appellant she would call a friend who knew about cars to go help him. Parks called Anna Haakonson who agreed to go help Appellant. At school the next day Parks learned Willis had been killed the night before.
Anna Haakonson testified she received a phone call from Cindy Parks between 2:00 and 3:00 a.m. on a rainy and cold week night in 1982, and Parks asked her to go help push Appellant's car home. Anna rode with her brother Olaf in his truck to Appellant's car which was at S.W. 89 & Santa Fe. They pushed the light blue Volkswagen to a house in Moore.
Olaf Haakonson testified he went with his sister Anna on a winter night to S.W. 89th & Santa Fe to push a car. He could not identify Appellant as the person whose car they pushed. Olaf noticed a crinkle in the back of the Volkswagen above the bumper. The car appeared to Olaf to be light blue. Olaf testified *118 the car would not run for very long periods so he pushed the car to a location in Moore.
The effect of this testimony was to place Appellant in the general vicinity of the homicide on the night it occurred and to circumstantially connect him to the commission of the crime by virtue of Yolanda's testimony that he had referenced the death of a girl and his fear of being recognized in the convenience store. Appellant argues this testimony was wholly unreliable because of the various inconsistencies in the testimony of these witnesses. Although Cindy Parks' testimony that the telephone call from Appellant occurred on the night Willis was killed remained consistent, other witnesses were not able to testify with equal certainty as to the night his car broke down. Defense counsel ably cross-examined these witnesses about their varying accounts of when this event occurred.
Appellant also argues the testimony of these witnesses was insufficient to connect him to the commission of the crime because there was evidence that he did not own a blue Volkswagen at the time of the homicide and the white Volkswagen that he did own was inoperable because his girlfriend had smashed in the back of the car. Yolanda McCarthy testified she recalled Appellant's vehicle as being light blue or white. Cindy Parks testified Appellant had owned both a light blue and a white Volkswagen and she wavered in her recollection of which he was driving at that time. Anna Haakonson recalled Appellant's car as being light blue on the night she and her brother had pushed it. Olaf Haakonson recalled Appellant's car to be light blue with a crinkle in the back. Again, the inconsistent testimony of these witnesses regarding the color of Appellant's car was revealed on cross examination by defense counsel. Although Appellant maintains on appeal the State did not refute the evidence that his white Volkswagen was inoperable at the time of the homicide, this fact was contradicted by Appellant himself in one of the statements he made to the police.
Next Appellant attacks the sufficiency of his own statements to connect him to the commission of this homicide. He argues the statement attributed to him by Yolanda McCarthy failed to connect him to the homicide because the year and date of this phone call were in question and concerned an unnamed person. He claims that at best, the statement indicated a knowledge of the offense but not participation.
He argues the testimony of another witness, Gerald Griffin, concerning a telephone conversation between the two of them was equally inconclusive. Griffin testified he spoke to Appellant in September of 1983 about the murder of a girl. Appellant told Griffin he had known a girl who wanted to buy acid so he took another friend to her house to sell her the acid. Appellant and his friend left the house but his friend returned to the house and killed the girl after she overdosed or "freaked out." Again, he points out that this statement does not connect him to the actual commission of the crime.
Cindy Parks testified at trial she had a conversation with Appellant at her parent's house between Christmas and New Year's Eve in 1982 where he told her the police put out the wrong information about Willis' death. Parks testified Appellant said he had been paid to kill Pam Willis for "burning" someone on a drug deal. Appellant told her he had gone in the house alone while Willis was sleeping and had slashed her throat, but had not sexually assaulted her, and smoked a cigarette and then left. Appellant was worried he had left his fingerprints on a knife drawer he had leaned against. He also told her he stole a necklace and a purse from the house. Appellant points out this story is not consistent with known facts of how Willis was killed.
Appellant also attacks the testimony of Theodore Elgin, the convicted felon who testified that while in the Oklahoma County Jail, he heard Appellant discussing with other inmates the murder of a girl. Appellant argues this testimony was inherently unreliable. Although Elgin testified he had not made any agreements with the District Attorney's office in exchange for his testimony, pending felony charges against him in Oklahoma County were dismissed.
*119 Appellant finally argues the numerous statements given by him to the police do not tie him to the Willis homicide as either the killer or a principle to the offense. Appellant was first interviewed by the police on March 15, 1983. During this interview, he told them that the night before Pam was killed, he had received a phone call from Melanie Coffman requesting that he obtain some acid for Pam. While he was trying to make a connection to get the acid, Chas Kelly and Shawn McCarthy came to his residence. The three left his residence and went to the house on 39th Street where Willis was staying to deliver the acid. They were there a short time and left to go to band practice at the studio on Classen that evening.
Appellant gave another statement on March 6, 1985. He was represented by counsel during this interview and it was transcribed by a court reporter. The transcript of the interview was also admitted into evidence. During this interview, Appellant's account of his activities on December 8, 1982, was the same as he had stated in the previous interview. Appellant stated that at 6:00 p.m. the day Pam was killed he was with a friend named Steve. Around 7:00 or 8:00 he and Steve went to Pam's house with the intention of selling her more acid, but they did not make a sale. Pam told him she was going to buy some acid from Shawn later that night. They left the house and he drank some beer and did some drugs and then Steve took him home where he went to bed. In this interview Appellant did not indicate he had gone to band practice that night. He speculated that Shawn had killed Pam because she burned him on the drug deal. He also stated he found out Pam had been killed early the next morning when Terrie Calvary called him between 5:00 and 7:00 a.m. Appellant denied making any phone calls from a pay phone that night to get someone to come pick him up. He stated he called several people to talk about Pam Willis after she had been killed. He claimed he had a reputation of knowing everything that was going on and he admitted he had told people he knew who killed Pam but he was just guessing.
On March 7, 1985, Appellant was interviewed again and the interview was recorded by a court reporter. He was again represented by counsel and he was advised of his rights under Miranda. Once again, Appellant was consistent in his recount of the events of December 8, 1982. He and Rick Terry, his drug connection, went to Pam's house. He intended to set Terry up with Pam so Terry could get sex from Pam in exchange for drugs. Appellant, by setting this up, could get extra drugs. After he took Terry over to Pam's, Appellant left. Appellant told the police he was driving his white Volkswagen which ordinarily would not run but did that night. He said that it was raining and his car stalled when he was going back to Pam's house. He called over to Pam's and spoke with Terry who told him he had gone to the bathroom and Pam had gotten into his bag of money and drugs. Terry told Appellant to keep his mouth shut. When Appellant was asked if he called Cindy Parks he said that he had. Appellant volunteered that Cindy did not come pick him up, but she called a friend of hers who came with her brother. He did not remember her name but remembered that she had blond hair.
Appellant argues that much of what he stated to the police conflicted with facts of the homicide. He points out that his claim that Rick Terry was the killer proved to be false. It is Appellant's position that these statements, in their most damaging light, place him at the scene of the crime but do not indicate he participated in the murder.
The foregoing discussion amply demonstrates the evidence relied upon by the State to convict Appellant was entirely circumstantial and the jury relied upon inference to convict Appellant of the crime charged.[2] Accordingly, Appellant's conviction can only be sustained upon a finding that the evidence presented at trial, when viewed in the light most favorable to the prosecution, excludes every reasonable hypothesis except that of guilt. Billey v. State, 800 P.2d 741, *120 743 (Okl.Cr. 1990). However, the State is not required to exclude every conceivable hypothesis or negate any possibility other than guilt. Romano v. State, 847 P.2d 368, 378 (Okl.Cr. 1993), aff'd, ___ U.S. ___, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). In deciding this issue, this Court must consider and examine the record as a whole. Id. Further, the jury is the exclusive judge of the weight and credibility of witnesses' testimony, and a reviewing court must accept those credibility choices and reasonable inferences that tend to support the verdict. Id. at 379. When all of the evidence is reviewed as a whole, in the light most favorable to the State, Appellant's argument that the evidence was insufficient to support his conviction loses its impetus. The jury could reasonably have found that the evidence excluded every reasonable hypothesis except that of Appellant's guilt. This proposition is without merit.
In his second proposition, Appellant contends that the statements he made to the police should have been excluded from evidence because they were secured in violation of his rights under the United States Constitution, and the Oklahoma Constitution.
Appellant was interviewed by the police and gave separate statements on March 6, 7 and 11, 1985. Although he never admitted to killing Willis, he told differing stories about what happened on the night Willis was killed. Defense counsel argued against the admission of these statements at a hearing on a motion to suppress. This motion was overruled and the statements were allowed into evidence at trial. Appellant argues on appeal that the trial court's ruling on this motion was in error.
It was established at trial that on March 5, 1985, Appellant was approached by Oklahoma City Police Lieutenant. Sellers at the Oklahoma Envelope Company where he worked. Appellant accompanied Sellers to the police station for an interview. Once at the police station, he was interviewed by Eddie Thomason, an investigator with the Oklahoma County District Attorney's Office. Thomason testified that he advised Appellant of his Miranda rights before the interview on March 5, 1985. During this interview, Appellant indicated he wanted an attorney and the interview was terminated. The following day, on March 6, 1985, Appellant was again interviewed. This time, however, he was represented by counsel and his statement was recorded by a court reporter. Appellant's own counsel asked him questions first and the police then, in effect, cross-examined him. Appellant was not advised of his Miranda rights on this date. However, the following day, on March 7, 1985, Appellant was advised of his Miranda rights before he gave a second statement which was again given in the presence of his counsel.
Appellant first argues that his statement of March 6, 1985, should not have been admitted into evidence because it was the product of a custodial interrogation and had not been made knowingly and voluntarily as he had not been apprised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). While the record supports Appellant's assertion that he was not read his Miranda rights on March 6, 1985, it also indicates that this interview was preceded by circumstances which render this omission harmless. Appellant had been apprised of his Miranda rights just one day earlier and he exhibited at that time that he understood these rights when he requested an attorney. When Appellant was interviewed on March 6, 1985, this occurred with the assistance of his attorney. Under these circumstances, the conclusion that Appellant's statement of March 6 was made by him unknowingly and involuntarily simply because he was not again advised of his rights is illogical. The record supports the conclusion that the statement of March 6, 1985, was knowingly and voluntarily made by Appellant with the assistance of counsel. Accordingly, Appellant's argument that his subsequent statements should also have been suppressed because they were tainted by the statement of March 6, 1985, is also without merit.
Appellant next contends that all three statements were given involuntarily because they were obtained by threats and conditioned upon promises of immunity, fair deals and leniency. Indeed, the record does support Appellant's assertion that promises were made to him. The district attorney initiated the first interview by promising Appellant *121 that if he told the truth about what he knew of the homicide, Appellant would not be charged with anything short of murder.
While promises of leniency are certainly to be considered in determining whether a statement was given voluntarily, such are not necessarily dispositive of the issue.[3] Rather, a determination of voluntariness must be made by a review of the totality of the surrounding circumstances, including the characteristics of the accused and the details of the interrogation. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Turner v. State, 803 P.2d 1152, 1158 (Okl.Cr. 1990), cert. denied, 501 U.S. 1233, 111 S.Ct. 2859, 115 L.Ed.2d 1026 (1991). In the present case, the following factors are relevant: Appellant had been advised of his Miranda rights the day before the first transcribed statement was taken, he exhibited that he understood these rights as he requested the assistance of counsel, his attorney was present during both transcribed statements, and his attorney participated in the interview by asking him questions. This record does not support a finding that Appellant made the statements because his will was overborne by promises made to him by the Assistant District Attorney.
Appellant also argues his statements were involuntary because the police informed him they were going to have Rick Terry in custody soon when in fact they were not. Again, while this may be a factor to consider, it does not tip the scales in Appellant's favor on this issue. A review of the totality of the circumstances supports the conclusion that Appellant's statements were made voluntarily.
Finally, Appellant argues his statements were inadmissible because they were given following an illegal, investigatory, pretextual arrest which was not based upon probable cause. Appellant contends that when he was picked up by police and taken to the station for questioning, he was at that time illegally placed under arrest. The record does not support this conclusion. "If there is no manual seizure or any resistance, the intentions of the parties are very important. [In order to have an arrest.] [t]here must be an intent to arrest by the officer and an understanding by the arrestee that submission is necessary." DeVooght v. State, 722 P.2d 705, 708 (Okl.Cr. 1986). While the police officers may have intended to arrest Appellant had he not gone with them voluntarily, they did not necessarily consider him to be under arrest when he voluntarily accompanied them for questioning. Further, there is no indication from the record that Appellant believed himself to be under arrest or that he was led to believe that he was not free to leave. Accordingly, we do not find that Appellant was under arrest when he was first questioned by police on March 5, 1985.
However, after the March 5 interview with Appellant was terminated, he was booked into jail as a material witness.[4] It does not appear from the record that the police had a warrant to arrest Appellant as a material witness. Probable cause to believe a person is a material witness to a homicide is not authorized as a justifiable precedent for warrantless arrest.[5] Further, the statutory authority which allows material witnesses to be arrested provides for such upon the issuance of a warrant.[6] Accordingly, it appears that Appellant's warrantless arrest *122 as a material witness may well have been illegal.
Even if Appellant's arrest was illegal, it was not necessarily error for the trial court to admit into evidence the statements made during his unlawful detention; if the statements were purged of the taint of the illegal arrest they can be found to have been properly admitted into evidence. Again, the inquiry turns to whether Appellant's statements were made voluntarily. In determining whether the taint of the unlawful arrest has been purged, several factors must be considered: whether the Miranda warnings were given, the temporal proximity of the arrest and the statements, any intervening circumstances, and the purpose and flagrancy of the official misconduct. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Cooks v. State, 699 P.2d 653, 657 (Okl.Cr.), cert. denied, 474 U.S. 935, 106 S.Ct. 268, 88 L.Ed.2d 275 (1985).
It appears the police specifically arrested Appellant unlawfully for the purpose of questioning him about this homicide. However, as has been noted above, Appellant was advised of his Miranda rights on March 5, 1985, prior to being questioned. He exhibited that he understood his rights as he requested the assistance of counsel. The statements which were offered into evidence were made by Appellant after he had obtained the assistance of an attorney. Appellant's request for counsel and the compliance with this request operated as an intervening circumstance which purged the primary taint of the unlawful arrest. Accordingly, the statements made by Appellant were properly admitted into evidence at trial.
Appellant's third assignment of error asserts he was deprived of his constitutional rights to a fair trial and a fair sentencing hearing by pervasive and improper tactics, remarks, and arguments by the same prosecutors that caused this court to reverse his conviction after the first trial.[7] Appellant first complains the prosecutor misstated and misrepresented the evidence and argued facts not in evidence. He specifically argues that the prosecutor, in both opening and closing argument, represented to the jury that the serology and hair evidence positively identified Appellant as being physically present at the scene when the homicide occurred. As discussed above, the serology and hair evidence, taken alone, did not positively identify Appellant as the perpetrator of this crime. When the arguments of the prosecution are read in context and reviewed as a whole, it appears that the prosecutor did not misrepresent this evidence to be more dispositive than it actually was. Rather, the prosecutor asked the jury to consider all of the evidence presented. He noted there was much circumstantial evidence presented in this case, and he discussed all of it, including the serology and hair evidence. He then asked the jury to deduce from all of the evidence that Appellant was in the house on the night of the murder. While a few of the prosecutor's comments, taken alone, may have bordered upon impropriety, we find that the argument as a whole was not so improper as to have infringed upon Appellant's rights. Rather, this argument fell within the prosecution's wide latitude to discuss freely, from the State's standpoint, the evidence and reasonable inferences and deductions arising therefrom. Shelton v. State, 793 P.2d 866, 871 (Okl.Cr. 1990).
Appellant also contends the State improperly commented on the failure of defense to call expert witnesses. Prior to trial, the forensic evidence which had been examined by Gilchrist was sent to experts retained by the defense for independent analysis. Defense counsel opted not to call an expert witness to testify regarding the results of this independent analysis. Over defense objection, the prosecutor elicited on direct examination from Gilchrist that the forensic evidence had been sent to experts retained by the defense. Then, during first stage closing argument, again over the objection of defense counsel, the prosecutor brought this to the attention of the jury stating that if Gilchrist had made a mistake in her analysis, *123 an expert for the defense would have testified accordingly at trial.
Appellant argues the prosecutor's comments on the conclusions drawn from the failure of defense to call an expert witness, constituted reversible error. This Court has held it improper for a prosecutor to comment on a defendant's failure to call certain witnesses where such comment was misleading or drew improper conclusions from outside the record. See Thompson v. State, 462 P.2d 299, 304-05 (Okl.Cr. 1969); White v. State, 726 P.2d 905, 907 (Okl.Cr. 1986). However, "the general rule in Oklahoma is that where a person might be a material witness on a defendant's behalf and the accused neither places him on the stand nor accounts for his absence, failure to produce him as a witness is a legitimate matter for comment during the State's argument." Trice v. State, 853 P.2d 203, 214 (Okl.Cr.), cert. denied, ___ U.S. ___, 114 S.Ct. 638, 126 L.Ed.2d 597 (1993).
In this case, it was established on the record that experts selected by the defense had analyzed the same forensic evidence as Gilchrist. The defense sought to establish that Gilchrist's conclusions regarding the analysis of this evidence were unreliable. It was a fair inference that had the defense experts arrived at any other conclusions regarding the analysis of this evidence they would have been called by the defense to testify. Accordingly, the prosecutor's argument in this regard was not misleading nor based upon facts outside the record.
It is next alleged that the prosecutor improperly denigrated Appellant and voiced personal opinions of his guilt. None of the comments of which Appellant specifically complains were met at trial with contemporaneous objection. Accordingly, all but plain error has been waived. Freeman v. State, 876 P.2d 283, 287 (Okl.Cr.), cert. denied, ___ U.S. ___, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994). Many of the comments at issue fall within the wide range of permissible argument. None were so egregious as to have risen to the level of reversible error.
Appellant also complains of numerous comments made by the prosecutor which he contends were designed to incite sympathy for the victim, invoke societal alarm, and encourage the jury to convict Appellant based upon the prosecutor's personal sense of justice. The first stage comments at issue were not objected to at trial. Because these comments did not constitute plain error, no relief is warranted.
In his fourth proposition of error Appellant argues that impermissible judicial intervention into the deliberative process unduly coerced the jury into reaching a verdict in violation of appellant's Sixth and Fourteenth Amendment rights to a fair and impartial trial and his right to a unanimous jury verdict under Article II, Section 19, of the Oklahoma Constitution.
After it had deliberated for approximately seven and a half hours at the conclusion of the first stage of trial, the jury sent the trial court a note which indicated they were unable to agree upon a verdict. The judge responded to the jury's note by giving them the stock Allen charge as set forth in the Oklahoma Uniform Jury Instructions.[8] Defense counsel acknowledged that this instruction accurately stated the law, but argued it was unduly coercive and should not be given. He requested a mistrial. The objection and request for mistrial were overruled.
Approximately seven hours later, the jury foreman sent the trial court another note which stated:
Judge Parr: We have deliberated for approximately 15 hours and here is the situation: I am the only juror left who still holds to the verdict that I do, the few others who believed what I do have now changed their vote. [A portion of the note was erased here.] We have talked & talked, discussed, argued, concurred, etc. deligently and seriously now for quite some time. I still sincerely and in good conscience am holding to my conviction and do not feel that no matter how much the other jurors are convinced & try to convince me, I do not feel that I will be able to change my belief. Yet I also cannot change the minds of 11 fellow jurors. *124 I realize the seriousness & expenses of these proceedings thus far and do not take this lightly in any manner. It seems to be that if (and I don't know that we are) we are required to stay here & deliberate until we reach a unanimous decision, that that can not happen unless I change my decision simply because of the opinions of the other jurors and simply to arrive at a decision. Of course, I have given serious & open-minded consideration to the interpretations and opinions of the others but I still could not, in good conscience, change my mind. I have also presented to the other jurors my reasons for my decision, which to me are valid reasons but they do not agree. Having listened to all their discussion, I agree on some matters but not on others, not enough to change my decision. What are your instructions?[9]
Upon receiving this note, defense counsel again moved for a mistrial. The trial court did not grant his request but instead asked a few questions to the jury foreman. The following exchange occurred:
COURT: Has the jury reached a verdict.
FOREMAN: No, sir.
COURT: Now, we have the note here written on the yellow tablet paper. Do you think that further deliberation in this case will be fruitful?
FOREMAN: No, sir.
COURT: What about your fellow jurors?
Do they
FOREMAN: They're of the same opinion.
COURT: Will everyone on the jury that agrees with the statement of Mrs. Glatt please raise your hand.
(No response from jurors.)
FOREMAN: Would you ask the question again?
COURT: The question for the jury is, I want to find out if everyone is in agreement, that you don't think it's possible to reach a verdict. That's what the foreman has told me, that she does not feel that it's possible for the jury to reach a verdict. And since you've all been up there deliberating, do you all think that that is correct, that that is right, that that is true? If you believe that to be correct, please raise your hand so we can get some idea of how the jury feels about it.
(No response from jurors.)
COURT: Well, no one has raised their hand, so apparently nobody agrees with the statement.
FOREMAN: Let's go deliberate.
(Jurors speak to each other out of hearing of court reporter.)
FOREMAN: Okay. We'll go back.[10]
At this point, defense counsel and the prosecutors met at the bench outside the hearing of the jury. The trial court expressed surprise that none of the jurors had responded to his question. He speculated that the holdout juror must be the foreman. A prosecutor stated that they were wasting their time and the trial court and defense counsel agreed. The trial court then suggested that he question the foreman to see if she had written the note. The prosecution thought this a good idea, but defense counsel objected, not wanting to single her out. One prosecutor suggested that they allow the jury a dinner break and then send them back into deliberations. In response, defense counsel suggested that the problem cold not be resolved by simply taking a break in light of the content of the juror's note which indicated that if the juror's vote was changed, it would be to make the verdict unanimous, not because he/she had changed his/her mind. Defense counsel suggested this would undermine the validity of the verdict, and he renewed his motion for a mistrial. The trial court then decided to ask the jury foreman one more time whether she thought it possible for the jury to reach a verdict. If she said it was not, the judge agreed to grant a mistrial. However, if she said that they could go back and deliberate, he agreed to allow them to do so. After this discussion at the bench the following transpired in open court:
COURT: Mrs. Glatt, again, do you feel like that the jury can reach a verdict in this case with further deliberation?
*125 FOREMAN: I guess we'll just have to ask them. I thought the consensus was no, but apparently it's changed.
COURT: Do you want to go up and continue deliberation?
FOREMAN: Please.
COURT: All right. Send the jury back upstairs.[11]
After deliberation for another one and a half hours, the jury returned with a verdict of guilty.
This Court has, in the past, found no error in the giving of Allen instructions after the jury has announced itself to be dead-locked after several hours of deliberation. See Givens v. State, 705 P.2d 1139, 1142-43 (Okl.Cr. 1985); Sartin v. State, 637 P.2d 897, 898 (Okl.Cr. 1981). This Court has also found that, "it is not improper for a trial judge, after a jury has been deliberating for some time, to call them into court to ascertain whether there is a reasonable probability of reaching a verdict so long as the judge exercises great caution to say nothing to coerce an agreement or to indicate his feelings in the case." Shultz v. State, 811 P.2d 1322, 1330-31 (Okl.Cr. 1991). However, the question currently before this Court is whether the giving of the Allen instruction coupled with the repeated questioning of the jury and the foreman about whether further deliberations would be useful, constituted an unduly coercive process in this case. We find that taken in context, the inquiry made by the trial court to the foreman was not coercive, but instead, merely asked for clarification of the situation.
Appellant argues in his fifth proposition that the State's exhibits and the testimony concerning the results of forensic hair comparisons performed by forensic scientist Joyce Gilchrist should not have been admitted into evidence over defense counsel's objections. Prior to trial, defense counsel argued a motion in limine to preclude the introduction of hair evidence and to preclude forensic chemist, Joyce Gilchrist, from testifying at trial. This argument was overruled and Gilchrist testified at trial concerning the results of her analysis on hair found at the scene of the homicide. Appellant alleges several errors related to the introduction of this evidence require reversal of this case.
Appellant first argues that the reliability of forensic hair comparison evidence has not been adequately established. He acknowledges that hair comparison evidence is routinely used in criminal trials and this Court has previously found such testimony to be admissible. See Driskell v. State, 659 P.2d 343, 355 (Okl.Cr. 1983). However, he urges this Court to reconsider its position regarding the admissibility of hair analysis evidence, a request rejected by this Court in the past. See Crawford v. State, 840 P.2d 627, 636 (Okl.Cr. 1992). Appellant has not persuaded this Court to now hold otherwise.
Next, Appellant argues that Gilchrist improperly implied that hair comparison analysis is a more exact science than it actually is and that hair comparison is a means of positive identification. This allegation is not supported by the record. Both on direct and cross examination Gilchrist acknowledged the limited value of hair comparison analysis. During direct examination, before testifying about her conclusions drawn from the hair comparison analysis, Gilchrist explained the nature of such analysis. She testified the conclusion can be drawn from hair comparison analysis that the hairs examined are consistent with hairs of a particular individual and therefore, could have come from that person. She also stated such analysis could positively eliminate a person as being the source of a hair. However, Gilchrist noted that hair comparison analysis could not serve as a basis for positive identification of a person. This was reestablished at the close of direct examination and several times during cross-examination, where Gilchrist again confirmed that a person cannot be positively identified by microscopic hair comparison. She agreed hair comparison evidence is subjective and its value is that it can exclude and eliminate persons, not that it can identify them. Finally, Gilchrist concluded her testimony on cross-examination by agreeing that she could not say that any hair found in this case came from Appellant.
*126 Appellant directs this Court's attention to one portion of Gilchrist's testimony where she indicated that she could determine whether hairs found were associated with the events in this case. Appellant argues this conclusion was improper and served to mislead the jury. While this remark may have bordered upon impropriety, we cannot find it to have been so significant as to mislead the jury. Other statements made by Gilchrist in response to questions posed by defense counsel and the prosecutor clearly demonstrated the limited value of hair comparison evidence. This isolated remark did not constitute reversible error.
Finally, Appellant argues the State failed to establish a chain of custody adequate to show the relevancy of the hair comparison evidence. "The purpose of the chain of custody rule is to guard against substitution of or tampering with the evidence between the time it is found and the time it is analyzed." Middaugh v. State, 767 P.2d 432, 436 (Okl.Cr. 1988). While it is the State's responsibility to show the evidence offered is in substantially the same condition at the time of offering as when the crime was committed, it is not necessary that all possibility of alteration be negated. Williamson v. State, 812 P.2d 384, 397-98 (Okl.Cr. 1991), cert. denied, 503 U.S. 973, 112 S.Ct. 1592, 118 L.Ed.2d 308 (1992). If there is only speculation that tampering or alteration occurred, "it is proper to admit evidence and let what doubt there may be go to its weight rather than render the evidence completely inadmissible." Contu v. State, 533 P.2d 1000, 1003 (Okl.Cr. 1975). See also Williamson, 812 P.2d at 398.
Appellant argues the State failed to lay the requisite foundation to establish a proper chain of custody. We disagree. The witnesses whose testimony established the chain of custody ranged from those who had collected the evidence and placed it in sealed bags, to those who transported the evidence to the laboratory, to those who tested and analyzed the evidence. This testimony adequately established the evidence was in substantially the same condition at the time it was offered as it was when collected.
Appellant's contention that Gilchrist's record keeping procedures were suspect because of the inconsistencies between her preliminary hearing testimony and her original forensic report does not render this evidence inadmissible. Doubts concerning the value of such evidence affect the weight of the evidence and not its admissibility. These inconsistencies were discussed during both direct and cross-examination where Gilchrist attempted to explain why her reports and her testimony varied. Accordingly, we do not find that the trial court erred in allowing Gilchrist to testify regarding the results of her hair comparison analysis.
Appellant's 1986 trial was reversed and remanded by this Court based in part upon prosecutorial misconduct. In his sixth assignment of error, Appellant argues that because the misconduct engaged in by the prosecutors in the first trial was so deliberate and egregious, the State should have been barred from retrying him by the principles of double jeopardy. Generally, double jeopardy rules do not serve as a bar to retrial after appellate reversal. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). However, Appellant acknowledges that the United States Supreme Court has held that double jeopardy bars retrial after a declaration of mistrial due to prosecutorial misconduct only in circumstances where the prosecutor actually intended to goad defense counsel into requesting a mistrial. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). See also Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (1977). Appellant urges this Court to extend this ruling to situations where prosecutors consciously choose to engage in prejudicial misconduct regardless of motive.
A similar issue was addressed by this Court in Brewer v. State, 718 P.2d 354 (Okl. Cr.), cert. denied, 479 U.S. 871, 107 S.Ct. 245, 93 L.Ed.2d 169 (1986). In Brewer, the defendant's first conviction was reversed primarily because of prosecutorial misconduct. After he was convicted in the second trial, the defendant asked this Court to apply the mistrial rule of Kennedy and Divans to his case and hold that retrial was barred by *127 double jeopardy. Without deciding whether the mistrial rule should ever be applied to cases which had been reversed on appeal, this Court held that relief was not warranted because the defendant had not shown that the prosecutor had committed the error in the first trial for the purpose of forcing the defendant to move for a mistrial. Brewer, 718 P.2d at 359. Accordingly, this Court has adhered to the standard set forth in Kennedy and Divans and we are not persuaded to deviate from that precedent at this time. Because Appellant in the present case has not demonstrated that the misconduct which contributed to the reversal of his first conviction was engaged in by the prosecutor for the purpose of goading defense counsel into moving for a mistrial, his second trial was not barred by the principles of double jeopardy.
Appellant argues in his seventh proposition that he was prejudiced by the introduction of other crimes evidence at trial. He specifically complains that the State should not have been allowed to present evidence indicating that Willis had been raped and sodomized before she was killed.[12]
Appellant first argues this evidence was inadmissible because there was absolutely no proof these crimes occurred. Both the medical examiner and the forensic chemist testified at trial that they detected the presence of spermatozoa on vaginal swabs taken from Willis. There was conflicting evidence concerning the presence of spermatozoa on rectal swabs; the medical examiner did not detect spermatozoa on the rectal swabs but the forensic chemist did. Both experts agreed the sperm found on the rectal swab may have occurred as the result of drainage from the vaginal cavity. Further, the medical examiner detected no signs of trauma to either the victim's vagina or anus. Accordingly, while there was evidence of sexual activity, this was not conclusive evidence of rape or sodomy. However, the evidence of sexual activity taken together with the condition of the victim upon discovery, that she was naked on the floor with sheets and rope around her neck, and evidence that a drop of seminal fluid was found on the floor next to her body, provides a basis from which sexual assault could be reasonably inferred. Accordingly, this argument fails.
Appellant also contends that even if the evidence of sexual activity was a part of the res gestae of the homicide, such evidence should still have been excluded because its probative value was substantially outweighed by its prejudicial effect.[13] The party objecting to the admission of relevant evidence based upon section 2403 has the burden of proof. Bear v. State, 762 P.2d 950, 956 (Okl. Cr. 1988). The evidence of sexual activity in the present case was admissible to demonstrate the circumstances surrounding the homicide which Appellant was accused of committing. There was evidence from which the jury could reasonably infer that a sexual assault had occurred. However, defense counsel was effective in eliciting from the experts testimony which indicated that the evidence of sexual activity did not absolutely support the conclusion that the victim had been sexually assaulted. Appellant has not proven that the evidence of sexual activity had unduly prejudicial effect. This evidence was not inappropriately admitted.
It is Appellant's argument in his eighth assignment of error that the State's failure to sufficiently prove the unavailability of witness Jay Estep before introducing his testimony from the first trial violated Appellant's Sixth and Fourteenth Amendment rights to confrontation of the witnesses against him. During Appellant's first trial, the defense called Jay Estep, to corroborate Appellant's alibi that he had attended a party at the band studio with Terry Calvary the night Willis was killed. Estep, however, did not prove to be of much assistance to Appellant because he was confused as to the date of the band party. Estep was not sure whether this particular band party had occurred on December 6 or December 8, 1982. *128 At his second trial, Appellant again presented as alibi, evidence that he and Terrie Calvary had been at the studio at a band party on December 9, 1982, the night Willis was killed. The State sought to rebut Appellant's alibi evidence with Estep's testimony indicating that the band party to which Appellant was referring, may have occurred on a night other than December 9, 1982. However, because the State claimed to have been unable to find Estep, it argued during an in camera hearing that he was unavailable. Accordingly, the trial court, over defense counsel's objection, allowed the State to introduce Estep's testimony through transcripts from Appellant's first trial.
This Court has long held that the State must satisfy two threshold requirements before prior testimony may be admitted into evidence. The prosecution must prove, "(1) [t]he actual unavailability of the witness despite good faith and due diligent efforts to secure the presence of the witness at trial; and, (2) the transcript of the witness' testimony bears a sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth of the prior testimony." Smith v. State, 546 P.2d 267, 271 (Okl. Cr. 1976).[14] Subject to these limitations, the admissibility of prior transcripts is within the discretion of the trial court, whose ruling will not be disturbed on appeal absent a showing of abuse of discretion. Dilworth, 611 P.2d at 259. It is Appellant's position that the trial court abused its discretion in allowing Estep's prior testimony to be admitted into evidence because the State did not make good faith, diligent efforts to secure Estep as a witness in this trial. Rather, Appellant contends, the State showed only that it had made minimal, last minute efforts to find Estep.
At the in camera hearing, Eddie Thomason, an investigator with the Oklahoma County District Attorney's Office testified he received the subpoena for Jay Estep on September 13, 1989, five days prior to trial. He went to the address listed on the subpoena and found Estep was no longer living there. Thomason returned to his office and started checking utilities and various other sources in an attempt to locate Estep. He found no utilities listed in Estep's name. He also found the utilities in Estep's last known residence had been issued in the name of Susan Chalupa. Records indicated that she moved in 1986 and there was no record of her having transferred utility service to another location in the area. Thomason ran a Department of Public Safety check on Estep and got a date of birth and driver's license number. He testified that between August 1978 and May 1986, Estep had a lengthy and consistent driving record. The driving record reflected no further activity after May 29, 1986. Based upon this information and the fact that Estep's Social Security number had been issued out of state, Thomason determined it likely that Estep had moved from the area. Accordingly, he marked on the subpoena that he was unable to locate Estep.
The evidence that Thomason did not receive the subpoena and start searching for Estep until five days before trial lends credence to Appellant's assertion that the attempt to find Estep was initiated at the eleventh hour. However, this alone does not foreclose a finding that the State's attempt to secure Estep was diligent and conducted in good faith. The leads which were followed by Thomason did support his conclusion that Estep was no longer in the area. There is no indication that had Thomason been able to start his search earlier, he would have arrived at different results. Accordingly, this Court does not find the trial court abused its discretion in allowing Estep's testimony from the prior proceeding to be read into evidence.
Even if this Court were to find that the trial court abused its discretion in allowing this testimony into evidence reversal would not be warranted. This Court has held that where the testimony improperly admitted was cumulative in nature, reversal is not required. Castro v. State, 745 P.2d 394, 401 (Okl.Cr. 1987), cert. denied, 485 U.S. *129 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988). Appellant argues Estep's confusion about the date of the band party was material to the State's case and not cumulative. However, the record reflects otherwise. While Appellant and Terrie Calvary testified the band party at issue occurred on the night Willis was killed, Estep was not the only person whose testimony did not corroborate this. Shawn McCarthy testified that Appellant was not at the studio at band practice on the night Willis was killed. Accordingly, it may be found that Estep's testimony was cumulative to McCarthy's and therefore, even if improperly admitted, not grounds for reversal.
Appellant argues in his ninth proposition that the trial court erred in allowing three gruesome photographs of the victim to be admitted into evidence. Photographs are admissible when their content is relevant and their probative value substantially outweighs their prejudicial effect. Williamson v. State, 812 P.2d at 400 (Okl.Cr. 1991). "The probative value of photographs of murder victims can be manifested numerous ways, including showing the nature, extent, and location of wounds, depicting the crime scene, and corroborating the medical examiner's testimony." Id. The photographs of the victim admitted into evidence in the present case were not unduly gruesome. Further, they were relevant as they corroborated the testimony of the medical examiner as to the knife wounds suffered by the victim. The admission into evidence of these photographs was not error.
SECOND STAGE ISSUES
Appellant's twelfth proposition concerns the trial court's refusal to instruct the jury on Appellant's requested alternative sentencing option of life imprisonment without parole. In 1987, the Oklahoma Legislature amended 21 O.S.Supp. 1987, §§ 701.9 and 701.10 to include life without parole as one of three possible punishments for a conviction for First Degree Murder. The life without parole provision became effective on November 1, 1987. The trial which is the subject of this appeal was held in September and October of 1989. Defense counsel requested the jury be instructed that they could sentence Appellant to life without parole, but this request was denied by the trial court.[15] This ruling was in error.
This Court has recently held that to bar a defendant from the benefit of having a jury consider the option of life without parole when this sentencing provision was in effect at the time of the trial and conviction violates due process and equal protection. Salazar v. State, 852 P.2d 729 (Okl.Cr. 1993), reh'g denied, 859 P.2d 517 (Okl.Cr. 1993). Accordingly, this omission requires the case be remanded to the district court for resentencing as the sentencing stage of trial was fundamentally unfair. Id. See also Hain v. State, 852 P.2d 744 (Okl.Cr. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1402, 128 L.Ed.2d 75 (1994): Humphrey v. State, 864 P.2d 343 (Okl.Cr. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1663, 128 L.Ed.2d 379 (1994). Because this remand for resentencing renders moot all other challenges to the second stage proceedings, other propositions raising errors alleged to have occurred in the sentencing stage of trial need not be discussed.
In summary, we AFFIRM Appellant's conviction for First Degree Murder and REVERSE the sentence of death, REMANDING the case to the District Court for RESENTENCING.
JOHNSON, P.J., CHAPEL, V.P.J., and LANE, J., concur.
LUMPKIN, J., concur in part/dissent in part.
LUMPKIN, Judge, concurring in part/dissenting in part.
While I concur in the affirmance of the conviction for Murder, First Degree, I differ with the majority's analysis of Appellant's proposition regarding the sufficiency of the evidence presented against him and disagree with the assumption expressed in Footnote 5 regarding a pretextual arrest, together with the additional unsupported assumption the arrest was illegal. An officer cannot disregard *130 warrants for the arrest of an individual just because that individual is a suspect in another crime. I must also dissent to the Court's decision to reverse and remand for resentencing.
The Court examines Appellant's insufficiency of the evidence claims using the standard of review requiring the evidence to exclude every reasonable hypothesis except that of guilt. The Court mistakenly states that the evidence presented at trial was entirely circumstantial. This is not the case. Appellant's own testimony at trial, together with his statement to Cindy Parks and others, constituted direct evidence, allowing use of the Spuehler v. State, 709 P.2d 202 (Okl. Cr. 1985) standard of review. Mayes v. State, 887 P.2d 1288, 1302 (Okl.Cr. 1994). As stated in my special concurrence to White v. State, 900 P.2d 982, 995 (Okl.Cr. 1995), I urge the Court to adopt a "unified Spuehler-type" approach recognizing the equivalent reliability of direct and circumstantial evidence when analyzing sufficiency claims.
I dissent to the Court's decision to reverse Appellant's death sentence for resentencing because of the trial court's failure to give an instruction on the punishment option of life without possibility of parole. I reiterate the analysis and conclusions in my separate opinions in Hain v. State, 852 P.2d 744, 753 (Okl.Cr. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1402, 128 L.Ed.2d 75 (Okl.Cr. 1994) and Salazar v. State, 852 P.2d 729, 741 (Okl. Cr. 1993) that the proper criminal penalty is the penalty in effect at the time the defendant commits the crime. Consequently, Appellant was not entitled to an instruction on life without possibility of parole.
NOTES
[1] Trial Transcript Vol. III, pp. 51-52.
[2] The prosecution basically conceded in closing argument the circumstantial nature of the evidence presented during trial.
[3] In recent cases where defendants claimed to have been induced into making a statement by promises of immunity, the voluntariness of the statements was determined by a review of the totality of the circumstances. See U.S. v. Matthews, 942 F.2d 779, 782 (10th Cir.1991); United States v. Garot, 801 F.2d 1241, 1244-45 (10th Cir.1986).
[4] The record indicates that Appellant was additionally booked on charges stemming from outstanding traffic warrants. When Lieutenant Sellers went to see Appellant at his workplace in March of 1985 about this homicide, he checked to see if Appellant had any outstanding warrants so that Appellant could be taken into custody. Under the circumstances of this detention and arrest, it seems clear that Appellant's arrest on the traffic charges was pretextual; it was a reason to hold him for questioning concerning the homicide, not simply as a matter of procedure to investigate the traffic violations. See Lyons v. State, 787 P.2d 460 (Okl.Cr. 1989). Accordingly, this discussion will be limited to the validity of Appellant's arrest for being a material witness.
[5] See 22 O.S. 1981, § 196.
[6] 22 O.S. 1981, § 274.
[7] Because this case must be remanded to the district court for resentencing due to error alleged in Proposition XII, no instances of prosecutorial misconduct alleged to have occurred in the second stage of trial have been discussed.
[8] OUJI-CR 910.
[9] Court's Exhibit 3-A.
[10] Trial Transcript Vol. IX, pp. 9-10.
[11] Trial Transcript Vol. IX, p. 14.
[12] Prior to the admission of this evidence, the State filed a Notice of Intent to Use Other Crimes, which put the defense on notice that such evidence would be introduced. Burks v. State, 594 P.2d 771 (Okl.Cr. 1979), overruled on other grounds, Jones v. State, 772 P.2d 922 (Okl. Cr. 1989).
[13] See 12 O.S. 1991, § 2403.
[14] See also Dilworth v. State, 611 P.2d 256 (Okl. Cr. 1980); Davis v. State, 753 P.2d 388 (Okl.Cr. 1988). Further, the rule adhered to in these cases conforms with the United States Supreme Court's holding in Ohio v. Roberts, 448 U.S. 56, 74-75, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 (1980).
[15] Trial Transcript Vol. XI, p. 224-26.
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196 F.2d 165
COLOSACCO,v.UNITED STATES.
No. 4441.
United States Court of Appeals Tenth Circuit.
April 17, 1952.Rehearing Denied May 5, 1952.
Charles A. Murdock, Denver, Colo. (John J. Morrissey, Denver, Colo., on the brief), for appellant.
Joseph N. Lilly, Asst. U.S. Atty., Denver, Colo. (Charles S. Vigil, U.S. Atty., Denver, Colo., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
PHILLIPS, Chief Judge.
1
Colosacco and one Dolan were charged by an indictment containing three counts. The first count is not here material. The second count charged that Dolan, on July 10, 1951, did falsely assume and pretend to John Priola to be an officer and employee acting under the authority of the United States, to-wit, an agent of the Internal Revenue Bureau, United States Department of the Treasury, and in such pretended character did demand of the said John Priola the sum of $2500, and that on the same day Colosacco did aid, abet, counsel, command, induce and procure Dolan to commit such offenses. The third count charged that Dolan and Colosacco conspired to commit the substantive offense charged in Count Two.
2
Dolan pleaded guilty to Count Two of the indictment.
3
Colosacco was tried, convicted and sentenced on Counts Two and Three and has appealed.
4
On July 10, 1951, Dolan and another person, whose identity was not established, went to the farm of Priola. Dolan, addressing Priola said, 'Are you John Priola?' Priola answered in the affirmative. Dolan took a badge out of his pocket and said, 'We are from the Internal Revenue Department,' and put the badge back in his pocket. The unidentified person took a card, which had a photograph on it, out of his pocket and quickly put it back in his pocket. Dolan said, 'We are here to look over your income tax records and returns.' They then proceeded, with Priola, to his office in the basement of his home. Priola took his state and federal income tax records out of a drawer in his desk. Dolan stated that they were only interested in the federal income tax returns. Dolan and the unidentified person examined certain of the records. Dolan then stated he wanted to talk to Priola privately and took him into another room. Dolan said, 'I hear you are in a pretty bad jam,' and further stated they could help him out and asked him how much money he had in the house. Priola replied that he did all his business through the Denver National Bank. Dolan replied that if Priola did not have any money in the house he would go with him to the bank and ascertain how much money Priola had in the bank. Dolan and Priola then proceeded to the Denver National Bank in Priola's car and the unidentified person left in the Chrysler automobile, which he and Dolan had driven to Priola's farm. Before they arrived at the bank, Dolan suggested that Priola indicate how much money he would be willing to pay. Priola replied, 'Five or six hundred dollars.' Dolan then replied that he had a friend who was helping him who would not consider that amount and that it would take at least $2500, and further stated that unless they could get $2500 they might as well quit. When the bank opened, Dolan went into the bank with Priola and sat down on a bench and watched him. Priola went to the cashier's window and pretended to inquire as to the amount of his bank balance. Dolan and Priola then went out into the street and Priola told Dolan that he could not raise that amount of money. Dolan told Priola that he would see him again in a couple of days.
5
On July 11, 1951, Colosacco went to the farm of Priola. Colosacco told Priola he had been in jail over night and had just been released. Priola asked for what reason and Colosacco said, 'We are in a jam with this income tax business,' and inquired if a couple of fellows had been to see Priola the previous day. Priola answered in the affirmative and asked Colosacco to describe the two men and inquired about the kind of automobile they were driving. Colosacco described the two men and said they were driving a Chrysler automobile. Colosacco said the two men had come to his place with a search warrant, arrested him, and had taken him first to the Post Office Building and then to the city jail. Colosacco then stated that the man he had described as bareheaded and tall and dressed in a light suit, was Stearns, and that he was a pretty good sort of a guy and if Priola would cooperate with them they would get Priola out of the income tax trouble. The person Colasacco represented to be Stearns was, in fact, Dolan. Colosacco then inquired what Dolan and the other person said when they left. Priola told him that Dolan had said he would see him in a couple of days. Colosacco then said, 'They will be back.'
6
Priola was well acquainted with Colosacco and had some business relations with Colosacco, which involved Priola's income.
7
The representation of Colosacco to Priola that he had been arrested and in jail was not true. Dolan was not an Internal Revenue agent. Although Colosacco had been well acquainted with Dolan for a number of years, in his conversation with Priola he used the fictitious name 'Stearns' in referring to Dolan.
8
At the trial, proper proof of a plea of guilty of Dolan to Count Two was introduced in evidence.
9
18 U.S.C.A. § 2 abolishes the subtle distinctions, recognized with respect to felonies at common law, between principals and accessories before and at the fact, and makes them all principals, whether the offense is a felony or misdemeanor.1
10
While conviction of the principal is not a prerequisite to the conviction of the aider and abettor, the proof must establish beyond a reasonable doubt that the offense was committed by someone and that the person charged as an aider and abettor aided and abetted in its commission.2
11
Conviction of the principal is prima facie evidence of the principal's guilt on the trial of the aider and abettor.3 Other evidence which would have been admissible against the principal may be admitted in evidence to prove the guilt of the principal on the trial of the aider and abettor.4
12
We conclude that the court did not err in admitting proof of the clerk's minutes showing that Dolan entered a plea of guilty to Count Two of the indictment for the purpose of establishing Dolan's guilt. Moreover, the guilt of Dolan was fully established by uncontroverted evidence.
13
It is well settled that conspiracy to commit a substantive offense and the substantive offense are separate and distinct crimes.5
14
An exception to the general rule is recognized as to crimes that cannot be committed except by the concerted action of at least two persons and of such a nature that the immediate effect of their consummation reaches only the participants therein, so that the conspiracy to commit them is in such close connection with the objective offense as to be inseparable from it. Examples of this class of crimes are adultery, bigamy, incest and dueling.6 But the substantive offense which was the object of the conspiracy here charged does not fall within such class of crimes. Clearly, Dolan could have committed the substantive offense by himself.
15
Counts Two and Three charged separate and distinct offenses and separate sentences were properly imposed on both counts.
16
The trial court denied a motion to transfer the case to another district on the ground that prejudice resulting from certain newspaper articles would prevent Colosacco from obtaining a fair and impartial trial in the District of Colorado. The trial court denied the motion, with leave to renew it, if on the voir dire examination of the jurors it appeared that a fair and impartial jury could not be obtained. The record wholly fails to show that a fair and impartial jury was not obtained and that Colosacco was not tried and convicted by a jury that was free from prejudice and that was fair and impartial.
17
The elements of the conspiracy here charged were an agreement to commit an offense against the United States and an overt act by one or more of the conspirators to effect the object of the conspiracy.7
18
It is true that there was no proof of any formal agreement between Colosacco and Dolan, but that was not necessary. Conspirators do not put their agreements into writing, nor do they make public their plans. It is sufficient to show that the minds of the parties met in an understanding way so as to bring about an intelligent and deliberate agreement to do the act or acts charged, although such an agreement is not manifested by any formal words. A mutual implied understanding is sufficient so far as the combination or confederacy is concerned, and the agreement is generally a matter of inference, deduced from the acts of the persons accused, which are done in pursuance of an apparent criminal purpose. It is rarely susceptible of proof by direct evidence, and may be deduced from the conduct of the parties and the attending circumstances.8
19
The facts proved, together with the inferences to be drawn therefrom, warranted the jury in finding that Colosacco and Dolan entered into an unlawful conspiracy to commit the offense charged in Count Two, and that thereafter Dolan committed such offense and that Colosacco counseled, induced and procured its commission by Dolan.
20
Affirmed.
1
VonPatzoll v. United States, 10 Cir., 163 F.2d 216, 218
2
VonPatzoll v. United States, 10 Cir., 163 F.2d 216, 218-219; State v. Cushing, 61 Nev. 132, 120 P.2d 208, 214, 215
3
United States v. Hartwell, 26 Fed.Cas. 196, No. 15,318; Powers v. State, 174 Ga. 202, 162 S.E. 275, 276; Manry v. State, 77 Ga.App. 43, 47 S.E.2d 817, 821; Porter v. State, 200 Ga. 246, 36 S.E.2d 794, 799; Jones v. State, 108 Ark. 447, 158 S.W. 132, 133; State v. Mosley, 31 Kan. 355, 2 P. 782, 783; Levy v. People, 80 N.Y. 327, 331
4
Powers v. State, 174 Ga. 202, 162 S.E. 275, 276; State v. Anderson, 165 Wash. 437, 5 P.2d 994, 995; State v. Wilson, 51 Idaho 659, 9 P.2d 497, 500; Mulligan v. People, 68 Colo. 17, 189 P. 5, 9; Jones v. State, 108 Ark. 447, 158 S.W. 132, 133; State v. Mosley, 31 Kan. 355, 2 P. 782, 783
5
Robinson v. United States, 10 Cir., 143 F.2d 276, 277; Curtis v. United States, 10 Cir., 67 F.2d 943, 947
6
Curtis v. United States, 67 F.2d 943, 947
7
United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 85 L.Ed. 128; Hudspeth v. McDonald, 10 Cir., 120 F.2d 962, 965, 966
8
Telman v. United States, 10 Cir., 67 F.2d 716, 717
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02-11-032-CR
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00032-CR
Dominque Nashaun
Parker
APPELLANT
V.
The State of Texas
STATE
----------
FROM Criminal
District Court No. 3 OF Tarrant
COUNTY
----------
MEMORANDUM
OPINION[1]
----------
Appellant
Dominque Nashaun Parker appeals his conviction and sentence of two years’
confinement for possessing four or more but less than four hundred grams of methylenedioxy
methamphetamine (ecstasy).[2]
He contends in two points that reversible error occurred because the State
discussed his plea negotiations and criminal history during its closing
argument. We affirm.
Background
Facts
A
grand jury indicted appellant for possessing four or more but less than four
hundred grams of ecstasy. Appellant retained counsel, entered an open guilty
plea, waived constitutional and statutory rights, and judicially confessed that
he committed each act alleged in the indictment.
At
a hearing following appellant’s plea, the trial court admitted, without
objection, a presentence investigation report, and the court also heard brief testimony
from appellant, who said that he had intended to sell the ecstasy, and his mother,
who said that appellant had broken his relationships with people who had negatively
influenced him.
Both
of appellant’s points arise from comments that the prosecutor made during
closing argument. The prosecutor said,
Your Honor, the
State’s offer prior to the open plea had been 10 years TDC.[[3]]
We based on that his -- the escalating nature of his criminal history. He’s
always been able to receive a break from the State one way or another over as
many cases he’s picked up. He’s continued to demonstrate criminal behavior,
now moving into actual narcotics transactions. And, although the State waived
the intent to deliver language in good faith as part of an attempt to get an
open plea, his own admissions to the PSI officer indicate that I probably
should have not done that, since he clearly had the intent to sell that dope in
exchange for money, but that being said, Your Honor, the State’s last offer was
10 years TDC. I defer the Court for disposition in this case.
After
listening to the prosecutor’s argument, the trial court found appellant guilty
and sentenced him to two years’ confinement. Appellant brought this appeal.
The
Forfeiture of Appellant’s Points
Appellant
offered no objection to the prosecutor’s statements at the time they were
given. Thus, in his first point, appellant contends that plain error, to which
an objection would not be required, occurred when the prosecutor notified the
trial court about appellant’s plea negotiation. He relies in part on rule of
evidence 410, which relates to the general inadmissibility of plea discussions.
See Tex. R. Evid. 410(4) (excluding from evidence any statement made in
the course of plea discussions that does “not result in a plea of guilty or a
plea of nolo contendere or that results in a plea, later withdrawn, of
guilty or nolo contendere). In his second point, appellant argues that
plain error occurred when the prosecutor referred to “extraneous crimes that
[appellant] had not committed and that he could not be held criminally
responsible for.” For the reasons stated below, we disagree with appellant’s
characterization of his complaints as plain error, and we therefore conclude
that appellant forfeited the complaints by failing to object to the
prosecutor’s comments.
In
most circumstances, to preserve a complaint for our review, a party must have
presented to the trial court a timely request, objection, or motion that states
the specific grounds for the desired ruling if they are not apparent from the
context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton
v. State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). Further, the
trial court must have ruled on the request, objection, or motion, either
expressly or implicitly, or the complaining party must have objected to the
trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State,
138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A reviewing court should not
address the merits of an issue that has not been preserved for appeal. Ford
v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). Preservation of
error is a systemic requirement. Archie v. State, 221 S.W.3d 695, 698
(Tex. Crim. App. 2007). Generally, an appellant may not complain about his
sentence for the first time on appeal. See Kim v. State, 283
S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d).
Rule
of appellate procedure 33.1, however, “does not apply to rights which are
waivable only or to absolute systemic requirements, the violation of which may
still be raised for the first time on appeal.” State v. Dunbar, 297
S.W.3d 777, 780 (Tex. Crim. App. 2009). Systemic requirements, also known as
absolute requirements or prohibitions, are laws that a trial court has a duty
to follow even if the parties wish otherwise. Mendez, 138 S.W.3d at
340; see Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009).
Systemic requirements include jurisdiction of the person or subject matter, a
constitutional requirement that a district court conduct its proceedings at the
county seat, and a constitutional prohibition against ex post facto laws. Saldano
v. State, 70 S.W.3d 873, 888–89 (Tex. Crim. App. 2002); Hall v. State,
303 S.W.3d 336, 341 (Tex. App.—Amarillo 2009, pet. ref’d). “Waivable only”
rights include the right to the assistance of counsel and the right to trial by
jury. Saldano, 70 S.W.3d at 888.
Appellant
does not direct us to any authority, and we find none, characterizing the
State’s discussion of plea negotiations or of the defendant’s criminal history
during closing argument as systemic, waivable-only, or otherwise “fundamental”
or “plain” error.[4] On the contrary, courts have repeatedly
emphasized that a defendant must preserve a complaint that the State’s closing
argument was improper. See Threadgill v. State, 146 S.W.3d 654,
670 (Tex. Crim. App. 2004) (“Because appellant failed to object to the jury
argument, he has forfeited his right to raise the issue on appeal.”); Mathis
v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002); Cockrell v.
State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (“Therefore, we hold a
defendant’s failure to object to a jury argument or a defendant’s failure to
pursue to an adverse ruling his objection to a jury argument forfeits his right
to complain about the argument on appeal.”), cert. denied, 520 U.S. 1173
(1997); Marchbanks v. State, 341 S.W.3d 559, 565 (Tex. App.—Fort Worth
2011, no pet.). Courts have applied this rule to bench trials. See, e.g.,
Tucker v. State, 07-10-00421-CR, 2011 WL 3652762, at *2 (Tex. App.—Amarillo
Aug. 19, 2011, pet. ref’d) (mem. op., not designated for publication).
Moreover,
in Whitaker v. State, the court of criminal appeals required
preservation of a contention that witnesses improperly discussed a plea
negotiation during the guilt and punishment phases of trial; the court noted,
“[T]he record clearly reflects that appellant made no objection to the State’s
references to the . . . plea negotiations. Appellant, therefore, procedurally
defaulted any error in these references.” 286 S.W.3d 355, 362 (Tex. Crim. App.
2009); see also Capps v. State, 244 S.W.3d 520, 530 (Tex. App.—Fort
Worth 2007, pet. ref’d) (mem. op.) (holding that a defendant forfeited his
complaint that evidence contained statements about plea bargaining by not
raising the complaint at trial). Likewise, appellate courts
have required preservation of arguments concerning a discussion of a
defendant’s criminal history during the punishment phase of a trial. See, e.g., Miles
v. State, 312 S.W.3d 909, 910 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)
(“We conclude appellant waived the [improper argument] complaint by failing to
make a specific objection to the argument.”).
The
facts of Miles are similar to those in this case. Miles had pled guilty
to driving while intoxicated. Id. During the punishment phase, the
State told the jury, “Look at that [criminal history]. Chance after chance
after chance. And let me tell you, when he gets out, based on this, he’s going
to be right back in here somewhere.” Id. Miles objected, stating,
“That’s improper argument.” Id. But the court overruled Miles’s
objection, and Miles made no further comments regarding the State’s argument. Id.
On appeal, the appellate court concluded that Miles’s objection was
“insufficient to preserve error” because it was overly general. Id. at
911; see also Kelley v. State, No. 01-96-01078-CR, 1998 WL 43311,
at *2 (Tex. App.—Houston [1st Dist.] Feb. 5, 1998, no pet.) (not designated for
publication) (holding that the defendant failed to preserve a complaint that
the State improperly urged the jury to levy a harsher punishment in light of the
defendant’s criminal history because although the defendant objected to the
argument at trial, he failed to request a curative instruction or mistrial). Appellant
relies in part on Abdygapparova v. State, but in that case, the
defendant objected to the discussion of plea negotiations, thus preserving the
issue for appellate review. 243 S.W.3d 191, 204 (Tex. App.—San Antonio 2007,
pet. ref’d).
Based
on this authority, we conclude that appellant’s complaints about the
prosecutor’s closing argument do not fall into the categories of error to which
no objection is required, and we therefore hold that by failing to object, appellant
forfeited the complaints. We overrule appellant’s points.
Conclusion
Having
overruled appellant’s points, we affirm the trial court’s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL:
LIVINGSTON,
C.J.; DAUPHINOT and WALKER, JJ.
DO
NOT PUBLISH
Tex.
R. App. P. 47.2(b)
DELIVERED: December 1, 2011
[1]See Tex. R. App. P. 47.4.
[2]See
Tex. Health & Safety Code Ann. § 481.103(a)(1) (West Supp. 2011), §
481.116(a), (d) (West 2010).
[3]As
the State notes, the ten-year plea bargain offer had already been disclosed to
the trial court through written plea admonishments that were signed by
appellant and filed of record.
[4]“The
traditional term in Texas’ criminal law that corresponds to ‘plain error’ is ‘fundamental
error.’” Jimenez v. State, 32 S.W.3d 233, 238 & n.19 (Tex. Crim.
App. 2000); see also Tex. R. Evid. 103(d) (“In a criminal case, nothing
in these rules precludes taking notice of fundamental errors affecting substantial
rights although they were not brought to the attention of the court.”). The
court of criminal appeals now considers questions of fundamental error under
the categorical framework that classifies potential error into systemic rights,
waivable-only rights, or forfeitable rights. See Mendez, 138 S.W.3d at
341; Sanchez v. State, 120 S.W.3d 359, 366 (Tex. Crim. App. 2003).
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113 Cal.App.3d 523 (1980)
169 Cal. Rptr. 877
ROBERT ARCELONA et al., Petitioners,
v.
THE MUNICIPAL COURT FOR THE SAN FRANCISCO JUDICIAL DISTRICT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest.
Docket No. 48625.
Court of Appeals of California, First District, Division One.
December 18, 1980.
*526 COUNSEL
Margaret Ryan and Marilyn A. Waller for Petitioners.
No appearance for Respondent.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Gloria F. DeHart and Kristofer Jorstad, Deputy Attorneys General, for Real Party in Interest.
George P. Colbert and Patricia A. Byrne as Amici Curiae on behalf of Real Party in Interest.
*527 OPINION
RACANELLI, P.J.
This is a proceeding for writ of mandate to compel discovery of certain police records. Petitioners Robert Arcelona, Anthony D. Bishop, Robert A. Firestine, Gabriel A. Griego, Kenneth Lundgreen, Peter Plate, Paul Charles Stevens and David A. Waddle have been charged in various felony actions with acts committed on the night of May 21-22, 1979, during a civil disturbance which followed the announcement of the jury verdict in the trial of former San Francisco Supervisor Dan White for the killings of Mayor George Moscone and Supervisor Harvey Milk. On October 23, 1979, petitioner Lundgreen filed a motion seeking discovery of information contained in the police personnel files of the arresting officers, David Fontana and Charles Warren, including any citizen complaints against those officers of use of excessive force or aggressive conduct or bias against homosexuals. Soon after petitioner Lundgreen filed his motion, the remaining petitioners filed similar motions. A hearing was held before the municipal court at which the parties agreed that the court would dispose of all the motions on the basis of petitioner Lundgreen's "representative" motion.
Petitioner Lundgreen's discovery motion was accompanied by a supporting declaration of counsel stating on information and belief that petitioner Lundgreen had been arrested and criminally charged in connection with the May 21-22 riot;[1] that Lundgreen was the victim of excessive force applied by the arresting officers; that the riot was an intense confrontation between the police department and the homosexual community; that the arresting officers misperceived Lundgreen as a member of the homosexual community; that the arresting officers were biased against the homosexual community; that Lundgreen's arrest took place in the context of a series of unprovoked attacks against members of the homosexual community by police officers on the night of the riot; that it was likely that citizen complaints charging bias against homosexuals and use of excessive force had previously been filed against the arresting officers. Counsel further declared that petitioner Lundgreen's defenses to the criminal charges included 1) self-defense based on the officers' aggressive conduct and 2) false arrest based on the officers' bias against homosexuals.
*528 The information sought to be discovered included citizens' complaints of excessive force, internal investigatory information and the results of the officers' psychological stress tests.[2] Respondent court denied the discovery motions on the grounds of an insufficient factual showing and concluded that a more detailed statement of facts was required relating to the circumstances of the arrest, the alleged assaults by the arresting officers and of their antihomosexual remarks. Following petitioners' unsuccessful application for relief in the superior court, these proceedings were initiated resulting in the issuance of an alternative writ. (See Morse v. Municipal Court (1974) 13 Cal.3d 149, 155 [118 Cal. Rptr. 14, 529 P.2d 46]; Brown v. Superior Court (1971) 5 Cal.3d 509, 515 [96 Cal. Rptr. 584, 487 P.2d 1224].) Accordingly, we turn to the merits.
I
The sanction for criminal discovery concerning the past conduct of an arresting officer finds its genesis in Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal. Rptr. 897, 522 P.2d 305], where the court noted that, unlike the statutory development in the civil area, discovery in criminal proceedings "is a judicially created doctrine evolving in the absence of guiding legislation.... Allowing an accused the right to discover is based on the fundamental proposition that he is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information." (Id., at p. 535.) (1) Thus, in contrast to the rules of civil discovery which require a showing of good cause based upon specific facts justifying discovery (Code Civ. Proc., §§ 1985, 2036), "an accused in a criminal prosecution may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial. [Citations.] The requisite showing may be satisfied by general allegations which establish some cause for discovery other than `a mere desire for the benefit of all information *529 which has been obtained by the People in their investigation of the crime.'" (Pitchess v. Superior Court, supra, at pp. 536-537.)
The Pitchess court held that a defendant who claims self-defense to a charge of battery upon a police officer is entitled to discover materials in possession of the police department concerning any propensity of the officer to commit acts of violence. The defendant in Pitchess was found to have demonstrated good cause for discovery where the information sought was 1) relevant to his defense of self-defense (see Evid. Code, § 1103 regarding admissibility of prior acts), 2) necessary in that the defendant could not readily obtain the information through his own efforts, and 3) described with adequate specificity to preclude the possibility that the defendant was engaging in a "fishing expedition." (Pitchess v. Superior Court, supra, at pp. 537-538.)
As noted, the standards of criminal discovery enunciated in Pitchess evolved "in the absence of legislation." (Pitchess v. Superior Court, supra, at pp. 535-536; see also Hill v. Superior Court (1974) 10 Cal.3d 812, 816 [112 Cal. Rptr. 257, 518 P.2d 1353, 95 A.L.R.3d 820].) However, in 1978 the Legislature ended its silence in this area of criminal discovery by enacting legislation providing that "peace officer personnel records and records [of citizens' complaints] ..., or information obtained from such records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Section 1043 of the Evidence Code...." (Pen. Code, § 832.7.) The companion enactment requires a written motion supported by affidavits showing "good cause for the discovery or disclosure sought, setting forth the materiality thereof ... and stating upon reasonable belief that such governmental agency ... has such records or information...." (Evid. Code, § 1043, subd. (b)(3).) Access to such information is expressly assured provided it is "relevant to the ... pending litigation." (Evid. Code, § 1045, subd. (a).) But in determining relevancy of the requested information, the court must conduct an in camera examination and shall exclude from disclosure, inter alia, "[i]n any criminal proceeding the conclusions of any officer investigating a [citizen's] complaint...." (Evid. Code, § 1045, subd. (b)(2).) The record manifests a failure to comply with the prescribed statutory procedure.
II
In determining whether "good cause" is shown within the meaning of Evidence Code section 1043, we are guided by the definitive interpretations *530 provided by Pitchess and its progeny since we may presume that the Legislature used that term in the precise sense which had been already placed upon it by the courts. (People v. Curtis (1969) 70 Cal.2d 347, 355 [74 Cal. Rptr. 713, 450 P.2d 33].)
(2) There is no doubt that petitioners' requests for records of citizens' complaints and the names and addresses of the complainants and witnesses will facilitate the ascertainment of facts concerning prior conduct of the arresting officers. Petitioners would have no feasible way of ascertaining whether any complaints had been made against the officers except by obtaining such information from the police department. We therefore conclude that petitioners demonstrated good cause for discovery of the requested information relating to citizens' complaints and witnesses (see fn. 2, items 1, 2, 4, 5, and 6). (Cadena v. Superior Court (1978) 79 Cal. App.3d 212, 220 [146 Cal. Rptr. 390]; Kelvin L. v. Superior Court (1976) 62 Cal. App.3d 823, 828 [133 Cal. Rptr. 325]; Caldwell v. Municipal Court (1976) 58 Cal. App.3d 377, 380 [129 Cal. Rptr. 834]; Hinojosa v. Superior Court (1976) 55 Cal. App.3d 692, 697 [127 Cal. Rptr. 664]; In re Valerie E. (1975) 50 Cal. App.3d 213, 219 [123 Cal. Rptr. 242, 86 A.L.R.3d 1163].) Contrary to respondent court's ruling, counsel's supporting declaration outlining the events of May 21-22 provided adequate factual details demonstrating the manner in which the requested records pertained to his client's possible defenses. Thus, the declaration provided an adequate factual foundation establishing a plausible justification for discovery. (Cf. Tyler v. Superior Court (1980) 102 Cal. App.3d 82, 88 [162 Cal. Rptr. 82].)
(3) However, with respect to information regarding civil lawsuits by citizens who may not have lodged an administrative complaint, we conclude petitioners have failed to demonstrate good cause since there is no showing they cannot readily obtain the information independently (e.g., a search of the defendant-index for the civil register of the San Francisco County Superior Court). There is no need to burden the prosecution or law enforcement agencies to provide information which is readily accessible to petitioners from public records. (Cadena v. Superior Court, supra, 79 Cal. App.3d at pp. 222-223.)
The scope of disclosure of verbatim reports of internal investigations (items 3, 7, 8, 9 and 10) once generally permitted under established Pitchess principles (see, e.g., Cadena v. Superior Court, supra, 79 Cal. App.3d 212, 220-221; Caldwell v. Municipal Court, supra, 58 Cal. App.3d 377; Hinojosa v. Superior Court, supra, 55 Cal. App.3d 692, *531 697), is now circumscribed under the statutory scheme. While subdivision (a) of Evidence Code section 1045 implicitly recognizes the continuing vitality of judicially developed rules of criminal discovery (cf., People v. Municipal Court (Hayden) (1980) 102 Cal. App.3d 181, 185 [162 Cal. Rptr. 347] [affidavit on information and belief held sufficient]), subdivision (b)(2) represents a statutory modification of case law principles in excluding any conclusions resulting from internal investigations of citizens' complaints as being irrelevant. Accordingly, petitioners' request was overbroad in this regard and properly denied.
(4) Finally, we likewise conclude that information pertaining to psychological test results and performance evaluations (items 12-15) was not properly discoverable. At the outset we recognize that unlike Lemelle v. Superior Court (1978) 77 Cal. App.3d 148 [143 Cal. Rptr. 450] [denial of a similar request upheld as being overbroad], the request was limited to the character traits in issue and thus not objectionable as a "blanket request." Nevertheless, for the reasons hereafter discussed, we conclude the motion was properly denied as to such items.
Evidence Code section 1045 declares as irrelevant and nondiscoverable "[f]acts ... so remote as to make disclosure of little or no practical benefit." (Evid. Code, § 1045, subd. (b)(3).) The supporting declaration merely states that the test results may form the basis of psychiatric opinion concerning the officers' character (Evid. Code, § 1103) and may show bias for purposes of impeachment (Evid. Code, § 780, subd. (f)). In our opinion, the potential probative value of the requested information for the precise purposes stated is remote and purely speculative.
Moreover, the value to the accused of the information sought must be balanced against other legitimate governmental interests. (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 538; Tyler v. Superior Court, supra, 102 Cal. App.3d at p. 87; Craig v. Municipal Court (1979) 100 Cal. App.3d 69, 76-79 [161 Cal. Rptr. 19]; Lemelle v. Superior Court, supra, 77 Cal. App.3d at pp. 164-166.) In Foster v. Superior Court (1980) 107 Cal. App.3d 218 [165 Cal. Rptr. 701], we held that the strong public policy considerations preserving confidentiality of juvenile court proceedings constitute a legitimate public interest to protect against the wholesale disclosure of the juvenile court records of complaining witnesses; only insofar as the information would aid the defendant's constitutional rights of confrontation and cross-examination *532 could the principles of confidentiality be limited. Similar reasoning is appropriate herein.
Both constitutional (Cal. Const., art. I, § 1) and statutory (Civ. Code, § 1798 et seq.) principles protect the right of privacy of individuals and limit disclosure of personal data. (Civ. Code, § 1798.3, subds. (a)(2) and (3); Pen. Code, § 832.7.) Such important individual guarantees should not be hobbled without a countervailing showing that the lack of the requested information intrudes upon defendant's constitutional right to a fair trial or otherwise impairs his ability to prepare an adequate defense. Petitioners have failed to make such conditional showing absent which the fundamental right of privacy and privilege of confidentiality must remain inviolate.
Let a peremptory writ of mandate issue directing respondent court to vacate its order denying petitioners' motions for discovery and commanding respondent court to conduct further discovery proceedings consistent with the views expressed herein.
Newsom, J., and Grodin, J., concurred.
NOTES
[1] Petitioner Lundgreen has been charged with assault with a caustic chemical (Pen. Code, § 244) and assault on a police officer (Pen. Code, § 245, subd. (b)). The record does not disclose the nature of the charges against the other petitioners.
[2] The specific information requested is summarized as follows:
Items 1 and 2: Records of citizens' complaints against the arresting officers involving excessive force or homosexual bias.
Items 4, 5 and 6: Names and addresses of the citizen complainants and of persons interviewed in connection with the complaints.
Items, 3, 7, 8, 9, and 10: Reports of the police department's internal investigation of the citizen complaints.
Item 11: Titles and action numbers of lawsuits filed by citizens against the arresting officers alleging excessive force or homosexual bias.
Items 12, 13, 14 and 15: Psychological test results and performance evaluations of the officers showing a tendency to use excessive force or a tendency toward homosexual bias.
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522 S.W.2d 679 (1975)
Winfield DUNN et al., Appellants,
v.
Rosary T. PALERMO, Appellee.
Supreme Court of Tennessee.
April 7, 1975.
R.A. Ashley, Jr., Atty. Gen., Robert H. Roberts, Advocate Gen., Nashville, for appellants.
Martha Craig Daughtrey, Jayne Ann Woods, Nashville, for appellee.
OPINION
HENRY, Justice.
This action presents the question of whether it is mandatory that a married woman assume the name of her husband.
I.
Rosary T. (Rose) Palermo is a Nashville lawyer. On 29 September 1973 she married Denty Cheatham, also a Nashville lawyer. She has continued to use and enjoy her maiden name, Palermo, professionally, socially and for all purposes.
*680 Tennessee has a state-wide, compulsory Registration Law.[1] Subsequent to her marriage, she lodged with the Registrar a change of address form listing her name as Palermo. She was advised that she was required to register anew under the surname of her husband, or have her name purged from the registration records. The Registrar was prompted by Sec. 2-206, T.C.A. which reads in pertinent part as follows:
2-206. Acts purging registration Notice. The registration of a person shall be purged:
(a) * * *
(b) Ninety (90) days after he changes his name by marriage or otherwise;
Upon her refusal to so register, her name was purged from the registration list. Thus this action, wherein appellee seeks a declaratory judgment declaring that the defendants' interpretation of Sec. 2-206, is erroneous, or in the alternative that this statute be declared violative of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and of the Nineteenth Amendment to the Constitution of the United States.
The Chancellor held: (1) that under the common law a married woman had the right to assume her husband's surname but she acquired his name by repute and not by operation of law; (2) that Sec. 2-206 does not operate to change the name of a woman at marriage to that of her husband; and, (3) that the action of the Registrar in purging the plaintiff's name was error and based upon an erroneous interpretation of the law.
Defendants have appealed, and insist that the statute dictates that a woman automatically take her husband's name upon marriage and that this was a requirement of the common law.
The conclusions we reach necessarily involve a consideration of the statutory laws of the state, the common law and the relevance of custom, usage and tradition.
II.
Tennessee has no statutory enactment providing in haec verba that a woman automatically assumes her husband's surname upon the event of marriage.
The statute under consideration, standing alone, does not mandate a change of name by marriage. It merely recognizes the prevalence of the virtually universal custom under which a woman normally adopts the surname of her husband. Moreover, it is equally susceptible of the construction that when either party to the civil contract of marriage elects to use the name of the other, the registration will be changed.
Sec. 59-708(d), T.C.A., relating to drivers' licenses, provides for notification of the Department of Safety "when the name of a licensee is changed by marriage" of the "former and new names." Again this statute merely takes cognizance of custom and does not mandate a change.
Change of name is authorized in adoption proceedings. (Sec. 36-101 et seq, T.C.A.)
The lackadaisical policy or relative insignificance of a change of name under Tennessee Law is best demonstrated by reference to Sec. 23-801, T.C.A., et seq, governing such changes. No standards, guidelines or criteria are established. All that is required is that a live person file a sworn application in the proper court of the county of his residence "giving his reasons for desiring the change." There is no requirement that the reasons be good and sufficient; just that they be given. We assume that a married woman not enamoured with *681 the custom, could get her name changed by "giving his reasons."
Finally, in divorce cases, courts may restore the wife's maiden name.
We proceed next to a discussion of the common law.
III.
A name is a word or phrase that constitutes the distinctive designation of a person or thing. Webster's New Collegiate Dictionary (8th ed. 1974).
A person's first name is generally known as his given, Christian or proper name and is awarded at, or soon after birth. His surname, patronymic or family name is that which is derived from the common name of his parents, or is borne by him in common with other members of his family.
The history of the use of names, in England, the country that has had the greatest influence upon the customs of the United States, and the source of our common law, is of interest and relevance.[2]
Until about the time of the Norman Conquest, during Eleventh Century England, there was no such thing as a surname or family name, and each person was identified only by his Christian or given name. This led to substantial confusion resulting from the paucity of given names.[3] The custom of using surnames developed slowly with only sporadic use of such names until the practice became prevalent about the beginning of the fourteenth century. A man was designated, in addition to his Christian name, in the great majority of cases, by the name of his estate, the place he was born, where he lived, or whence he had come, or by his calling as John the Smith, or William the Taylor, in time abridged to John Smith and William Taylor. Sometimes the occupation became the family name. A son would be distinguished from his father by calling him John's-son or William's-son. The Normans added "Fitz" to the father's Christian name to designate the son, as Fitzgerald or Fitzhugh. Among the Celts of Ireland and Scotland, where each clan bore a surname, "Mac" was added to distinguish the son and "O" to distinguish the grandson, resulting in MacDonald and O'Donnell. Men also adopted surnames based upon physical characteristics (Long, Short), colors (Brown, Black), or moral attributes (Wiley, Moody, Wise), or of birds, animals or plants (Martin, Fox, Rose). This is a brief synopsis of the interesting developments of surnames. By the fourth year of the reign of Edward IV (1465), statutes were adopted requiring the use of surnames.
Apparently, surnames were adopted and abandoned at will, and it was not unusual for one person to have several surnames in the course of a lifetime. No requirement or custom demanded that a woman adopt the surname of her husband, and early records showed that husband and wife often were known by different surnames.[4]
The family group did not necessarily use the same surnames, and men sometimes adopted the surnames of their wives.[5] Property sometimes entered into the picture, and it was not uncommon for children to adopt the mother's name where she owned the most property or had the largest estate.[6]
*682 The common law tended to place more stress on the baptismal than the surname. Coke instructs us:
And regularly it is requisite ... that speciall heed bee taken to the name of baptism for that a man cannot have two names of baptism as he may have divers surnames.[7]
In Button v. Wrightman, Poph. 56 (1682), it was said:
The law is not so precise in the case of surnames, but for the Christian name, this ought always to be perfect.[8]
Up to this juncture we have been primarily concerned with historical developments. We now turn to legal authorities.
The Tennessee Constitution of 1796, (Art. 10, Sec. 2) provided:
All laws and ordinances now in force and use in this Territory, not inconsistent with this constitution, shall continue to be in force and use in this State, until they shall expire, be altered, or repealed by the legislature.
Subsequent constitutions have contained substantially the same provisions.[9]
We adopted the common law:
(A)s it stood at (1776) and before the separation of the colonies ... (it) being derived from North Carolina, out of which state the State of Tennessee was carved. The Acts of North Carolina, 1715, c. 31, and Acts of North Carolina, 1778, c. 5, preserved the common law, while Session Act 1789, c. 3 provided for its continuance in the State of Tennessee. (Parenthetical date supplied).
Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249 (1965); Smith v. State, 215 Tenn. 314, 385 S.W.2d 748 (1965).
Thus it is that Tennessee, through North Carolina, adopted the common law of England as it existed in 1776. Case law research is next to impossible and text treatment in a relatively minor area of the common law is rendered extremely difficult by virtue of the antiquity of the cases. We can only turn to earlier English works and to the decisions from other jurisdictions.
Volume 12, Encyclopedia of the Laws of England, 53 (1898 London), under the heading, Surname, reads in pertinent part:
A person usually bears the surname of his father, but if he so pleases he may change it for another name, and it is not necessary that he should take any formal step to effectuate this (Davies v. Lowndes, 1835, J. Bing. N.C. 618) unless, indeed he changes his name in compliance with the injunction of a name and arms clause ...
* * * * * *
Except where the name to be assumed is prescribed by a name and arms clause, a person is at liberty to choose and bear any name he likes.
* * * * * *
A woman on her marriage takes her husband's name, and she retains it although the marriage may have been dissolved by divorce unless she has so far obtained another name by repute as to obliterate the original name. (Emphasis added). (Fendall v. Goldsmid, 1877, 2 P.D. 263).
The acquisition of a surname by repute figures very prominently in a change of name under English law.
The case of Cowley v. Cowley, (1901) A.C. 450, was heard before the House of Lords. Lady Cowley divorced Lord Cowley and married a commoner. Lord Cowley sued to restrain her from bearing his *683 name and arms. During the course of the deliberations, Lord Lindley said:
Speaking generally, the law of this county allows any person to assume and use any name, provided its use is not calculated to deceive and to inflict pecuniary loss.
In Vol. 19, Halsbury's Laws of England, 3rd ed., at page 829, Sec. 1350, it is said, among other things:
When a woman on her marriage assumes, as she usually does in England, the surname of her husband in substitution for her father's name, it may be said that she acquires a new name by repute. The change of name is in fact, rather than in law, a consequence of the marriage. (Emphasis added)
In Volume 20, American Journal of Comparative Law, page 606 (1972) it is said:
In English law, contrary to the law of most countries, there are no rules about legal names. The surname of any person, male or female, is the name by which he or she is generally known, provided that the name was not assumed for any fraudulent purpose. It follows that, if a man and a woman are cohabiting without marriage it is perfectly possible and not unusual for the woman to assume the same surname as the man. She usually does this by executing a deed poll declaring the name by which she wishes to be known. This is usually referred to as "changing one's name by deed poll". In fact the name is not changed by the deed poll. The name is changed by the reputation, of which the deed poll is good evidence.
The better opinion seems to be, and this is accepted by the learned editors of the latest edition of Halsbury's Laws of England, that the assumption by a woman of her husband's surname on marriage is a matter of custom and not of law. (emphasis supplied)
We now examine and analyze cases from various American jurisdictions. As will be seen, the opinions in these cases are not in harmony either as to results or as to the particular court's view with respect to the common law.
Virtually all cases holding that a woman changes her name by marriage are bottomed on a faulty construction of Chapman v. Phoenix National Bank of N.Y., 85 N.Y. 437 (1881). This was a case wherein a woman sought to have a confiscation proceeding set aside because it was brought in her maiden name, her insistence being that it was invalid for lack of notice. Chapman was a North Carolina school teacher. She had purchased stock in the Phoenix Bank prior to her marriage, with the certificates being in her maiden name. Dividends were paid to her until January 1, 1861. Thereafter, the War between the States ensued, but Chapman took no part in what the New York Court injudiciously and with palpable historic ignorance called "the rebellion." In February 1864 the Bank was notified that her stock and all accrued dividends were seized. Thereafter the United States Attorney filed a libel alleging that the stock belonged to "a rebel" and had been bought and used for the purpose of aiding, abetting and promoting "insurrection and rebellion."
This case, in current parlance, probably should be denoted as "The Case of the Busy Lady". It was alleged that she had acted as an officer of the rebel army and navy, as a member of the Confederate Congress, as a judge, commissioner and agent of the Confederate States, and as a member of a convention and judge of some one of the Confederate States. All these allegations were false.
Chapman, having no notice of the ensuing attachment and seizure, did not show up in court and default judgment was entered. When she learned of this action a year later, she brought suit.
The court denounced the sufficiency of the notice on numerous grounds. Among *684 other things, it was held that there was no possibility of her having received the notice and she was "within the Confederate lines" and "could not have crossed the lines to respond thereto." To bolster the court's holding that she was "in no way brought into court," the effect of the stock being held in the maiden name of a married woman was considered. In this connection the court said:
For several centuries, by the common law among all English speaking people, a woman, upon her marriage, takes her husband's surname. That becomes her legal name, and she ceases to be known by her maiden name. By that name she must sue and be sued, make and take grants and execute all legal documents. Her maiden surname is absolutely lost, and she ceases to be known thereby. (emphasis supplied)
This dictum was a triumph for this lady, but a travesty and a tragedy for her sex.
The appellants rely upon Roberts v. Grayson, 233 Ala. 68, 173 So. 38 (1937), insisting, in brief, that it holds that "a woman's maiden name ceases upon her marriage, and she ceases to be known thereby". With utmost deference to counsel we find nothing in the case to support this assertion. This case involved a claim against a decedent estate in which the deceased Hattie W. Jones, was designated as Mrs. J.C. Jones. The whole thrust of the Court's holding was that the name used was sufficient to give notice stimulating inquiry. As a part of the holding the Court stated:
(A) married woman's name consists, in law, of her own Christian name and her husband's surname.
Roberts very obviously does not raise the question or discuss or decide the issue of whether a married woman automatically, and as a matter of law, assumes the surname of her husband.
Appellants also rely upon the case of Peoples ex rel. Rago v. Lipsky, 327 Ill. App. 63, 63 N.E.2d 642 (1945), which is precisely in point.
Rago, a Chicago lawyer, who used her maiden name professionally, socially and exclusively after her marriage, was denied permission to remain registered under her maiden name. The Illinois statute is substantially the same as that of Tennessee, providing that "Any registered voter who changes his or her name by marriage ... shall be required to register anew ..."[10]
The Court held the statute made it mandatory for Rago to re-register under the surname of her husband. Relying upon Chapman and other authorities, the Court said:
(I)t is well settled by common-law principles and immemorial custom that a woman upon marriage abandons her maiden name and takes the husband's surname, with which is used her own given name.
Further, the Court refers to
(T)he long-established custom, policy and rule of the common law among English-speaking peoples whereby a woman's name is changed by marriage and her husband's surname becomes as a matter of law her surname. (Emphasis supplied)
Our attention is called to an opinion rendered on February 13, 1974 by the Attorney General of Illinois, wherein he states:
I am aware of the decision in People ex rel. Rago v. Lipsky, 327 Ill. App. 63, 63 N.E.2d 642, which holds that it is well settled by common-law principles and immemorial custom that a woman takes the surname of her husband. I do not believe this appellate decision should control. The other Illinois decisions and cases elsewhere establish that a woman may in fact retain her own name upon *685 marriage with or without court proceedings. (emphasis supplied)
Appellee places heavy reliance upon State ex rel. Krupa v. Green, 114 Ohio App. 497, 177 N.E.2d 616 (1961), which fully supports her position. This was an action seeking to prohibit a Board of Elections from placing the maiden name of a married woman on the ballot. The court in pertinent part said:
"It is only by custom, in English speaking countries, that a woman, upon marriage, adopts the surname of her husband in place of the surname of her father.
* * * * * *
"The Supreme Court of Ohio in the case of Pierce v. Brushart, 153 Ohio St. 372, at page 380, 92 N.E.2d 4, at page 8, said:
"`It is universally recognized that a person may adopt any name he may choose so long as such change is not for fraudulent purposes.'
* * * * * *
"In England, from which came our customs with respect to names, a woman is permitted to retain her maiden surname upon marriage if she so desires.
"M. Turner-Samuels, in his book on `The Law of Married Women' at page 345, states:
"`In England, custom has long since ordained that a married woman takes her husband's name. This practice is not invariable; nor compellable by law. * * * A wife may continue to use her maiden, married, or any other name she wishes to be known by. * * *'
* * * * * *
Krupa is the primary American authority cited in support of Stuart v. Board of Supervisors, infra, and is said to be "the only previous American decision to approach the issue of married women's surnames from the general context of the legal history of surnames and to bring a searching common law analysis to bear upon the qeustion".[11]
Appellant cites Wilty v. Jefferson Parish Democratic Executive Com., 245 La. 145, 157 So.2d 718 (1963). The facts are somewhat unique. Vernon J. Wilty, Jr. sought to prevent his estranged wife's name from appearing upon the ballot as a candidate against him, as Mrs. Vernon J. Wilty, Jr. He asserted that her correct legal name was Mrs. Laura Verret Wilty. The court decided the issue in favor of the husband.
While we do not regard this case as being precisely in point, we include it because it has been rather widely cited.
The Majority Opinion (the court produced five opinions) starts out by stating that "there is no definite law or decision in Louisiana as to what is the legal name of a married woman". Justice Sanders, concurring in the results, takes issue, saying:
Although unnecessary for the decision, the majority cites, with apparent approval, the rule that by marriage a woman loses her maiden surname and takes her husband's surname as her legal name. I am unable to agree that marriage has this effect under the law of Louisiana.
* * * * * *
After marriage, the legal name of a woman continues to be her maiden name, or patronym. The surname of the husband is used only as a matter of custom to indicate the marital status of the wife. (Emphasis supplied). See Succession of Kneipp, 172 La. 411, 134 So. 376.
Kneipp is also widely cited in commentaries and cases but is not alluded to in the majority opinion. Wilty is simply not authority as to the issue in the case sub judice. It is concerned solely with fairness in elections and as pointed out in the foregoing concurring opinion, the expressions with respect to the correct name of a married *686 woman were unnecessary and are dicta.
Appellant strongly relies upon Forbush v. Wallace, 341 F. Supp. 217 (M.D.Ala. 1971). This class action, heard by a three-judge panel, challenges a requirement of the Alabama Department of Safety that a married woman use her husband's surname on her driver's license, and asserts that such a requirement violates the equal protection clause of the Fourteenth Amendment.
Citing Roberts v. Grayson, the Court notes that "Alabama has adopted the common law rule that upon marriage the wife by operation of law takes the husband's surname." The Court also observes:
Certainly the custom of the husband's surname denominating the wedding couple is one of long standing. While its origin is obscure, it suffices for our purposes to recognize that it is a tradition extending back into the heritage of most western civilizations. It is a custom common to all 50 states in this union. Uniformity among the several states in this area is important. (emphasis supplied)
We agree that we are dealing with custom and tradition. This is all Forbush actually stands for insofar as Rose Palermo's suit is concerned. The Forbush court actually held that the requirement that a married woman obtain a driver's license under her husband's surname found a rational basis in administrative convenience.[12] The Court does not discuss the existence of a rational basis for the common law requirement of Alabama, if there be such a requirement. There are other questions left unanswered, e.g., whether sex is a "suspect classification."[13]
Appellees place great reliance upon Stuart v. Board of Supervisors of Elections, 266 Md. 440, 295 A.2d 223 (1972). Mary Stuart, a married woman, registered to vote under her maiden name. Upon her refusal to re-register under the surname of her husband, her registration was cancelled. As Rose Palermo, she had used her maiden name exclusively and had never used her husband's surname.
In upholding her right to register under her maiden name, the Maryland Court of Appeals, in a brilliant and scholarly opinion by Chief Judge Murphy said:
We have heretofore unequivocally recognized the common law right of any person, absent a statute to the contrary, to "adopt any name by which he may become known, and by which he may transact business and execute contracts and sue or be sued." Romans v. State, 178 Md. 588, 597, 16 A.2d 642, 646.
* * * * * *
Consistent with the common law principle referred to in the Maryland cases, we hold that a married woman's surname does not become that of her husband where, as here, she evidences a clear intent to consistently and nonfraudulently use her birth given name subsequent to her marriage. Thus, while under Romans a married woman may choose to adopt the surname of her husband this being the longstanding custom and tradition which had resulted in the vast majority *687 of married women adopting their husbands' surnames as their own the mere fact of the marriage does not, as a matter of law, operate to establish the custom and tradition of the majority as a rule of law binding upon all.
From a study of the English authorities cited to us by the parties and amici curiae, we believe the rule we enunciate today is founded upon the English common law incorporated into the laws of Maryland by Article 5 of the Maryland Declaration of Rights. (Emphasis supplied)
In Custer v. Bonadies, 30 Conn.Sup. 387, 318 A.2d 639 (1964), the Supreme Court of Connecticut followed Stuart and Krupa, supra.
Our investigation has led us to the case of Application of Wallace, 319 A.2d 793 (N.J. 1974), wherein a married woman petitioned the Court for permission to resume the use of her maiden name. The Court held that she had assumed the husband's surname on marriage and that to permit her to use her maiden name should be denied in the light of the confusion which would be created if children were born of the marriage. This case contains an excellent and exhaustive review of the authorities on each side of the question here presented.
One day following oral argument in Rose Palermo's case, the Supreme Court of Wisconsin released its opinion in Kruzel v. Podell, 226 N.W.2d 458 (Wis. 1975). Rose Kruzel, a married woman, petitioned the Court for change of name in order that she might use her maiden name. She had consistently and exclusively used her maiden name. The Court, in a most comprehensive opinion, held that "a woman upon marriage adopts the surname of her husband by thereafter customarily using that name, but no law requires that she do so. If she continues to use her ante-nuptial surname, her name is unchanged by the fact that marriage has occurred."
We are indebted to the Wisconsin Court for calling our attention to a recent New York case, which casts doubt upon the precedent of the Chapman dicta. In this regard the Court said:
In the recent case of Application of Halligan [for Leave to Change Her Name to Sara Ryan], (1974) 46 A.D.2d 170, 361 N.Y.S.2d 458, a unanimous court held that Sara Ryan, married one Halligan, had the right to be known as Sara Ryan and by no other name, despite the marriage. No reference was made to the Chapman case.
And yet the erroneous statement of the common law in Chapman formed the predicate for a substantial number of decisions misinterpreting the common law of England.
On the common law theory of marriage the Court said:
It is undoubtedly true that the tendency of a wife to take her husband's surname was spawned by the common law theory of marriage. Under that theory, upon marriage, a man and a woman became one and that one was the husband. In view of that theory of marriage, it is perhaps surprising that the English common law, out of which grew the theory of coverture, did not require that the husband's surname be assumed in all cases by the wife. On the contrary, however, when the wife did assume the husband's name, it was a matter of custom or practice and not of law.
Based upon an intensive investigation into the law from which we distill the cases herein cited and upon excellent and elaborate briefs submitted by counsel for the respective parties we conclude that at the common law, as of the time of the separation of the colonies, a woman acquired a new name by repute and that her name was thus changed in fact and not in law. The name change came as a result of custom and usage. It was windblown across the Atlantic Ocean in the same form and has become a universal practice in this country. But it has never had the force of *688 law in Tennessee either under our common law or statutes.
We frankly concede that there is a division of authority as to this question. We are persuaded that we have adopted the better view; however, we make no claim to judicial infallibility. Irrespective of the common law, we hold that there is no legal requirement in Tennessee that a married woman automatically assume the surname of her husband.
This Court in the past has not hesitated to depart from the rigid common law where "the reason for the common law rule does not exist." Brown v. Shelby, 206 Tenn. 71, 332 S.W.2d 166 (1960).
The common law does not have the force of Holy Writ; it is not a last will and testament, nor is it a cadaver enbalmed in perpetuity, nor is it to be treated like the sin of Judah "written with a pen of iron and with the point of a diamond." Jeremiah 17:1.
Former Chief Justice Frantz of Colorado, in his dissenting opinion in Tesone v. School Dist. No. Re-2, In County of Boulder, 152 Colo. 596, 384 P.2d 82 (1963), made this erudite observation on the common law:
"The common law of America is evolutionary; it is not static and immutable. It is in constant growth, going through mutations in adapting itself to changing conditions and in improving and refining doctrine. By its very nature, it seeks perfection in the achievement of justice."
This is an eloquent description of the greatness and the glory of the common law.
We are urged to the conclusion that the custom of women adopting the surnames of their husbands has ripened into law and that, therefore, a wife is under a legal duty to adopt her husband's surname. Quite aside from the fact that the law of customs relates essentially to commercial transactions, there is for consideration the fact that the mere custom of married women adopting their husband's surnames, does not necessarily imply a rejection of their own names. We are cited to no case where the non-user of a name works a forfeiture of the right to its use. Moreover, married women have labored under a form of societal compulsion and economic coercion which has not been conducive to the assertion of some rights and privileges of citizenship. The application of a rule of custom and its conversion into a rule of law, would stifle and chill virtually all progress in the rapidly expanding field of human liberties. We live in a new day. We cannot create and continue conditions and then defend their existence by reliance upon the custom thus created. Had we applied the rules of custom during the last quarter of a century, the hopes, aspirations and dreams of millions of Americans would have been frustrated and their fruition would have been impossible.
We are admonished that permitting a married woman to retain her maiden name would result in chaos and confusion. In point of fact, permitting a married woman to retain her own name, would eliminate substantial administrative problems incident to a change of name. With the rapid increase of divorces and re-marriages in America today, with attendant name changes, we may reach the point of having to forbid a change of name by marriage in order to bring about stability, reduce confusion and preserve the identity of women who acquire a different name from each successive husband.
IV.
In summary, we hold that in this jurisdiction a woman, upon marriage, has a freedom of choice. She may elect to retain her own surname or she may adopt the surname of her husband. The choice is hers.
We hold that a person's legal name is that given at birth, or as voluntarily changed by either spouse at the time of marriage, or as changed by affirmative *689 acts as provided under the Constitution and laws of the State of Tennessee. So long as a person's name remains constant and consistent, and unless and until changed in the prescribed manner, and absent any fraudulent or legally impermissible intent, the State has no legitimate concern.
We hold that appellee's legal name is Rosary T. Palermo.
What we have said has no bearing on the continuing right of any individual to the use of a "stage name", or "pen name", or any designation by which he or she desires to be known in any trade, business, occupation or profession.
We do not reach the constitutional issues.
Affirmed at the costs of appellants.
FONES, C.J., and COOPER, BROCK and HARBISON, JJ., concur.
NOTES
[1] See Sec. 2-201, T.C.A.
[2] This history is a composite from the following authorities: 57 Am.Jur.2d, Names, Sec. 2 (1971); Arnold, Personal Names, 15 Yale L.J. 227 (1905); 32 Maryland L.Rev. 409 (1973); and Petition of Snook, 2 Pittsburg Reports 26 (1859).
[3] Estimates range from 200 to 600, in general use.
[4] 32 Maryland L.Rev. 413 (1973); p. Reany, the Origins of English Surnames 83 (1967).
[5] Ibid.
[6] Reany, 84, 85.
[7] Coke, Litt., Sec. 3(a) as footnoted in 15 Yale L.J. at page 228 (1905).
[8] See footnote, 15 Yale L.J. at page 228.
[9] See Tennessee Constitution, Art. XI, Sec. 1.
[10] Sec. 6-54, Election Code of Illinois.
[11] 32 Maryland L.Rev. 409 (1973).
[12] The administrative convenience test was rejected by the Supreme Court in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).
[13] In Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal. Rptr. 329, 485 P.2d 529 (1971), the California Supreme Court in finding sex to be a class which should be "suspect", said:
Sex ... is an immutable trait, a status into which the class members are locked by the accident of birth. What differentiates sex from nonsuspect statuses, such as intelligence or physical disability, and aligns it with the recognized suspect classifications is that the characteristic frequently bears no relation to ability to perform or contribute to society ...
* * * * *
Women, like Negroes, aliens, and the poor have historically labored under severe legal and social disabilities.
* * * * *
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48 Cal.2d 20 (1957)
THE PEOPLE, Respondent,
v.
DONALD MICHAEL FOOTE et al., Appellants.
Crim. No. 5855.
Supreme Court of California. In Bank.
Feb. 15, 1957.
Raymond De Forest Johnson, in pro. per., Charles E. Karpinski, under appointment by the District Court of Appeal, Richard E. Adams, under appointment by the Supreme Court, Edgar G. Langford, J. Perry Langford, Robert O'Connor, and Barton C. Sheela, Jr., for Appellants.
Edmund G. Brown, Attorney General, and Norman H. Sokolow, Deputy Attorney General, for Respondent.
GIBSON, C.J.
After a jury trial, defendants Foote, Johnson and Curtis were found guilty of robbery in the first degree and of conspiracy to commit robbery. Each defendant appeals separately from the judgment of conviction and from the order denying his motion for a new trial.
On July 31, 1955, near 10 p.m., two men, whose faces were masked by silk stockings, threatened the cashier of a drive-in movie theater with guns and took about $800 from him. About 15 minutes afterwards, and some three miles from the theater, two police officers who had heard of the robbery stopped a 1950 Mercury automobile which contained three men. The owner, Foote, stepped out of the car and walked over to the officers, who ordered the other two men to step out with their hands in view. Instead the car was put in gear and sped away. The officers fired several shots at the automobile and, after getting Foote into their car, attempted pursuit. They were unable to overtake the Mercury automobile, but they found it unoccupied a few minutes later near Foote's home. Several rolls of coin had been left in the car, and one of them was marked "St. Brigid's Church," the same marking as that on some of the rolls taken from the theater.
Several hours before commission of the crime, the three defendants were together at the Foote residence. Foote's mother testified that her son left about 9 p.m. but that she did not know if anyone left with him. Later that evening, she heard a car door slam and a man's voice, which seemed to come from the car, call something like "Terry, hurry up or I am going to leave you," and she saw Johnson come into the entry hall and then leave. A few minutes afterward the police officers arrived with her son.
Johnson was apprehended on August 29, 1955. At first he denied that he had any part in the robbery but later, during lengthy questioning by police officers, he confessed, saying that he and Foote held up the cashier while Curtis, *22 who was "part of the operation," waited in the car. The purpose of the robbery, according to Johnson, was to obtain money to finance the smuggling of narcotics from Mexico. He admitted being with the other defendants in the automobile when it was stopped by the police officers and said that, after escaping from the officers, he and Curtis went to the Foote residence where he hid the two guns used in the robbery.
Unknown to Johnson, his statements to the police officers were recorded, and a portion of the recordings, lasting over four hours, was played to the jury. Before the recordings were offered in evidence defendants asked permission to review them. The court rejected the request but ordered the district attorney to delete any objectionable matter. Defendants were not permitted to make objections until after the recorded conversations were in evidence. They then made motions for mistrial which were denied. The jury was instructed, however, that the conversations were not binding on Foote and Curtis and were to be disregarded in considering the case against them.
Johnson repudiated the statements made in his confession which connected him with the robbery. He testified that he and Foote parted about 9 p.m., which was approximately an hour before the robbery was committed, and that he did not commit the robbery and was not in the automobile when it was stopped by the police. According to his testimony, he told the police officers that he robbed the theater because they promised that, if he made such a statement, his wife, who was then in jail, would not be prosecuted for having aided him to escape capture. The police officers testified that, although Johnson made numerous attempts to secure such an agreement, they repeatedly refused to deal with him, and their testimony is borne out by the recordings of the conversations.
Foote testified that he had been with Curtis and Johnson on the night of the robbery and that they were with him in the automobile when it was stopped by the police, but he denied that he participated in the robbery.
Curtis did not take the witness stand.
[1] There is substantial evidence to support the determination that Johnson's confession was given voluntarily. He contends, however, that it was error to admit in evidence portions of the recordings containing statements pertaining to his parole violations, the desertion of his first wife, the *23 asserted invalidity of his second marriage, his association with criminal characters and his use of narcotics. Some of these statements were inadmissible, but his guilt was clearly established by other evidence and we are of the opinion that no miscarriage of justice resulted as to him by reason of the admission of the erroneous evidence. (See Cal. Const., art. VI, 4 1/2.)
The situation is quite different with respect to Foote and Curtis. The jury was permitted to hear the recorded statements by Johnson that Foote had narcotics in his home, that he sold them and used them and that his mother had believed that he was guilty of the robbery. There was also a statement by a police officer, which appears to be untrue, that Foote had pleaded guilty to a charge of smuggling narcotics. The recordings also contained statements by Johnson to the effect that Curtis used narcotics, committed "sneaky" crimes like burglary, enjoyed causing trouble between people to see them fight, had hoodlums intimidate Johnson's mother to keep Johnson quiet and had associated with Johnson in prison.
[2] Where the jury is instructed that evidence is admitted only as to certain counts or as to certain defendants, it will ordinarily be presumed that the jury followed the instruction and that there was no prejudice. (People v. Tarantino, 45 Cal.2d 590, 597 [290 P.2d 505], and cases cited; People v. Dabb, 32 Cal.2d 491, 499 [197 P.2d 1].) [3] Where, however, statements of a codefendant are admitted which are irrelevant or unnecessary in establishing a case against him and are extremely prejudicial and inadmissible hearsay as to a codefendant, they should be excluded from the evidence. (People v. Zammora, 66 Cal.App.2d 166 [152 P.2d 180].) In the Zammora case Mr. Justice White speaking for the court said, "Notwithstanding instructions of the court that such statements were not to be considered against codefendants named therein by the declarant, it is obvious, in the light of human experience, that the effect of such statements upon the jury would serve only to injure the cause of the codefendant so accused and against whom such statements were concededly inadmissible. The multiplicity of such statements coupled with the number of defendants and the long duration of the trial could serve only to make more difficult the task of the jury in following the court's instructions not to consider such testimony save and except as to the defendants *24 who made the statements. ... We do not want to be understood as holding that any admission or confession made by the declarant in these statements was not admissible, but we do hold that it is not permissible to get before the jury damaging and prejudicial, but inadmissible evidence against a codefendant, under the guise of introducing an admission or confession by someone else who has made a statement. The parts of such declarations containing accusatory and inadmissible statements against codefendants should have been excluded, and only those parts containing admissions against interest or confessions by a declarant or which were properly admissible for purposes of impeachment should have been admitted. To hold otherwise, would be to make possible a conviction upon what is purely hearsay and inadmissible but extremely prejudicial evidence. Notwithstanding the admonitions of the court, the prejudicial statements are nevertheless before the jury and to hope that they might be forgotten by the jury in their deliberations is to belie human nature and challenge human experience." (66 Cal.App.2d, pp. 211-212.)
The parts of the recordings which were played to the jury lasted for more than four hours, and none of the matters complained of was a necessary part of Johnson's confession. Some of the statements, such as the police officer's assertion that Foote had pleaded guilty to smuggling narcotics, were not admissible in the case against Johnson. Likewise irrelevant as to Johnson were the statements that Curtis committed "sneaky" crimes like burglary, enjoyed causing trouble between people to see them fight, and had hoodlums intimidate Johnson's mother to keep him quiet.
[4] The accusations made by Johnson and the police were very prejudicial to Foote and Curtis, and it is extremely unlikely that in considering the case against them the jury could erase these inflammatory statements from their minds. Furthermore, the district attorney in his argument to the jury made no effort to distinguish the case against Johnson from that against Foote and Curtis in referring to the statements made by Johnson. Under these circumstances, the hearsay evidence undoubtedly weighed heavily against Foote and Curtis and may have been the determining factor which brought about their conviction. After reviewing the entire record, we must conclude that the admission of these statements resulted in a miscarriage of justice as to Foote and Curtis. *25
The judgment as to Johnson and the order denying him a new trial are affirmed. The judgments as to Foote and Curtis and the orders denying them a new trial are reversed.
Shenk, J., Carter, J., Traynor, J., Schauer, J., Spence, J., and McComb, J., concurred.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11303 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 9, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-cr-00069-ODE-JFK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE PEREZ OCHOA,
a.k.a. Lucio Perez Ochoa,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 9, 2010)
Before CARNES, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Enrique Perez Ochoa appeals his convictions following a conditional guilty
plea to possession of cocaine with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C); possession of firearms during the commission of a
drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i); and possession
of firearms by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and
924(a)(2). He argues, first, that his warrantless arrest was not supported by
probable cause and, thus, the contemporaneous search was not a valid search
incident to arrest. Second, he claims that his wife did not validly consent to the
first, warrantless search of their home. Third, he contends that the search warrant
supporting the second search of the home was invalid because it omitted certain
facts about the investigation and first search. Fourth, he argues that the agents
exceeded the scope of the search warrant when they seized unlisted weapons,
ammunition, drugs, paraphernalia, and money, particularly the items found behind
the false wall in his children’s bedroom closet. Finally, he claims that his post-
arrest statements were obtained in violation of his right to counsel and as the
product of an illegal arrest. For the reasons set forth below, we affirm.
I.
After pleading not guilty to the grand jury indictment, Ochoa moved to
suppress (1) all evidence gathered pursuant to the warrantless search of his person
2
and residence, (2) any of his statements obtained in violation of the Constitution,
(3) the seizure of his person, and (4) any statements or evidence obtained as a
result of the warrant search of his residence, which was the fruit of the tainted
warrantless search and seizure. He argued that (1) his arrest had not been
supported by a warrant or probable cause; (2) officers searched his home without a
warrant and over his objection; (3) his wife did not voluntarily consent to the
search; (4) the subsequently obtained search warrant for Ochoa’s home was
invalid because it was based on evidence from the initial unlawful search; (5) the
officers exceeded the scope of the search warrant when they seized items not
identified in the search warrant; and (6) his post-arrest statement was obtained in
violation of his right to counsel.
Viewed in the light most favorable to the government, see United States v.
Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007), the following evidence was
adduced at the suppression hearing. Officer Sung Kim, of the Atlanta Police
Department’s (“APD”) Safe Street Gang Task Force, received information that
Ochoa might have been wanted by Mexican authorities in connection with a
double homicide. Ochoa was from an area of Guerrero, Mexico, known as a drug-
smuggling corridor. Kim was told that Ochoa had several vehicles, including a
blue Ford pickup truck, and was always armed with a handgun. He asked Special
3
Agent Steve Ledgerwood of Immigration and Customs Enforcement (“ICE”) to
verify this information.
With the assistance of an ICE agent located in Mexico, Ledgerwood verified
that Ochoa was wanted in connection with a double homicide. Ledgerwood relied
on multiple criminal, immigration, credit-check, and identity databases, as well as
the other agent’s vetted sources and a Mexican newspaper article about the
homicide. During his investigation, he found an indication that someone named
Lucio Perez Ochoa was living at the Atlanta address, but their information had
established that the occupant was named Enrique Perez Ochoa. One criminal
database included an entry for an individual named Lucio Perez Ochoa, who had
been born in Mexico. Based on his independent investigation, including the
discovery that Ochoa was using false social security numbers and was not entered
into any immigration database, Ledgerwood informed Kim that he believed Ochoa
to be in the country illegally. He proposed attempting to make contact with
Ochoa, in order to initiate deportation proceedings and contact Mexican officials
about Ochoa’s suspected involvement in the double homicide.
Kim, Ledgerwood, and other APD and ICE officers went to Ochoa’s
apartment to make contact with him. After they positioned themselves in vehicles
around the apartment, a blue Ford pickup truck and another vehicle drove past
4
them and parked next to the apartment. When Ochoa exited the truck, the officers
drove up slowly, exited their vehicles, identified themselves as law enforcement
officers, and instructed him in English and Spanish to raise his hands. Ochoa
hesitated, then turned toward them and put his hands on the front of his waistband.
Kim knocked him to the ground, and he and other officers struggled with him for
15 to 30 seconds in order to pull his hands from his waistband and cuff them
behind his back. When Kim patted Ochoa down, he found a locked and loaded
semiautomatic handgun in his waistband and two additional clips, with rounds
inside, in his front pocket. In Ochoa’s wallet, Kim found a valid Georgia driver’s
license and a document from the Mexican consulate, both of which bore the name
Lucio Perez Ochoa and addresses located in a different apartment complex. Kim
thought the driver’s license was significant, as an illegal alien cannot obtain a
driver’s license in Georgia.
After Ochoa was handcuffed, Ledgerwood and two other officers
immediately went to the apartment door. When Santana answered Ledgerwood’s
knock, he asked her in Spanish whether anyone else was in the apartment, then
asked for her permission to look inside the apartment for other people. She
agreed, and the three officers performed a cursory security sweep, including the
two bedrooms and the closets. After the sweep, they returned to the living room
5
and Ledgerwood asked Santana, in Spanish and using a normal tone of voice, for
permission to search the apartment for illegal documents, weapons, and drugs.
She gave permission for the search. She appeared shocked but calm and
compliant, she seemed to understand what he was asking, and he understood her
response. None of the officers had their weapons drawn. The young child who
was with Santana continued playing, smiling, and giggling. None of the officers
made any threats or promises when they asked for her consent to the search. No
officer took her outside at any time.
Ledgerwood told the other two officers that they could begin to search, but
they did not. When he asked Santana whether the family had any documents or
identification, she said they did and took him to the closet in the master bedroom,
where she retrieved a folder of documents labeled “Riki’s Family.” “Riki” is a
nickname for “Enrique.” While she removed the documents from the closet,
Ledgerwood opened a drawer in the dresser next to them and saw money bundled
in plastic wrap and Ziploc bags. He left the money in the drawer, told the other
two officers what he had found, and photographed it. When Ledgerwood
questioned Santana about her identity, she said that she was in the country
illegally. The folder of documents included near-identical birth certificates for
Enrique Perez Ochoa and Lucio Perez Ochoa, a Mexican passport issued in
6
Atlanta in the name of Lucio Perez Ochoa, and a birth certificate for one of
Santana’s sons. She said that the man in the driveway was Lucio Perez Ochoa,
who had been her husband for 12 years and with whom she had 4 children.
Ledgerwood pointed out that the birth certificate identified Enrique as her son’s
father, at which point she became vague and eventually said that Enrique was
Lucio’s brother and her “other husband,” with whom she had two children. At
that time, about 15 minutes after the arrest, Kim approached and told them that
Ochoa had said to stop searching the apartment. Ledgerwood and Kim terminated
the search and Kim left to obtain a search warrant.
Ochoa had been placed under arrest for being present in the United States
illegally. Before attempting to interview him, Ledgerwood advised him of his
Miranda1 rights by reading a Spanish-language form to him, verbatim, and placing
the form where Ochoa would be able to read it. After each line, Ledgerwood
asked Ochoa whether he understood. Neither officer made any threats or
promises, and neither was armed. Ochoa appeared to understand his rights, did
not have any questions about them, and seemed to be thinking clearly and
logically. After Ledgerwood had read the form, Ochoa said that he was willing to
speak to them and signed the waiver at the bottom of the form. Ledgerwood
1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
7
started to ask his first question, but Ochoa said, “I think I want a lawyer.”
Ledgerwood turned to the other officer and said, “Okay, that’s it,” but Ochoa
continued talking. Neither officer asked Ochoa any questions, but he continued to
make several unprompted statements.
Based on information Kim had received throughout the day, including
Ledgerwood’s seizure of the two near-identical Mexican birth certificates, he
obtained a search warrant for the apartment. During the warrant search, they
found a semiautomatic handgun on a shelf in the family room and a thick folder
containing identification documents, including birth certificates, a fake social
security card for Santana, a fake immigration card, and a Mexican consulate
identification card bearing Ochoa’s full name and the address of the apartment
being searched. They also found the large amount of cash, wrapped in plastic, in
the dresser drawer in the master bedroom. In the back of the children’s closet,
they discovered a concealed compartment constructed from a piece of drywall.
Believing that the compartment could contain additional illegal documents, they
cut into the drywall. In the compartment, they found a large bag of cocaine, an
electronic scale, approximately 157 loose rounds of ammunition wrapped in socks,
numerous semiautomatic-handgun magazines, and numerous rifle magazines.
The district court denied the motion to suppress, finding that the arrest was
8
valid, the search of Ochoa’s person was a lawful search incident to arrest,
Ledgerwood and the other officer had not interrogated Ochoa in violation of his
right to counsel, Santana had validly consented to the officers’ entry into and
warrantless search of the apartment, Kim’s affidavit provided probable cause for
issuance of the search warrant, and the seizure of the unlisted items had been
appropriate under the plain-view doctrine.
Ochoa pled guilty to all counts and indicated his intent to appeal the denial
of the motion to suppress. He was sentenced to a total of 106 months’
imprisonment. On appeal, we held that he had not properly entered a conditional
plea that the requirements of Federal Rule of Criminal Procedure 11 had not been
satisfied because although the government had consented to a conditional plea and
Ochoa mistakenly believed that the suppression issue had been preserved it had
not been properly preserved in the record. United States v. Ochoa, No. 09-10932,
manuscript op. at 2 (11th Cir. Nov. 24, 2009). Accordingly, we vacated and
remanded his convictions so the district court could allow Ochoa to enter a
conditional plea. Id. at 10. On remand, Ochoa pled guilty pursuant to a written,
conditional plea agreement. He now appeals the denial of the motion to suppress.
II.
In reviewing the denial of a motion to suppress, we review the district
9
court’s findings of fact for clear error and its application of law to those facts de
novo. Ramirez, 476 F.3d at 1235. Law enforcement officers may briefly detain
individuals for investigatory purposes if they have a reasonable, articulable
suspicion, based on objective facts, that the individual has engaged in, or is about
to engage in, criminal activity. See United States v. Lindsey, 482 F.3d 1285, 1290
(11th Cir. 2007). Reasonable suspicion is a less demanding standard than
probable cause, but requires a minimal level of objective justification. Id.
Officers may draw on their experience and specialized training to make inferences
and deductions from the available information, but the information on which they
rely must be reliable in its assertion of illegality and should be corroborated by
independent police work. Id. at 1290-91. An investigatory stop does not
necessarily become an arrest merely because an officer displays his weapon,
particularly as the officer may act reasonably in being prepared for possible
violence. See United States v. Roper, 702 F.2d 984, 987-88 (11th Cir. 1983)
(concerning vehicle stops).
An arrest must be supported by probable cause, which requires a reasonable
belief, under the totality of the circumstances, that the suspect had committed or
was committing a crime. Lindsey, 482 F.3d at 1291. Even if the officer’s initial
approach was unlawful, the resulting arrest can be rendered lawful based on the
10
suspect’s subsequent conduct, such as attempting to resist arrest or to assault an
officer. United States v. Gonzalez, 71 F.3d 819, 826-27 (11th Cir. 1996),
abrogated in part on other grounds, Arizona v. Gant, 556 U.S. __, 129 S.Ct. 1710,
173 L.Ed.2d 485 (2009), as recognized by United States v. Davis, 598 F.3d 1259,
1262 (11th Cir. 2010). The officer may conduct a lawful search incident to arrest
by searching the area within the immediate control of the arrestee, into which he
might be able to reach for a weapon or evidentiary items. Chimel v. California,
395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969).
Here, Kim and Ledgerwood developed information from multiple, objective
sources that indicated the following: (1) a man named Enrique Perez Ochoa was
wanted by Mexican authorities in connection with a double homicide; (2) a man
by that name was known to live in an apartment in Atlanta; (3) the name Lucio
Perez Ochoa was also associated with the apartment and appeared in a criminal
database; (4) Ochoa was known to carry a firearm at all times; and (5) he was not
entered into any immigration database and was using false social security
numbers. The district court did not clearly err in finding that these facts gave rise
to a rational inference that Ochoa had entered the United States illegally and was
the individual wanted in Mexico for homicide. Therefore, the court did not err in
finding that the officers had reasonable suspicion to support the initial approach in
11
the parking lot. See Lindsey, 482 F.3d at 1290-91.
In light of their information that Ochoa was armed at all times, the officers
acted reasonably in drawing their guns during the initial approach, and their
decision to do so did not convert the approach into an arrest. See Roper, 702 F.2d
at 987-88. When Ochoa failed to comply with their instruction to show his hands,
reached for his waistband, and proceeded to struggle with the officers until they
could handcuff him, his efforts to resist the officers gave rise to probable cause
supporting an arrest. See Gonzalez, 71 F.3d at 826-27. The search of Ochoa’s
person for weapons and identification, then, were part of a lawful search incident
to arrest. See Chimel, 395 U.S. at 762-63, 89 S.Ct. at 2040. Accordingly, Ochoa’s
arrest was lawful and the evidence obtained from his person was not subject to
suppression.
III.
A warrantless search is proper when preceded by valid consent. United
States v. Dunkley, 911 F.2d 522, 525 (11th Cir. 1990). The consent must be
voluntarily given by a person having, or reasonably appearing to have, authority to
do so. Id. A search of a home based on consent given by one resident is
unreasonable as to a co-resident who is physically present for the exchange and
expressly refuses consent. Georgia v. Randolph, 547 U.S. 103, 121, 126 S.Ct.
12
1515, 1527, 164 L.Ed.2d 208 (2006). However, the search is reasonable as to the
co-resident if he is merely nearby but not invited to take part in the colloquy, thus
“los[ing] out” on his opportunity to prevent the search. Id. This remains true even
if the target of the search is absent because he is being detained in a squad car not
far away. See id. (discussing United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988,
39 L.Ed.2d 242 (1974)). Additionally, officers may seize evidence if, during
questioning of the suspect’s wife, the wife voluntarily retrieves and surrenders the
evidence to them. Coolidge v. New Hampshire, 403 U.S. 443, 488-90, 91 S.Ct.
2022, 2049-50, 29 L.Ed.2d 564 (1971).
In light of the facts set forth above, the district court did not clearly err in
finding that Santana had authority to consent to the search and gave her consent
freely and voluntarily. See Dunkley, 911 F.2d at 525. Accordingly, the fruits of
the search, including the documents that Santana personally gave to Ledgerwood,
were admissible against Ochoa. See Randolph, 547 U.S. at 121, 126 S.Ct. at 1527;
Coolidge, 403 U.S. at 488-90, 91 S.Ct. at 2049-50.
IV.
A warrant affidavit must show a fair probability that contraband or evidence
of a crime will be found at the particular place to be searched. United States v.
Jiminez, 224 F.3d 1243, 1247 (11th Cir. 2000). In deciding whether probable
13
cause to issue the warrant exists, the judge must “make a practical, common sense
decision whether, given all the circumstances set forth in the affidavit before him, .
. . there is a fair probability that contraband or evidence of a crime will be found in
a particular place.” Id. at 1248. Insignificant and immaterial misrepresentations
or omissions will not invalidate a warrant. United States v. Reid, 69 F.3d 1109,
1114 (11th Cir. 1995).
Here, Kim swore an affidavit that set forth a general description of the
officers’ encounter with Ochoa, Santana’s representation that they were in the
country illegally, Ledgerwood’s description of the identity documents he had seen,
and the fact that Ochoa was carrying a valid driver’s license, which he could not
have validly obtained in Georgia as an illegal alien. The district court did not
clearly err in concluding that the issuing judge could have found a fair probability
that the apartment would contain documents showing that (1) Ochoa had entered
the country illegally and (2) he was the Enrique Perez Ochoa who was wanted in
Mexico. See Jiminez, 224 F.3d at 1248. Kim’s omission of the fact that
Ledgerwood had already seized the two near-identical Mexican birth certificates
was immaterial, as those documents were insufficient on their own to satisfy the
purposes of the warrant and would have only strengthened, not weakened, the
showing of potentially illegal activity. Similarly, the mere fact that Ledgerwood
14
had seen bundled money in a drawer did not convert the investigation into a drug
investigation, so Ochoa has not shown that the officers affirmatively misled the
issuing judge as to the true purpose of the warrant. Accordingly, the court did not
err in finding that the search warrant was valid.
V.
The plain-view doctrine permits a warrantless seizure where the officer is
lawfully located in the place from which the seized object could be plainly viewed
and has a lawful right of access to the object itself. United States v. Smith, 459
F.3d 1276, 1290 (11th Cir. 2006). The officer may seize any item that he has
probable cause to believe is contraband, and any item whose incriminating nature
is immediately apparent. Id. Seizure of items not covered by a warrant does not
invalidate an otherwise valid search if the search and seizure were reasonable
under all the circumstances. United States v. Schandl, 947 F.2d 462, 465 (11th
Cir. 1991). Officers executing a warrant may search as extensively as reasonably
necessary to located the items described in the warrant, and they may break into
locked containers that might contain the items. United States v. Jackson, 120 F.3d
1226, 1228-29 (11th Cir. 1997).
Here, the valid search warrant gave the officers lawful access to the entire
apartment. See Smith, 459 F.3d at 1276. The guns, drugs, and other items were in
15
plain view as the officers searched shelves, drawers, and other places where
documents might have been located. See id. The incriminating nature of these
items would have been immediately apparent. See id. With respect to the drywall
compartment in particular, the district court did not clearly err in crediting Kim’s
testimony that it appeared to be a constructed hiding place and, thus, they thought
additional fraudulent documents might be concealed inside. Having reached that
conclusion, the officers were permitted to break into the compartment. See
Jackson, 120 F.3d at 1228-29. Accordingly, the guns, drugs, and other evidence
were properly seized pursuant to the plain-view doctrine.
VI.
An accused person in custody who has expressed his desire to deal with the
police only through counsel is not subject to further interrogation by the
authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with the
police. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68
L.Ed.2d 378 (1981). Here, the uncontroverted evidence showed that Ledgerwood
and his fellow officer stopped questioning Ochoa immediately when he invoked
his right to counsel, but Ochoa made several unprompted statements despite their
silence. Thus, the officers did not violate Ochoa’s right to counsel, and the
16
statements were admissible under Edwards.
For the foregoing reasons, we affirm Ochoa’s convictions.
AFFIRMED.
17
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611 A.2d 551 (1992)
In re Frederick M. KERR, Respondent.
No. 89-SP-1254.
District of Columbia Court of Appeals.
Argued March 4, 1992.
Decided August 7, 1992.
Elizabeth A. Herman, Asst. Bar Counsel, with whom Wallace E. Shipp, Jr., Acting Bar Counsel, Washington, D.C., at the time the brief was filed, for petitioner, the Office of Bar Counsel.
Joan L. Goldfrank, Executive Atty., Washington, D.C., for the Board on Professional Responsibility.
Raymond O. Gross, Clearwater, Fla., for respondent.
Before TERRY and KING, Associate Judges, and BELSON, Senior Judge.
*552 TERRY, Associate Judge:
This case represents the latest of our continuing efforts to define the term "moral turpitude" as it applies to attorney misconduct. Respondent, an attorney, was convicted of violating 26 U.S.C. § 7206(1) (1988), which makes it a crime to file a false tax return "[w]illfully ... under the penalties of perjury." We must decide whether that crime involves moral turpitude per se. The Board on Professional Responsibility ("the Board") argues that it does not; Bar Counsel, however, maintains that it does. We conclude that the Board's reasoning is more consistent with our case law. We therefore decline to disbar respondent, as Bar Counsel urges, and instead suspend him from the practice of law for one year, as recommended by the Board.
I
Respondent Frederick Kerr, a member of the bar of this court, has admitted that he knowingly filed a false federal income tax return in 1978. During that year he asked his employer to pay $8,000 of his annual salary to his fiancee, Hedy Valenzuela (whom he later married). The employer did as requested and paid Ms. Valenzuela $8,000 of Mr. Kerr's salary. Mr. Kerr did not report that $8,000 as income on his federal tax return for 1978, although Ms. Valenzuela did report it and paid the applicable tax. Kerr later filed an amended tax return declaring the $8,000 as his own income. He paid an additional tax on that sum, along with an assessed penalty.
Mr. Kerr's failure to report as income the $8,000 paid by his employer to Ms. Valenzuela resulted in his indictment for the willful filing of a false tax return. On August 5, 1988, he pleaded guilty in the United States District Court for the Northern District of California to one count of violating 26 U.S.C. § 7206(1).[1] He was later sentenced to pay a fine of $2,000, which he paid on the day of sentencing.
In due course Bar Counsel submitted to this court a certified copy of Kerr's criminal conviction. On November 21, 1989, we issued an order suspending Mr. Kerr from the practice of law in the District of Columbia and directing the Board to institute formal disciplinary proceedings, in the course of which the Board was to determine whether Kerr's crime involved moral turpitude, as that term is used in D.C.Code § 11-2503(a) (1989).[2] In a later order the Board concluded that "a violation of 26 U.S.C. § 7206(1) does not constitute moral turpitude per se" and referred the matter to a hearing committee to make factual findings and a determination of whether or not Kerr's actual conduct involved moral turpitude. After a hearing, the hearing committee found that although Kerr had violated Disciplinary Rule 1-102(A)(4) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation), his filing of a false tax return did not involve moral turpitude.[3] The hearing committee recommended that Kerr be suspended from the practice of law for one year. The Board agreed with the hearing committee and now makes the same recommendation to us.
II
D.C.Code § 11-2502 (1989) empowers this court to discipline members of *553 the bar of the District of Columbia who engage in misconduct. "In the final analysis, the responsibility to discipline lawyers is the court's. The buck stops here." In re Shillaire, 549 A.2d 336, 342 (D.C.1988). While we have established the Board on Professional Responsibility to aid us in our disciplinary function, this court has the sole authority to censure, suspend, or disbar an attorney in the District of Columbia. In re Dwyer, 399 A.2d 1, 11 (D.C.1979). We review de novo any Board determination of moral turpitude, since "the ultimate issue of moral turpitude is one of law rather than of fact." In re Shillaire, supra, 549 A.2d at 343.
D.C.Bar Rule XI, § 10 sets forth the disciplinary steps to be taken when a member of the bar is convicted of a crime. Bar Counsel begins formal disciplinary action by filing a certified copy of the conviction with the Board and this court. If the convicted attorney has committed a "serious crime,"[4] he or she must be immediately suspended (as Mr. Kerr was in November 1989) while the Board conducts further proceedings to determine the ultimate discipline. See Rule XI, § 10(c). The Board then makes a preliminary determination of whether the statutory elements of the convicted attorney's crime involve moral turpitude per se. "The threshold focus ... is on the type of crime committed rather than on the factual context surrounding the actual commission of the offense." In re Colson, 412 A.2d 1160, 1164 (D.C.1979) (en banc) (emphasis in original). If the Board finds that the crime "inherently involves moral turpitude," its inquiry is complete; it "must recommend disbarment." Id.
If the Board's threshold examination of the elements of the crime establishes that it does not involve moral turpitude per se, the Board refers the matter to a hearing committee for an inquiry into the facts surrounding the conviction. See Rule XI, § 10(d). The hearing committee then determines whether or not the attorney's conduct demonstrated moral turpitude. It may hold a hearing, and it must ultimately recommend a sanction to the Board. The Board either accepts that recommendation or rejects it and makes one of its own, then forwards the case to this court for final disposition.
In the instant case, the only contested issue is whether the Board was correct in its threshold determination that a violation of 26 U.S.C. § 7206(1) does not involve moral turpitude per se.[5] The Board held that the elements of filing a false tax return in violation of section 7206(1) do not inherently involve moral turpitude. In reaching that conclusion, the Board relied heavily on this court's decision in In re Shorter, 570 A.2d 760 (D.C.1990), in which we held that a violation of 26 U.S.C. § 7201 (1988), which makes purposeful evasion of the payment of taxes a crime, does not involve moral turpitude per se.[6] Bar Counsel maintains that violating 26 U.S.C. § 7206(1) does inherently involve moral turpitude, in accordance with his general view that the filing of a false tax return is essentially perjury. Since this court held in In re Meisnere, 471 A.2d 269 (D.C.1984), that perjury is a crime which involves moral turpitude per se, Bar Counsel argues that the elements of 26 U.S.C. § 7206(1) must similarly involve moral turpitude.
Looking strictly at the elements of the offense and not the facts surrounding Mr. Kerr's conviction, as Colson and other cases require, this court must make its own determination of whether a violation of section 7206(1) inherently involves moral turpitude. That term has "less than a finite definition," In re Colson, supra, 412 A.2d at 1167, and our reliance on the dictionary *554 to ascertain its meaning has not always been too helpful. See id. at 1168 (citing two dictionary definitions). At best, we have concluded that "[i]f a crime is one involving moral turpitude, it is because the act denounced by the statute offends the generally accepted moral code of mankind." Id. That precept does not offer much guidance in this case, in which we must deal with a statute providing that any person who "[w]illfully makes and subscribes any return ... which contains or is verified by a written declaration that it is made under the penalties of perjury, and which [that person] does not believe to be true and correct as to every material matter" is guilty of a felony.
We turn, consequently, to the case law, on which both the Board and Bar Counsel rely. The Board regards 26 U.S.C. § 7206(1) as a tax evasion statute; Bar Counsel, on the other hand, interprets it as closer to a perjury statute. That distinction defines their respective arguments. Since this court held in Shorter that tax evasion does not involve moral turpitude per se and in Meisnere that perjury does involve moral turpitude per se, our placement of 26 U.S.C. § 7206(1) in one category or the other tax evasion or perjury would begin and end our inquiry. Unfortunately, our task is not that easy, for section 7206(1) does not fit neatly into either category.
We put to one side the question of whether a violation of 26 U.S.C. § 7206(1) is a lesser included offense of the crime defined in 26 U.S.C. § 7201, the general tax evasion statute which was at issue in In re Shorter, supra.[7] Some courts have held that whether the willful filing of a false tax return is a lesser included offense of tax evasion depends on the facts of each case.[8] But that analysis may no longer be valid in light of Schmuck v. United States, 489 U.S. 705, 715-721, 109 S.Ct. 1443, 1450-1453, 103 L.Ed.2d 734 (1989), which rejected a fact-based test in favor of an "elements test" for determining whether one offense is necessarily included in another. Whether prior case law on this point survives Schmuck is a question we will leave for the federal courts. Besides, the Board in this case did not really say that filing a false tax return (section 7206(1)) was a lesser included offense of tax evasion (section 7201). Rather, it adopted the position of the hearing committee, which said simply that tax evasion was "the more serious offense" without discussing whether either was included within the other.
In any event, Shorter is instructive for our purposes here. We held in Shorter that tax evasion in violation of section 7201 "does not, per se, involve an act of moral turpitude." 570 A.2d at 766. Adverting to definitions of moral turpitude which speak of "baseness, vileness, or depravity," we went on to quote from a fifty-year-old federal tax evasion case:
We are not prepared to rule that an attempt to evade the payment of a tax... wrong as it is, unlawful as it is, immoral as it is, is an act evidencing baseness, vileness, or depravity of moral character. The number of men who have *555 at some time sought to evade the payment of a tax or some part of a tax to a taxing authority is legion. Any man who does that should be punished civilly or by criminal sentence, but to say that he is base or vile is to misuse words.
United States v. Carrollo, 30 F.Supp. 3, 7 (W.D.Mo.1939), cited in Shorter, supra, 570 A.2d at 766. We think that this language applies equally to the filing of a false tax return. We agree with the Board that the filing of a false tax return is close in character to tax evasion; as White, Kaiser, and other cases recognize, one often constitutes the other. Given our holding in Shorter that tax evasion does not involve moral turpitude per se, it would be difficult for us to hold exactly the opposite with respect to filing a false tax return.
In re McConnell, supra note 6, is consistent with Shorter and with the Board's position here. In McConnell we adopted the Board's holding that aiding and abetting two other persons in the filing of false tax returns, in violation of 26 U.S.C. § 7206(2), "was not one of the narrow class of crimes which on their face involve moral turpitude...." 502 A.2d at 455 (emphasis added). The Board did go on to find that the circumstances surrounding McConnell's conviction, particularly the fact that the tax returns at issue were not only false but fraudulent, added an element of moral turpitude to his actions. In the instant case, however, the hearing committee found that there was no evidence of fraudulent intent, a motive of tax evasion, any "calculated attempt to harm others," or "intentional dishonesty for personal gain," citing Shorter, supra, 570 A.2d at 765-766. Although the hearing committee said that it "would not require much evidence beyond the minimum facts necessary for conviction in order to tip the scale toward a finding of moral turpitude," it ruled that even this very low evidentiary threshold had not been crossed. In the committee's words, "The record establishes only that respondent knowingly filed a false income tax return under penalties of perjury no more." The Board adopted the hearing committee's findings and conclusions.
Bar Counsel's assertion that the filing of false tax returns is more analogous to perjury than it is to tax evasion is unpersuasive. While the word "perjury" is contained in 26 U.S.C. § 7206(1),[9] the fact remains that Mr. Kerr was not charged with perjury, even though he could have been.[10] Rather, for reasons not revealed by the record, he was charged only with the willful filing of a false tax return. We agree with the Board that this is a critical distinction. Because Mr. Kerr could have been charged with perjury, but was not, we will not treat the crime with which he was charged as the equivalent of perjury. Cf. In re Hutchinson, 534 A.2d 919, 922 (D.C. 1987) (en banc).[11] Indeed, the elements of *556 these two offenses are completely different, as a comparison of 18 U.S.C. § 1621 and 26 U.S.C. § 7206(1) will show. The Board points out that, depending on the relevant facts, a person may be convicted of violating one statute but not the other. For this reason Meisnere does not control this case as Bar Counsel implicitly acknowledges, for he argues from Meisnere only by analogy.
Bar Counsel maintains that this court held in both In re Price, No. M-119-82 (D.C. November 3, 1982), and In re Downes, No. M-108-82 (D.C. September 8, 1982), two unpublished disciplinary opinions,[12] that a violation of 26 U.S.C. § 7206(1) involves moral turpitude per se. A close reading of those opinions, however, yields a different conclusion. In each case the Board referred the matter to a hearing committee for factual findings as to the nature of the alleged misconduct exactly what the Board did here. Because those findings were presumably before both the Board and this court for review, we think it reasonable to infer that the court's conclusion that moral turpitude was involved in Price and Downes was not a per se determination.
We conclude, primarily on the basis of In re Shorter, that the offense proscribed by 26 U.S.C. § 7206(1) does not involve moral turpitude per se, and that Mr. Kerr is therefore not required to be disbarred under D.C.Code § 11-2503(a). Without examining the facts of a respondent's conduct, we cannot classify the filing of a false tax return as an offense involving moral turpitude. It is fairly easy to imagine circumstances in which an attorney's violation of section 7206(1) would be "[a]n act of baseness, vileness, or depravity in the ... social duties which a man owes to his fellow men or to society in general...." In re Colson, supra, 412 A.2d at 1168 (citation omitted). But it is also easy to posit a situation in which the willful filing of a false tax return does not sink to the level of moral turpitude. Since the facts often make all the difference in cases involving section 7206(1), a finding of moral turpitude per se would be unfairly inflexible. As we said in a footnote in Colson:
[T]here will be situations in which the question whether a crime inherently involves moral turpitude is very difficult, and that in such cases the Board accordingly will want to err on the side of admitting evidence that goes to the moral implications of the particular respondent's acts, as a way of determining whether his particular offense involved moral turpitude, even if the crime cannot be said per se to do so.
Colson, supra, 412 A.2d at 1165 n. 10 (emphasis in original). Today we follow the course charted in Colson and, if we err at all, "err on the side of admitting evidence" of this particular respondent's acts.
III
The Board has recommended that Mr. Kerr be suspended for one year from the practice of law. It also urges that whatever sanction we impose on Mr. Kerr be retroactive to November 21, 1989, the date of his original suspension under Rule XI, § 10(c). Mr. Kerr does not contest either recommendation, and we accept both.
It is therefore ORDERED that Frederick M. Kerr be, and hereby is, suspended from the practice of law in the District of Columbia for a period of one year, effective November 21, 1989.
NOTES
[1] 26 U.S.C. § 7206(1) provides:
Any person who ... [w]illfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter ... shall be guilty of a felony....
[2] Section 11-2503(a) mandates the disbarment of any member of our bar who "is convicted of an offense involving moral turpitude...." Disbarment under section 11-2503(a) is different from "ordinary" disbarment. For a brief discussion of the difference. see In re Rosenbleet, 592 A.2d 1036, 1037 n. 3 (D.C.1991).
[3] The hearing committee found that Kerr's actions did not demonstrate fraudulent intent or intentional dishonesty for personal gain. Bar Counsel asserted that Kerr understated his income in order to reduce his obligation under a property settlement with his estranged wife. The hearing committee, however, found the record "unsatisfying" on the issue of Kerr's motive for the false filing.
[4] The term "serious crime" includes all felonies as well as a number of other crimes described in D.C.Bar Rule XI, § 10(b). See In re Hutchinson, 474 A.2d 842 (D.C.1984).
[5] There is no dispute that the particular facts surrounding Mr. Kerr's filing of a false tax return do not establish moral turpitude. See note 3, supra.
[6] The Board also relied on this court's decision in In re McConnell, 502 A.2d 454 (D.C.1985), in which we held that a violation of 26 U.S.C. § 7206(2) (1988), which proscribes "[w]illfully aid[ing] or assist[ing] in" the filing of a false tax return, is not an offense inherently involving moral turpitude.
[7] The Board points to federal case law which interprets section 7206(1) as defining a lesser included offense of tax evasion under section 7201. See United States v. Kaiser, 893 F.2d 1300 (11th Cir.1990); United States v. White, 417 F.2d 89 (2d Cir.1969), cert. denied, 397 U.S. 912, 90 S.Ct. 910, 25 L.Ed.2d 92 (1970); United States v. Lodwick, 410 F.2d 1202 (8th Cir.), cert. denied, 396 U.S. 841, 90 S.Ct. 105, 24 L.Ed.2d 92 (1969); Gaunt v. United States, 184 F.2d 284 (1st Cir. 1950), cert. denied, 340 U.S. 917, 71 S.Ct. 350, 95 L.Ed. 662 (1951). The Board argues, in effect, that since this court decided in Shorter that the greater offense did not inherently involve moral turpitude, it would be anomalous to hold otherwise with respect to the lesser offense.
[8] A violation of section 7206(1) requires the willful signing of a false tax return under penalty of perjury, even if the reason for the signing is not to evade taxes. But such a violation may be a lesser included offense of tax evasion under section 7201 if the filing of the false return is done with an intent to evade. As the Second Circuit observed in United States v. White, supra note 7, "the perjury offenses charged under § 7206 may separately form the basis for an indictment; but where proof of willfully attempted evasion under § 7201 also proves, as an incident to the willful evasion, the preparing and subscribing of a fraudulent return, the specific form of fraudulent conduct merges into the inclusive fraud charged under § 7201." 417 F.2d at 94.
[9] We are aware that 26 U.S.C. § 7206(1) and its predecessors have been regarded as perjury statutes by several courts. See United States v. Marashi, 913 F.2d 724, 736 (9th Cir.1990) ("Section 7206(1) is a perjury statute; it is irrelevant whether there was an actual tax deficiency"); United States v. Romanow, 509 F.2d 26, 28 (1st Cir.1975) ("We have said that the primary purpose of section 7206(1) is to impose the penalties of perjury" (citations and internal quotation marks omitted)); United States v. White, supra note 7, 417 F.2d at 94 ("The offense charged is perjury, the operative element is the signature under oath, and the felony penalties reflect the seriousness of this method of committing fraud"); Kolaski v. United States, 362 F.2d 847, 848 (5th Cir.1966) ("The statute here involved is a perjury statute. As in the general statute on perjury ... the gist of the offense is a false statement, willfully made, of a material matter"); Gaunt v. United States, supra note 7, 184 F.2d at 288 (the purpose of the statute "is to impose the penalties for perjury upon those who willfully falsify their returns regardless of the tax consequences of the falsehood").
[10] The federal perjury statute, 18 U.S.C. § 1621 (1988), permits anyone who, in any declaration or statement "under penalty of perjury ... willfully subscribes as true any material matter which he does not believe to be true" to be charged with perjury.
[11] The attorney in Hutchinson pleaded guilty to a misdemeanor not involving moral turpitude, although he could have been charged with and presumably convicted of more serious offenses, including perjury. See 534 A.2d at 924. The Board later found that his overall conduct, but not the specific crime of which he was convicted, involved moral turpitude in violation of a disciplinary rule. However, because "the finding of moral turpitude was unrelated to Hutchinson's criminal conviction," we did not have to decide whether he was subject to disbarment under D.C.Code § 11-2503(a). Id. at 922 n. 5.
[12] See D.C.Ct.App.R. 28(h).
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364 B.R. 896 (2007)
In re ERIE POWER TECHNOLOGIES, INC., Debtor.
Erie Power Technologies, Inc., by Pascarella & Wiker LLP as Plan Administrator, Plaintiff,
v.
The Shaw Group, Inc., Defendant.
Bankruptcy No. 03-12126, Adversary No. 05-1285.
United States Bankruptcy Court, W.D. Pennsylvania.
March 29, 2007.
*897 Kimberly A. Coleman, Pittsburgh, PA, for Plaintiff.
Mark A. Lindsay, Pittsburgh, PA, for Defendant.
OPINION
WARREN W. BENTZ, United States Bankruptcy Judge.
Before the Court is a Motion for Summary Judgment filed by Defendant, Shaw Group ("Shaw") on the Plaintiffs claims under § 547 and § 550 of the Bankruptcy Code for recovery of an alleged preference.[1] The Complaint seeks to recover an alleged preference in the amount of $320,000 paid to Shaw by Erie Power Technologies, Inc. ("Debtor") on June 12, 2003, within 90 days of the August 29, 2003 bankruptcy filing date (the "Petition Date").
Shaw asserts that its claim is secured by virtue of a artisan's lien that it held under South Carolina common law in goods that it processed for the Debtor and since its claim was secured in the goods, the transfer of funds from the Debtor to Shaw did not enable Shaw to receive more than it would have received in a Chapter 7 bankruptcy case. Therefore, Shaw posits that Erie Power Technologies, Inc., by Pascarella & Wiker LLP as Plan Administrator, (the "Plaintiff') cannot satisfy § 547(b)(5) and Shaw is entitled to judgment as a matter of law.
Plaintiff posits that the South Carolina common law at issue was superceded by statute; that the statute does not apply to goods of this nature; and that even if Shaw did possess a common law lien on the goods, there are factual issues as to the value of the goods at the filing date and whether there were prior liens against the goods that would have priority over Shaw's artisan's lien.
Facts
Shaw is engaged in the steel fabrication business and has an operating facility in Laurens, South Carolina. The Debtor was a party to certain Master Agreements with Duke Energy North America, LLC ("Duke Energy") for the purchase and sale of certain heat recovery steam generators. Pursuant to the Master Agreements between Duke Energy and the Debtor, the Debtor was to design, develop and sell to Duke Energy certain heat recovery steam generators for thirteen power generator projects being undertaken by Duke Energy. Shaw and the Debtor entered into a contract (the "Contract") in which Shaw agreed to provide fabrication services on steel piping (the "Goods") in accordance with the Debtor's fabrication specification (the "Fabrication Services"). The work was related to one of the Duke Energy projects. The Goods to be fabricated were delivered to Shaw at its South Carolina facility by the Debtor and all of the fabrication services were performed in South Carolina. The entire Contract price was attributable to Fabridation Services only. Shaw did not supply any of the Goods.
The Contract price was originally $800,000.[2] The original Contract price was *898 to be paid in the form of an initial down payment of $160,000, followed by four "milestone" payments. The milestone payments were to be paid when 25%, 50%, 75%, and 100% of the work by Shaw was completed." The final payment was due prior to final shipment.
The Debtor timely made the required down payment of $160,000 at the commencement of the Contract. Shaw provided Debtor an invoice for the second installment under the Contact (the "Milestone 2 Invoice") when 25% of the work was completed for the amount of $160,000 on March 12, 2003. The payment terms on the Milestone 2 Invoice were "Net 14." Shaw provided an invoice for the third installment under the Contract (the "Milestone 3 Invoice") when 50% of the work was completed for the amount of $160,000 on April 15, 2003. The payment terms on the Milestone 3 Invoice were also "Net 14." The Debtor made a payment to Shaw in the amount of 8320,000 on June 12, 2003 in payment of the Milestone 2 Invoice and the Milestone 3 Invoice. The June 12, 2003 payment of $320,000 is the transfer that the Plaintiff seeks to recover in this action as a preference.
The Debtor made no payments on the contract subsequent to the June 12, 2003 payment. Shaw completed the Fabrication Services required under the Contract.
Debtor filed its voluntary Petition under Chapter 11 on October 21, 2004. The Goods remained in Shaw's possession in South Carolina until approximately 6 months after the Petition Date when, pursuant to a Stipulation between the Debtor, Shaw, Duke Energy and Piping Technologies & Products, Inc., the balance due under the Contract was paid to Shaw from certain retained funds held by Duke Energy so that Shaw would release the Goods for use in Duke Energy's project.
Summary Judgment Standard
Fed.R.Civ.P. 56(c) made applicable to these proceedings pursuant to Fed. R.Bankr.P. 7056, provides that summary judgment "shall be rendered forthwith 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 the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c).
Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n. 1 (3d Cir.2001) citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Discussion
1. Applicable Law.
The parties' rights in and to property in bankruptcy are determined pursuant to applicable non-bankruptcy law pertaining to the determination of such rights. Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979).
The Goods were delivered to Shaw by the Debtor to Shaw's fabrication facility in Laurens, South Carolina. All Fabrication Services required under the Contract were performed by Shaw at its Laurens, South Carolina facility, and the Goods remained in the possession of Shaw at its Laurens, South Carolina facility from the time the Goods were received by Shaw until said Goods were delivered to Duke Energy. Shaw's rights in the Goods must therefore be determined according to South Carolina law.
*899 2. Common Law Artisan's Lien.
Under South Carolina law, a creditor has and maintains a common law lien on goods in its possession upon which the creditor has added value. Welcome Home Center, Inc. v. Central Chevrolet Co., Inc., 272 S.C. 166, 249 S.E.2d 896 (S.C.1978) king Clark Bros & Co. v. Pou, 20 F.2d 74 (4th Cir.1927); Bouknight v. Headden, 188 S.C. 300, 199 S.E. 315 (S.C.1938); In re F.W. Poe Manufacturing Co., 96 S.C. 195, 80 S.E. 194 (S.C.1913).
The facts of the instant matter operate to create a lien in favor of Shaw. Shaw maintained possession of the Goods at all relevant times and did not relinquish possession until it was paid in full approximately 6 months after the Petition Date. Shaw added value to the Goods by performing services upon them. Shaw was not paid in full and, therefore, had the right to retain the Goods until it was paid. Shaw's common law artisan's lien has priority over any other liens in the Goods. S.C.Code Ann., § 36-9-333 (1976).
The Goods had a value at least equal to the value of the Fabrication Services provided by Shaw which the Debtor agreed by contract was the Initial Contract price of $800,000. The value of the Goods was further evidenced by the terms of the Stipulation where it was agreed between the Debtor, Shaw, and Duke Energy that the full Contract Price was due Shaw for the Goods. Because Shaw, by virtue of its common law lien, had a secured interest in the Goods, the $320,000' transfer at issue did not enable Shaw to receive more that it would have received in a Chapter 7 bankruptcy. See In re Tower Air, Inc., 319 B.R. 88 (Bankr.D.De1.2004); In re Lott, 196 B.R. 768 (Bankr.W.D.Mich.1996); and In re Evans Temple Church v. Carnegie Body Co., 55 B.R. 976 (Bankr.N.D.Ohio 1986).
Accordingly, Plaintiff cannot prove an essential element of § 547(b) and its preference claim must fail.[3] An appropriate Order will be entered.
ORDER
This 29 day of March, 2007, in accordance with the accompanying Opinion, it shall be, and hereby is, ORDERED that the Motion for Summary Judgment filed by the Shaw Group, Inc. is GRANTED and the Complaint filed by Erie Power Technologies, Inc., by Pascarella & Wiker, LLP, LLP, Plan Administrator, is DISMISSED.
NOTES
[1] All references to Code sections are to Title 11 of the United States Code unless otherwise indicated.
[2] The price was later increased to $882,219.20.
[3] § 547(b) of the Bankruptcy Code provides, in pertinent part, that: Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property
(1) to or for the benefit of a creditor;
(2); for or on account of an antecedent debt;
(3) made wile the debtor was insolvent;
(4) made on or within 90 days before the date of the filing of the petition;
(5) that enables the creditor to receive more than it would receive if
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
11 U.S.C. § 547(b).
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/06/2017 08:11 AM CDT
- 500 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. HOCH
Cite as 297 Neb. 500
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. R ichard H. Hoch, respondent.
___ N.W.2d ___
Filed August 11, 2017. No. S-17-588.
Original action. Judgment of disbarment.
Heavican, C.J., Wright, Miller-Lerman, Cassel, and
Stacy, JJ.
Per Curiam.
INTRODUCTION
This case is before the court on the voluntary surrender of
license filed by respondent, Richard H. Hoch, on June 5, 2017.
The court accepts respondent’s voluntary surrender of his
license and enters a judgment of disbarment.
STATEMENT OF FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on July 2, 1964. On March 3, 2016, respondent
filed a voluntary surrender of license to practice law, in which
he stated that on August 13, 2016, he received notice from the
Counsel for Discipline of an overdraft on his trust account.
He admits that he misapplied client funds being held in his
trust account and used them to cover office expenses, in vio-
lation of Neb. Ct. R. of Prof. Cond. § 3-501.15. Respondent
stated that he freely, knowingly, and voluntarily chooses
not to contest the truth of the suggested allegations made
- 501 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. HOCH
Cite as 297 Neb. 500
against him. He also stated that he freely, knowingly, and vol-
untarily surrenders his privilege to practice law in the State of
Nebraska; waives his right to notice, appearance, or hearing
prior to the entry of an order of disbarment; and consents to
the entry of an immediate order of disbarment.
ANALYSIS
Neb. Ct. R. § 3-315 of the disciplinary rules provides in
pertinent part:
(A) Once a Grievance, a Complaint, or a Formal
Charge has been filed, suggested, or indicated against a
member, the member may voluntarily surrender his or
her license.
(1) The voluntary surrender of license shall state in
writing that the member knowingly admits or knowingly
does not challenge or contest the truth of the suggested
or indicated Grievance, Complaint, or Formal Charge
and waives all proceedings against him or her in connec-
tion therewith.
Pursuant to § 3-315 of the disciplinary rules, we find that
respondent has voluntarily surrendered his license to practice
law and knowingly does not challenge or contest the truth of
the suggested allegations made against him. Further, respond
ent has waived all proceedings against him in connection
therewith. We further find that respondent has consented to
the entry of an order of disbarment.
CONCLUSION
Upon due consideration of the court file in this matter, the
court finds that respondent has stated that he freely, know-
ingly, and voluntarily admits that he does not contest the sug-
gested allegations being made against him. The court accepts
respondent’s voluntary surrender of his license to practice
law, finds that respondent should be disbarred, and hereby
orders him disbarred from the practice of law in the State of
- 502 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. HOCH
Cite as 297 Neb. 500
Nebraska, effective immediately. Respondent shall forthwith
comply with all terms of Neb. Ct. R. § 3-316 (rev. 2014) of
the disciplinary rules, and upon failure to do so, he shall be
subject to punishment for contempt of this court. Accordingly,
respondent is directed to pay costs and expenses in accordance
with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and
Neb. Ct. R. §§ 3-310(P) (rev. 2014) and 3-323 of the disci-
plinary rules within 60 days after an order imposing costs and
expenses, if any, is entered by the court.
Judgment of disbarment.
K elch and Funke, JJ., not participating.
| {
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741 N.W.2d 352 (2007)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Orlando D. MAY, Defendant-Appellant.
Docket No. 134947. COA No. 277116.
Supreme Court of Michigan.
November 29, 2007.
On order of the Court, the application for leave to appeal the August 8, 2007 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
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94 B.R. 428 (1988)
In re AMWC, INC., dba American Wholesale Club, Debtor.
AMWC, INC., dba American Wholesale Club, Plaintiff,
v.
GENERAL ELECTRIC, et al., Defendants.
Bankruptcy No. 388-33711 RCM-11, Adv. No. 388-3487.
United States Bankruptcy Court, N.D. Texas, Dallas Division.
December 20, 1988.
Keith A. Langley, Dallas, Tex., for plaintiff.
S. Barcus Hunter, Ft. Worth, Tex., for defendants.
MEMORANDUM OPINION
ROBERT McGUIRE, Chief Judge.
This matter comes before the Court on briefs in an adversary proceeding filed to *429 recover a payment made by debtor AMWC, Inc. d/b/a American Wholesale Club ("AMWC") to defendant General Electric Major Appliance ("GE") as preferential pursuant to 11 U.S.C. § 547. This Court has jurisdiction over the controversy pursuant to 28 U.S.C. § 157(b)(2)(F) as a core proceeding. The following constitute the Court's findings of fact and conclusions of law as required by Bankruptcy Rule 7052.
On March 21, 1988, AMWC delivered its Check No. 60226 in the amount of $10,261 payable to GE on an antecedent debt. The check was honored on March 30, 1988. This debtor filed its Voluntary Petition for Relief under Chapter 11 of the Bankruptcy on June 21, 1988. Consequently AMWC's check was delivered 92 days pre-petition but was not honored until 83 days before the bankruptcy filing. Since a payment can be avoided if made within the 90 days preceeding the filing of the bankruptcy petition under section 547(b)(4)(A), the issue facing the Court involves whether a transfer occurred on the payment date or the delivery date of the check. The parties stipulated that this was the sole issue for the Court to decide.
As pointed out in Lurey, Preferences in 9th Annual Bankruptcy Litigation Institute 423-426 (1988) ("Lurey"), the courts are split as to the method of determining whether a payment by check occurred within the preference period. Lurey expresses the opinion that the majority of Bankruptcy Courts addressing the issue have held generally that the date of acceptance by the drawee, rather than the date of receipt of the check by the creditor is controlling. For the same opinion, see Note, `Transfers by Check': The 90-Day Rule of Preference Recovery Under Section 547(b) of the Bankruptcy Code, 1987, Duke L.J. 712, 723 ("Duke L.J.") Some of the more recent cases so holding are: In re Sunup/Sundown, Inc., 65 B.R. 696 (Bankr.S. D.Fla.1986); Matter of Georgia Steel, Inc., 56 B.R. 509 (Bankr.M.D.Ga.1985), rev'd on other grounds, 66 B.R. 932 (M.D.Ga.1986); Sweetapple Plastics, Inc. v. Philup Shuman & Sons, Inc., 77 B.R. 304, 308, 310 (Bankr.M.D.Ga.1987); In re W & T Enterprises, Inc., 84 B.R. 838 (M.D.Fla.1988); Cimmarron Oil Co. v. Schlumberger Well Services, Inc., 88 B.R. 103 (N.D.Tex.1987). Also see, Nicholson v. First Investment Co., 705 F.2d 410, 412-13 (11th Cir.1983) and Fitzpatrick v. Philco Finance Corp., 491 F.2d 1288 (7th Cir.1974), both of which were decided under the former Bankruptcy Act.
The Ninth Circuit has held that the date of transfer is the date of delivery of the check. In re Wolf & Vine, Inc., 825 F.2d 197, 200-02 (9th Cir.1987); In re Kenitra, Inc., 797 F.2d 790, 791 (9th Cir.1986), cert. denied subnom Robert K. Morrow, Inc. v. Agri-Boef Co., 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 980 (1987). To the same effect, also see, In re Amarex, Inc., 74 B.R. 378 (Bankr.W.D.Mo.1987), aff'd, 88 B.R. 362 (W.D.Okla.1988); In the Matter of Global Airways International Corp., 80 B.R. 990 (Bankr.W.D.Mo.1987); In re FHL, Inc., 91 B.R. 288 (Bankr.D.N.J.1988) (The court expresses the opinion that now the majority of circuits favor the delivery rather than the honor date); In re White River Corp., 799 F.2d 631 (10th Cir.1986) (a § 547(c)(2) case).
Lurey, points out that a third rule applied by a number of courts concludes, if a check is honored within ten days after it is delivered to the creditor, the transfer is deemed made when the check is delivered, and that if the check is mailed, then the date of mailing is the date of delivery. See, Lurey, supra, at 425. In re Sider Ventures & Services Corp., 47 B.R. 406, 407 (S.D.N.Y.1985)[1]In re Advance Industries, Inc., 63 B.R. 677 (Bankr.N.D.Iowa 1986); In re Blanton Smith Corp., 37 B.R. 303, 308-09 (Bankr.M.D.Tenn.1984). Courts applying this theory base their decisions on § 547(e)(2)(A), which provides that a transfer is considered made at the time it takes effect if the transfer is perfected *430 within ten days. But see, In re Walker Industrial Auctioneers, Inc., 45 B.R. 452, 455 (Bankr.D.Ore.1984) and In re Insulation Materials, Inc., 47 B.R. 832 (Bankr.E. D.Tenn.1985). See also, Note, Timing of Payments by Check Under § 547 of the Bankruptcy Code, 7 Cardoza L.R. 887 (1986) ("Timing of Payments by Check"); Ellis, Preferential Payments by Check: At What Point is Payment Made?, 16 UCC L.J. 46 (1983); See, Duke L.J., supra, at 712.
What constitutes a "transfer" under § 547(b) and when it is complete is a federal question since it arises under a federal statute designed to have uniform application. McKenzie v. Irving Trust Co., 323 U.S. 365, 370, 65 S.Ct. 405, 408, 89 L.Ed. 305, 309 (1945); In re Nucorp Energy, Inc., 92 B.R. 416 (9th Cir. BAP 1988). The McKenzie court went on to state:
In the absence of any controlling federal statute, a creditor or bona fide purchaser could acquire rights in the property transferred by the debtor, only by virtue of a state law. And hence § 60a's `apparent command is to test the effectiveness of a transfer, as against the trustee, by the standards which applicable state law would enforce against a good faith purchaser.' . . . thus adopts state law as the rule of decision. The state standards which control the effectiveness of a transfer likewise determine the precise time when a transfer is deemed to have been made or perfected.
McKenzie, 323 U.S. at 370, 65 S.Ct. at 408, 89 L.Ed. at 309.
Transfer is defined in the Bankruptcy Code as "every mode, direct or indirect, absolute or conditional, voluntary or involuntary of disposing of or parting with property . . ." 11 U.S.C. § 101(50). As a bankruptcy court in Minnesota noted "the key words in this definition are disposing of or parting with property." (Emphasis added.) In re Ramy Seed Co., 57 B.R. 425, 429 (Bankr.D.Minn.1985).[2] The Court must determine whether the delivery of a check, as opposed to honoring of the check, is an actual "parting with property".
The U.C.C. provides
[a] check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.
Tex. Bus. Comm.Code § 3. 409(a) (Vernon 1968) (Tex. U.C.C.). An examination of the legislative history of the enactment of the Bankruptcy Code reveals that one purpose in revising the Bankruptcy Act was the adoption of the U.C.C. in nearly all jurisdictions. H.R.Rep. No. 595, 95th Cong., 1st Sess., reprinted in 5 U.S.Code Cong. & Admin.News 1978 at 5787, 5966. ("House Report") The UCC used some of the same terms as the old Bankruptcy Act but gave the terms new meanings. As the Code legislative history states, "[i]ts time to bring the two statutes into harmony." Id. at 6139. The Duke L.J. states:
The UCC provides that a check does not itself operate as an assignment of funds. Furthermore, the UCC states that the obligation for which the check is given is not discharged until it is presented and accepted by the bank. Thus, under accepted commercial practice, a transfer by check is not completed until the check is honored by the bank. In itself, this suggests that for the purpose of section 547(b) the date of honor should be used. Any deviation from the accepted practice in commercial law as codified by the UCC should be explicitly expressed by Congress or supported by compelling policy.
Those in favor of using the date of delivery as the date of transfer sometimes argue that commercial law supports using the delivery date because `in the commercial world receipt of a check, as distinguished from the date of payment of an obligation.' In reality, this argument provides only illusory support for using the delivery date as the date of transfer. The UCC explicitly states that the obligation for which a check is given *431 is not discharged until it is presented and accepted by the bank. Whether or not receipt of a check is customarily looked upon as the date of payment, custom has been replaced by statute. Indeed, commercial law and pragmatic concerns of protecting the integrity of the bankruptcy process support the argument that the date of honor should constitute a transfer under section 547(b). . . .
Duke L.J., supra, at 717-18. (Emphasis supplied).
Some commentators have concluded that a delivery of a check does not equal a transfer of funds. Bienenstock, Bankruptcy Reorganization 392, n. 113 (1987). Bienenstock says "in the case of checks, there is no transfer until the bank honors the check." Id.[3] White and Summers, in their classic treatise on the UCC, state that a check is not an assignment of funds but "merely represents the customer's order upon his bank to pay a certain sum . . ." White & Summers, Uniform Commercial Code § 17-7 at 692 (2d ed. 1980). Courts have supported this view. In the Matter of Fasano/Harriss Pie Co., 43 B.R. 871, 873-74 (Bankr.W.D.Mich.1984) aff'd 71 B.R. 287 (W.D.Mich.1987). The Court stated that "a check simply presents an order to the drawee bank to make payment and does not rest in the payee any title to or interest in the funds of the drawee bank until the check is honored". White and Summers also note circumstances that could happen to funds in an account between the time a check is issued and the time it is presented for payment such as garnishment or a customer's stop payment order. Id. The courts holding that delivery by check is a transfer account for these circumstances by holding that the delivery date is the critical date only if the check is honored within the statutory period. In re Wolf & Vine, 825 F.2d 197, 202 (9th Cir. 1987).
The majority of recent Circuit courts have held that the check delivery date controls for purposes of the ordinary course of business exception. In re Continental Commodities, 841 F.2d 527 (4th Cir.1988); In re Wolf & Vine, 825 F.2d 197 (9th Cir.1987); In re White River, 799 F.2d 631 (10th Cir.1986); See also O'Neill v. Nestle Libbys PR Inc., 729 F.2d 35 (1st Cir.1984); Shamrock Golf Co. v. Richcraft, Inc., 680 F.2d 645 (9th Cir.1982).
In light of the more recent circuit cases on § 547(c)(2), it is appropriate to reexamine the § 547(b)(4)(A) issue. In this case a determination of the transfer date for the preference period (§ 547(b)(4)(A)), and not the ordinary course of business exception (§ 547(c)) is at issue. Commentators recognize that the provisions were enacted for different policy reasons. See, Timing of Payments by Check, supra, at 888. Such article concludes that payments made by check in the context of § 547(b)(4)(A) should be deemed to occur when the check is honored, whereas for § 547(c) purposes, the ordinary course of business exception, payment should be deemed to occur when the check is delivered, not when it is honored. Id. at 888. The author states, "[t]he different timing rules are necessary because the two Code sections advance very different policy concerns". Id.[4] The ordinary course of business exception was enacted to "leave undisturbed normal financial relations, because it does not detract from the general policy of the preference section to discourage unusual action by either the debtor or his creditors during the debtor's slide into bankruptcy." House Report, supra, at 5787, 6328. The general preference section was enacted to insure that equality of distribution between the *432 various creditors and to discourage the race to the courthouse. Id. at 6138.
The different policy factors led the Ninth Circuit Bankruptcy Appellate Panel to opine in dicta, with a qualifying concurring opinion dissenting on this issue, that cause exists for distinguishing the two provisions and establishing different dates for both. In re Nucorp Energy, Inc., 92 B.R. 416 (9th Cir. BAP 1988) The BAP noted that while the transfer on delivery rule furthers the policies behind the ordinary course of business exception because it encourages merchants to extend new credit to financially troubled businesses, this rationale simply does not apply to the general preference section. The majority opinion states that a transfer on delivery rule for the purposes of section 547(b)(4)(A) would not encourage merchants to deal with an insolvent, or financially depressed entity. Also, the BAP noted that date of honor provides a more accurate calculation[5] because delivery date rule could cause confusion if the check was post-dated or if the delivery was made to a third party rather than the creditor. The BAP dicta concluded that the transfer on the date of delivery is appropriate for the ordinary course of business exception while the transfer for the purposes of section 547(b)(4)(A) occurs when the bank honors the check. In Matter of Fasano/Harriss Pie Co., 43 B.R. at 871, the court held that, though the acceptance and honor of a check by a payee bank is the "transfer" contemplated by § 547(b)(4), the date of the delivery of the check to the debtor is the "transfer" contemplated for the purpose of the exceptions under § 547(c)(1), (2), and (4). Congress did not necessarily contemplate a unitary concept of transfer for all parts of § 547. In re Gold Coast Seed Co., 30 B.R. 551, 553 (BAP 9th Cir.1983). The Duke L.J. article discusses the differing policy concerns of § 547(b) and (c), and concludes that such policy considerations do justify differing determinations as to the date of transfer. See, Duke L.J., supra, at 724. Sections 547(c)(1) and (c)(2) benefit the debtor and "`are designed to encourage creditors to deal with a failing business and to protect ordinary business transactions'" in order to prevent the debtor's slide into bankruptcy.
. . . Thus, under section 547(c), `Congress intended to create an exception to the general rule that a check is not a transfer until it is honored by the drawee bank.'
Section 547(b) is far more concerned with the welfare of creditors. It addresses the depletion of the debtor's estate in order to avoid transactions to favored creditors. To be avoidable, a preferential transfer must occur in a credit transaction; transfers must be in payment of an already existing debt and such transfer must deplete the bankruptcy estate. No policy is promoted by treating a transfer as cash for purposes of avoiding transfers to favored creditors. Unlike section 547(c), no justification exists for deviating from accepted commercial practice or for deviating from the general rule that a check is not a transfer until it is honored. Nor has Congress explicitly expressed any intention of creating an exception or deviation for section 547(b). Thus, the date of honoring a check should remain the date that the transfer took place.
Duke L.J. at 724 and 725. (Footnotes omitted).
Under the majority of recent Circuit authority, the approved date for purposes of § 547(c), the ordinary course of business exception is the date of delivery of the check. However, this Court does not need to reach that issue.
*433 Finally, GE argues that section 547(e)(1)(B) applies to this transaction. This section provides "a transfer of a fixture or property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee." Under GE's view, the transfer became perfected when the check was honored. Further under section 547(e)(2)(A), if perfection takes place within 10 days after the transfer takes effect then the transfer is considered made at the time the transfer takes effect. GE argues, since the transfer took effect when the check was delivered, and the check was honored and thus, perfected within ten days after delivery, then the transfer is considered made at the date of delivery. This theory provides further support for its conclusion that for purposes of the general preference section transfers occur upon delivery. Collier's states that this section "only deals with security interests and should not be used to determine when a payment by check is deemed to have been made." 4 Collier's on Bankruptcy § 547.16 at 547-67 (15th ed. 1988). Also, the First Circuit has also supported this view. See, O'Neill v. Nestle Libbys PR, Inc., 729 F.2d 35, 37 (1st Cir.1984). See also, In re Insulation Materials, Inc., 47 B.R. at 834, where Judge Bare concludes that even if § 547(e)(2)(A) applies, transfer by check takes effect between the transferror and transferee, not upon delivery, but upon honor, and, therefore, § 547(e)(2) is irrelevant.
The Court holds that the transfer to GE from AMWC was effective on the date the bank honored the check. Since the check was honored 83 days before the bankruptcy filing, the payment constitutes a preferential transfer within the meaning of § 547. Defendant GE will be held liable to AMWC in the amount of $10,261.
NOTES
[1] The Bankruptcy Court opinion in Sider, found at 33 B.R. 708, (Bankr.S.D.N.Y.1983) expresses the opinion that the Circuit decisions of Nicholson and Fitzpatrick do not have precedential value in construing plainly different provisions of the Bankruptcy Code. See, Sider, 33 B.R. at 711.
[2] The Ramy court also provides a list of cases holding the honor date of the check is the pivotal date for § 547(b)(4)(A) purposes. See, Ramy, 57 B.R. at 429.
[3] Bienenstock also provides an example of a similar situation to the case at bar. "To illustrate, assume that a supplier sells 1000 widgets to a debtor and upon delivery of the widgets obtains an uncertified check from the debtor for the full price. Is the receipt of the check a preference? No. Reason: the first ingredient of a preference is missing. There has been no transfer of an interest in the debtor's property." Bienenstock, supra, at 389.
[4] However, the author, in n. 6, states: "But see Ellis, Preferential Payments by Check: At What Point is Payment Made?, 16 U.C.C.L.J. 46, 57 (1983) (addressing the issue of timing of payments made by check, and arguing that requiring two different timing rules is illogical)."
[5] The BAP stated that the applicability of both § 547(b), ninety-day preference period, and § 547(c)(2), within forty-five days of debt exception [the forty-five day limitation has been repealed] depends entirely on the date the transfer is deemed to have taken place. The BAP opines that using a delivery date for those two purposes would allow more room for manipulation. See, In re Quality Holstein Leasing, Inc., 46 B.R. 70 (Bankr.N.D.Tex.1985), which was this Court's prior opinion on the forty-five day § 547(c)(2) exception, holding that, for purposes of that exception, the honor date was the appropriate date. Recent Circuit authority on the § 547(c)(2) forty-five day ordinary course exception would be contrary to the Quality Holstein holding on the remaining § 547(c)(2) issues.
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
KATHERINE HIETT VIKER, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED.
v. CASE NO. 1D17-2865
ARTHUR COLLIN CHERRY,
Appellee.
_______________________________/
Opinion filed September 27, 2017.
An appeal from the Circuit Court for Leon County.
Stewart E. Parsons, Judge.
Emilian "Ian" Bucataru, Tallahassee, for Appellant.
No appearance for Appellee.
PER CURIAM.
The Court has determined that the May 5, 2017, order partially ruling on a
petition to modify parenting schedule and child support is not a final order. See
Hoffman v. O'Connor, 802 So. 2d 1197 (Fla. 1st DCA 2002). Furthermore,
although the order was subject to immediate appellate review pursuant to Florida
Rule of Appellate Procedure 9.130(a)(3)(C)b., appellant failed to invoke the
Court’s jurisdiction to review the order in a timely manner. Ward v. Bragg, 957 So.
2d 670 (Fla. 1st DCA 2007) (holding that rehearing of a non-final order is not
authorized and does not delay rendition). Accordingly, the appeal is dismissed for
lack of jurisdiction.
BILBREY, WINSOR, and M.K. THOMAS, JJ., CONCUR.
2
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120 Cal.Rptr.2d 174 (2002)
98 Cal.App.4th 795
Eddie JAVOR, Plaintiff and Appellant,
v.
Mark TAGGART et al., Defendants and Respondents.
No. B149847.
Court of Appeal, Second District, Division One.
May 1, 2002.
As Modified May 23, 2002.
*177 Cole & Loeterman and Dana M. Cole, Los Angeles, for Plaintiff and Appellant.
Bill Lockyer, Attorney General, Jim Schiavenza, Senior Assistant Attorney General, Joel Davis, Marsha Miller and Richard Rojo, Supervising Deputy Attorneys General, and Vladimir Shalkevich, Deputy Attorney General, for Defendants and Respondents.
MALLANO, J.
Plaintiff is a licensed general building contractor. The State of California erroneously concluded that one of his employees had been injured on the job and that he did not have workers' compensation insurance at the time. The state paid benefits to the injured worker and recorded a lien against plaintiffs residence.
Four years after the lien was recorded, plaintiff retained counsel, pursued administrative remedies, and prevailed. The state cancelled the lien.
Thereafter, plaintiff filed this action, alleging a federal civil rights claim (42 U.S.C. § 1983) and several state law claims. The trial court found that the federal claim was barred by the statute of limitations and that, on the state claims, the defendants were immune from suit (Gov. Code, § 821.6).
The principal question on appeal is whether the limitations period on the federal claim was tolled while plaintiff pursued state remedies under the California Government Claims Act (Gov. Code § 810 et seq.). We conclude that state "notice of claim" statutes, like the California Government Claims Act, do not toll the time within which to file a federal civil rights claim. We affirm.
I
BACKGROUND
On May 14, 1991, Jason Gonzales was injured in a work-related accident while employed by Premiere Construction Services. Premiere did not have workers' compensation insurance, so the California Uninsured Employers Fund (UEF) paid benefits, which totaled $37,000. The UEF then looked to Gonzales's uninsured employer for reimbursement.
In conducting business, Premiere had used, without permission, the contractor's license number of plaintiff Eddie Javor. On or about March 10, 1994, defendant Mark Taggart, an employee of the UEF, made a prima facie determination that Javor had been Gonzales's employer and that Javor had been illegally uninsured. Notice was sent to Javor.
Javor responded by letter on March 22, 1994, explaining that Premiere had used his contractor's license number without his consent and that he had never employed Gonzales. Notwithstanding Javor's documentary evidence and objections, the UEF concluded that he had been Gonzales's employer. On May 2, 1994, the UEF recorded a lien against Javor's residence in the amount of $37,000.
Over the next four years, Javor attempted sporadically to rectify the situation, sending letters to various state employees and talking to them by telephone. His efforts were not successful.
Eventually, Javor retained an attorney, who filed a motion with the Workers' Compensation Appeals Board (WCAB) on June 8, 1998, seeking to remove the lien. On October 6, 1998, a workers' compensation judge ruled in Javor's favor.
*178 The UEF sought reconsideration of the ruling. In a decision dated December 29, 1998, the WCAB granted reconsideration and sent the matter back for further proceedings. In granting reconsideration, the WCAB expressly found that the UEF had violated Javor's right to due process by failing to provide a hearing in order to determine whether he was, in fact, Gonzales's employer. On remand, the workers' compensation judge again found in Javor's favor. On March 25, 1999, the UEF recorded a "Certificate of Cancellation of Lien," stating that the May 2, 1994 lien had been filed in error.
On August 23, 1999, Javor filed a claim for damages with the State Board of Control. On October 19, 1999, the board denied the claim. By letter dated October 29, 1999, the board informed Javor of its decision. The letter also stated: "WARNING [¶] `Subject to certain exceptions, you have only six months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim'. See Government Code Section 945.6. You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately."
Javor filed this action on February 10, 2000, alleging causes of action for violation of federal civil rights, slander of title, inverse condemnation, and negligence. On June 26, 2000, Javor filed a first amended complaint. Following a demurrer to the first amended complaint, which was sustained with leave to amend, Javor filed a second amended complaint on October 13, 2000.
The second amended complaint named Taggart as the only defendant and alleged a single claim for violation of Javor's federal civil rights. More specifically, Javor alleged that Taggart had violated his right to due process. Taggart filed a demurrer, arguing that the claim was barred by the statute of limitations. The trial court sustained the demurrer without leave to amend as to the federal claim but granted leave to allege causes of action based on any new legal theories.
On January 11, 2001, Javor filed a third amended complaint, alleging causes of action for slander and clouding of title, intentional infliction of emotional distress, negligence, and violation of the state Constitution. Named as defendants were Taggert and two other state employees, Susan Johnson and Lloyd W. Aubrey, Jr. All three defendants demurred to the complaint on the ground that they were immune from suit under the California Government Claims Act. The trial court sustained the demurrer without leave to amend and dismissed the action. Javor filed a timely appeal.
II
DISCUSSION
In reviewing the ruling on a demurrer, "we are guided by long-settled rules. `We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.... We also consider matters which may be judicially noticed.' ... Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.... When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.... And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.... The burden of proving such reasonable possibility is squarely on *179 the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58, citations omitted.)
On appeal, Javor argues that the federal civil rights claim was timely filed under various equitable and tolling doctrines and that defendants are not immune from suit. We disagree.
A. Federal Civil Rights Claim (Second Amended Complaint)
In his opening brief, Javor states that the sole issue as to the federal civil rights claim is "whether the statute of limitations to file a federal civil rights action under 42 U.S.C.1983 ran from one of the following events: [¶] 1. One year from December 29, 1998, when the WCAB issued its ruling ... finding that plaintiffs constitutional rights had been violated by the state ... or [¶] 2. Six months from the date plaintiff received the state's claim rejection letter, which provided that plaintiff had six months from that date of rejection to file a lawsuit."
Javor's federal civil rights (due process) claim was brought under title 42, section 1983 of the United States Code, which states: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...." (Hereafter section 1983 or Civil Rights Act.)
"In California, the applicable statute of limitations for civil rights actions brought under 42 United States Code section 1983 is the one-year statute of limitations for personal injury actions, [Code of Civil Procedure,] section 340, subdivision (3)." (West Shield Investigations & Security Consultants v. Superior Court (2000) 82 Cal.App.4th 935, 953, 98 Cal.Rptr.2d 612.)
"`Although state law determines the length of the limitations period, federal law determines when a civil rights claim accrues.' ... Under federal law, `a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.'" (Knox v. Davis (9th Cir.2001) 260 F.3d 1009, 1013.)
Arguably, Javor's due process claim accrued in May 1994, when he learned that a lien had been filed against his property. But Javor argues in his opening brief that his "cause of action did not accrue until the WCAB declared on December 29, 1998, that Taggart violated his constitutional rights." Javor filed this action on February 10, 2000. Thus, under the scenario urged by Javor, the instant case was filed more than one month after the statute of limitations expired unless the running of the limitations period was tolled or suspended under any of three doctrines, as follows.
1. Equitable Tolling
Under the doctrine of equitable tolling, the limitations period is suspended "where the record shows `(1) timely notice to the defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and, (3) good faith and reasonable conduct by the plaintiff in filing the second claim.'" (Daviton v. Columbia/HCA Healthcare Corp. (9th Cir.2001) 241 F.3d 1131, 1137-1138, italics added.) That did not happen here. Taggart, the only defendant on the federal civil rights claim, was not a party to Javor's first claim, namely, the administrative claim *180 filed against the UEF and adjudicated by the WCAB. Nor does Javor assert that Taggart knew about the first claim. In short, "`defendants were [not] informed at all times of the nature of plaintiffs' claims.'" (Id. at p. 1137, bracketed material and italics added.)
2. Equitable Estoppel
Javor's reliance on equitable estoppel is also misplaced. "`Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury....'" (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1044, 75 Cal.Rptr.2d 777.) In this case, Javor was not ignorant of the "true" facts. Quite the opposite. From the very beginning, he was keenly aware of the wrong done to him. Further, equitable estoppel does not apply because Javor did not rely on any statement or action by Taggart in deciding when to file suit.
3. California Government Claims Act
Nor did the state claims act toll the limitations period. "The purpose of the ... Act ... is to provide the [accused] public entity [with] sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.... Submission of a claim to a public entity pursuant to [the Act] is a condition precedent to a [civil] action and the failure to present the claim bars the action." (Paramount Unified School Dist. v. Teachers Assn. of Paramount (1994) 26 Cal.App.4th 1371, 1387, 32 Cal.Rptr.2d 311, citations omitted.) Government Code section 945.6 requires that a claimant file a civil action within six months after the public agency issues its decision.
Javor filed a claim with the state Board of Control on August 23, 1999. The board denied his claim on October 19, 1999, and so notified him by letter dated October 29, 1999. The letter stated that he had six months in which to file suiton or before April 29, 2000. This action was filed on February 20, 2000, and was therefore timely for purposes of the state claims act. But, as we shall explain, the act does not affect the running of the limitations period on a section 1983 claim. The courts have long recognized the procedural differences between the state claims act and section 1983.
At the outset, we note that a plaintiff does not have to file a claim under the state claims act as a prerequisite to filing a section 1983 action. "[T]he California remedy of recourse to the [Government] Claims Act need not be first sought before a plaintiff is free to invoke the Civil Rights Act. While there may be considerable overlap between the two statutes in given circumstances, the purposes underlying them are distinct. The state scheme ... was conceived to strictly limit governmental liability; the federal legislation, by contrast, was designed to ensure an adequate remedy for violations of civil rights. The [six-month] claim provision ... is a condition precedent to the maintenance of an action under state law.... And while it may be constitutionally permissible for the Legislature to place this substantive impediment in the path of a state cause of action, it is clear that the supremacy clause will not permit a like abrogation of the perquisites of a federal civil rights litigant." (Williams v. Horvath (1976) 16 *181 Cal.3d 834, 842, 129 Cal.Rptr. 453, 548 P.2d 1125, citations omitted.)
In rejecting a plaintiffs contention that the limitations period on her federal civil rights claim was tolled by the prior filing of a state law claim, the Ninth Circuit Court of Appeals stated: "[S]tate and federal claims ... constitute] legally distinct wrongs. Because the appellant elected to pursue only one remedy as to one distinct wrong[, filing suit against a state governmental agency under state law], the [federal] district court did not err in holding that the statute of limitations relevant to the appellant's federal civil rights action had not been equitably tolled by her previous filing of the state tort claim action." (Ervin v. Los Angeles County (9th Cir.1988) 848 F.2d 1018, 1019-1020; see also Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1086, 195 Cal.Rptr. 576 [pursuit of civil rights action in federal court does not toll limitations periods imposed by California Government Claims Act].)
Similarly, in Stone v. City and County of San Francisco (N.D.Cal.1990) 735 F.Supp. 340, the court stated: "In the present case, plaintiff claims that the statute of limitations on his section 1983 claim was tolled during the pendency of his state administrative remedies. Specifically, [plaintiff] submits that these remedies consisted of his [internal department] complaint and the claim filed pursuant to [the] California [Government] Claims Act.... The court, however, finds plaintiffs contention untenable. [¶] ... [¶]
"[I]t is clear that the remedies and procedures in the [Government] Claims Act and the Civil Rights Act are separate and independent.... The court concludes that plaintiffs [state law] tort claim is not sufficient to toll the statute of limitations on his section 1983 action. Accordingly, as a matter of law, plaintiffs section 1983 claim is barred by the statute of limitations." (Stone v. City & County of San Francisco, supra, 735 F.Supp. at pp. 343-345.)
More recently, the Ninth Circuit addressed the issue now before us. In Silva v. Crain (9th Cir.1999) 169 F.3d 608 (Silva ), the plaintiffs claim was based on an incident that occurred on September 10, 1996. For purposes of the state claims act, plaintiff filed a claim with the appropriate public agency that was denied on April 28, 1997. The plaintiff filed a section 1983 action on October 27, 1997within six months after the agency's denial of the claim but more than one year after the cause of action accrued. The district court found that the action was time-barred. The Ninth Circuit affirmed, stating:
"We have previously declared that in California the general, residual statute of limitations for personal injury actions is the one year period set forth in California Civil Procedure Code section 340(3)....
"But, argues [plaintiff], when a person presents a damage claim to a public agency pursuant to the California [Government] Claims Act, a different special statute of limitations comes into play as to actions against that agency and its employees. The Act requires that notice of a claim be given to a public entity before an action can be brought against it.... It also provides for a special six-month, or sometimes two-year, statute of limitations. See Cal. Gov't Code § 945.6(a). [Plaintiffs] attempt to use these provisions to carve out an exception to the one-year statute and thereby resuscitate his fading claim is futile.
"In general, state notice of claim statutes have no applicability to § 1983 actions .... That, as we have said, includes their special statutes of limitations....
"... The [statutory] section[, 945.6, which requires suit within six months,] ... is simply a separate freestanding special *182 statute of limitations which applies when claims are presented to public agencies. Once a claim is presented, the section is the only statute of limitations which applies to that claim. It no more tolls the general residual tort statute of limitations than do other wholly separate statutes of limitations. It, like other statutes of limitations, applies and controls cases in a particular area. It is not a general statute of limitations at all. More accurate is Emmert v. County of Sonoma, 836 F.Supp. 715, 716-17 (N.D.Cal.1993). That case properly determined that § 94.5.6 did not apply to § 1983 claims ...." (Silva, supra, 169 F.3d at pp. 610-611, citations & fn. omitted, italics added.)
Javor relies on Halus v. San Diego County Assessment Appeals Bd. (S.D.Cal. 1992) 789 F.Supp. 327. In that case, the plaintiff filed her federal civil rights claim more than one year after the date of injury but within six months after her claim was denied under California Government Claims Act. The court held that the defendant was estopped to invoke the one-year limitations period and was bound by the six-month period contained in the notice denying the plaintiffs claim under the state claims act. Thus, the court found that the claim was timely filed.
We conclude that, in Silva, supra, 169 F.3d 608, the Ninth Circuit overruled Halus sub silentio. We find the analysis in Silva to be persuasive. It follows that Javor's section 1983 claimwhich was filed more than one year after the WCAB concluded that his right to due process had been violatedis barred by California's one-year statute of limitations applicable to personal injury claims.
B. State Law Claims (Third Amended Complaint)
When the trial court sustained the demurrer without leave to amend as to the section 1983 claim, it ruled that Javor could allege any new theories of recovery in a third amended complaint. Javor did so, alleging four causes of action against Taggart, Johnson, and Aubrey: (1) violation of the state Constitution; (2) slander and clouding of title; (3) intentional infliction of emotional distress; and (4) negligence.
Defendants demurred to the third amended complaint on several grounds. The trial court sustained the demurrer without leave to amend and dismissed the action.
1. Violation of the State Constitution
Javor alleged that defendants had violated his rights to due process and equal protection of the laws, as guaranteed by the state Constitution (Cal. Const., art. I, § 7). As a remedy, he sought damages.
It is beyond question that a plaintiff is not entitled to damages for a violation of the due process clause or the equal protection clause of the state Constitution. (Carlsbad Aquafarm, Inc. v. State Dept. of Health Services (2000) 83 Cal.App.4th 809, 815-823, 100 Cal.Rptr.2d 87 [due process]; Gates v. Superior Court (1995) 32 Cal. App.4th 481, 516-524, 38 Cal.Rptr.2d 489 [equal protection].) The courts in Carlsbad and Gates thoroughly discussed this issue, and we see no need to repeat or summarize their extensive scholarly analysis.
2. Governmental Immunity
The trial court found that the other causes of action in the third amended complaintslander and clouding of title, intentional infliction of emotional distress, and negligencewere barred by governmental immunity.
*183 As provided in Government Code section 821.6, "[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." (Hereafter section 821.6.)
"Section 821.6 covers the initiation or prosecution of judicial or administrative proceedings where the target may or may not be a state employee. The policy behind section 821.6 is to encourage fearless performance of official duties.... State officers and employees are encouraged to investigate and prosecute matters within their purview without fear of reprisal from the person or entity harmed thereby. Protection is provided even when official action is taken maliciously and without probable cause." (Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 1424, 4 Cal. Rptr.2d 203.)
Section 821.6 is not limited to conduct occurring during formal proceedings. "[I]t also extends to actions taken in preparation for formal proceedings. Because investigation is `an essential step' toward the institution of formal proceedings, it `is also cloaked with immunity.'" (Amylou R. v. County of Riverside (1994) 28 Cal. App.4th 1205, 1209-1210, 34 Cal.Rptr.2d 319.)
"The plain language of section 821.6 and its legislative history demonstrate the Legislature intended this section to protect public employees from liability for malicious prosecution when they have acted within the scope of their employment.... The immunity conferred by section 821.6 is not limited to peace officers and prosecutors but has been extended to public school officials ..., heads of administrative departments ..., social workers ..., county coroners ..., and members of county boards of supervisors...." (Tur v. City of Los Angeles (1996) 51 Cal.App.4th 897, 901, 59 Cal.Rptr.2d 470, citations omitted.)
"[C]ourts have ... recognized [that] section 821.6 is not limited to only malicious prosecution actions. In Citizens Capital Corp. v. Spohn (1982) 133 Cal.App.3d 887 [184 Cal.Rptr. 269], the court determined section 821.6 provided immunity to government officials who published charges of improper collection methods against plaintiff. In Kayfetz v. State of California (1984) 156 Cal.App.3d 491 [203 Cal.Rptr. 33], the state was sued for publishing a disciplinary action against plaintiff. The court acknowledged the `publication was authorized as part of the statutory scheme and was clearly "within the scope of [defendant's] employment," within the meaning of section 821.6.'... `[S]ection 821.6 is not limited to suits for damages for malicious prosecution, although that is a principal use of the statute...."' (Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283, 260 Cal.Rptr. 645.)
In discussing section 821.6 in the context of criminal prosecution, one Court of Appeal has stated: "[O]ur system of law enforcement depends upon `the investigation of crime and the accusation of offenders by properly trained officers.'... The impartiality of that system requires that, when exercising that responsibility, the officers are' "free to act in the exercise of honest judgment uninfluenced by fear of consequences personal to themselves."' ... To eliminate that fear of litigation and to prevent the officers from being harassed in the performance of their duties, law enforcement officers are granted immunity from civil liability, even for the malicious abuse of their power. . .. `"[I]n the end [it is] better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."'" (Amylou R. v. County of Riverside, supra, 28 Cal. *184 App.4th at p. 1213, 34 Cal.Rptr.2d 319, citations omitted.)
In the present case, the importance of granting immunity under section 821.6 cannot be overstated. Defendants work within the administrative system established to implement the objectives of the Workers' Compensation Act. They are charged with seeking reimbursement from illegally uninsured employers after the state pays benefits to an injured employee. Their decisions are made in the course of investigations and also through formal administrative proceedings. In defendants' search for scofflaws, they must be able to "investigate and prosecute matters within their purview without fear of reprisal from the person or entity harmed thereby." (Shoemaker v. Myers, supra, 2 Cal. App.4th at p. 1424, 4 Cal.Rptr.2d 203.) Even though defendants may, on occasion, misidentify the responsible employer, it is "better to leave unredressed [such] wrongs ... than to subject [defendants] to the constant dread of retaliation." (Amylou R. v. County of Riverside, supra, 28 Cal. App.4th at p. 1213, 34 Cal.Rptr.2d 319, internal quotation marks omitted.)
Finally, we note that immunity under section 821.6 applies only where public employees have actedin the words of the statute"within the scope of their employment." That requirement is satisfied in this case. Javor alleges, in essence, that defendants made mistakes in performing the duties imposed upon them by state law.
The third amended complaint expressly relied on Labor Code section 3715, subdivision (c), which provides: "[I]n any [workers' compensation] claim in which it is alleged that the employer has failed to secure the payment of compensation, the director [of the department of industrial relations] ... shall determine, on the basis of the evidence available to him or her, whether the employer was prima facie illegally uninsured. A finding that the employer was prima facie illegally uninsured shall be made when the director determines that there is sufficient evidence to constitute a prima facie case that the employer employed an employee on the date of the alleged injury and had failed to secure the payment of compensation, and that the employee was injured arising out of, and occurring in the course of, the employment...."
The amended complaint also emphasized the pertinent regulations, which state: "Upon receipt of written protest or application for reconsideration from an aggrieved person, of a determination that an employer was prima facie illegally uninsured, the Chief of the Claims Bureau, Uninsured Employers Fund, on the director's behalf, shall informally reconsider the determination. The aggrieved person shall furnish a statement of reasons why the determination was in error, and any evidence in support of the position of the aggrieved person. The Chief of the Claims Bureau may uphold, rescind, or alter the original determination. The decision after reconsideration shall be mailed to the aggrieved person ... within five working days after receipt of the protest or application for reconsideration." (Cal. Code Regs., tit. 8, § 15722.)
Javor alleges that defendants erred, first, by making a prima facie determination that he was Gonzales's employer and, second, by not reconsidering and rescinding that determination after he submitted objections and supporting evidence. Those allegations recognize that defendants were involved in the kinds of decisions required by law and that they were therefore acting within the scope of their employment, albeit under a mistaken belief.
*185 Javor's allegation in the third amended complaint that defendants acted "outside" or "beyond the course and scope of [their] authority" does not require a different result. For one thing, a conclusory allegation in a complaint that an employee was acting "outside the scope of employment" is to be disregarded when the factual allegations and inferences indicate otherwise. (See College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 722-724, 34 Cal.Rptr.2d 898, 882 P.2d 894.) Here, they do. In addition, Javor alleged in the original complaint that Taggart "acted within the course and scope of his authority." Having made that allegation early on, Javor cannot contradict it now. (See Owens v. Kings Supermarket (1988) 198 Cal. App.3d 379, 383-384, 243 Cal.Rptr. 627.)
In sum, the trial court properly sustained the demurrer to the third amended complaint without leave to amend.
III
DISPOSITION
The order of dismissal is affirmed.
We concur: SPENCER, P.J., and ORTEGA, J.
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169 S.W.3d 561 (2005)
Tracy M. ATKINSON, n/k/a Tracy M. Dinella, Appellant,
v.
Douglas D. ATKINSON, Respondent.
No. ED 85768.
Missouri Court of Appeals, Eastern District, Division Five.
August 23, 2005.
Melissa A. Featherston, Clayton, MO, for appellant.
Benicia A. Baker-Livorsi, St. Charles, MO, for respondent.
Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
ORDER
PER CURIAM.
Tracy M. Atkinson (hereinafter, "Mother") appeals from the trial court's judgment denying her motion to set aside a consent judgment entered into with Douglas Atkinson. Mother raises four points on appeal, claiming the trial court abused its discretion in failing to set aside the consent judgment because: (1) Mother was unable to understand the proceedings pursuant to her emotional distress; (2) the trial court lacked sufficient evidence to enter an order eliminating child support; (3) there was insufficient evidence to support the trial court's judgment ordering Mother to pay college expenses for one of her children; and (4) the trial court failed to create a record with respect to attorneys' fees.
We have reviewed the briefs of the parties, the legal file, and the transcript and find the trial's court judgment did not constitute an abuse of discretion. Preferred Laser Services, Inc. v. Abate, 117 S.W.3d 678, 680 (Mo.App. E.D.2003). The three motions taken with the case are denied. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).
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604 F.2d 594
UNITED STATES of America, Appellee,v.Vernon George LAMBERT, Appellant.
No. 79-1294.
United States Court of Appeals,Eighth Circuit.
Submitted Aug. 24, 1979.Decided Aug. 31, 1979.Rehearing Denied Sept. 27, 1979.
David Garcia (Lakewood Park), Devils Lake, N. D., for appellant.
James R. Britton, U. S. Atty., and Herbert A. Becker, Asst. U. S. Atty., Fargo, N. D., for appellee.
Before LAY, BRIGHT and HENLEY, Circuit Judges.
PER CURIAM.
1
Vernon George Lambert appeals from his convictions, following a jury trial, on eleven counts of embezzlement of funds from an Indian tribal organization, in violation of 18 U.S.C. § 1163 (1976).1 Lambert contends the district court erred in instructing the jury that certain testimony to which Lambert stipulated must be taken as true. We reject this contention and affirm.
2
During the trial, the Government sought to prove that several checks (exhibits numbered 2 through 13 in the record) made out to Dakota Trading Post from the Devils Lake Sioux Tribe had been approved by appellant Vernon George Lambert and presented to the Trading Post for cash, not for merchandise. A government witness, Linde, answering a series of questions as to each check in turn, testified that Lambert received cash for the first two checks in question. At this point, counsel for Lambert suggested "that if, this witness is probably going to go through the same routine for the rest of the exhibits * * * we would certainly stipulate again."
3
The prosecutor then offered the following as a stipulation:
4
that as concerns Exhibits No. * * * 2, 3, 4, 5 and 6, 8, 9, 10, 12, 13, that these were all checks made out to Dakota Trading Post; * * * and they were in fact cashed for cash.
5
Counsel for appellant stated that he understood the stipulation, and the trial judge recited, without objection, that "(t)he stipulation is agreed to and the jury will so understand it."
6
The district court subsequently instructed the jury concerning this stipulation, as follows:
7
It is also stipulated that if the witness Linde had testified concerning checks which are Exhibits No. 2 through 13, that he would have said they were in fact cashed at the Dakota Trading Post. It has been further stipulated that those checks were cashed for cash. Those facts must be considered as having been proved.
8
Appellant's counsel objected to the above instruction to the extent that the trial court stated "(t)hose facts must be considered as having been proved." The court overruled that objection and refused to modify the instruction. On this appeal Lambert reasserts that objection, contending the trial court invaded the province of the jury by adding to the stipulation that the "facts must be considered as having been proved," rather than merely stating that the witness would so testify.
9
That argument is without merit. First, the parties, through counsel, stipulated to the facts to which witness Linde would testify.2 Second, Lambert in his testimony admitted receiving cash for the checks in question, further testifying that he used such cash for authorized purposes. Under those circumstances, the trial court properly construed the stipulations of counsel as an agreement that the checks in fact had been cashed at Dakota Trading Post in accordance with the stipulated proof from witness Linde. Even if the court's instruction might have construed the stipulation overbroadly, that instruction cannot have prejudiced Lambert, for Lambert has not disputed, either at trial or on this appeal, the veracity of Linde's stipulated testimony concerning the checks.
10
In our view, Lambert received a fair trial and fair consideration from an experienced and able trial judge. That appellant has raised only a single, almost frivolous claim of error underscores that observation.
11
Affirmed.
1
These convictions resulted from Lambert's second trial on the charges in question. On the first trial, the jury could not reach agreement
The Honorable Ronald N. Davies, United States Senior District Judge for the District of North Dakota, presided at the second trial and placed Lambert on probation for five years.
2
Such a stipulation deprives the jury of an opportunity to observe the demeanor of the witness and to judge his credibility with respect to the subject matter of the stipulation
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IN THE
TENTH COURT OF APPEALS
No. 10-17-00131-CR
No. 10-17-00132-CR
PADDOCK COLLINS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 278th District Court
Walker County, Texas
Trial Court Nos. 27689 & 27691
MEMORANDUM OPINION
In one plea hearing and one sentencing hearing, Paddock Collins made an open
plea of guilty to the court and was convicted of two separate offenses: evading arrest or
detention with a vehicle and unauthorized use of a motor vehicle. See TEX. PENAL CODE
ANN. §§ 38.04(b)(2)(A); 31.07 (West 2011). He was sentenced to 15 years and 10 years,
respectively, in prison. The sentences were ordered to run concurrently.
Collins’s appellate attorney filed a motion to withdraw and an Anders brief in
support of the motion to withdraw in each case, asserting that the appeals present no
issues of arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967). Counsel advised Collins that counsel had filed the motion and brief pursuant
to Anders and provided Collins a copy of the record, advised Collins of his right to review
the record, and advised Collins of his right to submit a response on his own behalf.
Collins submitted a response. The State did not reply.
Counsel asserts in the Anders brief that counsel has made a thorough review of the
entire record, including the sufficiency of the open pleas of guilty and waivers of appeal
from the guilt phase, the punishment hearing, and the range of punishment. After the
review, counsel has concluded there is no non-frivolous issue to raise in these appeals.
Counsel's brief evidences a professional evaluation of the record for error, and we
conclude that counsel performed the duties required of appointed counsel. See Anders,
386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re
Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).
In his response to counsel’s Anders brief, Collins contends the prosecutor failed to
keep the plea bargain, he should have been allowed to withdraw his guilty plea, his right
to confrontation of witnesses was violated, and his trial counsel was ineffective for failing
to object to extraneous evidence at the punishment hearing. The record does not support
Collins’s contentions.
Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty
to independently examine the record to decide whether counsel is correct in determining
Collins v. State Page 2
that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503,
511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably
persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L.
Ed. 2d 440 (1988).
Having carefully reviewed the entire record, the Anders brief, and Collins’s
response, we have determined that these appeals are frivolous. See Bledsoe v. State, 178
S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We note, however, that costs were assessed
in both judgments of conviction. Where allegations and evidence of more than one
offense are presented in a single trial or plea proceeding, the trial court errs in
assessing costs in each conviction. Hurlburt v. State, 506 S.W.3d 199, 203-204 (Tex. App.—
Waco 2016, no pet.). Based on our precedent, abatement to the trial court for the
appointment of new counsel is not required. See Ferguson v. State, 435 S.W.3d 291 (Tex.
App.—Waco 2014, pet. dism.). Because this error does not impact the determination of
guilt or punishment and, therefore, does not result in a reversal of either judgment, we
may modify one of the judgments to correct the erroneous assessment
of costs. Id. Accordingly, the Judgment of Conviction by Court—Waiver of Jury Trial in
trial court case number 27689 is modified to delete the assessed court costs. We affirm
the trial court's Judgment of Conviction by Court—Waiver of Jury Trial in trial court case
number 27689 as modified and affirm the trial court's Judgment of Conviction by Court—
Waiver of Jury Trial in trial court case number 27691.
Should Collins wish to seek further review of these cases by the Texas Court of
Collins v. State Page 3
Criminal Appeals, he must either retain an attorney to file a petition for discretionary
review or must file a pro se petition for discretionary review. No substitute counsel will
be appointed. Any petition for discretionary review must be filed within thirty days from
the date of this opinion or the last timely motion for rehearing or timely motion for en
banc reconsideration has been overruled by this Court. See TEX. R. APP. P. 68.2. Any
petition and all copies of the petition for discretionary review must be filed with the Clerk
of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended
eff. Sept. 1, 2011). 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. See also In re Schulman, 252 S.W.3d at 409 n.22.
Counsel's motions to withdraw from representation of Collins are granted, and
counsel is discharged from representing Collins. Notwithstanding counsel’s discharge,
counsel must send Collins a copy of our decision, notify him of his right to file a pro se
petition for discretionary review, and send this Court a letter certifying counsel's
compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In
re Schulman, 252 S.W.3d at 409 n.22.
TOM GRAY
Chief Justice
Collins v. State Page 4
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Affirmed
Opinion delivered and filed December 20, 2017
Do not publish
[CR25]
Collins v. State Page 5
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562 So.2d 296 (1990)
Melvin ARNOLD
v.
STATE.
4 Div. 528.
Court of Criminal Appeals of Alabama.
February 23, 1990.
*297 Melvin Arnold, pro se.
Don Siegelman, Atty. Gen., and Gilda B. Williams, Asst. Atty. Gen., for State.
PATTERSON, Judge.
Melvin Arnold appeals from the denial of his A.R.Cr.P.Temp. Rule 20 petition by the Circuit Court of Coffee County,[1] wherein he contested the validity of his conviction for second degree sodomy and two convictions for producing obscene matter. These convictions rest upon his pleas of guilty entered on October 7, 1986, pursuant to a plea bargain agreement. Appellant was sentenced, on January 6, 1987, to 10 years' imprisonment for his sodomy conviction and 15-year terms for his convictions for producing obscene matter. These sentences were split into imprisonment for three years and probation for the remainder of the terms, taking into account the time already served. These sentences were to run consecutively. He made no direct appeal.
In reviewing the trial court's ruling, we find that it was proper in regard to all except one of the grounds asserted, for all grounds other than the allegation of ineffectiveness of trial counsel could have been raised at trial or on appeal. See Rule 20.2(a)(3) and (5). The one allegation not precluded is appellant's assertion that his trial counsel was ineffective for, among other reasons, coercing him to plead, allowing him to plead when he was under the influence of drugs, and promising him that he would receive probation; that allegation is supported by sufficient factual averments that, if true, would warrant relief. Accordingly, the judgment is reversed and the cause is remanded for the trial court to hold an evidentiary hearing on the merits of appellant's allegation of ineffectiveness of counsel. The trial court is further directed to appoint counsel to represent appellant in this proceeding and to "make specific findings of fact relating to each material issue of fact presented," Rule 20.9(d). Due return of the action taken should be made to this court.
REVERSED AND REMANDED.
All Judges concur.
NOTES
[1] We note that this cause has a protracted procedural history. Appellant first filed a Rule 20 petition on September 22, 1987. It was dismissed pursuant to the state's motion, for failure to comply with Rule 20 form requirements. Thereafter, appellant filed for relief by federal habeas corpus. This petition was dismissed without prejudice, for appellant's failure to exhaust his state remedies. Then, Arnold filed a second petition on June 20, 1989, which was improperly dismissed as being successive. This is the ruling before us. The attorney general concedes that the court's ruling rests on an improper ground, but urges that the petition was properly denied on the ground that appellant was precluded by not having raised the asserted issues on direct appeal.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SOUTHEASTERN FERTILITY CENTER,
Plaintiff-Appellant,
v.
No. 99-1736
THE AETNA CASUALTY AND SURETY
COMPANY,*
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CA-97-1602-2)
Argued: January 25, 2000
Decided: February 28, 2000
Before NIEMEYER, Circuit Judge, HAMILTON, Senior Circuit
Judge, and J. Frederick MOTZ, Chief United States District Judge
for the District of Maryland, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Donald Bruce Clark, Arnold Samuel Goodstein, ROSEN,
GOODSTEIN & HAGOOD, L.L.C., Charleston, South Carolina, for
_________________________________________________________________
*Although Aetna is now known as the Travelers Casualty and Surety
Company, we will still refer to the appellee in this case as Aetna.
Appellant. Mark Hedderman Wall, OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, Charleston, South Carolina, for Appellee.
ON BRIEF: Linda B. Foster, Andrew R. Diamond, WEISSMAN,
NOWACK, CURRY & WILCO, P.C., Atlanta, Georgia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In this action for coverage under successive general commercial
liability insurance policies, Southeastern Fertility Center, P.A. (South-
eastern) challenges the district court's grant of summary judgment in
favor of Aetna Casualty & Surety Co. (Aetna) on Southeastern's
claims alleging breach of contract and breach of the duty of good faith
and fair dealing with respect to Aetna's obligations under the policies
to provide indemnification and a defense to litigation. Southeastern
also challenges the district court's failure to certify two particular
questions to the South Carolina Supreme Court. We affirm on the rea-
soning of the district court.
I
The facts in this case are undisputed. In October 1984, Richard
Jablonski (Jablonski) was diagnosed with Hodgkin's Disease. Con-
cerned that treatment for the disease would render him sterile, Jablon-
ski sought treatment from Dr. Grant Patton (Dr. Patton) for the
purpose of storing some of his sperm. In late 1984 and early 1985,
Jablonski made several deposits of his sperm for frozen storage with
Southeastern, a professional association owned by Dr. Patton.
Southeastern stored Jablonski's sperm for over four years. During
this time, Jablonski ceased paying storage fees to Southeastern, and
Southeastern lost all contact with Jablonski. At some point, Jablonski
2
paid $288 to a collection agency to satisfy his account with Southeast-
ern, but the record is unclear whether the collection agency ever trans-
ferred the payment to Southeastern. Operating under the belief that
Jablonski had not paid his storage fees for a significant period of time,
in October 1989, Southeastern thawed Jablonski's stored sperm and
discarded it.
Nearly two years later, in August 1991, Jablonski's wife, Patricia
Jablonski, contacted Southeastern in an attempt to retrieve her hus-
band's stored sperm. By this time, Jablonski's treatment for Hodg-
kin's Disease had left him sterile. Upon contacting Southeastern,
Patricia Jablonski learned that her husband's stored sperm had been
destroyed.
The Jablonskis subsequently filed a civil action in South Carolina
state court against Southeastern, among others, to recover damages
for the destruction of Jablonski's stored sperm. Once in 1992, once
in 1994, and once in 1995, Southeastern requested that Aetna defend
it against the state court action pursuant to several general commercial
liability policies. On all three occasions, Aetna refused Southeastern's
request.
The South Carolina Medical Malpractice Joint Underwriting
Authority, which provided Southeastern an upper limit of $100,000
in coverage, defended Southeastern in the state action. Southeastern
eventually settled the case in October 1996 by executing a confession
of judgment in favor of Jablonski for $1.1 million, with the stipulation
that Jablonski could not enforce the confession of judgment against
the assets of Southeastern or its agents. Additionally, under the terms
of the settlement, Jablonski possessed the right to collect under any
applicable insurance policies held by Southeastern. The Joint Under-
writers Association paid its limit of $100,000 to the Jablonskis, leav-
ing $1 million of the judgment unsatisfied.
The present coverage action by Southeastern followed. The case
was originally filed in South Carolina state court on April 25, 1997,
but was removed to the United States District Court for the District
of South Carolina on May 30, 1997, based upon diversity jurisdiction.
See 28 U.S.C. § 1332. Southeastern's coverage action asserts two
claims under South Carolina law--a breach of contract claim, seeking
3
compensatory damages, and a breach of the duty of good faith and
fair dealing claim, seeking compensatory and punitive damages.
Three of the four insurance policies at issue below are at issue in
this appeal. All three are general commercial liability policies. The
first was issued by Aetna to Dr. Patton and his wife for the coverage
period of October 31, 1988 to October 31, 1989. The second was
issued by Aetna to Dr. Patton and his wife for the coverage period of
October 31, 1989 to October 31, 1990. The third was issued by Aetna
to Southeastern for the coverage period of October 31, 1990 to Octo-
ber 31, 1991.
The following policy language at issue in this appeal is identical in
all three policies (the Three Policies).
We will pay those sums that the insured becomes legally
obligated to pay as damages because of "bodily injury" or
"property damage" to which this insurance applies. . . . The
bodily injury or property damage must be caused by an "oc-
currence."
(J.A. 156).
This insurance does not apply to: . . . "Property damage" to:
. . . (4) Personal property in your care, custody or control
....
(J.A. 158).
"Bodily injury" means bodily injury, sickness or disease sus-
tained by a person, including death resulting from any of
these at any time.
(J.A. 164).
"Property Damage" means:
a. Physical injury to tangible property, including all result-
ing loss of use of that property; or
4
b. Loss of use of tangible property that is not physically
injured.
(J.A. 166).
On March 31, 1998, the parties filed cross motions for summary
judgment, including supporting memoranda. After conducting a hear-
ing on the cross motions and considering the parties' supporting
memoranda, on February 22, 1999, the district court issued an order
granting summary judgment in favor of Aetna on the breach of con-
tract claim and denying summary judgment in favor of Southeastern
on the breach of contract claim. In its order, the district court thor-
oughly explained that it ruled in favor of Aetna on the breach of con-
tract claim involving the Three Policies on the basis that Jablonski's
stored sperm constituted his personal property, and therefore, its
destruction in 1989 was plainly excluded from coverage under the
exclusion for coverage of damage to the personal property of others
in the care, custody, and control of the insured. Under the district
court's reasoning, the exclusion was applicable regardless of which of
the Three Policies was in effect at the time Southeastern destroyed
Jablonski's stored sperm.
With respect to Southeastern's cause of action for breach of the
duty of good faith and fair dealing, the district court granted summary
judgment in favor of Aetna and denied summary judgment in favor
of Southeastern to the extent Southeastern's claim alleged bad faith
refusal to pay benefits, bad faith refusal to defend, and entitlement to
punitive damages. However, relying on the South Carolina Supreme
Court's decision in Tadlock Painting Co. v. Maryland Casualty Co.,
473 S.E.2d 52 (S.C. 1996), the district court held that Southeastern
could proceed to trial on its breach of the duty of good faith and fair
dealing claim to the extent Southeastern claimed that Aetna acted in
bad faith in the handling or processing of its claim despite the fact
that Aetna had not breached any express contractual term of the Three
Policies or the fourth policy not at issue in this appeal. The district
court refused to grant summary judgment in favor of Southeastern on
this remaining portion of its breach of the duty of good faith and fair
dealing claim.
On March 4, 1999, Southeastern filed a motion pursuant to Federal
Rule of Civil Procedure 59(e) to alter or amend the judgment and/or
5
to certify to the South Carolina Supreme Court the question of when
the loss occurred for purposes of triggering coverage under the Three
Policies. On March 5, 1999, Southeastern supplemented its Rule 59(e)
motion with an additional argument and requested that the district
court certify to the South Carolina Supreme Court the question of the
applicability of the exclusion for damage to personal property in the
care, custody, and control of the insured. The district court denied the
motion, as supplemented, in toto on April 7, 1999 on the basis that
its prior analysis of Southeastern's claims upon which it granted sum-
mary judgment in favor of Aetna was sound.
On May 3, 1999, Southeastern filed a motion, pursuant to Federal
Rule of Civil Procedure 54(b), asking the district court to certify its
February 22, 1999 and April 7, 1999 orders for immediate appellate
review and to stay the trial of the surviving portion of its breach of
the duty of good faith and fair dealing claim. The district court
granted Southeastern's Rule 54(b) motion and entered final judgment
with respect to the claims upon which it granted summary judgment
in favor of Aetna.
Southeastern noted a timely appeal. On appeal, Southeastern
argues: (1) the district court erred in holding the personal property
exclusion precluded coverage under the Three Policies; (2) Jablonski
suffered bodily injury within the meaning of the Three Policies when
Southeastern destroyed his stored sperm; (3) that because bodily
injury is involved with lingering mental anguish, the district court
erred in holding that the damage only occurred in 1989 when the
stored sperm was actually destroyed; and (4) the district court erred
in failing to certify the questions outlined in Southeastern's Rule
59(e) motion to the South Carolina Supreme Court.
II
We review a district court's grant of summary judgment de novo,
viewing the evidence in the light most favorable to the non-moving
party. See Figgie Int'l, Inc. v. Destileria Serralles, Inc., 190 F.3d 252,
255 (4th Cir. 1999). We review a district court's failure to certify a
question to a state's highest court for abuse of discretion. See Lehman
Bros. v. Schein, 416 U.S. 386, 391 (1974). Upon review of the briefs
and the record, and after consideration of oral arguments, we con-
6
clude that the district court correctly granted summary judgment in
favor of Aetna on Southeastern's claims involving the Three Policies
and did not abuse its discretion in failing to certify the questions out-
lined in Southeastern's Rule 59(e) motion to the South Carolina
Supreme Court. Accordingly, we affirm the judgment in favor of
Aetna on the reasoning of the district court. See Southeastern Fertility
Ctr., P.A. v. Aetna Cas. & Sur. Co., Civ. A. No. DKC 2:97-1602-23
(D.S.C. Feb. 22, 1999 & Apr. 7, 1999).
AFFIRMED
7
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734 So.2d 193 (1999)
Marion Ornellist WANSLEY, Appellant,
v.
STATE of Mississippi, Appellee.
No. 97-KA-01438 COA.
Court of Appeals of Mississippi.
January 26, 1999.
*194 Edmund J. Phillips, Jr., Newton, Robert N. Brooks, Carthage, Attorneys for Appellant.
Office of the Attorney General by Scott Stuart, Attorney for Appellee.
EN BANC:
COLEMAN, J., for the Court:
¶ 1. Pursuant to the trial of the appellant, Marion Ornellist Wansley, on an indictment for the felony of burglary of a dwelling house "of the property of R.P. Howell, with the ... burglarious intent to take, steal and carry away certain goods... in said dwelling house and being the personal property of R.P. Howell ... kept therein for his use and deposit ....," a jury in the Circuit Court of Neshoba County returned a verdict of "Guilty as charged." Based on the jury's verdict of guilty, the trial court entered its judgment of conviction in which it sentenced Wansley to serve a term of ten years in the Mississippi Department of Corrections. Ms. Wansley has appealed from this judgment and sentence to present for this Court's analysis and resolution the following two issues, which this Court quotes verbatim from Ms. Wansley's brief:
1. The Court erred in admitting into evidence two of the statements made by appellant without requiring that all be introduced.
2. The Court erred in failing to instruct the jury that the testimony of accomplice Joey Farve should be weighed with great caution.
Nevertheless, we affirm the trial court's judgment and sentence imposed on Ms. Wansley.
I. FACTS
¶ 2. Our recitation of the facts is a synthesis of the testimony consistent with the jury's verdict that Ms. Wansley was guilty of the burglary of Robert P. Howell's dwelling. Portions of our recitation are quoted directly from the record. A police officer for the City of Union referred to Robert P. Howell as "Colonel Howell," and so will we.
¶ 3. Around 9:30 a. m. on Sunday, April 13, 1997, Colonel Howell left his home on the Neshoba County side of County Line Street in the City of Union to attend church. Within a few minutes of noon, Howell returned from church. He parked his vehicle at his neighbor's house located across the street from his house so that he could walk his neighbor's dog. While Howell was walking his neighbor's dog, he crossed the street and approached the west end of his house. There, he "heard some ... low voices;" next, he "observed three people running across the vacant lot *195 to the rear of [his] house." Although Colonel Howell could not identify any of these three persons, the one who ran first had "a dark colored skin," and two African Americans followed him.
¶ 4. Colonel Howell and his neighbor entered his home through its kitchen door. As he opened it, he "observed many items scattered across the kitchen floor," which he recognized "had come from a billfold." Howell next walked into the den, where he observed "the sliding doors to the patio, open." Howell knew that he had not left the doors open when he left for church. He noticed that a VCR and a CD player which "had been unplugged from the TV area" were in a chair "near the open door" to the patio from the den. Colonel Howell observed that the sliding-door frame had been bent near the latch.
¶ 5. Colonel Howell then entered the utility room "which [led] into the kitchen." There, he "found the screen ripped and the sliding window to the door ... cracked in the entry and ... open." The intruder "had reached inside and unlocked ... the kitchen door." The first item which Howell knew was missing was a .22 caliber rifle that he kept near the kitchen door. Howell called both 911 and the police station in Union. Union Police Officer James Hanna was enjoying his Sunday lunch at home when both his son, "who work[ed] for the ABC," and another unidentified person called him to report the burglary of Colonel Howell's home.
¶ 6. After Officer Hanna arrived at Colonel Howell's home and confirmed the burglary, someone told him that "Heather Sharp had seen someone leaving Colonel Howell's house." Armed with this information, Officer Hanna was looking for Heather Sharp when he saw Mr. Johnson, who gave him some additional information about the burglary. Based on Mr. Johnson's information, Officer Hanna drove north of Union, "outside the city limits," to a wooded area where he "found fresh tracks." After Officer Hanna "started looking down through the woods," he "saw the wet leaves had been shuffled around, where someone had been walking in the wet leaves." There he "raked some leaves back and saw guns, at least one long gun [he] knew was there at that time." Colonel Howell later identified the "long gun" as the .22 caliber rifle which he had found missing from beside his kitchen door.
¶ 7. Officer Hanna also determined from his inspection of the car tracks left after the car had "backed out" that the "left front tire print ... was slick." After Neshoba County deputy sheriffs had secured the scene in the woods outside the Union corporate limits, Officer Hanna contacted "ABC Agent 32." "ABC Agent 32" told Officer Hanna that he had located a car which matched the description that Mr. Johnson had given Officer Hanna parked at the Union Square Apartments. "ABC Agent 32" further advised Officer Hanna that the car, which Mr. Johnson had described as "a tan car with a kind of sloped off back with three people in it," had a slick tire on the left front.
¶ 8. After Officer Hanna arrived at the Union Square Apartments, he located an automobile that matched this description. However, no one there claimed ownership of the automobile. Officer Hanna checked the registration of the Hinds County license plate and learned that it was "registered to Marion Wansley." Around four o'clock that same afternoon, Sunday, April 13, Officer Hanna arrested Marion Wansley, whom he had not previously known, and took her to the police station in Union. After Officer Hanna advised Ms. Wansley of her Miranda rights not to incriminate herself and after he was satisfied that Ms. Wansley understood those rights, which understanding she demonstrated by signing a waiver of those rights, he handed her a sheet of paper. In her own handwriting, Ms. Wansley gave Officer Hanna a statement in which she admitted her participation in the burglary of Colonel Howell's home, although she denied entering it. Instead, Ms. Wansley wrote that Joey Allen *196 Farve had entered the home while she stood outside as a "lookout."
¶ 9. Two days later, after Officer Hanna had again Mirandized Ms. Wansley, she gave him a second statement, this one oral, in which she admitted that she had entered Colonel Howell's home with Farve and a juvenile. Pursuant to Ms. Wansley's written consent, Officer Hanna searched her car and found a "buck knife" beneath its driver's seat. Colonel Howell later identified it as the knife which he kept in the "radio room" of his home.
II. TRIAL
¶ 10. This was a no-nonsense, straight forward trial which began on the morning of November 12, 1997 and concluded at 2:30 the same afternoon when the jury returned its verdict of "Guilty as charged." The State called four witnesses in the following order: (1) Robert P. Howell, (2) Heather Sharp, (3) Joey Allen Farve, and (4) Union Police Officer James Hanna. We gleaned our recitation of the facts from the testimony of Colonel Howell and Officer Hanna. Heather Sharp testified that as she was "on [her] way to [her] parents' house up North Street" around 12:15 p.m., she saw "three individuals running across the street." She explained, "There was an Indian male, a Black female, and a Black male." Ms. Sharp elaborated that the "Indian male ... had long, dark hair. He was carrying a gun, a rifle." She located their running across the street near the intersection of North Street with County Line Street, on which Colonel Howell's home was located. Without Ms. Wansley's counsel's objection, Ms. Sharp opined, "They would have been coming from, maybe, [Colonel Howell's] back yard." Under cross-examination, Ms. Sharp acknowledged that she did not know the names of any of these three persons whom she had seen running, although she "had seen the Indian male around town."
¶ 11. For its third witness, the State called Joey Allen Farve. Farve established that he lived on "16 going towards the casino." He testified that a juvenile, Ms. Wansley, and he entered Colonel Howell's home around noon on April 13, 1997. According to Farve, Ms. Wansley cut the screen which Colonel Howell had located in the utility room with a screwdriver, reached in and unlocked the door, and walked inside the Howell residence. Farve testified that Ms. Wansley entered first. According to Farve's testimony, once all three were inside, Ms. Wansley "grabbed ... a .22 pistol," the juvenile "grabbed a rifle," and Farve "took two two-dollar bills and a necklace and a jar of change." Farve estimated that they were inside Colonel Howell's residence "thirty, maybe forty-five minutes." Farve verified that they took these items to the woods where they buried them "under a mulch of leaves." Under Ms. Wansley's counsel's cross-examination, Farve acknowledged that he had entered a plea of guilty to this crime for which both Ms. Wansley and he had been jointly indicted and that the trial court had sentenced him to serve five years. Initially Farve stated that he "just received a plea-bargain and ... was asked to testify." Under further cross-examination, Farve replied, "Yes, sir," to defense counsel's question, "But, you agreed to plead to five years and testify in this case; is that correct?"
¶ 12. Officer Hanna was the State's last witness. We have related briefly his testimony about his having taken two statements, the first written and the second oral, from Ms. Wansley. The trial judge conducted a hearing outside the jury's presence to determine whether both statements were freely and voluntarily given by Ms. Wansley. After both the State and defense counsel examined Officer Hanna about the circumstances surrounding his obtaining these two statements and Ms. Wansley's consent to search her automobile, the trial judge found that "[Ms. Wansley] was properly given the Miranda warnings, and with knowledge of her rights, she waived them, and she voluntarily made a statement of admission."
*197 ¶ 13. However, based on Ms. Wansley's attorney's objection that a portion of her handwritten statement implicated her in another crime for which she was not then on trial, the trial judge ordered the State to delete that portion from the confession. The portion of Ms. Wansley's confession which the trial judge admitted into evidence read as follows:
Rodney [Gill] & I was [sic] on our way back to Union from Newton when we saw Joe [sic] He ask [sic] us to walk over to the white house to look out for him, then someone came, and he said to run so we did he had 2 guns and asked me to take him home, [deleted portion]... [sic] So we left and he ask me to take him to this spot so he could put the guns there. So I ask him why and he said that his mom doesn't want him to bring guns in the house. He covered them up and we left.
III. RESOLUTION OF THE ISSUES
A. Ms. Wansley's first issue
¶ 14. For her first issue, Ms. Wansley asserts that "[t]he Court erred in admitting into evidence two of the statements made by Appellant without requiring that all be introduced." The following excerpt from Ms. Wansley's counsel's cross-examination of Officer Hanna is the basis for her first issue:
Q. All right. Now, there's two statements that you have testified about, the written one on the thirteenth and the oral one on the fifteenth.
A. Right.
Q. Is there another statement?
A. On her?
Q. Yes, sir.
A. Not by me.
Q. Okay. Well, when I asked you if there was anyone else around, you said not on this statement.
A. There are other statements, but I was not present.
Q. You weren't present for those?
A. No, sir.
Ms. Wansley argues that "[b]y combining only the first and last [statements] and omitting others, the prosecutor left the possibility for the jury to misunderstanding the meaning of the statements." The State counters Ms. Wansley's concern that "[c]ombining the two statements may have misled the jury," by asserting the "presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to the appellant Court." See Edlin v. State, 533 So.2d 403, 410 (Miss.1988) (holding that "[i]t is the duty of the appellant to overcome the presumption of the correctness of the trial court's judgment by demonstrating some reversible error.") (citation omitted). The State further contends that "a trial judge cannot be put in error on a matter not presented to him for his decision," and cites Bender v. North Meridian Mobile Home Park, 636 So.2d 385, 389 (Miss.1994).
¶ 15. This Court accepts the foregoing counter-arguments presented by the State as sufficient to resolve Ms. Wansley's first issue against her. The State also contends that "[i]n the absence of knowing what the other statement contained, it is impossible to know what effect it would have had upon the jury." The State then rightly concludes that "this Court has nothing before it to examine whether or not Wansley was harmed or helped in her defense."
¶ 16. This Court finds several distinct grounds on which to base its decision that Ms. Wansley's first issue is procedurally barred. First, other than only a very general citation to Miranda v. Arizona, 384 U.S. 436, 469, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in which the United States Supreme Court opined that when a right "indispensable to the protection of the Fifth Amendment privilege" is waived, it must be protected against the possibility of resulting injustice. In Ellis v. Ellis, 651 So.2d 1068, 1073 (Miss.1995), the Mississippi Supreme Court advised the bar:
*198 The merits of this assigned error will not be reached for several reasons. First, [the Appellant] failed to cite any authority in support of this error and this Court has consistently held that an unsupported assignment of error will not be considered.
¶ 17. The most compelling procedural bar isas the State observesthat this Court has no idea from even a quite tedious review of the record what the content of the other statement was. The Mississippi Supreme Court has explained that "[o]ur law is clear that an appellant must present to us a record sufficient to show the occurrence of the error he asserts and also that the matter was properly presented to the trial court and timely preserved." Lambert v. State, 574 So.2d 573, 577 (Miss. 1990). While the trial court somewhat sua sponte conducted its own suppression hearing on the admissibility of Ms. Wansley's written and oral statements to Officer Hanna, Ms. Wansley's counsel never presented this issue for its resolution. Ms. Wansley's first issue is procedurally barred from appellate review for more than one reason; thus, this Court declines to review it further.
B. Ms. Wansley's second issue
¶ 18. Ms. Wansley adopts as her second issue the proposition that "[t]he Court erred in failing to instruct the jury that the testimony of accomplice Joey Farve should be weighed with great caution." In support of her position on her second issue, Ms. Wansley offers the following argument:
Where accomplice testimony is presented by the prosecution in a criminal case, an instruction should be given the jury to weigh such testimony with great caution; Burke v. State, 576 So.2d 1239, 1242 (Miss.1991); especially where there is some question as to the reasonableness of the testimony. Green v. State, 456 So.2d 757, 758 (Miss.1984). In the case before the Court, Farve's lie about the rifle and other questionable testimony render suspect the veracity of his entire statement.
¶ 19. The State counters Ms. Wansley's argument offered in support of her second issue as it countered her argument on her first issue, i.e., her second issue is procedurally barred because the record is clear that her defense counsel did not request that the trial judge grant such an instruction. The record is clear that Ms. Wansley's counsel filed no instruction in which the trial court would have instructed the jury to weight Joey Farve's testimony as an accomplice with great caution.
¶ 20. "The case law does not impose upon a trial court a duty to instruct the jury sua sponte, nor is a court required to suggest instructions in addition to those which the parties tender." Conner v. State, 632 So.2d 1239, 1254 (Miss.1993). In Ballenger v. State, 667 So.2d 1242, 1252 (Miss.1995), the appellant complained that the trial judge erred by refusing to grant a particular instruction, Instruction No. 22. While a copy of this particular instruction was included in the record, it bore no evidence that it had been filed or that the appellant's counsel had asked the trial court to consider it at all. Id. The Mississippi Supreme Court declined to find any error and explained:
Although D-22 is found in the court papers it is not marked in any fashion as being refused, given or withdrawn. There is no mention of D-22 in the transcript. Counsel did not draw it to the attention of the trial court during the discussion of jury instructions nor in Ballenger's motion for new trial. It is the appellant's duty to make sure a claimed error is properly preserved on record. This failure to make a sufficient record concerning instruction D-22 precludes Ballenger from complaining now that the instruction was not given.
Id. (citations omitted). Ballenger is more persuasive in the case sub judice because the record is bare of any "accomplice instruction." *199 Ms. Wansley's second issue is also procedurally barred.
¶ 21. However, Mississippi Rule of Appellate Procedure 28(a)(3) provides: "No issue not distinctly identified shall be argued by counsel, except upon request of the court, but the court may, at its option, notice a plain error not identified or distinctly specified." (emphasis added). Rule 28(a)(3) permits this Court to ignore the procedural bar to our review of Ms. Wansley's second issue only if this Court can classify the trial court's failure to instruct the jury about weighing Joey Farve's testimony as an accomplice with great caution as "plain error." In Burke v. State, 576 So.2d 1239, 1242 (Miss.1991), the supreme court noted that in Holmes v. State, 481 So.2d 319, 323 (Miss.1985), it "delineated a two-part test to determine whether a trial judge abused his discretion [in refusing to grant a cautionary instruction about an accomplice's testimony]. First, was the witness in fact an accomplice, and secondly, was his testimony without corroboration?"
¶ 22. In the case sub judice, Joey Farve was an accomplice; thus, the thrust of Ms. Wansley's second issue satisfies the first part of the Holmes test. Was Joey Farve's testimony about Ms. Wansley's participation in the burglary of Colonel Howell's home uncorroborated? Aside from Farve's testimony, the following facts established by the State's evidence corroborate Ms. Wansley's participation in the burglary: (1) registration of the Hinds County license plate on the automobile found in the apartment complex in Ms. Wansley's name, (2) the slick left front tire on this car was consistent with Officer Hanna's testimony that the left front tire track which he observed where he recovered the .22 caliber rifle from beneath a pile of wet leaves was slick, (3) Colonel Howell's identification of that same .22 caliber rifle as the one taken from near the kitchen door, (4) Colonel Howell's identification of the buck knife which Officer Hanna recovered from beneath the front seat of that automobile as his knife which he had kept in the "radio room" of his home, and, of course, (5) both the written and the oral confessions which Ms. Wansley gave Officer Hanna and which the trial court found to be admissible as informed, free, and voluntary statements given by Ms. Wansley.
¶ 23. Because the foregoing facts corroborate the testimony of accomplice Joey Farve that Ms. Wansley participated in the burglary of the Howell residence, Ms. Wansley's second issue fails the second part of the Holmes test is also satisfied. Therefore, there can be no "plain error" in the trial court's failure "to instruct the jury that the testimony of accomplice Joey Farve should be weighed with great caution," and the procedural bar remains intact.
IV. CONCLUSION
¶ 24. Both of Ms. Wansley's issues are procedurally barred. Her first issue is procedurally barred for several unrelated reasons, the most significant of which is that the record contains nothing about the content of any other statement which Ms. Wansley might have made. Indeed, Officer Hanna testified that while Ms. Wansley made other statements, she did not make them to him. The second issue is also procedurally barred because the record likewise contains nothing to indicate that Ms. Wansley's counsel filed a cautionary instruction or in any other manner requested the trial judge so to instruct the jury. Because there was no plain error to be found in her second issue, this Court enforces the procedural bar to our review of the second issue. Consequently, this Court affirms the trial court's judgment of the appellant's conviction of the felony of the burglary of a dwelling house and its sentence to serve a term of ten (10) years in the Mississippi Department of Corrections.
¶ 25. THE NESHOBA COUNTY CIRCUIT COURT'S JUDGMENT OF THE APPELLANT'S CONVICTION OF *200 THE FELONY OF BURGLARY OF A DWELLING HOUSE AND ITS SENTENCE OF THE APPELLANT TO SERVE TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.
BRIDGES, C.J., McMILLIN and THOMAS, P.JJ., DIAZ, KING, PAYNE, and SOUTHWICK, JJ., CONCUR.
IRVING and LEE, JJ., NOT PARTICIPATING.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
WILLIE VILLERY, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-630 (BAH)
)
DISTRICT OF COLUMBIA, et al. )
)
Defendants. )
)
MEMORANDUM OPINION AND ORDER
I. Introduction.
Plaintiff commenced this case in the Superior Court of the District of Columbia. See
Compl., ECF No. 8-1. Following removal of this case to this Court, Plaintiff noticed that his
complaint lacked several attachments that he claims to have attempted to file along with his
complaint in Superior Court. Pl.’s Mot. for Leave to Amend Compl. at 1, ECF No. 17
[hereinafter Mot.]. Plaintiff now moves for leave to amend his complaint to include those
attachments. Id. This motion will be denied in part as moot to the extent that Plaintiff may
amend once as a matter of course and will be granted in part to the extent that Plaintiff needs
leave of court to amend.
II. Legal Standard.
“A party may amend its pleading once as a matter of course within: (A) 21 days
after serving it, or (B) if the pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading or 21 days after service of a motion under
Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). “In all other cases
a party may amend its pleading only with the opposing party’s written consent or the
court’s leave” and “[t]he court should freely give leave when justice so requires.” Fed.
R.Civ. P. 15(a)(2).
A complaint is a pleading to which a responsive pleading is required. Fed. R.
Civ. P. 7(a)(2). Therefore, under Rule 15(a)(1)(B), a party has an absolute right to amend
its complaint at any time from the moment the complaint is filed until 21 days after the
earlier of the filing of a responsive pleading or a motion under Rule 12(b), (e), or (f).
Stone v. Dewey, No. 10-cv-159, 2011 WL 2784595, at *6 (N.D. Fla. July 14, 2011)
(citing James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 283 (D.C. Cir. 2000)).
In cases involving multiple defendants, a plaintiff may file an amended complaint as of
right concerning only those defendants who, at the time the plaintiff files his amendment,
have not yet filed an answer or a Rule 12(b), (e), or (f) motion, as well as those
defendants who, at the time the plaintiff files his amendment, have filed an answer or a
Rule 12(b), (e), or (f) motion, but who have made that filing exactly or fewer than 21
days before the plaintiff files his amendment. In other words, the plaintiff may not file his
amendment as a matter of right concerning those defendants who filed an answer or a
Rule 12(b), (e), or (f) motion more than 21 days before the plaintiff attempts to make
such a filing. See Scott-Blanton v. Universal City Studios Productions, LLP, 244 F.R.D.
67, 69 (D.D.C. 2007) (analyzing a previous formulation of Rule 15, which defined the
right to amend once as a matter of course by reference only to the filing of a responsive
pleading and which terminated that right upon the filing of a responsive pleading, and
concluding that “[i]f there is more than one defendant, and not all have served responsive
2
pleadings, the plaintiff may amend the complaint as a matter of course with regard to
those defendants that have yet to answer.”).
III. Analysis.
Plaintiff commenced this medical malpractice case on March 29, 2010 against the
District of Columbia (“the District”); the Office of the Attorney General of the District of
Columbia (“OAG”); Corrections Corporation of America, Inc. (“CCA”); Unity Health Care, Inc.
(“Unity”); Greater Southeast Community Hospital (“the Hospital”); and Gangagee Balkissoon,
M.D. Compl. at 1. On April 28, 2010, CCA moved to dismiss this case under Federal Rule of
Civil Procedure 12(b) or alternatively for summary judgment under Federal Rule of Civil
Procedure 56. See Def. Corr. Corp. of Am. Inc.’s Mot. to Dismiss or, in the Alternative, for
Summ. J., ECF No. 2. On April 29, 2010, Unity moved to substitute the United States as the
proper federal defendant, and the United States moved to dismiss this case under Rule 12(b).
Fed. Def.’s Mot. to Dismiss and to Substitute Def., ECF No. 5. On May 7, 2010, Dr. Balkissoon
answered the complaint. Def. Gangagee Balkissoon, M.D.’s Ans. to Compl., ECF No. 9. On
June 18, 2010, the District moved to dismiss this case under Rule 12(b). District of Columbia’s
Mot. to Dismiss, ECF No. 14. Conspicuously absent from the District’s motion, however, is any
mention of OAG; the motion does not purport to be filed on behalf of OAG as a part of the
government of the District, and it does not request that the case against OAG be dismissed. See
id. It appears, then, that OAG has made no filings in this case. On July 29, 2010, the Hospital
answered the complaint. See Ans., ECF No. 21.
By operation of the prisoner mailbox rule, see Houston v. Lack, 487 U.S. 266, 270–71
(1988), Plaintiff, who is imprisoned, filed his motion to amend on June 29, 2010—the date on
which he certifies that he placed his motion in the mail. See Mot. at 1. Plaintiff therefore filed
3
his motion before the Hospital filed its answer. Because OAG has made no filing, Plaintiff also
filed his motion before OAG filed anything. Although the United States has filed a Rule 12(b)
motion, the named defendant—Unity—has filed neither an answer nor Rule 12(b), (e), or (f)
motion; Unity has simply filed a motion to substitute. Therefore, Plaintiff may amend his
complaint as a matter of right as to Unity, OAG, and the Hospital. To the extent that Plaintiff
seeks the Court’s leave to make that amendment, he does not need it; his motion will be denied
in part as moot, and the amendment will simply be accepted as filed as to these defendants.
All other defendants—the District, CCA, and Dr. Balkissoon—filed answers or Rule
12(b) motions, and did so more than 21 days before Plaintiff filed his motion to amend his
complaint. The Court will grant Plaintiff leave to amend as to these defendants. The omission
of the attachments from Plaintiff’s complaint in Superior Court appears to have been through no
fault of his own; at most, Plaintiff mistakenly “did not use the correct procedure.” Mot. at 1. In
the interest of a complete record, and considering the wide latitude due pro se plaintiffs, see
Konarski v. Donovan, 763 F. Supp. 2d 128, 135 (D.D.C. 2011), the Court will permit Plaintiff to
amend his complaint to include those attachments.
IV. Conclusion and Order.
Plaintiff may amend his complaint as a matter of right as to Unity, OAG, and the
Hospital. The motion to amend will therefore be denied in part as moot, and the complaint
simply accepted as amended as to these defendants. The Court will grant Plaintiff leave to
amend as to the District, CCA, and Dr. Balkissoon. The motion to amend will therefore be
granted, and the complaint accepted as amended as to these defendants. The Court will direct the
Clerk of the Court to file the amended complaint as a separate docket entry. The Court will also
4
give all defendants an opportunity to amend their answers or responsive motions—or to file them
in the first place—in light of this amendment.
Accordingly, it is hereby
ORDERED that Plaintiff’s Motion for Leave to Amend Complaint, ECF No. 17, is
GRANTED in part and DENIED as moot in part; it is
FURTHER ORDERED that Plaintiff may amend his complaint once as a matter of
course concerning Unity Health Care, Inc.; Greater Southeast Community Hospital; and the
Office of the Attorney General of the District of Columbia; it is
FURTHER ORDERED that leave to amend the complaint is granted concerning the
District of Columbia; Corrections Corporation of America, Inc.; and Gangagee Balkissoon,
M.D.; it is
FURTHER ORDERED that the Clerk of the Court shall post as a new docket entry the
Amended Complaint, comprised of pages 4–10 of ECF No. 8-1, and the following exhibits: Peri-
Operative Record, ECF No. 8-1, p. 11; Peri-Operative Record, ECF No. 8-1, p. 12; Emergency
Department Triage/Initial Assessment, ECF No. 8-1, p. 13; Transfer Summary Form, ECF No. 8-
1, p. 14; Letter of Intent, ECF No. 17, p. 3; Letter of Intent, ECF No. 17, p. 4; Letter of Intent,
ECF No. 17, pp. 7–8; Letter of Intent, ECF No. 17, p. 9; Letter from Kelly Valentine, Letter of
Intent, ECF No. 17, p. 5; Inmate Grievance, ECF No. 17, pp. 10–11; Level 2 Grievance, ECF
No. 17, p. 12; Level 3 Grievance, ECF No. 17, p. 13; Inmate Grievance, ECF No. 17, pp. 14;
Level 2 Grievance, ECF No. 17, p. 15; Level 3 Grievance, ECF No. 17, p. 16; Receipt, ECF No.
17, p. 17; Letter from Patricia Britton, ECF No. 17, p. 18; Letter from Barbara J. Steward, ECF
No. 17, p. 19; it is
5
FURTHER ORDERED that the District of Columbia may file an amended version of
the District of Columbia’s Motion to Dismiss, ECF No. 14, on or before November 14, 2011; it
is
FURTHER ORDERED that the Office of the Attorney General of the District of
Columbia shall file its answer or a motion under Rule 12(b), (e), or (f) on or before November
14, 2011; it is
FURTHER ORDERED that the Corrections Corporation of America, Inc. may file an
amended version of Defendant Corrections Corporation of America, Inc.’s Motion to Dismiss or,
in the Alternative, for Summary Judgment, ECF No. 2, on or before November 14, 2011; it is
FURTHER ORDERED that Unity Health Care, Inc. shall file its answer or a motion
under Rule 12(b), (e), or (f) on or before November 14, 2011; it is
FURTHER ORDERED that Greater Southeast Community Hospital may file an
amended version of its Answer, ECF No. 21, on or before November 14, 2011; it is
FURTHER ORDERED that Gangagee Balkissoon, M.D., may file an amended version
of Defendant Gangagee Balkissoon, M.D.’s Answer to Complaint, ECF No. 9, on or before
November 14, 2011; and it is
FURTHER ORDERED that if any party that is herein granted leave to amend a
previously filed motion or answer declines to file such an amendment, such party’s earlier
unamended filing shall be considered as though directed at the Amended Complaint.
SO ORDERED this 27th day of October, 2011.
/s/
BERYL A. HOWELL
United States District Judge
6
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221 P.3d 642 (2010)
STAFFING KANSAS CITY, INC.
v.
R.J. DUTTON INC.
No. 101442.
Court of Appeals of Kansas.
January 8, 2010.
Decision Without Published Opinion Reversed and remanded with directions.
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781 F.Supp.2d 38 (2010)
NOR-DEC, INC., et al, Plaintiffs,
v.
VIRACON, INC., et al, Defendants.
Civil No. 08-1069 (DRD).
United States District Court, D. Puerto Rico.
November 29, 2010.
*39 Luis R. Rivera-Rodriguez, Luis Rafael Rivera Law Office, Michelle Annet Ramos-Jimenez, *40 Rivera Law Office, San Juan, PR, for Plaintiffs.
Luis M. O'Naghten, Akerman Senterfitt, Miami, FL, Raul M. Arias-Marxuach, Henry O. Freese-Souffront, McConnell Valdes, San Juan, PR, for Defendants.
OPINION AND ORDER
DANIEL R. DOMINGUEZ, District Judge.
I. PROCEDURAL HISTORY
The instant case is brought in diversity by Plaintiffs, who allege that Defendants are liable to Plaintiffs for their violation of Law 21, also known as Puerto Rico's Sales Representatives Act, P.R.Laws Ann. tit. 10, §§ 279-279h (2009). (Docket No. 1).
On April 16, 2010, Defendants filed a motion for summary judgment in the instant case (Docket No. 41). Therein, Defendants first argue that Plaintiffs Nor-Dec, Inc., Gustavo Suarez ("Plaintiff Suarez") and Marta "Kika" S. Pischner ("Plaintiff Pischner") lack standing and are not the real parties in interest in the instant case. Defendants assert that the true party in interest in the instant case is Nor-Dec International, Inc. ("Nor-Dec International"), who was not named as a plaintiff in the instant action. Further, Defendants argue that, even if Nor-Dec International, Inc., the real party in interest, was a plaintiff in the instant case, Nor-Dec International's claims would fail as it was not Defendant Viracon's ("Viracon") exclusive sales representative under Law 21. Finally, Defendants argue that Nor-Dec International, Inc. does not have a local presence in Puerto Rico and, accordingly, that the corporation's Law 21 claims have no merit for this reason as well. On May 24, 2010, Plaintiffs opposed Defendants' motion for summary judgment (Docket No. 48). Plaintiffs assert that the failure to include the word "International" when referring to Nor-Dec in the Complaint was unintentional, and note that even the address listed for Plaintiffs in the Complaint refers to Nor-Dec as "Nor-Dec International, Inc." Plaintiffs also abandon their claims raised by Plaintiffs Pischner and Suarez, stating that they acted only on behalf of the real party in interest, Nor-Dec International. Plaintiffs further assert that Defendants failed to prove that Nor-Dec International did not reach the threshold of establishing that it was the exclusive sales representative for Viracon's products in Puerto Rico.[1] Additionally, Plaintiffs allege that Defendants showed no "just cause" for termination of the business relationship between Viracon and Nor-Dec International.
Defendants filed their reply (Docket No. 51) to Plaintiffs' opposition on June 6, 2010. First, Defendants argue that Plaintiffs' opposing statement of material facts fails to comply with the local anti-ferreting rule and, accordingly, all Defendants' proposed uncontested facts should be admitted. Additionally, Defendants note that Plaintiffs have conceded that Nor-Dec, Inc., Plaintiff Suarez and Pischner lack standing. Finally, Defendants assert that Plaintiffs did not establish a genuine issue of material fact as to Nor-Dec International's lack of exclusive sales representative status as no documentary evidence supports this proposition and as the course of dealings shows that Viracon directly promoted and sold its products to customers in Puerto Rico.
Although Plaintiffs requested leave to file a sur-reply (Docket No. 45), which the *41 Court subsequently granted (Docket No. 46), the sur-reply was never filed.
II. SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be entered where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 324-325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Pursuant to the clear language of the rule, the moving party bears a two-fold burden: it must show that there is "no genuine issue as to any material facts;" as well as that it is "entitled to judgment as a matter of law." Vega-Rodriguez v. Puerto Rico, 110 F.3d 174, 179 (1st Cir.1997). A fact is "material" where it has the potential to change the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "genuine" where a reasonable jury could return a verdict for the nonmoving party based on the evidence. Id. Thus, it is well settled that "the mere existence of a scintilla of evidence" is insufficient to defeat a properly supported motion for summary judgment. Id.
After the moving party meets this burden, the onus shifts to the non-moving party to show that there still exists "a trial worthy issue as to some material facts." Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, 187 (1st Cir.1997).
At the summary judgment stage, the trial court examines the record "in the light most flattering to the non-movant and indulges in all reasonable references in that party's favor. Only if the record, viewed in this manner and without regard to credibility determinations, reveals no genuine issue as to any material fact may the court enter summary judgment."Cadle Co. v. Hayes, 116 F.3d 957, 959-60 (1st Cir.1997). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Summary judgment is inappropriate where there are issues of motive and intent as related to material facts. See Poller v. Columbia Broad. Sys., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962)(summary judgment is to be issued "sparingly" in litigation "where motive and intent play leading roles"); see also Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982)("[F]indings as to design, motive and intent with which men act [are] peculiarly factual issues for the trier of fact."); see also Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir.2000)(finding that "determinations of motive and intent ... are questions better suited for the jury"). Conversely, summary judgment is appropriate where the nonmoving party rests solely upon "conclusory allegations, improbable inferences and unsupported speculation." Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir.1996).
III. FACTUAL BACKGROUND
When analyzing a motion for summary judgment, the Court must view the facts in the light most favorable to the non-moving party, in this case favoring Plaintiff. See Vera v. McHugh, 622 F.3d 17, 25-27 (1st Cir.2010); see also Agusty-Reyes v. Dept. of Edu., 601 F.3d 45, 48 (1st Cir.2010); see also Cadle Co., 116 F.3d at *42 959-60. However, while the Court "draw[s] all reasonable inferences in the light most favorable to [the non-moving party] ... we will not draw unreasonable inferences or credit bald assertions, empty conclusions or rank conjecture." Vera, 622 F.3d at 26 (internal quotations and citation omitted). Further, the Court will not consider hearsay statements nor allegations presented by parties that do not properly provide specific reference to the record. See L.CIV.R. 56(e)("The [C]ourt may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The [C]ourt shall have no independent duty to search or consider any part of the record not specifically referenced."); see also Morales v. A.C. Orssleff's EFTF, 246 F.3d 32, 33 (1st Cir.2001) (finding that, where a party fails to buttress factual issues with proper record citations, judgment against that party may be appropriate); see also Garside v. Osco Drug, Inc., 895 F.2d 46,, 50 (1st Cir.1990)("Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.")
As Defendants correctly noted, Plaintiffs failed to comply with Local Rule 56, which represents this District's antiferreting rule. Specifically, Plaintiffs failed to admit, deny or qualify each of Defendants' proffered undisputed material facts in their opposing statement of fact. See Local Rule 56(c) ("The opposing statement [of material facts] shall admit, deny or qualify the facts supporting the motion for summary judgment by reference to each numbered paragraph of the moving party's statement of material facts."). Accordingly, the Court deems those facts admitted for the purposes of the recitation below. See e.g. Puerto Rico Am. Ins. Co. v. Rivera-Vasquez, 603 F.3d 125, 131 (1st Cir.2010) (stating that "parties [who] ignore the strictures of [Puerto Rico's] `antiferret' rule [do so] at their peril" when they fail to follow the letter of Rule 56 by clearly admitting, denying or qualifying in numerical order proposed uncontested facts); see also A.C. Orssleffs EFTF, 246 F.3d at 33 (affirming this District Court's grant of summary judgment where the Court refused to consider facts which were not presented in compliance with the precursor to the current anti-ferreting rule). With this determination and the aforementioned anti-ferreting rule in mind, the Court proceeds to recite the relevant facts in the instant action.
Nor-Dec was a corporation organized under the laws of the Commonwealth of Puerto Rico by Gaston Suarez and Jesus Norniella in 1966. Gaston Suarez is Plaintiff Suarez and Pischner's father; Jesus Norniella is their uncle. On October 19, 1992, Nor-Dec merged with two other companies. The only surviving business entity after the merger was M.T., Inc.
Nor-Dec International is a corporation which was organized under the laws of the State of Florida in 1984. At the time of incorporation, three officers were listed: Gaston Suarez ("Suarez"), Plaintiff Pischner and Plaintiff Suarez. Nor-Dec International's principal place of business is in Miami, Florida.
In 1997, Gaston Suarez was Nor-Dec International's Director. Plaintiff Suarez was Vice-President and Plaintiff Pischner was Treasurer. At the time when the Complaint was filed, Plaintiff Suarez was Nor-Dec International's President and a resident of the State of Florida. Plaintiff Suarez assumed that position in 2000. He maintained his office in Miami, Florida. At the time when the Complaint was filed, Plaintiff Pischner was the International Director of Nor-Dec International and a resident of the State of Florida, who maintained her office in Miami, Florida.
*43 Viracon is a Minnesota corporation with its principal place of business in Owatonna, Minnesota. Viracon is an architectural glass fabricator which fabricates glass into high or value-added glass compositions used primarily in commercial construction. Viracon had a sales representation relationship with Nor-Dec International, which was paid in commission checks sent to the corporation's Miami, Florida office.
Luis Carbajal ("Carbajal") was employed by Viracon between January of 1995 and December of 2003. He began working for the company as a sales representative in Mexico and, by the end of 1995, had earned the position of Latin American Sales Manager. His duties included creating sales, looking for prospective independent representatives in Latin American and the Caribbean and managing sales and independent sales representatives in those regions. The commissioned independent sales representatives' purpose was to assist Viracon in selling their products directly to customers.[2] Viracon's sales representative agreements were primarily in verbal form.
At the time when Carbajal became Latin American Sales Manager, Viracon had an independent sales representative in Puerto Rico named Ron Wattonville ("Wattonville"). The relationship between Wattonville and Viracon ended between 1996 and 1997. According to Carbajal's present-day recollection, at the time when he became the Latin American Sales Manager, Viracon's Puerto Rico customers were Valcor, Tropicair, Lausell and Trapote.
In 1995, Carbajal met Pischner and Plaintiff Suarez in Minneapolis. By 1996, Pischner and Plaintiff Suarez had begun discussing a sales representative agreement with Viracon. They also discussed commission percentages, promotion, advertising and trade shows. In January of 1997, Viracon and representatives of Nor-Dec International further discussed making Nor-Dec International a representative of Viracon in Puerto Rico. On February 17, 1997, Carbajal sent Plaintiff Suarez a fax which included Viracon's "International Business Principles Outside Sales Representatives." That document was dated June 6, 1995 and stipulated that the commission due to sales representatives was 3%. The document did not state that Viracon would refrain from appointing additional sales representatives in a given territory. Further, the document did not state that Viracon would refrain from promoting, quoting, pricing and selling its products directly to customers in the region assigned to an outside sales representative, as they previously had done in Puerto Rico.
There was no written sales representation agreement between Viracon and Nor-Dec International; further, Carbajal can not recall ever issuing any document in which he characterized Nor-Dec International as an "exclusive" sales representative in Puerto Rico, nor have Plaintiffs produced such a document. Plaintiffs rely upon the deposition testimony of a Nor-Dec International employee, Eduardo Gonzalez ("Gonzalez") to support their assertion that Nor-Dec International was the *44 exclusive sales representative in Puerto Rico. Specifically, Gonzalez testified that Carbajal told him that Gonzalez was invited to a training program in Minnesota because Nor-Dec International has "exclusivity" in Puerto Rico.[3]
Although Viracon maintained a sales representative in Puerto Rico prior to the appointment of Nor-Dec International as its representative, Nor-Dec International was Viracon's only third-party sales representative in Puerto Rico during the relevant period of time. During the course of its dealings with Viracon, Nor-Dec International absorbed some costs of doing business, including fees relating to advertising. Although Nor-Dec International absorbed promotional expenses within Puerto Rico, Viracon provided Nor-Dec International with literature and samples to distribute.
According to Carbajal, Nor-Dec International became a sales representative for Viracon in Puerto Rico on or around February 17, 1997. Although the volume of sales increased from around this time until 2004, the customer base[4] remained primarily the same as it was prior to the retention of Nor-Dec International as a sales representative. Further, the gross sales declined between 2004 and 2007. As a matter of course, Viracon did not assign competing representatives within a territory in which it already had an independent sales representative. Nor-Dec International received commissions for nearly all projects completed in Puerto Rico, even sales which were generated directly from Viracon's offices.
Nonetheless, the facts presented in the instant case show that at least one project in Puerto Rico, which involved the installation of Viracon glass in the Puerto Rico Convention Center, did not result in commission paid to Nor-Dec International. This project originated with an order for glass which was placed with Viracon's Domestic Sales Department, the installation was performed by a company from the U.S. mainland and commission was paid to Viracon's sales representative in Chicago. Plaintiffs assert that Gonzalez "made efforts to sell the Viracon glass" for the project, however.
Viracon utilized its sales representatives to represent Viracon in the market; Viracon usually engaged directly in quotation activity with the customer and Viracon determined the final selling prices. Viracon would send its employees to trade shows in Puerto Rico. However, Nor-Dec International lobbied for lower prices for customers and reported to Carbajal frequently, preparing reports regarding jobs which they pursued on a weekly basis.
*45 Prior to 2002, when Nor-Dec International hired Gonzalez as their employee in Puerto Rico, Nor-Dec International had no employees in Puerto Rico. Nor-Dec International does not maintain an office in Puerto Rico. Rather, when representatives of Nor-Dec International visited Puerto Rico, they used a conference room located in the Condado office of Architect Luis Gutierrez ("Architect Gutierrez") to make presentations about Viracon's newest products to Architect Gutierrez and other invited architects. Nor-Dec International also stored glass samples and catalogs at Architect Gutierrez' office and prepared presentations there; the stored material occupied approximately twenty five (25) square feet. Architect Gutierrez testified that Nor-Dec International did not meet with clients at his offices.[5] Nor-Dec International did not have a lease agreement with Architect Gutierrez, nor did it pay rent for use of the conference room or other space. Nor-Dec International does not have a telephone number listed in Puerto Rico, nor does Nor-Dec International have a warehouse in Puerto Rico. Instead, Nor-Dec International borrowed space in another company's warehouse[6] to store catalogs, product samples and a beam splitter machine. The total warehouse space occupied was approximately ten (10) square feet. The use of the warehouse was not regulated by a lease agreement, nor did Nor-Dec International pay for use of the space. Nor-Dec International is not registered with the Puerto Rico Department of State, nor has it ever filed tax returns in Puerto Rico or deducted Puerto Rico income taxes from Gonzalez, Suarez or Pischner's wages.
In January of 1998, Carbajal sent a fax to Plaintiff Suarez, notifying him that Nor-Dec International was receiving commissions on sales that were generated directly from Viracon's offices, although most sales at that time originated with Viracon, rather than with Nor-Dec International. Specifically, those sales were either made as a result of phone calls placed directly to Viracon by customers or by internal processes within Viracon.
In 2002, Nor-Dec International appointed Gonzalez[7] as their first employee in Puerto Rico. Gonzalez' duties included visiting Viracon's customers in Puerto Rico in order to bring them samples and catalogs, discuss projects, communicate to Viracon what was occurring in the marketplace, give Viracon feedback on upcoming projects and undertake job site inspections. Plaintiffs have not produced any record of payment to Gonzalez after March of 2004, nor have they produced any reports authored by him after 2003. The record reflects that Gonzalez was reassigned to the Dominican Republic in or around March of 2004.[8]
Joseph Effertz ("Effertz") is Viracon's Director of International Sales, who acquired this position in January of 2004. Effertz provided deposition testimony that, during the summer of 2007, Plaintiff Suarez ceased returning his phone calls and *46 follow-up emails. On October 1, 2007, Effertz wrote a letter to Nor-Dec International terminating the sales representation agreement between that company and Viracon.
IV. DISMISSAL OF CLAIMS BROUGHT BY GUSTAVO SUREZ AND KIKA PISCHNER
In its motion for summary judgment, Defendant first requests that the Court dismiss all claims brought by Gustavo Suarez and Kika Pischner as these two Plaintiffs lack standing in the instant case. See e.g. Pagan v. Calderon, 448 F.3d 16, 28 (1st Cir.2006) (noting that shareholders and employees of a corporation typically do not have standing to sue for injury inflicted upon the corporation). In their opposition, Plaintiffs do not contest this, but, rather, assert that they never intended to argue that Plaintiffs Suarez and Pischner had standing in the instant case. Instead, Plaintiffs claim that they intended to name Nor-Dec International[9] as the sole Plaintiff in the instant case. Thus, as Plaintiffs themselves acknowledge that Plaintiffs Suarez and Pischner lack standing in the instant case, the Court GRANTS Defendant's request to DIMISS WITH PREJUDICE the claims brought by these Plaintiffs. The sole remaining Plaintiff at this time, therefore, is Nor-Dec International.
V. LAW 21
Defendants next move for brevis disposition of the remaining Plaintiff, Nor-Dec International's, claim, which arises under Law 21. Law 21, the Sales Representative Act of 1990, P.R.Laws Ann. tit. 10, § 279 et seq, was enacted by the Puerto Rico Legislature "in order to fill the void left by the Puerto Rico Dealer's Act ("Law 75"), P.R.Laws Ann. tit. 10, § 278 et seq, which did not protect sales representatives." Orba, Inc. v. MBR Indus., Inc., 49 F.Supp.2d 67, 70-71 (D.P.R.1999)(citing Statement of Motives, Laws of Puerto Rico (Dec. 5, 1990)); see also IOM Corp. v. Brown-Forman Corp., 553 F.Supp.2d 58, 64 n. 9 (D.P.R.2007). Thus, when the legislature drafted Law 21, they modeled it after Law 75. Rafael Rodriguez Barril, Inc. v. Conbraco Indus., Inc., 619 F.3d 90, 93-94 (1st Cir.2010). Accordingly, it is generally accepted that jurisprudence applicable to Law 75 applies to Law 21 as well. E.g. IOM Corp., 553 F.Supp.2d at 64 n. 9.
"Law 21 protects Puerto Rico sales representatives from arbitrary terminations after they create a market for their principals... [and a]n essential element of a Law 21 claim is the existence of an `exclusive sales representation contract.'" Innovation Mktg. v. Tuffcare, Inc., 31 F.Supp.2d 218, 220 (D.P.R.1998)(emphasis theirs)(quoting P.R.Laws Ann. tit. 10 § 279). The legislature intended that the statute protect from termination without just cause sales representatives who "assume all the operational costs which such representation entails, such as the cost of maintaining an office, exhibition rooms, cars, office personnel, phones, electricity, water, insurance, travel costs, representation costs, office supplies and municipal patents." Statement of Motives, Laws of Puerto Rico (Dec. 5, 1990).
*47 Law 21 defines a sales representative as "an independent entrepreneur who establishes a sales representation contract of an exclusive nature, with a principal or grantor, and who is assigned a specific territory or market, within the Commonwealth of Puerto Rico." P.R.Laws Ann. tit. 10 § 279(a). However, Law 21 fails to define what constitutes an exclusive contract and local courts have yet to conclusively interpret its meaning in translated opinions properly considered by this District Court. Innovation Mktg., 31 F.Supp.2d at 221. Thus, this District Court has previously looked to the principles of interpretation under Law 75 to find that "exclusivity is generally apparent either from the contract or from the arrangements agreed upon between the parties." Id. (citing Ballester Hermanos, Inc. v. Campbell Soup, Co., 797 F.Supp. 103, 105 (D.P.R.1992) and R.W. Intern. Corp. v. Welch Food, Inc., 13 F.3d 478 (1st Cir. 1994)).
A. EXCLUSIVITY
Defendants argue that Nor-Dec International's claim should be dismissed as the sales representative relationship between Nor-Dec International and Viracon was not of an exclusive nature. Defendants point to the existence of a previous sales representative in Puerto Rico, which operated in the same territory later occupied by Nor-Dec International, as support of this argument. Defendants also note that there is no written sales representation contract and that no other documents exist granting Nor-Dec International exclusivity within Puerto Rico. Defendants concede that a course of conduct may show a grant of exclusivity, but states that such a course of conduct did not exist here as Viracon always operated directly in the Puerto Rico market alongside Nor-Dec International. In response, Plaintiff asserts that no other third-party sales representatives operated in Puerto Rico concurrently with Nor-Dec International and that Nor-Dec International received commissions on all projects in Puerto Rico.
Upon review of the record, the Court agrees with Defendants' statement that none of the proffered business documents describe or document the existence of an exclusive sales representative contract between Viracon and Nor-Dec International. Additionally, it remains undisputed that, although Viracon paid commissions to Nor-Dec International for the great majority of the orders placed for projects in Puerto Rico, regardless of whether the order originated with Nor-Dec International or with Viracon, Nor-Dec International did not receive commission for at least one project, the Puerto Rico Convention Center.[10] In fact, it appears from the record that Nor-Dec International directly competed with the Viracon sales representative who ultimately made the sale. Under the jurisprudence of the Supreme Court of Puerto Rico, this type of direct competition precludes a finding that Plaintiff was, in fact, an exclusive sales representative. See Cruz Marcano v. Sanchez Tarazona, 2007 TSPR 198, 172 D.P.R. *48 526 (2007)[11]("Therefore, in the case of a sales representative agreement protected by Law 21, the principal cannot, on his own or through a third party, perform the same tasks that he has conferred to the agent; that is, he could not operate in the territory or market of the agent.")
The only evidence of record which the Court can find indicating any degree of potential exclusivity between Viracon and Nor-Dec International is in the deposition testimony of Nor-Dec International employee Gonzalez. However, the testimony itself is vague and does not directly indicate that the relationship between the parties was that of a principal and its exclusive sales representative. Rather, it could easily be interpreted to refer to a particular line or type of glass sold by Viracon or to refer to the de-facto quasi-exclusivity enjoyed by Nor-Dec as it received commissions on nearly all sales made in Puerto Rico, even those initiated by Viracon. The Court shall not find that a trial-worthy issue of material fact exists based upon such weak evidence. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (finding that "the mere existence of a scintilla of evidence" is insufficient to create a genuine issue of material fact).
Further, Gonzalez began his employment with Nor-Dec International in Puerto Rico in 2002; therefore, the statement regarding exclusivity which he attributed to Carbajal could not have been made prior to this time. Thus, at least five years had passed between the initiation of the sales representation arrangement between parties and the statement attributed to Carbajal. In light of the vagueness of the testimony and its belated nature, combined with evidence showing that Viracon competed with Plaintiff in Puerto Rico, the Court finds that no genuine issue of material fact exists as to the exclusivity of the sales representation agreement between Plaintiff and Viracon and, accordingly, GRANTS the pending motion for summary judgment.
B. LOCAL PRESENCE
In the alternative, Viracon also asserts that Nor-Dec International is not a protected dealer under the terms of Law 21 as it does not have sufficient "local presence" to qualify as a protected sales representative. It is uncontested that Nor-Dec International was Viracon's sales representative in Puerto Rico and that it absorbed some fees and other costs of doing business there. Further, Nor-Dec International indeed appointed an employee, Gonzalez, in Puerto Rico; however, he only represented Nor-Dec International in Puerto Rico for a fraction of the relevant time-period.
Notwithstanding, Nor-Dec International is incorporated in Florida and the offices of its chief officers are in Miami. Nor-Dec International is not registered with the Puerto Rico Department of State and has never filed tax returns in Puerto Rico. Further, Nor-Dec International does not rent any warehouse space or office space in Puerto Rico. Rather, Nor-Dec International uses warehouse space belonging to another corporation free-ofcharge and occasionally utilizes the office space of an architect for presentations, storing brochures there as well.[12] Although Nor-Dec International employed Gonzalez to work in Puerto Rico, this employment relationship only spanned a very limited time during the duration of the *49 business relationship between Nor-Dec International and Viracon. The Court finds that these dealings weigh strongly against a finding of local presence as required for application of Law 21. See Statement of Motives, Laws of Puerto Rico (Dec. 5, 1990)(noting that the legislature intended the statute to protect sales representatives who assume operational costs of doing business, such as maintaining an office, in Puerto Rico);[13]see also A.M. Capen's Co., Inc. v. Am. Trad. and Prod. Corp., 202 F.3d 469, 471 (1st Cir.2000)(holding in an analogous Act 75 context that where a company had no employees, no office space or warehouses and no assets in Puerto Rico, and merely sent an agent to Puerto Rico periodically, there was insufficient local presence for application of the Act). Thus, the Court finds that Plaintiffs' claim is deficient both in exclusivity and in local presence.
VI. CONCLUSION
Hence, for the reasons stated above, the Court GRANTS Defendant's motion for summary judgment (Docket No. 41) and DISMISSES WITH PREJUDICE Plaintiffs' claims. Judgment shall be entered accordingly.
IT IS SO ORDERED.
NOTES
[1] However, the Court notes that Plaintiffs bear the burden of proving that they are protected under the law, as discussed infra.
[2] The precise language of the deposition testimony of a Viracon employee from which this fact is derived is as follows:
Q: How would you conduct the sales in that region in Puerto Rico?
A: We would sell directly from Viracon, so we would promote and we would quote and price. And we would interact with orders directly from Viracon directly to the customers from our offices in Owatonna, Minnesota. And the intention of having commissioned sales representatives was to ask for assistance in us selling directly to those customers.
(Docket No. 42-7, p. 23, 1. 13-21).
[3] Gonzalez' precise testimony as cited by Plaintiffs is as follows:
Q: Okay. Now, when you say that Nor-Dec International had exclusivity here in Puerto Rico in relation to Viracon, what do you mean?
A: That us, Nor-DecViraconweNor-Dec had that linethat exclusive line of Viracon (mispronounced) here in Puerto Rico.
MR. ARIAS: "Viracon"
THE INTERPRETER: Viracon
BY MR. ARIAS Q: But again, what do you mean by the term "exclusive"?
A: Exclusive, That's what I was told when I went for training over there in Minnesota, that this linethey said to me, "You came to this training because you have exclusivity. You have exclusivity of this glass in Puerto RicoInternational," but I was the one who represented it here.
Q: Who told you this?
A: Juanthe person who changed his name. Luis Carvajal [sic] Seva.
(Docket No. 42-21, p. 1-2).
[4] The customer base consisted of glazing contractors, who install architectural glass and aluminum in buildings.
[5] Although Plaintiffs assert that Nor-Dec International met with clients at Architect Gutierrez' offices, the citations to the record which they provide in support of this proposition do not reflect their assertion.
[6] This company was owned by Jesus Norniella, a founder of the original Nor-Dec corporation.
[7] Gonzalez had previously worked for Nor-Dec International in another capacity.
[8] Although Plaintiffs contest the year in which Gonzalez moved to the Dominican Republic, they relinquished this argument by failing to properly contest this fact in the manner proscribed by the Local Rules. Thus, as already discussed, the Court deemed this properlysupported fact admitted.
[9] Plaintiffs also state that their failure to properly name Nor-Dec International as a party was a mere oversight and that they always intended to name Nor-Dec International, rather than Nor-Dec, as a plaintiff. Plaintiffs support this contention with citations to the record. Defendant appears to accept this explanation in its reply and, thus, the Court does not address this issue raised by Defendant in its motion for summary judgment further herein.
[10] The Court finds it pertinent to note herein that Nor-Dec International failed to assert that this project constituted the diminishment or impairment of its duties as an allegedly exclusive sales representative. See P.R.Laws Ann. tit. 10 § 278a (forbidding principals or grantors from "directly or indirectly perform[ing] any act detrimental to the established relationship" thereby impairing the relationship). Thus, rather than forming a potential basis for Plaintiffs' claim that Defendants violated Nor-Dec International's exclusive sales representative status, it becomes fodder for the view that such a status never existed.
[11] Certified translation appears on the record at Docket No. 57-1.
[12] The Court also notes that the actual space utilized in the warehouse and in the office is de minimis, representing a very small area.
[13] As stated by the Puerto Rico Supreme Court in an Act 75 context, cited herein by analogy, no single criterium is determinative when judging presence in Puerto Rico, nor is any criterium afforded more weight than another; the Court's inquiry as to local presence is thus a holistic one, in which the Court considers all relevant factors. See Roberco, Inc. v. Oxford Indus., Inc., 22 P.R.Offic. Transl. 107, 117, 122 D.P.R. 115 (1988). As stated above, many of these factors weigh strongly towards a finding that Nor-Dec International did not maintain a local presence under the terms of Law 21. However, the Court does not base its decision on a determination that Nor-Dec International lacked a local presence as it has already determined that Nor-Dec International lacked exclusivity. Thus, the Court merely notes herein that Nor-Dec International's claim is deficient both in local presence and in exclusivity criteria.
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Cite as: 586 U. S. ____ (2019) 1
KAVANAUGH
Statement of ,K
J., dissenting
AVANAUGH , J.
SUPREME COURT OF THE UNITED STATES
MORRIS COUNTY BOARD OF CHOSEN
FREEHOLDERS, ET AL.
18–364 v.
FREEDOM FROM RELIGION
FOUNDATION, ET AL.
THE PRESBYTERIAN CHURCH IN
MORRISTOWN, ET AL.
18–365 v.
FREEDOM FROM RELIGION
FOUNDATION, ET AL.
ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME
COURT OF NEW JERSEY
Nos. 18–364 and 18–365. Decided March 4, 2019
The petitions for writs of certiorari are denied.
Statement of JUSTICE KAVANAUGH, with whom JUSTICE
ALITO and JUSTICE GORSUCH join, respecting the denial of
certiorari.
Morris County, New Jersey, distributes historic preser-
vation funds to help preserve local buildings such as li-
braries, schoolhouses, performing arts centers, and muse-
ums. As part of that program, Morris County also
distributes funds to help preserve religious buildings such
as synagogues, temples, churches, and mosques. But it
turns out that New Jersey law, as recently interpreted by
the New Jersey Supreme Court, prohibits Morris County
from awarding grants to preserve religious buildings.
The petitioners here argue that the State’s exclusion of
religious buildings—because they are religious—from
Morris County’s historic preservation program constitutes
unconstitutional discrimination against religion in viola-
tion of the First and Fourteenth Amendments to the United
2 MORRIS COUNTY BD. OF CHOSEN FREEHOLDERS v.
FREEDOM FROM RELIGION FOUNDATION
Statement of KAVANAUGH, J.
States Constitution. The New Jersey Supreme Court
concluded that the State’s discrimination did not violate
the First and Fourteenth Amendments.
In my view, the decision of the New Jersey Supreme
Court is in serious tension with this Court’s religious
equality precedents.
As this Court has repeatedly held, governmental dis-
crimination against religion—in particular, discrimination
against religious persons, religious organizations, and
religious speech—violates the Free Exercise Clause and
the Equal Protection Clause. In the words of Justice
Brennan, the “government may not use religion as a basis
of classification for the imposition of duties, penalties,
privileges or benefits.” McDaniel v. Paty, 435 U. S. 618,
639 (1978) (opinion concurring in judgment). Under the
Constitution, the government may not discriminate
against religion generally or against particular religious
denominations. See Larson v. Valente, 456 U. S. 228, 244
(1982).
The principle of religious equality eloquently articulated
by Justice Brennan in McDaniel is now firmly rooted in
this Court’s jurisprudence. As Justice Kennedy later
wrote for the Court, a law may not discriminate against
“some or all religious beliefs,” and “a law targeting reli-
gious beliefs as such is never permissible.” Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532,
533 (1993). Put another way, the government may not
“impose special disabilities on the basis of . . . religious
status.” Employment Div., Dept. of Human Resources of
Ore. v. Smith, 494 U. S. 872, 877 (1990).
We have applied that bedrock principle of religious
equality in numerous cases. See, e.g, Trinity Lutheran
Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017);
Good News Club v. Milford Central School, 533 U. S.
98 (2001); Rosenberger v. Rector and Visitors of Univ. of
Va., 515 U. S. 819 (1995); Lamb’s Chapel v. Center
Cite as: 586 U. S. ____ (2019) 3
Statement of KAVANAUGH, J.
Moriches Union Free School Dist., 508 U. S. 384 (1993);
McDaniel, 435 U. S. 618.
For example, in McDaniel, a Tennessee statute disquali-
fied ministers from serving as delegates to Tennessee’s
constitutional convention. The Court ruled the statute
unconstitutional, explaining that the Constitution does
not allow the government to discriminate against religious
persons by prohibiting their service in a public office. See
435 U. S., at 629.
In Good News, a school district in New York allowed
residents to use the local public high school for social,
civic, and recreational events. But the school district
prohibited a religious organization from using the school,
simply because the organization was religious. This Court
held that the school district’s exclusion of the religious
organization was unconstitutional discrimination against
religion. See 533 U. S., at 109.
That same principle of religious equality applies to
governmental benefits or grants programs in which reli-
gious organizations or people seek benefits or grants on
the same terms as secular organizations or people—at
least, our precedents say, so long as the government does
not fund the training of clergy, for example. See Trinity
Lutheran, 582 U. S., at ___ (slip op., at 13); Locke v. Davey,
540 U. S. 712, 721, 725 (2004).
In Trinity Lutheran, Missouri barred a religious school
from obtaining a state funding grant for the school’s play-
ground. By contrast, Missouri allowed secular private
schools to obtain state funding grants for their schools’
playgrounds. This Court held that Missouri’s law was
unconstitutional. The Court stated that the Constitution
“protects religious observers against unequal treatment.”
582 U. S., at ___ (slip op., at 6) (alterations omitted). In
the Court’s description, Missouri’s law reflected an uncon-
stitutional policy of “No churches need apply.” Id., at ___–
___ (slip op., at 13–14). The Court minced no words: Dis-
4 MORRIS COUNTY BD. OF CHOSEN FREEHOLDERS v.
FREEDOM FROM RELIGION FOUNDATION
Statement of KAVANAUGH, J.
criminating against religious schools because the schools
are religious “is odious to our Constitution.” Id., at ___
(slip op., at 15).
In this case, New Jersey’s “No religious organizations
need apply” for historic preservation grants appears simi-
lar to, for example, Missouri’s “No religious schools need
apply” for school playground grants and New York’s “No
religious clubs need apply” for use of school facilities and
Tennessee’s “No ministers need apply” for state office.
To be clear, this is not a case like Lee v. Weisman, 505
U. S. 577 (1992); Marsh v. Chambers, 463 U. S. 783 (1983);
or County of Allegheny v. American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U. S. 573 (1989), where
the government itself is engaging in religious speech, such
as a government-sponsored prayer or a government-
sponsored religious display. Nor is this a case like Bur-
well v. Hobby Lobby Stores, Inc., 573 U. S. 682 (2014), or
Smith, 494 U. S. 872, where a religious group or person is
asking for an accommodation or exemption from a gener-
ally applicable law. Under the Court’s precedents, both of
those categories of cases can pose difficult questions. This
kind of case, by contrast, should not be as difficult: Bar-
ring religious organizations because they are religious
from a general historic preservation grants program is
pure discrimination against religion.
* * *
At some point, this Court will need to decide whether
governments that distribute historic preservation funds
may deny funds to religious organizations simply because
the organizations are religious. But at this point and in
this case, it is appropriate to deny certiorari, for two main
reasons. First, the factual details of the Morris County
program are not entirely clear. In particular, it is not
evident precisely what kinds of buildings can be funded
under the Morris County program. That factual uncer-
Cite as: 586 U. S. ____ (2019) 5
Statement of KAVANAUGH, J.
tainty about the scope of the program could hamper our
analysis of petitioners’ religious discrimination claim.
Second, this Court decided Trinity Lutheran only recently,
and there is not yet a robust post-Trinity Lutheran body of
case law in the lower courts on the question whether
governments may exclude religious organizations from
general historic preservation grants programs.
For those reasons, denial of certiorari is appropriate. As
always, a denial of certiorari does not imply agreement or
disagreement with the decision of the relevant federal
court of appeals or state supreme court. In my view,
prohibiting historic preservation grants to religious organ-
izations simply because the organizations are religious
would raise serious questions under this Court’s prece-
dents and the Constitution’s fundamental guarantee of
equality.
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2 F.3d 519
1994 A.M.C. 583
Brad J. GORMAN, As Owner of a 1990 Wellcraft Scarab-Viper,New Jersey Registration No. 0364FO for Exonerationfrom or Limitation of Liability, in aCause of Action Civil andMaritime, Appellant,v.Robert L. CERASIA, Individually and as General Administratorand Administrator Ad Prosequendum of the Estates of RobertJ. Cerasia and Michael C. Cerasia, Deceased; CaroleCerasia, Individually; Anthony Dinallo, Individually and asGeneral Administrator of the Estate of Robert J. Dinallo, Deceased.
No. 92-5601.
United States Court of Appeals,Third Circuit.
Argued July 8, 1993.Decided Aug. 16, 1993.As Amended Sept. 8, 1993.
George A. Smith (argued), James S. McMahon, Bigham, Englar, Jones & Houston, Newark, NJ, for appellant.
Steven P. Benenson (argued), Riker, Danzig, Scherer, Hyland & Perretti, Morristown, NJ, for appellees.
Before: SLOVITER, Chief Judge, NYGAARD and WEIS, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Chief Judge.
1
In this interlocutory appeal in an admiralty case, Brad J. Gorman appeals from the order of the district court vacating portions of its earlier stay and permitting appellees Robert L. Cerasia and Carole Cerasia to proceed with their state court tort action against him. The action was instituted by the Cerasias after their two teenaged sons were killed when the boat in which they were passengers collided with a boat owned and operated by Gorman. Gorman then filed a complaint in the United States District Court for the District of New Jersey for exoneration from or limitation of liability pursuant to the Limited Liability Act, 46 U.S.C. app. Secs. 181-196 (1988). In accordance with the provisions of the Act, the district court enjoined the state court action pending resolution of the underlying admiralty proceeding, but after the state plaintiffs filed stipulations recognizing Gorman's right to litigate the issue of limited liability in the admiralty proceeding, the court partially lifted the stay. It is from this modification of the stay that Gorman appeals.
I.
Facts and Procedural Posture
2
On the evening of August 10, 1991, Gorman was operating a 1990 Wellcraft Scarab-Viper power vessel in Barnegat Bay off the coast of New Jersey. At approximately 10:00 P.M. the Wellcraft passed a northbound vessel owned by Steven Pyskaty. Immediately thereafter, the Wellcraft and a sixteen-foot 1985 Boston Whaler Montauk, owned by appellee Anthony Dinallo and operated by his son Robert, collided. Also on board the Dinallo boat were two teenaged brothers, Michael and Robert J. Cerasia. All three individuals drowned as a result of the collision.
3
On February 7, 1992, Robert L. and Carole Cerasia, the parents of the decedents, filed a tort action against Gorman, Anthony Dinallo, and Pyskaty in the Superior Court of Essex County, New Jersey, asserting that the defendants acted negligently and were jointly and severally liable for the accident. Robert Cerasia brought suit in his individual capacity and as administrator of the decedents' estates, seeking damages under the New Jersey Wrongful Death Act, N.J.Stat.Ann. Sec. 2A:31-1 to 2A:31-6 (West 1987), for pecuniary loss resulting from the death of the two boys. He also asserted a claim under the New Jersey Survival Statute, N.J.Stat.Ann. Sec. 2A:15-3 (West 1987), for the personal injuries and pain suffered by his sons before their death. Carole Cerasia sued in her individual capacity, asserting a per quod claim for the loss of her children's company and services.1
4
Shortly after the Cerasias filed their complaint, Dinallo cross-claimed in the state action against Gorman for contribution under the New Jersey Tortfeasors Contribution Law, N.J.Stat.Ann. Sec. 2A:53A-1 (West 1987). During the pendency of this appeal, Pyskaty also filed a claim for contribution against Gorman in the state action.
5
After being served with the Cerasias' summons and complaint in the state proceeding, Gorman filed a timely complaint in the district court seeking exoneration from or limitation of his liability pursuant to the Limited Liability Act, 46 U.S.C. app. Secs. 181-196 (1988). The Act provides that the liability of a shipowner for any damage arising from a maritime accident which occurs "without the privity or knowledge of such owner" shall not exceed the value of the vessel and its freight. Id. Sec. 183(a). Gorman denied that the collision was due to any fault on his part and asserted that he had no privity or knowledge of the events surrounding the accident. App. at 68. He also filed an ad interim stipulation for value in the amount of $70,000 which reflected the total value of the Wellcraft and its cargo.
6
On May 22, 1992, the district court, as authorized by 46 U.S.C. app. Sec. 185 and Fed.R.Civ.P. Supplemental Rule F(3), enjoined "the commencement or continuation of prosecution of any and all suits, actions, or proceedings" against Gorman arising out of the 1991 boating accident and directed all those asserting claims against him to file them with the court by July 1, 1992. App. at 64. Thereafter, the Cerasias filed a claim in the district court for damages caused by the death of their two sons. Dinallo filed a claim against Gorman for contribution, and also requested attorneys' fees and costs.
7
On June 30, 1992, the Cerasias moved the district court to vacate its original stay order and to permit their claims against Gorman to proceed in state court on the condition that they file protective stipulations acknowledging Gorman's right to litigate all issues relating to limitation of liability in the admiralty proceeding. Gorman objected on the ground that the district court had exclusive jurisdiction over all issues arising from the boating mishap.
8
In a letter opinion filed on September 30, 1992, the district court granted the motion to lift the stay. The court stated that "[b]ecause the present circumstances demonstrate multiple claimants to a fund ($70,000) which is not adequate to satisfy all such claims if they are successful, the Court is not required to lift the stay halting the [state] action. However, the Court is empowered to do so if, in the exercise of its discretion, the plaintiff is not deprived of the opportunity to litigate in this forum any entitlement which he may have to the benefits of the Limitation of Liability Act." App. at 140.2 The court concluded that the following protective stipulations proffered by the Cerasias and agreed to by Dinallo adequately preserved Gorman's rights under the Act:
9
(1) Plaintiff Gorman has the right to litigate in this Court all issues relating to limitation of liability under the federal Limitation of Liability Act;
10
(2) The parties will not seek in any state court action any ruling on Gorman's right to limitation of liability;
11
(3) In the event that a judgment is recovered in any state court action against Gorman that exceeds the fund representing the value of plaintiff's vessel, neither party will seek to enforce the judgment against Gorman pending adjudication of the Limitation of Liability action in this Court; and
12
(4) The parties stipulate that the appraisal submitted by Gorman [$70,000] accurately reflects the fair market value of his vessel.
13
App. at 143-44. The district court also directed a United States Magistrate Judge to "provid[e] for coordination and joint use of discovery in both [the state and federal] actions in order to minimize the time and expenses of pretrial preparation." App. at 142.
14
Gorman appeals from the district court's order permitting the state action to proceed subject to these four stipulations. On March 26, 1993, while this appeal was pending, Pyskaty also filed a claim for contribution, attorneys' fees, and costs in the limitation proceeding, and in addition Pyskaty claimed the benefit of the federal statute limiting his liability. The district court, with Gorman's consent, permitted Pyskaty to file his claim out of time.
II.
Appellate Jurisdiction
15
The Cerasias have moved to dismiss Gorman's appeal for lack of jurisdiction. However, as numerous courts have held, "[t]he denial, modification, or dissolution of an injunction in a limitation proceeding is appealable as a matter of right under 28 U.S.C. Sec. 1292(a)(1)." In re Bowoon Sangsa Co., 720 F.2d 595, 597 (9th Cir.1983); see S & E Shipping Corp. v. Chesapeake & Ohio Ry. Co., 678 F.2d 636, 641-42 n. 10 (6th Cir.1982) (order modifying previously entered stay of state court proceedings in admiralty limitation action appealable under 28 U.S.C. Sec. 1292(a)(1)); Pershing Auto Rentals, Inc. v. Gaffney, 279 F.2d 546, 547-48 (5th Cir.1960) (same). It follows that we have jurisdiction to hear Gorman's appeal.
III.
Standard of Review
16
The district court has discretion to vacate a previously-issued stay in a limitation proceeding. See Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520 (1931); Newton v. Shipman, 718 F.2d 959, 961 (9th Cir.1983). However, where a shipowner demonstrates that his or her right to limit liability would be prejudiced, the court's lifting of the stay constitutes an abuse of discretion. See Universal Towing Co. v. Barrale, 595 F.2d 414, 420 (8th Cir.1979); S & E Shipping, 678 F.2d at 647 (Cornelia G. Kennedy, J., concurring).
IV.
Applicable Legal Principles
17
The Limited Liability Act provides that the liability of a shipowner incurred as a result of a maritime accident "without the privity or knowledge of such owner ... shall not ... exceed the amount or value of the interest of such owner in such vessel, and her freight then pending." 46 U.S.C. app. Sec. 183(a).3 As the Fifth Circuit has explained, "[i]n the typical situation of a corporate owned ocean vessel the privity and knowledge scrutiny focuses in on whether the shore-based high-leveled management is aware (or should have been) of the likelihood of the occurrence happening after the ship is underweigh [sic]." Tittle v. Aldacosta, 544 F.2d 752, 756 (5th Cir.1977) (citations omitted).
18
If a shipowner facing potential liability for a maritime accident files a complaint seeking protection under the Act, the district court is authorized to stay all proceedings against the owner, 46 U.S.C. app. Sec. 185; see Fed.R.Civ.P. Supplemental Rule F(3), and to direct all potential claimants to file their claims against the shipowner in the district court within a specified period of time, Fed.R.Civ.P. Supplemental Rule F(4); see Universal Towing, 595 F.2d at 417.
19
Thereafter, in a proceeding known as a concursus, the district court, sitting in admiralty without a jury, determines " 'whether there was negligence; if there was negligence, whether it was without the privity and knowledge of the owner; and if limitation is granted, how the [limitation] fund should be distributed.' " In re Complaint of Dammers & Vanderheide & Scheepvaart Maats Christina B.V., 836 F.2d 750, 755 (2d Cir.1988) (quoting Universal Towing, 595 F.2d at 417). In this way the court can supervise the "marshalling of assets [and] the distribution pro rata of an inadequate fund among claimants, none of whom can be paid in full." Id. (quotation omitted).4
20
Although "[f]ederal courts have exclusive admiralty jurisdiction of [limitation of liability] suits brought under the Act," Magnolia Marine Transport Co. v. Laplace Towing Corp., 964 F.2d 1571, 1575 (5th Cir.1992), this creates a tension with the "saving[s] to suitors" clause of 28 U.S.C. Sec. 1333 (1988), which preserves the right to a jury trial.5 As the Second Circuit has explained:
21
In exercising th[e] equitable power [conferred by the Act], the admiralty court must necessarily deny the claimants their right to pursue common law claims before a jury. There is no right to a jury in actions instituted in admiralty, and the claimants are enjoined from pursuing common law actions in other forums. Such a result is in direct conflict with the promise of 28 U.S.C. Sec. 1333 that the exercise of admiralty jurisdiction will not deny suitors the right to common law remedies.
22
Dammers, 836 F.2d at 755 (citations omitted).
23
In reconciling the "recurring and inherent conflict" between these two statutory mandates, id. at 754, courts have created two exceptions to the admiralty court's exclusive jurisdiction over limitation proceedings. The first exception arises if the value of the vessel and its cargo exceeds the aggregate of the total number of claims filed against the owner. See Lake Tankers Corp. v. Henn, 354 U.S. 147, 152, 77 S.Ct. 1269, 1272, 1 L.Ed.2d 1246 (1957). In such a situation "a concursus is unnecessary because the claimants need not compete among themselves for larger portions of a limited fund." In re Midland Enters., Inc., 886 F.2d 812, 814 (6th Cir.1989) (quotation omitted).
24
The second exception occurs when a single claimant brings an action against the shipowner seeking damages in excess of the value of the vessel. In such a case, the district court must lift the stay provided that the claimant stipulates that the admiralty court has exclusive jurisdiction to determine all issues concerning the owner's limitation of liability under the Act. See, e.g., Ex Parte Green, 286 U.S. 437, 438-40, 52 S.Ct. 602, 602-03, 76 L.Ed. 1212 (1932); Langnes, 282 U.S. at 540-44, 51 S.Ct. at 246-48; Helena Marine Serv., Inc. v. Sioux City, 564 F.2d 15, 18 (8th Cir.1977), cert. denied, 435 U.S. 1006, 98 S.Ct. 1875, 56 L.Ed.2d 387 (1978). Specifically, the claimant must waive any claim of res judicata relevant to the issue of limited liability based on any judgment obtained in the state court, and concede the shipowner's right to litigate all issues relating to limitation in the federal limitation proceeding. Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty Sec. 10-19, at 871 (2d ed. 1975). The necessity of these two stipulations has been accepted by federal courts for over half a century and is now beyond dispute.6
25
These stipulations provide insufficient protection to a shipowner, however, where there are multiple claimants to a fund that is inadequate to satisfy all claims. In such cases, courts have not permitted state tort actions against the vessel owner to proceed, reasoning that the claimants have an interest in maximizing their own claims and in minimizing the claims of others. See Universal Towing, 595 F.2d at 418. In this context, a concursus "prevents claimants from securing judgments in various courts that, in the aggregate, exceed the fund and, thus, assures the owner that he will not be required to pay damages in excess of the statutory limits." Id. As we explained in In re Central R.R. Co. of New Jersey, 469 F.2d 857, 862 (3d Cir.1972), cert. denied, 411 U.S. 938, 93 S.Ct. 1900, 36 L.Ed.2d 399 (1973), "[t]he exclusive jurisdiction of an admiralty court in a multiple-claims-inadequate-fund limitation proceeding is of such dimension that an Admiralty Court cannot grant permission to a claimant to establish his claim in another tribunal."
26
In determining whether a concursus is required, courts have struggled to define those situations that present a genuine "multiple-claims-inadequate-fund" case as opposed to a single claim case. For example, although it is widely accepted that "a claim for loss of consortium by one spouse is a separate and independent cause of action from the related tort claim of the other spouse," Dammers, 836 F.2d at 756 (citing American Export Lines, Inc. v. Alvez, 446 U.S. 274, 284-86, 100 S.Ct. 1673, 1679-80, 64 L.Ed.2d 284 (1980)), it is equally clear that where a single claimant brings a tort action in several capacities, for example, individually and as the administrator of the estate of a decedent killed in the maritime accident, only a single claimant situation is presented, see In re Two "R" Drilling Co., 943 F.2d 576, 577 (5th Cir.1991); Midland Enters., 886 F.2d at 815-16; see also In re Zapata Gulf Marine Corp., 787 F.Supp. 612, 614 (E.D.La.1992) (explaining Two "R" Drilling ).
27
By contrast, the courts of appeals have divided over the question whether a third party's claim for indemnification or contribution against the shipowner, in addition to a direct claim for damages, creates a multiple claimant situation. Compare Dammers, 836 F.2d at 756-57 (potential claim for indemnity or contribution creates multiple claimant situation), with S & E Shipping, 678 F.2d at 645 (claim for indemnity and contribution does not create multiple claimant situation), and Universal Towing, 595 F.2d at 419 (same, for indemnity claim only). However, all courts have recognized that a multiple claimant situation exists where a third party seeking indemnity or contribution also requests attorneys' fees and costs associated with its claim. See Dammers, 836 F.2d at 756 ("It is ... well settled that the potential for claims for attorneys' fees or costs against a shipowner by a claimant or a third party creates a multiple claimant situation necessitating a concursus." ); see also S & E Shipping, 678 F.2d at 645-46; Universal Towing, 595 F.2d at 419.
28
Although the conditions creating a multiple claimant situation are well established, in recent years several courts of appeals have permitted the use of priority stipulations to convert what would otherwise constitute a "multiple-claims-inadequate-fund" case into the equivalent of a single claim case, thereby eliminating the need for a concursus. As the court in Magnolia Marine Transport explained, "[m]ultiple claimants may reduce their claims to the equivalent of a single claim by agreeing and stipulating as to the priority in which the claimants will receive satisfaction against the shipowner from the limited fund." 964 F.2d at 1576.
29
In Dammers, for example, the claimants stipulated that the injured seaman's tort claim would have "irrevocable priority" over his wife's loss of consortium claim, and further agreed that any claim for attorneys' fees or costs filed by a party seeking indemnification or contribution from the shipowner would have priority over both claimants. The Second Circuit recognized that "such concessions in stipulations are sufficient to allow claimants who might not otherwise be entitled to do so to proceed with common law actions in other forums." 836 F.2d at 756.
30
We have not addressed this issue heretofore, but we now decide, in agreement with the Second Circuit in Dammers, that as long as the priority stipulations filed in the district court ensure that the shipowner will not be exposed to competing claims to the limited fund representing more than the value of his or her vessel, the district court may authorize the parties to proceed with the state court action. We believe that this is a reasonable method of reconciling the two applicable federal statutes, one "saving to suitors" their common law remedies, including the right to a jury trial, and the other protecting an innocent shipowner from claims above the value of the ship and its cargo.
31
It is with these general principles in mind that we turn to the facts of the present dispute.
V.
32
Application of Legal Principles to this Case
33
The district court stated that in this case there are "multiple claimants to a fund ($70,000) which is not adequate to satisfy all such claims if they are successful." App. at 140. Gorman asserts that this statement compels a reversal of its order permitting the state court action to proceed. The Cerasias argue that there is in effect only a single claim against the limitation fund and that the district court properly modified its prior stay. We agree with Gorman that this case presents a multiple claims controversy in the following respects and that the stipulations, in their current form, are inadequate to protect his rights under the Act.
A.
The Cerasias' Claims
34
First, the claims asserted in the Cerasias' state court complaint cannot be aggregated into a single claim for purposes of the Act. Although the appellees argue that Robert Cerasia's claim in his individual capacity and as administrator of his sons' estate may be aggregated into a single claim, citing decisions such as Two "R" Drilling, 943 F.2d at 577, and Midland Enters., 886 F.2d at 815-16, in those cases only one individual was injured by the shipowner's purported negligence. In this case, by contrast, both Michael and Robert J. Cerasia died as a result of the collision. It follows that the Cerasias must stipulate as to the relative priority of the two decedents' claims, or stipulate that the available fund will be divided equally on their behalf.
35
Similarly, Carol Cerasia's personal claim for loss of her children's consortium and services is a separate cause of action from the representative claims, and creates a multiple claimant situation in the same manner as a complaint containing one spouse's physical injury claim and the other's claim for loss of consortium. See Dammers, 836 F.2d at 756. Absent a stipulation specifying the relative priority of her claim as compared to that of her sons and her husband, the district court may not permit the state court action to proceed. Cf. S & E Shipping, 678 F.2d at 644 (husband's personal injury claim and wife's loss of consortium claim can be considered a single claim if plaintiffs stipulate to priority of claims).
B.
36
The Contribution Claims by Dinallo and Pyskaty
37
The Cerasias argue that the contribution claims filed by Dinallo and Pyskaty do not create a multiple claimant situation, relying on the Sixth Circuit's opinion in S & E Shipping, 678 F.2d at 645, and the Eighth Circuit's opinion in Universal Towing, 595 F.2d at 419.7 However, we agree with the Second Circuit that "[a]s long as there is a potential set of circumstances in which a shipowner could be held liable in excess of the limitation fund, the reasonable prospect of claims for indemnification [or contribution] should constitute a multiple claimant situation necessitating a concursus. " Dammers, 836 F.2d at 757; see Kattelman v. Otis Engineering Corp., 696 F.Supp. 1111, 1115 (E.D.La.1988) (following Dammers ).
38
A multiple claimant situation could arise, for example, if the plaintiffs seek to enforce a state court judgment against the shipowner up to the value of the limitation fund and then seek to recover the remaining amount of the judgment against the shipowner's co-defendants. If the defendants do not sign protective stipulations with the admiralty court, they would not be foreclosed from recovering against the shipowner for contribution, even though his or her liability (assuming a finding of no privity or knowledge) has already been exhausted. It is precisely this kind of competition for the limitation fund that the Act was designed to avoid. See S & E Shipping, 678 F.2d at 646-48 (Cornelia G. Kennedy, J., concurring).8
39
In Dammers, the shipowners' co-defendants in the state court actions had not yet filed claims for indemnity and/or contribution, although the parties agreed that such claims were likely to be filed. 836 F.2d at 753 n. 3. The district court vacated its earlier stay of the state proceedings after the plaintiffs stipulated that "in the event there is a judgment or recovery in the State Court action9 ... [,] whether against the [shipowners], or any other liable parties who may cross-claim or claim over against the [shipowners], in no event will [plaintiffs] seek to enforce said excess judgment or recovery insofar as same may expose [the shipowners] to liability in excess of [the fund]." Id. at 753-54.10 The district court also "held that if any of the third parties also being sued by the [plaintiffs] in state court were to seek indemnification or recovery from the shipowners based on their liability to the [plaintiffs], 'the [c]ourt would be obligated to grant[ ] a stay of any such ... claims [pending in state court] ... unless the third parties executed appropriate stipulations preserving ... [the shipowners'] right to limitation.' " Id. at 758 (quoting district court opinion).
40
In this case, Dinallo has consented to the four protective stipulations proffered by the Cerasias, thereby protecting Gorman's federal statutory right to limitation. However, while this appeal was pending, Pyskaty filed a contribution claim in both the state and federal actions but apparently has not agreed to be bound by the stipulations. It follows that we must remand the matter to the district court to permit the parties to file amended stipulations that will adequately protect Gorman from competing claims to the limitation fund.
C.
41
The Attorneys' Fees Claims by Dinallo and Pyskaty
42
The district court also failed to consider the effect of the claims for attorneys' fees and costs associated with Dinallo's and Pyskaty's contribution claims. As we explained above, every court to have considered the issue has held that the presence of such claims creates a multiple claimant situation that can only be eliminated by stipulating to the priority of the fees and costs over other claims. See, e.g., Dammers, 836 F.2d at 756; S & E Shipping, 678 F.2d at 645-46; Universal Towing, 595 F.2d at 419. Of course, the fact that an attorneys' fees claim is given priority by the parties in no way suggests that any fees can or will be awarded by the district court. See S & E Shipping, 678 F.2d at 646 n. 19 (intimating "no view on the propriety of awarding attorneys' fees and costs in th[e] litigation"). Indeed, should the district court decide that there is no legal basis for the claimed attorneys' fees, there would be no need to stipulate as to their priority.11
D.
Failure to Waive Res Judicata
43
Finally, we must consider the effect of the parties' failure to waive any claim of res judicata concerning the limited liability issues that may be adjudicated in state court. Although the appellees have conceded that "Gorman has the right to litigate in [the district court] all issues relating to limitation of liability," App. at 143, that concession alone provides insufficient protection to Gorman.
44
In Petition of Red Star Barge Line, Inc., 160 F.2d 436 (2d Cir.), cert. denied, 331 U.S. 850, 67 S.Ct. 1741, 91 L.Ed. 1859 (1947), an early but important and widely-followed case, the Second Circuit reviewed the adequacy of the stipulations filed by a claimant who moved the district court to lift a stay of her state court action seeking damages caused by the death of her husband. The claimant, "while not conceding the [shipowners'] right to limit, did concede their right to litigate that issue in the federal court." Id. at 438.
45
The court found that concession to be insufficient, agreeing with the shipowners that "adjudication in the state court action may through some application of the doctrine of res judicata impair their right to limit should that issue thereafter come to trial in the limitation proceeding." Id. To avoid that result, the court "require[d] the [plaintiff] to file in the district court a statement that she waives any claim of res judicata relevant to the issue of limited liability and based on any judgment she may obtain in the state court action." Id.; see In re Complaint of North Lubec Mfg. & Canning Co., 640 F.Supp. 636, 640 (D.Me.1986) (requiring claimants to "waive any claim of res judicata" where they did not concede shipowner's "right to limit liability" but merely acknowledged owner's right "to seek limitation"); see also Gilmore & Black, The Law of Admiralty, Sec. 10-19, at 872-74 (discussing importance of res judicata stipulation).
46
We agree with these courts that the potential overlap between the factual questions raised in the limitation proceeding (whether the maritime mishap occurred "without the privity or knowledge" of the shipowner), and those to be litigated in the state tort action (whether the shipowner acted unreasonably) requires that a claimant seeking to vacate the stay concede both the district court's exclusive jurisdiction to decide all limitation issues and expressly agree to waive any "claim of res judicata relevant to the issue of limited liability based on any judgment obtained in the state court." Id. at 871. It is clear that the relevant waiver discussed is that of issue preclusion, notwithstanding the reference in the cases to "res judicata."
47
Of course, if the jury in the state proceeding concludes that Gorman acted negligently, it is likely that there will be little, if any, basis upon which he may claim that the accident occurred without his privity or knowledge. See In re M/V Sunshine, II, 808 F.2d 762, 765 (11th Cir.1987) ("in most circumstances negligence in operation will be sufficiently connected to the owner on board his own small vessel and operating it that he will be found to have privity or knowledge"). Nevertheless, at this early stage of the litigation, we cannot say that under no set of circumstances will Gorman be able to limit his liability. See In re Cirigliano, 708 F.Supp. 101, 104 (D.N.J.1989) (question of owner-operator's privity or knowledge cannot be resolved without factual development); In re Roberto, 1987 A.M.C. 982, 985, 1986 WL 15685 (D.N.J.1986) (same). If Gorman is to be given an opportunity to prove lack of knowledge or privity, he should not be barred by res judicata from raising that issue in federal court.
48
Finally, we commend the district court for coordinating its pretrial procedures with the state court, a measure which will result in a substantial savings of time and resources. Although the district court did not indicate whether the state court action would proceed to trial before the question of limitation was resolved, the parties apparently believe that the state trial will occur first, an order that has been described as "typical" in limitation cases. Gilmore & Black, The Law of Admiralty Sec. 10-19, at 872. After all, if Gorman is found not to have acted negligently, the question of limitation will be rendered moot. We express no view, however, as to whether courts in future limitation cases of this kind must adhere to this sequence of events.
VI.
Conclusion
49
For the foregoing reasons, we will vacate the order of the district court lifting the stay of the state court action and remand for further proceedings consistent with this opinion. On remand, if the parties amend the protective stipulations in a manner that satisfies the concerns we have identified, the district court may permit their state tort claims against Gorman to proceed. Each party to bear its own costs.
1
The plaintiffs alleged in the alternative causes of action under federal maritime law for wrongful death and survival
2
The district court also stated that Gorman's likelihood of limiting his liability under the Act was substantially reduced by the fact that he was piloting the Wellcraft at the time of the accident. However, it declined to dismiss his complaint on that ground, instead permitting the Cerasias to proceed with their state court action subject to Gorman's right to seek limitation. App. at 141
3
Congress enacted the Limited Liability Act in 1851 to promote investment in the commercial shipping industry, and in 1886 extended its application to "all seagoing vessels." 46 U.S.C. app. Sec. 188 (1988). Although application of the Act to non-commercial vessels has been criticized, the Supreme Court has applied the Act to pleasure craft without comment. See Coryell v. Phipps, 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363 (1943); Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941). Moreover, every court of appeals to have considered the issue has held that, in light of its unambiguous language, the Act applies to pleasure craft. See In re Guglielmo, 897 F.2d 58, 59-61 (2d Cir.1990); Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1228-29 (11th Cir.1990); In re Hechinger, 890 F.2d 202, 206 (9th Cir.1989), cert. denied, 498 U.S. 848, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990); In re Young, 872 F.2d 176, 177-78 (6th Cir.1989), cert. denied, 497 U.S. 1024, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990); Pritchett v. Kimberling Cove, Inc., 568 F.2d 570, 573 n. 4 (8th Cir.1977), cert. denied, 436 U.S. 922, 98 S.Ct. 2274, 56 L.Ed.2d 765 (1978); Richards v. Blake Builders Supply Inc., 528 F.2d 745, 748 (4th Cir.1975); Gibboney v. Wright, 517 F.2d 1054, 1057 (5th Cir.1975)
4
As we explained in Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 948 n. 14 (3d Cir.1985):
The burden of proof in an action seeking exoneration from or limitation of liability is divided. The claimant must prove that the destruction or loss was proximately caused by negligence on the vessel. Once negligence has been shown to be the cause, the burden then shifts to the shipowner to demonstrate that he comes within the statutory exemption because there was neither design, neglect, privity, nor knowledge on his part.
5
That clause provides in relevant part that "[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." 28 U.S.C. Sec. 1333 (1988)
6
A third stipulation identified by Gilmore and Black, that the claimant concede the accuracy of the shipowner's assertions as to the value of the vessel, has not been widely adopted by the courts of appeals. See, e.g., In re Two "R" Drilling Co., 943 F.2d 576, 578 (5th Cir.1991) (holding that stipulation is adequate if it concedes that issue of vessel's value will be litigated exclusively before the admiralty court). However, in light of the appellees' concession that the $70,000 figure accurately represents the value of the Wellcraft, we need not address this issue here
7
These courts reason that a third party's indemnity or contribution claim is merely derivative of the plaintiff's tort claim. See Universal Towing, 595 F.2d at 419 ("The third party ... can only recover what the claimant was entitled to recover from the owner, which cannot exceed the owner's statutory limit.")
8
The best practical illustration of why a co-defendant's contribution claim creates a multiple claimant situation is set forth in Judge Cornelia G. Kennedy's concurring opinion in S & E Shipping:
The [plaintiffs] could win a large judgment against [the shipowner and its co-defendant] jointly in the state court, say $1,000,000. [The co-defendant] could also win a judgment in state court entitling it to contribution from [the shipowner] for anything it pays the [plaintiffs] in excess of one-half the judgment, or $500,000. Because of the stipulation they have filed with the District Court, the [plaintiffs] could collect no more from [the shipowner] than the value of the limitation fund as determined by the District Court. If the fund contains only $250,000 ... then [the co-defendant], jointly and severally liable, would be obligated to pay the [plaintiffs] the unpaid balance of the judgment, or $750,000. Under its right to contribution [the co-defendant] would be entitled to recover from [the shipowner] any excess over $500,000 dollars that it paid the [plaintiffs], or $250,000. Since [the co-defendant] did not stipulate that any state court judgment in its favor would not be res judicata on the limitation question, it would then have a $250,000 claim against [the shipowner] that was not subject to limitation. The result would be that [the shipowner] would have to pay a total of $500,000 on account of the injury ... when under the Limited Liability Act it should only have been liable for the value of the vessel, or $250,000. This is a clear violation of the Limited Liability Act.
678 F.2d at 647.
9
On appeal, the Second Circuit modified this stipulation to refer to judgments recovered by the plaintiffs in "any State Court actions." Dammers, 836 F.2d at 759 (emphasis omitted)
10
The relevant stipulation in this case prohibits the parties from enforcing a judgment in excess of $70,000 in "any state court action against Gorman." App. at 143
11
We note that Dinallo and Pyskaty have not articulated the legal basis for their claims and we express no view as to whether such fees are recoverable
| {
"pile_set_name": "FreeLaw"
} |
753 F.Supp. 109 (1990)
Fort Wayne TELSAT, Plaintiff,
v.
ENTERTAINMENT AND SPORTS PROGRAMMING NETWORK, Defendant.
No. 90 Civ. 2301 (PKL).
United States District Court, S.D. New York.
December 11, 1990.
*110 Law Offices of Ridley M. Whitaker (Ridley M. Whitaker, John P. Markos, Leonard N. Flamm, of counsel), New York City, for plaintiff.
Patterson, Belknap, Webb & Tyler (Frederick T. Davis, Douglass B. Maynard, of counsel), New York City, for defendant.
ORDER AND OPINION
LEISURE, District Judge:
This is an action by Fort Wayne Telsat ("Telsat") against ESPN, Inc. ("ESPN"),[1] for violations of the federal antitrust laws, and for pendent state law claims of unfair competition and interference with prospective business relations. ESPN has now moved to dismiss the complaint in this action, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted.
BACKGROUND
This case involves the distribution of programming for "subscription television." Subscription television, unlike broadcast television, requires individual viewers to pay a fee to receive programming. Cable television, which is distributed to individual viewers by means of a cable or wire, is a common form of subscription television. Another method of subscription television is known as "multichannel multipoint distribution service" ("MMDS"), which employs microwave transmission to distribute programming to viewers.
In general, there are three links in the chain of distribution of subscription television. At the beginning of the chain are "programmers," who assemble programming by creating their own television programs or by purchasing the rights to motion pictures, other television programs, or other events, such as sporting events. Programmers are, in effect, the manufacturers and wholesale distributors of subscription programming. The second link is constituted by the "operators," local companies that receive subscription programming from the programmers and, then, much like retailers, distribute the programming of various programmers to the viewers.[2] With respect to operators using cable technology, in most instances a single operator serves an area under an exclusive franchise granted by the local municipal or county authority. The final link of the chain is made up of "subscribers," i.e., industry parlance for viewers, who pay the operator a monthly subscription fee to receive the programming.
In the case at bar, defendant ESPN is a nationwide programmer, emphasizing *111 sports programming. ESPN sells its programming to operators pursuant to license agreements, granting those operators the right to retransmit that programming within a particular geographic area. Plaintiff Telsat is an operator that markets MMDS to subscribers in Indiana, and does not operate under a local franchising authority. Instead, Telsat competes with local cable operators, as well as with local broadcast television stations.
DISCUSSION
"The court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Festa v. Local 3 International Brotherhood of Electrical Workers, 905 F.2d 35, 37 (2d Cir.1990); see also Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984) ("The function of a motion to dismiss `is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980))).
Thus, a motion to dismiss must be denied "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); see also Morales v. New York State Dep't of Corrections, 842 F.2d 27, 30 (2d Cir.1988). In deciding a motion to dismiss, the Court must accept the plaintiff's allegations of fact as true, together with such reasonable inferences as may be drawn in his favor. Papasan v. Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 2943, 92 L.Ed.2d 209 (1986); Murray v. Milford, 380 F.2d 468, 470 (2d Cir.1967); Hill v. Sullivan, 125 F.R.D. 86, 90 (S.D.N.Y.1989) ("all allegations in plaintiffs' amended complaint must be accepted as true and liberally construed."); see also Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686. Federal Rule of Civil Procedure 8(a) requires only a "`short and plain statement of the claim' that will give the defendant fair notice of what plaintiff's claim is and the ground upon which it rests." Conley, supra, 355 U.S. at 47, 78 S.Ct. at 102 (quoting Fed.R. Civ.P. 8(a)).
Nevertheless, the complaint must set forth enough information to suggest that relief would be based on some recognized legal theory. Telectronics Proprietary, Ltd. v. Medtronic, Inc., 687 F.Supp. 832, 836 (S.D.N.Y.1988) (Leisure, J.). "The District Court has no obligation to create, unaided by plaintiff, new legal theories to support a complaint." District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1081-82 (D.C.Cir.1984). "In practice `a complaint ... must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.'" Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984) (quoting Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir.1984) (Posner, J.) (emphasis in original) (quoting French Quarter Apartments Ltd. v. Georgia-Pacific Corp., 655 F.2d 627, 641 (5th Cir.1981), cert. dism'd, 462 U.S. 1125, 103 S.Ct. 3100, 77 L.Ed.2d 1358 (1983))), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985).
Having set forth the standards for evaluating motions under Rule 12(b)(6), the Court now addresses the sufficiency of Telsat's claims.
First Claim: Monopolization of Market for Subscription Television
Telsat's first claim is brought under § 2 of the Sherman Act, 15 U.S.C. § 2,[3] alleging monopolization by ESPN of the "market for subscription television programming services for quality sports programming in the United States." Complaint *112 ¶ 43. "The offense of monopolization under § 2 of the Sherman Act consists of two elements: (1) the possession of monopoly power in the relevant market; and (2) the willful acquisition or maintenance of that power, as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." Volvo North America Corp. v. Men's International Professional Tennis Council, 857 F.2d 55, 73 (2d Cir.1988) (citing Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 596 n. 19, 105 S.Ct. 2847, 2854 n. 19, 86 L.Ed.2d 467 (1985) (quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966)); National Association of Pharmaceutical Manufacturers v. Ayerst Laboratories, 850 F.2d 904, 915 (2d Cir.1988)); see also Delaware & Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990).
Section 2 of the Sherman Act is "aimed ... at the acquisition or retention of effective market control." United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236 (1948). It is designed to prevent "a pernicious market structure in which the concentration of power saps the salubrious influence of competition." Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 272 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980). Ordinarily, the Court may infer the existence of monopoly power from a predominant share of the relevant market. United States v. Grinnell Corp., 384 U.S. 563, 571, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966). Here, Telsat has alleged in its complaint that "ESPN, by far the largest sports programming service abusively dominates the market." Complaint ¶ 13. Although inartfully punctuated, this allegation, immediately following an allegation that the relevant market "is the market for subscription television programming services for quality sports programming," Complaint ¶ 12, sufficiently avers a predominant share of the relevant market to permit an inference of monopoly power. Grinnell, supra, 384 U.S. at 571, 86 S.Ct. at 1704; see also Telectronics, supra, 687 F.Supp. at 838.
The second element of a § 2 monopolization claim requires an allegation that ESPN willfully engaged in anticompetitive behavior in the relevant market. Volvo, supra, 857 F.2d at 73. "The mere possession of monopoly power does not ipso facto condemn a market participant. But, to avoid the proscriptions of § 2, the firm must refrain from conduct directed at smothering competition." Berkey, supra, 603 F.2d at 275. See also Aspen Skiing, supra, 472 U.S. at 602, 105 S.Ct. at 2857 ("there is agreement on the proposition that `no monopolist monopolizes unconscious of what he is doing.'" (quoting United States v. Aluminum Company of America, 148 F.2d 416, 432 (2d Cir.1945) (L. Hand, J.)); Northeastern Telephone Co. v. American Telephone and Telegraph Co., 651 F.2d 76, 84-85 (2d Cir.1981) (citing Berkey, supra, 603 F.2d at 275), cert. denied, 455 U.S. 943, 102 S.Ct. 1438, 71 L.Ed.2d 654 (1982). Thus monopoly power is not unlawful per se, but rather becomes illegal when the result of anticompetitive behavior in the relevant market.
In paragraph 20 of the complaint, Telsat avers that "ESPN has ... (iv) induced and coerced various cable operators to enter into contracts or otherwise agree to actions that allows defendant ESPN to monopolize ... and restrain trade unreasonably in the market for subscription television programming services in the United States." Complaint ¶ 20. Although this allegation does not specify the particular cable operators that ESPN has induced and coerced as part of its alleged anticompetitive scheme, the Court cannot find that Telsat has failed to meet the liberal pleading requirements of Rule 8 with respect to its monopolization claim. Telsat has adequately alleged monopoly power, as well as anticompetitive conduct, on the part of ESPN. Volvo, supra, 857 F.2d at 73. Hence, ESPN's motion to dismiss Telsat's first claim must be denied.
Second Claim: Conspiracy to Monopolize
Telsat alleges in its second claim that ESPN's conduct with certain unnamed *113 cable operators constitutes a "combination or conspiracy to monopolize the market for subscription television programming services in the United States." Complaint ¶ 47. To prevail on such a claim under § 2 of the Sherman Act, Telsat must allege and prove "(1) concerted action, (2) overt acts in furtherance of the conspiracy, and (3) specific intent to monopolize." Volvo, supra, 857 F.2d at 74. "`It need not be shown that monopoly power has been attained, nor that if the conspirators continued in their course unmolested they would have attained it, but only that obtaining such power is the purpose which motivates the conspiracy.'" Telectronics, supra, 687 F.Supp. at 838 (quoting L. Sullivan, Antitrust, § 49, at 132-33 (1977)).
Telsat's only allegations of concerted action state that "ESPN has combined or conspired with certain cable system operators to monopolize the market for subscription television programming services by coercing and inducing the cable operators, inter alia, (i) to refuse to agree to offer ESPN to Telsat (ii) to discriminate against and disadvantage Telsat in promotion and marketing its services." Complaint ¶ 48. "Although the Federal Rules permit statement of ultimate facts, a bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits dismissal." Heart Disease Research Foundation v. General Motors Corp., 463 F.2d 98, 100 (2d Cir. 1972); see also Garshman v. Universal Resources Holding Inc., 824 F.2d 223, 230 (3d Cir.1987) ("The allegation of unspecified contracts with unnamed other entities to achieve unidentified anticompetitive effects does not meet the minimum standards for pleading a conspiracy in violation of the Sherman Act."); Telectronics, supra, 687 F.Supp. at 838-39 (dismissing § 2 conspiracy claim for failure to name alleged co-conspirators). Telsat's allegations thus fall well short of the information required by law to plead concerted action as part of a § 2 conspiracy claim, and therefore ESPN's motion to dismiss that claim is granted.[4]
Third Claim: Attempted Monopolization
Telsat's third claim alleges that ESPN's conduct "constitutes an attempt to monopolize the subscription television programming services market in the United States" in violation of § 2 of the Sherman Act. Complaint ¶ 51. Such a claim requires proof of three elements: "(1) anticompetitive or exclusionary conduct; (2) specific intent to monopolize; and (3) a dangerous probability that the attempt will succeed." Volvo, supra, 857 F.2d at 73-74; see also Ayerst, supra, 850 F.2d at 915.
As the Court has already found, supra, with respect to Telsat's monopolization claim, Telsat has adequately alleged anticompetitive conduct by ESPN. Complaint ¶ 20. Telsat has also set forth an allegation of specific intent to monopolize in paragraph 22 of its complaint, where it alleges: "ESPN has engaged in an integrated series of predatory acts and strategies designed to impose prohibitive costs on competitors in the market for subscription television programming services in the United States, to raise barriers to entry *114 and expansion in this market, to maintain ESPN's monopoly power in this market and to prevent the market from becoming competitive." Complaint ¶ 22. Moreover, the Second Circuit has held that "[p]roof of the first element of an attempted monopolization claim, anticompetitive or exclusionary conduct, may be used to infer the second element, specific intent to monopolize; ..." Volvo, supra, 857 F.2d at 74. Finally, as to the third element, a showing of a dangerous probability of success, the Second Circuit has stated that "when coupled with proof of monopoly power, evidence of anticompetitive conduct may demonstrate" such a probability of success. Volvo, supra, 857 F.2d at 74; see also International Distribution Centers, Inc. v. Walsh Trucking Co., Inc., 812 F.2d 786, 791 (2d Cir.), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 676 (1987). The Court has found, supra, a sufficient allegation of ESPN's monopoly power. Complaint ¶ 13. This allegation, when coupled with Telsat's allegation that ESPN has engaged in anticompetitive conduct, Complaint ¶ 20, permits the inference of a dangerous probability of success. Volvo, supra, 857 F.2d at 74 ("since the complaint alleges both exclusionary conduct and the existence of monopoly power, the third element, a dangerous probability of success, may be inferred.") (emphasis in original). ESPN's motion to dismiss the third claim, attempted monopolization, must therefore be denied.
Fourth Claim: Monopolization of Certain Local Markets
The fourth claim asserted by Telsat avers that
[t]he conduct of ESPN constitutes monopolization of certain local markets for cable television in the United States ... and an abuse and misuse of monopoly power in those markets to gain a competitve [sic] advantage and restrain trade unreasonably in the market for subscription television programming services in the United States.... ESPN possesses monopoly power in certain of the local markets for cable television systems, and has willfully obtained and maintained and exercised monopoly power, and has further used, abused and minused [sic] monopoly power in certain of the local markets for cable television to obtain a competitive advantage, restrain trade, and monopolize, conspire to monopolize, and attempt to monopolize the market for subscription television programming services in the United States.
Complaint ¶¶ 55, 56.
ESPN argues that this claim must be dismissed, as it is unclear from the face of the complaint which local markets ESPN is alleged to have monopolized. Memorandum of Law in Support of ESPN's Motion to Dismiss the Complaint at 26. Telsat responds in its memorandum opposing the instant motion, that "[t]he local market affected by ESPN monopoly power is alleged as Telsat's market at paragraphs 28 and 30" of the complaint. Opposing Memorandum at 33. Paragraph 28 of the complaint avers that "ESPN has abused and misused its monopoly power in the local cable television market in which ESPN operates so as to exclude, unreasonably and unjustifiably, Telsat, the key competitor of the local [cable] operator in the Telsat market." Complaint ¶ 28. ESPN, however, allegedly operates nationwide, Complaint ¶ 21, and thus the phrase "the local cable television market in which ESPN operates," Complaint ¶ 28, is meaningless. The term "the Telsat market," Complaint ¶ 28, is likewise unenlightening with respect to this issue, as Telsat's market is the MMDS market, Complaint ¶ 5, not the local cable market.
Paragraph 30 of the complaint is similarly insufficient to save Telsat's fourth claim. That paragraph alleges that "ESPN has refused to offer its subscription services to Telsat on a competitive basis in the affected local markets." Complaint ¶ 30. Again, there is no hint from which ESPN, or the Court, may glean which markets Telsat is referring to in its fourth claim. The phrase "the affected local markets" is conclusory to the point of being tautological. Without more, the fourth claim fails to provide the required "`short and plain statement of the claim' that will give the defendant fair notice of *115 what plaintiff's claim is and the ground upon which it rests." Conley, supra, 355 U.S. at 47, 78 S.Ct. at 103 (quoting Fed.R. Civ.P. 8(a)). ESPN's motion to dismiss the fourth claim is, therefore, granted.
Fifth Claim: Unreasonable Restraint of Trade
Claim five alleges that ESPN has contracted, combined or conspired in an unreasonable restraint of trade in violation of § 1 of the Sherman Act, 15 U.S.C. § 1.[5] Complaint ¶ 59. More specifically, Telsat claims that ESPN's refusal to "promote" Telsat has "unreasonably restrained trade in the market for subscription television programming services in the United States." Complaint ¶ 59.
To state a claim under § 1 of the Sherman Act, Telsat must allege that (1) ESPN entered into a contract, combination or conspiracy, and (2) the conspiracy was "in restraint of trade or commerce among the several States." 15 U.S.C. § 1; see also Walsh Trucking, supra, 812 F.2d at 793; Frito-Lay, Inc. v. Bachman Co., 659 F.Supp. 1129, 1133 (S.D.N.Y.1986). Moreover, as it must with respect to its conspiracy to monopolize claim under § 2 of the Sherman Act, Telsat must do more than merely allege that a conspiracy exists, it must provide some factual basis for that allegation. See Garshman, supra, 824 F.2d at 230 ("The allegation of unspecified contracts with unnamed other entities to achieve unidentified anticompetitive effects does not meet the minimum standards for pleading a conspiracy in violation of the Sherman Act."); Heart Disease Research Foundation, supra, 463 F.2d at 100 ("a bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits dismissal."); North Jersey Secretarial School, Inc. v. McKiernan, 713 F.Supp. 577, 584 (S.D.N.Y. 1989) (dismissing § 1 claim, holding that "[e]ven notice pleading requires that facts be pleaded to support a conspiracy claim."); International Television Productions Ltd v. Twentieth Century-Fox Television Division of Twentieth Century-Fox Film Corp., 622 F.Supp. 1532, 1537 (S.D.N.Y. 1985) (in asserting a § 1 claim, "[t]he complaint must identify the co-conspirators, and described the nature and effects of the alleged conspiracy."). This Telsat has failed to do. ESPN's motion to dismiss the fifth claim is, therefore, granted.
Sixth and Seventh Claims: State Law Claims
ESPN has also moved for dismissal of Telsat's pendent state law claims, should the federal claims be dismissed, on the ground of lack of jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Riegel Textile Corp. v. Celanese Corp., 649 F.2d 894, 906 (2d Cir.1981). However, the Court has denied ESPN's motion to dismiss with respect to Telsat's first and third claims, and thus a basis for federal jurisdiction remains under the Sherman Act. Telsat's pendent claims, therefore, should not be dismissed for lack of a federal claim on which to hang. Gibbs, supra, 383 U.S. at 725, 86 S.Ct. at 1138. ESPN's motion to dismiss the sixth and seventh claims is denied.
CONCLUSION
For the reasons set forth above, ESPN's motion to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), is granted in part and denied in part. Specifically, the motion to dismiss is granted with respect to Telsat's second, fourth and fifth claims, and is denied with respect to Telsat's first, third, sixth and seventh claims. Leave to replead is granted.
SO ORDERED.
NOTES
[1] ESPN is incorrectly named in the suit as "Entertainment and Sports Programming Network."
[2] Operators also receive broadcast programming, which they distribute to viewers in a package with nonbroadcast programming.
[3] Section 2 reads, in relevant part, as follows: "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony...." 15 U.S.C. § 2.
[4] The Court need not, and will not, consider the affidavit of E. Roger Williams, submitted in support of ESPN's motion to dismiss, in reaching this conclusion. It is abundantly clear that the Court may not consider matters outside of the complaint in ruling on a motion pursuant to Fed.R.Civ.P. 12(b)(6). Festa, supra, 905 F.2d at 37. To the extent the Court considers such materials, "`the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56....'" Festa, supra, 905 F.2d at 37-38 (quoting Fed.R.Civ.P. 12(b)). In the case at bar, the Court will not consider matters outside the complaint, and thus declines to convert the present motion in to a motion for summary judgment.
Likewise, the Court will not consider the numerous factual allegations set forth for the first time in Telsat's memorandum opposing the motion. See, e.g., Memorandum of Law in Opposition to ESPN's Motion to Dismiss the Complaint ("Opposing Memorandum") at 2-10. It is a basic principle that a complaint may not be amended by the plaintiff's brief filed in opposition to a motion to dismiss. See Hartford Fire Insurance Co. v. Federated Department Stores, Inc., 723 F.Supp. 976, 987 (S.D.N.Y.1989); O'Brien v. National Property Analysts Partners, 719 F.Supp. 222, 229 (S.D.N.Y.1989).
[5] Section 1 of the Sherman Act reads, in relevant part, as follows: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony...." 15 U.S.C. § 1.
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684 F.Supp. 532 (1988)
Betty DOCKTER, Plaintiff,
v.
RUDOLF WOLFF FUTURES, INC., a New York corporation, Defendant.
No. 86 C 4236.
United States District Court, N.D. Illinois, E.D.
April 25, 1988.
*533 Gregory X. Gorman, H. Candace Gorman, Robert J. Paul, Gorman & Gorman Chicago, Ill., for plaintiff.
Matthew J. Iverson, Abramson & Fox, Chicago, Ill., for defendant.
MEMORANDUM OPINION
BRIAN BARNETT DUFF, District Judge.
This Title VII case involves the hiring and eventual firing of plaintiff Betty Dockter ("Plaintiff") by defendant Rudolf Wolff Futures, Inc. ("Wolff"). Plaintiff claims that she was harassed and ultimately fired because she was a female employee who refused to acquiesce to the sexual advances of Wolff employee James G. ("James"). She seeks relief pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") as well as Illinois state law. This court has jurisdiction pursuant to 42 U.S.C. § 2000e-5(f)(3) and this court's pendent jurisdiction. Trial was held before this court in October, 1987. For the reasons set forth below in this court's findings of fact and conclusions of law, this court finds for Wolff on all counts of the complaint.
FINDINGS OF FACT
Plaintiff is an attractive female in her mid-twenties who came from Idaho to Chicago, Illinois, some years ago. She has a ninth-grade education, with a concomitant level of diction and oral presentation, and a somewhat querulous or testy personality. She was working as a recruiter for a local school, the National Education Center, and as a bartender for a local pub, the Chicago Bar & Grill, when she met James in late 1984.
Wolff is a commodity brokerage firm engaged in buying and selling commodity future contracts. Throughout the time period relevant to this case, James was a manager at one of Wolff's two Chicago offices.[1] He was responsible for supervising the sales office along with his co-managers Richmond Flowers ("Flowers") and, beginning in February, 1985, Steve Bernard ("Bernard"). James is a man of above average education, intelligence and appearance, and demonstrates that he is well aware of these assets.
James was also a frequent after-hours customer at the Chicago Bar & Grill. In late 1984, he met Plaintiff while she was bartending. The two engaged in some mutual flirting and courting whenever their paths would cross at the pub.
In early 1985, James was seeking an administrative assistant and, in an effort to impress Plaintiff and secure her company in the future, he offered her the job at a salary level far in excess of what she was then making, or was likely to make in the foreseeable future, $25,000 per annum. Plaintiff accepted, telling James that she was a high school graduate, that she knew how to type, and that she would be willing to learn how to use the office's word processing machines.
Plaintiff began working for Wolff on January 27, 1985. For the first few weeks, James, as he occasionally did with other female employees at the office, made sexual overtures toin the vernacular of the modern generation, "came on to"her. Although Plaintiff rejected these efforts, her initial rejections were neither unpleasant nor unambiguous, and gave James no reason to believe that his moves were unwelcome.
By the end of her third week with Wolff, James began to realize that his preening, primping and posturing, so welcome prior to his hiring Plaintiff, were no longer desired. After one misguided act, in which he briefly fondled Plaintiff's breast and was reprimanded by her for doing so, he accepted his defeat and terminated all such conduct.
*534 Meanwhile, Plaintiff was suffering defeat of another sort. Incapable of performing even the simplest of tasks assigned to her by James and the other personnel in the office, she became unhappy and unpleasant. Eventually, after a number of Wolff employees had tried unsuccessfully to train her to operate the word processing equipment, only to be told that the fault lay in the machine rather than the operator, she became unwelcome as well.
By April, 1985, both Flowers and Bernard had decided to terminate Plaintiff because of her incompetence and attitude. Nevertheless, until nearly the day she was fired, James continued to defend her and to request that she be given more time to adjust. Finally, on April 22, 1985, Flowers and Bernard, acting without the physical presence or other influence of James, informed Plaintiff that she was fired. Neither at this time, nor at any time during her employment with Wolff, did Plaintiff say anything about the sexual harassment she now claims to have suffered at James' hands.
Plaintiff, within 180 days of the termination, filed charges with the Equal Employment Opportunity Commission ("the Commission") alleging that Wolff discriminated against her based on her sex. Within 90 days of receiving a Notice of the Right to Sue from the Commission, she filed this lawsuit.
CONCLUSIONS OF LAW
The Title VII Claim
The Supreme Court has made clear that, in cases involving alleged sexual harassment, "a violation of Title VII may be predicated on two types of sexual harassment." Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). First, if a plaintiff can show that her employer conditioned any tangible economic benefit of her employment on her accepting his sexual overturesthe so-called "quid pro quo"she can recover irrespective of the frequency of the sexual advances or the degree of the punishment imposed. See id. 106 S.Ct. at 2404-05. Second, even if an employer does not alter the plaintiff's tangible terms and conditions of employment, a plaintiff may recover under Title VII if her employer's sexual advances and other sex-based discriminatory treatment were so severe as to "create[] a hostile or abusive work environment." Id. at 2405-06; Scott v. Sears, Roebuck & Co., 798 F.2d 210, 213-14 (7th Cir.1986). See also Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1187 (7th Cir.1986). Under either theory, however, the plaintiff bears the burden of persuading the finder of fact that her employer discriminated against her. See Andre v. Bendix Corp., 841 F.2d 172, 175-76 (7th Cir.1988).
In seeking to sustain her burden, Plaintiff asks this court to focus on the "prima facie case method" established by the Supreme Court for a wide variety of discrimination cases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In so doing, Plaintiff misconstrues the function of that analysis.
The analysis was established to enable plaintiffs to initially satisfy their burden of showing discriminatory treatment even where direct evidence of such mistreatment is not available. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983). In setting forth the analysis, the Court recognized that it can often be extremely difficult for a plaintiff who has been mistreated on the basis of his or her race, sex or other protected trait, to prove by direct evidence that he or she has indeed been subjected to differential treatment because of this trait.
When, however, a female plaintiff claims that she has been the victim of sexual harassment, the need for the "prima facie case method" largely disappears. If an employer subjects a female employee to unwelcome sexual advances, and then, after those advances are rejected, imposes some tangible detriment on the employee, the latter need not establish that she was "qualified for her position and was satisfactorily performing the duties of that position" in order to establish a prima *535 facie case. Compare Andre v. Bendix Corp., 841 F.2d at 175. The rejection and subsequent penalty suffice to require the employer to come forward with a satisfactory non-discriminatory reason for penalizing the worker. See United States Postal Service Board of Governors v. Aikens, 460 U.S. at 715, 103 S.Ct. at 1482 ("The prima facie case method ... is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination."). Likewise, if an employer's sexual advances are so severe as to create a hostile working environment for a female worker, the analysis is irrelevant; no legitimate nondiscriminatory reason for such treatment could possibly be proffered. See Bohen v. City of East Chicago, Ind., 799 F.2d at 1187.
Thus, rather than tarrying with "shifting-burdens" and the like, this court will move directly to the ultimate questions raised by Plaintiff's Title VII claims: (1) whether Plaintiff was fired because she rejected James' sexual advances; and (2) whether, even if she was not, James' treatment was so severe that it created a hostile and abusive working environment.
1. Quid Pro Quo.
The evidence presented at trial clearly established that Plaintiff was terminated from her position with Wolff, not because she refused James' sexual overtures in the first few weeks of her employment, but instead because, even long after these advances had entirely ended, she was unable to competently perform the jobs to which she was assigned. A fortiori, Plaintiff has utterly failed to satisfy her burden of proving that she was terminated because of her sex.
2. Hostile Working Environment.
Plaintiff has also fallen far short of establishing that James' sexual advances created a hostile working environment which intangibly altered the "terms and conditions" of her employment. The few incidents all occurred within the first few weeks of her work at Wolff, and were, with the single exception of the breast-fondling episode, essentially unoffensive and not even clearly unwelcome. Once James learned that the relationship he had established with Plaintiff before she came to work for him had come to an end, he terminated all such sexual improprieties. While this court in no way suggests that James conduct was proper, neither can it find that it amounted to sexual harassment under the Civil Rights laws. See Scott v. Sears, Roebuck & Co., 798 F.2d at 213-14 (to prove a hostile working environment, plaintiff must show that the harassment was "severe, debilitating or pervasive").[2]
The State Law Claims
Plaintiff also claims that James committed an assault and battery against her when he fondled her breast and otherwise touched her during his sexual advances. She correctly notes that, under Illinois law as in most other jurisdictions, an assault and battery need not involve force or peril; any intentional act which creates the apprehension of, and results in "an unpermitted contact[] with the plaintiff's person" gives rise to liability. Prosser on Torts, § 9 at 34-35, 37-38 (4th ed.); see also Webb v. Jewel Companies, Inc., 137 Ill.App.3d 1004, 92 Ill.Dec. 598, 485 N.E.2d 409 (1985).
This court agrees with Plaintiff that James committed an assault and battery against her on a few occasions during the course of their relationship. Although Plaintiff's allegations of sexual harassment are exaggerated and overblown, it does *536 appear that, even after Plaintiff had decided she did not want James courting her any longer and made this decision known to him, the latter did, for a short period, continue to pat her, kiss her and, on a single occasion, fondle her breast. These acts constitute intentional torts under Illinois law.
Nevertheless, Plaintiff cannot succeed on her assault and battery claim. The only defendant in this lawsuit is James' employer, Wolff. Thus, to recover on her state claims, Plaintiff must hold Wolff accountable for James' conduct. This she cannot do. It is clearly established that, under Illinois law, an employer can be held liable for the intentional torts of its employees, even supervisory employees, only "where such acts are committed in the course of employment and in furtherance of the business of the employer."[3]Rubin v. Yellow Cab Co., 154 Ill.App.3d 336, 338, 107 Ill.Dec. 450, 507 N.E.2d 114 (1987); Webb v. Jewel Companies, Inc., 137 Ill.App.3d at 1006, 92 Ill.Dec. 598, 485 N.E.2d 409. See also Awe v. Striker, 129 Ill.App.2d 478, 263 N.E.2d 345 (1970). The evidence in this case demonstrates that James' sexual misbehavior was committed entirely for his own enjoyment and benefit; he neither intended to nor did benefit Wolff in any way by his actions. Accordingly, this court finds that Wolff is not liable to Plaintiff for James' intentional torts.
CONCLUSION
Based on this court's findings of fact and conclusions of law, this court rules that Defendant Rudolf Wolff Futures, Inc. is entitled to judgment in its favor on all counts of the complaint. Accordingly, judgment is entered for Defendant.
NOTES
[1] Until February, 1985, James' office was actually owned by another commodity firm, Revco, Inc. However, because Wolff's purchase of this office in February, 1985, in no way affects the outcome of this case, this court will refer to the office as belonging to Wolff throughout.
[2] Since this court has concluded that Plaintiff was not the victim of sexual harassment or discrimination, it will not undertake the "rather abstract" inquiry established by the Supreme Court for determining whether Wolff would have been liable for such misconduct had it in fact occurred. See Meritor Savings Bank v. Vinson, 106 S.Ct. at 2408; Scott v. Sears, Roebuck & Co., 798 F.2d 215 (7th Cir.1986) (declining to hypothetically address liability of employer where employee not liable). The court merely notes that Plaintiff failed to prove that any other supervisory officials at Wolff were aware of James' sexual advances or condoned or participated in them.
[3] Aside from respondeat superior, an employer may also be liable for failing to properly supervise employees if this failure results in an injury. See Rubin v. Yellow Cab Co., 154 Ill.App.3d at 340, 107 Ill.Dec. 450, 507 N.E.2d 114. However, Plaintiff did not allege nor seek to prove that Wolff should be held liable for negligently failing to supervise James. Moreover, the evidence gives this court no grounds to believe that other supervisory officials at Wolff knew or should have known of James' conduct. See id.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMMY DOWDY and SHARON No. 16-15824
MORRIS-DOWDY,
Plaintiffs-Appellants, D.C. No.
3:15-cv-03764-JST
v.
METROPOLITAN LIFE INSURANCE OPINION
COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted November 15, 2017
San Francisco, California
Filed May 16, 2018
Before: Marsha S. Berzon and Michelle T. Friedland,
Circuit Judges, and William K. Sessions,* District Judge.
Opinion by Judge Sessions
*
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
2 DOWDY V. METROPOLITAN LIFE INS. CO.
SUMMARY**
Employee Retirement Income Security Act
The panel reversed the district court’s judgment in favor
of the defendant in an ERISA action challenging the denial of
accidental dismemberment benefits under an employee
welfare benefit plan.
The plaintiff suffered a serious injury to his left leg as the
result of an automobile accident, and his leg was eventually
amputated below the knee. The defendant denied coverage
because the plaintiff’s injury was complicated by his diabetes.
The panel held that the district court did not abuse its
discretion in excluding evidence outside the administrative
record, and any error on this issue was harmless because the
external evidence did not support the plaintiff’s claim.
Under the ERISA plan, the plaintiff was entitled to
coverage if his car accident was the “direct and sole cause” of
the loss, and if amputation “was a direct result of the
accidental injury, independent of other causes.” The panel
held that, even under the more demanding “substantial
contribution” standard used when the applicable plan
language is conspicuous, the plaintiff was entitled to recovery
because the record did not support a finding that the pre-
existing condition of diabetes substantially contributed to his
loss.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DOWDY V. METROPOLITAN LIFE INS. CO. 3
The panel remanded the case to the district court for
further proceedings.
COUNSEL
Mark L. Mosley (argued) and Douglas A. Applegate, Seiler
Epstein Ziegler & Applegate LLP, San Francisco, California;
Glenn R. Kantor, Kantor & Kantor LLP, Northridge,
California; for Plaintiffs-Appellants.
Rebecca Hull (argued) and Denise Trani-Morris, Gordon
Rees Scully MansukhaniLLP, San Francisco, California; Ian
S. Linker, Metropolitan Life Insurance Company, New York,
New York; for Defendant-Appellee.
OPINION
SESSIONS, District Judge:
OVERVIEW
In 2014, Appellant Tommy Dowdy suffered a serious
injury to his left leg as the result of an automobile accident.
His leg was eventually amputated below the knee. Mr.
Dowdy and his wife, Sharon Morris-Dowdy, sought
accidental dismemberment benefits under an employee
welfare benefit plan governed by the Employee Retirement
Income Security Act of 1974 (“ERISA”). Appellee
Metropolitan Life Insurance Company (“MetLife”) denied
coverage because Mr. Dowdy’s injury was complicated by
his diabetes, and the district court affirmed the denial. For
the reasons set forth below, we hold that the Dowdys are
4 DOWDY V. METROPOLITAN LIFE INS. CO.
entitled to coverage because Mr. Dowdy’s diabetes did not
substantially cause or contribute to his injury. The judgment
of the district court is therefore reversed and this case is
remanded for further proceedings.
FACTUAL BACKGROUND
On the morning of September 13, 2014, Mr. Dowdy, age
60, was driving eastbound on California State Route 4 when
he lost control of his car. The vehicle struck a metal sign
post, rolled onto its right side, traveled down a dirt
embankment and spun clockwise before coming to rest. The
California Highway Patrol (“CHP”) officer who arrived at the
scene noted that Mr. Dowdy had suffered serious injuries,
including a “semi-amputated left ankle” and chest abrasions.
After a “prolonged” extraction from his vehicle, Mr. Dowdy
was transported by helicopter to the John Muir Medical
Center and treated in the Intensive Care Unit.
Mr. Dowdy remained in the hospital until October 11,
2014, at which time he was discharged to a skilled nursing
facility. When discharged, he was “nonweightbearing” due
to his leg injury. The injury failed to improve, and
approximately three months later Mr. Dowdy was transferred
back to the hospital for treatment of persistent infection
issues. On February 13, 2015, Dr. Christopher Coufal
amputated Mr. Dowdy’s left leg below the knee.
Through Mr. Dowdy’s wife’s employment at Bank of the
West, the Dowdys had purchased accidental death and
dismemberment insurance from MetLife (“the AD&D Plan”
or “Plan”). The Plan is governed by ERISA. The relevant
coverage language states:
DOWDY V. METROPOLITAN LIFE INS. CO. 5
If You or a Dependent sustain an accidental
injury that is the Direct and Sole Cause of a
Covered Loss described in the SCHEDULE
OF BENEFITS, Proof of the accidental injury
and Covered Loss must be sent to Us. When
We receive such Proof We will review the
claim and, if We approve it, will pay the
insurance in effect on the date of the injury.
Direct and Sole Cause means that the Covered
Loss occurs within 12 months of the date of
the accidental injury and was a direct result of
the accidental injury, independent of other
causes
(the “Coverage Provision”).
The Plan has several exclusions, one of which provides
that MetLife will not issue benefits “for any loss caused or
contributed to by . . . physical . . . illness or infirmity, or the
diagnosis or treatment of such illness or infirmity” (the
“Illness or Infirmity Exclusion”). The Plan also excludes
coverage for infections (the “Infection Exclusion”), but
carves out of the exclusion any “infection occurring in an
external accidental wound.” The Plan requires claimants to
submit written evidence in support of their claim.
The Dowdys filed a request for benefits under the AD&D
Plan for Mr. Dowdy’s leg amputation, submitting information
both in writing and through several telephone calls. Prior to
the amputation, however, MetLife informed Ms. Morris-
Dowdy that it intended to deny the dismemberment claim
because an ankle fracture was not a severance. Ms. Morris-
6 DOWDY V. METROPOLITAN LIFE INS. CO.
Dowdy informed MetLife that amputation was possible
within the next week.
One week later, on February 16, 2015, MetLife mailed a
letter denying coverage. The letter stated that “[i]n general,
dismemberment benefits are paid for severing injuries, which
did not happen here.” On March 5, 2015, Dr. Coufal wrote
in a letter that Mr. Dowdy had
sustained significant injuries to his left lower
extremity with an open grade III B pilon
fracture. He had significant multiple other
comorbidities and traumatic injuries. . . . He
had wound issues, which were complicated by
his diabetes. The wound healing as well as
his fracture itself was slow to heal and never
had any significant healing in spite of being
stabilized with the external fixator. He ended
up developing deep infection . . . consistent
with osteomyelitis and sequestrum, which was
related to original injury. Eventually, due to
his comorbidities as well as type of injury he
ended up proceeding to an amputation. On
2/13/15, he underwent elective left below-the-
knee amputation for treatment of this infected
nonunion of the left pilon fracture.
Dr. Coufal’s surgical report similarly stated that “[o]ver the
past several months, [Mr. Dowdy] has had very poor signs of
healing . . . . Attempts at soft tissue coverage have been
unsuccessful. Due to his multiple comorbidities as well as
nonhealing wounds to his left leg and osteomyelitis, it was
elected to undergo a left below-the-knee amputation.”
DOWDY V. METROPOLITAN LIFE INS. CO. 7
On March 24, 2015, a senior claims examiner at MetLife
called for a “new initial denial as now there is now an
amputation, however the loss was contributed to by the
diabetes.” Correspondingly, MetLife sent a second denial
letter dated April 2, 2015. The letter cited the Illness or
Infirmity Exclusion, quoted above, which pertained to “any
loss caused or contributed to by . . . physical or mental illness
or infirmity, or the diagnosis or treatment of such illness or
infirmity.” The letter stated that Mr. Dowdy’s “amputation
was contributed [to] and complicated by diabetes per Dr.
Coufal,” and that “[u]nder the terms of the Plan a loss caused
or contributed [to] by an illness or treatment for that illness is
excluded by the Plan from payment.”
The Dowdys filed an administrative appeal of MetLife’s
initial determination. After a further review, MetLife upheld
its initial determination, concluding that the accident was not
the “direct and sole cause” of the amputation “independent of
other causes” as set forth in the Coverage Provision, and that
the Plan’s Illness or Infirmity Exclusion applied because Mr.
Dowdy’s diabetes contributed to the loss. As authorized by
ERISA, the Dowdys then sought judicial review in federal
court. See 29 U.S.C. § 1132(a)(1)(B).
In the proceedings before the district court, the parties
filed cross-motions for judgment under Federal Rule of Civil
Procedure 52. The district court declined to consider
extrinsic evidence, citing the principle that review of an
ERISA claim is generally limited to the administrative record.
The court also found that a review of extrinsic materials was
not warranted because the burden was on the Dowdys to
provide evidence supporting their claim, and MetLife had not
acted in bad faith in its communications with Ms. Morris-
Dowdy. With respect to the merits of Mr. Dowdy’s claim,
8 DOWDY V. METROPOLITAN LIFE INS. CO.
the district court found that diabetes caused or contributed to
the need for amputation, and affirmed the denial of benefits.
This appeal followed.
STANDARDS OF REVIEW
We review findings of fact by the district court for clear
error. Silver v. Exec. Car Leasing Long-Term Disability
Plan, 466 F.3d 727, 733 (9th Cir. 2006). When reviewing a
mixed question of law and fact, we review for clear error “[i]f
application of the rule of law to the facts requires an inquiry
that is ‘essentially factual.’” United States v. McConney,
728 F.2d 1195, 1202 (9th Cir. 1984) (en banc) (quoting
Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982)). The
district court’s decision to exclude evidence outside the
administrative record is reviewed for an abuse of discretion.
Opeta v. Nw. Airlines Pension Plan for Contract Emps.,
484 F.3d 1211, 1216 (9th Cir. 2007).
DISCUSSION
I. Extrinsic Evidence
The Court must first consider whether it is limited to
reviewing the administrative record. Review of a benefits
denial is generally limited to the factual record presented to
the plan administrator. Id. at 1217. This Circuit has held that
a court may consider evidence beyond the administrative
record “only when circumstances clearly establish that
additional evidence is necessary to conduct an adequate de
novo review of the benefit decision.” Mongeluzo v. Baxter
Travenol Long Term Disability Benefits Plan, 46 F.3d 938,
944 (9th Cir. 1995) (quoting Quesinberry v. Life. Ins. Co. of
N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993)) (describing
DOWDY V. METROPOLITAN LIFE INS. CO. 9
circumstances that support considering evidence outside of
the administrative record).
Of the four pieces of evidence excluded by the district
court, only one—Mr. Dowdy’s medical chart—is relevant.
The remaining evidence, which includes MetLife marketing
materials, a declaration from Ms. Morris-Dowdy stating when
Mr. Dowdy returned home, and evidence showing that Ms.
Morris-Dowdy was forced to leave her job to manage Mr.
Dowdy’s medical care, is irrelevant to the issues on appeal.
And with respect to the medical chart, the district court
correctly concluded that it did not in fact support the
Dowdys’ claim. Accordingly, even assuming the district
court erred in refusing to look beyond the administrative
record, any such error was harmless. See Burgess v. Premier
Corp., 727 F.2d 826, 833 (9th Cir. 1984) (“On appeal, a
ruling which admits or excludes evidence, even if an abuse of
discretion, will not be overturned if the error is harmless.”).
II. Entitlement to Coverage
We next turn to the question whether the Dowdys are
entitled to coverage. When making such a determination
under ERISA, the Court has generally applied federal
common law to questions of insurance policy interpretation.
Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1125 (9th Cir.
2002); see also Evans v. Safeco Life Ins. Co., 916 F.2d 1437,
1439 (9th Cir. 1990). Courts may “borrow ‘from state law
where appropriate, and be guided by the policies expressed in
ERISA and other federal labor laws.’” Babikian v. Paul
Revere Life Ins. Co., 63 F.3d 837, 840 (9th Cir. 1995)
(alteration omitted) (quoting Scott v. Gulf Oil Corp., 754 F.2d
1499, 1502 (9th Cir. 1985)). However, the general rule is that
state common-law rules related to employee benefit plans are
10 DOWDY V. METROPOLITAN LIFE INS. CO.
preempted. 29 U.S.C. § 1144(a); Evans, 916 F.2d at 1439;
see also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98 (1983)
(holding that federal common law of ERISA preempts state
law in the interpretation of ERISA benefit plans).1
In developing federal common law, courts must adopt a
rule that “best comports with the interests served by ERISA’s
regulatory scheme.” PM Grp. Life Ins. Co. v. W. Growers
Assurance Tr., 953 F.2d 543, 546 (9th Cir. 1992). Congress
specifically stated that it is “the policy of [ERISA] to protect
. . . the interests of participants in employee benefit plans and
their beneficiaries” and to “increase the likelihood that
participants and beneficiaries . . . receive their full benefits.”
29 U.S.C. §§ 1001(b), 1001b(c)(3).
1
ERISA contains a savings clause that exempts from preemption “any
law of any State which regulates insurance.” 29 U.S.C. § 1144(b)(2)(A).
We have previously held that “state laws of insurance policy interpretation
do not qualify for the savings clause exception and are preempted.”
McClure v. Life Ins. Co. of N. Am., 84 F.3d 1129, 1133 (9th Cir. 1996)
(quoting Evans, 916 F.2d at 1440 (1990)); see also Williams v. Nat’l
Union Fire Ins. Co., 792 F.3d 1136, 1140 (9th Cir. 2015). Whether, in
light of Kentucky Association of Health Plans, Inc. v. Miller, 538 U.S. 329
(2003), the McClure rule still applies to the state insurance law here at
issue, see Cal. Ins. Code §§ 530, 532; Garvey v. State Farm Fire & Cas.
Co., 770 P.2d 704, 706–07 (Cal. 1989), is a question we need not address.
Cf. Anderson v. Continental Cas. Co., 258 F. Supp. 2d 1127, 1130–32
(E.D. Cal. 2003) (concluding that, following Miller, California’s process-
of-nature rule is saved from preemption even though it can be described
as a rule of policy interpretation). No savings clause argument was raised
in the district court, and, in any event, the result in this case would be the
same under California’s less restrictive approach to causation. See Cal.
Ins. Code. §§ 530, 532; Garvey, 770 P.2d at 706–07.
DOWDY V. METROPOLITAN LIFE INS. CO. 11
A. The “Direct and Sole Cause” of the Injury
In this case, the Dowdys are entitled to coverage if Mr.
Dowdy’s car accident was the “direct and sole cause” of the
loss, and if amputation “was a direct result of the accidental
injury, independent of other causes.” These are common
terms in ERISA policies. We have previously addressed
similar language in the context of pre-existing conditions in
disability insurance.
In McClure v. Life Ins. Co. of N. Am., 84 F.3d 1129 (9th
Cir. 1996), we determined that where the applicable plan
language is less than obvious (“inconspicuous”), the “policy
holder reasonably would expect coverage if the accident were
the predominant or proximate cause of the disability.” Id. at
1135–36. If, however, the applicable language is
conspicuous, recovery could be barred if a preexisting
condition substantially contributed to the loss, “even though
the claimed injury was the predominant or proximate cause
of the disability.” Id. at 1136.
Here, we need not determine whether the applicable
policy language is conspicuous or inconspicuous, because
even under the more demanding substantial contribution
standard, the Dowdys are entitled to recovery. In affirming
the plan administrator’s denial of coverage, the district court
concluded that diabetes “caused or contributed to the need for
amputation.” We agree that the record establishes that
diabetes was a factor in the injury. Nonetheless, the factual
record does not support a finding that diabetes substantially
contributed to Mr. Dowdy’s loss.
In order to be considered a substantial contributing factor
for the purpose of a provision restricting coverage to “direct
12 DOWDY V. METROPOLITAN LIFE INS. CO.
and sole causes” of injury, a pre-existing condition must be
more than merely a contributing factor. For example, in
Adkins v. Reliance Standard Life Ins. Co., 917 F.2d 794 (4th
Cir. 1990), the Fourth Circuit cited with approval the
reasoning that “a ‘pre-disposition’ or ‘susceptibility’ to
injury, whether it results from congenital weakness or from
previous illness or injury, does not necessarily amount to a
substantial contributing cause. A mere ‘relationship’ of
undetermined degree is not enough.” 917 F.2d at 797
(quoting Colonial Life & Accident Ins. Co. v. Weartz,
636 S.W.2d 891, 894 (Ky. Ct. App. 1982), overruled on other
grounds by Mifflin v. Mifflin, 170 S.W.3d 387 (Ky. 2005));
see also Quesinberry, 987 F.2d at 1028 (holding that “a mere
relationship of undetermined degree” was not sufficient to
defeat coverage).
This conclusion is echoed in the Restatement, to which
this Court has previously turned for assistance in formulating
federal common law in the ERISA context. See, e.g., Salyers
v. Metro. Life Ins. Co., 871 F.3d 934, 939–40 (9th Cir. 2017)
(adopting a definition from the Restatement of Agency as
federal common law in an ERISA action); Native Vill. of
Kivalina v. ExxonMobil Corp., 696 F.3d 849, 855 (9th Cir.
2012) (defining a public nuisance under federal common law
in accordance with the Restatement (Second) of Torts). In
defining “substantial” in the context of “substantial cause,”
the Restatement (Second) of Torts notes:
The word “substantial” is used to denote the
fact that the defendant’s conduct has such an
effect in producing the harm as to lead
reasonable men to regard it as a cause, using
that word in the popular sense, in which there
always lurks the idea of responsibility, rather
DOWDY V. METROPOLITAN LIFE INS. CO. 13
than in the so-called “philosophic sense,”
which includes every one of the great number
of events without which any happening would
not have occurred. Each of these events is a
cause in the so-called “philosophic sense,” yet
the effect of many of them is so insignificant
that no ordinary mind would think of them as
causes.
Restatement (Second) of Torts § 431 cmt. a (Am. Law Inst.
1965).
For a court to distinguish between a responsible cause and
a “philosophic,” insignificant cause, there must be some
evidence of a significant magnitude of causation. Such
evidence need not be presented with mathematical precision,
but must nonetheless demonstrate that a causal or
contributing factor was more than merely related to the
injury, and was instead a substantial catalyst. See, e.g.,
Coleman v. Metro. Life Ins. Co., 262 F. Supp. 3d 295, 312
(E.D.N.C. 2017) (finding against a defendant in an ERISA
case where “the record contains no indication that [the
plaintiff’s] cancer contributed to his death in any quantifiable
or substantial way”); Towers ex rel. Verderosa v. Life Ins. Co.
of N. Am., No. 6:09-CV-1318-ORL-28, 2011 WL 3752734,
at *6 (M.D. Fla. Aug. 25, 2011) (ruling against defendant
under ERISA plan where “the level of contribution of
[plaintiff’s] preexisting conditions to his death has not been
quantified . . . [Thus,] the Court cannot discern from the
record evidence any means of determining the degree of the
causal relationship.”).
The record here falls short of showing that diabetes was
a substantial contributing factor. Dr. Coufal opined that Mr.
14 DOWDY V. METROPOLITAN LIFE INS. CO.
Dowdy’s “wound issues” post-surgery were “complicated by
his diabetes.” He did not elaborate, even generally, on how
much of a role that complicating factor played in Mr.
Dowdy’s failure to recover. Dr. Coufal identified a host of
contributors, including the original, “significant . . . pilon
facture,” “potential bony sequestrum indicating
osteomyelitis” related to the initial injury, and a resulting
“deep infection.” In summarizing the grounds for surgery,
Dr. Coufal faulted both “comorbidities” and the “type of
injury.”
The district court concluded that coverage is barred
because, as the Plan “dictates,” no physical or mental illness
can “‘cause or contribute’” to the loss, and “Mr. Dowdy’s
diabetes clearly contributed to his loss.” The court also found
“that the complications of Mr. Dowdy’s diabetes substantially
contributed to the need for amputation.” Although the district
court cited the substantial contribution standard, its
application of that standard was clear error, as it was overly
strict and not consistent with the requirement that the
contributing factor be, in fact, substantial.
In sum, Congress intended for ERISA to protect the
interests of plan participants and their beneficiaries. See
29 U.S.C. §§ 1001(b), 1001b(c)(3). Consistent with that
policy choice, federal courts have developed a body of
common law that construes coverage provisions in a manner
that does not “unreasonably limit[] coverage.” Dixon, 389
F.3d at 1184. Here, even assuming the policy language was
conspicuous, we construe the Plan as providing coverage
unless Mr. Dowdy’s pre-existing disease “substantially
contributed” to his injury. McClure, 84 F.3d at 1136. Based
upon the evidence presented in the administrative record, Mr.
Dowdy’s diabetes was a complicating factor, but it was not
DOWDY V. METROPOLITAN LIFE INS. CO. 15
identified as a substantial contributor to the ultimate loss. We
therefore hold that coverage should not have been denied on
the basis of the Coverage Provision.
B. The Illness or Infirmity Exclusion
Because Mr. Dowdy’s injury is a covered loss, we must
go on to determine whether the Illness or Infirmity Exclusion
bars coverage. That Exclusion states that MetLife will not
pay benefits for “any loss caused or contributed to by . . .
illness or infirmity.” The plan administrator and the district
court both found that this Exclusion applies because Mr.
Dowdy’s diabetes “caused or contributed to” the loss. We
disagree.
Under general principles of insurance law, exclusions are
construed narrowly. See Critchlow v. First Unum Life Ins.
Co. of Am., 378 F.3d 246, 256 (2d Cir. 2004) (explaining that,
under ERISA, exclusionary clauses “are given strict
construction” and “should be read narrowly rather than
expansively”). And MetLife has conceded, as it must, that it
has the burden of showing an exclusion applies. See Mario
v. P & C Food Mkts., Inc., 313 F.3d 758, 765 (2d Cir. 2002)
(“[A]s a matter of general insurance law, the insured has the
burden of proving that a benefit is covered, while the insurer
has the burden of proving that an exclusion applies.”).
We hold, for the same reasons discussed above, that the
substantial contribution standard applies in interpreting the
concepts of cause and contribution in this exclusion. The
Illness or Infirmity Exclusion serves the same purpose as the
threshold limitation on coverage to accidental injury that is
16 DOWDY V. METROPOLITAN LIFE INS. CO.
the “direct and sole cause” of a covered loss.2 Accordingly,
to satisfy the Exclusion, any cause or contribution by an
illness or infirmity must be substantial. See, e.g., Coleman,
262 F. Supp. 3d at 308 (“The Adkins standard governs even
where, as here, the causation-based exclusion simply says
‘caused or contributed to,’ and it requires that any
contribution be substantial.”).
Again, the record with respect to the role of diabetes in
Mr. Dowdy’s recovery is notably thin. The car accident
resulted in a severe injury that came close to amputating his
lower leg. Dr. Coufal opined that when attempts were made
properly to correct the lower leg, subsequent wound issues
were complicated by diabetes, and the fracture itself was slow
to heal. Ultimately, however, Mr. Dowdy suffered a deep
infection that Dr. Coufal considered “related to the original
injury.” In light of this evidence, and giving the Exclusion
the required strict reading, MetLife cannot meet its burden of
showing that diabetes substantially caused or contributed to
the loss.
As the evidence is insufficient for MetLife to show that
the Illness or Infirmity Exclusion applies, the Dowdys are
entitled to benefits. This case is hereby remanded to the
district court for further proceedings consistent with this
2
See J.A. Bock, Pre-existing physical condition as affecting liability
under accident policy or accident feature of life policy, 84 A.L.R. 2d 176,
§ 4(a) (“[M]ost accident policies contain clauses which may be classified
as being either ‘sole cause’ or ‘exclusionary’ clauses. By way of general
observation, it may be stated that most cases have not recognized any
distinction between these two main types of provisions, but rather,
depending upon the facts of the particular case, have given the same
construction and effect to each type of clause.”).
DOWDY V. METROPOLITAN LIFE INS. CO. 17
decision, which will include determining the amount of
benefits owed.
REVERSED and REMANDED.
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985 F.2d 579
U.S.v.Kauffman*
NO. 92-6674
United States Court of Appeals,Eleventh Circuit.
Jan 28, 1993
Appeal From: S.D.Ala.
REVERSED AND VACATED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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406 N.W.2d 726 (1987)
In the Matter of the Appeal on Remand From the 1984 Decision of the State Board of Equalization In re All Property Located in MURDO, South Dakota.
No. 15448.
Supreme Court of South Dakota.
Considered on Briefs March 26, 1987.
Decided June 3, 1987.
*727 Robert B. Anderson of May, Adam, Gerdes & Thompson, Pierre, C.D. Kell, Jones County States Atty., Murdo, for petitioner and appellant Jones County.
Laurence J. Zastrow of Gors, Braun, Carlon, Smith & Zastrow, Pierre, for appellee City of Murdo.
PER CURIAM.
Jones County appeals from an order of the circuit court denying its demand for a trial de novo in an equalization matter. We reverse.
In 1984, the Jones County commissioners, sitting as the county board of equalization, made certain decisions which decreased the taxable value of agricultural land in Jones County. The city of Murdo appealed to the State Board of Equalization, which on two separate occasions reversed the actions of the county board. Jones County appealed the decisions of the State Board and made a written demand for a trial de novo before the circuit court. The circuit court denied the demand and ordered that the appeal proceed on the record pursuant to the provisions of SDCL ch. 1-26, the South Dakota Administrative Procedures Act. Jones County then filed a petition for allowance of appeal from an intermediate order of the circuit court, which petition was granted by this court.
The sole issue raised by Jones County is whether an appeal from the State Board of Equalization to the circuit court is a de novo proceeding pursuant to SDCL 10-11-43 or an appeal on the record pursuant to SDCL 1-26-35. We faced precisely the same issue in the Matter of the Appeal of AT & T Information Systems, 405 N.W.2d 24 (S.D.1987). There we held that a de novo proceeding is the exclusive remedy authorized by law in appeals from the State Board of Equalization when the assessment is made by the Board. SDCL 10-11-43, SDCL 7-8-30. Therefore, the circuit court erred in denying the demand of Jones County for a trial de novo.
The order of the circuit court is reversed.
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Filed 8/20/15 P. v. Harris CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068065
Plaintiff and Respondent,
v. (Super. Ct. No. FSB1205607)
RONALD HARRIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino, Lorenzo R.
Balderrama, Judge. Affirmed.
Richard Glen Boire, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall Einhorn
and Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ronald Harris of simple assault, a misdemeanor, as a lesser
included offense of assault with a deadly weapon. (Pen. Code, § 240.) Harris was
granted probation on various terms and conditions which are not at issue here.
Harris appeals contending the trial court committed reversible error in replacing
two sick jurors with alternates while Harris was absent, having failed to appear. Harris
also contends the court erred in its instructions to the jury on Harris's defense that he was
making a citizen's arrest at the time of his contact with the victim. Finally, he contends
the court erred in admitting certain prosecution rebuttal evidence. We will find no error
by the court with regard to any of Harris's contentions. Therefore we will also reject his
claim of cumulative error.
STATEMENT OF FACTS
Harris does not challenge the sufficiency of the evidence to support his conviction.
His only evidentiary challenge is a claim the prosecution's rebuttal evidence was
irrelevant. Accordingly we will set forth only a summary of the evidence produced at
trial. We find the summary of facts in the respondent's brief to be accurate and we adopt
it here for convenience.
On December 6, 2012, around noontime, Jesus Padilla was riding his motorcycle
northbound on Mountain View Avenue toward the I-10 freeway in Loma Linda. Padilla
was splitting lanes1 as he drove down Mountain View while the other vehicles were
stopped. As Padilla was approaching Business Center Drive, while splitting lanes on a
1 Splitting lanes means to ride between two lanes.
2
two-lane street, a car being driven by appellant moved to the middle of the lane to block
Padilla from moving forward. Padilla stopped next to this car. The car was directly to
Padilla's right.2 Padilla raised his arms with his palms out, in order to communicate,
"What are you doing?" Padilla did not hit or kick the car. After the light turned green,
the car continued to block Padilla. Padilla moved behind the car and eventually, when
the road split from two lanes to three lanes, Padilla attempted to pass on the right side of
the car, travelling about 10 to·15 miles per hour. Appellant then drove directly toward
Padilla, striking him and causing him to fly off the motorcycle.
Around the same time of the collision, Denise Cummings was also driving
northbound on Mountain View. Cummings witnessed the collision. Before the collision,
Cummings was driving behind appellant, and noticed a motorcycle riding in between
lanes. The motorcycle was on her left side. Cummings moved her vehicle to the right to
allow the motorcycle to pass; however, appellant swerved toward the motorcyclist and
"continued to swerve at [the motorcyclist] multiple times." Cummings believed appellant
was trying to hit the motorcyclist. The motorcyclist avoided appellant, slowed down, and
then again attempted to pass. Appellant swerved toward the motorcyclist, preventing the
motorcyclist from passing. Cummings saw the motorcyclist raise his hands indicating,
"Hey, what are you doing?" Next, the motorcyclist slowed down, was positioned
between appellant and Cummings's vehicle, and then tried to pass appellant on the right
2 On cross-examination Padilla testified that he did not have any·contact with this
car at Mountain View Avenue and Redlands Boulevard, which preceded Business Center
Drive on Padilla's route.
3
side, travelling at approximately 10 to 15 miles per hour. During this attempt to pass,
appellant again swerved toward the motorcyclist, and the motorcyclist hit the side of the
car with his hand. Appellant made another swerving motion, this time more "extreme,"
and hit the motorcyclist. As a result, the motorcyclist flew off his motorcycle.
Cummings stopped her vehicle, called 911, and checked to see if the motorcyclist was
okay. Appellant was not concerned with the motorcyclist's well-being and was taking
pictures of the scene.
Padilla was taken by ambulance to the emergency room. He suffered back, neck,
and leg pain for a few months as a result of the collision. Additionally, Padilla's
motorcycle was damaged. San Bernardino County Sheriff's Deputy Chris Hensman
responded to the scene of the collision. Deputy Hensman saw a dark colored Saab with a
motorcycle wedged underneath it. Deputy Hensman contacted appellant who was
agitated, semi-angry, and excited. Hensman documented that appellant's passenger side
mirror was broken.
Defense Case
Eleanor Borkowski was driving northbound on Tippecanoe Avenue·on
December 6, 2012, when she saw a motorcyclist stop by the driver's side window of a
stopped car in the lane next to her even though there was room for the motorcyclist to
continue forward. The motorcyclist and driver exchanged words and, when traffic started
to move, Borkowski honked her horn indicating to the motorcyclist to move in front of
her. Instead of moving in front of Borkowski, the motorcyclist moved behind the car
4
with which he had an altercation. The motorcyclist approached the car on its right side
and Borkowski heard a crash and saw the motorcycle go "down."
Appellant testified that he drives a blue 1999 Saab 95. On December 6, 2012, he
was traveling north on Mountain View. He was stopped in traffic south of Redlands
Boulevard and moved his car leftward within his lane to see what was causing the traffic.
As he was looking out, he heard a loud noise coming from the driver's side window that
scared him. He saw a motorcyclist at the window, and believed the motorcyclist struck
the window with his left hand. The motorcyclist made a threatening gesture as if he
wanted to fight appellant.
When traffic started to move, the motorcyclist rode by appellant and hit the
driver's side mirror, causing it to go all the way forward and then snap back in place.
After the incident, the driver's side mirror had three slight chips in the paint that appellant
claimed were not present before. Appellant claimed that he reflexively swerved to the
right and then back left to center himself. The motorcyclist rode away. Appellant
testified he tried to get close to the motorcycle to get his license plate number. As
appellant approached Business Center Drive, he could not see the motorcyclist, who had
moved ahead of him. After Business Center Drive, as appellant was reaching the I-10
freeway, appellant saw the motorcyclist again. Appellant began to merge into the next
lane with his turn signal activated and his car angled between the lanes because of the
stopped traffic. He saw the motorcyclist positioned behind him, and the motorcyclist
either blew his horn or made gestures. Appellant saw the motorcyclist with his hands up,
palms in the air. Appellant believed Padilla was upset.
5
Appellant testified that the motorcyclist subsequently rode alongside the right
(passenger) side of his vehicle, stopped, stood on one foot, and hit the mirror as hard as
he could with his left hand, causing the mirror to break. Appellant reflexively moved his
car in the direction of the curb, and the motorcyclist tried to accelerate through the gap
between appellant's car and the curb. Appellant tried to close the gap to prevent the
motorcyclist from fleeing. As the motorcyclist tried to accelerate away, appellant's right
front fender crashed into rear tire of the motorcycle causing the motorcyclist to fall off
the motorcycle. Appellant tried to straighten his car and realized the motorcycle was
pinned under his car. After the collision, there was no damage to the side and rear of
appellant's car, only the front of the car and side view mirror were damaged.
Appellant turned his car off, dialed 911, grabbed his camera, and started
documenting the scene of the collision.
Rebuttal
Deputy Hensman spoke to appellant at the scene of the collision. Appellant told
Hensman that the motorcyclist hit his mirror, he reacted, and his car and the motorcycle
became entangled. Appellant said he hit the motorcycle because he wanted to prevent the
motorcyclist from getting away.
Deputy Hensman testified that he is trained in use of force to effectuate an arrest.
Hensman stated deputies are allowed to use the reasonable force necessary to make an
arrest and that reasonableness is based on a reasonable deputy. Hensman testified that if
someone who he was trying to arrest had a baseball bat, he could use a gun to make an
arrest and that would be reasonable. Though Deputy Hensman is not trained in using the
6
precision immobilization technique ("PIT") maneuver, it can be used at speeds under 35
miles per hour. Hensman testified that one has to be certified to use the PIT maneuver
and that the San Bernardino Sheriff's Office does not use the maneuver on motorcyclists
because of the "inherent vulnerability of the motorcycle rider" and because it is
considered "lethal force."3 Lethal force is used in situations where there is a risk of a
loss of life, and cannot be used to arrest someone for committing a misdemeanor. The
policies regarding the implementation of the PIT maneuver vary from agency to agency.
DISCUSSION
I
SUBSTITUTION OF ALTERNATE JURORS
After the jury had deliberated for several days, the court learned that two of the
jurors were ill. There were two alternate jurors remaining and the court excused the two
sick jurors and replaced them with alternates. The jury was instructed to start over with
its deliberations using CALCRIM No. 3575.
Harris did not show up in court as ordered in the morning session when the court
excused the first juror without objection by defense counsel. The parties were to return at
1:30 p.m.
When court resumed, Harris was still absent. At that point the court learned it had
to replace a second juror. The court proposed to replace the juror and read the
appropriate instruction. At that point, with Harris still absent, defense counsel objected:
3 Deputy Hensman explained that lethal force is force that could result in the
subject's death.
7
"We are losing two jurors. They (the jury) don't know why we are
losing the jurors. They don't know they are sick today. They are
going to know that two jurors are coming in, and they are not going
to see Mr. Harris, and I don't want them to draw any conclusions that
there was some contact between Mr. Harris and the jurors."
After defense counsel was unable to explain why Harris was absent or when he might
arrive, the court told the jury that Harris was trying to get to court, but was having some
problems. The court then said:
"Two of your fellow jurors have been excused and alternate
jurors . . . had been selected to join the jury. Do not consider this
substitution for any purpose. The alternate jurors must participate
fully in the deliberations that lead to any verdict. [¶] The People and
the defendant have the right to a verdict reached only after full
participation of the jurors whose votes determine that verdict. The
rights will only be assured if you begin your deliberations again
from the beginning. Therefore, you must set aside and disregard all
past deliberations and begin your deliberations all over again. Each
of you must disregard the earlier deliberations and decide this case
as if those earlier deliberations had not taken place. [¶] Now, please
return to the jury room and start your deliberations from the
beginning."
The court also explained to the jury that the missing jurors suffered health problems
which caused their absence.
Harris contends his rights under the Fifth, Sixth and Fourteenth Amendments were
violated when the jurors were replaced and instructed to start over in their deliberations
when he was absent from court. Harris recognizes there was no testimony taken and no
witnesses were called. He argues he was prejudiced because he was not able to "subject a
psychological influence" on the jury.
We will find the Sixth Amendment inapplicable to this contention. As to his due
process claims, we will find there was absolutely no prejudice to Harris by the
8
substitution of jurors and instructions to start over in deliberations while Harris was
absent from court.
A. Legal Principles
In People v. Waidla (2000) 22 Cal.4th 690, 741-742, the court discussed the rights
of defendants to be present at the various stages of a criminal trial:
"Under the Sixth Amendment's confrontation clause, a criminal
defendant does not have a right to be personally present at a
particular proceeding unless his appearance is necessary to prevent
'interference with [his] opportunity for effective cross-examination.'
[Citation.] [¶] Similarly, under the Fourteenth Amendment's due
process clause, a criminal defendant does not have a right to be
personally present at a particular proceeding unless he finds himself
at a 'stage . . . that is critical to [the] outcome' and 'his presence
would contribute to the fairness of the procedure.' [Citation.] [¶] . . .
[¶] Lastly, under sections 977 and 1043 of the Penal Code, a
criminal defendant does not have a right to be personally present
where he does not have such a right under section 15 of article I of
the California Constitution."
In order to show prejudice from actions taken in a defendant's absence the person
must demonstrate that his or her presence was required because it " 'bears a reasonable
and substantial relation to his full opportunity to defend against the charges.' [Citation.]
The defendant must show that any violation of this right resulted in prejudice or violated
the defendant's right to a fair and impartial trial." (People v. Hines (1997) 15
Cal.4th 997, 1039.)
In order to prevail on a claim that his absence from the process of replacing two
sick jurors violated his due process right, Harris must demonstrate his absence denied
him a fair trial. (People v. Garrison (1989) 47 Cal.3d 746, 783.) Since the question of
9
constitutional violation in this case is not dependent on the sufficiency of the evidence,
we review the issue de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1230.)
B. Analysis
We first observe that Harris was not excluded from the events surrounding the
replacement of jurors. Harris repeatedly failed to appear during the deliberation period,
however, we must still determine if there was an infringement on his fundamental rights.
We also observe there is no contention here that the jurors should not have been
replaced. Likewise there can be no argument that the court was required to tell the
reconstituted jury to start over with its deliberations. Thus there was nothing in the
process subject to dispute nor was there anything that happened that would have made it
important for Harris to be in court when the fairly ministerial actions took place.
When the first juror was replaced there was no defense objection. In the
afternoon, when Harris again failed to appear as ordered, the defense objected. However
the gravamen of the objection was that the jurors would not know why the others had
been replaced and might assume Harris, who was absent, might have had contact with the
excused jurors. However unmeritorious the stated objection was, the trial court took
steps to prevent the alleged harm mentioned by counsel.
The court informed the jury that the missing jurors were ill and had to be excused.
The court even went on to give a benign explanation for Harris's continued absence: car
trouble. The proffered reasons for the objections were all addressed by the court. Thus
we are left with the question of what possible prejudice to Harris was there by acting in
his absence? The answer counsel provides is that Harris missed the opportunity to
10
"subject a 'psychological influence' on them." We recognize that the right of
confrontation of witnesses contained in the Sixth Amendment, contemplates a defendant's
physical presence during the taking of testimony, however, such right is not applicable to
court proceedings that do not involve the evidentiary process. As we have pointed out
the only constitutional argument available here would be based on prejudice rising to the
level of a denial of due process. The argument presented here that Harris was going to
subject the jurors at this point to "psychological influence" is bizarre.
There were no substantive instructions given to the jury. No jury questions were
raised. The alternate jurors were present throughout the trial, argument and instructions.
All that happened was that two sick jurors were replaced and the jury, as required, was
told to start over again. We are at a loss as to how Harris, even if he decided to show up
as ordered, would subject the jury to psychological pressure. The argument is inventive
and the alleged "prejudice" is almost mystical. However, we are not persuaded by it.
The record is devoid of any indication that Harris was prejudiced by the action taken in
his absence.
II
ALLEGED INSTRUCTIONAL ERROR
Harris did not dispute that the encounter between himself and the victim took
place. He did not dispute that the victim was knocked off of his motorcycle and injured
and that Harris's car ran over the motorcycle. What Harris did contend was that he had
been assaulted when the victim, trying to pass Harris the second time, struck the window
of Harris's car and broke the passenger side mirror. Harris contends that he had a right to
11
make a citizen's arrest at that point and that cutting off a moving motorcycle with his car,
hitting the motorcycle and knocking the rider off of the vehicle was an authorized,
reasonable use of force. Harris contends the trial court erred in the instructions given by
failing to define what constitutes "necessary and reasonable force." We will find no error
in the court's instructions.
A. Background
The trial court rejected a defense instruction on citizen's arrests. The court gave
the following instruction instead:
"The defendant is not guilty of assault with a deadly weapon or
simple assault if he was making a lawful citizen's arrest. [¶] The
defendant was making a lawful citizen arrest -- citizen's arrest if he
-- using no more force than was necessary and reasonable, he acted
because Jesus Padilla committed or attempted to commit
misdemeanor vandalism or misdemeanor assault in the defendant's
presence. [¶] This defense is not available to a person who uses
unreasonable or excessive force or deadly force. [¶] The People
have the burden of proving beyond a reasonable doubt that the
defendant was not making a lawful citizen's arrest. [¶] If the People
have not met this burden, you must find the·defendant not guilty of
assault with a deadly weapon or simple assault."
The principal dispute over the jury instruction deals with the permissible force
available to a person making a citizen's arrest for a misdemeanor. The question relates to
whether using his car to stop the victim from riding away amounted to excessive force. If
so, the defense of citizen's arrest would not be available.
The main difference between the instruction offered by Harris and that used by the
court is that the proposed defense instruction stated when the arrestee flees:
"In that event, the person effecting the arrest may use such force as
is reasonably necessary to accomplish the arrest and detention and to
12
defend himself. [¶] The person making an arrest is acting lawfully if
force or means used are such as would be considered necessary by
the ordinarily reasonable person placed in the same position and if
from the standpoint of such a reasonable person force and means
used was apparently necessary."
It was defense counsel's position with the jury that a civilian making an arrest had
more latitude in deciding what force to use than would a police officer. The reason for
such conclusion was that officers are trained and citizens are not. Thus the untrained
citizen should be able to use a degree of force which officers could not. Naturally, Harris
offers no authority for such a novel position. As we will discuss below, the authority of
law enforcement to make arrests is greater than the more limited power of the citizen.
Thus we cannot understand why the citizen would be able to lawfully use more force than
could be used by police.
B. Legal Principles
The power of a citizen to arrest another person is contained in Penal Code section
837: "A private person may arrest another: 1. For a public offense committed or
attempted in his presence. [¶] 2. When the person arrested has committed a felony,
although not in his presence. [¶] 3. When a felony has in fact been committed, and he
has reasonable cause for believing the person arrested to have committed it."
A person who makes a citizen's arrest may use reasonable force to detain the
arrestee and the arrestee has a duty not to resist the use of reasonable force to effect the
arrest. (People v. Fosselman (1983) 33 Cal.3d 572, 579.) Deadly force cannot be used in
making a citizen's arrest for a misdemeanor offense. (People v. Martin (1985) 168
Cal.App.3d 1111, 1115-1116.) Even in the case of a citizen's arrest for the commission
13
of a felony, deadly force may not be used unless the felony threatens life or serious
bodily injury. (People v. Piorkowski (1974) 41 Cal.App.3d 324, 329-330.)
The arrest powers of peace officers are contained in Penal Code section 836,
et seq. For example, peace officers can arrest on probable cause and do not have to show
a crime has in fact been committed, whereas the citizen's power only arises where a crime
has in fact been committed.
Harris has cited no authority for the proposition that the standard for determining
the lawful use of force by a citizen to arrest is the "reasonable person" standard. Our
research has not revealed any such authority. It is clear the statute authorizing citizen's
arrests for misdemeanor offense only allows the use of reasonable and necessary force
against a fellow citizen.
C. Analysis
The court's instruction in this case directed the jury to the proper standard for
assessing the validity of the use of force by Harris. He could not use deadly force, or
excessive force to arrest for the misdemeanor committed in his presence. The force not
only had to be necessary but reasonable.
In this case, which looks like "road rage," Harris, perhaps unwittingly, cut off the
victim who was lane splitting and attempting to pass Harris on the left. The victim,
angered and frustrated, attempted to then pass Harris on the right and was again blocked.
When the victim finally passed Harris on the right side, the victim used his fist to strike
the passenger window and broke the passenger side mirror. In his alleged effort to
apprehend the victim for misdemeanor assault and vandalism, Harris pulled in front of
14
the moving motorcycle causing the motorcycle to hit the car and propel the rider over the
front causing him injury. The car then ran over the motorcycle.
Whether a "reasonable person" might have thought it appropriate to apprehend the
victim by cutting off the moving vehicle (a concept we seriously doubt), a jury could
reasonably conclude the force used posed a clear risk of great bodily injury, or even
death. The instruction gave the jury the appropriate standard for assessing the defense.
Thus there was no error.
III
EVIDENTIARY ERROR
After the defense case was concluded the prosecution offered testimony from a
deputy sheriff regarding the propriety of using a car to cut off a "fleeing suspect." The
term used for such process was the "PIT maneuver." The deputy explained police were
restricted in using such maneuver because of the danger it presents. The testimony was
that the Sheriff's Department in San Bernardino did not use the PIT maneuver, because it
could result in fatal injury.
Harris objected to the testimony regarding law enforcement's limitations on the
use of a moving car to cut off a moving motorcycle, contending the testimony was
irrelevant. The trial court overruled the objection.
A. Legal Principles
When we review a trial court's decision to admit or exclude evidence, we apply the
familiar abuse of discretion standard. Under that standard an appellant must clearly
demonstrate the decision was so unreasonable as to be an abuse of the court's discretion.
15
(People v. Lee (2011) 51 Cal.4th 620, 643.) Similarly where the court rules on opinion
testimony we also apply the abuse of discretion standard. (People v. San Nicolas (2004)
34 Cal.4th 614, 663.)
Evidence is relevant where it has a tendency in reason to prove or disprove a
material fact in the action. (Evid. Code, § 210; People v. Cowan (2010) 50 Cal.4th 401,
482-483.) Opinions by lay persons are admissible where the person has sufficient
knowledge of matters that would be within the person's ordinary experience as to be
relevant to a disputed issue.
The trial court found the opinion testimony of the deputy was relevant to the
question of what force would be reasonable in an effort to make an arrest for a
misdemeanor involving moving vehicles on a roadway. The court instructed the jury on
the use of lay opinion:
"Witnesses who were not testifying as experts gave their opinions
during the trial. You may but are not required to accept those
opinions as true or correct. You may give the opinions whatever
weight you think appropriate. Consider the extent of the witness's
opportunity to perceive the matters on which his or her opinion is
based, the reasons the witness gave for any opinion, and the facts or
information on which the witness relied in forming that opinion.
You must decide whether information on which the witness relied
was true and accurate. You may disregard all or any part of an
opinion that you find unbelievable, unreasonable, or unsupported by
the evidence." (CALCRIM No. 333 (Opinion Testimony of Lay
Witness.)
B. Analysis
Harris argues the testimony of what limitations a law enforcement officer may
have on using force such as was used by Harris was irrelevant. His claim in trial and here
16
is largely that evaluating the actions of a citizen is completely different than evaluating a
law enforcement officer. He largely contends a citizen must have more "leeway" in
deciding what force to use because they are not trained like law enforcement. In short
that argument seems to say a citizen could use more force to effect a misdemeanor arrest
than a law enforcement officer could in the same circumstances. We disagree.
The statute allowing citizens to arrest is more limited than that which allows peace
officers to arrest. The authority of a citizen to use force on another citizen is limited by
the requirement that it be both reasonable and necessary. The deputy's testimony advised
the jurors of the risks of using a moving car to cut off and thus stop a moving motorcycle.
We agree a jury could find that a citizen might have believed the force was necessary, but
might have a reasonable doubt about reasonableness of the force. It could find some
differences between what a peace officer would understand and what the citizen
understood at the time. The instruction placed the burden of disproving a valid citizen's
arrest on the prosecution.
While there are possible differences in the evaluation of the actions of police as
opposed to that of a citizen, we cannot say the testimony of the deputy did not have a
tendency in reason to prove or disprove the disputed issue of whether the force used was
both necessary and reasonable. The trial court did not abuse its discretion in allowing the
deputy's testimony.4
4 Since we have not discovered any error by the trial court, we find no basis for
reversal based upon "cumulative error." Accordingly, we will not discuss this contention
further.
17
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
McINTYRE, J.
18
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20 Cal.App.2d 211 (1937)
WILLIAM CICUREL, Respondent,
v.
PLAZA SERVICE CORPORATION OF CANADA (a Corporation), Appellant.
Civ. No. 10239.
California Court of Appeals. First Appellate District, Division One.
April 5, 1937.
Smith, Southwell & Smith and Joseph D. Lear for Appellant.
Philip S. Ehrlich, Albert A. Axelrod and Julien R. Bauer for Respondent.
The Court.
Appeal from a judgment in favor of plaintiff upon his complaint and against the defendant on its counterclaim and cross-complaint.
The defendant is engaged in the business of conducting hat and valet concessions in hotels, paying therefor stipulated *212 sums as provided in its different contracts. It held a contract with the Crocker Hotel Co., a corporation, by which it conducted such concessions in the St. Francis Hotel, and one with the Palace Hotel Co., a corporation, for the valet concession in the Palace Hotel, both hotels being situated in San Francisco. Defendant's right under its contract with the first corporation commenced on May 1, 1929, and continued to May 27, 1933. Its contract with the latter corporation was in effect from May 18, 1929, to May 18, 1934. The plaintiff was employed during the above periods as defendant's manager in San Francisco at a weekly salary and a percentage of the profits from the two concessions last mentioned. When plaintiff's employment terminated he claimed from the defendant an unpaid balance of salary, and a share of the profits, aggregating $4,945.40, to recover which this action was brought.
As a defense and by way of counterclaim for damages defendant alleged that before the termination of its contracts with the two corporations mentioned, and while plaintiff was still in its employ, he negotiated for and subsequently procured contracts between himself and the corporations for the concessions which defendant had held.
The trial court found that after the expiration of defendant's contracts the corporations made contracts with the plaintiff; that he had used his best efforts to induce the corporations to renew with the defendant; further, that plaintiff did not solicit the contracts or negotiate therefor before the expirations mentioned, but that the corporations refused to renew with the defendant and, after the latter's contracts expired, requested plaintiff to take over the concessions. It was also found that plaintiff's employment terminated on May 18th and each new contract was executed after that date. Judgment was entered accordingly.
Defendant claims that the findings are unsupported and are insufficient to sustain the conclusions of the trial court.
It appears that the entire capital stock of defendant company was held by one Crespi, who died some time before the expiration of the contracts. The management of the company then devolved upon an attorney in New York. The defendant was in arrears some $1500 in its payments under the contract with the Crocker Hotel Co. Defendant's new manager made several offers of payment in sums less than the amount due, which were not accepted and, according to the testimony *213 of officers of the hotel company, the latter before the expiration of its contract had decided not to renew with the defendant. The evidence shows that plaintiff used his best efforts to obtain a renewal for the defendant, and it is evident that his failure was due solely to the conduct of defendant's new manager.
With regard to the contract with the Palace Hotel Co., the latter's officers testified that before its expiration this company had decided not to renew with the defendant.
Testimony, which the trial court believed, was clearly sufficient to support the finding of plaintiff's good faith, that there was no previous solicitation on his own behalf, and that the renewals could not have been obtained by the defendant.
[1] It is well settled that an agent must use the utmost good faith and must not postpone his principal's interest to his own or use information acquired in the course of his agency as a means of acquiring an advantage for himself (Gower v. Andrews, 59 Cal. 119 [43 Am. Rep. 242]; Rezos v. Zahm & Nagel Co., 78 Cal.App. 728 [246 P. 564]; Consumers' Co. v. Parker, 227 Ill. App. 552; Davis v. Hamlin, 108 Ill. 39 [48 Am. Rep. 541]); but where there is no breach of duty in these respects, and a lease is obtained upon information which is not secret or confidential, or by reason of or in the course of an employment, the rule has no application (Cohn v. Clare, 6 Cal.App.2d 504 [44 PaCal.2d 634]). [2] Here the evidence shows, and the court found, there was no breach of faith; and it is clear that defendant's conduct and not that of plaintiff caused the refusal to renew with the defendant. The facts bring the case within Goldstein v. Burrows, 237 Mass. 79 [129 N.E. 389] where an analogous situation was held not to constitute grounds for relief.
The judgment is affirmed. *214
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928 A.2d 990 (2007)
SOLEBURY TOWNSHIP
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION and Department of Transportation.
Appeal of Department of Transportation.
Buckingham Township
v.
Department of Environmental Protection and Department of Transportation.
Appeal of Department of Transportation.
Solebury Township
v.
Department of Environmental Protection and Department of Transportation.
Appeal of Department of Environmental Protection.
Buckingham Township
v.
Department of Environmental Protection and Department of Transportation.
Appeal of Department of Environmental Protection.
Supreme Court of Pennsylvania.
Argued December 7, 2005.
Decided August 20, 2007.
*992 Kenda Jo Marie Gardner, Neal Thomas Brofee, Andrew S. Gordon, Robert John Shea, Harrisburg, for Dept. of Transportation.
Anderson Lee Hartzell, Louise S. Thompson, Conshohocken, for Dept. of Environmental Protection.
Richard T. Abell, Paul Aloysius Logan, King of Prussia, for Solebury Tp.
Robert J. Sugarman, Philadelphia, for Buckinghan Tp.
CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER, JJ.
OPINION
Justice SAYLOR.[1]
We granted allowance of appeal in this matter to determine the propriety of awarding attorneys' fees and costs under Section 307(b) of Pennsylvania's Clean Streams Law, when the underlying action, issuance of a water quality certification pursuant to Section 401 of the Federal Water Pollution Control Act, has been *993 deemed moot by the voluntary revocation of the certification.
This case arose when the Pennsylvania Department of Transportation ("PennDOT") applied to the Pennsylvania Department of Environmental Protection ("DEP") (collectively, "Appellants") for a water quality certification, required by Section 401 of the Federal Water Pollution Control Act, see 33 U.S.C. § 1341 (the "Clean Water Act"), in connection with its proposed U.S. Route 202, Section 700 Bypass Project, which would connect Upper Gwynedd Township in Montgomery County to the existing State Route 611 Bypass in Doylestown Township, Bucks County. In 1989, due to the pronounced traffic congestion and growth estimates for the region, preliminary engineering studies commenced to determine the feasibility of the project. The Federal Highway Administration produced a draft environmental impact statement, noting that the bypass project was directed toward improving traffic congestion and driver safety on Route 202, and that agency's formal approval of the project was granted on August 27, 1998. In order to obtain the necessary federal permits for the bypass project, PennDOT applied to DEP for the requisite Section 401 Certification. On January 20, 1999, DEP issued the Section 401 Certification, approving the bypass project with certain reservations that are not presently the subject of the Townships' appeal. See Letter from James Newbold, DEP, to Vito A. Genua, PennDOT (Jan. 20, 1999), RR. at 64a.
Solebury Township and Buckingham Township (collectively, the "Townships"), as well as the Delaware Riverkeeper, the Delaware Riverkeeper Network, and the American Littoral Society (collectively, "Delaware Riverkeeper"), challenged the issuance of the Section 401 Certification before the Environmental Hearing Board (EHB).[2] Appellants filed a motion for summary judgment, arguing, inter alia, that the Townships and Delaware Riverkeeper lacked standing. The Townships and Delaware Riverkeeper filed a cross-motion for summary judgment, asserting that the issuance of the Section 401 Certification was the product of an illegally truncated review process, in contravention of certain DEP regulations. These motions were scheduled for an en banc oral argument, but, seven days prior to argument, PennDOT requested that the Section 401 Certification be rescinded, and, on November 10, 2003, DEP complied with the request. Two days later, PennDOT filed a motion to dismiss the challenge as moot, as the rescission of the Section 401 Certification rendered the requested relief unavailable.
The EHB explained that, under Section 401(a) of the Clean Water Act, any person or entity applying for a federal permit to place dredge or fill material into navigable waters "shall provide the [federal] licensing or permitting agency [with] a certification from the State in which the discharge originates or will originate . . . that any such discharge will comply with the applicable provisions of [the Clean Water Act]." 33 U.S.C. § 1341(a). A state may impose conditions or restrictions upon the issuance *994 of such a certification, which become terms of the federal license, to ensure that any discharge will also comply with appropriate requirements under state law. See 33 U.S.C. § 1341(d); see also, PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700, 707-08, 114 S.Ct. 1900, 1907, 128 L.Ed.2d 716 (1994) (explaining a state's responsibilities under Section 401). Notably, the "discharge" contemplated by the statute encompasses the "discharge of pollutants," see 33 U.S.C. § 1362(16), including such materials as dredged spoil, solid waste, heat, rock, sand, dirt, and industrial waste. See 33 U.S.C. § 1362(6). Thus, the EHB clarified that a Certification under Section 401 was a prerequisite to obtaining federal permits related to the bypass project. However, because the Section 401 Certification had been rescinded, the EHB refused to rule on the merits of the Townships' and Delaware Riverkeeper's challenges and dismissed the appeals as moot. See Solebury Twp. v. Department of Environmental Protection, 2004 WL 103132, at *4 (Pa.Envt'l.Hrg.Bd. Jan. 16, 2004).
Subsequently, Buckingham and Delaware Riverkeeper sought to recover attorneys' fees pursuant to the Costs Act, see Act of Dec. 13, 1983, P.L. 1127 (as amended, 71 P.S. §§ 2031-35), and Solebury requested counsel fees under Section 307(b) of the Clean Streams Law,[3]see 35 P.S. § 691.307(b). The Costs Act petitions were amended to include requests for attorneys' fees and costs under Section 307. No evidentiary record was created with regard to the applications for attorneys' fees, as the EHB did not hold a hearing to elicit testimony or legal argument. In its opinion concerning the petitions under the Costs Act, the EHB explained that, as a general rule, each party is responsible for its own counsel fees and costs, absent bad faith or dilatory, obdurate or vexatious conduct. See Lucchino v. Department of Environmental Protection, 570 Pa. 277, 282, 809 A.2d 264, 267 (2002) (citing Tunison v. Commonwealth, 347 Pa. 76, 79, 31 A.2d 521, 523 (1943); Department of Environmental Protection v. Bethenergy Mines, Inc., 563 Pa. 170, 179, 758 A.2d 1168, 1173 (2000)). Several statutes, including the Costs Act and the Clean Streams Law, modify this rule, providing the EHB with the authority to award attorneys' fees and costs to a prevailing party in certain circumstances. The EHB determined, however, that neither Buckingham nor Delaware Riverkeeper were entitled to an award under the Costs Act because the statute's requirement of an adversarial adjudication entailed "prosecutorial or enforcement action initiated by an agency," which was not the nature of the present matter. See Solebury Twp. v. Department of Environmental Protection, 2004 WL 504860, at *3 (Pa.Envt'l.Hrg.Bd. Mar. 4, 2004).[4]
With regard to the petitions under Section 307(b), the EHB observed that previous adjudications involving attorneys' fees under Section 307 have also concerned counsel fees under Section 4(b) of the Surface Mining Conservation and Reclamation Act,[5]see 52 P.S. § 1396.4(b), superseded, 27 Pa.C.S. § 7708, and utilized the same analysis for both provisions. See, e.g., *995 Lucchino, 570 Pa. at 280, 809 A.2d at 266; Medusa Aggregates Co. v. Department of Environmental Resources, 1995 EHB 414, 428 n. 7, 1995 WL 227814, at *8 n. 7 (Pa.Envt'l.Hrg.Bd. Apr. 6, 1995). The EHB determined, however, that the present matter does not implicate the latter statute, as the bypass project did not involve mining. In cases involving both Section 307 and Section 4(b), the EHB explained that, to determine whether an award of attorneys' fees is appropriate, courts have applied an analysis that has become known as the Kwalwasser test, according to which "(1) a final order must have been issued; (2) the applicant for the fees and expenses must be the prevailing party; (3) the applicant must have achieved some degree of success on the merits; and (4) the applicant must have made a substantial contribution to a full and final determination of the issues." Big B. Mining Co. v. Department of Environmental Resources, 155 Pa.Cmwlth. 16, 19, 624 A.2d 713, 715 (1993) (citing Kwalwasser v. Department of Environmental Resources, 131 Pa.Cmwlth. 77, 82, 569 A.2d 422, 424 (1990)). The EHB determined that it was appropriate to apply this test to the present matter, as, in its view, there was no reason to apply different criteria for petitions solely under Section 307.
On the merits, the EHB determined that, although a final order had been issued, namely, the dismissal of the case as moot, none of the remaining criteria had been fulfilled. Specifically, the EHB reasoned that the Townships and Delaware Riverkeeper were not prevailing parties because no ruling on the merits had been made, notwithstanding the parties' argument that they had obtained precisely the relief sought, i.e., removal of the Section 401 Certification. Similarly, the EHB determined that the Townships and Delaware Riverkeeper had not achieved any degree of success on the merits, as, again, no ruling on the merits had been issued. In addition, because there had been no full and final determination of any underlying issues, the EHB held that no substantial contribution to the resolution of those issues could have been made.[6] Thus, the EHB denied the motions for counsel fees under Section 307(b) of the Clean Streams Law. Given the EHB's conclusion that no fee award was justified, it did not determine whether the amendments to Buckingham's and Delaware Riverkeeper's petitions were proper. See Solebury Twp. v. Department of Environmental Protection, 2004 WL 817743, at *1 (Pa.Envt'l.Hrg.Bd. Mar. 24, 2004).
The Townships appealed to the Commonwealth Court, arguing that they had achieved success on the merits sufficient to sustain an award of attorneys' fees. See Solebury Twp. v. Department of Environmental Protection, 863 A.2d 607 (Pa. Cmwlth.2004).[7] As an initial matter, the Commonwealth Court upheld the amendment to Buckingham's petition to include a *996 request for counsel fees under Section 307, noting that no prejudice to Appellants would result because they had notice that Buckingham was seeking counsel fees due to its initial petition and that Section 307 would be at issue via Solebury's petition. See id. at 609-10. Additionally, the Commonwealth Court determined that the Townships' challenge was properly brought pursuant to the Clean Streams Law such that it fell within the ambit of the fee-shifting provision of Section 307. Although a Section 401 Certification is not, technically speaking, a permit, the court noted that it is a prerequisite and a precursor to the issuance of a permit. Because PennDOT was in the process of seeking a permit when the challenge to the Section 401 Certification arose, the Commonwealth Court held that its action was pursuant to the Clean Streams Law such that the Townships' petitions for attorneys' fees under Section 307 were appropriate.
On the merits of the Townships' applications for attorneys' fees, the Commonwealth Court applied the Kwalwasser test, but disagreed with the EHB's conclusions, and found that all four prongs of the test had been satisfied. The court noted that no party disputed that a final order had been issued in this matter, as the Townships' appeals had been dismissed as moot. Concerning the second part of the test, the Commonwealth Court applied the definition of "prevailing party" contained within the Costs Act, pursuant to which a party may be deemed to have prevailed when an agency withdraws from or otherwise terminates the matter. See 71 P.S. § 2032 (defining "prevailing party" as "[a] party in whose favor an adjudication is rendered on the merits of the case or who prevails due to withdrawal or termination of charges by the Commonwealth Agency or who obtains a favorable settlement approved by the Commonwealth Agency initiating the case."). Since the Townships achieved the goal they sought, namely, revocation of the Section 401 Certification, the court found that the voluntary rescission of the Certification did not affect the Townships' status as prevailing parties.
Further, the Commonwealth Court determined that the Townships had achieved some success on the merits. Because neither DEP nor PennDOT proffered a reason for revocation of the Section 401 Certification, the court concluded that the litigation instituted by the Townships was the cause of PennDOT's request for rescission. See Solebury Twp., 863 A.2d at 611 ("This Court cannot close its eyes to the inevitable conclusion that DEP and [Penn]DOT sought to suddenly avoid a full argument on the merits for either no reason at all or because their legal position was untenable."). The Commonwealth Court emphasized that the Section 401 Certification was rescinded shortly before argument and did not accept PennDOT's suggestion that a change in governmental administration affected its decision not to proceed with the bypass project. Similarly, the Commonwealth Court held that the Townships had made substantial contributions to a full and final determination on the merits because the only contributions to the final determination were the challenges raised by the Townships. Observing that there was no evidence to show that the Section 401 Certification would have been rescinded absent the present litigation, the court held that the Kwalwasser test had been met and remanded the case for imposition of fees and costs. Additionally, the Commonwealth Court viewed the conduct of DEP and PennDOT in "suddenly and inexplicably" rescinding the Section 401 Certification as vexatious, especially in light of Appellants' claim that an award of fees and costs would be inappropriate as *997 no merits determination had occurred. See id. at 611.
I.
The threshold issue in this matter is whether litigation concerning a Section 401 Certification may be subject to the fee-shifting provision of Section 307(b) of the Clean Streams Law.[8] In this regard, Appellants argue that an award of attorneys' fees under Section 307 only applies to actions involving the issuance of a state law permit for industrial waste discharge and does not encompass the issuance of a Section 401 Certification. The Section 401 Certification, in Appellants' view, is entirely a creation of federal law, required solely for federal permit applications pursuant to Section 404 of the Clean Water Act. See 33 U.S.C. § 1344; see generally, PUD No. 1 of Jefferson County, 511 U.S. at 704-08, 114 S.Ct. at 1904-07 (explaining the distinct roles of the federal and state governments created by the Clean Water Act to effectuate the enhancement of water quality). In order to obtain the necessary permits under Pennsylvania law, however, a complete application must be submitted pursuant to Chapter 105 of DEP's regulations. See 25 Pa. Code § 105.13. Appellants thus distinguish the issuance of a Section 401 Certification from the purpose of state law permit applications; because neither Section 307 nor Chapter 105 requires a Section 401 Certification, Appellants argue, issuance of the certification does not impact state law permitting practices. Therefore, Appellants contend that the Townships' challenge to DEP's issuance of a water quality certification for the bypass project did not implicate any provisions of the Clean Streams Law and that the Commonwealth Court erred in concluding that the present matter fell within the scope of the fee-shifting provision of Section 307.
The Townships, on the other hand, argue that the plain language of Section 307 clearly encompasses any action involving the Clean Streams Law, including challenges to the issuance of a Section 401 Certification. They observe that Section 307, in pertinent part, provides:
§ 691.307. Industrial waste discharges
Any person having an interest which is or may be adversely affected by any action of the department under this section may proceed to lodge an appeal with the Environmental Hearing Board in the manner provided by law, and from the adjudication of said board such person may further appeal as provided in Title 2 of the Pennsylvania Consolidated Statutes (relating to administrative law and procedure). The Environmental Hearing Board, upon the request of any party, may in its discretion order the payment of costs and attorney's fees it determines to have been reasonably incurred by such party in proceedings pursuant to this act.
35 P.S. § 691.307(b) (emphasis added). The Townships contend that the Legislature clearly contemplated awards of attorneys' fees in situations, including the present matter, where the proceedings arise from any aspect of the Clean Streams Law, evidenced by the broad phrase "proceedings pursuant to this act." This interpretation, according to the Townships, is supported by this Court's declaration that *998 fee-shifting provisions should be liberally construed. See Lucchino, 570 Pa. at 285, 809 A.2d at 269 ("For reasons of public policy, Pennsylvania courts have construed these statutory sections liberally `to justly compensate parties who have been obliged to incur necessary expenses in prosecuting lawful claims or in defending against unjust or unlawful ones.'" (quoting Tunison, 347 Pa. at 79, 31 A.2d at 523)). In this regard, the Townships observe that they never argued that Appellants failed to follow any aspect of federal law; instead, their challenge was related to the state law process by which the Section 401 Certification was issued in the present matter, as they believed that DEP failed to correctly follow certain regulations adopted under the authority of the Clean Streams Law. See 25 Pa.Code ch. 105. Further, the Townships assert, PennDOT affirmatively agreed that the underlying litigation concerning their challenge to DEP's practices was a proceeding pursuant to the Clean Streams Law. See Commonwealth of Pennsylvania, Department of Transportation's Response to Solebury Township's Application for Attorney Fees and Costs Pursuant to the Clean Streams Law, RR. at 2372a, ¶ 4. Accordingly, the Townships contend that the present matter clearly falls within the ambit of the attorneys' fees provision of Section 307.
We agree with the Commonwealth Court and the Townships that the fee-shifting provision of Section 307 may be implicated in a situation where the underlying litigation concerns water quality certification and associated appeals, at least in circumstances where such proceedings arise out of the provisions of the Clean Streams Law or accompanying regulations. As the Townships observe, the phrase "proceedings pursuant to this act," 35 P.S. § 691.307(b), contained within the provision granting the EHB discretionary authority to award fees is broadly phrased and plainly encompasses litigation arising under the Clean Streams Law. Notably, the Clean Streams Law expressly grants DEP the authority to "[i]ssue such orders as may be necessary to implement the provisions of this act or the rules and regulations of the department." 35 P.S. § 691.5(b)(7). Moreover, the regulation addressing the procedure for obtaining a water quality certification for purposes of Section 401 of the Clean Water Act was promulgated under the authority of, inter alia, the Clean Streams Law, see 25 Pa. Code § 105.15(b), and this provision was the subject of the dispute between the Townships and Appellants. Significantly, PennDOT expressly admitted that the underlying litigation arose out of regulations promulgated pursuant to the Clean Streams Law. See Solebury Township's Application for Attorney Fees and Costs Pursuant to the Pennsylvania Clean Streams Law, RR. at 2306a, ¶ 4 ("Specifically, [Solebury's] challenge was brought under 25 Pa.Code [ch.] 105, which implements aspects of the Commonwealth's 401 [water quality certification] program."); Commonwealth of Pennsylvania, Department of Transportation's Response to Solebury Township's Application for Attorney Fees and Costs Pursuant to the Clean Streams Law, RR. at 2372a, ¶ 4 ("Admitted. By way of further answer, Section 105.15(b) is the only provision of 25 Pa. Code Ch. 105 that addresses treatment of a 401 Water Quality Certification (WQC)."); see also Department of Transportation's Response, RR. at 2373a, ¶ 7 ("In bringing this appeal, Appellant Solebury Township sought to have the Board to invalidate the process used by DEP and PennDOT to obtain the [water quality certification] for the project."). In its brief to this Court, DEP also acknowledges the integral role of its regulations in the Townships' initial challenge to its actions. See *999 Brief for Appellant DEP at 13 n. 5 (citing 25 Pa.Code § 105.15(b) and stating, "These regulations were the focal point of the underlying litigation."); id. at 25-26 ("The underlying contention in the Townships' appeal of the 401 Certification was a challenge to the Integrated Review Process by which DEP reviews and issues (or denies) 401 Certifications . . . The Townships challenged the lawfulness of this Integrated Review Process in the context of DEP's implementing regulations.").
Further, the plain language of such regulations indicates that DEP regards the Section 401 Certification process as a subset of its consideration of state law permit applications. See 25 Pa.Code § 105.15(b) (requiring any applicant seeking a water quality certification to submit an environmental assessment equivalent to that required for a state law permit). In addition, DEP has authority to place limitations or conditions upon Section 401 Certifications, see 33 U.S.C. § 1341(d), which may directly implicate subjects within the scope of the Clean Streams Law, and, indeed, such has occurred in the present matter. See Letter from James Newbold, DEP, to Vito A. Genua, PennDOT (Jan. 20, 1999), RR. at 64a, ¶ 4 (conditioning the water quality certification upon the development of an Erosion and Sedimentation Pollution Control Plan in accordance with Chapter 102 of DEP's regulations, which were promulgated pursuant to Sections 5 and 402 of the Clean Streams Law, see 35 P.S. §§ 691.5, 691.402.). In light of the above, we conclude that, at least under the circumstances presented in this case, challenges to the Clean Streams Law aspects of the issuance of Section 401 Certifications are "proceedings pursuant to this act" for purposes of the fee-shifting provision of Section 307.
II.
Having determined that litigation involving water quality certifications under Section 401 of the Clean Water Act may be subject to fee-shifting under Section 307 of the Clean Streams Law, at least under the circumstances of the present case, we must now address the appropriate test by which such applications for attorneys' fees may be resolved. In this connection, Appellants focus their arguments on the four prong Kwalwasser test, apparently assuming that it is the only applicable standard. Indeed, PennDOT asserts that this Court has upheld application of the Kwalwasser test and maintains that no dispute regarding whether the Kwalwasser test should control has been raised. See Brief for Appellant PennDOT at 23 (citing Lucchino, 570 Pa. at 280, 809 A.2d at 266).[9] However, Appellants do observe that the criteria elucidated in Kwalwasser and subsequent cases were derived in part from the regulations promulgated pursuant to the federal Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1201-1328 ("federal SMCRA"). See Kwalwasser v. Department of Environmental Resources, 1988 EHB 1308, 1988 WL 161059 at *2 (Pa.Env.Hrg.Bd. Dec. 22, 1988) ("Regulations adopted pursuant to [the federal SMCRA] require, inter alia, that the proceedings *1000 result in a final order and that the petitioner prevail `in whole or in part, achieving at least some degree of success on the merits, upon a finding that such person made a substantial contribution to a full and fair determination of the issues.'" quoting 43 C.F.R. § 4.1294(b) (1985)). In Kwalwasser, Appellants note, the EHB's analogy to federal standards for fee-shifting was considered appropriate because the federal and state statutes concerning coal mining activities sought to regulate the same activity in a coordinated manner. See id. Thus, assuming that similar reliance in the context of Section 307 is also appropriate, Appellants argue that federal court decisions support the EHB's construction of the Kwalwasser test in the present matter. See, e.g., Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001); Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983). Appellants explain that the United States Supreme Court has concluded that, in order to be considered a prevailing party under the fee-shifting provisions contained within certain federal statutes, that party must have obtained a judgment on the merits or a court-ordered consent decree. See Buckhannon, 532 U.S. at 600, 121 S.Ct. at 1838. In addition, Appellants observe, Buckhannon clarified that a voluntary alteration in the conduct of one party was not sufficient to consider the opposing party prevailing on the merits, even when the lawsuit itself caused such a change. See id. at 610, 121 S.Ct. at 1843.
Applying the Kwalwasser criteria in light of Buckhannon, Appellants contend that the EHB's interpretation of that test in the present matter was correct because, in Appellants' view, the Townships may not be considered prevailing parties when no merits assessment has been conducted, as the case was dismissed as moot due to the revocation of the Section 401 Certification. Similarly, Appellants claim that their voluntary alteration of the circumstances, which rendered the matter moot, does not constitute success on the merits. Cf. id. at 606, 121 S.Ct. at 1841 ("We cannot agree that the term `prevailing party' authorizes federal courts to award attorney's fees to a plaintiff who, by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined), has reached the `sought-after destination' without obtaining any judicial relief." (citation omitted)). Appellants also argue that the Commonwealth Court erred by finding that the Townships had made a substantial contribution to the final determination of the issues because Appellants' voluntary rescission of the Section 401 Certification could have been a result of circumstances unrelated to the present litigation, namely, a succession in government administration.[10] Appellants contend that, by effectively *1001 requiring them to proffer reasons for the revocation, the decision of the Commonwealth Court conflicts with this Court's determination that the party seeking counsel fees bears the burden of establishing its entitlement to such fees. See Jones v. Muir, 511 Pa. 535, 542, 515 A.2d 855, 859 (1986) ("The applicant for counsel fees has the burden of proving his/her entitlement thereto."). In addition, Appellants observe that the EHB's denial of attorneys' fees in the present matter was consistent with its denial of such fees in prior cases. See, e.g., Raymond Proffitt Foundation v. Department of Environmental Protection, 1999 EHB 124, 1999 WL 222936 at *3 (Pa.Env.Hrg.Bd. Mar. 26, 1999) (applying the Kwalwasser test and denying fees under the SMCRA when a matter was dismissed as moot due to the voluntary withdrawal of a permit). Notably, Appellants further assert that the Commonwealth Court usurped the role of the EHB by rejecting their explanation for the withdrawal of the Section 401 Certification and characterizing their conduct as vexatious absent a hearing and agency findings on such issues. Cf. id. at *9-10 (refusing to find that a permittee acted in bad faith by continuing with litigation knowing that the permit would eventually be withdrawn).
The Townships, by contrast, argue that this Court specifically reserved the issue of the continuing vitality of the Kwalwasser test in Lucchino. See Lucchino, 570 Pa. at 286 n. 21, 809 A.2d at 270 n. 21 ("In light of the enactment by the General Assembly of [27 Pa.C.S. §§ 7707-7708] . . . and because it is unnecessary to the resolution of the matter before us, we decline to address the validity or invalidity of the [Kwalwasser] test as applied by the EHB and affirmed by the Commonwealth Court."). They observe that Section 307 does not specify by which standards an application for attorneys' fees should be judged; instead, Section 307 provides the EHB with broad discretion to award counsel fees "upon the request of any party." 35 P.S. § 601.307(b). Indeed, the Townships assert, under the plain language of Section 307, the party seeking fees need not even be prevailing. In the Townships' view, the Kwalwasser test is not premised upon the EHB's statutory discretion to shift the costs of litigation, but was created via incorporation of federal regulations, which do not take into account Pennsylvania public policy. Cf. Big B Mining, 155 Pa.Cmwlth. at 19, 624 A.2d at 715 (disapproving the EHB's adoption of restrictive federal standards to determine petitions for attorneys' fees under the SMCRA). Moreover, the Townships observe that comparison of fee-shifting provisions must be performed carefully, as the purpose and language of such statutes may differ. See Lucchino, 570 Pa. at 284, 809 A.2d at 268 ("Not all fee-shifting statutes are the same and care is required in comparing such statutes, as the language or purpose of a particular fee-shifting provision will affect its construction and, hence, its application."). Thus, the Townships assert that the EHB's reliance on federal standards to formulate a test for fee-shifting under Pennsylvania law was inappropriate because the policies motivating such provisions under the federal and state statutes are different. Compare H.R.Rep. No. 95-218, at 90-91, (1977) (noting that fee-shifting under the federal SMCRA seeks to encourage citizen participation while discouraging frivolous suits by providing different standards for awards of attorneys' fees depending upon whether the prevailing party is the plaintiff or the defendant), with Big B Mining, 155 Pa.Cmwlth. at 18-19, 624 A.2d at 714-15 (rejecting application *1002 of differing standards for counsel fee awards under the SMCRA based upon a distinction between permittees and other parties as contrary to Pennsylvania law).
More specifically, the Townships contend that Section 307, like other fee-shifting statutes, must be liberally construed in order to effectuate the goal of compensating parties who have incurred great expense in maintaining necessary claims. See Lucchino, 570 Pa. at 285, 809 A.2d at 269 (quoting Tunison, 347 Pa. at 79, 31 A.2d at 523). Thus, the Townships assert that the broad statutory discretion provided to the EHB to award counsel fees under Section 307 is not so limited as to encompass only the Kwalwasser criteria, narrowly applied. Instead, should such a test be utilized, the Townships maintain that a broader interpretation of those criteria than that employed by the EHB in the present matter is required. In this regard, the Townships observe that there is no dispute that a final order had been issued in the present matter. In addition, they assert that a dismissal on the ground of mootness due to Appellants' voluntary rescission of the Section 401 Certification should be deemed sufficient to consider the Townships to have prevailed with some degree of success on the merits.
The Townships argue that they are prevailing parties because they achieved their sole objective in pursuing an appeal to the EHB, i.e., termination of the Section 401 Certification. The Townships also claim that Kwalwasser's requirement of some degree of success on the merits cannot be interpreted as necessitating a court order in favor of a particular party. The Townships view Appellants' reliance on Buckhannon for a contrary proposition as misplaced because Buckhannon involved fee-shifting provisions under the Fair Housing Amendments Act, see 42 U.S.C. § 3613(c)(2), and the Americans with Disabilities Act, see 42 U.S.C. § 12205, which do not parallel the language or subject matter of Section 307. Specifically, the Townships observe that the statutes at issue in Buckhannon require that a party be prevailing in order to recover attorneys' fees, whereas Section 307 does not contain such restrictive language. Similarly, the Townships explain that Buckhannon did not address an analogous situation, as the underlying action in that case was rendered moot due to a newly enacted statute and not the action of any party. See Buckhannon, 532 U.S. at 601, 121 S.Ct. at 1838. The Townships contend that the position of the dissenting opinion in Buckhannon, which concluded that a prevailing party is one who has achieved the practical relief sought, more closely follows the remedial purposes that this Court has viewed fee-shifting statutes as serving. See id. at 634, 121 S.Ct. at 1856 (Ginsburg, J., dissenting); see also Graham v. Daimler-Chrysler Corp., 34 Cal.4th 553, 568, 21 Cal.Rptr.3d 331, 101 P.3d 140, 149 (2004) (concluding that the view of the Buckhannon dissent is consistent with the purposes of the fee-shifting statute at issue, namely, to "prevent worthy claimants from being silenced or stifled because of a lack of legal resources"). With regard to the substantial contribution element of the Kwalwasser test, the Townships claim that the EHB improperly placed the burden on the party seeking attorneys' fees to demonstrate a causal relationship between its actions and the result of the litigation. Further, given the timing of Appellants' rescission of the Section 401 Certification and the lack of record evidence demonstrating a reason other than the present suit for such a rescission, the Townships assert that their challenge must have contributed to Appellants' decision to revoke the certification.
Alternatively, the Townships rely upon the general rule that each party is responsible *1003 for its own counsel fees absent bad faith or vexatious conduct, see Lucchino, 570 Pa. at 282, 809 A.2d at 267, and that the EHB has previously required a demonstration of bad faith or vexatious conduct in Section 307 cases, see, e.g., Alice Water Protection Association v. Department of Environmental Protection, 1997 EHB 840, 1997 WL 610299, at *2 (Pa.Envt'l.Hrg.Bd. Sept. 17, 1997). Observing that this Court's decision in Lucchino was focused on the fact that the Appellant had clearly acted in bad faith in pursuing his appeal to the EHB, and that such a finding was supported by the record, see Lucchino, 570 Pa. at 285, 809 A.2d at 269, the Townships assert that Appellants have also acted in bad faith. Supporting this, the Townships claim, are the facts that Appellants not only utilized an illegal procedure in obtaining the Section 401 Certification in the first instance, but also that they revoked the certification "for either no reason at all or because their legal position was untenable." Solebury Twp., 863 A.2d at 611. Thus, the Townships argue that the Commonwealth Court was correct to categorize Appellants' conduct as vexatious, as a claim that a fee award is inappropriate when further merits review was intentionally avoided but the Townships achieved their objective is the sort of action that fee-shifting provisions were enacted to deter. See id.
As the Townships correctly observe, Lucchino did not address the question presently before this Court, namely, whether the Kwalwasser criteria may be applied as the general standard for determining the propriety of an award of attorneys' fees under Section 307. See Lucchino, 570 Pa. at 286 n. 21, 809 A.2d at 270 n. 21. Significantly, in Lucchino, the EHB had applied a bad faith standard pursuant to its decision in Alice Water in the process of determining whether fee-shifting was appropriate. See Lucchino v. Department of Environmental Protection, 1998 EHB 556, 1998 WL 309105, at *3 (Pa. Envt'l.Hrg.Bd. May 27, 1998). The Commonwealth Court thus focused solely on the issue of bad faith and did not examine the propriety of the fee award in the context of the Kwalwasser test. See Lucchino v. Department of Environmental Protection, 744 A.2d 352, 353-54 (Pa.Cmwlth. 2000). Because the finding of bad faith conduct that gave rise to the award of counsel fees in Lucchino was clearly supported by the record, as the Townships note, it was unnecessary for this Court to examine the application of the Kwalwasser test. See Lucchino, 570 Pa. at 285-86, 809 A.2d at 269-70.
The Townships are also correct that Section 307 provides the EHB with broad discretion to award attorneys' fees in appropriate proceedings. Indeed, the plain language of Section 307 does not specify on what basis petitions for counsel fees may be granted or denied, nor does that statute mandate that any such standards be created. See 35 P.S. § 691.307(b). However, we agree with Appellants that it is within the scope of the EHB's prerogative to channel its discretion in awarding attorneys' fees based upon considerations such as the Kwalwasser criteria when there has been no finding of bad faith or vexatious conduct. Notably, in approving the EHB's criteria in Kwalwasser itself, the Commonwealth Court relied on the broad discretion granted to the EHB by Section 307. See Kwalwasser, 131 Pa.Cmwlth. at 81-82, 569 A.2d at 424. Further, in a related context, the Legislature has provided for fee-shifting pursuant to requirements similar to the Kwalwasser test, which are also based upon federal standards. See 27 Pa.C.S. § 7708(a), (c) (concerning fee-shifting in coal mining proceedings). Similarly, it is appropriate to analogize Pennsylvania statutes *1004 to federal enactments and regulations when considering the goal to improve water quality, as both legal systems seek to achieve this objective in a coordinated fashion. See PUD No. 1 of Jefferson County, 511 U.S. at 704, 114 S.Ct. at 1905 (observing that Section 401 of the Clean Water Act was intended to permit states to participate in the formulation and enforcement of adequate water quality standards); Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 1054, 117 L.Ed.2d 239 (1992) ("The Clean Water Act anticipates a partnership between the States and the Federal Government, animated by a shared objective: `to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" quoting 33 U.S.C. § 1251(a)). In furtherance of this aim, various sections of both the federal and Pennsylvania statutes provide for awards of attorneys' fees so as to diminish the deterrent effect of litigation costs on parties seeking to challenge agency actions. See, e.g., 33 U.S.C. §§ 1365(d), 1369(b)(3); 35 P.S. §§ 691.307(b), 691.601(g).
Although the discretion to award attorneys' fees granted to the EHB by Section 307 encompasses its ability to adopt standards by which applications for counsel fees may be decided, such standards cannot be interpreted to eliminate the availability of attorneys' fees to parties that may have incurred legitimate expenses solely on the basis of a restrictive interpretation of a federal statute. Significantly, with regard to the fee-shifting provision of Section 307, federal statutes authorizing the award of fees and costs to "prevailing parties," see, e.g., 42 U.S.C. § 12205, and federal cases interpreting that term, see, e.g., Buckhannon, 532 U.S. at 600, 121 S.Ct. at 1838, are distinguishable because the plain language of Section 307 is not restricted by such terms.[11]See 35 P.S. § 691.307(b). Indeed, fee-shifting provisions contained within federal and state enactments may not be identical, and, as the Commonwealth Court has recognized, the EHB's reliance on federal standards that have not been incorporated into state statutes can only be supported to the extent that those standards are consistent with Pennsylvania public policy. See Lucchino, 570 Pa. at 284, 809 A.2d at 268; Big B Mining, 155 Pa.Cmwlth. at 18-19, 624 A.2d at 714-15. Thus, given Pennsylvania's strong policy to justly compensate parties who challenge agency actions by liberally interpreting fee-shifting provisions, see Lucchino, 570 Pa. at 285, 809 A.2d at 269, we agree with the Townships that the EHB's narrow application of the Kwalwasser criteria in the present matter was erroneous.
More specifically, the broad grant of discretion to the EHB in awarding attorneys' fees under Section 307 renders Appellants' argument that a formal judgment is necessary to a finding that a party has prevailed with some degree of success on the merits untenable. Instead, we agree with the Commonwealth Court that the practical relief sought by the Townships should be considered when characterizing them as prevailing parties for purposes of the Kwalwasser test. Accord *1005 Buckhannon, 532 U.S. at 633, 121 S.Ct. at 1856 (Ginsburg, J., dissenting) ("[W]here the ultimate goal is not an arbiter's approval, but a favorable alteration of actual circumstances, a formal declaration is not essential."). In addition, the EHB's exclusive focus on the dismissal of the case as moot, without conducting a hearing or making further factual findings and legal conclusions, does not justify its holding that the Townships did not achieve some degree of success on the merits and did not make a substantial contribution to the full and final determination of the issues.
Finally, as Lucchino makes clear, the EHB may, in its discretion, award attorneys' fees under Section 307 solely on the basis of a finding of bad faith or vexatious conduct, which is supported by the record, without reference to the Kwalwasser criteria. See Lucchino, 570 Pa. at 286, 809 A.2d at 269-70. In this regard, however, we agree with Appellants that the Commonwealth Court erred by characterizing Appellants' conduct as vexatious on the undeveloped record before it. Moreover, the Commonwealth Court's determination that the revocation of the Section 401 Certification was "completely unexplained" and its rejection of Appellants' arguments concerning a reason for that rescission, namely, a change in government administration, see Solebury Twp., 863 A.2d at 610, present questions that would have been more appropriately addressed, in the first instance, by the EHB. Absent agency findings of fact and conclusions of law on these issues, and particularly where no hearing was held before the EHB, the Commonwealth Court's conclusions resemble pure fact-finding from an appellate perspective, an approach to appellate review that is disfavored by this Court. See, e.g., O'Rourke v. Commonwealth, 566 Pa. 161, 170 n. 6, 778 A.2d 1194, 1199 n. 6 (2001) ("[I]t is not the function of the appellate court to find facts, but to determine whether there is evidence in the record to justify the trial court's findings.") (citing Allegheny County v. Monzo, 509 Pa. 26, 35, 500 A.2d 1096, 1101 (1985)).
Since we conclude that the EHB's application of the Kwalwasser criteria in the present matter was too narrow in view of the broad language of Section 307 and the public policy favoring liberal construction of fee-shifting provisions, we cannot determine the propriety of the EHB's denial of the Townships' motion for attorneys' fees under Section 307 on the present record. Accordingly, the order of the Commonwealth Court is vacated, and the matter is remanded to the EHB for further proceedings consistent with the above.
Jurisdiction is relinquished.
Former Justice NIGRO did not participate in the consideration or decision of this case.
Former Justice NEWMAN did not participate in the decision of this case.
Chief Justice CAPPY and Justices CASTILLE and BAER join the opinion.
Justice EAKIN files a concurring and dissenting opinion.
CONCURRING AND DISSENTING OPINION
Justice EAKIN.
I respectfully dissent from Part II of the Majority Opinion.
In Part II, the majority concludes "the EHB's application of the Kwalwasser criteria . . . was too narrow in view of the broad language of [§]307 and the public policy favoring liberal construction of fee-shifting provisions. . . ." Majority, at 1005. The majority does not reject the Kwalwasser test for a new one, but concludes *1006 "it is within the scope of the EHB's prerogative to channel its discretion in awarding attorneys' fees based upon considerations such as the Kwalwasser criteria when there has been no finding of bad faith or vexatious conduct." Id., at 1003. Under that conclusion, tribunals and courts may rely on Kwalwasser criteria, but appear authorized to use other unspecified criteria. This could lead to the application of different criteria to each case, which could lead to inconsistent case law and results.
Regarding the prevailing party prong of the Kwalwasser test, the majority, citing a dissenting opinion, states it agrees with the Commonwealth Court "that the practical relief sought by the Townships should be considered when characterizing them as prevailing parties for purposes of the Kwalwasser test. Accord Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 633, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (Ginsburg, J., dissenting). . . ." Id., at 1004-1005. The EHB's conclusion the townships were not prevailing parties was in accordance with the majority opinion in Buckhannon:
Numerous federal statutes allow courts to award attorney's fees and costs to the "prevailing party." The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant's conduct. We hold that it does not.
Buckhannon, at 600, 121 S.Ct. 1835. While the prevailing party prong under Kwalwasser is part of a court-made test as opposed to statutory text examined in Buckhannon, this appears to be a distinction without a difference, as the wording of the issue above mirrors the issue and circumstances here. While the Commonwealth Court noted the Costs Act defines "prevailing party" in a way that could lead to a favorable result for the townships, see 71 P.S. § 2032, the action here was for attorney's fees under § 307. The townships brought a separate action for attorney's fees under the Costs Act.
Ultimately, I cannot conclude the EHB erred when it applied the Kwalwasser criteria and implicitly followed an interpretation of the prevailing party prong in accordance with Buckhannon. I would reverse the Commonwealth Court's decision and reinstate the EHB's decision. This would leave the Kwalwasser test in place and the prevailing party prong would track Buckhannon's holding. In all other respects, I join the majority.
NOTES
[1] This matter was reassigned to this author.
[2] The Townships opposed the bypass project because they believed that it would spoil the scenic nature of the area and significantly increase the traffic into the Townships. In this regard, they have litigated numerous aspects of the bypass project in both state and federal courts. See, e.g., Buckingham Twp. v. Wykle, 157 F.Supp.2d 457 (E.D.Pa.2001), (resolving claims related to, inter alia, alleged violations of the Clean Air Act, 42 U.S.C. § 7506), affirmed, 27 Fed. App'x 87 (3d Cir.), cert. denied, 537 U.S. 826, 123 S.Ct. 120, 154 L.Ed.2d 38 (2002).
[3] Act of June 22, 1937, P.L.1987 (as amended, 35 P.S. §§ 691.1-691.1001) (the "Clean Streams Law").
[4] The EHB's decisions regarding attorneys' fees under the Costs Act were not appealed to the Commonwealth Court and are not presently before this Court.
[5] Act of May 31, 1945, P.L. 1198 (as amended, 52 P.S. §§ 1396.1-1396.19a) (the "SMCRA").
[6] The EHB also noted that it had previously required an additional demonstration that the appeal was brought in bad faith when a permitee sought to recover costs and counsel fees from a third-party appellant. See Lucchino v. Department of Environmental Protection, 1998 EHB 556, 1998 WL 309105, at *2 (Pa.Envt'l.Hrg.Bd. May 27, 1998); Alice Water Protection Association v. Department of Environmental Protection, 1997 EHB 840, 1997 WL 610299, at *2 (Pa.Envt'l.Hrg.Bd. Sept. 17, 1997). However, the EHB did not apply that requirement to the present matter, as it was the third parties themselves who sought to recover attorneys' fees.
[7] Delaware Riverkeeper did not appeal the EHB's denial of their motion for attorneys' fees and are not currently parties to this matter. They did, however, file an amicus brief, raising substantially the same arguments as those advanced by the Townships.
[8] As this matter presents questions of statutory interpretation, our standard of review is de novo. See In re Carroll, 586 Pa. 624, 636, 896 A.2d 566, 573 (2006). In considering the propriety of an award of counsel fees, however, appellate review is limited to determining whether the award constituted an abuse of discretion. See Thunberg v. Strause, 545 Pa. 607, 614-15, 682 A.2d 295, 299 (1996).
[9] Although Appellants argue that the Townships have acceded to the Kwalwasser criteria in framing their arguments before the EHB and the Commonwealth Court, the Townships have clearly asserted a much broader application of those criteria than applied by the EHB, specifically to subsume bad faith and vexatious conduct. See, e.g., Solebury Township's Application for Attorney Fees and Costs Pursuant to the Pennsylvania Clean Streams Law at 4-5, RR. at 2308-09. Thus, the Town-ships have not waived any argument concerning the application of a test other than Kwalwasser to determine whether attorneys' fees may be awarded under Section 307 in this matter.
[10] There appears to be some uncertainty as to whether a state agency has statutory authority to revoke a Section 401 Certification after the appeals period has expired, absent compliance with the terms of Section 401(a)(3) of the Clean Water Act, see 33 U.S.C. § 1341(a)(3). See, e.g., Keating v. Federal Energy Regulatory Commission, 927 F.2d 616, 622 (D.C.Cir.1991) (holding that revocation of the certification after a federal license has been issued is only proper in accordance with the itemized reasons of Section 401(a)(3)); Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E.2d 531, 533-34 (1987) (concluding that the state environmental agency lacked authority to revoke a water quality certification at the behest of third parties once the certification had been granted and the appeal process expired). However, as the parties have not raised this issue before this Court and it does not appear that there has been any detrimental reliance (other than the litigation expenditures in opposition to the certification that are the subject of the present appeal), we need not resolve this question at the present time.
[11] In this regard, one commentator has concluded that Buckhannon's limited definition of "prevailing party" does not apply to the fee-shifting provision of the Clean Water Act due to the broader language of that statute. See Jason Douglas Klein, Attorney's Fees and the Clean Water Act After Buckhannon, 9 HASTINGS W.-N.W.J. ENVTL. L. & POL'Y 109, 116 (2003); 33 U.S.C. § 1365(d) ("The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." (emphasis added)).
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In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2549
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW S. WHITE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 02 CR 165—John Daniel Tinder, Judge.
____________
ARGUED JANUARY 12, 2004—DECIDED MAY 11, 2004
____________
Before POSNER, EASTERBROOK, and KANNE, Circuit
Judges.
KANNE, Circuit Judge. Based upon an allegation of
evidentiary error, Defendant Andrew S. White appeals his
judgment of conviction for possession of firearms as a con-
victed felon, 18 U.S.C. § 922(g)(1) (2003), entered pursuant
to a jury’s verdict. He also appeals his sentence, claiming
that the district court erred when it increased his offense
level under U.S.S.G. § 3C1.1 (2003) for attempting to su-
born perjury. We affirm both White’s conviction and
sentence.
2 No. 03-2549
I. History
In October of 1992, White was on probation and under
supervision by the Marion County, Indiana Probation
Department. White had informed his probation officer
that he was residing alone in Indianapolis. He was the sole
lessee and the named electrical-service subscriber for the
residence. A condition of White’s probation allowed unan-
nounced searches of his living quarters by law enforcement
and/or probation officers. Such a search was conducted on
October 18, 2002 by Indianapolis police officer Michael
Elder, two other uniformed officers, and a probation officer.
The residence had two bedrooms, one in the northeast
corner of the house, and one in the northwest corner of the
house. Upon entry, Elder observed a female on the bed in
the east bedroom and another male exiting the bathroom.
The identities of these two persons were never ascertained
by officer Elder. After being advised of his Miranda rights,
White told Elder that the east bedroom was his. Elder then
searched the east bedroom.
During the search of the bedroom, Elder found male
clothing, various financial papers, and two firearms. Spe-
cifically, Elder discovered a Tarus .45-caliber handgun and
a Cobray-11 nine-millimeter weapon in the dresser. In
addition, numerous Indianapolis Star customer invoice
forms were found, which contained customer subscription
information and credit card numbers. White stated that his
fingerprints could be found on the weapons, but that they
were not his. He also indicated that he believed he could
have weapons in his house.
Based upon the foregoing facts, a grand jury indicted
White for the unlawful possession of firearms by a convicted
felon. Both parties stipulated that White was a convicted
felon and that the weapons in question had traveled in
interstate commerce. Hence, the only issue for trial was
No. 03-2549 3
whether White, and not another occupant or visitor in
White’s residence, possessed the weapons.
To prove this, the prosecution planned to introduce the
Indianapolis Star documents at trial, in addition to other
evidence, to suggest the inference that if the documents
were White’s, because they were found in the bedroom
dresser, then the other items in the dresser were also
White’s, including the two weapons. The prosecution prof-
fered the following facts to show that the Star documents
were White’s: (1) White worked at the Indianapolis Star
newspaper from March to July of 2002, in the building ser-
vices department; (2) he worked the late shift, from 10:00
p.m. to 6:30 a.m., when few employees were present; (3)
White had access to all areas of the Star’s facilities, includ-
ing the circulation department where customer subscription
invoices were processed and stored; and (4) none of the
other guests in his home had an opportunity to obtain
customer invoices from the Star. However, these facts also
indicated that White may have committed identity theft.
Hence, the government gave notice to White prior to trial of
its intent to offer the evidence under Rule 404(b), which
limits when such prior “bad acts” evidence may be admit-
ted. The defense objected, arguing that the evidence would
unfairly prejudice the jury against the defendant.
The experienced district court judge repeatedly reserved
ruling on the admissibility of the documents, waiting to
assess whether the government’s evidence at trial lived up
to its promise—both sufficiently linking White to the Star
documents and obviating any links between the documents
and other visitors to White’s residence. The district court
ultimately determined that the prosecution had shown by
a preponderance of the evidence that the documents were
White’s. The 404(b) evidence was therefore admitted, with
limiting and cautionary instructions from the district court
stating in part, “You may consider this evidence only on the
question of the identity of the person or persons
4 No. 03-2549
who possessed the firearms found in that dresser. . . . The
defendant is not on trial for any crime or any criminal
offenses or conduct not charged in the indictment and he is
accused of no misconduct in connection with the [Star
documents]. . . . So you may consider [this evidence] only for
the limited purposes on the question of identity.”
White presented a simple theory of defense: he did not
know the guns were in the residence and, even if he did, he
did not have the ability to exercise dominion and control
over them. See United States v. Thomas, 321 F.3d 627, 636
(7th Cir. 2003) (discussing constructive possession). At trial,
four witnesses testified on White’s behalf: Chandra Baker
(White’s ex-girlfriend), Nita Reeves, DeWayne Lane, and
Angela Cheshier. Baker, Reeves, and Lane each testified
that White used the west bedroom and each gave substan-
tially similar accounts of their collective comings and goings
from White’s residence both generally and specifically on
October 18. In short, each testified that a man known to
them only as “Ted” brought a gun into White’s house and
hid it in the dresser on October 18. But, after being con-
fronted during cross-examination with tape recordings of
conversations between themselves and White, all three
witnesses—Baker, Reeves, and Lane—admitted that White
had discussed their testimony with them prior to trial, in
order to ensure that “everyone [was] on point” and that no
one talked until they knew the “script.”
The jury rejected White’s theory of defense and returned
a guilty verdict on March 14, 2003. At sentencing, the gov-
ernment sought a two-level enhancement under U.S.S.G. §
3C1.1 because, they asserted, White attempted to suborn
perjury. Based upon the trial testimony of Baker, Reeves,
and Lane, and the sentencing hearing testimony of Special
Agent Steven Alexander of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“BATF”), who had listened to
recordings of phone calls made by White from the Marion
County Jail to his witnesses prior to trial, the district court
No. 03-2549 5
concluded that the enhancement applied and added two
levels to White’s criminal offense level. On June 3, 2003,
White was sentenced to 115 months imprisonment.
II. Analysis
A. Federal Rule of Evidence 404(b)
White first argues that the district court abused its dis-
cretion when it admitted the Indianapolis Star documents,
which suggested that White may have committed identity
theft. Under Rule 404(b), evidence of a defendant’s prior
“bad acts” may be admissible if it is relevant to an under-
standing of the defendant’s “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mis-
take or accident.” Fed. R. Evid. 404(b). The rule’s use of the
phrase “may be” indicates that the admissibility of “bad
acts” evidence is a matter soundly committed to the trial
court’s discretion. Indeed, it is a rare circumstance, one
where the record contains no evidence on which the district
court could have rationally based its ruling, when this court
will find that the district court abused its discretion. See
United States v. Conley, 291 F.3d 464, 472 (7th Cir. 2002).
Hence, “[a]ppellants who challenge evidentiary rulings of
the district court are like rich men who wish to enter the
Kingdom: their prospects compare with those of camels who
wish to pass through the eye of the needle.” Untied States
v. Glecier, 923 F.2d 496, 503 (7th Cir. 1991). White is not so
fortunate.
We have established a four-prong test to determine the
admissibility of “bad acts” evidence under Rule 404(b), such
as the Indianapolis Star documents at issue in this case.
E.g., United States v. Joseph, 310 F.3d 975, 978 (7th Cir.
2002). First, the evidence must be probative of an issue of
the case, other than the defendant’s propensity to commit
crimes, such as knowledge, intent, motive, or absence of
mistake. Second, the prior bad act must be similar enough
6 No. 03-2549
and close enough in time to the charged offense to be
relevant. Third, the jury must be able to find by a pre-
ponderance that the defendant committed the prior act.
Finally, the danger of unfair prejudice to the defendant
cannot substantially outweigh the probative value of the
evidence. See id.
Here, the district court’s decision to admit the
Indianapolis Star documents, evidence tending to show
a prior “bad act” (identity theft) by White, with limiting
instructions was amply supported by the record. First, the
documents were offered by the prosecution to counter
White’s theory of defense, that the firearms were not his
and that he did not have the ability to exercise dominion
and control over them, and not merely to show White’s pro-
pensity to commit crimes. If the documents were possessed
by White—an evidentiary showing the district court re-
quired the prosecution to demonstrate by a preponderance
before the court admitted the documents—then the jury
could infer that White kept his belongings in the dresser,
and therefore, the weapons which were also found in the
dresser were also possessed by White. And under Rule
404(b), a court may properly admit “bad acts” evidence to
prove the identity of a defendant (i.e., the identity of the
person who owned or “possessed” the weapons at issue
here). At the very least, it was no abuse of discretion for the
district court to determine that the Indianapolis Star
documents were relevant to the issue of the defendant’s
identity with respect to possession of the weapons, and
White concedes as much in his brief to this court.
Second, the documents were kept in temporal and spatial
proximity to the weapons at issue in this case. Hence, the
second requirement requiring sufficient similarity between
the Rule 404(b) evidence and the charged conduct is met.
And not surprisingly, White concedes this issue as well.
Third, a reasonable jury must be able to conclude, by
a preponderance of the evidence, that the prior “bad act”
No. 03-2549 7
occurred. United States v. York, 933 F.2d 1343, 1352
(7th Cir. 1995). In this case, the district court went to great
lengths to ensure that the prosecution had demonstrated
that more likely than not it was White—and not some other
houseguest or other visitor—who had obtained the Star
documents. So again, White concedes this issue.
Last, the probative value of the evidence must not be
substantially outweighed by its prejudicial effect. The dis-
trict court carefully analyzed this question and gave lim-
iting instructions to the jury both when the evidence was
admitted and when the jury was finally instructed. The
evidence was highly probative of White’s identity, and the
“bad act” was not of the type which typically arouses strong
passions in jurors. See, e.g., Joseph, 310 F.3d at 978-79
(affirming district court’s allowance of evidence of mail theft
to establish identity when defendant charged with federal
bank fraud); United States v. Anifowoshe, 307 F.3d 643,
647-48 (7th Cir. 2002) (finding district court correctly
admitted evidence of state theft charge and other bad acts
because while not unfairly prejudicial, the evidence was
probative of identity in federal fraud prosecution). See
generally, United States v. Adames, 56 F.3d 737, 742 (7th
Cir. 1995) (evidence is prejudicial if it will induce jury to
decide the case on improper basis, commonly an emotional
one). If there was any prejudice to White, it certainly did
not substantially outweigh the probative value of the
evidence.
Therefore, we conclude that the learned district judge did
not abuse his discretion in admitting the Indianapolis Star
documents under Rule 404(b).
B. Sentencing Enhancement for Suborning Perjury
Second, White challenges the two-level upward adjust-
ment of his sentencing level for obstruction of justice under
U.S.S.G. § 3C1.1 (2003). We review for clear error a district
8 No. 03-2549
court’s finding that a defendant obstructed justice. United
States v. White, 240 F.3d 656, 660 (7th Cir. 2001). And
under this standard, a district court’s factual findings will
not be disturbed so long as they are plausible in light of the
record in its entirety. Id. at 660-61. The subornation of
perjury, where the perjury could affect, to some reasonable
probability, the outcome of the judicial process, is a form of
obstruction of justice. U.S.S.G. § 3C1.1, cmt. n.4(b). A
defendant attempts to suborn perjury when he encourages
a witness to testify falsely in an effort to improve his
chances of acquittal, United States v. Duncan, 230 F.3d 980,
988 (7th Cir. 2000), and the attempt need not have suc-
ceeded in affecting the outcome, see United States v.
Buckley, 192 F.3d 708, 710 (7th Cir. 1999).
White makes three assertions to support his argument
that the district court clearly erred when it determined he
suborned perjury: (1) the testimony of defense witnesses did
not materially differ from the testimony of government
witnesses; (2) if there had been an actual attempt to coach
his witnesses, the testimony given would have been more
helpful to him; and (3) the recorded conversations between
White and his witnesses, during which he referred to a
“script” and stated that the witnesses should wait until they
were all “on point” before talking to his attorney, amounted
only to “playful banter.” Each of these arguments is totally
unsupported by the record and the latter two border on the
absurd.
We summarize briefly the testimony of only one of White’s
witnesses at trial, which, even standing alone, is enough to
support the district court’s determination that White
suborned perjury. In direct conflict with the evidence the
prosecution presented, Chandra Baker testified during her
direct examination that White used the west—not
east—bedroom and that on October 18 she observed “Ted”
bringing a weapon into the residence. But after being
confronted with a tape recording of conversations between
No. 03-2549 9
herself and White on cross-examination, she admitted that
White had told her to get together with Erica Johnson and
Dewayne Lane to be sure that they knew what to say at the
trial, and to include in her testimony certain details. White
told her that the ultimate goal was to get everyone together
for a “pow-wow” and to “break this down,” so that everyone
would be “on point.” She testified that White told her to
“quiz” Johnson and to accomplish these tasks before
meeting with his attorney.
Similar testimony was elicited during the direct and
cross-examinations of both Nita Reeves and Dewayne Lane.
And again each witness admitted to conversations with
White only after being confronted with tape recordings. In
addition, at the sentencing hearing, BATF Agent Alexander
authenticated the tape recordings and conversations.
We therefore find that the district judge, who viewed the
witnesses and listened to the tapes first-hand, did not in
any fashion err when he found that White attempted to
suborn perjury, and consequently increased White’s offense
level by two for obstruction of justice under U.S.S.G.
§ 3C1.1.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
judgment of conviction and sentence.
10 No. 03-2549
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-11-04
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524 F.2d 925
Leavy CAMPBELL, Plaintiff-Appellant,v.Robert M. COUSINS, Warden, Ellis Unit, Texas Dept. ofCorrections, Defendant-Appellee.
No. 74-3459.
United States Court of Appeals,Fifth Circuit.
Dec. 12, 1975.
David T. Harvin, Houston, Tex. (Court-appointed, not under act), for plaintiff-appellant.
John L. Hill, Atty. Gen., Austin, Tex., Calvin Botley, Asst. Atty. Gen., Houston, Tex., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before BROWN, Chief Judge, TUTTLE and RONEY, Circuit Judges.
PER CURIAM:
1
Appellant Campbell, a Texas prisoner, sued his warden for damages and injunctive relief under 42 U.S.C.A. § 1983, alleging that he was unlawfully beaten by prison guards, and that he was sentenced to solitary confinement, loss of good time and reduction in class without a fair hearing. After a trial with court-appointed counsel for the plaintiff prisoner, the district court rendered findings of fact and conclusions of law to the effect that first, Campbell had not been beaten as alleged in his complaint, but that, even if force had been used, it was reasonably necessary under the circumstances, and second, Campbell had not been denied due process in connection with the two disciplinary hearings in question. We affirm.
2
The district court's findings on the alleged beating are insulated against appellate attack unless "clearly erroneous." F.R.Civ.P. 52(a). The event in issue occurred during a work detail in a prison field. Although the testimony was conflicting, there was sufficient evidence to support the defendant's theory that when the prisoner refused to return to his work assignment, two guards on horseback used their mounts and their bridle reins to force defendant to obey their orders. The court's finding that any force used was only that reasonably calculated to control a potentially dangerous prison situation withstands the "clearly erroneous" test. Such facts fail to reflect a violation of plaintiff's civil rights required to sustain a § 1983 action.
3
The due process allegations emanate from two prison disciplinary hearings in 1972. One stemmed from the work field incident, the other from a disturbance plaintiff caused while in solitary confinement. He now asserts that he was deprived of an adequate hearing, the right to be heard and present witnesses, and an impartial hearing.
4
The Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), enunciated a panoply of procedural rights to be afforded prisoners in disciplinary proceedings, but refused to apply the holding retroactively as to the expungement of prior disciplinary records. Later in Cox v. Cook, 420 U.S. 734, 95 S.Ct. 1237, 43 L.Ed.2d 587 (1975), the Court held that Wolff should be applied only prospectively to monetary claims. Consequently, Cox forecloses the granting of any monetary relief for these 1972 hearings under the Wolff standards. See also Willis v. Ciccone, 506 F.2d 1011, 1017-1018 (8th Cir. 1974).
5
The case law in the circuits as to the procedures required in prison disciplinary proceedings prior to Wolff was, at best, confused and inconsistent. See Wolff v. McDonnell, supra, 418 U.S. at 572-573 n. 20, 94 S.Ct. 2963. We have been shown no prevailing Fifth Circuit law predating Wolff.
6
Because of the vagaries in the law prior to Wolff, it cannot now be said that the judge was incorrect in the refusal to grant plaintiff relief on his due process claims. Each disciplinary board had been convened according to then existing law, and there was evidence that plaintiff was able to participate in the proceedings, at least to a limited degree. Although the hearings would not satisfy present due process requirements, they did not contravene any settled conventions of due process existing prior to Wolff to the point necessary to support a damage claim under § 1983.
7
As to the claim for injunctive relief, we deem it unnecessary to consider to what extent the procedures failed to meet Wolff standards. We can assume that the Texas Prison System will follow the Wolff guidelines, and until proved otherwise, there is no need for equitable relief.
8
Finally, plaintiff's request for injunctive relief to restore his participation in the college study program is moot. In January 1974, plaintiff was re-enrolled in the program when he once again became eligible.
9
Affirmed.
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159 B.R. 192 (1993)
In re SOUTHERN INTERNATIONAL COMPANY, INC., Debtor.
Kevin R. HUENNEKENS, Trustee, Plaintiff,
v.
Neville Vere NICOLL, Defendant.
Bankruptcy No. 90-33913-S, Adv. No. 93-3068-T.
United States Bankruptcy Court, E.D. Virginia, Richmond Division.
September 13, 1993.
Samuel W. Hixon, III, Williams, Mullen, Christian & Dobbins, Richmond, VA, for defendant.
Lawrence H. Framme, III, LeClair, Ryan, Joynes, Epps & Framme, Richmond, VA, for Trustee.
MEMORANDUM OPINION
DOUGLAS O. TICE, Jr., Bankruptcy Judge.
Hearing was held on July 16, 1993, on the motion of defendant Neville Vere Nicoll to dismiss count II of plaintiff's complaint for failure to state a claim upon which relief can be granted. See Fed.R.Bankr.P. 7012(b) and Fed.R.Civ.P. 12(b)(6).
The motion to dismiss was based upon two arguments, (1) that the debtor's bankruptcy trustee lacked standing to bring the action and (2) that the complaint was time-barred when filed on April 5, 1993.
At the conclusion of the hearing, the court ruled that the complaint was time-barred and granted the motion to dismiss.[1] This opinion supplements the court's bench ruling.
Facts
An involuntary chapter 7 petition was filed against the debtor on December 7, 1990. An order for relief was entered on January 3, 1991, and the case was converted to a chapter 11 on that same date. On April 5, 1991, the case was reconverted to a chapter 7; Kevin R. Huennekens was appointed trustee on that same date and continues to serve.
On April 5, 1993, the trustee filed a complaint against the defendant; count II of the complaint alleged a breach of defendant's fiduciary duty to the debtor for which the trustee sought damages approximating $1,000,000.00. A suit for breach of fiduciary duty arises under Virginia law, and the statute of limitations for filing suit is one year. The one year limitations period for this cause of action had not expired on December 7, 1990, the date of the filing of the involuntary bankruptcy petition.
*193 Position of the Parties
TRUSTEE
The trustee contends that 11 U.S.C. § 108(a) extends any applicable statute of limitations to a minimum of two years after the order for relief. He argues that pursuant to 11 U.S.C. § 348(a) the date of conversion from chapter 11 to chapter 7, April 5, 1991, should be considered the date of the order for relief for the purpose of calculating any limitation periods against the trustee. Thus, the April 5, 1993, filing of the complaint was timely, since it occurred within two years after the date of the chapter 7 order for relief.
NICOLL
The defendant agrees that conversion from chapter 11 to chapter 7 constitutes an order for relief under chapter 7 pursuant to § 348(a). However, that same code section specifies that, except as provided in §§ 348(b) and (c), conversion does not change the date of the filing of the petition, the commencement of the case, or the order for relief. Therefore, the date of the order for relief for purposes of § 108(a) remained January 3, 1991.
Since the trustee did not file his complaint until April 5, 1993, more than two years after the date of the order for relief, it is time-barred by § 108(a).
Discussion and Conclusions of Law
The defendant has asserted that an action for breach of fiduciary duty under Virginia law must be brought within one year. The plaintiff accepted this limit for the sake of his argument, and the court proceeds under this assumption. Thus the one year limitations period would have expired, at the latest, within one year of the filing of the bankruptcy petition unless extended by the bankruptcy code.
Section 108(a) does provide for an extension of statutes of limitation. If the limitation period has not expired prepetition, it is extended for at least two years after the order for relief.[2]
It is undisputed here that the cause of action in count II of the trustee's complaint was not time-barred at the time the petition was filed. Thus, the issue in this case is narrowed to whether the trustee filed the complaint within two years after the "order for relief" as required by § 108(a).
Conversion from one chapter to another under the bankruptcy code "constitutes an order for relief under the chapter to which the case was converted, but . . . does not effect a change in the date of the filing of the petition, the commencement of the case, or the order for relief." 11 U.S.C. § 348(a).
Since these dates are unaffected by the conversion of this case from chapter 11 to chapter 7, the date of the order for relief in this case remains January 3, 1991, the date of the chapter 11 order for relief, and is not April 5, 1991, the date of conversion to chapter 7.
As a result, the trustee had two years from January 3, 1991, in which to file the cause of action in count II. The April 5, 1993, filing is outside the limitation, and this cause of action must be dismissed.
The trustee argues that because conversion from one chapter to another constitutes an order for relief under § 348(a), the date of his appointment as trustee should begin the two year extension period.[3] This *194 argument is based upon the practicalities of administering a bankruptcy case.[4] As the law stands, based upon my analysis, the two year limitations period could already have been expired when a case is converted to chapter 7 and the trustee appointed. I agree with the trustee that the statute should be as he argues. Unfortunately, it rather clearly is not.[5]
A separate order has been entered.
NOTES
[1] Because of the ruling made, the court found it unnecessary to rule on the standing issue. However, it is the court's opinion that the trustee did have standing to bring count II of the complaint.
[2] If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such Period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) two years after the order for relief.
11 U.S.C. § 108(a).
[3] It should be noted that a trustee has two years from his appointment to commence certain enumerated actions or proceedings. See 11 U.S.C. § 546(a). However, § 546(a) is inapplicable here since the defendant's alleged breach of fiduciary duty to the debtor arises only under Virginia law and is not one of the specified actions under § 546(a).
[4] When faced with two possible interpretations of the bankruptcy code and rules I prefer to choose the interpretation which does not ignore the realities of the bankruptcy process. LaRossa v. Leydet (In re Leydet), 150 B.R. 641, 644 (Bankr.E.D.Va.1993).
In that case, I held that Fed.R.Bankr.P. 4003(b), which provides that objections to exemptions may be filed within 30 days after the meeting of creditors, includes the meeting of creditors held after a case is converted from chapter 11 to chapter 7. Thus, a new objection period ensued when the debtors' case was converted from chapter 11 to chapter 7, and the trustee and creditors had a full 30 days from the chapter 7 meeting of creditors to file any objections. To rule otherwise would deprive the trustee of any meaningful opportunity to object to a debtor's exemptions in a converted case. In re Leydet, 150 B.R. at 644. Moreover, I indicated in that case that § 348(a) "provides that sections of the bankruptcy code that are keyed to entry of the order for relief are unaffected by conversion." In re Leydet, 150 B.R. at 642.
No luxury of two possible interpretations of the bankruptcy code and rules exists here since the relevant time period under § 108(a) is keyed to the date of the entry of the order for relief and requires dismissal of the trustee's second cause of action.
[5] One court has relied on its equitable powers and applied the "discovery rule" in allowing the extension period of Code § 108(a)(2) to begin from the date of the trustee's appointment. See Pongetti v. Lee (In re Bingham Systems, Inc.), 139 B.R. 809, 811-814 (Bankr.N.D.Miss.1991). The trustee filed an action 20 months after appointment, and one month after the deadline outlined in Code § 108(a). Id. at 811. One distinguishing feature in Bingham is that "the trustee encountered significant difficulties in obtaining access to the debtor's business records." Id. at 812. This circumstance is not present here.
Actually, in Bingham the court found no support for a "discovery rule" in the Code. The court stated:
Quite frankly, the defendant's argument [identical to Nicoll's contention in this case] is persuasive when one reads the statutory language rigidly. . . .
To conclude this issue, however, the court must turn to an equitable principle [a "discovery rule"] which simply cannot be ignored.
Id. at 812-13.
While Bingham seems to reach an equitable result, I find it plainly at variance with § 348(a). Moreover, our case is distinguishable from Bingham. There is no evidence of any difficulty encountered by the trustee in obtaining the debtor's business records. In addition, the action is based on Virginia law, which specifies that the "discovery rule" is inapplicable, except in certain enumerated cases which do not include breach of fiduciary duty. See Va.Code Ann. § 8.01-230 (Michie 1992).
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204 So.2d 699 (1967)
Isiah HAMMOND
v.
SEWERAGE AND WATER BOARD OF NEW ORLEANS.
No. 2797.
Court of Appeal of Louisiana, Fourth Circuit.
December 4, 1967.
*700 Burton G. Klein, New Orleans, for plaintiff-appellee.
George Piazza, New Orleans, for defendant-appellant.
Before SAMUEL, HALL and BARNETTE, JJ.
BARNETTE, Judge.
This case is before us on defendant's appeal from a judgment awarding plaintiff compensation under the provisions of LSA-R.S. 23:1221(4) (p).
Counsel stipulated at trial that plaintiff had been employed by the defendant on or before November 25, 1964. On that date plaintiff was injured during the course and scope of his employment. Defendant admitted liability under the Workmen's Compensation Act and in fact paid compensation in the amount of $2,154.32 at the rate of $35 per week for 61.56 weeks. In addition defendant paid to plaintiff the sum of $1,775.59 representing sick leave pay, during the period that compensation was paid. Defendant also expended the sum of $1,641.19 for medical and hospital expenses.
The record clearly indicates that on or about November 25, 1964, plaintiff, while in the employ of the defendant, injured his back by attempting to lift a manhole casing. Plaintiff was examined by the defendant's physicians and on February 24, 1965, an *701 operation was performed to remove a portion of a ruptured intervertebral disc from his back. In January, 1966, after a long period of convalescence, he was again examined by defendant's physicians. They declared him able to return to work with only a 10-percent residual anatomical impairment to his back.
Defendant paid the compensation and additional sick leave benefits in the stipulated amount from November, 1964, until February 24, 1966, at which time all payments were discontinued. Plaintiff then brought this suit to recover compensation at the rate of $35 per week for a total of 400 weeks, less credit for the amount previously paid. In addition he asked for a penalty of 12 percent of all compensation due and an attorney's fee of $2,000.
Plaintiff alleged that he had suffered a total permanent disability and was no longer able to do work of any reasonable character, and was entitled to maximum total compensation benefits under the Workmen's Compensation Act. He alleged that defendant's actions in refusing to pay total compensation for 400 weeks were arbitrary and capricious.
The trial judge awarded plaintiff recovery under LSA-R.S. 23:1221(4) (p) in the amount of $25 per week for 100 weeks, subject to a credit for the compensation paid not to exceed $35 per week.
Defendant Sewerage and Water Board brings this appeal from that judgment. It alleges that plaintiff's residual impairment was so slight that it did not fall under LSA-R.S. 23:1221(4) (p) which calls for compensation in cases where the usefulness of a physical function is seriously permanently impaired.
Plaintiff did not appeal nor answer defendant's appeal, but he did attempt to allege in his brief that his award should be increased to cover a period of 300 weeks for partial disability resulting from the impairment of the physical function of his back. Since he did not appeal from the judgment which rejected his demands for additional compensation on account of either permanent total or partial disability, nor answer the appeal, the judgment denying him compensation for partial disability under the provisions of LSA-R.S. 23:1221 (3) is final. Therefore we cannot consider any claim for additional compensation except under LSA-R.S. 23:1221(4) (p).
We must state at this point that there seems to be some misunderstanding on the part of both parties as to the full import of the trial judge's decision. For this reason we feel compelled to quote the judgment verbatim:
"IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of ISIAH HAMMOND, Plaintiff herein, and against the Sewerage & Water Board of New Orleans, defendant herein, for compensation at the rate of Twenty-five ($25.00) Dollars per week for one hundred weeks under R.S. 23:-1221 sub section 4 (P), subject to a credit of the compensation paid not to exceed Thirty-five ($35.00) Dollars per week, with legal interest from the date of maturity of each weekly payment until paid; and, for expert fees in the amount of One Hundred ($100.00) Dollars, and for all costs."
It is obvious from an examination of this decree, that while the trial judge awarded plaintiff $25 per week for 100 weeks, or $2,500, he found that this sum was subject to a credit of $2,154.32, which represents compensation previously paid. Thus his judgment, in effect, awarded the plaintiff the sum of $345.68, over and above the sum previously paid.
Defendant, both in his brief and in his oral argument, labored under the mistaken impression that the judgment awarded plaintiff $2,500 over and above the compensation previously paid, and not subject to a credit for it. Apparently the plaintiff shared this mistake as he did not appeal from the judgment, which, while in his favor, in effect awarded him little more than *702 he had received previously from the defendant.
In any event we find that the judgment is correct and under the facts is perfectly in keeping with the statutes and the jurisprudence.
There was some dispute between the medical witnesses who testified during the trial of this matter. Three physicians testified for the defendant, and they were all in agreement that plaintiff was able to return to his prior occupation as a common laborer. All three did however find that plaintiff suffered a 10-percent residual impairment to his back as a result of the accident and surgery but diagnosed the impairment as anatomical rather than functional. They testified that he would not be hampered in any way by this impairment in performing his duties, which included work as a ditchdigger.
One physician testified for the plaintiff. He examined plaintiff on only one occasion and was also of the opinion that he had a permanent residual impairment of approximately 10 percent. This physician, however, believed that the impairment would interfere with plaintiff's ability to return to his occupation as a ditchdigger. He did state that he could go back to heavy, common labor but the specific activity involved in digging ditches and lifting sewer covers would be hampered by plaintiff's back impairment and would cause him to suffer acute pain.
The trial judge apparently rejected this expert's opinion as to the inability of the plaintiff to return to his previous occupation. As we have noted previously, this issue is not now before us on appeal, therefore, we will not attempt to review the decision of the trial judge regarding it.
We must therefore agree with him that while plaintiff did suffer a permanent impairment to his back as a result of his accident and corrective surgery, this impairment is not in the nature of a disability which would interfere with plaintiff's performance of his prior occupation.
A strikingly similar case was presented to this court in Ball v. American Marine Corporation, 150 So.2d 865 (La.App. 4th Cir. 1963), and affirmed by the Supreme Court at 245 La. 515, 159 So.2d 138. There, as here, a common laborer endeavored to recover maximum benefits for a back injury. He underwent a laminectomy and was paid full compensation for 31 weeks during convalescence. At the end of this time several physicians testified that he was fully capable of returning to his work as a common laborer though he had lost 10 percent of the function of his body as a whole. The trial judge applied the provisions of LSA-R.S. 23:1221(4) (p) and awarded the laborer $25 for 100 weeks subject to credit for compensation previously paid. We could not have a case more on "all fours" with the one we are deciding here. The factual situation is exactly the same and the judgment is the same even to the amount awarded.
We must agree with the decision in the Ball case that this situation is one which properly calls for the application of the provisions of LSA-R.S. 23:1221(4) (p).
Where the usefulness of a physical function is "seriously permanently impaired," but not to the extent of disabling the worker from continuing his employment, clearly the statute applies.
Here Hammond has suffered a 10-percent impairment to his lower back. The defendant's physicians attempt to distinguish between an anatomical and functional disability, but nevertheless concede that plaintiff has suffered a permanent limitation to the use of his back though not to an extent to prevent his return to work as a common laborer. Certainly this falls within the clear meaning of the statute.
We have noted that the portion of the judgment which credits the defendant with the amount of compensation previously paid has caused some confusion between the *703 parties. Clearly the trial judge was correct in so framing the award. LSA-R.S. 23:1223 states:
"Where compensation has been paid under subdivisions (1), (2), or (3), of R.S. 23:1221, the amount of such payment shall be deducted from any compensation allowed under subdivision (4) thereof or under Sub-part C of this Part."
Thus in this case, as the defendant had voluntarily paid compensation for plaintiff's total temporary disability under the provisions of LSA-R.S. 23:1221(1), then this amount should be deducted from the award under LSA-R.S. 23:1221(4) (p).
Further this amount should be credited on a dollar for dollar and not a week for week basis. Miller v. General Chemical Division, 128 So.2d 39 (La.App. 1st Cir. 1961).
Defendant on appeal has asked that the money paid to the plaintiff as a part of the defendant's sick leave system also be credited against the amount awarded under LSA-R.S. 23:1221(4) (p). With this we must disagree. This money was not given as a gratuity in lieu of compensation, as admitted by defendant's counsel in his oral argument before this court. This court has decided in France v. City of New Orleans, 92 So.2d 473 (La.App. Orleans 1957), that payment under a sick leave system will not be credited against a compensation award. Sick leave payments are benefits which the employee has already earned by virtue of past services rendered to his employer.
Although plaintiff did not take this appeal and the issue is not before us, we feel compelled to mention that the trial judge was correct in not awarding plaintiff statutory penalties and attorney's fees as plaintiff had requested in his suit. The record does not show that defendant acted in an arbitrary or capricious manner in stopping compensation payments when plaintiff was discharged as able to return to work.
For the foregoing reasons the judgment appealed from, awarding plaintiff $25 a week for 100 weeks subject to compensation previously paid, is affirmed, at appellant's cost.
Affirmed.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1105
___________
MANORCARE OF EASTON PA LLC
v.
THE ESTATE OF JOSEPH A. NAGY
THE ESTATE OF JOSEPH A. NAGY; JOSEPH EUGENE NAGY, Counter-Plaintiffs
v.
MANORCARE OF EASTON PA LLC; KENNEDY PC; NORTHAMPTON COUNTY;
AETNA, INC.; HEARTLAND HOSPICE; DR. EDWARD CUMBO; DR. DILIP BERA;
BRAKELEY PARK CENTER; NEW EASTWOOD CARE AND REHAB;
COMMONWEALTH OF PENNSYLVANIA; DR. KEYURKUMAR DALSANIYA;
DR. STEPHEN KSIAZEK; ST. LUKE’S WARREN HOSPITAL
The Estate of Joseph A. Nagy,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 5:13-cv-05957)
District Judge: Honorable Jeffrey L. Schmehl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 21, 2018
Before: MCKEE, COWEN, and ROTH, Circuit Judges
(Opinion filed: October 31, 2019)
___________
OPINION*
___________
PER CURIAM
Joseph E. Nagy (“Appellant”) seeks to appeal pro se from the District Court’s
December 13, 2017 order denying a filing titled “Motion to Tax Attorney in Fact and Pro
Se Fees, Costs.” For the reasons that follow, we will dismiss this appeal.
I.
In 2013, Manor Care of Easton, PA, LLC (“Manor Care”) sued Appellant’s father,
Joseph A. Nagy (“Nagy”), in the Court of Common Pleas of Northampton County,
Pennsylvania. Nagy, proceeding pro se, removed the case to federal court and filed
counterclaims against several individuals and entities, including Manor Care. Appellant,
also proceeding pro se, purported to join Nagy as a defendant/counter-plaintiff. After
Nagy passed away in 2015, Nagy’s Estate (“the Estate”) was substituted for Nagy as a
party to this case. The Estate was not represented by an attorney; rather, Appellant, who
is a co-executor and co-beneficiary of the Estate, submitted filings on its behalf.
The District Court ultimately dismissed all of the counterclaims. Thereafter,
Manor Care moved to voluntarily dismiss its complaint pursuant to Federal Rule of Civil
Procedure 41(a)(2). In October 2017, the District Court granted that motion and closed
the case. Later that month, Appellant, on the Estate’s behalf, filed a document titled
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
“Motion to Tax Attorney in Fact and Pro Se Fees, Costs.” This filing appeared to ask the
District Court to order Manor Care to pay the Estate approximately $77,000 in “attorney
fees” for Appellant’s work on the case. On December 13, 2017, the District Court denied
that motion. Thirty days later, Appellant filed a pro se notice of appeal, which stated that
the Estate was appealing from the December 13, 2017 order.
II.
Federal Rule of Appellate Procedure 3 requires that a notice of appeal “specify the
party or parties taking the appeal by naming each one in the caption or body of the
notice.” Fed. R. App. P. 3(c)(1)(A). This rule is construed liberally, see Witasick v.
Minn. Mut. Life Ins. Co., 803 F.3d 184, 190 (3d Cir. 2015), and “[c]ourts employ a
commonsense, purposive approach to determine whether a notice of appeal complies with
the rule[],” Lee v. Houtzdale SCI, 798 F.3d 159, 163 (3d Cir. 2015) (internal quotation
marks omitted). In this case, the one-sentence notice of appeal clearly and unequivocally
stated that the Estate was the party appealing. Even construing the notice liberally,
nothing in that filing indicates that Appellant also intended to appeal on his own behalf.1
Accordingly, we lack jurisdiction over any arguments brought by Appellant on his own
1
On numerous occasions, Appellant submitted filings in the District Court that included
language indicating that he was proceeding on behalf of both the Estate and himself. He
was certainly capable of doing the same in his notice of appeal, but he chose not to do so,
instead listing the Estate as the only appellant. Although he signed the notice of appeal,
that fact alone is not enough to persuade us that he intended to appeal on his own behalf.
Cf. Fed. R. App. P. 3(c)(2) (“A pro se notice of appeal is considered filed on behalf of the
signer and the signer’s spouse and minor children (if they are parties), unless the notice
clearly indicates otherwise.” (emphasis added)).
3
behalf. See Witasick, 803 F.3d at 190.2 As for the arguments that Appellant brings on
behalf of the Estate, those arguments are not properly before us either. Appellant, who is
not an attorney, may not represent the Estate pro se. See Murray ex rel. Purnell v. City of
Philadelphia, 901 F.3d 169, 170-71 (3d Cir. 2018).
In light of the above, we will dismiss this appeal.3 Appellant’s motion for
sanctions is denied.
2
Even if we were to liberally construe Appellant’s two motions to proceed in forma
pauperis (“IFP”) and/or his appellate briefing as a notice of appeal, we would still lack
jurisdiction to review any arguments brought by Appellant on his own behalf.
Appellant’s first IFP motion does not indicate that he seeks to appeal on his own behalf,
and the second IFP motion and his appellate briefing were filed after the expiration of the
30-day deadline for filing a notice of appeal. See Fed. R. App. P. 4(a)(1)(A); see also
Bowles v. Russell, 551 U.S. 205, 209 (2007) (explaining that the time to appeal is
“mandatory and jurisdictional” (quoting Griggs v. Provident Consumer Disc. Co., 459
U.S. 56, 61 (1982) (per curiam))).
3
To the extent that Appellant asks us to strike Manor Care’s briefing and/or supplemental
appendix, that request is denied.
4
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190 Ga. App. 593 (1989)
379 S.E.2d 619
GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY
v.
ALLSTATE INSURANCE COMPANY et al.
77771.
Court of Appeals of Georgia.
Decided March 3, 1989.
Heard, Leverett & Phelps, Cynthia G. Weaver, for appellant.
Frederick A. Bading, for appellees.
BEASLEY, Judge.
Defendant Georgia Farm appeals the order granting plaintiff Allstate's motion for summary judgment and denying defendant Peterman's motion for summary judgment.
Allstate insured a 1980 Oldsmobile Cutlass owned by Jean Carroll under an automobile liability policy which defined "persons insured" while using an insured auto as including "you" [the named insured], "any resident" and "any other person using it with your permission." Jerry Ray Carroll was Jean's adult son who at the time was not residing in her household but living separately with his girl friend, Judy Pearson. On February 8, 1987, Jerry was driving the Cutlass when he was involved in a collision with Peterman. Peterman sought damages against Jerry and Jean and served Georgia Farm as his uninsured motorist carrier. Judy Pearson was added as a third-party defendant.
Allstate offered to defend Jerry under a non-waiver agreement and brought a declaratory judgment action against Peterman, Jerry, Jean, Judy and Georgia Farm. Allstate contended that under the policy's aforestated omnibus clause, Jerry was not an additional insured and it was not obligated either to defend him or to provide liability coverage. Peterman and Allstate both filed motions for summary judgment, and the trial court found for Allstate.
1. The sole issue presented is whether there was permissive use of the insured vehicle.
Allstate points out that in answering interrogatories in the tort action, which were considered below, Jean stated that "I did not give Jerry Ray Carroll permission to drive the vehicle at the time and place in issue. I had not given him permission to take possession of the vehicle. I do not know how or why he had possession of the vehicle at the time." It therefore urges that Jerry could not have had permission within the contemplation of the policy language. Defendants contend that Jean's answer should not have been considered by the trial court. Regardless of the admissibility issue, the accuracy of the decision must be tested by a consideration of all the proof offered in *594 support of and in opposition to the motion.
The evidence must be construed most favorably to the party opposing the motion for summary judgment; this party must be given the benefit of all favorable inferences and reasonable doubts which may arise from the evidence. Mattison v. Travelers Indem. Co., 157 Ga. App. 372, 375 (1) (277 SE2d 746) (1981); McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 179 (1) (129 SE2d 408) (1962). Full efficacy must be given also to the applicable principles of law which are comprehensively expounded in Strickland v. Ga. Cas. & Surety Co., 224 Ga. 487 (162 SE2d 421) (1968), and Cotton States &c. Ins. Co. v. State Farm &c. Ins. Co., 118 Ga. App. 451 (164 SE2d 262) (1968). In essence, the permission to use contained in an omnibus clause refers to the purpose for which permission was given and not to the operation of the vehicle. Thus, where a third person utilizes a vehicle via another person who did have permission from the owner, the fact that such third person had neither express nor implied permission from the owner is irrelevant. So is the fact the third person had no license to drive or was expressly forbidden to drive by the owner. "[T]he policy only requires permission for the purpose to be served." Hemphill v. Home Ins. Co., 121 Ga. App. 323, 328 (1) (174 SE2d 251) (1970), quoting from Strickland, supra at 489. As long as the use falls within the scope of the permission then it is permissive within the policy terminology.
Jerry testified that: "The girl I'm living with's car tore up, so she let us borrow it. Well she let her borrow it to take me back and forth to work." He subsequently reiterated this and added "and to get groceries and stuff." The use of the vehicle was for his benefit.
In response to the question of how he happened to be driving, Jerry answered that he "went up town" to get a "T. V. antenna." He got the keys on "the wall where we hang them at." This was the place Judy and he routinely left the car keys. At the hearing, Jean answered the trial court's question as to whether Jerry had permission to drive her car: "Well, Your Honor, I loaned the car to him and his girlfriend." Asked if she ever reported the car as stolen, she responded: "No sir. I don't consider it was stolen because I had loaned the car to them and he got drunk and that's what happened." There was no proof that she forbade Jerry's use of the automobile and in fact Jerry denied that his mother told him not to drive the car.
Because going to town to acquire a TV antenna could be construed as within the framework of the generic terms of picking up "groceries and stuff," the evidence did not establish as a matter of law that Jerry acted for a prohibited purpose or was outside the scope of the permission given. Even if it could be said that Jerry was not permitted to drive, proof remained from which a jury could find that the mission he set out on was for a purpose to be served by the permission. *595 Strickland, supra; United Svcs &c. Assn. v. Sentry Indem. Co., 147 Ga. App. 217, 218 (1) (248 SE2d 521) (1978); Cotton States &c. Ins. Co., supra. Summary judgment was erroneous.
2. Assuming that Georgia Farm could raise an issue concerning the ruling on Peterman's motion for summary judgment, in view of our determination in Division 1 that a jury issue was presented, the trial court did not err in denying the motion.
Judgment reversed. Banke, P. J., and Birdsong, J., concur.
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542 S.W.2d 184 (1976)
Ex parte Grady MOFFETT.
No. 52635.
Court of Criminal Appeals of Texas.
October 20, 1976.
*185 Ted Butler, Dist. Atty. and Douglas C. Young, Asst. Dist. Atty., San Antonio, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
This is a post conviction habeas corpus proceeding filed pursuant to the provisions of Article 11.07, V.A.C.C.P. in which the petitioner collaterally attacks an order revoking probation. If the order revoking probation is based on no evidencerather than merely insufficient evidencethere is a violation of the due process clause of the United States Constitution and a collateral attack on the order of revocation would be proper. The pertinent facts to be considered follow.
On June 19, 1973, after the appellant entered a plea of guilty before a jury in Cause 73-CR-496, he was found guilty of the offense of robbery. The jury assessed punishment of imprisonment for 10 years and recommended that the appellant be granted probation; probation was granted by the court.
On June 20, 1973, the appellant, after entering a plea of guilty before the court in Cause 73-CR-620-B, was found guilty of the offense of robbery, which was committed on December 16, 1972. The court set punishment of imprisonment for 10 years, and the appellant was sentenced after he waived the time for filing of motions for new trial and in arrest of judgment.
A motion was then filed to revoke probation in Cause 73-CR-496. The sole ground for revocation alleged that "on or about the 20th day of June, A.D.1973 . . . the defendant was convicted of the felony offense of robbery by assault . . ." in Cause 73-CR-620-B. On June 20, 1973, the court revoked probation and sentenced the appellant, the sentences in both causes to be served concurrently. No appeals were taken either from the judgment of conviction in Cause 73-CR-620-B, the judgment when probation was granted in Cause 73-CR-496, or the order revoking probation in Cause 73-CR-496.
The offense which resulted in the conviction in Cause 73-CR-620-B was committed prior to the conviction and the granting of probation in Cause 73-CR-496. The appellant argues that evidence of the commission of the offense which resulted in the conviction in Cause 73-CR-620-B, since it occurred before he was granted probation, could not be used to revoke probation in Cause 73-CR-496. With this contention we agree.
*186 The condition of probation in Cause 73-CR-496 is that the probationer "neither commit nor be convicted of any offense against the laws of Texas . . ." The statutory condition of probation is that a probationer shall "[c]ommit no offense against the laws of this State or of any other State or of the United States." Article 42.12, Sec. 6 a, V.A.C.C.P. The appellant urges that the part of the condition imposed that provides the probationer not be convicted of any offense is unreasonable and void.[1]
All of the statutory conditions of probation require certain conduct of the probationer or prohibit certain conduct by the probationer following the granting of probation. The statutory conditions of probation contained in Article 42.12, Sec. 6, V.A. C.C.P., are:
"(a) Commit no offense against the laws of this State or of any other State or of the United States;
"(b) Avoid injurious or vicious habits;
"(c) Avoid persons or places of disreputable or harmful character;
"(d) Report to the probation officer as directed;
"(e) Permit the probation officer to visit him at his home or elsewhere;
"(f) Work faithfully at suitable employment as far as possible;
"(g) Remain within a specified place;
"(h) Pay his fine, if one be assessed, and all court costs whether a fine be assessed or not, in one or several sums, and make restitution or reparation in any sum that the court shall determine; and
"(i) Support his dependents."
The condition that the probationer not be convicted of an offense is not consonant with the statutory conditions because it is not dependent on the appellant's conduct following the granting of probation. This is in contrast with the statutory condition that the probationer commit no offense, which is dependent on his conduct after he was placed on probation. A conviction cannot be the ground for revocation of probation if that conviction is for an offense committed before the defendant was granted probation.
The trial court's interpretation of this non-statutory condition, that the appellant not be convicted of an offense, was unreasonable in the circumstances of this case. Since the conviction for which the court revoked probation was for an offense committed before the appellant was granted probation, the order of revocation is unsupported by any proper evidence. There being no evidence to support the order revoking probation, a violation of due process has been shown and the order is subject to collateral attack by habeas corpus.
Moreover, Article 42.12, Sec. 3a, V.A.C.C.P. provides that if probation is granted by a jury the court may impose only the statutory conditions of Article 42.12, Sec. 6, V.A.C.C.P.; O'Neal v. State, 421 S.W.2d 391 (Tex.Cr.App.1967). However, when probation is recommended by a jury the trial court may flesh out and make more specific and definite the statutory conditions of probation. Flores v. State, 513 S.W.2d 66 (Tex.Cr.App.1974). The condition of probation permitting revocation for conviction does not flesh out or make more specific and definite a statutory condition;[2] it departed from the statutory condition and imposed a distinctly separate condition as it was interpreted in this case.
The relief requested is granted. It is ordered that the order revoking probation be set aside.
*187 Opinion approved by the Court.
ONION, P. J., concurs in the result.
NOTES
[1] In Peach v. State, 498 S.W.2d 192 (Tex.Cr. App.1973), this Court refused to discuss whether a non-statutory condition of probation was reasonable in light of the fact that the non-statutory condition was not the ground for revocation. Subsequently, in Salinas v. State, 514 S.W.2d 754 (Tex.Cr.App.1974), a non-statutory condition of probation imposing a 9:00 p. m. curfew was discussed and held to be reasonable.
[2] A similar condition of probation that the probationer should not commit and be convicted of an offense against the laws of this state did not require proof of a conviction but only proof of the commission of the offense. Hancock v. State, 491 S.W.2d 139 (Tex.Cr.App.1973).
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Case: 17-60843 Document: 00515090294 Page: 1 Date Filed: 08/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60843 August 23, 2019
Lyle W. Cayce
CALVIN CANNADY, Clerk
Plaintiff - Appellant
v.
CLAY COUNTY MISSISSIPPI; SHERIFF EDDIE SCOTT,
Defendants - Appellees
Appeal from the United States District Court
Northern District of Mississippi
USDC No. 1:15-CV-44
Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
PER CURIAM:*
Calvin Cannady alleges that he was detained for a year without access
to judicial officers in violation of his Fourteenth Amendment due process
rights. After his release, Cannady sued Clay County, Mississippi and Sheriff
Eddie Scott for constitutional violations under 42 U.S.C. § 1983 and related
state law claims. The district court held a two-day bench trial before entering
judgment in favor of Clay County and Sheriff Scott. Cannady only appeals the
* 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: 17-60843 Document: 00515090294 Page: 2 Date Filed: 08/23/2019
No. 17-60843
district court’s judgment that Sheriff Scott was entitled to qualified immunity,
which we AFFIRM.
I.
The courts in Clay County open four times a year for criminal matters:
in January, April, July, and October. During the October 2011 term, a grand
jury indicted Cannady on a burglary charge. In March of 2012, Cannady was
arrested. He posted bail in West Point, Mississippi and was released on bond
until the first day of the July 2012 term. At that time, Cannady waived his
arraignment and entered a plea of not guilty. Judge Lee Coleman appointed
Jeff Hosford, a public defender, as Cannady’s counsel and confirmed an
October trial date. Judge Coleman released Cannady on bond until trial after
Cannady signed two acknowledgments affirming that (1) he had been
appointed counsel, (2) he must appear in court on October 9, 2012, and (3) if he
failed to appear, his bond would be revoked and he would be jailed.
Cannady failed to appear for trial on October 9 and 10, 2012. After
learning that Hosford was not in touch with Cannady, the prosecutor requested
that a bench warrant issue for Cannady’s arrest. Judge Coleman issued the
bench warrant.
On October 29, 2012, Cannady was arrested by Flowood, Mississippi
police officers and detained in Rankin County pursuant to the bench warrant.
He was transferred to Clay County, and his case was placed on the January
2013 criminal docket. However, a new public defender, Mark Cliett, took over
prior to the start of the term, resulting in a continuance until April. Prior to
the April term, however, Cliett realized he had a conflict of interest and
withdrew as counsel. Austin Vollor was appointed Cannady’s counsel on April
5, 2013. Vollor requested continuances in April and July to investigate the
case. As a result, Cannady’s case was continued until October 14, 2013, at
which point the charge against Cannady was dismissed.
2
Case: 17-60843 Document: 00515090294 Page: 3 Date Filed: 08/23/2019
No. 17-60843
In March 2015, Cannady filed a complaint against Clay County and
Sheriff Scott, asserting violations of his Sixth and Fourteenth Amendment
rights under 42 U.S.C. § 1983 and related state law claims. After two years of
pretrial proceedings, the district court held a two-day bench trial before
entering judgment in favor of Sheriff Scott and Clay County. Cannady only
appeals the district court’s judgment that Sheriff Scott was entitled to qualified
immunity
II.
On an appeal from a bench trial, the court reviews questions of law de
novo and findings of fact for clear error. Water Craft Mgmt. LLC v. Mercury
Marine, 457 F.3d 484, 488 (5th Cir. 2006) (quoting In re Mid-South Towing
Co., 418 F.3d 526, 531 (5th Cir. 2005)). “Reversal for clear error is warranted
only if the court has ‘a definite and firm conviction that a mistake has been
committed.’” Id. (quoting Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375
(5th Cir. 2000)).
III.
A government official is entitled to qualified immunity when his conduct
(1) did not violate a plaintiff’s constitutional right or (2) “was objectively
reasonable in light of clearly established law” at the time of the violation.
Harmon v. Dallas Cty., 927 F.3d 884, 892 (5th Cir. 2019). Whether or not an
official’s conduct violates clearly established law depends on whether “every
‘reasonable official would have understood that what he is doing violates [a]
right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). The burden is on Cannady to demonstrate
that Sheriff Scott is not entitled to qualified immunity. McClendon v. City of
Columbia, 305 F.3d 314, 323 (5th Cir. 2002).
Cannady puts forth a two-part argument for why Sheriff Scott is not
entitled to qualified immunity. First, Sheriff Scott failed to transport Cannady
3
Case: 17-60843 Document: 00515090294 Page: 4 Date Filed: 08/23/2019
No. 17-60843
to appear before the court on January 23, 2013, as required by his statutory
duties as Sheriff and the bench warrant. Second, the failure to transport
prevented Cannady from accessing “judicial officers charged with
implementing constitutional criminal procedure[s]” in violation of the
Fourteenth Amendment. Jauch v. Choctaw Cty., 874 F.3d 425, 435 (5th Cir.
2017). Cannady’s argument fails at each prong.
The testimony presented at trial demonstrates that neither Sheriff
Scott’s statutory duties under Miss. Code Ann. § 19-25-35 nor the bench
warrant’s mandate required Sheriff Scott to present Cannady in court on
January 23, 2013. The district court concluded that it “is unrefuted that Sheriff
Scott complied with the intent of Judge Coleman in the execution of the bench
warrant at issue in this case” when he arrested Cannady and had him available
for an appearance. This conclusion is supported by Judge Coleman’s testimony,
which states that Sheriff Scott would not have brought Cannady to court
unless someone, such as his counsel or the prosecutor, had requested it.
Cannady does not argue that his counsel or the prosecutor requested his
appearance at court. In fact, his counsel requested a continuance to April. The
record makes clear that Sheriff Scott did not control whether Cannady was
called to court on January 23, 2013. 1
Even if Sheriff Scott had controlled whether Cannady appeared at court
on January 23, 2013, the district court correctly concluded that Cannady’s
circumstances are too distinct from Jauch to make out a constitutional
violation. The plaintiff in Jauch was arrested in April of 2012. 874 F.3d at 428.
1 While Cannady was in detention, he did file pro se motions with the clerk’s office
requesting a hearing before the court and a speedy trial. However, Cannady was represented
by counsel who made no such motions before the court. And regardless, Cannady only appeals
Sheriff Scott’s entitlement to qualified immunity. Whether the clerk’s office failed to alert the
court of his motions has no bearing on whether Sheriff Scott violated Cannady’s Fourteenth
Amendment due process rights, and Cannady does not argue to the contrary.
4
Case: 17-60843 Document: 00515090294 Page: 5 Date Filed: 08/23/2019
No. 17-60843
Upon her arrest, she was told she could not appear in court until August of
2012. Id. As a result, she was held for ninety-six days without the opportunity
to post bail or have counsel appointed. Id. This “[p]rolonged pre-trial detention
without the oversight of a judicial officer and the opportunity to assert
constitutional rights” violated the plaintiff’s Fourteenth Amendment right to
procedural due process. Id. at 434.
Though Cannady also endured a detention of almost a year, he was
afforded far more process than the plaintiff in Jauch. He originally appeared
in court in July of 2012 for his arraignment, at which time the court appointed
counsel, confirmed a trial date, and set bail. Cannady was arrested after this
appearance because he failed to appear for his trial. At that time, Cannady’s
bond was revoked and a bench warrant was issued for his arrest. He was then
arrested pursuant to the bench warrant and detained to ensure his appearance
at trial in January 2013. This sequence of events, in which Cannady was
provided with access to a judicial officer who afforded him proper process prior
to his detention, differentiates his claim from that presented in Jauch.
Moreover, while his detention continued for an extended period of time, the
evidence presented at trial established that Cannady was not barred from
appearing before a judicial officer. Rather, his counsel––who continued his case
in January, April, and July of 2013––never filed a motion for Cannady to
appear.
As we agree with the district court that Sheriff Scott did not prevent
Cannady’s transport to the court on January 23, 2013 and did not violate
Cannady’s right to due process, we also agree that Sheriff Scott’s conduct was
not objectively unreasonable in light of clearly established law. Sheriff Scott is
entitled to qualified immunity.
IV.
Cannady only reserved for appeal the question of whether Sheriff Scott
5
Case: 17-60843 Document: 00515090294 Page: 6 Date Filed: 08/23/2019
No. 17-60843
is entitled to qualified immunity. However, he briefly alleges before this court
that Sheriff Scott is a final policymaker sufficient to make Clay County liable
for his actions under Monell v. Dep't of Soc. Serv., 436 U.S. 658, 694 (1978).
Even if Cannady preserved this argument, it cannot succeed without an
underlying constitutional violation, which Cannady did not establish.
V.
For the foregoing reasons, we AFFIRM the district court’s judgment
dismissing Cannady’s claims against Sheriff Scott and Clay County.
6
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359 F.2d 292
John W. STAGGERS, individually and/or as assignee of and/or attorney in fact for Young H. Wooh, doing business under the firm name and style of Overseas Juristical Agencies, assignee of and/or attorney in fact for Kongsung Dyestuff Co. Ltd., Plaintiff,v.OTTO GERDAU COMPANY, Inc., and Sembodja Corporation of New York, Defendants-Appellees,Nederlandsche Handel-Maatsch Appij N.V. (also known as The Netherlands Trading Society), Defendant.Raritan Chemical Corporation, Kongsung Dyestuff Co. Ltd. and Harold Wendell Lady, as Administrator of the Estate of John W. Staggers, deceased, Appellants.
No. 249.
Docket 30081.
United States Court of Appeals Second Circuit.
Argued January 26, 1966.
Decided April 11, 1966.
Matthew V. Stepsis, New York City (Davis, Polk, Wardwell, Sunderland & Kiendl, New York City, on the brief), for appellees.
Deane Ramey, New York City, for appellants.
Before FRIENDLY and HAYS, Circuit Judges, and BLUMENFELD, District Judge.*
HAYS, Circuit Judge.
1
The temptation is strong to dismiss this case as a hopeless imbroglio since a series of egregious errors committed by plaintiff's attorney has so far complicated it that it is almost impossible to put it into shape for a consideration of the merits. The fact remains, however, that the merits have never been reached and for all that appears there may be a valid claim for breach of contract. We believe that one more opportunity ought to be given to straighten out the procedural preliminaries so that a trial on the merits can be had. To that end we reverse the orders of the district court and remand the case for further proceedings.
2
The case arises out of two contracts entered into in November 1952, between Kongsung Dyestuff Co. Ltd., a Korean corporation, and Otto Gerdau Company, Inc., a New York corporation, for the sale of 19,000 tons of rice. Appellants seek to recover for a loss totaling $380,000 allegedly sustained as a result of appellees' breach of the contracts in 1953.
3
Although succeeding events have been obscured by alternative and sometimes contradictory positions taken by appellants, the following seems to have occurred:
4
On September 17, 1956, Kongsung delivered to Overseas Juristical Agencies, a Korean law firm, an instrument designating
5
"OVERSEAS JURISTICAL AGENCIES * * our true and lawful attorney in fact, for our organization or as individuals, and in our name, place and stead, to demand and institute legal proceedings for collecting and receiving all sums of money which [are] or may become due, owing, payable and belonging or assigned to us or detained for us by any and all persons whatsoever. And, upon receipt thereof, to execute and deliver effectual receipts, releases and discharges therefor."
6
On March 15, 1957, Overseas delivered to John W. Staggers, an attorney and resident of Maryland, an "Assignment of Claim," which reads in part:
7
"Whereas Otto Gerdau Company and Sambodja Corporation of New York is indebted to the said assignor in the sum of Three Hundred Eighty Thousand Dollars ($380,000) for and on account of Letters of Credit furnished for the purchasing of rice and whereas the said assignor has agreed to assign the said debt to the said assignee for the sum of One Dollar ($1.00).
8
Now this indenture witnesseth, that in consideration of the sum of One Dollar ($1.00) paid by the said assignee, the receipt whereof the said assignor hereby acknowledges, they the said assignors, doth [sic] hereby assign to the said assignee the said debt of Three Hundred Eighty Thousand Dollars ($380,000) now owning [sic] to them by the said debtor, and all their right, title and interest both legal and equitable therein." (Emphasis added.)
9
By the first instrument Overseas received only a general power of attorney, whereas by the second it attempted to convey an "Assignment of Claim." Appellants explain this by directing our attention to a contract between Heu, the president of Kongsung ("A" party), and Wooh, the president of the Far Eastern Trading Co. Inc., and the Chairman of Overseas ("B" party), which was signed on December 8, 1952, and reads in part:
10
"`A' party promised to operate business with `B' party as mutual partners for procurement of foreign rice sales of which are sold to the Office of Procurement, ROK, of contracts, dated, November 15th, 1952 for 10,000 metric tons of rice and November 25th 1952 for 9,000 metric tons of rice." (Emphasis added.)
11
The assignment to Staggers by Wooh, acting as Chairman of Overseas, is assertedly based on this contract. If it is found that Wooh had transferable rights in the contract between Kongsung and appellees, and that he intended to convey his own rights by the assignment, then Staggers must be considered an assignee. An assignee for collection may sue as the real party in interest. See Rosenblum v. Dingfelder, 111 F.2d 406, 407-408 (2d Cir. 1940). The affidavit of Marte Previti, the president of Raritan Chemical Corporation, the New York agent of Kongsung, quotes Wooh as believing that he had conveyed to Staggers a "vested interest in the claim."
12
On January 8, 1959, Staggers, represented by appellants' present counsel, commenced this action in the Southern District of New York, and indicated his uncertainty about his status by using the following caption:
13
"JOHN W. STAGGERS, individually and/or as assignee of and/or attorney in fact for Young H. Wooh, doing business under the firm name and style of OVERSEAS JURISTICAL AGENCIES, assignee of and/or attorney in fact for KONGSUNG DYESTUFF CO. LTD."
14
As part of the pre-trial discovery process, the appellees requested Staggers to produce "all documents" upon which he intended to rely. With the exception of two letters of credit and a few cablegrams, all of the documents were in Korea, in the possession of Kongsung or the government. After lengthy correspondence, Staggers obtained some of the necessary documents from Kongsung, but had to send his son-in-law, Lady, to Korea in order to locate and obtain documents and records (approximately 122 items were photocopied) from the Office of Procurement of the Korean Government. Lady spent several weeks in Korea. On March 12, 1964, at about the time these preparations had been completed, and copies of the documents delivered to appellees' attorneys, Staggers died.
15
On March 24, 1964, Lady was appointed administrator of Staggers' estate by The Orphan's Court of Prince George's County, Maryland. On July 21, 1964, the Orphan's Court authorized Lady to apply, for substitution, pursuant to Rule 25(a) of the Federal Rules of Civil Procedure. On July 27, 1964, Lady moved for substitution; on the return date of the motion, Lady did not appear and the motion was marked off the calendar "without prejudice to movant to restore on proper notice."
16
On March 9, 1965, appellants moved to restore Lady's motion for substitution to the calendar and asked that Lady be substituted as plaintiff.1 The motion was denied. We believe that the relief sought should have been granted.2
17
The initial question presented is whether there was a final decision from which we can entertain an appeal. 28 U.S.C. § 1291.
18
Judge Metzner, in an order dated February 26, 1965, granted summary judgment for appellees, "unless a motion to amend is made no later than 10 days after the date of entry of this order." Appellants moved to amend within the ten day period. When Judge Metzner, by an order dated May 19, 1965, adhered to this February determination, the parts of appellants' motion which asked that the complaint be amended or that a substitution of plaintiffs be permitted, were still pending. Therefore, the May 19th order could not, in itself, have been final. Technically, Judge Ryan's order of August 16, 1965 was not final because dismissal was contingent on the failure of the appeal taken from the May 19th order of Judge Metzner.
19
However, it seems clear that should we dismiss both of these appeals as not taken from a final decision, the district court would then formally dismiss the complaint and the case would come back before us in precisely its present posture. It is to avoid such time consuming and unnecessarily costly procedures that the Supreme Court has recently held that the "requirement of finality is to be given a `practical rather than a technical construction.'" Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed. 199 (1964); see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We therefore hold that the orders are appealable.
20
On April 27, 1964 appellants' attorney filed an affidavit informing the district court of Staggers' death. The motion to substitute Lady was dated July 27, and served by mail on July 28, 1964. Rule 25(a) (1) of the Federal Rules of Civil Procedure provides:
21
"Substitution of Parties
22
(a) Death.
23
(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. * * * Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record * * * the action shall be dismissed as to the deceased party. As amended Jan. 21, 1963, eff. July 1, 1963." (Emphasis added.)
24
Appellants' motion under 25(a) (1) was thus two days late.
25
Appellees argue that "Judge Metzner was required to dismiss this action in which no application for substitution was made before the expiration of 90 days." But the history of the 1963 amendment to Rule 25 makes clear that the 90 day period was not intended to act as a bar to otherwise meritorious actions. See 4 Moore, Federal Practice ¶ 25.01-02 (2d ed. 1965 Supp.).
Rule 25(a) (1) originally read:
26
"If a party dies and the claim is not thereby extinguished, the court within 2 years after the death may order substitution of the proper parties"
27
In 1955, the Advisory Committee on the Federal Rules recommended deletion of the inflexible two year period and the insertion of a "reasonable time" standard. In 1963, the Advisory Committee suggested the present rule and noted:
28
"Present Rule 25(a) (1), together with present Rule 6(b), results in an inflexible requirement that an action be dismissed as to a deceased party if substitution is not carried out within a fixed period measured from the time of the death. The hardships and inequities of this unyielding requirement plainly appear from the cases. * * * The amended rule establishes a time limit for the motion to substitute based not upon the time of the death, but rather upon the time information of the death is provided by means of a suggestion of death upon the record, i. e. service of a statement of the fact of the death."
29
See Notes of Advisory Committee on the Civil Rules, 28 U.S.C. Rule 25 (1964).
30
Rule 6(b) of the Federal Rules of Civil Procedure was also amended in 1963 and the prohibition against extending the time for taking action under Rule 25 was eliminated. The Advisory Committee on the Civil Rules noted: "It is intended that the court shall have discretion to enlarge that period." The amendments of Rules 6(b) and 25(a) (1) provided needed flexibility. It was assumed that discretionary extensions would be liberally granted. Movants under Rule 25 can ordinarily control when a death is "suggested upon the record" and appellants' attorney was under no obligation to file his affidavit of Staggers' death on the date he did. He could have filed it later.
31
Lady's motion for substitution should have been considered timely under Rule 6(b) (2). Lady had to obtain the permission of the Orphan's Court of Prince George's County, Maryland, before applying for substitution; permission was obtained on July 21 and the application served July 28. The real parties in interest are difficult to ascertain even at this date, and numerous, widely dispersed potential claimants had to be consulted before appellants' attorney could ascertain who was to be substituted for Staggers. Of crucial importance is the fact that appellees suffered no prejudice from the two day delay.
32
Appellants' application to amend the complaint to name new plaintiffs, Lady and Kongsung, pursuant to Rule 15 of the Federal Rules of Civil Procedure, should also have been granted. Rule 15(a) may be used to substitute new plaintiffs. See Hackner v. Guaranty Trust Co., 117 F.2d 95 (2d Cir.), cert. denied, 313 U.S. 559, 61 S.Ct. 835, 85 L.Ed. 1520 (1941) (new plaintiff allowed to come into a case by amendment, although action dismissed as to all original plaintiffs because of lack of jurisdictional amount).
The Supreme Court has recently admonished:
33
"Rule 15(a) declares that leave to amend `shall be freely given when justice so requires'; this mandate is to be heeded. See generally, 3 Moore, Federal Practice (2d ed. 1948), ¶¶ 15.08, 15.10. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be `freely given.' Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).
34
Here the amendment was proposed approximately a year after Staggers' death. There is no hint of bad faith or indication that appellees were prejudiced by this delay.
35
Rule 15(c) of the Federal Rules of Civil Procedure reads:
36
"Relation Back of Amendments.
37
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading."
38
No matter who the plaintiffs are, the "transactions" with which we are concerned are those which led to the establishment and breach of the two rice contracts, signed in November 1952, as set forth in the "original pleading." There is no meaningful statute of limitations problem here; the claims of all potential plaintiffs relate back to the date of the original pleading.
39
The documents, exhibits and affidavits submitted to the district court present a confusing picture as to who are the real parties in interest. For example, at various stages of the proceedings, both appellees and appellants have argued that Staggers was not an assignee but merely an "attorney in fact." Appellants presented a document, dated October 22, 1964, in which Kongsung assigned all its rights against appellees to Raritan Chemical Corporation. Our decision is in no way intended to resolve these factual disputes. Appellees may plead the assignment to Raritan Chemical Corporation as a defense against Kongsung. They may challenge the chain of title under which Lady claims as administrator. All of these are issues which can most appropriately be resolved by the trial court. At a trial the judge will be able properly to sift through the numerous documents involved, and can take the testimony of Wooh and others concerned with these transactions.
40
Reversed and remanded for further proceedings not inconsistent with this opinion.
Notes:
*
Of the District Court for Connecticut, sitting by designation
1
Throughout these proceedings Mr. Ramey has acted as attorney for all appellants. His motions were intended to protect the interests of Kongsung and Lady as well as those of Staggers and Raritan Chemical Corporation
2
Appellants also present several alternative arguments premised upon Staggers being an "attorney in fact," and ending with a request that Raritan Chemical Corporation be substituted as plaintiff for Staggers. As to these arguments we need only note that both Raritan Chemical Corporation and appellee Otto Gerdau Company, Inc. are New York corporations. If Raritan Chemical Corporation were made a plaintiff the complete diversity necessary for this action to continue in federal courts would be lost
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930 F.Supp. 360 (1996)
Walter NEELY and Loretta Neely, Plaintiffs,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant.
No. C 94-4120 MWB.
United States District Court, N.D. Iowa, Western Division.
May 29, 1996.
*361 Robert Darling of Sommers, Schwartz, Silver & Schwartz, P.C., Southfield, Michigan, and by William J. Giles, III, Giles Law Office, Sioux City, Iowa, for Plaintiffs Walter and Loretta Neely.
Michael R. Hellige of Shull, Cosgrove, Hellige & Lundberg, Sioux City, Iowa, for Defendant American Family Mutual Insurance Company.
ORDER REGARDING DEFENDANT'S MOTION PURSUANT TO F.R.C.P. 50(b) AND MOTION FOR NEW TRIAL PURSUANT TO F.R.C.P. 59 AND PLAINTIFFS' MOTION, IN THE ALTERNATIVE, FOR NEW TRIAL
BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND ............................................... 362
A. Factual Background ..................................................... 362
1. Walter's status with the Church ..................................... 362
2. The accident and the Church's insurance coverage .................... 363
3. The Neelys' suit against the Church ................................. 364
B. Procedural History ..................................................... 364
1. The present lawsuit ................................................. 364
2. The cross-motions for summary judgment .............................. 365
3. Jury trial .......................................................... 365
4. Post-trial motions .................................................. 366
II. LEGAL ANALYSIS ............................................................ 366
A. American Family's Post-Trial Motion Pursuant to Fed.R.Civ.P. 50(b) ..... 366
1. Applicable standards ................................................ 366
a. Procedural requirements .......................................... 367
b. Evidentiary standard ............................................. 368
*362
2. The Neelys' promissory estoppel claim under Iowa law ................ 369
a. The "clear and definite agreement" requirement ................... 371
b. Evidence of the agreement here ................................... 373
i. Clarity ....................................................... 374
ii. Inducement .................................................... 375
3. Summary ............................................................. 375
B. American Family's Post-Trial Motion Pursuant to Fed.R.Civ.P. 59 ........ 376
C. The Neelys' Motion For New Trial ....................................... 376
III. CONCLUSION................................................................ 377
Perhaps just as important as the right of trial by jury to the just disposition of disputes between parties in civil litigation is the right of the parties to seek post-trial scrutiny of the jury's verdict by the court. The Federal Rules of Civil Procedure provide, in proper circumstances, for relief from the jury's verdict, either by judicial entry of judgment as a matter of law or by order for new trial. In this case, both parties have availed themselves of the court's power of post-trial scrutiny of the jury's verdict. The defendant insurance company, disappointed by a jury verdict finding that promissory estoppel precluded its assertion of policy exclusions to deny coverage, seeks either judgment as a matter of law or a new trial. The plaintiffs, a former pastor injured in a church boiler explosion and his wife, also seek a new trial in the event the court decides to grant the insurance company's post-trial motions. The court must, in the first instance, determine whether sufficient evidence supports the jury's verdict and, in the second, whether the jury's verdict is against the greater weight of the evidence.
I. INTRODUCTION AND BACKGROUND
This post-trial opinion follows a jury verdict for the plaintiffs, Walter and Loretta Neely, on the Neelys' claim of promissory estoppel against the defendant, American Family Mutual Insurance Company ("American Family"). The Neelys' lawsuit stems from an accident on May 4, 1991, in which Walter Neely sustained serious and permanent injuries while attempting to light the boiler in the basement of the Christian Life Fellowship Church ("the Church"). American Family was the liability insurer for the Church, but it refused to defend the Church in the Neelys' lawsuit against the Church ("the underlying lawsuit"), alleging that an exclusion in the Church's insurance policy precluded coverage for Walter Neely, because he was an executive officer or director of the Church at the time of the accident, performing an act within the scope of his duties as an executive officer or director in lighting the boiler at the Church. The Neelys ultimately obtained a default judgment against the Church which established that the Church is liable to the Neelys for the injuries they sustained as a result of the boiler explosion. Subsequently, the Neelys sued American Family for recovery of the default judgment, contending that American Family is estopped to assert the exclusion in the policy upon which its denial of coverage to the Church depended. To gain a better understanding of the nature of the Neelys' claims against American Family, it is helpful to discuss in greater detail the factual background of this litigation, including the Neelys' relationship with the Church, the Church's acquisition of its insurance policy from American Family ("the policy"), Walter Neely's accident at the Church, and the litigation that ensued as a consequence of the accident.
A. Factual Background
1. Walter's status with the Church
Walter and Loretta Neely were two of three incorporators and directors of the Church and also worked as pastors at the Church. Until January 1990, Walter and Loretta each received a salary for their work as pastors and together received a housing allowance, along with payment for maintenance expenses, utility bills, telephone bills, and real estate taxes on their parsonage. On March 20, 1990, at Walter's request, the Church stopped paying Walter his salary. In a letter to the "Church Board of Christian Life Fellowship," dated February 13, 1991, *363 Walter explained the change in circumstances that led to the relinquishment of his salary.[1] In this letter, Walter conveyed to the Church board that although he was relinquishing his salary as pastor, he was not resigning as "Senior Pastor" or "Chairman of this local body." Likewise, the Church's minutes for the Church board meeting on March 24, 1991, reflect that Walter was not resigning as pastor or "corporate head" but was merely giving up his pastoral salary and housing benefits.
From March 20, 1990, to May of 1991, Walter Neely went to the Church every day, attended all Church services, and preached a total of three times. On days when no services were scheduled, Walter did paperwork for the Bible school of which Loretta was the director and did chores around the Church building.
2. The accident and the Church's insurance coverage
On May 4, 1991, Walter went to the Church at the request of Loretta in order to heat the Church building for services the following day. Walter found the building thermostats indicated a temperature of fifty degrees. Lighting the boiler was the only way to heat the Church, and Pastor Fred Moore, a director at the Church, had advised Walter that the boiler could be lit by manipulating the switches on the thermostats. Accordingly, Walter adjusted the thermostats to a setting of seventy degrees in order to start the building's boiler. The boiler subsequently exploded, severely injuring Walter.
At the time of this accident, the Church had a business liability policy with American Family. The insurance policy, policy number 14-X086686, contained an effective date from January 29, 1991, to January 28, 1992. However, Pastor Fred Moore, the individual who obtained the policy for the Church, contended that he never received the policy in its entirety. The policy Moore claims he received also bears the number 14-X086686; however, it covers the time period from December 10, 1986, to December 10, 1988, and consists of nothing more than a declarations page, a schedule of positions covered, and two endorsements which modified any insurance policy coverage then in place. The entire text of the body of the actual insurance policy is missing. Section II of the policy,[2] which Moore alleges was missing from the policy that he received, provided, in part:
This section of the policy protects you and your business against claims that result from injury to others, or damage to others' property. Some words and phrases in this section appear in bold type. They have special meaning and are explained under Definitions. The word insured means any person or organization qualifying as such under WHO IS AN INSURED.
The policy subsequently defines an insured as follows:
*364 1. If you are shown in the declarations as:
. . . . .
c. an organization other than a partnership or joint venture, you are an insured. Your executive officers and directors are insureds, but only with respect to their duties as your officers and directors. Your stockholders are also insureds but only with respect to their liability as stockholders.
2. Each of the following is also an insured:
a. your employees, other than your executive officers, but only for acts within the scope of their employment by you. However, none of these employees is an insured for:
(1) bodily injury or personal injury to you or to a co-employee while in the course of his or her employment, or....
Section II of the policy also contains medical payments coverage of $5,000, but with the following exclusion:
We will not pay expenses for bodily injury:
a. To any insured.
3. The Neelys' suit against the Church
On May 23, 1993, the Neelys filed a lawsuit against the Church in the United States District Court for the Northern District of Iowa.[3] On April 6, 1993, a summons was served on Pastor Moore as the Secretary-Treasurer of the Church. The Neelys filed a request for default in the 1993 case on May 27, 1993. On November 23, 1993, the Honorable Donald E. O'Brien granted the Neelys' motion for default judgment against the Church. On November 23, 1994, this court entered judgment against the Church and in favor of Walter Neely in the sum of $712,053.62. The court also entered judgment against the Church and in favor of Loretta Neely in the sum of $135,000.00.[4] The judgment against the Church remained unsatisfied.
B. Procedural History
1. The present lawsuit
The court now turns to the procedural history of the present lawsuit. After obtaining a default judgment against the Church, which they were unable to satisfy, the Neelys brought this diversity action against American Family pursuant to Iowa Code § 516.1 to recover the unsatisfied judgment in the underlying lawsuit.[5] American Family filed a *365 timely answer in which it asserted that it had no duty to defend the Church or pay any judgment rendered against it on the ground that certain contractual provisions excluded the Neelys from coverage because they were deemed insureds under the policy.
2. The cross-motions for summary judgment
Both the Neelys and American Family moved for summary judgment. The Neelys claimed that the doctrine of collateral estoppel barred American Family from litigating its defenses in this action since it did not provide a defense to the Church in the underlying lawsuit. In its motion, American Family argued that Walter Neely was an insured, as defined under the policy, at the time of his accident, and as such, the exclusion under Section II of the policy barred the Neelys' recovery for Walter's injuries under the Church's policy.
On January 16, 1996, the court denied both parties' motions for summary judgment. The court denied the Neelys' motion, finding that the default judgment in the underlying lawsuit can have no preclusive effect on the suit between the Neelys and American Family.[6] Alternatively, the court found that even if the doctrine of collateral estoppel was applicable to default judgments, American Family was not collaterally estopped from litigating Walter's status with the Church in this case. In addition, the court denied American Family's motion for summary judgment, finding material issues of fact concerning Walter's role in the Church at the time of his accident. The court also concluded that a material issue of fact had been generated regarding whether the policy was ever received by the Church and, if not, whether the policy received by the Church in 1987 contained the same limitations and exclusions found in the complete policy.
3. Jury trial
Trial by jury in this case began on April 9, 1996. At the conclusion of the Neelys' evidence, American Family made a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), and the court denied its motion. American Family renewed this motion at the conclusion of its own evidence on April 10, 1996, and the court took its motion under advisement. The case was submitted to the jury on the theories that (1) Walter Neely was not an officer or director of the Church acting within his duties as an officer or director when he was injured, and therefore he fell within the general coverage of the policy, not within any exclusion; (2) American Family was precluded by equitable estoppel from asserting the exclusions upon which it relied on the ground that it had concealed from the Church the actual coverage provided; and (3) American Family was precluded by promissory estoppel from asserting the exclusions upon which it relied on the ground that it provided coverage different from what it had promised.
On April 11, 1996, the jury returned a verdict in favor of the Neelys. Specifically, the jury found the following: (1) that Walter Neely was an executive officer or director of the Church on May 4, 1991; (2) that Walter Neely's actions were with respect to his duties as an executive officer or director of the Church; (3) that American Family did not "deliver" the complete insurance policy to the Church, as "delivery" is defined in Final Instruction No. 20, prior to the accident giving rise to this lawsuit; and (4) that American Family provided to the Church an insurance policy with terms contrary to promises.[7]*366 However, the jury found that the Neelys did not prove their claim of equitable estoppel, denominated in the jury instructions as "concealment of terms" of the Church's insurance policy.[8]
4. Post-trial motions
On April 17, 1996, American Family filed a renewed motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b). On that same date, American Family also filed a motion for new trial relative to the claims of Loretta Neely, pursuant to Fed.R.Civ.P. 59, on the ground that "there was sufficient evidence in the record to warrant a submission to the jury as to whether or not Loretta Neely was an executive officer or board member at the time of the accident and whether or not the accident and damages were relative to her duties as an officer or director." American Family's Mot. for New Trial, p. 1. On May 1, 1996, the Neelys resisted American Family's renewed motion for judgment as a matter of law and its motion for new trial. In their resistance to American Family's renewed motion pursuant to Fed.R.Civ.P. 50(b), the Neelys also filed an alternative motion for a new trial in the event the court decided to grant American Family's renewed motion for judgment as a matter of law.
The court heard oral arguments on American Family's post-trial motions on May 21, 1996. The Neelys were represented by Robert Darling of Sommers, Schwartz, Silver & Schwartz, P.C., in Southfield, Michigan, and by William J. Giles, III, Giles Law Office, in Sioux City, Iowa. American Family was represented by Michael R. Hellige of Shull, Cosgrove, Hellige & Lundberg in Sioux City, Iowa. With this extensive factual and procedural background in mind, the court turns to consideration of American Family's renewed motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b).
II. LEGAL ANALYSIS
A. American Family's Post-Trial Motion Pursuant to Fed.R.Civ.P. 50(b)
American Family has renewed its motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50. Before proceeding to the disposition of this motion, the court will first examine the standards for disposition of a motion made pursuant to Fed.R.Civ.P. 50(b).
1. Applicable standards
Federal Rule of Civil Procedure 50 provides for a post-trial motion for judgment as a matter of law, in relevant part, as follows:
(a) JUDGMENT AS A MATTER OF LAW.
*367 (1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment. (b) RENEWAL OF MOTION FOR JUDGMENT AFTER TRIAL; ALTERNATIVE MOTION FOR NEW TRIAL. Whenever a motion for a judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Such a motion may be renewed by service and filing not later than 10 days after entry of judgment. A motion for a new trial under Rule 59 may be joined with a renewal of the motion for judgment as a matter of law, or a new trial may be requested in the alternative....
Fed.R.Civ.P. 50(a) & (b).[9]
a. Procedural requirements
Under Fed.R.Civ.P. 50(b), a litigant's post-trial motion for judgment as a matter of law on any claim may not be entertained unless the movant previously moved for judgment as a matter of law on that claim at the close of all evidence pursuant to Fed.R.Civ.P. 50(a). Rockport Pharmacy, Inc. v. Digital Simplistics, Inc., 53 F.3d 195, 197 (8th Cir.1995) (post-trial motion for judgment as a matter of law may not advance additional grounds not raised in pre-verdict motion); Smith v. Ferrel, 852 F.2d 1074, 1075 (8th Cir.1988) (record disclosed that no motion for "directed verdict" had been made at the close of all evidence, "appellant therefore cannot question the sufficiency of the evidence either before the district court through a motion for judgment notwithstanding the verdict or on appeal."); Hubbard v. White, 755 F.2d 692, 695 (8th Cir.) (motion for "directed verdict" at the close of evidence was an "essential condition precedent" to a motion for "judgment notwithstanding the verdict," and where no such motion was made at the close of evidence, the j.n.o.v. motion was barred), cert. denied, 474 U.S. 834, 106 S.Ct. 107, 88 L.Ed.2d 87 (1985); Myers v. Norfolk Livestock Mkt., Inc., 696 F.2d 555, 558 (8th Cir.1982); see also Redd v. City of Phenix City, Ala., 934 F.2d 1211, 1214 (11th Cir.1991); Yohannon v. Keene Corp., 924 F.2d 1255, 1261 (3d Cir.1991).[10] The motion for judgment as a matter of law at the close of the evidence must assert each of the grounds subsequently relied upon in the post-trial motion for judgment as a matter of law. Midamar Corp. v. National-Ben Franklin Ins. Co., 898 F.2d 1333, 1337 (8th Cir.1990); Lowe v. Conlee, 742 F.2d 1140, 1141 (8th Cir.1984); see also Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950, 956 (5th Cir.1993); McCann v. Texas City Refining, Inc., 984 F.2d 667, 671 (5th Cir. *368 1993). Thus, a party who either fails to move for judgment as a matter of law on any claim at the conclusion of the evidence or fails to renew at that time a motion for judgment as a matter of law made earlier than the close of the evidence has waived a post-trial motion for judgment as a matter of law pursuant to Rule 50(b), and instead must seek relief in a motion for new trial pursuant to Fed.R.Civ.P. 59. Myers, 696 F.2d at 558; see also Purcell, 999 F.2d at 956 (failure to renew motion waives right to file a post-verdict motion for judgment); McCann, 984 F.2d at 672 (motion for judgment as a matter of law made earlier than the close of evidence, but not renewed at the close of all evidence, "cannot serve as a predicate for a motion for judgment notwithstanding the verdict."); Yohannon, 924 F.2d at 1261 (party foreclosed from pursuing a motion for judgment notwithstanding the verdict for this reason is limited at the time of post-trial motions to a motion for new trial); Riverview Inv., Inc. v. Ottawa Community Improvement Corp., 899 F.2d 474, 477 (6th Cir.) ("party seeking a judgment n.o.v. must, as a prerequisite, move for a directed verdict at the close of all the evidence or renew such motion if made prior to the close of all the evidence."), cert. denied, 498 U.S. 855, 111 S.Ct. 151, 112 L.Ed.2d 117 (1990); Gutzwiller v. Fenik, 860 F.2d 1317, 1330 (6th Cir.1988) (party who fails to renew prior motion waives the original motion and is precluded from questioning the sufficiency of the evidence on appeal). American Family made a motion for judgment as a matter of law at the conclusion of the Neelys' evidence and at the conclusion of its own case. Therefore, American Family has not waived a post-trial motion for judgment as a matter of law pursuant to Rule 50(b).
b. Evidentiary standard
In determining a motion for j.n.o.v. (and in the current parlance of Federal Rule of Civil Procedure 50, a motion for "judgment as a matter of law"), the court in White v. Pence, 961 F.2d 776 (8th Cir.1992), observed that
the question is a legal one, whether there is sufficient evidence to support a jury verdict. This court must analyze the evidence in the light most favorable to the prevailing party and must not engage in a weighing or evaluation of the evidence or consider questions of credibility. See Dace v. ACF Indus., Inc., 722 F.2d 374, 375-76 (8th Cir.1983), supplemented, 728 F.2d 976 (1984). We have also stated that to sustain a motion for j.n.o.v., all the evidence must point one way and be susceptible of no reasonable inference sustaining the position of the nonmoving party. Id. at 375; Washburn v. Kansas City Life Ins. Co., 831 F.2d 1404, 1407 (8th Cir.1987); Brown [v. Syntex Lab., Inc.], 755 F.2d [668,] 671 [(8th Cir.1985)]. These principles have no application to the consideration of a motion for new trial on the ground that the verdict is against the weight of the evidence.
Pence, 961 F.2d at 779 (footnotes omitted); see also Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir.1996); Butler v. French, 83 F.3d 942, 943 (8th Cir.1996) (citing these standards from Pence); Simmons Poultry Farms, Inc. v. Dayton Road Dev. Co., 82 F.3d 217, 218-19 (8th Cir.1996) (citing Pence); Sherlock v. Quality Control Equip. Co., 79 F.3d 731, 735 (8th Cir.1996); Fox v. T-H Continental Ltd. Partnership, 78 F.3d 409, 413 (8th Cir.1996) (citing Pence); Nelson, 26 F.3d at 800 (citing Pence); First Dakota Nat'l Bank v. Saint Paul Fire & Marine Ins. Co., 2 F.3d 801, 808-09 (8th Cir.1993). Thus, this standard requires the district court to:
"consider the evidence in the light most favorable to the prevailing party, assume that the jury resolved all conflicts of evidence in favor of that party, assume as true all facts which the prevailing party's evidence tended to prove, give the prevailing party the benefit of all favorable inferences which may reasonably be drawn from the facts, and deny the motion, if in light of the foregoing, reasonable jurors could differ as to the conclusion that could be drawn from the evidence."
Minneapolis Community Dev. Agency v. Lake Calhoun Assoc., 928 F.2d 299, 301 (8th Cir.1991) (quoting Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 989 (8th Cir. 1989)); see also Stephens v. Johnson, 83 F.3d 198, 199-200 (8th Cir.1996) (citing Whitnack v. Douglas County, 16 F.3d 954, 956 (8th *369 Cir.1994), in turn, quoting Hastings v. Boston Mut. Life Ins. Co., 975 F.2d 506, 509 (8th Cir.1992)); Haynes v. Bee-Line Trucking Co., 80 F.3d 1235, 1238 (8th Cir.1996); Nelson, 26 F.3d at 800 (reiterating these factors, citing Pence, 961 F.2d at 779); McAnally v. Gildersleeve, 16 F.3d 1493, 1500 (8th Cir. 1994) (same).
This standard for consideration of a motion for judgment as a matter of law accords the jury's verdict substantial deference. Tilson v. Forrest City Police Dep't, 28 F.3d 802, 806 (8th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995); McAnally, 16 F.3d at 1500. However, even with this deference to the jury's verdict, the jury cannot be accorded "the benefit of unreasonable inferences, or those `at war with the undisputed facts,'" McAnally, 16 F.3d at 1500 (quoting City of Omaha Employees Betterment Ass'n v. City of Omaha, 883 F.2d 650, 651 (8th Cir.1989), in turn, quoting Marcoux v. Van Wyk, 572 F.2d 651, 653 (8th Cir.), cert. dismissed, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978)); see also Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir.1996) (a mere scintilla of evidence is inadequate to support a jury verdict) (quoting City of Omaha, 883 F.2d at 651), but the court must still defer to the jury's resolution of conflicting testimony. Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 2792-93, 61 L.Ed.2d 560 (1979).
With these principles in mind concerning the standards for resolving post-trial motions under Federal Rule of Civil Procedure 50, the court turns to an examination of the evidence introduced at trial concerning the Neelys' claims to determine whether post-trial relief from the jury's verdict against American Family is appropriate.
2. The Neelys' promissory estoppel claim under Iowa law
American Family moves for judgment as a matter of law primarily on the ground that there was insufficient clear and convincing evidence to support the Neelys' claim of promissory estoppel.[11] Specifically, American Family alleges that there was "insufficient clear and convincing evidence of a clear and definite request for, and promise of, coverage that would reimburse the Church for tort liability damages incurred relative to claims made against the Church by its executive *370 officers or directors with respect to their duties as officers or directors."[12] American Family's Brief in Support of Its 50(b) Motion, p. 3. In addition, American Family claims that there was insufficient evidence of reliance by the Church on the alleged promise of coverage and of any detriment suffered by the Church as a consequence of the breach of the promise. The Neelys contend, however, that there was sufficient evidence of a clear and definite agreement between Pastor Moore, as representative of the Church, and American Family's representatives, Ron Holmberg and Steven Reinsch, that all persons, including executive officers and directors, were to be covered by this policy. The Neelys further argue that there was sufficient evidence in the record indicating that Pastor Moore relied on American Family's promise of coverage for all persons, as well as sufficient evidence in the record of the harm suffered by the Church due to the absence of coverage under the policy and by the Neelys as a consequence of the unsatisfied default judgment. Having introduced the general arguments of the parties, the court proceeds to a discussion of the elements of a promissory estoppel claim under Iowa law and an analysis of the evidence in the record pertaining to this claim.[13]
Under Iowa law, the elements of promissory estoppel are: (1) a clear and definite agreement; (2) proof that the party seeking to enforce the agreement reasonably relied upon it to the party's detriment; and (3) a finding that the equities support enforcement of the agreement. In re Marriage of Harvey, 523 N.W.2d 755, 756 (Iowa 1994) (citing Merrifield v. Troutner, 269 N.W.2d 136, 137 (Iowa 1978)); Farmers State Bank v. United Central Bank of Des Moines, 463 N.W.2d 69, 71 (Iowa 1990); National Bank of Waterloo v. Moeller, 434 N.W.2d 887, 889 (Iowa 1989) (finding insufficient evidence of promissory estoppel where bank asserted a production credit association promised it a superior lien on a piece of property); City of Cedar Rapids v. McConnell-Stevely-Anderson Architects & Planners, P.C., 423 N.W.2d 17, 19 (Iowa 1988) (applying promissory estoppel against a party asserting the invalidity of an ordinance); Estate of Graham v. Fergus, 295 N.W.2d 414, 418 (Iowa 1980); Merrifield v. Troutner, 269 N.W.2d 136, 137 (Iowa 1978); Johnson v. Pattison, 185 N.W.2d 790, 795 (Iowa 1971); Miller v. Lawlor, 66 N.W.2d 267, 273 (Iowa 1977); see also Simmons Poultry Farms, Inc. v. Dayton Road Development Co., 82 F.3d 217, 220 (8th Cir.1996) (applying elements of promissory estoppel under Iowa law) (citing Uhl v. City of Sioux City, 490 N.W.2d 69, 73 (Iowa Ct.App.1992)); Uhl v. City of Sioux City, 490 N.W.2d 69, 73 (Iowa Ct.App.1992); Chipokas v. Hugg, 477 N.W.2d 688, 690 (Iowa Ct.App. 1991) (citing National Bank of Waterloo, 434 *371 N.W.2d at 889); Bradshaw v. Wakonda Club, 476 N.W.2d 743, 748 (Iowa Ct.App.1991); In the Matter of Scheib Trust, 457 N.W.2d 4, 9 (Iowa Ct.App.1990). The party asserting the doctrine of promissory estoppel as its theory of recovery has the burden of proving this theory, and "strict proof of all elements is required." National Bank of Waterloo, 434 N.W.2d at 889 (citing Pillsbury Co. v. Ward, 250 N.W.2d 35, 39 (Iowa 1977)). In order to address each of the points raised by American Family in its renewed motion, the court will analyze the evidence of record in this case to determine whether there is sufficient evidence of a clear and definite agreement between the Church and American Family to support the jury's verdict on the Neelys' promissory estoppel claim.[14]
a. The "clear and definite agreement" requirement
The first element of promissory estoppel the Neelys must prove under Iowa law is the existence of a "clear and definite agreement" between the parties. See In re Marriage of Harvey, 523 N.W.2d at 756; Farmers State Bank, 463 N.W.2d at 71; National Bank of Waterloo, 434 N.W.2d at 889. No Iowa case has squarely defined a "clear and definite agreement" for purposes of satisfying the first element of promissory estoppel; however, in National Bank of Waterloo v. Moeller, the Iowa Supreme Court compared three cases interpreting this element, attempting to distinguish the conclusions of the court regarding whether the agreement in each case was a "clear and definite agreement." National Bank of Waterloo, 434 N.W.2d at 889-90 (discussing In re Estate of Graham, 295 N.W.2d at 418-419; Johnson, 185 N.W.2d at 795-97; Miller, 66 N.W.2d at 272-75); see also Chipokas, 477 N.W.2d at 690-91 (discussing National Bank of Waterloo and the Iowa Supreme Court's analysis of the three aforementioned cases). In Miller v. Lawlor, the Iowa Supreme Court upheld an oral promise by a landowner not to build a home on his property that would block his neighbor's view.[15]Miller, 66 N.W.2d at 272-75. *372 In addition, in Johnson v. Pattison, the Iowa Supreme Court concluded that a promise not to use land for commercial purposes met the requirement of a "clear and definite agreement" to sustain a claim for promissory estoppel.[16]Johnson, 185 N.W.2d at 795. In comparing its analysis in Miller and Johnson, the court indicated that the first element was satisfied in these two cases, where there was "a clear understanding by the promisor that the promisee was seeking an assurance upon which he could rely and without which he would not act." National Bank of Waterloo, 434 N.W.2d at 889; see also Chipokas, 477 N.W.2d at 691.
In National Bank of Waterloo, on the other hand, the court noted that a clear and definite agreement was lacking in Estate of Graham v. Fergus, where the court had found that deposition testimony regarding a conversation in which a decedent stated that he wanted to "keep the farm in the family" was insufficient to prove an agreement to devise the property to his brother, the other party to the conversation. See National Bank of Waterloo, 434 N.W.2d at 889 (citing Graham, 295 N.W.2d at 419) (no evidence was presented proving that the parties intended to be bound by the conversation, and the deposition testimony did not indicate that the alleged agreement was either "clear" or "definite"). In differentiating between its conclusion in Graham and its decisions in Miller and Johnson, the Iowa Supreme Court did not offer an explicit definition of a "clear and definite agreement." Instead, the court placed a "dual emphasis on clarity and inducement, [which] parallels the Restatement (Second) definition of an agreement for purposes of promissory estoppel as `[a] promise which the promisor should reasonably expect to induce action ... on the part of the promisee.'" National Bank of Waterloo, 434 N.W.2d at 889 (quoting Restatement (Second) of Contracts § 90 (1981)). Therefore, in the case before it in National Bank of Waterloo, the Iowa Supreme Court held that a letter concerning subordination of a mortgage was conditional and that it would be unreasonable to find that one was induced by the words of the letter to take action. National Bank of Waterloo, 434 N.W.2d at 890; see also Chipokas, 477 N.W.2d at 691.
The Iowa Court of Appeals conducted a similar comparison of the same three Iowa Supreme Court cases in Chipokas v. Hugg, 477 N.W.2d 688 (Iowa Ct.App.1991). There, the plaintiff asserted the doctrine of promissory estoppel, claiming he submitted a "Proposal To Lease" in order to obtain an assurance upon which he could and did rely by preparing plans and specifications for the property. Chipokas, 477 N.W.2d at 691. In addition, plaintiff claimed the defendant understood that the proposal was intended to create obligations upon which the plaintiff would rely. Id. In examining whether the plaintiff had met the first element of his claim of promissory estoppel, the Iowa Court of Appeals concluded that
[w]hether we focus solely on the words of the proposal or consider its meaning in the surrounding circumstances, we are unable to find a clear and definite agreement that the [defendant] would reasonably understand to induce action. *373 Id. (finding that the language of the proposal to lease was decidedly conditional and some details in the proposal were left for future negotiation).
Most recently, in Simmons Poultry Farms, Inc. v. Dayton Road Dev. Co., the Eighth Circuit Court of Appeals, applying Iowa law to a promissory estoppel case, overturned a district court's denial of judgment as a matter of law, finding that the evidence in the record did not reveal the existence of a clear and definite agreement as required by the first element of promissory estoppel. Simmons, 82 F.3d 217, 220-21 (8th Cir.1996). Defendant admitted that it had an agreement with plaintiff whereby defendant would supply turkey, plaintiff would process and package it, and defendant would market the end products. Id. Plaintiff claimed, however, that defendant had guaranteed that after an initial start-up period, it would supply 50,000 pounds of turkey per week for processing and packaging by plaintiff. Id. at 220. The court found that the evidence did not show that defendant had made a guarantee to supply plaintiff with a certain amount of turkey per week; rather, the evidence indicated that the parties had merely a goal or projection to supply a certain amount of turkey per week for processing purposes. Id. at 221. The court noted that
[t]he only evidence of such a guarantee is the testimony of Walter, [a representative of the plaintiff], who stated in a general manner that Simmons made a poundage guarantee at some unidentified point in time. Walter identified Ron Ketcham and Jeff Lea as the individuals that "indicated to us" that 50,000 pounds per week "would be the minimum." Walter does not identify to whom such an "indication" was made or when it was allegedly made. There is no evidence of an actual conversation wherein an individual representing Simmons stated to someone representing Carriage House that Simmons would guarantee Carriage House would receive 50,000 pounds of turkey per week to process and package. When considered in light of the documentary evidence Walter's testimony is not susceptible to a reasonable inference that a clear and definite agreement containing a poundage guarantee existed between the parties.
Id.[17]
b. Evidence of the agreement here
The Neelys claim they met the first element of promissory estoppel in that a clear and definite agreement existed between American Family and Pastor Fred Moore that the policy would provide the Church with coverage for all persons, including executive officers, directors, and employees. In his meeting with Ron Holmberg for the purpose of purchasing a policy for the Church, Pastor Moore stated that he "asked for everyone and everything to be covered underneath this policy." Partial Trial Transcript, p. 10, Testimony of Pastor Moore.[18] When asked at trial how American Family responded to this request, Pastor Moore testified that he "was assured that everything would be covered and that [the Church] had what [it] had asked for." Partial Trial Transcript, p. 10, Testimony of Pastor Moore. American Family contends that there is no evidence in the record that Pastor Moore ever made a *374 specific request for coverage of executive officers or directors, performing acts relative to their duties as executive officers or directors. In addition, American Family asserts that it made no assurances to Pastor Moore that it would provide coverage for everyone and everything. Although Iowa decisions provide no precise definition of a "clear and definite agreement," the Iowa Supreme Court has emphasized the necessity of "clarity" and "inducement" in order to satisfy the first element of promissory estoppel. See National Bank of Waterloo, 434 N.W.2d at 889 (quoting Restatement (Second) of Contracts § 90 (1981)). Thus, the court must consider the sufficiency of the evidence, and the reasonable inferences to be drawn from that evidence, on these two critical aspects of the purported agreement in this case.
i. Clarity. In analyzing the clarity of the alleged agreement between the Church and American Family, Pastor Moore's request for coverage for "everyone" and "everything" is far from being either "clear" or "definite." Such a request is vague, looking first at the words of the proposal, and it is not clarified by the surrounding circumstances. Chipokas, 477 N.W.2d at 691. The request for coverage was made in negotiation of business liability insurance, but in light of that context, the request becomes more, not less, ambiguous. For example, "everyone" could mean everyone, including Church members, employees, officers or directors, who might be injured by actions of the Church, its employees, or on Church property. It could also mean coverage for "everyone" identified as a church member or employee, or whose actions could be attributed to the church, against any claims that could be made against them by a third party. In other words, does the "everyone" refer to injured persons or to actors whose actions could be attributed to the Church? Pastor Moore's failure to narrow this request to specify in any way to whom he was referring when asking for coverage for "everyone" or to otherwise articulate what kind of coverage he meant, whether it was liability coverage for the employees of the Church against third parties or coverage for employees, officers and directors of the Church against the Church itself, renders this request hopelessly ambiguous. Because the request was ambiguous, it does not reasonably touch on or constitute a clear and definite promise on American Family's part not to exclude from coverage persons such as officers and directors performing acts relative to their duties who could properly be identified with the Church itself as opposed to injured third parties.
Furthermore, the evidence here compares unfavorably with the evidence of an agreement in both Miller and Johnson, the cases in which the Iowa Supreme Court found sufficiently clear and definite agreements to impose a promissory estoppel. Johnson, 185 N.W.2d at 796 (promise to use adjacent land for residential purposes only); Miller, 66 N.W.2d at 270 (promise not to construct a home that would obstruct a neighbor's view). In those cases, the defendants' attempts to refute the plaintiffs' claims of promissory estoppel virtually admitted the existence of a clear agreement and apparent understanding of the nature of the agreement; however, the defendants in both cases quibbled over minor details concerning the logistics of the agreements, including the precise dimensions of the house obstructing the plaintiff's view in Miller, 66 N.W.2d at 270, and the duration of the promise to use the land only for residential purposes in Johnson, 185 N.W.2d at 796. Here, however, American Family disputes even a general agreement on the extent of coverage for officers and directors.
Also, although there appears to have been a general agreement that American Family would provide insurance coverage, the dispute as to the meaning of Pastor Moore's request for coverage for "everyone" and "everything" does not concern minor details collateral to the general agreement. See Simmons, 82 F.3d at 220-21. In Simmons, the Eighth Circuit Court of Appeals required a clear and definite agreement as to the specific terms sought to be enforced by promissory estoppel even where there was no controversy that the general agreement had been reached. Insurance policies are designed for the purpose of providing coverage for specific persons, items, or events. In such a context, the failure to delineate the type and extent of *375 coverage is fatal to an agreement about the specifics of the coverage the insurance contract is to provide. Thus, the evidence presented at trial is more comparable to the expression of a general desire insufficient to translate into a clear and definite agreement about the specifics of how that desire is to be executed, see Graham, 295 N.W.2d at 419 (expression of desire that decedent wanted to "keep the farm in the family" did not constitute clear and definite agreement to devise the farm to his brother); see also Simmons, 82 F.3d at 220-21 (mutual desire for 50,000 pounds of turkey per week did not translate into clear and definite agreement to provide that much turkey per week), than it is comparable to evidence of agreement on details in execution of the desired end. Johnson, 185 N.W.2d at 796; Miller, 66 N.W.2d at 270. Even viewing the evidence in the light most favorable to the verdict and granting the plaintiffs all reasonable inferences to be drawn from that evidence, Pence, 961 F.2d at 779, Pastor Neely's testimony, and in particular, the generic nature of his request for coverage, are not susceptible to a reasonable inference that American Family and the Church had a clear and definite agreement under which American Family would provide coverage to the Church for all persons, including executive officers and directors performing acts relative to their duties as executive officers or directors, for injuries they might suffer as the result of Church actions or on Church property.
ii. Inducement. Furthermore, the second factor the Iowa Supreme Court emphasized in analyzing whether a clear and definite agreement exists for purposes of establishing a promissory estoppel claim is inducement. See National Bank of Waterloo, 434 N.W.2d at 889. Adhering to the definition in the Restatement (Second) of Contracts, the court indicated that to establish a claim of promissory estoppel, the plaintiff must prove the existence of "a promise which the promisor should reasonably expect to induce action ... on the part of the promisee." See id. (quoting Restatement (Second) of Contracts § 90 (1981)). In both Miller and Johnson, the plaintiffs articulated that they would not act without assurance from the defendants that the promises at issue would be kept, and in both cases, those assurances were given. See Miller, 66 N.W.2d at 270; Johnson, 185 N.W.2d at 796. Here, there is no evidence in the record that Pastor Moore made any indication to American Family that the Church would not purchase a policy with American Family if coverage for everything and everyone was not provided. Based upon the ambiguous nature of Pastor Moore's request, a jury could not reasonably infer that American Family had a "clear understanding" that the Church "`was seeking an assurance upon which it could rely and without which it would not act.'" See Simmons Poultry Farms, 82 F.3d at 220 (quoting National Bank of Waterloo, 434 N.W.2d at 889). Thus, because of the lack of clarity regarding the agreement between American Family and the Church and the absence of evidence of a promise which American Family would have reasonably expected to induce action on the part of the Church, see National Bank of Waterloo, 434 N.W.2d at 889 (quoting Restatement (Second) of Contracts § 90 (1981)), the court finds that American Family is entitled to judgment as a matter of law on the Neelys' claim of promissory estoppel and grants American Family's motion pursuant to Rule 50(b).[19]
3. Summary
In summary, the court concludes that American Family's motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b) should be granted. The court concludes that the evidence presented falls far short of proof, by any standard, of a clear and definite agreement upon which promissory estoppel can be based. The jury's verdict on the Neelys' promissory estoppel claim must be set aside and judgment entered in favor of American Family.
*376 B. American Family's Post-Trial Motion Pursuant to Fed.R.Civ.P. 59
American Family has also moved for a new trial on the ground that "there was sufficient evidence in the record to warrant a submission to the jury as to whether or not Loretta Neely was an executive officer or board member at the time of the accident and whether or not the accident and damages were relative to her duties as an officer or director." American Family's Motion for New Trial, p. 1. However, the court's ruling on American Family's motion for judgment as a matter of law moots this motion for new trial, because any claim of Loretta Neely was derivative of Walter Neely's claim. Because judgment as a matter of law must be entered in favor of American Family on Walter's claims, it must likewise be entered in favor of American Family on Loretta's claim of loss of consortium.
C. The Neelys' Motion For New Trial
In their brief in resistance to American Family's renewed motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), the Neelys state that in the event the court grants American Family's motion for judgment as a matter of law, they move for a new trial pursuant to Fed.R.Civ.P. 59. The Neelys' ground for a new trial is that the jury's findings that Walter Neely was an executive officer or director of the Church on the date of his accident and that Walter's actions in lighting the boiler on that same date were with respect to his duties as an executive officer or director of the Church were against the greater weight of the evidence. The Neelys concede that Walter Neely was a director of the Church after his retirement in 1990. However, the Neelys claim there is no evidence in the record that Walter was acting as an executive officer or director at the time of his accident and that his actions were with respect to his duties as an executive officer or director. Therefore, the Neelys argue the exclusion in the policy did not apply to Walter, and he should have been covered under the Church's insurance policy.
Federal Rule of Civil Procedure 59, entitled "New Trials; Amendment of Judgments," states in relevant part:
(a) GROUNDS. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States....
Fed.R.Civ.P. 59(a). Regarding motions for new trial under Federal Rule of Civil Procedure 59, the court in White v. Pence, 961 F.2d 776 (8th Cir.1992) observed:
With respect to motions for new trial on the question of whether the verdict is against the weight of the evidence, we have stated: "In determining whether a verdict is against the weight of the evidence, the trial court can rely on its own reading of the evidence it can `weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain a verdict.'" Ryan v. McDonough Power Equip., 734 F.2d 385, 387 (8th Cir. 1984) (citation omitted). Similar language appears in Brown, 755 F.2d at 671-73; Slatton [v. Martin K. Eby Constr. Co.], 506 F.2d [505,] 508 n. 4 [(8th Cir.1974), cert. denied, 421 U.S. 931, 95 S.Ct. 1657, 44 L.Ed.2d 88 (1975)]; Bates [v. Hensley], 414 F.2d [1006,] 1011 [(8th Cir.1969)], and early authority cited in Bates. See also Leichihman v. Pickwick Int'l, 814 F.2d 1263, 1266 (8th Cir.), cert. denied, 484 U.S. 855, 108 S.Ct. 161, 98 L.Ed.2d 116 (1987). These cases establish the fundamental procedures or methodology to be applied by the district court in considering new trial motions and are in contrast to those procedures governing motions for j.n.o.v.
Id. at 780. Thus, the court in Pence concluded the district court may grant a new trial on the basis that the verdict is against the weight of the evidence, if the first trial results in a miscarriage of justice. Id.; see also Shaffer v. Wilkes, 65 F.3d 115, 117 (8th Cir.1995) (citing Pence for this standard); Rush v. Smith, 45 F.3d 1197, 1203 (8th Cir.) (also citing Pence for this standard), cert. denied, ___ U.S. ___, 116 S.Ct. 409, 133 L.Ed.2d 328 (1995); Nelson, 26 F.3d at 800 *377 ("[A] motion for a new trial should be granted if, after weighing the evidence, a district court concludes that the jury's verdict amounts to a miscarriage of justice."); Jacobs Mfg. Co., 19 F.3d at 1266 (correct standard for new trial is conclusion that "the [jury's] verdict was against the `great weight' of the evidence, so that granting a new trial would prevent a miscarriage of justice.").[20]
The court concludes that the jury's findings regarding Walter Neely's status with the Church at the time of his accident and regarding whether his actions in lighting the boiler were with respect to his duties as an executive officer or director were not against the greater weight of the evidence. Pence, 961 F.2d at 780. In fact, there was ample evidence presented at trial which support the jury's conclusion that, subsequent to his retirement, Walter Neely continued as an executive officer or director of the Church. In addition, despite evidence presented at trial that maintenance work was typically completed by volunteers in the Church, the jury could have reasonably concluded that Walter was not acting as a volunteer in lighting the boiler, but was instead completing this task with respect to his duties as an executive officer or director of the Church. Thus, the court finds that the jury's findings on Walter's status with the Church and whether he was acting with respect to his duties as an executive officer or director are not against the great weight of the evidence, see Pence, 961 F.2d at 780, and denies the Neelys' motion for new trial.
III. CONCLUSION
Based upon a review of the evidence in the record and viewing the evidence in a light most favorable to the Neelys, the court finds there was insufficient evidence to support the jury's finding that there was a clear and definite agreement between the Church and American Family that the terms of the policy purchased by the Church from American Family would provide coverage for all persons, including officers and directors acting with respect to their duties as officers and directors. Therefore, the court grants American Family's renewed motion for judgment as a matter of law pursuant to Fed. R.Civ.P. 50(b).
Additionally, the court concludes that the jury's findings that Walter Neely was an executive officer or director of the Church on the date of his accident and that Walter's actions in lighting the boiler on that same date were with respect to his duties as an executive officer or director of the Church were not against the greater weight of the evidence. Thus, the court denies the Neelys' motion for new trial pursuant to Fed.R.Civ.P. 59.
The verdict of the jury and judgment pursuant to the verdict are set aside and judgment as a matter of law is entered in favor of defendant American Family.
IT IS SO ORDERED.
NOTES
[1] The letter of February 13, 1991 provides as follows:
This is a letter of an informative nature which I feel must be entered into the church records for future reference and knowledge if so needed.
In March of 1990 I filed for my Social Security benefits to which I am entitled to receive at the age of 62. At that time I relinquished the salary and housing allowance benefits which were allocated to me.
Since Rev. Loretta Neely is co-pastor and associate pastor I had instructed the Secretary and Treasurer to continue giving her the full salary and housing allowance due to that position. This is in no way a letter of my resignation from being the Senior Pastor and Chairman of this local body. Please do not misinterpret this letter as such. I will still hold the offices as Senior Pastor and Chairperson of all functions of the church as stated in Amended Article VII Pastor Section. 1. and Article VII Pastor Sections. 2 and 3. a, b, and c, Constitution and Bylaws of Christian Life Fellowship of Sioux City, Iowa.
It was through much prayer and thought that I made this decision. I am fully confident that this course of action and decision is very acceptable to you and the body of Christian Life Fellowship.
This course of action will enable us to continue on with the same staffing as we have had and thus not require any further financial undertaking for the Church body at this time.
Thank you for your continued support and much needed help in piloting this body in a deeper and richer life in our Lord.
American Family's Exhibit MM.
[2] Section II of the policy is entitled "Business Liability And Medical Payments Insurance."
[3] In their complaint in that matter, Loretta Neely and Walter Neely v. Christian Life Fellowship Church, et al., C93-4043 (N.D.Iowa), the Neelys alleged, inter alia, that
9. On May 4, 1991, while on the premises of CHRISTIAN LIFE FELLOWSHIP CHURCH, plaintiff, WALTER NEELY, did depress and actuate the relay controls on said furnace and shortly thereafter a gas explosion did occur and did cause said plaintiff to be propelled several feet against the basement wall.
10. Defendant, CHRISTIAN LIFE FELLOWSHIP CHURCH, breached its duty owed to said plaintiff and was negligent in the following particulars, including but not limited to:
(a) failing to assure that the proper replacement zone valve was installed on said furnace;
(b) failing to exercise due care and caution to avoid creating and/or concealing dangerous and/or unsafe conditions on the premises;
(c) failing to instruct and warn and/or make known to said plaintiff any hazardous and/or unsafe conditions;
(d) failing to maintain its premises, in particular the furnace, in proper and safe working condition;
(e) failing to make reasonable and regular inspections of the premises, in particular the subject furnace;
(f) failing to hire and employ competent and skilled contractors to perform service on the above described furnace;
(g) other acts and/or omissions which will be ascertained during discovery and which said plaintiff reserves the right to amend and incorporate herein.
Neelys' Complaint in C93-4043, ¶¶ 9 and 10.
[4] Loretta's claims were solely for loss of consortium.
[5] Iowa Code § 516.1 provides as follows:
All policies insuring the legal liability of the insured, issued in this state by any company, association or reciprocal exchange shall, notwithstanding any other provision of the statutes, contain a provision providing that, in event an execution on a judgment against the insured be returned unsatisfied in an action by a person who is injured or whose property is damaged, the judgment creditor shall have a right of action against the insurer to the same extent that such insured could have enforced the insured's claim against such insurer had such insured paid such judgment.
Iowa Code § 516.1 (1995).
[6] The court concluded that default judgments are not given collateral estoppel effect because the issue in controversy has not been decided in an adversarial context. To have a collateral estoppel effect, an issue cannot simply be decided, but must be both actually litigated and decided. Although the court made findings in its granting of the default judgment, those were pro forma findings that were not actually litigated. Therefore, there can be no preclusive effect.
[7] The jury found for the Neelys on the elements of their promissory estoppel claim, or as identified to the jury in a special interrogatory, the claim that American Family provided to the Church an insurance policy with "terms contrary to promises." Under Iowa law, the cause of action of promissory estoppel has three elements, defined, as applicable to this case, as: 1) a clear and definite agreement that the insurance policy provided by American Family to the Church would cover all Church employees as well as officers and directors; 2) proof that the Church acted to its detriment in reliance on the promised coverage; and 3) a finding that the equities entitle the Church to the terms it was promised. See generally In re Marriage of Harvey, 523 N.W.2d 755, 756 (Iowa 1994) (citing Merrifield v. Troutner, 269 N.W.2d 136, 137 (Iowa 1978), as stating the elements of a claim of promissory estoppel); Farmers State Bank v. United Central Bank of Des Moines, 463 N.W.2d 69, 71 (Iowa 1990) (same elements); Chipokas v. Hugg, 477 N.W.2d 688, 690-91 (Iowa Ct.App.1991) (same); Matter of Scheib Trust, 457 N.W.2d 4, 9 (Iowa Ct.App. 1990) (same). By agreement of counsel for the parties, only the first two of these elements were submitted to the jury by way of special verdict questions. Determination of the third element was left to the court, as was the legal implication of a finding of promissory estoppel.
On April 12, 1996, the court found that injustice could be avoided in this case only by enforcement of the promise made to the Church to provide coverage for all persons. Therefore, the court determined that this third prong of the Neelys' promissory estoppel claim had also been proved in this case and that, consequently, American Family was estopped to assert the exclusions upon which its denial of coverage to the Church in this case depended.
[8] The elements of equitable estoppel, as stated in this case in Final Instruction No. 22, are as follows: (1) the failure by American Family to deliver the complete policy of insurance to the Church was a concealment of material terms of the insurance policy upon which it now relies; (2) lack of knowledge of the material terms of the policy on the part of the Church; (3) intention by American Family that the concealment be acted upon; and (4) reliance by the Church to its prejudice. See, e.g., Morgan v. American Family Mut. Ins. Co., 534 N.W.2d 92, 100 (Iowa 1995); Hicks v. Franklin County Auditor, 514 N.W.2d 431, 441 (Iowa 1994).
[9] While Rule 50 was amended effective December 1, 1993, the amendment was technical in nature. "[P]rior to 1991 amendments made to the Federal Rules of Civil Procedure, a Rule 50 motion was a motion for directed verdict or motion for judgment notwithstanding the verdict. The 1991 amendments merely changed the names of these motions, but the standard for application of this rule remains the same." Jackson v. Swift-Eckrich, Inc., 836 F.Supp. 1447, 1449 (W.D.Ark.1993), aff'd, 53 F.3d 1452 (8th Cir.1995). The Committee Notes to Rule 50 indicate:
This technical amendment corrects an ambiguity in the text of the 1991 revision of the rule, which, as indicated in the Notes, was not intended to change the existing standards under which "directed verdicts" could be granted. This amendment makes clear that judgments as a matter of law in jury trials may be entered against both plaintiffs and defendants and with respect to issues or defenses that may not be wholly dispositive of a claim or defense.
Fed.R.Civ.P. 50 advisory committee's note.
[10] The advisory note to the 1963 amendment to Fed.R.Civ.P. 50(b) "unequivocally states a `motion for a judgment notwithstanding the verdict will not lie unless it was preceded by a motion for directed verdict made at the close of the evidence.'" Redd, 934 F.2d at 1214.
[11] As a further ground for judgment as a matter of law, American Family contends that because Walter Neely was an executive officer or director at the time of his accident and because his actions were with respect to his duties as an executive officer or director of the Church, Walter was an insured under the insurance policy. Furthermore, because Walter was an insured under the policy, American Family claims it had no obligation in the underlying lawsuit to pay any amount of the default judgment entered by this court in favor of the Neelys and against the Church. The jury found that Walter Neely was an executive officer or director of the Church at the time of the accident and that his actions were with respect to his duties as an executive officer or director. However, the jury concluded that American Family is estopped from enforcing the exclusion relating to executive officers and directors because the provisions of American Family's policy were contrary to the terms of the promises made by American Family regarding coverage for the Church. Thus, the separate ground American Family alleges as a basis for judgment as a matter of law is, in essence, the same as its challenge to the jury's finding on the Neelys' promissory estoppel claim. Therefore, the court will address only American Family's argument that there was insufficient evidence to support the jury's finding of promissory estoppel in the text of this opinion.
Also, as an additional ground for judgment as a matter of law, American Family asserted in its brief that Final Jury Instruction No. 20 and Special Verdict Question No. 3 should not have been submitted to the jury because (1) there was insufficient evidence in the record to create a jury question as to whether or not the entire insurance policy was delivered to the Church, and (2) delivery or non-delivery of the entire policy was irrelevant under Iowa law, because there was no requirement in the insurance policy making coverage contingent upon physical delivery of the insurance contract. The court notes, as to the second contention, that the instruction on delivery did not state or suggest that delivery was a requirement of Iowa law; rather, delivery was defined for the jury to assist the jury in determining whether failure to deliver the policy constituted "concealment," the legally significant act here. However, at the hearing on its post-trial motions, American Family conceded that the instruction on delivery was not a ground for judgment as a matter of law because it pertained to the Neelys' claim of equitable estoppel, the claim on which the jury found in favor of American Family. Therefore, the court need not reach the issue of whether there was sufficient evidence to support the jury's finding that American Family did not "deliver" the complete policy to the Church.
[12] During the trial, the court also expressed its reservations about the Neelys' evidence of the "clear and definite agreement" necessary to meet the first element of a promissory estoppel claim under Iowa law. At the hearing on the entry of judgment on April 19, 1996, the court brought to the parties' attention the recent Eighth Circuit decision in Fox v. T-H Continental Ltd. Partnership, 78 F.3d 409 (8th Cir.1996), in which the Eighth Circuit overturned a jury verdict for the plaintiffs on the theory of promissory estoppel, on the grounds that the plaintiffs had not proved that the promise was not specific enough to constitute a "clear and definite agreement." Fox, 78 F.3d at 413. The court reiterated that this same issue, the lack of a clear and definite agreement, is precisely what it had identified to be one of the problems in this lawsuit and advised the parties to examine this issue closely in preparing their post-trial motions. Now, upon consideration of the post-trial motions, the court finds the "clear and definite agreement" issue to be decisive.
[13] The Neelys' claim of promissory estoppel is particularly problematic because the Neelys did not present this theory of their case until after the close of their case in chief. After American Family made its motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b) and raised its concerns regarding the insufficiency of evidence on the Neelys' claim of equitable estoppel, counsel for the Neelys mentioned that the Neelys were also seeking recovery under the theory of promissory estoppel. At that time, the court noted the problems created by the introduction of this theory in the middle of trial, namely, the court's task in instructing the jury on a theory which had never been pled, had not been raised in the Neelys' motion for summary judgment, and had not been asserted in the pre-trial order. Nonetheless, in the interests of justice, the court submitted the issue of promissory estoppel to the jury, recognizing that the court's own reservations about the viability of such a claim would require post-trial scrutiny of any verdict favorable to the plaintiffs.
[14] In Final Instruction No. 18, entitled "Burdens of Proof," the court instructed the jury that the Neelys must establish each of the elements of promissory estoppel by clear, convincing, and satisfactory evidence, rather than simply by the greater weight of the evidence. While neither party has raised the issue, the court observed for the first time in reviewing American Family's post-trial motions that the burden of proof applicable to a promissory estoppel claim may be proof by a preponderance of the evidence. See Simmons Poultry Farms, 82 F.3d at 220-21 (applying Iowa law and agreeing with defendant's assertion that "there is not sufficient evidence in the record from which a reasonable juror could find by a preponderance of the evidence that a clear and definite agreement existed between the parties"); Jungmann v. St. Regis Paper Co., 682 F.2d 195, 197 (8th Cir.1982) (applying Iowa law and stating that the jury found a simple agreement by a preponderance of the evidence while an element of promissory estoppel is a "clear and definite agreement. The burden of proof was the same, but a plaintiff must prove a more distinct and specific agreement to establish promissory estoppel."); Ted Spangenberg Co. v. Peoples Natural Gas, Division of Northern Natural Gas Co., 439 F.2d 1260, 1268 (8th Cir.1971) (applying Iowa law and affirming district court's conclusion that "appellant failed to establish, by a preponderance of the evidence, a clear and definite oral promise...."); and compare Morgan v. American Family Mut. Ins. Co., 534 N.W.2d 92, 100 (Iowa 1995) (stating that "[t]o establish estoppel, the [plaintiff] must prove [the elements by] clear, convincing, and satisfactory evidence," but considering only an equitable estoppel claim); National Bank of Waterloo v. Moeller, 434 N.W.2d 887, 889 (Iowa 1989) (stating in promissory estoppel case that "[t]he burden of proving estoppel is on the party asserting it and strict proof of all elements is required."). Although Iowa law does not provide a clear statement of the burden of proof on a promissory estoppel claim, the result in this case remains the same whatever the correct burden may be. This is so, because whichever burden of proof is applicable, the court finds that the critical question is the existence of a "clear and definite agreement."
[15] In Miller, plaintiff claimed that he told defendant that "under no circumstances would [he] make a bid upon that house if [defendant's] building plans were in any way to spoil the view to the south and southwest of [that] home." Id. at 269. Plaintiff further relayed to defendant that the previous owner of plaintiff's home told plaintiff that he and defendant had an agreement as to the location of defendant's house and plaintiff wanted confirmation from defendant that this was, in fact, the agreement. Id. Plaintiff then proceeded to state that the previous owner had told him that defendant had agreed he was building a hillside type of house down at the crest of the hill, and that is would not obstruct any view to the southwest and that the house would be low enough so that plaintiff could see over it. Id. In addition, plaintiff testified that he stated to defendant, "If I purchase this house will you agree that you will not build your house north or west of [the agreed location]?" and defendant said "certainly." Id. Although defendant denied making references to specific numeric dimensions, he did not deny the testimony pertaining to his agreement with the previous owner or the substance of the agreement itself, which was that he would not build a house obstructing plaintiff's view. Id. at 270. Furthermore, defendant did not deny that plaintiff secured a definite agreement from him, with his full realization that plaintiff was contemplating purchase of the house in question on the strength of such agreement. Id. The court found that this was not a "casual conversation" between plaintiff and defendant, and defendant "must have understood plaintiff was seeking an assurance upon which he could rely and without which he would not act." Id. at 273.
[16] In Johnson, defendant admitted there was an agreement with plaintiff that defendant would use the land in question for residential purposes only, but asserted that the promise was to last only while the defendant had the land. Id. at 796. The court found that defendant admitted "just enough to lend credence to plaintiff's claim" and found that plaintiff had proven that he had received a promise from defendant that, if plaintiff purchased the real estate in question, the adjacent property owned by defendant would never be used for purposes other than residential use. Id.
[17] In addition to its decision in Simmons, the Eighth Circuit Court of Appeals recently applied Minnesota law governing the doctrine of promissory estoppel in Fox v. T-H Continental Ltd. Partnership, 78 F.3d 409 (8th Cir.1996). The first element of promissory estoppel under Minnesota law is the same as that required under Iowa law, namely, a clear and definite promise. Fox, 78 F.3d at 413. Here, Fox argued that her employment with T-H was not at will, but instead was "permanent" and terminable only for cause. Id. Under Minnesota law, promissory estoppel is an equitable remedy that "may be used to enforce a promise of employment where no express contract of employment exists." Id. (quoting Eklund v. Vincent Brass & Aluminum Co., 351 N.W.2d 371, 378 (Minn.Ct.App.1984), in turn, citing Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981)). The court found that Fox had produced no evidence that T-H made a clear and definite promise of continued employment terminable only for cause. Id. Thus, the court concluded that Fox's evidence was "insufficient to overcome Minnesota's strong presumption of at-will employment," and T-H was entitled to judgment as a matter of law. Id.
[18] The court requested a partial transcript of just the trial testimony of Pastor Fred Moore for purposes of the disposition of post-trial motions in this case.
[19] American Family also contends that there is insufficient evidence in the record showing reliance by the Church on the alleged agreement to provide coverage for all persons. However, as the court has found insufficient evidence to support the jury's finding of a "clear and definite agreement," it is not necessary to discuss the two remaining elements of a promissory estoppel claim or analyze the sufficiency of the evidence regarding these elements.
[20] Rule 59(a) specifically provides for the grant of a new trial "for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States," Fed.R.Civ.P. 59(a), and the court does not mean to suggest that a verdict against the great weight of the evidence is the only ground for a new trial in a civil action. See, e.g., Silbergleit v. First Interstate Bank of Fargo, N.A., 37 F.3d 394, 397 (8th Cir.1994) (new trial may be granted on the basis of a question by counsel that places prejudicial information before the jury, citing Sanders-El v. Wencewicz, 987 F.2d 483, 484 (8th Cir. 1993), and McBryde v. Carey Lumber Co., 819 F.2d 185, 188 (8th Cir.1987)); Norton v. Caremark, Inc., 20 F.3d 330, 338 (8th Cir.1994) (noting that Fed.R.Civ.P. 61 specifically prohibits the grant of a new trial based on errors in admission of evidence, "unless refusal to take such action appears to the court inconsistent with substantial justice."); Fink v. Foley-Belsaw Co., 983 F.2d 111, 114 (8th Cir.1993) (improper jury instruction or failure to comply with Rule 51 may be ground for new trial, but only if moving party can show material prejudice); Hofer v. Mack Trucks, Inc., 981 F.2d 377, 385 (8th Cir.1992) (misconduct of counsel may be grounds for new trial, but the court must judge whether there has been an effect on the substantive rights of the parties, or whether the misconduct created undue prejudice or passion tainting the proceedings, particularly in light of whether the district court concludes that an effective curative instruction has been given).
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364 S.C. 508 (2005)
613 S.E.2d 541
Jane PATRICK, Respondent,
v.
Keith E. BRITT, Appellant.
No. 3992.
Court of Appeals of South Carolina.
Submitted March 1, 2005.
Decided May 23, 2005.
*509 Mark Alan Leiendecker, of Summerville, for Appellant.
James B. Richardson, of Columbia; and John Witherspoon and James A. Bell, both of St. George, for Respondent.
*510 WILLIAMS, J.:
In this child support action, Keith Britt appeals a family court order awarding Jane Patrick an increase in child support and attorney's fees. We affirm.
FACTS
Keith Britt and Jane Patrick were divorced by order of the Dorchester County Family Court on April 16, 1991. Patrick was awarded custody of the couple's two children. The divorce decree ordered Britt to pay child support in the amount of $450 a month and contained a provision which stipulated that the child support would continue until the oldest child reached eighteen years of age. Upon that child's emancipation, the payments would be reduced to $225 a month.
Approximately three months after the oldest child turned eighteen in June 2002, Patrick commenced the current action seeking an increase in child support to better provide for the parties' youngest child. The parties submitted financial declarations and a final hearing was held on June 4, 2003.
The primary dispute at the hearing concerned the amount of income attributable to Britt. Britt is the owner and operator of Keith Britt Trucking and Construction, an incorporated business that he began in 1995. Although Britt's business took in over $430,000 in 2002, Britt submitted on his financial declaration that he personally received only $66.01 a month. Britt attributed his low income to high overhead costs of running the business, including the purchase and maintenance of heavy machinery. He further testified that he took out several loans to provide the company with operating capital.
Britt also testified, however, that numerous personal expenses were paid by his business. For example, and this is by no means an exhaustive list of personal expenses, previous child support payments were paid through the business, as were church tithes, private school tuition for a step child, payments for the truck he used, gas, work clothes, and telephone bills. Britt's current wife also worked for the *511 business and received a salary, which Britt testified she used to pay certain household expenses.[1]
Although Britt submitted monthly disbursement summaries outlining the business' expenses for 2002, he was unable to tell exactly how much company money was used to pay personal expenses. Britt's accountant was also unable to provide an exact figure in this regard. Although the accountant was in the process of trying to complete the company's 2002 tax returns, he was unable to complete them before trial. Nevertheless, as of the date of trial, the accountant identified at least $17,000 of company money spent on Britt's personal expenses.
The accountant also testified concerning tax deductions the company received for depreciation on business equipment such as bulldozers and trucks. The accountant testified the company spent approximately $100,000 a year on such equipment and that it was able to take depreciation of an equal amount.
Upon conclusion of the hearing, the court took the matter under advisement. On June 20, 2003, the court issued an order finding that Britt "purposefully arranged his finances in a manner that would make it difficult to determine his actual income." It then held that the only reasonable measure of Britt's income was the $100,000 of depreciation that the accountant testified Britt would have for 2002. Accordingly, the family court determined Patrick was entitled to an increase in child support and calculated Britt's obligation based on that income. The order compels Britt to pay child support in the amount of $987.00 a month, and requires payment retroactively to the date Patrick filed the complaint.
In addition to the child support award, the family court ordered Britt to pay Patrick's attorney's fees of $4,375 based in part on its finding that Britt deliberately misrepresented his income and thus caused the litigation to be unnecessarily complicated and expensive.
*512 STANDARD OF REVIEW
In appeals from the family court, this Court has the authority to find facts in accordance with its own view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992). This broad scope of review does not, however, require this court to disregard the factual findings of the family court. Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981). Neither are we required to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).
LAW/ANALYSIS
I. Child Support and Income Determination
Britt first asserts the family court abused its discretion in increasing his child support obligation by imputing income to him based on taxable depreciation of equipment used in his business. We disagree.
Child support awards are addressed to the sound discretion of the trial judge and, absent an abuse of discretion, will not be disturbed on appeal. Mitchell v. Mitchell, 283 S.C. 87, 92, 320 S.E.2d 706, 710 (1984). Income for determining child support awards is defined in the Child Support Guidelines as "the actual gross income of the parent, if employed to full capacity, or potential income if unemployed or underemployed." 27 S.C.Code Ann. Regs. 114-4720(A)(1) (Supp.2004). The Guidelines specifically address how to determine income from someone who is self employed:
For income from self-employment ... gross income is defined as gross receipts minus ordinary and necessary expenses required for self-employment or business operation.... However, the court should exclude from those expenses amounts allowed by the Internal Revenue Service for accelerated depreciation or investment tax credits for the purposes of the guidelines and add those amounts back in to determine gross income. In general, the court should carefully review income and expenses from self-employment... to determine actual levels of gross income available to the parent to satisfy a child support obligation. As may be *513 apparent, this amount may differ from a determination of business income for tax purposes.
27 S.C.Code Ann. Regs. 114-4720(A)(4) (Supp.2004).
In the current case, Britt testified that although his business brought in over $430,000 in gross income, he personally made a mere $66.01 a month. He admitted, however, that the company paid a plethora of personal expenses, including his step-child's private school tuition, church tithes, child support payments, and various other expenses.
Although Britt's accountant had not completed his analysis, as of the date of trial he identified over $17,000 worth of personal expenses paid by the company. The accountant further testified that the company spent approximately $100,000 on equipment and was able to take a tax depreciation that essentially made these expenses "a wash." Based on this evidence, the applicable law, and the fact that Britt refused to assist the court in resolving the issue, we find no abuse of discretion by the family court in its determination of income and subsequent calculation of child support. See Robinson v. Tyson, 319 S.C. 360, 364, 461 S.E.2d 397, 399 (Ct.App.1995) (affirming family court's imputation of income based partially on husband's refusal to make an effort to show his earning potential).
We find this holding to be especially appropriate considering Britt's stubborn refusal to provide any assistance whatsoever to the family court in resolving the issue of his income. Thus, having failed to provide the court with any meaningful representation of his actual income, and failing to respond to the court's requests for direction with anything other than patronizing remarks, we find Britt would be hard pressed to complain of the family court's ruling. See Rish v. Rish by and Through Barry, 296 S.C. 14, 17, 370 S.E.2d 102, 104 (Ct.App. 1988) (Bell, J., concurring) (stating that the court of appeals does not sit to relieve self-inflicted wounds); Gore v. Gore, 288 S.C. 438, 440-41, 343 S.E.2d 51, 52 (Ct.App.1986) (denying relief when husband's conduct was to blame for the predicament in which he found himself).
II. Attorney's Fees
Britt next asserts the trial court erred in awarding Patrick $4,375 in attorney's fees. We disagree.
*514 "An award of attorneys' fees and costs is a discretionary matter not to be overturned absent abuse by the trial court." Donahue v. Donahue, 299 S.C. 353, 365, 384 S.E.2d 741, 748 (1989). In order to award attorney's fees a court should consider several factors including: (1) ability of the party to pay the fees; (2) beneficial results obtained; (3) financial conditions of the parties; and (4) effect a fee award will have on the party's standard of living. E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992); see also Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991).
In its order, the family court concluded, "[Britt's] deliberate misrepresentation of his income has caused this litigation to be complicated and expensive and [Patrick] is entitled to payment of her attorney's fees and costs." A review of the record supports this determination. In addition, in light of the family court's calculation of Britt's income at $100,000 per year, we do not find the award would unduly impact his financial condition. Considering this along with the fact that Patrick's attorney obtained beneficial results by obtaining an increase in child support, we find the award to have been well within the discretion of the family court judge.
AFFIRMED.[2]
HEARN, C.J., and KITTREDGE, J., concur.
NOTES
[1] When asked by the court how much money his current wife made in salary, Britt claimed to not know because "[s]he does all the paying of the bills." Because of the difficulty in computing Britt's actual income, the court also asked Britt what amount of income he thought the court should use to determine child support. Britt offered no suggestions other than "I will leave that up to you."
[2] We decide this case without oral argument pursuant to Rule 215, SCACR.
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125 F.Supp.2d 373 (2001)
UNITED STATES of America, Plaintiff,
v.
Shellie Lee LANGMADE, Defendant.
No. CRIM. 99-26(PAM/JGL).
United States District Court, D. Minnesota.
January 16, 2001.
*374 RECUSAL ORDER
MAGNUSON, District Judge.
On October 4, 1999, Defendant Shellie Lee Langmade ("Langmade") pled guilty before the undersigned Judge to conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). According to the Presentence Investigation Report ("PSI"), two points were added to Langmade's criminal history score for two 1993 misdemeanor convictions for issuing bad checks in Anoka County, Minnesota. See U.S.S.G. §§ 4A1.1 and 4A1.2(c)(1). The amounts at issue were staggeringly minor: $45 in one case; $38.50 in another. Langmade pled guilty to each violation. For each offense, she received 30 days in jail, stayed, and one year of probation. Under § 4A1.2(c)(1)(A), probation for less than one year does not count for criminal history purposes. Therefore, had Langmade received just one day less of probation, no criminal history points would have attached.
With the two points included, Langmade had a total criminal history score of 3 and was therefore ineligible for the safety valve of § 5C1.2. She thus faced the ten-year mandatory minimum sentence prescribed by statute. See 21 U.S.C. § 841(b)(1)(A). On March 24, 2000, I sentenced Langmade to a term of imprisonment for 70 months, concluding that the bad check convictions should not be considered in determining Langmade's eligibility for safety valve status. The Government appealed, arguing that the Court's sentence was contrary to both the Sentencing Guidelines and Eighth Circuit law.
While the appeal was pending, Langmade's attorney, Paul Schneck ("Schneck"), filed a motion in Anoka County with my full approval and support to expunge Langmade's two bad check convictions. If the convictions were expunged, Langmade would clearly qualify for safety valve status. Although the district judge presiding over the case had initially indicated a willingness to grant expungement, the Government intervened and persuaded him to deny Schneck's motion.
The Eighth Circuit has since vacated the sentence I imposed and remanded the case for resentencing. Langmade now faces at least 10 years' imprisonment. For the following reasons, I must recuse from hearing this matter on remand.
First and foremost, I continue to believe that a sentence of 10 years' imprisonment under the circumstances of this case is unconscionable and patently unjust. Upon resentencing, Langmade will be sacrificed on the altar of Congress' obsession with punishing crimes involving narcotics. This obsession is, in part, understandable, for narcotics pose a serious threat to the welfare of this country and its citizens. However, at the same time, mandatory minimum sentences-almost by definitionprevent *375 the Court from passing judgment in a manner properly tailored to a defendant's particular circumstances. This is one case in which a mandatory minimum sentence clearly does not further the ends of justice. A sentence of 70 months' imprisonment is more than adequate to punish Langmade for her crime.
Second, I am so embittered by the Government's merciless conduct in this case that I simply could not be impartial upon resentencing. I strongly believe that without the Government's intervention in the Anoka County expungement proceedings, Langmade would not now be facing a 10 year mandatory minimum sentence. The Government's conduct is particularly egregious given that the plea agreement contemplated a sentence of 70-86 months. The Government's relentless pursuit of at least an additional 50 months is bewildering, unjustified, and petty.
Finally, Langmade's unjust sentence will, in large part, have been caused by mere fortuity. Had Langmade been sentenced to one day less of probation for each misdemeanor bad check conviction, she would not have been assigned two additional criminal history points. If the sentencing court in those cases could have foreseen the draconian sentence that must now follow, I am confident that the terms of probation would have been less than one full year.
In addition, although not the practice in larger cities, bad checks are routinely used as collection devices by small-town banks. I strongly believe that if Langmade had written the checks in a metropolitan area, rather than a rural community such as Anoka, she never would have been prosecuted and would not now be facing a minimum of 10 years' imprisonment. These facts, together with the Government's inequitable conduct and the unjust sentence that the Eighth Circuit requires me to impose, renders me unable and unwilling to further preside over this case.
Accordingly, IT IS HEREBY ORDERED that pursuant to this Court's Assignment of Cases Order dated November 9, 2000, the Clerk of Court reassign Defendant Shellie Lee Langmade from the Master Criminal Assignment List.
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64 F.2d 796 (1933)
GOWLING
v.
UNITED STATES.
No. 6289.
Circuit Court of Appeals, Sixth Circuit.
March 18, 1933.
Rehearing Denied May 10, 1933.
*797 Ralph Davis, of Memphis, Tenn., for appellant.
Bailey Walsh, of Memphis, Tenn. (Dwayne D. Maddox, of Memphis, Tenn., and H. C. Murchison, of Jackson, Tenn., on the brief), for the United States.
Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges.
HICKS, Circuit Judge.
Appellant was convicted on January 27, 1932, under both counts of an indictment, the first of which charged a purchase of unstamped opium in violation of the Harrison Anti-Narcotic Act (section 692, tit. 26, U. S. C. [26 USCA § 692]), and the second, the receiving, concealing, buying, and selling at the same time and place, of opium, which appellant knew had been unlawfully imported in violation of the Narcotic Import Statute (section 174, tit. 21, U. S. C. [21 USCA § 174]).
The assignments of error challenge (1) the court's action in overruling a demurrer to the indictment; (2) the sufficiency of the proofs to establish the venue; (3) the denial of a directed verdict; (4) the failure of the court to suppress the testimony of the government's witnesses Chatham and Caldwell as to the search for and seizure of twenty-seven and a half grains of opium, forty grains of yenshee, and other articles without a search warrant; (5) the action of the court in permitting the District Attorney to cross-examine *798 appellant (a) as to his former conviction under the Harrison Anti-Narcotic Act, and (b) as to his connection with Charles Frank, who had been arrested in 1930 and convicted in June, 1931, of a violation of the act; and (6) the correctness of the charge.
First. The indictment is sufficient. Howell v. U. S., 17 F.(2d) 89 (C. C. A. 6); Rosenberg v. U. S., 13 F.(2d) 369 (C. C. A. 9). The merits of the demurrer are not discussed in the brief, and need not be further considered.
Second. The venue was sufficiently proved. The record establishes beyond controversy that the offense was committed in Memphis, which, we judicially know, is in the Western District of Tennessee. Moreover, the question of venue was not raised until after conviction, and therefore came too late.
Third. We think there was substantial evidence to support the verdict.
On November 21, 1931, Chatham, a police sergeant of Memphis, led a searching party, consisting of two other police sergeants, Caldwell and Solomon, and a deputy sheriff, Cox, to a combined brick dwelling and storehouse located on the southwest corner of Horn Lake road and Peeples avenue, Memphis. Appellant was found in his shirt sleeves standing in the yard. A Mrs. Bussey occupied the dwelling portion of the building. Chatham and appellant entered the kitchen from the rear, where Chatham found Mrs. Bussey and a little girl. Chatham took appellant, Mrs. Bussey, and the child from the kitchen through a bedroom, where appellant's wife was lying asleep, into a front room, and placed them in charge of Cox. Chatham and Caldwell then searched the house. Chatham found appellant's brief case and a coat and vest lying on the bed in a small room on the east side of the kitchen. He searched the pockets of the coat and vest, and discovered in one of the vest pockets a small unstamped box containing four indigestion tablets and some other tablets which, upon analysis, were found to be twenty-seven grains of opium. Chatham marked the box for identification, showed it to Caldwell, and delivered the vest to appellant, who put it on. This vest contained appellant's watch and chain. Chatham and Caldwell then searched the kitchen, where they found a greasy lamp, a lemon hull cut across the top, and a bottle. Upon analysis this lemon hull was found to contain about one hundred thirty grains of opium. In the bottle were forty grains of yenshee or opium ash.
The evidence as to the finding of twenty-seven grains of opium in the unstamped box in appellant's vest pocket was sufficient to establish a prima facie case against him and to authorize his conviction upon each count of the indictment based upon the statutes, supra, unless he explained the possession of the drug to the satisfaction of the jury. As to the second count see Yee Hem v. U. S., 268 U. S. 178, 45 S. Ct. 470, 69 L. Ed. 904. As to both counts see Copperthwaite v. U. S., 37 F.(2d) 846, 848 (C. C. A. 6).
Fourth. We do not think that it was reversible error to permit the district attorney to cross-examine appellant touching either his former conviction under the Harrison Anti-Narcotic Act or his connection with Charles Frank. Appellant made no contention that Chatham and Caldwell, or either of them, placed the opium in his vest pocket, or that these officers did not find it there, but testified that he could not account for its presence; that it was not there when he left the vest in the room, and that it was not placed there by him nor with his knowledge, and he insisted that the element of criminal intent was therefore lacking. He testified that he was not a drug addict; that he did not smoke opium; that he did not know that Mrs. Bussey smoked opium, and he explained his presence at the Bussey home by saying that he went there with his wife to arrange for the adoption of the little girl; that his brief case, which was found, contained a shaving outfit; and that he had removed his coat and vest for convenience while shaving. His testimony raised the principal issue, that is, of criminal intent.
It is settled that, when a defendant takes the stand in his own behalf, he does so as any other witness, and may be cross-examined as to the facts in issue and for the purpose of impeaching his credibility. Raffel v. U. S., 271 U. S. 494, 497, 46 S. Ct. 566, 70 L. Ed. 1054; Fitzpatrick v. U. S., 178 U. S. 304, 315, 20 S. Ct. 944, 949, 44 L. Ed. 1078. As was said in the Fitzpatrick Case, if he offers himself as a witness, "he has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts." The extent to which the government may go in the cross-examination of a defendant in a criminal case for the purpose of impeachment is largely a matter of discretion with the trial judge. Powers v. U. S., 223 U. S. 303, 315, 32 S. Ct. 281, 56 L. Ed. 448; Silverman v. U. S., 59 F.(2d) 636, 639 (C. C. A. 1).
The fact that appellant had been previously *799 convicted of a similar offense was relevant, not as substantive evidence upon which he could be convicted of the offense charged, but because it naturally and logically tended to weaken his claim that no criminal intent was shown. Holt v. U. S., 42 F.(2d) 103, 106 (C. C. A. 6); see also New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 591, 598, 6 S. Ct. 877, 29 L. Ed. 997; MacKnight v. U. S., 263 F. 832, 840 (C. C. A. 1); Thompson v. U. S., 144 F. 14, 20, 7 Ann. Cas. 62 (C. C. A. 1).
The cross-examination of appellant touching his relations with Charles Frank was for the same purpose as that touching his own prior conviction, and he was required, over objection, to state that he was with Frank just prior to Frank's arrest, and that he paid Frank's counsel fees and furnished money to secure his appearance bond. He explained that his only dealing with Frank was to take him to a motor company to negotiate for the purchase of a car, and that the money used to secure Frank's bond and to pay counsel fees was the money of Frank's wife, which he handled at her request.
Whether correctly or incorrectly, the court in effect stated in the presence of the jury that appellant's testimony in relation to the fees and expenses touched a collateral matter, and that the district attorney would be bound by his answers. With this statement by the court, the evidence complained of went to the jury with appellant's full explanation, and, if we should concede that it was possibly irrelevant to the inquiry, still we do not think that under the circumstances indicated any practical injustice was caused. We are not authorized to reverse except for errors affecting substantial rights. See section 391, 28 U. S. C. (28 USCA § 391).
Fifth. The court did not err in declining to suppress the testimony of the witnesses Chatham and Caldwell as to the search for and finding of the opium, yenshee, and other articles, without a search warrant. These witnesses were municipal officers. It was not shown that the search was made by them as agents for the government. Chatham, as a police sergeant, was assigned by headquarters to narcotic cases. When the incriminating articles were found, appellant and Mrs. Bussey were taken to the station, and the articles were placed in a vault there. Chatham had the police sergeant make the notation "hold for investigation." This seems to have ended Chatham's connection with the case other than as a witness in the District Court. While it is true that Chatham testified that he had no knowledge of a state law, or municipal ordinance, relating to the possession of narcotic drugs, this is not evidence that there was no such statute or ordinance. There was, in fact, a comprehensive statute of the state making the possession of opium and its derivatives a criminal offense (Public Acts Tenn. 1923, c. 91), and by the Code of Tennessee, 1932, § 6619, these police officers, as conservators of the peace, were required to aid in its enforcement, and for that purpose were clothed with the powers of the sheriff, and, in the absenec of contrary evidence, it must be assumed that the police narcotic squad was organized and the search was made in enforcement of the state law. Weeks v. United States, 232 U. S. 383, 398, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Timonen v. United States, 286 F. 935 (C. C. A. 6). In this respect the case differs from Gambino v. United States, 275 U. S. 310, 317, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381.
Moreover, having denied the ownership and possession of the premises searched, and of the articles seized, appellant cannot avail himself of an objection to evidence of what the search revealed upon the ground that it was unlawful. See Holt v. United States, 42 F.(2d) 103, 105 (C. C. A. 6); Remus v. United States, 291 F. 501, 511 (C. C. A. 6); MacDaniel v. United States, 294 F. 769, 771 (C. C. A. 6).
Sixth. Appellant criticizes the following excerpt from the charge: "Now, Gentlemen, it boils down practically, or as a practical proposition, to a case of veracity between Sergeant Chatham and Caldwell on the one hand, and the defendant, James R. Gowling, on the other, and in that respect, and in that only, you are entitled to consider the previous conviction of Gowling. Gowling has paid his penalty for a previous violation of the narcotic law, and that is the only aspect in which you can consider his guilt or innocence of the present charge, and in that aspect you can consider it, among other elements, as to the truth or the lack of truth of the story that he tells from the witness stand, and you are entitled and are expected to weigh all of these things in arriving at a correct judgment, and you can consider this also, his relations with Frank, his relations with Mrs. Bussey, and the general atmosphere of a man as to whether he is innocent of the possession or the concealment of unlawful drugs, or smuggled drugs, as charged in that count."
He contends that the language, so used, unduly stressed the government's position, *800 and prejudicially conveyed to the jury the impression that the court thought appellant guilty. Considering this excerpt in connection with the charge as a whole, we do not regard it as subject to this criticism, for the court also said to the jury that "what I have to say, if anything, with respect to the facts, you are to disregard entirely," and again he said, "It is not for me to attempt to influence you in any way and if I did you should not be influenced by me because the matter is strictly in your hands the responsibility is on you."
We do not therefore find any reversible error in the instruction complained of. Lovejoy v. U. S., 128 U. S. 171, 173, 9 S. Ct. 57, 32 L. Ed. 389; Shea v. U. S., 251 F. 440, 446 (C. C. A. 6).
Judgment affirmed.
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820 F.2d 1227
Remx Corp.v.Southern Pacific Transp. Co.
85-2436
United States Court of Appeals,Ninth Circuit.
6/22/87
1
N.D.Cal.
AFFIRMED
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"pile_set_name": "FreeLaw"
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194 F.Supp. 383 (1961)
Sam A. McDONALD, doing business as Sam McDonald Launch Service, as Owner of THE Tug CARRIE MACK,
v.
THE Barge 204 and Bay Towing & Dredging Company, Inc.
Doris Pauline PADGETT, Administratrix of the Estate and Chattels and Credits of John William Padgett, Deceased,
v.
Sam A. McDONALD, d/b/a Sam McDonald Launch Service, and Bay Towing & Dredging Company, Inc.
Petition of BAY TOWING AND DREDGING COMPANY, Inc., a corporation, for exoneration from, or limitation of liability as Owner of The Barge 204, Ex Damon Smith.
In re Sam A. McDONALD, doing business as Sam McDonald Launch Service, as Owner of The Tug Carrier Mack, in a cause of exoneration from or limitation of liability.
Nos. 2697, 2717, 2722, 2725.
United States District Court S. D. Alabama, S. D.
July 3, 1961.
*384 Pillans, Reams, Tappan, Wood & Roberts, Mobile, Ala., for Sam A. McDonald, d/b/a Sam McDonald Launch Service.
Hand, Arendall, Bedsole, Greaves & Johnston, McCorvey, Turner, Johnstone, Adams & May, Vickers, Riis & Murray, Mobile, Ala., for Bay Towing & Dredging Co.
Miller & Seeger, New York City, Moore, Simon & Layden, Mobile, Ala., for Doris Pauline Padgett, Adm'x, etc., and Cecil Davis, claimant.
Mize, Thompson & Mize, Gulfport, Miss., Johnston & Johnston, Mobile, Ala., for Thelma Kennedy Miller, Adm'x, etc., claimant.
DANIEL HOLCOMBE THOMAS, District Judge.
At approximately 2:30 p.m. on the afternoon of February 25, 1959, on the Mobile River in Mobile, Alabama, the unmanned Barge 204, owned by Bay Towing and Dredging Company, capsized on the Tug Carrie Mack, owned by Sam A. McDonald, d/b/a Sam McDonald Launch Service. As a result of the capsizing, the Carrie Mack sank to the bottom of the river and two members of her crew drowned.
Several lawsuits were filed as a result of the accident. McDonald filed a libel against Bay Towing, seeking recovery for damages to his tug, which was later raised from the river-bottom and has been placed back in operation. Mrs. Doris Pauline Padgett, administratrix for the estate of John William Padgett, engineer aboard the Carrie Mack, filed suit against Bay Towing for the death of her husband under the Alabama Wrongful Death Act and also against McDonald for damages under the Jones Act, 46 U.S. C.A. § 688. McDonald and Bay Towing both filed petitions seeking exoneration from or limitation of liability. In the latter two cases, in response to the monition which issued from this Court, claims *385 for damages have been filed by the administratrix of the Padgett estate and by Cecil Davis, deckhand aboard the Carrie Mack at the time of the casualty, and the sole survivor. The administratrix of the estate of Jesse E. Miller, captain of the Carrie Mack, in response to the monition in the Bay Towing petition, filed a claim seeking recovery for the alleged wrongful death of Captain Miller. Bay Towing, in response to the McDonald petition, filed a claim for damages to the barge and loss of cargo. Inasmuch as these causes arise out of a single accident, they were consolidated for trial and will be considered together herein.
Findings of Fact
On the morning of February 25, 1959, Captain McDonald entered into an oral agreement with Bay Towing to tow that company's Barge 204, which had been loaded by Bay Towing the previous evening with approximately 800 short tons of oyster shells, from its mooring place at McDuffie Island on the Mobile River to the plant of Ideal Cement Company, located approximately four miles upriver from McDuffie Island. The barge had been loaded in Mobile Bay, several miles from McDuffie Island, and had been towed by one of Bay Towing's tugs to the McDuffie Island location. Pursuant to the towage agreement, McDonald dispatched the Tug Carrie Mack, under the command of Captain Jesse E. Miller, to pick up the barge and tow it to the agreed destination.[1]
The Carrie Mack,[2] manned by Captain Miller, engineer John W. Padgett, and deckhand Cecil Davis, arrived at the location of the Barge 204[3] sometime between 1:30 p. m. and 1:45 p. m. on the afternoon of February 25. They found the barge with one side against the riverbank and the other side facing the river. The barge was listing to the side facing the river. Witnesses estimated this list to be from six inches, which they said would be hardly noticeable, to eighteen inches, which would place the listing side of the barge almost flush with the water line. There was testimony to the effect that the high side of the barge (the side near the riverbank) appeared to be aground. From this evidence it is reasonable to conclude, and the Court so finds, that the barge did have a noticeable list at the time the Carrie Mack arrived at the mooring position. The Court also finds that the list was noticeable to the extent that the crew of the Carrie Mack knew, or should have known, of its existence.
The crew did not inspect the tank compartments of the barge for water nor did they make any effort to determine what was causing the barge to list, although they could have done so with minimum effort. Captain Miller made the tug up to the barge on the river side (the low side) with the port side of the tug to the barge. Three lines were put out from the tug to the barge: a bow line which ran from the bow of the tug forward on the barge; a quarterline which ran from the tug's quarter bitts aft to the corner bitts of the barge; and a sternline leading from the tug's after towing bitts across the shore corner of the barge. Made up in this manner, the Carrie Mack, at approximately 2:00 p. m., commenced the towing maneuver upriver in the direction of Ideal Cement Company.
Numerous witnesses who had observed the Carrie Mack as she proceeded upriver with her tow were produced at the trial. All of them testified that the barge was listing. The majority of the witnesses testified as to the appearance of the tug and barge after they had moved some one and one-half to two miles upriver, or approximately *386 ten minutes prior to the accident. The events of this ten-minute period are of vast importance to the ultimate conclusion to be reached in these several causes.
During this period, the list of the barge began to increase at an alarming rate. The peak load of oyster shells began to shift in the direction of the tug and shells were being washed overboard on the listing side of the barge. On board the tug, Davis and Padgett hastened to the pilot house to get instructions as to what action they should take under the circumstances. They found Captain Miller talking on the radio-telephone to McDonald. He was advising McDonald of the situation and seeking instructions. McDonald testified that he had instructed Captain Miller to beach the barge.[4] Obviously, at this particular point there was no time left to carry out the instructions. Padgett gave Davis a butcher knife, the fire ax on the tug being broken, and told him to stand by the sternline, and when he, Padgett, cut the quarterline, Davis was to cut the sternline. When Davis saw that Padgett had cut the quarterline, he threw off the sternline. He saw Padgett disappear around the pilothouse, presumably to cut the bow line. At this point, the barge rolled over on its starboard side (the side nearest the tug), spilling the cargo of oyster shells onto the deck of the tug and into the river, and capsized on top of the tug. The impact sank the Carrie Mack to the bottom of the river. Davis was thrown clear of the vessels and was rescued by a skiff from a nearby tug. Captain Miller was seen floating in the river but he disappeared under the water before rescuers could reach him. Padgett's body was found in the living quarters of the tug. (This fact is difficult to reconcile with Davis's testimony.) The barge remained afloat in an up-side-down position and was later pushed to the riverbank.
The value of the tug immediately following the accident was $17,231. The value of the barge was $18,144.
McDonald and Captain Miller's estate contend that the accident was the result of the unseaworthy condition of the Barge 204. They argue that the barge was in a deplorable condition and that this condition was the sole and proximate cause of the casualty. Conversely, Bay Towing contends that the barge was seaworthy for the purpose for which it was being used. It further contends that the accident was the result of negligence on the part of Captain Miller in the operation of the tug and also the unseaworthy condition of the Carrie Mack. Padgett's estate and Davis, in their effort to attach liability to both Bay Towing and McDonald, join in Bay Towing's position to a degree, but maintain that Bay Towing should also be found liable because of the unseaworthy condition of the barge. In brief, McDonald and Miller's estate contend that the casualty resulted solely from the unseaworthy condition of the Barge 204; Bay Towing denies this allegation and argues that Captain Miller and McDonald were at fault; and Padgett's estate and Davis contend it was the combined unseaworthiness of the tug and barge and the negligence of Captain Miller which caused the casualty.
The Court will now examine each of the above allegations.
Barge 204
The Barge 204 was originally constructed as an oil barge and was approximately seventeen years old. In 1952, it was converted from an oil barge to a shell barge, and had been used in that capacity since that time. Since its conversion, the barge had been drydocked on two separate occasions, the last being in February 1958 when some repairs were made to the deck and the bulkhead, and some internal work was done. On the occasion of the 1958 drydocking, it was observed by employees of Bay Towing that the bottom plates of the barge were badly wasted, but no repairs were made at that time to the wasted area.
*387 Bay Towing's employees and one or more of its managing officers observed the barge while she was tied up at McDuffie Island. They testified that the barge was listing when they observed her but that they took no steps to make a close inspection and determine the cause. They further testified that the barge had been pumped out some four or five days prior to the casualty.
After the accident, the bottom of the barge was examined and numerous cracks and breaks were discovered. These were old breaks and were not the result of the accident. They measured up to six inches in length and were from 1/8 to 3/8 inch in width. An expert witness calculated that the barge was taking on water through these breaks at the rate of approximately fifteen tons per hour. That the barge was taking on water at a rapid rate was further evidenced by the fact that the list grew progressively worse as the tug and tow proceeded upriver. Subsequent to the accident in question, the bottom plates of the barge were repaired. From the evidence, the only entrance for water into the barge was through the aforementioned cracks and breaks. Although there was evidence to the effect that most of the shell barges operating in the Mobile River area have some degree of list, I think the conclusion inescapable that the Barge 204 was unseaworthy.
In the United States Supreme Court decision of The Silvia, 1898, 171 U.S. 462, 19 S.Ct. 7, 43 L.Ed. 241, the Court, speaking through Justice Gray, states:
"The test of seaworthiness is whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport." 171 U.S. at page 464, 19 S.Ct. at page 8.
I do not think the Barge 204 met this test. The evidence, in my opinion, is conclusive that the barge was not reasonably fit to transport the load of oyster shells because of the condition of its bottom plates. I further find that Bay Towing, through its employees and managing officers, had knowledge, or certainly should have had knowledge, of this condition.
The Carrie Mack
Bay Towing, Padgett's estate, and Davis set forth several factors which they contend made the Carrie Mack unseaworthy. The only allegations which warrant consideration are (1) the failure of the Carrie Mack to have a sound fire axe aboard, and (2) the improper ballasting of the vessel.
It is undisputed that the handle of the fire axe on the vessel was broken. It is also a well known fact that fire axes aboard vessels are used as safety devices in emergency situations, e. g., cutting tow lines; however, under the circumstances, I do not believe any number of perfectly sound fire axes would have benefited the Carrie Mack's crew. By the time Davis and Padgett started to cut the towing lines with butcher knives, it was too late for the tug to maneuver so as to clear the barge. At that moment, a usable fire axe would not have assisted the tug in avoiding the accident. The failure of the vessel to have a usable fire axe on board may, under some circumstances, constitute an unseaworthy condition; but I find as a matter of fact that in this instance the absence of a usable fire axe was not the proximate cause of the accident and in no manner contributed to the resulting casualties.
It is also contended that improper ballasting of the tug caused her to sink. Much significance is attached to the fact that McDonald himself, who admittedly was not a nautical engineer, had ballasted the tug through the use of pieces of iron, concrete blocks, and other materials. These materials were not cemented in the tug, but were wedged in together. Bay Towing and the others argue that if the tug had been properly ballasted, she would not have sunk under the impact of the barge. I do not think the method by which McDonald ballasted the tug indicates that she was improperly ballasted. It is mere conjecture to state that proper ballasting would have prevented the tug's sinking. Consequently, the Court finds as a matter of fact that the tug Carrie Mack was seaworthy.
*388 Negligence of the Master of the Tug
Bay Towing, joined by Padgett's estate and Davis, set forth numerous acts or instances where Captain Miller, as master of the tug, failed to act, which acts or omissions they contend constituted negligence and were the proximate cause of the accident. In substance, these acts are: (1) Miller's taking the obviously listing barge in tow without endeavoring to ascertain the cause of the list and without pumping out the barge's tank compartments; (2) the manner in which he made up to the barge; (3) his failure to keep or cause to be kept a close watch over the barge while she was underway, although he knew or should have known of the listing condition; and (4) his failure to cut away from or beach the barge when it was obvious that the list was growing progressively worse and increasing to a point of danger.
Several experienced tug captains testified as to how they would have made up to the barge if they had found her in the same position as Miller. Some of them agreed with Miller's method and others disagreed. I am of the opinion that it was not negligence for Miller to make the tug up to the barge in the manner he did. There is nothing in the evidence to indicate that the casualty could have been avoided by making the tug up to the barge in any other way.
I further find that Miller's action in taking the barge in tow initially, without first seeking to ascertain the cause of the list, did not constitute negligence. From the evidence, it is apparently common knowledge among the men who work the river that many of the shell barges operating in the Mobile area have some degree of list. Bay Towing's own employees testified that they did not notice anything wrong with the barge as she lay in her mooring slip on McDuffie Island prior to the time she was taken in tow by the Carrie Mack. They also stated that they had pumped the barge out a few days prior to the date in question. The Court finds as a matter of fact that the appearance of the barge at the time Miller took her in tow was not such as to give him cause for alarm; hence, his action in taking her in tow was not negligent.
There is merit in the contentions that Miller was negligent in his actions after the tug and tow began the maneuver upriver. The evidence, as depicted by the testimony of the witnesses, presents a very clear picture of the events that occurred as the tug and tow proceeded up-river. The barge had been listing from the time the tug took her in tow. While this may not have caused Miller to become alarmed, it should have put him on notice to keep the barge under constant surveillance. The list increased to a point where the barge edge was flush with the water level and shells were being washed overboard. This condition existed from ten to fifteen minutes prior to the accident. It is difficult to imagine that Miller was not fully aware of this condition; and if he was not, as master of the tug, he should have been aware of it.
Captain Miller, immediately prior to the capsizing, contacted his superior on the radio-telephone to inform him that the barge was sinking and to request instructions. By this time, it was too late for any action to be taken. It is impossible to determine how long Miller was aware of the existing danger; but as an experienced tugboat captain, he should have been aware of it from the moment of its inception. With the possibility of disaster so evident, one ponders why Miller, who as master of the tug had full authority to take whatever action he deemed advisable in his sound judgment, consumed precious time in calling his superior for instructions. It is also difficult to determine why he delayed so long in contacting McDonald. The only reasonable explanation is either that he thought he could get the barge to her destination or he was not keeping the tow under observation. The evidence shows that there were numerous locations where he could have beached the barge prior to the time he called McDonald.
Unquestionably, Captain Miller erred in his judgment to keep on his *389 course upriver. However, every error in judgment is not negligence. As the court stated in The Eli B. Conine, 2 Cir., 1916, 233 F. 987:
"The error must be measured by the standards of conduct and business knowledge furnished by the evidence and by experience of which even courts can take cognizance without direct testimony. If the error, viewed from that standpoint, is such as would not have been committed by a reasonable man, reasonably skilled in his occupation, it is negligence." 233 F. at page 988.[5]
With this test in mind, I find that Captain Miller's error in judgment was negligence. There was ample opportunity for him to either beach the barge or cut away from her prior to her capsizing. Admittedly, he could not foresee the exact moment the barge would sink or capsize. But he must have been cognizant of the perilous condition of the barge prior to the time he contacted McDonald; and if he was not, as master of the tug, it was his duty to keep himself apprized of the situation at all times. His failure in that duty must be found to be negligence. His desire to reach his destination, while admirable, was no excuse for keeping the barge in tow until his own life and the lives of his crew had become endangered.
In summary, the Court finds that the unseaworthiness of the barge and the negligence of the master of the tug both contributed to the accident and produced the resulting casualties.
Conclusions of Law
I.
This accident having occurred on navigable waters, the Court has jurisdiction of the subject matter now before it.
II.
Having found as a matter of fact that the Barge 204 was unseaworthy and that Bay Towing, through its officers and employees had knowledge, or at least had the means of knowledge, of this unseaworthy condition, it follows as a matter of law that Bay Towing is not entitled to be exonerated from, nor to limit its liability. Coryell v. Phipps, 1943, 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363; Spencer Kellogg & Sons, Inc. v. Hicks, 1932, 285 U.S. 502, 52 S.Ct. 450, 76 L.Ed. 903; States Steamship Co. v. United States, 9 Cir., 1958, 259 F.2d 458; Saskatchewan Government Ins. Office v. Spot Pack, Inc., 5 Cir., 1957, 242 F.2d 385. Section 183(a), Title 46 U.S.C.A., provides as follows:
"(a) The liability of the owner of any vessel, whether American or foreign, for any embezzlement, loss, or destruction by any person of any property, goods, or merchandise shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not * * * exceed the amount or value of the interest of such owner in such vessel, and her freight then pending."
Employees of Bay Towing testified that they observed the barge listing prior to her being taken in tow by the Carrie Mack, but that they made no effort to ascertain the cause of the list. It was the responsibility of these employees to maintain the company's equipment so that it would be in a seaworthy condition. Records of the barge revealed that it had not been drydocked since February of 1958, and that at that time no work was done on the bottom plates of the vessel although they were found to need repairing. The employees knew the barge was taking on water from some source because they had pumped her out only a few days prior to the accident. Even though there was general testimony that most shell barges leak and have some degree of list, the Barge 204 should have been more thoroughly inspected before she was loaded *390 with a peak load of oyster shells. Also she should have been more thoroughly inspected subsequent to her loading. Bay Towing had the means of knowledge, through its officers and employees, to be apprized of the wasted condition of the bottom plates of the barge. This knowledge bars Bay Towing's efforts to bring itself within the purview of the liability limitation statute.
III.
The Court has found Captain Miller, master of the Carrie Mack, negligent in the operation of the tug. While this negligence was not the only cause of the accident, it was so connected with the unseaworthiness of the barge that it was an equal fault in contributing to the death of Captain Miller. In ruling on the pleadings in this case, I have held that Captain Miller's contributory negligence, if any, would not be a bar to the recovery by his administratrix, but would be in mitigation as to amount. His fault being equal with that of the unseaworthiness of the barge, the recovery by the administratrix should be diminished by fifty per cent.
IV.
Turning to the right of McDonald to recover for damages to his tug and to the right of Bay Towing to recover damages under its claim from McDonald, the Court is cognizant of the doctrine of mutual fault as it is applied to admiralty collision cases.[6] That doctrine provides that in collision cases where two vessels are at equal fault, each must pay one-half the other's damages. I do not think that doctrine is applicable to the facts in the instant cases for two reasons: (1) Here the faults were equal and separate, but they were so interrelated that both were responsible for the resulting damages. This is not a situation where two separately operated vessels collided, but a case where an unseaworthy barge capsized on a tug whose master was negligent in his duties. The negligence of the master did not cause the barge to capsize because her own unseaworthiness produced that result; but his negligence did place the tug and her crew in a perilous situation. (2) This very complicated and peculiar set of facts does not in my opinion present a situation which could be classified as a collision, not even within the purview of the term in admiralty proceedings. Consequently, both Bay Towing and McDonald are barred from recovering any damages from each other.
V.
Captain Sam McDonald, as owner of the Carrie Mack, is entitled to limit his liability to the value of the tug. It is unquestioned that Captain Miller was acting within the course of his employment at the time of the accident. McDonald, under the doctrine of respondeat superior, is liable for damages sustained by members of the crew as a result of the master's negligence. However, this does not mean that McDonald is barred from limiting his liability under section 183 (a) of Title 46 U.S.C.A. In La Bourgogne, 1908, 210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973, the Supreme Court said:
"Without seeking presently to define the exact scope of the words privity and knowledge, it is apparent from what has been said that it has been long since settled by this court that mere negligence, pure and simple, in and of itself does not necessarily establish the existence on the part of the owner of a vessel of privity and knowledge within the meaning of the statute." 210 U.S. at page 122, 28 S.Ct. at page 673.
And in Coryell v. Phipps, 1943, 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363, the Court said:
"In the case of individual owners it has been commonly held or declared *391 that privity as used in the statute means some personal participation of the owner in the fault or negligence which caused or contributed to the loss or injury. [Citing cases.] That construction stems from the well settled policy to administer the statute not `with a tight and grudging hand' * * * but `broadly and liberally' so as `to achieve its purpose to encourage investments in shipbuilding and to afford an opportunity for the determination of claims against the vessel and its owner.'" 317 U.S. at page 411, 63 S.Ct. at page 293.
Having found that the Carrie Mack was seaworthy and that McDonald was without privity or knowledge of the master's negligence, it follows that he is entitled to limit his liability to the value of the tug as it lay on the bottom of the Mobile River. This value has been found to be $17,231.
VI.
Neither Padgett nor Davis was guilty of any negligence which contributed to their respective injuries; therefore, Padgett's widow and Davis are entitled to recover damages from Sam McDonald and Bay Towing and Dredging Company.
Damages
Davis Claim. Davis's damages are compensatory. His injuries consisted of a broken finger and a bruised knee and shock. It is true that he underwent a very harrowing experience; however, he did not lose any time from his work and he was never hospitalized. For the injuries sustained by him, I award Davis $3,000 damages. I assess $1,500 of this amount against Bay Towing and $1,500 against McDonald.
Padgett Claim. Padgett's administratrix contends that she is entitled to recover compensatory damages from McDonald under the Jones Act and also is entitled to recover punitive damages from Bay Towing under the Alabama Wrongful Death Act. There is merit in this contention. The Supreme Court of Alabama has repeatedly held that the damages recoverable under the wrongful death statute are punitive as distinguished from actual or compensatory.[7] Damages recoverable under the Jones Act, Title 46 U.S.C.A. § 688, are limited to pecuniary loss.[8] In view of these premises, I am of the opinion that Padgett's widow should be permitted to recover from both Bay Towing and McDonald.
At the time of his death, Padgett was forty-seven years old. Under the mortality tables of Alabama he possessed a life expectancy of 23.08 years. His average annual income at the time of his death was in excess of $3,600. His administratrix claims that the pecuniary loss to her was $250 a month for a period of 277 months. I am of the opinion that a more realistic figure would be $200 a month for a period of 180 months.[9] Application of the 3% discount rate under the Alabama Annuity Table indicates that the cash value of an annuity of $200 per month for 180 months is the sum of $28,961.08, and this is the amount that I find Mrs. Padgett is entitled to recover as compensatory damages. However, inasmuch as the Court has found that McDonald is entitled to limit liability to the value of the Carrie Mack as she lay on the bottom of the river, Mrs. Padgett is entitled to recover from McDonald $17,231 less the amount to be awarded Davis. Thus, Mrs. Padgett is entitled to recover the amount of $15,731 from McDonald.
*392 I further award Mrs. Padgett, as punitive damages against Bay Towing for the wrongful death of John William Padgett, the amount of $18,731.
I further award Thelma Kennedy Miller, administratrix of the estate of Jesse E. Miller, deceased, as punitive damages against Bay Towing for the wrongful death of Jesse E. Miller, deceased, one half of $18,731, or $9,365.50.
I allow no interest in either the Davis, the Padgett, or the Miller claims prior to March 31, 1961, the date of the original decree. However, interest at the rate of 6% per annum shall run on the award in each of said claims from March 31, 1961, until paid.
Costs will be taxed against Bay Towing and McDonald, and divided equally between them.
NOTES
[1] The towage agreement was made by phone, and contained nothing more than a promise to tow at a particular time and a promise to pay.
[2] The Carrie Mack is a steel tug, 50 ft. in length with a 14 ft. beam, and is powered by a 210 h. p. diesel engine.
[3] The Barge 204 is a steel, flat barge with registered dimensions of 180 ft. by 35 ft. by 9 ft. 10 inches. Its interior is divided into 6 center line tanks. Each of these tanks has a pump-out hole so that they may be pumped out separately. There was no pen or retaining wall on the flat deck of the barge.
[4] There were several locations along the riverbank where the barge possibly could have been beached.
[5] See also The Edgar H. Vance, 9 Cir., 1922, 284 F. 56.
[6] The North Star, 1882, 106 U.S. 17, 1 S. Ct. 41, 27 L.Ed. 91; The Chattahoochee, 1899, 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801; Koch-Ellis Marine Contractors, Inc. v. Chemical Barge Lines, Inc., 5 Cir., 1955, 224 F.2d 115; Benedict on Admiralty, Vol. 3, sec. 417(a), p. 186.
[7] Gulf, Mobile & Ohio R. Co. v. Williams, 251 Ala. 516, 38 So.2d 334; Day v. Downey, 256 Ala. 587, 56 So.2d 656; Hampton v. Roberson, 231 Ala. 55, 163 So. 644.
[8] Petition of Southern Steamship Co. D.C.Del.1955, 135 F.Supp. 358; Gerardo v. United States, D.C.Cal.1951, 101 F. Supp. 383; Benedict on Admiralty, Vol. 1, sec. 144, Page 387; Sabine Towing Co. v. Brennan, 5 Cir., 1936, 85 F.2d 478.
[9] The Smith Work-Life Expectancy Table.
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557 N.W.2d 641 (1997)
251 Neb. 367
MAIN STREET MOVIES, INC., a Nebraska Corporation, Appellee, and TV Cats, Inc., et al., Intervenors-Appellees,
v.
Michael WELLMAN, County Attorney, Sarpy County, Nebraska, Appellee, and State of Nebraska ex rel. Don Stenberg, Attorney General, Intervenor-Appellant.
No. S-94-988.
Supreme Court of Nebraska.
January 3, 1997.
*643 Don Stenberg, Attorney General, and James H. Spears for appellant.
Michael A. Kelley and Christopher D. Jerram, of Kelley & Lehan, P.C., and Richard J. Dinsmore, Omaha, for appellee Main Street Movies and intervenors-appellees.
WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.
CAPORALE, Justice.
This declaratory judgment action brought by the plaintiff-appellee, Main Street Movies, Inc., against the defendant-appellee, Michael Wellman, County Attorney of Sarpy County, Nebraska, seeks a determination as to whether certain so-called "adult" videotaped movies, explicitly depicting a variety of sexual acts, offered for sale and rental to the public are criminally obscene. The remaining appellees, TV Cats, Inc.; Vichaty, Inc.; and Movietime, Inc., intervened as plaintiffs, and the appellant, State of Nebraska ex rel. Don Stenberg, Attorney General, intervened as a defendant. Following a bench trial, the district court entered a judgment declaring that the six movies here at issue were not criminally obscene. In challenging that ruling before the Nebraska Court of Appeals, the State asserted, among other things, that the district court erred in its evidential rulings. We thereafter granted the State's petition to bypass the Court of Appeals and now reverse the district court's judgment and remand the matter for further proceedings.
An action for declaratory judgment is sui generis, and whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute. See Donaldson v. Farm Bureau Life Ins. Co., 232 Neb. 140, 440 N.W.2d 187 (1989). As the issue here is whether the movies in question are obscene in the sense that selling or making them available for rental would violate a criminal statute, we review this matter as a criminal case at law.
The plaintiffs collectively own seven stores in Sarpy County and allege that they are engaged in the sale and rental to the public of sexually explicit, videotaped movies. Neb. Rev.Stat. § 28-813 (Reissue 1995) makes it unlawful and a Class I misdemeanor for one to, among other things, possess "with intent to sell [or] rent . . . any obscene material.. . ." This action was brought under the provisions of Neb.Rev.Stat. § 28-820 (Reissue 1995), which, among other things, permits one having a "genuine doubt" as to the obscenity of material to bring a declaratory judgment action against the chief law enforcement officer of the area in which the material is sold or rented.
In the fall of 1991, the Attorney General's office sent letters to the Sarpy County video stores, stating that the Attorney General had received a complaint about such stores distributing obscene material and that legal action would be brought against stores that continued to distribute such material. The Attorney General further encouraged Wellman to bring an action against various video *644 stores in Sarpy County. While Wellman chose not to do so, the Attorney General was prepared to prosecute.
Neb.Rev.Stat. § 28-807(10) (Reissue 1995) provides:
Obscene shall mean (a) that an average person applying contemporary community standards would find that the work, material, conduct, or live performance taken as a whole predominantly appeals to the prurient interest or a shameful or morbid interest in nudity, sex, or excretion, (b) the work, material, conduct, or live performance depicts or describes in a patently offensive way sexual conduct specifically set out in sections 28-807 to 28-829, and (c) the work, conduct, material, or live performance taken as a whole lacks serious literary, artistic, political, or scientific value.
Neb.Rev.Stat. § 28-814(2) (Reissue 1995) declares that
the guidelines in determining whether a work, material, conduct, or live exhibition is obscene are: (a) The average person applying contemporary community standards would find the work taken as a whole goes substantially beyond contemporary limits of candor in description or presentation of such matters and predominantly appeals to the prurient, shameful, or morbid interest; (b) the work depicts in a patently offensive way sexual conduct specifically referred to in sections 28-807 to 28-829; (c) the work as a whole lacks serious literary, artistic, political, or scientific value; and (d) in applying these guidelines to the determination of whether or not the work, material, conduct or live exhibition is obscene, each element of each guideline must be established beyond a reasonable doubt.
Called as a witness by the plaintiffs, Wellman testified that he began working in the Sarpy County Attorney's office in 1975, was the chief deputy county attorney from 1977 until 1990, and has been the Sarpy County Attorney since April 1990. Although adult video movies have been available in Omaha since the late 1970's, between 1978 and 1990 the Sarpy County Attorney's office received only one complaint, which came from an Iowa resident.
Around 1990, Wellman actively sought the views of Sarpy County residents concerning the sale and rental of adult videos and related matters. He talked with people he met and asked them their views regarding the possible prosecution of video stores which sell and rent adult videos, and discussed this issue with people who called his office on other matters. On the basis of those conversations, Wellman testified over objection that a fairly substantial majority of people in Sarpy County believes that the government should not be "sticking its nose" into people's living rooms and that the residents of Sarpy County are opposed to material depicting sexual violence and sex with children, do not want adult material available to children, do not want adult-only bookstores and theaters or other adult-only places, but do not mind if video stores sell or rent adult material as a side business.
Among other claims of evidential error, the State asserts that the district court wrongly received and relied upon Wellman's opinion as to the relevant contemporary community standard. While a jury may ascertain the sense of the average person, applying contemporary community standards without the benefit of expert evidence, Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977), and Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), we have held that a defendant in a criminal obscenity case nonetheless has a right to introduce evidence pertaining to the community standard. State v. Little Art Corp., 189 Neb. 681, 204 N.W.2d 574 (1973), vacated on other grounds 414 U.S. 992, 94 S.Ct. 345, 38 L.Ed.2d 231.
Where the statutes embodying the rules of evidence apply, the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility. State v. Lee, 247 Neb. 83, 525 N.W.2d 179 (1994). Neb.Evid.R. 702, Neb. Rev.Stat. § 27-702 (Reissue 1995), provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact... to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify *645 thereto in the form of an opinion or otherwise."
There is no exact standard for determining when one qualifies as an expert, and a trial court's factual finding that a witness qualifies as an expert will be upheld on appeal unless clearly erroneous. Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 468 N.W.2d 105 (1991); State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990). Cf. Palmer v. Forney, 230 Neb. 1, 429 N.W.2d 712 (1988) (trial judge's ruling regarding admissibility of expert testimony will not be reversed absent abuse of discretion). However, whether one qualifies as an expert depends on the factual basis or reality underlying the witness' title or claim to expertise. See Reynolds, supra.
Under the circumstances, Wellman's testimony does nothing more than explain how he determined in his own mind not to prosecute and constitutes nothing more than an expression of his individual sense of the contemporary community standard. Wellman's knowledge, skill, experience, training, and education as a prosecutor do not qualify him as an expert in determining public opinion. See, State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996) (not error to exclude testimony of witness not shown to be expert in crime scene reconstruction); State v. Borchardt, 224 Neb. 47, 395 N.W.2d 551 (1986) (error to admit result of test not shown to demonstrate that which test is claimed to demonstrate). It was therefore clearly erroneous for the district court to have received Wellman's opinion as to the contemporary community standard.
The erroneous admission of evidence in a bench trial of a law action, including a criminal case, is not reversible error if other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court's necessary factual findings; in such case, reversal is warranted if the record shows that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence. State v. Chambers, 241 Neb. 66, 486 N.W.2d 481 (1992). Here, the district court expressly noted that Wellman's testimony "provided significant insight as to the [contemporary community] standard and [the district court finds] his testimony has substantial probative value." We can only conclude therefrom that the district court resolved the factual issue of what constitutes the contemporary community standard in at least partial reliance on Wellman's testimony.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
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84 U.S. 253 (1872)
17 Wall. 253
TYLER
v.
MAGWIRE.
Supreme Court of United States.
*267 Mr. P. Phillips, with whom was Mr. B.A. Hill, now moved to dismiss the writ for want of jurisdiction.
Mr. S.T. Glover, with whom were Messrs. J.M. Carlisle and J.D. McPherson, contra.
*272 Mr. Justice CLIFFORD delivered the opinion of the court.
Power to re-examine, in a certain class of cases, final judgments and decrees in the highest court of law or equity of a *273 State, and to reverse or affirm the same upon a writ of error, was conferred upon the Supreme Court by the twenty-fifth section of the Judiciary Act, and the same section provides that the writ of error shall have the same effect as if the judgment or decree had been rendered or passed in the Circuit Court, and that the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision, may, at their discretion, if the cause shall have been once before remanded, proceed to a final decision of the same, and award execution.[*] Where the reversal is in favor of the original plaintiff, and the damages to be assessed or matters to be decreed are uncertain, the Supreme Court will remand the cause for a final decision, unless the same shall have been once before remanded, in which case the court may, at their discretion, proceed to a final decision of the cause. Execution in that event may be awarded here, but the court, in all other appellate cases, will send a special mandate to the subordinate court for all further necessary proceedings.
Such were the directions of the Judiciary Act, but the Congress, on the 5th of February, 1867, amended that section in several particulars, and provided that the writ of error, in such a case, shall have the same effect as if the judgment or decree had been rendered or passed in a Federal court, and that the proceeding upon the reversal shall also be the same, except that the Supreme Court may, at their discretion, proceed to a final decision of the same and award execution or remand the same to the inferior court.[]
Titles to lands claimed by individuals in Louisiana, at the time the province was ceded to the United States, were, in many cases, incomplete, as the governor of the province never possessed the power to issue a patent. All he could do was to issue to a donee an instrument called a concession or order of survey, and as the claimants had never obtained patents from the supreme government it became necessary for a plaintiff, in a suit to recover the land, to prove that his *274 claim had been confirmed under some act of Congress. Complete titles, of which there were a few at the date of the cession, required no such confirmation, as they were protected by the third article of the treaty of cession.[*] It was stipulated by the treaty that the inhabitants of the ceded territory should be admitted into the Union as soon as possible, and that in the meantime they should be maintained and protected in the free enjoyment of their property. Congress accordingly passed the act of the 2d of March, 1805, to ascertain and adjust the titles and claims to land in the ceded territory.[] Prior to the passage of that act, however, the province ceded by the treaty had been organized by Congress into two Territories, and the fifth section of the act to ascertain and adjust such titles and claims made provision for the appointment of commissioners in each of those Territories to ascertain and adjudicate the rights of persons presenting such claims. Such commissioners were required by that act to lay their decisions before Congress, but a subsequent act provided that the decision of the commissioners when in favor of the claimant should be final against the United States.[]
Both parties in this case claim under the same concession, which was issued by the governor to Joseph Brazeau. On the 1st of June, 1794, he presented his petition to the governor, asking for a tract of land situate in the western part of the town of St. Louis, beyond the foot of the mound called La Grange de Terre, of four arpents in width, to extend from the bank of the Mississippi in the west quarter, southwest, by about twenty arpents in depth, beginning at the foot of the hill on which stands the mound and ascending in a northwest course to the environs of Rocky Branch, so that the tract shall be bounded on the east side by the bank of the river, and on the other sides in part by the public domain, and in part by the lands reunited to that domain. *275 Ten days later the governor executed an instrument in which he declared that the tract belonged to the public domain, and certified that he had put the petitioner in possession of the same, specifying in a general way the boundaries of the tract, and describing it as four arpents front by twenty arpents in depth. On the 25th of June, in the same year, the governor issued a concession to the petitioner, in which he formally granted to the donee in fee simple, for him, his heirs or assigns, or whosoever may represent his rights, a tract of land ... of four arpents front by twenty arpents in depth, situate north of the town; ... to begin beyond the mound, extending north-northwest to the environs of Rocky Branch; bounded on one side by the bank of the river, and on the opposite by lands reunited to the public domain through which the concession passes, of which one end is to be bounded by the concession to one Esther, a free mulatto woman. Five years before the treaty of cession, on the 9th of May, the donee, by a deed of that date, duly executed before the governor, sold, ceded, relinquished, and transferred to Louis Labeaume, "a concession of land to him given," as aforesaid, consisting of four arpents of land, to be taken from the foot of the hill called La Grange de Terre, by twenty arpents in depth; bounded by the Rocky Branch at the extremity opposite the hillock, east by the river, and west by the land belonging to the royal domain, the said Brazeau reserving to himself four arpents of land to be taken at the foot of the hillock in the southern part of said land, ... selling only sixteen arpents in depth to said Labeaume, who accepts the sale on those terms and conditions; and the record shows that the instrument was signed by both parties. Four by sixteen arpents were vested in the purchaser by that deed, but he desired to enlarge his possession and he asked the governor to grant him an additional tract of three hundred and sixty arpents, including the tract he acquired by that conveyance, and the governor, on the 15th of February following, made the concession and directed in the same instrument that the surveyor should make out the survey in continuation of his antecedent purchase, *276 and that he should put the interested party in possession of the described premises. Pursuant to those directions the surveyor made the requisite survey, but he included the whole of the former concession in the certificate, overlooking the undisputed fact that the grantor of the deed reserved to himself 4 × 4 arpents of the same, "to be taken at the foot of the hillock in the southern part of said land," which shows the origin of this long-protracted controversy. Special consideration was given to that survey in the first opinion delivered in this case, in which the court decided that such a survey, however the error may have arisen, cannot have the effect to enlarge the rights of the purchaser or to diminish or impair the rights of the donee of the concession, to the 4 × 4 arpents reserved in the said deed, and which were never conveyed to the grantee of the residue of the tract.
Enough has been remarked to show that the premises in controversy are the 4 × 4 arpents reserved in the deed from Joseph Brazeau to Louis Labeaume, and that the plaintiff claims title under the former and that the defendants claim under the latter. Conflicting claims to the premises existing, the plaintiff, on the 18th of September, 1862, commenced the present suit in the land court of the county, but the suit was subsequently transferred by a change of venue to the Court of Common Pleas of the same county, the claim of the plaintiff being for 4 × 4 arpents of land, as described in the petition, and which, as alleged in the petition, was confirmed to the plaintiff by the land commissioners. Full description of the premises as confirmed to the donee is given in the petition, as follows: "Beginning at a point on the right bank of the Mississippi River, the northeast corner of survey No. 3342, in the name of Esther, a free mulatress woman, or her legal representatives, and the southeast corner of Louis Labeaume, survey No. 3333; thence south 74° 30' west with the southern boundary of the Louis Labeaume survey and the northern boundary of the Esther survey, to the northwest corner of the Esther survey; thence north 23° west 776 feet 8 inches, to a stone; thence 74° 30' north 776 feet 8 inches, to a point on the right bank of the *277 Mississippi River; thence down and along the right bank of said river, to the beginning corner."
Having described the premises the plaintiff then proceeded to allege that the tract of land so meted and bounded justly and honestly belongs to him as the claimant under the original donee, and charges that the defendants, on the 26th of February, 1852, procured a survey of the same to be made, under the authority of the United States, for the other claimant, which embraces the described tract, and caused the same to be set apart for such other claimant, and that they afterwards, on the 25th of March, 1852, procured a patent to be issued to that same party upon the said survey; that the said 4 × 4 arpents, as reserved in the deed of the original donee, was, on the 8th of May, 1862, again surveyed by the proper authorities and that the same was laid off in the southeast corner of the survey, with its southern boundary coincident with the northern boundary of the Esther tract, and that said survey was duly approved and that a patent was duly issued for the said 4 × 4 arpents of land to the original donee or his legal representatives; that the survey and patent to the other claimant, so far as they conflict with the survey and patent to the original donee, are a cloud upon the title of the plaintiff, as they are older than the latter, and that the defendants continually assert the validity of the former and the invalidity of the latter; that they have combined and confederated to keep the plaintiff out of the possession of the premises, and that they have received the rents and profits thereof to an amount not less than $25,000; and he prays that he may be protected and established in his just rights, and that the court, by its judgment and decree, will divest out of the defendants all the right, title, and interest acquired or claimed by them from the other claimant, or any one claiming under him, and invest the same in the plaintiff and put him in possession thereof, and that an account may be taken of the rents and profits which have accrued while the defendants were in possession of said premises and that the plaintiff may have judgment therefor; and he also prays for such other relief as may be proper in *278 the case. Service was made and the defendants appeared and filed an answer, denying pretty nearly every material allegation of the petition. They admitted, however, that the governor made the concession of the 4 × 20 arpents to Joseph Brazeau, and they set up as the source of their title the deed of the 4 × 16 arpents, deducting the reservation from the original donee to the other claimant.
Such an instrument granted only an incomplete title, as the governor never possessed the power to issue a patent. Consequently the legal title to the land vested, under the treaty of cession, in the United States, as the successor of the former sovereign, and the court decided, in the prior opinion in this case,[*] that a donee of an incomplete title, in the territory ceded by the treaty, could not convert such a title, as derived from the former sovereign, into a complete title under the United States in any other mode than that prescribed by an act of Congress. Such being the law it became necessary for the respective parties to prove that their respective claims had been confirmed, and they accordingly introduced in evidence the proceedings in respect to the concession in controversy before the board of commissioners for the adjudication of such claims. Most or all of those documents are material in this investigation, but inasmuch as they will all be found in the former opinion of the court in this case, they will not be reproduced. All of those documents were examined by the court in the prior opinion given in the case, and the court decided that the effect of the proceedings was to correct the error committed by the surveyor of the former government and place the rights of the litigants upon their true basis. Proceedings of various kinds in respect to the tract also took place, under the direction of officers in the land department, subsequent to the treaty of cession, but it will be sufficient to remark upon that subject that the history of those proceedings is fully given in the former opinion, and that the proceedings resulted in the survey and the patent to the original donee *279 or his legal representatives, under which the plaintiff now claims. None of the proceedings are referred to with any other view than to enable the parties to understand the propositions of law and fact which were decided by the court in the former opinion, as it is not proposed to re-examine any of those questions.
Apart from the matters already mentioned the court also decided that the incomplete title to the whole tract of 4 × 20 arpents was granted by the governor to the claimant mentioned in the concession evidencing the grant; that the deed from the donee of the tract to the other claimant did not convey the 4 × 4 arpents now in controversy, but that the title to the same, as acquired by the concession, still remained in the donee of the tract, by virtue of the reservation contained in the deed; that the survey made by the surveyor under the former sovereign did not have the effect to impair the incomplete title of the donee nor to convey, assign, or transfer any interest whatever in the tract of 4 × 4 arpents to the grantee in that deed; that the tract of 4 × 4 arpents was confirmed to the original donee by the decree of the commissioners, of September 22d, 1810, and that the same was never confirmed to the other claimant; that the other claimant did not acquire the legal title to the tract of 4 × 4 arpents under the patent granted to him, as the saving clause in the same reserved any valid adverse right which existed to any part of the tract; that the patent granted to the original donee at the same time never became operative, as he refused to accept the same, and it was returned to the land department; that the subsequent action of the secretary in cancelling the same and in ordering a new survey was authorized by law; that the original donee, by virtue of that survey and the patent granted to him, acquired the legal title to the tract of 4 × 4 arpents, as he was the rightful owner of the incomplete title; that the land reserved is bounded on the south by the concession to the mulatto woman and north by the south line of the "sixteen arpents in depth" conveyed by the deed, and lies north of the ditch; that the legal title to the tract of 4 × 4 arpents remained in *280 the United States until the 10th of June, 1862, when the patent was granted to the donee of the incomplete title under the former sovereign; that the title of the donee before he obtained the patent was incomplete and attached to no particular parcel of land, and consequently the respective defences of the statute of limitations and of a former recovery were inapplicable to the case, as the legal title was in the United States as derived by the treaty of cession.[*]
Lastly, the answer set up the defence of innocent purchasers, but the court decided that the record furnished no evidence to support the defence, or to show that the decision of the State court turned upon any such ground, and that the conclusion, in view of those facts, must be, that no such question was decided, as this court will not presume that the court below decided erroneously in order to defeat their own jurisdiction.[]
Having overruled all of those special defences the court proceeded to say, in the first opinion, that the incomplete title to the tract remained unextinguished in the original donee or his assigns throughout the whole period of the litigation; that he never sold the 4 × 4 arpents to the other claimant, nor did he ever request that it should be surveyed or located in any other place than the one where it was, by the first survey, ascertained to be; that the other claimant never had any concession of the tract, that he never purchased it and never had any title of any kind to any part of the concession, except the sixteen arpents as described in his deed from the rightful owner of the residue of the tract.
Viewed in the light of these several suggestions, as the case must be, it is plain and undeniable that this court, in the former opinions delivered in the case, disposed of every material question at issue in the record between the parties, and decided "that the said tract of land so meted and *281 bounded justly and honestly belongs to the plaintiff," as alleged in the petition.
Removed here, as the cause then was, by writ of error to the Supreme Court of the State, it becomes necessary to advert briefly to the proceedings in the State courts.
By the bill of exceptions it appears that the issues of law and fact were heard by the judge of the Court of Common Pleas, trying the cause without a jury, and the bill of exceptions states, at its commencement, that "the following are all the proceedings, evidence, and testimony offered, given, and had before the court." Then follows what purports to be all the proceedings, evidence, and testimony; and the bill of exceptions also states, at its conclusion, that the foregoing is all the evidence, testimony, and proceedings in the cause on the trial thereof before the court, and all, every, and each of said deeds, documents, papers, plats, and depositions, testimony, evidence, records, patents, and all other instruments of writing set forth and copied in the foregoing bill of exceptions, and that the same were duly read in evidence on the trial of this cause, and that the said cause was thereupon submitted to the court for decision and decree. It also appears by the decree that the cause was submitted for decision upon the petition and answers of all the defendants, and the exhibits and other evidence in the cause, and that "the court finds that, out of the claim presented to the board of commissioners by Labeaume, the tract of 4 × 4 arpents claimed by the plaintiffs was confirmed to Joseph Brazeau, or his legal representatives; and that the court also found the issues in this cause in favor of the plaintiff, and therefore it was ordered, adjudged, and decreed that the tract of land, meted and bounded as follows," describing it as before stated, "be and the same is hereby decreed to the plaintiff, and that all the right, title, and interest of each and every one of said defendants in and to said tract of land, is hereby divested out of them and vested in and passed to the plaintiff, to have and to hold to the plaintiff, his heirs and assigns, the said tract of land so passed to the plaintiff, his heirs and assigns forever, the same being the tract covered by the *282 survey No. 3343, approved May 8th, 1862, and patented to Joseph Brazeau or his legal representative, the 10th of June in the same year." Rents and profits were also decreed to the plaintiff, and the cause was sent to a master to report the amount. Two motions for new trial were filed by the defendants, but they were both denied, and the court having amended and confirmed the report of the master, entered a final decree for the plaintiff, and the defendants having filed a bill of exceptions, as before explained, appealed to the Supreme Court of the State. Hearing was had in the Supreme Court upon the exhibits, proofs, evidence, and testimony set forth in the bills of exceptions, and the Supreme Court reversed the decree of the Court of Common Pleas and dismissed the petition. Whereupon the plaintiff sued out a writ of error and removed the cause into this court, and this court reversed the decree of the Supreme Court of the State, and by the order, as amended, remanded the cause for further proceedings in conformity to the opinion of the court.[*] Pursuant to the mandate of this court remanding the cause, the Supreme Court of the State reversed their former decree reversing the judgment and decree of the Court of Common Pleas and dismissing the petition, but they did not proceed and dispose of the case in conformity to the opinion of this court, as directed in the mandate.
By the directions of the mandate they were as much bound to proceed and dispose of the case in conformity to the opinion of this court as to reverse their former decree, but instead of that they entered a new decree dismissing the petition, which in effect evades the directions given by this court, and practically reverses the judgment and decree which the mandate directed them to execute. Argument to show that a subordinate court is bound to proceed in such an event and dispose of the case as directed, and that they have no power either to evade or reverse the judgment of this court, is unnecessary, as any other rule would operate *283 as a repeal of the Constitution and the laws of Congress passed to carry the judicial power conferred by the Constitution into effect.
Beyond all question this court decided every question at issue between the parties which it was necessary to decide to dispose of the case upon the merits, and it is clear that it is not competent even for this court, after the term expired, to review and reverse such a decree. Repeated decisions of this court have established the rule that a final judgment or decree of this court is conclusive upon the parties, and that it cannot be re-examined at a subsequent term, except in cases of fraud, as there is no act of Congress which confers any such authority. Second appeals or writs of error are allowed, but the rule is universal that they bring up only the proceedings subsequent to the mandate, and do not authorize an inquiry into the merits of the original judgment or decree. Rehearings are never granted where a final decree has been entered and the mandate sent down, unless the application is made at the same term, except in cases of fraud. Appellate power is exercised over the proceedings of subordinate courts, and not over the judgments or decrees of the appellate court, and the express decision of this court in several cases is that "the court has no power to review its decisions, whether in a case at law or in equity, and that a final decree in equity is as conclusive as a judgment at law," which is all that need be said upon the subject.[*] On receipt of the mandate it is the duty of the subordinate court to carry it into execution even though the jurisdiction do not appear in the pleadings.[]
Deprived of the fruits of the decree of this court, as ordered in the mandate, the plaintiff sued out a second writ *284 of error, and removed the cause a second time into this court.
Brought here as the cause is by a second writ of error, it is settled law in this court that nothing is brought up for re-examination and revision except the proceedings of the subordinate court subsequent to the mandate.[*] It has been settled, says Mr. Justice Grier, by the decisions of this court, that after a case has been brought here and decided and a mandate issued to the court below, if a second writ of error is sued out it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be reheard or examined upon the second, as it would lead to endless litigation.[]
Different theories are put forth as to the ground assumed by the Supreme Court of the State in refusing to proceed with the case as directed in the mandate, and in entering the decree dismissing the petition, but the explanations given in the order of the court show that the court decided that the petition was a proceeding to obtain equitable relief in respect to the lands therein described, and that the legal title to the premises cannot be tried and adjudged under such a petition, and that inasmuch as the plaintiff had a plain, adequate, and complete remedy at law, the suit could not be maintained.
Presented as the proposition was as a reason for not executing the mandate of this court, the question as to its sufficiency is one which must necessarily be determined by this court, else the jurisdiction of the court will always be dependent upon the decision of the State court, which cannot be admitted in any case.
State courts have no power to deny the jurisdiction of this court in a case brought here for decision and sent back with the mandate of the court, which is its judgment. Such a question, that is, the question whether the legal title was *285 in the plaintiff, and whether or not he had a plain, adequate, and complete remedy at law, might have been raised in the court of original jurisdiction, and perhaps it might have been raised here when the case was before the court upon the first writ of error, but it is clear that it was too late to raise any such question after the whole case had been decided and the cause remanded for final judgment.[*] Confirmation of that proposition of the most decisive character is found in the statute law of the State. Prior to the commencement of this suit the legislature of the State abolished all forms of pleading based on the distinction between law and equity, and enacted that "there shall be in this State but one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which shall be denominated a civil action."[]
Suits may be instituted in courts of record by filing in the office of the clerk of the proper court a petition setting forth the plaintiff's cause of or causes of action and the remedy sought.[]
Section three of article six enacts that the first pleading on the part of the plaintiff is the petition, which shall contain: (1.) The title of the cause, specifying the name of the court and county in which the action is brought, and the names of the parties to the action. (2.) A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition. (3.) A demand of the relief to which the plaintiff may suppose himself entitled.[§]
Corresponding regulations are also enacted in the next section in relation to defences, which provides that the only pleading on the part of the defendant is either a demurrer or an answer; and the forty-eighth section provides that every material allegation in the petition not specifically controverted in the answer, and every material allegation in the answer of new matter, constituting a counter claim, not *286 specifically controverted in the reply, shall, for the purposes of the action, be taken as true.[*]
By the same statute it is enacted that the defendant may demur to the petition when it shall appear upon the face thereof, either (1.) That the court has no jurisdiction of the person of the defendant or the subject-matter of the action. (2.) That the plaintiff has not legal capacity to sue. (3.) That there is another action pending between the same parties for the same cause of action in the State. (4.) That there is a defect of parties plaintiff or defendant. (5.) That several causes of action have been improperly united. (6.) That the petition does not state facts sufficient to constitute a cause of action. (7.) That a party, plaintiff or defendant, is not a necessary party to a complete determination of the action.[]
No other grounds of demurrer are allowed by the statutory rules of pleading. Those rules demand only a cause of action, but it need not be designated as legal or equitable, as a demurrer for want of form is not allowed; nor is the jurisdiction of the court, in any way, affected by forms.
Such objections as those enumerated in the sixth section, if they do not appear on the face of the petition, may be taken by answer, and the tenth section expressly enacts that "if no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same," excepting only the objection to the jurisdiction of the court over the subject-matter of the action, and excepting the objection that the petition does not state facts sufficient to constitute a cause of action.
It is not denied, nor can it be, that the plaintiff stated a good cause of action in his petition, and it is equally clear that he proved it, and that he prayed for the very relief he is entitled to receive; and as the law of the State allows of but one form of action for the enforcement or protection of private rights, the court is of the opinion that the objection under consideration is entirely without merit, as such an *287 objection is not a valid one under the statutory rules of pleading prescribed in that State.
Suppose the general rule, however, to be otherwise, still the court is of the opinion that the objection, even if it had been made earlier, could not avail the defendants, as they did not make it by demurrer or in the answer, as the express provision of the statute is that unless it is made by demurrer or answer "the defendant shall be deemed to have waived the same."
Justice requires that that rule shall be applied in this case, as the case has been pending more than ten years, having been twice heard in the Common Pleas, once in the Supreme Court of the State, twice before the present hearing, including the hearing on the motion, in this court, and a second time in the Supreme Court of the State, and is now here on a second writ of error after this court has decided that the plaintiff has a complete, perfect, and unqualified right, under the patent granted to the original donee or his legal representatives.
Unless the rule suggested is applicable in this case it is difficult to imagine a case where it would be, as the petition presents every fact constituting the cause of action, and it cannot be denied that the relief prayed is appropriate to the cause of action alleged, and the practice in such a case is, under the system of pleading adopted in that State, that the court will give the relief, no matter whether it be legal or equitable, if the facts alleged are fully proved, as the rule is that if the facts stated in the petition give a right of action the plaintiff ought to recover.[*] Where a cause is tried by a court without a jury, the Supreme Court of the State will affirm the judgment if the facts found support the judgment.[] Under the code the plaintiff is entitled to all the relief that would formerly have been afforded him both by a court of law and equity.[] If the defendant has answered, *288 the court may grant the plaintiff any relief, under the code, consistent with the case made by the complaint and embraced within the issue.[*] So, where the facts are sufficiently stated in the petition, the Supreme Court of the State hold that the plaintiff may have such judgment as the facts stated will give him, although he may have asked for a different relief in the prayer of his petition.[] Exactly the same rule is laid down in numerous adjudications in other States, and those of very high respectability, showing that such is the general rule in many jurisdictions, and it is believed that no case can be found where a different rule has ever been adopted in a case finally determined in the Supreme Court of Errors, and remanded to the subordinate court under a mandate directing the subordinate court to execute the decree of the appellate tribunal. Where a defendant put in his answer, instead of a demurrer, and the cause came to be heard on the merits, Chancellor Kent held that it was too late to object to the jurisdiction of the court on the ground that the plaintiff might have pursued his remedy at law.[] After a defendant has put in an answer to a bill in chancery, submitting himself to the jurisdiction of the court, it is too late, says Chancellor Walworth, to insist that the complainant has a perfect remedy at law, unless the court is wholly incompetent to grant the relief sought by the bill.[§]
Such a defence was never made in the case until the first opinion of the court heretofore delivered in the case was read in court and published. In that opinion the court decided that Labeaume did not acquire the legal title to the tract of 4 × 4 arpents, under the patent granted to him, as *289 the saving clause in the patent reserved any valid adverse right which may exist to any part of the tract; that the patent granted to Joseph Brazeau at the same time never became operative, as he refused to accept the same, and returned it to the land department; that the subsequent action of the Secretary of the Interior in cancelling the same, and in ordering a new survey, was authorized by law; that Joseph Brazeau, by virtue of that survey, and the patent granted to him June 10th, 1862 acquired the legal title to the tract of 4 × 4 arpents, notwithstanding the saving clause in the patent, as he was the rightful owner of the incomplete title to the same, as acquired by the concession granted under the former sovereign. Directed, as the court below was, to proceed in conformity to the opinion of the court, it is quite clear that it was their duty to reverse their judgment and to grant to the plaintiff the relief prayed in his petition, that is, to enter a decree divesting out of the defendants all the right, title, and interest acquired or claimed by them and each of them from the other claimant, or any one claiming under him, and invest the same in the plaintiff, and to put him in possession of the premises.
Such being the conclusion of the court, it only remains to decide what disposition shall be made of the case. Having been once before remanded and the cause being here upon a second writ of error, the court, under the Judiciary Act, may at their discretion remand the same a second time or "proceed to a final decision of the same and award execution."[*] Somewhat different rules are enacted in the second section of the act of the 5th of February, 1867, which justify the conclusion that the court in such a case, under that regulation, may at their discretion, though the cause has not before been remanded, proceed to a final decision of the same and award execution, or remand the same to the subordinate court.[] Much discussion of those provisions is unnecessary, as it is clear that the court, under either, possesses the power to remand the cause or to proceed to a final decision. Judging *290 from the proceedings of the State court under the former mandate, and the reasons assigned by the court for their judicial action in the case, it seems to be quite clear that it would be useless to remand the cause a second time, as the court has virtually decided that they cannot, in their view of the law, carry into effect the directions of this court as given in the mandate. Such being the fact, the duty of this court is plain and not without an established precedent.[*] In causes remanded to the Circuit Courts, if the mandate be not correctly executed, a writ of error or appeal, says Mr. Justice Story, has always been supposed to be a proper remedy, and has been recognized as such in the former decisions of this court. Writs of error from the judgments of State courts have the same effect as writs of error from the Circuit Courts, and the act of Congress in its terms provides for proceedings where the same cause may be a second time brought up on a writ of error to this court. It was contended in that case that the former judgment of this court was rendered in a case not within the jurisdiction of the court, to which the learned justice, as the organ of the court, gave several answers. In the first place, he said, "it is not admitted that, upon this writ of error, the former record is before" the court, as the error now assigned is not in the former proceedings, but in the judgment rendered upon the mandate issued after the former judgment. He also proceeds to show that a second writ of error does not draw in question the propriety of the first judgment, adding that it is difficult to perceive how such a proceeding could be sustained upon principle, and that it had been solemnly held in several cases that a final judgment of this court is conclusive upon the parties and cannot be re-examined. Suffice it to say the rule is there settled, that where the cause has once before been remanded and the State court declines or refuses to carry into effect the mandate of the Supreme Court, the court will proceed to a final decision of the same and award execution to the prevailing party; nor is that a solitary example, *291 as the decree in Gibbons v. Ogden,[*] was also entered in this court.
It follows that that part of the decree of the Supreme Court of the State dismissing the petition must be reversed, with costs, and that a decree be entered in this court for the plaintiff, that the tract of 4 × 4 arpents claimed by the plaintiff was confirmed by the commissioners to Joseph Brazeau, and that the final survey, and the patent of June 10th, 1862, issued to him or his legal representatives, gave him a complete title to the tract, and that the same tract, as meted and bounded in the petition, be decreed to the plaintiff, and that all the right, title, and interest of each and every one of said defendants in and to said tract of land, be divested out of said defendants and be vested in and passed to the plaintiff, to have and to hold to the said plaintiff, his heirs and assigns, forever.
Apart from that, a claim is also made by the plaintiff for the rents and profits, and the record shows that the cause in the court where the original decree was entered was referred to a master to ascertain the amount, and that the master made a report which was confirmed by the court, but the decree of that court was reversed in the Supreme Court of the State, which would make it necessary that a new estimation of the rents and profits should be made before the claim can become the proper subject of a decree. Some reference was made to the subject in the argument, but it was by no means fully discussed. Years have elapsed since the hearing was had before the master, and in the meantime many changes no doubt may have taken place in respect to the occupation of the premises, and many of the occupants of the different portions of the tract may have deceased; great changes may also have taken place in the value of the property and in the state and condition of the improvements, which plainly renders it impracticable to do justice between the parties without a new reference, which is a matter of jurisdiction that this court is not inclined to exercise except *292 when it becomes absolutely necessary to prevent injustice. Evidently such a claim must depend very largely upon the statutory provisions of the State, and to those the court have not been referred. Unless the statutes present some insuperable difficulties in the way of such a recovery, no doubt is entertained that the plaintiff will be entitled to enforce that claim in such form of remedy as is allowed by the local law. Whoever takes and holds possession of land to which another has a better title is in general liable to the true owner for all the rents and profits which he has received, whether the owner recover the possession of the premises in an action at law or in a suit in equity.[*] Depending, as such a claim necessarily must, very much upon the statutes of the State, the court, on the authority of the case of Miles v. Caldwell,[] as well as for the other reasons suggested, deems it proper to leave the party to prosecute the claim as he may be advised in the tribunals of original jurisdiction, as better suited to investigate and adjudicate such a claim than a court of errors. Besides the relief already described, the decree will also direct that the plaintiff be put in possession of the premises, and for that purpose he will be entitled to a writ of possession to be issued by the clerk of this court.
DECREE REVERSED, and the following
DECREE ENTERED.
The cause having heretofore been argued by the counsel of the respective parties, and submitted to the court for a decision upon the plaintiff's petition and the answer of the defendants, and the proofs, exhibits, documents, stipulations, and other evidence in the cause, as appears by the authenticated transcript of the record annexed to and returned with the writ of error, and mature consideration having been had thereon, it is
ORDERED, ADJUDGED, AND DECREED, that so much of the decree *293 of the Supreme Court of the State as dismissed the petition of the plaintiff be, and the same is hereby, reversed with costs. And it is further ordered, adjudged, and decreed, that the tract of 4 × 4 arpents claimed by the plaintiff was confirmed by the board of commissioners to Joseph Brazeau or his legal representatives, and that the said tract of land as meted and bounded, justly and equitably belongs to the plaintiff, as alleged in his petition, and as shown by the survey of the 8th of May, 1862, and by the patent of the 10th of June following, duly executed and signed by the President.
Wherefore, this court proceeding to render such decree in the case as the Supreme Court of the State should have rendered, it is ORDERED, ADJUDGED, AND DECREED, that the said tract of land, being the said 4 × 4 arpents claimed by the plaintiff, and meted and bounded as follows, viz.: Beginning at a point on the right bank of the Mississippi River, the northeast corner of survey No. 3342, in the name of Esther, a free mulatress, or her legal representatives, and the southeast corner of Louis Labeaume's survey, No. 3333; thence south 74 degrees 30 minutes west, with the southern boundary of said Labeaume's survey, and the northern boundary of the said Esther survey, to the northwest corner of the said Esther survey; thence north 23 degrees west, 776 feet 8 inches, to a stone; thence north 74 degrees 30 minutes east, 776 feet 8 inches, to a point on the right bank of the Mississippi River; thence down and along the right bank of said river to the beginning; be and the same is hereby decreed to the plaintiff, and all the right, title, and interest of each and every one of said defendants, in and to said tract of land, is hereby divested out of said defendants, and each of them, and that the same is vested in and by virtue of the patent passed to the plaintiff; to have and to hold to the said plaintiff, his heirs and assigns, the said tract of land so passed to him and his heirs and assigns forever, being the same which is covered by the survey No. 3343, approved May 8th, 1862, and patented to Joseph Brazeau, 10th June, in the same year, as appears by the record.
AND IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that the plaintiff recover the possession of the said tract of land as herein meted and bounded, and that a writ of possession issue for that purpose in the usual form, directed to the marshal of this court, duly executed by the clerk, and under the seal of this court.
*294 Mr. Justice SWAYNE, Mr. Justice STRONG, and Mr. Justice BRADLEY, dissented.
Mr. Justice HUNT did not hear the argument, and took no part in the judgment.
NOTES
[*] 1 Stat. at Large, 86.
[] 14 Id. 387.
[*] 8 Stat. at Large, 202; United States v. Wiggins, 14 Peters, 350.
[] 2 Stat. at Large, 326.
[] Ib. 283, 327, 353, 391, 440.
[*] Magwire v. Tyler, 8 Wallace, 658-661.
[*] United States v. King et al., 3 Howard, 786; Same v. Forbes, 15 Peters, 173; Landes v. Brant, 10 Howard, 370; West v. Cochran, 17 Id. 414; Stanford v. Taylor, 18 Id. 412; Bissell v. Penrose, 8 Id. 334.
[] Neilson v. Lagow et al., 12 Howard, 110; Magwire v. Tyler et al., 40 Missouri, 433; Magwire v. Tyler et al., 1 Black, 199.
[*] Magwire v. Tyler, 8 Wallace, 672.
[*] Washington Bridge Co. v. Stewart et al., 3 Howard, 424; Ex parte Sibbald, 12 Peters, 492; Peck v. Sanderson, 18 Howard, 42; Leese v. Clark, 20 California, 417; Hudson v. Guestier, 7 Cranch, 1; Browder v. McArthur, 7 Wheaton, 58.
[] Skillern's Executors v. May's Executors, 6 Cranch, 267; Livingston v. Story, 12 Peters, 339; Chaires et al. v. United States, 3 Howard, 618; Whyto v. Gibbes, 20 Id. 542; Sibbald v. United States, 2 Id. 455.
[*] Roberts v. Cooper, 20 Howard, 467.
[] Sizer v. Many, 16 Howard, 98; Corning v. Iron Co., 15 Id. 466; Himely v. Rose, 5 Cranch, 315; Martin v. Hunter, 1 Wheaton, 355.
[*] Hipp v. Babin, 19 Howard, 278; Parker v. Woollen Co., 2 Black, 551. Noonan v. Bradley, 12 Wallace, 129.
[] 2 Revised Statutes, 1216.
[] Ib. 1222.
[§] Ib. 1229.
[*] 2 Revised Statutes, 1230-1238.
[] Ib. 1231.
[*] Scott v. Pilkington, 15 Abbott's Practice Reports, 285.
[] Robinson v. Rice, 20 Missouri, 236; Butterworth v. O'Brien, 24 Howard's Practice Reports, 438.
[] Rankin v. Charless, 19 Missouri, 493; Winterson v. Railroad Co., 2 Hilton, 392; Patrick v. Abeles, 27 Missouri, 185.
[*] Marquat v. Marquat, 12 New York, 341.
[] Miltenberger v. Morrison, 39 Missouri, 78; Meyers v. Field, 37 Id. 434.
[] Underhill v. Van Courtlandt, 2 Johnson's Chancery, 369; Livingston v. Livingston, 4 Id. 290.
[§] Grandin v. Le Roy, 2 Paige, 509; Hawley v. Cramer, 4 Cowen, 727; Ludlow v. Simond, 2 Caines's Cases, 56; Le Roy v. Platt, 4 Paige, 81; Davis v. Roberts, 1 Smedes & Marshall's Chancery, 550; Osgood v. Brown et al., 1 Freeman's Chancery, 400; May v. Goodwin, 27 Georgia, 353; Burroughs v. McNeill, 2 Devereux & Battle's Equity, 300; Rathbone v. Warren, 10 Johnson, 595.
[*] 1 Stat. at Large, 86.
[] 14 Id. 387.
[*] Martin v. Hunter, 1 Wheaten, 354.
[*] 9 Wheaton, 239.
[*] Green v. Biddle, 8 Wheaton, 70; Chirac v. Reinicker, 11 Id. 296; Same Case, 2 Peters, 617.
[] 2 Wallace, 44.
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284 Wis.2d 798 (2005)
2005 WI App 152
702 N.W.2d 850
STATE of Wisconsin, Plaintiff-Respondent,
v.
Jermaine SMITH, Defendant-Appellant.[]
No. 2004AP1077-CR.
Court of Appeals of Wisconsin.
Submitted on briefs May 5, 2005.
Decided June 7, 2005.
*800 On behalf of the defendant-appellant, the cause was submitted on the briefs of Glen B. Kulkoski of Carr, Kulkoski & Stuller, S.C., New Berlin.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of William C. Wolford, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
Before Wedemeyer, P.J., Fine and Kessler, JJ.
*799 ¶ 1. WEDEMEYER, P.J.
Jermaine Smith appeals from a judgment entered after a jury found him guilty of one count of first-degree intentional homicide, while armed, contrary to WIS. STAT. § 940.01(1)(a) (2003-04).[1] He claims the trial court erred in permitting the State to introduce out-of-court statements of a co-actor for the purpose of rebutting out-of-court statements introduced by the defense. Because the trial court did not erroneously exercise its discretion in allowing the proffered evidence, we affirm.
BACKGROUND
¶ 2. On November 21, 2002, Smith and two fellow gang members, Willie Nunn and Cornelius Blair, went to the home of Andrew and Dorothy Roberts. Andrew Roberts was the landlord for Smith's gang leader, Michael Davis. Davis was angry because Roberts had evicted him as a result of drug activity taking place in the Davis rental unit. As a result, Davis enlisted Smith, Nunn and Blair to rob Mr. and Mrs. Roberts.
¶ 3. Smith gave a statement to police indicating that the three went to the Roberts's home. Smith and Blair, armed with guns, went into the home while Nunn *801 stayed outside and acted as lookout. Mrs. Roberts answered the door and was ordered to the floor. Smith then approached Mr. Roberts and demanded his money. Mr. Roberts complied and then was ordered to the floor. Smith said that as he was leaving, Mr. Roberts grabbed his leg, which caused Smith to shoot towards Mr. Roberts. Believing he had killed Mr. Roberts, Smith then shot Mrs. Roberts in the head so there would be no witnesses.
¶ 4. Mrs. Roberts died as a result of the gunshot wound to the head. Mr. Roberts survived the ordeal. As a result, Smith was charged with one count of first-degree intentional homicide, while armed. At trial, the defense sought to introduce testimony from a Frederick Banks, who stated that when he was in jail, Nunn told him that he (Nunn) had shot Mrs. Roberts. The prosecutor opposed the admission of the testimony, but stated that if the trial court allowed its admission, the State should be allowed to introduce evidence on rebuttal that Nunn had made prior inconsistent statements to police denying that he was the shooter.
¶ 5. The trial court ruled that Banks's testimony was admissible if Nunn was unavailable under the hearsay exception allowing statements against penal interest pursuant to WIS. STAT. § 908.045(4). The court specifically ruled that this testimony would not violate the confrontation clause because the defense was seeking to make Nunn a witness for the defense and the State was simply seeking to challenge that evidence.
¶ 6. At trial, the defense called Nunn, who refused to testify. The defense then called Banks as a witness. Banks testified that in February of 2003, he was in the same jail pod as Nunn and that Nunn had told him that Davis sent him and two others over to his landlord's *802 house, and that after one of his co-actors shot Mr. Roberts, Nunn proceeded to shoot Mrs. Roberts.
¶ 7. In its rebuttal case, the State presented testimony from Police Detective Katherine Hein. She discussed five statements that Nunn had given to her or her partners in January 2003 regarding the Roberts shooting. Nunn did not say in any of these statements that he had shot Mrs. Roberts. Smith was convicted of the homicide charge and sentenced to life in prison. He now appeals.
DISCUSSION
¶ 8. Smith contends that the trial court's admission of Hein's statement recounting Nunn's out-of-court statements constitutes error because it violates his Sixth Amendment right to be confronted with the witnesses against him. We reject his contention.
¶ 9. Whether admission of the challenged evidence violated Smith's constitutional right to confrontation is a question of law, which we review independently. State v. Williams, 2002 WI 58, ¶ 7, 253 Wis. 2d 99, 644 N.W.2d 919. Smith relies on the recent decision of the Supreme Court, Crawford v. Washington, 541 U.S. 36 (2004), which held that "testimonial" hearsay statements of a person absent from trial may only be admitted in conformity with the confrontation clause if the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant regarding the statement. Id. at 68. He argues, therefore, that the State should not have been allowed to introduce Nunn's prior statements through the police detective because Smith did not have an opportunity to cross-examine Nunn regarding the statement. We reject Smith's argument.
*803 ¶ 10. The State's rebuttal was solely to impeach Nunn's credibility under the provisions of WIS. STAT. § 908.06, which provides:
When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement ... by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain.
¶ 11. A defendant who introduces testimony from an unavailable declarant cannot later claim that he was harmed by his inability to cross-examine that declarant when prior inconsistent statements are introduced to impeach an out-of-court statement introduced by the defendant. Smith was warned by the trial court, and he could have chosen not to put into evidence Nunn's out-of-court statements. Smith ignored the trial court's warnings, and will not be permitted by this court, in hindsight, a second kick at the cat.
¶ 12. Moreover, admission of the prior inconsistent statement did not prejudice Smith because it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty despite admission of Nunn's prior inconsistent statements. See State v. Harvey, 2002 WI 93, ¶ 49, 254 Wis. 2d 442, 647 N.W.2d 189.
¶ 13. In this case, Smith confessed that he shot Mrs. Roberts. He provided sufficient detail in his statement, which was corroborated by physical evidence at the scene of the crime. There was other eyewitness *804 testimony that corroborated details provided in Smith's confession. Another witness testified that Smith admitted to her that he had killed Mrs. Roberts. Even if the State had not introduced the statements from Nunn during rebuttal, the outcome would have been the same. Therefore, the admission was harmless.
By the Court.Judgment affirmed.
*805
NOTES
[] Petition to review denied 8-25-05.
[1] All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3177
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JASON M. WADE,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for
the Southern District of Illinois.
No. 17‐CR‐40028‐JPG‐1 — J. Phil Gilbert, Judge.
____________________
ARGUED APRIL 24, 2018 — DECIDED MAY 18, 2018
____________________
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
PER CURIAM. Jason Wade pled guilty for a second time to
possessing child pornography. The district judge imposed a
sentence of 132 months’ imprisonment, though the manda‐
tory minimum and guidelines recommendation was 120
months. Wade argues that the judge procedurally erred by not
addressing Wade’s mitigation arguments or explaining the
upward variance. In the alternative, he argues that his sen‐
2 No. 17‐3177
tence was substantively unreasonable. Because the judge re‐
sponded to Wade’s mitigation arguments, adequately justi‐
fied Wade’s sentence, and did not abuse his discretion, we af‐
firm.
I. BACKGROUND
FBI agents seized Wade’s computer when executing a
search warrant, and they discovered over 2000 images of child
pornography. Wade pled guilty to one count of possessing
child pornography, 18 U.S.C. §§ 2252A(a)(5)(B), 2. Under
U.S.S.G. § 2G2.2(b), his base offense was increased 13 levels
due to the number and the especially odious content of the
images. But Wade’s offense level was immaterial because this
was his second conviction for the same offense. Wade’s total
offense level of 28 and criminal history category of II would
generally have prescribed a recommended sentence of 87 to
108 months’ imprisonment, but because Wade committed a
repeat offense, his guidelines recommendation became the
statutory minimum term of imprisonment: 120 months.
Judge Gilbert presided over Wade’s 2008 sentencing for
his first conviction for possessing child pornography and var‐
ied downward in the sentence he imposed. The guidelines
recommendation for that offense was 120 months’ imprison‐
ment, but the judge imposed a sentence of just 36 months’ im‐
prisonment and 5 years’ supervised release. After Wade com‐
pleted 3 years of supervised release, Judge Gilbert granted
Wade an early termination because he thought Wade “had
learned to abide by the law.”
Judge Gilbert also presided over Wade’s second sentenc‐
ing, the one on appeal here. At the sentencing hearing, the
No. 17‐3177 3
government recommended a sentence of at least 10 years’ im‐
prisonment (the mandatory minimum), but suggested that
the judge vary upward from that because the images were
very disturbing, because this was Wade’s second conviction,
and because the judge had previously given Wade “a huge
break.” Wade argued that the mandatory minimum term was
appropriate because: (1) his addiction to pornography and his
stress caused his recidivism, (2) the guidelines accounted for
the reasons the government gave for varying upwards, and
(3) he had support from family members, who were now bet‐
ter informed about his addiction.
After hearing these arguments, Judge Gilbert imposed a
sentence of 132 months’ imprisonment followed by 10 years’
supervised release. Before issuing the sentence, the judge ob‐
served that this was Wade’s second conviction for the same
offense. He remarked, “fool me once, shame on you; fool me
twice, shame on me,” and noted that he had given Wade “two
breaks”—varying downward in his first sentence and then
terminating his supervised release two years early. The judge
then acknowledged that child pornography is an addiction.
But, he continued, some people “handle the addiction” so
they do not reoffend. Because Wade had not adequately man‐
aged his, the judge was concerned Wade would offend again.
Finally, the judge observed that “not a single 3553(a) factor”
favored Wade, noting that it was sad Wade had not previ‐
ously relied on his family’s support. On the Statement of Rea‐
sons form, under the section, “18 U.S.C. § 3553(a) and other
reason(s) for a variance,” Judge Gilbert checked the box, “Is‐
sues with criminal history,” and wrote “Leniency provided
for previous federal conviction.”
4 No. 17‐3177
II. ANALYSIS
On appeal Wade first argues that the district judge proce‐
durally erred when he failed to address Wade’s principal mit‐
igation arguments. See United States v. Fogle, 825 F.3d 354, 357
(7th Cir. 2016). At sentencing, a judge must address the par‐
ties’ principal arguments, and “where a defendant’s principal
argument is ‘not so weak as not to merit discussion,’ the court
must ‘explain its reason for rejecting that argument.’”
United States v. Reed, 859 F.3d 468, 472 (7th Cir. 2017) (quoting
United States v. Schroeder, 536 F.3d 746, 755 (7th Cir. 2008)).
Wade argues that the district judge did not address his
strongest mitigating argument—that the guidelines range al‐
ready took into account Wade’s recidivism and previous sen‐
tence. In Wade’s view, the mandatory minimum acted as a
“de facto upward variance,” pushing his guidelines range of
87 to 108 months to 120 months.
We do not “draw a bright line to tell district judges when
they have said enough, but ‘we try to take careful note of con‐
text and the practical realities of a sentencing hearing. District
judges need not belabor the obvious.’” Reed, 859 F.3d at 472
(quoting United States v. Castaldi, 743 F.3d 589, 595 (7th Cir.
2014)). And in this context, it is obvious why the judge did not
restate a particular mitigation argument. To the judge,
Wade’s recidivism was an aggravating factor under 18 U.S.C.
§ 3553(a), not a mitigating one, and “not a single § 3553(a) fac‐
tor” favored Wade. The judge also addressed Wade’s two
other mitigating arguments—that he was suffering from an
addiction and that he had family support. There was no pro‐
cedural error here because the mitigation arguments were an‐
swered in the judge’s § 3553(a) analysis. See Reed, 859 F.3d
No. 17‐3177 5
at 472–74; United States v. Snyder, 865 F.3d 490, 500–01
(7th Cir. 2017).
Wade next argues that the district judge procedurally
erred when he failed to provide his reasons for varying up‐
ward. See Fogle, 825 F.3d at 357. Once a judge chooses a sen‐
tence, “§ 3553(c) requires the district judge to ‘state in open
court the reasons’ for imposing it.” United States v. Warner,
792 F.3d 847, 855 (7th Cir. 2015). “The court is free to select a
sentence outside the guidelines range, but it must explain and
support the magnitude of the variance.” Id. (citing Kimbrough
v. United States, 552 U.S. 85, 91 (2007)).
Here, though, the judge provided a reason for the vari‐
ance, and a completely acceptable one at that: Wade had mis‐
used the opportunity Judge Gilbert had previously given him.
The judge did not need to give an “exhaustive” explanation
for the sentence he imposed, just one that “allow[ed] for
meaningful appellate review and ... promot[ed] the percep‐
tion of fair sentencing.” Warner, 792 F.3d at 855 (quoting
United States v. Omole, 523 F.3d 691, 697 (7th Cir. 2008)). Here
Judge Gilbert amply explained his decision to impose a prison
sentence 12 months above the statutory minimum—his pre‐
vious leniency had not worked for Wade. Indeed, by also
challenging the merit of the judge’s reasons, Wade under‐
mines his own argument that no explanation was given.
Wade asserts that the factors the district judge empha‐
sized—Wade’s recidivism, the disturbing images at issue, and
the need for future deterrence—are common to all defendants
convicted of possessing child pornography for the second
time. Such reasons cannot support a variance, Wade argues,
because “[a]n above‐guidelines sentence is more likely to be
reasonable if it is based on factors sufficiently particularized
6 No. 17‐3177
to the individual circumstances of the case.” United States
v. Jackson, 547 F.3d 786, 792–93 (7th Cir. 2008) (internal quota‐
tion marks omitted); see United States v. Bradley, 675 F.3d 1021,
1025 (7th Cir. 2012).
But the reasons the judge gave for varying upward were
not just Wade’s recidivism and the nature of the images he
possessed; rather, it was that Wade had squandered the
chance Judge Gilbert gave him by reoffending. When Judge
Gilbert gave his reasons for the sentence at the hearing, he in‐
voked the adage, “fool me once, shame on you; fool me twice,
shame on me,” and spoke about the “two breaks” he had pre‐
viously given Wade. The judge underscored this in his State‐
ment of Reasons form when he wrote, “Leniency provided for
previous federal conviction.” This reason was “particular” to
Wade, and the judge could, in his discretion, vary upward be‐
cause of it. See Warner, 792 F.3d at 856; see also U.S.S.G. § 7B1.4
n.4 (advising, in revocation context, “[w]here the original sen‐
tence was the result of a downward departure … that resulted
in a sentence below the guideline range applicable to the de‐
fendant’s underlying conduct, an upward departure may be
warranted.”).
Finally, Wade argues that his overall sentence of
132 months’ imprisonment is substantively unreasonable,
and thus an abuse of discretion. See Peugh v. United States,
569 U.S. 530, 542 (2013). But we “will uphold an above‐guide‐
lines sentence so long as the district court offered an adequate
statement of its reasons, consistent with 18 U.S.C. § 3553(a),
for imposing such a sentence.” United States v. Gill, 824 F.3d
653, 665 (7th Cir. 2016) (internal quotation marks omitted).
Here, the judge’s reasons go to the heart of § 3553(a); they
touch on the nature and circumstances of the offense and the
No. 17‐3177 7
history and characteristics of the defendant, as well as the
need for a sentence to specifically deter Wade, to reflect the
seriousness of the offense, to provide just punishment, and to
protect the public. Besides pointing to Wade’s recidivism and
the “two breaks” the judge had given him, Judge Gilbert
noted that (1) Wade had not sought a way to deal with stress
besides downloading child pornography, (2) under supervi‐
sion, Wade had succeeded in controlling his addiction, and
(3) Wade had not used his family support to fight his addic‐
tion after the judge terminated his supervision, and that was
part of the reason Wade had reoffended. These reasons pro‐
vided a perfectly adequate explanation for Wade’s sentence,
so the judge did not abuse his discretion.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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388 F.2d 713
UNITED STATES of America, Plaintiff-Appellee,v.Brendan J. HAGARTY, Defendant-Appellant.
No. 15881.
United States Court of Appeals Seventh Circuit.
January 11, 1968.
Rehearing Denied March 13, 1968.
Harvey M. Silets, Chicago, Ill., for appellant. Terence J. Moore, Chicago, Ill., Glenn R. Graves, Washington, D. C., Amicus Curiæ. Harris, Burman & Silets, Chicago, Ill., of counsel.
Edward V. Hanrahan, U. S. Atty., Richard G. Schultz, Asst. U. S. Atty., Chicago, Ill., for appellee. John Peter Lulinski, Gerald M. Werksman, Asst. U. S. Attys., of counsel.
Before HASTINGS, Chief Judge, and KILEY and CUMMINGS, Circuit Judges.
CUMMINGS, Circuit Judge.
1
After a jury trial, defendant Brendan J. Hagarty was convicted of perjury under Section 1621 of the Criminal Code (18 U.S.C. § 1621). Hagarty, a former Chicago police officer, was a criminal investigator for the Internal Revenue Service.
2
In March 1962, IRS Special Agent Arthur Ontko was assigned to the criminal tax investigation of former Chicago police captain Frank Pape. The next month, Ontko contacted Hagarty to see if he had any information about Mr. Pape, but Hagarty said not.
3
In March 1962, Victor Weber of the Inspection Service of the Internal Revenue Service commenced an unrelated investigation of Arthur Nasser, a trial attorney employed by the IRS Regional Counsel's office in Chicago. Hagarty knew Nasser. Electronic eavesdropping on Nasser's office conversations commenced in June 1962 and continued through early February 1963.
4
In January 1963, Inspector Weber and Inspector John T. Kelly installed an eavesdropping device in the baseboard of the wall of Nasser's government office. This consisted of a miniature microphone, a radio transmitter and a power pack. This device carried the conversations in Nasser's office to a receiver in the Regional Inspector's office ten floors below. This eavesdropping was designed to aid the Nasser investigation. No investigation of Hagarty was then authorized.
5
On the morning of January 28, IRS Inspector Richard G. Moylan was monitoring the receiving unit and heard Nasser telephone Hagarty to arrange a meeting between them in Nasser's office that evening after 5:00 p. m. Nasser told Hagarty to turn left and walk straight back to Nasser's office, thus avoiding the receptionist. Without obtaining a search warrant, Weber intended to intercept and tape-record Hagarty's voice when he arrived at Nasser's office. Neither Hagarty nor Nasser had consented to the eavesdropping.
6
When Hagarty arrived at Nasser's office at 5:15 p. m. that evening, Inspectors Weber, Moylan and Kelly, through the listening device, heard Nasser and Hagarty discussing the criminal tax fraud investigation of Frank Pape. Although some of the conversation was too inaudible to record, the transcript of the tape shows that Hagarty and Nasser were discussing taxpayer's strategy in that criminal investigation. In their conversation, Nasser referred to Special Agent Arthur Ontko, and Nasser mentioned that he planned to phone Ontko the next day about the Pape case. At the close of the conversation, Hagarty telephoned his home to say that he would be late for dinner.
7
On January 29, Moylan overheard Nasser telephoning Inspector Ontko, but Nasser was unable to reach him.
8
From February 5, 1963, to March 13, 1963, Hagarty was assigned to the Organized Crime Division of the Internal Revenue Service, attached to its wagering tax group. On March 7, Hagarty asked Ontko the status of the Frank Pape case, whether it was a good case, and whether it was assigned to the Organized Crime Division. Ontko replied that it was the best case on which he had worked, that he was preparing schedules for it, and that the case was assigned to the Organized Crime Division. However, the investigative file of the Pape case was never inspected by Nasser or Hagarty.
9
In September 1963, the Internal Revenue Service commenced a year-long investigation of Hagarty. Nothing incriminatory was discovered about Hagarty during this period.
10
On September 29, 1964, in Inspector Farmer's presence,1 Ontko interviewed Hagarty who was placed under oath and advised of his Fifth Amendment rights. Ontko asked Hagarty whether he had ever been to Nasser's office, and Hagarty replied, "Not that he could recall." Hagarty also stated that he did not discuss the Pape investigation with Nasser. Hagarty gave Ontko an unsworn written statement to that effect. Afterwards, the tape recording of the Nasser-Hagarty conversation was played two or three times, but Hagarty denied that it refreshed his recollection. Hagarty refused to furnish Ontko with a taped voice exemplar. The next day Hagarty refused to give Ontko a sworn written statement after being reminded of his Fifth Amendment rights. Although the tape recording of the January 28 conversation between Nasser and Hagarty was replayed several times again, Hagarty's memory was not refreshed, and he commented that the voice was not his. At the second interview, he also refused a voice exemplar. Farmer was also present at the September 30 interview.
11
In December 1964, Hagarty was having coffee with Special Agent Golla and other agents. On this occasion, Hagarty remarked that the way to avoid cooperating with the IRS Inspection Service in a matter which might implicate you is to state that you do not remember.
12
On December 23, 1964, the District Director of Internal Revenue wrote Hagarty that his interview with Ontko had been unsatisfactory and that Hagarty should appear for another interview under oath. This transcribed interview was conducted by Inspector Weber on January 6, 1965, with Hagarty being sworn and again advised of his Fifth Amendment rights but not advised that the interview was being tape-recorded. At this interview, attended also by Inspector Kelly and court reporter Miss Rimland, Hagarty stated that he did not recall the Nasser meeting of January 28, nor at first did he recall asking Arthur Ontko on March 7 about the status of the Frank Pape case. Shortly thereafter Hagarty categorically denied making such an inquiry of Ontko. Although Inspector Weber repeatedly played portions of an improved recording of the January 28 conversation between Hagarty and Nasser, Hagarty's memory was assertedly not refreshed, and he refused still again to give a voice exemplar.
13
On January 22, Hagarty returned to the Regional Inspector's office to review, correct and sign the transcript of the December 23 interview. He refused to sign it unless given permission to take it home over the weekend. Inspector Weber advised Hagarty that this would violate the policy of the Inspection Service, but he offered to let Hagarty review the transcript there. This offer was declined and Hagarty left without signing the transcript.
14
On February 18, 1965, Hagarty was indicted for testifying falsely before Inspector Weber on January 6th. Seven falsehoods were specified in the one-count indictment.
15
At the trial, Ontko testified that on March 7, 1963, Hagarty came up to him and asked about the status of the Pape case. The rest of the Government's case depended upon matters revealed in the recorded Hagarty-Nasser conversation of January 28.
16
Concededly, only one of the seven charges in the one-count indictment could be proved without the benefit of the recordings of the January 28, 1963, conversation between Hagarty and Nasser. That particular charge was "Hagarty testified in substance that he did not recall asking Ontko about the status of the Frank Pape case prior to September of 1964." Since Hagarty did not take the stand, Ontko was the only witness of the alleged March 7, 1963, conversation in which Hagarty asked about the Pape case. Under the rule governing perjury prosecutions, falsity must usually be established by two independent witnesses or by one witness and corroborating circumstances. Weiler v. United States, 323 U.S. 606, 610, 65 S.Ct. 548, 89 L.Ed. 495; Hammer v. United States, 271 U.S. 620, 626, 46 S. Ct. 603, 70 L.Ed. 1118.2 At the oral argument, the Government conceded that this rule was not satisfied with respect to the March 7 Hagarty-Ontko encounter. Accordingly, the crucial question is whether the evidence of the January 28 Hagarty-Nasser conversation obtained by eavesdropping without a search warrant and without judicial sanction, is banned by the Fourth Amendment.
17
In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, the Supreme Court reversed a conviction where the Government had introduced evidence of the defendant's telephone conversations overheard by FBI agents through a device they had attached to the outside of a public telephone booth. There too, no search warrant had been obtained, nor had the surveillance been judicially authorized as in Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394. In the absence of a warrant or appropriate judicial order, the surveillance was held to be "per se unreasonable under the Fourth Amendment," even though the FBI investigation of Katz's activities established "a strong probability" that he was violating federal law. 389 U.S. at pgs. 354, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. No probable cause is espoused here.
18
The present appeal was argued before Katz was decided, but most of the Government's arguments have been foreclosed by that opinion. Thus the Government first urges that Nasser's government office was not a constitutionally protected area. A similar argument with respect to the public telephone booth was rejected in Katz, where Mr. Justice Stewart pointed out that "the Fourth Amendment protects people, not places," and that what a person "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." The key is whether defendant sought to exclude "the uninvited ear." Under this rationale, it is immaterial that the overheard conversation took place in an IRS office. The Fourth Amendment applies "Wherever a man may be * * *." 389 U.S. at pp. 351-352, 359, 88 S.Ct. 507, 19 L.Ed.2d 576.3
19
The Government also urges that Hagarty has no standing to adopt vicariously Nasser's Fourth Amendment rights. To support this argument, the Government points out that the eavesdropping was conducted as part of the investigation of Nasser and involved his office. A similar argument was rejected in Berger v. State of New York, 388 U. S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, where Berger's conversation was overheard by an electronic device in the office of Harry Steinman, apparently as part of an investigation of Steinman. There the Court observed (at p. 55, 87 S.Ct. at p. 1882):
20
"* * * petitioner clearly has standing to challenge the statute [permitting judicially approved eavesdropping], being indisputably affected by it * * *."4
21
The fact that the conversation was held after hours and was not about legitimate government business does not alter the situation. Since the possessor of a stolen car has standing to object to its search (United States v. Nikrasch, 367 F.2d 740 (7th Cir. 1966)), Hagarty certainly has standing to challenge the "bugging" of an office when he was present there at the invitation of its usual occupant.
22
The Government contends that there was no Fourth Amendment violation because the physical intrusion of this device in the IRS office involved no trespass. The trespass and physical intrusion doctrines were rejected in Katz, where the Court observed (389 U.S. at p. 353, 88 S.Ct. at 512):
23
"We conclude that the * * * `trespass' doctrine * * * can no longer be regarded as controlling. * * * The fact that the electronic device employed * * * did not happen to penetrate the wall of the [telephone] booth can have no constitutional significance."
24
Finally, relying upon United States v. Collins, 349 F.2d 863 (2d Cir. 1965), certiorari denied 383 U.S. 960, 86 S.Ct. 1228, 16 L.Ed.2d 303, United States v. Blok, 88 U.S.App.D.C. 326, 188 F.2d 1019 (1951), and Uniformed Sanitation Men Association, Inc, v. Commismissioner of Sanitation, 383 F.2d 364 (2d Cir. 1967), certiorari granted, 390 U.S. 919, 88 S.Ct. 851, 19 L.Ed.2d 979, the Government urges that the Fourth Amendment does not apply to the search of government premises in the course of an investigation relating to the conduct of governmental business. In Collins, customs agents searched defendant's work jacket as it hung on a rack in his supervisor's outer office in the United States Customs House in New York City. They were attempting to locate six emeralds taken from the Customs Mail Division earlier that same day. In upholding the search of the jacket in this Customs Service clerk, the Court noted that the search "was a constitutional exercise of the power of the Government as defendant's employer, to supervise and investigate the performance of his duties as a Customs employee" (349 F.2d at p. 868). It added (ibid):
25
"The combined authority of Customs and postal agents to open incoming mail is extremely broad by reason of both statute and regulations. * * * The authority of these agents to search the public areas of a government building in order to retrieve a mail package or its contents and to investigate their disappearance must be no less. The room in which defendant's work jacket was hung was his supervisor's outer office, a public area which was not shown to be segregated for private purposes from the other work areas of the Mail Division."
26
In Collins, the Court observed that the authority of the agents to make the search was akin to their authority to open incoming mail. Of course, no such authority is present here. There the search was arguably made in an effort to supervise and investigate Collins' duties. Here the eavesdropping had no such purpose as to Hagarty but was designed to detect criminal activity of Nasser. Also in Collins, the Court considered it important that the search was in a public area; it refused to decide the constitutionality of a search of defendant's locker. In Collins too, the search took place on the very day of the disappearance of the emeralds; fast action was essential to thwart the theft. In contrast, McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93 L.Ed. 153, teaches that where officers are not responding to an emergency, there must be compelling reasons to justify the absence of a search warrant. Here the warrantless eavesdropping of Nasser's conversations commenced in June 1962. Surely, if probable cause were demonstrated, there was ample opportunity between then and January 28, 1963, to seek a search warrant or judicial authorization for appropriately circumscribed surveillance before the critical conversation occurred between Nasser and Hagarty. No compelling reasons have been advanced to justify the absence of a search warrant or judicial approval of the "bug."
27
In Blok, the police searched defendant's desk in the government office where she was employed. Her supervisor consented to the search, but the Court of Appeals upheld her motion to suppress the evidence seized from her desk. We approve of and follow that holding and do not consider as controlling the Blok dicta upon which the Government relies. Thus Judge Edgerton said that Peggy Jean Blok's "official superiors might reasonably have searched the desk for official property needed for official use." He added that her supervisors could not reasonably search her desk for anything "that did not belong to the government and had no connection with the work of the office." 188 F.2d at p. 1021. Here there was no search for "official property needed for official use" or for anything belonging to the Government. As in Blok, this eavesdropping was part of an effort to secure evidence of crime, here Nasser's. "`It was precisely the kind of search by policemen [here IRS agents] for evidence of crime against which the constitutional prohibition was directed.' * * Operation of a government agency and enforcement of criminal law do not amalgamate to give a right of search beyond the scope of either." Ibid.
28
The Uniformed Sanitation Men's case is distinguishable as not involving a criminal prosecution. For various reasons, the 16 appellants, employees of the Department of Sanitation of the City of New York, had only been suspended. This is quite a different matter from using evidence obtained by unauthorized eavesdropping in a subsequent criminal proceeding. See Spevack v. Klein, 385 U.S. 511, 519-520, 87 S.Ct. 625, 17 L.Ed.2d 574, concurring opinion of Mr. Justice Fortas. Furthermore, in holding that the wiretapping in Uniformed Sanitation Men's did not deprive the municipal employees of Fourth Amendment rights, the Court stressed "there was no invasion of appellants' right of privacy since the telephone was not a private telephone nor did it belong to appellants" (383 F.2d at p. 369). As seen, that rationale was discarded by the Supreme Court in its recent Katz opinion.
29
Although the Government defends the surveillance of January 28, 1963, the Attorney General issued regulations in June 1967 prohibiting surveillance of this type, unless with consent of both parties to the conversation, except with advance approval of the Attorney General.5 The prohibitions in these regulations do not extend to national security cases. Congress is considering legislation allowing "bugging" under court permission where designated serious crimes are being investigated. Here neither the Attorney General's advance approval nor court permission had been obtained. The national security was of course not involved.6 The surveillance was therefore out of harmony with present-day enforcement procedures.
30
Although the defendant raises other supposed errors, it is unnecessary to consider them in view of our holding that the Fourth Amendment prohibited the receipt of the evidence obtained through the electronic listening device. In closing, it should be observed that the District Court's evidentiary rulings occurred before Katz repudiated Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, the leading cases in the Government's arsenal at the time of this trial. Nothing in Katz supports the carving out of an exception to the Fourth Amendment's requirements in the circumstances of this case.
31
Reversed.
Notes:
1
Farmer may have stepped out for a time during the September 29 interview. Inspector Plath was present for a portion of the September 29 or 30 interview
2
In perjury cases, there are two essential elements of proof. First, the statements made by the defendant must be proven false. Second, it must be proved that the defendant did not believe those statements to be true. The two-witness (or one-witness and corroborative circumstances) rule applies to proof of the first element, but the defendant's belief that the statements were not true can be proved by circumstantial evidence. United States v. Magin, 280 F.2d 74, 76-78 (7th Cir. 1960), certiorari denied, 364 U.S. 914, 81 S.Ct. 271, 5 L.Ed.2d 228. Where the indictment alleges that a defendant's testimony that he did not remember certain interviews was false, and that he did not believe such testimony was true, both elements of the perjury offense involve his state of mind, and the charge is susceptible of proof by circumstantial evidence of guilt beyond a reasonable doubt. United States v. Nicoletti, 310 F.2d 359, 362-363 (7th Cir. 1963), certiorari denied, 372 U.S. 942, 83 S.Ct. 935, 9 L.Ed.2d 968
3
Katz refused to translate the Fourth Amendment into a general constitutional right to privacy, stating that the protection of a person's general right to privacy is left largely to the law of the States. (389 U.S. at pgs. 350-351). For a thoughful essay championing the protection of the "core of privacy," subject to law enforcement needs, see Judge Kiley's "Privacy's Last Stand," 26 The Critic 41 (1967)
4
See also Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59
5
In emergencies, his advance approval is not required. See New York Times of July 7, 1967, p. 16. Insofar as the regulations apply only to "constitutionally protected areas," they have been superseded byKatz.
6
In theKatz case, the Supreme Court left open the question as to what safeguards would satisfy the Fourth Amendment in surveillance involving the national security (389 U.S. at p. 358, 88 S.Ct. at 507).
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[Cite as State ex rel. E. Cleveland v. Norton, 2013-Ohio-3723.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98772
STATE OF OHIO, EX REL.,
CITY OF EAST CLEVELAND, OHIO, ET AL.
RELATORS
vs.
GARY NORTON, MAYOR, ET AL.
RESPONDENTS
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion Nos. 464138 and 464139
Order No. 466691
RELEASE DATE: August 27, 2013
FOR RELATORS
For city of East Cleveland
Darryl E. Pittman
Pittman Alexander Attorneys
2490 Lee Boulevard
Suite 115
Cleveland Hts., Ohio 44118
Michael Aten
Westgate Towers, Suite 501
20525 Center Ridge Road
Rocky River, Ohio 44116
For Mansell Baker and Nathaniel Martin
Michael Aten
Westgate Towers, Suite 501
20525 Center Ridge Road
Rocky River, Ohio 44116
For Dr. Joy Jordan, Chantelle Lewis, and Barbara Thomas
Darryl E. Pittman
Pittman Alexander Attorneys
2490 Lee Boulevard
Suite 115
Cleveland Hts., Ohio 44118
ATTORNEYS FOR RESPONDENTS
For Gary Norton, Mayor, and
Irene Crowell, Director of Finance
Hilary S. Taylor
Weston Hurd, L.L.P.
The Tower at Erieview
1301 East 9th Street, Suite 1900
Cleveland, Ohio 44114
For Ronald K. Riley, Director of Law
Shawn W. Maestle
Weston Hurd, L.L.P.
The Tower at Erieview
1301 East 9th Street, Suite 1900
Cleveland, Ohio 44114
LARRY A. JONES, SR., J.:
{¶1} The city of East Cleveland, Dr. Joy Jordan, Chantelle Lewis, Nathaniel
Martin, Barbara Thomas, and Mansell Baker (hereinafter referred to as “relators”), have
filed a complaint for a writ of mandamus.1 The relators allege that Gary Norton, Mayor
of East Cleveland, Irene Crowell, Finance Director of East Cleveland, and Ronald K.
Riley, Law Director of East Cleveland (hereinafter referred to as “respondent Mayor,”
“respondent Finance Director,” and “respondent Law Director”), have violated duties
imposed by the Charter and Codified Ordinances of the City of East Cleveland, Ohio.2
The relators, as well as the respondents, have all filed motions for summary judgment with
supporting affidavits and other evidentiary material. We deny the relators’ motion for
summary judgment and grant the respondents’ motion for summary judgment, albeit for
different reasons and arguments than presented by the respondents.
STANDARDS FOR ISSUING A WRIT OF MANDAMUS
{¶2} In order for this court to issue a writ of mandamus, the relators are required to
establish: (1) the relators possess a clear legal right to the requested relief, (2) the
respondents possess a clear duty to perform the requested relief and (3) there must exist no
other adequate remedy in the ordinary course of the law. State ex rel. Ney v. Niehaus, 33
Ohio St.3d 118, 515 N.E.2d 914 (1987). Furthermore, if the relators possessed an
adequate remedy, regardless of whether it was used, relief in mandamus is precluded.
1
Jordan, Lewis, Martin, Thomas, and Baker are named as relators in both their individual
capacity as well as councilpersons of the city of East Cleveland.
2
On March 25, 2013, Irene Crowell was substituted for Jack Johnson, the former city Finance
Director. See disposition of relators’ motion to substitute, motion no. 463309.
State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108.
Moreover, mandamus is an extraordinary remedy that is to be exercised with caution and
issued only when the right and duty is absolutely clear. Mandamus will not issue in
doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977);
State ex rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953);
State ex rel. Connole v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (8th
Dist. 1993); State ex rel. Dayton-Oakwood Press v. Dissinger, 32 Ohio Law Abs. 308,
1940 Ohio App. LEXIS 1173 (2d Dist. 1940). The Supreme Court of Ohio has also
firmly established that the facts submitted in support of the complaint for mandamus and
the proof produced must be plain, clear and convincing before a court is justified in using
the “strong arm of the law” by way of granting a writ of mandamus. State ex rel. Pressley
v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967).
{¶3} In addition to the basic requirements that must be established by the relators,
the following principles of law guide this court’s determination as to whether a writ of
mandamus should be issued on behalf of the relators. Mandamus lies only to enforce the
performance of a ministerial duty or act. A ministerial duty or act has been defined as one
that a person performs in a given state of facts in a prescribed manner in the obedience to
the mandate of legal authority, without regard to, or the exercise of, his own judgment
upon the propriety of the act being done. State ex rel. Neal, Jr. v. Moyer, 3d Dist. Allen
No. 1-84-44, 1985 Ohio App. LEXIS 5380 (Jan. 9, 1985). The object of a writ of
mandamus is to compel an officer to do a specific act required by law, and not to compel
the general enforcement of the mandate of the law.
* * * [A]nd while a court might well hold that the general course of conduct
contended for by the relator, and which he seeks to have the plaintiff
commanded to follow, is the course of conduct which the law requires, and,
therefore, the course which the [respondent] is in duty bound to pursue, yet a
court will not employ the extraordinary writ of mandamus to supplant every
other form of remedy, for if it be employed to compel the observance of law
generally, the court would thereby constitute itself the public conscience, and
all others would become its agents through which the court would, within the
law, exercise its will. The function of a court is to render judgment in
actual controversies between adverse litigants, to command or restrain
specific acts affecting existing rights of parties before the court, as
distinguished from declaratory judgments affecting possible rights and
potential controversies.
State ex rel. Cullen v. Toledo, 105 Ohio St. 545, 138 N.E. 58 (1922). See also State ex
rel. Keyser v. Commrs. of Wayne Cty., 57 Ohio St. 86, 48 N.E. 136 (1897).
{¶4} It must also be noted that if the allegation of a complaint for a writ of
mandamus demonstrates that the real object sought is a declaratory judgment and a
prohibitory injunction, the complaint does not state a cause of action in mandamus and
must be dismissed for lack of jurisdiction. State ex rel. Esarco v. Youngstown City
Council, 116 Ohio St.3d 131, 2007-Ohio-5699, 876 N.E.2d 953; State ex rel. Obojski v.
Perciak, 113 Ohio St.3d 486, 2007-Ohio-2453, 866 N.E.2d 1070, quoting State ex rel.
Grendell v. Davidson, 86 Ohio St.3d 629, 1999-Ohio-130, 716 N.E.2d 704.
Mandamus will not issue to require a public officer to prospectively
observe the law. State ex rel. Home Care Pharmacy, Inc. v. Creasy, 67
Ohio St.2d 342, 423 N.E.2d 482 (1981); State ex rel. Kay v. Fuerst, 156
Ohio St 188, 101 N.E. 730 (1951). Finally, this court possesses the sound
discretion to deny or grant a writ of mandamus. In State ex rel. Pressley v.
Industrial Comm. of Ohio (1967), supra, paragraph seven of the syllabus, the
Supreme Court of Ohio held that “in considering the allowance or denial of
the writ of mandamus on the merits, [the court] will exercise sound, legal
and judicial discretion based upon all the facts and circumstances in the
individual case and the justice to be done.” The Supreme Court of Ohio
expounded that in exercising the discretion to deny or grant a writ of
mandamus, the court hearing the original action should consider the
exigency which calls for the exercise of such discretion, the nature and
extent of the wrong or injury which would follow a refusal of the writ, and
other facts which have a bearing on the particular case. * * * Among the
facts and circumstances which the court will consider are the applicants’
rights, the interests of third persons, the importance or unimportance of the
case, the applicant’s conduct, the equity and justice of the relator’s case,
public policy and the public’s interest, whether the performance of the act by
the respondent would give the relator any effective relief, and whether such
act would be impossible, illegal or useless.
Pressley at 161-162. See also State ex rel. Bennett v. Lime, 55 Ohio St.2d 62, 378 N.E.2d
152 (1978); State ex rel. Dollison v. Reddy, 55 Ohio St.2d 59, 378 N.E.2d 150 (1978),
State ex rel. Mettler v. Stratton et al., 139 Ohio St. 86, 38 N.E.2d 393 (1941).
RELATORS’ CLAIMS FOR MANDAMUS
{¶5} In this case, the relators have presented nine claims that form the basis of their
request for a writ of mandamus. Specifically, the relators argue that the respondents
possess the duty to fulfill each of the following nine claims:
1) inventory of supplies and materials: “On January 17, 2012, the Council
passed Resolution 107-11, directing Respondent the Director of Finance (then
Jack Johnson, now Irene Crowell) to ‘submit to Council, on a quarterly basis, a
detailed inventory of supplies and material on hand and the value thereof at the
date of preparation.’”
2) monthly balance sheets: “On March 7, 2012, the Council passed
Resolution 102-11, directing Respondent the Director of Finance (then Jack
Johnson, now Irene Crowell) to ‘deliver to Council on the first day of each
calendar month a monthly balance sheet showing in detail all receipts and
expenditures of the City for the preceding calendar year.’”
3) financial information: “On May 1, 2012, City Council passed Resolution 47-12
* * * requires the administration to provide * * * information and documention, inter alia:
a. a sum of $3.2 million that was ‘located’ or ‘found’ by the administration just prior to the
City Council’s consideration of the 2012 appropriation ordinance in late March, 2012; and
b. the Victory Money Market Mutual Fund established in 2005 from Local Government
fund notes and which funds are restricted until 2013.”
4) failure to attend meetings: “To date, the Finance Director has failed or refused
to participate in the Council’s Finance Committee meetings and Audit Committee
meetings and to provide information requested by those committees.”
5) failure to provide financial information: “On January 17, 2012, City Council
passed Resolution 108-11, * * * requires the Finance Director to provide City Council
with all super Blanket purchase orders in place during the fiscal year that terminated or
will terminate by the last day of the year.”
6) violation of salary ordinance and appropriation ordinance: “By Charter, the
Mayor of East Cleveland is authorized a stated salary of $40,000.00. * * * On December
19, 2011, City Council passed Ordinance No. 101-11, which adjusted salary ranges of City
employees. That ordinance, * * *, amended an earlier temporary salary ordinance which
had provided for a salary of $25,000.00 for the position of Safety Director and a salary of
$25,000.00 for the position of Assistant Safety Director by eliminating the salary
appropriations for these positions. * * *. As of June 30, 2012, the Finance Director has
disbursed payments to the Mayor totaling $22,485.00 from the police dept. fund and
$22,485.00 from the fire department fund. The Finance Director has continued to pay
these funds to the Mayor despite the lack of any appropriations providing for such funds.”
7) failure to cooperate with respondent: “Council’s formulation and
implementation of appropriations ordinance - On February 4, 2012, City Council passed
Resolution 104-11, * * *, requiring the Mayor to submit to Council by the end of each
fiscal year a budget schedule for each city department’s essential and discretionary
functions. From the end of 2011 to date, the Mayor has failed to comply with Resolution
104-11 for fiscal year 2012. On February 18, 2012, City Council passed Ordinance No.
109-11, requiring the Mayor to submit to Council on a quarterly basis a schedule of all
essential personnel by department. * * *. Further, the Mayor, without any authority to do
so, delayed approval of the appointment of a Deputy Clerk of Council and the placement
of such Clerk on the City payroll. The Mayor and the Finance Director are and have been
attempting to impede the operation of the City Council and have refused to properly pay
the invoices submitted for expenses incurred in City Council operations. * * *.”
8) unauthorized contracts: “The mayor has followed a consistent pattern of
accepting grants and funds without approval of the receipt of such funds by Council as
required by the Codified Ordinances and Charter.”
9) Law Director has failed to perform his mandatory duty: “Law Director, Ronald
Riley, has consistently failed and refused to promptly draft ordinances as requested by City
Council.”
ANALYSIS AND DISPOSITION OF COMPLAINT FOR MANDAMUS
{¶6} Based upon the motions for summary judgment as filed by the relators and
the respondents, the briefs in opposition to the motions for summary judgment, the
supporting affidavits, the attached exhibits, and the deposition transcripts, we decline to
issue a writ of mandamus on behalf of the relators. As previously stated, this court in
considering the grant or denial of the writ of mandamus on the merits, will exercise sound
legal and judicial discretion based upon all of the facts and circumstances in this case and
the justice to be done.
{¶7} Applied to the facts and circumstances of this action, are the following
principles stated previously but summarized in the following: 1) mandamus will not be
employed to enforce the general mandate of the law; 2) mandamus will not be employed to
require a public officer to follow the law generally in the conduct of his official duties; 3)
mandamus will not issue to compel a public officer to prospectively observe the law and
perform a specific duty; 4) mandamus will not be employed as a substitute for one seeking
declaratory judgment and prohibitory injunction; 5) mandamus will not be employed to
order a vain act; and 6) mandamus will not be employed where the act requested is moot.
{¶8} It must also be noted that our decision to not issue a writ of mandamus is
based upon the material fact that the office of the Auditor of the state of Ohio declared
respondent-city of East Cleveland to be in fiscal emergency and thus placed under fiscal
watch.
{¶9} Pursuant to R.C. 118.05, a seven-member financial planning and supervision
commission was created to oversee the daily and long-term financial operation of
respondent-city of East Cleveland. The financial oversight includes preparation of a
long-range financial plan designed to remedy the financial problems of respondent-city of
East Cleveland; restrictions on the financial activities of the respondent-city of East
Cleveland; and the allocation of financial resources by department (police, fire, highways,
etc.) and account (salaries, fringe benefits, etc.). The complaint for a writ of mandamus
concerns the daily and long-term financial operations of respondent-city of East Cleveland,
which have been assumed by the financial planning and supervision commission pursuant
to R.C. 118.05, and are no longer the responsibility of the relators.
{¶10} As previously stated, the relators have raised nine claims in support of their
complaint for a writ of mandamus. We find, for the following reasons, that mandamus is
not appropriate with regard to any of the nine claims:
1) inventory of supplies and materials: is moot; does not lie to compel a public
officer to follow the law generally in the conduct of duties, does not lie to compel a public
officer prospectively to observe the law, failure to establish a clear legal right to relief or a
clear legal duty;
2) monthly balance sheets: is moot; does not lie to compel a public officer to
follow the law generally in the conduct of duties, does not lie to compel a public officer
prospectively to observe the law, failure to establish a clear legal right to relief or a clear
legal duty;
3) financial information: is moot; does not lie to compel a public officer to follow
the law generally in the conduct of duties, does not lie to compel a public officer
prospectively to observe the law, failure to establish a clear legal right to relief or a clear
legal duty;
4) failure of Finance Director to attend meetings: is moot; does not lie to compel a
public officer to follow the law generally in the conduct of duties, does not lie to compel a
public officer prospectively to observe the law, failure to establish a clear legal right to
relief or a clear legal duty;
5) financial information: inventory of supplies and materials: is moot; does not
lie to compel a public officer to follow the law generally in the conduct of duties, does not
lie to compel a public officer prospectively to observe the law, failure to establish a clear
legal right to relief or a clear legal duty;
6) Mayor’s violation of salary ordinance and appropriation ordinance: the claim
does not state a cause of action in mandamus because the real objects sought are a
declaratory judgment and a prohibitory injunction;
7) failure to cooperate with formulation and implementation of appropriation
ordinance: is moot; does not lie to compel a public officer to follow the law generally in
the conduct of duties, does not lie to compel a public officer prospectively to observe the
law, failure to establish a clear legal right to relief or a clear legal duty;
8) unauthorized contracts: is moot; does not lie to compel a public officer to
follow the law generally in the conduct of duties, does not lie to compel a public officer
prospectively to observe the law, failure to establish a clear legal right to relief or a clear
legal duty;
9) failure of Law Director to perform duty: is moot; does not lie to compel a
public officer to follow the law generally in the conduct of duties, does not lie to compel a
public officer prospectively to observe the law, failure to establish a clear legal right to
relief or a clear legal duty.
{¶11} In essence, mandamus may only be employed to compel the performance of a
present existing duty as to which there is a present default. Mandamus will not issue to
force prospective relief nor will mandamus lie to remedy the anticipated nonperformance
of a duty. In addition, other facts taken into consideration by this court, including the
relators’ rights, the equity and justice of denying a writ of mandamus, public policy, the
public’s interest, and whether the performance of the requested acts would give the
relators effective relief, weigh heavily against the issuance of a writ of mandamus. Thus,
this court, in the exercise of its discretion, declines to issue a writ of mandamus on behalf
of the relators.
{¶12} Accordingly, this court denies the relators’ motion for summary judgment,
and grants the respondents’ motion for summary judgment, albeit for reasons different
than those argued by the respondents. Relators to pay costs. The court directs the clerk
of court to serve all parties with notice of this judgment and its date of entry upon the
journal as required by Civ.R. 58(B).
{¶13} Writ denied.
LARRY A. JONES, SR., JUDGE
MELODY J. STEWART, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
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12 F.3d 66
Mark Donald McKAY, Petitioner/Appellant,v.James A. COLLINS, Director, Texas Dept. of Criminal Justice,Institutional Division, Respondent/Appellee.Elliott WILLIAMS, Petitioner/Appellee,v.James A. COLLINS, Director, Texas Dept. of Criminal Justice,Institutional Division, and Dan Morales, AttorneyGeneral, Respondents/Appellants.
Nos. 92-1283, 92-8567.
United States Court of Appeals,Fifth Circuit.
Jan. 26, 1994.
1
Mark Donald McKay, pro se.
2
S. Michael Bozarth, Asst. Atty. Gen., and Dan Morales, Atty. Gen. of Texas, Antitrust Div., Austin, TX, for James A. Collins.
3
B.J. Walter, Jr. (Court-appointed), Nathan Wood & Sommers, Houston, TX, Elliott Williams.
4
Appeals from the United States District Court for the Western District of Texas and the United States District Court for the Northern District of Texas.
5
Before DUHE and EMILIO M. GARZA, Circuit Judges, and BLACK,1 District Judge.
NORMAN W. BLACK, District Judge:
6
These consolidated appeals follow rulings by district courts in Texas on petitions for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. The petitions involved similar issues, yet resulted in different rulings. We REVERSE the district court's ruling in the Williams, case 802 F.Supp. 1530, and AFFIRM the district court's ruling in the McKay case.
I.
7
Defendant/Petitioner/Appellee Williams pled guilty to three separate indictments charging aggravated robbery with a deadly weapon, a first-degree felony, and to a fourth indictment charging escape from a penal institution, also a felony. On May 17, 1988, Williams was sentenced to serve 60 years on each of the robbery charges, to run concurrently, and to serve 10 years on the escape charge. The convictions were affirmed on direct appeal by the Third Court of Appeals of Texas in a per curiam written unpublished opinion filed April 19, 1989. In Williams's state court habeas proceeding, he raised only two issues: (1) whether the indictments were fundamentally defective rendering his conviction and sentence void and (2) whether defense counsel was constitutionally ineffective for failing to raise the issue of the defective indictments. The Texas Court of Criminal Appeals denied the petition without written order.
8
Williams filed his federal petition on August 7, 1991. Respondent moved for summary judgment asserting that the state's highest court of criminal appeals had reviewed the contested indictments and found them sufficient to confer jurisdiction on the state trial court. The magistrate judge to whom the motion was referred issued a report and recommended that summary judgment be granted. The district court rejected the magistrate judge's recommendation and granted the petition, finding that the indictments were defective to the extent that the state court did not have jurisdiction.
9
McKay plead guilty to felony murder and was sentenced to serve forty years in prison. He did not pursue a direct appeal, but instead sought habeas relief in the state system. The state petition raised the same two issues raised by Williams2 and was denied without written order on March 1, 1989. This federal petition for habeas relief was filed, the Director filed a motion for summary judgment which was referred to the magistrate judge who recommended that relief be denied. The district court adopted the magistrate judge's report and recommendation and denied relief.
II.
10
The initial issue raised by Appellants is whether the district courts erred in their rulings regarding whether the state courts had not reviewed the claimed defects in the indictments and found them sufficient to confer jurisdiction on the trial courts. The sufficiency of a state indictment is not a matter for federal habeas relief unless it can be shown that the indictment is so defective that it deprives the state court of jurisdiction. Branch v. Estelle, 631 F.2d 1229 (5th Cir.1980). Where the state courts have held that an indictment is sufficient under state law, a federal court need not address that issue. Millard v. Lynaugh, 810 F.2d 1403 (5th Cir.), cert. denied 484 U.S. 838, 108 S.Ct. 122, 98 L.Ed.2d 81 (1987); Alexander v. McCotter, 775 F.2d 595 (5th Cir.1985). The district court in Williams found that the state court had not considered and ruled on Williams's claim that the indictments were fundamentally defective, citing Garrett v. McCotter, 807 F.2d 482 (5th Cir.1987). Resolution of this issue depends upon whether Alexander or Garrett applies in these cases.3
11
In Alexander, Petitioner asserted that his burglary indictment was fundamentally defective. The petition was denied and Petitioner appealed. The Fifth Circuit affirmed, noting that the Texas Court of Criminal Appeals in declining to grant relief "necessarily, though not expressly, held that the Texas courts have jurisdiction and that the indictment is sufficient for that purpose." 775 F.2d at 599. In Garrett, Petitioner also asserted that his indictment was fundamentally defective. The Texas Court of Criminal Appeals issued an order denying and dismissing the petition as improvidently set. The Fifth Circuit held that the "improvidently set" order was not a ruling on the merits. The Court described a number of reasons why a case would be dismissed as improvidently set and compared the situation to that presented in Alexander in which the denial was on the merits. 807 F.2d at 484.
12
Based upon the Court's statements in Garrett noting the many reasons, other than a ruling on the merits, for which a case could be dismissed as improvidently set and also upon the Garrett court's apparent recognition that Alexander would still control situations in which the decision was on the merits, we hold that Alexander governs these cases and would preclude federal habeas review of the state courts' decisions.
13
Even were we not to apply Alexander to these cases to hold that federal habeas review is precluded, we would hold that the district court would be required to accord due deference to the state courts' interpretations of its own law that a defect of substance in an indictment does not deprive a state trial court of jurisdiction. Moreno v. Estelle, 717 F.2d 171 (5th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984). The question whether a defective state indictment confers jurisdiction on the state trial court is a matter of state law. Lavernia v. Lynaugh, 845 F.2d 493 (5th Cir.1988); Bueno v. Beto, 458 F.2d 457 (5th Cir.), cert. denied, 409 U.S. 884, 93 S.Ct. 176, 34 L.Ed.2d 140 (1972). A 1985 amendment to the Texas Constitution provides that the "presentment of an indictment or information to a court invests the court with jurisdiction of the cause." Texas Constitution, Art. 5, Sec. 12(b). Williams argues that the amendment does not apply because the indictment was defective in failing to include an essential element and, therefore, does not qualify as an indictment. The Texas courts have held, however, that failure to include an essential element of the crime charged, which constitutes a defect of substance, does not deprive the trial court of jurisdiction. Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990). In Williams, the grand jury returned the indictments on January 20, 1988, well after the 1985 amendment, thereby investing the trial court with jurisdiction. Similarly, the grand jury returned the McKay indictment in the January 1986 term. As a result, according due deference to the state courts' interpretation of the 1985 amendment, the alleged defects in the indictments did not deprive the state trial courts of jurisdiction and the Williams court's ruling to the contrary must be reversed.
14
Petitioners also assert that, notwithstanding state law, the defects in the indictments deprived them of notice of the charges against them in violation of the Sixth Amendment to the United States Constitution. Specifically, Williams argues that the absence of the terms "intentionally or knowingly" resulted in a failure to charge the culpable mental state of intent. We find, however, that the common definition of the word "threaten" necessarily includes intent and substitution of "threaten" for "intentionally or knowingly" provides adequate notice of the charges. The standard for determining the sufficiency of an indictment is based upon practical, not technical considerations. United States v. Chaney, 964 F.2d 437, 446 (5th Cir.1992). The test involves minimal constitutional standards, not whether a better indictment could have been written. Id. The essential elements of the offense, including knowledge or intent, must be included in the indictment but need not be expressed in any specific terms. United States v. Arteaga-Limones, 529 F.2d 1183 (5th Cir.), cert. denied 429 U.S. 920, 97 S.Ct. 315, 50 L.Ed.2d 286 (1976). The "plain and sensible meaning of the language used" may give the defendant notice sufficient to meet the requirements of the sixth amendment. United States v. Haas, 583 F.2d 216 (5th Cir.1978), cert. denied 440 U.S. 981, 99 S.Ct. 1788, 60 L.Ed.2d 240 (1979). An indictment should be found sufficient unless no reasonable construction of the indictment would charge the offense for which the defendant has been convicted. United States v. Salinas, 956 F.2d 80 (5th Cir.1992) (construing federal indictment).
15
Williams's argument that the culpable mental state has a technical meaning and no substitutions should be allowed, citing Chance v. State, 563 S.W.2d 812 (Tex.Crim.App.1978), is without merit. Initially, we note that the Chance case was decided prior to the 1985 amendment. Additionally, the issue is whether the indictment is sufficient under federal constitutional standards. The fact that an indictment is insufficient under state penal code statutes does not necessarily affect the federal constitutional determination as to whether the indictment gives a defendant notice of the charge against him. United States v. Webb, 747 F.2d 278 (5th Cir.1984), cert. denied 469 U.S. 1226, 105 S.Ct. 1222, 84 L.Ed.2d 362 (1985).
16
In McKay, the term "attempt" by definition includes the element of intent. Ex parte Bailey, 600 S.W.2d 331, 332 (Tex.Crim.App.1980). Additionally, the terms "unlawfully" and "felony" in connection with the forgery predicate offense are adequate substitutes for the "to defraud or harm another" language which is missing. A person may forge a writing without violating the state forgery statute, but he may not forge a writing "unlawfully" without intending to "defraud or harm another." See United States v. Lilly, 512 F.2d 1259 (9th Cir.1975) (the term "feloniously" was sufficient to give notice of the element of specific intent to steal in a robbery charge).
III.
17
Pursuant to the Fifth Circuit authority set forth in Alexander v. McCotter, the state courts' implicit findings in Williams and McKay that the indictments were not fundamentally defective should end the inquiry. The 1985 amendment to the Texas Constitution makes it clear that the presentment of the indictments invested the trial courts with jurisdiction. The substituted terms in the Williams and McKay indictments were constitutionally adequate to give notice of the charges. Consequently, neither Williams nor McKay is entitled to federal habeas relief.
18
For the foregoing reasons, the decision of the United States District Court for the Western District of Texas in Williams v. Collins is REVERSED AND THE PETITION DISMISSED and the decision of the United States District Court for the Northern District of Texas in McKay v. Collins is AFFIRMED.
1
Chief Judge of the Southern District of Texas, sitting by designation
2
The alleged defect in McKay's indictment was the absence from his felony murder charge of the culpable mental state for the predicate offense of forgery, specifically the language "with intent to defraud or harm another."
3
The Williams district court in his opinion includes an extensive discussion of Ylst v. Nunnemaker, --- U.S. ----, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) regarding the circumstances under which a federal court should defer to a state court finding of procedural default. In Williams, however, the Director does not argue that the Texas court found the indictment sufficiency issue procedurally defaulted. Instead, the Director argues that the Texas court found the indictments to be sufficient on the merits, citing Alexander
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ACCEPTED
03-13-00131-CR
5307620
THIRD COURT OF APPEALS
Kristen Jernigan AUSTIN, TEXAS
5/15/2015 3:29:02 PM
JEFFREY D. KYLE
Attorney at Law CLERK
207 S. Austin Ave., Georgetown, Texas 78626
(512) 904-0123 (AUSTIN AREA) (832) 642-3081 (HOUSTON AREA)
FILED IN
KRISTEN@TXCRIMAPP,COM 3rd COURT OF APPEALS
AUSTIN, TEXAS
5/15/2015 3:29:02 PM
B BOARD
CERTIFIED* CRIMINAL APPELLATE
JEFFREY D. KYLELAW
Clerk
May 15,2015
VIA CERTIFIED MAIL, RRR # 7013 2250 9570 1745
Edward Guzman
TDCJ No. 01845822
Robertson Unit
12071 FM 3522
Abilene, Texas 79601
Re: Edward Guzman v. The State of Texas, No. 03-13-00131-CR
Dear Edward:
I have enclosed a copy of the Court of Appeals' opinion in your case.
Unfortunately, your conviction and sentence were affirmed by the Court. The
Court's opinion was issued on May 13, 2015. You now have the right to file zpro
se Petition for Discretionary Review. That Petition is due within thirty days of the
date of the Court's opinion, making it due on or before June 12, 2015. As a
courtesy, I have filed an extension of that filing deadline with the Court of
Criminal Appeals, which I have enclosed. If that motion is granted, your petition
will be due on or before August 11, 2015. I have enclosed a copy of the relevant
Rules of Appellate Procedure that apply to petitions for discretionary review so
that you will know the deadlines and requirements for filing the petition. When
you file the petition, be sure to attach a copy of the Court of Appeals' opinion. I
urge you to contact the Hays County District Clerk to obtain the records you may
need to draft your petition. In addition I have attached a motion you can file with
the Court of Appeals to obtain a copy of your appellate record.
The Hays County District Clerk's address is:
Beverly Crumley
Hays County District Clerk
712 S. Stagecoach Trail
San Marcos, Texas 78666
The Court of Appeals address is:
Third Court of Appeals
P.O. Box 12547
Austin, Texas 78711
The Texas Court of Criminal Appeals address is:
Texas Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 78711
I wish you the best of luck.
Sincerely,
/s/ Kristen Jernigan
Kristen Jernigan
No. 03-13-00131-CR
In the
COURT OF APPEALS
For the
THIRD SUPREME JUDICIAL DISTRICT
at Austin
On Appeal from the 22nd Judicial District Court of
Hays County, Texas
Cause Number 12-0006
EDWARD GUZMAN, Appellant
v.
THE STATE OF TEXAS, Appellee
MOTION FOR PRO SE ACCESS TO APPELLATE RECORD
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF
APPEALS:
COMES NOW, Edward Guzman, Appellant herein, and files this, his
Motion for Pro Se Access to Appellate Record. In support of said motion,
Appellant would show the Court the following:
On May 13, 2015, this Court affirmed Appellant's conviction and sentence
in this case. Appellant is now representing himself pro se and requests access to
the appellate record for the preparation of his pro se petition for discretionary
review.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
requests that this Court grant his Motion for Pro Se Access to the Appellate
Record.
Respectfully submitted,
Edward Guzman
DATE:
TEXAS RULES OF APPELLATE PROCEDURE Page 71
opinion without modifying its judgment, the Court will ordinarily 663. Reasons for Granting Review
deny a second motion for rehearing unless the new opinion is
substantially different from the original opinion. While neither controlling nor fully measuring the Court of
Criminal Appeals' discretion, the following will be considered by
the Court in deciding whether to grant discretionary review:
Rule 65. Enforcement of Judgment
after Mandate (a) whether a court of appeals' decision conflicts with
another court of appeals' decision on the same issue;
65.1. Statement of Costs
(b) whether a court of appeals has decided an important
The Supreme Court clerk will prepare, and send to the question of state or federal law that has not been, but
clerk to whom the mandate is directed, a statement of costs should be, settled by the Court of Criminal Appeals;
showing:
(c) whether a court of appeals has decided an important
(a) the costs that were incurred in the Supreme Court, question of state or federal law in a way that
with a notation of those items that have been paid conflicts with the applicable decisions of the Court
and those that are owing; and of Criminal Appeals or the Supreme Court of the
United States;
(b) the party or parties against whom costs have been
adjudged. (d) whether a court of appeals has declared a statute,
rule, regulation, or ordinance unconstitutional, or
65.2. Enforcement of Judgment appears to have misconstrued a statute, rule,
regulation, or ordinance;
IftheSupreme Court renders judgment, the trial court need
not make any further order. Upon receiving the Supreme Court's (e) whether the justices of a court of appeals have
mandate, the trial court clerk must proceed to enforce the disagreed on a material question of law necessary to
the court's decision; and
judgment of the Supreme Court's as in any other case. Appellate
court costs must be included with the trial court costs in any
process to enforce the judgment If all or part of the costs are (f) whether a court of appeals has so far departed from
the accepted and usual course of judicial
collected, the trial court clerk must immediately remit to the
proceedings, or so far sanctioned such a departure by
appellate court clerk any amount due to that clerk. a lower court, as to call for an exercise of the Court
of Criminal Appeals1 power of supervision.
Notes and Comments
66.4. Documents to Aid Decision
Comment to 1997 change: Subdivision 65.1 is new.
Subdivision 65.2 is from former Rule 183.
(a) Acquiring Documents. The Court of Criminal
Appeals — or any judge of the Court—may order
the court of appeals clerk to promptly send the
SECTION FIVE:
following items to the Court in order to aid it in
PROCEEDINGS IN THE
deciding whether to grant discretionary review:
COURT OF CRIMINAL APPEALS
(1) the appellate record;
Rule 66. Discretionary Review
in General (2) a copy of the opinions of the court of appeals;
66.1. With or Without Petition (3) a copy of the motions filed in the court of
appeals; and
The Court of Criminal Appeals may review a court of
appeals' decision in a criminal case on its own initiative under (4) certifiedcopiesofanyjudgmentororderofthe
Rule 67 or on the petition of a party under Rule 68. court of appeals.
6&2. Not a Matter of Right (b) Return of Documents. If discretionary review is not
granted, the clerk of the Court of Criminal Appeals
Discretionary review by the Court of Criminal Appeals is will return the appellate record to the court of
not a matter of right, but of the Court's discretion. appeals clerk.
71
Page 72 TEXAS RULES OF APPELLATE PROCEDURE
Notes and Comments
68.1. Generally
Comment to 1997 change: This is former Rule 200. The
former rule's reference to motions for rehearing now appears in On petition by any parry, the Court of Criminal Appeals
Rule 49.9. The rule is otherwise amended without substantive may review a court of appeals' decision in a criminal case.
68.2. Time to File Petition
Rule 67. Discretionary Review (a) First Petition. The petition must be filed within 30
Without Petition days after either the day the court of appeals'
judgment was rendered or the day the last timely
67.1. Four Judges'Vote motion for rehearing or timely motion for en banc
reconsideration was overruled by the court of
By a vote of at least four judges, the Court of Criminal appeals.
Appeals may grant review of a court of appeals' decision in a
criminal case at any time before the mandate of the court of (b) Subsequent Petition. Even if the time specified in (a)
has expired, a party who otherwise may file a
appeals issues. An order granting review will be filed with the
clerk of the Court of Criminal Appeals, who must send a copy to petition may do so within 10 days after the timely
the court of appeals clerk. filing of another party's petition.
67.2. Order Staying Mandate (c) Extension of Time. The Court of Criminal Appeals
may extend the time to file a petition for
To provide enough time forthe Court of Criminal Appeals discretionary review if a party files a motion
to decide whether to grant discretionary review under 67.1, the complying with Rule 10.5(b) no later than 15 days
after the last day for filing the petition. The Court of
Court—or any judge of the Court—may file with the clerk of Criminal Appeals may extend the time to file a
the court of appeals an order staying the court of appeals'
mandate. The order must be signed by a judge of the Court of response or reply if a party files a motion complying
with Rule 10.5(b) either before or after the response
Criminal Appeals. The clerk of the Court of Criminal Appeals
or reply is due.
must immediately send a copy of the order to the court of appeals
clerk.
Notes and Comments
673. Time to Issue Mandate Extended Comment to 2011 change: The amendment to Rule 63.2(a)
resolves timely filing questions concerning motions for en banc
Unless otherwise limited in the order itself, an order reconsideration by including those motions in calculating time to
staying the court of appeals' mandate under 67.2 will extend for file.
an additional 45 days the time before issuance of the court of
appeals' mandate. An order granting review prevents the 683. Where to File Petition
issuance of the court of appeals' mandate pending the further
order of die Court of Criminal Appeals. If four judges do not
(a) The petition and all copies of the petition must be filed
agree to grant review within that time the court of appeals clerk with the clerk of the Court of Criminal Appeals.
must issue the mandate.
Notes and Comments (b) Petition Filed in Court of Appeals. If a petition is
mistakenly filed in the court of appeals, the petition is deemed to
have been filed the same day with the clerk of the Court of
Comment to 1997 change: This is former Rule 201. The Criminal Appeals, and the court of appeals clerk must
rule is amended without substantive change.
immediately send the petition to the clerk of the Court of
Criminal Appeals.
Comment to 2000 change: Language which was in the
olchline of former Rule 201 has been deleted from Rule 67.1, to Notes and Comments
restore the substance of the rule, and to remove any implication
that the court may not grant review on its own motion when a Comment to 2011 change: Rule 68 J is changed to require
petition for discretionary review has been filed petitions for discretionary review to be filed in the Court of
Criminal Appeals rather than in the court of appeals. With the
deletion of Rule 50, there is no reason to file petitions in the
Rule 68. Discretionary Review court of appeals. Rule 683(b) is added to address and prevent
With Petition the untimely filing of petitions for discretionary review that are
72
TEXAS RULES OF APPELLATE PROCEDURE
_Page73
incorrectly filed in the court of appeals rather than in the Court If the petitioner has access to die record, the
of Criminal Appeals. petitioner must (after each ground) refer to the page
of the record where the matter complained of is
6&4. Contents of Petition found. Instead of listing grounds for review, the
petition may contain the questions presented for
A petition for discretionary review must be as brief as review, expressed in die terms and circumstances of
possible. It must be addressed to the "Court of Criminal Appeals the case but without unnecessary detail. The
of Texas'* and must state the name of the party or parties statement of questions should be short and concise,
applying for review. The petition must contain the following not argumentative or repetitious.
items:
(h) Argument. The petition must contain a direct and
(a) Identity of Judge, Parties, and Counsel. The petition concise argument, with supporting authorities,
must list the trial court judge, all parties to the amplifying the reasons for granting review. See Rule
judgment or order appealed from, and the names and 663. The court of appeals' opinions will be
addresses of all trial and appellate counsel. considered with the petition, and statements in those
opinions need not be repeated if counsel accepts
(b) Table of Contents. The petition must include a table them as correct
of contents with references to the pages of the
petition. The table of contents must indicate the (i) Prayer for Relief. The petition must state clearly the
subject matter of each ground or question presented nature of the relief sought
for review.
0) Appendix, The petition must contain a copy of any
(c) Index of Authorities. The petition must include an opinion of the court of appeals.
index of authorities arranged alphabetically and
indicating the pages of the petition where the 68.5. Deleted
authorities are cited.
6SjS. Nonconforming Petition
(d) Statement Regarding Oral Argument. The petition
must include a short statement of why oral argument The Court may strike, order redrawn, or summarily refuse
would be helpful, or a statement that oral argument a petition for discretionary review that is unnecessarily lengthy
is waived. If a reply or cross-petition is filed, it or that does not conform to these rules.
likewise must include a statement of why oral
argument should or should not be heard. 68.7. Court of Appeals Clerk's Duties
(e) Sto/emen/(^i*e Owe. The petition must state briefly Within 15 days of receiving notice of the filing of a
the nature of the case. This statement should seldom petition for discretionary review from the clerk of the Court of
exceed half a page. The details of the case should be Criminal Appeals, the clerk of the court of appeals must send to
reserved and stated with the pertinent grounds or the clerk of the Court of Criminal Appeals the record, any
questions. motions filed in the case, and copies of any judgments, opinions,
and orders of the court of appeals. The clerk need not forward
(f) Statement of Procedural History. The petition must any nondocumentary exhibits unless ordered to do so by the
state: Court of Criminal Appeals.
(1) the date any opinion of the court of appeals Notes and Comments
was handed down, or the date of any order of
the court of appeals disposing of the case Comment to 2011 change: Rule 68.7(a) and (b) are deleted
without an opinion; and (c) is amended to reflect changes consistent with filing the
petition and reply in the Court of Criminal Appeals rather than
(2) the date any motion for rehearing was filed (or in the court of appeals, and to order the record to be sent to the
a statement that none was filed); and Court of Criminal Appeals. Additionally, Rule 68.7(c) is
amended to delete reference to Rule 50, which is abolished..
(3) the date the motion for rehearing was overruled
or otherwise disposed of 6&& Court of Criminal Appeals Clerk's Duties
(g) Grounds for Review. The petition must state briefly, Upon receipt of the record from the court of appeals, the
without argument, the grounds on which the petition clerk of the Court of Criminal Appeals will file the record and
is based. The grounds must be separately numbered. enter the filing on the docket
73
Page7£ TEXAS RULES OF APPELLATE PROCEDURE
Notes and Comments Comment to 2011 change: The address for the
State Prosecuting Attorney is deleted because it has changed
Comment to 2011 change: Rule 68.8 is amended to reflect and may change again.
changes consistent with filing the petition in the Court of
Criminal Appeals. Rule 69. Action of Court on Petition
for Discretionary Review and After
Granting Review
68.9 Reply.
69.1. Granting or Refusal
The opposing party has 15 days after die timely filing of
the petition in the Court of Criminal Appeals to file a reply to If four judges do not vote to grant a petition for
the petition with the clerk of the Court of Criminal Appeals.
discretionary review, the Court will enter a docket notation that
the petition is refused. If four judges vote to grant a petition, the
Court will enter a docket notation that discretionary review is
Notes and Comments granted.
Comment to 2011 change. This Rule is added so that any 69.2. Setting Case for Submission
reply will be filed in the Court of Criminal Appeals since the
petition is also filed in the Court of Criminal Appeals. If discretionary review is granted, either on the petition of
a party or by the Court on its own initiative, the case will be set
for submission.
68.10. Amendment
693. Improvident Grant of Review
Upon motion the petition or a reply may be amended or
supplemented at any time justice requires. If, after granting discretionary review, five judges are of
the opinion that discretionary review should not have been
Notes and Comments granted, the case will be dismissed.
Comment to 2011 change: This Rule is changed to reflect 69.4. Clerk's Duties
the filing of the petition and any reply in the Court of Criminal
Appeals. Thus, the rule is also changed to require a motion and (a) On Refusal or Dismissal. When the Court refuses or
to delete a time frame because the petition will be filed in the dismisses a petition, die clerk will send to the parties
Court of Criminal Appeals. and the State Prosecuting Attorney a notice
informing them that the petition was refused or
68.11. Service on State Prosecuting Attorney dismissed. The clerk will retain die petition and all
other items filed in the case for at least 15 days from
In addition to the service required by Rule 9.5, the date of the refusal or dismissal. At the end of that
service of the petition, the reply, and any amendment or time, if no motion for rehearing has been timely
supplementation of a petition or reply must be made on the filed, or upon the overruling or dismissal of such a
State Prosecuting Attorney. motion, the clerk will send to the court of appeals
clerk a certified copy of the order refusing or
Notes and Comments dismissing the petition (as well as any order
overruling a motion for rehearing). The clerk of the
Comment to 1997 change: This is former Rule 202. Court of Criminal Appeals will return the appellate
Subdivisions (k) and (1) of the former rule have been relocated to record to the court of appeals clerk but will retain the
Rule 69. The new rule limits the length of a petition and reply. petition, and other documents filed in the Court of
The time for amendment of a petition or reply is increased to Criminal Appeals.
conform with the amendment in Rule 50. The rule is otherwise
amended without substantive change. (b) On Granting Review. If the Court grants
discretionary review, the clerk will send to the
Comment to 2002 change: The original catchline of parties and the State Prosecuting Attorney a notice
subdivision 68.4(g) was "Reasons for Review," which caused informing them that discretionary review was
confusion because of its similarity to the catchline in subdivision granted.
663 ("Reasons for Granting Review"). It is changed to
"Argument" Notes and Comments
74
TEXAS RULES OF APPELLATE PROCEDURE P«ge7S
Comment to 1997 change: This is former subdivisions (k) 713. Briefs
and 0) of Rule 201 Internal procedures of the Court are
deleted. Provisions are added in 69.4(a) and (b) for the clerk to Briefs in a direct appeal should be prepared and filed in
send notice of the granting, refusal, or dismissal of a petition for accordance with Rule 38, except mat the brief need not contain
discretionary review. Other nonsubstantive changes are made. an appendix (Rule 38.1(k)). AU briefs must be filed in the Court
of Criminal Appeals. The brief must includeashortstatementof
why oral argument would be helpful, or a statement that oral
Rule 70. Brief on the Merits argument is waived.
70.1. Initial Brief 71.4. Additional Briefs
If review is granted, the petitioner — or, if there was no Upon motion by a parry the Court may permit die filing
petition, the party who lost in the court of appeals—must file a of additional briefs other than those provided for in Rule 38.
brief within 30 days after review is granted.
Notes and Comments
70.2. Respondent's Brief
Comment to 1997 change: This is former Rule 210. The
The opposing party must file a brief within 30 days after rule is extended to all direct appeals. A page limit is added for
the petitioners brief is filed. death penalty cases. Other nonsubstantive changes are made.
703. Brief Contents and Form Comment to 2002 change: A requirement that briefs
include a statement regarding oral argument is added.
Briefs must comply with the requirements of Rules 9 and
38, except that they need not contain the appendix (Rule
38. l(k)). Copies must be served as required by Rule 68.11. Rule 72. Extraordinary Matters
704. Other Briefs 72.1. Leave to File
The Court of Criminal Appeals may direct that a party file A motion for leave to file must accompany an original
a brief, or an additional brief, in a particular case. Additionally, petition for writ of habeas corpus, mandamus, procedendo,
upon motion by a party the Court may permit the filing of prohibition, certiorari, or other extraordinary writ, or any other
additional briefs. motion not otherwise provided for in these rules.
Notes and Comments 723. Disposition
Comment to 1997 change: This is former Rule 203. The If five judges tentatively believe that the case should be
rule is amended without substantive change. filed and set for submission, the motion for leave will be granted
and the case will then be handled and disposed of in accordance
with Rule 52.7. If the motion for leave is denied, no motions for
Rule 71. Direct Appeals rehearing or reconsideration will be entertained. But the Court
may, on its own initiative, reconsider a denial of a motion for
71.1. Direct Appeal leave.
Notes and Comments
Cases in which the death penalty has been assessed under
Code of Criminal Procedure article 37.071, and cases in which
Comment to 1997 change: This is former Rule 211. The
bail has been denied in non-capital cases under Article I, Section
rule is amended to include all the Court's jurisdiction of
1 la of the Constitution, are appealed directly to the Court of
Criminal Appeals. extraordinary matters. Internal procedures of the Court are
deleted. Other nonsubstantive changes are made.
71.2. Record
The appellate record should be prepared and filed in Rule 73. Postconviction Applications for
accordance with Rules 31, 32,34, 35 and 37, except that the Writs of Habeas Corpus
record must be filed in the Court of Criminal Appeals. After
73.1. Form for Application Filed Under Article 11.07 of the
disposition of the appeal, the Court may discard copies of juror
information cards or other portions of the clerk's record that are Code of Criminal Procedure
not relevant to an issue on appeal.
75
No.
In the
COURT OF CRIMINAL APPEALS
On Appeal from the 22nd Judicial District Court of
Hays County, Texas
Cause Number 12-0006; and the Opinion of the Third Court of Appeals
in Cause Number 03-13-00131-CR, Delivered May 13,2015
EDWARD GUZMAN
v.
THE STATE OF TEXAS
MOTION FOR EXTENSION OF TIME TO FILE
PRO SE PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
COMES NOW, Kristen Jernigan, the undersigned attorney of record for
Edward Guzman, the Appellant, herein, and files this Motion for Extension of
Time to File Pro Se Petition for Discretionary Review. As set out below, the
undersigned respectfully requests a sixty-day extension so that Appellant can file
his Pro Se Petition for Discretionary Review. In support of said motion, the
undersigned would show the Court the following:
1. Appellant's Petition for Discretionary Review is currently due in this
case on June 12,2015.
2. Appellant seeks an extension of sixty days in which to file his Petition
tor Discretionary Review, making his Petition due on or before August 11, 2015.
3. The undersigned counsel will not be representing Appellant after the
filing of this motion. Appellant will now have to obtain and review the record in
order to prepare and file a Pro Se Petition for Discretionary Review. The
undersigned believes that there is insufficient time between now and June 12,
2015, to accomplish those goals. Consequently, the undersigned respectfully
requests that the Court grant Appellant the additional time.
4. The undersigned has not filed any previous motions for extension of
time in this case.
5. For the reasons set forth above, the undersigned respectfully requests
that Appellant be granted an extension of sixty days so that his brief in this case
will now be due on August 11,2015.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the undersigned
respectfully requests that this Court grant this Motion for Extension of Time to File
Pro Se Petition for Discretionary Review.
Respectfully submitted,
Is/ Kristen Jernigan
KRISTEN JERNIGAN
State Bar Number 90001898
207 S. Austin Ave.
Georgetown, Texas 78626
(512)904-0123
(512) 931-3650 (fax)
[email protected]
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing Appellant's Motion for Extension of Time has been mailed to the Hays
County District Attorney's 712 Stagecoach, San Marcos, Texas 78666 on May 15,
2015.
/s/ Kristen Jernigan
Kristen Jernigan
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00131-CR
Edward Guzman, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-12-0006, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Edward Guzman of four felony offenses—aggravated
kidnapping, aggravated assault with a deadly weapon, aggravated assault causing serious bodily
injury, and unlawful restraint—all arising out of an encounter between appellant and his former
girlfriend.1 See Tex. Penal Code §§ 20.04, 22.02, 20.02. The jury assessed his punishment at
confinement in the Texas Department of Criminal Justice for 60 years for the kidnapping, 20 years
and 60 years for the assaults, and 10 years for the unlawful restraint. See id. §§ 12.32-34. On
appeal, appellant complains about ineffective assistance of counsel, the admission of extraneous
conduct evidence, error in the jury charge, and improper jury argument. Finding no reversible error,
we affirm the trial court's judgments of conviction.
1 The jury acquitted appellant of an additional attempted murder charge. See Tex. Penal
Code §§ 15.01,19.02.
BACKGROUND
Appellant and Danielle Gay dated for eight years and have a daughter together. One
evening in October of 2011, about nine months after they had broken up, appellant went to Gay's
home to pick up their six-year-old daughter for his visitation. He spoke briefly with Gay at the front
door, then took their daughter out to his car. Pursuant to a prearranged plan, he gave his daughter
to his current girlfriend, Ofelia Cisneros, who drove her to their home. Appellant then returned to
Gay's door and asked for their daughter's cell phone. When Gay went inside her home to retrieve
it, appellant entered her home and followed her upstairs to the bedroom. Standing in the doorway
of the room, he told Gay to put her hands behind her back. She laughed and told him to get out of
her house. He then told her that if she screamed, he would hurt her. Gay turned to run away, and
appellant tackled her to the floor. He taped and tied her hands behind her back, picked her up off
the floor, and put her on the bed. He then paced around the bed and told Gay that she had ruined his
life and taken things from him that he wanted. After several minutes, appellant bent her legs and tied
her feet to her hands bound behind her back. Gay complained that he was hurting her, cutting off
the circulation in her hands. Appellant responded that he did not care and continued tightening the
bindings. He then put something in Gay's mouth and gagged her by tying a scarf (or scarf-like
fabric) around her head covering her face.
Appellant then left the bedroom, leaving Gay bound face down on the bed. Gay heard
him downstairs rummaging through things in her house. Eventually, appellant returned to the
bedroom. He removed the scarf from Gay's head, untied her feet from her hands, sat her up on the
bed, and then retied her feet together. He sat down next to her and continued telling her that she had
ruined his life. Gay apologized and told appellant that he could have back whatever he wanted. He
said it was too late for that. He untied her hands from behind her back and retied them in front of
her. He then tried to give her something to drink but she refused, not knowing what it was. After
several unsuccessful attempts to force her to drink the liquid, appellant set the cup aside and told her
that they had to go to his house to get his car because all of the things he wanted to take would not
fit in her car. He loosened the bindings on her feet to give her leeway to walk and escorted her
downstairs. At the bottom of the stairs, appellant pulled up his shirt to show her a gun he had stuffed
in his pants "in case [she tried] anything." Gay recognized the gun as her gun that she kept in the
top cabinet of her kitchen. Appellant pulled her through the house and then took her to her car,
holding her arm. He put her in the passenger seat and then went around to the driver's seat. He got
in the car, looped the rope that bound Gay's hands around the base of his seatbelt, and buckled
his seatbelt.
Appellant drove them to his house. At his house, he woke up Ofelia and had her
bring his daughter to his car, telling her that Gay was going to put gas in both of their cars. Gay
remained bound in the passenger seat of her car and saw Ofelia carry her sleeping daughter to
appellant's car. She also saw appellant get a gas can off the porch and put it in her car. With Ofelia
driving appellant's car and appellant driving Gay's car, they drove to the gas station where appellant
removed Gay's debit card from her purse, asked her for the PIN number, and used her debit card to
put gas in both cars and the gas can. After filling up, appellant started driving back to her house.
At one point, he pulled over and went to talk to Ofelia, who had pulled over in his car. He instructed
Ofelia to go to a particular location and wait for him.
Appellant then drove toward Gay's house, but stopped at a church about two blocks
from her house. After a few minutes, he left the church and drove to Gay's house. He took her
inside, telling her that they were waiting for Ofelia to come pick him up. After a while, appellant
took Gay back out to the car, explaining that they could drive around to look for Ofelia. After
driving for a few minutes, appellant pulled over on the side of the road. He got out of the car, looked
around, then got back into the car and drove further down the road, pulled over again, and got out
to look around again. Appellant repeated this pulling over process four times. He then drove back
to Gay's house and then around town several times, all the while pretending to be looking for Ofelia.
Eventually, appellant parked at the end of Gay's street. He turned off the car and told Gay that he
wanted her to get in the driver's seat because it was hurting his back. He removed the bindings from
her hands, pulled her over the console to the driver's seat, and told her to put her hands on the
steering wheel. Appellant then got out and came around to sit in the passenger seat. After a few
minutes, Gay told appellant that she had to use the bathroom. He agreed to allow her to go to her
house to use the bathroom. Tightly holding her arm, they walked to her house. He stood in the open
doorway of the bathroom while Gay went to the bathroom. He then took her back to her car, putting
her back in the driver's seat.
As they sat in the car, purportedly looking for Ofelia's car, appellant became agitated.
He sat on the edge of his seat shaking his leg and he repeatedly checked his phone. Gay continued
looking for Ofelia's car. At one point, as she turned from looking down the road, appellant started
hitting her in the head. As he repeatedly struck her in the face with what felt like fists, Gay managed
to open the driver's door. Appellant grabbed her, and they struggled as she tried to get out of the car.
At that point, Gay noticed her gun in appellant's hands and she attempted to grab it. As they
struggled over the gun, they both fell out of the car. After they landed on the ground, appellant
started kicking Gay in addition to hitting her with either his fists or the gun. Gay testified that she
could feel blows all over her body. She began screaming, and he kicked her in the face with his
boot; Gay then felt herself begin to lose consciousness. At that point, as they once again struggled
over the gun, she heard the gun going off. Gay fell backward onto the pavement and tried to pull
herself away from appellant. Appellant grabbed her, dragging her back toward him. He sat on her
back straddling her and started pulling her hair, yelling at her to stop screaming. Gay managed to
stand up and fall back onto appellant causing him to release her. She again tried to crawl away.
Appellant grabbed her by the throat and dragged her back toward the car. At one point, appellant
pushed Gay back onto the hood of the car and choked her with his hands around her neck. Gay then
recalls her body suddenly hitting the ground, and appellant was gone. She pushed herself up and ran
screaming toward her complex. She ran into her neighbor's carport and banged on his door. She
made contact with her neighbors, who called the paramedics.
Gay was transported by a life flight helicopter to a hospital in Austin where she was
treated for severe facial and head injuries, including soft tissue trauma to her face of such complexity
it required a plastic surgery consultation (a laceration from her forehead down across her nose went
through the muscle and exposed the bone), a nasal bone fracture, a chin laceration, and two large
scalp lacerations that required multiple staple sutures.
DISCUSSION
In five points of error, appellant asserts that his trial counsel rendered ineffective
assistance, the trial court erred in admitting extraneous conduct evidence during the guilt-innocence
phase, the trial court submitted an erroneous self-defense instruction in the jury charge, and the
prosecutor engaged in improper jury argument in the punishment phase.
Ineffective Assistance of Counsel
In his first and last points of error, appellant contends that his trial counsel rendered
ineffective assistance at trial because counsel failed to object to certain testimony from the
investigating detective and failed to prove up appellant's eligibility for community supervision.
To establish ineffective assistance of counsel, an appellant must demonstrate by a
preponderance of the evidence both deficient performance by counsel and prejudice suffered by the
defendant. Strickland v. Washington, 466 U.S. 668,687 (1984); Nava v. State, 415 S.W.3d289,307
(Tex. Crim. App. 2013). The appellant must first demonstrate that counsel's performance fell below
an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S.
at 687-88; Nava, 415 S.W.3d at 307. The appellant must then show the existence of a reasonable
probability—one sufficient to undermine confidence in the outcome—that the result of the
proceeding would have been different absent counsel's deficient performance. Strickland, 466 U.S.
at 694; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700;
see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
Appellate review of counsel's representation is highly deferential; we must "indulge
in a strong presumption that counsel's conduct was not deficient." Nava, 415 S.W.3d at 307-08;
see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective assistance must
be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious
nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012);
Goodspeedv. State, 187 S.W.3d 390,392 (Tex. Crim. App. 2005). Rarely will the trial record by
itself be sufficient to demonstrate an ineffective-assistance claim. Nava, 415 S.W.3d at 308. If trial
counsel has not been afforded the opportunity to explain the reasons for his conduct, we will not find
him to be deficient unless the challenged conduct was "so outrageous that no competent attorney
would have engaged in it." Id. (quoting Menefield, 363 S.W.3d at 593); Goodspeed, 187 S.W.3d
at 392.
In this case, appellant filed a motion for new trial. However, he did not raise a claim
of ineffective assistance of counsel in the motion.2 Thus, the record is silent as to why trial counsel
failed to act in the manner that appellant now complains about on appeal. Consequently, the record
before this Court is not sufficiently developed to allow us to evaluate those failures to act because
"[njeither [his] counsel nor the State have been given an opportunity to respond to" the claims of
ineffectiveness. See Menefield, 363 S.W.3d at 593. The record is silent as to whether there was a
strategic reason for counsel's conduct or what the particular strategy was. Appellant's assertions that
2 In appellant's affidavit attached to the motion and a subsequently filed affidavit from
appellant's father, appellant appears to complain about trial counsel's failure to call a particular
witness on his behalf. However, the failure to call this witness is not a ground for ineffectiveness
that appellant raises on appeal.
"there can be absolutely no trial strategy" for not objecting to the detective's testimony and that
"there can be no trial strategy in depriving [appellant] of the possibility of probation" are mere
speculation. Such speculation does not constitute a demonstration, founded in the record, that no
reasonable trial strategy existed. See Villa v. State, 417 S.W.3d 455,463 (Tex. Crim. App. 2013)
("[C]ounsel's alleged deficiency must be affirmatively demonstrated in the trial record.");
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) ("[Counsel's deficiency
must be affirmatively demonstrated in the trial record; the court must not engage in
retrospective speculation.").
Appellant's trial attorney was not afforded an opportunity to explain his reasons for
the complained-of conduct. Absent record evidence regarding counsel's strategy or reasoning, we
will presume he exercised reasonable professional judgment. See Hill v. State, 303 S.W.3d 863,879
(Tex. App.—Fort Worth 2009, pet. ref d); Poole v. State, 974 S. W.2d 892,902 (Tex. App.—Austin
1998, pet. ref d); see also Lopez, 343 S.W.3d at 143. Appellant has failed to rebut the strong
presumption of reasonable assistance because without explanation for trial counsel's decisions, the
complained-of conduct does not compel a conclusion that his performance was deficient. We cannot
say that "no reasonable trial strategy could justify" his decision to engage in the complained-of
conduct.3 See Lopez, 343 S.W.3d at 143. Nor can we conclude that his conduct was "so outrageous
3 For example, appellant criticizes his attorney for failing to object to testimony from the
detective regarding her belief that Gay's statements to the police were truthful, that appellant lied
in his statements to police, and that Ofelia's statements to police were rehearsed. Ordinarily,
witnesses are not permitted to testify as to their opinion about the truthfulness of other witnesses,
Lopezv. State, 343 S.W.3d 137,140 (Tex. Crim. App. 2011), the credibility of a complainant or the
truthfulness of a complainant's allegations, Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App.
1997); Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993), or the guilt or innocence of a
that no competent attorney would have engaged in it." See Menefield, 363 S.W.3d at 592; see also
Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) ("The mere fact that another
attorney might have pursued a different tactic at trial does not suffice to prove a claim of ineffective
assistance of counsel."). Accordingly, we conclude that appellanthas failed to demonstrate deficient
performance on the part of his trial counsel. SeeFrangias v. State, 450 S.W.3d 125,136 (Tex. Crim.
App. 2013) ("[U]nless there is a record sufficient to demonstrate that counsel's conduct was not the
product of an informed strategic or tactical decision, a reviewing court should presume that trial
counsel's performance was constitutionally adequate 'unless the challenged conduct
was so
409 S.WJd 259,292
^^^^O^^A513 S ' W ,(Tex.
2d App.-Austin
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^ ^no pet.).
C r i mAn
- argument
APP' 1can
9 7 4 be
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counsel allowed the complained-of testimony here in order to demonstrate the bias of the State's
witnesses. Subsequent questions propounded to the law enforcement official during cross
examination arguably attempted to highlight the detective's immediate assumption mat appell^
guilty after hearing only Gay's version of events, which led to a failure to conduct a thorough or
complete investigation.
Further, as to counsel's failure to prove up appellant's eligibility for community supervision
appellant correctly notes that the record reflects that trial counsel was initially mistaken in his belief
that filing the sworn affidavit of appellant was sufficient to prove up his eligibility for community
supervision. However, the record also reflects that after the court advised counsel that the sworn
affidavit was insufficient and that witness testimony was required to put the issue before the jury
trial counsel conferred with appellant. Subsequently, he opted not to reopen to put on any evidence'
Appellant testified about this issue (outside the jury's presence), indicating that even with the
requirement that evidence of his eligibility be presented—and the fact that he was "the primary
witness" as to that matter— appellant decided it was not in his best interest to testify. Appellant and
his counsel could very well have determined that the benefit of appellant testifying to prove up his
community supervision eligibility was outweighed by the exposure to cross examination, balancing
the remote possibility that the jury would recommend community supervision against possible
damaging or incriminating testimony that could be elicited by the State to appellant's detriment. In
his brief, appellant attempts to dismiss trial counsel's strategic decision not to have appellant testify
by arguing that counsel was unprepared to present evidence regarding appellant's community
supervision eligibility because he did not have a witness other than appellant ready to testify as to
appellant's eligibility. This contention speculates that some witness other than appellant was
available to provide such testimony, something not demonstrated by the record.
outrageous that no competent attorney would have engaged in it.'") (quoting Goodspeed,lS7S.W3d
at 392).
Because appellant failed to meet his burden on the first prong of Strickland, we need
not consider the requirements of the second prong—prejudice. Lopez, 343 S.W.3d at 144; see
Williams v. State, 301 S.W.3d 675,687 (Tex. Crim. App. 2009) ("An appellant's failure to satisfy
one prong of the Strickland test negates a court's need to consider the other prong."). Nevertheless,
we also find that appellant failed to demonstrate that he suffered prejudice.
Even if an appellant shows that particular errors of counsel were unreasonable, he
must further show that they actually had an adverse effect on the defense. Strickland, 466 U.S. at
693-95; Cochran v. State, 78 S.W.3d 20,24 (Tex. App.—Tyler 2002, no pet.). It is not sufficient
that a defendant show, with the benefit of hindsight, that his counsel's actions or omissions during
trial were of questionable competence. Lopez, 343 S.W.3d at 142-43. Further, merely showing that
the errors had some conceivable effect on the proceedings will not suffice. Strickland, 466 U.S. at
693; Ex parte Martinez, 330 S.W.3d 891,901 (Tex. Crim. App. 2011). Instead, he must prove that
counsel's errors, judged by the totality of the representation, not by isolated instances of error or by
a portion of the trial, denied him a fair trial. Strickland, 466 U.S. at 695.
In his argument regarding prejudice, appellant argues that he was "undoubtedly
harmed" by the detective's testimony (regarding her belief that Gay's statements to the police were
truthful, that appellant lied in his statements to police, and that Ofelia's statements to police were
rehearsed) because this was a situation where there were two sides to the story and the officer
endorsed one side. He asserts that "a jury could not help but be swayed by testimony of this nature."
10
However, this assertion is a speculative claim without support in the record. Moreover, we observe
that the detective's opinions were not particularly powerful. Given the fact that she secured an arrest
warrant for appellant and forwarded this case to the district attorney's office for prosecution after her
investigation, one could logically assume that the detective found Gay credible and her allegations
truthful, and that she believed appellant was not truthful in his version of the events.
Appellant also maintains that he was harmed by counsel's failure to prove his
eligibility for community supervision because he "waived any chance appellant had at receiving
[community supervision] for punishment." However, in order to be eligible for community
supervision, the jury would have had to return sentences often years or less. See Tex. Code Crim.
Proc. art. 42.12, § 4(a), (d)(1). The jury only did so in the unlawful restraint case, and in that case
the ten-year sentence was the maximum. The other sentences returned by the jury—60 years for the
first degree aggravated kidnapping, 60 years for the first degree aggravated assault causing serious
bodily injury, and 20 years for the second degree aggravated assault with a deadly weapon (also the
maximum for that offense)—indicate that the jury was seeking to impose harsh sentences for
appellant's conduct.4 Nothing in the record suggests that the jury was inclined to return the more
lenient punishment of community supervision even had such an option been available.5 Appellant's
4 We also note that the jury assessed the maximum fine of $10,000 for each of the
four offenses.
5 We observe that in his punishment closing argument, appellant's trial counsel did not even
ask for the minimum prison sentences in these cases. Rather—perhaps recognizing the severity of
the offenses for which the jury found appellant guilty and accurately reading the jury's perception
of the serious nature of the offenses—he asked for a ten-year sentence for all four cases.
11
suggestion that the purported waiver of community supervision subjected him to harsher sentences
than he was originally exposed to is a speculative claim not supported by the record.
An accused is not entitled to entirely errorless representation, and we look to the
totality of the representation in gauging the adequacy of counsel's performance. Frangias,
450 S.W.3d at 136. The record in this case reveals that trial counsel ably and adequately presented
the defense strategy, which involved attacking the credibility of Gay's version of events,
emphasizing the biased and incomplete nature of the police investigation, and raising self-defense.
During guilt-innocence, counsel focused on the bias of the State's witnesses, the inconsistencies in
the testimony, the inadequate and one-sided police investigation, and the lack of corroborating
evidence. Also, through the State's evidence, he asserted a claim of self-defense. During
punishment, counsel focused on the mitigating factor of appellant's age and asked for a minimal
sentence often years in all four cases. The fact that these strategies ultimately proved unsuccessful
does not render counsel's assistance ineffective.
On the record before us, appellant has failed to demonstrate deficient performance
on the part of his trial counsel or that he suffered prejudice because of the alleged errors of counsel.
Thus, he has not shown himself entitled to reversal based on ineffective assistance of counsel. We
overrule appellant's first and fifth points of error.
Extraneous Conduct Evidence
In its case-in-chief in the guilt-innocence phase of trial, the State offered evidence
during Gay's testimony of appellant's extraneous abusive conduct toward her during their
relationship. She detailed three instances of appellant's abusive conduct: a physical altercation on
12
New Year's Eve of 2010, an incident on appellant's birthday on January 3, 2011, and an occasion
in February or March of 2011 where appellant pointed a gun at her.6 In his second point of error,
appellant asserts that the trial court erred in permitting this testimony because it was inadmissible
character-conformity evidence.
We review a trial court's decision to admit or exclude evidence for an abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Sandoval v. State,
409 S.W.3d 259,297 (Tex. App.—Austin 2013, no pet.). A trial court abuses its discretion only if
its determination "lies outside the zone of reasonable disagreement." Martinez, 327 S.W.3d at 736;
Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). A trial court's decision to admit
evidence of an extraneous offense is generally within this zone if the evidence shows that (1) an
6 More specifically, Gay testified that during an altercation in their home on New Year's Eve
appellant threatened her (by making a slashing motion across his neck), pushed her, punched her in
the face at least three times, grabbed her by the back of her neck and ponytail, and threw her down
on the floor. She stated that as a result of this incident, she had two black eyes and a bloody and
swollen nose.
Regarding the birthday incident, Gay testified that when appellant returned from celebrating
his birthday with friends, he came home angry and began screaming at her, demanding that she leave.
When she went to the bedroom to collect her things, he kicked open the bedroom door and hit her
in the middle of her body, knocking her backwards. Then, when she tried to get her daughter to
leave, appellant took the child from her and took the child into the bedroom. He then forcibly
removed Gay from their home by grabbing her at the back of her neck and around the waist and
dragging her out of the house. Gay was without any of her things and ended up moving in with
appellant's aunt next door.
According to Gay's testimony, a month or two later, appellant indicated in amessage through
his aunt that Gay could return to their home to collect her belongings. When she was inside the
house, appellant became agitated when she began asking about the location of certain personal items
(such as her driver's license and social security card) and told her to get out. When she reminded
appellant that he had told her she could come get her things, he stomped off to the bedroom and
returned with a gun. He pointed the gun directly at her and repeated his demand that she leave
their home.
13
extraneous transaction is relevant to a material, non-propensity issue, and (2) the probative value of
that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading of the jury. DeLa Paz v. State, 279 S.W.3d 336,344 (Tex. Crim. App. 2009).
If the trial court's evidentiary ruling is correct on any theory of law applicable to that ruling, we will
uphold that decision. Id; Sandoval, 409 S.W.3d at 297.
Texas Rule of Evidence 404(b) prohibits the admission of extraneous conduct (other
crimes, wrongs, or acts) to prove a person's character or to show that the person acted in conformity
with that character. See Tex. R. Evid. 404(b). However, extraneous conduct evidence may be
admissible when it has relevance apart from character conformity. Devoe v. State, 354 S.W.3d 457,
469 (Tex. Crim. App. 2011). Extraneous conduct may be admissible for some other purpose, such
as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident. See Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim.
App. 1991) (op. on reh'g). This list is illustrative—the exceptions are neither mutually exclusive
nor collectively exhaustive. See De La Paz, 279 S. W.3d at 343. Extraneous conduct evidence may
also be admissible to rebut defensive theories raised by the defense. See Williams, 301 S.W.3d at
687 (rebuttal of defensive theory is "one of the permissible purposes for which [relevant] evidence
may be admitted under Rule 404(b)"). Further, "'Rule 404(b) is a rule of inclusion rather than
exclusion.'" De La Paz, 279 S.W.3d at 343 (quoting United States v. Bowie, 232 F.3d 923, 929
(D.C. Cir. 2000)). "The rule excludes only that evidence that is offered (or will be used) solely for
the purpose of proving bad character and hence conduct in conformity with that bad character." Id.
(emphasis added) (citing Rankin v. State, 914 S.W.2d 707,709 (Tex. Crim. App. 1996)).
14
Throughout the course of trial, appellant advanced several defensive theories—he
denied causing Gay's injuries, he challenged Gay's version of the events, he attacked the police
investigation, and he asserted self-defense—all premised on his claim that he acted that night to
protect himself from Gay when she fired shots at him. He first made this claim during his phone call
to the detective the morning after the incident when Gay was in the hospital (a recording of which
was admitted into evidence and published to the jury). He then made similar comments during his
interview with the detective later that day (a recording of which was also admitted into evidence and
published to the jury). Appellant's counsel alluded to it during jury selection when questioning the
venire panel about contradictory testimony and the use of self-defense in any setting, even within a
close personal relationship. He developed it through cross-examination of the State's witnesses,
particularly the police detective, when he highlighted the fact that she took no actions to investigate
appellant's claims regarding Gay's alleged threats toward him and Ofelia and when he sought the
detective's confirmation that appellant's comments to her reflected that he acted in self-defense.
The State offered the evidence of appellant's extraneous abusive conduct toward Gay,
in part, to rebut appellant's theory that she was the first aggressor and that he acted in self-defense
as well as to rebut appellant's explanation that Gay's injuries were self-inflicted during their struggle
over the gun. Based on the evidence before it, the trial court could have concluded that the evidence
of appellant's extraneous prior abusive conduct toward Gay rebutted the defensive theories
presented to the jury. Consequently, we cannot say that the trial court's admission of the
complained-of testimony was an abuse of discretion. We overrule appellant's second point of error.
15
Jury Charge Error
In this case, on appellant's request, the trial court included an instruction on
self-defense in the court's jury charge. In the abstract portion of the court's charge, the trial court
instructed the jury as follows:
Upon the law of self defense [sic] you are instructed that a person is justified
in using force against another when and to the degree he reasonably believes the
force is immediately necessary to protect himself against the other's use or attempted
use of unlawful force.
A person is justified in using force against another: (1) if he would be
justified in using force against the other; and (2) if a reasonable person in the
defendant's situation would not have retreated; and (3) when and to the degree he
reasonably believes the force is immediately necessary to protect himself against the
other's use or attempted use of unlawful force.
"Reasonable belief means a belief that would be held by an ordinary and
prudent person in the same circumstances as the defendant.
During the charge conference, appellant requested an additional instruction to explain self-defense.7
The State objected, maintaining that the instruction was already reflected in the charge. Appellant
next complained that the self-defense jury instruction "talk[ed] about the duty of a defendant to
retreat. That's nowhere in the statute." Both the prosecutor and the trial court maintained that the
duty to retreat "[is] in the law." The court overruled appellant's request for his submission and
7 Specifically, appellant asked that the following paragraph be added:
When a person is attacked, or an attempt is made to attack such person, with
unlawful force, and there is created in the mind of such person a reasonable
expectation or fear of some bodily injury, then the law excuses or justifies such
person in resorting to force to the degree that he reasonably believes is immediately
necessary, viewed from his standpoint at the time, to protect himself from attack or
attempted attack.
16
retained the language relating to the duty to retreat in the charge. In his third point of error, appellant
argues that the trial court erroneously instructed the jury that appellant had a duty to retreat in order
for the law of self-defense to apply. He further maintains that the incorrect instruction on
self-defense caused him harm.
We review alleged jury charge error in two steps: first, we determine whether error
exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.
Kirsch v. State, 357 S.W.3d 645,649 (Tex. Crim. App. 2012); Ngo v. State, 175 S.W.3d 738,743-44
(Tex. Crim. App. 2005). The trial court must charge the jury on the "law applicable to the case,"
which requires that the jury be instructed on each element of the offense charged. See Tex. Code
Crim. Proc. art. 36.14; see also Dinkins v. State, 894 S.W.2d 330,339 (Tex. Crim. App. 1995). The
trial court is also required to instruct the jury on statutory defenses, affirmative defenses, and
justifications when they are raised by the evidence and requested by the defendant. Walters v. State,
247 S.W.3d 204, 208-09 (Tex. Crim. App. 2007).
Under the Texas self-defense statute, a person may use deadly force if he reasonably
believes such force is immediately necessary to protect himself from another person's use or
attempted use of deadly force. See Tex. Penal Code § 9.32. Before 2007, the deadly-force
self-defense statute contained a provision imposing a general duty to retreat, providing that the use
of deadly force was justified only "if a reasonable person in the actor's situation would not have
retreated." See Act of May 16, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141,
2141-42 (amended 2007) (current version at Tex. Penal Code § 9.32); Morales v. State,
357 S.W.3d 1,6 (Tex. Crim. App. 2011). However, effective September 1,2007, the Legislature
17
amended the statute to delete the language regarding a general duty to retreat. Morales, 357 S.W.3d
at 4-5; McBride v. State, 359 S.W.3d 683,694 (Tex. App.—Houston [14th Dist.] 2011, pet. ref d).
Because this general duty to retreat was removed from the self-defense statute in 2007, the
self-defense instruction given here—indicating that appellant had a duty to retreat—was erroneous.
See Morales, 357 S.W.3d at 6.
If the trial judge charges on a defensive issue but fails to do so correctly, this is charge
error subject to review under Almanza. Vega v. State, 394 S.W.3d 514,519 (Tex. Crim. App. 2013);
see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) (setting forth
analysis for determining whether jury charge error requires reversal). Under Almanza, if the jury
charge error has been properly preserved by an objection or request for instruction, as in this case,
reversal is required if the appellant has suffered "some harm" from the error. Vega, 394 S.W.3d at
519; Almanza, 686 S. W.2d at 171. We assess whether the appellant has suffered actual harm "in light
of the entire jury charge, the state of the evidence, including the contested issues and weight of
probative evidence, the argument of counsel and any other relevant information revealed by the
record of the trial as a whole." Vega, 394 S.W.3d at 521 (quoting Almanza, 686 S.W.2d at 171).
We engage in this assessment to illuminate the actual, not just theoretical, harm to the accused.
Almanza, 686 S.W.2d at 174; see Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013)
("This means that the trial record must demonstrate that there is some actual harm and not just a
theoretical complaint.").
Beginning with the jury charge itself, we observe that in addition to erroneously
instructing the jury in the abstract portion of the charge that a person was justified in using force
18
against another only if a reasonable person in the defendant's situation would not have retreated, the
trial court included the duty to retreat in each of the self-defense application paragraphs.8 Thus, the
jury charge, in four different places—the abstract portion of the charge and three self-defense
application paragraphs—impermissibly instructed the jury to determine whether there was a general
duty to retreat. See Morales, 357 S.W.3d at 5-6 (jury instruction on general duty to retreat
constituted comment on weight of evidence). Nothing in the remainder of the charge instructed the
jury that it should not determine, as a general matter, whether a duty to retreat existed. See id. at 6.
Accordingly, the remainder of the jury charge did not alleviate the harm caused by the incorrect
self-defense instruction. Thus, consideration of the entirety of the jury charge weighs in favor of a
finding of harm.
Next, we must consider the state of the evidence and determine whether the jury
charge error related to a contested issue. Appellant did not testify at trial. The defensive theories
were presented through the State's evidence—primarily the recording of appellant's interview with
8 After the application paragraph for the attempted murder, the court provided the following
application paragraph for self-defense:
Self defense [sic]
Now, if you find and believe from the evidence that on the occasion in
question the Defendant reasonably believed that his conduct of grabbing and twisting
Danielle Gay's head at the neck was immediately necessary to protect the Defendant
from Danielle Gay's use or attempted use of unlawful force; and that at such time a
reasonable person in the Defendant's situation would not have retreated, you will
acquit the defendant and say by your verdict not guilty as to Count II.
Similar application paragraphs applying self-defense were given following the application
paragraphs for aggravated assault with a deadly weapon and aggravated assault causing serious
bodily injury.
19
the detective—and the cross examination of the State's witnesses. During his interview with the
detective, appellant gave his version of the events. He indicated that when he and Ofelia picked up
his daughter that evening for his visitation, Gay asked him to stay but he declined and went home
with Ofelia and his daughter. According to appellant, Gay then showed up at his house in Kyle at
about 4:00 in the morning. She knocked on his window and said that if he wanted to get his stuff,
he needed to come and get it now. When he told Gay that he did not have any gas in his car, she
offered to buy the gas to fill his car. Appellant said that they then went to the gas station and filled
up the cars with gas—he and Gay in her car, Ofelia and his daughter in his car.9 After filling up, they
went to Gay's house. When he realized it was going to take time to sort out what things he could
take, he sent Ofelia home, telling her that Gay would just drop him off. Appellant told the detective
that eventually he got tired of waiting for Gay to decide what he could take, so he told Gay to just
take him home. He said that when they were in her car, she pulled her gun out of her pocket and
threatened to kill him and Ofelia. According to appellant, they struggled over the gun and fell out
of her car during the struggle. He said that he had his arms wrapped around Gay from behind when
she fired the gun multiple times. Appellant told the detective that he got away from Gay and called
Ofelia to come pick him up. He showed the detective an injury he had on his thumb where either
the hammer of the gun pinched him or the flash from the gunshot burned him.
While giving his version of the events, appellant said that he was "fighting for his
life" and was "just trying to get away from [Gay]." However, he adamantly maintained that he did
9 Appellant also explained that he filled up the gas can because Gay was having problems
with her car.
20
not cause her injuries. He repeatedly denied ever hitting or kicking Gay. In fact, even as he
conceded that Gay "might have" been hurt during the struggle over the gun, he still insisted he
"never hit her."10 Further, when the detective showed appellant photographs of Gay's injuries and
asked if he could explain them, he said that they were probably self-inflicted. When the detective
directly asked appellant if he "did this" (caused the injuries depicted in the photographs), he
responded, "No." When the detective admonished appellant that he needed to be honest and
expressed her opinion that more happened than he was telling her, appellant insisted that he "didn't
do anything" to Gay.
There was but the barest scintilla of evidence that during his encounter with Gay,
appellant was "fighting for [his] life" and thus may have unintentionally injured Gay during his
attempts to protect himself from her. However, appellant's primary defense was that he did not
cause Gay's injuries at all, that they were self-inflicted, and that the events had not transpired as Gay
claimed. The secondary defense was that if she was injured during the struggle, it was not his fault
because he was acting in self-defense. The self-defense theory applied only to three of the five
charges, and it was a marginal theory at best. A comparison of the photographs of Gay's extensive
injuries and appellant's minimal injuries demonstrates the unlikelihood that Gay's injuries were
self-inflicted and refutes appellant's repeated claim that he "didn't do anything" to Gay. Under the
circumstances, we cannot conclude that, given the weak evidence of self-defense combined with
appellant's adamant denial that he caused Gay's injuries, the state of the evidence demonstrates that
10 Appellant indicated that he and Gay fell over some mailboxes at some point when they
struggled over the gun, suggesting this might have caused her injuries.
21
the trial court's erroneous instructions on the general duty to retreat caused appellant harm. Thus,
after reviewing the evidence in the record, we conclude that the state of the evidence weighs against
a finding of harm.
Concerning jury argument, both the State and appellant's counsel briefly mentioned
self-defense in closing arguments. However, neither side emphasized the erroneous jury instruction
or appellant's purported duty to retreat but instead only referred generally to the concept of whether
appellant's conduct was justified because he was acting in self-defense. The prosecutor argued that
as the aggressor, appellant did not act in self-defense.11 Appellant's trial counsel reminded the jury
that appellant told the detective in the interview that he "had to fight for his life." Also during his
argument, appellant's counsel referred the jury to the court's self-defense instruction in the charge.12
However, he did not emphasize the erroneous portion regarding the general duty to retreat but
11 At one point, the prosecutor argued:
He's trying to say that when he did that, he was doing it to defend himself. And any
time you see that self-defense in the jury charge, I would — short of just tearing it up,
it's preposterous, because he's trying to say he was justified in doing that, and that
he couldn't — he wasn't in a situation where he could run away, and that he had to
do it because if he didn't, she was about to kill him.
Arguably, this could be construed as a vague allusion to the fact that appellant did not retreat.
However, the prosecutor's argument is somewhat confusing and unclear and does not affirmatively
argue that appellant was required to retreat.
12 Appellant's counsel referred the jury to the self-defense instruction in the abstract portion
of the jury charge, although his disagreement and displeasure with the instruction was apparent:
There is a self-defense charge in the — in the jury's charge on page three, paragraph
four. You can read it for what it's worth. It indicates our theory of the case, that
there was a need for him to react to what was going on, and it was immediately
necessary to protect himself.
22
referred to the fact that it was "immediately necessary" for appellant to react as he did to protect
himself from Gay. Overall, in the context of the entire jury argument, neither side focused on
self-defense and neither side argued that appellant had a duty to retreat. Thus, we conclude that the
arguments of counsel do not weigh in favor of a finding of harm.
Finally, with regard to the final factor, we consider the fact that appellant was not
actually entitled to a jury instruction on self-defense in this case to be relevant information in
evaluating harm. A defendant is entitled to a self-defense instruction if the issue is raised by the
evidence, regardless of whether that evidence is weak or strong, unimpeached or contradicted, and
regardless of what the trial court may think about the credibility of the witnesses or the viability
of the defense. Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008); Ferrel v. State,
55 S.W.3d 586, 591 (Tex. Crim. App. 2001). However, because self-defense is justification for
one's actions, the assertion of the defense necessarily requires an admission that the alleged conduct
occurred. Anderson v. State, 11 S.W.3d 369,372 (Tex. App.—Houston [1st Dist.] 2000, pet. ref d);
see Shaw v. State, 243 S.W.3d 647,659 (Tex. Crim. App. 2007) ("[A] defensive instruction is only
appropriate when the defendant's defensive evidence essentially admits to every element of the
offense including the culpable mental state, but interposes the justification to excuse the otherwise
criminal conduct."). Assertion of self-defense is inconsistent with a denial of the conduct. Ford
v. State, 112 S.W.3d 788,794 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Thus, a defendant
is not entitled to an instruction on self-defense if "he claims that he did not perform the assaultive
acts alleged, or that he did not have the requisite culpable mental state, or both." VanBracJde
23
v. State, 179 S.W.3d 708, 715 (Tex. App.—Austin 2005, no pet.) (citing Ex parte Nailor,
149 S.W.3d 125,134 (Tex. Crim. App. 2004)).
In this case, although appellant admitted that he struggled with Gay for the gun, he
did not admit that he committed the assaultive conduct alleged.13 Appellant repeatedly denied ever
hitting or kicking Gay, adamantly maintained that he did not cause her injuries, asserted that the
injuries were self-inflicted by Gay, and suggested that the injuries were caused by other objects (such
as the mailboxes) during their struggle over the gun. Thus, because appellant did not admit to
committing the alleged conduct, he was not entitled to an instruction on self-defense. See Maxwell
v. State, No. 03-06-00473-CR, 2007 WL 2274883, at *2 (Tex. App.—Austin Aug. 6,2007, no pet.)
(mem. op., not designated for publication) ("A defendant must sufficiently admit to the commission
of the offense for which the defensive instruction is requested."). We conclude that the fact that
appellant was not entitled to a self-defense jury instruction under these circumstances weighs against
a finding of harm.
In sum, except for the jury charge itself, the factors discussed above militate against
a finding of harm. Accordingly, after reviewing the record and considering the relevant factors, we
13 In the attempted murder charge, the alleged conduct was that appellant "engaged in
conduct that amounted to more than mere preparation that tended but failed to effect the commission
of [murder]" by "grabbing and twisting Danielle Gay's head at the neck." In the aggravated assault
with a deadly weapon, the alleged conduct was that appellant "intentionally, knowingly, or recklessly
cause[d] bodily injury to Danielle Gay by kicking her" and using or exhibiting a firearm during the
offense. In the aggravated assault causing serious bodily injury, the alleged conduct was that
appellant "intentionally, knowingly, or recklessly cause[d] serious bodily injury to Danielle Gay by
striking [her] about the head with his hand or a firearm."
24
hold that the erroneous self-defense instruction did not harm appellant. We overrule appellant's third
point of error.
Jury Argument
In his fourth point of error, appellant complains about the State's jury argument
during the punishment phase of trial.
We review a trial court's ruling on an objection to improper jury argument for an
abuse of discretion. Nzewi v. State, 359 S.W.3d 829,841 (Tex. App.—Houston [14th Dist.] 2012,
pet. ref d); see Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010). A trial court abuses
its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules and
principles. Montgomery v. State, 810 S. W.2d 372,380 (Tex. Crim. App. 1990); see also McDonald
v. State, 179 S.W.3d 571,576 (Tex. Crim. App. 2005) ("A trial court abuses its discretion when its
decision is so clearly wrong as to lie outside that zone within which reasonable persons
might disagree.").
Appellant first complains about the prosecutor's comments regarding the absence of
mitigating evidence. During closing argument of the punishment phase, after explaining the State's
reasons for requesting a life sentence, the prosecutor argued:
So we expect life. And there have been plenty of juries that can agree on life.
That happens all the time.
But if you can't, then we're hoping that when you're looking to compromise,
you're doing it between 60 and life because that's really where he is. There is
nothing mitigating. There is nothing to put him in the midrange. There is nothing
to put him towards the minimum.
25
You heard from Ofelia's mom all sorts of reasons why she deserved lenience.
The defense could have put on a case. You heard nothing, no evidence to mitigate,
to make it a less horrible —
Appellant objected, complaining, "That places the burden back on the defense. And we have no
obligation to testify." The trial court responded, "That's accurate. You don't. And the law that
applies to his testimony is contained in the charge." On appeal, appellant contends that the above
comments constituted an impermissible comment on his failure to testify.
Initially, we observe that appellant has arguably failed to properly preserve his
complaint about this jury argument for appellant review. For a party to preserve a complaint for
appellate review, the complaining party must make a specific objection and obtain a ruling on the
objection. Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014), cert denied,
135 S.Ct. 1158 (U.S. 2015); Tex. R. App. P. 33.1. In addition, the point of error on appeal
must comport with the objection made at trial. Yazdchi, 428 S.W.3d at 844; Clark v. State,
365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Here, appellant complained that the prosecutor's
argument shifted the burden of production to the defense. In doing so, counsel noted that
"we"—presumably referring to appellant—had no obligation to testify. Appellant did not, however,
explicitly complain that the prosecutor's argument was an improper comment on his right not to
testify. Moreover, the trial court failed to make a formal ruling either sustaining or overruling
appellant's objection. See Tex. R. App. P. 33.1(a)(2)(A). Assuming, however, that the trial court's
comment regarding the jury charge containing "the law that applies to [appellant's] testimony" was
an implied ruling on an objection complaining about an improper comment on appellant's failure
26
to testify, we find no abuse of discretion in the trial court's implied overruling of appellant's
objection to the State's argument.
The law provides for, and presumes, a fair trial free from improper argument by the
State. Ex parte Lane, 303 S.W.3d 702, 712 (Tex. Crim. App. 2009) (citing Long v. State,
823 S.W.2d 259,267 (Tex. Crim. App. 1991)). Proper jury argument must generally fall within one
of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence;
(3) responses to argument of opposing counsel; and (4) pleas for law enforcement. Freeman v. State,
340 S.W.3d 717, 727 (Tex. Crim. App. 2011); Jimenez v. State, 240 S.W.3d 384, 407 (Tex.
App.—Austin 2007, pet. ref d). The fact that a defendant did not testify does not fall into any of
these categories and may not be the subject of comment by the prosecution. Cruz v. State,
225 S.W.3d 546,548 (Tex. Crim. App. 2007); Bustamante v. State, 48 S.W.3d 761,765 (Tex. Crim.
App. 2001).
A comment on a defendant's failure to testify violates both the state and federal
constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim.
App. 2011); see U.S. Const, amend. V; Tex. Const, art. I, § 10; Tex. Code Crim. Proc. art. 38.08;
see abo Griffin v. California, 380 U.S. 609,615 (1965). However, the implication that the State's
comment referred to the defendant's failure to testify must be a clear and necessary one. Randolph,
353 S.W.3d at 891; Bustamante, 48 S. W.3d at 767. If the language might reasonably be construed
as merely an implied or indirect allusion, there is no violation. Randolph, 353 S. W.3d at 891; Busby
v. State, 253 S.W.3d 661, 666 (Tex. Crim. App. 2008). The test is whether the language used was
manifestly intended or was of such a character that the jury would necessarily and naturally take it
27
as a comment on the defendant's failure to testify. Randolph, 353 S.W.3d at 891; Cruz, 225 S .W.3d
at 548; see Bustamante, 48 S. W.3d at 765 (collecting cases). In applying this standard, the context
in which the comment was made must be analyzed to determine whether the language used was of
such character. Randolph, 353 S.W.3d at 891; Cruz, 225 S.W.3d at 548; Bustamante, 48 S.W.3d
at 765. Courts are not to find that the prosecutor manifestly intended to comment on the defendant's
failure to testify if some other explanation for the remark is equally plausible. Randolph,
353 S. W.3d at 891. In assessing whether the defendant's rights have been violated, courts must view
the State's argument from the jury's standpoint and resolve any ambiguities in the language in favor
of its being a permissible argument. Id.
Viewed from the jury's perspective, the prosecutor's comments in this case regarding
the lack of mitigation would not necessarily or naturally be taken as a comment on the defendant's
failure to testify. Rather, when placed in context, the prosecutor's statement can reasonably be
construed as referring to the absence of mitigating evidence from the testimony of character
witnesses testifying on appellant's behalf, and as an argument that the lack of mitigating evidence
warrants harsher, not more lenient, sentences. Thus, there is an equally plausible explanation for the
prosecutor's comment. Accordingly, there is no violation. See id. We conclude that the trial court
did not abuse its discretion by overruling appellant's objection to the prosecutor's argument
regarding the absence of mitigating evidence.
Also in this point of error, appellant argues that the prosecutor improperly "advised
the jury that appellant would earn sentence credits, would earn good conduct time, and would be
paroled." During final argument during the punishment phase, the prosecutor argued:
28
So life doesn't mean life. 60 doesn't mean 60. You heard he got - he'll get credit
for his back time. He'll get good conduct time. He'll get parole. He'll get credit
after credit from everyone. He doesn't need anymore [sic] credit from you guys.
However, appellant did not object to this argument at trial. Preservation of error is a systemic
requirement on appeal. Blackshear v. State, 385 S.W.3d 589, 590 (Tex. Crim. App. 2012). A
reviewing court should not address the merits of an issue that has not been preserved for appeal.
Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010). To preserve error regarding
improper jury argument for appellate review, a defendant must object and pursue his objection to an
adverse ruling. See Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010); Tex. R. App.
P. 33.1(a). A defendant must contemporaneously object to the statement, request an instruction that
the jury disregard the statement if the objection is sustained, and move for a mistrial if an instruction
to disregard is given. Cook v. State, 858 S.W.2d 467,473 (Tex. Crim. App. 1993). A defendant's
failure to object to a jury argument, or failure to pursue an adverse ruling to his objection to the jury
argument, forfeits his right to complain about the jury argument on appeal. Cockrell v. State,
933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Because appellant did not object to the prosecutor's
argument concerning credit for time served, good conduct time, or parole, he failed to preserve this
complaint for appellate review.
For the above reasons, we overrule appellant's fourth point of error.
29
CONCLUSION
Having concluded that appellant failed to demonstrate that he suffered ineffective
assistance of counsel, that the trial court did not abuse its discretion by admitting the complained-of
extraneous conduct evidence, that the erroneous self-defense instruction in the jury charge did not
cause appellant harm, and that the trial court did not abuse its discretion by overruling appellant's
objection to the State's jury argument, we affirm the trial court's judgements of conviction.
Melissa Goodwin, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: May 13, 2015
Do Not Publish
30
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196 B.R. 481 (1996)
In re Cindi Scott RICHARDS.
AT & T UNIVERSAL CARD SERVICES, Plaintiff,
v.
Cindi Scott RICHARDS, Defendant.
Bankruptcy No. 95-42756 S. Adv. No. 95-4228.
United States Bankruptcy Court, E.D. Arkansas, Little Rock Division.
May 10, 1996.
Byron Southern, Little Rock, AR, for AT & T Universal Card Services.
Grisham A. Phillips, Benton, AR, for Cindi Scott Richards.
James F. Dowden, Trustee, Little Rock, AR.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
MARY D. SCOTT, Bankruptcy Judge.
THIS CAUSE is before the Court upon the trial of the complaint to determine dischargeability. The creditor alleges that the debt owing to it is nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A), which provides:
A discharge under section 727 ... of this title does not discharge an individual debtor from any debt
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by
*482 (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition.
11 U.S.C. § 523(a)(2)(A).
The creditor called the debtor as its only witness, eliciting testimony that the debtor withdrew, as a cash advance, $3,900 of the $4,000 credit limit, within a short period of time of receiving the card. The cash was used as a down payment on a car, for her daughter's senior trip, and for other, unstated expenses. The debtor also admitted that she had other debts, regarding which no specifics were elicited. The creditor rested, after which the debtor moved for a judgment pursuant to Rule 52(c), Federal Rules of Civil Procedure, which motion was taken under advisement. The Court now grants the motion inasmuch as the creditor failed to prove its case.
In order to obtain a judgment of non-dischargeability under section 523(a)(2)(A), the creditor is required to plead and prove:
(1) the debtor made the representations;
(2) that at the time the debtor made the representations, she knew them to be false;
(3) that the debtor made the representations with the intention and purpose of deceiving the creditor;
(4) that the plaintiff justifiably relied on such representations;
(5) that the plaintiff sustained the alleged loss and damage as the proximate result of the representations having been made.
FCC National Bank v. Willis (In re Willis), 190 B.R. 866, 868 (Bankr.W.D.Mo.1996); AT & T Universal Card Services v. Alvi (In re Alvi), 191 B.R. 724 (Bankr.N.D.Ill.1996); see Field v. Mans, ___ U.S. ___, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995).[1]
The Court finds that the debtor, by use of the credit card, represented that she intended to pay the charges. However, the evidence is insufficient to demonstrate that the debtor made the representation knowing it was false. The only evidence before the Court is that she drew down $3,900 through cash advances on her credit card and used the funds while owing other debts. These bare facts are insufficient to carry creditors' burden on the element of fraudulent intent such that the creditor fails in its burden of proof.
Finally, the creditor failed to produce any evidence of justifiable reliance by the debtor. While the Supreme Court indicated in Field v. Mans, ___ U.S. ___, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995), that the level of justifiable reliance may vary with the facts and circumstances of the particular case; id. at ___, 116 S.Ct. at 444. ("Justification is a matter of the qualities and characteristics of the particular plaintiff and the circumstances of the particular case."), the element must be proven by some evidence; the creditor cannot completely ignore its burden with regard to this element of the cause of action. In this instance, since the creditor failed to place any evidence before the Court of justifiable reliance, it fails in its burden of proof. Accordingly, it is
ORDERED: that judgment shall be entered in favor of the debtor and this adversary proceeding dismissed.
IT IS SO ORDERED.
JUDGMENT
This action came on for trial before the Court, Honorable Mary Davies Scott, U.S. Bankruptcy Judge, presiding, and the issues having been duly tried and a decision having been duly rendered,
It is Ordered and Adjudged that the debt owed by the debtor CINDI SCOTT RICHARDS to the plaintiff AT & T UNIVERSAL CARD SERVICES is dischargeable in this bankruptcy case.
IT IS SO ORDERED.
NOTES
[1] In Field v. Mans, ___ U.S. ___, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995), the Supreme Court held that the plaintiff must prove "justifiable reliance" as an element of the section 523(a)(2)(A) cause of action.
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175 Ga. App. 196 (1985)
332 S.E.2d 676
LOTT
v.
ACE POST COMPANY, INC.
69957.
Court of Appeals of Georgia.
Decided June 6, 1985.
Rehearing Denied June 24, 1985.
M. Theodore Solomon, William J. Edgar, for appellant.
Terry A. Dillard, for appellee.
SOGNIER, Judge.
Mary Ann Lott brought this action against Ace Post Company, Inc. (Ace Post) seeking damages for the wrongful death of her husband. The trial court granted summary judgment in favor of Ace Post and Lott appeals.
Appellant's decedent was a wood and post cutter, who was paid by appellee according to the amount of wood he delivered. By mutual agreement of the parties, appellee deducted from decedent's pay an amount which appellee applied to its workers' compensation insurance plan to provide coverage to appellant's decedent under appellee's workers' compensation policy. The decedent was delivering posts to appellee when he was struck and killed by a lift driven by one of appellee's regular employees. Following the decedent's death, appellant filed a claim for death benefits under appellee's workers' compensation insurance policy, pursued that claim through the State Board of Workers' Compensation and ultimately received death benefits as well as penalties imposed against appellee under the Workers' Compensation Act. She thereupon instituted this suit. OCGA § 34-9-1 et seq. (Act). The trial court in granting appellee's motion for summary judgment found that the benefits received by appellant constituted her exclusive remedy and that appellee was immune from tort liability under OCGA § 34-9-11.
Appellant contends the trial court erred by granting summary judgment to appellee because her decedent was an independent contractor and was not an "employee" under the Act.
"[OCGA § 34-9-11] has been interpreted consistently to mean that, where the workers' compensation law is applicable, it provides the employee's exclusive remedy against his employer." Freeman v. Ryder Truck Lines, 244 Ga. 80, 82 (2) (259 SE2d 36) (1979). In this case, appellant was able to obtain scheduled workers' compensation benefits for the death of her husband because of the agreement between the decedent and appellee whereby appellee accepted deductions from the decedent's pay and applied them to appellee's workers' compensation insurance policy in order for the decedent to obtain coverage under appellee's policy. Because of this agreement, appellee *197 was barred under the doctrine of equitable estoppel from denying coverage to appellant's decedent for all applicable scheduled benefits. See OCGA § 34-9-124 (b); Hill-Harmon Pulpwood Co. v. Walker, 237 Ga. 736, 738 (2) (229 SE2d 607) (1976); Lawrence v. Atlanta Door Co., 171 Ga. App. 741, 743 (1) (320 SE2d 627) (1984); see Hartford Ins. Group v. Voyles, 149 Ga. App. 517, 519-20 (254 SE2d 867) (1979).
"`Estoppel, to be good, must be "reciprocal."' [Cit.] . . . `Estoppels are not favored at law and in no case can the doctrine be invoked save where the estoppel is mutual.' [Cits.]" Porterfield v. Gilmer, 132 Ga. App. 463, 466 (208 SE2d 295) (1974), aff'd 233 Ga. 671 (212 SE2d 842) (1975). We find no merit in appellant's argument that she is not reciprocally estopped under the equitable estoppel doctrine from recovering for tort liability against appellee because her decedent paid the premiums to obtain the workers' compensation benefits and appellee gave no quid pro quo to justify entitlement to the statutory immunity from tort liability under OCGA § 34-9-11. Regardless whether the decedent was an independent contractor or an employee not regularly covered under the Act, he assumed the status of appellee's employee when he entered into the agreement with appellee as a means of obtaining workers' compensation benefits not otherwise available to him. The quid pro quo provided by appellee was its surrender under this agreement of any defense of lack of negligence in regard to a compensable injury to the decedent.
"In exchange for the right to recover scheduled compensation without proof of negligence on the part of the employer in those cases in which a right of recovery is granted, the employee foregoes other rights and remedies which he might otherwise have had, but if he accepts the terms of the Act he as well as the employer is limited to those things for which the Act makes provision." Nowell v. Stone Mtn. Scenic R., 150 Ga. App. 325 (257 SE2d 344) (1979). Appellant by accepting the terms of the Act under the doctrine of equitable estoppel and benefiting thereby is estopped and barred from recovering in this tort action against appellee. See OCGA § 34-9-11; Porterfield, supra at 466; Rapid Cab Co. v. Colbert, 166 Ga. App. 881 (305 SE2d 668) (1983). Therefore, the trial court did not err in granting summary judgment in favor of appellee.
Judgment affirmed. Birdsong, P. J., and Carley, J., concur.
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180 F.Supp.2d 363 (2001)
Patrick KINSELLA, Plaintiff,
v.
Donald RUMSFELD, Secretary, Department of Defense, Defendant.
No. 5:99-CV-1128 HGM/DEP.
United States District Court, N.D. New York.
November 16, 2001.
*364 Napierski, Vandenburgh & Napierski, L.L.P. (Shawn F. Brousseau, of counsel), Albany, NY, for Plaintiff.
Joseph A. Pavone, United States Attorney for the Northern District of New York *365 (William F. Larkin, Asst, U.S. Atty., of counsel), Syracuse, NY, for Defendant.
MEMORANDUM DECISION AND ORDER
MUNSON, Senior District Judge.
FACTS
The plaintiff, Patrick Kinsella, was born with Coloboma of both eyes, rendering him legally blind. His vision, without correction, is 20/600 in his right eye and 20/700 in his left eye. With correction, plaintiff's vision is 20/200 in each eye.
In 1989, plaintiff began working at Rome Laboratories at Griffiss Air Force Base ("Griffiss") as a GS-350-4 copier/duplicator operator ("GS-4") and remained in this position until his termination in 1994 as part of a Reduction in Force ("RIF"). During his employment, he maintained and operated a high-speed Xerox 9900 copier, a Kodak color copier, a stapler/binder, a drill press, and a laser cutter.
On April 2, 1993, plaintiff initially requested EEO counseling for alleged handicap discrimination. Plaintiff claimed that he was discriminated against because he was issued a letter of caution and was threatened with other disciplinary action. On April 12, 1993, plaintiff was advised of his rights and responsibilities and on May 6, 1993, a Notice of Final Interview was issued by the Department of the Navy, Consolidated Civilian Personnel Office. The notice informed plaintiff that he had 15 days in which to file a complaint. On May 13, 1993, the EEO counselor issued a report identifying the issues presented by plaintiff as: (1) he received a letter of caution and was threatened with other disciplinary action; and (2) management was trying to transfer him back to the Air Force. Plaintiff did not follow up on the Notice of Final Interview and file a formal complaint.
On December 1, 1994, plaintiff requested additional EEO counseling for alleged discrimination on November 28, 1994, when he was told that he did not qualify for a WG-4402-7 bindery machine operator ("WG-7") position during a RIF. On January 12, 1995, plaintiff filed an EEO complaint alleging discrimination based upon a physical handicap of legal blindness.
On February 15, 1995, the Department of the Navy, Defense Printing Service Detachment Office ("DPSDO") issued a letter acknowledging plaintiff's complaint and accepting for investigation the issue of the alleged discrimination occurring when plaintiff was told on November 28, 1994 that he did not qualify for one of the WG-7 positions that would remain at the DPSDO facility at Griffiss following the RIF. Two additional issues were rejected for investigation: (1) management's failure to reclassify plaintiff's position as a GS-4 to a WG-7 because of physical disability discrimination; and (2) an alleged statement made on April 9, 1992 by Robert Feller, plaintiff's supervisor, that "a blind guy is not going to be working at our work site." The rejection was based on the fact that plaintiff raised these issues during the EEO counseling session on April 2, 1993, but failed to file a formal complaint.
On March 22, 1995, plaintiff filed a Notice of Appeal with the Equal Employment Opportunity Commission ("EEOC") appealing the dismissal of the two issues rejected for investigation. By decision of December 19, 1996, the EEOC vacated the DPSDO's decision to dismiss the two issues. Additionally, the EEOC ordered the Defense Automation and Production Service[1] ("DAPS") to conduct a supplemental *366 investigation to determine whether plaintiff: (1) initially contacted an EEO counselor; (2) failed to timely file a formal complaint; and (3) abandoned the allegations raised in the pre-1994 EEO counseling sessions. Following the additional investigation by DAPS, the EEOC issued a decision dated April 16, 1999 affirming DAPS's dismissal of the two issues originally rejected for investigation. The EEOC concluded that the complained of events occurred more than one year prior to plaintiff's EEO counselor contact, therefore violating EEOC Regulation 29 C.F.R. § 1614.105(a)(1) that requires discrimination complaints to be filed within forty-five days of their occurrence.
On July 21, 1999, plaintiff filed a complaint with this court alleging that: (1) he had been denied promotion and continued employment because of his disability in violation of the Rehabilitation Act; (2) defendant intentionally caused plaintiff to suffer severe emotional distress; and (3) plaintiff suffered lost wages and benefits as a result of his failure to be promoted and/or reclassified.
Currently before this court is defendant's motion for summary judgment dismissing the complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has entered opposition to this motion.
DISCUSSION
I. Standard for Summary Judgment
The standard for summary judgment is well-settled. Rule 56 allows for summary judgment where the evidence demonstrates that "there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Summary judgment is properly regarded as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) (quoting Federal Rule of Civil Procedure 1). A motion for summary judgment may be granted when the moving party carries its burden of showing that no triable issues of fact exist. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). In light of this burden, any inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party. See id.; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). If the moving party meets its burden, the burden shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). To defeat a motion for summary judgment, however, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. See id. at 250-251, 106 S.Ct. at 2511.
Summary judgment is appropriate in discrimination cases for "the salutary purposes *367 of summary judgment avoiding protracted, expensive and harassing trials apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985). The "impression that summary judgment is unavailable in discrimination cases is unsupportable." McLee v. Chrysler Corp., 38 F.3d 67, 68 (1994). The Supreme Court has also recently reiterated that the trial courts should not "treat discrimination differently from other ultimate questions of fact." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).
II Rehabilitation Act Claim
Plaintiff claims that defendant discriminated against him on the basis of disability or handicap in violation of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq. The Rehabilitation Act prohibits federal employers from discriminating against employees with physical or mental disabilities. 29 U.S.C. § 791. In order to establish a prima facie case of discrimination relating to advancement and other terms, conditions and privileges of employment, plaintiff must show that: (1) the employer is subject to the statute under which the claim is brought; (2) he is an individual with a disability within the meaning of the statute in question; (3) he could perform the essential functions of the job, with or without reasonable accommodation; and (4) the adverse employment actions occurred because of plaintiff's disability. See Dollinger v. State Insurance Fund, 44 F.Supp.2d 467, 478 (N.D.N.Y.1999).
A. Applicable Statute
As a federal employee, plaintiff may file a claim based on disability discrimination under the Rehabilitation Act. Section 501 of the Rehabilitation Act establishes affirmative action programs for the hiring, placement and advancement of individuals with disabilities. 29 U.S.C. 791(b). The standards used to determine whether this section has been violated are those standards applied under the appropriate provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. 12111 et seq. 29 U.S.C. 791(g).
B. Individual with a Disability
Plaintiff is an individual with a disability within the meaning of the Rehabilitation Act. For purposes of the Rehabilitation Act, "individual with a disability" is defined as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment." 29 U.S.C. § 705(20)(B).
A. Physical Impairment
There is no dispute that plaintiff's congenital colomba is a physical impairment within the meaning of the Rehabilitation Act. See 29 C.F.R. § 1630.2(h)(1) (defining "physical impairment" as "[a]ny physiological disorder, or condition ... affecting one or more of the following body systems: ... special sense organs").
B. Substantial Limitation of a Major Life Activity
The term "major life activities" includes functions such as seeing and working. See 29 C.F.R. § 1630.2(i). There is no dispute that plaintiff's physical impairment substantially limits his major life activity of seeing, but does not substantially limit his major life activity of working.
*368 C. Performance of the Essential Functions of the Job
Plaintiff is able to perform the essential job functions of both the GS-4 and the WG-7 positions with reasonable accommodation, but without restrictions. See Defendant's Memo, Exhibit L, pp. 69-71. Defendant does not challenge this assertion.
D. Adverse Employment Action because of Disability
A. Failure to Promote
Plaintiff has failed to establish a prima facie case of discrimination based upon non-promotion. He argues that he was denied reclassification of his position because of disability discrimination and therefore, he could not receive a lateral appointment to a WG-7 position at the time of the RIF.
In order to establish a prima facie case of discrimination based on non-promotion, plaintiff must show that he applied for an available position for which he was qualified, but was rejected under circumstances that give rise to an inference of unlawful discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Plaintiff must allege that he applied for a specific position or positions and was rejected therefrom, rather than merely asserting that on several occasions that he generally requested promotion. See Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir.1998).
In the present case, plaintiff has failed to show that he applied for a specific position and was rejected. Plaintiff is unable to establish that he specifically applied for a WG-7 position and that another candidate filled the position. In fact, plaintiff is unable to state how many WG-7 positions became available during his employment or the identity of the individuals who were hired for those available positions. See Defendant's Memo, Exhibit L, pp. 53, 56. Additionally, John Peterson, in his declaration, states that "[a]t no time did I see any application from [plaintiff] for any vacancy." Defendant's Memo, Exhibit N, paragraph 11. In his position as Director of DPSDO and later, DAPS, he would have reviewed all job recommendations and selections prior to submission to the Human Resource Office, and would have seen all applications, even those from non-successful candidates. See id. Taking the aforementioned statements into consideration, plaintiff has failed to establish that he applied for a specific position and was rejected.
Plaintiff has demonstrated that he made multiple verbal requests to Bob Voisine, his supervisor, for a reclassification of his position from GS-4 to WG-7. See Brousseau Affidavit, Exhibit B, p. 26. However, plaintiff failed to make any formal written requests to have his position reclassified. See Defendant's Memo, Exhibit L, p. 28. Also, plaintiff failed to request an audit on his assigned duties to see whether they merited a higher paying grade. See Defendant's Memo, Exhibit O, paragraph 10. If a request for an audit had been made, a personnel specialist would have reviewed plaintiff's duties and determined if his position should have been reclassified. Id. After an examination of plaintiff's efforts to apply for a specific position, the court finds that plaintiff has failed to establish a prima facie case of discrimination based upon non-promotion.
B. Termination of Employment
Plaintiff has failed to establish a prima facie case of discrimination based upon the termination of his employment. Plaintiff claims that he was dismissed from his position because of disability discrimination and not because of a legitimate *369 RIF, as argued by defendant. In support of his claim, plaintiff alleges that the RIF was organized, designed, and implemented by Mr. Peterson and Michael Blanks, individuals accused of discrimination by plaintiff. Additionally, plaintiff claims that all of the other employees that formerly worked in the print shop with him were placed in new positions at the facility.
An agency, such as DAPS, is responsible for determining the categories within which positions are required, where they are to be located, and when they are to be filled, abolished, or vacated. See 5 C.F.R. § 351.201(a)(1). This includes determining when there is a surplus of employees at a particular location in a particular line of work. See id. A RIF is permissible for justifications such as: lack of work; shortage of funds; reorganization; or reclassification of an employee's position due to erosion of duties. See 5 C.F.R. § 351.201(a)(2). Once the need for a RIF is established, there are two procedural steps: (1) the agency determines which positions to abolish; and (2) it elects the people to be eliminated serving in those positions on the basis of their retention standing. See Gandola v. Federal Trade Comm'n, 773 F.2d 308, 310 (Fed.Cir.1985). If an agency is able to demonstrate that the RIF regulations were invoked for a legitimate reason and that those regulations were properly applied to the individual employee, the agency action will be sustained. See id. at 313.
In October of 1993, Mr. Peterson and his office assumed responsibility for the printing and copying facilities at Griffiss. See Defendant's Memo, Exhibit N, paragraph 2. At that time, Mr. Peterson analyzed the production and efficiency reports of the facilities and discovered that it was losing a considerable amount of money. See id. at paragraph 3.
In January of 1994, Mr. Peterson visited the employees of the facilities and reviewed with them copies of the production efficiency reports that reflected that they were operating at less than 40% efficiency. See id. at paragraph 4. Three months later, a review of the production reports revealed that the efficiency of the facilities had not improved. See id. at paragraph 5. Mr. Peterson returned to the Griffiss facilities and advised the employees that a reorganization through a RIF was necessary to increase the efficiency rate. See id. Such an increase would be achieved through the elimination of positions, consolidation of the two facilities, and the reduction of salary expense. See id.
On October 18, 1994, DAPS received authorization to conduct the RIF, which involved the elimination of all of the eight positions at the Griffiss facilities and the establishment of three new positions. See id. at paragraph 7. Plaintiff's position was one of the eight that were eliminated.
Plaintiff's essential claim is, absent disability discrimination, he would have been eligible for a lateral transfer as a WG-7 to one of the three new positions at the facilities and would not have lost his job. However, such a claim fails because it overlooks RIF regulations that determine which employees retain jobs and which are separated from service. Competing employees are classified for retention purposes on the basis of their tenure of employment, veteran preference, tenure, qualifications to performing a remaining job, and performance appraisals. See 5 C.F.R. § 351.501.
The Human Resource Office applied the retention factors to the eight employees at the Griffiss facilities. As a result, Robert Voisine, Frank Loomis, Jr., and Timothy Jones were entitled to remain in positions at the Griffiss facilities. Mr. Voisine was a veteran who had began working for the *370 federal government on May 16, 1979 and had better performance ratings than plaintiff. See Defendant's Memo, Exhibit N, paragraph 9. Likewise, Mr. Loomis was a veteran who started working for the federal government on April 24, 1984 and had better performance ratings than plaintiff. See id. Finally, Mr. Jones, while not a veteran, had more seniority and better performance than plaintiff. See id. In contrast, plaintiff was not a veteran, began his federal service on July 7, 1986, and had lower performance ratings than the three individuals who were retained to work in the Griffiss facilities.
Plaintiff also claims that he was discriminated against because the other four employees whose positions were eliminated Debbie Boudreau, Diane Peters, Gary Stauty, and Steven Recchio were subsequently rehired by defendant. Following the RIF, Ms. Boudreau was hired by the Defense Finance and Accounting Service ("DFAS"). See Defendant's Memo, Exhibit O, paragraph 6. Ms. Peters, Mr. Stauty, and Mr. Recchio also were hired by DFAS at some time following the RIF. See Brousseau Affidavit, Exhibit E, pp. 25-26. DFAS is a Department of Defense organization that is separate from DAPS it has a separate management, its own appropriations, a separate personnel office, and a distinctly different mission. See Defendant's Memo, Exhibit O, paragraph 6. As such, any decision by a member of DFAS to hire a former employee of DAPS was made independently from DAPS and was not affected by any alleged discrimination by Mr. Peterson or any other employee of DAPS. See Defendant's Memo, Exhibit O, paragraph 9. The decision to staff and operate a duplicating facility at DFAS was made after the RIF was complete. See id. At the time of the RIF, the duplicating requirements for DFAS did not exist, so there were no positions that Mr. Peterson could have offered the employees that were affected by the RIF. See id.
After an examination of the facts of the case, the court finds that plaintiff has failed to establish a prima facie case of discrimination based upon the termination of his employment. Mr. Peterson initiated the RIF procedures for a legitimate reason, namely to increase production efficiency at the DAPS facility at Griffiss. As a result of the RIF procedures, three positions remained at the DAPS facility and those positions were filled in compliance with the required retention factors. Plaintiff does not dispute this conclusion. The remaining former employees were hired by DFAS, a Department of Defense organization that operated independently of DAPS. Therefore, plaintiff has failed to demonstrate that his dismissal from the DAPS facility as a result of the RIF was the result of disability discrimination.
III. Intentional Infliction of Emotional Distress Claim
Under New York law, a claim for intentional infliction of emotional distress requires a showing of: "(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress." Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir.1999). Whether the conduct alleged may be reasonably regarded as so extreme and outrageous as to permit recovery is a matter for the court to determine in the first instance. See id. A litigant can establish a cognizable claim for intentional infliction of emotional distress "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable *371 in a civilized society." Howell v. New York Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993) (internal citations omitted). The requirements for satisfying a claim for intentional infliction of emotional distress "are rigorous, and difficult to satisfy." Id. Therefore, courts must decline such a claim in cases where the alleged conduct was not sufficiently outrageous. See Bender v. City of New York, 78 F.3d 787, 790 (2d Cir.1996).
Plaintiff claims that defendant's alleged failure to reassign plaintiff to a WG-7 position, as well as alleged statements and actions taken by defendant's employees, are sufficient for a successful cause of action for intentional infliction of emotional distress. The court disagrees. In the foregoing analysis, the court determined that plaintiff failed to establish a prima facie case of disability discrimination. Recognizing this, the court cannot conclude that defendant's actions rise to the level of being "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society," when they were insufficient to support a claim of disability discrimination. Therefore, plaintiff has failed to prove his claim for intentional infliction of emotional distress.
CONCLUSION
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED, that defendant's motion for summary judgment is GRANTED and the complaint is hereby DISMISSED in its entirety. It is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order upon the parties by regular mail.
IT IS SO ORDERED.
NOTES
[1] At some time during plaintiff's employment, the Defense Printing Service Detachment Office ("DPSDO") was re-named the Document Automation and Production Service ("DAPS").
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-3421
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Aaron M. Deroo, *
*
Defendant-Appellant. *
___________
Submitted: May 15, 2002
Filed: September 27, 2002
___________
Before MURPHY, HEANEY, and BRIGHT, Circuit Judges.
___________
MURPHY, Circuit Judge.
Aaron Deroo1 pled guilty to being a felon in possession of ammunition and
later filed an appeal (on December 4, 1998) from the denial of his post conviction
motion under 28 U.S.C. § 2255. The matter has been before the court twice
previously and remanded both times for further proceedings. A panel ruled at the first
stage of Deroo's appeal that his § 2255 motion was not barred by a waiver provision
in his plea agreement and that he had not received ineffective assistance of counsel
1
Although Deroo's name has sometimes been spelled with a capital "R," it
appears that this spelling is correct.
in connection with his guilty plea. Both remands have related to his sentencing under
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). On the most recent
remand we directed the district court to conduct a full examination of Deroo's prior
burglary convictions to determine whether they qualify as predicate offenses under
the statute. United States v. DeRoo, 13 Fed. Appx. 436, 438 (8th Cir. 2001)
(unpublished) (per curiam). The district court held a hearing, studied the record, and
then issued written findings concluding that Deroo had four qualifying felonies, one
more than necessary. Deroo appeals, and we affirm.
I.
Deroo was charged in United States District Court for the District of North
Dakota with being a felon in possession of ammunition, in violation of 18 U.S.C. §
922(g)(1), after a search warrant was executed at his residence and more than 65
rounds of ammunition were found. He pled guilty pursuant to a plea agreement, and
was sentenced under the ACCA. § 924(e)(1). This statute applies if a defendant has
had three previous convictions for a violent felony or serious drug crime. The court
found that Deroo qualified as an armed career criminal because of burglary
convictions in 1989 and 1990 and two controlled substance offenses to which he pled
in 1992. He was sentenced to 210 months.2 See United States Sentencing
Commission, Guidelines Manual, § 4B1.4.
In 1989 Deroo and an accomplice, Spencer Tranby, had been apprehended
while committing a burglary in Becker County, Minnesota. Following their arrest for
the Becker County burglary, Deroo and Tranby confessed to eleven other burglaries
they had committed in Hubbard County, Minnesota between May and June 1989.
Deroo was charged in state court with six counts of second degree burglary for the
2
Deroo escaped from the jail where he was being held while awaiting
sentencing but was apprehended a day later.
-2-
Hubbard County burglaries. He pled guilty in October 1989 under the first three
counts, in each instance pleading to the lesser included offense of third degree
burglary. He was later charged with second degree burglary for the Becker County
offense, and he pled guilty to it in January 1990. Both sides agree that the 1990
conviction is a qualifying prior felony under the ACCA.
Deroo's plea agreement for his federal conviction for felon in possession
contained a provision waiving his right to "any appeal or other post-conviction
relief." Deroo did not attempt to appeal from the judgment, but he did petition to
vacate his conviction and sentence under 28 U.S.C. § 2255, claiming he had received
ineffective assistance of counsel. The district court declined to rule on the merits of
the petition because of the appellate waiver provision. We granted a certificate of
appealability on the issue of whether Deroo's petition was barred by the waiver.
DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000). A panel of this court
concluded that it was not, but that Deroo's counsel had not been ineffective. The
panel ruled sua sponte, however, that Deroo's drug convictions could not count as
predicate offenses under the ACCA because they were not "serious drug offenses."
Id. at 923-27. The court found that it was unclear from the record whether Deroo
otherwise had three qualifying felony convictions, id. at 927, and remanded for
reconsideration of his sentence.
On remand the government asserted that Deroo's Hubbard County burglary
convictions from 1989 were sufficient to bring him under the ACCA because they
were separate violent felonies. Deroo argued that he believed the issue had already
been decided in his favor, but that an evidentiary hearing would be needed if it had
not. The district court ruled that the issue had not been determined and that Deroo
had committed a sufficient number of violent felonies to invoke the ACCA, including
a number of burglaries in Hubbard County over a period of one month. It found that
an evidentiary hearing was unnecessary and again sentenced Deroo to 210 months as
an armed career criminal.
-3-
Deroo appealed, and we vacated the sentence because it was not clear from the
district court's order which burglaries it had relied on, when or where the burglaries
had occurred, and whether they were separate offenses or part of a continuous course
of criminal conduct. DeRoo, 13 Fed. Appx. at 438. We remanded with directions to
resentence Deroo after "full examination of the 1989 convictions and relevant
findings." Id.
The district court convened the parties once again and heard arguments. It also
examined court records from the 1989 convictions, including the complaint and the
transcript of the change of plea hearing. These records showed that Deroo confessed
to having burglarized eleven cabins on six lakes between May and June 1989, that he
was charged with the burglary of six, and that he pled guilty to three. The court made
findings regarding the location and timing of these three burglaries and determined
that each counted as a predicate offense for purposes of the ACCA. It concluded that
these three felonies, together with the 1990 Becker County conviction, gave Deroo
four qualifying convictions, one more than necessary under the statute. Deroo sought
to provide his own testimony, and that of his accomplice Tranby, that they had
committed the three 1989 burglaries within approximately one hour.
Deroo again appealed, contending that the district court had failed to conduct
a full examination of the 1989 convictions and had denied him an opportunity to
present evidence. He argued that the 1989 burglaries do not qualify as predicate
offenses because they were part of a continuous course of criminal conduct and took
place in close temporal proximity. After the conclusion of briefing and the court's
decision that oral argument was not needed, he moved on May 9, 2002 to substitute
new counsel and requested time to file a supplemental brief. We granted his requests,
and substituted counsel submitted a brief with substantially similar arguments to
those previously made and also moved to supplement the record with a June 2002
-4-
affidavit signed by Deroo and the June 2002 deposition transcript of Spencer Tranby.3
The two claimed in their testimony that they had committed the three 1989 burglaries
to which Deroo pled within approximately one hour. Deroo's affidavit asserts that
the burglaries were committed as part of "a single continuous course of conduct"
conceived at a "single planning session." Deroo's counsel asked Tranby at his
deposition whether the two "had a single specific plan" that was "followed . . .
without deviation." Tranby responded "yeah."
II.
Congress passed the ACCA to protect the public from continuing crimes by
armed felons. See generally H.R. Rep. No. 98-1073, at 1-3 (1984). It provides a
minimum sentence of fifteen years if a defendant qualifies as an armed career
criminal. 18 U.S.C. § 924(e). This classification applies to a defendant convicted of
being a felon in possession of a weapon or ammunition who has "three previous
convictions by any court . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another." § 924(e)(1). The term "violent
felony" includes felony burglaries. § 924(e)(2)(B)(ii).
To qualify as predicate offenses under the statute, each conviction must be a
separate and distinct criminal episode, rather than part of a continuous course of
conduct. See United States v. Hamell, 3 F.3d 1187, 1191 (8th Cir. 1993). See also
United States v. Gray, 85 F.3d 380, 381 (8th Cir. 1996). Crimes occurring even
minutes apart can qualify, however, if they have different victims and are committed
in different locations. See Gray, 85 F.3d at 381 (two burglaries of houses located
near each another within a twenty five minute period); Hamell, 3 F.3d at 1191 (two
assaults within twenty five minutes; one inside a bar, the other outside).
3
Counsel for the government received notice of this deposition only three days
before it was taken and was unable to attend and cross examine Tranby.
-5-
On remand the district court examined records relating to Deroo's prior
convictions, including his own testimony from the 1989 change of plea hearing.
These materials indicated that in 1989 Deroo had confessed to burglarizing cabins
between May and June of that year on Spider Lake, Boulder Lake, Island Lake, Third
Crow Wing Lake, Stoney Lake, and East Crooked Lake. Deroo pled guilty to third
degree burglary under the first three counts against him. The first count involved a
cabin on Spider Lake which Deroo and Tranby broke into and from which they took
various property including a fish locator, twenty arrows, a stereo, and alcoholic
beverages. The second burglary count involved a cabin on Boulder Lake, from which
the two stole a revolver, a 35 mm camera, jewelry, liquor, and other items. The third
conviction was a burglary of a cabin on Island Lake, from which they took a rifle,
fishing equipment and a bottle of liquor. Each cabin had a different owner. Even if
Deroo's assertion that the three burglaries occurred within an hour of one another
were correct, the burglaries involved breaking into three separate homes located on
different lakes and unrelated victims who suffered individual losses of varying types
of property. Cf. Gray, 85 F.3d at 381. The district court did not err by finding that
these burglary convictions were three separate felonies under the ACCA. See United
States v. Johnson, 285 F.3d 744, 748 (8th Cir. 2002) (standard of review).
The district court was instructed to make a full examination of the 1989
convictions and to enter findings as to whether they were separate offenses or part of
a continuing course of criminal conduct. Although Deroo claims that the district
court was required to receive his testimony, we left it to the discretion of the judge
to assess whether an evidentiary hearing would be a necessary part of such an
examination. A district court generally has discretion to determine the appropriate
procedure to follow in conducting a sentencing hearing, including whether to allow
testimony or to receive additional evidence. United States v. Granados, 202 F.3d
1025, 1027-28 (8th Cir. 2000). See also United States v. Boyles, 235 F.3d 1057,
1057 (8th Cir. 2000) (per curiam) (court may consider specific facts underlying
convictions but is not required to do so). While it might have been preferable if the
-6-
district court had given Deroo the opportunity to add to the record, we cannot say that
it abused its discretion in declining to hear the proffered testimony of Deroo and
Tranby. Since the proffered testimonial material offered in June of this year was not
part of the record before the district court, Deroo's motion to supplement the record
is denied. Cf. United States v. Elizalde-Adame, 262 F.3d 637, 640-41 (7th Cir.
2001). We have nevertheless carefully examined the material, and see that it adds
very little to the arguments previously made by Deroo.
III.
The court has given Deroo ample opportunity over several years to argue his
§ 2255 motion, itself raising the ACCA issue and twice remanding it for further
consideration by the district court. In the end, however, Deroo has been unable to
show that the district court erred in determining that he qualifies as an armed criminal
offender or that it erred in its application of the ACCA. We therefore affirm the
judgment of the district court.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-7-
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603 F.2d 1155
102 L.R.R.M. (BNA) 2513, 87 Lab.Cas. P 11,587
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.SAC CONSTRUCTION COMPANY, INC., Respondent.
No. 78-2458.
United States Court of Appeals,Fifth Circuit.
Oct. 4, 1979.
Elliott Moore, Deputy Assoc. Gen. Counsel, Ruth E. Peters, Atty., N.L.R.B., Washington, D. C., for petitioner.
Muller, Mintz, Kornreich, Caldwell & Casey, P. A., Michael W. Casey, III, Herbert B. Mintz, Miami, Fla., for respondent.
Application for Enforcement of an Order of the National Labor Relations Board.
Before BROWN, Chief Judge, CLARK and VANCE, Circuit Judges.
VANCE, Circuit Judge:
1
SAC Construction Company was a party to a labor contract executed between a multi-employer association and the union representing SAC's carpentry unit.1 It was unable to operate profitably under the contract and timely withdrew from the multi-employer unit in December 1975 before the contract expired on March 31, 1976.2 At the same time, SAC notified the union of its intention to negotiate a separate contract. The company did not hear anything from the union until March 29, 1976, when SAC President Stanley Cohen was apprised of a negotiation session on March 31. Although Cohen had a prior engagement on that date, he responded that he would be happy to meet with the union representative at the representative's convenience, and he actually held two such meetings during the month of April. On September 9, 1976,3 Cohen was informed of a master agreement negotiated with the multi-employer unit and was sent a copy for approval.4 On September 21, Cohen replied that the master agreement was unacceptable, adding that "(i)f you wish to negotiate with me I am available to meet with you at your convenience."
2
On or about April 1, 1976, SAC unilaterally reduced wage rates5 and ceased fringe benefit plan contributions, both of which were mandatory bargaining subjects. These unilateral changes precipitated unfair labor practice charges against SAC, and the Board found the Company guilty of refusing to bargain. It ordered SAC to begin collective bargaining negotiations, to resume paying the wage rates and fringe benefit contributions in effect under the expired contract, and to make whole any employee loss suffered because of the unilateral changes. The Board now petitions this court to enforce its order, pursuant to 29 U.S.C. § 160(e). We deny enforcement.
3
An employer's duty to bargain with a union, whether it be a Board-certified union or simply an incumbent union, ceases when the employer can demonstrate a good faith belief that the union lacks majority status. See NLRB v. Newspapers, Inc., 515 F.2d 334, 340-41 (5th Cir. 1975); NLRB v. A. W. Thompson, Inc., 449 F.2d 1333, 1336 (5th Cir. 1971), Cert. denied, 405 U.S. 1065, 92 S.Ct. 1497, 31 L.Ed.2d 795 (1972). The duty to refrain from making unilateral changes in those employment conditions subject to mandatory bargaining after termination of an existing contract derives from the employer's statutory duty to bargain collectively, because such changes are tantamount to a refusal to negotiate. Hinson v. NLRB, 428 F.2d 133, 137 (8th Cir. 1970); See NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). Under the same logic, the obligation to maintain existing conditions after contract expiration also ceases whenever the union has lost majority status.
4
The Board found that as of March 31, 1976,6 the expiration date of the contract, a majority of unit employees voluntarily supported the union. It based its finding solely on the ground that on that date all employees in the recognized unit were paying union dues. Because there was no applicable union-security provision, such payment of union dues shows that a majority of the unit employees voluntarily supported the union at that time. See NLRB v. Auto Ventshade, Inc., 276 F.2d 303, 307 (5th Cir. 1960).
5
Identification of the appropriate bargaining unit is necessary for determining majority status. The Board construed the appropriate unit as including not just employees formally classified as journeymen and apprentice carpenters, who were included in the unit before April 1, 1976, but also employees performing work within the union's trade jurisdiction.7 We agree and accept the Board's construction. This finding is critical to the ultimate determination of majority status because, as of April 1, SAC has not utilized any job classifications.8 Instead, its employees now perform all phases of the construction work, and consequently must be included in the appropriate unit for determining majority status.
6
While it is true that all six of SAC's carpenters were union members on March 31, only three of those employees continued to work for SAC after expiration of the contract on that date. The declassification of employees and the unilateral changes were not made until April 1, 1976. The Board erred in failing to determine majority status as of that date. Majority support is not a constant factor, and with it changes the duty to bargain. Cf. Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954) (duty to bargain after loss of majority during one year period of Board certification).
7
In certain instances, a presumption of majority support can compel an employer to bargain collectively. See NLRB v. Newspapers, Inc., 515 F.2d at 340. Whatever presumption9 of continued majority support that existed in the instant case, however, was destroyed by the events occurring on April 1, 1976. On that date SAC abolished job classifications for its employees, who began performing all phases of construction work, including those duties previously performed by carpenters. Because of this abolition and the Board's correct determination of the appropriate unit, no majority status existed on April 1, 1976.
8
Mr. Cohen testified unequivocally and without contradiction concerning the makeup of SAC's employee complement as of April 1, 1976:Q. Okay.
9
Prior to the expiration of the latest agreement that you had with the tri-council, did any of these 20 that are now employed perform the same work for you at that time?
10
A. Yes, Ma'am.
11
Q. Okay.
12
Were they employed since you had previous agreements with laborers, carpenters, operating engineers and iron workers, of these 20 individuals that you now employ, did any of them fall within the trade jurisdiction of the Carpenters?
13
A. Yes, Ma'am.
14
Q. Okay.
15
Can you tell me how many of them?
16
A. If I understand the question, you're asking me how many men that are now on my pay roll were on the pay roll prior to April 1st of '76 and classified as carpenters?
17
Q. That's correct?
18
A. Two or three.
19
Q. Okay.
20
How many are employed that were previously classified as laborers?
21
A. Five. Approximately five.
22
Q. And these five are performing carpentry work at this time among their various duties?
23
A. Amongst other things.
24
Q. Okay.
25
Those individuals employed previously as operating engineers. How many of those remain on your pay roll?
26
A. None.
27
Q. What about iron workers? Do you have any employees previously classified as iron workers that are currently performing carpentry work?
28
A. No, Ma'am. I didn't have any iron workers immediately prior to the expiration. I haven't had iron workers for over a year.
29
Q. So the only classification of employees, pre-contract expiration which would be March 31st, 1976, that remained in your employ at this time are those employees that were previously classified as laborers and carpenters?
30
A. Yes, Ma'am.
31
On April 1, 1976, there were thus seven or eight employees in the appropriate unit. Only two or three were paying dues to the union. The remaining five were laborers who were affiliated with another union. Therefore, we cannot understand how the Board could conclude that a majority existed on April 1, 1976, and thereafter. Simple mathematics reveals the contrary: a majority of the employees in the unit were affiliated with a different union. The presumption of continued majority support is to be used as an aid in furthering the aims of collective bargaining, but will not be used to frustrate free choice and to produce the incongruous result found in this case. Enforcement of the Board's order is denied.
32
DENIED.
1
The Administrative Law Judge found the following labor organizations to be involved in this dispute: the Broward County Carpenters District Council; the Palm Beach County Carpenters District Council and the Carpenters District Council of Miami, Florida and Vicinity
2
The master agreement by its terms was effective from April 1, 1972, to March 31, 1975. A written extension of the master agreement between the unions and the employer association contained the effective dates from April 1, 1975, to March 31, 1976
3
Cohen testified that he met with union officials on April 6 and 26, May 21, June 30 and July 1, 1976, and was told that the union would sign no contract other than the one negotiated with the multi-employer unit. Union officials denied the April 6 meeting and disavowed the statements attributed to them at the later meetings
4
The new agreement contained a "most favored nations" clause that provided that, if the union subsequently negotiated more favorable terms with another employer, those terms would also benefit the signatory employers. Obviously, the union would be reluctant to negotiate a separate contract with another employer and, even if a new contract should be made, it would not agree to better terms than in the first contract
5
The wage rates remained the same for the journeymen and apprentice carpenters who remained employed by SAC after March 31. The reduced wage rate was only applied to the new employees and to other classified employees who began doing some carpentry duties as the result of an overall employee declassification
6
The Board's order reads March 31, 1977. We presume that this is a typographical error, because the union's status on that date is immaterial and a finding of majority status on that date is not supported by the record
7
SAC Constr. Co., 235 N.L.R.B. No. 171, slip op. at 2 n. 2 (Apr. 28, 1978)
8
Prior to March 31, 1976, SAC classified employees as laborers, operating engineers and ironworkers, along with journeymen and apprentice carpenters. The three former classifications had separate collective bargaining agreements with their respective unions, and these agreements also expired on March 31, 1976
9
Respondent SAC argues that, because the contract involved here is a pre-hire agreement, there is no presumption of majority status under the doctrine of Dee Cee Floor Covering, 97 L.R.R.M. 1072, 1073 (1977). This argument ignores the 100 percent support of unit employees for the union as of March 31, 1976. Once majority support is gained, "the pre-hire agreement attains the status of a collective-bargaining agreement executed by the employer with a union representing a majority of the employees in the unit." NLRB v. Local Union No. 103, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978)
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23 N.J. Super. 143 (1952)
92 A.2d 641
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN PAYNE, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted November 17, 1952.
Decided November 21, 1952.
*144 Before Judges McGEEHAN, BIGELOW and JAYNE.
Mr. John Payne, appellant pro se.
Mr. Edward Gaulkin, Essex County Prosecutor (Mr. C. William Caruso, Legal Assistant Prosecutor, of counsel and on the brief), for respondent.
PER CURIAM.
The defendant John Payne was indicted, tried and convicted for the crime of breaking and entering with intent to commit rape, and also as a second offender; and on May 12, 1948, he was sentenced to State Prison for a term of not less than 12 nor more than 24 years. In 1950 he made application for a writ of habeas corpus, based on a contention that R.S. 2:103-7, as amended by L. 1940, c. 219, § 1 (the "Habitual Criminal" statute), under which he was sentenced, is unconstitutional because it violates the due process clause and the equal protection of the law provision of the 14th Amendment to the Federal Constitution; the Mercer County Court denied the application, and we affirmed. State v. Payne, 17 N.J. Super. 561 (App. Div. 1951). On that appeal Payne, for the first time, advanced the contention that the sentence imposed upon him was illegal because the maximum legal sentence which could be imposed for the crime for which he was convicted was 14 years. Following a suggestion made by us, Payne made an application to the trial court, under Rule 2:7-13, for the correction of his sentence on the ground that it was illegal. On December 21, 1951, the trial court ordered the sentence theretofore imposed upon this defendant corrected to provide: "the defendant be imprisoned in the State Prison of this State for a minimum term of twelve years and a maximum term of fourteen years * * *; this sentence to *145 commence as of May 12, 1948, the date defendant was originally sentenced." In spite of the fact that it is conceded, as it must be, that the sentence as corrected on December 21, 1951 is a legal sentence for the crime for which the defendant was indicted, tried and convicted, the defendant made another application to the trial court "for correction and reduction of sentence." The trial court denied this application on May 1, 1952, and the defendant appeals from this denial.
The entire argument now advanced by the defendant is based on the premise that he never was sentenced at any time for the crime for which he was indicted, tried and convicted. The premise is false. Because the original sentence imposed was for a maximum term of 24 years, and such a maximum term would have been a legal sentence for the crime of assault with intent to commit rape (R.S. 2:110-2), the defendant now argues that the trial court, on May 12, 1948, "apparently" sentenced him for that crime rather than the crime for which he was convicted. Aside from the fact that there is nothing in the record to support the fact relied on, the transcript of the minutes of the Essex County Court of Quarter Sessions (included in the defendant's appendix) sets forth that the sentence imposed on May 12, 1948 was for the crime for which he had been convicted; namely, breaking and entering with intent to commit rape. Cf. State v. Noel, 102 N.J.L. 659 (E. & A. 1926); Wasserman v. State, 103 N.J.L. 128 (E. & A. 1926). Further, when the defendant made his first application to the trial court for the correction of sentence, he represented that the sentence imposed on May 12, 1948, was for the crime of breaking and entering with intent to commit rape; and the trial court acted thereon in reducing the maximum sentence from 24 years to 14 years in order to bring the maximum sentence imposed within the legal limits permitted for the crime for which he was actually convicted and sentenced.
Judgment affirmed.
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598 F.2d 869
Julia FABULA, Individually and on behalf of all otherssimilarly situated and Anna Arnold, by herGuardian, Mami Younger, and Mary M.Burns, Laura H. Maggitti, Appellants,v.Charles R. BUCK, Jr., in his capacity as Secretary of theDepartment of Health and Mental Hygiene, State ofMaryland, Appellee.
No. 79-1011.
United States Court of Appeals,Fourth Circuit.
Argued March 13, 1979.Decided May 21, 1979.
Anne K. Pecora, Baltimore, Md., Legal Services to the Elderly, Waxter Center for Senior Citizens, James J. Lyko, Baltimore, Md. (Dennis M. Sweeney, Baltimore, Md., Administrative Law Center, Legal Aid Bureau, Inc., on brief), for appellants.
Stephen J. Sfekas, Asst. Atty. Gen., Baltimore, Md. (Stephen H. Sachs, Atty. Gen., Baltimore, Md., on brief), for appellee.
Before WINTER and HALL, Circuit Judges, and YOUNG,* District Judge.
K. K. HALL, Circuit Judge:
1
Plaintiffs in this class action represent aged, blind, or disabled Maryland residents who are considered "medically needy" because their incomes, while high enough to make them ineligible for Supplemental Security Income (SSI) benefits,1 are insufficient to meet the costs of necessary medical services. They challenge a state regulation, applicable to them but not to SSI recipients, under which they were denied Medicaid benefits because they had transferred property for the purpose of receiving Medicaid benefits or circumventing the state's recovery procedures. The district court upheld the challenged regulation, ruling that it comports both with constitutional guaranties of due process and equal protection and with the applicable requirements of the Social Security Act. In this appeal, plaintiffs argue only that the regulation, in imposing a more restrictive Medicaid eligibility requirement on them than on SSI recipients, conflicts with Title XIX of the Social Security Act. We agree, and accordingly REVERSE the judgment of the district court and REMAND for entry of an appropriate order enjoining enforcement of the regulation.
I.
2
The State of Maryland has voluntarily elected to participate in Medicaid, a cooperative federal-state program established by Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396k, and to provide payment for medical services for two groups of individuals: those who are eligible for financial assistance through state or federal welfare programs including SSI (the "categorically needy"), and those whose incomes or resources, while exceeding the eligibility requirements for those welfare programs, are insufficient to pay for needed medical care (the "medically needy"). By its participation in the Medicaid program, Maryland receives substantial federal funds and, in turn, agrees to comply with the program requirements contained in the Social Security Act and in regulations promulgated by the Secretary of Health, Education and Welfare (HEW).2
3
The Department of Health and Mental Hygiene of the State of Maryland, as the agency responsible for administering the state's Medicaid program, has promulgated regulations which, Inter alia, establish eligibility requirements for the medically needy program. Under the regulations governing assets, an individual is eligible for medical assistance only if his assets are valued at $2500 or less.3 Code of Maryland Regulations (COMAR) 10.09.01.10(F). Certain types of property, including the individual's home and income-producing real property, are not counted in determining whether the individual's assets are within this $2500 limitation. COMAR 10.09.01.10(B). Although the value of these assets thus does not affect Medicaid eligibility, the property is potentially subject to provisions whereby the state, under certain circumstances,4 may recover from the estate of a deceased Medicaid recipient the cost of medical assistance benefits it has provided. COMAR 10.09.01.17(C).
4
A further provision of the assets regulation, and the subject of plaintiffs' challenge, provides that a transfer of assets will, under certain conditions, render an individual ineligible for Medicaid benefits for a period not exceeding three years:
5
D. Transfer of Assets.
6
(1) An applicant who assigns or transfers assets, including those (which would be excluded in determining financial eligibility,) with the intent of becoming eligible for Medical Assistance or to circumvent the Program's recovery procedures during the 3 years before filing application is ineligible if the transfer results in a loss of a resource which would have been available to meet medical expenses or in the loss of a potential source of recovery . . .
7
(2) Assets transferred by a recipient, while receiving Medical Assistance, for the purpose of continuing to receive assistance or to circumvent recovery procedures, and without the consent of the local department of social services, are considered an existing asset affecting current and continued eligibility for a period not to exceed 3 years.
8
(3) The unreported transfer of assets for the purpose of circumventing the provision of § D(1) and (2), above, will result in the recipient's ineligibility . . . COMAR 10.09.01.10(D).
II.
9
Plaintiffs Julia Fabula, Anna Arnold and Mary Bruns, aged 74, 80 and 84, respectively, would be eligible for SSI benefits except for their incomes. Because they required medical treatment which they could not afford, they applied for medically needy benefits under the Maryland Medicaid program.5 Within three years prior to applying for benefits, each woman had transferred to relatives all or part of her interest in her home, an asset not counted in determining financial eligibility for benefits, but potentially subject to the state's recovery from her estate. Because of these transfers, each was denied Medicaid benefits pursuant to the Maryland transfer of assets regulation.
10
Plaintiff Laura Maggitti, aged 79, had been receiving medically needy benefits for several years because her $286 monthly income was insufficient to pay for the medical care she required. When she later transferred to her children part of her interest in income-producing property, also excluded in determining financial eligibility but subject to the state's recovery procedures, she was notified that under the state regulation she was no longer eligible for benefits.
11
Plaintiffs then brought this class action in district court on behalf of all aged, blind or disabled Maryland residents who have been or will be denied Medicaid benefits because they transferred assets in a manner proscribed by the state regulation.6 They sought declaratory and injunctive relief, claiming that the regulation denies them due process and equal protection, and that it conflicts with Title XIX of the Social Security Act by imposing a more stringent eligibility requirement on the medically needy than on SSI recipients.7 The district court rejected all of plaintiffs' contentions but enjoined defendant, the Secretary of the state's Department of Health and Mental Hygiene, from denying benefits to the named plaintiffs on the basis of the transfers, pending a final judgment by this court.
12
Plaintiffs do not seek review of the district court's rejection of their constitutional claims. This appeal concerns the sole question of whether the regulation is prohibited under the terms of the Social Security Act.
III.
13
The basis of plaintiffs' argument is the provision of the Social Security Act, 42 U.S.C. § 1396a(a)(10)(C)(i), which requires states such as Maryland which have chosen to include the medically needy in their Medicaid plans to
14
mak(e) medical assistance available to all individuals who would, except for income and resources, be eligible for . . . supplemental security income (SSI) benefits . . . and who have insufficient . . . income and resources to meet the costs of necessary medical and remedial care and services.
15
The corresponding regulation promulgated by the Secretary of HEW provides that a state "must not use requirements for determining eligibility for optional coverage groups (the medically needy) that are . . . for aged, blind or disabled individuals, more restrictive than those used under SSI." 42 C.F.R. § 435.401(c). In another context,8 HEW has amplified its interpretation of the statutory provision, stating that it
16
means that while a state might use more generous maintenance amounts in determining financial eligibility (i. e., medically needy levels . . . , disregards or asset exemptions) all other SSI eligibility criteria are to be used . . . (A)ll aged, blind and disabled persons . . . must have their eligibility determined using all SSI eligibility rules except for and only except for higher dollar amounts for income and resource eligibility levels. 42 Fed.Reg. 2685 (1977).
17
The Social Security Act expressly allows an applicant for SSI benefits, whose assets exceed that program's eligibility limits, to dispose of the excess assets in order to become eligible. 42 U.S.C. § 1382b(b). The individual is entitled to receive conditional SSI payments pending the disposal,9 Id.; 20 C.F.R. §§ 416.1240-.1244, and during this period the state must provide Medicaid benefits to him. 42 C.F.R. § 435.120(b). A transfer of assets Prior to application for SSI has no effect on eligibility for benefits, even if retention of the property would have made the individual's assets exceed the eligibility limit. Social Security Claims Manual § 12507. A transfer made by an individual who is already receiving benefits generally does not affect eligibility if the individual's countable resources were within the applicable limit before the transfer. Id. § 12508.
18
Because of the preceding provisions, HEW officials have ruled, on at least three separate occasions, that state transfer of asset prohibitions similar to Maryland's are invalid because they impose more restrictive eligibility criteria on the medically needy than on SSI applicants, in violation of 42 U.S.C. §§ 1396a(a)(10)(C)(i).10 We believe that these administrative interpretations are reasonable and consistent with the statute, and are entitled to be followed by the courts.11 Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).
19
While we sympathize with Maryland's desire to restrict its medical assistance benefits to those most in need, "a State's interest in preserving the fiscal integrity of its welfare program by economically allocating limited . . . resources may not be protected by the device of adopting eligibility requirements restricting the class of (individuals) made eligible by federal standards." Townsend v. Swank, 404 U.S. 282, 291, 92 S.Ct. 502, 508, 30 L.Ed.2d 448 (1971).
20
The state argues, however, that the transfer regulation is not a substantive eligibility requirement, but simply a "collateral restriction to eliminate fraudulent practices," which applies only where a transfer was made with the intent of becoming eligible for assistance or circumventing the state's recovery procedures.12 The district court accepted this analysis and found no express or implied restriction in the federal statute or regulations on the state's right to adopt such a "procedural regulation." We disagree.
21
We believe that the regulation is properly considered an eligibility requirement. Cf. Lavine v. Milne 424 U.S. 577, 96 S.Ct. 1010, 47 L.Ed.2d 249 (1976) (state statute disqualifying home relief applicant who, with intent of qualifying for assistance, voluntarily terminates employment, is a "substantive requirement for eligibility," Id. at 586, 96 S.Ct. 1010; burden is properly placed on applicant to prove, as "an essential element of eligibility," the absence of "the impermissible benefit-seeking motive." Id. at 584, 96 S.Ct. 1010.)
22
Even if we were to accept the state's semantic distinction, we would still hold the regulation invalid. First, we question how the transfers made by plaintiffs, which would be expressly permitted under SSI guidelines, can be fraudulent acts under the Medicaid program simply because they are performed by the medically needy rather than by a SSI recipient.13 Further, the regulation imposes a three-year suspension from benefits upon an administrative finding of culpability. It thereby conflicts with the Medicaid fraud provisions of the Social Security Act, which permit states to suspend an individual's eligibility only after he has been convicted of fraud in a criminal proceeding, and even then limits the period of such suspension to a maximum of one year. 42 U.S.C. § 1396h(a).
IV.
23
We hold that the Maryland transfer of assets regulation, COMAR 10.09.01.10(D), conflicts with the provisions of the Social Security Act and may not be enforced so long as the state continues to accept federal funds under that Act. Townsend v. Swank, 404 U.S. at 292, 92 S.Ct. 502 (Burger, C. J., concurring). This case is remanded to the district court for entry of an appropriate order enjoining enforcement of the regulation, with provisions for notice to members of the plaintiff classes apprising them of this decision and of any administrative procedures available to them under state law by which they may receive a determination of eligibility for retroactive benefits. Quern v. Jordan, --- U.S. ----, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). The district court shall determine the method of notice which is best calculated to reach the aged, blind and disabled class members without imposing an unreasonable burden on the state.
24
REVERSED AND REMANDED.
*
Honorable Joseph H. Young, United States District Judge for the District of Maryland, at Baltimore, sitting by designation
1
The SSI program, established under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c, provides federal financial assistance to eligible aged, blind and disabled persons
2
States are not required to participate in the Medicaid program, but a state choosing to do so must submit a medical assistance plan, in compliance with the various federal requirements, for approval by the Secretary of HEW. 42 U.S.C. §§ 1396, 1396a. Participating states are required, at a minimum, to provide medical assistance for the categorically needy and may, at their option, also provide benefits for the medically needy. 42 U.S.C. § 1396a(a) (10). Maryland has chosen to include both groups in its Medicaid program
3
Assets include cash savings, bank accounts, stocks, bonds, the cash value of life insurance, mortgages, real property and personal property. COMAR 10.09.01.10(A)
4
Recovery is limited to the value of benefits paid to a recipient aged 65 or over, and may not be effected if there is a surviving spouse or a disabled or minor child. 42 U.S.C. § 1396a(a)(18)
5
Each woman requires nursing home care which costs $700-$1000 per month. Fabula receives a total monthly income of $266; Arnold receives $192; Bruns receives $211
6
Two classes were certified by the district court: All aged, blind or disabled Maryland residents who transferred assets which are Excluded from consideration in determining eligibility and (1) whose applications for Medicaid were or will be denied because of the regulation (represented by Fabula, Arnold and Bruns) or (2) who had been receiving Medicaid benefits and were or will be declared ineligible due to the transfer regulation (represented by Maggitti.) Although the classes certified thus do not include individuals who transferred property which would be counted as an asset in determining financial eligibility, the arguments of both parties assume that this distinction is irrelevant to the issue of the validity of the regulation and our decision does not in any way depend on the distinction
7
The transfer of assets regulation applies only to the medically needy and no similar restriction is imposed on SSI applicants. Compare COMAR 10.09.01.06(A) With COMAR 10.09.01.02(A)(3)
8
The statement appears in the preamble to HEW regulations which forbid states to deem a spouse's income to be available to a Medicaid applicant in situations where the income would not be considered available under SSI guidelines
9
The applicant must agree to repay these conditional SSI benefits from the proceeds of the disposal, to the extent that the net proceeds plus the individual's other assets exceed the SSI eligibility limit. 20 C.F.R. §§ 416.1240, 416.1244(c). The provisions for conditional benefits apply where the individual's countable assets are valued at up to two times the amount of the applicable eligibility limit. 20 C.F.R. § 416.1240(a)
10
The rulings are in the form of letters from HEW Regional Medical Directors to state officials in New York and Michigan, and to a legal services program in California. Although some courts have upheld transfer of asset regulations similar to Maryland's, Rinefierd v. Blum, 66 A.D.2d 351, 412 N.Y.S.2d 526 (1979); Lerner v. Division of Family Services, 70 Wis.2d 670, 235 N.W.2d 478 (1975); But see Unida v. Walsh, 440 F.Supp. 1151 (E.D.Mo.1977); Buckner v. Maher, 424 F.Supp. 366 (D.Conn.1976), Aff'd 434 U.S. 898, 98 S.Ct. 290, 54 L.Ed.2d 184 (1977); Owens v. Roberts, 377 F.Supp. 45 (M.D.Fla.1974), none of these cases involved the issue presented here, i. e., whether 42 U.S.C. § 1396a(a)(10)(C)(i) forbids the application of such a restriction to the aged, blind or disabled
11
Maryland argues that a contrary HEW interpretation is evidenced by that agency's annual approval, since 1969, of the state's Medicaid plan containing the restriction on asset transfers. We note first that the relevant statutory provision, 42 U.S.C. § 1396a(a)(10)(C)(i), was not adopted until 1973, shortly after the SSI program was established. As for approval of the state plan subsequent to 1973, "HEW's approval of (a state's) medical assistance plan . . . is not more than slightly persuasive when, as here, the so-called approval does not appear to have followed explicit attention to the question now confronted." Aitchison v. Berger, 404 F.Supp. 1137, 1148 (S.D.N.Y.1975), Aff'd 538 F.2d 307 (2nd Cir. 1976), Cert. den. 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976). That slight persuasiveness becomes even more ethereal in the face of the agency's clear statements to the contrary
12
Plaintiffs do not challenge the state's methods for determining whether such intent existed. Counsel for plaintiffs stipulated that, assuming the women were competent at the time of the transfers, the transfers were made with the proscribed intent. Since retention of the assets would not have affected plaintiffs' eligibility for benefits, their intent presumably was to avoid the recovery provisions
13
As we have noted, Supra n.7, the state does not seek to penalize similar transfers made by SSI recipients, and it seems clear that it could not do so; the Social Security Act requires that all SSI recipients be included in the state's Medicaid program and the transfers would not affect SSI eligibility. 42 U.S.C. §§ 1382b(b), 1396a(a)(10); Social Security Claims Manual §§ 12507, 12508
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4701
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE SIMMONS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:08-cr-00018-RAJ-1)
Submitted: February 25, 2010 Decided: March 17, 2010
Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark H. Bodner, Fairfax, Virginia, for Appellant. Dana James
Boente, Assistant United States Attorney, Alexandria, Virginia,
Scott W. Putney, Assistant United States Attorney, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwayne Simmons appeals a district court’s order
finding he violated the conditions of probation and modifying
said conditions. Simmons’ counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating there were no
meritorious arguments for review, but raising for the court’s
consideration whether the district court erred in finding
Simmons’ violations were intentional and whether the court erred
in imposing a six-month period of home confinement. Simmons was
notified of the opportunity to file a pro se supplemental brief,
but did not do so. The Government did not file a brief.
If a defendant violates a condition of probation, the
district court, after a hearing, may modify the terms of
probation at any point prior to the expiration or termination of
probation. 18 U.S.C. § 3565(a) (2006); 18 U.S.C.A. § 3563(c)
(West 2000 & Supp. 2009). The modifications are reviewed for
abuse of discretion. See United States v. Johnson, 892 F.2d
369, 371-72 (4th Cir. 1989). The court must be reasonably
satisfied that the defendant violated a condition of probation.
United States v. Cates, 402 F.2d 473, 474 (4th Cir. 1968).
Under 18 U.S.C.A. § 3563(b), a court may, among other
modifications, order a defendant to make restitution, to be
employed and to remain at home except for work hours and that
2
such compliance may be monitored with an electronic monitoring
device.
We find no error in the district court’s finding that
Simmons violated his probation. We also find the court did not
abuse its discretion in modifying the conditions of probation.
In accordance with Anders, we have reviewed the entire record
for any meritorious issues and have found none. Therefore, we
affirm the district court’s order. We deny without prejudice
counsel’s motion to withdraw. This court requires counsel
inform Simmons, in writing, of the right to petition the Supreme
Court of the United States for further review. If Simmons
requests that a petition be filed, but counsel believes such a
petition would be frivolous, then counsel may renew his motion
for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on Simmons. 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.
AFFIRMED
3
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361 F.Supp.2d 797 (2005)
SOLAIA TECHNOLOGY LLC, Plaintiff,
v.
ARVINMERITOR, INC., Defendant,
v.
Rockwell Automation Inc., Third-Party Defendant-Cross-Claim Plaintiff,
v.
Solaia Technology LLC, Cross-Claim Defendant-Counterclaim-Plaintiff,
v.
Rockwell Automation Inc., Counterclaim-Defendant.
No. 02C4704.
United States District Court, N.D. Illinois, Eastern Division.
March 28, 2005.
*798 *799 Raymond P. Niro, Christopher J. Lee, Patrick Francis Solon, Richard Burns Megley, Jr., Niro, Scavone, Haller & Niro, Ltd., Chicago, IL, Thomas L. Stoll, Fish & Neave, Washington, DC, for Plaintiff.
V. Bryan Medlock, Jr., James A. Jorgensen, Sidley & Austin, Dallas, TX, Anthony Nimmo, Richard Allen Schnurr, Ice Miller, Constantine L. Trela, Hugh Allen Abrams, Thomas David Rein, Sidley Austin Brown & Wood LLP, Michael Francis Harte, Latham & Watkins LLP, Michael K. Lindsey, Howrey, Simon, Arnold & White, Todd Lawrence McLawhorn, Howrey Simon Arnold & White, LLP, Chicago, IL, Danielle R. Oddo, Jennifer Lee Dzwonczyk, Joseph P. Lavelle, Vivian Kuo, Howrey, Simon, Arnold & White, LLP, Washington, DC, for Defendant.
MEMORANDUM OPINION AND ORDER
FILIP, District Judge.
Defendant ArvinMeritor, Inc. ("ArvinMeritor") moves for summary judgment on its non-infringement claim against plaintiff Solaia Technology LLC ("Solaia"). (D.E. 569.)[1] ArvinMeritor also has moved to strike certain portions of the declaration of Solaia's purported expert witness, Walter Nuschke, offered by Solaia in response to ArvinMeritor's motion as to non-infringement. (D.E. 629.) For the reasons stated *800 below, the Court grants ArvinMeritor's motion.
BACKGROUND
I. '318 Patent
Solaia is the assignee of United States Patent No. 5,038,318 ("the '318 patent"). (D.E. 575 ("Local Rule 56.1(a)(3) Statement of Facts by ArvinMeritor In Support of ArvinMeritor's Motion for Summary Judgment of Non-Infringement") ("ArvinMeritor's SF") ¶ 1.) The patent, titled "Device for Communicating Real Time Data Between a Programmable Logic Controller and a Program Operating In a Central Controller," discloses a system of programmable logic controllers[2] that "direct[s] automatic operation of such as machine tools, and process equipment to manufacture goods," and that "furnish [es] true real-time control of such programmable logic controllers (PLCs) through a general purpose spreadsheet program operating in a personal computer." ('318 patent, col. 1, lines 9-16.) The patentee acknowledged that prior to the invention, PLCs had been linked together in networks to coordinate the operation of a entire manufacturing system or processing plant. (Id., col. 1, line 67-col. 2, line 1.) In these previous systems, however, any manufacturing changes desired by the operator of the manufacturing equipment had to be implemented by reprogramming the individual PLC. (Id., col. 2, lines 30-39.) "Developing customized programs that directly enabled an operator at a personal computer to supervise and actually control the automatic operation of the PLCs quickly becomes expensive due to the large amount of highly skilled labor." (Id., col. 2, lines 40-44.) In the programs then available to provide this kind of "real time" exchange of information, a user would provide a circuit card interface between his process or instrument and the personal computer used to supervise it. (Id., col. 2, lines 64-66.) The user would then write a "device driver program for the personal computer that facilitates the operating system program to communicate with the circuit card interface." (Id., col. 2, line 66 col. 3, line 1.) The user would then install a "commercially available information acquisition program to transfer desired information between the operating system program and popular and commercially available spreadsheet, data base and analysis programs," which would enable a user to control the manufacturing process from the spreadsheet, data base or analysis program. (Id., col. 3, lines 1-8.)
The patent discloses a program "that operates through a general purpose spreadsheet program to effect information transfers to and from the addressable registers of a PLC and assigned cells of a displayed spreadsheet directly from the spreadsheet program without transfers through the operating system program or a specially written device driver program." ('318 patent, col. 3, lines 35-42.) The disclosed systems includes a network of PLCs that can receive and transmit messages to monitor and control the operation of the machine tool or processing station; a personal computer, including an interface card; a general purpose spreadsheet program; and an "add-in" program that adds communication functions to the spreadsheet program. (Id., col. 3, lines 20-68.) This add-in program allows a spreadsheet program to move data directly to and from the interface card in the computer (id., col. 5, lines 1-4), whereas such program normally only would be able to effect movement of information between files of data *801 included in the memory and the cells of the spreadsheet (id., col. 4, lines 61-64).
Solaia sued ArvinMeritor and numerous other defendants, alleging that their manufacturing systems infringe the '318 patent. Two claims are at issue in this case. Claim 11 recites, in pertinent part:
11. A system for operating equipment by an operator, the system comprising:
A. a plurality of programmable logic controllers coupled to the equipment, said programmable logic controllers each transmitting messages on a network indicating the condition of said equipment;
B. a computer having operably interconnected visual display, keyboard, memory, and central processor ...
C. interface means electrically connected between said computer and said network for receiving messages from each of said programmable logic controllers ...
D. spreadsheet instruction means contained in said memory for effecting a general purpose spreadsheet program in said computer, said spreadsheet instruction means providing cells into which said operator can insert information and menu commands selectable by said operator, said spreadsheet means normally only being able to effect movement of information between files of data contained in said memory and said cells; and
E. add-in instruction means contained in said memory for presenting add-in menu commands and interrupt selected instructions operating through said spreadsheet instruction means for said interrupt selected instructions to move sequentially received messages from said message registers to respective assigned address locations in said memory upon occurrence of each interrupt signal, and for said add-in menu commands to move said messages from said assigned address locations in said memory to respective assigned cells in said spreadsheet instruction means so that messages from said programmable logic controllers indicating the condition of said equipment can be saved and moved directly to said cells.
('318 patent, col. 16, line 44-col. 17, line 22 (emphases added).) Claim 12 recites, in pertinent part:
12. A device for transmitting and receiving electrical signals forming messages to and from respective addressable registers located in respective addressable programmable logic controllers that are connected together over a communications network, said device comprising:
A. process means connected to said communications network for moving said electrical signals forming messages to and from respective registers located in said processor means...
B. spreadsheet means contained in said processor means, said spreadsheet means presenting a spreadsheet of cells into which information can be inserted to facilitate executing actions through said spreadsheet means, said spreadsheet means being capable of accessing said registers in said processor means through said actions;
C. add-in program means contained in said processor means for inserting in at least one cell information including the address of a particular register in a particular programmable logic controller to which a message is to be sent and indicating the content of said message; and
D. add-in program means contained in said processor means for executing an action in said spreadsheet means to cause said spreadsheet means to *802 transmit said message from said cell....
(Id., col. 17, lines 23-56 (emphases added).)
II. ArvinMeritor's Accused Systems[3]
ArvinMeritor uses three systems in its manufacturing plants that Solaia alleges infringe the '318 patent. Two of these systems, the "Flex" and "PST" assembly lines ("Flex/PST"), use essentially identical automation equipment, and the parties have addressed them together for the purposes of this lawsuit. The third system is the "Rabofsky System," apparently denominated for the German vendor that supplied the system to ArvinMeritor.
A. Flex/PST Systems
The Flex/PST systems are used in the production and testing of gas springs[4] in ArvinMeritor's plant in Marion, South Carolina. (ArvinMeritor's SF ¶ 16.) These systems use a computer program running on a personal computer to allow an operator to load a "recipe" for a particular part into PLCs connected via a network that, in turn, configure equipment used to assemble or test the springs. (Id. ¶¶ 18-20, 25, 26.) The personal computer runs a Visual Basic ("VB") program and a separate communication program called RSLinx (apparently licensed to ArvinMeritor by Rockwell). (Id. ¶ 18.) The personal computers used in the Flex/PST systems have a virtual keyboard that allows a user to enter commands and instructions, as well as a visual display. (Id. ¶ 22.) The personal computers in each system use a Rockwell 1784-KTXD network interface card. (Id. ¶ 23.) The personal computers run the *803 Windows 2000 operating system. (Id. ¶ 27; Solaia's Resp. ¶ 27.)
To use the Flex/PST system, an operator enters a part number in the VB program to identify the part to be manufactured on the line. (ArvinMeritor's SF ¶ 25.) The VB program will then retrieve and display the relevant specifications for that part from a database.[5] (Id.) The operator then touches a button on the screen to send the recipe for the part over the network to the PLCs. (Id. ¶ 26.) Data is transferred from the VB program to RSLinx, then to the interface card. (Solaia Resp. ¶ 29.) RSLinx contains device drivers in its code that enable the data to move to the interface card. (ArvinMeritor's SF ¶ 30; Solaia's Resp. ¶¶ 29, 30.) The Flex/PST systems do not contain the Lotus 1-2-3 spreadsheet program. (ArvinMeritor's SF ¶ 35.)
In the Flex/PST systems, the PLCs do not monitor any information concerning the equipment to which they are attached.[6] (ArvinMeritor's SF ¶ 32.) The VB programs in the Flex/PST systems check to determine if the recipe data was properly received by the PLC by reading a status bit (a "1" or a "0") in a specific register of the PLC.[7] (Id. ¶ 33.) The user sees a message that says, for example, "Recipe Loaded to PLC Successfully." (Id.)
In the Flex/PST systems, a user does not input the address of a PLC register into the display program. (ArvinMeritor's SF ¶ 38.) PLC addresses are contained in a table in RSLinx and are given common names, called "tags."[8] (Solaia Resp. ¶ 38.) The values in the VB program are put into a string to be sent to RSLinx, which gives a particular PLC register address to the value. (Id.)
B. Rabofsky System
The Rabofsky system is used at an ArvinMeritor plant in Fayetteville, North Carolina, that makes cabin air filters for automobiles. (ArvinMeritor's SF ¶ 39.) The Rabofsky system uses three PLCs that are networked to a Siemens touch-screen computer containing a custom Simatic Pro Tool application and a communications program for communicating with the PLCs. (Id. ¶ 41; Solaia's Resp. ¶ 41.) The Siemens computer runs the Windows 2000 Professional operating system, and the network interface card used in the computer is a Profibus CP5611. (ArvinMeritor's SF ¶¶ 43, 44.) ArvinMeritor *804 does not have the source code for the programs operating on the Siemens computer used in the Rabofsky system. (Id. ¶ 47.)
When the Rabofsky system is powered on, a main menu is presented to the user to allow the user to view data on various parts of the system by touching different areas of the screen. (ArvinMeritor's SF ¶ 48.) To manufacture a particular cabin air filter on the line, the operator selects the "Pleating Program" box on the main screen, which opens another screen where the operator can enter the name of a particular pleating program or select one from a pull-down menu. (Id. ¶ 49.) When a program is selected, the PLC values for that program appear in text boxes on the screen. (Id.) The operator then returns to the main menu, where he can start the machine by selecting the "Central Start" button. (Id.) In the Rabofsky system, a user does not enter the address of a PLC register into the display program. (ArvinMeritor's SF ¶ 51.)
DISCUSSION
III. Motion to Strike
ArvinMeritor has moved to strike certain portions of the declaration of Walter Nuschke, Solaia's purported expert, offered by Solaia to support its response to ArvinMeritor's motion for summary judgment ("Nuschke Declaration" or "the Declaration"). (See D.E. 629 ("Motion to Strike"); ArvinMeritor's Strike Ex. 1.) ArvinMeritor offers several reasons for its conclusion that striking portions of the Nuschke Declaration is proper: (1) the Declaration is untimely; (2) the Declaration is a "sham affidavit" because large segments are identical to language in Solaia's brief; (3) the Declaration contains newly disclosed opinions, certain of which contradict previously stated opinions; and (4) certain opinions in the Declaration are unreliable under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny. The Declaration is 52 pages long and consists of various statements of background information and opinion, including lengthy quotations of testimony by other witnesses. For the reasons stated below, the Court grants the Motion to Strike in part and denies it in part.
A. Drafting By Counsel
ArvinMeritor challenges large portions of the Nuschke Declaration on the grounds that it was drafted by counsel and merely signed by Nuschke. (Motion to Strike at 7-9.) The Court exercises its discretion and declines to strike the affidavit on these grounds. It is not at all clear that the authority cited by ArvinMeritor helps it in this particular context. ArvinMeritor cites several cases for the general proposition that mere regurgitation of a lawyer's arguments in an expert's affidavit is improper. See Manning v. Crockett, No. 95 C 3117, 1999 WL 342715, at *3 (N.D.Ill. May 18, 1999); EEOC v. BN Inc., 618 F.Supp. 1046, 1060 (N.D.Ill.1985); Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 396 (N.D.Cal.1991); Occulto v. Adamar of NJ, Inc., 125 F.R.D. 611, 616 (D.N.J.1989). The court in Occulto granted a motion to compel a party to produce a copy of the expert's report that had been produced by counsel which included the instructions, "PLEASE HAVE RE-TYPED ON YOUR OWN STATIONERY." Occulto, 125 F.R.D. at 617. The court expressed its concern over a report drafted by an attorney and signed by an expert, id. at 615-16, but it apparently considered such an error to go to the weight of the evidence rather than its admissibility, id. at 616 ("The weight accorded to an expert's opinion must vary in accordance with the expert's competence and knowledge; an *805 expert who can be shown to have adopted the attorney's opinion as his own stands less tall before the jury than an expert who has engaged in painstaking inquiry and analysis before arriving at an opinion."). The court in Intermedics, too, addressed discovery of communications between counsel and an expert witness. Intermedics, 139 F.R.D. at 385. It did not address whether an expert's report or declaration should be stricken. The Court in EEOC v. Burlington Northern made a single comment referencing an attorney's role in expert testimony: "[The opinions of two experts] remind this court that it has been patiently waiting for the day when it will hear an expert give an opinion that does not slavishly parrot the case theory of the lawyer who employs him." Id., 618 F.Supp. at 1060. This certainly does not support the notion that an attorney's influence on expert testimony makes it per se inadmissible.
The case cited by ArvinMeritor that is perhaps the most relevant is Manning. In Manning, the court addressed a motion to bar an expert's testimony based on the fact that the expert report almost mirrored the allegations in the plaintiff's complaint. Manning, 1999 WL 342715, at *1. The court looked to the provision of Federal Rule of Civil Procedure 26 that requires an expert's report to be "prepared and signed by the witness." Id. at *2. While noting that the rule does not prohibit a party's attorney from providing assistance to the expert, id., the court held that "ghost writing" by an attorney is impermissible, id. at *3. Importantly, however, the Court ultimately held that it could not "ascertain the level of [the expert's] involvement in the preparation of this report based solely on the comparison between the report and the complaint because it cannot determine who was responsible for each portion of the report," and the Court denied the motion. Id. at *4. Even if this Court were to find that Manning applied to affidavits prepared by experts in addition to the expert report, the Court finds that it, too, cannot ascertain the level of Nuschke's involvement from a mere comparison of his Declaration to Solaia's brief. "[T]he court cannot exclude the possibility that the [brief] was drawn from [Nuschke's] opinions rather than the other way around."[9]Id.
While the Court declines to strike any portion of the Nuschke Declaration on this ground, the Court reminds the parties Solaia, in particular that an expert's role in litigation proceedings is to give his opinions in order to clarify areas of the facts that are not easily ascertained by the trier of fact. A report or a declaration submitted by an expert should be drafted with that goal in mind. Reiteration of parties' arguments and substantial block quoting of the patent or another witness's deposition testimony are improper additions to an expert's opinion; these are properly reserved for the attorneys' legal briefs.
B. Timeliness
Federal Rule of Civil Procedure 26 governs discovery related to expert witnesses. That rule requires a party to submit a written report prepared and signed by that party's purported expert witness. Fed.R.Civ.P. 26(a)(2)(B). The report "shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor." Id. The timing of expert *806 disclosures, as other discovery, is set by the Court. Fed.R.Civ.P. 26(a)(2)(C). In this case, the Court ordered expert discovery by Solaia and ArvinMeritor to be completed by February 2004. (D.E. 533.) A party has an ongoing duty to supplement its disclosures, including testimony by an expert in both the expert's report and deposition, if "the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed.R.Civ.P. 26(e)(1). Supplementation of expert testimony must be disclosed no later than 30 days before trial, unless otherwise directed by the court. Id.; Fed. Civ. P. 26(a)(3). Rule 37 directs that a "party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) ... is not, unless such failure is harmless, permitted to use as evidence ... on a motion any witness or information not so disclosed." Fed.R.Civ.P. 37(c)(1).
ArvinMeritor argues that the Nuschke Declaration submitted with Solaia's response to summary judgment is untimely because it offers new opinions after the Court-ordered deadline for the close of expert discovery. Solaia argues, inter alia, that the Declaration should not be stricken as untimely because Rule 26 allows an expert to rebut an adversary's new expert,[10] and because Solaia apparently considers the Declaration a "supplemental report." Solaia's arguments are misguided. First, Rule 26 does allow a party's expert to submit a rebuttal report, but Solaia offers the Court no reason to believe that the Nuschke Declaration is such a report. The Court's deadline for the submission of rebuttal reports contemplated by the Rule December 23, 2003 had long passed by the June 2004 date of the Nuschke Declaration.
Second, Solaia's argument that it has offered the Declaration as a supplement to Nuschke's original report is, with all respect, disingenuous. Solaia has never indicated that it was supplementing Nuschke's report for reasons consistent with Rule 26 i.e. that it had learned that the information in Nuschke's report was incorrect or incomplete. See Coles v. Perry, 217 F.R.D. 1, 3 (D.D.C.2003) (striking late-filed report styled "supplemental opinion," noting that "Fed.R.Civ.P. 26(e) does not grant a license to supplement a previously filed expert report because a party wants to, but instead imposes an obligation to supplement the report when a party discovers the information it has disclosed is incomplete or incorrect"). It would appear that Nuschke's much expanded opinion was prompted solely by ArvinMeritor's summary judgment motion. Indeed, as ArvinMeritor points out, much of Nuschke's Declaration reads like a legal brief in that Nuschke often describes ArvinMeritor's summary judgment arguments then responds to them. This is not the proper role for supplementation of a report by an expert.
Thus, the Court must exclude the Declaration (specifically, the portions of the Declaration that constitute new opinions) from consideration unless Solaia has offered "substantial justification" for failing to offer the new opinions or the new opinions offered are harmless. See Fed. *807 R.Civ.P. 37(c)(1); accord Poulis-Minott v. Smith, 388 F.3d 354, 357-59 (1st Cir.2004) (affirming district court striking portions of late-disclosed expert affidavit that gave opinions not previously disclosed by expert in discovery); Salgado v. Gen. Motors Corp., 150 F.3d 735, 741, 743 (7th Cir.1998) (affirming district court's sanction of precluding expert witnesses from testifying at trial where the party never offered a satisfactory explanation for its failure to meet court-ordered deadlines); Baker v. Indian Prairie Community Unit, Sch. Dist. 204, No. 96 C 3927, 1999 WL 988799, at *1-3 (N.D.Ill. Oct.27, 1999) (striking new expert opinions offered after close of discovery stricken).
C. New or Contradictory Opinions
Much of ArvinMeritor's motion is devoted to its contention that portions of Nuschke's report should be stricken because they contain new opinions or opinions that contradict prior opinions in Nuschke's report or deposition. If the late-filed opinions are new, they must be stricken, as described above, unless Solaia offers a substantial justification for failing to disclose them earlier.[11] Likewise, a party may not defeat summary judgment by offering testimony that contradicts prior sworn testimony without explaining the contradiction or attempting to resolve the disparity. See Cleveland v. Policy Mgt. Sys., Corp., 526 U.S. 795, 806, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). Thus, the Court's first step is to determine whether the statements by Nuschke are new or contradictory opinions. To do this, the Court compared the statements identified by ArvinMeritor with the statements offered by Solaia as evidence that Nuschke had already offered that particular opinion.[12] Where the Court determined that the statement was new or contradictory, it then looked to whether Solaia offered a substantial justification for Nuschke's late disclosure or resolved the contradiction. For the reasons described below, the Court strikes the following paragraphs of the Nuschke Declaration: 4, 7, 8, 11, 24 (second sentence), 35-37, 38 (all but third sentence restating claim 11), 39-46, 57 (all but last part citing the Kehres's deposition testimony), 64, 65, 68, 72-76, 77 (second sentence), 78, 79 (last sentence), 80, 81 (all *808 but first sentence), 84 (all but the portion citing the Kehres's deposition testimony), 86, 88, 93, and 94.
The Court declines to strike Nuschke Declaration ¶ 3 because the substance of Nuschke's opinion, the level of ordinary skill in the art, was substantially indicated in his expert report, and that issue is not materially in dispute by the parties.
The Court strikes the first five sentences of paragraph 4 and paragraphs 7 and 8. Solaia argues that Nuschke had "addressed" specially written device drivers and Lotus 1-2-3 in his original and rebuttal reports. While this is true, Nuschke discussed these in a different context and did not express the opinions he gives in the Declaration. For example, Nuschke discussed Lotus 1-2-3 in the context of distinguishing the Welch testimony that Lotus could be combined with CAMM (Solaia Strike Ex. G (Nuschke Rebuttal Report) ¶¶ 23, 24, 27-29), but he did not express any opinion as to the relevance of the general usefulness of particular properties of Lotus (Nuschke Decl. ¶ 7). To the contrary, Nuschke discussed "specially written" device drivers, and his opinion as to the purpose of the patent in alleviating the need for the same (Solaia Strike Ex. H (Nuschke Report) ¶¶ 292-94), which is why the Court declines to strike the second half of paragraph 4 and paragraph 5. The Court could not find anything like the general musings about early manufacturing contained in the first part of paragraph 4 in any of the citations offered by Solaia, and the first five sentences of that paragraph are stricken. The Court declines to strike paragraph 6 as it is merely a restatement of the patent.
The Court strikes paragraph 11 of the Declaration. Solaia argues that this paragraph is a response to statements made in the Kehres Declaration and ArvinMeritor's brief, and that Nuschke had already discussed "tags" in his report. First, the section of the report that Solaia references is Nuschke's opinion regarding a Rockwell system, not the system that is at issue in this motion. (See Nuschke Report ¶ 23.) Second, that paragraph says nothing about the use of "tag" being simply new terminology to mean "spreadsheet." Considering the portions of Nuschke's testimony presented to the Court by Solaia, Nuschke had never before offered his opinion as to why he believes that a tag is the same thing as a cell in a spreadsheet. See generally Fed.R.Civ.P. 26(a)(2)(B) (expert report to contain "complete statement of all opinions to be expressed and the basis and reasons therefore"); Salgado, 150 F.3d at 742 n. 6 ("Expert reports must include `how' and `why' the expert reached a particular result, not merely the expert's conclusory opinions."). Nor is any information stated by Kehres new information to Solaia that would justify Nuschke's failure to give this opinion until this point in the proceedings. As of June 2003, Solaia had notice that ArvinMeritor planned to argue that a tag in ArvinMeritor's Visual Basic program was not the same as a cell in a general purpose spreadsheet. (See ArvinMeritor's Strike Reply Ex. 1 (ArvinMeritor's claim charts) at 13-14.) Thus, Solaia has failed to show that Nuschke did not have information he needed to make his opinion so as to potentially constitute a substantial justification for its late disclosure. The Court declines to strike paragraph 12 as this is just a description of each claim, pointing out what limitations are missing; this is not an opinion.
The Court declines to strike paragraphs 22, 23, and 25, which merely summarize ArvinMeritor's arguments, restate Judge Holderman's claim construction order, and restate deposition testimony, respectively. The Court also declines to strike the first sentence of paragraph 24 as Nuschke gave the same opinion in his original report. (Nuschke Report ¶ 165.) The Court *809 strikes the second and third sentences of paragraph 24 as improper opinion for an expert report. The lawyers will argue and the Court will determine whether ArvinMeritor's witnesses admitted or did not admit something. The Court declines to strike paragraph 26, which explains and refutes Kehres's testimony as to "polling" the register to see if the recipe was sent successfully. ArvinMeritor gives no reason for the Court to believe that Solaia would have had notice about this testimony prior to summary judgment, and Solaia therefore has substantial justification for offering Nuschke's new opinion at this time.
The Court strikes paragraphs 35 through 37. Solaia argues that this opinion is merely a longer explanation of what Nuschke stated in his original report at paragraphs 5 and 306, but the Court disagrees. The original report discusses the PLC-to-PC interconnection in distinguishing the Welch/original DDE specification, but it never does so on the basis of defining "directly" in the patent to distinguish "through" from "use." The new explanation of the PLC-to-PC interconnection contained in the Declaration constitutes a new opinion.
The Court strikes paragraphs 38 (all but third the sentence which merely restates claim 11) and 39 through 46. Solaia argues that these statements are responding to ArvinMeritor's arguments in its summary judgment motion, and that the statements are consistent with Nuschke's original report and deposition. Solaia only points the Court to paragraph 5 of Nuschke's original report to support its argument. Paragraph 5 is nothing more than a basic summary of Nuschke's opinions, and it does not contain anywhere near the detailed and effectively new opinions that Nuschke offers in these paragraphs of his Declaration. As the Court has already explained, an expert's report must contain not only his opinion but also his basis therefor. See Fed.R.Civ.P. 26(a)(2)(B); Salgado, 150 F.3d at 742 n. 6 ("If the expert's report contains only incomplete opinions, the court may choose to restrict the expert's testimony to those opinions alone."). The Court declines to strike paragraph 47, as it contains no greater detail regarding the comparison of a "specially written" device driver versus all device drivers than the statement made in paragraph 5.
The Court strikes paragraph 57, except for the portion that simply quotes Kehres's deposition. Solaia argues that this statement is a response to Kehres's statement. The statement is an elaboration by Nuschke on an admission that Solaia got Kehres to make during his deposition (see Solaia Strike Ex. 5 (Kehres Dep.) at 64); Nuschke is not refuting anything that Kehres said. Solaia has given no reason for the Court to believe that Nuschke was incapable of giving his opinion before Kehres's deposition as to the status of the data at the beginning versus the end of the communication process. Thus, Solaia has not offered a substantial justification for Nuschke's late opinion.
The Court strikes the second sentence of paragraph 77, the last sentence of paragraph 79, all but the first sentence of paragraph 81, and paragraphs 78 and 80 in their entirety. Solaia does not provide the Court with any statements in Nuschke's timely reports on which the Court can rely to conclude that Nuschke's opinions, including Nuschke's "test," are not new and untimely. Solaia again argues that Nuschke is responding to ArvinMeritor's summary judgment argument and to Kehres's admission that there is a version of Lotus 1-2-3 for Windows. These arguments do not constitute substantial justification for the late opinions. Kehres's "admission" is a fact that Nuschke could have (indeed, *810 perhaps should have) known, so Nuschke is not "responding" to Kehres in any meaningful way. In addition, ArvinMeritor has been arguing the difference between systems running in Windows and DOS since at least the June 2003 claim charts were submitted to the Judge Guzman.[13] (See ArvinMeritor's Strike Reply Ex. 1 (ArvinMeritor's claim charts) at 9, 16.)
The Court strikes paragraph 84 (except for the portion that only quotes Kehres's deposition) and paragraphs 86 and 88. Solaia directs the court to paragraph 173 of Nuschke's original report and argues that the statements in the Declaration merely support the original opinion and refute ArvinMeritor's summary judgment argument. Paragraph 173 defines a "general purpose spreadsheet" and explains why ArvinMeritor's Visual Basic program is one of them, but the paragraph does not make the argument that recycling the same code, i.e. using the same Visual Basic program for the Flex and the PST system, makes it "general purpose." That is a new opinion. The Court declines to strike paragraphs 85 and 87 because they do not constitute opinions.
The Court strikes paragraphs 93 and 94. Solaia points to paragraphs 261 and 262 of Nuschke's original report to demonstrate that these paragraphs are not new opinion. These paragraphs define "general purpose spreadsheet" and explain why Pro Tool is the same, i.e. because the cells relate to one another; the statements in the report do not, however, state the opinion that because Pro Tool can be used in so many different applications, it is "general purpose." Solaia has offered no justification for Nuschke's untimely failure to offer this opinion until this point.
The Court declines to strike paragraphs 104 through 122. ArvinMeritor's complaint as to this portion of the Declaration points to seven pages of the Declaration without specifying the particular portions it believes constitute new opinions. With this request, the Court agrees with Solaia that ArvinMeritor paints with too broad a brush. See Grady v. Ill. Bell Telephone Co., No. 94 C 3115, 1996 WL 473657 at *5 n. 5 (N.D.Ill. Aug.13, 1996) (quoting Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 579 (2d Cir.1969)) ("[W]here a motion to strike is `too general in that it [does] not specify which part of the ... affidavit should be stricken and why,' the motion need not be granted.") (alteration in original); 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2738 (3d ed.1998). A number of the statements challenged by ArvinMeritor do not constitute opinions of any kind which would be prejudicial to ArvinMeritor (see, e.g., Nuschke Decl. ¶¶ 105-106 (summarizing ArvinMeritor's arguments)), and the Court will not scour through the affidavit looking for new opinions without greater clarity provided by ArvinMeritor.
In addition to the statements discussed above that ArvinMeritor challenged as newly disclosed opinions, ArvinMeritor argues that certain portions of the Declaration constitute opinions contradictory to opinions Nuschke gave earlier in the proceedings. "It is by now well-settled that a party may not attempt to survive a motion for summary judgment by manufacturing a factual dispute through the submission of an affidavit that contradicts prior deposition testimony." Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir.2001); see also id. ("Consequently, *811 where a deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken.") (internal quotation omitted); Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168-69 (7th Cir.1996). Of the paragraphs identified by ArvinMeritor as purportedly contradictory (paragraphs 35 through 37, 82 through 92, and 93 through 103), the Court declines to strike all but paragraph 90.
In paragraphs 82 through 92, Nuschke discusses the relevancy of the content of the graphical display to his conclusion of infringement. ArvinMeritor argues that this is contradictory to Nuschke's deposition testimony. In the portions of the deposition cited by ArvinMeritor (see ArvinMeritor Strike Ex. 3 at 184-85), Nuschke states that the content of the display is not relevant, but that the information displayed on the screen is relevant "given that there is information content there, [which] is an indication that things are going on within the control program." (See id. at 194:18-21.)
The only contradictory statement identified by the Court is Nuschke's statement that the display, i.e. the rows and columns displayed on the screen (as compared to the information in the display), demonstrates that the Flex and PST systems have a spreadsheet program. (Nuschke Decl. ¶ 90.) Thus, the Court strikes that statement. That the content is relevant, i.e. that boxes on the screen contain tags, is not contradictory to Nuschke's earlier testimony.
The Court has carefully scrutinized the remaining paragraphs identified by ArvinMeritor, and although the statements in the Declaration sometimes elaborate in more detail opinions stated earlier, the Court finds nothing contradictory in the opinions. The Court declined to scrutinize paragraphs 93 through 103, however, on the grounds that ArvinMeritor, again, has made too general an objection. ArvinMeritor accuses Nuschke of "chang[ing] his position on the Rabofsky system in his declaration, articulating different contentions, based on different documents, than in his depositions and original report." (Motion to Strike at 12.) ArvinMeritor then points the Court to 9 pages of deposition testimony and 44 pages of Nuschke's original report to compare with 4½ pages of the Declaration. In light of the vagueness of the objection, the Court will not scour the record looking to make specific arguments on ArvinMeritor's behalf.
D. Daubert Challenge
In the final argument in its Motion to Strike, ArvinMeritor challenges Nuschke's competency to testify as an expert under the standards set out in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny. ArvinMeritor argues that certain portions of the Declaration are incorrect, that Nuschke has disclaimed being an expert on particular topics in the Declaration, and that one opinion is mere ipse dixit lacking factual support.
Federal Rule of Evidence 702, which governs the admissibility of expert testimony, provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
*812 Fed.R.Evid. 702. "The Supreme Court in Daubert interpreted this rule to require that `the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but is reliable.'" Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.2000) (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786). The job of the court is "to determine whether the expert is qualified in the relevant field and to examine the methodology the expert has used in reaching his conclusions." Id. (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 153, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). In determining a purported expert's competence to testify, the Seventh Circuit instructs that "[t]he soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact, or, where appropriate, on summary judgment." Id.
The Seventh Circuit teaches that "[a] district judge should assure himself, before admitting expert testimony, that the expert knows whereof he speaks." Bammerlin v. Navistar Int'l Transp. Corp., 30 F.3d 898, 901 (7th Cir.1994). "`Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience or education with the subject matter of the witness's testimony.'" Jones v. Lincoln Elec. Co., 188 F.3d 709, 723 (7th Cir.1999) (quoting Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir.1990)).
ArvinMeritor challenges whether Nuschke is qualified to testify as an expert concerning Windows programming and DDE protocol.[14] Nuschke stated in his expert report that he has a degree in electrical engineering, and that he founded a company that "designs and develops software and hardware systems that are used by OEM's[15] primarily for industrial control." (Solaia's Strike Ex. E (Nuschke Report) at ¶¶ 1-2.) Nuschke claims to have "extensive experience designing industrial control systems, including systems that work in conjunction with Programmable Logic Controllers," and to be a "proficient programmer in several languages in addition to extensive hardware design experience." (Id. ¶ 2.) During a deposition taken in Solaia Technology LLC v. American Honda Motor Co., No. 03 C 989 (N.D. Ill., filed Feb. 10, 2003), which also centered on the '318 patent, however, Nuschke specifically disclaimed being an expert in the specific areas of Windows and DDE protocol. Nuschke responded to questions regarding Windows by stating, "[Y]ou're asking me detailed questions that would be the area of a Windows' programmer, which I'm certainly not a Windows' programmer." (ArvinMeritor's Strike Ex. 6 (Nuschke Dep. in Solaia Tech., LLC v. Am. Honda Motor Co., Mar. 30, 2004) at 52:9-12.) Nuschke followed up by stating, "[I]f this were in any way an issue of Windows' programming or, you know, code, that sort of thing, then I would probably decline to participate. ... I'll just say that I don't think that I would be the right person to bring in if we were having *813 a big discussion about some details of Windows." (Id. at 52:23-53:2, 54:1-4.) In a deposition taken on a later date, Nuschke engaged in the following colloquy regarding DDE protocol:
Q: Do you consider yourself an expert in the area of DDE protocol?
A: Oh, no. I don't know, definitely not.
Q: Definitely not?
A: I'm not an expert. An expert would be someone who is writing programs on a daily basis with DDE, which I am not doing. I have people that work for me that do that, and we discuss various issues. But I am not a, just by the nature of the beast, I'm not a DDE expert, no.
(ArvinMeritor's Strike Ex. 7 (Nuschke Dep. in Solaia Tech., LLC v. Am. Honda Motor Co., May 26, 2004) at 254:20 255:5.) Solaia responds to ArvinMeritor's challenge by merely pointing to Nuschke's general qualifications in the area of industrial controls.[16] Solaia does not attempt to reconcile Nuschke's disclaimers in American Honda with his statements of purported expertise in this case (such as, for example, by offering an affidavit by Nuschke explaining why his disclaimers went to topics other than those offered by him in this case).[17]
Nuschke's specific disclaimers, coupled with Nuschke's explanation of his general expertise in the area of industrial control (without indication of expertise in areas related to Windows or DDE protocol), are sufficient to convince the Court, on the record presented, that Nuschke "knows not whereof he speaks" in matters regarding Windows and DDE protocol. Bammerlin, 30 F.3d at 901. In Jones v. Lincoln Electric Co., the Seventh Circuit held that a district court abused its discretion in concluding that a witness was an expert. Id., 188 F.3d at 724. In Jones, the defendant tendered a witness who specialized in material science and metallurgy to testify as to the toxicity of certain chemicals and the lung's ability to absorb the chemicals. In finding that the witness was not qualified to testify on that topic, the Seventh Circuit relied, in part, on the fact that the witness acknowledged on cross-examination that he was not a toxicologist and that the areas to which he spoke were "outside his expertise." Id. Likewise, Nuschke's qualifications to testify as to industrial controls generally do not give him sufficient expertise to testify about areas in which he has admitted he has no expertise. Accord Lifewise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.2004) (affirming trial court's ruling that purported expert *814 could not testify where the court noted, inter alia, that witness admitted that he was not expert in areas pertinent to damages modeling).
Thus, the Court strikes paragraphs 64, 65, 68, 72-76, 77 (second sentence), 78, 79 (last sentence), 80, 81 (all but the first sentence), 84 (all but the portion restating Kehres's deposition testimony), 86, 88, 93, and 94.[18]
ArvinMeritor's also argues that several opinions in the Nuschke Declaration are wrong. (See Motion to Strike at 14-16 ("The assertion in Nuschke's Declaration that the Roseman add-in program can run in Windows 2000 using NDIS [¶¶ 78-81] is wrong and unfounded.... Nuschke's description of how `interrupts' were handled in the DOS era and whether DOS was used to handle `interrupts' (¶ 46) is unequivocally wrong.... Nuschke's contentions regarding DDE in various places (¶¶ 58-76), but especially ¶ 65, are technically wrong.").[19]) The Court has already struck the opinions contained in these statements on other grounds, as described above, so it need not decide whether it is also proper to strike these paragraphs because of any purported inaccuracy. The Court notes, however, that the Seventh Circuit clearly instructs that it is not the province of the district court to determine whether an opinion is right or wrong. See Smith v. Ford Motor Co., 215 F.3d at 718.
Finally, ArvinMeritor challenges paragraphs 48 and 49 on the grounds that Nuschke's opinion as to "special device drivers" is unsupported ipse dixit. The Court agrees that Nuschke offers no explanation as to the source of his opinion to comport with the strictures of Rule 702. The Seventh Circuit has repeatedly instructed that "[a]n expert who supplies nothing but a bottom line supplies nothing of value to the judicial process." Zenith Elec. Corp. v. WH-TV Broadcasting Corp., 395 F.3d 416, 419-420 (7th Cir.2005) (collecting cases). Thus, the Court strikes paragraphs 48 and 49.
IV. ArvinMeritor's Motion for Summary Judgment of Non-Infringement
ArvinMeritor moves for summary judgment of non-infringement against Solaia. ArvinMeritor argues that the accused systems omit explicitly claimed elements and do not infringe the claims. ArvinMeritor also argues that the accused systems incorporate features explicitly disclaimed and surrendered and thus cannot infringe the '318 patent as a matter of law. For the reasons explained below, the Court grants ArvinMeritor's motion.
A. Legal Standards
Summary judgment is appropriate in a patent case, as in any other case, where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Desper Prods., Inc. v. QSound Labs, Inc., 157 F.3d 1325, 1332 (Fed.Cir.1998). Summary judgment is proper where, based on the evidence put forward by the nonmovant, no reasonable jury could find that the alleged infringer's product or process *815 infringes the patent. See Frank's Casing Crew & Rental Tools, Inc. v. Weatherford Intern., Inc., 389 F.3d 1370, 1376 (Fed.Cir.2004); Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir.2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see also Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 39 n. 8, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). "Because the ultimate burden of proving infringement rests with the patentee, an accused infringer seeking summary judgment of noninfringement may meet its initial burden either by providing evidence that would preclude a finding of infringement, or by showing that the evidence fails to establish a material issue of fact essential to the patentee's case." Cannon Rubber Ltd. v. First Years Inc., No. 03 C 4918, 2004 WL 2533720, at *2 (N.D.Ill. Sep.28, 2004) (citing Vivid Tech., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d 795, 807 (Fed.Cir.1999)).
"The determination of infringement is a two-step analysis: (1) claim construction to determine the scope and meaning of the claims asserted to be infringed, and then (2) a determination of whether the properly construed claims encompass the accused device." Zelinski v. Brunswick Corp., 185 F.3d 1311, 1315 (Fed.Cir.1999); accord Scanner Techs. Corp. v. ICOS Vision Sys. Corp., N.V., 365 F.3d 1299, 1302 (Fed.Cir.2004). The patentee has the ultimate burden of proving that the accused device meets each and every element of the asserted claims, either under literal infringement or the doctrine of equivalents. Deering Precision Instruments, LLC v. Vector Distr. Sys., Inc., 347 F.3d 1314, 1324 (Fed.Cir.2003); Lemelson v. United States, 752 F.2d 1538, 1551 (Fed.Cir.1985). Summary judgment of noninfringement is thus proper "where there is no genuine issue as to whether the accused device lacks a single claim element or its equivalent." Cannon Rubber, 2004 WL 2533720, at *2 (citing Lockheed Martin Corp. v. Space Sys./Loral, Inc., 324 F.3d 1308, 1321 (Fed.Cir.2003)); see also Litton Sys., Inc. v. Honeywell, Inc., 140 F.3d 1449, 1454 (Fed.Cir.1998) (absence of a single element in the accused device precludes a finding of infringement).
Claim limitations may be written in a "means-plus-function" format, as governed by 35 U.S.C. § 112, ¶ 6. Under that provision, "[a]n element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof." 35 U.S.C. § 112, ¶ 6. Claim construction under a means-plus-function format consists of identifying the claimed function and the corresponding structure of each claim. WMS Gaming Inc. v. Int'l Game Technology, 184 F.3d 1339, 1347 (Fed.Cir.1999).
To literally infringe a means-plus-function limitation, the accused device must "perform the identical function as specified in the claims." WMS Gaming, 184 F.3d at 1347 (quoting Valmont Indus., Inc. v. Reinke Mfg. Co., 983 F.2d 1039, 1042 (Fed.Cir.1993) (internal quotation omitted)). If it performs the identical function, an accused device literally infringes only if it is "insubstantially different" from the corresponding structure in the patent specification. Kemco Sales, Inc. v. Control Papers Co., Inc., 208 F.3d 1352, 1364 (Fed.Cir.2000) (citing, inter alia, Odetics, Inc. v. Storage Tech. Corp., 185 F.3d 1259, 1267 (Fed.Cir.1999)). The "insubstantial difference" analysis is a modified version of the function-way-result methodology described in Graver Tank & Manufacturing Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). See Kemco Sales, 208 *816 F.3d at 1364. "Thus, [t]wo structures may be `equivalent' for the purposes of section 112, paragraph 6 if they perform the identical function, in substantially the same way, with substantially the same result." Id. (citing Odetics, 185 F.3d at 1267).
A device may also infringe a claim written in means-plus-function format under the doctrine of equivalents. This analysis differs from literal infringement only in that the identical function is not required the equivalent "need only perform a substantially similar function." See Kemco Sales, 208 F.3d at 1364. If, however, "a court determines that the `way' and/or `result' is/are substantially different under a section 112, paragraph 6 equivalents analysis, a patentee cannot prevail under the doctrine of equivalents for the same reason(s)." Id. at 1365.
B. Analysis
The Court begins by noting that ArvinMeritor has premised its summary judgment motion ("Motion") on the construction of certain claims of the '318 patent made by another judge in an order entered pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), in a separate lawsuit. (See ArvinMeritor's Ex. 7 (Solaia Technology v. Jefferson Smurfit, No. 01 C 6641 (order) (N.D.Ill. March 28, 2002) (Holderman, J.)) ("Jefferson Smurfit Order").) ArvinMeritor states in the Motion before the Court that "ArvinMeritor respectfully disagrees with certain aspects of that claim construction," and it offers the court an exhibit in which it recites its "views" as to the proper claim construction "in the event that the Court intends to look afresh at the claim construction issue." (D.E. 569 (ArvinMeritor Motion) at 17; see ArvinMeritor's Ex. 8.) This "exhibit" is, in fact, a separate legal brief in which ArvinMeritor offers 14 pages of argument as to claim construction. In light of ArvinMeritor's decision to apply the Jefferson Smurfit claim construction for the purposes of this summary judgment motion (see ArvinMeritor Motion at 17) and Solaia's apparent agreement to the same (see D.E. 606 (Solaia Response) at 9-12), the Court, for the purposes of this Motion, will not revisit the claims that have already been construed,[20] and the Court will disregard the procedurally improper "exhibit" presented by ArvinMeritor.
The Federal Circuit teaches that when a claim construction is agreed to by the parties, a court may decline to raise the issue sua sponte. Cf. WMS Gaming, 184 F.3d at 1348 n. 2 ("[W]here, as here, the parties agree to a claim construction that is adopted by the district court, and neither party disputes that construction on *817 appeal, we decline to raise an issue sua sponte that the parties have not presented.") (citing Seal-Flex, Inc. v. Athletic Track & Court Constr., 172 F.3d 836, 842 (Fed.Cir.1999)). Putting aside ArvinMeritor's procedurally improper "exhibit," which was, in the Court's view, simply an attempt to add an additional 14 pages of legal argument to its already lengthy brief, ArvinMeritor has declined to fully brief the issue of claim construction. The Court is not inclined to address an issue not properly briefed by the parties, especially where, as here, the parties agree (at least in principle) that the Court need not do so. Thus, to the extent that the Jefferson Smurfit Order addresses the claims at issue in this Motion, the Court will confine itself to that claim construction for the purposes of this Motion.
1. Spreadsheet Instruction Means and Spreadsheet Means
Claims 11 and 12 each contain a limitation relating to use of a spreadsheet program or spreadsheet. ArvinMeritor argues that it is entitled to summary judgment as to both claims 11 and 12 because neither the Flex/PST nor the Rabofsky system utilizes a spreadsheet program, and, therefore, those systems do not meet the limitations described above. Solaia responds that the programs used by ArvinMeritor to control their systems are spreadsheet programs, or, in the alternative, the structural equivalent of such.
a. Claim 11's "Spreadsheet Instruction Means"
The Jefferson Smurfit Order construed the "spreadsheet instruction means" limitation of claim 11 as follows: The claimed function is "`effecting a general purpose spreadsheet program in said computer providing cells into which said operator can insert information and menu commands selectable by said operator[,] normally only being able to effect movement of information between fields of data contained in said memory and said cells.'" (Jefferson Smurfit Order, ¶ 5 (citing '318 patent, col. 16, line 68-col. 17, line 6) (internal alteration omitted).) The corresponding structure is "the `instruction storage memory' of a personal computer containing the instructions to effect a general purpose spreadsheet program." (Id. (citing '318 patent, col. 4, lines 51-54).)
The Jefferson Smurfit Order did not construe the term "general purpose spreadsheet program." ArvinMeritor argues that a spreadsheet program is "[a] program that displays a table of cells arranged in rows and columns, in which the change of the contents of one cell can cause recomputation of one or more cells based on user-defined relationships among the cells." (D.E. 569 (ArvinMeritor Motion) at 20 (citing IBM Dictionary of Computing 641 (George McDaniel 1993) at 641.)) Solaia bases its definition of the term "spreadsheet program" on the statements of three experts. Citing to a statement by Walter Nuschke, Solaia argues that a "spreadsheet program" is "simply a multi-purpose program which presents cells which can be related to one another." (D.E. 606 (Solaia Resp. Br.) at 32.) Solaia points to Kevin Welch, who defined a spreadsheet as "a tool used in financial analysis and modeling that establishes mathematical relationships among numbers and formulas that appear in rows and columns." (Solaia's Ex. 2 (Welch Dep.) at 255:8-11.) Solaia says this definition is consistent with Jeffery Kehres's understanding that "[a] general purpose spreadsheet... is a program or application that [] has cells that are interrelational. If you change one cell, it can manipulate data in another." (Solaia's Ex. 5 (Kehres Dep.) at 11:4-6.)
In construing a patent term, "words in a claim are generally given their ordinary *818 and customary meaning," unless the patentee has chosen to be his own lexicographer by using terms in a manner other than their ordinary meanings. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). Here, the patentee has not used "spreadsheet program" in a way other than its ordinary meaning. It has not been defined in the specification, and the Court thus construes it as would a person of ordinary skill in the art. The Federal Circuit teaches that "dictionaries, encyclopedias and treatises are particularly useful resources to assist the court in determining the ordinary and customary meanings of claim terms." Texas Digital Sys., Inc. v. Telegenix, 308 F.3d 1193, 1202 (Fed.Cir.2002) (collecting cases). These sources provide "unbiased reflections of common understanding not influenced by expert testimony or events subsequent to the fixing of the intrinsic record by the grant of the patent, not colored by the motives of the parties, and not inspired by litigation." Id. at 1203. Thus, the Court will give weight to the dictionary definition offered by ArvinMeritor as the potential definition for "spreadsheet program."
Next, the Court looks, as precedent directs, to the intrinsic evidence to determine whether there is any reason to believe that the ordinary and customary meaning of the term is rebutted or modified. Texas Digital, 308 F.3d at 1204; Vitronics, 90 F.3d at 1582. Here, the patentee has not used "spreadsheet program" in any way that contradicts the ordinary meaning as defined by the technical dictionary. The Summary of the Invention states, "The spreadsheet program provides many mathematical arguments that can be arranged to perform complex calculations rapidly in determining desired efficiencies and qualities of manufacturing." ('318 patent, col. 5, lines 49-52.) The preferred embodiment of the invention uses the commercially-available Lotus 1-2-3, a protypical general purpose spreadsheet program available at the time. (Id., col. 6, line 67-col. 7, line 1.) The Court found nothing in the intrinsic record that would indicate that "general purpose spreadsheet program" means anything other than its ordinary and customary meaning.
Solaia's proposed definition a multi-purpose program which presents cells which can be related to one another is so broad as to read out the limitation of a "spreadsheet program" altogether. While Solaia's argument that a patentee is "not required to include within each ... claim[] all the [the] advantages or features described as significant or important in the written description" is well-taken, Golight, Inc. v. Wal-Mart Stores, Inc., 355 F.3d 1327, 1331 (Fed.Cir.2004), a court cannot ignore the limitations inherent in the language the patentee chooses to use. This case is unlike the patentee in Golight, who had described more features in his written description but then wrote the claims without those features. See id. (claim function of "rotating said lamp unit in a horizontal direction" did not include limitation of rotating through at least 360.) Here, the term "spreadsheet program," as defined in its ordinary and customary meaning, includes limiting features, namely the display of cells that can be arranged in rows and columns, in which the change of the contents of one cell can cause recomputation of one or more cells based on user-defined relationships among the cells.[21]*819 Nothing need be implied from the written description of the patent. Had the patentee desired to claim a program broader in function than a "spreadsheet program," he was perfectly free to do so (or at least attempt to do so). But when a patentee uses language that is limiting, the Court must give meaning to that limitation.[22]See Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1562 (Fed.Cir.1991) ("All the limitations of a claim must be considered meaningful.").
Thus, for the purposes of claim 11's "spreadsheet means" function, "spreadsheet program" means a program that displays a table of cells arranged in rows and columns, in which the change of the contents of one cell can cause recomputation of one or more cells based on user-defined relationships among the cells. In addition, the Court construes "general purpose" in its ordinary and customary meaning of not being intended or used for a single purpose. No dictionary is necessary to understand the plain meaning of "general purpose" from the context of the patent. This meaning is consistent with the use of Lotus 1-2-3 as the general purpose spreadsheet program in the preferred embodiment, as that program was developed and used for a variety of applications outside the manufacturing context.
Therefore, the Court construes the "spreadsheet means" function of claim 11, in pertinent part, as "effecting a program, one not intended or used for a single purpose, that displays a table of cells arranged in rows and columns, in which the change of the contents of one cell can cause recomputation of one or more cells based on user-defined relationships among the cells, in said computer providing cells into which said operator can insert information and menu commands selectable by said operator." The question of infringement, therefore, is whether Solaia has produced evidence that creates an issue of material fact as to whether ArvinMeritor's systems have an identity of function with this claim limitation. As explained below, it has not.
i. No "Spreadsheet Program"
Solaia has not adduced evidence that creates an issue of fact as to whether ArvinMeritor's systems effect a general purpose spreadsheet program. There is simply insufficient evidence for a reasonable jury to conclude that the VB program in the Flex/PST systems or the Simatic Pro Tool program in the Rabofsky system are general purpose spreadsheet programs. Solaia offers three reasons as to why the VB program in the Flex/PST system is a "spreadsheet program": it uses cells for user input; those cells are arranged in columns and rows; and it is capable of performing calculations.
Even assuming that the text boxes in the visual display of the VB and Simatic Pro Tool programs constitute "cells" within the meaning of the definition of spreadsheet, Solaia's argument that the VB program is capable of performing calculations is unsupported by record evidence in this *820 Motion. Solaia offers the Court with a single page of testimony by Welch that provides no context for the Court. The entire relevant testimony provided to the Court states:
Q Okay. And you say, with some effort, this calculation can be performed if one associates the values of these two numbers with named tags and create a third derived tag, right?
A Yes.
Q And so did you do that?
A Yes.
Q Okay. So you made a tag that added the value of two other tags, correct?
A Right.
(Solaia's Ex. 2 (Welch Dep.) at 261:1-10.) This testimony, it clearly appears, does not refer to the VB or Simatic Pro Tool programs. A reading of the previous portion of Welch's testimony provided indicates that Welch was referencing the RSView program that is part of a Rockwell system a program that not at issue in this Motion. (ArvinMeritor's Ex. J (Welch Dep.) at 259:2-261:12.) Solaia has offered no other evidence that the "cells" in the VB or Simatic Pro Tool programs, into which the specifications are input, are capable of interrelating to each other such that a change in one cell can cause recomputation of one or more cells based on user-defined relationships among the cells. If the VB and Simatic programs do not effect a program with this defining characteristic, it has not effected a "spreadsheet program."
ii. Not "General Purpose"
Moreover, even if the VB and Simatic Pro Tool programs are "spreadsheet programs," Solaia has not produced evidence that creates an issue of fact as to whether they are "general purpose" programs. This provides an independent basis for summary judgment in ArvinMeritor's favor.
In this regard, Solaia argues that the programs are "general purpose" because they are designed to handle numerous different recipes. The Court rejects this argument, first, because it is based solely on testimony by Nuschke that the Court struck, above, as new, improper opinion testimony. (See Nuschke Decl. ¶¶ 84, 86, 88, 89, 93, 94.) Even if the Court were to consider the testimony, however, it is unpersuasive. Solaia has produced no evidence that the VB and Simatic Pro Tool applications may be used for any purpose other than what those programs are being used for: transmitting data used to monitor and control a manufacturing system. Reading "general purpose" as Solaia suggests would be like saying that a saw blade made to cut steel is a "general purpose" blade because it can cut three kinds of wood, as contrasted with, say, a saw blade that actually was a "general purpose" blade because it could cut steel, wood, and plastic. Here, there is no evidence from which a jury could find that these programs can be used outside the particular context of transferring data from a user's input to a network of PLCs. Thus, the VB and Simatic Pro Tool programs are not "general purpose" spreadsheet programs.
Thus, Solaia has not created a genuine issue of fact as to whether the ArvinMeritor systems effect a general purpose spreadsheet program, and therefore, has failed to adduce evidence that creates a triable issue of fact as to whether there is an identity of function between the ArvinMeritor systems and claim 11. See WMS Gaming, 184 F.3d at 1347. In short, summary judgment of non-infringement is proper on claim 11. As explained above, it is warranted on two independent bases: Solaia has failed to present a triable issue as to whether ArvinMeritor's systems perform the function claimed in the "spreadsheet instruction means" because (1) no reasonable jury could find that the programs effect a "spreadsheet program"; *821 and (2) even if there were a triable issue on that question, no reasonable jury could find that the programs effect a "general purpose" spreadsheet program.
b. Claim 12's "Spreadsheet Means"
The "spreadsheet means" limitation of claim 12 was construed in the Jefferson Smurfit Order as follows: The claimed function is "`presenting a spreadsheet of cells into which information can be inserted to facilitate executing actions through said spreadsheet means, said spreadsheet means being capable of accessing said registers in said processor means through said actions.'" (Jefferson Smurfit Order (citing '318 patent, col. 17, lines 38-43).) The corresponding structure is the same as that identified for claim 11's spreadsheet instruction means, namely "the `instruction storage memory' of a personal computer containing the computer instructions to effect a general purpose spreadsheet program." (Id. (citing '318 patent, col. 4, lines 51-54).)
Neither party argues that there is an identity of function for this means-plus-function claim, arguing instead about whether the systems contain the corresponding structure. Because "[f]unctional identity and either structural identity or equivalence are both necessary" for infringement of a section 112, ¶ 6 claim limitation, Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259, 1267 (Fed.Cir.1999) (citing Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934 (Fed.Cir.1987) (en banc)) (emphasis in original), the Court need not decide whether there is functional identity as it finds that no reasonable jury could find structural equivalence based on the evidence presented.
ArvinMeritor argues that its systems do not use a general spreadsheet program. Solaia counters with the conclusion that "[t]here is a `spreadsheet means contained in said processor means'" in ArvinMeritor's systems, offering for support Nuschke's opinion that the corresponding structure of this function (or, at least, its equivalent) exists in the Flex/PST systems. (See Solaia Resp. Br. at 41.) Nuschke states that "both the Flex and PST systems contain spreadsheet cells, namely tag values in what ArvinMeritor called `text boxes,' that can be displayed on a computer screen where logical relationships exist between the cells. In both [systems], a part number is entered on the screen, and immediately causes additional spreadsheet cells to display parameters about the manufacture or testing of that part." (Nuschke Decl. ¶ 92). This opinion is insufficient to create a triable issue of fact as to whether the ArvinMeritor systems contain an equivalent structure to that corresponding to claim 12's spreadsheet means function, instruction storage memory containing instructions to effect a general purpose spreadsheet program. For the reasons described above, the VB and Simatic Pro Tool programs do not contain instructions that effect "general purpose spreadsheets," so the question remaining is whether the ArvinMeritor programs are the equivalent of the general purpose spreadsheet program disclosed in the patent.
An expert's assertion as to the ultimate question of infringement is insufficient to raise a genuine issue of material fact where the expert fails to "set forth a factual foundation for his opinion ... in sufficient detail for the court to determine whether that factual foundation would support a finding of infringement under the claim construction adopted by the court, with all reasonable inferences drawn in favor of the nonmovant." Arthur A. Collins, Inc. v. Northern Telecom Ltd., 216 F.3d 1042, 1047-48 (Fed.Cir.2000). The only factual basis given for Nuschke's opinion is that the text boxes visible in the visual displays of the VB and Simatic Pro Tool programs are cells. Nuschke offers *822 no basis for his opinion that a logical relationship exists between the cells.[23] Nuschke points to no evidence, for example, that the values in the cells are or can be interrelated in the "way" contemplated by a spreadsheet program as defined above. Compare, e.g., Odetics, 185 F.3d at 1270 (finding expert testimony provided substantial evidence to support jury verdict where expert offered detailed explanation of opinion as to equivalence, including that the "way" the structures accomplished claimed function and the "result" of that function were substantially equivalent). That a user can enter a part number that calls up the values of specifications to the text boxes (or "cells") does not indicate that the program is capable of manipulating the values in the cells by changing one value so as to produce subsequent recomputation of other values.
Solaia offers no evidence other than Nuschke's opinion on this issue. At this point it is necessary to reiterate the responsibility Solaia bears in this summary judgment proceeding. Precedent repeatedly teaches that "summary judgment is `is the "put up or shut up" moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.'" Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1111 (7th Cir.2004) (quoting Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir.2003)). Solaia, which bears the ultimate burden of proving infringement, has offered no evidence that the VB and Simatic Pro Tool programs are "insubstantially different" from a spreadsheet program. See Kemco Sales, 208 F.3d at 1364 (citing, inter alia, Odetics, 185 F.3d at 1267). For example, Solaia points to the presence of cells (the text boxes which the Court will assume are "cells" as recited by the function) in rows and columns in the visual display of the ArvinMeritor programs as proof of structural equivalence to the general purpose spreadsheet program disclosed as structure in the patent. But Solaia has not indicated how the mere presence of cells would enable to a trier of fact to conclude that the ArvinMeritor programs function in substantially the same way as the general purpose spreadsheet program disclosed in the patent. See id. There is no evidence that it is the cells themselves that allow the general purpose spreadsheet program to perform the function of the spreadsheet means as opposed to, for example, the functionality of the disclosed spreadsheet program that enables it to "facilitate executing actions."[24] (See '318 patent, col. 17, line 40.)
*823 In the absence of such evidence that the cells in the ArvinMeritor programs are the reason those programs function in substantially the same "way" as the disclosed structure (if indeed those programs even do function in substantially the same way at all), no reasonable jury could conclude that there is an "insubstantial difference" between the general purpose spreadsheet program and the ArvinMeritor systems on the factual basis provided by Nuschke for his opinion. Thus, Solaia has failed to identify evidence in the record presented that creates a material issue of fact as to the equivalence of the VB and Simatic Pro Tool programs with the disclosed general purpose spreadsheet. Summary judgment is therefore proper as to claim 12.
2. Messages Indicating the Condition of Equipment
Even if the Flex/PST systems infringe claim 11 because the VB program effects a general purpose spreadsheet, summary judgment is proper as to those systems on the independent ground that the PLCs in those systems do not send messages indicating the condition of the equipment to which the PLCs are coupled. Claim 11 includes two elements with limitations relating to messages indicating the condition of factory equipment being transmitted from the PLCs. Claim element 11[A] requires "a plurality of programmable logic controllers coupled to the equipment, said programmable logic controllers each transmitting messages on a network indicating the condition of said equipment." ('318 patent, col. 16, lines 46-49.) Claim 11[E] requires an "add-in instruction means ... for presenting add-in menu commands ... operating through said spreadsheet means ... to move said messages ... to respective assigned cells in said spreadsheet instruction means so that messages from said programmable logic controllers indicating the condition of said equipment can be saved and moved directly to said cells." ('318 patent, col. 17, lines 8-22.) The limitation in the claim elements regarding messages "indicating the condition of said equipment" was not construed as part of the Jefferson Smurfit litigation. Section 112, ¶ 6 is not applicable to this phrase, so ordinary claim construction principles apply.[25]See IMS Tech., 206 F.3d at 1432-33 (section 112, ¶ 6 "applies only to interpretation of the means or step that performs a recited function," not to all terms within that means). The parties do not specifically dispute the meaning of this limitation, both pointing the Court to the ordinary meaning of the terms. See E-Pass Technologies, Inc. v. 3Com Corp., 343 F.3d 1364, 1367 (Fed.Cir.2003).
The ordinary meaning of "condition" is the state of repair or ability to function of an object. See, e.g., The New Oxford American Dictionary 357 (Elizabeth J. Jewell and Frank Abate, eds., 2001) (defining "condition" as, inter alia, "the state of something, esp. with regard to its appearance, quality, or working order"). The meaning of "said equipment" is unambiguous from the language of the patent: it is the equipment to which the PLCs are coupled. (See '318 patent, col. 16, lines 46-47.) There is nothing in the intrinsic record that indicates the phrase "indicating the condition of said equipment" should be *824 given anything other than its ordinary meaning. See WMS Gaming, 184 F.3d at 1350.
The parties dispute whether this claim limitation reads on the accused Flex/PST systems. (ArvinMeritor does not make this argument regarding the Rabofsky system.) ArvinMeritor offers evidence that forms a factual basis for its conclusion that the Flex/PST systems do not send messages from the PLCs to the spreadsheet (assuming for the purposes of this discussion that the Flex/PST systems use a spreadsheet program) indicating the condition of the equipment to which the PLCs are coupled. According to testimony by expert Jeffrey Kehres,
The VB program does not receive any data back from the PLCs regarding the equipment attached to the PLCs. The program is only used to load recipes into the PLCs. The VB program does check to determine if the recipe data was received by the PLC ... by reading a status bit (a `1' or a `0') in a specific register in the PLC.... [T]his status bit only indicates whether the recipe has been loaded into the PLC and does not indicate in anyway [sic] the status of the equipment associated with the PLC.
(Kehres Decl. ¶ 13; ArvinMeritor's SF ¶ 32.) Solaia argues to the contrary, offering the following deposition testimony of expert Kevin Welch:
Q I'll ask it this way: The Rabofsky system has a plurality of programmable logic controllers coupled to the equipment, said programmable logic controllers each transmitting messages on a network indicating the condition of said equipment, true?
A Yes.
Q Okay. And so does the Flex system, correct?
A Yes.
Q And also the PST system, correct?
A Yes.
(Solaia's Resp. ¶ 32; Solaia's Ex. 2 (Welch Dep.) at 145:21 146:11.) As discussed above, an expert's opinion as to the ultimate question of infringement is insufficient to defeat summary judgment where it lacks an adequate factual foundation for the court to determine whether that factual foundation would support a finding of infringement. See Arthur A., 216 F.3d at 1047-48. Unlike the Kehres testimony, which offers facts about the workings of the systems, the Welch testimony offers a conclusion (with no factual foundation) as to whether a particular element of the patent is present in the systems. This is insufficient to create a triable issue of fact. See, e.g., Zelinski v. Brunswick Corp., 185 F.3d 1311, 1317 (Fed.Cir.1999) (affirming summary judgment based on district court's determination that expert opinion lacking factual founding did not create genuine issue of material fact as to equivalence).
Solaia also offers an opinion by Nuschke that the PLC sending the status bit to the VB constitutes is the same as indicating the condition of equipment. (See Nuschke Decl. ¶¶ 24-27.) Nuschke points to testimony by Kehres that the VB program is "polling" the register in the PLC to determine whether a "1" status bit is in the register, as well as Kehres's agreement that in this "polling," a message is "sent back to the VB application indicating the condition of that register." (Id. ¶ 26 (quoting Solaia's Ex. 5 (Kehres Dep. of 5/12/2004) at 124:13-23) (emphasis added).) Nuschke apparently uses this testimony as the factual basis for his opinion that "[p]olling simply means that a request is sent from the software on the PC that a message be sent from the PLC advising the PC of the status or condition of the equipment." (Id. ¶ 26 (emphasis added).) But as the italicized language shows, Kehres's testimony shows only that the VB program may indicate the status or condition of the PLC register; there is no evidence *825 that the status bit indicates the state of repair or ability to function of the equipment coupled to that PLC. The distinction in the claim limitations is unambiguous: the messages shall indicate the condition of the "said equipment," which is the equipment to which the PLCs are coupled, not the condition of the PLCs themselves. (See '318 patent, col. 16, lines 46-47.)
Thus, the factual foundation on which Nuschke rests his opinion is not sufficient for a reasonable trier of fact to conclude that ArvinMeritor's Flex/PST systems send messages indicating the condition of the equipment. In the absence of other record evidence, the Court finds that Solaia has not created a triable issue of fact as to whether claim 11's limitations of sending messages that indicate the condition of the equipment are present in the Flex/PST systems. Thus, summary judgment is proper as to claim 11 for those systems.
3. Inserting Address of a Particular Register
As an independent ground for decision, the Court also finds that summary judgment is proper for the Flex/PST and Rabofsky systems as to claim 12 because Solaia has not produced evidence that creates a material issue of fact as to whether the systems perform the function of the "add-in program means," namely "inserting into at least one cell information including the address of a particular register."
The Jefferson Smurfit court did not construe this claim limitation. The parties do not dispute that this claim limitation is construed pursuant to section 112, ¶ 6, and because it uses the typical "means for" terminology without reciting structure in the claim, the Court will construe it as such. "The first step in construing a means-plus-function limitation is to identify the function explicitly recited in the claim." Asyst Technologies, Inc. v. Empak, 268 F.3d 1364, 1369 (Fed.Cir.2001). The parties do not dispute that the function is "inserting in at least one cell information including the address of a particular register in a particular programmable logic controller to which a message is to be sent and including the content of said message." ('318 patent, col. 17, ll., 37-39.) "The next step is to identify the corresponding structure set forth in the written description that performs the particular function set forth in the claim." Asyst, 268 F.3d at 1369. The parties disagree over the structure disclosed in the patent.
ArvinMeritor argues that the corresponding structure is the software instructions implementing the @ functions, "@ WRITE" and "@ BWRITE," as shown in Figure 7 of the patent. (See '318 patent, col. 11, lines 32-45). Solaia argues that the corresponding structure is that identified in the Jefferson Smurfit case for a separate function of the "add-in program means," the "add-in program" disclosed in Figure 2, item 28 of the patent. (Jefferson Smurfit Order, ¶ 10.) The Court need not resolve this dispute because the Court finds that Solaia has failed to adduce evidence that creates a triable issue of fact as to whether there is an identity of function between the "add-in program" means of claim 12 and the ArvinMeritor systems. See Odetics, 185 F.3d at 1267 ("[f]unctional identity and either structural identify or equivalence are both necessary" for infringement of a section 112, ¶ 6 claim limitation (emphasis in original)) (citing Pennwalt, 833 F.2d at 934).
ArvinMeritor argues that summary judgment is proper because its systems do not allow a user to input the address of a PLC register into the cells of the display program. (The Court, again, assumes for purposes of this discussion that the text boxes of the VB and Simatic Pro Tool programs are spreadsheet "cells" as recited *826 in the function.) Solaia argues in its response brief that the Flex/PST systems do perform this function, pointing to an assertion by Nuschke based on testimony regarding how "tags" are used in the system, and also pointing to operating instructions for the Rabofsky system. (See Solaia's Resp. Br. at 42 (citing Nuschke Decl. ¶ 107); id. at 48.)
In the Flex/PST systems, according to testimony from Steven Zink (who appears to be an employee of Rockwell), a particular address of a PLC register is given a common name, called a "tag" in the industry. (Solaia's SAF ¶ 145 (citing Solaia's Ex. 3 (Zink Dep.) at 77:6-12).) Jeffery Kehres testified as follows:
Q How does the tag know which particular register in a particular PLC it's supposed to go to?
A The [] values inside Visual Basic are put into a string to be sent to RSLinx. RSLinx knows that there's a certain number of values in this string and, in turn, will give it a [] register address in which RSLinx will handle it. And that's all done through the RSLinx in the poke command, the Visual Basic script.
(Id. (quoting Solaia's Ex. 5 (Kehres Dep. of 5/12/2004) at 131:17-23).) These two snippets of testimony underlying Nuschke's opinion are the only factual foundation offered by Solaia to support its argument that the ArvinMeritor systems perform the function of "inserting in at least one cell information including the address of a particular register." This testimony demonstrates to the Court nothing more than precisely what it says: values from the VB program are identified with PLC addresses as they are sent through RSLinx. Solaia has presented the Court with no evidence that either a human user or the system itself ever enters the tag into a cell. This is an insufficient factual basis from which a reasonable jury could conclude that this behind-the-scenes addressing is actually a function of inserting the PLC address into at least one spreadsheet cell.
Solaia also submits in its response to ArvinMeritor's statement of facts a discussion related to the insertion of addresses into cells. (See Solaia's Resp. ¶ 38.) The Court is compelled to discuss a serious procedural infraction Solaia commits that is germane. Often times in the briefing, the parties commit violations of Local Rule 56.1 by citing directly to record materials instead of the L.R. 56.1 statements of material fact, as they should. Generally speaking, the Court has excused these violations. However, the Court cannot excuse Solaia's attempt to respond to one of ArvinMeritor's statements of fact with an approximately seven-page extended exegesis that is either an improper attempt to set forth additional factual assertions in contravention of L.R. 56.1,[26] or, perhaps additionally, an improper attempt to file seven additional pages of argument in violations of page limits for the briefs.[27] The *827 Court will not excuse this egregious violation, and the seven pages of either improper new factual assertions, or improper briefing, or both, are stricken. Accord S Indus., Inc. v. JL Audio, Inc., 29 F.Supp.2d 878, 882 (N.D.Ill.1998) (under prior version of local rule, refusing to consider 2-page response to statement of fact which contained legal argument).
Even if the Court were inclined to consider the arguments presented in this procedurally improper fashion (which it is not), those arguments do not create an issue of fact. Over several pages of discussion, Solaia strings together testimony presented by several other witnesses to conclude that "the Flex and PST Systems displays have cells (which are synonymous with tags), and that those cells contain the address of a particular PLC register to which a message is sent because those cells (i.e., tags) reference the particular PLC register," citing to Nuschke's declaration for support.[28] (Solaia's Resp. ¶ 38 (at 29) (citing Nuschke Decl. ¶ 113).) Solaia also offers the conclusion that testimony offered by Kehres "establishes that in the Flex and PST Systems[,] a string containing the address of a particular register in a particular PLC is associated with each tag (i.e., cell)." (Solaia's Resp. ¶ 38 (at 30) (citing Nuschke Decl. ¶ 116).) Pointing to further testimony, Solaia states the Flex/PST systems "associate a particular PLC with a topic name through a string" and RSLinx "connects the topic name to the particular PLC and the string address to the particular register in that PLC," ultimately concluding that "[t]he operator entering a machine name on the screen is the identical function" as that in claim 12. (Solaia's Resp. ¶ 38 (at 31) (citing Nuschke Decl. ¶ 117).)
Nowhere in this discussion, however, does Solaia provide an explanation as to why a program in which cells "reference *828 the particular PLC register" (Nuschke Decl. ¶ 113 (emphasis added)), or in which "a particular PLC is associated with [a cell]" (id. ¶ 116 (emphasis added)), performs the identical function of a program that "insert[s] in at least one cell information including the address of a particular register" ('318 patent, col. 17, lines 45-46). None of Solaia's evidence indicates that the address is ever actually inserted into the cells of the VB program. The function of the "add-in program means" is not some broader function of coordinating the data with the address of a PLC register. Rather, it is the specific function of "inserting in at least one cell ... the address." (Id.) And Solaia has failed to provide evidence that would enable a reasonable jury to conclude that the ArvinMeritor systems perform that function. Thus, for the independent reason that Solaia has failed to produce evidence on the record presented that the Flex/PST systems perform the function of the "add-in program means," summary judgment is proper as to those systems for claim 12 of the '318 patent.
Regarding the Rabofsky system, Solaia has failed to adduce evidence that creates a triable issue of fact as to whether that system performs the function of inserting addresses into at least one cell. Solaia offers the following from the Rabofsky Operating Instructions: "In addition, there are two other keys that enable sending a data record to the control (Send) and another one for retrieving (Get) a data record from the control." (Solaia's Ex. 30 at AM0011086.) Solaia offers Nuschke's conclusion that "[t]his shows that addresses must be inserted." (Solaia's Resp. ¶ 158 (citing Nuschke Decl. ¶ 122).) Nuschke offers essentially the same rationale for why the Rabofsky system performs the function as he did for the Flex/PST systems, that "tags must be specified in the configuration which point to an address in a PLC." (Nuschke Decl. ¶ 122.) As discussed above, however, a tag which "points" to an address in a PLC does not demonstrate that the program inserts an address of a PLC register into a cell. Thus, Solaia has failed to create a triable issue of fact as to whether the Rabofsky system, too, performs the function "inserting in at least one cell information including the address of a particular register."
CONCLUSION
Solaia has failed to create an issue of material fact as to whether the Flex/PST and Rabofsky systems infringe claims 11 and 12 of the '318 patent. First, there is no issue of fact as to whether all three systems perform the function "effecting a general purpose spreadsheet" of claim 11 because (1) none of the programs effect a "spreadsheet, and independently," (2) even if the programs did effect a spreadsheet, none of the programs effect a "general purpose" spreadsheet. The systems to not perform this function, and therefore, ArvinMeritor is entitled to judgment as a matter of law on claim 11 of the '318 patent. Second, there is no issue of fact as to whether all three systems employ the corresponding structure or its equivalent disclosed in claim 12, "a general purpose spreadsheet." The systems do not employ a general purpose spreadsheet program or its equivalent, and therefore, ArvinMeritor is entitled to judgment as a matter of law on claim 12 of the '318 patent. Third, there is no issue of fact as to whether the Flex/Rabofsky systems have messages "indicating the condition of said equipment" as recited in claim 11. These systems do not indicate the condition of the PLCs, and therefore, ArvinMeritor is entitled to judgment as a matter of law on claim 11 of the '318 patent as to the Flex/Rabofsky systems on this alternate and independent ground. Fourth, there is no issue of fact as to whether all three systems perform the function "inserting in at least one cell information including the address of a particular *829 register." The systems do not perform this function, and therefore, ArvinMeritor is entitled to judgment as a matter of law on claim 12 of the '318 patent on this alternate and independent ground. The Court need not reach the other arguments made by ArvinMeritor as to why summary judgment is proper, including the arguments regarding surrender. ArvinMeritor's motion for summary judgment of non-infringement (D.E. 569) is granted.
So ordered.
NOTES
[1] The docket entries in this case are labeled "D.E. __."
[2] A programmable logic controller ("PLC") is a "specialized microprocessor-based controller typically used in a factory to monitor or control machines or equipment." (ArvinMeritor's SF ¶ 4.)
[3] The Court takes the relevant facts from ArvinMeritor's Local Rule 56.1(a)(3) Statement of Facts by ArvinMeritor In Support of ArvinMeritor's Motion for Summary Judgment of Non-Infringement (D.E. 575 ("ArvinMeritor's SF")) and exhibits; from Solaia's L.R. 56.1(b)(3) Statement Including Response to ArvinMeritor's Statement of Facts and Additional Facts Requiring the Denial of Summary Judgment of Non-Infringement (D.E. 607 ("Solaia's Resp." or "Solaia's SAF")) and exhibits; and from ArvinMeritor's response thereto (D.E. 634 ("ArvinMeritor's Resp.")). Where the parties disagree over relevant facts, the Court sets forth the competing versions. In addition, the Court resolves genuine factual ambiguities in Plaintiff's favor. Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir.2004).
Local Rule 56.1 ("L.R. 56.1") requires that statements of facts contain allegations of material fact, and the factual allegations must be supported by admissible record evidence. See L.R. 56.1; Malec v. Sanford, 191 F.R.D. 581, 583-85 (N.D.Ill.2000). The Seventh Circuit teaches that a district court has broad discretion to require strict compliance with L.R. 56.1. See, e.g., Koszola v. Bd. of Ed. of City of Chicago, 385 F.3d 1104, 1109 (7th Cir.2004); Curran v. Kwon, 153 F.3d 481, 486 (7th Cir.1998) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir.1995) (collecting cases)). Where a party has offered a legal conclusion or a statement of fact without offering proper evidentiary support, the Court will not consider that statement. See, e.g., Malec, 191 F.R.D. at 583 ("[A] movant's 56.1(a) statement should contain only factual allegations. It is inappropriate to allege legal conclusions."); id. ("Factual allegations not properly supported by citation to the record are nullities."). Additionally, where a party improperly denied a statement of fact by failing to provide adequate or proper record support for the denial, the Court deems admitted that statement of fact. See L.R. 56.1(a), (b)(3)(B); see also Malec, 191 F.R.D. at 584 (failure to adhere to L.R. 56.1 requirements, including citation to specific evidentiary materials justifying denial, is equivalent to admission). See generally SunTiger, Inc. v. Scientific Research Funding Group, 189 F.3d 1327, 1333 (Fed.Cir.1999) ("[W]hen considering appeals from a district court in patent cases we apply our own circuit law, except that with respect to purely procedural matters that are subject to local variation, we will customarily follow local law of the circuit in which the district court sits.").
[4] Gas springs are apparently a type of piston used, for example, on the hatch door of a minivan or SUV. (D.E. 573 (ArvinMeritor Mem. in Supp. of Mot.) at 9.)
[5] The Court notes that Solaia has attempted to dispute this statement of fact by offering, inter alia, that the Flex/PST systems "permit the user to do other things." (Solaia's Resp. ¶ 25.) Whether this statement by Solaia is true, it does not create a dispute as to whether the systems function as stated by ArvinMeritor.
[6] Solaia attempts to deny this statement by providing deposition testimony from ArvinMeritor's expert, Kevin Welch, stating that the Flex system "has a plurality of programmable logic controllers coupled to the equipment, said programmable logic controllers each transmitting messages on a network indicating the condition of said equipment." (Solaia's Resp. ¶ 32 (citing Welch Dep. at 145-46).) This opinion as to the ultimate question of infringement is not a factual statement that denies whether the Flex/PST systems monitor the equipment to which the PLCs are attached.
[7] Solaia's attempt to deny this statement fails for the same reason described in note 6, infra.
[8] Solaia's five-page response to ArvinMeritor's paragraph 38 is largely argumentative and non-responsive to the issue whether a user inputs the address of a PLC register into the display program. The numerous facts offered by Solaia in that response are properly before the Court only when offered as statements of fact rather than as part of a denial. See Kaplan v. City of Chicago, 2004 WL 2496462, at * 2 (N.D.Ill. Nov.4, 2004) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir.1995) (striking additional facts submitted in responses)).
[9] While the similarity between the portion of the Nuschke Declaration and Solaia's brief in the Jefferson Smurfit case is troubling (compare D.E. 666 ("Solaia's Resp. to Motion to Strike") at 19 with Nuschke Decl. ¶ 40 and ArvinMeritor's Strike Ex. 8 (Solaia's Reply, March 19, 2002) at 7-8), it is not sufficient for the Court to conclude that the entirety of the similarities can be ascribed to Solaia's attorneys.
[10] This argument is premised on Solaia's characterization of a witness offered by ArvinMeritor, Jeffrey Kehres, who offered a declaration in support of ArvinMeritor's Motion to Strike, as an expert rather than a fact witness. (See Solaia's Resp. to Motion to Strike at 2-3.) While Solaia declared in its response that there are problems with Kehres's declaration, Solaia has not moved to strike any portion of it, so the Court does not address the propriety of Kehres's declaration.
[11] In response to each statement that ArvinMeritor has identified, Solaia has argued either that it is not a new opinion or that it is justified in offering the opinion at this late stage by new facts or opinions given by one of ArvinMeritor's witnesses. Solaia has not argued that its reliance on the Nuschke Declaration in its summary judgment papers is harmless to ArvinMeritor. Thus, the Court considers that argument waived. In any event, at this stage in the proceedings, the Court finds that ArvinMeritor would be unduly prejudiced by allowing Solaia to rely on new opinions offered by Nuschke at this late juncture. The Seventh Circuit teaches that the "expert witness discovery rules are designed to aid the court in its fact-finding mission by allowing both sides to prepare their cases adequately and efficiently and to prevent the tactic of surprise from affecting the outcome of the case." Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir.2000). ArvinMeritor has structured its summary judgment motion based on responding to Nuschke's expert opinions offered in his reports and deposition, and it is entitled to rely on those opinions as the framework of the case.
[12] The Court confines its analysis to the statements offered by ArvinMeritor as new or contradictory and statements offered by Solaia in response. Precedent repeatedly teaches that the Court has no duty to scour the record searching for arguments or facts on behalf of a party. See, e.g., Huynh v. Board of Educ., No. 01 C 2893, 2002 WL 500560, at *1 (N.D.Ill. April 2, 2002) (motion to strike denied when movant failed to identify any paragraphs with contradiction; no duty to scour record); accord Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 547 n. 10 (7th Cir.2002) ("[I]t is not the duty of this court to ferret through the record for support for [a party's] arguments.").
[13] In March 2003, this case was reassigned to this Court from the calendar of District Judge Ronald Guzman.
[14] "DDE" is Dynamic Data Exchange, an operating system tool that allows one program to communicate with another program running on the computer. (See D.E. 572 (Kehres Decl.) ¶ 12.)
[15] Nuschke does not define "OEM," but an Internet search revealed that the term refers to original equipment manufacturers. Webopedia: The # 1 Online Encyclopedia Dedicated to Computer Technology, "OEM" (available at http:**www.webopedia.com, last visited March 15, 2005). An OEM is "a company that has a special relationship with computer producers. OEMs buy computers in bulk and customize them for a particular application." Id.
[16] Solaia does point to portions of Nuschke's deposition where he discusses his familiarity (as opposed to his expertise) regarding DDE, but these statements hurt rather than help Solaia's case. (See ArvinMeritor's Strike Ex. 1 (Nuschke Dep.) at 82:5-13 ("Q: Do you understand how to program using DDEML? A: Yes, I've yes, I'm familiar with programs using DDE, yes. Q: Have you written programs using DDE? A:I yes. Well, actually my employees have written programs that use DDE. My involvement has been more from a managerial standpoint.").) Solaia also points to places in Nuschke's deposition where he discusses his familiarity or understanding of various aspects of Windows (see id. at 83:1-84:14; 90:6-12; 95:16-22; 102:19-23; 247:4-10; 298:4-299:6), but Solaia has not provided the Court with any testimony by Nuschke as to his expertise regarding Windows.
[17] The party offering the expert's testimony must establish by a preponderance of the evidence that the expert testimony is admissible and that the expert is qualified. See Daubert, 509 U.S. at 593, 113 S.Ct. 2786; see also Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir.1999) ("[T]he proponent of the testimony does not have the burden of proving that it is scientifically correct, but that by a preponderance of the evidence, it is reliable."); Stasior v. Nat'l R.R. Passenger Corp., 19 F.Supp.2d 835, 845 (N.D.Ill.1998).
[18] These statements and partial statements are those which ArvinMeritor challenged and the Court determined related to Windows or DDE protocol, minus the portions that merely reiterate ArvinMeritor's arguments or restate the testimony of other witnesses.
[19] ArvinMeritor also states that "Nuschke improperly refers to the add-in program as a `device driver,' a mistake no one in the industry would make and which is completely unsupported," but ArvinMeritor does not ask the Court to strike a particular paragraph. The Court will not scour the record and speculate as to which paragraphs of the Declaration ArvinMeritor challenges.
[20] Because the Court agrees with ArvinMeritor that it is entitled to summary judgment under the Jefferson Smurfit claim construction, the Court need not address construction issues decided in the previous litigation. The Court reserves the right to revisit the Jefferson Smurfit construction with respect to ArvinMeritor, if appropriate, in future instances, as the Court is not, as Solaia suggests, bound by the Jefferson Smurfit construction. At a minimum, as ArvinMeritor was not a party to the Jefferson Smurfit litigation, it is not collaterally estopped from litigating the claim construction of the '318 patent. See Vardon Golf Co. v. Karsten Mfg. Corp., 294 F.3d 1330, 1333 (Fed.Cir.2002) ("Under Seventh Circuit law, collateral estoppel, or issue preclusion, prevents a party from litigating an issue if: (1) the issue sought to be precluded is the same as that involved in an earlier action; (2) the issue was actually litigated; (3) determination of the issue was essential to a final judgment; and (4) the party against whom estoppel is invoked was represented in the prior action.") (collecting Seventh Circuit cases); In re Freeman, 30 F.3d 1459, 1465 (Fed.Cir.1994) ("To apply issue preclusion, the party against whom the estoppel is being asserted must have been accorded a full and fair opportunity to litigate in the prior court proceeding the very issue he now seeks to relitigate.").
[21] Other dictionary definitions of "spreadsheet" from the relevant time period also include the functionality of recalculation of other cells as part of the definition. See, e.g., Dictionary of Computing 358 (Oxford University Press 1986); Dictionary of Information Technology 318 (Dennis Longley and Michael Shain 1986). Indeed, one of the expert definitions offered by Solaia include this capability. (Solaia's Ex. 2 (Welch Dep.) at 255:8-11 (defining a spreadsheet program as a "a tool used in financial analysis and modeling that establishes mathematical relationships among numbers and formulas that appear in rows and columns").)
[22] Solaia's proposed definition also contradicts the patent's explicit differentiation of spreadsheet programs from other types of programs, such as a database or other analysis program, that can be used to transfer information. (See'318 patent, col. 3, lines 1-8 (reciting prior art systems which transfer information between the operating system program and "popular and commercially available spreadsheet, data base and analysis programs" and which allow for control of the processes "from the spreadsheet, data base or data analysis program").)
[23] In his Declaration, Nuschke relies, in part, on the Welch deposition testimony regarding derivative tags. (See Nuschke Decl. ¶ 91 (citing Solaia's Ex. 2 (Welch Dep.) at 262).) As described above, this testimony related to an entirely different program, RSView, and does not provide support for a conclusion that the ArvinMeritor systems at issue in this Motion can perform calculations using the text boxes in the visual displays.
[24] In the preferred embodiment, the corresponding structure to the spreadsheet means, the general purpose spreadsheet, allowed a user to enter "@ functions" into cells to execute actions. ('318 patent, col. 4, lines 56-58 ("The displayed spreadsheet presents cells into which the user can insert information and @ functions to execute desired arguments."); id., col. 8, lines 12-14 ("Spreadsheet program 26 inserts cells, menu driven commands and @ functions that can be inserted into cells."); id., col. 3, lines 61-64 ("These @READ and @WRITE functions become executed simply upon recalculating the displayed spreadsheet to effect the information transfers.").) The patent describes multiple @functions that are used to execute actions. For example, "[an @READ function] command in cells of the displayed spreadsheet causes the addressed PLC to transmit the information contained in certain addressed registers directly into that cell or relatively addressed cells in the displayed spreadsheet." (Id., col. 3, lines 56-61). Similarly, @WRITE function commands in cells of the displayed spreadsheet "transfer information contained in that cell or information contained in relatively addressed cells to be written into desired and addressed PLC registers." (Id., col. 3, lines 52-56) Other @functions are provided to execute various desired arguments. (Id., col. 8, lines 63-68.)
[25] Claim 11[A] is not written the mean-plus-function format. In claim 11[E], the phrase "indicating said equipment" merely modifies the noun "messages." That descriptor is not part of the means that causes, for example, the presentation of add-in menu commands or the movement of messages.
[26] Local Rule 56.1 calls for a "concise response to the movant's statement." L.R. 56.1(b)(3). Additional facts are properly set out in the non-movant's statement of additional facts. See L.R. 56.1(b)(3)(B); Kaplan v. City of Chicago, 2004 WL 2496462, at * 2 (N.D.Ill. Nov.4, 2004) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir.1995)) (striking additional facts submitted in responses); Parsons Tanning Co. ex rel. Weinstein v. Schwartz, 2004 WL 1593909, at *1 (N.D.Ill. July 15, 2004) (same); accord, e.g., Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1109 (7th Cir.2004) (collecting cases and stating, "`[W]e have emphasized the importance of local rules and have consistently and repeatedly upheld a district court's discretion to require strict compliance with its local rules governing summary judgment.'") (quoting Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir.2002)).
[27] "The purpose of the 56.1 statement is to identify for the Court the evidence supporting a party's factual assertions in an organized manner: it is not intended as a forum for factual or legal argument." Malec v. Sanford, 191 F.R.D. 581, 585 (N.D.Ill.2000). The Court notes that the difference between argument offered in a brief and a response to a statement of fact is not trivial. First, a summary judgment movant is entitled to reply to arguments made in the non-movant's response brief; it is not entitled to reply to the non-movant's response to its statement of facts. See Schulz v. Varian Med. Sys., Inc., 315 F.Supp.2d 923, 925 n. 1 (N.D.Ill.2004); accord Kozlowski v. Fry, 238 F.Supp.2d 996, 1000 n. 2 (N.D.Ill.2002) (citing White v. Sundstrand Corp., No. 98 C 50070, 2000 WL 713739, at *2 (N.D.Ill. May 23, 2000), aff'd, 256 F.3d 580 (7th Cir.2001)). If the Court were to allow Solaia to present this kind of argument to the Court in its response to a statement of fact, ArvinMeritor would unfairly need to give up some of its allotted pages responding to these additional arguments. Second, allowing such a practice as Solaia has attempted here would eviscerate pages limits set forth by the Court for briefing. Both parties were granted substantial extensions to the pages limits presumptively established by local rule. See L.R. 7.1 (limiting briefs to 15 pages absent prior approval of the court). Solaia, for example, was allowed to file a 49-page response brief. Solaia effectively flouted even this extension in its response, as it six times placed drawings and charts on the backs of other pages of its response brief (i.e. submitted double-sided brief pages). The Court has excused this improper practice, which the Court has never seen another litigant even attempt. The Court will not, however, allow Solaia to commit the doubly-flawed stop of inserting new additional briefing and new factual assertions into the case through its response to ArvinMeritor's statement of facts (as opposed to Solaia's own statement of facts and response brief to which ArvinMeritor gets an appropriate opportunity to fairly respond).
[28] The fact that Nuschke offers this opinion does not help Solaia. When determining whether an expert's opinion is sufficient to create an issue of fact, the Court determines whether the factual foundation provided by the expert for his opinion would support a finding of infringement. See Arthur A. Collins, 216 F.3d at 1047-48.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11205 AUGUST 31, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00100-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YUSUF EL WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 31, 2006)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Gwendolyn Spivey, appointed counsel for Yusuf El Williams in this direct
criminal appeal, has moved to withdraw from further representation of the
appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals
that counsel’s assessment of the relative merit of the appeal is correct. Because
independent examination of the entire record reveals no arguable issues of merit,
counsel’s motion to withdraw is GRANTED, and the revocation of Williams’s
supervised release and sentence are AFFIRMED.
2
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANDRE TAYLOR,
Plaintiff-Appellant,
v. No. 04-2056
FEDERAL EXPRESS CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(CA-03-195-RDB)
Argued: September 21, 2005
Decided: November 16, 2005
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Traxler and Judge Shedd joined.
COUNSEL
Bruce Michael Bender, VAN GRACK, AXELSON, WILLIAM-
OWSKY, BENDER & FISHMAN, P.C., Rockville, Maryland, for
Appellant. Michael Edwin Gabel, FEDERAL EXPRESS CORPORA-
TION, Memphis, Tennessee, for Appellee.
2 TAYLOR v. FEDERAL EXPRESS CORP.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Andre Taylor claims that Federal Express Corporation violated the
Americans with Disabilities Act (ADA) when it failed to accommo-
date his back impairment and terminated his employment. The district
court granted summary judgment to Fed Ex, holding that Taylor is not
disabled under the ADA.1 We affirm.
I.
For twelve years, beginning in 1988, Taylor worked as a Fed Ex
courier in Maryland. In 2000, he injured himself while working and
began to suffer from back pain. Taylor received treatment, but none-
theless "had difficulty bending, standing for prolonged period[s] of
time, and lifting more than 30 lbs." He was unable to return to his job
as a courier because that position required lifting packages weighing
up to 75 pounds. Taylor’s treating physician determined that his "per-
sistent pain" meant that Taylor "could not go back to work as a
laborer", and a physical therapist recommended "returning to work at
the LIGHT-MEDIUM (30 lbs.) level with restricted sitting and stand-
ing tolerances and restricted stair climbing and overhead reaching."
Fed Ex provided Taylor with a temporary light-duty job for 90
days, after which he was placed on short-term disability leave fol-
lowed by long-term disability leave. In February 2001, Fed Ex deter-
mined that Taylor was not entitled to long-term disability benefits and
gave him the option of returning to work as a courier or taking a 90-
day leave of absence to look for other work. Fed Ex also notified Tay-
lor of his right to appeal the disability benefits determination. Taylor
appealed the decision and did not return to work as a courier. On
March 6, 2001, Fed Ex sent Taylor a letter confirming that "you are
1
Taylor also appeals the district court’s decision that the statute of lim-
itations bars his claims arising prior to May 25, 2001, arguing that he did
not receive unequivocal notice of his discharge until September 25, 2001.
Brief of Appellant at 47-49. Because we hold that Taylor is not disabled
under the ADA, we need not reach this question.
TAYLOR v. FEDERAL EXPRESS CORP. 3
requesting a 90 day Personal Leave of Absence to seek positions
within Fed Ex for which you qualify and can perform."
In June 2001, Fed Ex extended Taylor’s leave of absence pending
an independent medical examination. The physician who conducted
that examination cleared Taylor to return to work. On September 25,
2001, Fed Ex sent Taylor a letter offering him a part-time courier
position and stating, "if you are unable to accept this position, your
voluntary resignation will be processed for failure to return from
Leave of Absence." Taylor unsuccessfully applied for a dispatcher
position on September 27, 2001, and Fed Ex sent a letter discharging
him on October 15, 2001.
After Fed Ex discharged Taylor, he unsuccessfully looked for other
employment for six months. He also met with a vocational consultant
who evaluated his employment prospects. The vocational consultant
estimated that Taylor’s work experience and educational background
qualified him for 3,281 job titles out of the 12,741 job titles listed in
the Department of Labor’s Dictionary of Occupational Titles. Accord-
ing to the consultant, Taylor’s injury excluded him from 1,871 job
titles, or 57 percent of the job titles for which he would have been
qualified absent his injury. These figures translate into disqualifica-
tion from 370,000 jobs in the Baltimore-Washington metropolitan
area. Despite his impairment, Taylor remained able to perform the
work involved in 1,410 job titles, or over 130,000 jobs in the region.
On March 21, 2002, Taylor filed charges against Fed Ex with the
Equal Employment Opportunity Commission (EEOC), claiming that
Fed Ex discriminated against him on the basis of his disability. Six
months later the EEOC sent Taylor a right-to-sue letter, explaining
that the agency had been "unable to conclude that the information
obtained establishes violations of the statutes." On November 15,
2002, Taylor brought suit against Fed Ex in the Circuit Court for
Prince George’s County, Maryland; Fed Ex removed the case to fed-
eral court.
In deposition testimony, Taylor conceded that he drives over one
hour each way to college, sits in classes for two to three hours, per-
forms yard work, camps with his family, plays catch with his chil-
4 TAYLOR v. FEDERAL EXPRESS CORP.
dren, and cleans his house. After discovery, the district court granted
summary judgment to Fed Ex.
II.
In order to recover under the ADA, a plaintiff must demonstrate
that he or she has a disability. 42 U.S.C.A. § 12112(a) (West 2000).
The ADA defines a disability as "(A) a physical or mental impairment
that substantially limits one or more of the major life activities . . . ;
(B) a record of such an impairment; or (C) being regarded as having
such an impairment." 42 U.S.C.A. § 12102(2) (West 2000). Taylor
claims that his back impairment substantially limits his ability to work
and therefore constitutes a disability under the ADA.
The district court assumed without deciding that working is a major
life activity under the ADA. The Supreme Court has expressly
declined to resolve this question. See Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184, 200 (2002); Sutton v. United Air Lines, Inc.,
527 U.S. 471, 492 (1999). Because this case does not require us to
decide the issue, we too will simply assume that working is a major
life activity.
The district court began its analysis by recognizing that a disability
determination must be an individualized inquiry. EEOC v. Sara Lee
Corp., 237 F.3d 349, 352 (4th Cir. 2001). The court then identified
several cases in which we have held that a lifting restriction alone
does not constitute a disability under the ADA. See, e.g., Pollard v.
High’s of Baltimore, Inc., 281 F.3d 462, 470 (4th Cir. 2002); Williams
v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir. 1996).2
The court also noted that Taylor’s ability to perform a broad range of
activities, including lengthy daily drives and a multitude of household
tasks, "provides insight into his degree of impairment." "After a thor-
ough review of all the parties’ submissions," the court concluded that
2
Our opinion in Williams should not be read to create a per se rule that
a twenty-five pound lifting restriction can never constitute a disability.
The Supreme Court has made clear that disability determinations require
an individualized inquiry. See Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S. 184, 198 (2002); Albertson’s, Inc., v. Kirkingburg, 527 U.S.
555, 556 (1999).
TAYLOR v. FEDERAL EXPRESS CORP. 5
Taylor could not "establish that his alleged injuries constitute[d] a dis-
ability under the ADA."
On appeal, Taylor argues that the district court failed to give ade-
quate consideration to the vocational report indicating that his impair-
ment precluded him from 1,871 kinds of jobs and "locked him out of
the job market." Brief of Appellant at 22.
Such vocational evidence is certainly relevant in determining
whether an impairment affecting an individual’s ability to work con-
stitutes a disability under the ADA. As the Supreme Court has
explained:
To be substantially limited in the major life activity of work-
ing, then, one must be precluded from more than one type
of job, a specialized job, or a particular job of choice. If jobs
utilizing an individual’s skills (but perhaps not his or her
unique talents) are available, one is not precluded from a
substantial class of jobs. Similarly, if a host of different
types of jobs are available, one is not precluded from a
broad range of jobs.
Sutton, 527 U.S. at 492; see also Toyota, 534 U.S. at 200 ("With
respect to the major life activity of working[,] [t]he term substantially
limits means significantly restricted in the ability to perform either a
class of jobs or a broad range of jobs in various classes as compared
to the average person having comparable training, skills and abilities."
(quoting EEOC regulations) (emphases and alterations in original)).3
Similarly, we note that several of our sister circuits have held, in
3
The Supreme Court has declined to indicate "what level of deference,
if any," courts should give to the EEOC’s interpretive guidelines. Toyota,
534 U.S. at 194. However, the Court has indicated that the EEOC guide-
lines "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) (quoting Gen. Elec. Co. v.
Gilbert, 429 U.S. 125, 141-42 (1970)) (citations and internal quotation
marks omitted).
6 TAYLOR v. FEDERAL EXPRESS CORP.
cases involving lifting restrictions like the one at issue here, that the
requisite individualized inquiry involves consideration of the impair-
ment’s effect on the plaintiff’s employment prospects. See, e.g., Web-
ner v. Tital Distrib., Inc., 267 F.3d 828, 834 (8th Cir. 2001); Burns
v. Coca-Cola Enters., Inc., 222 F.3d 247, 254 (6th Cir. 2000); Quint
v. A.E. Staley Mfg. Co., 172 F.3d 1, 11-12 (1st Cir. 1999).
However, after review of the entire record, including the vocational
report upon which Taylor so heavily relies, we cannot conclude that
the district court erred in granting summary judgment to Fed Ex.
Although the vocational evidence that Taylor presented suggests that
his impairment precluded him from a number of jobs for which he
would be qualified absent his injury, it does not suffice to create a
jury question as to whether the impairment substantially limited the
asserted major life activity, i.e. working. Rather, the record indisputa-
bly reveals that Taylor could perform a range of daily activities
requiring endurance, flexibility, and some strength, and that even with
the impairment he qualified for over 1,400 different types of jobs and
over 130,000 actual jobs in the Baltimore-Washington region.
To hold that in the face of such evidence a factfinder could con-
clude that Taylor was substantially limited in the major life activity
of working would be to ignore the Supreme Court’s recent directive
in Toyota. There the Court emphasized that the terms "substantially
limits" and "major life activity" "need to be interpreted strictly to
create a demanding standard for qualifying as disabled." Toyota, 534
U.S. at 197; see also Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir.
2002) (holding that evidence that plaintiff’s impairment caused a 47
percent loss of access to the job market was insufficient to establish
a disability). Given that Taylor admittedly retains the ability to
engage in a wide range of daily activity and to work in over 100,000
jobs in his geographic region, a reasonable juror could not find that
his impairment substantially limits his ability to work, or for that rea-
son renders him disabled for purposes of the ADA.
III.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 11, 2016
Plaintiff-Appellee,
v No. 325730
Wayne Circuit Court
CARL RENE BRUNER II, LC No. 14-008324-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 326542
Wayne Circuit Court
MICHAEL DEMOND LAWSON, LC No. 14-005613-FC
Defendant-Appellant.
Before: METER, P.J., and SHAPIRO and O’BRIEN, JJ.
SHAPIRO, J. (concurring).
I concur with the majority in full as to defendant Lawson. I also concur as to defendant
Bruner, but write separately in order to more fully address the hearsay issue. As the majority
observes, the challenged statements were non-testimonial, and so no Confrontation Clause issue
arises. The question then is whether the statement was admissible pursuant to MRE 804(3),
which allows for admission of a hearsay statement if the statement is against the declarant’s
penal interest. I do not agree with the majority’s view that the trial court’s instruction to the jury
to consider the evidence only against defendant Lawson was curative. Some limiting
instructions are effective and some are not. In this case I think it would be erroneous to conclude
that the jury could ignore the significance of the statement as to Bruner because it was the only
evidence that put a gun in his hand at the time of the shooting. Expecting jurors to
compartmentalize the relevancy of this very significant evidence so as to apply it only to one
defendant is simply unrealistic. And given that Webb’s testimony had been the subject of pre-
trial discussion, the trial court would, in my view, have been wise to empanel two juries, as was
requested, rather than risk a retrial.
-1-
Nevertheless, I believe I am bound to affirm. Although the federal rule of evidence
concerning hearsay statements against interest has been limited to allow admission only of those
portions of the statements that are inculpatory as to the declarant, Williamson v United States
512 US 594, 600-601; 114 S Ct 2431; 129 L Ed 2d 476 (1994), the same is not true concerning
the Michigan rule of evidence. In People v Taylor, 482 Mich 368, 379 n 6; 759 NW2d 361
(2008), the Michigan Supreme Court appears to have rejected the Williamson analysis and
adopted a broader view of the exception allowing admission of an entire statement even if only
part of the statement is against the declarant’s penal interest. Moreover, even if Williamson
controlled, the hearsay reference to the gun might have been admissible as to Bruner because
even that portion of the statement could be construed as against Lawson’s penal interest because
Lawson’s awareness that his passenger was carrying a gun was important to proving that he
knowingly aided and abetted the murder.
/s/ Douglas B. Shapiro
-2-
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2009
No. 08-50437
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RIGOBERTO MOLINA-TRUJILLO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-750-ALL
Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Rigoberto Molina-Trujillo
presents arguments that he concedes are foreclosed by United States v. Cepeda-
Rios, 530 F.3d 333, 335-36 (5th Cir. 2008), which held that even after Lopez v.
Gonzales, 549 U.S. 47 (2006), a second state conviction for simple possession of
a controlled substance qualifies as an aggravated felony that supports the
*
Pursuant to 5 TH C IR. 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 5 TH C IR. R. 47.5.4.
No. 08-50437
imposition of an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C).** The
Government’s motion for summary affirmance is GRANTED, and the judgment
of the district court is AFFIRMED.
**
There is split in the circuit courts that have addressed this issue
subsequent to Lopez. Compare United States v. Pacheco-Diaz, 506 F.3d 545, 550
(7th Cir. 2007) (second state law controlled substance possession conviction
constitutes aggravated felony warranting eight-level increase under
§ 2L1.2(b)(1)(C) with Rashid v. Mukasey, 531 F.3d 438, 446 (6th Cir. 2008)
(holding in removal proceeding that second state conviction for misdemeanor
possession of a controlled substance did not constitute drug trafficking crime).
2
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489 F.Supp. 58 (1980)
BELLEFONTE INSURANCE COMPANY, a Kentucky Corporation, Plaintiff,
v.
Mark N. WAYSON et al., Defendants.
Civ. No. F79-8.
United States District Court, D. Alaska.
March 25, 1980.
*59 Paul Waggoner, Biss & Holmes, Anchorage, Alaska, for plaintiff.
Richard D. Savell, Aschenbrenner & Savell, Fairbanks, Alaska, for Wayson.
Mark A. Sandberg, Camarot, Sandberg & Hunter, Anchorage, Alaska, for Providence and Preferred.
Jacob Allmaras, Garretson & Jarvi, Anchorage, Alaska, for Corroon & Black Dawson & Co.
Herbert P. Kuss, Deputy City Atty., Fairbanks, Alaska, for City of Fairbanks.
MEMORANDUM AND ORDER
von der HEYDT, Chief Judge.
THIS CAUSE comes before the court on cross motions for summary judgment.
FACTUAL BACKGROUND
Mark Wayson, a Fairbanks police officer, brought an action in this court on October 15, 1976, against the City of Fairbanks and its City Manager, Edward Martin. The complaint challenged actions taken against Wayson in response to his performance of a controversial arrest.
While several grounds for relief were urged by Wayson in his complaint, two prime contentions emerged. First, Wayson alleged that his procedural rights were denied; that he was never given a chance to present "his side of the story." Second, Wayson claimed that the City had engaged in racial discrimination, alleging that the actions taken against him would not have been taken against a black police officer.
The City tendered the complaint within the appropriate notice periods to defendant Providence Washington Insurance Company and plaintiff Bellefonte Insurance Company. The insurers did not respond, and their silence constituted a rejection of the City's claim. The City thereafter had no choice but to retain counsel for its defense.
The federal court case was soon dismissed by virtue of a stipulation by the parties that the action would be brought anew in state court. When the new state court action was in fact commenced, the City did not and had no obligation to tender the complaint once again to the insurers. First, the federal and state complaint alleged virtually identical claims. The City was therefore fully justified in failing to perform what reasonably appeared to be, in light of the insurers' prior rejection, a futile act. Second, had Bellefonte not breached its duty to defend, as set forth fully below, it would have been a party to the federal court proceeding and would have had notice of any change in forum. Thus, the state court decision was a direct consequence of Bellefonte's breach of its duty to defend the City against the action brought in federal court.
The jury in the state court action returned a verdict of $200,000 compensatory damages against the City of Fairbanks and Edward Martin, and $200,001 punitive damages against Edward Martin.
THE INSURANCE CONTRACTS AND THE DUTY TO DEFEND
The City's insurance contracts with Providence Washington and Bellefonte clearly provided coverage unless the following exclusions applied:
*60 "This insurance does not apply:
(c) to personal injury sustained by any person as a result of an offense directly or indirectly related to the employment of such person by the named insured." (Providence Washington policy)
"D. OTHER DEFINITIONS
(a) `Personal injury' means
(4) racial or religious discrimination not committed by or at the direction of the Insured" (Bellefonte policy)
The exclusion in the Providence Washington policy undoubtedly applied to this "offense," which was "directly or indirectly related" to the employment of Mark Wayson by the City. In fact, the City does not oppose Providence Washington's motion for partial summary judgment on this issue. Bellefonte's contention that Providence Washington committed unfair trade practices and thereby waived its potential policy defenses borders on the ludicrous. Providence Washington's contract with the City not only excluded from coverage claims of this type, but such an exclusion was so explicit as to relieve Providence Washington of any duty to defend.
The same cannot be said of the Bellefonte exclusion. Bellefonte persistently attempts to label the City's actions against Wayson as excluded "racial discrimination." The facts simply do not support this assertion. While racial discrimination was one of the claims made by Wayson against the City, the additional claims related to the independent grounds of denial of procedural rights, breach of contract, and violation of City Ordinances. While Bellefonte argues that these actions were merely the means through which the racial discrimination was effectuated, the complaint itself does not allege or establish that these additional claims hinged on the City's alleged discriminatory motive.
The issue of the duty of an insurer to defend claims brought against the insured is distinct from the issue of whether policy coverage of the claim exists. In determining when the duty to defend arises, "[i]t is the allegation in the complaint that controls. If it comprehends an injury that may be within the policy, then the promise to defend includes it." Theodore v. Zurich General Accident and Liability Insurance Company, 364 P.2d 51, 55 (Alaska 1961). In the present case, some of the allegations in Wayson's complaint comprehended an injury that might have been within the Bellefonte policy. Bellefonte had a duty to defend the City. That duty was breached.
CONSEQUENCES OF THE FAILURE TO DEFEND
An examination of relevant Alaska authority reveals that the situation presented by this case has never come before the Alaska Supreme Court. Afcan v. Mutual Fire, Marine and Inland Insurance Co., 595 P.2d 638 (Alaska 1979), held that:
where an insurance company has wrongfully refused to defend, it may nevertheless in a subsequent action on the policy attempt to show that the liability is not covered by the policy, where liability is imposed by a settlement agreement involving both claims within policy coverage and claims not within policy coverage. 595 P.2d 638, 647.
Different considerations are implicated where, as here, it is a jury verdict in a fully litigated action that is being examined, and not a mere settlement agreement. A court should not engage in a speculative determination of the jury's allocation of damages among the various excluded and included claims. Nor is it appropriate for a court to risk impeaching the jury's verdict either through a de novo finding on the issue of coverage or through a costly and time-consuming re-trial of that issue.
Whether the jury based its award on claims coming within the coverage afforded by Bellefonte is unknown and irrelevant. Bellefonte "became liable for the amount of the judgment because this was the natural consequence of its breach of the insurance contract." Theodore, 364 P.2d 51, 56. It is not for Bellefonte to contest coverage at this late date when its breach forced the City to take up its own defense and incur liability in the process.
*61 A final question arises concerning the propriety of holding Bellefonte liable for the punitive damage portion of the jury's award. While the Alaska Supreme Court has not ruled on this issue as well, a strong public policy finding an implied exception to coverage of punitive damages has been adopted in other states. Those states have recognized that the purpose of punishing a wrongdoer through a punitive damage award is undermined when the wrongdoer is allowed to shift the liability for his conduct to the insured.
Yet that policy is not favored by the finding of an implied exception to coverage in the present case. Where an insured has been unfairly forced to defend, a jury's punitive damage is no less a consequence of the insurer's breach of its duty to defend than the compensatory portion of the award. The competing policy of holding liable an insurer which fails to meet its clear contractual duty to defend is weightier than the punishment rationale under the facts of this case.
Accordingly IT IS ORDERED:
1. THAT defendant Providence Washington Insurance Company's motion for partial summary judgment is granted.
2. THAT defendant City of Fairbanks and Edward Martin's motion for summary judgment is granted.
3. THAT plaintiff Bellefonte Insurance Company's motion for summary judgment is denied.
4. THAT the clerk may prepare a final judgment form stating that Bellefonte Insurance Company is liable to defendant City of Fairbanks and Edward Martin in the amount of $400,001 under policy # UL 450057, issued August 1, 1973; and that the City of Fairbanks and Edward Martin do not enjoy coverage under policy # GLA 43829 issued by Providence Washington Insurance Company of Alaska for the claims of Mark Wayson in Wayson v. City of Fairbanks and Edward Martin, No. 77-1581, filed in the Superior Court of the State of Alaska, Fourth Judicial District, on August 22, 1977.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6880
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEJUAN ANDERKO WATKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:02-cr-00106-F; 7:05-cv-00019-F)
Submitted: August 23, 2007 Decided: August 30, 2007
Before WILLIAMS, Chief Judge, and WILKINS and HAMILTON, Senior
Circuit Judges.
Dismissed by unpublished per curiam opinion.
Dejuan Anderko Watkins, Appellant Pro Se. Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
DeJuan Anderko Watkins seeks to appeal the district
court’s orders and judgment denying relief on his 28 U.S.C. § 2255
(2000) motion and denying his motion to alter or amend the
judgment. The orders are not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000). A certificate of appealability will not issue
absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude Watkins has not made
the requisite showing. Accordingly, we deny a certificate of
appealability, deny leave to proceed in forma pauperis and dismiss
the appeal. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
- 2 -
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225 Kan. 644 (1979)
594 P.2d 159
CARL H. GARRISON and EDITH L. GARRISON, Appellees,
v.
CHANDLER PRICE BERRYMAN and DOROTHY BERRYMAN, Appellants.
No. 49,503
Supreme Court of Kansas.
Opinion filed May 5, 1979.
T. Richard Liebert, of Liebert & Liebert, of Coffeyville, argued the cause and was on the brief for the appellants.
Robert L. Eastman and Morris D. Hildreth, of Becker, Hildreth, Eastman & Gossard, of Coffeyville, argued the cause and Robert L. Eastman was on the brief for the appellees.
The opinion of the court was delivered by
McFARLAND, J.:
This is an appeal from a judgment rescinding a real estate transaction on the ground of mutual mistake. The purchasers are plaintiffs Carl H. and Edith L. Garrison. The sellers are defendants Chandler Price Berryman and Dorothy Berryman. Defendants appeal from the judgment rescinding the transaction and returning plaintiffs' purchase price of $6,000, plus interest.
The facts are rather complex and by virtue of the issues raised they must be set forth in some detail. The parties actively involved in the factual situation are Carl H. Garrison and Chandler Price Berryman and, for simplicity, we will refer to them as plaintiff and defendant, respectively. The real estate in question is situated in Coffeyville, Kansas. In approximately 1955, defendant purchased a tract of land which included what ultimately became Lot 5. Sycamore Creek runs through the tract and at the time of defendant's purchase of the land he received a topographical map of the area showing the high water mark to be 730 feet. Defendant built his residence on what became Lot 6 of the tract and was residing in that home at all times relevant to his dealings with plaintiff. Defendant is a former chairman of the planning and zoning commission of the City of Coffeyville.
In December of 1971 the City of Coffeyville adopted Ordinance No. G-127, providing a method for determining floodways *645 and floodplains and establishing permitted usages within such floodways and floodplains. Structures for human habitation were not to be permitted in floodways. In April of 1973 the Army Corps of Engineers completed its flood insurance study for the City of Coffeyville. In the fall of 1974 the city held hearings relative to the flood insurance study. Defendant did not attend any of these meetings, but was aware they had occurred. In December of 1974 defendant talked to Ron Stevenson, floodplain administrator and assistant city engineer, at Stevenson's office. At that time the topic of conversation was the Corps study and the final map to be prepared therefrom by the city engineer's office. It was anticipated that the final map would be prepared in early 1975. Defendant was concerned over the fact the study placed some lots he owned (including Lot 5, at issue herein) partially in the floodway and floodplain. Defendant disputed that the lots were subject to flooding. Stevenson advised defendant that the map was still subject to finalization. Defendant had no further conversations with Stevenson concerning Lot 5. On February 12, 1975, the city enacted Ordinance No. G-75-01, which directed that the official floodplain zoning map be prepared from the study.
In January of 1976 plaintiff contacted defendant about the purchase of Lot 5, the lot immediately north of defendant's residence (both lots being situated in the Berryman and Schmid Addition). Plaintiff and defendant conferred on the lot site concerning its purchase. Plaintiff advised defendant the intended use of the property was as a residence for his family. The parties negotiated on the purchase of the lot on two or three other occasions. As there had been some general publicity on the flood study, plaintiff asked defendant about possible flood problems. Defendant advised plaintiff that he had been personally familiar with the lot for more than fifty years and that the lot had never been flooded. Defendant produced the old topographical map, which indicated Lot 5 was above the critical 730-foot high water mark. The asking price for the lot was $7,000. The parties ultimately agreed on a purchase price of $6,000 with a condition that plaintiff would buy the materials for the construction of his home from defendant's lumber yard or else pay $1,000 in liquidated damages. In the alternative, if construction of the home did not commence before January 1, 1978, the damages would also be due. On February 17, 1976, the parties signed an agreement *646 which incorporated these provisions. On March 2, 1976, plaintiff paid defendant the $6,000 and received the abstract and deed to Lot 5. On March 10, 1976, the final map was accepted and adopted by the City of Coffeyville.
In April of 1976, plaintiff contacted Stevenson about what procedure was necessary for acquisition of a building permit. Plaintiff had with him a sketch of the house he desired to build. He was then advised that over half his lot was in the floodway and that no home could be built on that portion. He was further advised that the balance of his lot was in the floodplain and that any home on this portion of the lot could have no basement, would require a fill to raise the elevation and that, due to setback provisions, only a home smaller in size than his sketched home could be built. Plaintiff then requested that defendant return his money and the request was denied. This action resulted and the district court found defendant knew or should have known of the floodway-floodplain problem, and granted rescission on the ground of mutual mistake. Defendant appeals.
Several issues are raised on appeal. Defendant contends rescission was an improper remedy. He relies on Lohmeyer v. Bower, 170 Kan. 442, 227 P.2d 102 (1951), wherein this court held:
"Municipal ordinances relating to the use of land or the location and character of buildings that may be located thereon in existence at the time of the execution of a contract for the purchase of real estate are not such encumbrances or burdens on title as may be availed of by a vendee to avoid the agreement on the ground they render his title unmarketable." Syl. ¶ 1.
Lohmeyer is readily distinguishable, as the agreement therein was sought to be avoided on the ground of unmarketable title. In the case before us the ground on which rescission was sought is mutual mistake.
General rules on the nature of rescission are set forth in Dreiling v. Home State Life Ins. Co., 213 Kan. 137, Syl. ¶¶ 4-6, 515 P.2d 757 (1973) (rescission of life insurance contract):
"Rescission of a contract is the annulling or abrogation or unmaking of the contract and the placing of the parties to it in status quo. It necessarily involves a repudiation of the contract and a refusal of the moving party to be further bound by it.
"Rescission is an equitable remedy designed to afford relief from contracts entered into through mistake, fraud, or duress. Ordinarily, the nature of relief asked in such cases must be such as to place the parties in their original situation.
*647 "The general rule is that one who seeks to rescind a contract, or to have equity rescind it, must place the other party in substantially the same condition he was in when the contract was executed, but there are a number of exceptions to the rule."
See Whiteley v. O'Dell, 219 Kan. 314, 319, 548 P.2d 798 (1976) (rescission based on breach of contract for failure to build a house to certain specifications).
In Dover Pool & Racquet Club, Inc. v. Brooking, 366 Mass. 629, 322 N.E.2d 168 (1975), the parties entered into a written contract for sale of land. Unknown to the parties was a recent proposed zoning amendment that would have retroactive effect. The purchaser desired to use the land for a nonprofit club. The zoning ordinance would require a special permit for such use. The court said:
"Thus at the time the contract was made both parties made the assumption that the zoning by-laws interposed no obstacle to the use of the premises for a nonprofit tennis and swim club. That assumption was mistaken, and we think it was a basic assumption on which the contract was made. It could not yet be said that the purchaser's principal purpose had been frustrated. Cf. Restatement 2d: Contracts (Tent. draft No. 9, April 8, 1974), § 286 (2), and illustration 6. But a right of vital importance to the purchaser did not exist, and as a result of the mistake enforcement of the contract would be materially more onerous to the purchaser than it would have been had the facts been as the parties believed them to be. The contract was therefore voidable by the purchaser unless it bore the risk of the mistake. The agreement does not provide for that risk, and the case is not one of conscious ignorance or deliberate risk-taking on the purchaser's part. Nor do we think there is any common understanding that purchasers take the risk of the unusual predicament in which the purchaser found itself. We therefore agree with the judge's conclusion that the contract was voidable for mutual mistake of fact." 366 Mass. at 633-34.
In Millman v. Swan, 141 Va. 312, 127 S.E. 166 (1925), both parties mistakenly assumed the property was outside city fire limits and therefore had no restrictions on type of building. The buyer sought specific performance with abatement of price. This the court denied, holding there was mutual mistake of fact and that both parties had equal access to the ordinance. It held there was no deficiency in title justifying abatement, but the buyer could have the contract rescinded at its option.
Rescission on the ground of mutual mistake was an appropriate remedy herein. Both parties knew the land was sold for the purpose of constructing a home and that fact is borne out by the inclusion of the building materials/liquidated damages provisions in the agreement. Defendant objects to the admission of the *648 agreement and parol evidence of the negotiations. This point is without merit as such evidence is admissible when mutual mistake is claimed. Stapleton v. Hartman, 174 Kan. 468, 471, 257 P.2d 113 (1953); Fontron v. Kruse, 103 Kan. 32, 38, 172 Pac. 1007 (1918); see Griesa v. Thomas, 99 Kan. 335, Syl. ¶ 4, 161 Pac. 670 (1916). The district court held defendant knew or should have known of the floodway-floodplain restrictions and prohibitions, but stopped short of finding fraud on the part of defendant. Instead, the court found mutual mistake, rescinded the transaction, and placed the parties in status quo. Substantial competent evidence exists for the finding of mutual mistake and it will not be disturbed on appeal.
Defendant next urges rescission should not have been granted as plaintiff accepted the statements of Stevenson, floodplain administrator and assistant city engineer, and did not formally proceed to attempt to secure a building permit. Defendant, on cross-examination of Stevenson, elicited testimony that the map adopted by the city was based on the Corps survey and was not the result of an independent survey. Stevenson admitted the map might not be precisely accurate as to where the floodway line was on Lot 5. Defendant produced no evidence as to where the line should properly be drawn. Apparently, neither party had an independent survey made. The ordinance prohibited the construction of structures for human habitation within the floodway and placed restrictions on structures in the floodplain. Stevenson, by ordinance, was the person who had charge of building permits in both the floodway and floodplain. The law does not require a person to do a vain and useless act. Plaintiff was not required, under the facts herein, to "fight city hall," in what would appear to be a losing battle. There is nothing preventing defendant from "picking up the banner" and seeking to change the floodway designation on Lot 5.
Numerous other points raised on appeal need not be determined by virtue of the results previously reached herein.
The judgment is affirmed.
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4 F.3d 985
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.Ronald Ervin GIBSON, Petitioner-Appellant,v.STATE of NORTH CAROLINA, Respondent-Appellee.
No. 92-6365.
United States Court of Appeals,Fourth Circuit.
Submitted: August 30, 1993.Sept. 13, 1993.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert D. Potter, District Judge. (CA-90-283-P-C-C)
Kenneth P. Andresen, Caudle & Spears, Charlotte, North Carolina, for Appellant.
Lacy Herman Thornburg, Office of the Attorney General of North Carolina, Raleigh, North Carolina, for Appellee.
W.D.N.C.
DISMISSED.
Before PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
OPINION
1
Ronald Ervin Gibson seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C.Sec. 2254 (1988). Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court on the ineffective assistance of counsel claims. Gibson v. State of North Carolina, No. CA-90-283-P-C-C (W.D.N.C. Mar. 4, 1992). With respect to the invalid guilty plea claim, we find that the facts as stated by Gibson show the seven-year sentence was necessarily speculative, because at the time he entered the plea he did not know whether he would receive the substantial assistance finding. Such a prediction by counsel is insufficient to justify relief. See Little v. Allsbrook, 731 F.2d 238 (4th Cir. 1984). Further, even assuming that the alleged seven-year sentence guarantee states a constitutional claim, Gibson failed to carry his burden of showing that he thought he was guaranteed a seven-year sentence if he received the substantial assistance finding. 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
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Case: 11-41093 Document: 00512027530 Page: 1 Date Filed: 10/22/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 22, 2012
No. 11-41093
Summary Calendar Lyle W. Cayce
Clerk
DEAMUS TROY CASTERLINE,
Petitioner-Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:09-CV-164
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Deamus Troy Casterline, Texas prisoner # 399472, appeals the district
court’s dismissal with prejudice of his 28 U.S.C. § 2254 petition for a writ of
habeas corpus. This court granted a certificate of appealability (COA) to
determine if the district court erred in denying Casterline’s claims that (1) the
Texas Court of Criminal Appeals’ (TCCA) decision in Ex parte Franks, 71 S.W.3d
*
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: 11-41093 Document: 00512027530 Page: 2 Date Filed: 10/22/2012
No. 11-41093
327, 328 (Tex. Crim. App. 2001), gives rise to Due Process implications in light
of the Supreme Court’s holding in Rogers v. Tennessee, 532 U.S. 451 (2001), and
(2) there are Ex Post Facto implications to the state’s policy, adopted after the
commission of Casterline’s offense, of keeping violent offenders in prison longer
in order to receive federal funds under the Violent Offender
Incarceration/Truth-in-Sentencing Act.
Casterline has moved to strike those portions of his opening and reply
briefs that raise Ex Post Facto claims based on the state’s receipt of funding
under the Truth-in-Sentencing Act. That motion is granted. He has also filed
a motion seeking leave to file a supplemental brief discussing a recent Third
Circuit case, and he has discussed that case in a letter filed pursuant to Rule
28(j) of the Federal Rules of Appellate Procedure. The motion for leave to file a
supplemental brief is denied. Finally, he has filed two motions requesting that
this court take judicial notice of certain legislative histories and bill analyses.
These motions are denied as unnecessary. See United States v. Schmitt, 748
F.2d 249, 255 (5th Cir. 1984).
On appeal from the denial of a § 2254 petition, this court reviews the
district court’s factual findings for clear error and its legal conclusions de novo,
applying the same standard of review that was applicable to the district court’s
review of the state court decision. Rabe v. Thaler, 649 F.3d 305, 308 (5th Cir.
2011). A federal court may not grant habeas relief on claims adjudicated on the
merits in state court unless the adjudication of the claim resulted in a decision
that was (1) “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States,” or (2) “based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” § 2254(d).
The December 1984 murder for which Casterline was convicted garnered
him a sentence of life imprisonment. At the time Casterline committed his
offense in 1984, he was eligible for release to mandatory supervision. See
2
Case: 11-41093 Document: 00512027530 Page: 3 Date Filed: 10/22/2012
No. 11-41093
Franks, 71 S.W.3d at 327-28. In 2001, the TCCA held in Franks that “a life
sentenced inmate is not eligible for release to mandatory supervision” under the
pertinent statute. Id. at 327. The holding in Franks was based on the
conclusion that “it is mathematically impossible to determine a mandatory
supervision release date on a life sentence because the calendar time served plus
any accrued good conduct time will never add up to life.” Id. at 328. Casterline
maintains that the Franks decision was unexpected and indefensible and
deprived him of fair warning of the punishment for his offense.
“[A] judicial alteration of a common law doctrine of criminal law violates
the principle of fair warning, and hence must not be given retroactive effect, only
where it is ‘unexpected and indefensible by reference to the law which had been
expressed prior to the conduct in issue.’” Rogers, 532 U.S. at 462 (quoting Bouie
v. City of Columbia, 378 U.S. 347, 354 (1964)). The Court in Rogers explained
that the fair warning concept inherent in the Due Process Clause relates to “the
constitutionality of attaching criminal penalties to what previously had been
innocent conduct.” Rogers, 532 U.S. at 459. There is no Supreme Court case,
however, applying Rogers and Bouie to judicial interpretations of parole or
mandatory supervised release statutes like that involved in the instant case. In
other words, there is no clearly established federal law, as determined by the
Supreme Court, stating that a retroactive judicial interpretation effecting a
change in sentencing, parole, probation, or mandatory supervised release law
that disadvantages a prisoner gives rise to a Due Process violation. Accordingly,
the state court’s denial of Casterline’s Due Process claim assailing Franks cannot
have been contrary to such law or an unreasonable application of such law. See
§ 2254(d)(1).
Next, Casterline argues that the July 2008 decision of the Texas Board of
Pardons and Parole denying him parole was based on parole policies, put in
place after his conviction, that aimed to have violent offenders serve higher
percentages of their sentences before being released on parole. He contends that
3
Case: 11-41093 Document: 00512027530 Page: 4 Date Filed: 10/22/2012
No. 11-41093
the state adopted these policies to obtain funding under the Violent Offender
Incarceration Act.
“One function of the Ex Post Facto Clause is to bar enactments which, by
retroactive operation, increase the punishment for a crime after its commission.”
Garner v. Jones, 529 U.S. 244, 249 (2000). Retroactive changes to parole laws
may, in some cases, violate this precept. Id. at 250. The inquiry is whether the
change in law creates “a sufficient risk of increasing the measure of punishment
attached to the covered crimes.” Id. (internal quotation marks and citation
omitted). However, a new procedure that creates only a speculative and
attenuated risk of increasing the measure of punishment does not violate the Ex
Post Facto Clause. California Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995);
Hallmark v. Johnson, 118 F.3d 1073, 1078 (5th Cir. 1997).
Evidence produced by Casterline shows that, in the 1990s and 2000s, there
was a statistical trend of violent offenders serving higher percentages of their
sentences prior to being released on parole. But these statistical trends are not
evidence that any new parole policies resulted in a risk of increased risk of
confinement as to him. See Wallace v. Quarterman, 516 F.3d 351, 356 (5th Cir.
2008). None of the papers or reports relied upon by Casterline shows that he
would have been granted parole earlier had the purported new parole policies
not been implemented. See Morales, 514 U.S. at 508-10. Accordingly, the state
court’s denial of Casterline’s Ex Post Facto claim was not contrary to or an
unreasonable application of the law as stated in Garner and Morales. See
§ 2254(d)(1).
AFFIRMED; MOTION TO STRIKE GRANTED; ALL OTHER
OUTSTANDING MOTIONS DENIED.
4
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204 B.R. 460 (1997)
In re GRYPHON AT THE STONE MANSION, INC., d/b/a Erik Lewis Global and d/b/a Wanner Van Helden, Debtor.
GRYPHON AT THE STONE MANSION, INC., d/b/a Erik Lewis Global and d/b/a Wanner Van Helden, Movant,
v.
UNITED STATES TRUSTEE, Respondent.
Bankruptcy No. 93-22807 JKF, Motion No. DJG-11.
United States Bankruptcy Court, W.D. Pennsylvania.
January 22, 1997.
*461 Daniel J. Gates, Warrendale, for Debtor.
Stephen I. Goldring, Senior Assistant United States Trustee, for the United States Trustee.
MEMORANDUM OPINION
Bankruptcy Judge JUDITH K. FITZGERALD for the Court en banc with Chief Judge BERNARD MARKOVITZ and Judges WARREN W. BENTZ, M. BRUCE McCULLOUGH, and JOSEPH L. COSETTI.
The matter before the court is Debtor's objection to the claim of the United States Trustee for post-confirmation quarterly fees pursuant to 28 U.S.C. § 1930(a)(6), as amended on January 26, 1996, Pub.L. No. 104-99, sec. 211, 1996 U.S.C.C.A.N. (110 Stat.) 26, 37-38, and on September 30, 1996, Pub.L. 104-208, 110 Stat. 3009. The United States Trustee has objected to entry of a final decree in various cases in which plans were confirmed prior to the January enactment because the post-confirmation fee created in that statute has not been paid. A hearing was held, en banc, on October 23, 1996. For the reasons which follow, we conclude that the United States Trustee's claim is not enforceable in bankruptcy in cases with plans confirmed before enactment of the amendment when the plan has been substantially consummated. Accordingly, the United States Trustee's objection to entry of a final decree will be overruled. Our ruling applies only to chapter 11 cases in which the plan was confirmed prior to enactment of the amendment to 28 U.S.C. § 1930. We do not address the impact of the fee upon any chapter 11 case in which a plan was not confirmed prior to the enactment of the amendment.
Prior to January 26, 1996, 28 U.S.C. § 1930(a)(6) provided that a quarterly fee was to be paid to the United States Trustee in each chapter 11 case until a plan was confirmed or the case was converted or dismissed, whichever occurred first. On January 26, 1996, the section was amended to delete the reference to plan confirmation and to require that the quarterly fee be paid post-confirmation until the case was converted or dismissed.[1] Pub.L. No. 104-99, sec. 211, 1996 U.S.C.C.A.N. (110 Stat.) 26, 37-38.[2] In attempting to apply the amendment, courts divided over the question of whether it affected cases in which a plan had already been confirmed before the date of enactment. On September 30, 1996, the President signed into law a clarifying amendment which provided *462 that the post-confirmation fee is owed "in all cases (including, without limitation, any cases pending as of that date), regardless of confirmation status of their plans". P.L. 104-208, 110 Stat. 3009 (September 30, 1996).
Facts
When the court and the Assistant United States Trustee for this district realized that the United States Trustee's objections to the entry of final decrees on the basis of nonpayment of the post-confirmation fee would affect nearly 80[3] open chapter 11 cases with plans that had been confirmed before the amendment's enactment, judicial economy seemed best served by hearing the issues en banc. Several of the affected reorganized entities elected to pay the fee and those cases have been closed. The remaining cases fit into a variety of categories. The lead case, Gryphon at the Stone Mansion, Inc., represents a confirmed plan of liquidation. The assets of Gryphon were sold during the chapter 11. The reorganized debtor collects payments from the buyer and distributes them to creditors in accordance with the plan. To afford reorganized debtors with different circumstances the opportunity to supplement the argument, this court sent notice to all affected debtors, creditors and parties in interest, established a briefing and argument schedule, and held the argument. No one but lead counsel for debtors and the United States Trustee filed pleadings or briefs or argued. Thus, we deal with the remaining open chapter 11 cases in the context of the issues and arguments presented by lead counsel and the United States Trustee.
Jurisdiction
We first examine the question of whether the bankruptcy court has jurisdiction to grant the United States Trustee's request to enforce its claim for post-confirmation fees. The jurisdiction of the bankruptcy court after confirmation of a chapter 11 plan is "normally limited `to matters concerning the implementation or execution of a confirmed plan'". In re Allegheny International, Inc., 954 F.2d 167, 169, n. 1 (3d Cir.1992) (citing Goodman v. Phillip R. Curtis Enterprises, Inc., 809 F.2d 228, 233 (4th Cir.1987)). The court's post-confirmation jurisdiction is limited to ensuring that the terms of the plan are carried out.[4]See 11 U.S.C. § 1142. Section 1142(b) gives the bankruptcy court authority to direct actions necessary for consummation of a confirmed plan. In re Erie Hilton Joint Venture, 137 B.R. 165, 170 (Bankr.W.D.Pa.1992). As to other matters, jurisdiction must be expressly reserved. See e.g. In re Insulfoams, Inc., 184 B.R. 694, 701 (Bankr.W.D.Pa.1995), aff'd 104 F.3d 547 (3d Cir.1997), citing In re Johns-Manville Corp., 7 F.3d 32, 34 (2d Cir.1993).
Furthermore, "post-confirmation jurisdiction exists to protect and effect the provisions of the confirmation order, to prevent interference with the execution of the plan, or to otherwise aid in its operation." In re Insulfoams, 184 B.R. at 701, citing In re Haws, 158 B.R. 965, 969 (Bankr.S.D.Tex. 1993); Goodman v. Phillip R. Curtis Enterprises, 809 F.2d 228, 232 (4th Cir.1987); Pennsylvania Companies, Inc. v. Stone (In re Greenley Energy Holdings of Pa.), 110 B.R. 173, 180 (Bankr.E.D.Pa.1990). Accord In re Jewelcor Inc., 150 B.R. 580, 582-83 (Bankr.M.D.Pa.1992). See also In re Cinderella Clothing Industries, Inc., 93 B.R. 373, 377 (Bankr.E.D.Pa.1988) (limited court authority exists over confirmed chapter 11 cases, e.g., general power of court to enforce its orders or specific Bankruptcy Code sections such as § 1112, § 1127, § 1142, § 1144). See In re Maley, 152 B.R. 789, 792 (Bankr. W.D.N.Y.1992) ("[i]t is not contemplated by *463 the Code and this Court will not exercise its discretion to assume jurisdiction over all post-confirmation events"). See also Matter of Holly's Inc., 172 B.R. 545, 562 (Bankr. W.D.Mich.1994) (citing tax liability cases and determining that the court would not assert jurisdiction over tax claims when the tax liability arose post-confirmation and was not considered in plan preparation or the confirmation process), aff'd 178 B.R. 711 (W.D.Mich.1995). The United States Trustee has not alleged that jurisdiction was retained to deal with claims not specified in the plan and arising post-confirmation. Thus, we find that our jurisdiction is limited to enforcing the provisions of these confirmed plans. The United States Trustee fee, which Congress enacted post-confirmation, is not addressed in any of these plans inasmuch as it did not exist on the dates of confirmation.
Plan Modification
Another issue inherent in dealing with the United States Trustee's objection arises: how can a confirmed plan that has been substantially consummated be modified? We recognize that fees payable to the United States Trustee under § 1930 have a first priority status under 11 U.S.C. § 507(a)(1). However, these plans do not provide for payment of the post-confirmation fee because the fee did not exist at confirmation. Although the United States Trustee has not proposed plan modifications as such, modifications would be required in order to enable these reorganized debtors to pay the fee. This concern was recognized in In re Hudson Oil Co., 200 B.R. 52, 54 (Bankr. D.Kan.1996) (by seeking to obtain post-confirmation fee the United States Trustee was "[i]n effect . . . seeking to modify the confirmed plan, even though § 1127(b) says only the plan proponent or reorganized debtor may modify a plan after confirmation, and then only before substantial consummation, which . . . occurred long ago in this case"). Requiring the reorganized debtors now before the court to pay the post-confirmation fee would impermissibly effect a plan modification.
The Bankruptcy Code has several specific provisions dealing with plan modification. Only a plan proponent or the reorganized debtor may request modification and the creditors must be provided the opportunity to accept or reject the proposal. 11 U.S.C. § 1127(b), (c), (d); § 1129. The terms of a plan cannot be changed unilaterally after substantial consummation and any modification must comply with § 1122 (classification of claims or interests) and § 1123 (plan contents). This requirement exists because a plan of reorganization creates new contractual obligations on behalf of a debtor vis-a-vis its creditors. See In re Sugarhouse Realty, Inc., 192 B.R. 355, 362 (E.D.Pa.1996) (confirmed plans are binding contracts to be interpreted according to applicable contract law).
Section 1127(b) of the Bankruptcy Code governs the procedure for modification of a confirmed plan and specifies that only the plan proponent or the reorganized debtor may modify a confirmed plan and then only before the plan has been substantially consummated. 11 U.S.C. § 1127(b). See also Goodman v. Phillip R. Curtis Enterprises, Inc., 809 F.2d 228, 233 (4th Cir.1987).
The United States Trustee does not contend that 28 U.S.C. § 1930(a)(6) repealed or amended the Bankruptcy Code. Arguendo, even if the Bankruptcy Code, alone or in conjunction with 28 U.S.C. § 1930(a)(6) as amended, can be read to encompass treatment of this newly created post-confirmation fee, the plans at issue would have to be modified in order to provide for their payment. However, once a plan is substantially consummated, it cannot be materially changed. The Bankruptcy Code prohibits modification in that circumstance. 11 U.S.C. § 1127(b). See also In re Boroff, 189 B.R. 53, 55 (D.Vt.1995). Substantial consummation is defined in § 1101(2) as
(A) transfer of all or substantially all of the property proposed by the plan to be transferred;
(B) assumption by the debtor or by the successor to the debtor under the plan of the business or of the management of all or substantially all of the property dealt with by the plan; and
*464 © commencement of distribution under the plan.
See also Goodman v. Phillip R. Curtis Enterprises, Inc., 809 F.2d 228, 233 (4th Cir. 1987). In all of the cases to which our ruling applies, it is not disputed that the plans were substantially consummated before the enactment of the amendment.
Furthermore, to permit modification in liquidating chapter 11 cases, such as Gryphon, to account for the United States Trustee's post-confirmation fee would materially alter the terms of the plan and would materially impair creditors' rights. The materiality of the proposed modification is an indication of substantial consummation. In re Stevenson, 138 B.R. 964, 967 (Bankr.D.Idaho), aff'd as modified 148 B.R. 592 (D.Idaho 1992). The effect, therefore, is significant. See In re Stevenson, 138 B.R. at 967. Gryphon is required to pay all money collected from the buyer and the contributions made by its equity owners to its creditors. There are no additional funds and no way of obtaining any. There is only a finite sum of money and it all is earmarked for the creditors. Distribution has commenced in each of the cases with which we are concerned and the plans have been substantially consummated.
In addition, these plans made no provision for the post-confirmation fee inasmuch as no fee was due when the plans were confirmed. As we stated, all former estate property is under contract, through the plans, for distribution to creditors with allowed claims and the plans cannot be modified. Thus, although the United States Trustee has a statutory claim, it is not enforceable in these cases in this forum.
We are aware of cases such as In re Upton Printing, 197 B.R. 616 (Bankr.E.D.La.1996), and In re Central Florida Electric Inc., 197 B.R. 380 (Bankr.M.D.Fla.1996), which found that the United States Trustee was entitled to collect its fee when the plan was confirmed before enactment of the amendment.[5] However, those cases are not directly applicable; they addressed the questions of whether the amendment applied to cases with plans confirmed before enactment of the amendment and whether Congress had a legitimate legislative purpose in enacting the amendment. We have no quarrel with either proposition. We simply find that the United States Trustee cannot collect in these cases (i.e., those with plans that were confirmed prior to enactment of the amendment and are substantially consummated) through the Bankruptcy Court because neither the Bankruptcy Code nor Title 28 provides a collection mechanism.
In those cases in which the reorganizing debtors survive as an on-going operation and have continuing income streams, funds might be obtainable to pay the post-confirmation fee but the fee cannot be paid under the supervision of this court or through these confirmed, substantially consummated plans. The plans are the only vehicles through which this court could effect payment to the United States Trustee in these cases but that would require modification of the plans, which we have found cannot now be accomplished. Thus, in the cases in which there are additional funds to pay the fee, i.e., funds over and above those committed to the creditors' claims, the United States Trustee must pursue its claim in another forum, as must any other creditor who acquires its claim after a chapter 11 plan has been confirmed. In liquidating cases, however, there is no fund available for payment. Although the United States Trustee is free to pursue collection in an appropriate forum, the fee may be uncollectible as a practical matter.
Except as to continuing secured obligations that continue to be paid in futuro, future claims specifically addressed in a particular plan, and administrative claims that a debtor must satisfy on the effective date of the plan as a condition to confirmation, chapter 11 is geared to treatment of prepetition claims. These plans cannot reasonably be interpreted to govern post-confirmation claims that were not contemplated in the plans merely because Congress has passed a revenue raising statute without amending the Bankruptcy Code to facilitate payment of those claims.[6]
*465 Section 1127(b) forbids plan modification once a plan has been substantially consummated and there is no other mechanism under the Bankruptcy Code to facilitate payment.[7] In In re McLean Square Associates, G.P., 201 B.R. 436 (Bankr.E.D.Va.1996), apparently in an on-going enterprise, the court held that the requirement to pay the post-confirmation fee did not constitute plan modification since the debtor already was paying professional fees post-confirmation. However, the plan provided for post-confirmation payment of professional fees which had not been paid on the effective date of the plan. Such an arrangement can only be upon agreement. 11 U.S.C. §§ 1129(a)(9)(A). The court found that payment of the fee would not have much, if any, impact on the debtor's ability to make all plan payments or to reorganize, under the circumstances. However, the court did not address the substantial consummation issue which is the determining factor in the cases before us and which distinguishes our cases from McLean.
Notwithstanding all of the foregoing, the United States Trustee argues that there is a presumption that Congress knew what it was doing when it passed the amendments to § 1930 and Debtor must pay the fee. The problem we are faced with, however, is the impossibility of effecting congressional intent through collection of the fee in this forum, in light of the specific provisions of § 1141 (revesting property of the estate in the debtor on confirmation) and § 1127 (regarding plan modifications) of the Bankruptcy Code and the circumstances of reorganized debtors whose plans were confirmed and substantially consummated before the enactment of the amendment imposing the post-confirmation fee. Sections 1141 and 1127 were not repealed by the amendment to 28 U.S.C. § 1930(a)(6). Cf. In re Hudson Oil Co., Inc., 200 B.R. 52, 55, 56 (Bankr.D.Kan.1996) (confirmation order is akin to final judgment in a civil case) (citing Plaut v. Spendthrift Farm, Inc., ___ U.S. ___, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995), for proposition that Congress' attempt to require reopening of final judgment under § 10(b) of the Security Exchange Act of 1934 was invalid because it violated the separation of powers).
Administrative Expense
As noted above, the terms of a confirmed plan cannot be unilaterally changed after substantial consummation and any modification must comply with, inter alia, § 1122 and § 1123. Cf. In re Sugarhouse Realty, Inc., 192 B.R. 355, 362 (E.D.Pa.1996) (confirmed plans are binding contracts to be interpreted according to applicable contract law). These sections concern classification and treatment of prepetition claims. Section 1122 provides for classification of claims and interests. Section 1123 governs the contents of a plan and provides that claims other than those under, inter alia, § 507(a)(1) must be classified. Section 507(a)(1) dictates the payment priority of claims and expenses:
(a) The following expenses and claims have priority in the following order:
(1) First, administrative expenses allowed under section 503(b) of this title, and any fees and charges assessed against the estate under chapter 123 of title 28.
Chapter 123 of title 28 includes § 1930 and the fees payable to the United States Trustee. By the plain language of § 507(a)(1), the United States Trustee's claim is not one for administrative expenses under 11 U.S.C. § 503 inasmuch as it is not related to preserving, and was not incurred by, the estate[8]*466 which, upon confirmation of the plan, no longer held any assets.[9]Matter of Iberis Int'l Inc., 72 B.R. 624, 627 at n. 3 (Bankr. W.D.Wis.1986) ("[a]ny claim for post-confirmation pre-conversion expenses for preserving the estate would be precluded by the fact that the estate ended upon confirmation of the plan when the property revested in the debtor"); In re Barker Medical Co., Inc., 55 B.R. 435, 436 (Bankr.M.D.Ala.1985) (confirmation vested estate property in the debtor and post-confirmation costs cannot be administrative expenses). Thus, although § 507 of the Bankruptcy Code provides that "fees and charges assessed against the estate under chapter 123 of title 28" are a first priority, it does not state that the fees are administrative expenses, as the United States Trustee contends. Rather it lists fees under § 1930 as an additional category of first priority expenses. Thus, the post-confirmation fee is not an administrative fee, despite its status as a first priority claim.
Entity Responsible for Payment
Except to point out that § 1930 regards "the parties commencing the case" as those responsible for paying the fee,[10] and that "the parties" which actually pay the fee are the debtors, the United States Trustee was not able to identify the entity responsible for payment of the fee once the case is in post-confirmation status and there no longer is a debtor-in-possession. Confirmation of a plan "vests all of the property of the estate in the debtor" except as otherwise provided in the plan or the order confirming the plan. 11 U.S.C. § 1141(b). The assets revest "free and clear of all claims and interests of creditors, equity security holders, and of general partners in the debtor." 11 U.S.C. § 1141(c). In essence, a chapter 11 estate ceases to exist on plan confirmation. In re Dahlgren Int'l Inc., 147 B.R. 393 (N.D.Tex.1992); In re Frank Meador Buick, Inc., 65 B.R. 200 (W.D.Va.1986); In re Barker Medical Co., Inc., 55 B.R. 435 (Bankr.M.D.Ala.1985). The United States Trustee has not alleged that any of the plans or pre-amendment confirmation orders in the cases in which it is seeking fees retained property in the estate. Thus, even if these estates continue to exist post-confirmation and are responsible for payment of the fee, no funds exist to pay the fee and no property exists that could be liquidated to pay it.
Nonetheless, we agree with the United States Trustee's statement at oral argument that this court treats the reorganized entity as "a debtor" until the case is dismissed or closed. Thus, although the reorganized debtor may bear no structural relation at all to the former debtor-in-possession,[11] we will assume, arguendo, that the reorganized debtor is the entity against which the fee is to be assessed, because we can conceive of no other entity against which Congress could have intended to assess the fee. Deciding which entity is "responsible" for the fee does not finish the matter, however. The estate has no funds to pay the fee and the Bankruptcy Code does not provide a mechanism for its collection. Thus, the United States Trustee must pursue elsewhere any remedies it may have.[12]
*467 The United States Trustee also suggests that, in the past, Congress has increased filing fees and made them applicable to pending cases and that challenges to the fees were rejected by the courts. However, there is a difference between an increase in a filing fee which will apply to activity not yet initiated in a pending case and the creation of a post-confirmation fee triggered by an event in the past (plan confirmation) which event cannot be reversed. An increase in a filing fee will not affect a party to a bankruptcy case unless and until the party decides to initiate the action associated with the fee. In the instant case the post-confirmation fee applies after the fact when the plan, the only vehicle through which the fee could be paid under the Bankruptcy Code, cannot be amended to accommodate the new fee. If we were to require these reorganized debtors to pay the post-confirmation fee regardless of the terms of their confirmed plans and Bankruptcy Code requirements, we would be forcing them into plan defaults. This result is diametric to the purpose of chapter 11.
Causes of Action Arising After Plan Consummation
In Matter of Penn Central Transportation Co., 944 F.2d 164 (3d Cir.1991), cert, denied 503 U.S. 906, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992), a railroad reorganization case, the Court of Appeals found that claims based on circumstances existing pre-confirmation and asserted post-confirmation had not been discharged in the bankruptcy due to the post-confirmation enactment of CERCLA. In Penn Central the statutory enactment created the cause of action after plan confirmation and specifically imposed the obligation on subsequent owners. The issue arose because a provision in the confirmed plan imposed an injunction against the filing of lawsuits after confirmation. Although discharge is not at issue in the matter before us, the circumstances are otherwise similar. The court concluded that CERCLA claims were not discharged as to the reorganized, still-operating debtor because the cause of action did not exist pre-consummation.[13] The Court of Appeals concluded that liability rested with the reorganized company. The court distinguished In re Erie Lackawanna Ry. Co., 803 F.2d 881 (6th Cir.1986), cert. denied 481 U.S. 1070, 107 S.Ct. 2463, 95 L.Ed.2d 872 (1987), which it characterized as a "hybrid" proceeding. In Erie Lackawanna all the rail assets were liquidated although unsecured creditors received stock in the surviving entity. The rail aspect of the debtor's business ceased to exist and the court concluded that the case was akin to a liquidation.[14] The "Consummation Order" entered in the case provided that the debtor was "discharged and released forever" from any and all claims. Id. at 883. The Order also permanently enjoined prosecution of any claim against the reorganized debtor on account of claims against Erie Lackawanna, as provided in the plan. In a related opinion, the Court of Appeals noted that creditors will be discouraged from participating in the reorganization process if they lack confidence that the results are final. In re Penn Central Transportation Co. (Appeal of Pinney Dock & Transport Co.), 771 F.2d 762 (3d Cir.), cert. denied 474 *468 U.S. 1033, 106 S.Ct. 596, 88 L.Ed.2d 576 (1985) (citing Duryee v. Erie R.R. Co., 175 F.2d 58, 61, 63 (6th Cir.), cert. denied 338 U.S. 861, 70 S.Ct. 103, 94 L.Ed. 527 (1949)). In Schweitzer v. Consolidated Rail Corp., 65 B.R. 794, 800 (E.D.Pa.1986), in reference to prepetition claims, the district court said, "it is a fundamental principle of reorganization law that the non-discharged claims of the debtor may be properly asserted against the company which emerges as the reorganized debtor".
The principle we take from these cases is that Congress has given the United States Trustee a post-confirmation claim that it can assert, but the United States Trustee must enforce its claim in the same manner as any other post-confirmation creditor. To the extent that the reorganized debtor liquidated all of its assets and/or to the extent that the confirmed plan cannot be modified, the United States Trustee, like any other post-confirmation creditor, cannot collect through the plan or this court. To the extent that the reorganized debtor is still operating, the United States Trustee must assert and liquidate its claim in an appropriate non-bankruptcy forum.
Ambiguity of the Amendment to § 1930
At the hearing, Debtor withdrew its argument that the January amendment was ambiguous in light of the September 30, 1996, amendment. The September amendment clarified that the January 26, 1996, amendment applied to open cases with plans confirmed before the January enactment. However, the September amendment did not cure all ambiguity engendered by the January amendment. As now enacted, § 1930(a)(6) requires payment of the quarterly fee until the case is converted or dismissed. Many chapter 11 cases are neither converted nor dismissed but are closed in the ordinary course after entry of a final decree. See In re Beechknoll Nursing Homes, Inc., 202 B.R. 260, 261 (Bankr.S.D.Ohio 1996) (Congress under "misconception that all cases with confirmed plans are eventually dismissed"; as written, statute requires post-confirmation payments "until the end of time").
The United States Trustee avers that Congress intended to include closing as an event which terminates a debtor's obligation to pay the post-confirmation fee, even though nothing in either the January 1996 or the September 1996 version of § 1930 hints at this intention. If such a provision can be implied in the absence of any indication that Congress intended to include it, other equally reasonable presumptions exist. The legislative history itself speaks to imposition of the fee "until the case has been dismissed", without mentioning conversion. H.R.Rep. 104-196, 104th Cong., 1st Sess., July 19, 1995, 1995 WL 432338 at WL page 34. The current version's language lends itself to the interpretation that the quarterly fee is due in perpetuity if the case is not converted or dismissed. Another interpretation is that Congress intended to have no fee paid when a case is closed without having been converted or dismissed after the chapter 11 plan was confirmed. Some cases have concluded that the amendment meant that the fee is collectible only in "aborted Chapter 11 cases, when the case is either dismissed or converted, and does not apply in successful and substantially consummated Chapter 11 cases, even though the Final Decree is not entered until later due to outstanding matters." In re C n' B of Florida, Inc., 198 B.R. 836, 840 (Bankr. M.D.Fla.1996). Accord In re Boone, 201 B.R. 499 (1996); In re Northwestern Trading Co., Inc., Bankr. No. 93-00029, 2-3 (Bankr. D.P.R. May 6, 1996) (unpublished), cited in In re CF & I Fabricators of Utah, Inc., 199 B.R. 986, 993-94 (Bankr.D.Utah 1996). Thus, although Gryphon no longer challenges the enactment on grounds of ambiguity, this court still is puzzled by the language. Because of our ruling, however, we need not tarry in this quagmire.
Constitutional Question
Debtor contends that requiring it to pay the post-confirmation fee constitutes a taking violative of the Fifth Amendment to the U.S. Constitution.[15]In re SeaEscape *469 Cruises, Ltd., 201 B.R. 321, 322 (Bankr. S.D.Fla.1996), and In re Foxcroft Square Co., 198 B.R. 99, 104 (Bankr.E.D.Pa.1996), determined that the Fifth Amendment takings clause was not violated by the amendment to § 1930. We need not reach this issue, however, because of our conclusion that the United States Trustee has no remedy in the bankruptcy court for the fees sought in cases such as those under consideration. Creditors whose claims arise post-confirmation must pursue redress in other forums.[16]
Summary
We are aware of cases requiring payment of the fee under circumstances similar to those we face such as In re Upton Printing and In re Central Florida Electric Inc., supra. However, to the extent that those cases address our concerns at all, they do not persuade us to follow their lead. If we were to conclude that the United States Trustee can collect the fee in circumstances presented by the cases at issue, the result could create plan defaults and attendant motions by unpaid creditors for the dismissal or conversion of the case.[17]See In re CF & I Fabricators of Utah, Inc., 199 B.R. 986, 998 (Bankr.D.Utah 1996) (to order payment of the fee would be to order debtor to violate the confirmation order). By statute, if the case were converted or dismissed, the fee would no longer accrue. Such a result would defeat the purpose of the reorganization provisions of the Bankruptcy Code and of the amendment to § 1930. Thus, regardless of the analysis, the United States Trustee cannot collect the fee by way of objecting to entry of a Final Decree or to an order closing the case. There is no avenue under the Bankruptcy Code to effectuate collection of the post-confirmation fee established by the amendment to 28 U.S.C. § 1930(a)(6) in cases in which plans of liquidation were confirmed before January 26, 1996, or in cases whose plans were substantially consummated before the effective date of the January 26, 1996, amendment. The United States Trustee is in the same position as any other chapter 11 creditor whose claim arises post-confirmation and has no remedy available in the bankruptcy forum under the circumstances presented by the cases before us. Accordingly, Debtor's objection to the United States Trustee's claim will be sustained and the United States Trustee's objections to final decrees in cases within the parameters of this opinion will be overruled.[18]
An appropriate order will be entered.
ORDER
AND NOW, this 22nd day of January, 1997, for the reasons expressed in the foregoing Memorandum Opinion, en banc, it is ORDERED, ADJUDGED, AND DECREED that Debtor's objection to the post-confirmation fee claim of the United States Trustee is SUSTAINED.
It is FURTHER ORDERED, ADJUDGED AND DECREED that the United *470 States Trustee's objections to final decrees in cases in which plans were confirmed before the effective date of the January 26, 1996, amendment and which plans are either liquidating plans or were substantially consummated are OVERRULED. Final decrees shall be entered as to each case by separate orders.
The cases to which the foregoing applies are identified as Exhibit A to this Order.
EXHIBIT A
CH 11 CASES CONFIRMED ON OR BEFORE JANUARY 26, 1996 IN WHICH A FINAL DECREE HAS NOT BEEN ENTERED
85-21160 JLC Flr Company
86-20085 WWB Logue Mechanical Contracting
87-22676 WWB Basile
88-20448 JLC Allegheny International
88-20452 JLC Chemetron Corporation
90-20033 MBM Aldon Trucking
90-20537 JLC Machi Asphalt Paving
90-22896 MBM Urish
91-20903 JKF Papercraft Corp.
91-22045 JLC General Oil Corp.
91-22570 WWB WPMP, Inc.
91-22858 JLC The O. Hommel Company
91-22919 JLC U.S. Metalsource Company
91-23459 JLC Greater Pgh Air Cargo
92-20227 JKF Regnos Corp.
92-20677 WWB Vesa
92-21829 JKF Edgewater Corporation
92-22370 JLC Federal Street Contracting
92-22371 JLC Federal Street Construction
92-24048 JLC Mallet
92-24239 MBM Fammartino
92-24658 MBM Eltech, Inc.
92-24707 JKF Carson City
92-24973 JLC Viola
92-25377 JLC Shenango Corp.
92-25378 JLC The Hockensmith Corp.
92-25379 JLC Shenango Group, Inc.
92-25385 JLC Dennis Filges Company
93-21124 JKF Shirey
93-21337 JLC Viola's Food Stores, Inc.
93-21942 JLC Filges Products, Inc.
93-21943 JLC Dennis J. Filges
93-22477 JLC Cranberry Park Associates
93-22540 JKF Barto Technical Associates
93-22807 JKF Gryphon at the Stone
Mansion
93-23196 WWB J & J Land Company
93-23289 MBM John T. Connors
93-23606 JKF Aliquippa Block & Supply
93-24116 WWB Ray J. Vasel
94-20439 MBM TWI Industries
94-20623 JKF Donald E. Smith
94-20727 WWB CJJL, Inc.
94-20849 MBM Custom Craft, Inc.
94-22020 JKF VanHelden
94-22171 JLC Washington's Landing
Marina
94-23097 JKF Cousar
94-23191 WWB Stylegate, Inc.
95-21139 JKF Bernie's Flower Shop
95-21577 WWB Orion The Hunter, Inc.
95-22283 JKF A & D Inc.
Updated: 1/16/97
NOTES
[1] Prior to January 26, 1996, § 1930 provided, in pertinent part,
(a) . . . the parties commencing a case under title 11 shall pay to the clerk . . . the following filing fees: . . . (6) In addition to the filing fee paid to the clerk, a quarterly fee shall be paid to the United States trustee . . . until a plan is
confirmed or the case is converted or dismissed, whichever occurs first.
The January, 1996, amendment deleted the words "a plan is confirmed or".
[2] The date of enactment of the amendment was January 26, 1996. However, the statute set the effective date as follows: "[n]otwithstanding any other provisions of law, the fees under 28 U.S.C. 1930(a)(6) shall accrue and be payable from and after January 27, 1996, . . . regardless of confirmation status of their plans". 104th Cong., 2nd Sess., 1996 WL 497064 at WL page 279, S.Rep. 104-353.
[3] By the time of the en banc hearing there were only 51 cases still open. At the time of this writing there are 50. See Exhibit A to Order accompanying this Memorandum Opinion.
[4] The court also opined that the parties' rights vest on substantial consummation. However, it is generally recognized that, upon confirmation, the plan constitutes a binding contract between the debtor and its creditors. See In re Sugarhouse Realty, Inc., 192 B.R. 355, 362 (E.D.Pa. 1996), infra. We do not reach the issue of when rights vest under a plan of reorganization inasmuch as it is undisputed that all the plans subject to our ruling were substantially consummated before enactment of the amendment.
[5] Upton Printing involved a liquidating plan.
[6] This problem does not exist for cases in which plans are or will be confirmed after the amendment's enactment because the plans cannot be confirmed unless the United States Trustee's fee is provided for in the plan and is paid first, unless otherwise agreed. See 11 U.S.C. §§ 1129(a)(9)(A), 507(a)(1).
[7] In SeaEscape Cruises, Ltd., 201 B.R. 321 (Bankr.S.D.Fla.1996), the plan was confirmed in 1992 and the United States Trustee sought payment of the post-confirmation fee pursuant to § 1930, as amended. The court held liability exists only for disbursements made by the estate, not by the reorganized debtor, and can be calculated on disbursements the estate makes after the plan effective date. Whether or not the estate or the reorganized debtor is disbursing payments, payments to the United States Trustee for the post-confirmation fee cannot be realized through the bankruptcy system in the cases at bench.
[8] See also In re Dahlgren Int'l Inc., 147 B.R. 393, 403 (N.D.Tex.1992) (post-confirmation, unless otherwise provided in the chapter 11 plan, there is no estate and therefore no § 503(b)(1)(A) administrative claims because there is no estate to preserve); In re Frank Meador Buick, Inc., 65 B.R. 200, 203 (W.D.Va.1986) (post-confirmation claims are not administrative claims). Cf. Security Bank of Marshalltown, Iowa v. Neiman, 1 F.3d 687 (8th Cir.1993) (distinguishing chapter 13 where the estate continues post-confirmation).
[9] Section 1141(b) provides that, upon confirmation, estate property vests in the debtor unless otherwise provided in the plan or confirmation order. The United States Trustee has not alleged that any of the confirmation orders or plans at issue contain an exception to revesting.
[10] Section 1930(a) of title 28, U.S.C., provides that "the parties commencing a case under title 11 shall pay . . . (6) . . . a quarterly fee . . . to the United States trustee. . . ." The creditors are not "parties commencing a case", at least in voluntary bankruptcies, and any funds that might have been available for post-confirmation fees in cases confirmed before enactment of the amendment are committed by contract (the plan) to the creditors. Furthermore, to our knowledge, creditors in involuntary chapter 11 cases in which an order for relief has been entered have not been required to pay the quarterly fee even before the amendment. The fee has always been charged against the estate once the debtor is adjudicated.
[11] For example, creditors' plans that divest the pre-confirmation ownership interests and form a new entity are confirmed occasionally.
[12] In In re SeaEscape Cruises, Ltd., 201 B.R. 321 (Bankr.S.D.Fla.1996), discussed supra, note 7, the court determined that post-confirmation fees can be calculated on disbursements the estate makes after the plan effective date, but not on disbursements by the debtor. This ruling cannot apply in the pending cases because, post-confirmation, these estates will not make disbursements. Once all property vests in the debtor, there is nothing for the estate to disburse. Furthermore, the court did not address the effect that payment of the post-confirmation fee would have on the ability to comply with the terms of the plan. Moreover, the court did not address the § 1127(b) issue or the problem presented when payment puts the debtor into default.
[13] The court also referred to Zulkowski v. Consolidated Rail Corp., 852 F.2d 73 (3d Cir.), cert. denied 488 U.S. 994, 109 S.Ct. 559, 102 L.Ed.2d 585 (1988), in which the debtor was held not to be released from a claim by a former employee under FELA for asbestosis which manifested itself after the debtor reorganized. The court distinguished In re Erie Lackawanna Ry. Co., 803 F.2d 881 (6th Cir.1986), cert. denied 481 U.S. 1070, 107 S.Ct. 2463, 95 L.Ed.2d 872 (1987), because in Zulkowski the reorganized company continued to operate.
[14] The purpose of a reorganization, the court noted, was to "put back into operation a going concern. And [to] preserve an ongoing railroad in the public interest." 803 F.2d at 884 (citations omitted). The Rail Act was intended to supplement the Bankruptcy Act and provided that the bankruptcy court "shall proceed to reorganize or liquidate" a railroad. Id. at 882. Under the current Bankruptcy Code, liquidating chapter 11 plans are accepted.
[15] The question was raised at the hearing regarding notice to the Attorney General of a constitutional question. Section 2403(a) of title 28, U.S.C., provides that
"[i]n any action . . . to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence . . . and for argument on the question of constitutionality. . . . "
The United States Trustee is an employee of the Department of Justice, an agency of the United States under the direction of the Attorney General but this court did not certify the issue to the Attorney General. However, because we conclude that the relief sought by the United States Trustee cannot be granted, we need not reach the question of notice.
Additionally, Bankruptcy Rule 2002(j) requires notice to the United States Attorney if the matter involves a "debt to the United States other than for taxes" and no such notice was sent.
[16] Gryphon's counsel pointed out that this position does not help his client inasmuch as it still will be subject to a claim. Congress has subjected debtors to this fee. We have already determined that it is unenforceable under the Bankruptcy Code in cases in which the plan was confirmed and substantially consummated before enactment of the amendment.
[17] We do not suggest that conversion or dismissal would be an appropriate remedy, merely that creditors may choose to file such motions upon a plan default.
[18] Our ruling does not apply to cases in which the post-confirmation fee has already been paid or to cases in which a plan was not confirmed prior to the amendment's enactment on January 26, 1996.
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363 So.2d 1102 (1978)
STATE of Florida, Appellant,
v.
Teddy Kirk PRICE, Appellee.
No. 78-161.
District Court of Appeal of Florida, Second District.
September 27, 1978.
Rehearing Denied November 2, 1978.
Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
Jack O. Johnson, Public Defender, and Thomas A. McDonald and P. Douglas Brinkmeyer, Asst. Public Defenders, Bartow, for appellee.
*1103 OTT, Judge.
The lower court entered an order suppressing marijuana seized as a result of a vehicle search. We reverse.
While on routine patrol at about 6:30 p.m. a policeman observed a lone vehicle with four occupants in a stopped position off the street and near the rear entrance to a lounge. The lounge was open for business and darkness was falling. The vehicle was not in a regular parking position and its engine was running. The four occupants remained in the vehicle for some period of observation by the officer.
There had been several automobile burglaries in the area. Under the circumstances the policeman decided to approach the vehicle and make sure of its right to be there. As he approached the passenger side, he observed the defendant move to conceal something in a jacket that was between the two front bucket seats of the vehicle. At this point, he was immediately adjacent to the lowered passenger window and he detected a strong odor of marijuana smoke emanating therefrom. The policeman thereupon advised all of the occupants of the vehicle of their Miranda rights. After making sure the defendant and other occupants fully understood their rights, he further advised them that he had reason to believe that they had marijuana within the vehicle. The policeman secured the individual consent of each occupant for a search of the vehicle and after each had given his consent, he immediately seized the jacket, opened the flap and found a baggie of marijuana. The defendant admitted the jacket was his and that he had been smoking marijuana just prior to the arrival of the policeman.
Two questions are presented on appeal. The first is whether or not the initial action of the policeman in approaching the vehicle was illegal and therefore tainted the subsequent search; the second is whether or not the consensual search extended to the jacket.
In discussing the first question, we note at the outset that this is not the usual situation of the stop or detention on a public street of a vehicle proceeding in a lawful manner as existed in the situations dealt with by this court in its recent decisions in: McClure v. State, 358 So.2d 1187 (Fla. 2d DCA 1978); Foss v. State, 355 So.2d 225 (Fla. 2d DCA 1978); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977); and Lewis v. State, 337 So.2d 1031 (Fla.2d DCA 1976). In the instant situation the policeman observed the vehicle in the parking area of a lounge open for business, but the vehicle was not parked in a normal position. The vehicle was occupied by four persons who gave no evidence of entering the place of business. The vehicle's engine was running. These facts have to be weighed in the light of the policeman's knowledge that the area had been the scene of several automobile burglaries. We know of no case that holds that the policeman's approach of such a vehicle at such a location and under such circumstances for the purpose of determining the identity or purpose of the occupants transgresses any basic constitutional rights. We also think it significant that the policeman had alighted from his cruiser and was walking onto the parking lot toward the vehicle making no overt attempt to stop, detain or hold the vehicle or its occupants. Up to this point we think the officer was doing nothing more than the general public has the right to expect of its policemen in the process of their normal patrol, surveillance and investigatory duties.
It should be noted that this was not the usual "stop and frisk" dealt with by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) or contemplated in Section 901.151(2), Florida Statutes (1977).[1] Under either *1104 of these situations some indication of a well-founded suspicion of criminal activity must exist to justify the subsequent detention and seizure. As pointed out supra, the policeman in the instant case had not stopped or accosted the vehicle or its occupants and no unlawful "intrusion" has been demonstrated either as to the place (the parking lot) or the vehicle and its occupants.
Assuming this case to be governed by the standards for a "founded suspicion" a reversal would be warranted. In the recent case of State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978) our sister court in approving our holding in State v. Bastardo, 347 So.2d 463 (Fla. 2d DCA 1977) discussed the standards for "founded suspicion" under somewhat similar circumstances. Judge (now Justice) Alderman stated in Stevens that "[a] `founded suspicion' is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge." 354 So.2d at 1247. Judge Alderman went on to discuss the factors to be evaluated in borderline cases:
There will be borderline cases ... in which reasonable men might differ as to whether the circumstances witnessed by an officer gave an objective foundation to his suspicion. Certain factors might then be evaluated to determine whether they reasonably suggested the suspect's possible commission, existing or imminent, of a crime: The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge. 354 So.2d at 1247.
In Stevens the policeman observed a heavily laden truck pulling away from the vicinity of a city supply and equipment yard. Not only was it unusual for a truck to be there at that hour of the night, but the policeman knew that supplies had been stolen from that same yard recently. The Stevens court held that "there were numerous factors which, when interpreted in the light of [the policeman's] knowledge of the area and of a previous crime, gave foundation to his suspicion... ." 354 So.2d at 1247.
Under the "founded suspicion" standard the observation by the policeman in the instant case of the vehicle on a parking lot but not in the designated parking position or area with its motor running in an area in which there had been recent automobile burglaries would surely justify his suspicion and his approach to the vehicle.
With reference to the specific point of whether or not the policeman could approach the car, two 1975 cases decided by other district courts of appeal are illustrative. In Berry v. State, 316 So.2d 72 (Fla. 1st DCA 1975) the police flushed out of a certain area fifteen to twenty people who were smoking marijuana. They all fled. In that same general area, four persons were sitting in a car parked by the side of the road. A policeman approached the car on the driver's side and asked the driver for identification. The First District Court of Appeal held that the policeman's approach had been valid:
While the officer stated that he had no suspicion that a crime was being committed, ... the totality of all of the circumstances was sufficient to justify the officer in approaching the car and asking the driver for his identification. 316 So.2d at 73.
In Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975) the appellant was sitting in an automobile parked in a parking lot next to a bar. A policeman made a routine check because "there was a high rate of narcotics used in the area and a number of stolen *1105 vehicles had been dropped off in the parking lot." 323 So.2d at 589. The court held that this initial approach of the officer in no way violated the constitutional rights of the appellant.
On this first question we hold that there was nothing improper or illegal in the action of the police officer in approaching the vehicle under the circumstances and in the light of his knowledge. We simply hold that under the circumstances there is nothing illegal or improper in the action of the police officer or his decision to approach the vehicle that taints or vitiates the subsequent search.
With reference to the second question we point out that prior to the time the officer addressed any of the occupants, or issued any directions, commands or requests, that two things occurred: first, he observed the front seat passenger make a furtive movement as if to conceal something under or in a jacket lying between the two front seats; and, second, almost simultaneously the policeman detected the strong odor of marijuana smoke emanating from the open window on the front passenger side. He certainly now had a fully founded suspicion of criminal activity. In the sequence of events that followed, the policeman secured the consent of each of the occupants to a search of the vehicle. The defendant frankly concedes that there was consent to the search of the vehicle, but attacks the actual seizure of the contraband on the ground that the consensual search of the vehicle did not extend to the loose jacket lying between the two front seats of the vehicle. We are not of the opinion that a consensual search of the vehicle is so narrowly circumscribed as to prohibit the officer from seizing or lifting the jacket or otherwise exploring beneath it or in it. Again, we think it appropriate to point out that the objection of the defendant is based purely upon the fact that the object seized or lifted by the policeman was an item of wearing apparel. Such an objection would be untenable had the item been newspapers, duffel bags or any one of a number of other items.
Defendant cites Bailey v. State, 319 So.2d 22 (Fla. 1975) in support of his argument that the permission to search the car did not extend to the jacket. In Bailey, the court pointed out that there had been "serious illegal actions" by the police prior to the giving of the alleged consent. According to the court, this casts serious doubts upon the voluntariness of the consent. The court held that under all the circumstances "it is doubtful whether a valid consent could have been established... ." 319 So.2d at 28.
In contrast to the Bailey situation in which the court noted that "[m]ere conclusions of an officer are insufficient to establish a valid consent", the evidence in the instant case precludes such criticism.
The supreme court in Bailey stated:
[C]onsent ... is an exception to the search and seizure requirements. As an exception and as a waiver it must be shown by the State that strong circumstances are present in a case for it to qualify as an acceptable alternative to preservation of constitutional rights of citizens. 319 So.2d at 26.
In the instant case there was no transgression of the constitutional rights of the defendant. We hold that a proper search was made pursuant to the consent of the occupants of the vehicle.
The order of the lower court suppressing the evidence and discharging the appellee is therefore
REVERSED and set aside and the cause remanded for further proceedings consistent herewith.
SCHEB, Acting C.J., and DANAHY, J., concur.
NOTES
[1] Under our "stop and frisk" law, Section 901.151(2), Florida Statutes (1977), it is provided:
Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.
The supreme court in Terry stated:
[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.
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T.C. Summary Opinion 2004-113
UNITED STATES TAX COURT
WILLIAM G. APPLEGATE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
LUCY S. WANG, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 19676-02S, 19692-02S. Filed August 24, 2004.
William G. Applegate, pro se in docket No. 19676-02S.
Lucy S. Wang, pro se in docket No. 19692-02S.
Timothy S. Sinnott, for respondent.
DEAN, Special Trial Judge: These consolidated cases were
heard pursuant to the provisions of section 7463 of the Internal
Revenue Code in effect at the time that the petitions were filed.
Unless otherwise indicated, subsequent section references are to
the Internal Revenue Code in effect for the year in issue, and
- 2 -
all Rule references are to the Tax Court Rules of Practice and
Procedure. The decisions to be entered are not reviewable by any
other court, and this opinion should not be cited as authority.
Respondent determined for 1999 a deficiency in William G.
Applegate's and Lucy S. Wang's Federal income tax of $7,176.1
The issues for decision are: (1) Whether petitioners are
entitled to deductions for employee business expenses; and
(2) whether Ms. Wang is entitled to relief from joint and several
liability on a joint return under section 6015.
The stipulated facts and the exhibits received into evidence
are incorporated herein by reference. At the time the petitions
in these cases were filed, both petitioners resided in Attica,
Indiana. The Court consolidated these cases for purposes of
trial, briefing, and opinion because they involve common
questions of law and fact.
Background
During taxable year 1999, petitioner William G. Applegate
(Mr. Applegate) and petitioner Lucy S. Wang (Ms. Wang) were
married to each other, and they presently remain so. Petitioners
timely filed a joint Form 1040, U.S. Individual Income Tax
Return, for 1999 which was prepared by Ms. Wang using information
1
In the notice of deficiency, respondent allowed petitioners
a previously unclaimed child tax credit of $1,000.
- 3 -
provided to her by Mr. Applegate. Ms. Wang did not discuss the
return with Mr. Applegate.
Ms. Wang is a graduate of Purdue University, holding a
degree in engineering. During taxable year 1999, Ms. Wang was
employed as an environmental engineer with Eli Lilly & Co. (Eli
Lilly), her employer of 22 years.
Mr. Applegate is also a graduate of Purdue University,
holding a bachelor of science degree in industrial supervision.
During 1999, Mr. Applegate, in his roles as president, secretary,
shareholder, and employee of DriAll, Inc. (DriAll), earned
$41,400. DriAll, a closely held corporation owned by Mr.
Applegate's family, manufactures agricultural equipment and
incinerators.
Petitioners maintained joint savings and checking accounts.
Ms. Wang's wages from Eli Lilly, as well as checks from DriAll to
Mr. Applegate, were deposited into their joint checking account.
Ms. Wang had full access to both the joint savings and checking
accounts. She reviewed the monthly bank statements, wrote
checks, and balanced the checkbook.
DriAll had a reimbursement policy in place during 1999 which
covered a variety of expenses. The reimbursable expenses
included: (1) Business use of personal vehicles; (2) business
travel expenses; (3) meals and entertainment expenses; and (4)
general business expenses.
- 4 -
DriAll's reimbursement policies for business travel, meals
and entertainment, and general business expenses required an
employee to obtain preapproval for the expenses before incurring
them. Preapproval for business travel and general business
expenses could be obtained from the accounting department and the
head of the department incurring the expense. Meals expenses in
excess of $35 per day and any entertainment expenses also
required preapproval, but only from the accounting department.
Mr. Applegate was the head of his department and the head of
accounting and preapproved his own expenses.
During 1999, Mr. Applegate paid the following expenses with
respect to his employment with DriAll:
Item Amount
Mileage $17,967.84
Travel 6,500.27
Business expenses 5,111.39
Meals & entertainment 1,770.00
$31,349.50
Mr. Applegate gave Ms. Wang the receipts for his expenses, and on
their 1999 Schedule A, Itemized Deductions, petitioners claimed a
total deduction for unreimbursed employee business expenses of
$31,349.50, less the 2-percent AGI floor of $2,132.24, or
$29,217.26. Mr. Applegate could have received reimbursement from
DriAll for these expenses instead of deducting them on their tax
return. Respondent disallowed all of petitioners' claimed
deductions for unreimbursed employee business expenses.
- 5 -
Petitioners also earned $17 in taxable interest from the Eli
Lilly Credit Union which they failed to report on their return.
Ms. Wang seeks relief from joint and several liability for
the deficiency pursuant to section 6015.
Discussion
1. Unreimbursed Employee Business Expenses
Under section 7491(a)(1), the burden of proof may shift to
the Commissioner. Because the unreimbursed employee business
expense issue is a question of law, section 7491 is inapplicable,
and the Court decides the issue without regard to the burden of
proof.
Pursuant to section 162(a), a taxpayer may deduct
unreimbursed expenses which he actually paid and which were
ordinary and necessary expenses of his trade or business. Lucas
v. Commissioner, 79 T.C. 1, 6 (1982). Because the business of a
corporation is not considered the business of its shareholders or
officers, Burnet v. Clark, 287 U.S. 410, 415 (1932), unreimbursed
expenditures undertaken for the benefit of the corporation by one
of its officers generally are not deductible by the officer,
Deputy v. DuPont, 308 U.S. 488, 494 (1940).
Mr. Applegate testified that he incurred expenses on behalf
of DriAll in his capacity as a corporate officer. He claims he
sought reimbursement from DriAll for his expenses but DriAll did
not have the funds to reimburse him. What happened, in practice,
- 6 -
is that Mr. Applegate looked at DriAll's account to see if there
was money available for reimbursement and did not seek
reimbursement because he concluded that DriAll did not have
sufficient funds. Mr. Applegate contends, therefore, that he is
entitled to a deduction for these unreimbursed expenses.
Respondent argues that the disallowed expenses were incurred by
Mr. Applegate on behalf of DriAll and that they are DriAll's
expenses, which may not be deducted by Mr. Applegate as his own
trade or business expenses under section 162.
Mr. Applegate was entitled to reimbursement from DriAll for
the expenses incurred on its behalf. Where such an arrangement
exists, the failure to claim such reimbursement from the
corporation will not convert the corporation's expenses into the
corporate employee's own deductible ordinary and necessary
business expenses. Podems v. Commissioner, 24 T.C. 21 (1955);
Thomas v. Commissioner, T.C. Memo. 1988-505; King v.
Commissioner, T.C. Memo. 1980-373; Ockrant v. Commissioner, T.C.
Memo. 1966-60; Worth v. Commissioner, T.C. Memo. 1961-39.
Had Mr. Applegate requested reimbursement, the agreement by
the corporation to reimburse an employee or officer, coupled with
a failure to reimburse, might have given rise to a debt due from
DriAll to Mr. Applegate for the unreimbursed amount. See Worth
v. Commissioner, supra. The debt would be deductible only in the
year in which it became worthless. Thomas v. Commissioner,
- 7 -
supra; King v. Commissioner, supra; Ockrant v. Commissioner,
supra; Worth v. Commissioner, supra. Respondent's determination
disallowing petitioners' deduction for unreimbursed employee
business expenses is sustained.
2. Relief From Joint and Several Liability Under Section 6015
Generally, married taxpayers may elect to file a joint
Federal income tax return. Sec. 6013(a). After making the
election, each spouse is jointly and severally liable for the
entire tax due. Sec. 6013(d)(3). A spouse may seek relief from
joint and several liability under section 6015. A spouse may
qualify for relief from liability under section 6015(b), or if
eligible, may allocate liability under section 6015(c). In
addition, if relief is not available under section 6015(b) or
(c), an individual may seek equitable relief under section
6015(f). Fernandez v. Commissioner, 114 T.C. 324, 329-331
(2000); Butler v. Commissioner, 114 T.C. 276, 287-292 (2000).
The Court's review is not limited to the Commissioner's
administrative record. Ewing v. Commissioner, 122 T.C. 32, 44
(2004).
Except as otherwise provided in section 6015, the taxpayer
bears the burden of proof. Rule 142(a); Alt v. Commissioner, 119
T.C. 306, 311 (2002), affd. 101 Fed. Appx. 34 (6th Cir. 2004).
Ms. Wang seeks relief from liability under section 6015 with
respect to respondent's adjustments to the 1999 return for the
- 8 -
disallowed employee business expenses. She does not qualify for
relief under section 6015(c) because she is still married to Mr.
Applegate. See sec. 6015(c)(3). Thus, the Court begins its
analysis with section 6015(b).
A. Section 6015(b)
Section 6015(b) provides relief from joint and several
liability for tax (including interest, penalties, and other
amounts) to the extent that such liability is attributable to an
understatement of tax. To be eligible for relief, the requesting
spouse must satisfy the following five elements of section
6015(b)(1):
(A) A joint return has been made for a
taxable year;
(B) on such return there is an understatement
of tax attributable to erroneous items of 1
individual filing the joint return;
(C) the other individual filing the joint
return establishes that in signing the return he
or she did not know, and had no reason to know,
that there was such an understatement;
(D) taking into account all the facts and
circumstances, it is inequitable to hold the other
individual liable for the deficiency in tax for
such taxable year attributable to such
understatement; and
(E) the other individual [makes a valid
election] * * *
Respondent does not appear to dispute that Ms. Wang
satisfies two elements of section 6015(b); namely, those
- 9 -
regarding joint return and timely election under section
6015(b)(1)(A) and (E), respectively. Additionally, the
parties stipulated that the employee business expenses at issue
are attributable to Mr. Applegate's employment with DriAll.
Thus, Ms. Wang has also satisfied the requirement that the
understatement of tax resulting from the disallowed employee
business expenses must not be attributable to the individual
seeking relief from the liability. Sec. 6015(b)(1)(B). The
Court now considers whether Ms. Wang satisfies the remaining two
elements of section 6015(b) with respect to the Schedule A
deductions for unreimbursed employee business expenses.
The first of the two remaining elements of section
6015(b)(1) requires that Ms. Wang, in signing the return, did not
know, and had no reason to know, that there was an
understatement. See Grossman v. Commissioner, 182 F.3d 275, 279-
280 (4th Cir. 1999), affg. T.C. Memo. 1996-452. A requesting
spouse has knowledge or reason to know of an understatement if he
or she actually knew of the understatement, or if a reasonably
prudent taxpayer in his or her position, at the time he or she
signed the return, could have been expected to know that the
return contained an understatement or that further investigation
was warranted. Butler v. Commissioner, supra at 283. In
deciding whether a spouse has reason to know of an
understatement, the Court undertakes a subjective inquiry. There
- 10 -
are several factors that are relevant to the Court's analysis,
including but not limited to: (1) The alleged innocent spouse's
level of education; (2) the spouse's involvement in the family's
business and financial affairs; and (3) the culpable spouse's
evasiveness and deceit concerning the couple's finances. Id. at
284.
Ms. Wang has a degree in engineering from Purdue University
and had full responsibility for the family finances. She had
full access to the family bank accounts, reviewed the bank
account statements monthly, and maintained and balanced the
family checkbook. Ms. Wang also prepared the tax return for the
year in issue. Finally, Mr. Applegate made no attempt to deceive
Ms. Wang about expenditures he made regarding his employment. In
fact, she admits he gave her all his receipts for the
expenditures. Ms. Wang simply made no effort to question him
about them despite the fact that his expenses of over $31,000
equaled almost 76 percent of his income of $41,400.
The Court finds that Ms. Wang has failed to satisfy the
requirements of section 6015(b)(1)(C). Therefore, she does not
qualify for relief under section 6015(b).
B. Section 6015(f)
Ms. Wang may still qualify for relief, however, under
section 6015(f). Section 6015(f) grants the Commissioner
discretion to relieve from joint and several liability an
- 11 -
individual who files a joint return.2 Relief from the 1999
underpayment is not available to Ms. Wang under section 6015(b)
or (c). Thus Ms. Wang has satisfied section 6015(f)(2).
As contemplated by section 6015(f), the Commissioner has
prescribed guidelines in Rev. Proc. 2000-15, sec. 4.02, 2000-1
C.B. 447, 448, to be used in determining whether an individual
qualifies for relief under that section.3 Rev. Proc. 2000-15,
sec. 4.01, 2001-1 C.B. at 448, sets forth the threshold
conditions that must be satisfied before the Commissioner will
consider a request for equitable relief under section 6015(f).
2
Sec. 6015 provides, in pertinent part, as follows:
SEC. 6015. RELIEF FROM JOINT AND SEVERAL LIABILITY ON
JOINT RETURN.
(f) Equitable Relief.--Under procedures prescribed by
the Secretary, if–-
(1) taking into account all the facts and
circumstances, it is inequitable to hold the individual
liable for any unpaid tax or any deficiency (or any
portion of either); and
(2) relief is not available to such individual
under subsection (b) or (c),
the Secretary may relieve such individual of such liability.
3
The guidelines applicable herein are set forth in Rev.
Proc. 2000-15, 2000-1 C.B. 447, which was in effect at the time
Ms. Wang's request for relief was made. Rev. Proc. 2000-15,
supra, has been superseded by Rev. Proc. 2003-61, 2003-32 I.R.B.
296, effective for requests for relief filed on or after Nov. 1,
2003.
- 12 -
Respondent does not dispute that Ms. Wang has satisfied those
threshold conditions.
Where the requesting spouse satisfies the threshold
conditions set forth in Rev. Proc. 2000-15, sec. 4.01, Rev. Proc.
2000-15, sec. 4.02 sets forth the circumstances under which the
Commissioner will ordinarily grant relief to that spouse under
section 6015(f). Ms. Wang was still married to Mr. Applegate at
the time she filed the claim for relief and thus has failed to
satisfy all of the elements of Rev. Proc. 2000-15, sec. 4.02 and
does not qualify for relief under that section.
Where, as here, the requesting spouse fails to qualify for
relief under Rev. Proc. 2000-15, sec. 4.02, the Commissioner may
nonetheless grant the requesting spouse relief under Rev. Proc.
2000-15, sec. 4.03. Rev. Proc. 2000-15, sec. 4.03(1) and (2), at
2000-1 C.B. 448, sets forth six positive and six negative factors
that are to be considered in determining whether to grant relief.
The revenue procedure makes clear that no single factor is to be
determinative in any particular case, that all factors are to be
considered and weighed appropriately, and that the list of
factors is not intended to be exhaustive.
The sole factor weighing in favor of granting relief for Ms.
Wang is that the items giving rise to the deficiency--the
Schedule A employee business expense deductions--are attributable
solely to Mr. Applegate. There are, however, several factors
- 13 -
weighing against granting relief to Ms. Wang. First, she clearly
knew about the employee business expense deductions because Mr.
Applegate gave her his receipts and she used them to prepare
their tax return. Second, Ms. Wang received significant benefit
from Mr. Applegate's employee business expense deductions. His
expenses of $31,349.50 equaled almost 30 percent of their gross
income and constituted almost 70 percent of their total itemized
deductions. Finally, Ms. Wang has provided no information at all
to show that she will experience economic hardship if relief from
the liability is not granted.
Accordingly, the Court concludes that it is not inequitable
under section 6015(f) to hold Ms. Wang liable for the deficiency.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decisions will be entered for
respondent in docket Nos. 19676-02S
and 19692-02S.
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66 So.3d 79 (2011)
POWELL
v.
LOUISIANA PAROLE BD.
No. 2010 CA 2058.
Court of Appeal of Louisiana, First Circuit.
May 6, 2011.
PARRO, J.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
GUIDRY, J., concurs.
HUGHES, J., concurs.
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LETISIA C. MILLER, DOCKET NUMBER
Appellant, AT-844E-14-0925-I-1
v.
OFFICE OF PERSONNEL DATE: July 8, 2015
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Bradley Ezell, Mobile, Alabama, for the appellant.
Thomas Styer, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM’s) reconsideration decision
that denied her request for disability retirement under the Federal Employees’
Retirement System (FERS). For the reasons discussed below, we GRANT the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
appellant’s petition for review, VACATE the initial decision, and REMAND the
appeal to the Atlanta Regional Office for further adjudication in accordance with
this Order.
BACKGROUND
¶2 The appellant, a GS-9 Investigative Analyst, filed an application for
disability retirement benefits under FERS based on restrictive lung disease,
asthma, severe allergies, muscle and bone weakness, tremors, and depression.
Initial Appeal File (IAF), Tab 4 at 23-24. She also resigned, effective May 10,
2013, due to “serious health issues.” IAF, Tab 6 at 325. OPM denied the
appellant’s disability retirement application in initial and reconsideration
decisions. IAF, Tab 4 at 4-7, 11-15. The appellant filed a Board appeal and
requested a hearing. IAF, Tab 1. After holding the appellant’s requested hearing,
Hearing Compact Disc (HCD), the administrative judge issued an initial decision
that affirmed OPM’s reconsideration decision, see IAF, Tab 24, Initial Decision
(ID). The appellant has filed a petition for review, OPM has filed a response, and
the appellant has filed a reply. Petition for Review (PFR) File, Tabs 1, 3-4. After
the record closed on review, the appellant submitted a May 28, 2015 “Fully
Favorable” decision from the Social Security Administration (SSA) that awarded
her disability insurance benefits and found that she was disabled under the Social
Security Act since May 11, 2013. See PFR File, Tab 5. We construe this
submission as a request by the appellant to consider SSA’s decision in our
analysis of this matter.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 The Board may grant a petition for review when there is new and material
evidence which, despite due diligence, was not available when the record closed.
See 5 C.F.R. § 1201.115(d). The SSA decision was dated after the record closed
on review, and it is therefore new evidence. The Board has held that, while it is
not bound by SSA decisions to award social security benefits, it will consider
3
SSA decisions in adjudicating disability retirement cases where the conditions
underlying the applications to OPM and SSA are the same. Givens v. Office of
Personnel Management, 95 M.S.P.R. 120, ¶ 9 (2003). 2 While not dispositive, an
SSA decision awarding social security benefits is material evidence to be
considered by the Board and OPM in disability retirement cases. Id. (citing
Trevan v. Office of Personnel Management, 69 F.3d 520 (Fed. Cir. 1995)). Thus,
because SSA’s “Fully Favorable” decision may change the outcome of this
appeal, it also constitutes material evidence. Under these circumstances, we
believe remand is appropriate. See Givens, 95 M.S.P.R. 120, ¶ 9.
¶4 In the SSA decision, the administrative law judge cited various medical
reports as the basis for her award, and most of this evidence is not part of the
Board’s record below. See PFR File, Tab 5. We find that it is in the interest of
justice to allow the appellant to submit the medical documentation considered by
SSA to the Board’s administrative judge on remand for consideration in
determining whether she met the requisite burden for establishing her entitlement
to disability retirement benefits. See Givens, 95 M.S.P.R. 120, ¶ 9; see also
Simpkins v. Office of Personnel Management, 113 M.S.P.R. 411, ¶ 10 (2010)
(remanding the disability retirement appeal for the administrative judge to
consider the Department of Veterans Affairs’ Rating Decision, which was new
evidence and was based on the same medical condition as in the appellant’s
disability retirement application).
2
The SSA decision discusses the appellant’s Parkinson’s disease, restrictive lung
disease, bronchial asthma, and depression. See PFR File, Tab 5 at 6-9. In her disability
retirement application, the appellant references muscle and bone weakness and tremors,
but she does not mention Parkinson’s disease. See IAF, Tab 4 at 23-24. It appears,
however, that the appellant was not diagnosed with Parkinson’s disease until October
2014. See PFR File, Tab 5 at 7. Based on this evidence, we conclude that there are
sufficient similarities between the appellant’s disability retirement application and the
SSA matter to find that the underlying conditions are the same.
4
ORDER
¶5 For the reasons discussed above, we VACATE the initial decision and
REMAND this case to the Atlanta Regional Office for further adjudication in
accordance with this Order. On remand, the administrative judge shall afford the
parties an opportunity to submit evidence and argument, including a supplemental
hearing if necessary, on the effect in this appeal of the appellant’s receipt of SSA
disability benefits, along with any other evidence of disability provided to the
SSA. After considering any additional evidence and argument, the administrative
judge shall issue a new initial decision consistent with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
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NO. 4-09-0579 Filed 12/28/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
JAMES E. FOLKS, ) No. 09CF05
Defendant-Appellant. )
) Honorable
) James E. Souk,
) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
In March 2009, defendant, James E. Folks, pleaded
guilty to unlawful use of a weapon by a felon (720 ILCS 5/24-
1.1(a) (West 2008)), and aggravated battery (720 ILCS 5/12-
4(b)(1) (West 2008)). The trial court accepted the plea and
sentenced defendant, in accordance with the plea agreement, to
nine years' imprisonment. The plea agreement had also provided
for the imposition of certain "court costs and fees," including
the $200 deoxyribonucleic-acid (DNA) analysis assessment (730
ILCS 5/5-4-3(j) (West 2008)) and a $20 Violent Crime Victims
Assistance Fund (VCVA) assessment (725 ILCS 240/10 (West 2008)).
Thereafter, the circuit clerk sent defendant notice of
the fines and court costs imposed, which included a $10 drug-
court assessment (55 ILCS 5/5-1101(d-5) (West 2008)), a $15
children's-advocacy-center assessment (55 ILCS 5/5-1101(f-5)
(West 2008)) and the $20 VCVA assessment. The $200 DNA-analysis
assessment was not imposed because, according to a handwritten
notation on the notice by perhaps a court clerk, the assessment
was "waived since sample taken in 2004." The notice and the
docket entry indicating the filing of proof that a DNA sample was
"previously taken in 2004" are initialed by "TB."
Defendant filed a motion to withdraw the guilty plea
and vacate sentence. In July 2009, the trial court denied
defendant's motion.
Defendant appealed, asserting (1) defense counsel's
certificate failed to strictly comply with Supreme Court Rule
604(d) (210 Ill. 2d R. 604(d)); (2) defendant is entitled to
vacation of the drug-court and children's-advocacy-center assess-
ments because the circuit clerk lacked the authority to impose
those fines or, in the alternative, those fines must be offset by
the $5-per-day credit for time spent in presentencing custody;
and (3) the VCVA assessment must be reduced to $4 because the
amount imposed exceeded the amount permitted by statute.
We affirm as modified. Defense counsel strictly
- 2 -
complied with Rule 604(d). On defendant's remaining issues, this
court (1) vacates the circuit clerk's assessment of fines and
imposes the $10 drug-court and $15 children's-advocacy-center
fines, which are offset by credit for the time defendant spent in
presentencing custody; (2) reimposes the $200 DNA-analysis
assessment, which is offset by credit for the time defendant
spent in presentencing custody; and (3) vacates the $20 VCVA
assessment and imposes a $24 VCVA assessment.
I. BACKGROUND
In January 2009, the grand jury returned a bill of
indictment charging defendant with unlawful use of a weapon by a
felon (count I) and aggravated battery (count II). On March 24,
2009, defendant pleaded guilty to both charges, and the trial
court accepted that plea.
As reflected by the transcript of the plea hearing and
documents contained in the record, defendant signed a written
plea agreement. In the agreement, defendant agreed to plead
guilty to both counts in exchange for which the trial court would
impose a sentence of nine years' imprisonment on count I and a
concurrent five-year term of imprisonment on count II. The plea
agreement reflected the court would impose "$-0- fine, plus court
- 3 -
costs and fees as authorized by law, payable as follows: $20 VCVA
and $200 DNA." The agreement also reflected defendant was
entitled to credit for 83 days already served in custody. The
court admonished defendant at the hearing that in addition to his
sentence, "there are certain mandatory fines and court costs" and
those would include the $20 VCVA assessment and $200 DNA-analysis
assessment.
After accepting defendant's plea, the trial court
immediately proceeded to sentencing and sentenced "defendant in
accordance with his plea agreement." The sentencing judgment
entered does not reflect the assessments imposed, although it
does indicate that fines and costs were due within two years of
defendant's release from custody. The sentencing judgment also
reflects defendant's credit for time served from January 1, 2009,
to March 24, 2009, which totals 82 days.
The docket entry for the combined plea and sentencing
hearing contains preprinted language, apparently stamped into the
docket, on which someone, perhaps the trial judge, added hand-
written notations. The docket entry contains the preprinted
statement "Fines, fees and costs per Supp. Order." A handwritten
notation provides "20 VCVA and 200 DNA."
On March 25, 2009, the circuit clerk sent a "Notice to
- 4 -
Party" to defendant, detailing the "fine and court costs" imposed
against defendant in connection with the case. That document is
not signed by the trial judge. According to the notice, the
various assessments imposed included the $10 drug-court assess-
ment and the $15 children's-advocacy-center assessment. The DNA-
analysis assessment was listed as ".00$" Next to the statutory
citation for the DNA assessment is a handwritten notation by
someone reading as follows: "waived since sample taken in 2004."
The notice also reflects a VCVA assessment of $20. The document
contains the initials "TB," as does a March 25, 2009, docket
entry notation providing as follows: "DNA sample previously taken
in 2004, proof filed."
Thereafter, defendant filed several pro se documents
seeking to withdraw his guilty plea, including one filed April
23, 2009. The motion raised no issues pertaining to fines or
assessments imposed.
At the July 10, 2009, hearing, the trial court essen-
tially treated defendant's April 2009 pleading as an amendment to
the earlier motions to withdraw guilty plea filed by defendant.
Defendant's attorney, a different assistant public defender than
the one who represented defendant during the plea hearing,
adopted defendant's April 23, 2009, motion.
- 5 -
Defense counsel tendered to the trial court a Supreme
Court Rule 604(d) certificate. The certificate was entitled
"Attorney's Certification for Motion to Reconsider Sentence,"
although no motion to reconsider had been filed and the court was
hearing the motion to withdraw guilty plea.
In the certificate, defense counsel asserted he had (1)
personally consulted with defendant regarding "this motion"; (2)
reviewed the transcripts of the report of plea of guilty proceed-
ing and sentencing hearing, as well as police reports; (3)
examined the trial court file; and (4) elected to make no modifi-
cations to the motion. At the conclusion of the hearing, the
court denied the motion to withdraw guilty plea.
This appeal followed.
II. ANALYSIS
Defendant does not challenge the denial of the motion
to withdraw guilty plea on the merits. Instead, defendant
challenges the Rule 604(d) certificate and the various assess-
ments imposed.
A. Defense Counsel Strictly Complied With Rule 604(d)
Defendant first argues the case must be remanded
because his attorney failed to strictly comply with Supreme Court
Rule 604(d) (210 Ill. 2d R. 604(d)). Specifically, defendant
- 6 -
argues the Rule 604(d) certificate was insufficient because it
was entitled "Attorney's Certification for Motion to Reconsider
Sentence" and, therefore, did not apply to the motion to withdraw
guilty plea. We disagree.
Supreme Court Rule 604(d) requires that counsel repre-
senting a defendant who has pleaded guilty must file in the trial
court a certificate stating the following:
"[T]he attorney has consulted with the defen-
dant either by mail or in person to ascertain
defendant's contentions of error in the sen-
tence or the entry of the plea of guilty, has
examined the trial court file and report of
proceedings of the plea of guilty, and has
made any amendments to the motion necessary
for adequate presentation of any defects in
those proceedings." 210 Ill. 2d R. 604(d).
The certificate requirement "insure[s] that counsel has reviewed
the defendant's claim and considered all relevant bases for the
motion to withdraw the guilty plea or to reconsider the sen-
tence." People v. Shirley, 181 Ill. 2d 359, 361, 692 N.E.2d
1189, 1191 (1998). Our review is de novo. People v. Grice, 371
Ill. App. 3d 813, 815, 867 N.E.2d 1143, 1145 (2007).
- 7 -
Here, counsel certified he (1) personally consulted
with defendant regarding "this motion"; (2) reviewed the tran-
scripts of the report of plea of guilty proceedings and sentenc-
ing hearing, as well as police reports; (3) examined the trial
court file; and (4) elected to make no modification to the
motion. As such, counsel fully complied with the Rule 604(d)
requirements.
Defendant asserts that the certificate is insufficient
because counsel asserted he personally consulted with defendant
regarding "this motion," which meant a nonexistent motion to
reconsider sentence as opposed to the motion to withdraw the
guilty plea. Supreme Court Rule 604(d) does not require a
particular heading. The substance of the certificate complied
with Rule 604(d). The failure to properly label the motion,
while unfortunate, does not require remand for strict compliance
with the Rule 604(d) certificate requirements.
B. This Court Imposes the $10 Drug-Court Assessment
and the $15 Children's-Advocacy-Center
Assessment and Defendant Is Entitled
to the $5-Per-Day Credit Against Those Fines
In his opening brief, defendant argued the circuit
clerk lacked the authority to impose the $10 drug-court assess-
ment (55 ILCS 5/5-1101(d-5) (West 2008)) and $15 children's-
- 8 -
advocacy-center assessment (55 ILCS 5/5-1101(f-5) (West 2008))
because those assessments constituted fines. Defendant asked
that this court vacate the fines or, in the alternative, offset
the fines in the amount of $5-per-day for the days defendant
spent in custody before his transfer to the Department of Correc-
tions. See 725 ILCS 5/110-14 (West 2008) (providing for a $5-
per-day credit against fines for each day of incarceration on a
bailable offense).
The State, in its appellee's brief, agreed that the
circuit clerk lacked the authority to impose those fines but
asserted that this court may reimpose the mandatory fines. The
State also agreed that defendant was entitled to full credit
against this $10 drug-court assessment and $15 children's-
advocacy-center assessment because defendant "spent more than
seven days in custody before sentencing."
In his reply brief, defendant agreed with the State
that this court has the ability to reimpose the $10 drug-court
assessment and $15 children's-advocacy-center assessment. If
reimposed, defendant asked that those fines be offset by defen-
dant's sentence credit.
Section 5-1101 of the Counties Code grants counties the
authority to enact by ordinance (1) a $10 "fee" to be paid by the
- 9 -
defendant on a judgment of guilty to be used to finance the
county mental-health court, county drug court, or both (55 ILCS
5/5-1101(d-5) (West 2008)) and (2) a mandatory children's-
advocacy-center "fee" of between $5 and $30 to be paid by the
defendant on a judgment of guilty (55 ILCS 5/5-1101(f-5) (West
2008)). The McLean County Board has enacted ordinances providing
for both "fees." See McLean County Ordinance Setting a $10.00
Fee for Drug Court (eff. September 1, 2006); McLean County
Ordinance Setting a $15.00 Fee for the Children's Advocacy Center
(eff. June 1, 2008).
Both assessments are mandatory. The statutory provi-
sion pertaining to the children's advocacy center provides that
the county board may adopt a mandatory fee. See 55 ILCS 5/5-
1101(f-5) (West 2008). Although the statutory language relating
to the drug-court assessment is permissive, the assessment is
mandatory once the county board enacts the ordinance. People v.
Price, 375 Ill. App. 3d 684, 701, 873 N.E.2d 453, 468 (2007).
Although identified as "fees" in the statute, the drug-
court and children's-advocacy-center assessments have been found
to constitute "fines." A fee compensates the State for costs
incurred as a result of prosecuting a defendant whereas a fine
does not. People v. Sulton, 395 Ill. App. 3d 186, 193, 916
- 10 -
N.E.2d 642, 648 (2009). Here, both the drug-court and
children's-advocacy-center assessments are fines as neither
compensates the State for costs incurred as a result of the
prosecution of defendant. See Sulton, 395 Ill. App. 3d at 192-
93, 916 N.E.2d at 647-48 (citing factors in determining whether
the drug-court assessment was a cost of prosecution and finding
the assessment was a fine); People v. Jones, 397 Ill. App. 3d
651, 664, 921 N.E.2d 768, 778 (2009) (finding the children's-
advocacy-center assessment was a fine), appeal pending (March
Term 2010).
Because the drug-court and children's-advocacy-center
assessments are fines, those assessments cannot be imposed by the
circuit clerk. See People v. Swank, 344 Ill. App. 3d 738, 747,
800 N.E.2d 864, 871 (2003) (holding that "[t]he imposition of a
fine is a judicial act" and the clerk of the court has no power
to levy fines). In this case, who imposed those mandatory fines
is unclear. Before accepting defendant's plea, the court admon-
ished defendant that his sentence would include "certain manda-
tory fines and court costs" and those would include the VCVA
assessment and DNA-analysis assessment. The March 24, 2009,
docket entry also reflects that defendant's sentence included
fines per a supplemental order. No supplemental order is con-
- 11 -
tained in the record. Whether the "Notice to Party" was intended
to be the supplemental order is not clear from the record.
Further, the notice to party is not reflected as having been
filed on the docket sheet, but it is filed stamped. Neither is
it signed by the judge. The notice to party is initialed by
"TB," who appears to be a clerk. The record contains no other
document that can be construed as a supplemental order imposing
fines.
Moreover, the trial court indicated at the plea and
sentencing hearing that it had sentenced defendant in accordance
with the plea agreement. The plea agreement provided for no fine
"plus court costs and fees." See, e.g., People v. Evangelista,
393 Ill. App. 3d 395, 401, 912 N.E.2d 1242, 1247 (2009) (wherein
the court ordered no fines imposed; the appellate court found
that VCVA assessment was mandatory and the clerk could not impose
that fine on the court's behalf). However, the reference to "no
fine" likely referred to the fine provided for in section 5-9-1
(a)(1) of the Unified Code of Corrections (Corrections Code) (730
ILCS 5/5-9-1(a)(1) (West 2008) (providing for a fine for a felony
of $25,000 or the amount specified in the offense, whichever is
greater)). The court also admonished defendant, before accepting
his plea, that in addition to his sentence, "there are certain
- 12 -
mandatory fines and court costs."
As the parties note, this court may reimpose mandatory
fines. See Evangelista, 393 Ill. App. 3d at 401, 912 N.E.2d at
1247 (reimposing the mandatory VCVA assessment). The record is
not clear whether the trial court imposed those mandatory fines.
Assuming the circuit clerk in fact imposed those fines, we vacate
the circuit clerk's fines and impose the $10 drug-court assess-
ment and $15 children's-advocacy-center assessment. Defendant is
entitled to the $5-per-day credit against the drug-court and
children's-advocacy-center fines. See 725 ILCS 5/110-14 (West
2008); Jones, 397 Ill. App. 3d at 664, 921 N.E.2d at 778 ($5-per-
day credit applies to the children's-advocacy-center fine);
Sulton, 395 Ill. App. 3d at 193, 916 N.E.2d at 648 (finding the
issue of monetary credit may be raised for the first time on
appeal, and the defendant was entitled to the $5-per-day credit
against the drug-court assessment).
C. The $20 VCVA Assessment Must Be Vacated
and Reimposed in the Amount of $24
Defendant last argues that the VCVA assessment must be
reduced from $20 to $4. The State argues the VCVA assessment is
void and the correct VCVA assessment is $24.
Section 10 of the Violent Crime Victims Assistance Act
- 13 -
provides for a penalty to be collected from each defendant
convicted of a felony. 725 ILCS 240/10(b) (West 2008). If no
other fines are imposed, the penalty to be collected is $25 for
crimes of violence and $20 for any other felony. See 725 ILCS
240/10(c)(1), (c)(2) (West 2008). If other fines are imposed,
the penalty is "$4 for each $40, or fraction thereof, of fine
imposed." 725 ILCS 240/10(b) (West 2008). The VCVA assessment
is not subject to the $5-per-day credit provided in section 110-
14(a) of the Code of Criminal Procedure of 1963 (Criminal Code)
(725 ILCS 5/110-14(a) (West 2008)). See People v. Mingo, 403
Ill. App. 3d 968, 973, 936 N.E.2d 1156, 1160 (2010).
Defendant argues that because other fines were im-
posed--the $10 drug-court assessment and the $15 children's-
advocacy-center assessment--the VCVA assessment must be reduced
to $4. In response, the State argues the trial court imposed the
$200 DNA-analysis assessment and the circuit clerk lacked the
authority to waive the DNA-analysis assessment. The State argues
this court should reimpose the $200 DNA-analysis assessment. In
such case, defendant's fines would total $225, and the VCVA
assessment would total $24.
In his reply brief, defendant argues this court lacks
jurisdiction to address the State's argument because (1) the
- 14 -
State is not authorized under Supreme Court Rule 604(a) (210 Ill.
2d R. 604(a)) to appeal the failure to impose a missing fine, and
(2) the absence of the DNA-analysis assessment does not render
the sentence void. Defendant further argues the State forfeited
the issue.
The trial court imposed the DNA-analysis assessment as
indicated in the transcript of the plea/sentencing hearing. The
court specifically recited the term of the plea agreement that
the DNA-analysis assessment would be imposed. At the conclusion
of the hearing, the court noted having "sentenced the defendant
in accordance with his plea agreement." See, e.g., People v.
Thurston, 255 Ill. App. 3d 512, 514-15, 626 N.E.2d 426, 427
(1994) (providing that the appellate court may examine the oral
pronouncement of a sentence and the written sentencing order
entered the same day when ascertaining the terms of the sen-
tence). The docket entry also reflects the imposition of the
DNA-analysis assessment. Nothing in the record indicates the
court itself actually rescinded that order.
Presumably, the circuit clerk reduced the DNA-analysis
assessment to zero, but the clerk lacked the authority to do so.
See, e.g., Swank, 344 Ill. App. 3d at 747-48, 800 N.E.2d at 871
("[t]he imposition of a fine is a judicial act"). As such, the
- 15 -
reduction of the DNA-analysis assessment to zero is void, and the
State can raise the issue in response to defendant's argument
that the VCVA assessment must be reduced. See, e.g., People v.
Malchow, 193 Ill. 2d 413, 429-30, 739 N.E.2d 433, 443 (2000)
(finding that State was allowed to challenge a sentence on
appeal; sentence below the minimum term established by the
legislature was void). Moreover, the State did not forfeit the
issue because defendant never raised his objection to the amount
of the VCVA assessment in the trial court.
Finally, defendant argues that section 5-4-3 of the
Corrections Code (730 ILCS 5/5-4-3 (West 2008)) does not require
redundant DNA sampling and fees.
However, the plea agreement specifically provided for
the imposition of the DNA-analysis assessment. See, e.g., People
v. Snyder, 387 Ill. App. 3d 1094, 1102, 904 N.E.2d 625, 631-32
(2009) (finding the defendant was not entitled to an additional
day of sentence credit where she bargained for her sentence and
acquiesced in the sentence imposed). Consequently, this court
concludes that the trial court did not err by imposing the $200
DNA-analysis fee and the circuit clerk erred by reducing that fee
to zero. Therefore, this court reimposes the DNA-analysis fee of
$200 imposed by the trial court. The DNA-analysis assessment is
- 16 -
a fine and is subject to credit under section 110-14 of the
Criminal Code (725 ILCS 5/110-14(a) (West 2008)). People v.
Long, 398 Ill. App. 3d 1028, 1034, 924 N.E.2d 511, 517 (2010).
Because other fines were imposed--the DNA-analysis, drug-court,
and children's-advocacy-center assessments--and total $225, we
vacate the $20 VCVA assessment and impose a VCVA assessment of
$24.
This court recognizes the morass of fines, fees, and
costs created by the legislature. The calculation of these sums
is a monumental feat which has commonly been accomplished by the
clerk after the sentencing, in the clerk's office with the aid of
computers. The wording of much of the legislative language would
seem to indicate that the clerk is responsible for assessing
and/or collecting not only the fees and costs, but also the
fines. See, e.g., 705 ILCS 105/27.3a(1) (West 2008) (document-
storage fee; the county board may require the circuit clerk to
collect a document fee to be charged and collected by the clerk
of the court); 705 ILCS 105/27.1a (West 2008) (circuit clerk fee;
providing that "the clerk of the circuit court must charge the
minimum fee"); 725 ILCS 240/10(b) (West 2008) (VCVA assessment;
providing that the penalty "shall be collected by the [c]lerk of
the [c]ircuit [c]ourt in addition to the fine and costs in the
- 17 -
case"); 730 ILCS 5/5-4-3(j), (k)(2) (West 2008) (DNA-analysis
assessment; providing that the defendant "shall pay an analysis
fee of $200" and providing "[a]ll fees shall be collected by the
clerk of the court"). Further complicating the computations are
recent cases which have recharacterized many fees as fines,
thereby eliminating the clerk's authority to impose the assess-
ments.
This court also recognizes the daily dilemma faced by
the court and clerks, even for those who have staff and computers
to support the prompt assessment of the multitude of specific
fines, fees, and costs in the courtroom with the defendant
present. The myriad of legislative requirements and the complex-
ity of their precise application based on a number of legislative
and situational variables make the task immensely difficult. The
possibility of error because of the complicated nature of the
assessment process is high and is of great concern to the court
and to the elected court clerks in the 102 counties in the state
of Illinois.
The current situation calls for a comprehensive legis-
lative revision in the assessment of fines, fees, costs and the
$5-per-day credit for time spent in custody prior to sentencing.
The judicial and clerical time expended on accurate calculation
- 18 -
of the precise assessment of these monies, much of which may
never be collected, is phenomenal. In the interim, the current
"Notice to Party" form could be utilized in the courtroom and on
the record and signed by the presiding judge after the defendant
is admonished that the specific mandatory and discretionary fines
will be imposed in addition to any unspecified clerk's fees and
costs.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment as modified. This court (1) vacates the circuit clerk's
assessment of fines and imposes the $10 drug-court and $15
children's-advocacy-center fines, which are offset by credit for
the time defendant spent in presentencing custody; (2) reimposes
the $200 DNA-analysis assessment, which is offset by credit for
the time defendant spent in presentencing custody; and (3)
vacates the $20 VCVA assessment and imposes a $24 VCVA assess-
ment.
Affirmed as modified.
KNECHT and POPE, JJ., concur.
- 19 -
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536 U.S. 974
CANNONv.OKLAHOMA.
No. 02-5376 (02A62).
Supreme Court of the United States.
July 23, 2002.
1
Ct. Crim. App. Okla. Application for stay of execution of sentence of death, presented to JUSTICE BREYER, and by him referred to the Court, denied. Certiorari denied. JUSTICE STEVENS took no part in the consideration or decision of this application and this petition.
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NO. 07-06-0291-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 23, 2007
______________________________
KENNETH D. SMARTT, JR., ELIZABETH JIMENEZ, XOTICAS-LAREDO, L.P.,
XOTICAS-LAREDO, INC., K. SMARTT INVESTMENTS, INC. D/B/A XOTICAS,
Appellants
v.
THE CITY OF LAREDO, TEXAS,
Appellee
_________________________________
FROM THE 111TH DISTRICT COURT OF WEBB COUNTY;
NO. 2003-CVQ-001570-D2; HON. RAUL VASQUEZ, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
This is an appeal from a permanent injunction enjoining Kenneth D. Smartt, Jr.,
Elizabeth Jimenez, Xoticas-Laredo, L.P., Xoticas-Laredo, Inc., K. Smartt Investments, Inc.
d/b/a Xoticas (collectively referred to as Smartt) from operating a sexually oriented
business in the City of Laredo (Laredo), Texas. Smartt contends that the trial court erred
in granting the injunction because 1) the business does not "fit" the definition of
“establishment” as used in the ordinance, 2) the ordinance is unconstitutional and 3)
Laredo had an adequate remedy at law. We affirm.
Background
In June of 1995, Smartt began operating a business involving nude dancers
(Xoticas) outside the city limits of Laredo. In 1998, Laredo annexed the property. Four
years later, Laredo amended a previously existing ordinance to require those operating
sexually oriented businesses to obtain a license and to refrain from conducting operations
within 1000 feet of a residential area. Laredo sued for an injunction seeking to stop Smartt
from operating his business because it purportedly violated the 1000 foot restriction. A
hearing was held, and the trial court granted the relief requested. It suspended the
injunction, however, pending appeal.
Standard of Review
Whether to grant a permanent injunction lies within the discretion of the trial court;
so, on appeal, we are limited to determining whether that discretion was abused. Priest
v. Tex. Animal Health Comm'n, 780 S.W.2d 874, 875 (Tex. App.–Dallas 1989, no writ).
Issue One - Definition of Establishment
Smartt initially argues that the ordinance in question is not applicable because 1)
his business is “grandfathered” and 2) its operation does not fall within the meaning of
“establishment.” We overrule the issue.
As for the business being “grandfathered,” we read the argument as suggesting that
because the business was in operation before the area was annexed and subject to the
zoning ordinance, it can continue to operate freely. No authority is cited in support of the
2
argument, however. Moreover, our own Supreme Court has held that under reasonable
conditions, zoning ordinances may be applied to end previously existing nonconforming
uses. City of University Park v. Benners, 485 S.W.2d 773, 778 (Tex. 1972); see also Baird
v. City of Melissa, 170 S.W.3d 921, 926-27 (Tex. App.–Dallas 2005, pet. denied)
(recognizing the continued existence of the rule). So, simply because Xoticas may have
been in operation before the zoning ordinances were implemented does not mean that it
is ipso facto immune from those ordinances.
As for the argument about the business not falling within the definition of an
“establishment,” we note that the ordinance makes it illegal “for any person to operate a
sexually oriented business without a valid sexually oriented business license . . . .”
LAREDO , TEX ., LAND DEVELOPMENT Code ch. 18A, §4(a). The ordinance similarly prohibits
a “person [from] operat[ing] or caus[ing] to be operated a sexually oriented business within
one thousand (1000) feet of . . . a church . . . [a] public or private . . . school . . . [a]
boundary of any residential district . . . [a] public park . . .” and various other locations. Id.
§13(b). Moreover, the word “person” encompasses “an individual, proprietorship,
partnership, corporation, association, or other legal entity.” Id. §2(q). In none of these
several provisions appears the term “establishment.” Instead, they purport to regulate
“persons” and Smartt falls within the definition of a “person.”
To the extent that Smartt somehow relies on the word “establishment” to exclude
Xoticas from the scope of a sexually oriented business, we note that the latter is defined
as, among other things, an “adult cabaret” and “sexual encounter center.” The former
includes “a nightclub, bar, restaurant, or similar establishment whose major business is . . .
3
offering . . . live entertainment . . . intended to provide sexual stimulation or sexual
gratification . . . .” Id. §2(c). A “sexual encounter center” encompasses, among other
things, “a business or commercial enterprise that . . . offers for any form of consideration
. . . activities between male and female persons . . . when one or more of the persons is
in a state of nudity or is semi-nude . . . .” Id. §2(s). According to the record, Xoticas is “a
nightclub which features . . . female performers” dancing topless but with “covered nipples”
(while the other portions of the breast remain uncovered) and “bikini bottoms.” Those
indicia depict both live entertainment intended to provide sexual stimulation and activities
between males and females with one being semi-nude. Consequently, evidence exists
supporting the trial court’s determination that Xoticas is a sexually oriented business,
irrespective of the definition of “establishment.”
Issue Two - Constitutionality
In his second issue, Smartt asserts that the ordinance is unconstitutional because
1) its predecessor was found unconstitutional by another court and 2) it abridges First
Amendment protections. We again overrule the issue.
Regarding the purported unconstitutionality of the current ordinance due to the
unconstitutionality of its predecessor, we deem the argument illogical. Simply put, the two
differ. Being different, it does not logically follow that because the first was bad, the
second is also bad. More importantly, Smartt merely glosses over, rather than explains,
why he believes the new law suffers from the same defects as the old. This alone is fatal
to the argument because he is obligated to explain his contention. He cannot leave it up
4
to us to develop it. Double Ace, Inc. v. Pope, 190 S.W.3d 18, 29 (Tex. App.–Amarillo
2005, no pet.).
Regarding the purported violation of his First Amendment rights, he believes not
only that the ordinance is an invalid attempt at regulating the time, place, and manner of
sexually oriented businesses but also that it is not content neutral. We address the latter
contention first and conclude that the ordinance is content neutral, as that term has come
to be defined. Both state and federal precedent has deigned to place a “content neutral”
moniker on such laws when they can be deemed as simply regulating the time, place, and
manner of the speech or activity. See e.g., City of Renton v. Playtime Theatres, Inc., 475
U.S. 41, 47, 106 S.Ct. 925, 928, 89 L.Ed.2d 29 (1986); Smith v. State, 866 S.W.2d 760,
763-64 (Tex. App.–Houston [1st Dist.] 1993, pet. ref’d). So in cases involving the zoning
of sexually oriented businesses, the focus lies not upon the nature of the activity but on the
government’s interest in regulating the secondary effects emanating from the activity and
the time, place and manner of the restrictions implemented. Smith v. State, 866 S.W.2d
at 763-64. With that said, we turn to the other aspect of Smartt’s contention.
That a municipality has a substantial interest in preserving the quality of urban life
is beyond dispute. Smith v. State, 866 S.W.2d at 764. Regulating the location of sexually
oriented businesses serves that interest. Id. Next, the manner in which the ordinance
regulates the activity is acceptable for it does not ban the activity in its entirety. It simply
regulates the location at which it can be conducted. And, restrictions limiting the location
to distances 1000 feet from churches and areas zoned residential have been held
constitutional. See SWZ, Inc. v. Board of Adjustment, 985 S.W.2d 268, 270-71 (Tex.
5
App.–Fort Worth 1999, pet. denied) (1000 feet); Lindsay v. Papageorgiou, 751 S.W.2d
544, 550 (Tex. App.–Houston [1st Dist.] 1988, writ denied) (1500 feet).
Finally, Smartt believes aspects of the ordinance are “overly broad” and therefore
unconstitutional. The provision at issue is that referring to a “commercial enterprise,” and
Smartt suggests that the constitutionality of the provision was “specifically questioned in”
a prior opinion rendered by the Fourth Court of Appeals in a case involving Smartt and
various Webb County officials. See K. Smartt Invs., Inc. v. Martinez, No.04-01-00482-CV,
2002 Tex. App. LEXIS 9234 (Tex. App.–San Antonio December 31, 2002, no pet.). Yet, we
find nothing in the opinion suggesting that the phrase was unconstitutionally broad.
Rather, the court mentioned it only in assessing whether the activities occurring within the
establishment fell within the definition of an “adult cabaret.” It said nothing about the words
being overly broad or unconstitutional. So, to the extent that the argument now urged is
founded upon what the San Antonio Court of Appeals wrote in its Smartt opinion, we find
his contention is baseless.
Issue Three - Adequate Remedy at Law
Lastly, Smartt contends in his third issue that Laredo was not entitled to an
injunction since Laredo had an adequate legal remedy, namely the ability to criminally
prosecute and fine offenders. We overrule the issue for the reason that both statute, TEX .
LOCAL GOV. CODE ANN . §243.010(a) (Vernon 2005) and caselaw, Schleuter v. City of Fort
Worth, 947 S.W.2d 920, 932 (Tex. App.–Fort Worth 1997, writ denied), permit cities to
seek injunctions to stop sexually oriented businesses from violating ordinances like those
at bar. So, the issue is overruled.
6
The issues raised by Smartt do not evince an abuse of discretion on the part of the
trial court. Accordingly, we affirm the judgment.
Brian Quinn
Chief Justice
7
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439 N.W.2d 651 (1989)
EMMET COUNTY STATE BANK, Appellee,
v.
Robert D. REUTTER and Janice I. Reutter, Appellants.
No. 88-1161.
Supreme Court of Iowa.
April 19, 1989.
*652 Michael R. Bovee of Greer, Montgomery, Barry & Bovee, Spencer, for appellants.
Joseph L. Fitzgibbons and Harold W. White of Fitzgibbons Bros., Estherville, for appellee.
Considered by McGIVERIN, C.J., and LARSON, SCHULTZ, LAVORATO, and ANDREASEN, JJ.
LAVORATO, Justice.
In 1985 the Iowa legislature amended Iowa Code section 524.910, which pertains to agricultural land acquired by a state bank in satisfaction of a debt previously contracted. According to the amendment, before the bank may sell such land, it must first offer the prior owner an opportunity to repurchase the land on the terms the bank proposes to sell it. The issue we are to decide is whether the amendment applies to such land that was acquired by a state bank before the amendment became effective but was sold after its effective date. The district court held that the amendment did not apply. We disagree and reverse.
I. Background Facts and Proceedings.
We glean the following facts, which are undisputed, from the summary judgment record, consisting of the pleadings, affidavits, and answers to interrogatories and requests for admissions.
On December 16, 1983, the defendants, Robert D. Reutter and Janice L. Reutter, mortgaged their 320-acre farm to the plaintiff, the Emmet County State Bank. In January 1985 the Reutters filed a Chapter 7 bankruptcy petition. In February the plaintiff offered to purchase the farm from the bankruptcy trustee. On June 17, 1985, the plaintiff acquired the farm from the trustee via a quitclaim deed for a stated consideration of $252,000.
On February 17, 1987, the plaintiff entered into a real estate contract with Chuck Umscheid, Richard Umscheid, and Delores Umscheid for the sale of the farm for $198,000. According to the contract, the Umscheids were to take possession on March 1, 1987.
The Umscheids' attorney, in a title opinion rendered the following July, raised a title objection: the plaintiff's failure to comply with Iowa Code section 524.910. In the attorney's opinion, this section required the plaintiff to offer the prior owners, the Reutters, an opportunity to repurchase the farm on the same terms it proposed to sell to the Umscheids. The attorney required a showing of compliance with section 524.910 or, in the alternative, a judicial decree quieting title in the plaintiff as to all claims of the Reutters.
Several days later, the plaintiff filed a quiet title action against the Reutters. In their answer the Reutters raised, as an affirmative defense, the plaintiff's failure to comply with section 524.910. Later, with permission of the court, the Reutters filed an amended answer and counterclaim. One count of the counterclaim sought a declaratory ruling that section 524.910 required the plaintiff to offer the Reutters an opportunity to repurchase their former property before sale to a third party. The other count sought monetary damages based on the plaintiff's alleged failure to allow the Reutters such an opportunity. It is undisputed that the plaintiff is a state bank subject to regulation by Iowa Code chapter 524.
Following discovery, the plaintiff filed a motion for summary judgment, asserting two grounds. First, the amendment to section *653 524.910, granting prior owners an opportunity to repurchase, applied only to property acquired on or after July 1, 1985, the effective date of the amendment; in other words, the amendment applied only prospectively. Second, the plaintiff purchased the property by private sale from the bankruptcy trustee, not the Reutters; hence, the amendment did not apply. The district court agreed with the plaintiff's first ground but rejected the second. The court granted the motion for summary judgment and thereafter entered a decree quieting title to the farm in the plaintiff and against the Reutters. It also dismissed, in its decree, the Reutters' counterclaim. This appeal followed.
II. Principles Governing Summary Judgment.
Ordinarily, when a ruling on a summary judgment is challenged, our task is to determine whether a genuine issue of material fact exists. Only when there is no such issue is the motion properly granted. On the other hand, when the facts are undisputed and the only issue is what legal consequences flow from those facts, entry of summary judgment is proper. See Moritz v. Maack, 437 N.W.2d 898, 901 (Iowa 1989).
Here the facts are undisputed, and the only issue is one of law. Thus, our task is to determine whether the district court correctly applied the law.
III. Does the 1985 Amendment to Section 524.910 Apply to the Umscheid Sale?
Before the 1985 amendment, section 524.910 provided in pertinent part:
A state bank may acquire property of any kind to secure, protect or satisfy a loan or investment previously made in good faith. Property acquired pursuant to this section shall be held and disposed of subject to the following conditions and limitations:
....
2. Real property purchased by a state bank at sales upon foreclosure of mortgages... owned by it, ... or such real property as shall be conveyed to it in satisfaction of debts previously contracted in the course of its business ... shall be sold or otherwise disposed of by the state bank within one year after title is vested in the state bank, unless the time is extended by the superintendent.
The 1985 amendment allowed state banks to hold property for five years rather than one and added the following pertinent language to subsection two:
Before the state bank sells or otherwise disposes of agricultural land held pursuant to this subsection, the state bank shall first offer the prior owner the opportunity to repurchase the agricultural land on the terms the state bank proposes to sell or dispose of the agricultural land.
1985 Iowa Acts ch. 252, § 34. We have held that this opportunity to repurchase is enforceable via a suit by a private party. Black v. First Interstate Bank, 439 N.W. 2d 647, 650 (Iowa 1989). We have also held that the opportunity is assignable. Id. at 651.
In concluding that the 1985 amendment to section 524.910 did not apply to the Umscheid sale, the district court relied on a prospective-retrospective application analysis. The rules that come into play under such an analysis are summarized in State ex rel. Turner v. Limbrecht:
When a statute is newly enacted it may be applied prospectively only or it may be applied both prospectively and retrospectively. Legislative intent determines which of these two applications is to be given. In determining such intent, "[the] general rule is that [a statute] operates prospectively only unless it clearly appears the legislature intended the law to have retrospective effect." This basic rule is however not without exceptions. "The rule is subject to an exception where the statute relates solely to remedy or procedure. If a statute relates to a substantive right, it ordinarily applies prospectively only. If it relates to remedy or procedure, it ordinarily applies both prospectively and retroactively." *654 246 N.W.2d 330, 332 (Iowa 1976) (citations omitted), overruled on other grounds, State ex rel. Miller v. Hydro Mag, Ltd., 436 N.W.2d 617, 622 (Iowa 1989).
In applying these rules, the district court determined that the amendment contains no language as to either prospective or retrospective application. It concluded that the amendment applied prospectively only because it was substantive legislation, creating substantive rights which prior to the amendment did not exist.
We think the district court got off on the wrong foot in its analysis. The legislature's failure to expressly state in the amendment whether it was to have retrospective or prospective application is not determinative. See Schnebly v. St. Joseph Mercy Hospital, 166 N.W.2d 780, 782 (Iowa 1969) (intent to give statute retrospective or prospective application may be expressed in the statute or implied from its language).
The determination instead boils down to whether the legislature intended to give the amendment here retrospective or prospective application. To make that determination, our cases have developed a three-part test. First, we look to the language of the new legislation; second, we consider the evil to be remedied; and third, we consider whether there was a previously existing statute governing or limiting the mischief which the new legislation was intended to remedy. In re Incorporation of Town of Avon Lake, 249 Iowa 1112, 1118, 88 N.W.2d 784, 787 (1958); Appleby v. Farmers State Bank, 244 Iowa 288, 294-95, 56 N.W.2d 917, 921 (1953).
Turning to the language of the amendment, we think the following language in it implies retrospective application:
Before the state bank sells or otherwise disposes of agricultural land held pursuant to this subsection, the state bank shall first offer the prior owner the opportunity to repurchase the agricultural land on the terms the state bank proposes to sell or dispose of the agricultural land.
(Emphasis added.) The clear import of the italicized words is that the amendment applies to agricultural land owned by a state bank on the effective date of the amendment, regardless of when the land was acquired. There is nothing in the language of the amendment restricting its meaning to agricultural land held as of a subsequent date. The amendment makes no exception. Cf. Appleby, 244 Iowa at 295, 56 N.W.2d at 921 (the language "any sheriff's certificate of sale" in newly enacted statute implied retrospective application to all sheriff's certificates outstanding on the date of the new legislation); Aetna Ins. Co. v. Chicago G.W.R. Co., 190 Iowa 487, 489, 180 N.W. 649, 651 (1920) (the language "any provision in any lease or contract to the contrary notwithstanding" in newly enacted statute implied retrospective application to all leases containing a provision in conflict with the statute).
As to the evil sought to be remedied, we need simply look to the bill containing the amendment and to the conditions existing before and at the time of the amendment's passage. See Appleby, 244 Iowa at 295, 56 N.W.2d at 921 (in construing statute, "`[i]t is important to consider the state of the law before it was enacted, and the evil it was designed to remedy'"). The bill, Senate File 577, encompasses numerous provisions. Significantly, the title of the bill begins, "An Act relating to the economy of the State of Iowa." Section two of the bill lists nine legislative findings. We set forth four of the findings, which we think bear on our question:
The general assembly finds and declares as follows:
....
3. There exists a serious problem in this state regarding the ability of farmers and small businesses to obtain adequate affordable operating loans and to service the debt on existing operating, machinery, and land loans.
....
5. The inability of farmers and small businesses to obtain adequate affordable operating loans and to service the debt on existing operating, machinery, and *655 land loans is conducive to economic decline and poverty....
....
7. A major cause of the unavailability of adequate affordable operating loans... is the unstable economic condition of the state....
8. A stable economic condition is necessary to encourage and facilitate the availability of adequate affordable operating loans [to farmers and small businesses]....
1985 Iowa Acts ch. 252, § 2.
The stated purpose of this omnibus legislation is "to maximize the economic potential of the state and to thereby stabilize the economic condition of the state." Id.
Besides the amendment to Iowa Code section 524.910, Senate File 577 establishes a state agency to undertake programs providing assistance for farming and small businesses; allows the debtor and the mortgagee of agricultural land to extend, after the filing of a foreclosure action, the period of redemption up to five years; and allows for an alternative nonjudicial voluntary foreclosure procedure. The last provision is geared to reducing the cost of foreclosure proceedings while at the same time providing protection to both the debtor and the mortgagee. This laudable purpose is accomplished by allowing the voluntary transfer of land to a mortgagee without a foreclosure action. See Black, 439 N.W.2d at 650.
Thus, it is clear from the legislative findings in Senate File 577 and from the several provisions mentioned that the legislature was deeply concerned about the severe economic hardships Iowa farmers have endured these past ten years and was determined to do something about it. We take judicial notice of the numerous farm foreclosures resulting in loss of farms that for generations were family-held. Cf. Appleby, 244 Iowa at 296, 56 N.W.2d at 922 (when considering whether statute had retrospective or prospective application, judicial notice taken of economic conditions and especially of land foreclosures).
The amendment here was part of the legislature's attempt to remedy the problem of numerous farm foreclosures. See Black, 439 N.W.2d at 650 (viewing Senate File 577 as a whole, it is apparent that this amendment is "part of the fabric of the Alternative Nonjudicial Foreclosure Procedure"). The amendment was clearly intended to reduce foreclosure losses by making it possible for affected farmers to regain their farms. Retrospective rather than prospective application of the amendment would better serve this purpose. The legislature knew that, and we think that is what it intended.
Prior to the amendment there was no existing legislation designed to alleviate or remedy this mischief in a similar way. The mischief existed at the time the amendment was enacted, and no good reason appears why the legislature should have intended to remedy only a part rather than all of it. Cf. Avon Lake, 249 Iowa at 1119, 88 N.W. 2d at 788, (newly enacted municipal incorporation statute interpreted to apply to pending petition to incorporate; no prior similar legislation had existed); Appleby, 244 Iowa at 297, 56 N.W.2d at 922 (newly enacted limitation statute interpreted to apply to sheriff's certificate held at time of enactment; no prior similar legislation had existed).
One further matter merits our attention. The plaintiff contends here, as it did in the district court, that the amendment did not apply to the Reutter farm because the plaintiff had purchased it by private sale from the bankruptcy trustee. Like the district court, we find the contention without merit and reject it.
The plaintiff offered to purchase the farm from the trustee for a purchase price of $252,000 to be paid as follows: (1) cash payment of $147,914.39 to the Federal Land Bank for release of its real estate mortgage against the farm and (2) a satisfaction and discharge of the Reutters' mortgage to the plaintiff in an amount equal to the difference between $252,000 and the amount actually paid to the Federal Land Bank.
As we noted earlier, section 524.910 applies to real property conveyed to a state bank in satisfaction of debts previously contracted in the course of its business.
*656 Clearly, a part of the purchase price in the plaintiff's offer to the trustee was the partial satisfaction of the Reutters' mortgage, a mortgage that had been contracted with the plaintiff in the course of its banking business. The following language in the trustee's quitclaim deed conveying the Reutter farm to the plaintiff supports our conclusion: "Deed is a Conveyance of Real Property To Lienholders In Lieu of Foreclosure Action."
IV. Disposition.
The legislature intended the 1985 amendment to Iowa Code section 524.910 to have retrospective application. Consequently, the district court erred in concluding otherwise. Because it incorrectly applied the law to the undisputed facts, it should not have (1) sustained the plaintiff's motion for summary judgment, (2) dismissed the Reutters' counterclaim, and (3) quieted title in the plaintiff and against the Reutters' claims. The court, however, did correctly reject the plaintiff's contention that the amendment was inapplicable because the plaintiff had purchased the farm by private sale from the bankruptcy trustee.
We reverse the decree of the district court and remand for further proceedings.
REVERSED AND REMANDED.
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553 F.2d 102
Dairyland Power Co-op.v.Fed. Barge
No. 76-1489
United States Court of Appeals, Eighth Circuit
2/8/77
E.D.Mo., 414 F.Supp. 40
1
AFFIRMED*
*
See Local Rule 14
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956 F.2d 124
UNITED STATES of America, Plaintiff-Appellee,v.Montez DAY, Defendant-Appellant.
No. 90-6260.
United States Court of Appeals,Sixth Circuit.
Argued March 26, 1991.Decided Feb. 4, 1992.
Ed Bryant, U.S. Atty., Timothy R.
DiScenza, Asst. U.S. Atty. (argued and briefed), Christopher E. Cotten, Memphis, Tenn., Sean Connelly, U.S. Dept. of Justice, Criminal Div., Washington, D.C., for plaintiff-appellee.
Clifton Harviel, Federal Public Defender (argued and briefed), Memphis, Tenn., for defendant-appellant.
Before KENNEDY and RYAN, Circuit Judges, and FEIKENS, Senior District Judge.*
RYAN, Circuit Judge.
1
We have granted rehearing in this case to consider the government's claim that on the original appeal we concluded erroneously that the district court erred to the substantial prejudice of the defendant in "sharply chastising Day's counsel" at a sidebar conference conducted in the jury's presence. Specifically, we said:
2
Day further argues that the court's "scathing" criticism of his counsel unfairly prejudiced him in front of the jury. Because Day did not move for a new trial, the record does not establish whether the jury actually heard the court's comments and thus whether the court's comments prejudiced Day before the jury. Sidebar conferences with attorneys conducted on the record and out of the jury's presence are an appropriate component of district court litigation. When, however, such conferences occur in the jury's presence, this court will assume that the conference is within the jury's hearing unless the record shows otherwise.
3
In its Brief on Rehearing, the government insists that "it is hard to see the logic" of our assumption that a "sidebar procedure is an empty formality that does not work as intended." The short answer to the government's difficulty in seeing the logic of our holding might be summarized in Justice Oliver Wendell Holmes' statement that: "The life of the law has not been logic: it has been experience." Oliver W. Holmes, The Common Law 1 (1881). The experience of some of the panelists at least, while sitting as trial judges, is that so-called "sidebar conferences" may indeed be within the hearing of the jurors. It is noteworthy in this case that counsel for the defendant asserted on the initial appeal that the district court's remarks were within the hearing of the jury and nowhere does the government assert they were not.
4
However, for a very specific reason--one not brought to the court's attention either by the government or by the defendant--we withdraw our holding that we assume, in this case, that the court's criticism of counsel was overheard by the jury and thus contributed to the error that necessitates a reversal and new trial. We do so, not for any reason suggested by the government, but because, upon rehearing, the presiding judge of the panel has discovered a reporter's note at page 345 of the Transcript in this case which reads as follows: "(The following proceedings were had at the bench by Court and counsel out of the hearing of the jury.)"
5
That fact was not brought to the court's attention by the government or by the defendant either upon the original hearing or upon rehearing.
6
In all events, in view of the reporter's note there is no occasion to assume, in this case, that the court's remarks "were within the jury's hearing" because "the record shows otherwise."
7
Upon a reassessment of the record and reconsideration of the arguments submitted upon the original hearing and upon rehearing, we conclude, for the reasons stated in our original opinion, 942 F.2d 354, independent of the district court's statement chastising counsel, that Day's conviction must be VACATED and his case REMANDED for a new trial.
8
KENNEDY, Circuit Judge, concurring.
9
I agree with the majority of the panel that we should grant rehearing in this case since the record affirmatively shows that the judge's comments were not within the jury's hearing. I write separately because I believe we erred in our earlier holding, since withdrawn, that we would presume the jury overheard a sidebar conference in the absence of evidence to the contrary.
10
The purpose of a sidebar conference is for counsel and the judge to confer without the jury being privy to what is said. When the jury does hear, it is because the procedure has failed in its purpose and the jury has heard what the court intended it should not. To presume that is what occurred is to presume the district court failed to conduct the sidebar conference as it should be conducted. We do not ordinarily presume error.
11
I believe our earlier decision in United States v. Smith, 928 F.2d 740 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 159, 116 L.Ed.2d 124 (1991), rejected the proposition advanced by the majority of the panel. In Smith, the trial judge first criticized the defendant's counsel for his argument in the presence of the jury, and then further criticized him at a sidebar conference. We said:
12
Further it is evident that, to the extent the trial judge's comments were otherwise objectionable, they were made in the main at the sidebar and therefore out of hearing of the jury. By the court reporter's characterization of the event, we have no reason to believe that the statements which occurred at the sidebar were actually heard by the jury and therefore its verdict could only have been improperly influenced, if at all, by the relatively brief colloquy which occurred in its presence.... [T]he comments of the trial judge actually made in the presence of the jury did not rise to that element of reversible error, especially since the record seems to have been singularly free of similar incidents elsewhere in the course of trial.
13
What defense counsel would have us believe, however, is that the statements made by the trial judge at the sidebar conference were not only improper but were also, to his client's prejudice, heard by the jury. In that presumption we may not indulge.
14
Id. at 742-43.
15
Two other circuits have required the complaining party to establish that disparaging remarks by the trial judge were heard by the jury. See United States v. Block, 755 F.2d 770 (11th Cir.1985); Harris v. United States, 367 F.2d 633, 636 (1st Cir.1966), cert. denied, 386 U.S. 915, 87 S.Ct. 862, 17 L.Ed.2d 787 (1967).
16
The majority acknowledges the usefulness of sidebar conferences. Judges have been using them for years with very few complaints. When there is a problem, the aggrieved party has a remedy--it can raise the issue by a contemporaneous objection and move for a voir dire inquiry, a mistrial or a new trial. The presumption adopted by the majority is contrary to the manner in which error is ordinarily established and addressed.
17
Yet, if you presume error, although there has been neither a contemporaneous objection nor a motion for mistrial, the party who does not claim the remarks were overheard is required to ask for a voir dire inquiry to establish that the sidebar conference was not heard by the jury. That party may not even know that the opposing party claims the comments were overheard until the issue is raised on appeal. The only certain way to avoid the problem will be to excuse the jury in every instance in which a sidebar conference is needed. Requiring that the jury be removed every time a judge makes a sidebar ruling that the jury should not hear seems to me unwarranted. The jury will be more prejudiced by being excused and speculating what happened in its absence than observing a quiet remark to counsel at the sidebar. We should leave to the trial court's discretion whether to excuse the jury or conduct a conference at sidebar and should require a party claiming error to establish that error.
*
The Honorable John Feikens, Senior United States District Judge for the Eastern District of Michigan, sitting by designation
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450 F.3d 91
James McDONALD, Individually and on behalf of others similarly situated, Margaret PRENDERGAST, as Executrix of the Estate of James McDonald, Plaintiffs-Appellees, Cross-Appellants,v.PENSION PLAN OF THE NYSA-ILA PENSION TRUST FUND, and Board of Trustees of the Pension Plan of the NYSA-ILA, in their Official and Personal Capacities, Defendants-Appellants, Cross-Appellees.
Docket No. 05-1435-cv(L).
Docket No. 05-1630-cv(CON).
Docket No. 05-1749-cv(XAP).
Docket No. 05-4140-cv(CON).
Docket No. 05-4288-cv(XAP).
United States Court of Appeals, Second Circuit.
Argued: March 9, 2006.
Decided: June 6, 2006.
COPYRIGHT MATERIAL OMITTED Nicholas G. Maglaras, The Lambos Firm, New York, N.Y. (Donato Caruso, The Lambos Firm, New York, NY; Thomas W. Gleason, Ernest L. Mathews, Jr., Gleason & Mathews, P.C., New York, NY, on the brief), for Defendants-Appellants, Cross-Appellees.
Edgar Pauk, New York, NY, for Plaintiff-Appellee, Cross-Appellant.
Before CALABRESI, CABRANES and WESLEY, Circuit Judges.
PER CURIAM.
1
After decisions by two different district court judges and a published opinion by this Court, this case, involving the computation of years of service under the Employment Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq. ("ERISA"), reaches us again with three questions remaining.1 First, did the district court correctly conclude that all of former-longshoreman James McDonald's pre-ERISA years of service in excess of 400 hours should be carried over to the post-ERISA period to establish pension eligibility, and further, that no modification of the pension plan ("the Plan") of the NYSA-ILA Pension Trust Fund was necessary? Second, did the district court exceed its discretion, or otherwise err, in its first award of attorney's fees? Finally, did the district court err in the second fee award following remand from this Court when it determined the reasonable hourly rate of McDonald's lawyer, Edgar Pauk, using a "blended hourly rate?" We answer the first and third questions in the affirmative and with respect to the second question, we conclude that the district court did not err in its first fee award. Accordingly, we AFFIRM the district court's March 7, 2005 Order and Judgment as to the merits of the ERISA case and the first fee award entered on September 6, 2002, and we VACATE the second attorney's fee award, entered July 14, 2005, and REMAND for recalculation of that award.
Discussion
The Merits
2
McDonald sued the Pension Plan of the NYSA-ILA Pension Trust Fund and its Trustees (collectively, "PTF") in August of 1999, based on a belief that "his pension calculations failed to reflect 13 years during which he had accrued benefits." McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, 320 F.3d 151, 153 (2d Cir.2003) ("McDonald IV"). This Court vindicated McDonald's belief by affirming a decision of the district court (Buchwald, J.), which invalidated "a Plan provision that permitted the PTF to disregard years of service rendered prior to a break in service that occurred before the passage of [ERISA]." McDonald IV, 320 F.3d at 153 (citing 29 U.S.C. §§ 1001 et seq.). Specifically, we agreed with the district court that "ERISA § 204, 29 U.S.C. § 1054, trumps the Plan's break-in-service provision."2 Id. (citing McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, 153 F.Supp.2d 268, 280-81 (S.D.N.Y.2001) ("McDonald I")). Nevertheless, we remanded the case for further fact finding based on PTF's argument that, had it known its break-in-service provision would be invalidated, the Plan would not have defined a "year of service" as service in excess of 400 hours per year, but rather would have used a higher minimum number, such as the 1000-hour description of a "year of service" under ERISA § 202(a)(3)(A), 29 U.S.C. § 1052(a)(3)(A). See McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, No. 99 Civ. 9054(PKC), 2004 WL 2050166, at *2 (S.D.N.Y. Aug.6, 2004) ("McDonald V"). As we said in McDonald IV: "We are concerned . . . with the effects of nullifying the Plan's break-in-service provision with regard to pre-ERISA benefit accrual and leaving the Plan's 400-hour `year of credited service' definition to stand on its own, when under the terms of ERISA itself the PTF was not required to recognize any of McDonald's pre-1973 service." 320 F.3d at 160-61, quoted in McDonald V, 2004 WL 2050166, at *2. Although PTF's argument gave this Court pause sufficient to require a remand based on the record then before us, and despite the fact that we had otherwise affirmed McDonald's victory in the district court, we are now confident that had we known in McDonald IV what we now know as a result of facts disclosed on remand in McDonald V, we would not have remanded in the first place. The district court first learned on remand that although the parties had been under the assumption that the 1969 Plan was the Plan that applied to McDonald's pre-ERISA service,3 there was in fact a 1972 Plan, which the parties do not dispute was the Plan that was in play. See McDonald V, 2004 WL 2050166, at *3.
3
It is the difference between the two Plans that conclusively resolves the issue that troubled us in McDonald IV. The 1969 Plan required a longshoreman, like McDonald, to have worked "a continuous period of not less than twenty-five (25) years." Art. III, § 1(c) of the 1969 Plan (emphasis added). It was the "continuous" service requirement that spawned this litigation by implicating the Plan's break-in-service provision, and thereby excluding thirteen of McDonald's pre-break years of service. Of course, we invalidated the Plan's break-in-service provision in McDonald IV, but as mentioned above, we remanded because of PTF's argument that it would never have defined a year of service as 400 hours in the absence of the break-in-service provision.
4
In contrast to the 1969 Plan, the 1972 Plan added an alternate method of eligibility that did not require "continuous" service, but rather allowed a longshoreman to be eligible when his employment in the industry reached "a total period of twenty-five (25) years" as defined by the Plan, Art. III, § 1(c)(ii) of the 1972 Plan (emphasis added), no matter how long it took to accumulate the twenty-five years. Therefore, while the 1972 Plan still retained the 400-hour definition of a year of service, it provided an alternate way for employees to accumulate the required twenty-five years without implicating the break-in-service provision. PTF takes issue with the district court's reference to the 1972 Plan, because, based on a requirement not relevant here, McDonald could not have satisfied the alternative "total" service provision. But it does not matter that McDonald would not have satisfied the new 1972 alternative provision. The mere existence of an alternative that still defined a year of credited service at 400 hours, yet allowed for eligibility without continuous service and its attendant (and now invalid) break-in-service provision, undercuts completely PTF's argument when it last came before this Court that it would have jettisoned the 400-hour year-of-service definition in the absence of the break-in-service provision.
5
In light of the foregoing, we affirm the district court's application of the PTF plan provisions to McDonald's work history. We also affirm the injunctive relief ordered by the court, which directed PTF to reform its plan provisions in accordance with Judge Buchwald's judgment dated October 1, 2001. Apart from this measure of equitable relief, we agree with the district court that no further modification of the plan is necessary. We have considered the parties' remaining arguments, including PTF's argument pursuant to Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), and we find them to be without merit. Accordingly, the district court's March 7, 2005 Order and Judgment on the merits of this appeal (05-1435-cv) is affirmed.
The Fee Awards
6
Each of the two district court judges in this case issued attorney's fee awards for work done by Pauk, McDonald's attorney.4 The first fee award was made by Judge Buchwald following the resolution of initial district court proceedings. See McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, No. 99 Civ. 9054(NRB), 2002 WL 1974054 (S.D.N.Y. Aug.27, 2002) ("McDonald II"). After resolution of the case on remand from this Court, Judge Castel entered the second fee award on July 14, 2005 following a hearing during which the district court discussed its reasoning. We find that the first fee award was not erroneous, but that the district court did err in its calculation of the second fee award.
7
We review an award of attorney's fees for "abuse of discretion." Locher v. Unum Life Ins. Co. of Am., 389 F.3d 288, 298 (2d Cir.2004). "A district court `abuses' or `exceeds' the discretion accorded to it when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions." Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.2001) (footnote omitted). Given the district court's inherent institutional advantages in this area, our review of a district court's fee award is highly deferential. See Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47-48 (2d Cir. 2000). In calculating attorney's fee awards, district courts use the lodestar method — hours reasonably expended multiplied by a reasonable hourly rate. See A.R. ex rel. R.V. v. New York City Dept. of Ed., 407 F.3d 65, 79 (2d Cir.2005); see Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058 (2d Cir.1989). In order to calculate the reasonable hours expended, the prevailing party's fee application must be supported by contemporaneous time records, affidavits, and other materials. See Chambless, 885 F.2d at 1058; New York State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1147-48 (2d Cir.1983). A district court may exercise its discretion and use a percentage deduction "`as a practical means of trimming fat from a fee application,'" Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir.1998) (quoting Carey, 711 F.2d at 1146), and the Supreme Court has been careful to note that only those hours "reasonably expended" are to be awarded. See Hensley v. Eckerhart, 461 U.S. 424, 434-35, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). A reasonable hourly rate is a rate "in line with . . . prevailing [rates] in the community for similar services by lawyers of reasonably comparable skill, expertise and reputation." Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Chambless, 885 F.2d at 1058-59. A district court may also use its knowledge of the relevant market when determining the reasonable hourly rate. See Miele v. New York State Teamsters Conference Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir.1987).
First Fee Award
8
In the first fee award, Judge Buchwald reduced Pauk's hours expended based on three factors: a reduction for work on unsuccessful claims not sufficiently related to the claim on which McDonald ultimately prevailed (25%); a reduction for record-keeping that did not adequately indicate what work was legal and what work was administrative (5%); and a reduction for unnecessarily multiplying the proceedings (5%). On review of the record, we conclude that Judge Buchwald did not err in reducing the fee application's hours by 35%.
9
In calculating the reasonable hourly rate, the district court concluded that $325 per hour would be reasonable for Pauk. McDonald III, 2002 WL 1974054, at *4. In reaching this figure, the district court looked at materials submitted by Pauk in support of his assertion that $425 per hour was a reasonable hourly rate,5 and cases cited by PTF that the prevailing rate for ERISA practitioners in this Circuit was $300 per hour. The district court made two other findings in reaching the $325-per-hour figure. First, the district court found that "though effective, [Pauk's performance] was less than stellar: He was often inefficient and occasionally vexatious." Id. Second, the district court found it "[o]f great significance" that Pauk was a solo practitioner with lower overhead costs than attorneys associated with large firms.6 Id. On review of the record, we cannot conclude that the district court erred in setting Pauk's hourly rate at $325 per hour.
Second Fee Award
10
The second fee award was made by Judge Castel following remand from this Court. As with the first fee award, we conclude upon a review of the record that the district court did not err in calculating Pauk's reasonably expended hours. The district court reduced Pauk's submitted hours by 35% to account for the hours worked on claims on appeal and remand that were unsuccessful and unrelated to successful claims. However, the district court did err in calculating Pauk's reasonable hourly rate at $390 per hour. It is not that $390 per hour is necessarily incorrect, but it was inappropriate for the district court to use a "blended hourly rate" to reach this figure for a solo practitioner. Judge Castel's blended hourly rate provided a lower rate for work that could only have been done by a junior associate and then blended that rate with the rate assigned to work that, according to the district court's opinion, could only be done by Pauk.
11
A blended rate is "meant to account for the different billing rates of partners and associates by taking an average of the two." Figueroa ex rel. Havre v. Savanar Rest., Inc., 182 F.Supp.2d 339, 341 (S.D.N.Y.2002); see also In re Auction Houses Antitrust Litig., No. 00 Civ. 0648, 2001 WL 210697, at * 1 n. 2 (S.D.N.Y. Feb.26, 2001) ("The blended rate is the firm's total time charges, derived by applying each individual time keeper's hourly rate to his or her hours, divided by the firm's total hours."). The application of a blended hourly rate in calculating the lodestar figure has not been endorsed in our decisions, and it appears never to have been applied to a solo practitioner by any court in this Circuit. See, c.f., SEC v. Goren, 272 F.Supp.2d 202, 208 (E.D.N.Y. 2003) (declining to apply a blended rate because it "risks under — or over-compensating these professionals for their efforts"); Leva v. First Unum Life Ins. Co., No. 96 Civ. 8590(DC), 1999 WL 294802, at *2 (S.D.N.Y. May 11, 1999) (applying blended rate where it was not clear which of multiple billing attorneys performed each task); see also Scholastic, Inc. v. Stouffer, 246 F.Supp.2d 355, 357-58 nn. 5 & 6 (S.D.N.Y.2003) (applying a blended rate in determining the reasonable hourly rate for single attorneys where their individual rates changed during the course of the litigation).
12
PTF invites us to equate the district court's determination of the blended hourly rate to language in some of our earlier cases within this Circuit that suggests that different rates can be set for different litigation tasks. See, e.g., Cohen v. W. Haven Bd. of Police Comm'rs, 638 F.2d 496, 505 (2d Cir.1980); see also Capozzi v. City of Albany, 565 F.Supp. 771, 774-75 (N.D.N.Y.1983) (dividing different litigation tasks into categories like travel time, court appearances, and depositions).7 We decline PTF's invitation. Setting different hourly rates for different litigation tasks is not the same as using a blended hourly rate. See, e.g., Paulino v. Upper West Side Parking Garage, Inc., No. 96 Civ. 4910(NPC), 1999 WL 325363, at *3 (S.D.N.Y. May 20, 1999) (indicating that different rates can be awarded to litigation tasks such as court appearances, depositions, office time and travel time); Jennette v. City of New York, 800 F.Supp. 1165, 1170 (S.D.N.Y.1992) (in civil rights case, reducing the hourly rate for travel time and for time "reviewing basic civil rights cases"). Here, the district court did not assign different hourly rates for different tasks but rather created the hypothetical "Pauk & Associates" — comprised of one experienced ERISA litigation attorney and a hypothetical group of inexperienced associates — and decided on its own which tasks should have been done by respective members of the hypothetical firm. Cf. Weisberg v. Coastal States Gas Corp., No. 78 Civ. 5942, 1982 WL 1311, at *2 n. 1 (S.D.N.Y. Jun.16, 1982) (declining to parse out attorneys' work based on whether it could have been done by an associate or paralegal, because the attorneys were solo practitioners). The district court "analogize[d]" Pauk's situation to that of a large law firm; some of Pauk's time (for example, his time arguing before this Court or conducting the bench trial) was worth $500 per hour, but some of Pauk's work (for example, the time he spent "researching and cross-moving for summary judgment and opposing summary judgment.") was, according to the district court, work that "could have been delegated to a more junior lawyer at a lower billing rate." There is simply no support for the proposition that a district court can decide what legal tasks could have been done by a hypothetical associate attorney working for or with Pauk in order to calculate a blended hourly rate of $390, especially where, as here, the blended rate applied only to attorney time (not paralegal or secretarial time).
13
We therefore conclude that calculating a reasonable hourly rate using different hourly rates for different litigation tasks is not the same thing as using a "blended hourly rate." Moreover, we conclude that a "blended hourly rate" is not applicable to Pauk's legal work as a solo practitioner. Accordingly, for the reasons set forth above, we affirm the first fee award, and we vacate the second fee award and remand to Judge Castel for recalculation on the basis of a non-blended rate.
Conclusion
14
The district court's order of March 7, 2005, order and judgment disposing of all claims, and the orders and judgments dated August 27, 2002 and September 6, 2002, respectively, awarding attorney's fees and costs pursuant to FED.R.CIV.P. 54(d), are hereby AFFIRMED, and the district court's judgment awarding attorney's fees and costs pursuant to FED.R.CIV.P. 54(d) dated July 14, 2005, is hereby VACATED and REMANDED to Judge Castel for recalculation.
Notes:
1
An expanded discussion of the facts and legal issues presented in this litigation can be found atMcDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, 153 F.Supp.2d 268 (S.D.N.Y.2001) ("McDonald I"). See also McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, No. 99 Civ. 9054(NRB), 2001 WL 1154630 (S.D.N.Y. Oct.1, 2001) ("McDonald II"); McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, No. 99 Civ. 9054(NRB), 2002 WL 1974054 (S.D.N.Y. Aug.27, 2002) ("McDonald III"); McDonald v. Pension Plan of NYSA-ILA Pension Trust Fund, 320 F.3d 151 (2d Cir. 2003) ("McDonald IV"); McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, No. 99 Civ. 9054(PKC), 2004 WL 2050166 (S.D.N.Y. Aug.6, 2004) ("McDonald V"); and McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, No. 99 Civ. 9054(PKC), 2004 WL 2429809 (S.D.N.Y. Oct.20, 2004) ("McDonald VI"). This opinion thus becomes McDonald VII, and if the pattern holds true, there will be at least a McDonald VII.
2
The PTF's "break-in-service" provision provided that, if for more than two consecutive years an employee failed to work enough to earn a year of credited service, the PTF could disregard any years of credited service occurring prior to the break in serviceMcDonald IV, 320 F.3d at 157. In McDonald's case, that meant thirteen years of credited service would be disregarded, resulting in a significantly reduced pension. Id. at 154.
3
"Under the version of the Plan in effect when [McDonald] ceased working, the PTF was required to look back to the provisions of the Plan as they existed on December 31, 1975, the last pre-ERISA day."McDonald V, 2004 WL 2050166, at *3.
4
The attorney's fee questions cover four of the five consolidated appeals and cross-appeals: 05-1630-cv; 05-1749-cv; 05-4140-cv; and 05-4288-cv
5
Pauk submitted six affidavits from experienced employment law attorneys from New York and Washington, D.C., stating that Pauk's request for $425 per hour was reasonable. The lowest rate the affidavits suggested would be reasonable for an experienced New York ERISA attorney was $350-360 per hour. The district court also had before it portions of the 1999 edition ofThe Lawyer's Almanac listing New York partners' billing rates (no firm size was mentioned) between the low-$100s per hour and $475 per hour.
6
We want to caution, however, that district courts should not treat an attorney's status as a solo practitioner as grounds for an automatic reduction in the reasonable hourly rate. Cases suggest that in determining the relevant "market," a courtmay look to rates charged by those similarly situated, including looking to the rates charged by large — or mediumsized law firms, based on the widely-held premise that a client represented by a medium-sized firm pays less than a client represented by a large firm with higher overhead costs. See, e.g., Chambless, 885 F.2d at 1058-59; Algie v. RCA Global Commc'ns, Inc., 891 F.Supp. 875, 895 (S.D.N.Y.1994). But whether or not the aforementioned premise — that the bigger the firm the higher the attorneys' hourly rates charged — is correct, and even assuming it may be that solo practitioners of equal skill, expertise and reputation, charge less than those at large — or medium-sized firms, courts should not automatically reduce the reasonable hourly rate based solely on an attorney's status as a solo practitioner. Overhead is not a valid reason for why certain attorneys should be awarded a higher or lower hourly rate. Cf. Miele, 831 F.2d at 409; Blum, 465 U.S. at 892, 895-96, 104 S.Ct. 1541 (rejecting the Solicitor General's suggestion that fees awarded to non-profit legal aid societies be based on a "cost-related standard"). Rather, overhead merely helps account for why some attorneys charge more for their services. Indeed, it may be that in certain niche practice areas, attorneys of the highest "skill, expertise, and reputation" have decided to maintain a solo practice instead of affiliating themselves with a firm. The reasons for doing so may be numerous, including the inherent problems of higher overhead, fee-sharing, and imputed conflicts of interest. The focus of the inquiry into the reasonable hourly rate must instead be determined by reference to "prevailing [rates] in the community for similar services by lawyers of reasonably comparable skill, expertise, and reputation." Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541; Chambless, 885 F.2d at 1058-59. Working as a solo practitioner may be relevant to defining the market, See Chambless, 885 F.2d at 1059 ("smaller firms may be subject to their own prevailing market rate"), but it would be error to use an attorney's status as a solo practitioner as an automatic deduction or shortcut for determining the reasonable hourly rate.
7
The First Circuit has adopted a standard that allows district courts to assign different hourly rates depending on whether the task is a "core" or "non-core" taskSee, e.g., Brewster v. Dukakis, 3 F.3d 488, 492 n. 4 (1st Cir.1993) (defining "core" work as including "legal research, writing of legal documents, court appearances, negotiations with opposing counsel, monitoring, and implementation of court orders" and defining "non-core" work as "less demanding tasks, including letter writing and telephone conversations"). We do not read Brewster as supporting the district court's blended hourly rate in this case because the district court appears to have assigned differing rates even to work the First Circuit would describe as "core."
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 21, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 17-1220
(D.C. No. 1:12-CR-00033-JLK-1)
JAMSHID MUHTOROV, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, LUCERO, and HOLMES, Circuit Judges.
_________________________________
The defendant, Jamshid Muhtorov, is a refugee from Uzbekistan who has been
charged with conspiracy and attempt to provide material support to a designated
terrorist organization, the Islamic Jihad Union (IJU), in violation of 18 U.S.C.
§ 2339B. He has been detained pending trial since his arrest in 2012. At Muhtorov’s
request, the district court recently continued his trial until March 12, 2018, so it can
take place after his co-defendant, Bakhtiyor Jumaev, is tried in January.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Muhtorov has filed three motions for pretrial release—in 2012, 2015, and
2017. The district court denied his first two motions, but on June 23, 2017, it issued
an order allowing his release (“the June 23 order”), subject to home detention with an
ankle bracelet and various other conditions. The government now challenges the
June 23 order, which we have stayed pending resolution of this appeal. Exercising
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), we reverse.
I. Background
A. Facts
Muhtorov came to the United States from Uzbekistan as a refugee in 2007.
The government became aware of him through his year-long e-mail communications
with an administrator of the IJU’s official website. The IJU has been designated as a
foreign terrorist organization since 2005. It is an ally of Al-Qaeda and the Taliban
and has engaged in fights against United States troops in Afghanistan.
The government intercepted Muhtorov’s communications during surveillance
under the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C.
§§ 1801-1811, 1821-1829. In them, Muhtorov expressed his “support of the [IJU],
his profession of allegiance to them, and his profession of wanting to provide
whatever support he could to them.” App., Vol. 4 at 867. In particular, he discussed
purchasing portable satellite equipment and sending $300 in cash, which he had
received from his co-defendant, Jumaev. Further, he swore his “Bay’ah,” or
allegiance, to the IJU and said “he would do whatever is necessary for them or
whatever they asked of him, even to the point of death.” Id. at 903. Muhtorov also
2
discussed martyrdom with Jumaev, and the men said they would meet in heaven. Id.
at 920. Additionally, in e-mail and phone conversations, they talked about joining
the “wedding” (a common code word for the jihadist movement, martyrdom
operations, or an armed struggle) and referenced the “wedding house,” and the
“wedding gift” (which typically refers to financial support). The men also discussed
going to Turkey to study at a madrassa, or religious school.
In January 2012, Muhtorov was arrested at the Chicago airport, en route to
Istanbul, Turkey. He had purchased a one-way ticket. At the time of his arrest, he
had almost $3,000 in cash, two new iPhones in their original packaging, and a new
iPad in the same condition. His own phone contained videos showing combat against
coalition forces, instructions on making improvised explosive devices, and graphic
images of jihadists beheading captured men.
A grand jury indicted Muhtorov for conspiracy and attempt to provide material
support to a designated foreign terrorist organization. He has been detained pending
trial since his arrest for the past five and one-half years. The delay in proceeding to
trial is the result of a confluence of factors, including his motions to suppress
evidence obtained under FISA and other extensive pretrial motions; threats to a key
government witness, which necessitated extensive discussions about the conditions of
that witness’s testimony; issues stemming from the severance of the trials; and the
need to translate voluminous documentary evidence.
3
B. Procedural History
Muhtorov first sought release in February 2012 at a detention hearing before
the magistrate judge, which centered on testimony by an FBI agent. The magistrate
judge denied the motion for release after concluding (1) by a preponderance of the
evidence, that no condition or combination of conditions of release would reasonably
assure Muhtorov’s appearance at future court proceedings; and (2) by clear and
convincing evidence, that Muhtorov presents a risk to other persons and the
community and that no condition or combination of conditions of release would
reasonably assure the community’s safety. The district court affirmed.
Muhtorov next sought pretrial release in July 2015 through a motion for
reconsideration of bail based on the extraordinary length of pretrial detention and the
due process implications thereof. By then, Muhtorov had been in custody for three
and one-half years, though his motion acknowledged the lack of any speedy trial
issues and conceded the pretrial process had taken a long time due to the case’s
complexity. The government objected that Muhtorov could not reopen the detention
hearing because he had not presented any new information that was not known to him
at the time of the detention hearing and that has a material bearing on whether there
are conditions of release that will reasonably assure his appearance and the safety of
other persons and the community, as required by 18 U.S.C. § 3142(f). The district
court denied the second motion for release after concluding that Muhtorov presents a
“bona fide,” “serious flight risk.” App., Vol. 3 at 475. It cited “[t]he serious nature
of the charges”; “the severity of the penalties for conviction” (15 years per count,
4
with a possibility the sentences could run consecutively for a total of 60 years);1 “the
fact he was apprehended while in the process of leaving the country and destined for
the Middle East carrying money and electronic equipment capable of being used by a
terrorist organization”; and “the threat of violence implicit in these acts.” Id. And it
opined that the trial delays were occasioned, to some degree, by the complexity of the
case, numerous motions filed by Muhtorov, and translation issues—not by lack of
diligence or zeal by either party.
That brings us to the third motion for pretrial release and the June 23 order
granting it. That motion was precipitated by a continuance of Jumaev’s trial, which
spurred Muhtorov to request his own continuance so as to proceed second and call
Jumaev as a defense witness. The district court reopened Muhtorov’s detention
hearing under 18 U.S.C. § 3142(f)(2) based on the following new information:
The government dismissed counts 5 and 6 of the indictment, which charged
that Muhtorov and Jumaev conspired to provide material support and
resources to the IJU in the form of personnel (namely, Abdullo Jumaev) in
violation of 18 U.S.C. §§ 2339A, 2339B.
The “actual factual basis” for the nature of the alleged crimes and the flight
and danger risk Muhtorov poses, App., Vol. 9 at 1934, is now based on
more than one FBI agent’s testimony. Three evidentiary hearings show the
government’s case may be weaker and Muhtorov’s defenses stronger, so
“[t]here is reason to believe . . . that Mr. Muhtorov has been invested with a
sense of a direction and a reason to stay and see the trial of his case
through.” Id. at 1934-35.
The district court reassessed the factors listed in 18 U.S.C. § 3142(g)(1)
and (2), as detailed below, and determined the evidence “suggest[s]
Mr. Muhtorov’s bark was more serious than his bite.” Id. at 1936.
1
Since the time of Muhtorov’s indictment, the maximum prison term listed in
§ 2339B has since been amended from 15 years to 20 years.
5
Ultimately, the district court found that “a combination of conditions for release
can be crafted that will assure [Muhtorov’s] attendance at [trial] and protect the safety
of the community.” Id. at 1935. It imposed those conditions of release at a hearing on
June 26, 2017. Restrictions include GPS ankle monitoring and a 24-hour lockdown at
Muhtorov’s home, though he may leave his home for three approved exceptions:
(1) religious purposes (i.e., weekly mosque services); (2) meetings with his attorneys;
and (3) medical appointments. In addition, Muhtorov has surrendered his passport
and cannot have access to internet-capable devices that allow access to social media.
The probation office will monitor his electronics as well.
The government filed this appeal and sought an emergency stay of the release
order, which we granted.
II. Legal Framework
The Bail Reform Act sets out the framework for evaluating whether pretrial
detention is appropriate. See 18 U.S.C. § 3142. A defendant may be detained
pending trial only if a “judicial officer finds that no condition or combination of
conditions will reasonably assure the appearance of the person as required and the
safety of any other person and the community.” Id. § 3142(e)(1). To make such a
finding, the judicial officer must hold a detention hearing per 18 U.S.C. § 3142(f). The
factors relevant to considering whether there are release conditions that can ensure
the defendant’s appearance and the safety of the community are: (1) the nature and
circumstances of the offense, including whether the offense is a federal crime of
terrorism; (2) the weight of the evidence; (3) the defendant’s history and
6
characteristics; and (4) the nature and seriousness of the danger the defendant would
pose to the community if released. Id. § 3142(g).
In this case, the charges against Muhtorov establish a rebuttable presumption
that “no condition or combination of conditions will reasonably assure the appearance
of the person as required and the safety of the community.” Id. § 3142(e)(3)(C).2 It is
Muhtorov’s burden to rebut the presumption. United States v. Stricklin, 932 F.2d
1353, 1355 (10th Cir. 1991) (per curiam) (“The defendant’s burden of production is not
heavy, but some evidence must be produced.”). “However, the burden of persuasion
regarding risk-of-flight and danger to the community always remains with the
government.” Id. at 1354-55. “The government must prove risk of flight by a
preponderance of the evidence, and it must prove dangerousness to any other person
or to the community by clear and convincing evidence.” United States v. Cisneros,
328 F.3d 610, 616 (10th Cir. 2003) (citations omitted). Having twice found the
government met this burden, the district court changed course in the June 23 order.
We review the district court’s ultimate release decision de novo because it
presents mixed questions of law and fact; however, we review the underlying
findings of historical fact for clear error. Id. at 613. “A finding is clearly erroneous
when, although there is evidence to support it, the reviewing court, on review of the
entire record, is left with the definite and firm conviction that a mistake has been
2
A rebuttable presumption arises under this provision where the defendant
faces charges for certain offenses listed in 18 U.S.C. § 2332(g)(5)(B) that carry
sentences of ten years. Muhtorov’s alleged crime—a violation of 18 U.S.C.
§ 2339B—is among the designated offenses.
7
committed.” United States v. Gilgert, 314 F.3d 506, 515 (10th Cir. 2002) (brackets
and internal quotation marks omitted). We review the district court’s findings with
significant deference, cognizant that “our role is not to re-weigh the evidence.”
Id. at 515-16.
III. Discussion
A. The Statutory Presumption of Detention
The government faults the district court for not “addressing the presumption of
detention” and “not mak[ing] a specific finding that the defendant has rebutted the
presumption.” Mem. Br. at 11-12. We have previously held that “[e]ven if a
defendant’s burden of production is met, the presumption remains a factor for
consideration by the district court in determining whether to release or detain.”
Stricklin, 932 F.2d at 1355 (citing United States v. Cook, 880 F.2d 1158, 1162
(10th Cir. 1989)). But the district court did not need to use a set of “magic” words
when considering the presumption, as the government intimates. We deemed it
“significant[]” in Stricklin that “there was no finding that defendant was successful in
rebutting” the § 3142(e) detention presumption, 932 F.2d at 1355. But we
emphasized that the government made a “strong evidentiary showing” while noting
that the defendant offered no documentary evidence and the district court made no
findings whatsoever on the strength of the defendant’s showings. Id. at 1354-55.
Likewise, in Cook, we found error when the district court “completely skipped over”
the rebuttable presumption of detention in denying a motion to revoke release under
18 U.S.C. § 3148(b). 880 F.2d at 1162.
8
Here, by contrast, it is clear the district court was aware of, and guided by, the
rebuttable presumption. This was the third motion for pretrial release, and the parties
and court discussed the presumption in detail with respect to all three motions;
indeed, it played a role in Muhtorov’s continuing detention. And the district court
explicitly referenced the presumption at the outset of the June 23 order. See App.,
Vol. 9 at 1929. It also operated within the framework of the presumption when it
made detailed findings on the ways in which the circumstances had changed since its
original finding that no conditions could guarantee Muhtorov’s appearance at trial or
the community’s safety. For these reasons, we reject the government’s argument that
the district court did not give any weight to the rebuttable presumption or make
appropriate findings as to whether Muhtorov rebutted the presumption.
B. The § 3142(g) Factors
Next, we turn to the government’s argument that the district court did not
identify significant evidence to overcome the statutory presumption and the
evidentiary record—both of which show that no conditions of release can reasonably
assure Muhtorov’s appearance at trial or the safety of the community.
1. Nature and Circumstances of Offense Charged
The first factor is “the nature and circumstances of the offense charged,
including whether the offense is . . . a Federal crime of terrorism.” 18 U.S.C.
§ 3142(g)(1). Muhtorov has been charged with knowingly providing support or
resources to a foreign terrorist organization, or attempting or conspiring to do so, in
violation of 18 U.S.C. § 2339B, which is a federal crime of terrorism. This factor has
9
remained constant: The district court repeatedly recognized the serious nature of the
charges in resolving all three of Muhtorov’s motions for pretrial release.
Likewise, the circumstances surrounding Muhtorov’s arrest have not changed.
He expressed his willingness to support the IJU in multiple e-mails and phone
conversations and was arrested while attempting to board a one-way flight to Turkey,
in possession of cash and electronic equipment. He resigned from his job shortly
before the trip. And he told his daughter in the preceding months that he might not
see her again on earth, but he would see her in heaven if she was a good Muslim girl.
2. Weight of the Evidence
The second factor—“the weight of the evidence against the person,” 18 U.S.C.
§ 3142(g)(2)—was the primary focus of the June 23 order. The district court’s
treatment of this factor changed dramatically from its earlier analyses.
The district court noted the government’s dismissal of the last two counts of
the indictment. It then reassessed the strength of the evidence against Muhtorov
based on new or changed information gleaned from three hearings: (1) a January
2017 suppression hearing that demonstrated some weaknesses in the government’s
translations of the evidence and its linguists; (2) a February 2017 James hearing that
gave a thorough overview of the government’s evidence to support its conspiracy
claims; and (3) a March 2017 Daubert hearing from which it can be inferred that the
IJU’s administrator did not take Muhtorov seriously and that Muhtorov left for
Turkey without a definitive plan with anyone from the IJU. Ultimately, the district
10
court concluded that the evidence against Muhtorov is not as strong as it seemed to
be at the initial detention hearing.
To support its revised assessment, the district court also cited expert
testimony that may undermine the government’s theory that the madrassa that
Muhtorov planned to attend was a known conduit to the IJU. It focused on the fact
that Muhtorov’s oath to the IJU was made but not accepted. And it observed that
“large majorities” of the Muhtorov-Jumaev conversations involved “prattle and
topics other than terrorism or plans to support it.” App., Vol. 9 at 1936. Pointing to
all of these purported deficiencies, the district court concluded that the evidence now
“suggest[s] Mr. Muhtorov’s bark was more serious than his bite,” id. Even so, the
district court expressed “concern[s] about witness intimidation and the actions of
Mrs. Muhtorov and others having previously attempted to contact” potential witnesses.
Id. at 1935. It also acknowledged the government “may have thwarted an actual plan to
provide smartphones and services to the IJU.” Id. at 1936.
3. Defendant’s History and Characteristics
The third factor is “the history and characteristics of the person.” 18 U.S.C.
§ 3142(g)(3). It encompasses the defendant’s “character, physical and mental
condition, family ties, employment, financial resources, length of residence in the
community, community ties, past conduct, history relating to drug or alcohol abuse,
criminal history, and record concerning appearance at court proceedings.” Id.
§ 3142(g)(3)(A). It also takes into account whether the defendant was being punished
for another offense at the time of his arrest. Id. § 3142(g)(3)(B).
11
The district court generally referenced Muhtorov’s “work history” as a
commercial truck driver. App., Vol. 9 at 1936. It also described his “family and
community ties” as “substantial,” focusing on his relationship with his wife. Id. The
district court stated that his wife has lived and worked in the community for ten
years, as Muhtorov did for five years without incident before his arrest. Id. And it
noted that his wife has visited him during his detention, the couple now has a third
child born during his incarceration, and thus “[t]heir familial relationship has
deepened.” Id.
4. Nature and Seriousness of the Danger to Any Person or the
Community
The fourth factor is “the nature and seriousness of the danger to any person or
the community that would be posed by the person’s release.” 18 U.S.C.
§ 3142(g)(4). As explained above, Muhtorov is presumed to be a danger to the
community because of the nature of his charges. See id. § 3142(e). This
presumption is rebuttable, but it remains in the case as a factor militating against
release, to be weighed along with evidence related to the § 3142(g) factors.
The district court’s reassessment of this factor is closely tied to its revised
appraisal of the second factor. It suggests that since the evidence against Muhtorov
is not as strong as the district court originally appraised it to be, Muhtorov may not
be as dangerous either.
12
5. Analysis
We discern no clear error in the individual factual findings listed above. But
reviewing the overall release decision de novo, we disagree with the district court’s
assessment of the implications and significance of those findings.
It does not appear that the district court’s release decision turned on its
assessment of the first and third factors. Its findings on those factors deviated from
its earlier findings in minor respects only. The bulk of the June 23 order was devoted
to the district court’s analysis of the second and fourth factors, which seems to be the
impetus for the release order. The district court changed its position as to the
propriety of release based largely on its revised assessment of the strength of the
government’s evidence against Muhtorov, which in turn affected its opinion as to the
danger Muhtorov presents to the community and the likelihood he will appear for
trial. Its analysis suffers from several major flaws, however.
First, the district court cited newly exposed weaknesses in the government’s
translations and linguists as a new development that undermines the strength of the
government’s case even though any implications are unclear. Testimony at the
January 2017 suppression hearing revealed that one of the government’s translators
listed his Interagency Language Roundtable test score for Uzbek as a “2 plus” on his
resume when it was actually a “2.” A level-two score may not be ideal for
translations at a professional level; however, a government expert testified that
“almost all of the language that occurs in regular life is at a level 2,” including
“routine day-to-day conversation.” App., Vol. 8 at 1525. The court did not identify
13
what material inculpatory statements, if any, depend on the translator’s interpreting
skills. At least some of the post-arrest statements can be proven without his
translations, such as Muhtorov’s admissions as to the telephone number and e-mail
addresses he used to communicate with the IJU and the websites he visited.
Second, the district court concluded that testimony from the James and
Daubert hearings—which focused on the IJU’s failure to accept Muhtorov’s
overtures or take him seriously—“gave rise to additional inferences that may be
favorable to” Muhtorov and “undermined the seriousness or depth” of the
co-defendant’s conspiracy. App., Vol. 9 at 1934, 1936. This focus on the IJU’s
actions is misplaced. Muhtorov is charged, in part, with conspiring to provide and an
attempt to provide material support to terrorists. Even assuming the testimony from
these hearings weakens the government’s evidence that Muhtorov actually provided
material support to the IJU, it does not impact the conspiracy and attempt
components of the offense. Likewise, any purported disinterest from the IJU does
not minimize his coordinated efforts with his alleged co-conspirator.
Third, for the same reasons, we reject the district court’s conclusion that
Muhtorov is less dangerous because the IJU had not accepted him and he had not
formulated a concrete plan to serve the IJU before his attempted departure. Here,
too, the significant concern of our dangerousness inquiry is Muhtorov’s alleged intent
to further IJU’s terrorism and the concrete, affirmative steps that he took in
manifesting his intent. Nor does the timing of his statement to his daughter, which
Muhtorov emphasizes took place months before his arrest, alter our conclusion. The
14
implications of that statement still evince a substantial risk of community danger in
light of his ongoing communications with the IJU and Jumaev at the time.
Simply put, the evidence does not support the district court’s assessment that
Muhtorov no longer poses a danger or presents a flight risk that cannot be minimized
by strict release conditions. Muhtorov has professed that he is willing to fight and
die for his cause, and he took affirmative steps to further that goal. The contents of
his phone reflect Islamic extremist tendencies. And the government alleges that his
brother, Hurshid Muhtorov, fought in Syria for the Islamic State in the recent past and
has attempted to intimidate a witness in this case.
The government has shown by a preponderance of the evidence that Muhtorov
would be a flight risk, even with the release conditions imposed by the district court.
And it has shown by clear and convincing evidence that the conditions of release,
though restrictive, would not reasonably assure the safety of the community.
IV. Conclusion
The temporary stay of the June 23 order, which was granted on July 7, 2017, is
now lifted. For the reasons set forth above, we reverse the district court’s release
order dated June 23, 2017. Muhtorov shall be detained pending trial.
Entered for the Court
Per Curiam
15
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-10-2007
Ballentine v. USA
Precedential or Non-Precedential: Precedential
Docket No. 06-4800
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Ballentine v. USA" (2007). 2007 Decisions. Paper 1033.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1033
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
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999 So.2d 596 (2006)
EX PARTE JEREMIAH DOUGLAS LAMB.
No. 1051392 (CR-05-0031).
Supreme Court of Alabama.
October 13, 2006.
Decision of the Supreme Court of Alabama without opinion. Cert. denied.
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79 N.W.2d 155 (1956)
George WELSH and Aldeen Welsh, Plaintiffs and Respondents,
v.
Martin B. MONSON, also known as M. B. Monson, Olga B. Monson, Oscar A. Hindemith, Irene A. Hindemith, Arthur F. Shipley, Henry T. Wadeson. Agnes M. Wadeson, and all persons unknown claiming any estate or interest in or lien or encumbrance upon the property described in the complaint in this action, Defendants and Appellants.
No. 7504.
Supreme Court of North Dakota.
October 25, 1956.
*156 Strutz, Jansonius & Fleck, Bismarck, for defendants, Oscar A. Hindemith and Irene A. Hindemith.
Hyland, Foster & Conmy, Bismarck, for defendants, Martin B. and Olga B. Monson.
Cox, Pearce & Engebretson, Bismarck, for respondents.
Register & Thompson, Bismarck, for appellants, Henry T. Wadeson and Agnes M. Wadeson.
GRIMSON, Judge.
This is an action to quiet title to Lot 6, including the South Half of the street adjoining Lot 6 on the north, in Block 82 Monson's Subdivision of McKenzie & Coffin's Addition to the City of Bismarck.
The property involved is included in the area known as McKenzie & Coffin's Addition to the City of Bismarck. Plat of that addition was filed Dec. 18, 1882, recorded in Book A. of Plats in the office of the Register of Deeds of Burleigh County. On August 15, 1947, a plat of Monson's Subdivision of part of McKenzie & Coffin's Addition to the City of Bismarck was filed and recorded in the office of the Register of Deeds of Burleigh County. Included in that subdivision were Block 82 and Block 87 of McKenzie & Coffin's Addition to the City of Bismarck. Between those two blocks, running east and west, Avenue F was laid out. On August 19, 1947, a resolution of the Board of City Commissioners of Bismarck was filed in the Register of Deeds Office and recorded in Book 268, p. 245, vacating the said Avenue F between Mandan St. and Third St. in the City of Bismarck which included Avenue F between Blocks 82 and 87 of Monson's Subdivision of McKenzie & Coffin's Addition to the City of Bismarck. Lot 6, Block 82 *157 adjoined Avenue F on the south. Lot 12, Block 87 adjoined Avenue F on the north. Avenue F lay between the two lots involved.
The district court found for the plaintiff and quieted title to Lot 6, including the south half of Avenue F, adjoining Lot 6 of Block 82 on the north, subject to whatever rights the public may have therein under the dedication of the plats of McKenzie & Coffin's Addition and Monson's Subdivision, but giving defendants Hindemith the right to remove within reasonable time any part of any building they may have erected on said south half of Avenue F. The defendants appeal from the judgment and the whole thereof and demand a trial de novo.
The evidence shows that on January 12, 1950, Martin B. Monson, the owner of the Subdivision, and Olga B. Monson, his wife, conveyed by warranty deed to William S. Ogan and Catherine B. Ogan, his wife, "Lot 6 in Block 82 of Monson's Subdivision (with other property) of Block 82 of McKenzie & Coffin's Addition to the City of Bismarck, N. Dak." On June 19, 1951, the Ogans conveyed this property by warranty deed to George S. Welsh and Aldeen Welsh, his wife, the plaintiffs in this action.
About a year and a half later, on July 31, 1952, Martin B. Monson and Olga B. Monson, conveyed, by warranty deed to Henry Wadeson, the South 15.93 feet of Lot 12 and all of Avenue F between said Lot 12 and Lot 6, described by metes and bounds. On April 14, 1953, the Wadesons conveyed that identical property to Oscar A. Hindemith and Irene A. Hindemith, his wife, defendants in this action.
The main question involved in this action is whether the deed from Monsons to Ogans included title to the center of Avenue F adjoining Lot 6 on the north.
As a general rule and under our statutes a conveyance by an owner of land bounded by a street or a highway carries the fee to the center of the way unless the contrary is shown. 11 C.J.S., Boundaries, § 35, p. 580. Section 47-1010, NDRC 1943, provides:
"A transfer of land bounded by a highway passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant." See also Bichler v. Ternes, 63 N.D. 295, 248 N.W. 185.
Section 47-0916, NDRC 1943, provides:
"A transfer vests in the transferee all the actual title to the thing transferred which the transferor then has unless a different intention is expressed or is necessarily implied. It also transfers all its incidents unless expressly excepted, but the transfer of an incident to a thing does not transfer the thing itself."
The South Dakota Court in Sweatman v. Bathrick, 17 S.D. 138, 95 N.W. 422, had identical statutes for interpretation and held:
"Under Comp.Laws 1887, § 2783, providing that an owner of land bounded by a public way is presumed to own to the center of the way, unless the contrary is shown, and section 3252, providing that a transfer of land bounded by a highway passes title to the center thereof, unless a different intent appears, a conveyance of property fronting on a road or street will be presumed to carry title to the center of the way, unless the fee therein is expressly reserved."
The plaintiffs claim that under our statutes and the authorities, they own, by virtue of their deed, to the center of Avenue F adjoining Lot 6 on the north subject to the easement for street purposes. No reservation was made in the deed regarding the south half of Avenue F. Defendants, *158 however, claim that Avenue F was vacated prior to the issuance of the deed to the Ogans and that, therefore, the grant from the Monsons to the Ogans and from the Ogans to plaintiffs of Lot 6 transferred title to them only to the south boundary of what had been Avenue F, and that by virtue of their deed from Monson they are the owners of all of Avenue F between Lots 6 of Block 82 and 12 of Block 87.
On this question of whether, on the vacation of a street, the conveyance by the owner of a lot adjoining the street still passes title to the center of the street, there is considerable authority. By a casual reading thereof there appears a divergence of opinion. When, however, the cases are carefully analyzed and the facts in each case considered the majority of decisions can be reconciled. The conclusion generally arrived at is that, unless there is a particular reservation in the deed, the title to the center of the street is passed by the conveyance of the abutting property owner except in cases where the street has been vacated in the manner provided by law. See Annotations 123 A.L.R. 542, 32 L.R.A.,N.S., 778, 784; Lewis v. City of Seattle, 174 Wash. 219, 24 P.2d 427, 27 P. 2d 1119; Raleigh-Hayward Co. v. Hull, 167 Wash. 39, 8 P.2d 988; White v. Jefferson, 110 Minn. 276, 124 N.W. 373, 125 N.W. 262, 32 L.R.A.,N.S., 778, 784; Anderson v. Citizens' Savings & Trust Co., 185 Cal. 386, 197 P. 113; Paine v. Consumers' Forwarding & Storage Co. 6 Cir., 71 F. 626.
The question then arises whether Avenue F was legally vacated prior to the deed to the Ogans.
Section 40-5001, NDRC 1943, was in effect when Monson filed the plat of Monson's Subdivision. Such plat did describe particularly the streets and alleys, together with the names, width, courses, boundaries, and the extent of all such streets and alleys as provided by said section. Monson's plat complied with those requirements. The filing of the plat constitutes an offer by the owner to dedicate such streets and avenues to public use. The dedication is completed by action on behalf of the public by use thereof or by some action of the public authorities. 1 Roads and Streets, Elliott, Section 122, p. 141.
The plat of Monson's Subdivision dedicated Avenue F, here involved, to public use for a street. The evidence shows that no steps to vacate that plat were taken under Section 40-5020, NDRC 1943, which provides that the proprietors of a plat may vacate their plat. Plaintiffs claim that the only method of vacating a plat was by procedure under that section and cited Ramstad v. Carr, 31 N.D. 504, 154 N.W. 195, 203, L.R.A.1916B, 1160, where the court said:
"As the dedication was made by the statutory method of filing a plat, and the sale of lots by the owner with reference thereto, it could be withdrawn only by a vacation of the plat under the statute. [Cases cited.]"
That statement, however, was made on the strength of the premises stated earlier in that opinion, as follows:
"The recording of the plat, and sale of lots by owner with reference thereto, was a grant by the owner to the public of the public places marked on the plat. This grant, it is true, was not binding upon, or effective against the municipality until accepted by it; but the tender of conveyance on the part of the owner continued until withdrawn by the owner, or until it was rejected by the municipality." (Emphasis supplied.)
In the case at bar Avenue F was vacated by the City Commission under Chapter 40-39, NDRC 1943, so the Ramstad case does not apply.
When all the adjoining land owners, (In this case Monson was the only one) signed the petition for a vacation of Avenue F, the City Commission had the authority under *159 Chapter 40-39, NDRC 1943, and did, by passing a resolution, grant the petition and vacate Avenue F. Thereupon Monson remained the sole owner of Avenue F. Section 40-3908, NDRC 1943, after providing for the publication and recording of the resolution, reads: "And such resolution thereafter shall have the effect of conveying to the abutting property owners all of the right, title, and interest of the municipality to the property vacated." Avenue F was legally vacated.
The resolution vacating Avenue F was recorded August 28, 1947. The deed from Monson to the Ogans, plaintiffs' predecessors in title, was executed on Jan. 12, 1950, and recorded on Jan. 18, 1950, more than two years afterwards. The resolution was a public record and shows in the abstract of title. There is no evidence of Avenue F ever having been used by the public as a street. The Ogans and the plaintiffs were, under the circumstances of this case, bound by the resolution. They cannot claim anymore than the actual boundaries of Lot 6. In Hagen v. Bolcom Mills, 74 Wash. 462, 133 P. 1000, 134 P. 1051, the court held that:
"* * * Subsequent purchasers do not buy with reference to a platted street where there is none at the time of their purchase." See also Patton on Titles, Section 92, p. 314; White v. Jefferson, 110 Minn. 276, 124 N.W. 373, 125 N.W. 262, 32 L.R.A.,N.S., 778, 784; Raleigh-Hayward Co. v. Hull, 167 Wash. 39, 8 P.2d 988.
In Brown v. Taber, 103 Iowa 1, 72 N.W. 416, 417, the court said:
"The only effect of vacating was to withdraw it from the public use. In the words of Lowe, C. J., in Milburn v. City of Cedar Rapids, 12 Iowa 246: The lots are `designated by numbers, and it is simply by those numbers that they are conveyed, as they are known to represent the particular lot, with its specific boundary as represented on the map. Under such circumstances there is no room to indulge in the presumption that the purchaser takes any more land than is contained within the defined lines of the lot.'"
While an amended plat was not filed in the instant case, the resolution of the City Commissioners vacating Avenue F was of record and "in legal effect an amendment of the plat of such addition, and all who bought thereafter took with notice of the vacation." Hagen v. Bolcom Mills, 74 Wash. 462, 133 P. 1000, 134 P. 1051. The petition of Monson to the City Commission to vacate Avenue F, the resolution vacating said Avenue F, the publishing and recording thereof was notice to the plaintiffs and their predecessor in title that Avenue F was legally vacated and that the deed Monson gave them to Lot 6 did not give them any rights to any part of the vacated Avenue F. Their title to Lot 6 was bounded by the north line of said lot as shown in the plat. The plaintiffs' title to said Lot 6 will be quieted only as far as the north boundary line of Lot 6. They have no interest in the land that was Avenue F.
This disposes of the issue in the case and it will be unnecessary to consider any other questions raised on the trial.
The judgment of the district court is modified and the case remanded to the district court with directions to enter judgment in accordance herewith.
BURKE, C. J., and JOHNSON, SATHRE and MORRIS, JJ., concur.
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456 F.2d 799
*Molten, Allen & Williams, Inc.v.Manhattan Life Insurance Company of New York
71-2742
UNITED STATES COURT OF APPEALS Fifth Circuit
Jan. 28, 1972
1
N.D.Ala.
2
---------------
* Summary Calendar cases; Rule 18, 5 Cir.,; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 7, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 03-30815
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM SCOTT TATUM,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CR-50086-ALL
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, and BENAVIDES, and CLEMENT, Circuit
Judges.
PER CURIAM:*
William Scott Tatum pleaded guilty to possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
After his guilty plea, the Government filed a notice of intent to
seek sentencing pursuant to the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). Section 924(e) imposes a mandatory minimum
sentence of fifteen years, or one hundred eighty months, if a
defendant is found guilty of § 922(g)(1) and “has three previous
convictions . . . for a violent felony or serious drug offense, or
*
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.
both, committed on occasions different from one another.” The
district court applied ACCA and sentenced Tatum to one hundred
eighty-eight months, pursuant to U.S.S.G. § 4B1.4.
At sentencing, Tatum objected to the application of the
ACCA, arguing that whether or not his three previous convictions
were committed on different occasions is a fact that must be
determined by a jury. On direct appeal, we affirmed his conviction
and the application of ACCA, but modified his sentence to reflect
the fifteen-year minimum term that Tatum acknowledged to be
applicable, because he was not informed at his plea hearing that
his sentence could be greater than the fifteen-year mandatory
minimum. See United States v. Tatum, No. 03-30815 (May 26, 2004).
Tatum then filed a writ of certiorari with the Supreme
Court, which vacated and remanded for further consideration in
light of United States v. Booker, 125 S. Ct. 738 (2005). See Tatum
v. United States, 125 S. Ct. 1013 (2005). We requested and
received supplemental letter briefs addressing the impact of
Booker.
The first step in analyzing Tatum’s claims is determining
if the district court committed error, and if so, what type of
error. See United States v. Walters, 418 F.3d 461 (5th Cir. 2005)
(“This court differentiates between the two types of error
addressed in Booker.”) The court did err in sentencing Tatum under
a mandatory Guidelines regime, instead of an advisory regime, the
so-called Fanfan error. See United States v. Valenzuela-Quevedo,
2
407 F.3d 728, 732-33 (5th Cir 2005). However, for reasons that
will soon become clear, the district court did not commit a Sixth
Amendment Booker error.
As we have repeatedly held, nothing in Booker or Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), overruled
Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
United States v. Bonilla-Mungia, 422 F.3d 316, 318-19 (5th Cir.
2005). Accordingly, a district court may continue to utilize past
convictions to enhance a defendant’s sentence without implicating
Booker. In so doing, however, the district court is “generally
limited to examining the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant
assented.” Shepard v. United States, 125 S. Ct. 1254, 1257 (2005).
Here, the district court utilized the Bill of Information
from Tatum’s guilty plea to determine that Tatum’s two burglary
convictions constituted two separate convictions. The court
referred to the Bill of Information in determining that Tatum
pleaded guilty to the simple burglary of the inhabited dwelling of
Cynthia Jones on February 21, 1995, and to the simple burglary of
the inhabited dwelling of Danny Fuller on February 22, 1995. As we
noted in our prior opinion, Tatum successfully completed the first
burglary, safely escaped, and the following day committed the
second burglary. As a Bill of Information is a charging document
3
and thus specifically enumerated in the Supreme Court’s Shepard
holding, there is no Sixth Amendment error.
Tatum fares no better on his Fanfan challenge regardless
of this court’s standard of review.1 Under ACCA, Tatum was subject
to a mandatory minimum sentence of one hundred eighty months. He
has been sentenced to one hundred eighty months. Because Tatum
would still be subject to the one hundred eighty-month sentence
under an advisory regime, the Fanfan error is harmless.
Accordingly, because nothing in the Supreme Court's
Booker decision requires us to change our prior affirmance in this
case, we adhere to our prior determination and therefore reinstate
our judgment affirming, as modified, Tatum’s conviction and
sentence.
AFFIRMED AS MODIFIED.
1
If the court’s error in sentencing under a mandatory regime is
considered preserved in the trial court, the Government has sustained its burden
of proving harmless error. If the error was not preserved, and Tatum bears the
higher burden of plain error, he cannot satisfy it.
4
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20 So.3d 855 (2009)
MULFORD
v.
STATE.
No. 2D08-120.
District Court of Appeal of Florida, Second District.
October 30, 2009.
Decision Without Published Opinion Affirmed.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMCO INSURANCE COMPANY, No. 17-55383
Plaintiff-counter- D.C. No.
defendant-Appellee, 2:12-CV-02323-DSF-PLA
v.
MEMORANDUM*
JENNIFER MORFE,
Defendant-counter-claimant-
Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted August 9, 2018
Pasadena, California
Before: CALLAHAN and NGUYEN, Circuit Judges, and EZRA,** District Judge.
Appellant Jennifer Morfe (“Morfe”) filed a tort action against her former
employer Right Yogurt Inc. (“Right Yogurt”) and then-shareholder of Right
Yogurt, Robert Lee (“Lee”) (collectively, “the Insureds”), for injuries Lee inflicted
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
on Morfe. After tendering their defense to AMCO Insurance Company
(“AMCO”), but before AMCO rendered a coverage decision, the Insureds entered
into a settlement agreement without AMCO’s knowledge or consent. Following
the settlement, AMCO filed an action for declaratory relief in federal court
seeking, inter alia, a declaration that it did not have a duty to defend or indemnify
the Insureds. Thereafter, AMCO moved for partial summary judgment on its
requests for judicial declarations. The district court granted AMCO’s motion for
partial summary judgment on three grounds: (1) there was no coverage under the
policy because the Insureds breached the policy’s “no-voluntary payments”
provision (the “NVP provision”) by entering into the settlement without AMCO’s
knowledge or consent; (2) several exclusions precluded coverage for “bodily
injuries” (Coverage A); and (3) several exclusions barred coverage for “personal
and advertising injuries” (Coverage B). Upon entry of the final judgment, Morfe
appealed. On appeal, Morfe challenges each ground the district court relied on to
grant AMCO’s motion for partial summary judgment.
This Court reviews de novo a district court’s grant of summary judgment.
See Uthe Tech. Corp. v. Aetrium, Inc., 808 F.3d 755, 759 (9th Cir. 2015). This
Court also reviews de novo the district court’s interpretation of state contract law,
AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 949 (9th Cir. 2006),
and its interpretation of an insurance policy, Stanford Ranch, Inc. v. Md. Cas. Co.,
2 17-55383
89 F.3d 618, 624 (9th Cir. 1996). “Because this action was brought in federal
district court under diversity jurisdiction, the substantive law of California, the
forum state, applies.” St. Paul Fire & Marine Ins. Co. v. Weiner, 606 F.2d 864,
867 (9th Cir. 1979).
The NVP provision, contained in Section IV.2 of the Policy, provides: “[n]o
insured will, except at their own cost, voluntarily make a payment, assume any
obligation, or incur any expense, other than first aid, without [AMCO’s] consent.”
In California, this type of consent requirement applies to any payments made and
obligations assumed by an insured at any time before coverage is denied, if such
payments or obligations are made without the insurer’s knowledge and consent.
See Low v. Golden Eagle Ins. Co., 110 Cal. App. 4th 1532, 1546, 2 Cal. Rptr. 3d
761, 772 (2003) (noting that such provisions are enforceable in “the rare case
where the insured tenders the defense and then negotiates a settlement on its own,
leaving the insurer in the dark”).
Morfe does not dispute that the Insureds entered into the settlement without
AMCO’s knowledge or consent after tendering their defense to AMCO but before
receiving a coverage determination. See Jamestown Builders, Inc. v. Gen. Star
Indem. Co., 77 Cal. App. 4th 341, 346, 91 Cal. Rptr. 2d 514 (1999) (noting that
NVP provisions are enforceable when an insured assumed an obligation without
the insurer’s consent “before the establishment of the claim against them and the
3 17-55383
insurer’s refusal to defend in a lawsuit to establish liability”). Morfe argues,
however, that the settlement agreement is excepted from the general rule of
enforceability because: (1) AMCO abandoned the Insureds by failing to respond to
their tender of the Morfe Action; (2) the Insureds executed the settlement under
duress and fear of financial ruin; and (3) AMCO breached its duty to provide an
immediate defense by not rendering a coverage determination in the 12-week
period between October 3, 2011 (the date the Insureds tendered their defense) and
December 31, 2011 (the date the Insureds executed the settlement).
The abandonment exception generally applies in cases where the insurer
expressly denied coverage and refused to provide the insured with a defense. See,
e.g., Pruyn v. Agric. Ins. Co., 36 Cal. App. 4th 500, 515, 42 Cal. Rptr. 2d 295, 303
(1995). In this case, it is undisputed that at the time of the settlement AMCO had
not denied coverage to Lee or Right Yogurt; the investigation was still ongoing.
Because Lee and Right Yogurt executed the settlement before AMCO issued a
coverage decision, the abandonment exception is not applicable in this case. See
Gribaldo, Jacobs, Jones & Assocs. v. Agrippina Versicherunges A.G., 476 P.2d
406, 449 (Cal. 1970) (“[I]t is only when the insured has requested and been denied
a defense by the insurer that the insured may ignore the policy’s provisions
forbidding the incurring of defense costs without the insurer’s prior consent . . . .”).
4 17-55383
Next, Morfe claims that the settlement is also unenforceable because the
Insureds executed the settlement under duress and fear of financial ruin. There is
no evidence in the record to support this claim, and Morfe’s unsubstantiated
assertions are insufficient to create a genuine dispute of material fact. See Norse v.
City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (en banc) (“Rule 56 requires
the parties to set out facts they will be able to prove at trial.”).
As to the final exception, Morfe contends the NVP provision is
unenforceable because AMCO breached its obligation to provide an immediate
defense. On this issue, Morfe advances the same arguments she made in the
previous argument, and as before, fails to present any material facts to support her
claim that the settlement was involuntary based on the length of AMCO’s
investigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)
(noting that the Rule 56 summary judgment “standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact”). Moreover, the facts do not
support Morfe’s argument. Because Morfe presented no evidence to rebut the facts
in the record and create a genuine issue of material fact indicating that the
settlement was procured though the insurer’s breach, the district court did not err
by granting partial summary judgment to AMCO on the ground that Lee and Right
5 17-55383
Yogurt breached the NVP Provision. See Richard & Sheila J. McKnight
2000 Family Tr. v. Barkett, 675 F. App’x 715, 717 (9th Cir. 2017) (finding
summary judgment proper when no rebuttal evidence is presented to create a
genuine issue of fact on the contested point).
In sum, no valid exception to the NVP provision applies. The Insureds
executed the settlement without AMCO’s knowledge or consent and therefore
breached the NVP provision. Because Morfe failed to create a genuine issue of
material fact as to the voluntariness of the Insureds’ breach, the district court did
not err in granting partial summary judgment to AMCO. Since the district court’s
grant of partial summary judgment based on the Insureds’ breach of the NVP
provision is dispositive, the panel need not reach the remaining issues on appeal.
For the reasons stated, we AFFIRM the district court’s grant of partial
summary judgment to AMCO.
AFFIRMED.
6 17-55383
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