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904 F.2d 701Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Barbara Kidd DAVIDSON, Defendant-Appellant.
No. 89-6016.
United States Court of Appeals, Fourth Circuit.
Submitted: April 27, 1990.Decided: May 23, 1990.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert D. Potter, Chief District Judge. (CR-88-153-C).
Michael S. Scofield, Charlotte, N.C., for appellant. Thomas J. Ashcraft, United States Attorney, H. Thomas Church, Assistant United States Attorney, Charlotte, N.C., for appellee.
W.D.N.C.
AFFIRMED.
Before ERVIN, Chief Judge, and K.K. HALL and CHAPMAN, Circuit Judges.
PER CURIAM:
1
Barbara Kidd Davidson appeals from the order of the district court denying her Fed.R.Crim.P. 35(b) motion for a reduction in sentence. Finding no error, we affirm.
2
Davidson pleaded guilty to conspiracy to possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. Secs. 841(a)(1), 846. She was sentenced to a six-year term of imprisonment.* As grounds for her Rule 35 motion, she relied primarily on the disparity she perceived between her sentence and the sentences of her coconspirators. In denying her motion, the district court held that any disparity between the sentences adequately reflected her relative culpability in the crime.
3
Before this Court, appellant again relies on the disparity between her sentences and those of her coconspirators. She also argues that her six-year sentence, although well under the statutory maximum punishment established by Congress, nonetheless violates the Eighth Amendment in that it is "disproportionate to the crime committed." See Solem v. Helm, 463 U.S. 277, 290-92 (1983). She acknowledges that our holding in United States v. Rhodes, 779 F.2d 1019 (4th Cir.1985), cert. denied, 476 U.S. 1182 (1986), forecloses such a proportionality review of her sentence; but, undeterred, she urges us to reconsider Rhodes. Neither of appellant's arguments is persuasive.
4
The disposition of a Rule 35(b) motion is committed to the sound discretion of the sentencing court and we will not disturb that discretion unless it has been clearly abused. United States v. Stumpf, 476 F.2d 945, 946 (4th Cir.1973). Our review of the record and briefs reveals no such abuse here. The district court clearly weighed all relevant factors and considered appellant's relative culpability before fixing appellant's sentence at six years. Regardless, as we stated in United States v. Foutz, 865 F.2d 617, 621 (4th Cir.1989), "[a] sentencing court simply 'is not obliged to consider the sentences of codefendants.' " (Quotation omitted.)
5
Appellant's disproportionality argument is equally meritless. Rhodes squarely holds that in non-capital cases, a Solem proportionality analysis is appropriate only where the sentence is life without parole. Rhodes, 779 F.2d at 1028. As a panel of this Court, we are bound by this precedent. Even if we were inclined to reconsider Rhodes, which we are not, in view of appellant's major role in a conspiracy which distributed approximately 30 kilograms of cocaine, we would have no difficulty in upholding her six-year sentence.
6
For the reasons stated above, we affirm the lower court's denial of the Rule 35(b) motion. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court.
AFFIRMED
*
Because the conspiracy ended in August 1987, appellant was not sentenced under the United States Sentencing Guidelines
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510 U.S. 1178
Ivimey et al.v.American Bank of Connecticut.
No. 93-1161.
Supreme Court of United States.
March 7, 1994.
1
Appeal from the App. Ct. Conn.
2
Certiorari denied. Reported below: 31 Conn. App. 921, 625 A. 2d 849.
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825 F.2d 407Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Donald Francis MACKAY, Jr., Plaintiff-Appellant,v.SESSOMS GOSS, Defendant-Appellee.
No. 87-3530
United States Court of Appeals, Fourth Circuit.
Submitted June 11, 1987.Decided July 13, 1987.
Donald Francis Mackay, Jr., appellant pro se.
Before HALL, ERVIN and CHAPMAN, Circuit Judges.
PER CURIAM:
1
Donald F. Mackay, Jr., sued various employees of the Veterans Administration Medical Center in Hampton, Virginia, alleging that these defendants violated his constitutional rights by placing Mackay in 'restriction' for one week after Mackay placed a 'note of introduction' on an employee's windshield. The district court ordered the complaint filed and dismissed as frivolous on 27 January 1987.
2
On 17 February 1987, Mackay filed a motion for 'misstrial [sic].' The district court construed this motion as one made pursuant to Fed. R. Civ. P. 59, and, after reviewing the case, denied the motion on 17 February. On 24 February Mackay again filed a motion seeking relief. The district court denied this motion on 3 March and Mackay filed a notice of appeal on 3 March 1987.
3
We find that the appeal is untimely and dismiss the appeal. Judgment was entered on 27 January 1987. Mackay's motion for mistrial was filed on 17 February, outside the ten-day period set forth in Fed. R. Civ. P. 59(e) for Rule 59 motions for new trials.* The appeal period was thus not tolled. See Fed. R. App. P. 4(a)(4). The notice of appeal filed on 3 March 1987 was untimely and this Court lacks jurisdiction to consider Mackay's claims. Shah v. Hutto, 722 Fed. 1167, 1168 (4th Cir. 1983) (en banc), cert. denied, 466 U.S. 975 (1984).
4
We dispense with oral argument because the dispositive issues have recently been authoritatively decided.
5
DISMISSED.
*
Mackay's mistrial motion is stamped as having been received in the district judge's chambers on 11 February 1987; this date is also outside the ten-day period allowed by Rule 59(e)
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601 F.2d 575
87 Lab.Cas. P 11,593
Philadelphia Food Store Employers' Labor Councilv.Retail Clerks International Association, Locals 1349
No. 78-2175
United States Court of Appeals, Third Circuit
7/3/79
E.D.Pa., 453 F.Supp. 577
VACATED AND REMANDED
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61 Ill. App.2d 273 (1965)
209 N.E.2d 509
Fred Dursch, Plaintiff-Appellee,
v.
Anthony R. Fair, Defendant-Appellant.
Gen. No. 64-159.
Illinois Appellate Court Second District.
July 23, 1965.
*274 *275 *276 Knight & Knight, of Rockford (William D. Knight, Jr., of counsel), for appellant.
*277 Cannariato, Nicolosi & Pigatti, of Rockford (Sam J. Cannariato, of counsel), for appellee.
MR. JUSTICE DAVIS delivered the opinion of the court.
This is an appeal from a judgment against the defendant, Anthony R. Fair, in the sum of $27,500 entered on a jury verdict, for personal injuries to plaintiff, Fred Dursch, allegedly caused by the wilful and wanton conduct of the defendant.
The amended complaint charged that the defendant operated a car on the Northwest Tollway in McHenry County on March 28, 1963, at 6:50 a.m., in a westerly direction, at which time the plaintiff was a passenger; and that the defendant, knowing himself to be sleepy, did, wilfully and wantonly continue to drive his automobile at a time when he knew that the plaintiff was asleep, and did either fall asleep while driving his automobile and did run into the rear of a trailer truck; or in the alternative, that the defendant wilfully and wantonly drove his automobile, while awake, into the rear of a moving trailer truck, colliding with said trailer truck.
Said complaint alleged plaintiff's freedom from wilful and wanton conduct; charged such conduct on the part of the defendant, and asserted that as the direct and proximate cause thereof, plaintiff was injured. The injuries were stated generally and alleged to be permanent in nature. The complaint also alleged pain and suffering, loss of employment and the incurring of medical expenses by plaintiff; the ad damnum prayed was $100,000. The answer denied all of the allegations of said complaint.
The defendant's theory of the case was that the court erred in not directing a verdict for him and in failing to arrest the judgment. The thrust of this *278 charge was that there was neither a pleading nor evidence to sustain the verdict. The defendant further urged that the collision was an unavoidable accident; that the plaintiff was guilty of contributory wilful and wanton conduct; that the verdict was against the manifest weight of the evidence; that a statement of plaintiff's counsel constituted a judicial admission which negated any wilful and wanton conduct by defendant; and that the court erred in refusing to give defendant's instructions 15, 16, 21-25 inclusive, and 27, and in giving plaintiff's instructions 8, 9, 13, 14, 15 and 16. The plaintiff's theory of the case was essentially a negation of that of the defendant.
The defendant was 20 years of age; the plaintiff 28, at the time of the accident. On Tuesday evening, March 26, 1963, defendant met plaintiff at a bar in Rockford and thereafter plaintiff drove defendant's 1963 Chevrolet to the MGM Club in Cicero where they stayed until 4:00 a.m. Defendant drove back to Rockford and plaintiff slept from the time they left Cicero until they arrived in Rockford about 7:00 a.m. Defendant worked that day from 8:00 a.m. to 9:00 p.m., and about noon, plaintiff and defendant made arrangements to go to Chicago that evening. They left Rockford about 11:00 p.m. Plaintiff drove to the Playboy Club in Chicago and parked the car nearby. They went to the Club and remained there until about 4:00 a.m., and each consumed six or seven beers.
Upon leaving the Club, they walked to the car. Defendant testified that he was not drunk; was awake, alert, relaxed and did not yawn. He also said that plaintiff was sober, entered the car and sat in the right front seat. Defendant then told plaintiff that he was going to Cicero.
Plaintiff testified that he wasn't completely drunk but that he wasn't in any condition to drive; and that *279 when defendant stated he was going to Cicero, the plaintiff said: "I am going to sleep, I suggest you do also, maybe we'll get a hotel," and that defendant said: "No, I want to go to the MGM," and plaintiff replied: "Well, I'm going to sleep." Plaintiff's next recollection was awakening two months later in a hospital.
Defendant testified that he drove his car after leaving the Playboy Club, got lost in the loop and was given a ticket by a police officer for driving the wrong way on a one-way street; that he then decided not to go to Cicero, but rather started back to Rockford on the Northwest Tollway; that just beyond the Elgin Plaza he awakened plaintiff, stopped the car and both plaintiff and defendant got out to answer nature's call; that they then resumed the trip home with defendant again driving and plaintiff sleeping. Defendant testified that shortly thereafter he drove the car into the rear end of a truck trailer; that he first saw the trailer when it was 500 to 1000 yards away; and that it likewise was travelling in a westerly direction.
He further stated that the toll road has two lanes for easterly and two lanes for westerly traffic, which lanes are separated by a median strip; that the car he was driving was travelling westerly in the outer (northerly) lane and the trailer truck was also travelling westerly in the same lane; that at the time and place of the collision no vehicles were in the inner lane for westbound traffic; that he noticed no traffic from the rear, and that he had his lights on; that it was dawn 7:00 a.m.; and that he was sober.
The defendant described the accident in these words: "I saw the truck, and I had followed it for some distance. And then as though the truck either stopped or it was as dim as it was, I seemed to be gaining upon it. In other words, rapidly gaining on it. At this time I looked at the speedometer to see whether or not *280 I was speeding. And by the time I had looked up, the truck was almost on top of me. And I did one thing, I tried to cut to the left. And then I woke up in the hospital."
In response to the question: "Now Witness, isn't it true that just before you struck the truck trailer that you had fallen asleep?", the witness answered: "No." The plaintiff's attorney was then permitted to impeach the defendant by use of a statement which defendant had given on April 12, 1963, wherein, in response to the question: "Were you sound asleep?" the defendant answered: "I must have been sound asleep, either sound asleep, or I didn't see the truck." The defendant stated that he didn't remember making the statement. Defendant's physician testified that on April 12, 1963, the defendant was ambulatory, mentally alert and that the tranquilizers which he was taking would have no effect on his consciousness or mental capabilities.
The evidence revealed that as a result of the accident, the plaintiff suffered shock, a brain concussion, lacerations of the scalp, lip and chin, a fracture of the left femur with multiple lacerations and a dislocation of the right hip. He experienced double vision and, due to crushing injuries to the nerves, was unable to grasp with his left hand. At the time of the trial he was suffering from a calcification of the right hip. His right leg continued to swell when he was on his feet and his left leg had shortened approximately two and one-half inches. By stipulation of counsel, his hospital, nurses and doctor bills were considered to be reasonable and in the sum of $5,773.37.
George Schultz was driving the truck with which the car driven by defendant collided. He had travelled on the toll road about three miles when the collision occurred. His trailer truck and the merchandise being transported weighed 30,000 pounds. He was driving in *281 a westerly direction in the outer (northerly) lane about 40 to 50 miles per hour just before the impact and had been driving about 45 to 50 miles per hour for about a mile and one-half before the collision. His speed was within the legal limits.
After the impact, the defendant's Chevrolet and the trailer truck slid about 425 feet. When Schultz got out of the truck the front of defendant's car was still pinned underneath the rear end of the trailer up to within one and one-half feet of its windshield, and this front part of the car was completely demolished.
Schultz testified that at the time and place of the collision, the toll road was level and straight; that it was daylight the sun was shining; and that he turned off his headlights before entering the toll road, when he stopped for coffee.
In reaching a determination of the validity of defendant's assertion that there was neither a pleading nor evidence to sustain the verdict, consideration must be given to the law applicable to these circumstances. Plaintiff's amended complaint, under the Guest Act (Ill. Rev Stats 1963, c 95 1/2, par 9-201), charges the defendant, as it must, with wilful and wanton misconduct, in that "knowing himself to be sleepy, being aware that his consciousness was being blunted by lack of sleep", said defendant did, "wilfully and wantonly continue to drive his automobile at a time when he knew that the plaintiff, ..., was asleep, and defendant ..., did, as a matter of fact fall asleep while driving his automobile and collided into the rear of a trailer truck;" or in the alternative, "the defendant, ..., wilfully and wantonly drove his automobile while awake, into the rear of a moving trailer truck, colliding with said trailer truck."
[1] Under the evidence above set forth, there can be no question about the propriety of the trial court in refusing to direct a verdict against plaintiff, or in *282 refusing to arrest the judgment, with reference to the allegation that defendant, while awake, drove his automobile into the rear of the trailer truck. Myers v. Krajefska, 8 Ill.2d 322, 328, 329, 134 NE2d 277 (1956); Mower v. Williams, 402 Ill. 486, 490, 84 NE2d 435 (1949); Schneiderman v. Interstate Transit Lines, 394 Ill. 569, 583, 69 NE2d 293 (1946); Larson v. Fell, 55 Ill. App.2d 418, 424-426, 204 NE2d 475 (2nd Dist. 1965). Even if the conclusion to be drawn from the evidence was uncertain, as to defendant's being guilty of wilful and wanton conduct in driving into the rear of the trailer truck, while awake, so that fairminded men could draw different conclusions, a question of fact, to be decided by the jury, was presented. Turner v. Schaeffer, 30 Ill. App.2d 376, 390, 174 NE2d 690 (2nd Dist. 1961). Also see Zank v. Chicago, R.I. & P.R. Co., 17 Ill.2d 473, 479, 480, 161 NE2d 848 (1959); Brown v. McColl, 36 Ill. App.2d 215, 218, 183 NE2d 541 (2nd Dist. 1962).
[2] The propriety of the court's action with reference to the defendant continuing to drive when he knew plaintiff was asleep, and when he knew that he was sleepy and his consciousness blunted by lack of sleep, presents a more serious problem, but one which likewise must be resolved against defendant.
The evidence showed that defendant had slept but little during the past 48 hours. In his statement prior to the trial the defendant stated: "I must have been sound asleep, either sound asleep, or I didn't see the truck", yet at the trial, he testified that he saw the truck when it was 500 to 1000 yards away. If we take his statement that he was sound asleep as true, we then have a circumstance of the defendant driving, (even though he had slept but little during the past 48 hours and even though he had consumed six or seven beers between 1:00 a.m. and 4:00 a.m.) at a rate of speed sufficient to strike, with great force, the rear of *283 a truck travelling from 45 to 50 miles per hour in the same direction in the outer lane for westerly traffic on the toll road, at a place where the road was straight and level, and when no cars were travelling on the inner westbound traffic lane. (The evidence was conflicting with reference to whether it was then broad daylight.) Beyond doubt, the allegations of the amended complaint and the evidence adduced made up a triable issue for the jury. Turner v. Schaeffer, supra; Secrist v. Raffleson, 326 Ill. App. 489, 492, 493, 62 NE2d 36 (2nd Dist. 1945). Also see Zank v. Chicago, R.I. & P.R. Co., supra; Brown v. McColl, supra.
[3] Section 43(2) of the Civil Practice Act provides:
"When a party is in doubt as to which of two or more statements of fact is true, he may, regardless of consistency, state them in the alternative or hypothetically in the same or different counts or defenses, whether legal or equitable. A bad alternative does not affect a good one."
(Ill. Rev Stats 1963, c 110, par 43(2)). Pursuant thereto, plaintiff could plead defendant's wilful and wanton conduct in the alternative and a bad alternative would not affect a good one. In the case at bar, it was for the jury to consider the evidence and determine whether it would support either of the charges of wilful and wanton conduct, alternatively alleged. See McCormick v. Kopmann, 23 Ill. App.2d 189, 161 NE2d 720 (3rd Dist. 1959).
[4-6] This court reviewed the Illinois "sleep" cases, namely: Secrist v. Raffleson, 326 Ill. App. 489, 62 NE2d 36 (2nd Dist. 1945); Marks v. Marks, 308 Ill. App. 276, 31 NE2d 399 (1st Dist. 1941); and Barmann v. McConachie, 289 Ill. App. 196, 6 NE2d 918 (4th Dist. 1937) in Turner v. Schaeffer, 30 Ill. App.2d 376, 174 NE2d 690 (2nd Dist. 1961). In Turner the court cited and *284 quoted from 28 ALR2d 12, 25, and at pages 389 and 390 fairly stated the pertinent Illinois rule of law, as follows:
"Defendant's stated intentions as to his capacity to drive, must be weighed in the balance with his actions on that day, or even preceding days. One can be guilty of willful and wanton misconduct not only from an error of judgment, but from a failure to exercise judgment, as we have seen from our quotation from the Barmann case. Quite obviously in the Marks case, where the evidence was that defendant knew he was sleepy, and in the Barmann case too, the act of the defendant in continuing to drive was an error of judgment. But absent these manifestations of intention, the activities preceding sleep, such as a sustained period without sleep, strenuous activity, long hours of work, over indulgence in food and drink, even prior similar occurrences evidencing a congenital predisposition to fall suddenly to sleep, might call for the exercise of judgment, and the failure to do so, could evidence willful and wanton misconduct.
"If one omits to make a judgment, he is in no better position for exoneration, than one who makes a judgment, but makes it erroneously. Assuming that defendant did fall asleep, and assuming further that the more obvious warnings were absent, still, because of a lack of sleep, a long day at the factory, the lateness of the hour, the lack of food, and indeed the sleepiness of his partner, could it not be said, because he did not take heed of these facts, that he omitted to make a judgment, and conversely, that these facts behooved him to make one, independent of being jarred by some inward manifestation, such as nodding, or outward manifestation, such as a warning *285 from others. Somewhere along the line, triers of the fact could properly conclude that note should have been taken by him, and self-inquiry made. They could also properly conclude otherwise. As was said in Lindroth v. Walgreen Co., 338 Ill. App. 364, 87 NE2d 307, 312 `... where uncertainty arises as to the inferences that may legitimately be drawn from the evidence so that fair-minded men may honestly draw different conclusions, the question is not one of the law, but one of fact to be settled by the jury.'"
Under these principles, the trial court properly submitted this case to the jury.
[7] The defendant urges that the plaintiff was guilty of contributory wilful and wanton conduct in that he went to sleep. However, in Thompson v. Riemer, 283 Ill. App. 371, 376 (3rd Dist. 1936), the court held that the fact alone that the plaintiff was asleep in the rear seat of the car at the time of the accident, did not constitute contributory negligence as a matter of law, so as to preclude recovery. By analogy, we hold that, as a matter of law, the fact alone that plaintiff was asleep in the front seat of the car, did not constitute contributory wilful and wanton conduct on his part and bar recovery. Such fact, along with all other evidentiary facts, was properly considered by the jury in making this determination. Also see Zank v. Chicago, R.I & P.R. Co., supra, 483, et seq.
[8] The defendant suggests, and offers numerous citations on the point, that the collision was an inevitable or unavoidable accident. The weakness of this contention lies in the facts of the case. They utterly fail to sustain such theory.
[9, 10] Defendant also urges that the verdict was against the manifest weight of the evidence. To be against the manifest weight of the evidence requires *286 that an opposite conclusion be clearly evident. Larson v. Fell, 55 Ill. App.2d 418, 428, 204 NE2d 475 (2nd Dist. 1965); Borst v. Langsdale, 8 Ill. App.2d 88, 93, 130 NE 2d 520 (2nd Dist. 1955); Griggas v. Clauson, 6 Ill. App.2d 412, 419, 128 NE2d 363 (2nd Dist. 1955). An opposite conclusion is not clearly apparent in the case at bar.
The defendant also urged that a statement of plaintiff's counsel constituted a judicial admission which negated wilful and wanton conduct on the part of defendant. After defendant rested, counsel for plaintiff indicated that he would call a rebuttal witness. In a colloquy between counsel for plaintiff and defendant and the court, plaintiff's counsel said: "This is a difficult decision. I don't know, there is nothing in the record about being tired ." Defendant seeks to parlay this remark into a judicial admission by plaintiff that defendant was not guilty of wilful and wanton conduct.
[11, 12] In Deffler v. Loudenback, 233 Ill. App. 240, (1st Dist. 1924), at page 245, the court referred to Vol 5, Wigmore on Evidence, 2nd Ed, sec. 2588 re Judicial Admissions, where it is stated: "An express waiver, made in court or preparatory to trial, by the party or his attorney, conceding for the purposes of the trial the truth of some alleged fact, has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted; so that the one party need offer no evidence to prove it, and the other is not allowed to disprove it." The trial court did not regard the remark as a judicial admission and evidently defendant's counsel did not, since he failed to raise the point at the time in the trial court. The remark was not a judicial admission, and further, such point cannot be raised for the first time in the reviewing court. McMillen *287 v. Rydbom, 56 Ill. App.2d 14, 28, 205 NE2d 813 (2nd Dist. 1965).
[13] Defendant charges error in the trial court's refusal to give certain of his instructions, including No. 21, which was IPI No. 12.01 drafted with reference to intoxication as contributory wilful and wanton conduct. Under the evidence of this case, the jury could draw various inferences from the evidence relative to the intoxication or sobriety of both plaintiff and defendant, but this instruction stressed only the intoxication of plaintiff.
[14, 15] The Court gave IPI No. 14.01 and 14.02 which defined wilful and wanton conduct and contributory wilful and wanton conduct, and IPI No. 20.01 pertaining to the issues. This latter instruction set forth, among other things, that "plaintiff claims he was injured and sustained damage while free from wilful and wanton misconduct on his part" and that defendant denied this. The court also gave IPI No. 21.01 which correctly set forth the burden of the proof on the issues. These instructions adequately defined the standard of conduct required of both plaintiff and defendant. They were not in conflict with the rule of law that intoxication neither bars recovery nor relieves the intoxicated party from the duty of exercising the same care as a sober person. Wilcke v. Henrotin, 241 Ill. 169, 173, 89 NE 329 (1909). It was not prejudicial error to refuse such instruction.
[16] Defendant's instructions Nos. 22, 23, 24, 25 and 27 are abstract statements taken from parts of the opinion in Turner v. Schaeffer, supra. Typical of them are the following:
"No. 22. A person cannot be guilty of wilful and wanton misconduct if he is asleep or unconscious.
*288 "No. 24. Driving while asleep, without more, is not wilful and wanton conduct."
These were not IPI instructions: they stated (some erroneously) abstract legal proportions without connecting them with the issues of the case. The trial court properly refused these instructions. Gillette v. City of Chicago, 396 Ill. 619, 626, 72 NE2d 326 (1947); Cloudman v. Beffa, 7 Ill. App.2d 276, 281-283, 129 NE2d 286 (2nd Dist 1959).
[17] Defendant also states that the court erred in not giving his instruction No. 15, being IPI No. 20.01. The infirmity of this assertion is that the court gave IPI No. 20.01 as plaintiff's instruction No. 9. Defendant further charges that the court improperly refused his instruction No. 16, being IPI No. 30.01, 30.02, 30.03, 30.04, 30.05, 30.06, 30.07. However, the court gave plaintiff's instruction No. 16 which was IPI No. 30.01, 30.02, 30.04, 30.05, 30.06 and 30.07. Since defendant's instruction was broader than plaintiff's instruction No. 16 in that it included in plaintiff's measure of damages, the element of aggravation of a pre-existing ailment or condition, defendant could not be prejudiced by the giving of the more restrictive instruction. Consequently, it was not error to refuse this instruction and to give plaintiff's instruction No. 16.
[18] Defendant also charges that the court erred in giving plaintiff's instructions 8, 9, 13, 14, 15 and 16. We have above approved plaintiff's instructions 9 and 16. Plaintiff offered no instruction numbered 15, but rather submitted two plaintiff's instructions numbered 14 and each was withdrawn and not given, as was plaintiff's instruction numbered 8. Plaintiff's instruction 13, was IPI Instruction 60.01 (Violation of Statute Ill. Rev Stats 1963, c 95 1/2, par 146); there was evidence which would support a finding that the injury *289 complained of was proximately caused by the violation of the statute; it was properly given.
We find no merit in the alleged errors above enumerated, and others, which were charged and considered, but not discussed due to lack of substance. Accordingly, the judgment is affirmed.
Judgment affirmed.
ABRAHAMSON, P.J. and MORAN, J., concur.
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519 F.2d 1405
Sharleyv.Lucey
74-1847
UNITED STATES COURT OF APPEALS Seventh Circuit
6/25/75
1
E.D.Wis.
AFFIRMED
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585 P.2d 925 (1978)
C. F. NORRIS, Faye Tapio, and the Concerned Citizens of Rocky Ford, Plaintiffs-Appellants,
v.
James W. GRIMSLEY, H. Barton Mendenhall, Frank Holder, Robert R. Ryan, Marion Van Dyke, Sheldon Wood, and Carl Dazzio, as the local liquor licensing authority of the City of Rocky Ford, Colorado, Law Farms and Cattle Company, d/b/a Law Plaza Motel and Restaurant, and Joseph F. Dolan, as the State Liquor Licensing Authority for the State of Colorado, Defendants-Appellees.
No. 77-937.
Colorado Court of Appeals, Div. I.
July 27, 1978.
Rehearing Denied August 17, 1978.
Certiorari Denied October 23, 1978.
*926 Lee N. Sternal, Pueblo, for plaintiffs-appellants.
Wade & Blackburn, Robert E. Blackburn, Las Animas, for defendants-appellees.
RULAND, Judge.
The appellants, C. F. Norris, Faye Tapio, and the Concerned Citizens of Rocky Ford, appeal from a decision of the district court in a C.R.C.P. 106(a)(4) proceeding which affirmed the granting of a liquor license to the appellee, Law Farms and Cattle Company, d/b/a Law Plaza Motel and Restaurant, by the defendant, Rocky Ford City Council. We reverse.
Preliminarily, we address Law Farms' contention that the appellants lack standing to pursue this appeal. In support of this contention, the appellees rely upon Kornfeld v. Perl Mack Liquors, Inc., Colo., 567 P.2d 383 (1977). In Kornfeld, supra, our Supreme Court held that an operator of a competing liquor store does not have standing to appeal a decision of a local licensing authority granting issuance of a liquor license, either under the Colorado Liquor Code, § 12-47-101, et seq., C.R.S.1973, or as a person "substantially aggrieved" by the disposition of the case in the lower court, pursuant to C.R.C.P. 106(a)(4). The Court reasoned that "[e]conomic injury from lawful competition does not confer standing to question the legality of a competitor's operations." Kornfeld, supra. See also Woda v. City of Colorado Springs, Colo.App., 570 P.2d 1318 (1977).
For purposes of evaluating Law Farms' application, the City Council included all of Rocky Ford as the affected neighborhood. See § 12-47-137(2)(a), C.R.S.1973 (1976 Cum.Supp.). Norris and Tapio are both residents of Rocky Ford. Norris also operates a restaurant in Rocky Ford which is licensed to dispense alcoholic beverages with meals sold to its customers. Under *927 the holding in Kornfeld, Norris, as a business competitor, would not have standing to appeal. However, we conclude that Norris, as well as Tapio, has standing as a resident of the neighborhood. Because these parties have standing, we need not address the status of the "Concerned Citizens of Rocky Ford." See Denver Ass'n. for Retarded Children, Inc. v. School District No. 1, 188 Colo. 310, 535 P.2d 200 (1975).
We have previously held that nearby landowners have standing to seek judicial review of the actions of zoning authorities. Bedford v. Board of County Commissioners, Colo.App., 584 P.2d 90 (1978); Snyder v. City Council of City and County of Denver, 35 Colo.App. 32, 531 P.2d 643 (1974); see also Dillon Companies, Inc. v. City of Boulder, 183 Colo. 117, 515 P.2d 627 (1973). And, our Supreme Court has considered an appeal from the granting of a liquor license by fourteen objectors who were residents of the area surrounding the proposed outlet, and three objectors who were pastors of religious congregations in the affected city. See Hanna v. Henderson, 140 Colo. 481, 345 P.2d 384 (1959). As these decisions implicitly recognize, only by permitting the participation of local residents in actions such as these will their legitimate interests in, among other things, the character of their neighborhood, the safety of their children, and the value of their property, be adequately protected. See Dillon, supra; Zuckerman v. Board of Zoning Appeals, 144 Conn. 160, 128 A.2d 325 (1956). Thus, we conclude that residents of the affected neighborhood, by virtue of that fact alone, have a strong interest in insuring that the liquor licensing procedure is fairly and properly administered, see Palisades Citizens Ass'n. v. Weakly, 166 F.Supp. 591 (D.D.C.1958); Lofton v. Posey, 195 So.2d 764 (La.App.1967); Brunson v. Rutherford Lodge No. 547, 128 N.J.Super. 66, 319 A.2d 80 (1974); cf. Zuckerman, supra, and are persons who may seek judicial review of liquor licensing decisions under C.R.C.P. 106(a)(4).
As one facet of its conclusion upholding issuance of the license, the trial court ruled that the City Council could waive the requirement that plans and specifications of the proposed liquor outlet be filed. We agree with appellants that this ruling was erroneous.
Section 12-47-135(4), C.R.S.1973 (1976 Cum.Supp.) provides in part:
"The applicant [for a liquor license] shall file at the time of application plans and specifications for the interior of the building if the building to be occupied is in existence at that time." (emphasis added)
Use of the word "shall" in a statute is mandatory in effect. Board of County Commissioners v. Edwards, 171 Colo. 499, 468 P.2d 857 (1970); Appelgren v. Agri Chem, Inc., Colo.App., 562 P.2d 766 (1977). "More than a formal defect is evidenced by the lack of plans and specifications . . . The lack of these items, mandatorily directed to be filed . . . is a substantial one." City of Aurora v. Morris, 160 Colo. 289, 417 P.2d 7 (1966); Spero v. Board of Trustees, 35 Colo.App. 64, 529 P.2d 327 (1974). Thus, the filing of plans and specifications is mandatory.
Nor can the local licensing authority waive this requirement. Prior to granting a liquor license the local authority must inspect the premises "to determine that the applicant has complied with the architect's drawing and plans and specifications submitted upon the application." Section 12-47-137(4), C.R.S.1973 (1976 Cum.Supp.); Spero, supra. "Absent such plans and specifications there is no way in which an inspector could make such a determination, with the obvious result of frustrating the purpose of the law." Spero, supra.
In light of our conclusion, we do not reach the appellants' remaining contentions.
The judgment is reversed and the cause is remanded to the district court with directions to order the City Council to deny the liquor license application.
STERNBERG, J., concurs.
COYTE, J., dissents.
*928 COYTE, Judge, dissenting:
I dissent.
In my opinion, Kornfeld is dispositive of this appeal. Appellants do not have standing, and the appeal should be dismissed.
Our Supreme Court held in Kornfeld that although the owner or manager of a business located in the neighborhood under consideration was a party in interest, such person was neither a proper party nor a person substantially aggrieved under C.R.C.P. 106(a)(4), and therefore had no standing to appeal.
Section 12-47-140(5)(b), C.R.S.1973, lists the following as "Parties in Interest": (1) the applicant, (2) a resident of the neighborhood under consideration, or (3) the owner or manager of a business located in a neighborhood under consideration. Thus, a resident of the neighborhood under consideration is in the same statutory category as the owner or manager of a business in the neighborhood. Such a resident can accordingly participate in the presentation of evidence and cross-examine witnesses; however, in accordance with the interpretation of the statute as set forth in Kornfeld, these parties have only the right to participate in the evidentiary hearing. They do not have a right to challenge the decision of the local licensing authority in the district court.
The majority has predicated its opinion on the assumption that the appellants are persons substantially aggrieved by the disposition of the case in the lower court. Tapio cannot establish her standing on the basis of representing concerned citizens of Rocky Ford. Her standing must be based on her own showing of personal grievance which must be more than mere interest. Here the record shows no grounds for complaint above and beyond that of any complaining resident of the Rocky Ford community. See generally Kolwicz v. Boulder, 36 Colo.App. 142, 538 P.2d 482 (1975). Certainly she is no more aggrieved than would be the owner or manager of a business located in the neighborhood. The same rule should apply to both parties.
I would therefore dismiss the appeal.
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474 N.W.2d 655 (1991)
239 Neb. 74
A.G.A. INC., Appellee,
v.
FIRST NATIONAL BANK, HOLDREGE, NEBRASKA, Appellant.
No. 89-454.
Supreme Court of Nebraska.
September 13, 1991.
*656 Patrick J. Nelson, of Jacobsen, Orr, Nelson, Wright, Harder & Lindstrom, P.C., Kearney, for appellant.
Kenneth F. George of State, Yeagley & George, Kearney, for appellee.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
BOSLAUGH, Justice.
In this action, the plaintiff, A.G.A. Inc. (A.G.A.), sought to recover damages from the defendant, First National Bank, Holdrege, Nebraska (Bank), in connection with the Bank's receipt, as escrow agent, of an $11,100 payment made by A.G.A. in accordance with an installment contract for the sale of land. A.G.A. proceeded on theories of conversion, breach of contract, negligence, breach of fiduciary duty, and money had and received by the Bank for the use of A.G.A.
The district court sustained A.G.A.'s motion for summary judgment and awarded A.G.A. damages of $11,100 and prejudgment interest of $4,853.59. The Bank has appealed, contending the trial court erred (1) in overruling the Bank's demurrer, (2) in overruling the Bank's motion for summary judgment, (3) in sustaining A.G.A.'s motion for summary judgment, (4) in awarding A.G.A. damages, and (5) in awarding A.G.A. prejudgment interest.
We have said that summary judgment is properly granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or as to the ultimate inferences deducible from such facts and that the moving party is entitled to judgment as a matter of law. Logan Ranch v. Farm Credit Bank, 238 Neb. 814, 472 N.W.2d 704 (1991). After the movant has shown facts entitling the movant to summary judgment as a matter of law, the opposing party has the burden of presenting evidence to show an issue of material fact which prevents a judgment as a matter of law. Id. In an appellate review of a summary judgment, this court reviews the evidence in a light most favorable to the party against whom the judgment was granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Id.
The record shows that on July 23, 1982, A.G.A.'s predecessors in interest, Arlynn and Emily Aldinger, purchased 160 acres of farmland and related personal property from Ronald and Connie Strasburger pursuant to an "installment sale land contract" in which the Bank was nominated as escrow agent. The parties agreed that the purchase price of $380,000 would be paid as follows:
(A.) The sum of Five Thousand and no/100 Dollars ($5,000.00) has been paid by Buyers to Sellers prior to the execution of this Contract....
*657 (B.) The sum of Forty-five Thousand and no/100 Dollars ($45,000.00) to be paid July 20, 1982 and upon signing of this Contract by both Buyers and Sellers
(C.) The sum of Forty Thousand and no/100 Dollars ($40,000.00) on March 1, 1983.
(D.) The balance of Two Hundred Ninety Thousand and no/100 Dollars shall be paid in the form of Four (4) annual installments of $23,949.96 each, plus interest at 14% per annum from and after March 1, 1983, with the 1st. payment of $23,949.96, plus interest to be due March 1, 1984, and like amounts on the first day of each and every March thereafter until March 1, 1987 when final installment will be due, and with the total principal paid to Sellers during the four (4) year period to be in the amount of $95,799.85, and which total amount liquidates the Seller's equity upon payment of the fourth (4th.) installment due March 1, 1987.
The remaining balance of $194,200.15 is the balance unpaid on a certain First mortgage in favor of John Hancock Mutual Life Insurance Company now of record against said property, after the principal payment and interest is paid by Sellers on March 1, 1983, and which mortgage calls for semi-annual payments of $11,100.00, which includes interest at rate of 10¼% per annum, and Buyers to pay these payments to the Sellers on Sept. 1 and March 1, from and after March 1, 1983, and the Sellers will in turn pay such payments to the said mortgagee so as to keep said mortgage payments current and paid during term of this contract, and on March 1, 1987, and at time of delivery of deed and bill of sale from said escrow agent, the Buyers will assume and pay the unpaid principal balance then remaining unpaid on said First Mortgage, and as a part of the total consideration set forth in this contract.
This case concerns the $11,100 mortgage payment due September 1, 1985.
Contract paragraph 8 contained the following escrow provisions:
A warranty deed to the real estate and a bill of sale to the personal property described herein is to be executed and signed simultanously [sic] herewith from Sellers to Buyers, which deed and bill of sale is to be held in escrow by the First National Bank, Holdrege, Nebraska, who are hereby designated and authorized to act as the escrow agent in this transaction, and who are hereby authorized by Sellers to receive all payments of money as set forth in this contract from and after March 1, 1983 to be paid by Buyers, and are authorized and directed to deliver the said warranty deed and bill of sale to said Buyers upon receipt from Buyers of all the payments of money to be paid by them under terms and agreements set forth in this contract.
On July 26, 1982, the Bank's escrow officer signed the "Escrow Acceptance," found on the last page of the contract, which provided: "We, the undersigned, First National Bank, of Holdrege, Nebraska acknowledge receipt of the heretofore mentioned warranty deed and bill of sale and a signed copy of this contract and agree to act as the escrow agent as provided herein."
In December 1983, the Aldingers incorporated their farming operation and, in exchange for A.G.A.'s stock, conveyed and assigned their rights, title, and interest in the contract to A.G.A.
A.G.A. and the Aldingers made a number of payments pursuant to the contract, in each instance delivering a check to the Bank, which accepted the payments on behalf of and acting for the Strasburgers. The check at issue in this action was made payable to "Ron Strasburger Land Account First National Bank" in the amount of $11,100. The check was dated and delivered to the Bank on August 28, 1985. On or about August 29, 1985, the check was presented for payment and was paid.
At some time after the Bank received the check, it applied the full amount directly against and in reduction of certain indebtedness then owed to the Bank by the Strasburgers, and did not apply the check proceeds to the Hancock mortgage. Consequently, *658 in January 1987, Hancock foreclosed its mortgage, completely terminating the rights of A.G.A. in and to the property.
Reviewing the evidence in the light most favorable to the Bank, it is clear that the Bank breached its contract to act as escrow in this transaction. The Bank contends that, as escrow, it only had the duty to hold and deliver the deed and bill of sale upon receipt from A.G.A. of all payments of money to be paid by it under terms and agreements set forth in the contract, and claims it had no contractual duty to see that the $11,100 check was used to pay the Hancock mortgage. We disagree.
The Bank agreed to act as the escrow agent as provided in the contract. Pursuant to the contract, the Bank was "designated and authorized to act as the escrow agent in this transaction" and was "authorized by [Strasburgers] to receive all payments of money as set forth in this contract from and after March 1, 1983 to be paid by [A.G.A.]." (Emphasis supplied.) The contract clearly and specifically provides that the $11,100 payments to be made by A.G.A. on March 1 and September 1 were to be applied to the Hancock mortgage so as to keep the mortgage payments current and paid during the term of the contract.
In Katleman v. U.S. Communities, Inc., 197 Neb. 443, 447, 249 N.W.2d 898, 901 (1977), this court said:
While escrows traditionally involve documents, it is no longer open to question that money may also be delivered in escrow....
Where a person assumes to and does act as the depositary in escrow, he is absolutely bound by the terms and conditions of the deposit and charged with a strict execution of the duties voluntarily assumed. He is held to strict compliance with the terms of the escrow agreement. If he violates instructions or acts negligently, he is ordinarily liable for any loss occasioned by his breach of duty.
See, also, Everlasting Golden Rule Ch. v. Dakota Title, 230 Neb. 590, 432 N.W.2d 803 (1988).
In general, in an arrangement of this type, the escrow agent is the agent of both parties. See, e.g., 28 Am.Jur.2d Escrow § 11 (1966). Even if it is assumed that the Bank was acting solely as the agent of the Strasburgers in accepting payments due under the contract, Strasburgers were bound by the contract to apply the payment in question to the Hancock mortgage and were not free to direct the Bank to apply A.G.A.'s $11,100 payment to another debt.
Once the Bank, as escrow agent, voluntarily began receiving and accepting the mortgage payments required to be made pursuant to the contract, the Bank was required to strictly comply with the terms of the contract regarding the disposition of the payments it received. It did not do so. There is no question of fact as to the Bank's liability, and the district court properly sustained A.G.A.'s motion for summary judgment.
The Bank also contends the district court erred in awarding A.G.A. prejudgment interest. Neb.Rev.Stat. § 45-103.02 (Reissue 1988), relating to prejudgment interest, does not apply to causes of action which accrued prior to January 1, 1987. See, 1986 Neb.Laws, L.B. 298; Knox v. Cook, 233 Neb. 387, 446 N.W.2d 1 (1989). Since the cause of action in this case accrued in 1985, § 45-103.02 does not apply.
Prejudgment interest may not be awarded on unliquidated claims. In Atokad Ag. & Racing v. Governors of Knts. of Ak-Sar-Ben, 237 Neb. 317, 325, 466 N.W.2d 73, 79 (1991), we said:
"A claim is unliquidated where a reasonable controversy exists either as to the right to recover or as to the amount of such recovery." Suess v. Lee Sapp Leasing, 229 Neb. 755, 764, 428 N.W.2d 899, 905 (1988). A two-pronged inquiry is required. There must be no dispute either as to the amount due or as to the plaintiff's right to recover, or both.
See, also, Otto Farms v. First Nat. Bank of York, 228 Neb. 287, 422 N.W.2d 331 (1988).
In this case, there was no dispute as to the amount due and no reasonable controversy *659 regarding the Bank's liability to A.G.A. Under the circumstances, the district court did not err in awarding A.G.A. prejudgment interest.
The judgment of the district court is affirmed.
AFFIRMED.
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Case: 09-10885 Document: 00511028942 Page: 1 Date Filed: 02/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 17, 2010
No. 09-10885 Charles R. Fulbruge III
Summary Calendar Clerk
ESTATE OF STEVEN EVERETT SHAW; MARK SHAW; ELISANDRA
LOPEZ, as mother and next friend of D.T.S, a minor; DALE ROBERTS
Plaintiffs-Appellants
v.
NICOLAS SIERRA, Police Officer; TODD CAVALIERE, Police Officer
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:08-CV-1737-N
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
The plaintiffs, the Estate of Steven Everett Shaw and various family
members, appeal the dismissal of their action against officers Sierra and
Cavaliere on motion for summary judgment. The district court granted
defendants’ motion on the grounds that they were entitled to qualified immunity.
We affirm.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-10885 Document: 00511028942 Page: 2 Date Filed: 02/17/2010
No. 09-10885
I.
This action arises out of a high speed chase culminating in the use of
deadly force by Officers Sierra and Cavaliere of the Mesquite Police Department
against the decedent, Steven Everett Shaw (“Shaw”).
The chase began when Officer Caveliere attempted to conduct a traffic stop
after observing Shaw engaging in what he perceived to be suspicious activity.
When Caveliere approached to make the stop, Shaw fled. The resulting chase
extended through three cities. The chase ended when Shaw turned down a dead
end street and drove around a gate into a pasture area. After circling the
pasture, Shaw’s vehicle became lodged on a utility pole guide wire. As the
officers exited their vehicles and approached on foot, Shaw reversed his vehicle,
dislodged it from the wire and then rapidly accelerated forward toward Officer
Cavaliere. Officer Cavaliere was on foot directly in front of Shaw’s vehicle when
Shaw’s vehicle began moving toward him. At that point, Officers Sierra and
Caveliere fired at Shaw and hit him. Shaw died from these gunshot wounds.
Sierra and Cavaliere assert that they believed Cavaliere was in imminent
danger of death or serious injury from Shaw’s vehicle at the time they fired.
Both parties submitted expert opinion as part of the summary judgment
evidence regarding the reasonableness of this belief. The incident was captured
by the video cameras of four patrol cars on the scene.
Plaintiffs allege that the defendants used excessive force in violation of
Shaw’s Fourth Amendment rights. The defendants moved for summary
judgment on the grounds that they were entitled to qualified immunity. The
district court granted the motion and the plaintiffs appeal.
2
Case: 09-10885 Document: 00511028942 Page: 3 Date Filed: 02/17/2010
No. 09-10885
II.
The central issue in this case is whether the force used by the defendants
was objectively reasonable under the circumstances in light of clearly
established law. Bazan v. Hidalgo Co., 246 F.3d 481, 488 (5th Cir. 2001). To
prevail on an excessive force claim, plaintiffs must establish “(1) injury, (2)
which resulted directly and only from a use of force that was clearly excessive,
and (3) the excessiveness of which was clearly unreasonable." Collier v.
Montgomery, 569 F.3d 214, 218 (5th Cir. 2009)(citing Tarver v. City of Edna, 410
F.3d 745, 751 (5th Cir. 2005)). If the defendants’ use of force was reasonable
under the circumstances, no Fourth Amendment violation is established and
plaintiffs’ claims fail. When an officer has probable cause to believe that the
suspect poses an imminent threat of serious physical harm to the officer or
others, deadly force is reasonable. Tennessee v. Garner, 471 U.S. 1, 11 (1985).
We agree with the district court’s assessment of the record in this case.
“Even when viewed in the light most favorable to plaintiff, the facts of this case
do not establish a constitutional violation by Sierra and Cavaliere. . . . At the
time of the incident, the officers reasonably believed that Shaw might run over
Cavaliere. They fired at Shaw to halt this threat. In these circumstances,
Defendants’ use of force was reasonable.” Cases relied on by plaintiffs involving
fleeing suspects are distinguishable. Defendants in this case did not fire at
Shaw during the long car chase while he was fleeing from them. They only fired
when Shaw’s vehicle accelerated toward Cavaliere who was approaching the
vehicle on foot. The videos from the police cars at the scene depict Cavaliere
directly in front of Shaw’s vehicle as Shaw began to accelerate forward.
Accordingly, the district court did not err in concluding that the summary
3
Case: 09-10885 Document: 00511028942 Page: 4 Date Filed: 02/17/2010
No. 09-10885
judgment record revealed that officers in Sierra’s or Cavaliere’s position would
reasonably believe that Cavaliere was in imminent danger of serious physical
injury from being struck by Shaw’s accelerating vehicle.
We also agree with the district court that the plaintiffs’ expert testimony
is insufficient to create a genuine issue of material fact on this issue. Expert
Rodney Jeanis provided no methodology or foundation for his conclusions that
defendants were not in threat of imminent serious physical harm or that the
force used was excessive. In such circumstances, a court need not consider the
expert’s opinion on summary judgment. Celestine v. Petroleos de Venezuella SA,
266 F.3d 343, 357 (5 th Cir. 2001). The expert testimony submitted by Shaw’s
father similarly fails.
Because plaintiffs cannot establish a constitutional violation by the use of
excessive force, we need not proceed to the second prong of the qualified
immunity analysis - whether defendants’ conduct was objectively reasonably
under clearly established law. Hathaway v. Bazany, 507 F.3d 312, 320 (5th Cir.
2007).
III.
For the reasons stated above, we agree with the district court that
defendants are entitled to qualified immunity and affirm the district court’s
summary judgment.
AFFIRMED.
4
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56 Cal.Rptr.3d 151 (2007)
148 Cal.App.4th 841
In re LAUREN R., a Person Coming Under the Juvenile Court Law.
Orange County Social Services Agency, Plaintiff and Respondent,
Velda C. et al., Respondents,
v.
Amanda C, Defendant and Appellant, Lauren R., Minor and Appellant.
No. G037590.
Court of Appeal of California, Fourth District, Division Three.
March 19, 2007.
*152 Charles Bergstrom, Orange; John L. Dodd & Associates and John L. Dodd, Tustin, for Defendant and Appellant Amanda C.
Law Office of Harold LaFlamme, Orange, and Tina Stevens, under appointment by the Court of Appeal, for Minor and Appellant, Lauren R.
Benjamin P. de Mayo, County Counsel, Dana J. Stits, Senior Deputy County Counsel, Paula A. Whaley and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent, Orange County Social Services Agency.
Rich Pfeiffer, for Respondent, Velda C.
Jennifer Mack, under appointment by the Court of Appeal, for Respondent Mother, Laura R.
Nicole Williams and Niccol Kording, under appointment by the Court of Appeal, for Respondent Father, Dennis R.
OPINION
O'LEARY, J.
Amanda C, de facto parent, and Lauren R, the minor, appeal from the juvenile court's order removing Lauren from Amanda's home and placing her for adoption by her maternal aunt, Velda C, who lives in Oregon. Using the factors designated for a temporary relative placement (Welf. & Inst.Code, § 361.3, subd. (a)),[1] the *153 juvenile court found Velda was the better placement. We find the relative placement preference did not apply to the placement order because (1) no new placement was necessary and (2) it was a placement for adoption. Because the placement order was for adoption, we find the caretaker preference (§ 366.26, subd. (k)) was applicable. Accordingly, we remand the case for consideration under the proper statute.
I
FACTS
Lauren R. is 10 years old. She was made a dependent of the juvenile court in Oregon, where her family lived, early in her childhood. The family moved to Orange County when Lauren was five years old. About a year later, she was made a dependent of the Orange County Juvenile Court due to her parents' substance abuse and domestic violence, as well as their failure to protect her from sexual abuse. After 18 months out of her parents' custody, Lauren was returned to her mother under continued supervision by the Orange County Social Services Agency (SSA). But SSA removed her again seven months later and filed a supplemental petition alleging the mother had been arrested for driving under the influence of drugs and alcohol with Lauren in the car. Lauren was placed with Amanda C, who the mother identified as a nonrelative extended family member,[2] on June 1, 2005. Amanda was 23 years old and ran a licensed day care center in her home. She had been Lauren's babysitter and Sunday school teacher for several years.
The juvenile court sustained the supplemental petition in July 2005. At the dispositional hearing on November 16, the court ordered Lauren placed out of parental custody, refused to give further reunification services to the parents, and set a section 366.26 hearing for March 2006. During the almost six months that elapsed between detention and disposition, Lauren remained adamantly opposed to contact with either parent. The visits and conjoint therapy sessions she engaged in with her parents were total failures; both parents verbally abused her in front of visitation monitors and the therapist.
In July, Lauren's maternal aunt, Velda C, told the social worker she was interested in having Lauren placed with her. Because Velda lived in Oregon, the social worker initiated paperwork required by the Interstate Compact for the Placement of Children (ICPC). (Fam.Code, § 7900 et seq.) Lauren visited her aunt for three days in August "to get reacquainted"; she said the visit was "fun." By September, however, Lauren was stating she did not want to live with her aunt in Oregon. In early October, Lauren's therapist "indicated that moving Lauren from her current placement would be detrimental. The reasons being that Lauren is becoming more attached to her current caretaker, Amanda, and to her community, such as her church and school." In early November, Velda came to court to ask for placement. The court authorized a one-week visit in Oregon before Christmas.
*154 In January, SSA reported Oregon had approved Velda's home for placement. Lauren insisted she did not want to be adopted by Velda but wanted to, be adopted by Amanda, who by this time was interested in adoption and was completing the paperwork to initiate a home study. The social worker felt "it may be in Lauren's best interest to be placed in [Velda's] home." On January 18, Amanda was granted de facto parent standing. The social worker took Lauren to Oregon for another visit with Velda at the end of January. The social worker's observation was that Lauren "appeared to feel safe and comfortable in [her] care." However, Lauren continued to insist she wanted Amanda to adopt her, not Velda. The social worker reported that Lauren said "she is worried that Aunt Velda will be nice for a few days and then she would stop being nice" because "`she's my mom's sister and that is how my mom is.'" Lauren was also worried she would have to see her mother if she lived with Velda. "[My] mom will say `I wanna see my daughter and I don't want to see her.'"
At a progress review hearing in early February, the parties stipulated they were on notice that SSA intended to place Lauren with Velda but decided not to move her pending the section 366.26 hearing scheduled for March. The parties agreed "to litigate placement at the [section 366].26 hearing."
Velda moved for de facto parent standing and for relative placement preference under section 361.3 on February 22. In the report prepared by SSA for the section 366.26 hearing, the social worker reported that Amanda "has not yet turned in either the Adoption Questionnaire or her Adoption Application. The home study cannot be started until she has turned in this paperwork. Her assigned adoptive home study worker has recently sent her a follow up letter requesting the information." The parties stipulated that Lauren would have monthly visits with Velda, plus spring break and most of the summer. They also stipulated that Lauren "has a probability for adoption, but is difficult to place and there is no identified or available prospective adoptive parent," and continued the section 366.26 hearing for six months.
In August, the social worker reported that "Lauren has repeatedly stated that she would like to be adopted by her current caretaker, Amanda ... She insists that although she has fun with her family [in Oregon] she wants to remain with [Amanda]." Velda believed Lauren was being manipulated by Amanda. "[Velda] is concerned that when she asks Lauren anything about her life or routine Lauren tells her she needs to ask Amanda about that." Lauren's therapist reported she was consistently happy and stable with Amanda and felt loved by Amanda. The therapist concluded Lauren had a healthy attachment to Amanda but not with her aunt and uncle and "it may be in Lauren's best interest to remain in her current placement."
The social worker also stated in the August report that Amanda was sent follow up letters regarding her adoption application on March 6, March 30, and May 17 because it had not been received by SSA. In July, Amanda told the social worker she sent her application in either January or the first of February. Amanda said she would bring copies of the application to SSA's office on July 17. The social worker received an incomplete application in the mail on August 1. On August 8, the social worker left a message for Amanda requesting she call to make an appointment to begin the home study process. By the next day, when the social worker was writing her report, Amanda had not yet called. "[T]he undersigned is concerned *155 about [Amanda's] lack of action towards completing a homestudy [sic ] and how this may negatively impact Lauren's need for permanency."
By the time of the September report, after two more phone calls, Amanda still had failed to contact the home study worker. On August 29, the home study worker had closed the file due to her lack of response. The social worker wrote, "The undersigned is concerned that despite [Amanda's] stated desire to adopt Lauren, her lack of action towards completing a homestudy [sic ] in the last eight months states otherwise. Additionally, the undersigned is concerned regarding how this failure to complete a homestudy [sic ] may negatively impact Lauren's need for permanency." Lauren's therapist, however, reported that Lauren was doing well in Amanda's home; the therapist believed "that [Amanda's] home is likely the best placement for Lauren" and was concerned "that Lauren does not have a significant attachment to any of her relatives in Oregon."
The section 366.26 hearing finally began on September 6. The court and counsel, most of who had changed in the last six months, discussed whether the parties intended to litigate the placement before or after the section 366.26 hearing when entering into the stipulation in early February. County counsel asked to "proceed with the [section 366].26 first and then address the issue of placement. [¶] ... [¶] There's a concern here that the current caretaker may have certain rights that would be bypassed by proceeding with the placement issue prior to the [section 366].26. Specifically I'm referring to the potential of being designated a prospective adoptive parent."[3] County counsel also pointed out the juvenile court would have to exercise its independent judgment on the placement if the hearing were held before the section 366.26 hearing, whereas after the section 366.26 hearing, SSA's placement decision would be reviewed under an abuse of discretion standard. And finally, county counsel stated, "Of course, there is the [section] 361.3 priority for relatives that the court would have to consider."
The juvenile court expressed its concern about "bargaining in good faith" when the parties entered into the stipulation to hold the placement hearing, observing that the minor's counsel was the only attorney who had been on the case since the beginning. "If the court were to proceed with the [section 366].26 first before the placement and the court were to terminate the parental rights of mother and father, then they would be left without standing to participate in any fashion in the placement. [¶] ... [¶] It would be hard to imagine that parents' counsel would agree that the [section 366].26 would go first, understanding that they may be in a position to have no input at the placement review."
Counsel for the father and for the mother both objected to holding the section 366.26 before the placement review. Minor's *156 counsel said, "Since placement has been at issue since at least February of this year, I believe it was the intent of all [counsel] at the time, who have unfortunately changed, to have a placement hearing with respect to which is the best possible placement for Lauren." Amanda's counsel, who was appointed in January 2006, remarked, "Obviously, your Honor, the Legislature saw a need and enacted [section] 366.26[, subdivision] (a),[4] which is the additional protection that my client would have as having prospective adoptive status. So from that standpoint, I suppose I would really rather have the [section 3661.26 hearing first [¶] ... [¶] [W]e'd like to have the extra protection. But in all fairness, what [minor's counsel] recited, that is what I can remember happening in February and March of this year." After hearing from all counsel, the court decided to hold the placement review hearing before the section 366.26 hearing, indicating it would be exercising its independent judgment on the placement decision "such as discussed in the Cesar V. case."[5]
The court listened to seven days of testimony. Lauren's therapist, who had seen Lauren once a week for over two years, testified Lauren expressed feelings of love and trust for Amanda. "[S]he feels like Amanda is a mom to her." Lauren said she wanted to live with Amanda, "whom she sees as her family," and did not want to live with Velda. The therapist opined that removing Lauren from Amanda's home "would be a real loss for her. I think it would have a significant impact on her," and "she would need to grieve and work through [it]." When asked if Lauren could adapt to a move to Oregon, the therapist answered, "I think she has the coping skills as long as she has good support."
Lauren's social worker, Sidney Holt, testified she recommended Velda as a placement because she had known Lauren as an infant and there were other family members in Oregon. Comparing her to Amanda, Holt stated, "I believe the aunt would be a better placement for Lauren, because if parental rights are terminated, she needs permanency. We have an approved home study with her in Oregon, [¶] We have an incomplete application and a closed case on the other applicant. We don't know that she will ever have an approved home study, nor do we know how long that will take. That negatively impacts Lauren's permanence." Holt admitted she recommended placement with Velda before the Oregon home study was completed and before Amanda's application was considered "late."
Amanda testified she was told Lauren's adoption was "a possibility" by a social worker from Orangewood Children's Home when Lauren was first placed with her. She expressed her interest in adoption to Holt and received a packet of paperwork in January 2006. She sent the packet back "at the end of January, the beginning of February, in that week range." She remembered receiving one letter in March saying she had not turned in the application, but apparently disregarded the letter because she had mailed the application. She did not follow up on the application because "I had contact with [Holt] once a month and I thought she would have been communicating with me if there was something going on." Sometime *157 in the summer of 2006, Holt told Amanda the application had not been received. Amanda sent a copy of the original application a few days later and left a message with the home study worker "to confirm that she got my second sending of the paperwork." At that time, Amanda believed her application was complete, and it was not until the week before trial that her attorney told her it was incomplete. She called the home study worker and, at the worker's direction, faxed a request that "I would like the case to be reopened." Amanda testified no one had ever told her what was wrong with her paperwork, but she had a meeting scheduled with the home study worker during the week following trial.[6]
When asked about Lauren's record of tardies to school, Amanda explained some of the tardies were after Lauren had been visiting Velda in Oregon and had arrived home late the nights before. She explained most of the tardies were due to the habitual lateness of one of her child care clients. Although she attended all parent teacher conferences, no school official had indicated the tardies were a problem for Lauren. But Amanda admitted her responsibility for the situation and acknowledged it was unacceptable.
The court delivered its findings, prefacing them with an explanation of the posture of the case: "The placement review was conducted in order for the court to determine if the Agency abused their [sic ] discretion in deciding to remove the child, and then also for the court to exercise its independent judgment in the placement of the child. [¶] In backtracking to see how we got to this point, the decision to move the child from [Amanda's] home was made much earlier in the year, and the Agency had placement authority. However, it appears that there was an agreement not to move the child prior to the minor being afforded a hearing. The court has now conducted that hearing. [¶] I have considered all of the factors that are listed in [s]ection 361.3 ..., and I would like at this time to briefly comment on the witnesses' testimony."
The court stated Amanda was "intelligent and well-spoken, and it is clear to the court that she loves Lauren and it appears to the court that she wishes to adopt her." But the court was concerned about the late paperwork and wondered why Amanda would take so long. "I have considered whether or not she is ambivalent to the adoption of the child, whether she is second-guessing her earlier decision. [¶] ... [¶] But ... when the court observed [Amanda], she did not come across to the court as ambivalent, so I do not find that to be a likely explanation for the foot-dragging." The court considered and rejected a few more explanations, then stated its conclusion: "[T]he reason for the late and incomplete application and the failure to timely follow up, ... all of that is a product of [Amanda's] maturation level. She is still so young. Procrastination and letting things go and not establishing the proper priorities, those are the things that many, many young adults do. [¶] [T]hat also explains allowing the child Lauren to [ ]rack up 27 tardies since December in *158 her third-grade class. [¶] ... I don't find that [Amanda] was deliberately untruthful. [¶] But in certain responses, her answers were more consistent with what I would describe as child-like exaggeration or misrepresentations. She wants placement, so she fudges on the truth. [¶] ... [¶] These findings about the maturity level of the current caretaker, they only arise because the court must choose the best placement and because I have tried to understand the reasons for the foot-dragging, and that is a significant factor in the court's consideration. [¶] [T]he court is not finding that due to her maturity level or age, that [Amanda] cannot provide appropriate care for a child or for children. In fact, in many areas she has proven to be quite mature and capable. Overall, she has been a fine caretaker for Lauren at a time when Lauren definitely needed one, and the court believes that [Amanda] could continue to be a fine caretaker for this child. [¶] I note that the child is very happy in her care. She's doing well emotionally and educationally. [¶] But the process for the court is one of balancing the benefits and the detriments in the respective prospective placements, and the willingness to provide a permanent adoptive home and actions that reflect that willingness is a significant factor...."
The court then compared Velda to Amanda. "In contrast then, [Velda] is a close relative to the child. She has the maturity to follow through and to ensure that Lauren's needs are met. She has successfully parented her own daughter through those difficult teen years, through which this minor, Lauren, has yet to enter. And it is clear to the court that she too loves the child and is dedicated to her. [¶] There are benefits to this placement as well, such as providing relationships with her young blood cousins. I note that this child, Lauren, is an only child, so that is a significant benefit to this child as well: contact with other blood relatives."
The court ordered Lauren to be placed with Velda as of October 1. The court then found adoption to be the permanent plan and terminated parental rights of both parents. Amanda and Lauren appealed the placement order and also filed a petition for writ of supersedeas to stay Lauren's move to Oregon pending the resolution of the appeal. After a hearing, we issued the writ of supersedeas.
II
DISCUSSION
Amanda and Lauren contend the order placing Lauren with Velda must be vacated because neither the trial court nor SSA complied with the caretaker preference statute (§ 366.26, subd. (k), hereafter "Subdivision (k)" or "caretaker preference").[7] They argue the caretaker preference applies to Amanda and, under its terms, she was entitled to have her adoption application processed before Velda's. Because the juvenile court failed to comply with Subdivision (k) and erroneously applied the relative placement preference statute (§ 361.3), they argue, the court's placement order must be set aside and the case must be remanded for compliance with Subdivision (k). Velda, SSA, and the *159 parents argue Subdivision (k) applies only after parental rights have been terminated. They argue because the placement determination was made before the termination of parental rights, the juvenile court properly exercised its independent judgment to place Lauren for adoption in a relative placement.
We find the relative placement preference did not apply to the placement order because (1) no new placement was necessary and (2) it was not a temporary placement. Because the placement order was for adoption, we find Subdivision (k) was applicable. The trial court, however, mistakenly assumed the relative placement preference applied and based its decision on the statutory elements in section 361.3, subdivision (a). Accordingly, we remand the case for consideration under the proper statute.
Waiver
Preliminarily, we address Velda's contention that Amanda and Lauren forfeited any claim that the juvenile court erred in failing to apply Subdivision (k) by stipulating to hold the placement review hearing before the section 366.26 hearing. This contention is not well taken. The discussion between the juvenile court and counsel was about whether the court would exercise its independent judgment or review the placement for an abuse of discretion by SSA and the implications of the hearing sequence on the standing rights of the parents. The only allusion to Subdivision (k) was an oblique one by Amanda's counsel, who stated he "would really rather have the [section 366].26 hearing first" because he thought it would give Amanda "additional protection ... as having prospective adoptive status." It appears he was mixing up the caretaker preference and the prospective adoptive parent designation. A statement by counsel made in a state of such profound confusion cannot be construed as an express waiver of Amanda's rights.
Furthermore, even if a waiver could be found, this case presents important issues of law. We have inherent discretion to entertain the issues on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293-1294, 13 Cal.Rptr.3d 786, 90 P.3d 746.)
Relative Placement Preference
The relative placement preference is set out in section 361.3. It gives "preferential consideration" to a request by a relative of a child who has been removed from parental custody for placement of that child. "`Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) The preference applies at the dispositional hearing and thereafter "whenever a new placement of the child must be made ..." (§ 361.3, subd. (d).)[8]
*160 Here, SSA wanted to remove Lauren from Amanda's home to place her for adoption by Velda. This did not constitute a necessary new placement within the meaning of the relative placement preference. There is no relative placement preference for adoption. (Cesar V.; Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 68 Cal.Rptr.2d 239; In re Sarah S. (1996) 43 Cal.App.4th 274, 50 Cal.Rptr.2d 503.)
Velda points out that she asked for relative placement early in the proceedings, but the ICPC requirements for an out-of-state placement were not completed until January 2006. She argues it is unfair to out-of-state relatives if the relative placement preference can be lost by the passage of time.
The overriding concern of dependency proceedings, however, is not the interest of extended family members but the interest of the child. "[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (In re Stephanie M. (1994) 7 Cal.4th 295, 321, 27 Cal.Rptr.2d 595, 867 P.2d 706.) Section 361.3 does not create an evidentiary presumption that relative placement is in a child's best interests. (Id. at p. 320, 27 Cal.Rptr.2d 595, 867 P.2d 706.) The passage of time is a significant factor in a child's life; the longer a successful placement continues, the more important the child's need for continuity and stability becomes in the evaluation of her best interests. (Id. at p. 319, 27 Cal.Rptr.2d 595, 867 P.2d 706.)
Caretaker Preference
Unlike the relative placement preference, the caretaker preference applies specifically to applications for adoption. Subdivision (k) provides, "Notwithstanding any other provision of law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative care *161 taker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the child's emotional well-being, [¶] As used in this subdivision, `preference' means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child."
Velda argues the caretaker preference applies only after termination of parental rights. She points to the language of the statute, which specifies the preference is for a caretaker of a "child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption," contending the court does not approve adoption as a permanent plan until parental rights are terminated and the permanent plan is selected.
We think the circumstance that triggers the application of the caretaker preference is the intent to place the child for adoption, not necessarily the termination of parental rights or the termination of reunification services. The rules of statutory construction support our view.
Subdivision (k) sets forth alternative bases for the application of the caretaker preference: It applies to a person who is caring for a child "for whom the court has approved a permanent plan for adoption, or who has been freed for adoption." (Italics added.) "Or" is disjunctive, indicating the Legislature intended an alternative application. (Houge v. Ford (1955) 44 Cal.2d 706, 712, 285 P.2d 257.) When parental rights are terminated at a section 366.26 hearing, the juvenile court is directed to "order that the child be placed for adoption" unless one of the statutory exceptions applies. (§ 366.26, subd. (b)(1).) With such an order, the juvenile court effectively frees the child for adoption. Because the Legislature also specified the caretaker preference applies when the court has approved a permanent plan for adoption, we must presume it meant something different from "ordering" adoption. Otherwise, the alternative basis would be surplusage, a prohibited construction. (Eisner v. Uveges (2004) 34 Cal.4th 915, 931, 22 Cal.Rptr.3d 530, 102 P.3d 915.)
The court approved a permanent plan of adoption for Lauren in March 2006, when it continued the section 366.26 hearing based on the findings it made under section 366.26, subdivision (c)(3), identifying adoption as the permanent placement goal and ordering SSA to find an adoptive family for her within six months.[9] At that *162 point, all efforts by SSA to place Lauren were specifically directed at adoption, and the caretaker preference applied.
Velda cites In re Sarah S., supra, 43 Cal.App.4th 50 Cal.Rptr.2d 503 and Cesar V. in support of her contention that Subdivision (k) only applies after the termination of parental rights. But the cases do not stand for that proposition.
In Sarah S., two couples wanted to adopt the minor: her nonrelative caretakers, with whom she had formed a close bond, and her maternal uncle and his wife, who lived out-of-state but had consistently expressed their desire to adopt. The maternal uncle contended he had a statutory preference to adopt under the relative placement preference of section 361.3. The court held "the statutory preference for placement of a dependent child with a relative ... does not apply to a placement made as part of a permanent plan for adoption." (In re Sarah S., supra, 43 Cal.App.4th at pp. 276-277, 50 Cal.Rptr.2d 503, fn. omitted.) It found the statute applies to temporary rather than permanent placements. Application of the relative placement preference "requires consideration of the parents' wishes (§ 361.3, subd. (a)(2)), of the caretaker's ability to protect the child from his or her parents (§ 361.3, subd. (a)(6)(D)), and of the ability of the relative to facilitate court-ordered reunification efforts (§ 361.3, subd. (a)(6)(E)), factors that are wholly or largely irrelevant once parental rights are terminated. By its own terms, therefore, section 361.3 applies when `a child is removed from the physical custody of his or her parents' and thus must be `placed' in a temporary home, not when reunification efforts have failed and a permanent plan for adoption has been approved (or when a child has otherwise been freed for adoption)." (Id. at p. 284, 50 Cal.Rptr.2d 503.)
The court contrasted section 361.3 with the caretaker preference for adoption in Subdivision (k). "[S]ection 361.3 assures interested relatives that, when a child is taken from her parents and placed outside the home pending the determination whether reunification is possible, the relative's application will be considered before a stranger's application.... When reunification fails, ... [S]ubdivision (k) assures a 'relative caretaker' who has cared for the child that, when parental rights are terminated and the child is freed for adoption, his or her application will be considered before those submitted by other relatives and strangers." (In re Sarah S., supra, 43 Cal.App.4th at p. 285, 50 Cal.Rptr.2d 503.)
Cesar V. involved the refusal of SSA to place the dependent children with the paternal grandmother after reunification services were terminated and a new placement became necessary. Although the court ordered SSA to evaluate the grandmother for possible placement, SSA placed the children with another foster family. At the section 366.26 hearing held five months later, the father challenged SSA's denial of placement with the grandmother as an abuse of discretion. The parties stipulated to resolve the placement challenge before the section 366.26 issues. Testimony revealed that SSA performed an incomplete evaluation of the grandmother and decided that the foster family would be a better placement. The father objected to the comparison, asserting the relative placement preference required SSA to evaluate the grandmother before any other placement. The juvenile court overruled the objection, stating the relative placement preference did not apply after the termination of reunification services *163 and, furthermore, it could only review SSA's placement decision for an abuse of discretion.
The appellate court held the relative placement preference "applies when a new placement becomes necessary after reunification services are terminated but before parental rights are terminated and adoptive placement becomes an issue." (Cesar V. at p. 1032, 111 Cal.Rptr.2d 243, italics added.) Although reunification services were terminated, the children needed a temporary placement pending the section 366.26 hearing. SSA was looking ahead to potential adoptive placement, but it was not soliciting adoption applications and adoption had not been identified by the court as the children's permanent placement goal. The grandmother was entitled to serious consideration as a placement before adoption became the issue; if the children had been placed in her care for several months by the time the children were freed for adoption, she might have qualified for the caretaker preference under Subdivision (k).
The Cesar V. court also held the juvenile court must use its independent judgment on the relative placement preference issue rather than reviewing SSA's action for an abuse of discretion. This holding was based squarely on the statute. Section 366.26, subdivision (j) provides: "If the court, by order or judgment, declares the child free from the custody and control of both parents, or one parent if the other does not have custody and control, the court shall at the same time order the child referred to the State Department of Social Services or a licensed adoption agency for adoptive placement by the agency.... The State Department of Social Services or licensed adoption agency shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption is granted ...." (Italics added.) The abuse of discretion standard does not apply until the parental rights are terminated. This has nothing to do with whether the caretaker preference applies when SSA is soliciting applications for adoption after the court has approved adoption as a permanent plan but before parental rights are terminated. (See Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 68 Cal.Rptr.2d 239.)
Having concluded the caretaker preference applies to applications for adoption both before and after the termination of parental rights, we consider whether Amanda qualified for the preference, which is a different question. Subdivision (k) specifies a caretaker's adoption application is given preference "if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the child's emotional well-being." (Italics added.) Amanda contends the agency, here SSA, must determine only the first prong of the qualifying phrase, leaving the second to the determination of the juvenile court, but we conclude the statute clearly requires SSA to make both determinations.
There is similar language elsewhere in section 366.26 that requires the juvenile court to make a finding about the emotional effect of removal from a caretaker on a child. The court may determine the termination of parental rights to an adoptable child is detrimental if "[t]he child is living with a relative or foster parent who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the *164 physical custody of his or her relative or foster parent would be detrimental to the emotional well-being of the child." (§ 366.26, subd. (c)(1)(D), italics added.) If the juvenile court finds termination of parental rights would be detrimental to an adoptable child because one of the statutory exceptions applies or if it cannot terminate parental rights because it finds reasonable services were not offered to the parents, the statute directs it to order guardianship for the child, preferably with the child's current caretaker. However, "[i]f the child is living with a relative or a foster parent who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian, the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the relative caretaker or foster parents." (§ 366.26, subd. (c)(4)(B), italics added.)
In contrast to the foregoing sections, in Subdivision (k) the Legislature specifically designated the agency as the entity to determine if the child has substantial emotional ties to her caretaker and removal from the caretaker would be seriously detrimental to the child's emotional well-being. There is nothing to indicate the Legislature intended to separate the two prongs of the qualifying language into a determination by the agency and a determination by the juvenile court. In light of the language in the foregoing sections, it is clear the Legislature would have specifically separated the two determinations if it had intended to do so.
The parties agree SSA determined Lauren has substantial emotional ties to Amanda. But it did not determine Lauren's removal from Ananda would be "seriously detrimental" to her well-being. Velda argues such a determination can be inferred from SSA's consistently expressed intent to place Lauren with Velda. We are reluctant to make such an inference, however, in light of the obvious confusion about the applicable law. And if, on remand, SSA determines Lauren's removal from Amanda would not be detrimental, Amanda is entitled to judicial review of that determination at the placement hearing.
Velda argues even if Subdivision (k) applies, Amanda suffered no prejudice because the preference only allows her application to be processed first; it does not create a presumption that Amanda should be placed with her. Velda contends the record is clear the court preferred her. We agree the court preferred Velda to Amanda, but that preference was based largely on Velda's status as a relative. At the hearing, the juvenile court explicitly compared Amanda to Velda, describing its role as that of choosing the best placement for Lauren. But the court's positive comments about Velda emphasized Velda's status as a "close relative" and her ability to provide Lauren "relationships with her young blood cousins," factors that indicated the court's confusion about the applicable law.
The record indicates SSA also preferred Velda because she is a relative. The social worker liked Velda better than Amanda early on, before the application difficulties occurred, and felt Lauren should be placed with Velda because she had known Lauren as an infant and there were other family members in Oregon. If the caretaker preference applies to Amanda, however, her application should have been processed and a home study done before SSA even considered Velda. It is likely SSA would have approved Amanda for adoption if she had been fairly evaluated without being compared to Velda.
If Amanda was entitled to the caretaker preference, her application should have received *165 serious and thorough preferential consideration. And if she was not so entitled, then at least she should have been evaluated for adoptive placement on a level playing field with Velda. This is not what occurred. The juvenile court mistakenly applied the factors to be considered in a temporary relative placement to a determination of which person would be the better adoptive placement. Velda's standing as a relative clearly influenced the court, as indicated by its comments when making findings. We cannot infer, as Velda urges us to do, that remand is useless because the record indicates the court will find removal from Amanda is not detrimental.
III
DISPOSITION
The order placing Lauren with Velda for adoption is reversed. SSA is directed to make explicit determinations as to whether Amanda qualifies for the caretaker preference under Subdivision (k). If SSA determines she does not qualify, the juvenile court shall review the determination using its independent judgment. If the juvenile court finds Amanda does qualify under Subdivision (k), her application for adoption shall be processed and the home study completed before a new placement hearing is held. If she does not qualify under Subdivision (k), the juvenile court shall hold a new placement hearing without according a preference to Velda based on her status as a relative of Lauren. The writ of supersedeas staying the order of the trial court shall dissolve upon issuance of the remittitur.
RYLAARSDAM, Acting P.J., and BEDSWORTH, J., concur.
NOTES
[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
[2] Under section 362.7, a "`nonrelative extended family member' is defined as any adult caregiver who has an established familial or mentoring relationship with the child. The county welfare department shall verify the existence of a relationship through interviews with the parent and child or with one or more third parties." SSA must evaluate the nonrelative extended family member's home and approve or deny the home "pursuant to the same standards set forth in the regulations for the licensing of foster family homes which prescribe standards of safety and sanitation for the physical plant and standards for basic person care, supervision, and services provided by the caregiver.
[3] The designation of "prospective adoptive parent" was added to section 366.26 as subdivision (n) in 2005, taking effect in January 2006. It allows the juvenile court, at the section 366.26 hearing or anytime thereafter, to "designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process." (§ 366.26, subd. (n)(1).) A prospective adoptive parent has the right to a hearing before SSA can remove a child from his or her home unless there is an immediate risk of harm to the child. The child shall not be removed unless the juvenile court finds removal is in the child's best interests. (§ 366.26, subds. (n)(3)(A) & (B).)
[4] The parties apparently assume Amanda's counsel meant subdivision (k) of section 366.26, not subdivision (a).
[5] Cesar V. v. Superior Court (2001) 91 Cal. App.4th 1023, 111 Cal.Rptr.2d 243 (Cesar V.) [before termination of parental rights, the juvenile court must exercise its independent judgment on a placement decision].
[6] Amanda requests this court take additional evidence on appeal (Code Civ. Proc, § 909), consisting of her declaration about events following trial relating to her second adoption application. We will use our authority to take post-judgment evidence "sparingly" and only when "exceptional circumstances" require it. (In re Zeth S. (2003) 31 Cal.4th 396, 405, 2 Cal.Rptr.3d 683, 73 P.3d 541.) The proffered evidence is not helpful in the resolution of the issues before us and will not obviate the need for remand. (Code Civ. Proc, § 909.) Therefore, we decline to exercise our discretion to take additional evidence and deny Amanda's request.
[7] Amanda requests judicial notice of the legislative history of Assembly Bill No. 2982 (1993-1994 Reg. Sess.), which she claims enacted Subdivision (k). But the passage of Assembly Bill No. 2982 (Stats. 1994, ch. 324) did not enact Subdivision (k); it amended section 366.26 in other ways and renumbered certain subdivisions, renumbering subdivision (j) as the current Subdivision (k) without changing the language. Because the proffered documents are irrelevant to the issues on appeal, we deny Amanda's request for judicial notice.
[8] We quote the pertinent parts of section 361.3: "(a) In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: [¶] (1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [¶] (4) Placement of siblings and half-siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002.[¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect, [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child, [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶] (E) Facilitate court-ordered reunification efforts with the parents, [¶] (F) Facilitate visitation with the child's other relatives. [¶] (G) Facilitate implementation of all elements of the case plan, [¶] (H) Provide legal permanence for the child if reunification fails. [¶] However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for precluding preferential placement with a relative. [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) The safety of the relative's home .... (c) For purposes of this section: (1) `Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated .... (d) Subsequent to the hearing conducted pursuant to Section 358, whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child's reunification or permanent plan requirements...."
[9] Section 366.26, subdivision (c)(3) provides: "If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. During this 180-day period, the public agency responsible for seeking adoptive parents for each child shall, to the extent possible, ask each child who is 10 years of age or older, to identify any individuals, other than the child's siblings, who are important to the child, in order to identify potential adoptive parents. The public agency may ask any other child to provide that information, as appropriate. During the 180-day period, the public agency shall, to the extent possible, contact other private and public adoption agencies regarding the availability of the child for adoption. During the 180-day period, the public agency shall conduct the search for adoptive parents in the same manner as prescribed for children in Sections 8708 and 8709 of the Family Code. At the expiration of this period, another hearing shall be held and the court shall proceed pursuant to paragraph (1) or (3) of subdivision (b). For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the child's membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more."'
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17 F.3d 1426
U.Sv.Treglia
NO. 93-1111
United States Court of Appeals,Second Circuit.
Jan 26, 1994
1
Appeal From: D.Conn.
2
AFFIRMED.
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327 F.2d 232
Russell TAYLOR, Appellant,v.UNITED STATES of America, Appellee,
No. 20249.
United States Court of Appeals Fifth Circuit.
January 29, 1964.
John Gregg, Jackson, Miss., Hugh L. Bailey, Winona, Miss., for appellant.
H. M. Ray, U. S. Atty., Oxford, Miss., for appellee.
Before TUTTLE, Chief Judge, and HUTCHESON and GEWIN, Circuit Judges.
PER CURIAM.
1
Taylor appeals from his conviction for the possession of 20 gallons of non-tax paid whiskey in violation of Sec. 5604(a) (1), Title 26 U.S.C.A. He asserts two points of error, (1) that the trial court permitted irrelevant, prejudicial, and unconnected evidence to be submitted to the jury; (2) that the trial court erred in admitting statements of Taylor made as a witness for the defense in a prior case that the statements were a coerced confession.
2
We are convinced that there was no error in admitting the complained of evidence.
3
Affirmed.
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Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00600-CR
Marcel Edgar REYES,
Appellant
v.
The STATE of
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR5449W
Honorable Ray Olivarri, Judge Presiding
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: October 2, 2013
DISMISSED FOR LACK OF JURISDICTION
The trial court imposed sentence in the underlying cause on July 3, 2013. Because
appellant did not file a motion for new trial, the notice of appeal was due to be filed August 2,
2013. TEX. R. APP. P. 26.2(a)(1). Appellant’s notice of appeal was not filed until September 4,
2013.
A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. See Olivo
v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A late notice of appeal may be considered
timely so as to invoke a court of appeals’ jurisdiction if (1) it is filed within fifteen days of the last
04-13-00600-CR
day allowed for filing, (2) a motion for extension of time is filed in the court of appeals within
fifteen days of the last day allowed for filing the notice of appeal, and (3) the court of appeals
grants the motion for extension of time. See id. A motion for extension of time to file the notice
of appeal was due on August 23, 2013. TEX. R. APP. P. 26.3. Appellant filed an untimely motion
for extension of time in the trial court on September 3, 2013; however, appellant did not file a
motion for extension of time in this court.
Because the notice of appeal appeared to have been untimely filed, appellant was ordered
to show cause in writing why this appeal should not be dismissed for lack of jurisdiction. See id.;
see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (out-of-time
appeal from final felony conviction may be sought by filing a writ of habeas corpus pursuant to
article 11.07 of the Texas Code of Criminal Procedure). Appellant’s attorney filed a response,
acknowledging that the appeal was untimely filed. Because the notice of appeal was untimely
filed, this appeal is dismissed for lack of jurisdiction.
PER CURIAM
DO NOT PUBLISH
-2-
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977 F.2d 587
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Henry ANDERSON, Plaintiff-Appellant,v.Richard DAVIS; John Van De Kamp; March Fong Eu; PeterBarton Wilson; California Republican Party,Defendants-Appellees.
No. 91-16943.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 17, 1992.*Decided Oct. 6, 1992.
Before SCHROEDER, WILLIAM A. NORRIS and BRUNETTI, Circuit Judges.
1
MEMORANDUM**
2
The judgment of the district court is affirmed for the reasons set forth in its order of November 26, 1991. This action is precluded by the judgment entered in Anderson v. Eu, Order No. Civ. S-91-0233-DFL (E.D.Cal. May 22, 1991).
3
AFFIRMED.
*
The panel finds this case appropriate for submission without argument pursuant to Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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109 So.2d 721 (1959)
Robert Henry CREW
v.
W. T. SMITH LUMBER CO. et al.
3 Div. 823.
Supreme Court of Alabama.
February 19, 1959.
*722 J. O. Sentell, Jr., Montgomery, for appellant.
Poole & Poole and Wm. Hamilton, Greenville, for appellees.
STAKELY, Justice.
This is an appeal by Robert Henry Crew from a final decree rendered in the Circuit Court of Butler County, in Equity, in which *723 W. T. Smith Lumber Company, a corporation, was complainant and Robert Henry Crew and B. C. Owen were respondents.
The original bill filed by W. T. Smith Lumber Company averred that the complainant was the owner of certain trees and timber growing, standing, lying and being on certain described land. It further averred that complainant obtained title to said timber and the right to remove the same from the land from the owner of the land by deed and that the respondent B. C. Owen is now the owner of that land, subject to the timber conveyance.
It is further averred that B. C. Owen is in the peaceable possession of said land, claiming to own the same in his own right and that no suit is pending to enforce or test the validity of the title to said land, but that the title of the respondent, B. C. Owen, is denied or disputed by respondent, Robert Henry Crew, who claims or is reputed to own or claim some interest in said land or some part thereof.
It is averred in the bill that the complainant "is now engaged in the cutting of the aforesaid timber," and that Robert Henry Crew is interfering with the complainant in the cutting and removing of said timber, and has by threats of personal violence prevented the cutting and removing of same. It is also averred that there is a time limit for cutting and removing the timber and that if complainant is prevented from cutting said timber during said time limit, it will suffer irreparable loss and damage. The bill prays for a decree permanently enjoining the respondent, Robert Henry Crew, from intimidating and interfering in the cutting and removal of the timber, for the quieting of complainant's title to the timber and for general relief.
The original bill when construed most strongly against complainant shows that the only injunctive relief sought is for the purpose of preventing threats and intimidations against agents, servants, employees and contractors of complainant. In this respect the original bill in the instant case differs from the bill in the case of Green v. Mutual Steel Co., Inc., Ala., 108 So.2d 837.
The respondent, B. C. Owen, filed a demurrer, answer and cross bill to the original bill. The cross bill which makes Robert Henry Crew the cross respondent, avers that the cross complainant, Owen, owns and is in the peaceful possession of the land described in the cross bill and that Crew claims or is reputed to claim some right, title or interest in or incumbrance on said land. The cross complainant, Owen, prays for the quieting of title and for general relief.
The respondent, Robert Henry Crew, filed a demurrer to the original bill. There followed a decree by the court overruling the demurrers of both respondents to the original bill.
B. C. Owen amended his cross bill against Crew by adding another aspect, which averred that Owen and Crew are coterminous landowners and that there is a dispute as to the boundary line between their respective lands. The prayer to this aspect is that a true boundary line be determined. This amendment was filed on the day preceding the hearing in open court of the cause and the entering of the final decree. No answer or other pleading to this amendment was filed by the respondent, Robert Henry Crew.
The final decree described the true and correct boundary line between the property of B. C. Owen and the property of Robert Henry Crew. The decree further granted the complainant, W. T. Smith Lumber Company, an extension of time for the cutting and removing of the timber claimed. And finally the decree permanently enjoined the appellant, Robert Henry Crew, from interfering in any way with the cutting and removing of the said timber by the complainant.
I. It is insisted that the lower court erred in overruling the appellant's demurrer to the original bill of complaint filed by W. T. Smith Lumber Company. It does not appear from the bill of complaint *724 on exactly what theory the complainant bases its prayer for a permanent injunction enjoining the respondent, Robert Henry Crew, from intimidating and interfering with the agents, servants, employees and contractors in the cutting and removal of timber from said land. Under the allegations of the bill before us we do not consider that the equity court has jurisdiction to grant such relief. The case of Montgomery & W. P. R. Co. v. Walton, 14 Ala. 207, supports this view. In that case the complainants were building a road over a strip of land to which they had secured the title. The bill of complaint alleged that complainants were prevented from proceeding with their work by the threats of the defendant that he would kill or injure their agents, if they attempted to work on the land. This court after saying that the allegations of the bill show that the complainants have obtained the right of way over the land of the defendant, in denying the jurisdiction of the equity court said:
"The company, then, have the right to go on and construct, and use the road, and the allegations in the bill that the defendant threatens to obstruct them in the use and construction of the road, and threatens personal violence to the agents of the company, if they attempt to erect the road, cannot give this court jurisdiction.
"The rule is too well established to admit of controversy, that equity cannot interpose by way of injunction to restrain the commission of a personal trespass, although it may be threatened."
The rule set forth in the foregoing case has been qualified as shown by the following excerpt from Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657, where the court quoted with approval the following from Port of Mobile v. Louisville & Nashville R. Co., 84 Ala. 115, 4 So. 106, 112:
"* * * The mere fact that an act is criminal does not divest the jurisdiction of equity to prevent it by injunction, if it be also a violation of property rights, and the party aggrieved has no other adequate remedy for the prevention of the irreparable injury which will result from the failure or inability of a court of law to redress such rights. * * *"
In Morris v. Bailey, 261 Ala. 281, 74 So. 2d 447, 448, this Court said:
"We are of the opinion that appellees are not entitled to the permanent injunction prayed for. As ground for injunctive relief, appellees' bill merely states that `respondent is interfering with the complainants' possession of said property and has demanded the said tenants to pay rent for the property to him or remove from the premises. Respondent is seriously jeopardizing complainants' relations with their tenants.' Also, the bill states that `unless the respondent is restrained by the Court, he will continue to interfere with complainants' possession of said property and will harass the complainants.'
"* * * The bill does not state that appellant has trespassed upon the land, in addition to the alleged interference. It is our opinion, however, that the failure to allege any such trespass does not change the remedy available in the instant case. Even if trespass were averred and proved, as well as the alleged interference, a permanent injunction could not be granted in the absence of further allegations and proof. See Deegan v. Neville, 127 Ala. 471, 29 So. 173. * * *"
In the case of Ex parte Hammett, 259 Ala. 240, 66 So.2d 600, the basis of the suit was a telephone conversation where the defendant is alleged to have used abusive and insulting language to the plaintiff. It was held that such language when unaccompanied with any act of trespass or defamation does not give rise to a cause of action. So in the instant case mere threats unaccompanied by trespass does not give rise to a cause of action. Furthermore *725 our cases hold that where a bill has no equity, it will not support an injunction. McHan v. McMurry, 173 Ala. 182, 55 So. 793.
Evidently in an effort to meet the requirements of the foregoing cases, it is alleged in the bill of complaint that irreparable damage will be suffered by the complainant if the injunction prayed for is not granted. But the only facts set out in support of this allegation are that the time allowed for cutting and removing the timber from the land will expire on a certain date and if the complainant is prevented from cutting said timber during the time limit, it will suffer irreparable loss and damage. It is also averred that if the threats and intimidations of respondent, Robert Henry Crew, are not enjoined the complainant will be required to move its mill and machinery and will thereby suffer damages which cannot be reasonably compensated in a court of law. We are unable to determine from the facts alleged why such damages cannot be reasonably compensated in a court of law. Mere averment that irreparable damage will result will avail the pleader nothing unless supported by proper charges of facts. Morris v. Bailey, 261 Ala. 281, 74 So.2d 447; Bowling v. Crook, 104 Ala. 130, 16 So. 131.
We conclude that the equity court had no jurisdiction to grant the injunction prayed for.
Title 47, § 49(1), Code of 1940, 1955 Cumulative Pocket Part, provides that standing timber and trees when owned by any person other than the owner of the land on which they stand are to be deemed chattels and not real property. Obviously trees and timber which have been cut are chattels. Hence, the bill seeks to have title to personal property quieted. Equity has no jurisdiction to quiet or protect title or right to personal property. Bailey v. Folsom, 207 Ala. 329, 93 So. 479; Mobile Towing & Wrecking Co. v. Hartwell, 206 Ala. 7, 89 So. 446.
Since there is no equity in either aspect of the bill, the appellant's demurrer to the bill should have been sustained and the bill dismissed.
III. The question to be considered now is whether or not the cross bill filed by B. C. Owen, a respondent under the original bill against Robert Henry Crew, also a respondent under the original bill, should be allowed to survive the dismissal of the original bill for want of equity.
It is generally recognized that the dismissal of the original bill does not necessarily carry with it the cross bill. The distinction is made that if the cross bill is defensive merely (having no independent equity in itself), dismissal of the original bill dismisses the cross bill. If, however, the cross bill sets up new facts, relating to the same subject matter and prays for affirmative relief in reference to it, and presents a case for equitable cognizance, and shows grounds for equitable relief which uphold the jurisdiction of the court independent of the original bill, the dismissal of the original bill does not carry with it the cross bill. Ex parte Conradi, 210 Ala. 213, 97 So. 569; Faulk & Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450.
We think that there is independent equity in the cross bill and affirmative relief is sought. Hence the cross bill should survive the dismissal of the original bill.
But it is insisted by the appellant that no relief was available to the cross complainant, Owen, under the amendment to the cross bill filed the day preceding the trial of the cause, to which there was no answer or other pleading or on which there was no decree pro confesso. This contention is based on Rule 28(c) of the Alabama Equity Rules (Title 7 Appendix, Code of 1940), which states:
"* * * When an amendment to the bill is filed after the filing of a demurrer, plea, or answer, the defendants *726 shall be allowed twenty days after service of the amendment within which to plead."
The record indicates that the appellant was present at the taking of the testimony and submission of the case. It further appears that the appellant failed to make any objection to the taking of testimony, but rather, that he had testimony introduced in his behalf and joined in the submission of the case.
When the court has jurisdiction of the subject matter and the parties before it, the want of pleading may be waived. In Atkins v. Atkins, 253 Ala. 43, 42 So.2d 650, 653, this court said:
"Appellant insists that the decree appealed from should be reversed for the reason that the cause was not at issue for want of an answer to the bill or a decree pro confesso thereon, and, therefore, not ready for final decree.
"Unquestionably the submission and decree were irregular. Pearce v. Kennedy, 232 Ala. 107, 166 So. 805. But such an irregularity may be waived."
We consider that appellant's failure to make any objection to the trying of the cause, his introduction of evidence, and his joining in submission of the case, constitutes a waiver of the right claimed under Equity Rule 28(c), supra.
The appellant cites the case of Wahouma Sav. Bank v. Southern Plumbing & Heating Co., 220 Ala. 140, 124 So. 388, 391, to support his contention that no relief could be had under the amendment to the cross bill. The Wahouma case, stated, where the appellant failed to insist on an answer to his cross bill or move for a decree pro confesso, that, "The court will not be put in error for ignoring the appellant's prayer for relief under its cross-bill." This case did not intend to do away with the ruling holding that pleadings may be waived, which was set out in the recent case of Atkins v. Atkins, supra.
The appellant insists that the cross complainant, B. C. Owen, failed to show that he was in peaceable possession of the land in controversy, and that such failure to establish peaceable possession "destroyed the jurisdiction of the court over the cause and renders unnecessary a determination of any issue as to the contest of title."
It is unnecessary for this court to determine whether or not cross complainant Owen was in peaceable possession of the said land. The amendment to the cross bill, filed by B. C. Owen and discussed previously, was obviously filed under § 129, subdivision 5, Title 13, Code of 1940, and §§ 2-4, Title 47, Code of 1940, to establish and define an uncertain or disputed boundary line between coterminous landowners. The allegations of the amendment to the cross bill were substantially those required under these statutes. Its allegations show that the parties to the cross bill are coterminous landowners and that there is a dispute as to the true boundary line dividing the cross complainant's land from the land of the respondent, Robert Henry Crew. There can be no question that the jurisdiction of circuit courts as to equity matters includes the power "to establish and define uncertain or disputed boundary lines, whether the bill contains an independent equity or not." Section 129, subdivision 5, Title 13, supra; Whitehurst v. Kilpatrick, 266 Ala. 150, 94 So.2d 868.
The rule is general and well recognized that in a suit in equity to determine a boundary line, the court has authority to determine all questions essential to final adjudication and settlement of the true boundary line. Yauger v. Taylor, 218 Ala. 235, 118 So. 271; Atkins v. Cunningham, 222 Ala. 553, 133 So. 586; Smith v. Rhodes, 206 Ala. 460, 90 So. 349.
The case of Yauger v. Taylor, supra, states:
"The court of equity is not wanting in power to try titles to lands, so *727 far as required in granting full equitable relief. As our cases above discussed fully disclose, this power has been freely exercised in boundary line cases under original chancery powers, whether the controversy involves the location of the true line by muniments of title alone, or the issue also involves claims of adverse possession. This is but an application of the principle that equity determines all matters incident to the exercise of its jurisdiction and the granting of relief. * * *" [218 Ala. 235, 118 So. 274.]
The appellant insists that the trial court erred in describing the line between the appellant and B. C. Owen; that the course of the line decreed by the court to be the true boundary line between the parties' lands differed from the course described in the pleadings. Such difference does not necessarily mean that the court erred in determining the boundary line. The case of Stansell v. Tharp, 245 Ala. 270, 16 So.2d 857, 859, states that,
"If [the] complainants do not satisfactorily show that their contention is correct as to the true line, the cause is not due to be dismissed, nor does it necessarily result in finding according to the contention of respondent; but the court will proceed to find the true line, whether it is as either party contends. They may both be wrong in respect to their contentions."
After carefully examining the record we consider that the line determined by the lower court as the true boundary line between the cross complainant, Owen, and the respondent, Crew, was supported by the evidence. Furthermore the rule is recognized that where the cause was heard ore tenus, the lower court's decree will be upheld on appeal unless it is palpably erroneous or manifestly unjust. Grayson v. George, 226 Ala. 106, 145 So. 427, and cases cited therein.
We therefore conclude that the portion of the lower court's decree which determined the true boundary line between the lands of the cross complainant, Owen, and the respondent, Crew, and quieted title thereto, was correct.
Since the demurrer to the original bill of complaint should have been sustained, no relief should have been granted under said original bill. The relief sought under the original bill of complaint and granted by the lower court was an injunction to enjoin Robert Henry Crew from interfering with complainant's cutting and removing of certain timber and an extension of time in which to cut and remove said timber from the disputed land. This relief could not be granted under the general prayer of the cross bill filed by B. C. Owen because such relief would be inconsistent with the allegations of said cross bill. Owen v. Montgomery, 230 Ala. 574, 161 So. 816; Sewell v. Walkley, 198 Ala. 152, 73 So. 422. Therefore this portion of the final decree must be reversed.
The remainder of the final decree is due to be affirmed.
Affirmed in part and in part reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.
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923 F.2d 1270
59 USLW 2507, Fed. Sec. L. Rep. P 95,780
BOARD OF TRADE OF THE CITY OF CHICAGO and Chicago MercantileExchange, Petitioners,v.SECURITIES AND EXCHANGE COMMISSION, Respondent,andDelta Government Options Corporation, Intervening Respondent.
No. 90-1246.
United States Court of Appeals,Seventh Circuit.
Argued Dec. 4, 1990.Decided Feb. 4, 1991.Rehearing and Rehearing En BancDenied April 2, 1991.
Mark D. Young, Mitchell F. Hertz, Kirkland & Ellis, Washington, D.C., Garrett B. Johnson, Robert Steigerwald, John H. Stassen, Kirkland & Ellis, Chicago, Ill., for Bd. of Trade of the City of Chicago.
Jerrold E. Salzman, Freeman, Freeman & Salzman, Chicago, Ill., for Chicago Mercantile Exchange.
Daniel L. Goelzer, Anne Chafer, Douglas E. Crow, Joan A. McCarthy, Paul Gonson, S.E.C., Washington, D.C., for S.E.C.
Harold C. Hirshman, Stuart Altschuler, Sonnenschein, Nath & Rosenthal, Chicago, Ill., Catherine A. Ludden, Morgan, Lewis & Bockius, New York City, for Delta Government Options Corp.
Before POSNER and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
POSNER, Circuit Judge.
1
This case is before us for the second time; familiarity with our first opinion, 883 F.2d 525 (7th Cir.1989), is presumed. The question we must answer this time is whether a system for trading options on federal government securities that has been put together by RMJ, a broker; Delta, a clearing agency; and SPNTCO, a bank (the last playing an essentially custodial role unnecessary to discuss further) is an "exchange" within the meaning of section 3(a)(1) of the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78c(a)(1), in which event it must register with the Securities Exchange Commission. The Commission, faced as it was merely with an application by Delta to register as a clearing agency under section 17A(b) of the Act, 15 U.S.C. Sec. 78q-1(b), thought it unnecessary to decide whether the Delta system--as we shall call the trading system put together by the three firms--is an exchange. We disagreed in our first opinion. We held that the Commission could not, as it had done, approve Delta's application without deciding whether the system whose trades it intended to clear could lawfully operate without registering as an exchange. We therefore remanded the case to the Commission for a determination of the system's status. The Commission held that it was not an exchange, and therefore adhered to its decision to register Delta as a clearing house. The Board of Trade and the Chicago Mercantile Exchange again petition for review. They are concerned about competition from the Delta system. We held in our first opinion that this concern gives them standing to challenge the Commission's decision to allow Delta to become a registered clearing house.
2
An ingenious device for facilitating the purchase and sale of securities, the Delta system works roughly as follows. (We refer the reader to our previous opinion for a more complete and more precise description.) The system specifies the form of option contract that shall be the security traded. Some of the terms of the contract are fixed, such as the maximum term of the option and the day of the month on which it expires. Others are left open to be negotiated by the parties, such as the premium, the exercise price, and the month of expiration. The traders, who consist not only of securities dealers but also of banks, pension funds, and other institutional investors, communicate their buy or sell offers to RMJ, which enters the offers in the system's computer. Delta, the clearing agency, monitors the computer and when it sees a matching buy and sell offer it notifies the traders that they have a deal (but doesn't tell them with whom) and it takes the necessary steps to effectuate the completed transaction. The interposition of Delta between the traders protects the anonymity of each from the other as well as guaranteeing to each that the other will honor the terms of the option traded.
3
The fixing of some standardized terms so that one trader is not offering to buy apples and the other offering to sell oranges; the guarantees of anonymity and performance; the pooling of buy and sell offers in a single (electronic) place--these essential features of the Delta system are methods for creating a market that will bring together enough buy and sell offers to enable transacting at prices that will approximate the true market values of the things traded. Does this make the Delta system an exchange, that is, "any organization, association, or group of persons ... which constitutes, maintains, or provides a market place or facilities for bringing together purchasers and sellers of securities or for otherwise performing with respect to securities the functions commonly performed by a stock exchange as that term is generally understood"? There is no doubt that the Delta system creates an electronic marketplace for securities traders, and the petitioners say that no more is required to establish that the system must register as an exchange. The Commission's reply emphasizes the words "generally understood." The Delta system is not--not quite, anyway--what is generally understood by the term "stock exchange." It lacks a trading floor. It lacks specialists, who enhance the liquidity of an exchange by using their own capital to trade against the market when the trading is light, in order to buffer price swings due to the fewness of offers rather than to changes in underlying market values. Not all conventional exchanges have specialists, but those that do not have brokers who trade for their own account as well as for their customers' accounts, and the additional trading enhances the market's liquidity. It is fitting that such brokers are called "market makers." Securities Exchange Act of 1934, Sec. 3(a)(38), 15 U.S.C. Sec. 78c(a)(38). RMJ does not trade for its own account in the Delta system.
4
The petitioners reply that the words "generally understood" apply only to functions other than the central one of "provid[ing] a market place or facilities for bringing together purchasers and sellers of securities." In other words they want us to put a comma after "sellers of securities." This done, they argue as follows: the statute defines exchange as any entity that provides a facility for bringing together purchasers and sellers of securities, whether or not in providing that facility it is performing an exchange function as the term exchange is generally understood; the Delta system provides a facility for bringing together purchasers and sellers of securities; therefore Delta is an exchange.
5
Unless the petitioners can be permitted to add their own punctuation to the statute, we do not think that their reading is any more persuasive, even at the literal level, than the Commission's reading, which places the provision of a market place or of other facilities for bringing securities traders together among those functions performed by a stock exchange as the term is generally understood, and thus subjects "provid[ing] a market place or facilities" to the qualifying force of "generally understood." Moreover, if the petitioners are to be consistent in advancing a "literal" reading of the statute, they should read "bring together" literally too. But even an admitted exchange does not literally "bring together" purchasers and sellers of securities, except when the floor brokers are trading for their own account. It does not bring them into physical propinquity. And a broker's waiting room, which does bring purchasers and sellers of securities into physical propinquity, is not an exchange. We therefore question whether the petitioners have a coherent approach to the interpretation of the statute.
6
The consequence of their interpretation must also give us pause. The Delta system cannot register as an exchange, because the statute requires that an exchange be controlled by its participants, who must in turn be registered brokers or individuals associated with such brokers. Securities and Exchange Act of 1934, Secs. 6(b)(3), (c)(1), 15 U.S.C. Secs. 78f(b)(3), (c)(1); Securities Exchange Act Release No. 21439, 49 Fed.Reg. 44577, 44578 (Oct. 31, 1984). So all the financial institutions that trade through the Delta system would have to register as brokers, and RMJ, Delta, and the bank would have to turn over the ownership and control of the system to the institutions. The system would be kaput. One must question an interpretation of the definitional provision that would automatically prevent competition for the exchanges from an entity that the exchanges are unable to show poses a threat to the safety of investors by virtue of not being forced to register and assume the prescribed exchange format. As the Commission stresses, each of the three firms that constitute the Delta system is comprehensively regulated; no regulatory gaps are created by declining to place the system itself in the exchange pigeonhole; the only thing that such classification would do would be to destroy the system.
7
What is true is that the Delta system differs only in degree and detail from an exchange. Its trading floor is a computer's memory. Its structure is designed to encourage liquidity, though not to the same extent as the structure of an exchange is. Section 3(a)(1) is broadly worded. No doubt (considering the time when and circumstances in which it was enacted) this was to give the Securities and Exchange Commission maximum control over the securities industry. So the Commission could have interpreted the section to embrace the Delta system. But we do not think it was compelled to do so. The statute is not crystal clear; on the contrary, even when read literally, which is to say without regard to context and consequence, it does not support the petitioners' argument without repunctuation of the statute and without overlooking the impossibility of a consistently literal reading. An administrative agency has discretion to interpret a statute that is not crystal clear. Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984). The Securities and Exchange Commission can determine better than we generalist judges whether the protection of investor and other interests within the range of the statute is advanced, or retarded, by placing the Delta system in a classification that will destroy a promising competitive innovation in the trading of securities. Of course, if the statute were unambiguous, the Commission would have to bow. Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986); American Bankers Ass'n v. SEC, 804 F.2d 739, 744 (D.C.Cir.1986). It has not been given the power of statutory revision. But in this case there is enough play in the statutory joints that its decision must be
8
AFFIRMED.
9
FLAUM, Circuit Judge, dissenting.
10
No doubt there is some ambiguity in the statutory definition of "exchange." The ambiguity lies in the broad formula Congress adopted: "as that term is generally understood." On one point, however, the statute is not ambiguous. An organization that "constitutes, maintains, or provides a market place or facilities for bringing together purchasers and sellers of securities" is an exchange. The statute makes it unnecessary to speculate whether bringing together buyers and sellers is one of the "generally understood" functions of an exchange; it makes that function a determinative characteristic, sufficient unto itself to confer exchange status. Entities that "otherwise " perform the functions of a stock exchange--whatever those may be--may also constitute exchanges, but the statute leaves no doubt that bringing together buyers and sellers is the principal function of an exchange. Since--as the majority acknowledges--we cannot ignore an unequivocal statutory mandate, I respectfully dissent from the court's decision to defer to an SEC interpretation that does.
11
The majority maintains, as did the SEC, that a literal reading of the "bringing together" language is too broad. It would, they assert, bring entities like brokers and dealers within the ambit of the definition, raising the nonsensical prospect that they, too, would have to register as exchanges. Congress foreclosed that possibility, however, by defining "brokers" and "dealers" quite differently. A "broker" "is in the business of effecting transactions in securities for the account of others," Securities Exchange Act Sec. 3(a)(4), 15 U.S.C. 78c(a)(4); they are, in short, agents who place orders for principals, their customers. See Securities Indus. Ass'n v. Board of Governors of the Federal Reserve Sys., 468 U.S. 207, 218, 104 S.Ct. 3003, 3009, 82 L.Ed.2d 158 (1984) ("a broker executes orders for the purchase or sale of securities solely as agent"). Exchanges facilitate securities transactions, but do not serve as agents on behalf of the parties to such transactions. Nor do exchanges buy or sell securities for their own accounts, which distinguishes them from "dealers." See Securities Exchange Act Sec. 3(a)(5), 15 U.S.C. Sec. 78c(a)(5). We may safely assume that, when Congress adopted specific definitions for brokers and dealers, it did not intend the definition of exchange to apply to them as well. See Colautti v. Franklin, 439 U.S. 379, 392 n. 10, 99 S.Ct. 675, 684 n. 10, 58 L.Ed.2d 596 (1979) (as a rule, a definition which declares what a term means excludes any meaning not stated).
12
We may also assume--as have all parties to this litigation--that Congress intended the definition of exchange to include the New York Stock Exchange, and to exclude the over-the-counter (OTC) market. As the majority observes, buyers and sellers do not come into physical proximity on the floor of the New York Stock Exchange; obviously, the "bringing together" of buyers and sellers refers not to their actual presence but to their offers to trade. Those offers don't meet in a broker's waiting room, but they do meet on the New York Stock Exchange trading floor, and on the Delta System's computer screens. By contrast, buy and sell offers in the OTC market come together only through dealers who interpose themselves between the parties, buying from sellers and selling to buyers; parties rarely negotiate directly. "The OTC market is therefore known as a 'dealer' market." Poser, Restructuring the Stock Markets: A Critical Look at the SEC's National Market System, 56 N.Y.U.L.Rev. 883, 895 (1985).
13
What distinguishes the New York Stock Exchange, and other stock exchanges, from the Delta system, the SEC contends, is that a stock exchange provides a "continuous market," that is, one that provides liquidity. As the majority correctly notes, however, the Delta system is designed to promote liquidity. Participation in the system is limited to those investors "likely to engage in significant trading of Option Contracts ... upon admission to the System." Certain options terms are standardized, and the system includes a $200 million credit enhancement facility that it maintains can "support about $8 billion of option trading." Delta touted itself in announcements as a "centralized, liquid system for the trading of options on U.S. government securities," and while Delta's characterization does not bind us, it is probative of the system's design.
14
The SEC counters that the system's "participation criterion ... is a far cry from the market making obligations that exist on exchanges to ensure liquidity," Brief at 26, suggesting that it views the absence of "market makers" and "specialists" for the securities traded on the system as the telltale sign that the system is not an exchange. (This is also the only distinction, other than the absence of a tangible trading floor, cited by the majority.) Indeed, the SEC has long maintained that the specialist system is "an essential mechanism for maintaining continuous auction markets." Securities Exchange Act Release No. 7432 (Sep. 24, 1964) (endorsing conclusion of the Report of Special Study of the Securities Markets, H. Doc. No. 95, 88th Cong., 1st Sess., Pt. 2, at 167 (1963)); see also Securities and Exchange Commission, Report on the Feasibility and Advisability of the Complete Segregation of the Functions of Dealer and Broker 41 (1936) ("the specialist has an important incentive to maintain a fair and orderly market").
15
The SEC's emphasis on the market making function seems misplaced, however, because exchanges exist to eliminate the need for market makers by bringing buyers and sellers together directly. LTV Federal Credit Union v. UMIC Gov't Sec., 523 F.Supp. 819, 834-35 (N.D. Tex.1981), aff'd, 704 F.2d 199 (5th Cir.), cert. denied, 464 U.S. 852, 104 S.Ct. 163, 78 L.Ed.2d 149 (1983). Specialists are permitted to trade only when their activity is "reasonably necessary" to maintain a fair and orderly market--see New York Stock Exchange Rule 104 (specialists' negative obligation); Rule 104.10(2) (specialists' affirmative obligation)--that is, when the exchange is illiquid. Specialists are not parties to the vast majority of trades on stock exchanges. As noted, it is in the OTC market that virtually every trade depends on the availability of a market maker for its execution.
16
The irony of the SEC's position was not lost on the petitioners. The Exchange Act defines a "market maker" as "any dealer who ... holds himself out (by entering quotations in an inter-dealer communications system or otherwise) as being willing to buy and sell such security for his own account on a regular or continuous basis," Sec. 3(a)(38), 15 U.S.C. Sec. 78c(a)(38), leading the petitioners to submit that, by the SEC's interpretation, OTC market makers would have to register as exchanges. (The SEC protests that OTC market makers don't centralize trading, but neither do specialists on regional exchanges; trading in their stocks is centered in New York.) Perhaps recognizing the incongruity of pointing to the availability of market makers, the SEC ultimately disavowed reliance on this distinction as the critical determinant of whether a market constitutes an exchange, stating that "[n]o sponsor of a System can avoid exchange registration simply by avoiding particular characteristics of traditional exchange markets such as affirmative market making obligations or a limit order book." Order Granting Temporary Registration as a Clearing Agency, Exchange Act Release No. 34-27611, at 50 n. 100 (Jan. 12, 1990).
17
The SEC's interpretation of exchange status appears to turn, instead, on the volume of trading in a market. The Commission noted that "[i]t is certainly possible that even a system such as the RMJ System might attract a level of buying and selling interest to develop into a continuous or regular auction market." Id. at 49-50 (emphasis added). In its brief, however, the SEC cautions against associating volume with liquidity. The SEC defines liquidity as the ability of an exchange to give traders a reasonable expectation that they will be able to execute their orders at the prices being quoted when the order is placed. "It is not difficult," the Commission submits,
18
to envision a trading system that provides a centralized, liquid marketplace to its participants for the particular securities traded on the system, but, due either to limitations on the class of individuals that may participate or to the subset of securities that may be traded on the system, has a limited overall volume of trading and a de minimis impact on the securities market as a whole.
19
Brief at 30-31.
20
This is true, as far as it goes. But liquidity and volume are interrelated, and it is useless to talk about one without considering the other. A low-volume exchange can assure liquidity only if its prices mirror the high-volume activity of another exchange. The market makers on the regional stock exchanges, for example, typically engage in "derivative pricing"--using the price quotations of the specialist on the primary exchange--rather than offering their own competitive price quotations. See L. LOSS & J. SELIGMAN, SECURITIES REGULATION 2551-52, 2560-62 (1989); Poser, supra, at 893. They are not market makers in the true sense of the term, for their prices are determined elsewhere. They compete on service, not price; their principal function, like that of the Delta System, is to execute trades. To the extent that its trading volume increases, the trades on the System may well begin to have an impact on prices, but as the Commission itself observed, with larger volume liquidity increases, and the absence of market makers becomes less worrisome.
21
In any event, we can be certain that volume plays no role in the determination of whether a market constitutes an exchange, for Congress created a limited volume exemption from registration for markets meeting the statutory definition of an "exchange" on which trading volume does not exceed specified levels. See Securities Exchange Act Sec. 5, 15 U.S.C. Sec. 78e. The SEC's definition of exchange would render that exemption meaningless, for low-volume markets would not qualify as exchanges and would have no need to avail themselves of the exemption.
22
The more fundamental objection to the Commission's emphasis on liquidity lies in the Brady Report's observation that liquidity is "something of an illusion." See Report of the Presidential Task Force on Market Mechanisms 57 (1988). In today's trading environment, no market, whether or not an exchange, can assure liquidity in all circumstances. If exchange status turns on the ability of a trading system to provide liquidity, the New York Stock Exchange isn't an "exchange" under the Securities Exchange Act either. If it turns on the design of the system, the Delta System, like the New York Stock Exchange, qualifies.
23
The majority's interpretation is, it acknowledges, colored by its view that the costs of requiring the system to register as an exchange will outweigh the benefits gained. I recognize that regulation exacts costs, and that regulating the System as an exchange may make the endeavor commercially unattractive. I am not convinced, however, that Delta and its partners could not find some way to protect their proprietary interests in the System. Exclusion is not the sole means of protecting a property interest; presumably the System's proprietors could license or sell the technology to the members. Moreover, the System is going to have to establish competitive rates in order to attract customers (there isn't another organized system for trading options on government securities, but the futures markets provide a good substitute); allowing participants a say as to fees (as it would have to do if registered as an exchange) seems unlikely to spell the System's doom.
24
Obviously, the Chicago Board of Trade and the Mercantile Exchange did not bring this lawsuit to protect investors. The System represents competition for them, and they would like to hamstring it with as much regulation as possible. Although their potential economic injury is enough to give them standing to bring this case, see Board of Trade v. Securities Exchange Comm'n, 883 F.2d 525, 532-33 (7th Cir.1989), the majority seems to consider it also a reason to decide the case against them. If, asks the majority, requiring the System to register as an exchange accomplishes nothing but restricting competition for the futures exchanges, why should we bother?
25
We might ask the same question about the New York Stock Exchange. Exchanges must enforce compliance by their members with their own rules and those of the SEC. Securities Exchange Act Sec. 19(g)(1), 15 U.S.C. Sec. 78s(g)(1). Nevertheless, every member of an exchange must also register with the SEC as a broker or dealer, Sec. 3(a)(3)(A), 15 U.S.C. Sec. 78c(a)(3)(A), and the SEC may bypass the exchange to discipline brokers and dealers directly. Securities Exchange Act Sec. 15(b)(4)-(6), 15 U.S.C. Sec. 78o(b)(4)-(6). Even when Congress enacted the 1975 Securities Acts Amendments, with the object of establishing a national market system and increasing competition between stock exchanges and the OTC markets, Congress saw fit to maintain and supplement the regulatory authority of exchanges and to preserve the system of redundant regulation it provided for when it created the Securities Exchange Commission in 1934. See generally S.Rep. No. 75, 94th Cong., 1st Sess. (1975).
26
The SEC itself provides the reason for requiring registration of the System as an exchange. As the Commission observed, "the System is made up of institutional investors who trade for their own accounts with no obligation to conduct their trading in a manner that will ensure a fair and orderly market." Brief at 19-20. But the fact that the System is a private enterprise in which only sophisticated entities will participate is, in my judgment, largely irrelevant. The System's participants may not need the protections of an exchange, but the general public may. The Delta System has the potential to handle a huge volume of trades in government options, and its business is likely to have a direct impact on the underlying market for these securities. As the 1987 and 1989 market "breaks" dramatically illustrated, derivative markets subject to less regulation can drive the prices in less efficient primary markets (efficiency being, of course, the price of stability). See Brady Report at 15-42, 55-57. The Commission's emphasis on the institutional nature of the System seems to discount the linkage between derivative and primary markets.
27
Exchanges are required to impose rules on their participants "designed ... in general to protect investors and the public interest." Securities Exchange Act Sec. 6(b)(5), 15 U.S.C. Sec. 78f(b)(5); see also Securities Exchange Act Sec. 6(f), 15 U.S.C. Sec. 78f(f) (to maintain fair and orderly markets, Commission may require those trading on an exchange to comply with exchange rules). Exempting the System from exchange registration will create, in effect, another futures market in government securities (hence the opposition of the CBOT and the Merc), one subject to even less regulation than the futures exchanges. Exempting the System may, therefore, exacerbate the problems inherent in the uneasy coexistence of primary and derivative markets under different regulatory regimes. On the other hand, it may be that the way to greater stability in the markets is not more regulation but more efficiency. This is a question for Congress to decide, and it is one that has recently received a great deal of Congressional attention. See, e.g., Hearings on Financial Regulation and Jurisdictional Issues Before the Subcomm. on Securities of the Senate Comm. on Banking, Housing, and Urban Affairs, 100th Cong., 2d Sess. (Mar. 29, 1990). The Commission has wide discretion to interpret the securities laws. But it is not free to disregard an unambiguous provision, and Congress was crystal clear that an organization "bringing together purchasers and sellers of securities" constitutes an exchange. Until Congress concludes that its definition of exchange is antiquated and superfluous, I am not prepared to disregard it.
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2517
JA’LIN WILLIAMS,
Plaintiff-Appellant,
v.
NORFOLK SOUTHERN CORPORATION and NORFOLK SOUTHERN
RAILWAY COMPANY,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:15-CV-00283 — John E. Martin, Magistrate Judge.
____________________
ARGUED FEBRUARY 8, 2019 — DECIDED MARCH 19, 2019
____________________
Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.
BARRETT, Circuit Judge. Ja’Lin Williams was struck by a
train while he and his friends were running away from a po-
lice officer. He sued the railway, which he believed was at
fault for his injuries. But the district court granted summary
judgment to the railway, concluding that Williams was barred
2 No. 18-2517
from recovery by Indiana law because he was more than 50%
at fault for the accident. We agree and affirm.
I.
Seventeen-year-old Ja’Lin Williams was with a group of
friends on Whihala Beach in Whiting, Indiana when a police
officer told them that they had to leave or else they would be
arrested for trespassing. The young men stayed behind for a
few minutes after the officer left, but when he returned in his
squad car, they fled on foot.
The young men approached five sets of train tracks as they
were running. The set of tracks closest to them had warning
gates on both sides to stop eastbound and westbound road
traffic. The remaining four sets of tracks shared a pair of
warning gates that stopped eastbound and westbound road
traffic. Of those four, the two sets of tracks farthest from the
young men were owned and operated by Norfolk Southern
Corporation and the Norfolk Southern Railway Corporation
(collectively “Norfolk”).
As the young men were making their way across the
tracks, one of Norfolk’s trains approached from the southeast
on the rail line farthest from them. The first boy, Antwion
McGee, saw the train and sped up to cross its path before it
reached him. The second, Javante Toran, saw the train and
stopped in order to avoid a collision. Williams, on the other
hand, did not look up and continued running. Unfortunately,
his timing put him right in the train’s path, and it hit him.
Williams sued Norfolk. Norfolk moved for summary
judgment. The district court granted Norfolk’s motion, hold-
ing that Williams was more than 50% at fault as a matter of
No. 18-2517 3
law and thus could not recover under Indiana law. Williams
filed this appeal.
II.
The Indiana Comparative Fault Act governs this diversity
case, and it bars recovery in actions based on fault if the claim-
ant’s fault exceeds 50% of the total fault. IND. CODE § 34-51-2-
6 (2013). The district court concluded that there was no dis-
pute of material fact because no fact finder could reasonably
conclude that Williams bore 50% or less of the relative fault.
We agree.
Williams insists that his own testimony, not to mention the
testimony of his friends, illustrates that there are material dis-
putes of fact that justify sending this case to a jury. He empha-
sizes that he did not recall seeing flashing lights ahead of him
as he ran, nor the light of the train itself. He states that he did
not hear the train’s horn, bells, or any other sounds indicating
that a train was approaching. Toran and McGee likewise pro-
fess not to have observed various warnings that a train was
coming.
This testimony might have created a material issue of fact
if this case were a battle of eyewitnesses. But “[w]hen oppos-
ing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007). And here, the young men’s
testimony is blatantly contradicted by video evidence. The
video plainly shows that the train’s horn and bells were
sounding and that its lights were on. It shows that, before
reaching the train, the young men ran past flashing lights.
4 No. 18-2517
And it shows that the gate on the other side of the track was
down, that it had lights that faced the young men, and that
those lights were flashing. We thus treat these facts as estab-
lished and analyze the extent of Williams’s fault in light of
them.
Reales v. Consolidated Rail Corp. controls. 84 F.3d 993 (7th
Cir. 1996). There, a girl was struck by a train and killed. The
court held that she was more than 50% at fault as a matter of
law because it was undisputed that the crossing gates were
down, the flashing lights were activated, witnesses heard the
train sound, and witnesses saw her hesitate but then proceed
around the gate. See id. at 997. Like the plaintiff in Reales, Wil-
liams had more than sufficient warning of the train’s ap-
proach. He simply failed to heed it.
The fault for the collision therefore lies with Williams. He
failed to take even the smallest of precautions—looking up in
the face of the warnings—to avoid being struck. And Indiana
law establishes that a train operator has no duty to reduce a
train’s speed if he sees a person crossing. Ohio & M. Ry. Co. v.
Walker, 15 N.E. 234, 237 (Ind. 1888). He is entitled to presume
that the person will take the necessary steps to avoid injury,
unless he has “good reason to suppose that such persons are
unconsciously in peril, or disabled from avoiding it.” New
York Cent. R. Co. v. Casey, 14 N.E.2d 714, 717 (Ind. 1938). Wil-
liams suffered from no such disability, and given the many
warnings that were present, the train crew was entitled to pre-
sume that he was not unconscious of the train’s approach. It
didn’t become clear that Williams wouldn’t stop—like his
friend Toran did—until the moment before the collision, and
by then it was far too late to meaningfully slow the moving
train. Under Indiana law, Williams is more than 50% at fault
No. 18-2517 5
for his injuries. We therefore AFFIRM the district court’s
grant of summary judgment to Norfolk.
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468 F.2d 1270
STATE OF OREGON, By and Through its STATE HIGHWAYCOMMISSION, composed of Glenn L. Lackson, KennethN. Fridley and David B. Simpson,Plaintiff-Appellant,v.TUG GO-GETTER, her engines, apparel, equipment, et al.,Defendants-Appellees.Petition of SAUSE BROS. OCEAN TOWING CO., Inc., acorporation, for Exoneration from or Limitation ofLiability, as the Owner of the TugGo-Getter, Petitioner,
Nos. 25320, 25326 and 25342.
United States Court of Appeals,Ninth Circuit.
Aug. 7, 1972.Rehearing Denied in Nos. 25320 and 25326 Oct. 5, 1972.
William F. White (argued), of White, Sutherland & Gilbertson, Portland, Or., Lee Johnson, Atty. Gen., Portland, Or., George E. Rohde, Chief Counsel, Salem, Or., Samuel L. Holmes, of Angell, Adams & Holmes, San Francisco, Cal., for plaintiff-appellant.
Johnathan A. Ater (argued), Carl R. Neil, of Lindsay, Nahstoll, Hart, Dafoe & Krause, Portland, Or., Walter H. Evans Jr. (argued), William D. Peek, Portland, Or., for defendants-appellees.
Before CHAMBERS, HAMLEY and MERRILL, Circuit Judges.
MERRILL, Circuit Judge:
1
The Coquille River empties into the Pacific Ocean at Bandon, Oregon. Some two miles upriver from Bandon, Bullard Bridge crosses the river. The bridge is owned, maintained and operated by the State of Oregon as part of the state's highway system. On October 4, 1966, the tug, Go-Getter, towing the barge, J. Whitney, was making an upstream passage through the draw span of Bullard Bridge when the starboard bow of the barge collided with the south channel pier of the bridge, damaging the web wall and upstream column of the pier. Repair expense in the sum of $191,938.70 was incurred.
2
Oregon brought this suit to recover damages. Named as defendants were the tug Go-Getter in rem; Sause Bros. Ocean Towing, Inc., owner of the Go-Getter; Captain Charles May, who was operating the Go-Getter at the time of the collision, and Olson Towboat Co., employer of May.1 Judgment was entered against all parties. The court, 299 F. Supp. 269, found the defendants to represent two separate interests and divided damages between those two interests: Sause Bros. and the Go-Getter on the one hand; Olson Towboat and Captain May on the other.
3
Appeals have been taken by Oregon, by Sause Bros. and by Olson Towboat. Oregon protests the District Court reduction of its recovery by application of the rule against "new for old." Sause Bros. appeals the District Court's refusal to limit its liability to the value of the Go-Getter. Olson Towboat appeals the court's determination that Captain May's services aboard the Sause Bros. tug were within the scope of his employment by Olson Towboat.
4
On October 4, 1966, the barge J. Whitney, owned by Oliver J. Olson Co. entered Bandon Harbor en route to the Olson Co.'s lumbering operations at Rogge's Mill on the Coquille River. The barge was towed by the Jean Nelson, a tug owned by Olson Towboat Co., which company was in turn owned, to substantial extent at least, by the Oliver J. Olson Co. Since the Jean Nelson had too deep a draft to navigate the river, officials of both the Olson Co. and the Towboat Co. had arranged with Sause Bros. to have one of its towboats take the boat upriver to Rogge's Mill. In Bandon Harbor the change of tugs was made. Captain May of the Jean Nelson had formerly worked as a tugboat captain for Sause Bros. Before change of tugs was made Curtis Sause, vice-president of Sause Bros., instructed the captain of the Go-Getter that Captain May was to be in charge of taking the Go-Getter upstream. The crew of the Jean Nelson transferred from that tug to the barge, apparently in accordance with company practice, and also made passage upstream to aid in making the barge fast at its destination. Captain May was at the controls when the Go-Getter and barge passed under Bullard Bridge. Apparently the collision occurred when Captain May, inadvertently and unknown to himself, bumped into the clutch and knocked the vessel out of gear at a critical time during the maneuver.
OREGON'S APPEAL
5
Bullard Bridge, built of concrete and steel, was completed in 1954. It had been in service for twelve years at the time of the collision. There was no evidence of deterioration (save as to the piers). Both the location and plans for the bridge had been approved by the United States Corps of Engineers in 1951. A minimum width of seventy-five feet between channel piers was specified in order to accommodate passage of vessels. Notice of application for approval had been given and expressions of interested parties had been solicited. No objection to the location, size or design of the bridge had been registered. In 1954 the Corps of Engineers certified the completed bridge as conforming to approved plans.
6
The piers of Bullard Bridge were not provided with fenders, dolphins or pilings to absorb impact. In 1968 and for several years prior thereto the principal river traffic consisted of lumber barges in transit to and from Rogge's Mill. In 1966 these barges were sixty-eight feet wide and passage under the bridge frequently entailed scraping and bumping against the piers.
7
Based on these facts, experts for the defendants expressed the opinion that the piers had a life expectancy independent of that of the remaining bridge structure because of the probability of major and minor damage from the barge traffic. Further they asserted that the piers were capable of replacement independent of the remaining structure.
8
In light of these facts and accepting the expert testimony the District Court found that the channel piers had a life expectancy of not more than thirty years "because of the hazards of severe damage due to the narrow passage between the two piers and the lack of pier protection." Since the piers had already enjoyed twelve years of life, the court applied a 40 per cent (12/30ths) depreciation factor and reduced recovery accordingly.
9
We hold this to be error.
10
The "new for old" rule seeks to avoid giving the injured person the windfall of providing him with a new replacement for that which was old and depreciated and would in normal course have to be replaced in any event.2
11
The rule has no application here.
12
In J. W. Paxson Co. v. Board of Chosen Freeholders, 201 F. 656, 663 (3d Cir. 1912), an iron draw span of a bridge was damaged when a barge struck it. The span was replaced. The court stated:
13
"The plaintiff was compelled, by the negligence of the defendant, to build a new structure, which, as a new structure, was possibly, though not certainly, more valuable than the old one. But the old structure sufficed for the purposes of the plaintiff, and the plaintiff was damaged by being compelled to procure a new structure in place of the old one, for the contract price of which it was obliged to pay. The sufferer by the negligence of the defendant cannot be compelled to perform the impossible task of re-creating the old span, without buying a new one, or make a nice computation of the difference in value between the old one and the new. The plaintiff did not need a new span. The old one was sufficient, and the county was damaged by being compelled to incur the cost of a new one."3
14
The same rule was more recently applied in United States v. Ebinger, 386 F.2d 557 (2d Cir. 1967), the court recognizing, however, that the rule may well be otherwise "where the damaged part was scheduled for early replacement, long before the expiration of the useful life of the whole."
15
Here the pier was an integral part of the bridge structure, not a separate part that through normal wear and tear would require independent replacement during the life of the structure. We cannot accept the assertion that the hazards of river traffic gave the piers an independent life expectancy of their own. Those hazards cannot in this case be imposed upon the owner of the bridge but must be assumed by the vessel creating the hazard. Government approval of the design and specifications of the structure constituted an authoritative determination that in the public interest river traffic could be limited to those vessels that could navigate the river without endangering the bridge. Oregon had every right to insist that river traffic avoid contact with its bridge and refrain from using the piers as though they were a ferry slip. While Oregon may not have insisted on this in the past, this does not mean that the state must continue to suffer such practices in the future and thus reduce the bridge's life expectancy.
16
Under these circumstances it is of no significance that the pier could be separately repaired or even replaced. (So could a single wall of a building.) The repair or replacement adds nothing of substance to the over-all value of the structure of which it is an integral part and the life expectancy of the entire structure has not been extended.
17
We conclude that Oregon is entitled to unreduced judgment in the sum of $191,938.70. Judgment must be modified accordingly.
SAUSE BROS.' APPEAL
18
On appeal Sause Bros., owner of the tug, Go-Getter, makes the sole contention that the District Court erred in not limiting its liability to the value of the tug.
19
Under the Limitations Act, 46 U.S.C. Secs. 183-189, the owner of a vessel held at fault in a collision is entitled to limit his liability to the value of the vessel if the negligent acts or conditions were without his privity or knowledge. He is not personally responsible for the navigation and management of a seaworthy vessel after it is under way and outside his presence or that of his superintendent. Oliver J. Olson & Co. v. Luckenbach Steamship Co., 279 F.2d 662, 672-673 (9th Cir. 1960).
20
Here the District Court found that Sause Bros. itself was negligent "because it negligently permitted a single tug to be used in a delicate operation under adverse weather conditions and under control of a master who was not acquainted with the tug's controls, all of which [Vice-President] Curtis Sause knew."
21
Sause Bros. contends that it was not negligence to have Captain May take over, since the controls on the Go-Getter were identical to those on the captain's own tug, the Jean Nelson. This issue we need not reach.
22
The finding of negligence in failing to utilize two tugs was not clearly erroneous. Use of tugs fore and aft of the towed barge provides increased stability in making passage where clearance is narrow.
23
Sause asserts that use of a single tug was common practice on the Coquille River; that between 40 and 50 per cent of the barge traffic under Bullard Bridge was accomplished with a single tug. This does not persuade us that the finding was erroneous.4 It seems only to suggest that 40 to 50 per cent of the vessels navigating the river were guilty of negligence and to explain the wrongful brushing and scraping to which the channel piers seem regularly to have been subjected.
24
Sause Bros. contends that use of a single tug was traditionally a decision to be made by the master of the tug and here was not the decision of Curtis Sause but of Captain May. It is, however, attributable to the owner to establish liability in personam if it was within his privity or knowledge as was here found by the District Court.5
25
We find no error in this appeal.
26
APPEAL OF OLSON TOWBOAT CO.
27
This appellant challenges the District Court's ruling that the action of Captain May in taking over the Sause Bros. tug, Go-Getter, was within the scope of his employment by Olson Towboat, and that the latter was liable for his acts of negligence under principles of respondeat superior.
28
The court found, in support of its holding that Captain May was acting within the scope of his employment: that he was performing work of the type that he customarily performed for his employer and at a time and place close to the task he had just performed; that had an Olson Towboat river tug been available at Bandon he would undoubtedly have been in charge of taking the barge upriver; that he believed he was authorized to perform such services; that it was in the interests of his employer that the barge reach its destination.
29
The court apparently had in mind Sec. 229 of the Restatement of the Law, Second, Agency, which enumerates indicia of scope of employment.6 However, it is clear that to fall within the scope of a servant's employment the acts in question must be in furtherance of the master's business rather than the business of another. Williams v. United States, 248 F.2d 492, 500 (9th Cir. 1957); United States v. Romitti, 363 F.2d 662, 665 (9th Cir. 1966). The Restatement, supra, in discussing scope of employment refers back to its earlier discussion of the question of who is a servant. Comment c. of Sec. 228 reads:
30
*****
31
* * *
32
"As stated in Section 220, one is a servant only if, as to his physical conduct in the performance of the service, he is subject to the control or to the right to control of the master. Hence, there is no liability for the conduct of one who, although a servant in performing other service, is doing work as to which there is no control or right to control by the master."
Sec. 220(1) of the Restatement provides:
33
"A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control."
34
The record here clearly establishes that the operation of towing the barge upriver was not the affair of Olson Towboat; that in that operation it had neither responsibility nor control.7 In our judgment the District Court was clearly erroneous in finding that it was in the interest of Olson Towboat that the barge reach its destination.
35
The problem is rendered somewhat confusing by the close relationship between the Towboat Co. and the Olson Co., owner of the barge and of the lumbering operations at Rogge's Mill. There was an overlap of ownership and management. The record shows that the Towboat Co. expected its employees to co-operate and work courteously and harmoniously with the Olson Co. Captain May testified that he considered that in taking charge of the Go-Getter he was furthering the interests of the Olson Co. Further, the Olson Co. was the Towboat Co.'s principal customer accounting for over 90 per cent of its business.
36
However, it was the Towboat Co. and not the Olson Co. that was May's employer and the District Court expressly found that a case of alter ego was not presented and that the Towboat Co. was a distinct entity. The interest of Towboat in the barge ceased at Bandon when its job was completed. Taking the barge upriver became the responsibility of Sause Bros., with which the Towboat Co. had no connection whatsoever. The interest of Olson Co. in the barge did, of course, continue until the barge reached its destination. In taking charge Captain May could well have believed that he was furthering the interests of Olson Co. We fail to see, however, how he could reasonably have believed that he was furthering the interests of the Towboat Co., whose role in the operation had been fully completed.8
37
We conclude that it was error to hold Olson Towboat responsible for the negligence of Captain May. Our conclusion necessarily results in eliminating one of the interests between which damages were divided and aligns Captain May with Sause Bros.
38
Upon Oregon's appeal, judgment is modified to increase recovery to the sum of $191,938.70. Costs are awarded to Oregon.
39
Upon Sause Bros.' appeal, judgment is affirmed.
40
Upon Olson Towboat Co.'s appeal, judgment is reversed.
41
CHAMBERS, Circuit Judge (concurring and dissenting):
42
I agree with all of Judge Merrill's opinion except that portion excusing Olson Towboat from liability for Captain May's negligence. Olson Towboat's representative was present in Bandon during preparation for the tow upriver. This gave Olson Towboat the opportunity to control Captain May which the Restatement requires.
1
Also named was Oliver J. Olson Co., owner of the barge, J. Whitney. The District Court found no liability on the part of this defendant and no appeal has been taken from judgment dismissing the action against it
2
In Baltimore v. Rowland, 75 U.S. (8 Wall.) 377, 19 L.Ed. 463 (1869), dicta indicate that the rule should not apply in cases of negligence but should be confined to recovery based on contractual provisions common to insurance policies. "[T]he rule is that there shall not, as in insurance cases, be any deduction for the new materials furnished in the place of the old, because the claim of the injured party arises by reason of the wrongful act of the party by whom the damage was occasioned, and the measure of the indemnification is not limited by any contract, but is co-extensive with the amount of the damage." See also, The Atlas, 93 U.S. 302, 23 L.Ed. 863 (1876)
In recent years the rule has, however, been recognized in appropriate cases as realistically defining the extent of damage actually suffered. See, e. g., Brooklyn Waterfront Term. Corp. v. International Terminal Op. Co., 211 F.Supp. 702 (S.D.N.Y.1962); Atkins v. Alabama Drydock & Shipbuilding Co., 195 F.Supp. 944 (S.D.Ala.1960). See also, McCormick on Damages, 470.
3
See also, T. H. Browning Steamship Co. v. F. H. Peavey & Co., 235 F.2d 5 (8th Cir. 1956); United States v. State Road Dept. of Florida, 189 F.2d 591 (5th Cir. 1951); Hewlett v. Barge Bertie, in Rem Evelyn, 418 F.2d 654 (4th Cir. 1969); Shepard S.S. Co. v. United States, 111 F.2d 110 (2d Cir. 1940); Pan-American Petroleum & Transport Co. v. United States, 27 F.2d 684 (2d Cir. 1928); West v. Martin, 51 Wash. 85, 97 P. 1102 (1908), and the discussion in Gillmore and Black, The Law of Admiralty, Sec. 7-18
4
See II Restatement of the Law of Torts, Sec. 295(A). Custom. "[I]n determining whether conduct is negligent, the customs of the community, or of others under like circumstances, are factors to be taken into account but are not controlling where a reasonable man would not follow them."
5
"The principle of the Limitation Act is the same as that found in the Harter Act and the Carriage of Goods by Sea Act: because of the extraordinary hazards of seaborne commerce and because the owner can exercise only a nominal control over his 'servants' once the ship has broken ground for the voyage, the owner should be entitled to exoneration from liability, or at least to a limitation of liability, for whatever happens after the ship has passed beyond his effective control. Contrariwise, he should be held to liability for all loss resulting from his failure to exercise effective control when he had the chance." Gillmore and Black, The Law of Admiralty, Sec. 10-20
6
"Sec. 228. General Statement
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master,
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master."
7
The record does not establish that Olson Towboat had any prior knowledge of the fact that Captain May was to take over the Go-Getter. Indeed, the reaction of a company official immediately after the accident was: "What the hell were you doing running the tug?"
8
Captain May might well have believed that he had been lent by Olson Towboat to Sause Bros. (which Towboat vigorously disputes), or that in light of his company's policy of co-operation with the Olson Co. he was authorized to lend himself on request when such loan would not interfere with his own duties. However, even were his assumptions correct, he would become the servant of Sause Bros
Presence of the Towboat's crew (of the Jean Nelson) aboard the barge adds another confusing note. This apparently was established company practice-an instance of co-operation between the two related companies. However, the crew was there to provide service to Olson Co. (also perhaps as loaned servants), and any service to Sause Bros. was of the incidental sort that barge crews normally provide. Apparently it was on the barge that Captain May belonged instead of in charge of the Sause Bros. operation.
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672 F.Supp.2d 261 (2009)
Carlos VARGAS TORRES, et al., Plaintiffs,
v.
Pedro TOLEDO, et al., Defendants.
Civil No. 07-2002 (FAB).
United States District Court, D. Puerto Rico.
December 7, 2009.
*262 Maricarmen Almodovar-Diaz, Maricarmen Almodovar Diaz Law Office, San Juan, PR, Marcos Valls-Sanchez, Marcos Valls Sanchez, Trujillo Alto, PR, for Plaintiffs.
Candida A. Selles-Rios, Departamento De Justicia, Anabelle Quinones-Rodriguez, Maymi, Rivera & Rotger, P.S.C., San Juan, PR, for Defendants.
MEMORANDUM AND ORDER
BESOSA, District Judge.
On October 13, 2009, a jury reached a verdict in favor of plaintiffs. (Docket No. 328) On November 2, 2009 defendants filed a post-judgment motion pursuant to Rules 50(b) and 59 of the Federal Rules of Civil Procedure. (Docket No. 334) At issue is the timeliness of the defendants' post-judgment motion.
Motions pursuant to Rules 50(b) and 59 must be filed within ten (10) days "after the entry of judgment." See Fed.R.Civ.P. 50(b) and 59(e). The parties contest the "entry" date of the judgment in this case. The timeliness of the post-judgment motion depends on whether the judgment was entered on October 13, 2009, as plaintiffs maintain, or on October 19, 2009, as defendants maintain. Rule 6(b), which sets forth requirements for computing and extending time for motion papers instructs a court to "exclude intermediate Saturdays, Sundays, and legal holidays when the period [allowed for filing] is less than 11 days" as it is in this instance. Fed.R.Civ.P. 6(a).[1] Rule 6(a) also forbids a court from extending the time to file a motion under Rules 50(b) and 59(b), (d), and (e), among others. Accordingly, if the judgment was entered on October 13, 2009, the defendants would have been required to file their post judgment motions pursuant to Rules 50(b) and 59 no later than October 27, 2009.
The defendants argue correctly that "[d]etermining the date of entry is critical for motion practice under the Federal Rules of Civil Procedure." (Docket No. 356 at 2) According to Rule 58(b), a judgment is deemed entered "when it is entered in the civil docket" maintained by the clerk's office. Fed.R.Civ.P. 58(b). The logic contained in Rule 58(b) is frustratingly circuitous, leading back to the same question: what does "entered" mean? Many circuit courts of appeal have attempted to clarify the correct methodology for determining the timing of a judgment's entry for the purposes of determining *263 when the clock starts to tick on motion filings in an electronic system like Case Management/Electronic Case Filing system ("CM/ECF")[2], however, the First Circuit Court of Appeals has not.
The judgment in this case, docket number 332, was filed on "10/13/09." The docket text (Docket No. 332) contains exactly the following language:
JUDGMENT in favor of Plaintiffs against Defendants. Signed by Clerk on 10/13/2009. (grf) Modified on 10/19/2009 to remove "court only" restriction. (ni). (Entered: 10/19/2009)
In a case cited by defendants, the Third Circuit Court of Appeals explained that "Rules 58 and 79 make clear that `entry' is the formal act of adding the judgment or order to the clerk's docket, and that the date of entry must be memorialized by a separate notation." U.S. v. Fiorelli, 337 F.3d 282, 287 (3rd Cir.2003). The Third Circuit Court of Appeals explained, "although an order may be signed by the district court, received by the clerk, and entered in the docket on different days, the entry date controls." Id. In a case also cited by the defendants, however, the Second Circuit Court of Appeals stated that "Some, but not all, docket entries include a notation that explicitly shows the date the document was entered." Houston v. Greiner, 174 F.3d 287, 288 (2d Cir.1999) (emphasis in original). "Whenever the entry date for a document docketed in a civil case is the same as the filing date, the docket sheet does not show an explicit notation of an entry date." Id. at 289.
Here, the civil docket for this case (07-2002) in the CM/ECF system shows that the clerk filed the judgment on October 13, 2009, as illustrated by the left-hand corner entry where filing dates are listed on the docket. Further, the docket text itself contains a clear statement that the judgment was "signed by Clerk on 10/13/2009." Defendants argue that the notation contained in the final parenthetical of the docket text, "(Entered: 10/19/2009)" is "an explicit notation of the date of entry of the judgment, with the further explanation that it was modified to remove the court only restriction from the judgment filed on October 13th, but entered on October 19th." (Docket No. 356 at 3)
The Court disagree. It is plain by looking at the language of the docket text that there were two separate moments when text was entered in Docket Number 332. This district's technical staff confirms that the letters contained by parentheticals following docket text refer to the individual who entered that text and that those initials are always placed in parentheticals at the end of the docket text language. In this case's Docket Number 332, there are two such instances of initials: following the first sentence of the docket text language, and following the second sentence of the docket text language. Again, to be clear, that language reads as follows:
JUDGMENT in favor of Plaintiffs against Defendants. Signed by Clerk on 10/13/2009. (grf) Modified on 10/19/2009 to remove "court only" restriction. (ni) (Entered: 10/19/2009)
*264 The language "JUDGMENT in favor of Plaintiffs against Defendants. Signed by Clerk on 10/13/2009" was filed at one time by someone identified as "grf." The language "Modified on 10/19/2009 to remove `court only' restriction" was filed by another individual identified as "ni." The parenthetical that contains "Entered: 10/19/2009" clearly refers to the language added by the second individual to the docket text on October 19, 2009. Defendants are therefore correct that an explicit entry date notation, like this one, controls the entry date; they are simply overbroad in their application of the explicit entry date notation. The explicit entry date notation in Docket Number 332 refers only to the entry of the modification, not to the entry of judgment. The entry of judgment ends with the initials "grf" and is followed by no explicit entry notation. It follows that, as the Second Circuit Court of Appeals explained, "[t]he person reading the docket sheet is supposed to infer that the absence of an explicit notation of an entry date means that the document, e.g., the judgment, was entered on the filing date shown in the left-hand column of the docket sheet." Id. That date, like the date the entry was signed by the clerk, and like the date that the jury returned its verdict, was October 13, 2009.
Defendants also argue that the judgment's entry date was October 19, 2009 because the document filed on October 13, 2009 was a "court-only" restricted document, meaning that defendants were not notified of the judgment's filing via CM/ ECF's automated notification system. As defendants explain, "Such restriction did not allow the parties access to the document itself; therefore the Defendants were not aware of the actual date of entry." (Docket No. 356 at 3) Defendants are incorrect.
First, "the failure of the clerk to give notice is not a ground, by itself, for a finding of excusable neglect, but is a factor to be considered along with other circumstances." Zurich Ins. Co. v. Wheeler, 838 F.2d 338, 340 (9th Cir.1988) (internal citation omitted); U.S. ex rel. McAllan v. New York, 248 F.3d 48, 53 (2d Cir.2001) ("appellant's failure to file a timely notice of appeal is not excused by what he characterizes as the `serious administrative errors' and docketing irregularities of the Southern District's clerk's office, because parties have an obligation to monitor the docket sheet to inform themselves of the entry of orders they wish to appeal.") (internal citation omitted); see also Bortugno v. Metro-North Commuter RR, 905 F.2d 674, 676 (2d Cir.1990) (failure of court clerk to send notice of entry of judgment does not render counsel's failure to learn of entry "excusable neglect" within meaning of Fed.R.App.P. 4(a)(5) such that extension of time in which to file notice of appeal is justified). A similar principle guides Rule 77(d) regarding the impact of lack of notice on time to appeal: "Lack of notice of the entry [of judgment] does not affect the time for appeal or relieveor authorize the court to relievea party for failure to appeal within the time allowed . . ." Fed.R.Civ.P. 77(d).
Second, attorneys have an affirmative duty to monitor the electronic docketing system for the entry of new filings and orders. See Santiago-Diaz v. Laboratorio Clinico y de Referencia del Este, 456 F.3d 272, 276 n. 3 (1st Cir.2006). Witty v. Dukakis, 3 F.3d 517, 520 (1st Cir.1993) ("[P]arties to an ongoing case have an independent obligation to monitor all developments in the case and cannot rely on the clerk's office to do their homework for them"); Brown v. Zarek, No. 98-5097, 1998 WL 738340, *1 (10th Cir. Oct. 22, 1998); In re Delaney, 29 F.3d 516, 518 (9th *265 Cir.1994); see also Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C.Cir.2004) (holding that attorneys are "obligated to monitor the court's docket" and the failure to do so will not excuse an untimely filing).
Thirdly and finally, it is well-established that "the time for seeking a new trial runs from the entry of the judgment, not from the reception of the verdict nor from the date the moving party received notice of the entry of judgment." 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2812 (2d ed. 1995) (emphasis added).[3] "It is the date of filing that controls." Id.
Regardless of whether the defendants received notice that an entry of judgment was entered into the case docket, and regardless of why they did not receive notice, it was their ongoing responsibility to monitor the docket. Considering the particular circumstances here, defendants' failure to monitor the docket is particularly egregious because the jury verdict in this case was reached on October 13, 2009, and defendants should therefore have been especially vigilant in their oversight of the docket to keep an eye out for the predictable entry of a judgment. Indeed, had they monitored the docket, they would have seen the entry of judgment in Docket Number 332.
The Court agrees with the plaintiffs that the judgment in this case was entered on October 13, 2009 at Docket Number 332 and that the 10-day allowance to file post-judgment motions began on the date of entry regardless of the fact that the defendants were not able to access the underlying document due to the "court-only" restriction mistakenly placed on that docket entry. Not only should the defendants have been monitoring the docket given that a verdict had been recently reached, they should have noted, had they been monitoring the docket, that the judgment was originally entered into the docket on October 13, six days prior to the modification date. Defendants' decision to file their post-judgment motions according to the October 19th timeline was therefore a gamble they took on knowingly at best, or an attempt to take advantage of an administrative error at worse.
For these and the above-stated reasons, the Court DENIES the defendants' post judgment motion (Docket No. 334). Plaintiffs' motion to strike defendants' post judgment motion (Docket No. 355) is considered as an opposition to defendants' post judgment motion and is deemed MOOT.
IT IS SO ORDERED.
NOTES
[1] The Court notes that on December 1, 2009, Rule 6 has changed. Now, weekend days and holidays count toward the new 28-day filing allowance in Rule 50(b) and 59(e).
[2] District courts began to use an electronic docketing system called Case Management/Electronic Case Filing system ("CM/ECF") in 2002. CM/ECF allows the court to maintain case documents electronically and allows parties involved in litigation proceedings to file documents electronically with the Court. For each case filed in the system, a table appears which organizes the case documents and orders, among other things, in an organized manner. From left to right, the table columns contain: (1) the filing dates of the documents and orders; (2) the docket numbers pertaining to each document or order; and (3) the "docket text" which gives a title or explanation to each document or order.
[3] Prior to Rule 59's amendment in 1995 it was the date of service, not the time of filing, that was significant. Id.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4069
CARLOS BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-95-15)
Submitted: December 23, 1997
Decided: January 21, 1998
Before MURNAGHAN and ERVIN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Gail W. Kahle, DICKIE, MCCAMEY & CHILCOTE, Wheeling,
West Virginia, for Appellant. William D. Wilmoth, United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Carlos Brown appeals his conviction and sentence for distribution
of a controlled substance within 1000 feet of a school, in violation of
21 U.S.C.A. §§ 841, 860 (West 1981 & Supp. 1997). Finding no
error, we affirm.
I.
At Brown's trial, Veronica "Sissy" Jones testified that on May 15,
1995, she bought $50 worth of crack cocaine from Brown, while
working as a paid informant for the Mon Valley Drug Task Force.
The transaction was audiotaped. Jones, a heavy drug user, did not call
the dealer by name on the tape. At trial, Jones alternately referred to
the person who sold her drugs as "Cocoa" (a nickname of Brown's)
or "Colyn" (a third person, who also apparently dealt drugs). How-
ever, she positively identified Brown in court as the person from
whom she bought crack cocaine on May 15. Investigator Kelly D.
Moran testified that, after escorting Jones back to the police station,
he returned to the area of the drug transaction where he saw Brown,
but not Colyn.
After the jury had retired to consider its verdict, Assistant United
States Attorney ("AUSA") Thomas D. Mucklow asked Appellant's
counsel why he had not struck a juror who had indicated that she had
an out-of-town wedding commitment. AUSA Mucklow then com-
mented that perhaps the juror was planning to attend the wedding of
AUSA Sam Nazzaro, which was being held out of town that same
weekend.1 Brown then moved for a new trial based on juror and pro-
_________________________________________________________________
1 AUSA Mucklow asserts that this comment was made in jest. Appel-
lant contends that this information was purposely suppressed. The district
court did not resolve this factual dispute.
2
secutorial misconduct. The motion papers on this issue show that the
juror was invited to AUSA Nazzaro's wedding but was not a relative.
The court denied the motion, finding that the juror did not have the
type of relationship with an Assistant United States Attorney that
would have excluded her from jury service and that the juror had not
improperly concealed this relationship.
In an unrelated trial, Jones testified that she had bought crack
cocaine from the defendants, who were family members. She then
recanted her testimony in certain out-of-court statements. The district
court, in that case, conducted extensive hearings on the recantation
and concluded that Jones had not testified falsely during the trial. The
district court (presided over by a different judge than herein) denied
the defendants' motion for a new trial, and that decision was affirmed
by this court. See United States v. Jones, Nos. 96-4430/96-4434/96-
4437 (4th Cir. Mar. 21, 1997) (unpublished).
When Brown became aware of this information, he filed a second
motion for a new trial based on the newly discovered evidence of
recantation. The district court denied the motion without a hearing,
relying on the findings of the district court judge in Jones.
The Presentence Investigation Report suggested that 6.48 grams of
crack cocaine was attributable to Brown for purposes of guidelines
sentencing determination. Brown objected to the determination of rel-
evant conduct, because only .24 grams of the amount was determined
by reference to weights established at trial. The remaining 6.24 grams
was supported by reference to grand jury transcripts, primarily the
testimony of Kimberley Satterfield (4.8 grams). Prior to sentencing,
Brown unsuccessfully attempted to locate Satterfield in order to have
her testify. Brown also subpoenaed two other grand jury witnesses,
who did not appear at the sentencing hearing.
At the conclusion of the sentencing hearing, the district court found
that the grand jury testimony of all three witnesses was reliable and
attributed 6.48 grams of crack cocaine to Brown, resulting in an
offense level of 27. This base offense level, combined with Brown's
Criminal History Category of I, resulted in a guideline range of sev-
enty to eighty-seven months. The district court sentenced Brown to
seventy-four months.
3
II.
Brown first maintains that he was denied a fair and impartial jury
by a juror's and AUSA Mucklow's failure to disclose during voir dire
the juror's relationship with AUSA Nazzaro. During voir dire, the dis-
trict court asked the panel the following question:
Are any of you related by blood or connected by marriage
with either of the lawyers who will be representing the par-
ties in this criminal action or any employees of the United
States Attorney for the Northern District of West Virginia
in this case, who is Mr. William D. Wilmoth?
No juror responded.
The record developed after trial reflects that, although the juror in
question was invited to AUSA Nazzaro's wedding, she was not
related to Nazzaro.2 Instead, the record shows that the juror was
friends with Nazzaro's parents. In addition, Brown never requested
voir dire regarding social relationships with members of the United
States Attorney's office, and Brown did not ask any follow-up ques-
tions when the juror indicated during voir dire that she had an out-of-
town wedding to attend.3 Based on these findings and the fact that the
_________________________________________________________________
2 AUSA Nazarro presented certain witnesses to the grand jury in this
case. However, he was not involved in the case past the grand jury phase,
and his name was never mentioned to the jury.
3 During voir dire, the district court indicated its willingness to excuse
the juror due to this prior commitment. Brown contends that this willing-
ness proves that the district court would have stricken the juror for cause
had the details of the wedding been known. Brown asserts that the
court's willingness to excuse the juror from service showed that the court
was concerned about her being partial. Brown's logic is faulty, however,
because an attempt to accommodate a juror's schedule cannot be trans-
lated into evidence that the district court would have found possible bias
and dismissed the juror for cause had the identity of the groom been dis-
closed. Furthermore, after the court expressed its inclination to excuse
the juror from service, Brown's attorney stated that he would likely strike
her. However, at the conclusion of jury selection, she had not been struck
by either side and was a member of the jury panel.
4
juror did not affirmatively respond to any of the voir dire questions
concerning potential prejudice, the district court found that the juror
was an "impartial" member of the jury.
Nonetheless, Brown suggests that the juror's non-response to the
question above breached the juror's legal duty to be completely hon-
est and forthright in answering the questions posed. However, the
juror's non-response to the question above was entirely honest and
appropriate. Absent a juror's failure to honestly answer a material
question, Brown cannot show his entitlement to a new trial. See
McDonough Power Equip. v. Greenwood, 464 U.S. 548, 555-56
(1984).
In addition, a claim of prosecutorial misconduct requires a showing
of prejudice. See Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(due process rights are only violated when prosecutor's misconduct
renders a trial fundamentally unfair). Because Brown has failed to
make any showing of juror misconduct, he cannot show prosecutorial
misconduct on this point. Regardless of what AUSA Mucklow knew
of the situation, Brown fails to show that the district court's finding
that the juror was impartial was erroneous. As the record is devoid of
any evidence of juror bias or misconduct, Brown's contention that he
was denied a fair and impartial jury is frivolous.
III.
Next, Brown objects to the following statement by the prosecutor
during rebuttal closing argument:
People like Carlos Brown who are more than happy to stand
out on the street corner and sell crack to people like Sissy,
people who now can't even walk. He is more than happy to
stand up there and give her a 5-0, and she says he was sur-
prised because she only usually buys 20's. Must have been
a real great day for Carlos.
Defense counsel objected, asserting that this line of argument implied
other uncharged drug sales. The objection was overruled.
5
Earlier on direct examination, Jones testified without objection as
follows:
And I walked from there to Maple Avenue, and I seen
Colyn, Cocoa, whatever, excuse me, Cocoa, and asked him
for 50. I guess then, you know, it was sort of strange
because I am normally buying 20's, you know.
On cross-examination, she again testified without objection:
Yeah, I'm . . . I am saying that Colyn, you know, when I
walked up to him, I said, "Could I get a 50?" And I think
then it looked pretty strange because I am so used to buying
20's from them.
Prosecutorial misconduct mandating reversal requires a showing of
an improper remark by the prosecutor which prejudicially impacted
the substantial rights of the defendant so as to deprive him of a fair
trial. See United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993).
A prosecutor's closing argument is not improper if it is reasonably
based on the trial testimony. See United States v. Chastain, 84 F.3d
321, 323 (9th Cir. 1996).
In this case, we find simply that there was no misstatement of the
testimony. The clear implication of Jones' testimony is that she nor-
mally purchased $20 pieces of crack cocaine, so that when she dealt
with Brown for a $50 piece, it appeared "strange." Because the prose-
cutor's remark was a reasonable interpretation of Jones' testimony, it
was entirely proper. Brown's claim to the contrary has no merit.
IV.
Brown next asserts that the district court erred by denying his
motion for a new trial based upon the newly discovered evidence of
Jones' recantation of testimony given in an unrelated trial. A district
court's denial of a motion for a new trial will not be set aside absent
an abuse of discretion. See United States v. Campbell, 977 F.2d 854,
860 (4th Cir. 1992). An abuse of discretion occurs when a judge fails
completely to exercise discretion, fails to use judicially recognized
6
factors that apply in the context of the case, or exercises his discretion
based upon erroneous factual or legal premises. See James v.
Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).
The district court may grant a new trial for newly discovered evi-
dence only when the following criteria are met: (i) the evidence must
in fact be newly discovered since the trial; (ii) facts must be alleged
from which the court may infer diligence on the movant's part; (iii)
the evidence on which the court relies must not be merely cumulative
or impeaching; (iv) the evidence must be material to the issues
involved; and (v) the evidence must be such that, on a new trial, it
would probably produce an acquittal. See United States v. Chavis, 880
F.2d 788, 793 (4th Cir. 1989). If all the criteria are not met, the
motion for a new trial must be denied. See id.
With regard to part (iii) of the Chavis test, we have emphasized
that new evidence going only to the credibility of the witness does not
generally warrant granting a new trial. See United States v. Custis,
988 F.2d 1355, 1359 (4th Cir. 1993), aff'd, 511 U.S. 485 (1994). A
rare exception to this rule may be found under narrow circumstances:
If the government's case rested entirely on the uncorrobo-
rated testimony of a single witness who was discovered after
trial to be utterly unworthy of being believed because he had
lied consistently in a string of previous cases, the district
judge would have the power to grant a new trial in order to
prevent an innocent person from being convicted.
Id. (citations omitted).
Brown presents no proof that Jones testified untruthfully at his
trial, other than her somewhat shaky identification of him, which was
fully explored during cross-examination. The newly-discovered evi-
dence shows that, while Jones testified truthfully at the Jones trial,
she made untrue statements out-of-court to her church, to members of
her family, and to an investigator. Even if Jones lied during certain
unrelated out-of-court statements, it cannot be assumed that she lied
at Brown's trial. Without more, this impeaching evidence is insuffi-
cient to warrant a new trial, especially considering the newly-
7
discovered evidence demonstrated that Jones testified truthfully in
court.
Furthermore, the Custis exception does not apply, because Jones'
testimony was corroborated by the audiotape and by Kelly's testi-
mony. In fact, Brown does not, and in light of the audiotape cannot,
dispute that Jones bought crack cocaine on the date in question. He
asserts only that she lied concerning her identification of the seller.
While family pressure provided the basis for the recantation of Jones'
testimony in Jones, Brown offers no motive for Jones to have lied at
his trial, and she has never recanted that testimony. Therefore,
because Brown cannot satisfy part (iii) of the Chavis test, we decline
to address the remaining factors and hold that the district court did not
abuse its discretion in denying Brown's motion for a new trial.
V.
Next, Brown contends that the district court erred in attributing rel-
evant conduct to him, when he was denied any meaningful opportu-
nity to challenge the conduct. See U.S. Sentencing Guidelines Manual
§ 6A1.3(a) (Nov. 1996), p.s. (providing that"[w]hen a reasonable dis-
pute exists about any factor important to the sentencing determina-
tion, the court must ensure that the parties have an adequate
opportunity to present relevant information"). We review the decision
of the district court to consider the grand jury testimony, without
delaying in order to afford Brown an opportunity to locate and exam-
ine the grand jury witnesses, for an abuse of discretion. See United
States v. Brinkworth, 68 F.3d 633, 640 (2d Cir. 1995).
We conclude that, under the circumstances presented here, the dis-
trict court did not abuse its discretion. First, Brown gives no indica-
tion of what information, if any, examination of these witnesses
would have revealed. In addition, Brown's attorney did not proffer the
proper quantity of drugs to be attributed to his client, presented no
witnesses or other evidence on this issue, and made no attempt to
interview and record statements by the disputed witnesses.4 See
_________________________________________________________________
4 It is also notable that Brown had a full year to prepare to meet the evi-
dence as to relevant conduct. He received the presentence report in Janu-
ary 1996 and was not sentenced until January 1997.
8
United States v. Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990)
(affirming denial of request for presentation of testimony at sentenc-
ing based in part on defendant's failure to establish the need for such
testimony). Thus, no hearing was necessary here because Brown
received an adequate opportunity to present information to the court
concerning drug quantity. Accordingly, we conclude that the district
court did not abuse its discretion in refusing to delay the sentencing.
VI.
Finally, Brown contends that the district court had insufficient evi-
dence to find that he should be accountable for 6.48 grams of crack
cocaine. Brown asserts that this amount should be reduced by 4.8
grams, representing the amount attributed to Brown based on Satter-
field's grand jury testimony:
Q: You purchased from [Appellant] how many times?
A: See, I don't know. Maybe, 20, 30 times because he
would be there with it, and I would stay all night and
then I would owe him money, too, the next morning
because its all family and they would be there with it.
You end up owing more money than you got because
they got it right there.
The Probation Officer calculated the 4.8 grams by multiplying the
amount Satterfield generally purchased (.24 grams) by 20, the more
conservative number mentioned by Satterfield.
The prosecution is required to establish the amount of drugs by a
preponderance of the evidence, and the district court's factual deter-
mination of the amount of drugs is reviewed for clear error. See
United States v. Williams, 986 F.2d 86, 90 (4th Cir. 1993). The dis-
trict court was provided with a transcript of Satterfield's grand jury
testimony and made the determination that the testimony was suffi-
ciently credible to permit reliance for sentencing purposes. In addi-
tion, even if Brown sold Satterfied crack cocaine on as few as
fourteen occasions, the resulting offense level would be identical.
Based on our review of the record, we are unable to conclude that the
district court's factual determination was clearly erroneous.
9
VII.
For the foregoing reasons, we affirm Brown's conviction and sen-
tence. 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
10
| {
"pile_set_name": "FreeLaw"
} |
975 So.2d 1054 (2007)
Troy MERCK, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. SC04-1902.
Supreme Court of Florida.
December 6, 2007.
Rehearing Denied February 11, 2008.
*1058 James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant.
Bill McCollum, Attorney General, Tallahassee, Florida, and Robert J. Landry, Assistant Attorney General, Tampa, Florida, for Appellee.
PER CURIAM.
Troy Merck, Jr., appeals the death sentence imposed upon him after a second remand for resentencing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm the sentence.
I. FACTS AND PROCEDURAL HISTORY
Troy Merck, Jr., was convicted of first-degree murder following the 1991 stabbing of James Anthony Newton. The facts surrounding the murder are set forth in Merck v. State, 664 So.2d 939 (Fla.1995) (Merck I). The jury recommended a sentence of death, and the trial court followed that recommendation. On October 12, 1995, this Court affirmed Merck's conviction but reversed his death sentence because we found that a North Carolina juvenile adjudication presented to the jury was not a "conviction" within the meaning of the conviction of a prior violent felony aggravator and that admitting evidence regarding this adjudication was harmful error. Id. at 944. On remand in July of 1997, a circuit court jury unanimously recommended a death sentence, which the trial court imposed. On July 13, 2000, this Court again reversed Merck's death sentence because we found that the trial court failed to adequately consider nonstatutory mitigation in its sentencing order and inappropriately *1059 applied the felony probation aggravator, which did not exist at the time of Newton's murder. Merck v. State, 763 So.2d 295, 298-99 (Fla.2000) (Merck II).
Merck's third resentencing proceeding, held in March of 2004 and now before us for review, resulted in a jury recommendation of death by a nine-to-three vote. The trial judge held a Spencer[1] hearing on March 28, 2004. Both the State and the defense presented psychological experts who testified regarding Merck's mental and emotional states at the time of the murder and at the time of the instant resentencing. The defense also introduced into evidence a copy of the 1997 penalty-phase testimony of Ron Bell, Chief Toxicologist for the Pinellas/Pasco County Medical Examiner's Office, who offered an opinion regarding Merck's levels of intoxication and impairment at the time of the murder. After considering this evidence, the trial court followed the jury's recommendation and imposed the death penalty, finding two aggravating factors: the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person; and the capital felony was especially heinous, atrocious, or cruel (HAC). The trial court found one statutory mitigating factor, Merck's age of nineteen at the time of the offense, which it assigned some weight. The court further found three nonstatutory mitigating factors: difficult family background, assigned some weight; alcoholism/alcohol abuse-intoxication, assigned little weight; and the capacity to form and maintain positive relationships and the capacity for growth, assigned some weight. State v. Merck, CRC9116659CFANO-C (Fla. 6th Cir. Ct. order filed Aug. 6, 2004) (Sentencing Order).
On appeal, Merck presents six claims: (1) the trial court improperly excluded evidence relating to Merck's presumptive parole release date; (2) the trial court improperly excluded evidence that was relevant to the nature and circumstances of the offense, had bearing on the finding of an aggravating factor, and could have been the basis of additional mitigating factors; (3) the assistant state attorney's closing argument included improper remarks, which denied Merck a fair penalty-phase proceeding; (4) the trial court failed to find or gave too little weight to mitigating factors; (5) the death sentence is disproportionate; and (6) Florida's capital sentencing scheme violates the decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
II. EXCLUSION OF EVIDENCE CLAIMS
A. Exclusion of Parole Expert Testimony
Merck argues that the trial court erred in excluding proffered expert testimony regarding Florida's parole procedures and his likelihood of being paroled. Because this murder occurred in 1991, the resentencing jury was instructed that Merck could be sentenced to death or to life in prison without the possibility of parole for twenty-five years.[2] Merck contended that the 2004 resentencing jury would unduly consider that he could be *1060 paroled twelve years from the date of its sentencing recommendation. Thus, the defense wanted to present as a witness Felix Ruiz, Regional Administrator in the Tampa Bay Area for the Florida Parole Commission, to testify as to the unlikelihood of Merck actually being paroled. The State objected that this testimony was "wildly speculative" and irrelevant because the State would not be drawing the jury's attention to the fact that Merck would be considered for parole in 2016 if he was given a life sentence. The defense argued that this testimony was relevant to the mitigating circumstance of length of sentence.
The Court addressed the admissibility of evidence about a defendant's likelihood of parole in Jackson v. State, 530 So.2d 269 (Fla.1988), where the defendant argued that the trial judge erred in prohibiting him from presenting as a mitigating circumstance the philosophy of the then-existing parole commission not to grant parole to defendants convicted of capital offenses. The Court found that the trial judge did not abuse his discretion because such evidence did not concern the appellant's character and it was "probable that none of the present parole commission would be serving at the time Jackson could be eligible for parole in twenty-five years had a life sentence been imposed." Id. at 274.
Likewise, in King v. Dugger, 555 So.2d 355, 359 (Fla.1990), this Court found no error where a trial court excluded testimony by the Executive Director of the Florida Parole and Probation Commission that a life sentence for first-degree murder includes a minimum mandatory sentence of twenty-five years of imprisonment because such evidence was not relevant to King's character, his prior record, or the circumstances of the crime. This Court held that the "standard instruction on the possible sentences for first-degree murder adequately inform[s] the jury of the minimum mandatory portion of a life sentence." Id. That same year, this Court found no error in Lucas v. State, 568 So.2d 18, 20 n. 2 (Fla.1990), where the trial court refused to allow Lucas to present testimony that he would not be paroled if sentenced to life imprisonment.
Given these precedents, we find that the trial court did not abuse its discretion in excluding the proffered testimony.[3]
B. Evidence of Circumstances of the Murder
In this claim, Merck argues that the trial court erred in excluding defense evidence regarding the circumstances of the murder. He claims that the trial court improperly excluded testimony that would tend to show that he did not fatally stab the victim and that his involvement in the crime was minor.
The record reflects that except for the testimony identified below that was not proffered, the allegedly excluded testimony was presented to the jury. Contrary to Merck's argument on appeal, the jury heard that Neil Thomas illegally bought alcoholic drinks for an underage Merck on *1061 the night of the murder. Thomas testified that he, not Merck, called the victim a "pussy" and that the victim's subsequent refusal to fight may have been perceived by Merck as disrespectful and annoying. Thomas testified that he drove Merck away from the crime scene and that they changed clothes so that they would be less recognizable, hid from the police in some bushes, and played pool together later that night. Finally, Thomas testified that he had not been charged with any crime regarding Newton's murder, denied being given preferential treatment, and explained the prosecuting attorney's role in and the circumstances surrounding his release after turning himself in to police in 1997 on a 1994 arrest warrant.
Merck argues that the trial court excluded potentially exculpatory testimony by a fingerprint examiner and evidence that eyewitness Katherine Sullivan's description of the stabber's clothing matched Thomas's clothing, not Merck's. The record does not contain a proffer of such testimony. Thus, we deny Merck's claim.[4]See Lucas v. State, 568 So.2d 18, 22 (Fla. 1990) ("A proffer is necessary to preserve a claim such as this because an appellate court will not otherwise speculate about the admissibility of such evidence.").
III. CLOSING ARGUMENTS
Merck argues that he was denied a fundamentally fair penalty phase because the prosecutor made numerous improper comments during closing arguments. Attorneys are permitted wide latitude in closing arguments but are not permitted to make improper argument. Gore v. State, 719 So.2d 1197, 1200 (Fla.1998). Closing argument is an opportunity for counsel to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence. Counsel must contemporaneously object to improper comments to preserve a claim for appellate review. Unobjected-to comments are grounds for reversal only if they rise to the level of fundamental error. The Court considers the cumulative effect of objected-to and unobjected-to comments when reviewing whether a defendant received a fair trial. Brooks v. State, 762 So.2d 879, 898-99 (Fla.2000). A trial court has discretion in controlling opening and closing statements, and its decisions will not be overturned absent an abuse of discretion. Dufour v. State, 905 So.2d 42, 64 (Fla.2005). We look at the closing argument as a whole to determine whether that discretion was abused.
In this case, defense counsel made one contemporaneous objection to the prosecutor's closing argument, which the trial court overruled. The defense objected to the prosecutor making an impermissible "mercy" argument when the prosecutor stated:
*1062 The Defense will be talking to you about what we call mitigation. Things about [Merck's] background they believe should warrant you affording him some mercy that he never afforded Mr. Newton.
The prosecutor revisited this subject at the close of his argument, stating:
What [Merck] did here, there should be no mercy for a merciless crime, ladies and gentlemen. On behalf of the People of [the] State of Florida and Jim Newton, I ask you all to recommend that he die.
This Court has repeatedly condemned mercy arguments that ask the jury to show to the defendant the same amount of mercy as the defendant showed to his or her victim. See, e.g., Brooks, 762 So.2d at 901; Urbin v. State, 714 So.2d 411, 421 (Fla.1998); Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992); Rhodes v. State, 547 So.2d 1201, 1206 (Fla.1989). The defense's objection to the mercy argument should have been sustained. The trial court erred in allowing this argument. However, because the mercy comments were not dwelled upon or emphasized in the context of the entire closing, we conclude that the trial court's error does not require reversal. We have previously held that a mercy argument standing alone does not constitute reversible error. See Reed v. State, 875 So.2d 415, 438 (Fla.2004).
Merck also urges in this appeal that the Court find that the prosecutor made several improper "golden rule" arguments. Golden rule arguments are arguments that invite the jurors to place themselves in the victim's position and "imagine the victim's final pain, terror and defenselessness," and have long been prohibited. Bertolotti v. State, 476 So.2d 130, 133 (Fla. 1985). No objection was made to these alleged golden rule arguments during trial. Specifically, Merck challenges the following statements made by the prosecutor during closing argument:
The Defendant was described to you today as a kind man, a man with positive values. One has to wonder on October 11, 1991, how kind Jim Newton felt when the Defendant jabbed this into his throat and twisted it. Twisted it until blood squirted out of his neck, as the Defendant described it, like a squirt gun. . . .
. . . .
. . . [I]sn't this among the worst ways to die that anyone can imagine? This is one of the worst most aggravated murders. . . .
. . . .
. . . How did that feel to have a knife penetrate his skull?. . . .
Now. That's one minute. How many thoughts went through your mind in that one minute? Did he live two minutes? Did he live three minutes? Four minutes? Enough time for his life to go, roll his eyes, to think about the people that he would never see again. Was that an unnecessarily torturous way for the man to lose his life that night for no good reason?
Again, we consider these arguments not in isolation but in the context in which the statements were made.
Each of these comments was made in the context of arguing that the evidence supported finding the HAC aggravating factor and that the aggravating factors should be found to outweigh the mitigating factors. The first statement, when placed in context, responds to the defense's presentation of mitigating evidence and relates to the HAC aggravating factor:
The Defendant was described to you today as a kind man, a man with positive values. One has to wonder on October *1063 11, 1991, how kind Jim Newton felt when the Defendant jabbed this into his throat and twisted it. Twisted it until blood squirted out of his neck, as the Defendant described it, like a squirt gun. Was that the man that you heard these people describing to you today? Was that the person whose life's decision had brought him to that point? That was not the boy in the donkey suit singing a song in the parking lot that night, it was a grown man deciding to take another man's life in a gruesome, painful, heinous, atrocious, and cruel manner.
Similarly, the next two challenged prosecutorial comments were made in direct response to defense counsel's argument during opening statement that the murder was "an awful crime, but it [was] not by any means the worst" because it was sudden and quick:
Mr. Watts, when he made his opening remarks to you, said this is only for the most aggravated murders. I'm sure that I know that there are probably more painful and probably worse murders, but isn't this among the worst ways to die that anyone can imagine? This is one of the worst most aggravated murders. I submit from bringing up the incidents in his childhood, his age, alcohol use, least mitigated.
The final two comments arose in the context of recounting the testimony of the medical examiner and of the eyewitnesses who described the victim's "awareness, his pain, and his last moments." The prosecutor stated:
The doctor said that, well, really he could not remain conscious for more than a few minutes. Maybe a minute, maybe two or three would not be, but long enough, ladies and gentlemen, to be torturous. . . . First of all, he had the wounds to his back, then he gets them to the chest, and then he is jabbed in the throat and it is twisted. How did that feel to have a knife penetrate his skull? I don't care how much alcohol he has had. Then he just started slashing at his face. The doctor told you about the nerve endings. It is possible that those smaller incise wounds could be just as painful as some of the big ones. . . . He is grasping at his throat, moaning, kicking, holding his throat. The doctor told you that actually pressure could slow down the bleeding. Those were the last few minutes of his life. And a minute doesn't sounds [sic] like much, ladies and gentlemen, but for some reason companies all over the world pay millions of dollars for a few minutes of commercials, for instance, during the Superbowl. It is a long time.
Now. That's one minute. How many thoughts went through your mind in that one minute? Did he live two minutes? Did he live three minutes? Four minutes? Enough time for his life to go, roll his eyes, to think about the people that he would never see again. Was that an unnecessarily torturous way for the man to lose his life that night for no good reason?
Again, the trial transcript reflects that the prosecutor's arguments were all made in support of the State's position that the HAC aggravating factor was established by the evidence and supported a recommendation of death.
The Court recently discussed somewhat similar arguments in Rogers v. State, 957 So.2d 538, 549 (Fla.2007). In that case, the prosecutor argued:
We know that she knew she was going to be killed, . . . we know when she was stabbed the first time, she didn't become unconscious; she remained conscious and she could feel the pain of the knife going through her body and could feel *1064 the pain of the knife as it was twisted and pulled out of her body, and then he did it again.
. . . .
What weight do you give to the ten, twenty minutes where she was there in that bathroom reflecting back on her life, on the things that she hadn't done that she wished she could, the opportunities that had never been presented to her, on her children that she would never see again, on her mother who loved her so dearly. . . .
The Court found that these "arguments were not improper because they were based upon facts in evidence the victim was stabbed twice, she struggled with her assailant, and she remained alive for at least a short period of time after being stabbed." Id. We explained that "a common-sense inference as to the victim's mental state" may be the basis of proper argument. Id. (quoting Banks v. State, 700 So.2d 363, 366 (Fla.1997)). Such arguments are not improper golden rule arguments because they do not attempt to place the jury in the position of the victim.
Similarly, in the instant case, we do not find that the prosecutor's arguments were improper given their context, and thus we do not find fundamental error. The first four comments described the victim's injuries and suffering based on facts in evidence and common-sense inferences from those facts. The final comment was designed to illustrate that one minute can be a significant period of time. While one of the comments did invite the jurors to vividly imagine how long a minute could feel, it did not invite the jurors to place themselves in the victim's position and "imagine the victim's final pain, terror and defenselessness." Bertolotti, 476 So.2d at 133.
Next, Merck challenges the prosecutor's arguments to the jury regarding how many books and Penthouse magazines the victim could have read since 1991 and the prosecutor's denigration of Merck's reading books while in prison as a part of a mitigation strategy by Merck's counsel. Merck is correct that we and the district courts have held that such prosecutorial comments are improper. See, e.g., Taylor v. State, 583 So.2d 323, 329-30 (Fla.1991) (holding comment that victims could no longer read books and engage in other activities was improper because it urged consideration of factors outside scope of deliberations); Redish v. State, 525 So.2d 928, 931 (Fla. 1st DCA 1988) (holding verbal attacks on personal integrity of opposing counsel are unprofessional and inconsistent with prosecutor's role). However, the prosecutor's comments in this case were not the sort of pervasive errors that compromise the integrity of the penalty-phase proceeding and thus were not fundamental errors.
In sum, after considering the prosecutor's closing argument as a whole, we do not find that the objected-to error and the unobjected-to improper arguments cumulatively resulted in reversible error. Merck received a fair penalty-phase proceeding and is not entitled to relief on this claim.
IV. MITIGATING FACTORS
Merck argues that the trial judge erred by failing to find two statutory mitigating factors: that Merck was under the influence of extreme mental or emotional disturbance; and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired at the time of the stabbing. A trial judge may reject a claim that a mitigating circumstance has been proven, provided that the record contains competent, substantial evidence to support the rejection. Franqui v. State, 804 So.2d 1185, 1196 (Fla.2001) *1065 (citing Mansfield v. State, 758 So.2d 636, 646 (Fla.2000)). A trial court's rejection of a proposed mitigating factor will be upheld on appeal so long as competent, substantial evidence exists to support the rejection. Banks v. State, 700 So.2d 363, 368 (Fla. 1997); see also Willacy v. State, 696 So.2d 693, 696 n. 6 (Fla.1997) (noting that Court's appellate review function does not involve reweighing or reevaluating evidence of aggravating and mitigating circumstances, and receding from prior cases to extent that they indicated otherwise). After reviewing the record, we find that the trial judge did not abuse his discretion in rejecting the proposed mitigating factors because his findings are supported by competent, substantial evidence.
First, competent, substantial evidence supports the trial judge's finding that Merck's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired. Katherine Sullivan, a friend of the victim who witnessed the stabbing, testified that Merck successfully caught keys thrown to him just moments before the stabbing, despite his alleged alcohol consumption, and that Merck did not have any trouble walking at the time of the murder. Neil Thomas, Merck's companion on the night of the murder, testified that Merck did not have any trouble walking or talking as a result of his alcohol consumption. Merck's efforts to evade police after the stabbing, such as abandoning the car, changing clothes, and hiding in bushes, indicate that he was not too drunk to appreciate the criminality of his actions. Finally, Dr. Sloman, the State's expert psychologist, testified that he did not believe that impairment from Merck's personality disorder or his alcohol consumption rose to the level of this statutory aggravator because he concluded that Merck made conscious decisions to behave as he did.
Second, competent, substantial evidence supports the trial judge's finding that the capital felony was not committed while Merck was under the influence of extreme mental or emotional disturbance. While Dr. Maher, the defense's expert psychiatrist, testified that he believed Merck was experiencing extreme mental or emotional turmoil at the time of the crime, Dr. Sloman testified that he did not believe that Merck was experiencing extreme mental or emotional distress at the time of the crime. When experts disagree, the trier of fact is entitled to resolve the resulting factual issue. See Walls v. State, 641 So.2d 381, 390 (Fla.1994). Here, the trial court gave greater weight to Dr. Sloman's testimony. Questions relating to evidentiary weight are within the province of the circuit court, and this Court will not reweigh the evidence on appeal. Trotter v. State, 932 So.2d 1045, 1050 (Fla.2006). We defer to the trial judge's finding that this mitigating factor was not established because his finding was supported by Dr. Sloman's testimony.
Merck also argues that the trial judge erred by not weighing more heavily the nonstatutory mitigating factors that were found to be established. This Court reviews a trial court's assignment of weight to proven mitigating factors under an abuse-of-discretion standard. Again, we do not reweigh the aggravating and mitigating factors. We defer to the trial court's determination "unless no reasonable person would have assigned the weight the trial court did." Rodgers v. State, 948 So.2d 655, 669 (Fla.2006), cert. denied, ___ U.S. ___, 128 S.Ct. 59, 169 L.Ed.2d 50 (2007) (No. 06-10961). And "while a proffered mitigating factor may be technically relevant and must be considered by the sentencer . . . the sentencer *1066 may determine in the particular case at hand that it is entitled to no weight for additional reasons or circumstances unique to that case." Trease v. State, 768 So.2d 1050, 1055 (Fla.2000) (receding from holding in Campbell v. State, 571 So.2d 415 (Fla.1990), that disallowed trial court assigning no weight to established mitigating factors).
Here, the trial judge described Merck's difficult childhood and noted Merck's apparent effort to make "the best of" being in prison before assigning those mitigating circumstances "some weight." He also explained in detail his reasons for finding that the mitigating circumstance of Merck's alcoholism and his alcohol consumption on the night of the murder merited only little weight. Again, after reviewing the record, the trial judge's assignments of weight to the established mitigating factors do not appear unreasonable or arbitrary given the entirety of the evidence presented. Thus, we find this claim is without merit.[5]
V. PROPORTIONALITY
Merck next asserts that his death sentence is disproportionate. "To determine whether death is a proportionate penalty, we consider the totality of the circumstances of the case and compare the case with other capital cases where a death sentence was imposed." Seibert v. State, 923 So.2d 460, 473 (Fla.) (citing Pearce v. State, 880 So.2d 561, 577 (Fla.2004)), cert. denied, ___ U.S. ___, 127 S.Ct. 198, 166 L.Ed.2d 162 (2006). Considering the totality of the circumstances surrounding this case, the aggravating and mitigating circumstances, and other similar cases, the death sentence imposed upon Merck is proportionate.
In this case, the trial court found two aggravating factors, conviction of a prior violent felony and HAC, which it compared to Merck's age of nineteen at the time of the offense and several nonstatutory mitigating factors, including Merck's difficult family background, his alcoholism and alcohol use on the night of the murder, and his capacity to form and maintain positive relationships. This Court has found the death penalty proportionate where the prior violent felony and HAC aggravating factors are proven, even in cases more heavily mitigated than Merck. See, e.g., Singleton v. State, 783 So.2d 970 (Fla.2001) (holding death sentence proportionate in stabbing death where trial court found prior violent felony and HAC aggravating factors and substantial mitigation, including extreme mental or emotional disturbance; impaired capacity to appreciate criminality of conduct or to conform conduct to requirements of law; age of sixty-nine at time of offense; under influence of alcohol and possibly medication at time of offense; alcoholism; mild dementia; attempted suicide; honorable military service; and model prisoner during prior sentence); Spencer v. State, 691 So.2d 1062, 1066 (Fla.1996) (holding death sentence proportionate where trial court found prior violent felony and HAC aggravating factors and proven mitigation included extreme mental or emotional disturbance; impaired capacity to appreciate criminality of conduct or to conform conduct to requirements of law; drug and alcohol abuse; paranoid personality disorder; sexual *1067 abuse; honorable military record; good employment record; and ability to function in structured environment). Based on the foregoing, we find that Merck's death sentence is proportionate under Florida law.
VI. RING CLAIM
Finally, Merck asserts that Florida's capital sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This Court addressed the constitutionality of Florida's capital sentencing scheme in light of those decisions in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002), and denied relief. Moreover, we have previously rejected each of Merck's specific arguments regarding the constitutionality of Florida's capital sentencing scheme. See State v. Steele, 921 So.2d 538, 543 (Fla. 2005) (stating State must prove at least one aggravating circumstance beyond reasonable doubt to support death sentence); Parker v. State, 904 So.2d 370, 383 (Fla. 2005) (holding jury may recommend death by majority vote); Lynch v. State, 841 So.2d 362, 378 (Fla.2003) (holding defendant not entitled to notice of aggravators in indictment because aggravators are clearly listed in statutes); Porter v. Crosby, 840 So.2d 981, 986 (Fla.2003) (holding jury not required to make specific findings of aggravating circumstances). Finally, one of the aggravating circumstances found by the trial court in this case was Merck's prior conviction of a violent felony. This Court has held that the requirement that the jury make all of the findings necessary to enhance a defendant's sentence is satisfied where one of the aggravators is the prior violent felony aggravator. See Patton v. State, 878 So.2d 368, 377 (Fla.2004) ("The existence of this prior violent felony aggravator satisfies the mandates of the United States and Florida Constitutions. . . ."). Thus, Merck is not entitled to relief.
VII. CONCLUSION
For the reasons stated above, we find most of Merck's claims to be either unpreserved or without merit. Regarding the prosecutor's closing statement, we are deeply troubled by this prosecutor's failure to abide by this Court's prior rulings. However, we do not find that the cumulative effect of the objected-to and unobjected-to comments rise to the level of fundamental error. Accordingly, we affirm Merck's death sentence.
It is so ordered.
LEWIS, C.J., and WELLS, CANTERO, and BELL, JJ., concur.
PARIENTE, J., dissents with an opinion, in which ANSTEAD and QUINCE, JJ., concur.
PARIENTE, J., dissenting.
The question presented is how many times will this Court condemn a specific closing argument and how bad does a closing argument have to be before we will reverse a verdict based on improper prosecutorial comment. In my view, the cumulative effect of multiple improper closing arguments, many of which have been repeatedly condemned by this Court, unquestionably crossed the line in this case and should not be tolerated by this Court. Combined with using a completely improper mercy argument that has been condemned as far back as 1989, the prosecutor's numerous impermissible closing arguments that repeatedly denigrated the mitigation presented denied Merck a fundamentally fair penalty phase.
*1068 Reversal is further required in light of the trial court's error in refusing to allow expert testimony on the parole process in Florida, leaving the jury with the misimpression that Merck would be paroled after twenty-five years, an important point in this case because this crime occurred in 1991. We have allowed such testimony in other death penalty proceedings. See, e.g., Hartley v. State, 686 So.2d 1316, 1319 (Fla. 1996). The prejudice to the defendant from the trial court's failure to allow the proffered evidence is demonstrated by the jury's request for additional instructions on whether Merck's time served would count toward a sentence of life without possibility of parole for twenty-five years, and asking when the twenty-five year period would begin.
As to the closing argument issue, as the majority recognizes, attorneys are permitted wide latitude in closing arguments, but they are not permitted to make improper argument. See Gore v. State, 719 So.2d 1197, 1200 (Fla.1998). More importantly, in death cases "both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects." Id. at 1202. As we have reiterated over the years, this Court expects "prosecutors, as representatives of the State, to refrain from inflammatory and abusive argument, maintain their objectivity, and behave in a professional manner." Id. (citing Urbin v. State, 714 So.2d 411, 418-22 (Fla.1998); Campbell v. State, 679 So.2d 720, 725 (Fla.1996); Nowitzke v. State, 572 So.2d 1346, 1356 (Fla.1990); Garron v. State, 528 So.2d 353, 359 (Fla. 1988); Bertolotti v. State, 476 So.2d 130, 133 (Fla.1985); Adams v. State, 192 So.2d 762, 764-65 (Fla.1966)).
These admonitions are especially important in the penalty phase of a capital case where often the nature of the crime, coupled with images of the victim being viciously murdered, makes the concept of mitigation difficult for the jury to accept. That is why it is critical that the prosecutor, as an officer of the court, not make arguments that are inflammatory, especially ones that suggest that the death penalty should be imposed simply because the defendant killed another human being. That is not the law in this State or in this country, as repeatedly spelled out by the United States Supreme Court decisions both interpreting the death penalty in light of the Eighth Amendment's prohibition against cruel and unusual punishment and recognizing the importance of mitigation in death penalty proceedings. The Constitution requires individualized sentencing in capital cases in which the circumstances of each case and each individual defendant must be considered. See Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Prosecutorial comments arguing that no mercy should be given to one who has shown no mercy fly in the face of the constitutional requirement that the penalty recommendation in each case be made on the basis of its individual facts and circumstances. Moreover, an argument exhorting the jury to show the defendant the same mercy as the defendant showed the victim is in essence a demand for vengeance. The State's role in a criminal prosecution is not to seek vengeance but to seek justice under our controlling law. This type of comment "violates the prosecutor's duty to seek justice, not merely `win' a death recommendation." Urbin, 714 So.2d at 422 (quoting Bertolotti, 476 So.2d at 133).
Topping the list of egregious comments in this case is the prosecutor's impermissible mercy argument, which the majority agrees was improper, and which was objected to and permitted by the trial court without admonition to the jury:
*1069 The Defense will be talking to you about what we call mitigation. Things about [Merck's] background they believe should warrant you affording him some mercy that he never afforded Mr. Newton.
The defense contemporaneously objected to this comment and asked that it be stricken from the record but the trial court overruled the objection. This ruling was unquestionably erroneous because this Court, as far back as 1989, has condemned the argument that asks the jury to show the defendant the same amount of mercy as the defendant showed his or her victim. See, e.g., Brooks v. State, 762 So.2d 879, 901 (Fla.2000); Urbin, 714 So.2d at 421; Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992); Rhodes v. State, 547 So.2d 1201, 1206 (Fla.1989). This type of comment is "an unnecessary appeal to the sympathies of the jurors[,] calculated to influence their sentence recommendation." Urbin, 714 So.2d at 421 (quoting Rhodes, 547 So.2d at 1206). In Urbin, the Court found this type of argument "blatantly impermissible" given precedent such as Rhodes and Richardson:
If you are tempted to show this defendant mercy, if you are tempted to show him pity, I'm going to ask you to do this, to show him the same amount of mercy, the same amount of pity that he showed Jason Hicks on September 1, 1995, and that was none.
714 So.2d at 421. We have stated before, and I am compelled to do so here again, that "[t]his line of argument is blatantly impermissible." Urbin, 714 So.2d at 421. The prosecutor violated his duty to, above all, seek justice by making a clearly impermissible argument.
There is no question that the prosecutor should have known that the argument was impermissible and the trial judge should not have allowed the prosecutor to get away with this remark. Instead, as a result of the trial court overruling the objection, the prosecutor revisited this same argument at the end of the closing:
What [Merck] did here, there should be no mercy for a merciless crime, ladies and gentlemen. On behalf of the People of [the] State of Florida and Jim Newton, I ask you all to recommend that he die.
I acknowledge that the prosecutor's mercy argument was the only prosecutorial comment objected to by the defense. But I would point out that the impermissible mercy argument to which defense counsel did object occurred near the beginning of the closing argument and was unsuccessful. While not an excuse for the defense counsel failing to object, it is possible that counsel may have been reluctant to continue to object after his objection to this clearly impermissible argument was immediately overruled. Although in my view this single unobjected-to closing argument cannot be considered harmless beyond a reasonable doubt in the context of this case, when reviewing closing arguments this Court considers the cumulative effect of all improper arguments, including the objected-to and unobjected-to closing arguments. See Brooks, 762 So.2d at 898-99 (considering cumulative effect of numerous instances of both objected-to and unobjected-to improper prosecutorial comment).
Merck also complains that the prosecutor improperly denigrated the defense's mitigation case, which is prosecutorial misconduct we have condemned in the past. Most disturbingly, the prosecutor suggested that it was a mere strategy instigated by defense counsel to have Merck read literature and science books while in prison and then assert that he had matured and changed as a result of this reading. Specifically, the prosecutor argued:
*1070 They want you to believe that this man that you heard testify today is the new Troy. This is not the Troy that taught Jim Newton how to bleed. He is reading books. He is not the only person in the jail that is of above average intelligence, he is not the first person to read a book in jail. He is reading Steinbeck now, books on science, great literature. It is interesting that his lawyer with 20 years of experience thought we have this proceeding coming up here, while we are waiting. Why don't you read these books. I'm sure that you are bored in your solitary cell there. I guess we can go and tell a jury that you are reading these books. Could I be so cynical to say that that was all by design? Maybe so. It is a strategy, is what I'm saying.
There was no evidence from which to infer that Merck's reading was his attorney's idea. The prosecutor's suggestion that Merck's reading was a manufactured strategy rather than self-education was without foundation and disparaged defense counsel as having contrived mitigating circumstances. Verbal attacks on the personal integrity of opposing counsel are inconsistent with the prosecutor's role and are unprofessional. Redish v. State, 525 So.2d 928, 931 (Fla. 1st DCA 1988); see also Clark v. State, 881 So.2d 724, 726-27 (Fla. 1st DCA 2004) (finding new trial warranted where prosecutor suggested that defense counsel manipulated evidence); Servis v. State, 855 So.2d 1190, 1193-94 (Fla. 5th DCA 2003) (finding cumulative effect of many improper comments, including suggestion that defense counsel was throwing whatever they could against the wall to see what "sticks," constituted fundamental error); D'Ambrosio v. State, 736 So.2d 44, 48 (Fla. 5th DCA 1999) (finding fundamental error due to several improper comments, including comment that defense counsel was trying to inundate jury in "the sea of confusion"). This Court likewise disapproves of such arguments by the State, which serve only to foster doubt in the jury as to the reliability of what defense counsel tells them.
This argument was part of another theme the prosecutor undertook to denigrate the proffered mitigation, arguing to the jury that "alcohol is not mitigation" and that Merck's background cannot diminish what he did to the victim.[6] In Urbin, we expressly condemned prosecutorial disparagement of proffered mitigation relating to the defendant's childhood. 714 So.2d at 421. In Brooks, we condemned prosecutorial disparagement of mitigation when it was characterized as "flimsy" or "phantom" or "excuses." 762 So.2d at 904 (citing Urbin, 714 So.2d at 422 n. 14). The prosecutor improperly disparaged Merck's mitigation in a similar manner in this case.
The prosecutor then impermissibly asked the jury how many books and Penthouse magazines the victim could have read if the victim had not been murdered, another example of a completely impermissible emotional appeal to the jury. This Court has previously held that comments that the murder victim can no longer read books and do other activities is improper because it urges consideration of factors outside the scope of deliberations. See, e.g., Jackson v. State, 522 So.2d 802, 809 (Fla.1988). This comment was made in *1071 the context of belittling Merck's effort to become educated through reading and also implied that Merck had been reading Penthouse in prison, another fact not in evidence.
There were at least two instances where the prosecutor simply invented evidence. For example, no witness testified that Merck had "Mom" tattooed on his arm. Only the prosecutor "testified" to this detail. Perhaps even more disturbing, the prosecutor, without any evidentiary basis, argued that Merck observed a fake orgasm contest the night of the murder by stating that his mitigation witnesses saw Merck as the little boy that they knew and "not the guy who spent the night drinking and watching the fake orgasm contest and decided that he was going to teach Mr. Newton how to bleed in the parking lot." (Emphasis supplied.) Clearly, comments on matters not in evidence are improper. Pagan v. State, 830 So.2d 792, 813 (Fla.2002); Pope v. Wainwright, 496 So.2d 798, 803 (Fla.1986) (citing ABA standards for Criminal Justice 3-5.8(d) (2d. ed.1980)). Together with the reference to Penthouse magazine, the prosecutor's attempt to inject a sexual element into this case seems particularly egregious because during a pretrial hearing the trial judge explicitly excluded testimony that Merck purportedly stated that he derived sexual gratification from killing as being more prejudicial than probative.
I recognize that other than the no-mercy argument, these latter remarks were not objected to and that the Court does not examine improper comments in isolation. "Rather, the Court examines the totality of the errors in the closing argument and determines whether the cumulative effect of the numerous improprieties deprived the defendant of a fair penalty phase hearing." Card v. State, 803 So.2d 613, 622 (Fla.2001) (citing Brooks, 762 So.2d at 899).
Just as in Brooks, the prosecutor's remarks here "were not mere casual innocuous observations," but rather the "record here suggests that the objectionable arguments were tendered calmly and in a fashion calculated to forestall a mercy recommendation." 762 So.2d at 905 (alteration in original) (quoting Pait v. State, 112 So.2d 380, 385 (Fla.1959)). And, in accordance with our holding in Brooks, I find "that the objected-to comments, when viewed in conjunction with the unobjected-to comments, deprived [the defendant] of a fair penalty phase hearing." 762 So.2d at 899 ("Taken individually, in a different case, the prosecutor's comments may not have been so egregious as to warrant reversal. However, the remarks must be viewed cumulatively in light of the record in this case. Here, the improprieties in the prosecutor's closing argument reached the critical mass of fundamental error.") (quoting Cochran v. State, 711 So.2d 1159, 1163 (Fla. 4th DCA 1998)). This Court recognized in Ruiz v. State, 743 So.2d 1, 7 (Fla.1999), and I would likewise hold here, that "[w]hen the properly preserved comments are combined with additional acts of prosecutorial overreaching . . . the integrity of the judicial process has been compromised and the resulting . . . sentence[] irreparably tainted."
Looking at the totality of the circumstances in this resentencing, I conclude that the prosecutor's improper comments compromised the integrity of the penalty phase process and that the jury's recommendation was tainted by the State's improper emotional appeals. As this Court has said more than once, the prosecutor in a death penalty case is charged with an obligation to ensure fundamental fairness in all aspects of the trial. See Brooks, 762 So.2d at 905; Gore, 719 So.2d at 1202. *1072 Here, the prosecutor failed in that obligation.
In addition to the improper closing argument, I agree with Merck's contention that the trial court erred in excluding proffered expert testimony regarding Florida's parole procedures and the likelihood of Merck being paroled. As the majority points out, because of the sentencing law in effect when the crime was committed in 1991, the resentencing jury was instructed that Merck could be sentenced to death or to life in prison without the possibility of parole for twenty-five years. Merck was justifiably concerned that given the possibility of parole after twenty-five years, a sentencing jury in 2004 would unduly consider that he could be paroled only twelve years from the date of their sentencing recommendation if Merck were not sentenced to death. The jury even submitted a question to the court during deliberations as to the penalty, asking: "When the term life in prison without the [possibility] of parole for 25 years is used, when does the time start counting, from this date forward or does his time served count towards the 25 years?" The trial judge responded that he could not answer them directly.
I do not agree that either Jackson v. State, 530 So.2d 269 (Fla.1988), or King v. Dugger, 555 So.2d 355 (Fla.1990), cited by the majority, controls our decision on this issue because Merck's resentencing is not as temporally distant from the day when he will become eligible for parole consideration. As we explained in Hitchcock v. State, 673 So.2d 859, 863 (Fla.1996), the potential for prejudice to the defendant as a result of parole arguments is heightened when resentencing occurs close to the expiration of the twenty-five-year minimum sentence. Accordingly, Merck should have been permitted to offer appropriate expert testimony regarding Florida's parole procedures as they pertain to a defendant who is serving a life sentence without the possibility of parole for twenty-five years. Evidence explaining the parole process would have assisted the jury in making a fair assessment of the appropriate penalty. The expert should not be allowed to opine whether or not Merck will receive parole but neither should the jury receive the misimpression that a defendant who has been convicted of first-degree murder is likely to be paroled after twenty-five years.
Lastly, I would point out that once a particular closing argument has been condemned, this Court should not send mixed signals by once again condemning the argument but affirming the death sentence. As Chief Justice Lewis aptly noted in his special concurring opinion in Brooks:
If the decisions of this Court are to have meaning, particularly in the context of argument in connection with the imposition of capital punishment, we must have uniform application of the standards announced by this Court and not random application which, in my view, leads to confusion and destabilizes the law. I must respectfully but pointedly disagree with the dissenting view that Urbin should not be followed here. I conclude that we must either follow and give meaning to the standards announced in Urbin, or reject its pronouncements and articulate the standard we deem appropriate that should be applied on a uniform basis.
762 So.2d at 906.
Urbin was decided in 1998 but the prosecutor in this sentencing proceeding six years later still made some of the same erroneous arguments expressly condemned in Urbin. Even in Urbin, this Court was constrained to comment that the fact that some of the improper comments present in Urbin were "verbatim *1073 examples of conduct we have unambiguously prohibited in Bertolotti, Garron, and their progeny simply demonstrates that there are some who would ignore our warnings concerning the need for exemplary professional and ethical conduct in the courtroom." Urbin, 714 So.2d at 422. The majority remains "deeply troubled" by this conduct but elects not to reverse because of it. I fear that, despite our best efforts to condemn improper closing arguments and urge prosecutors to refrain from emotional appeal, the majority's affirmance may send a mixed signal to prosecutors.
In his relatively short penalty-phase closing argument, the prosecutor made an improper mercy argument, commented on matters outside the scope of evidence, and suggested that defense counsel manufactured mitigation to deceive the jury, all of which are comments that have been expressly held to be improper. What is worse, all these comments were made with the apparent goal of attempting to inflame the jury's passions toward imposition of the death penalty. For all these reasons, I would reverse and remand for a new penalty phase proceeding.
ANSTEAD and QUINCE, JJ., concur.
NOTES
[1] Spencer v. State, 615 So.2d 688 (Fla.1993).
[2] The Legislature amended section 775.082(1), Florida Statutes, to provide that defendants facing the death penalty pursuant to section 921.141, Florida Statutes, for first-degree murder committed on or after May 25, 1994, shall be punished by death or life imprisonment and shall be ineligible for parole. See § 775.082, Fla. Stat. (1995).
[3] Our decision in Hitchcock v. State, 673 So.2d 859, 863 (Fla.1996), which found that the potential for prejudice to the defendant as a result of parole arguments is heightened when resentencing occurs close to the expiration of the twenty-five-year sentence is distinguishable. In the instant case, the State did not argue that Merck would be considered for parole after serving twenty-five years.
Merck's appeal does raise a pertinent issue as to whether the portion of the standard jury instruction applicable to first-degree murders committed before May 25, 1994, that informs jurors that a life sentence is "without the possibility of parole for twenty-five years" is necessary. We will refer the question of whether the standard jury instruction should be amended to the Criminal Court Steering Committee.
[4] The trial judge initially denied Merck's motion in limine regarding the foregoing evidence because he found that the prior trial judge's denial of the same motion during the first resentencing became the "law of the case" after it was upheld on appeal by this Court. This law-of-the-case reasoning was erroneous. First, in Merck's appeal from his first resentencing, this Court declined to reach Merck's claim that the trial court erred in excluding evidence regarding another suspect because the Court found reversible error on another ground. Merck II, 763 So.2d at 297. Second, this Court has consistently applied the "clean slate" rule to resentencing proceedings. Preston v. State, 607 So.2d 404, 408 (Fla.1992). A resentencing is to proceed in every respect as an entirely new proceeding. A trial judge is to properly apply the law during the new penalty phase and is not bound in proceedings after remand by a prior legal error. Id. at 409 (citing Spaziano v. State, 433 So.2d 508, 511 (Fla.1983), aff'd, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984)). However, the evidence was either admitted or not proffered, and therefore the trial court's erroneous law-of-the-case ruling was harmless error.
[5] Merck's argument on appeal does identify numerous factual misstatements in the trial court's sentencing order concerning mitigating circumstances. Factual errors in a sentencing order are subject to harmless error analysis. See Lawrence v. State, 846 So.2d 440, 450 (Fla.2003); Hartley v. State, 686 So.2d 1316, 1323 (Fla.1996). As stated above, we find that the trial judge's mitigation findings and assignments of weight are supported by the record. Thus, the factual errors are harmless.
[6] The importance of the jury's ability to consider all properly submitted, relevant mitigation cannot be underestimated. See, e.g., Lockett, 438 U.S. at 604, 98 S.Ct. 2954 (holding that the sentencing judge or jury may not be precluded from considering any evidence regarding a mitigating circumstance that is proffered by a defendant in order to receive a sentence less than death); see also Hitchcock v. Dugger, 481 U.S. 393, 399, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (same).
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 27,008
5 STEPHANIE OSBORNE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
8 Stephen Bridgforth, District Judge
9 Gary K. King, Attorney General
10 Ann M. Harvey, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Hugh W. Dangler, Chief Public Defender
14 Kathleen T. Baldridge, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 FRY, Chief Judge.
19 Defendant was convicted of negligently permitting child abuse stemming from
20 an incident in which her live-in boyfriend applied duct tape to her son, R.O., and left
21 him tied up for nearly an hour. At trial, Defendant sought to introduce evidence that
22 R.O. had gotten into trouble on numerous occasions and that he therefore had a
23 motivation to lie so that he would be removed from his mother’s home and sent to live
1 with his aunt and uncle. The district court excluded this evidence. On appeal,
2 Defendant argues that the district court erred by excluding this evidence and by
3 refusing to grant a mistrial when the prosecutor commented on Defendant’s inability
4 to show that R.O. had any motive to lie during closing arguments. For the following
5 reasons, we affirm the district court.
6 BACKGROUND
7 This case arose from an incident of child abuse perpetrated against R.O. by
8 Defendant’s boyfriend. In September 2005, Defendant’s boyfriend applied duct tape
9 to R.O. at their home in Doña Ana County. According to R.O., he had been grounded
10 for some trouble he had at school and he was not supposed to leave his room. After
11 disregarding his punishment and leaving his room on four separate occasions, R.O.
12 testified that his mother’s boyfriend came into R.O.’s room and applied duct tape to
13 R.O.’s hands, ankles, wrists, eyes and mouth. According to R.O., he was unable to
14 free himself for approximately fifty minutes and lay on the floor trying to free himself
15 and get up. After the thirty to fifty-minute period had passed, the boyfriend returned
16 to the room and removed the duct tape from R.O.’s eyes. R.O. was then able to hop
17 out to the kitchen, where he saw his mother making coffee. According to R.O., he
18 was crying at the time and tried to communicate with his mother to help him get free
2
1 but she simply looked at him and walked away. R.O. was eventually able to free
2 himself and then proceeded to clean tape residue from his body.
3 According to Defendant’s testimony and that of her boyfriend, R.O. was not
4 being punished. Instead, there was testimony that R.O. frequently liked to play a
5 game in which he would ask to be tied up in order to see how long it took him to get
6 free. According to Defendant, on the day in question, R.O. was bound only at his
7 wrists and he was not distressed or upset by the incident. Defendant’s story is
8 consistent with a version of the events that R.O. told to his biological father on the day
9 of the incident. However, after R.O. spoke to his father and the deputy, R.O. spoke
10 to Officer Chavez, whom he informed that he had been tied up as punishment and in
11 the manner he described at trial.
12 Prior to the trial, the State filed a motion in limine to exclude evidence of
13 specific incidents of R.O.’s misconduct that led to his being grounded. According to
14 Defendant, the evidence was admissible because it tended to show that R.O. had a
15 motivation to lie because he frequently got into trouble, he did not like the punishment
16 he received at home, and he wanted to be removed from his home so he could live at
17 his aunt’s house where he would not be punished as harshly. The court granted the
18 State’s motion, ruling that evidence of specific instances of misconduct were
19 inadmissible, but it allowed Defendant to introduce evidence that R.O. was a difficult
3
1 child who was routinely disciplined. The court also ruled that the defense could
2 question R.O. about any motivation he had to lie. The court informed Defendant that
3 it would reconsider its ruling during trial if Defendant so requested. Defendant never
4 asked the court to reconsider its motion, nor did Defendant directly ask R.O. about any
5 motivation he may have had to lie. Following her conviction, Defendant filed this
6 appeal.
7 DISCUSSION
8 Evidence of Victim’s Prior Bad Acts is Inadmissible
9 The specific bad acts that Defendant sought to introduce consisted of testimony
10 that R.O. had brought a knife to school, had tried to burn his house down, had broken
11 a neighbor’s windows, had verbally abused his teachers, had gotten into fights at
12 school, and was generally a troubled child. Defendant argues that the district court
13 abused its discretion in ruling that this evidence was inadmissible and that this error
14 prevented Defendant from presenting her defense to the jury and denied her the right
15 to a fair trial.
16 As a general rule, the “[a]dmission of evidence is entrusted to the discretion of
17 the [district] court, and rulings of the [district] judge will not be disturbed absent a
18 clear abuse of discretion.” State v. Worley, 100 N.M. 720, 723, 676 P.2d 247, 250
19 (1984). With respect to the admission of evidence of prior bad acts of the victim of
4
1 a crime, “an abuse of discretion may be found only if the exclusion of the evidence
2 precluded the criminal defendant from proving an element of his defense.” State v.
3 Baca, 114 N.M. 668, 672, 845 P.2d 762, 766 (1992).
4 Defendant argues that evidence of R.O.’s prior bad acts was admissible under
5 Rule 11-404(B) NMRA, which provides that while “[e]vidence of other crimes,
6 wrongs or acts is not admissible to prove the character of a person in order to show
7 action in conformity therewith,” such evidence may “be admissible for other purposes,
8 such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or
9 absence of mistake or accident.” Defendant argues that R.O.’s prior bad acts fall
10 within the motive exception to Rule 11-404(B) because the bad acts show that R.O.
11 had a motive to lie about what had happened so that he could be removed from his
12 home. Defendant’s reliance on this rule is misplaced.
13 The motive exception in Rule 11-404(B) is intended to allow evidence of a
14 defendant’s prior bad acts to be admitted to show that the defendant had a motive to
15 commit a crime, not, as Defendant argues, to show that a witness has a motive to lie.
16 See State v. Allen, 2000-NMSC-002, ¶ 41, 128 N.M. 482, 994 P.2d 728 (filed 1999)
17 (holding that evidence of a defendants prior bad acts was admissible because it
18 showed that he had a motive to murder his victim so that she could not report the
19 crime). Where, as here, the motive to be shown is a motive to lie, not a motive to
5
1 commit a crime, Rule 11-404(B) is inapplicable. The evidence is being used to attack
2 the credibility of the witness and is therefore governed by Rule 11-608 NMRA. State
3 v. Lovato, 91 N.M. 712, 715, 580 P.2d 138, 141 (Ct. App. 1978) (noting that
4 “evidence of character and conduct attacking the credibility of [a] witness” is
5 governed by Rule 11-608, not Rule 11-404).
6 Rule 11-608 specifically precludes the admission of extrinsic evidence for the
7 purpose of attacking or supporting a witness’s character for untruthfulness. Rule 11-
8 608(B). Specific instances of conduct may be inquired into on cross examination if
9 the conduct concerns the witness’s character for truthfulness, but extrinsic evidence
10 cannot be brought in to prove the conduct. Id. Thus, under Rule 11-608, Defendant
11 could have inquired about R.O.’s prior bad acts during R.O.’s cross examination, but
12 only if the bad acts reflected on R.O.’s character for truthfulness or untruthfulness.
13 Id.
14 The evidence that R.O. had attempted to burn his house down, had taken a knife
15 to school, had broken windows, and had fought with classmates and teachers did not
16 have any direct bearing on his character for truthfulness. None of the bad acts
17 Defendant sought to introduce involved dishonesty, and thus they do not fall within
18 the scope of Rule 11-608(B). See State v. Miller, 92 N.M. 520, 522, 590 P.2d 1175,
19 1177 (1979) (holding that evidence that the defendant had hired a person to kill
6
1 someone did not concern the defendant’s character for truthfulness and did not fall
2 within the scope of Rule 11-608, but that questions concerning buying stolen property,
3 selling illegal drugs, and failing to account for the proceeds of a sale did have a
4 bearing on credibility since they were crimes of dishonesty). Thus, Defendant could
5 not properly inquire about R.O.’s bad acts during cross examination because they had
6 no bearing on his character for truthfulness.
7 While it is clear that the evidence of R.O.’s prior bad acts was inadmissible
8 under Rules 11-404 and 11-608, Defendant argues that the evidence was admissible
9 because it showed that he had a motivation to lie, which is a form of bias. To reach
10 this conclusion, Defendant argues that evidence of R.O.’s specific bad acts would
11 have allowed Defendant to show that R.O. disliked the punishment he received from
12 his mother for the bad acts and was not punished by his aunt for the same conduct.
13 According to Defendant, this would have shown that R.O. lied about the duct tape
14 incident so that he could be removed from his mother’s home and placed with his
15 aunt. Thus, Defendant argues, the evidence of R.O.’s bad acts would have showed
16 that R.O. had a motivation to fabricate his story and would have impeached R.O.’s
17 testimony by showing that he was a biased witness. Defendant argues that the district
18 court’s exclusion that the evidence precluded her from presenting this defense and
19 “prevented the jury from doing its job.” We disagree.
7
1 Generally, a witness can be impeached by extrinsic evidence showing that a
2 witness may have a bias, and evidence of prior bad acts could conceivably
3 demonstrate that a witness has a bias or a motivation to lie. See State v. White, 58
4 N.M. 324, 333, 270 P.2d 727, 733 (1954) (noting that evidence showing bias or
5 interest is never excluded on the ground of being collateral). Evidence of R.O.’s prior
6 bad conduct, however, did not in and of itself demonstrate bias.
7 Furthermore, the district court’s ruling did not preclude Defendant from putting
8 forth the defense that R.O. had a motive to lie because he preferred to live with his
9 aunt and uncle. In fact, when the district court ruled that evidence of R.O.’s specific
10 conduct was inadmissible, the district court advised Defendant’s counsel that “[y]our
11 client may present evidence that the child was a difficult child . . . that they routinely
12 disciplined him by placing him in his room,” and that “he didn’t like it and didn’t react
13 to it well.” With respect to the issue of R.O.’s having fabricated his story, the court
14 advised counsel that “you certainly may ask the child if he fabricated it, and if he did
15 so to live with the” aunt and uncle and that “you could ask if [R.O.] is in any way
16 continuing a false story because he likes it at his aunt and uncle’s.” Finally, the court,
17 referring to the alleged fabrication of the story, advised that “[w]hen we get to that
18 point in time, if you want to approach the bench and ask me to reconsider in light of
19 what we’ve heard from the witness stand, I’ll certainly reconsider it.”
8
1 Thus, while the court ruled that R.O.’s prior bad acts were inadmissible, the
2 court did not preclude Defendant from asserting that R.O. had fabricated the duct tape
3 story because he preferred to live with his aunt and uncle. In fact, the court left
4 Defendant with wide latitude to elicit testimony from R.O. that he had fabricated the
5 story so that he could live with his aunt and uncle because he disliked the way his
6 mother punished him. While the court precluded Defendant from eliciting the specific
7 bad acts that had resulted in R.O.’s punishments, the court did not prevent Defendant
8 from asking R.O. if he had been punished frequently, how he felt about the
9 punishments, and if he wanted to live with his aunt and uncle to avoid being punished.
10 That Defendant’s counsel did not take the opportunity to question R.O. about his
11 motivation to lie is not an error of the court and is not grounds for reversal. Because
12 evidence of prior bad acts is inadmissible under Rules 11-404 and 11-608, and
13 because the district court’s ruling did not preclude Defendant from presenting her
14 defense to the jury, we cannot conclude that the district court abused its discretion in
15 excluding the evidence of R.O.’s misconduct.
16 Prosecutorial Misconduct
17 Defendant next argues that the district court abused its discretion by refusing
18 to declare a mistrial when the prosecutor commented on Defendant’s failure to show
19 that R.O. had any motive to fabricate his story. During closing arguments, the
9
1 prosecutor argued on three occasions that there was no motive for R.O. to lie. First,
2 the prosecutor noted that “[f]or some crazy unknown reason, this 11-year-old boy . .
3 . started telling a lie. . . . Why he ended up turning on them in the first place, nobody
4 knows.” Next, the prosecutor started to argue that “[a]s for motive for [R.O.]—again,
5 what’s [R.O.’s] motive to turn on his—” before being cut off by an objection and
6 motion for mistrial from the defense. Finally, after the court overruled Defendant’s
7 objection, the prosecutor argued that “nobody is offering a motive for why [R.O.], in
8 the first place, changed his story and started saying, Hey, this is what really
9 happened.” Defendant argues that these comments amount to prosecutorial
10 misconduct and warrant a new trial. We disagree.
11 We review the denial of a motion for mistrial based on prosecutorial
12 misconduct for an abuse of discretion. State v. Gonzales, 2000-NMSC-028, ¶ 35, 129
13 N.M. 556, 11 P.3d 131. The district court abuses its discretion in denying a motion
14 for mistrial “when the ruling is clearly against the logic and effect of the facts and
15 circumstances of the case.” State v. Simonson, 100 N.M. 297, 301, 669 P.2d 1092,
16 1096 (1983), abrogated by State v. Ruiz, 2007-NMCA-014, 141 N.M. 53, 150 P.3d
17 1003.
18 Generally, a prosecutor has wide latitude during closing arguments, State v.
19 Smith, 2001-NMSC-004, ¶ 38, 130 N.M. 117, 19 P.3d 254, and may comment on the
10
1 evidence and discuss inferences that can be drawn from the evidence. State v.
2 Hernandez, 104 N.M. 268, 275, 720 P.2d 303, 310 (Ct. App. 1986). Despite this wide
3 latitude, the prosecution engages in misconduct when it makes improper comments
4 that have “such a persuasive and prejudicial effect on the jury’s verdict that the
5 defendant [is] deprived of a fair trial.” State v. Duffy, 1998-NMSC-014, ¶ 46, 126
6 N.M. 132, 967 P.2d 807. In order to be deemed proper, the prosecution’s comments
7 “must be based upon the evidence or be in response to the defendant’s argument.”
8 Smith, 2001-NMSC-004, ¶ 38.
9 In order for us to determine whether prosecutorial misconduct requires a new
10 trial, there must first actually be prosecutorial misconduct. See Duffy, 1998-NMSC-
11 014, ¶ 46 (noting that determination of the issue “rests on whether the prosecutor’s
12 improprieties had such a persuasive and prejudicial effect on the jury’s verdict that the
13 defendant was deprived of a fair trial”). Defendant argues that the prosecution was
14 prohibited from first preventing Defendant’s presentation of her defense to the jury
15 and then commenting on Defendant’s lack of a defense. As discussed above,
16 however, Defendant was not prevented from presenting her defense to the jury; she
17 was prevented only from presenting certain inadmissible evidence to the jury
18 regarding R.O.’s bad conduct. Defendant was free to attempt to show that R.O. had
19 a motivation to fabricate his story. Defendant chose not to attempt to elicit such
11
1 testimony from R.O. and instead chose to argue, during closing argument, that R.O.
2 had fabricated his story. Had the prosecution commented on Defendant’s failure to
3 show what R.O. had been punished for, then we would be presented with an entirely
4 different question. However, where, as here, the prosecution did not refer to any of
5 the excluded evidence, the prosecution did not make any improper statements. In
6 addition, throughout the trial, Defendant had attacked the credibility of R.O. and had
7 suggested to the jury that R.O. had fabricated his story. By commenting during
8 closing on the dearth of evidence suggesting a motive to fabricate, the prosecutor was
9 properly commenting on arguments Defendant had made and commenting on the
10 evidence introduced at trial. Because the prosecution did not make any improper
11 remarks during closing, we cannot conclude that the prosecution engaged in
12 prosecutorial misconduct.
13 Because there was no prosecutorial misconduct in this case, the district court
14 did not err in denying Defendant’s request for a mistrial.
15 CONCLUSION
16 For the foregoing reasons, we affirm Defendant’s conviction.
17 IT IS SO ORDERED.
18
19 CYNTHIA A. FRY, Chief Judge
12
1 WE CONCUR:
2
3 MICHAEL D. BUSTAMANTE, Judge
4
5 TIMOTHY L. GARCIA, Judge
13
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624 S.W.2d 655 (1981)
Don BORMASTER, Appellant,
v.
Gary L. HENDERSON and Pet Shop and Bird Clinic, Appellee.
No. C2656.
Court of Appeals of Texas, Houston, (14th Dist.).
October 15, 1981.
*657 Susan D. Steinfink, Richie & Greenberg, Houston, for appellant.
Michael V. Grover, Houston, for appellee.
Before MILLER, PAUL PRESSLER and MORSE, JJ.
MILLER, Justice.
This appeal arises out of a suit brought under the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA), Tex.Bus. & Comm.Code Ann. § 17.41, et seq. (Supp. 1980) and for breach of expressed and implied warranties under Tex.Bus. & Comm. Code Ann. §§ 2.313, 2.314 (Vernon 1968). Trial was before the court without jury, and a take nothing judgment was entered against the appellant. The trial court found appellant failed to prove by a preponderance of the evidence that the appellees committed any false, misleading or deceptive acts, or breached any expressed or implied warranties. Appellant perfected this appeal. This court finds no error in the action of the trial court, and we affirm its judgment.
Appellee Pet Shop and Bird Clinic (Pet Shop) is a local business involved in the retail sale and post-sale care of exotic animals and birds. Appellee Gary L. Henderson is the president of the Pet Shop and served as the salesman for the purchase which is the basis of this suit. On April 8, 1978, appellant Don Bormaster purchased an umbrella cockatoo from the appellees for $895.00. Prior to purchase, Henderson stated the cockatoo was healthy and gave the appellant an "Official Health Certificate for Animals and Fowl." The certificate contained a 72-hour expressed warranty on the health of the cockatoo, to be effective only after a veterinarian examination prior to purchase. Appellant purchased the cockatoo without a prior medical examination by the Pet Shop's veterinarian. Two days later, however, appellant took the cockatoo to a veterinarian of his choice, Dr. Soifer, who after a brief examination stated the cockatoo was in good health.
Two weeks later the cockatoo began showing signs of poor health. The appellant telephoned the Pet Shop, which suggested he take the cockatoo to a veterinarian. The appellant took the cockatoo back to Dr. Soifer, who conducted tests and prescribed medication for psittacosis, a disease common in domestic birds at that time. The cockatoo, however, failed to improve as a result of the medication. On April 28, appellant returned the cockatoo to the Pet Shop for treatment, where it died two days later. The cockatoo's carcass was sent to Dr. James Grimes, a professor of veterinary microbiology at Texas A&M University, for a post-mortem examination. After conducting an autopsy, Dr. Grimes concluded the cockatoo died of filariasis, an infection/infestation caused by the existence of microfilariae parasites in the bird. Dr. Grimes was also of the opinion the cockatoo was infected with microfilariae on April 8, the date of purchase, because of the magnitude of the filariae infestation at the time of death. Based upon this testimony, appellant claimed the cockatoo was defective and unmerchantable at the time of purchase, and therefore, the appellees violated the DTPA and breached expressed and implied warranties.
Appellant raises seven points of error on appeal, which can be simplified into four points. First, appellant claims the trial court's finding the appellant did not prove the cockatoo's death by a preponderance of the evidence goes against the great weight and preponderance of the evidence presented at trial. Second, the trial court's finding of fact and conclusion the appellees' acts did not violate the DTPA is without support *658 in the evidence and is against the great weight and preponderance of the evidence. Third, the trial court's finding of fact and conclusion the appellees did not breach any expressed warranties is without support in the evidence and is against the great weight and preponderance of the evidence. Fourth, the trial court's finding of fact and conclusion the appellees did not breach any implied warranties is without support in the evidence and is against the great weight and preponderance of the evidence. We will address these points in this order.
Appellant's first point raises a factual insufficiency claim. Appellant asserts the trial court's finding he failed to prove the cause of death of the cockatoo by a preponderance of the evidence is contrary to the great weight and preponderance of the evidence. The rule of law this court must follow in reviewing factual insufficiency errors is clear: this court is to consider all of the evidence in the record, both the evidence tending to prove the existence of a vital fact and the evidence tending to disprove its existence. If, after considering all of the evidence, this court concludes the trial court's decision is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust, it must sustain the point and remand the case for a new trial. If, however, the evidence does not lead to this conclusion, the point is overruled and the trial court's judgment must be affirmed. In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); see: Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas L.Rev. 361, 367-368 (1960).
The issue underlying this first point, and running through all of the points on appeal, is whether sufficient evidence was presented at trial to support the court's finding appellant failed to prove by a preponderance of the evidence a preexisting defective condition or breach of warranty in the sale of the cockatoo. Stated more succinctly, the question is whether appellant presented such unrebuttable medical expert testimony of the cause of disease and death of his cockatoo so as to prove his DTPA and breach of warranties case by a preponderance of the evidence. After reviewing all of the evidence in the record, we are of the opinion the trial court had sufficient rebuttal expert medical testimony upon which to hold appellant did not prove his case. Since sufficient evidence exists to support the trial court's finding, we hold the trial court was not in error in entering a take nothing judgment against appellant.
Four medical experts testified at trial; Doctors Grimes and Soifer for the appellant and Doctors Buck and Ewert for the appellees. Appellant's claim the cockatoo was diseased at the time of purchase and the disease was the cockatoo's cause of death (and, therefore, the condition of the cockatoo was defective and in breach of warranties) is based on the deposition testimony of Dr. Grimes. As referred to earlier, Dr. Grimes testified to a reasonable medical probability that the cockatoo died of filariasis infestation caused by microfilariae and most probably the cockatoo was infected when purchased by appellant. Upon this testimony the appellant built his claim the cockatoo was defective and unmerchantable at the time of purchase. The testimony of the appellant's other expert, Dr. Soifer, was basically inconclusive. Dr. Soifer testified his examination of the cockatoo at the time of purchase did not include a blood test for microfilariae, so the existence of filariasis would have been undetected.
The appellees produced two medical experts to rebut the appellant's evidence. Dr. Edith Buck, a professor of parasitology and medical entomology, disagreed with the testimony of Dr. Grimes in two areas. Dr. Buck questioned the validity of Dr. Grimes' autopsy of the cockatoo, stating the examination procedures employed by Dr. Grimes could not have determined the cockatoo's cause of death. Dr. Buck also questioned the conclusion that microfilariae could cause death under these circumstances. She testified that in her opinion, microfilariae are harmless parasites and are only dangerous to their host when brought under outside stimulation. Therefore, it was not valid to state the microfilariae killed the *659 cockatoo. Dr. Adam Ewert, a parasitologist specializing in the study of filariasis, supported the testimony of Dr. Buck that microfilariae are not pathogenic.
Appellant raises three objections concerning the testimony of appellees' medical experts. First, appellant claims Dr. Buck and Dr. Ewert were not qualified to testify as experts because neither were veterinarians or pathologists, nor had they examined the cockatoo. Second, appellant asserts the testimony of Doctors Buck and Ewert was not adequate to rebut Dr. Grimes because it was not based on a "reasonable medical probability." Lenger v. Physician's General Hospital, Inc., 455 S.W.2d 703 (Tex.1970). Third, appellant claims the trial court erred in not relying on the better and more complete testimony, which was that of Dr. Grimes. We do not agree.
The qualifications and credibility of witnesses are matters to be evaluated by the fact finder. Great American Insurance Co. v. Murray, 437 S.W.2d 264 (Tex.1969). In a nonjury trial the judge is the trier of fact and it is his prerogative and responsibility to weigh the credibility and the proof of the evidence. Ruth v. Imperial Ins. Co., 579 S.W.2d 523, 525 (Tex.Civ.App. Houston [14th Dist.] 1979, no writ). Appellant's contention Dr. Buck and Dr. Ewert were not qualified to testify as to the cockatoo's possible cause of death was a matter the trial judge was most suited to decide. Appellant is correct in asserting a fact finder should take into consideration a medical expert's training, skill and experience and his manner and attitude in testifying. See: State Reserve Life Ins. Co. v. Ives, 535 S.W.2d 400, 405 (Tex.Civ.App.Fort Worth 1976, no writ). The trial judge heard the qualifications of appellees' experts (Dr. Buck: a microbiologist/parasitologist with 30 years experience; and Dr. Ewert: a microbiologist/parasitologist with 15 years study of filariasis), and over appellant's counsel's objection permitted them to testify and express opinions. While appellees' experts are not veterinarians, their testimony was restricted to the characteristics of microfilariae, an area within their expertise as parasitologists.
Furthermore, this court does not read Lenger v. Physician's General Hospital, Inc., 455 S.W.2d 703 (Tex.1970), as requiring appellees' rebuttal expert medical testimony be based on a reasonable medical probability. Lenger required that before there can be a finding of ultimate fact the proof must establish a causal connection beyond the point of conjecture. The ultimate finding must rest on at least a reasonable (medical) probability. Id. at 706. The Supreme Court was addressing in Lenger the burden that would warrant submission of the issue to the fact finder, not the standard for expert rebuttal testimony or for medical testimony in general. In fact, the Court went on to hold that fact finders are not limited to only considering expert testimony of a reasonable medical probability in coming to a conclusion. Id. Therefore, the trial court did not err by considering the appellees' rebuttal expert testimony. Dr. Grimes' testimony was not necessarily the most complete or depicted medical opinion given at trial, and it was contradicted by qualified medical testimony. The opinion testimony of an expert witness, even if not contradicted by an opposing expert, is generally not binding upon the trier of facts if more than one possible conclusion can be drawn from the facts. Gregory v. Texas Employers Ins. Ass'n, 530 S.W.2d 105 (Tex.1975). This court concludes the trial court had sufficient rebuttal evidence upon which to hold appellant failed to prove the cockatoo's death by a preponderance of the evidence. This point of error is overruled.
The remainder of appellant's points of error raise no evidence and insufficient evidence (against the greater weight and preponderance of the evidence) claims. In considering no evidence points of error, this court is to consider only the evidence and inferences tending to support the finding and conclusions of the trial court and is to disregard all evidence and inferences to the contrary. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). If that evidence is so weak as *660 to do no more than create a mere surmise or suspicion of the existence of the vital facts, then the trial court's judgment must be reversed. Otherwise, sufficient evidence exists, and the trial court's judgment must be affirmed. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); see Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas L.Rev. 361 (1960). This court's role in insufficient evidence claims has already been stated.
Appellant claims in this second point of error the trial court's finding the appellees did not violate the Deceptive Trade Practices Consumer Protection Act is without support in the evidence and against the great weight and preponderance of the evidence. Appellant asserts the appellees misrepresented the quality of the cockatoo at the time of purchase by stating the bird was healthy, when in fact the bird was diseased and of defective quality. Appellant further asserts those misrepresentations of health induced his purchase of the cockatoo, and he was damaged as a result.
The requirement for proving a DTPA case are found under § 17.50 of the Tex.Bus. & Comm.Code. First, the petitioner of the action must be a consumer. Delaney Realty, Inc. v. Ozuna, 593 S.W.2d 797 (Tex.Civ.App.El Paso 1980, writ ref'd n.r.e.). Section 17.45(4) of the Act defines a consumer as "an individual, partnership or corporation who seeks or acquires by purchase or lease, any goods or services." Goods are defined as "tangible chattels or real property purchased or leased for use." Id. § 17.45(1). Second, a claim under the DTPA is actionable where there have been false, misleading or deceptive acts enumerated in the "laundry-list" of § 17.46(b). Finally, the false, misleading or deceptive act must constitute a producing cause of damages. The DTPA requires actual damages be incurred before there can be recovery under the Act. Reiger v. DeWylf, 566 S.W.2d 47 (Tex.Civ.App.Beaumont 1978, writ ref'd n.r.e.).
It is clear the appellant was a consumer under the definitions of the DTPA, and the cockatoo was a tangible chattel within the meaning of the Act. It is not clear, however, that a false, misleading or deceptive act occurred which constituted a producing cause of the damage. Sufficient evidence was presented at trial through the testimony of Doctors Buck and Ewert whereby the trial court could have concluded there were no misrepresentations as to the cockatoo's particular standard, quality or grade. In that the appellant failed to conclusively show by a preponderance of the evidence the cause of death of the cockatoo, he failed to meet his burden of showing a defective condition at the time of purchase. This being the case, the trial court was correct in holding a DTPA action was not met. There was evidence as a matter of law to support this holding and such evidence was sufficient so as to not be against the great weight and preponderance of the evidence. This point of error is overruled.
Appellant next raises a no evidence and insufficient evidence point of error on a breach of expressed warranty claim. Appellant claims the trial court erred in holding appellees did not breach any expressed warranties in the purchase of the cockatoo, and that such holding is without support in the evidence and against the great weight and preponderance of the evidence. Appellant points to two separate representations by the appellees as amounting to expressed warranties: the written "Official Health Certificate for Animals and Fowl" and appellee Henderson's oral statements that the cockatoo was "healthy." Appellant asserts he relied on these expressed warranties and was damaged as a result.
The law with respect to expressed warranties is found in § 2.313 of the Tex.Bus. & Comm.Code. An expressed warranty is created when a seller makes an affirmation of fact or a promise to the buyer which relates to the goods sold and warrants a conformity to the affirmation as promised. For there to be a breach of the warranties action in this case, appellant had the burden to prove the goods were in disconformity with the promises made at the time of purchase, e.g., the appellant had to *661 prove the bird was not healthy at the time of purchase. Id. The trial court found appellant did not prove by a preponderance of the evidence a cause of death of the cockatoo, or a diseased condition at the time of purchase. This being the case, there was no showing of a breach of the expressed warranties. We hold there was evidence as a matter of law to support the trial court's conclusion and that such evidence was sufficient so as to not be against the great weight and preponderance of the evidence. This point is overruled.
Appellant's final point of error suffers from the same infirmity. Appellant finally claims the trial court's finding and conclusion of no breach of an implied warranty of merchantability under § 2.314 Tex. Bus. & Comm.Code is without support in the evidence and against the great weight and preponderance of the evidence. Appellant asserts appellee Henderson was a merchant and impliedly warranted the bird was merchantable. Once again, however, appellant failed to prove by a preponderance of the evidence the cockatoo was diseased at the time of purchase or its cause of death. Therefore, appellant failed to prove any implied warranty of merchantability was breached. The trial court had sufficient evidence upon which to hold appellant failed to prove his case. Since there was evidence as a matter of law to support the trial court's conclusion and the evidence was sufficient so as to not be against the great weight and preponderance of the evidence, this point of error is overruled.
As all points of error are overruled, the judgment of the trial court is affirmed.
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189 F.3d 650 (7th Cir. 1999)
Bradley DeBraska, et al., Plaintiffs-Appellants,v.City of Milwaukee, Defendant-Appellee.
No. 98-4022
United States Court of Appeals, Seventh Circuit
Argued April 14, 1999Decided September 2, 1999
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 96-C-402--Myron L. Gordon, Judge.
Before Coffey, Flaum, and Easterbrook, Circuit Judges.
Easterbrook, Circuit Judge.
1
Almost 1900 current and former Milwaukee police officers, led by their union the Milwaukee Police Association, brought this suit against the City of Milwaukee under the Fair Labor Standards Act, 29 U.S.C. sec.sec. 201-19. Sixty percent of these plaintiffs, including the Union, also participated in a FLSA suit against the City that began in 1988 and was settled in 1990. Part of the settlement was a "Plaintiffs' Covenant as to Future Actions" promising not to relitigate the issues raised in the 1988 complaint or urge any other officer to do so. The primary contention in this case--that the City's rules for using compensatory time off must be modified--was raised and dropped without resolution in the first. Two secondary issues--whether sick leave time devoted to attending "predisciplinary" hearings count as work for FLSA purposes--are new. The district court held that claim preclusion (res judicata) prevents any police officer from litigating the compensatory-time question that was dropped in the first case, and that hours on sick leave or in "predisciplinary" hearings are not compensable. 11 F. Supp. 2d 1020 (E.D. Wis. 1998). We tackle the new contentions before taking up the question whether the compensatory- time issue remains open to litigation.
2
Milwaukee requires officers on sick or injury leave to remain at home unless they obtain permission, which is readily granted for purposes such as attending a doctor's appointment, purchasing food, attending religious services, and exercising under medical direction. According to the plaintiffs, time at home is like "on call" time, for which employees must be compensated if personal activities are severely restricted. See Dinges v. Sacred Heart St. Mary's Hospitals, Inc., 164 F.3d 1056 (7th Cir. 1999); 29 C.F.R. sec.785.16. On plaintiffs' view, sickness produces not simply a day's pay, but four days' pay--regular pay for eight hours (the current situation), plus overtime pay for the other sixteen (8 + (16 x 1.5) = 32 hours' pay per day sick or injured, which goes up at double-time rates for weekends). The district court rejected this contention because plaintiffs failed to prove that their activities were severely restricted by the limitation; they respond that house arrest is restriction enough (and that, in any event, the district court improperly discounted two affidavits). Milwaukee asks us to affirm on a different ground: that the Act and its regulations do not mention sick leave, so an employer can attach any conditions it wants. That can't be so. Employers could not, for example, insist that as a condition of sick leave employees abandon their entitlement to overtime pay for the rest of the year.
3
Nonetheless, we think that the district judge is right, for a simple reason: sick and injured officers are not fit to work, are not "engaged to wait" at home for work, and therefore are not working. Compare Armour & Co. v. Wantock, 323 U.S. 126 (1944), with Skidmore v. Swift & Co., 323 U.S. 134 (1944). A police department may define compensable sickness or injury as a condition sufficiently severe that it requires a person to stay at home. An officer who claims to be sick or injured to that extent, and therefore unable to work, may be required to behave in accord with the representation that led the City to grant the leave. It is the physical limitations that confine the officer to home; all the Police Department does is demand that officers end their leave, and come back to work, when they are at last able and eager to roam about like healthy people.
4
Pay for disciplinary hearings is our next subject. Milwaukee holds two before disciplining an officer. The first or preliminary hearing is a simple affair, of the kind contemplated by Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). The second is formal. Time spent "adjusting grievances" at work is compensable. 29 C.F.R. sec.785.42. The City concedes that under this regulation the formal disciplinary hearing counts as work. Its approach to the preliminary hearing, by contrast, has fluctuated. If an oral preliminary hearing was held during an officer's duty shift, then the City treated hearing time as work time. If an oral preliminary hearing was held at another time, however, the City did not treat it as work; in Milwaukee's view an officer's attendance was voluntary (the City did not require the officer to attend and was delighted if he did not) and therefore on his own time. In December 1996, after the officers filed this suit demanding compensation, the City ended all oral preliminary hearings. Today officers are allowed to submit written explanations, an option contemplated by Loudermill, 470 U.S. at 546, and the City does not compensate officers for time spent drafting. The district court held that none of the time devoted to the preliminary hearing is compensable, whether the officer participates orally or in writing, because Milwaukee does not require the officer to participate or control the officer's use of time for his own purposes while the hearing is ongoing.
5
Plaintiffs respond that on the district court's (and Milwaukee's) approach even the formal, dispositive hearing would not be compensable, a conclusion that would contradict 29 C.F.R. sec.785.42. If, as some of its language suggests, sec.785.42 is limited to grievances adjusted during an employee's regular shift, there is no contradiction, for Milwaukee always has compensated officers for time devoted to hearings during their scheduled work time. An employee who voluntarily invests additional time can't demand that the employer pay him for self-appointed (and wholly self-interested) efforts. That this is the right way to understand sec.785.42 is implied by another regulation, which defines "voluntary." Attendance at meetings "is not voluntary in fact if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance." 29 C.F.R. sec.785.28. Because the outcome of a preliminary inquiry does not adversely affect either working conditions or the continuation of employment--and because Milwaukee does not draw an adverse inference from the submission of a written statement instead of an oral one--the officer's physical presence at the preliminary hearing was "voluntary" under this definition (though appearance at the formal, final hearing would not be "voluntary" by this standard). By failing to attend a predisciplinary hearing, an officer does not forfeit anything: the hearing still takes place, the commanding officer must attend, and the charged officer does not lose any right to present his case in writing or to avail himself of any later procedures. Although the officer has forgone an opportunity to better his situation, the law does not require the added inducement of pay. What would be the point in proposing to dock an officer five or ten hours' pay as a disciplinary measure if the Police Department had to pay the same officer a similar number of hours (perhaps at overtime rates) in order to accomplish the discipline?
6
Only our most complex issue remains. Milwaukee takes advantage of its option to give officers compensatory time off in lieu of overtime. 29 U.S.C. sec.207(o). It does not permit officers to use this time on demand, however; officers must apply in advance, and the City will deny the application if staffing levels would fall too far below the norm. According to the FLSA, employees must be allowed to use compensatory leave "within a reasonable period after making the request if the use . . . does not unduly disrupt the operations" of the employer. 29 U.S.C. sec.207(o)(5). See also 29 C.F.R. sec.553.25(c), (d). Plaintiffs say that Milwaukee is too stingy about granting leave, and that it would not "unduly disrupt" the Police Department's operations to pay other officers (at overtime rates) to make up the shortfall in personnel that otherwise would occur when many officers want to take compensatory leave at the same time. Milwaukee responds that this understanding of "unduly disrupt" would make the compensatory- leave system pointless. If the only way to give one officer compensatory leave (in lieu of overtime pay) is to hire another at an overtime rate, the City might as well pay the officers in cash rather than leave to begin with.
7
The district court did not tackle this dispute substantively. Instead it held the plaintiffs precluded by the disposition of the 1988 suit. This is not because the 1990 settlement and consent decree resolved the dispute by contract (or judicial decision); the parties let the issue drop without resolution, and we therefore need not decide what effect the contractual resolution of a tough FLSA issue might have. The Supreme Court has held that "FLSA rights cannot be abridged by contract or otherwise waived", Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 740 (1981), but has not decided "what limitation, if any, sec.[2]16(b) of the Act places on the validity of agreements between an employer and employee to settle claims arising under the Act if the settlement is made as the result of a bona fide dispute between the two parties". Brooklyn Bank v. O'Neil, 324 U.S. 697, 714 (1945). See also Jewell Ridge Coal Corp. v. United Mine Workers, 325 U.S. 161, 169-70 (1945); Dinges, 164 F.3d at 1059. All we have here, however, is a decision in 1990 to take a particular dispute off the bargaining table. Perhaps Milwaukee compensated the officers for this concession, but what it got in return was not a resolution but only a promise by the Union and the plaintiffs not to sue again. That promise cannot affect the 773 plaintiffs in this case who were not parties to the 1988 suit, and a claim that they are bound by the Union's handling of the issue would face substantial obstacles, given this circuit's dim view of preclusion by virtual representation in suits other than class actions (and FLSA suits are opt-in, rather than representative, actions). See Tice v. American Airlines, Inc., 162 F.3d 966 (7th Cir. 1998). So preclusion could apply only to those plaintiffs who were also parties to the 1988 case-- and we think that even those officers are not precluded.
8
What the district court relied on is the branch of preclusion known as merger and bar: a plaintiff must present in a single case all legal claims arising out of the same transaction. Parties to the 1988 case could not have turned around the week after the settlement and sought additional recovery under the FLSA for work done to date. But they have not tried to do so. This suit, filed in 1996, seeks compensation for labor that post-dated the settlement by three or more years. Plaintiffs charge the City with the same type of activity that they raised (and then dropped) in the 1988 case--stinginess in granting requests for compensatory leave--but the 1996 suit refers to subsequent instances of that behavior, which could not have been raised in the 1988 suit or resolved by the 1990 settlement. Allowing the consent decree to bar these claims would be akin to barring suit by a man who has been punched for the second Tuesday in a row by the same ruffian because the suit for the first blow has been abandoned--and this would be so even if the ruffian were acting in a predictable way, say in collecting a juice loan. The Supreme Court's decision in CIR v. Sunnen, 333 U.S. 591 (1948), is incompatible with the district court's approach. Dealing with tax years instead of work weeks, the Court wrote that "if a claim of liability or non-liability relating to a particular tax year is litigated, a judgment on the merits is res judicata as to any subsequent proceeding involving the same claim and the same tax year. But if the later proceeding is concerned with a similar . . . claim relating to a different tax year," it is open to adjudication without regard to the doctrine of merger and bar. Id. at 598 (emphasis added). A new pay period is to a wage earner what a new year is to a taxpayer. 29 C.F.R. sec.790.21(b). Disputes about compensation for pay periods after the settlement must be resolved on the merits, even though disputes about earlier claims are closed.
9
Our conclusion that the employees are free to litigate their comp-time claim may have additional consequences. Milwaukee may have compensated the officers in 1990 by giving in on other debatable issues. If the prospective portion of the employees' bargain lasts only one pay period, then so too does the City's. Moreover, benefits the City has provided to the officers under the settlement for pay periods after 1990 may be offset against any recoveries that the plaintiffs receive on their comp-time claims--if, indeed, they ultimately prevail on those claims. Because the district judge did not reach the merits, and because factual disputes may be important, we do not do so either. (Both sides assert that there are no disputed issues of material fact, but the parties' versions of what the "undisputed" facts are differ markedly.)
10
Finally, there is the matter of the Union's covenant not to sue or to foment litigation about the matters covered by the 1988 complaint. The district judge dismissed the Union as a party after concluding that it could not represent its members in court, but it is possible that the City may be entitled to relief against the Union- -for example, in the amount of the attorneys' fees spent to defend this case--if the current suit was sponsored by the Union and the covenant has been violated. The officers are represented by the same lawyers who filed the 1988 case, and the Union has underwritten this suit. Plaintiffs tell us that the 1990 covenant promised only to refrain from litigation about pre-1991 pay periods. Maybe so, and in that event the Union has kept its bargain. But the district court evidently read the promise more broadly, and on remand it should inquire whether the Union broke its promise--and, if so, what remedy is appropriate.
Affirmed in part and remanded in part
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701 F.Supp.2d 863 (2009)
A.A., by and through his parents and legal guardians, Michelle BETENBAUGH and Kenney Arocha; Michelle Betenbaugh, individually; and Kenney Arocha, individually, Plaintiffs,
v.
NEEDVILLE INDEPENDENT SCHOOL DISTRICT, Defendant.
Civil Action No. H-08-2934.
United States District Court, S.D. Texas, Houston Division.
January 20, 2009.
*865 Daniel Mach, American Civil Liberties Union, Washington, DC, Lisa Graybill, *866 ACLU Foundation of Texas, Fleming Terrell, American Civil Liberties Union Foundation of Texas, Austin, TX, for Plaintiffs.
Jeffrey Lee Hoffman, Kristen Zingaro Foster, Henslee Fowler et al., Houston, TX, for Defendant.
MEMORANDUM AND ORDER
KEITH P. ELLISON, District Judge.
Pending before the Court is Plaintiffs' Motion for Preliminary Injunction (Doc. No. 3) pursuant to Federal Rules of Civil Procedure 65(a). Three evidentiary hearings were held at which both sides presented documentary and testimonial evidence. Having considered the evidence, arguments, and relevant law, the Court finds that Plaintiffs' Motion should be granted in part and denied in part for the reasons stated herein.
I. FINDINGS OF FACT
A. Plaintiffs' Religious Beliefs
Plaintiffs seek relief from an elementary school's hair style regulation that allegedly burdens their constitutional rights. Plaintiffs Michelle Betenbaugh and Kenney Arocha are married, and they have one son, Plaintiff A.A., who is five years old. (Prelim. Inj. Hr'g Tr., vol. II, 173:1-2, October 22, 2008.) Plaintiff Betenbaugh's relatives purchased land in Needville, Texas, and Plaintiffs decided to move there. They planned to enroll A.A. in Needville Elementary School when he began kindergarten in the fall of 2008. (Id. at 186:21-187:6.)
Plaintiff Arocha identifies as Native American. (Id. at 173:5-6.) When he was a child, his maternal grandfather and uncle told him he was Native American. (Id. at 173:7-10.) The same grandfather and uncle taught him certain beliefs and "gave him tools" to guide him through the day and to help him "better understand his purpose." (Id. at 173:5-10.) He bases his religious practices on these teachings. (Id. at 177:24-25.) His grandfather wore his hair short, but his uncle wore his hair long and in one or two braids. (Id. at 213:1-11.) Plaintiff Arocha wore his hair long as a young child and was forced to cut it when he began school, an experience he describes as "unsettling." (Id. at 181: 18-23.) His other family members, including his mother, claim to be Hispanic and practice Catholicism. (Id. at 174:3-5; 179:11-16.) Plaintiff Arocha believes that members of his tribe escaped the United States to avoid being placed on reservations and later returned, identifying themselves as Mexican nationals. (Id. at 174:13-17.)
As Plaintiff Arocha grew older, he practiced Catholicism, and then Mormonism; neither suited him. (Id. at 179:11-18.) Ten to eleven years ago, at Plaintiff Betenbaugh's urging, he began to "reconnect" to his Native American religion and the teachings of his grandfather and uncle. (Id. at 179:17-21.) At hearing, he articulated his religious beliefs:
"What I like to do, I like to have reverence every day to understand that at every turn, no matter what it was, no matter what it is that we're doing, something somewhere had to give itself up for us and to understand that and the pay close attention to that, in order to respect whatever it was that gave itself up for me."
(Id. at 175:18-23.) He believes that these values reflect Native American beliefs and are thus connected to his ancestry. (Id. at 176:1-4.)
Plaintiff Arocha concedes that his understanding of his religion is incomplete, but he continues to research Native American religion and culture on a daily basis. (Id. at 180:14-20.) He has petitioned to join the Lipan Apache tribe (Id. at 178:6-8), but he has been unable to collect the required genealogical records. (Id. at *867 174:22-175:13.) He practices smudging, a traditional ritual that is a form of prayer. (Id. at 176:23-177:1). As part of the process of reconnecting with his family's teachings, Plaintiff Arocha also wears his hair long. (Id. at 182: 2-5.) He admits that, when he began to grow his hair long, he was not doing so for religious reasons. (Id. at 182:8-17.) A common theme of his religious experience, however, has been to discover that "something he has been doing for a long time winds up being something that's more significant." (Id. at 184:23-25.) He believes this is because he comes to a better understanding of his grandfather and uncle's teachings on a daily basis. (Id. at 185:2-3.) It has been ten to eleven years since he last cut his hair. (Id. at 182:1-5.)
Plaintiff Arocha now feels that his hair is "a symbol, an outward extension of who we are and where we come from, our ancestry and where we're going in life. It's a constant reminder to us of who we are." (Id. at 181:10-15.) Plaintiff Arocha will not cut his long hair unless he is in mourning for a loved one. (Id. at 182:25-183:2.) An employer once threatened to terminate him if he did not cut his hair, but Plaintiff Arocha refused. (Id. at 253:8-15.) When he underwent brain surgery, he worked with his doctors to avoid having his hair cut for the procedure. (Id. 262:25-263:25.) He does, however, occasionally shave the sides of his head because of the summer heat. (Id. at 250: 14-20.) Plaintiff Arocha has not suffered any teasing because of his long hair; instead, people ask him whether he is Native American, and he tells them that he is. (Id. at 207:10-14.)
Plaintiff Arocha also finds religious significance in braiding his long hair. (Id. at 183:18-19.) He believes that each braid and each plait has a deep meaning, and that the very act of braiding helps him feel connected to who he is. (Id. at 183:11-15.) He formed these beliefs regarding his braids after the Needville Board of Trustees ("the School Board") granted A.A. an exemption from its school's grooming policy requiring him to keep his hair covered under his shirt, in one braid. (Id. at 217:6-16.)
Plaintiffs Arocha and Betenbaugh have chosen, as parents, to teach A.A. Native American religious principles. (Id. at 181:8-15.) As an example of their teachings, Plaintiff Arocha testified that when A.A.'s horse became ill, they had A.A. lead the horse to the vet to be euthanized so that he could understand that "all things come to an end." (Id. at 176:7-22.) Additionally, A.A.'s hair has never been cut, and he typically wears it in two long braids. (Id. at 185:14-18; Pis.' Ex. 4-5.) His parents have explained to him that his hair connects him to his ancestors and is a constant reminder of "how long he has been here and an extension of who he is." (Id. at 185:12-14.) When people ask A.A. why he has long hair, he tells them it is because he is Native American. (Id. at 181:5-7.) Plaintiffs Arocha and Betenbaum have begun to explain to A.A. what the two braids mean. (Id. at 185:14-18.) When Plaintiff Betenbaum bought A.A. a wig as part of a Halloween costume, he refused to wear it because he did not want to cover his braids. (Id. at 186:1-4.)
B. Plaintiff A.A.'s Enrollment in Needville Independent School District
Needville Independent School District ("NISD") has 2500 students enrolled in elementary, intermediate, middle, and high school. (Prelim. Inj. Hr'g Tr., vol. I, 10:12-14, Oct. 17, 2008.) The district has a dress code in place that contains the following provision: "Boys' hair shall not cover any part of the ear or touch the top of the standard collar in the back." (Ver. *868 Compl., Ex. 1.) The dress code also outlines the punishment for violations: "For persistent offenses, students will be subject to assignment in ISS, suspension, or assignment to the Needville ISD DAEP" (Ver. Compl., Ex. 1.) The dress code's self-proclaimed purpose is "to teach hygiene, instill discipline, prevent disruption, avoid safety hazards, and assert authority." (Ver. Compl., Ex. 1.) Prior to A.A., no student had requested a religious exemption from the dress code in at least 22 years. (Prelim. Inj. Hr'g Tr., vol. II, 295:17-25.)[1]
Prior to the family's move to Needville, Plaintiff Betenbaugh first contacted NISD about A.A.'s Native American heritage, and his hair length, via email on November 6, 2007. (Ver. Compl., Ex. 2 at 16.) In that email, she inquired whether, in light of the dress code, A.A.'s hair would be a problem when he began kindergarten, and what documentation would be necessary to prove his heritage. Id. The email was directed to Linda Sweeney, the secretary of NISD Superintendent Curtis Rhodes. Id. Superintendent Rhodes never received the email (Prelim. Inj. Hr'g Tr., vol. I, 8:7-11), and Plaintiffs did not receive a response. (Id. at 187:20-22.)
Plaintiff Betenbaugh next contacted NISD about A.A.'s hair length in an email to Needville Elementary School Principal Jeanna Sniffin dated May 27, 2008. (Ver. Compl., Ex. 2 at 15.) Principal Sniffin responded to Plaintiff Betenbaugh's inquiry by telling her that long hair was not permitted for boys. (Id.) Plaintiff Betenbaugh then emailed Superintendent Rhodes directly about the issue, notifying him that A.A. wore his hair long in accordance with Plaintiffs' religious beliefs. (Ver. Compl., Ex. 4.)
Rhodes agreed to meet with Plaintiffs on June 9, 2008, to discuss A.A.'s hair. (Ver. Compl., Ex. 2 at 27.) He requested proof of Plaintiffs' belief that hair should not be cut. Plaintiffs explained that their religious beliefs were passed down orally, and that they could not direct him to a book that said they needed to wear their hair long. (Prelim. Inj. Hr'g Tr., vol. II, 189:18-21; 190:1-5.) Plaintiffs gave Superintendent Rhodes copies of court opinions that they believe supported their position, including Alabama and Coushatta Tribes of Texas v. Big Sandy School Dist., 817 F.Supp. 1319 (E.D.Tex.1993), a copy of the Native American Freedom of Religion Act, and the results of a DNA test, conducted in 2005, that indicated that Plaintiff Arocha was of Native American descent. (Id. at 191:4-7.) They explained to Superintendent Rhodes that, according to their beliefs, hair was not to be cut except at life-changing events, and characterized it as "a yardstick of wisdom." (Id. at 280.) At one point, Plaintiffs described the decision as "a personal choice" and said that they had asked A.A. whether he wanted to cut his hair before attending school. (Id. at 280:8-15.) The meeting lasted approximately twenty minutes. (Id. at 329:19-21.)%
Superintendent Rhodes denied Plaintiffs' request on June 16, 2008.[2] (Ver. *869 Compl., Ex. 2 at 29.) His written denial gave no explanation for his decision; instead, it informed Plaintiffs about the procedure for appealing his decision to the School Board. (Id.) On June 25, 2008, Plaintiffs appealed his decision by filing a Level Three Appeal Notice to the School Board. (Ver. Compl., Ex. 2 at 27.) In that appeal, as their reason for seeking a request, Plaintiffs stated: "We as parents disagree with Mr. Rhodes' decision because our son's hair and its length are a sacred part of the belief system we practice. Cutting hair in order to comply with the dress code is not an option." (Id. at 28.)
Prior to the Level Three hearing, the local media became interested in the dispute and interviewed both Plaintiffs and Superintendent Rhodes. An article in the Houston Press, dated July 10, 2008, quoted Superintendent Rhodes:
"I've got a lot of friends that are Native American Indians ... and they all cut their hair. We're not going to succumb to everything and just wash away our policies and procedures.... If you want to think we're backwards ... no one is asking you to move to Needville and have these opinions invoked on you."
(Ver. Compl., Ex. 5.)
On July 16, 2008, the School Board held an open meeting to discuss Plaintiffs' exemption request. The meeting was "standing room only" and many members of the Needville community voiced their opinions about Plaintiffs' request. (Prelim. Inj. Hr'g Tr., vol. II, 194:16-20.) At the public meeting, Plaintiffs Arocha and Betenbaugh both spoke, and they were represented by a member of the American Indian Movement. (Id. at 195:1-5.) Superintendent Rhodes then advised the School Board that Plaintiffs' request should be deemed premature since Plaintiffs did not yet reside in the district. (Id. at 312:2.) The School Board adopted this position and informed Plaintiffs that, because they did not live within the district's limits, there would be no decision, and they would have to start the process over once they moved into the school district. (Id. at 195: 22-25.) There is no official policy requiring a child to live in NISD before a dress code exemption can be decided. (Id. at 298:6-11.) In fact, Superintendent Rhodes had previously denied Plaintiffs' Level Two request without informing them that they had to first move into the district. He formed his opinion that the request was premature after his Level Two meeting with Plaintiffs, but he did not inform Plaintiffs of his decision before the July 16th School Board meeting. (Id. at 313:1-3.)
Following the meeting, Plaintiffs expedited their efforts to take up residence in Needville. (Prelim. Inj. Hr'g Tr., vol. II, 197:4-6.) On August 7, 2008, NISD formally informed Plaintiffs that they would be required to apply for an exemption from the NISD dress code once A.A. was properly enrolled in the district. (Ver. Compl., Ex. 2 at 20.) This time, Plaintiffs were required to complete NISD's newly created "exemption form." (Prelim. Inj. Hr'g Tr. vol. II, 197:16-21.) On August 8, 2008, Plaintiffs filed a Request for Exemption. In that request, they stated that "A.A. has a sincerely held religious belief as do many Native Americans that his long hair is not only an expression of his ancestry and heritage, but also a sacred symbol of his life and experience in this world, and that it should be cut only to mark major life events such as the death of a loved one. A.A. has learned these religious beliefs from his father, who shares the same ancestry, heritage, and beliefs." (Ver. Compl., Ex. 2 at 17.) The Request for Exemption also stated that A.A.'s hair had never been cut. (Id. at 18.) On August 13, 2008, A.A. was effectively enrolled in *870 NISD. (Ver. Compl., Ex. 2 at 11; Prelim. Inj. Hr'g Tr., vol. II, 197:13.)
On August 18, 2008, Superintendent Rhodes denied Plaintiffs' second Level Two exemption request. (Ver. Compl. Ex. 2, 7-8.) On August 19, 2008, Plaintiffs again appealed Superintendent Rhodes' Level Two decision to the School Board by filing a Level Three Appeal Notice. (Ver. Compl., Ex. 2.). In the Appeal Notice, Plaintiffs informed the School Board that Plaintiff Arocha is not a member of a particular Native American tribe, but his DNA indicates that he is biologically descended from Native Americans. (Id. at 2-3.) The Appeal Notice went on to state that Plaintiff Arocha learned of his Native American heritage through his grandfather and uncle, and that he believes that he is descended from the Lipan Apaches, and that he was collecting the required genealogical records to apply for tribal membership. Finally, it noted that Plaintiff Arocha has not cut his hair in observance of his religious beliefs for ten years, and that A.A.'s hair has never been cut. It stated that Plaintiff Arocha had risked termination rather than comply with an employer's hair length policy, and that he maintained his braids during a month-long stay in the hospital. (Id. at 3.)
The second Level Three hearing occurred on August 20, 2008. (Ver. Compl. Ex. 9.) Before the School Board convened, Superintendent Rhodes and Plaintiffs held a meeting, with counsel, to determine whether the parties could resolve the dispute. In that meeting, Superintendent Rhodes learned, for the first time, that Plaintiff Arocha had refused to have his hair cut when he had brain surgery; Superintendent Rhodes found this to be compelling evidence of Plaintiff Arocha's sincerity. (Prelim. Inj. Hr'g Tr., vol. II, 285:3-6.) As a result, he offered to allow A.A. to wear his hair on top of his head, in a bun, as a compromise to prevent him from violating the dress code. (Prelim. Inj. Hr'g Tr., vol. II, 321:17-25.) Plaintiffs rejected this offer.
At the second School Board meeting, Plaintiffs, who were represented by counsel, were allowed to speak. Following their presentation, the School Board went into an executive session and consulted with Superintendent Rhodes. (Ver. Compl., Ex. 9, at 18:13-19.) In that session, Superintendent Rhodes advocated that, as an accommodation, A.A. be allowed to wear his hair long, "in a tightly woven single braid down his back with the hair behind his ears, out of his eyes and the braid tucked into the collar of his shirt." (Ver. Compl., Ex. 9 at 18: 3-6; Prelim. Inj. Hr'g Tr., vol. II, 286:13-287:25.) Superintendent Rhodes constructed some version of this policy before his meeting with Plaintiffs and their counsel (Prelim. Inj. Hr'g Tr., vol. II, 317:7-17), but he had not suggested it to them, and he did not know how they felt about it. (Id. at 322:4-9.) There is no NISD policy that prohibits female students with long hair from wearing two braids instead of one, or that requires a student to tuck her long hair under her shirt. (Id. at 306:12-29.)
The School Board decided to adopt Superintendent Rhodes' recommendation. In announcing the School Board decision, board member Kim Janke commented: "Although I disagree with the law presented in this case and understand and support why Mr. Rhodes made the decision that he made, I move that the Board grant the Level Three grievance...." (Ver. Compl., Ex. 9 at 20.)
C. A.A.'s In School Suspension
On August 19, 2008, NISD agreed "not to discipline [A.A.] until the soonest of the following occurs, the student receives an injunction to prevent his compliance from the dress code or September 22, 2008, *871 whichever occurs first." (Ver. Compl., Ex. 7.) On August 22, 2008, in response to inquiries from Plaintiffs, NISD appeared to change its position, stating that its understanding of the agreement, based on correspondence between counsel, was that the grace period would only be triggered if "NISD did not grant A.A. an exemption by August 20, 2008." (Ver. Compl., Ex. 11.)
A.A. began kindergarten on August 25th, 2008; he wore his hair in two long braids. (Prelim. Inj. Hr'g Tr., vol. II, 201:7-8.) On August 25, 2008, NISD informed Plaintiffs that A.A. would need to comply with the exemption by September 2, 2008, or "discipline would be imposed." (Ver. Compl. Ex. 12.) At one point during his first week of school, A.A. was in the boys' bathroom, and some students came out and told a teacher that a little girl was in the boys' room. (Prelim. Inj. Hr'g Tr., vol. I, 151:3-8.) The confusion was easily resolved, however, when the teacher realized it was A.A. (Id. at 158:9-13.) Later, on a field trip, a mother accidentally put A.A. in line with the girls instead of the boys. (Id. at 151:14-17.) During the first week of school, Plaintiffs Arocha and Betenbaugh were not contacted about any discipline problems involving A.A., the bathroom confusion, or any problems with A.A.'s hair falling in his eyes. (Prelim. Inj. Hr'g Tr., vol. II, 204:5-206:-25.)
On September 3, 2008, A.A. was placed in In School Suspension ("ISS") for failure to comply with the Board's exemption policy. (Ver. Compl. Ex. 15.) While in ISS, A.A. received one-on-one instruction (Prelim. Inj. Hr'g Tr., vol. I, 161:12-14), and thirty minutes of recess every day. (Id. at 163:23-25.) He was, however, deprived of the opportunity to socialize with other children. (Id. at 157:12-19.) Once A.A. was placed in ISS, there was another incident in which students told a teacher that a girl was in the boys' restroom. (Id. at 151:14-17.)
On October 3, 2008, this Court entered a Preliminary Injunction directing NISD to allow A.A. to return to class and wear his hair as he wants until further hearing on the matter. Since his return to his regular class, A.A. has not interfered with the teacher's ability to teach. (Id. at 158:15-18.) His hair sometimes falls in his eyes and his teacher has to tell him to tuck it behind his ear. (Id. at 154:25-155:9.) The teacher occasionally has to make the same suggestion to girls wearing pigtails. (Id. at 159:5-8.)
Plaintiffs allege that NISD's exemption policy violates (1) A.A.'s rights to free exercise of religion under the First and Fourteenth Amendments, U.S. Const, amends. I, XIV § 1, and Texas' Religious Freedom Restoration Act ("TRFA"), Tex. Civ. Prac. & Rem.Code Ch. 110, (2) A.A.'s right to free expression under the First and Fourteenth Amendments, and (3) Plaintiff Arocha and Betenbaugh's Fourteenth Amendment right to raise A.A. according to their Native American religion and heritage. As a result, Plaintiffs seek declaratory and injunctive relief against NISD pursuant to 42 U.S.C. § 1983 and TEX. CIV. PRAC. & REM. c. § 110.005 for the above violations.
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 over Plaintiffs' causes of action alleged under the Constitution of the United States and 42 U.S.C. § 1983, and supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiff A.A.'s cause of action under TRFRA. Declaratory and injunctive relief are authorized by 28 U.S.C. § 2201 and § 2202, TEX. CIV. PRAC. & REM. c. § 110.005(a) and FED. R.CIV.P. 57 and 65.
II. PRELIMINARY INJUNCTION STANDARD
"A preliminary injunction requires that `the applicant ... show (1) a substantial *872 likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) granting the preliminary injunction will not disserve the public interest.'" Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 768 (5th Cir.2007) (quoting Lake Charles Diesel, Inc. v. General Motors Corp., 328 F.3d 192, 195-96 (5th Cir.2003)). Although the grant or denial of a preliminary injunction rests in the discretion of the trial court, Deckert v. Indep. Shares Corp., 311 U.S. 282, 290, 61 S.Ct. 229, 85 L.Ed. 189 (1940), "[w]e have cautioned repeatedly that a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has `clearly carried the burden of persuasion' on all four requirements." Lake Charles Diesel, 328 F.3d at 196 (citing Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.1985)).
III. SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS
A. Free Exercise Clause
The Free Exercise Clause of the First Amendment, which has been applied to the states through the Fourteenth Amendment, see Cantwell v. Conn., 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). The Fourteenth Amendment protects citizens from all state agents, including school boards. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). While school boards have "important, delicate, and highly discretionary functions," they must carry out their duties "within the limits of the Bill of Rights." Id.
1. Sincerely Held Religious Belief
Only beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion. Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 713-714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981). The Supreme Court long has recognized that determining whether a belief or practice is "religious" is a "difficult and delicate task." (Thomas, 450 U.S. at 714, 101 S.Ct. 1425). In view of this difficulty, neither the Supreme Court nor the Fifth Circuit has set forth a precise standard for distinguishing the religious belief from the secular choice. Theriault v. Carlson, 495 F.2d 390, 394, n. 6 (5th Cir.1974). Other circuits have cautiously attempted to create a standard, characterizing religious beliefs as those that "address spiritual, not worldly concerns," Callahan v. Woods, 658 F.2d 679 (9th Cir.1981), "fundamental and ultimate questions," Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3d Cir.1981), and "ultimate as opposed to intellectual concerns," International Soc. For Krishna Consciousness, Inc. v. Barber, 650 F.2d 430 (2d Cir.1981).
NISD granted Plaintiffs a religious exemption from the dress code, which seemingly implied that the School Board accepted the Plaintiffs' views regarding hair length as sincerely held religious beliefs. After Plaintiffs filed suit, however, NISD chose to contest the sincerity of Plaintiffs' beliefs. (Prelim. Inj. Hr'g Tr., vol. II, 350: 9-17.) The Court must therefore consider whether Plaintiffs have a sincerely held religious belief that hair should be worn long.
*873 a. Native American Religion
First, NISD contends that the Native American belief regarding long hair is cultural and not religious. Dr. James Riding In, an Associate Professor of American Indian Studies at Arizona State University (Prelim. Inj. Hr'g Tr., vol. I, 36:20-22), testified regarding the history of Native American culture and religion. The major commonality among Native American religious practices is a belief "in the interconnectedness of humans with animals, with plants, and with Mother Earth." (Id. at 72:16-17.) Dr. Riding In described Native American religion as "a way of life" as opposed to discrete acts of praying or attending church. (Id. at 79:3-6.) Traditionally, religious beliefs and practices have varied greatly across tribes (Id. at 72:22-25), and many religious tenets were passed down orally. (Id. at 74:14-75:3.). Anthropologists' accounts of Native American beliefs are frequently inaccurate. (Id.) The historical record of Native American religion is therefore incomplete. (Id. at 75:1-6.)
Native American religion was greatly impacted by the federal government's efforts to assimilate Native Americans in the 19th and 20th century. (Id. at 56:14-18.) Native American children were sent to boarding schools where teachers prohibited them from speaking their indigenous language and practicing their own religious beliefs. (Id. at 43:15-25.) Many of these children wore their hair long "as part of a custom ... rooted in religious belief." (Id. at 53:21-54:7.) At the boarding schools, however, they were forced to cut their hair because it was viewed as a symbol of "an inferior, backwards way of living." (Id. at 80:8-14.) Following the federal government's attempts at religious suppression, some Native Americans retained their traditional religious beliefs, some created Native American churches, and some turned to Christianity. (Id. at 78:9-10.)
Today, in part because of the different traditions of tribes and in part because many traditions were destroyed by assimilation policies, there is "great diversity" within the Native American community regarding hair length. (Id. at 61:17-20.) Dr. Riding In testified that Native American culture is undergoing a process of "decolonization," which means an attempt to "reestablish many of the elements of culture that was lost and to live according to the traditional values, attitudes and beliefs." (Id. at 39:16-19.) A common feature of this process is for Native American men to grow long hair. For some men, this act has religious significance, and they believe their hair should only be cut during periods of mourning. (Id. at 49:3-13.) This belief was traditionally common among the Northern Plains Indians, but it was not universally practiced among tribes. (Id.)
Other courts have acknowledged that, while for historical reasons, the Native American movement is comparatively "nebulous and unstructured," it is certainly a religion, indicated by its "system of beliefs concerning the relationship of human beings and their bodies to the nature and reality." Alabama, 817 F.Supp. at 1329. In particular, the Fifth Circuit has recognized that the Native American custom regarding wearing long hair, "while in some parts cultural, has strong religious implications." Diaz v. Collins, 114 F.3d 69, 73 (5th Cir.1997). Other circuits have similarly recognized the religious significance of hair length in Native American communities. Warsoldier v. Woodford, 418 F.3d 989, 992 (9th Cir.2005) (acknowledging that a tenet of the Cahuilla Tribes' religious faith is that hair must only be cut upon the death of a relative); Gallahan v. Hollyfield, 516 F.Supp. 1004 (E.D.Va. *874 1981), affd 670 F.2d 1345 (4th Cir.1982) (recognizing that the plaintiff, of Cherokee Indian descent, followed a religious tenet dictating that his hair was "a sense organ" and that loss of hair equated to loss of a body part). More specifically, the Eighth Circuit has held that while wearing long braided hair is not "an absolute tenet of Indian religion practiced by all Indians," it still warrants constitutional protection if it is a "deeply rooted religious belief." Teterud v. Burns, 522 F.2d 357, 360 (8th Cir.1975).
b. Plaintiffs' Religious Beliefs
Plaintiff Arocha claims to follow the Native American religious practice of wearing his hair long except when mourning a loved one. NISD has questioned his belief on several grounds. Superintendent Rhodes, who twice denied Plaintiffs' Level Two Exemption Request, characterized Plaintiff Arocha's beliefs as a "personal choice," noting that Plaintiffs had asked A.A. if he wanted to cut his hair. (Prelim Inj. Hr'g, vol. II, 301:24-302:3.) Superintendent Rhodes testified that Plaintiffs were unable to provide him with written evidence of their beliefs, a religion that could be researched, or a tribal affiliation. (Id. at 298:22-299:3.) He questioned Plaintiff Arocha's sincerity because Plaintiff Arocha admitted that he sometimes cuts his hair on the sides when the weather is warm. Rhodes was also troubled about Plaintiffs' sincerity when others in Needville showed him websites demonstrating that Plaintiffs were involved in the Goth community.[3] (Id. at 281:19-21.) Ultimately, Superintendent Rhodes felt that he could never gather enough information to determine that Plaintiffs' belief was sincerely religious. These concerns reflect those NISD voiced at the preliminary injunction hearing.
While the Supreme Court has not defined the term "religious," it has evaluated the merits of plaintiffs' purported religious beliefs. In Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), the plaintiff was a Jehovah's Witness employed in a foundry. When he was transferred to a division that fabricated armaments, he requested a lay-off because working on weapons violated his religious principles. Indiana denied his request for unemployment benefits; the Indiana Supreme Court upheld the denial, calling the plaintiffs reasons for quitting a "personal philosophical choice" instead of religious. It based its decision on inconsistencies in the plaintiffs explanation of his beliefs and his practice of them and the fact that other Jehovah Witnesses testified that working on armaments was "scripturally acceptable."
The Supreme Court reversed, stating that "Courts should not undertake to dissect religious beliefs because the believer admits that he is `struggling' with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ." Id. at 715, 101 S.Ct. 1425. The Court refused to be persuaded by alleged inconsistencies in Thomas' beliefs, noting that when a plaintiff draws a line, "it is not for the Court to say it is an unreasonable one." Id. The Court noted that intra-faith differences were not "uncommon" and that the judicial process is "singularly ill equipped to resolve such differences in relation to the Religion Clause." Id. The *875 Court held that "the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect." Id. at 715-716, 101 S.Ct. 1425.
In Frazee v. III. Dept. of Emp. Security, 489 U.S. 829, 109 S.Ct. 1514, 103 L.Ed.2d 914 (1989), the plaintiff refused a temporary position because it would have required him to work on Sunday, which violated his belief that he should not work on "the Lord's day." The Illinois Department of Employment Security rejected his application for unemployment benefits, and the Illinois Appellate Court affirmed the decision on the grounds that the plaintiffs religious belief was not "found in a tenet or dogma of an established religious sect." Id. at 831, 109 S.Ct. 1514. The Supreme Court reversed, rejecting the notion "that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization." Id. It was sufficient that Frazee's refusal was based on a "sincerely held religious belief." Id.
The Fifth Circuit evaluates plaintiffs' religious beliefs with similar deference. In Ferguson v. C.I.R., 921 F.2d 588 (5th Cir. 1991), the plaintiff believed that parts of the Christian Bible prevented her from taking any oath or affirmation. When she appeared for a Tax Court hearing, she refused to be sworn before giving testimony; the Tax Court dismissed her petition for lack of prosecution. The Fifth Circuit overturned, noting that the Tax Court erred in evaluating her religious belief and dismissing it because it did not violate any "recognizable religious scruple." Id. at 590-91.
Given Dr. Riding In's testimony, and the Fifth Circuit's ruling in Diaz, the Court has no difficulty finding that some Native American communities assign religious significance to hair length. Plaintiff Arocha clearly shares that belief, even though he does not belong to a tribe that practices it. He does not have to prove that all other Lipan Apaches have beliefs that are identical to his own; moreover, he is not required to prove his belief by pointing to a "tenet or dogma" of any particular Indian tribe or organization.[4] Plaintiff Arocha is only required to show that he himself has these "deeply held religious beliefs," which he has done. He describes his hair as "an outward extension of who we are and where we come from, our ancestry and where we're going in life." He taught A.A. that his hair demonstrates "how long [A.A.] has been here" and is "an extension of who [A.A.] is." His long hair addresses "fundamental" and "ultimate" concerns by helping him to understand himself and his place and direction in the world. Cf. Africa v. Com. of Pa., 662 F.2d 1025, 1032 (3rd Cir.1981) (holding that incarcerated plaintiff failed to assert a "religious" belief because his views did not mention a fundamental concern including, "the meaning and purpose of life").
*876 There is no evidence that Plaintiff Arocha's beliefs are "purely secular," or motivated by strictly political or philosophical concerns.[5]Callahan, 658 F.2d 679 at 684 (citing Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)). Plaintiff Arocha's beliefs are not "obviously shams and absurdities ... devoid of religious sincerity." Cf. Theriault, 495 F.2d at 394 (holding that an incarcerated plaintiffs "long list of court actions" and "lengthy prison record" necessitated careful scrutiny of his claims of religious sincerity). Plaintiff Arocha has not cut his hair in ten to eleven years. He refused to cut his hair when prevailed upon by an employer, and he maintained its length through an involved medical procedure that included brain surgery.
Plaintiff Arocha's decision to shave his hair on the sides does not weaken the sincerity of his religious beliefs for the purpose of his free exercise claim. As the Supreme Court found in Thomas, it is not the Court's place to question where a plaintiff "draws lines" in his religious practice. 450 U.S. at 715, 101 S.Ct. 1425. Upon inquiry from the Court about shaving the sides of his head, Plaintiff Arocha responded that he had "kept the length." Plaintiff Arocha appears to find significance in the fact that his hair is long, not full, and the Court is in no position to evaluate how Plaintiff Arocha reconciles this distinction. The Court therefore finds that Plaintiffs Arocha and A.A. have a sincerely held belief that their hair should be worn long.
2. Substantial Burden
a. The Exemption Policy
After demonstrating that he possesses a "sincerely held religious belief," a plaintiff must prove that a government regulation substantially burdens that belief. Defendants argue that, in order to prove a regulation imposes a substantial burden, the plaintiff must show that the regulation in question "compels action or inaction with respect to the sincerely held religious belief." Defendants point to Hicks v. Garner, 69 F.3d 22 (5th Cir.1995), as the source of this standard. Hicks, which discussed a prisoner's claim brought pursuant to the Religious Freedom Restoration Act (RFRA), did not actually set forth a definition of "substantial burden" to be applied in the free exercise context. Rather, the Hicks court noted that courts had defined "substantial burden" many different ways and collected various definitions from other circuits, without expressing a preference. Id. at 26 n. 22.
Plaintiffs urge the Court to employ the definition of "substantial burden" used in Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004). In Adkins, the Fifth Circuit had to determine the definition of "substantially burden" to be applied under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). After considering the plain wording of the statute, its legislative history, and the Supreme Court's use of the term "substantially burden" in other contexts, the Adkins court held that a regulation creates a "substantial burden" if it "truly pressures the adherent to significantly *877 modify his religious behavior and significantly violates his religious beliefs." Id. at 570. The effect of a government action or regulation is "significant" when it either (1) influences the adherent to act in a way that violates his religious beliefs or (2) forces the adherent to choose between, on the one hand, enjoying some generally available, non-trivial benefit, and on the other hand, following his religious beliefs. Id. A government regulation does not rise to the level of a substantial burden on religious exercise if it merely prevents the adherent from either enjoying some benefit that is not otherwise generally available or acting in a way that is not otherwise generally allowed. Id. The Court believes that this is the correct standard to apply.
The School Board's exemption policy burdens A.A.'s significantly held religious belief that his hair should be worn long. A.A.'s hair is approximately thirteen inches long. (Prelim. Inj. Hr'g., Pis.' Ex. 4-5.) The School Board's policy will require him to wear it "in a tightly woven braid," stuffed down the back of his shirt, for the rest of his academic career at NISD. By the policy's terms, A.A. must wear his hair in his shirt during recess, on field trips, and on the school bus. When he becomes older, he will have to wear his hair down the back of his shirt at football games, school dances, and, presumably, his high school graduation.
The policy will deny A.A. the opportunity to express a religious practice that is very dear to him and his father. See e.g. Chalifoux v. New Caney Indep. Sch. Dist., 976 F.Supp. 659, 667 (S.D.Tex.1997) (rejecting a dress code exemption, which required students to wear rosaries under their shirts, because it burdened "a sincere expression of their religious beliefs"). A.A. will also be exposed to punishment if he violates the exemption policy. There is no doubt the arrangement will cause him profound discomfort: Plaintiff Arocha testified that he becomes uncomfortable when his own hair becomes trapped under his shirt for even a few moments. It is also likely that A.A. will be subject to just as much teasing and ridicule by wearing his long hair inside his shirt than if he wore it exposed. These will be the terms of his existence for the next eleven years; otherwise, he will be forced to cut his hair, or transfer to another school district.
By imposing a physically burdensome restriction on A.A., which will last indefinitely, the School Board's exemption policy will influence him to cut his hair in violation of his religious beliefs. In the alternative, it forces him to choose between the generally available benefit of attending Needville public schools, or, on the other hand, following his religious beliefs. The policy's effects go far beyond denying him some benefit that is not otherwise generally available or preventing him from acting in a way that is not otherwise allowed. Female children attending NISD are allowed to wear their long hair exposed and in two braids, for purely secular reasons. Even though the School Board found it necessary to grant A.A. a religious exemption, it did not extend him this same freedom to wear his long hair in a comfortable, practical manner.
b. The Annual Renewal Requirement
Plaintiffs also contest the requirement that A.A. annually reapply for a religious exemption to the NISD dress code. This requirement, unlike the exemption policy, is generally applicable. (Prelim. Inj. Hr'g. Tr., vol. II, 290:1.) In Littlefield v. Forney, 268 F.3d 275, 293-294 (5th Cir. 2001), the Fifth Circuit found that a similar policy, which required families to reapply for a religious exemption from a school's dress code on an annual basis, did not burden the plaintiffs' exercise of their sincerely held religious beliefs. Plaintiffs' *878 request for relief from this requirement should therefore be denied.
3. Level of Scrutiny
Plaintiffs advance three separate theories as to why the exemption policy should be subject to strict scrutiny. For the reasons outlined below, the Court finds all three persuasive.
a. The Nature of the School Board's Regulation
The level of scrutiny to be applied to a plaintiffs free exercise claim is determined by the nature of the law or regulation being applied. A law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (citing Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)). A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. Id. "Neutrality and general applicability are interrelated, and ... failure to satisfy one requirement is likely an indication that the other has not been satisfied." Lukumi, 508 U.S. at 531, 113 S.Ct. 2217.
Defendant argues that, because NISD's dress code is neutral, and because it is universally applied, Plaintiffs' claims should be subject to rational basis review. Defendant misapprehends the nature of Plaintiffs' claim: they are not challenging the dress code, but rather the exemption policy NISD created specifically for A.A. The Court evaluates this policy, and not the NISD dress code, to determine if it is neutral and generally applicable.
It is undisputed that the exemption policy was created solely for A.A., and it applies to him alone. It is not, therefore, generally applicable. An inquiry into the regulation's neutrality begins with the policy's text. Id. at 533, 113 S.Ct. 2217. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context. Id. The exemption policy, as read into the record at the second School Board meeting, makes no reference to A.A.'s particular religion or the spiritual significance of his hair; it is therefore facially neutral.
Lukumi requires courts to look beyond a regulation's text, however, to determine its neutrality. The Free Exercise Clause requires the court to "`survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerry-manders.'" Id. (citing Walz v. Tax Comm'n of New York City, 397 U.S. 664, 696, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)). The effect of the law in its real operation is "strong evidence of its object." Id. In Lukumi, a group of Santeria practitioners challenged city ordinances that banned animal sacrifice in order to prevent animal cruelty and protect public health. The Supreme Court described the ordinances as "under inclusive" because they failed to prohibit nonreligious conduct that endangered these interests in a similar or greater degree than Santeria sacrifice. Id. at 536, 113 S.Ct. 2217; see also Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004). Because the ordinances banned Santeria sacrifice even when it was not necessary to protect public health, the Court also found that the ordinances proscribed "more religious conduct than is necessary" to achieve their purported ends. "It is not unreasonable to infer, at least when there are no persuasive indications to the contrary, that a law which visits gratuitous restrictions on religious conduct seeks not to effectuate the state governmental interests, but to suppress the conduct because of its religious motivation." *879 Id. at 538, 113 S.Ct. 2217 (citations omitted).
According to Superintendent Rhodes, who helped craft the exemption policy, it was created to have A.A.'s hair "resemble the rest of the student body in Needville." (Prelim. Inj. Hr'g. Tr., vol. I, 17:1-6.) Rhodes admitted that the policy was not created with the five specific goals of the NISD dress code in mind. (Id. at 18:5-17.) He testified that the policy was created to instill discipline and maintain order and hygiene, but he later admitted that it is not more hygienic to have one braid instead of two. (Prelim. Inj. Hr'g. Tr., vol. II, 319:12-23.) Assuming that the policy's purpose is to promote uniformity, discipline, order and hygiene, it is under inclusive. As mentioned earlier, female students are allowed to wear their long hair exposed and in two braids without being viewed as a threat to the school's order and hygiene. To the extent that the policy is meant to make A.A. look like the rest of the student body, he will stand out as the only child wearing a thirteen inch braid tucked inside his shirt. The policy proscribes more religious conduct than is necessary to achieve its stated goals. It is difficult to imagine that allowing one male child to wear long hair, as part of his religious beliefs, would disturb the school's sense of order and its efforts to teach its students hygiene. NISD is certainly able to discipline A.A. if he disrupts his class in anyway, or if he violates another provision of the dress code.
In Lukumi, the Court also looked to its equal protection jurisprudence for guidance in determining a law's neutrality. Lukumi, 508 U.S. at 540, 113 S.Ct. 2217. Relevant evidence of neutrality includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment of the official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body. Id. (citing Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). These objective factors bear on the question of discriminatory intent.
The exemption policy's history demonstrates that it was not created for a neutral purpose, but rather to burden A.A.'s practice of his religious belief. NISD's reaction to Plaintiffs' request for an exemption indicates that, from the beginning, NISD was unwilling to accommodate A.A.'s religious practice. Superintendent Rhodes made statements to the press implying that, if Plaintiffs did not like the dress code, they should not move to Needville. The School Board, and Superintendent Rhodes, allowed Plaintiffs to proceed through the entire exemption request process, only to deem their request moot after a "standing room only" community meeting. These tactics seem designed to make Plaintiffs' abandon their request, or leave the district, rather than to seriously consider A.A.'s religious beliefs. Only after Plaintiffs hired counsel did the School Board grant A.A.'s religious exemption, but the comment of Board Member Kim Jancke indicates that they did so with great reluctance.
Because the exemption policy is neither neutral nor generally applicable, it must undergo "the most rigorous scrutiny." Lukumi, 508 U.S. at 546, 113 S.Ct. 2217. It must serve government interests of the "the highest order" and be narrowly tailored in pursuit of those interests. Having A.A. "resemble the rest of the student body at Needville" is certainly not a compelling government interest. Even assuming that NISD's interest in maintaining order and hygiene among its students constituted a compelling government interest, the exemption policy is not the least restrictive means of pursuing those interests. *880 A better policy would be to allow A.A. to wear his hair long in accordance with his religious beliefs, but to make him comply with the rest of the NISD dress code, as it is applied to other students.
b. TFRA
Plaintiffs also assert that the exemption policy should be subject to strict scrutiny under the Texas Religious Freedom Act ("TRFA").[6] TRFA restored the compelling interest test to state law claims, following the Supreme Court's decision in City of Boerne, 521 U.S. 507, 117 S.Ct. 2157 (1997), which held that the federal RFRA was unconstitutional. TFRA provides that a government agency may not substantially burden a person's free exercise of religion. TEX. CIV. REM. & PRAC. C. § 110.003(a). The government action does not violate the act, however, if the government demonstrates that the application of the burden to the person is in furtherance of a compelling government interest and the least restrictive means of furthering the interest. Id. at § 110.003(b). As discussed above, the Court finds the exemption policy does not survive this strict level of scrutiny.
c. Hybrid Clam Standard
Plaintiffs argue that, even if the Court determines that the exemption policy was not neutral and generally applicable, the policy should still be subject to more than rational basis review because they advance a "hybrid claim." In Smith, Justice Scalia acknowledged that the First Amendment only bars the application of neutral, generally applicable laws to religiously motivated action in cases that involve not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and the rights of parents to direct the education of their children. Smith at 1601, 110 S.Ct. 1595 The language in Smith was rooted, in part, in the Court's reasoning in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). In that case, the Supreme Court addressed the rights of Amish parents to keep their children from progressing past the eighth grade, in violation of Wisconsin's compulsory education laws. In upholding the rights of the Amish parents, the Supreme Court held, "when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a `reasonable relation to some purpose within the competency of the state is required to sustain the validity of the states' requirement under the First Amendment." Yoder, 406 U.S. at 233, 92 S.Ct. 1526 (citations omitted).
The Fifth Circuit adopted the "hybrid claim" standard in Society of Separationists v. Herman, 939 F.2d 1207, 1216 (5th Cir.1991), in which the plaintiff argued that being forced to state an oath or affirmation violated not only her freedom of religion but also her freedom of speech. The Court of Appeals found that Smith specifically excepts "religion-plus-speech" cases from the sweep of its holding. Society of Separationists, Inc. v. Herman, 939 F.2d 1207, 1217 (1991)[7]; see also Alabama, *881 817 F.Supp. at 1332 (holding that, in hybrid claim cases, a school district must demonstrate that a regulation has more than a reasonable relationship to a substantial state interest); Chalifoux, 976 F.Supp. at 671 (same).
Plaintiffs have presented a hybrid claim, successfully demonstrating that the exemption policy violates not only A.A.'s free exercise rights, but also his rights to free expression and his parents' due process rights. Pursuant to Yoder and Smith, the Court must therefore determine whether the regulation bears more than a reasonable relationship to its stated goals. The Court finds that it does not. As has been discussed, the School Board certainly could find other means to achieve its stated goals than to have A.A. wear his hair under his shirt. Enforcing normal classroom rules will satisfy concerns about order, and the exemption policy has no real effect on student hygiene. While one could imagine that the exemption policy might be one means of achieving NISD's goals, it is certainly not the most effective. See Chalifoux, 976 F.Supp. at 671.
B. Free Speech
1. Expressive Conduct
Plaintiffs assert that NISD's requirement that A.A. cover his braids violates his First Amendment right to freedom of speech. The First Amendment protects private, religious speech. Chalifoux, 976 F.Supp. at 664 (citing Widmar v. Vincent, 454 U.S. 263, 269, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981)). The Supreme Court has long recognized that the First Amendment protects more than just the written or spoken word; conduct might be sufficiently communicative to fall within the scope of the First Amendment. Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (citing Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)).
Defendant argues that a public school student's freedom to choose a hair style is, as a matter of law, not protected by the First Amendment. The Fifth Circuit said as much in Karr v. Schmidt, 460 F.2d 609 (1972), a Vietnam War-era case involving a high school student who wished to wear his hair long in violation of his school's dress code. In Karr, the Fifth Circuit was "doubtful" that the wearing of long hair had sufficient communicative content to entitle it to First Amendment protection: "For some, no doubt, the wearing of long hair is intended to convey a discrete message to the world. But for many, the wearing of long hair is simply a matter of personal taste or the result of peer group influence." Karr, 460 F.2d at 613.
The Fifth Circuit later changed its position. In Canady v. Bossier Parish School Board, 240 F.3d 437 (5th Cir.2001), the Fifth Circuit declined to apply Karr's reasoning, at least as it pertains to clothing. In Canady, a group of parents and students challenged Bossier School System's attempt to adopt a new dress code. The district court relied on Karr in finding that choice of clothing, like hair style, is a matter of personal taste or style that is not afforded First Amendment protection. *882 The Canady Court disagreed: "While a person's choice of clothing may be predicated solely on considerations of style and comfort, an individual's choice of attire also may be endowed with sufficient levels of intentional expression to elicit First Amendment shelter." Canady, 240 F.3d at 440. The Court noted that "Clothing may also symbolize ethnic heritage, religious beliefs, and political social views." Id. It concluded that, while "this sort of expression may not convey a particularized message to warrant First Amendment protection in every instance, we cannot declare that expression of one's identity and affiliation to unique social groups through choice of clothing will never amount to protected speech." Id. at 441.
The Canady Court recognized that Karr's holding rested on the following language in Tinker v. Des Moines Ind. Comm. School Dist.: "The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment... Our problem involves direct, primary First Amendment rights akin to `pure speech.'" 393 U.S. at 507-508, 89 S.Ct. 733. The Canady Court criticized the Karr Court's conclusion that this language suggests that "hair style never warrants First Amendment protection." It noted that "if this interpretation is correct, then every choice of clothing, regardless of the intent of the wearer to communicate a particularized message, would not qualify as protected speech." Canady, 240 F.3d at 440, n. 1. It instead chose to apply the Spence and Johnson test for expressive conduct. Id. The Fifth Circuit reaffirmed this position in Littlefield v. Forney, 268 F.3d 275 (5th Cir.2001), in which plaintiffs challenged a Texas school district's adoption of a uniform dress code.
Although the Canady court specifically discussed clothing, and Littlefield involved a challenge to an entire dress code, the Court believes that the reasoning of these two cases, rather than the per se rule announced in Karr, applies to a student's choice of hair style. The Court therefore evaluates Plaintiffs' claims under the Spence and Johnson tests. To determine whether conduct possess sufficient communicative elements to warrant First Amendment protection, courts must determine whether the conduct intends to convey a particularized message and the likelihood that the message will be understood by those who view it. Johnson, 491 U.S. at 404, 109 S.Ct. 2533 (citing Spence, 418 U.S. at 410-411, 94 S.Ct. 2727). In evaluating whether conduct is "expressive," the court must consider the context within which it occurred. Johnson, 491 U.S. at 405, 109 S.Ct. 2533.
A.A.'s braids convey a particularized message of his Native American heritage and religion. Dr. Riding In testified that it is a common phenomenon for Native American men to wear their hair long and in braids as part of the decolonization process. In Alabama, our sister court recognized that long hair in Native American culture is "rife with symbolic meaning." 817 F.Supp. at 1333-1334. Plaintiff Arocha believes in wearing long hair, in part, "as a symbol, an outward extension of who we are and where we come from, our ancestry and where we're going in life. It's a constant reminder to us of who we are." Despite his young age, A.A. seems to assign his braids a similar meaning. When people ask him why he has long hair, he tells them it is because he is Native American. He chose not to cover his braids as part of a Halloween costume.
Member of the NISD community are likely to understand the meaning of A.A.'s long hair worn in braids. A predominant image of Native Americans in pop culture is the sight of Plains Indians wearing their hair in long braids. (Prelim. Inj. Hr'g. Tr., *883 vol. I, 80:15-25.) In fact, there are photographs hanging on the walls of Needville Elementary School that depict Native Americans wearing their hair long and in braids (Prelim. Inj. Hr'g., Pis. Ex. 1) and books in the school library depicting Native Americans wearing long hair. (Id. at Ex. 6.) Given these depictions, and the fact that A.A.'s father also wears his hair in long braids, teachers and students will likely understand that A.A.'s braids reflect his Native American heritage.[8]
2. Level of Scrutiny
The level of scrutiny applied to regulations of student expression depends on the substance of the message, the purpose of the regulation, and the manner in which the message is conveyed. Canady, 240 F.3d at 441. The Supreme Court has recognized three categories of student speech regulation. Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007). The first category includes regulations directed at specific student viewpoints, such as the restriction found in Tinker, which prohibited students from wearing black armbands in protest of the Vietnam War. 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731. In Tinker, the Supreme Court held that, when officials attempt to restrict students from expressing particular political views, they must demonstrate that the expression would "substantially interfere with the work of the school or impinge upon the rights of the other students." Id. at 509, 89 S.Ct. 733.
The second category encompasses the regulation of lewd, vulgar, obscene, or plainly offensive speech. Bethel School District v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). Educators have the authority to protect students from such speech. Id. The third category includes regulations of student expression that are related to school-sponsored activities. Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). In Hazelwood, the Supreme Court held that school officials could regulate school-sponsored activities such as publications and theatrical productions if their "actions are reasonably related to legitimate pedagogical concerns." Id. at 273, 108 S.Ct. 562.
Recognizing that Bossier School System's proposed dress code did not fit into any of these categories, the Canady Court created a fourth category[9] for viewpoint-neutral restrictions on student expression that happens to occur on school premises. Canady, 240 F.3d at 443. The Court reasoned that the level of scrutiny to be applied should be higher than that in cases involving student activity but less stringent than the school board's burden in Tinker. It found the expressive conduct test articulated in U.S. v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and the traditional time, place, and manner analysis appropriate, noting that they are "virtually the same standards of scrutiny for purposes of assessing the validity of the school uniform policy." Id. The Fifth Circuit, and our sister courts, have continued to apply this fourth level of scrutiny in cases involving viewpoint and content-neutral restrictions on expressive student conduct. See Porter v. Ascension *884 Parish School Board, 393 F.3d 608 (5th Cir.2004); Littlefield v. Forney, 268 F.3d 275 (5th Cir.2001); Pounds v. Katy Independent School District, 517 F.Supp.2d 901 (S.D.Tex.2007). Thus, the School Board's uniform policy will pass constitutional scrutiny if it furthers an important or substantial government interest; if the interest is unrelated to the suppression of student expression; and if the incidental restrictions on First Amendment activities are no more than is necessary to facilitate that interest. Canady, 240 F.3d at 443 (citing O'Brien, 391 U.S. at 377, 88 S.Ct. 1673).
The Court finds that the exemption does not satisfy the third prong of the O'Brien test, because the incidental restriction it places on A.A.'s freedom of expression is more than necessary to promote the school's stated interests of promoting order, discipline, and hygiene. Defendants have not demonstrated that the restrictions the exemption imposes on A.A. are necessary to further the exemption's purported goals. See, e.g., Chalifoux, 976 F.Supp. 659 (holding that a school's requirement that students wear rosaries tucked under their shirts did not further the school's interest in reducing gang violence).
C. Due Process
Plaintiffs also claim that NISD has interfered with Plaintiffs Arocha and Betenbaugh's due process right to raise A.A. in accordance with their own religious beliefs. In Wisconsin v. Yoder, the Supreme Court recognized "the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children." 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Parents have the right to inculcate their children with moral standards, religious beliefs, and elements of good citizenship. Id. at 232, 92 S.Ct. 1526. The power of the parent, however, even when linked to a free exercise claim, may be limited if it appears that the parental decision will jeopardize the health and safety of the children, or have the potential for significant state burdens. Id. at 232-234, 92 S.Ct. 1526.
Even in the free exercise context, a parent's right to control her children's upbringing and education is neither absolute nor unqualified. Combs v. Homer-Center School District, 540 F.3d 231, 248 (3rd Cir.2008). In Combs, the Third Circuit rejected the parental due process claim of a group of Christian parents who home-schooled their children. The parents alleged that the state's requirement that they comply with Pennsylvania's reporting and review procedures violated their parental due process rights on religious grounds. The Court of Appeals rejected their claim, noting that the statute at issue did not "interfere, or authorize interference, with the parent's religious teachings and/or use of religious materials." 540 F.3d at 249. In another recent decision, Parker v. Hurley, 514 F.3d 87, 105 (1st Cir.2008), the First Circuit recognized that, at the heart of a due process claim is some showing of coercion or compulsion. The plaintiffs were parents who objected to an elementary school's use of children's books that described families with same-sex parents. The plaintiffs claimed that the school was trying to indoctrinate their children with the belief that homosexual marriage is acceptable. In rejecting their claim, the First Circuit noted that "the parents do not allege coercion in the form of a direct interference with their religious beliefs, nor of compulsion in the form of punishment for their beliefs...." Id.
The Court finds that Plaintiffs Arocha and Betenbaugh have presented a valid due process claim. NISD's dress code violates their right to direct A.A.'s religious upbringing and effectively overrides *885 their ability to pass their religion onto A.A. Combs, 540 F.3d at 250 (citing Parker, 514 F.3d at 100). Even if NISD's policy does not, on its face, force A.A. to cut his hair, it certainly increases the likelihood that he will choose to do so. The interference will not just be temporary; rather, it will continue for A.A.'s entire academic career at NISD. Cf. Hansen v. Ann Arbor Public Schools, 293 F.Supp.2d 780, 814 (E.D.Mich.2003) (finding that a fifty-minute panel discussion on homosexuality, which students could opt not to attend, did not present a "Yoder-like" clash between the essence of a religious culture of an entire community and the beliefs espoused by the panelists). The Court has already discussed how the exemption policy will impose a substantial burden on both A.A.'s religious practice and his physical comfort. As a result, the exemption policy comes much closer to direct coercion and compulsion than did the situations discussed in Combs and Parker.
When a parent's due process right to raise his child is combined with a free exercise claim, more than a "reasonable relation to some purpose within the competency of the [s]tate" is required to sustain the validity of the state's requirement under the First Amendment. Yoder, 406 U.S. at 232, 92 S.Ct. 1526. In cases involving the purely secular interest of parents to direct their childrens' upbringing and education, the Fifth Circuit applies the rational basis review to the state regulation. Littlefield v. Forney, 268 F.3d at 290-291. Rational basis review is not appropriate in this case, however, because NISD's policy implicates Plaintiff Arocha and Betenbaugh's fundamental religious practices under the First Amendment. NISD must therefore show that there is more than a "reasonable relation" to some purpose within the competency of the state to sustain the validity of the state's requirement. Yoder, 406 U.S at 233, 92 S.Ct. 1526. The Court has already found that the exemption policy does not survive this heightened level of scrutiny.
IV. IRREPARABLE INJURY
Plaintiffs have demonstrated that, absent an injunction, they will suffer irreparable injury. If A.A. chooses to remain in school, but does not follow the School Board's exemption policy, he will be sent to ISS In that isolated environment, he will be deprived of the educational and social benefits that come with learning with one's peers at such a young age. (Prelim. Inj. Hr'g. Tr., vol. I, 157:6-14.) If he chooses to abide by the policy, he will suffer the harms already described. Plaintiffs' only other alternatives are to cut A.A.'s hair or leave Needville.
V. THREATENED HARM TO NISD
NISD has not demonstrated that A.A.'s wearing his hair long and in two braids substantially interferes with the school's functions or impinges on the rights of other students. After this Court granted the Preliminary Injunction, A.A. spent approximately two weeks in his regular class before the next evidentiary hearing. At that hearing, his kindergarten teacher testified that in the time he had been in his regular class, A.A. had not caused any behavioral problems or had any problems with other students. His hair sometimes falls in his eyes, but his teacher testified that this same problem sometimes occurs with girls. The other incidents that were described, such as students telling teachers that a girl was in the boy's bathroom, or a mother confusing A.A. for a girl when lining students up for a field trip, do not rise to the level of a substantial interference with the school's work. Cf. Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (5th Cir.1966) (finding that students' right to wear "freedom buttons" was not protected *886 conducted when students disturbed classes and created a state of confusion by trying to pin buttons on other, unwilling students). Moreover, these problems seem likely to diminish over a very short period of time.
VI. PUBLIC INTEREST
The public has a strong interest in the enforcement of constitutional rights, particularly in the context of public schools. "That they are educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." West Virginia State Board of Education v. Barnette, 319 U.S. at 637, 63 S.Ct. 1178.
VII. CONCLUSION
For the reasons stated above, Plaintiffs' Motion for Preliminary Injunction as to the NISD exemption policy adopted for A.A. is GRANTED. Plaintiffs' Motion is DENIED as to the NISD requirement that A.A. reapply for a religious exemption every year.
The parties have agreed, pursuant to FED.R.CIV.P. 65(a)(2), to consolidate the trial on the merits with the preliminary injunction hearing. NISD is therefore PERMANENTLY ENJOINED from applying its exemption policy to A.A. without further order of this Court.
IT IS SO ORDERED.
NOTES
[1] Since A.A. requested an exemption, another student, a Muslim fourth grader, requested an exemption in order to wear a head scarf. Her family offered what NISD considered to be sufficient evidence of their sincere religious belief, and her request was granted. (Prelim. Inj. Hr'g Tr., vol. II, 289:5.) She is required to reapply for an exemption every year. (Id. at 290:1.)
[2] NISD has a three-tiered structure for dealing with dress code exemptions. First, a family requests a Level One exemption from the school principal. If the request is denied, the family can appeal the decision to the Level Two officer, Superintendent Rhodes. If Superintendent Rhodes rejects an exemption request, a family can file a Level Three appeal to the School Board. (Prelim. Inj. Hr'g. Tr., vol. I, 12:1-7.)
[3] Plaintiff Arocha designs clothing for a living. (Prelim. Inj. Hr'g Tr., vol. II, 253:20.) The Goth community has shown a particular interest in the clothing he sells, so Plaintiff Arocha directs his advertising to the Goth community, and he and Plaintiff Betenbaugh travel to Goth conventions. (Id. at 255:1-19.) Plaintiff Arocha is not Goth, however, and his job does not conflict with his religious beliefs. (Id. at 276:6-13.)
[4] Defendant's assertion, that the Lipan Apaches were historically referred to as "the bald ones," is therefore irrelevant to the Court's inquiry. Although it is not required to support his free exercise claim, Plaintiff Arocha's decision to wear his hair in braids despite the historical tradition of the Lipan Apaches can be explained by the phenomenon of "Pan-Indianism." Many older generations of Native Americans have denied their heritage and refused to acknowledge to their children that they are Indian or to pass on knowledge about their Indian ancestry. (Prelim. Inj. Hr'g. Tr., vol. I, 46:24-47:3.) As a result of losing contact with their original tribe, many younger generations of Indians have adopted one sense of "Indianness." Often, Pan-Indianism is based on images of Plains Indians, wearing long hair in braids, or sometimes free-flowing. Even if a person's original tribe did not adopt a certain practice, like wearing long hair, that person still might adopt the practice if it is commonly recognized as being "Indian."
[5] To the extent that Plaintiff Arocha's views about hair length involve his preference to be a "nonconformist" or follow a "personal grooming choice," as Superintendent Rhodes suggested (Prelim. Inj. Hr'g Tr., vol. II, 281:11-19), his beliefs are still protected because of their obvious religious content. "The coincidence of religious and secular claims in no way extinguishes the weight appropriately accorded to the religious one." Wiggins v. Sargent, 753 F.2d 663, 666-667 (8th Cir.1985) (citing Callahan, 658 F.2d 679 at 685). The First Amendment is not limited to purely religious claims; to the extent that religious and cultural practices overlap, the area of overlap is protected. Id.
[6] NISD argues that the exemption policy is not prohibited by TFRA because the Act only applies in situations where governmental entities have not granted a religious exemption. It cites no cases to support this conclusion, which is not evident from the text of the statute.
[7] Other circuits are divided on the viability of the Smith hybrid claim standard. Combs v. Homer-Center School District, 540 F.3d 231, 244 (3rd Cir.2008) (collecting cases). The Second, Third, and Sixth Circuits have held that the language is dicta, and have refrained from using a stricter legal standard to evaluate hybrid claims. Id. at 245 (discussing Leebaert v. Harrington, 332 F.3d 134, 143 (2d Cir.2003); Watchtower Bible and Tract Soc'y of New York, Inc. v. Stratton, 240 F.3d 553, 561-562 (6th Cir.2001)). The First Circuit and the D.C. Circuit have acknowledged that the theory warrants heightened scrutiny, but require a plaintiff first to prove that the free exercise claim is joined with an independently viable companion right. Combs, 540 F.3d at 245 (discussing Gary S. v. Manchester Sch. Dist., 374 F.3d 15, 18-19 (1st Cir.2004); Henderson v. Kennedy, 253 F.3d 12, 19 (D.C.Cir.2001)). The United States Court of Appeals for the Ninth and Tenth Circuits recognize hybrid rights and require a plaintiff to raise a "colorable claim" that a companion right has been violated. Combs, 540 F.3d at 246 (discussing San Jose Christian Coll. v. Morgan Hill, 360 F.3d 1024, 1032 (9th Cir. 2004); Swanson v. Guthrie Indep. Sch. Dist., 135 F.3d 694, 700 (10th Cir.1998)).
[8] At hearing, Defense counsel argued that community members will not recognize A.A.'s message because many men, such as Willie Nelson and Snoop Dogg, wear their hair long and in braids for reasons other than expressing Native American heritage. While the Court does not express an opinion on the truth of this allegation, it notes that these entertainers are wearing their long hair in very different contexts, that change the content of their message.
[9] Since Canady, the Supreme Court has created an additional category for regulations that aim to prevent illegal drug use. Morse v. Frederick, 127 S.Ct. at 2629.
| {
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} |
241 Kan. 441 (1987)
738 P.2d 1210
LORETTA L. TETUAN, Appellee,
v.
A.H. ROBINS COMPANY, Appellant.
No. 58,502
Supreme Court of Kansas.
Opinion filed June 12, 1987.
Ronald D. Heck, of Fisher, Heck & Cavanaugh, of Topeka, argued the cause, and Cynthia J. Schriock, of the same firm, was with him on the briefs for appellant.
Bradley Post, of Post, Syrios & Bradshaw, of Wichita, argued the cause, and Arden Bradshaw, of the same firm, Robert E. Keeshan, of Hamilton, Peterson, Tipton & Keeshan, of Topeka, and Gene E. Schroer and Frank Rice, of Schroer & Rice, P.A., of Topeka, were with him on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.:
Plaintiff Loretta L. Tetuan filed the present civil action against defendant A.H. Robins Co., Inc., on January 29, 1982. The plaintiff's suit concerned personal injuries allegedly resulting from her use of an intrauterine contraceptive device known as the "Dalkon Shield," and alleged negligence, civil conspiracy, strict liability in tort, breach of warranty of merchantability, breach of express warranty, fraud, and gross and wanton negligence. On May 3, 1985, a jury returned a verdict in the plaintiff's favor for $1.7 million in compensatory damages and $7.5 million in punitive damages. Defendant Robins appeals.
The factual background relating to the plaintiff can be summarized as follows. Loretta Tetuan was born on February 11, 1952. She married Michael Tetuan with whom she had attended school. Plaintiff testified there were no difficulties in the marriage prior to her health problems. The Tetuans had two children: Michael, d.o.b. 12/25/69, and Christina, d.o.b. 7/31/71. Plaintiff did not finish high school and worked in the Ramada *443 Inn laundry department in Topeka, Kansas. She had never had any serious illness other than appendicitis.
Because Christina was born with Down's syndrome, Michael and Loretta decided not to have any more children for awhile, although they did plan to have more children eventually. Plaintiff's sister suggested that she try an intrauterine device (IUD). Plaintiff brought up the subject of an IUD with Dr. Robert Pfuetze on September 14, 1971.
On the same day, Dr. Pfuetze inserted plaintiff with a Dalkon Shield but did not inform her of the brand of the IUD. Dr. Pfuetze had been detailed by Robins representatives on the Dalkon Shield. Dr. Pfuetze did not tell her of any possible danger from infection and said only that her periods would be a little heavier.
Other than the heavier menstrual periods, plaintiff initially suffered no ill effects from the Dalkon Shield. She resumed work at a new job at Josten's Yearbook Company.
In 1974, Mr. Tetuan joined the United States Army and was stationed in Fort Carson, Colorado. Plaintiff accompanied her husband to Colorado. Because her menstrual flow increased, she went to the post clinic. She was told by an Army nurse that she should have her IUD removed to reduce the heavier flow. She was not told of any dangers from the Dalkon Shield or of the possibility of infection. Her periods returned to normal after the first visit. When Mr. Tetuan was discharged, the couple returned to Topeka.
In 1978, she went to Dr. Pfuetze for a Pap smear. She had not had any physical problems prior to this time. She inquired about having the IUD removed. According to plaintiff, Dr. Pfuetze told her, "You've worn it this long, I don't think you'll have any problem with it."
On September 21, 1979, she went to another physician, Dr. Darrell Weber, after experiencing fever and severe pain in the pelvic area. She had missed a week or two of work because of the pain. Dr. Weber told her she had a pelvic infection and gave her some antibiotics. Dr. Weber did not mention her IUD as a possible source of the infection Dr. Weber testified that he had received no warnings from Robins regarding the dangers of the Dalkon Shield.
Because the antibiotics were ineffective in relieving the pain, *444 she was hospitalized, given additional antibiotics, and then released. In March 1980, Dr. Weber removed the Dalkon Shield. No one had yet indicated to her that the Dalkon Shield IUD might be dangerous.
Because the pain still did not subside, in May 1980 she saw Dr. Lucien Pyle, who referred her to Dr. Charles Joss. In order to remove all the diseased tissue, on June 25, 1980, Dr. Joss performed a "total abdominal hysterectomy with bilateral salpingo oopher" the complete removal of plaintiff's uterus, Fallopian tubes, and ovaries.
After the operation, the Tetuans' marriage disintegrated and they filed for divorce in March 1981. Plaintiff now works at the American Bindery Company where she makes $4.15 per hour. She testified the operation made her feel less of a woman. Dr. Joss testified that "many women who have lost their pelvic structures have a deep feeling that they've lost their femininity and desirability to their husbands and become depressed and mentally sick this way." Otherwise, her physical prognosis was generally good. Because of the loss of her ovaries, plaintiff will have to take synthetic hormones for the rest of her life. Testimony at trial indicated that women taking these hormones over a long period of time can experience dangerous side effects which, though not common, include
"increased risk of developing cancer of the lining of the womb, endometrial cancer. They're at increased risk of other cancers like breast cancers, they're at increased risk of liver disorders, of gall bladder disease, of abnormal blood clotting with thrombosis and embolisms, some of which are pretty frightening conditions, like stroke, coronary disease, embolism to the vessels of the eye and so forth, very serious kinds of problems can occur."
Of course, plaintiff will not have to worry about endometrial cancer (cancer of the uterus). She no longer has a uterus.
Loretta Tetuan sued defendants Robins and Dr. Weber. The jury apportioned fault as follows: Plaintiff: 16%; Robins: 84%; Dr. Weber: 0%. The jury found for the plaintiff on the fraud count.
In order to understand the issues raised by this appeal, it is necessary to also summarize the history of the Dalkon Shield.
The Dalkon Shield is a white piece of plastic less than two centimeters in diameter. Roughly oval in shape, it contains four *445 phalanges on either side which enable it to remain secure in the uterus and gives the shield a crab-like appearance. Attached to the shield is a black string 8-9 centimeters in length. As with all IUDs, no one knows exactly why the Dalkon Shield inhibits conception.
The Dalkon Shield IUD was originally developed by Irwin S. Lerner and Dr. Hugh Davis. The rights to the device were held by the Dalkon Corporation. The Dalkon Corporation was made up of Lerner, Davis, Dr. Thad J. Earl, and Robert E. Cohn. The Dalkon Corporation began manufacturing Dalkon Shields in late 1968.
On February 1, 1970, Dr. Davis published a study in the American Journal of Obstetrics and Gynecology entitled, The Shield Intrauterine Device: A Superior Modern Contraceptive. This article would soon become the core of Robins' Dalkon Shield promotional campaigns. In the article, Davis related his study of 640 Dalkon Shield insertions, which he claimed established that the Shield had a 1.1% pregnancy rate per year on the life table method.
Later investigations and studies would raise serious questions about the original Davis study. Biostatistician Dr. Thomas D. Downs, in testimony, characterized the Davis study at trial as being of "very poor quality." The Davis study did not identify the time fiame in which the data was collected, the age structure of the subject population, or the method by which the population was selected. No information was given in the study on the length of time the women participated in the study. Downs testified that the Davis article "reads like an advertisement instead of a scientific piece of work." Moreover, the Davis article improperly claimed superiority to the pregnancy rate for other IUDs, even though the data collected in the article dealt only with the Dalkon Shield and used pregnancy rate figures from other sources for other IUDs. No control group was used by Davis in the 1970 article and Davis neglected to mention in his article the substantial financial interest he had in the Dalkon Shield.
The 1.1% pregnancy rate asserted by Davis in his 1970 article aroused the interest of Robins. Prior to Robins' purchase of the Dalkon Shield rights, it sought to find out more about Davis' *446 study. On June 9, 1970, Dr. Fred A. Clark, an employee of Robins, filed a memorandum on his visit to Baltimore to meet with Davis. Like the original 1970 Davis study, the information contained in the Clark memo did not provide sufficient information to establish a scientifically accurate pregnancy rate for the Dalkon Shield. However, the minimum possible pregnancy rate for the data in the Clark memorandum was 5.3%. In other words, prior to its purchase of the Dalkon Shield, Robins had information which indicated that the Dalkon Shield's rate of pregnancy was nearly five times worse than Davis' purported 1.1% rate, at a minimum.
The Clark memo reported, "Davis stated that the company which takes the Dalkon Shield must move fast and distribute much merchandise and really make an inroad in `the next 8 months.' My feeling was that others may be working on similar improvements for IUDs." Robins decided to move fast. On June 12, 1970, A.H. Robins Co., Inc., purchased the rights to the Dalkon Shield. Under the terms of the agreement, the Dalkon Corporation transferred its patents for the Shield to Robins in exchange for outright cash payments, royalties from the continued sale of Dalkon Shields, and employment of Lerner and Earl by Robins as consultants. Robins began to prepare for distribution of the Shield in 1971. The Shield was to be sold for $4.35. In late 1970, the total costs for labor, overhead, materials, and freight amounted to only $.30 for each Dalkon Shield.
While Robins' main competition, Ortho's Lippes Loop IUD, was already widely marketed, the Dalkon Shield had not been produced yet in significant quantities. Moreover, Ortho had four years' prior testing and experience with its IUD. The Dalkon Shield had no pre-marketing testing. A June 8, 1970, internal Robins memo recognized that: "The device has not been subjected to any formal stability testing."
In November 1970, Robins recognized in an internal memo the need for some form of study of the Dalkon Shield. After outlining the subjects to be studied in future clinical studies, the memo stated: "The need for long-term studies stems (1) from the dearth of publishable data on the Dalkon Shield for marketing support and (2) from the anticipated need for information available for presentation at the time of implementation of expected *447 medical device legislation." (Emphasis added.) Prominent by its absence from this list was the need to ensure product safety. At the time Robins began to market the Dalkon Shield, there were no government requirements for pre-market testing for IUDs, but recommendations existed that all products be found to be effective and safe, and the 1969 World Health Organization Report recommended a two-year testing program prior to marketing.
In a 1970 memo marked "PERSONAL & CONFIDENTIAL" to W.L. Zimmer, president of Robins, one of Robins' vice-presidents expressed concern over the new product line:
"I worry that our line is limited, to say the least. Our competitors are generally able to offer several means of contraception, including that most widely-accepted sold and used, the O.C. pill. This could permit others to compete on the I.U.D. level on a low price basis, while they make their profits on the other more widely accepted and sold products."
He expressed concern that Robins had
"no present or past R&D effort on contraception and contraceptive methods...."
"I worry about the fact that we have no market knowledge or experience in our company and we are prepared to learn-on-the-job. Meanwhile our competitors have at least a certain amount of know-how and experiences available to them today."
Robins was not only marketing an IUD without significant research experience, it had also instituted several "minor" changes in the size and shape of the Dalkon Shield which had been produced by the Dalkon Corporation. The internal Robins report announcing the design changes concluded: "Incidentally, we will not `announce' the fact that these minor design changes have been made."
At the time Robins began to produce the Dalkon Shield, it had no evidence of the safety of the device; the only information it had on the efficacy of the device was the questionable Davis article, which was for a different design of the Shield. Another Robins memo discussed the Shield in December 1970: "Bob does not regard the DALKON SHIELD as an `established' product. Perhaps in view of the design changes it is `less established' or more vulnerable than it was." The lack of knowledge about the Dalkon Shield continued after Robins began *448 distribution of the Shield: "At present [June 10, 1971] we have no `tangible' evidence, i.e. statistics, of the performance of the current production model of the Dalkon Shield."
Accompanied by an extensive promotional campaign, Robins began to market the Shield nationally in January 1971. The core of Robins' promotion for the Dalkon Shield was that its product was "safe and superior" to other forms of birth control. Robins obtained hundreds of thousands of reprints of Davis' 1970 article and gave them to its detailmen to give to physicians. The reprint given to physicians, however, did not include the label of "Current Investigation" which had originally appeared on the Davis article. Dr. Emanuel Friedman, an expert witness for plaintiff, testified that "Current Investigation" would indicate a preliminary report, something not yet established as scientifically valid.
Product cards prepared in September 1970 to be given by Robins detailmen to physicians lauded the overall superiority of the Shield's pregnancy rate to the pill's and other IUDs', and claimed it was safe and produced no side effects on the body. Other cards prepared in November 1971 also stressed the 1.1% rate.
Robins also prepared, in September 1970, Patient Information Sheets entitled, "Dalkon Shield: Answers to your patients' questions." The answers included:
"Are the IUDs safe?
"Many leading authorities believe they are the safest method of effective contraception available today. Unlike the Pill, they do not produce generalized side effects, such as headaches, blood clots, depression, breast tenderness, hair loss, weight gain, decreased sexual desire, etc.
"Is the Shield as effective as the Pill in preventing pregnancies?
"The pregnancy rates with the modern pills and the modern IUD are similar. The Shield prevents 99% of pregnancies, as do most oral contraceptives."
Although earlier Robins Dalkon Shield literature recommended removal of the Shield within two years, this recommendation was eliminated by November 1971. Literature provided by Robins in 1971 also stated: "The Shield is made of a plastic material which is neither dissolved nor `used up' by the body tissues. It will provide protection for a period of years. Some women have used the same I.U.D. for five years or longer." The literature did not note that the string attached to the Dalkon *449 Shield was made of nylon which does disintegrate within the body.
However, Robins' promotion of the Dalkon Shield was not limited to professionals. Even though the Dalkon Shield was an "ethical product," which means it could be dispensed only by licensed physicians, Robins apparently sought to create a market among consumers directly. A Robins memo dated October 1, 1971, stated that top priority had been given to a special promotion of the Dalkon Shield in nonmedical and trade publications. The public relations firm of Wilcox & Williams was to be hired for this purpose.
Publications subject to the campaign included newspapers, Family Circle Magazine, Mademoiselle, Midwest Magazine, Ladies' Home Journal, Time, Glamour, Parade, and Cosmopolitan. The intent of this "press coverage" may be found in the paper submitted by Wilcox & Williams to Robins on November 30, 1971, entitled "A Communications Program for A.H. Robins Company, Inc." It outlined a program to obtain favorable reaction among the general public. Favorable reaction was defined in terms of increased sales of the Shield. A progress report on the promotional campaign defined the project as one "to obtain consumer coverage for the Dalkon Shield." (Emphasis added.)
The promotional campaign directed at doctors and consumers was apparently very effective. By September 1972, 80 percent of doctors inserting IUDs were inserting Dalkon Shields. By February 13, 1973, over two million Dalkon Shields had been sold.
Prior to its purchase of the Dalkon Shield, Robins had only the questionable 1970 Davis article to substantiate the effectiveness of the Dalkon Shield. However, the 1.1% rate was the basis for all of Robins' promotion for the Dalkon Shield because it allowed Robins to claim superiority over other IUDs and equality to oral contraceptives. Evidence at trial indicated that Robins knew the Dalkon Shield was not as successful as advertised in preventing pregnancies.
In December 1972, Dr. T. Primrose of the Royal Victoria Hospital in Montreal wrote to Dr. Ellen J. Preston, of Robins:
"(B) My colleagues in other provinces have informed me that the pregnancy failure rate of the shield in their hands is up to 7-8 per 100 woman years which they find unacceptable." *450 Also in December 1972, Robins received the following letter from Major Russel J. Thomsen, M.D., of the United States Army Hospital at Fort Polk, Louisiana, which stated, in part:
"Other than pointing out the inadequacies of this advertisement I will add a few observations about clinical useage [sic] of the Dalkon Shield. Like most obstetricians-gynecologists, I was impressed with the logic of the early claims for the Shield. I used it widely. But I (about two years later) no longer use it. My experience and that of many of my colleagues suggests that the actual long term (2 to 4 year) pregnancy rate with the Dalkon Shield is actually about 10 per cent when term pregnancies, miscarriages, and ectopic pregnancies are considered with their respective major morbidities. And the complications of menorrhagia, metrorrhagia, uterine cramping, and pelvic inflammatory disease also seem high.
....
"I am recommending that you seriously evaluate again the Dalkon Shield and its place in the clinical practice of birth control measures.
"I am also suggesting that you correct your advertising and issue appropriate cautionary statements to physicians. In fact, I am suggesting that you withdraw the Dalkon Shield from the market until its safety can be established."
Dr. Preston replied to a 1973 inquiry to have Robins consider funding a possible study on the Dalkon Shield. "As I indicated to you during our telephone conversation, I am not very amenable at this point to expending a great deal of money or personnel time to analyze Dalkon Shield data which is anticipated to be unfavorable."
In June 1972, Robins began to receive reports of women experiencing septic abortions while wearing the Dalkon Shield. A septic abortion occurs when a woman, after becoming pregnant, experiences an infection of the reproductive system which causes the spontaneous abortion of the pregnancy. Dr. Thad J. Earl, one of the developers of the Dalkon Shield, also reported in June 1972:
"The next situation I have found is with women becoming pregnant and if the Shield is left in place the women abort at 3 1/2 to 5 months and become septic. I am advising physicians that the device should be removed as soon as a diagnosis of pregnancy is made. Numerous physicians have noted this. In my six pregnancies, I removed one and she carried full term, the rest all aborted and became septic. I therefore feel it is hazardous to leave the device in and I advised that it be removed. I realize that this is a small statistic but I feel we should correlate this data with other investigators across the country, because most men are experiencing the same problem."
Other reports of severe infections continued in 1972 and in *451 1973. In April 1973, Dr. Anne Board, a Robins doctor, sent a memorandum to Dr. Ellen J. Preston, which stated:
"As well as I can determine, there is a feeling or rumor (based upon the fact that several individuals have each experienced one case) that if a patient becomes pregnant while having a Dalkon Shield in place, therapeutic abortion should be carried out post-haste. The reason for this is that patients with Dalkon Shields are more likely to experience septic abortion than either (1) patients using other IUDs or (2) patients without IUDs who happen to experience spontaneous abortions."
Dr. Preston responded:
"I do not know what relationship, if any, exists between the incidence of sepsis in patients pregnant with the Dalkon Shield and the incidence of PID in the nonpregnant patient with a Dalkon Shield. It has been suggested by some, particularly from the West Coast, that there is an increased incidence of PID associated with the Dalkon Shield over that seen with other IUDs. I see no reason that this should be so, and none of my requests to physicians holding this view have resulted in any sort of documentation supporting this allegation."
Information letters collected by Robins in its Spontaneous Septic Abortion File indicated that the total number of septic abortions associated with other IUDs was 39. The total number of Dalkon Shield septic abortions was 250.
In 1974, because of growing reports about septic abortion and Robins' discovery that Dr. C.D. Christian of the University of Arizona was preparing an article on the Dalkon Shield and septic abortions, Robins invited numerous physicians to a Robins-sponsored conference on septic abortion and IUDs in February 1974. (Dr. Christian's article, published in June 1974, reported on seven cases of septic abortions and five further cases of maternal deaths.) At the February 1974 conference, Robins made no mention of the information it had concerning the wicking phenomenon of the Dalkon Shield tail string, no mention that Robins was "desperately" looking for a replacement string, or Dr. Earl's 1972 report of septic abortions. (In August 1974, an unsigned Robins report states: "Five cases were reported from Thad Earl in June, 1972. These cases were inadvertently overlooked until the other day. No information at all is available on them.").
The consensus at the February 1974 conference was strong enough that, on May 8, 1974, Robins issued its first "Dear Doctor" letter. The letter recommended that physicians remove *452 Dalkon Shields from women who became pregnant. Robins issued a press release stating that "insufficient information is available to establish any cause and effect relationship between the Dalkon Shield and septic spontaneous abortion."
On June 26, 1974, the FDA requested Robins suspend distribution of the Dalkon Shield. Robins announced the suspension to its distributors: "This is NOT A RECALL, but a suspension of sale until further notice, which is expected during the latter part of August." An accompanying press release stated, "neither A.H. Robins nor the FDA has any reason at this time to believe that women now using the Dalkon Shield successfully should have the device removed." In August 1974, Robins Public Affairs Vice-President Richard Velz reported in a memo: "You will note that the August 23 WASHINGTON POST article mentions the dangerous word `recall.' However, that statement was in error and further coverage corrects that." A Robins "Status Report for Dalkon Shield" stated under the heading "Legal Implications," the statement: "It is the opinion of [Robins attorney Roger L.] Tuttle that if this product is taken off the market it will be a `confession of liability' and Robins would lose many of the pending lawsuits."
After sales of the product were temporarily suspended by the FDA in June 1974, Robins continued its overseas distribution of Dalkon Shields. A November 1974 Dalkon Shield ad in the Australian and New Zealand Journal of Obstetrics and Gynaecology compared the Shield's effectiveness to other IUDs. Its claim of superiority was based on Davis' 1970 1.1% rate which a Robins memo had characterized as "not valid" in 1973.
In August 1975, Robins announced it was abandoning plans to re-market the Dalkon Shield under new FDA regulations. The company announced that "A.H. Robins remains firm in its belief that the Dalkon Shield, when properly used, is a safe and effective IUD." The same assurance of safety and efficacy was made in Robins' 1975 report to its stockholders.
On September 25, 1980, Robins issued a second "Dear Doctor" letter recommending removal of Dalkon Shields from asymptomatic users:
"The medical literature does not establish a firm relationship between the *453 duration of use of inert IUDs and an increased risk of pelvic infection generally; but a relationship has been suggested by recent literature, particularly when the causative organism is Actinomyces israelii. Cases of pelvic actinomycosis which cannot be explained on the basis of direct extension from the gastrointestinal tract have been observed most commonly among long-term IUD users."
Robins soon received several requests from physicians and women requesting payment for the removal, which Robins refused. Robins' Director of Medical Services, Dr. Fletcher Owen, Jr., responded that the second "Dear Doctor" letter "was not intended to be construed as a `recall'" of a "defective and potentially life-threatening product."
On October 26, 1984, Robins sent out its final "Dear Doctor" letter, in which Robins recommended removal of any Dalkon Shields remaining in place and offered to pay for removal, noting that "[t]here is substantial medical opinion that the continued use of the Dalkon Shield may pose a serious personal health hazard to users." However, Robins has continued to state that the Dalkon Shield is safe.
Shortly after the final "Dear Doctor" letter, Owen appeared on a National Public Radio program in which he characterized the wicking phenomenon as a "red herring." At trial, Robins' board of directors member and ex-president, W.L. Zimmer, III, testified that the Dalkon Shield was "safe and effective."
The Dalkon Shield, like most IUDs, contains a string which descends from the uterus through the cervix and permits the user to ensure the device is in place. Unlike other IUDs, however, the Dalkon Shield contains a string which is composed of 200 to 400 individual filaments enclosed within a nylon sheath. Other IUDs contain monofilament strings. The Dalkon Shield string sheath does not enclose the ends of the string and the filaments are exposed.
The possibility that an IUD string might "wick", i.e., transport fluid by capillary action, was raised prior to Robins' purchase of the Dalkon Shield. The string selected for the Dalkon Shield was the nylon-encased multifilament string. On June 29, 1970, the Robins product management coordinator reported: "The string or `tail' situation needs a careful review since the present `tail' is reported (by Mr. Lerner) to have a `wicking' tendency."
E. Wayne Crowder was quality control supervisor at Chap *454 Stick, a subsidiary of Robins. Robins had transferred the responsibility for assembly of the final Dalkon Shield device to Chap Stick to minimize costs. In March 1971, Crowder suggested to Lerner that melting the string ends would be more effective in eliminating moisture and bacteria. Lerner stated he would think about it.
Crowder testified that the multifilament string commonly broke during tying operations and that, in the summer of 1971, Crowder rejected some 10,000-12,000 strings for sheath breakage. The rejection was later overruled by Quality Control at Robins. Crowder testified that string breakage was a continual problem.
Crowder tried a simple experiment in June 1971. He placed one end of a Dalkon Shield string in a beaker of water. Several hours later, he discovered he could squeeze water out of the other end of the string. Crowder reported this to his supervisor, Julian Ross, at Chap Stick and, in July 1971, Crowder met with Ross and Chap Stick president Daniel French and told him about his wicking theory and experiment. Crowder suggested the problem could be solved by heat-sealing the string's ends and demonstrated with a cigarette lighter. French responded that heat-sealing would cost too much and that Robins would not accept any changes in production then. To ensure that Robins was informed of his concerns, Crowder included comments on wicking in his report to French on the problem of string stiffness.
On September 2, 1971, a Robins quality control supervisor wrote to Robins' medical department about concerns he discovered after a visit to the Chap Stick plant, including "[w]icking and bacterial problems associated with a multifilament nylon suture versus a sheathed nylon suture." The same report also stated that a heat sealing solution had been suggested for the string stiffness problem, but concluded: "Flame sealing ... would create another production problem." The significance of the wicking tendency of the tailstring of an IUD is that it provides an avenue for bacteria to travel from the vagina into the uterus, causing infection.
Beginning in 1972, Robins began a search for a replacement string. Robins tested several different types of string material, *455 including a more expensive teflon string. However, none of these strings was used outside of experiments.
In 1973, Robins received several reports of PID (pelvic inflammatory disease) associated with the Dalkon Shield. In November of that year, a Robins pharmacist noted:
"Dr. Kitty [Ellen] Preston has received reports of the string breaking and/or having visible weak spots. She has requested that tests be run on the string as well as the shields. Her main interest lies with those strings that were in situ for two years or more."
Robins had also received other reports about the Dalkon Shield string. Dr. Stewart Templeton of the Robins subsidiary in Horsham, England, wrote to Robins to inquire about any possible information on the Dalkon Shield and PID. Dr. Templeton wrote that he had received complaints from an English user of the Dalkon Shield who discovered cases of severe PID among his patients, which he felt was caused by the string acting as a wick along which bacteria traveled from the vagina into the uterine cavity.
Throughout 1974, Robins conducted tests on the wicking nature of the Shield string. In October 1974, a memo by a Robins vice-president commented on the hearings of the FDA committee considering whether to lift or retain the ban on sales of the Dalkon Shield. The memo noted:
"In summary, Dr. Clark stated that our critics are unable to prove that the string is the causative factor in the cases associated with septic spontaneous abortions. On the other hand, we are unable to prove conclusively that it is not the causative factor."
Dr. Templeton telexed Robins in November 1974, raising the same solution Wayne Crowder had suggested in 1971. He asked, "WHY DON'T WE JUST HEAT-SEAL THE DISTAL AND/OR PROXIMAL ENDS OF THE PRESENT STRING[?]" A Robins interoffice memo by Dr. Ellen Preston to Robins' medical department vice-president discussed the suggestion, stating:
"I agree. It is too late to `heat seal' now. We need to abandon the `multi-filament' string. Heat sealing would have been a good thing to have done 4 years ago."
In February 1975, Dr. Howard J. Tatum of The Population Council, et al., published their study, "The Dalkon Shield Controversy: Structural and Bacteriological Studies of IUD Tails," in *456 the Journal of the American Medical Association. The study concluded:
"[T]he appendage of the Dalkon Shield is patent to a liquid medium and can and does function as a wick for the passage of fluid throughout its entire length by capillary action."
Among the witnesses at trial were Dr. Judith Haber, a clinical microbiologist. Working for Biskind Laboratories in Burlingame, California in 1974, Dr. Haber performed experiments requested by Robins. Dr. Haber testified that her experiments, the results of which were sent to Robins, involved examining Dalkon Shield strings removed from human users. All of the strings showed some bacteriological growth; 45% showed significant bacterial growth. Haber also testified that, because of the extremely small size of bacteria, the knots in the Dalkon Shield string did not prevent their passage.
In 1983, Dr. Harvey Bank produced similar results in a study of the Dalkon Shield multifilament string. Bank examined used strings, finding bacteria present in every one. He found that fluid similar in viscosity to body fluids in the vagina could wick through the length of the tail string in about 90 minutes. No fluid motion existed for monofilament strings or for multifilament strings that had been heat sealed. Finally, Bank concluded that live bacteria could ascend and exist in the string.
Bank testified at trial that the experiments were simple and could have been performed by anyone with proper equipment. Also testifying was Dr. Daniel Roberts, who examined Dalkon Shield strings removed from human users. Roberts found that all the nylon sheaths had undergone partial or complete disintegration. The deteriorated state of the nylon sheath provided an additional avenue for bacteria to escape from the string into the uterus. Moreover, while the cervical mucus plug normally prevented bacteria from ascending the external sides of the IUD strings, the nylon sheath of the Dalkon Shield string prevented the bactericidal agents of the mucus plug from killing bacteria within the string.
Expert testimony was also introduced at trial comparing PID rates for the Dalkon Shield and other IUDs. The 1976 Center for Disease Control (CDC) report by Cates, et al., indicated the Dalkon Shield produced a PID risk rate three times higher than other IUDs. The 1983 Lee-Ory study concluded the Dalkon *457 Shield had a PID risk eight times higher than for women who do not use any IUD. Moreover, where the PID risk for other IUDs declined over time, the Dalkon Shield PID rate increased with time, so that the risk eventually reached 15.6 times the non-user rate.
Although there were several other studies introduced by Robins to establish the lack of any relationship between the Dalkon Shield and PID, there appears to be substantial evidence in the record questioning the quality of these studies, which were funded in part by Robins.
In 1971, Roger Tuttle, a member of Robins' legal department, was placed in charge of Robins' products liability cases. Beginning in 1972, cases involving the Dalkon Shield, including PIDs, began to "trickle" in. However, after the first case to reach trial on the merits, Deemer v. A.H. Robins Co., Case No. C-26420 (Dist. Ct. Sedgwick County, Kan. filed Oct. 1974), Robins President W.L. Zimmer, III, on August 15, 1974, sent the following memo to fifteen Robins officers and employees:
"You are requested to immediately search your pertinent files for any letters, memos or notes on oral or written communications relating in any way to the thread utilized for the tail for the Dalkon Shield and send them to Ken Moore. Of particular interest are any references to `wicking' of the tail. To the extent that you have had any oral communications with third parties on this subject which are not memorialized in writing, please submit a memo on any such communication to Mr. Moore.
"This project is of utmost importance, and should be completed by Friday, August 16."
Tuttle testified that Robins began a program to destroy documents relating to the wicking phenomenon. The destruction program was ordered on February 2 or 3, 1975. Although Tuttle did not personally observe the destruction of documents, pursuant to orders, he instructed Robins employees to destroy documents and was informed that it had been accomplished. Tuttle was ordered to search for and destroy documents by Robins' chief counsel Forrest, who told Tuttle he had discussed the destruction program with Zimmer. Tuttle testified that hundreds of documents were destroyed in a draft furnace. Tuttle secretly saved copies of some of the documents, but the vast majority of the documents were completely destroyed.
Forrest told Tuttle that he blamed Tuttle for allowing the *458 Clark memorandum of June 9, 1970, to come to light in the Deemer case. Forrest said he did not ever want anything like that to happen again, and the only way to ensure that was if the documents no longer existed.
Additional facts will be set out and discussed as necessary to determine the issues in this appeal.
Robins first contends that "such a large volume of irrelevant, immaterial, and inflammatory evidence" was introduced at trial that "prejudice to Defendant permeated the entire trial." Robins recites a long list of allegedly prejudicial evidence, or statements in closing by plaintiff's counsel upon that evidence, which it terms "error," including the following: 1) Evidence of a different pregnancy rate for the Dalkon Shield than the 1.1% Robins claimed; 2) evidence of perforations of the uterus by the Dalkon Shield; 3) evidence of spontaneous septic abortions associated with the Dalkon Shield; 4) other miscellaneous evidence, including a suit filed by Dr. Earl against Robins; a medical journal dated April 11, 1985; Robins' judgment in an antitrust case; references to suits against Robins; and references to medical studies in 1981 and 1982.
The plaintiff's action was grounded in part upon fraud: Robins' deliberate misrepresentation and concealment of the defectiveness of the Dalkon Shield. In Minx v. Mitchell, 42 Kan. 688, 692, 22 Pac. 709 (1889), this court stated: "[W]here fraud is alleged, it is always permissible to prove every act of the party charged, connected in any way with the subject-matter of the fraud." Similarly, in Culp v. Bloss, 203 Kan. 714, 718, 457 P.2d 154 (1969), this court held that other actions of the defendant were "relevant and admissible for the purpose of showing defendant's motive and intent to defraud the plaintiffs."
A similar issue was raised in U.S.D. No. 490 v. Celotex Corp., 6 Kan. App.2d 346, 629 P.2d 196, rev. denied 230 Kan. 819 (1981). The plaintiff sued defendant Celotex for fraud in the construction of a defective roof. Celotex argued on appeal that the trial court had erred by allowing the introduction of evidence of other Celotex roof failures around the country. The Court of Appeals rejected that argument:
"The evidence of prior roof failures was not introduced by plaintiff to show that the two-ply roof of the El Dorado High School was defective, nor was it used to *459 indicate that the causes of the problems on previous roofs were related to the causes of the problems on the El Dorado High School roof. The actual purpose of the introduction of these documents was to prove Celotex's knowledge of the defect that gave rise to the duty to warn. As to USD 490's breach of warranty and fraud theories of recovery, the evidence of prior complaints was also relevant to show Celotex's state of mind insofar as its representation is concerned and to prove Celotex's knowledge of its truth or falsity or its reckless disregard of its truth or falsity." 6 Kan. App.2d at 359.
Citing this court's holding in Culp, the Celotex court concluded:
"Although Celotex makes much of the fact in its brief that the roofs and roofing problems in the other cases were dissimilar, all of the complaints introduced were about two-ply roofs. We also note that internal memoranda of Celotex made reference to the fault of the two-ply roof, regardless of how the problems were manifested." 6 Kan. App.2d at 360.
In this case, the evidence of Robins' knowledge of the higher pregnancy rate, perforations, and septic abortions was directly relevant to show Robins' consistent failure to reveal the true nature of its product, and its continuing failure to warn. The theme of Robins' promotion of the Dalkon Shield was that it was "safe and effective." The great weight of evidence at trial was that it was neither, and that Robins was aware it was not.
"Fraud is normally a secretive act and must be concealed for success," Chute v. Old American Ins. Co., 6 Kan. App.2d 412, 422, 629 P.2d 734 (1981), and thus "considerable latitude should be granted in the introduction of evidence to prove the fraud." 6 Kan. App.2d at 422 (citing Brakefield v. Shelton, 76 Kan. 451, 453, 92 Pac. 709 [1907]). In the present case, the evidence complained of by Robins, the reports of spontaneous abortions, the reports of perforations, and the reports of a much higher pregnancy rate were all relevant to show Robins' continuing concealment of information from doctors and from women.
In Craig v. A.H. Robins Co., Inc., 790 F.2d 1 (1st Cir.1986), Robins made the same argument before the First Circuit. Robins attacked the relevancy of evidence relating to the Dalkon Shield's pregnancy rate. The Court of Appeals rejected the argument, stating that evidence of "the frequency of pregnancies experienced by Dalkon Shied users ... [helps to] form part of a pervasive picture of covering up a defective product and continuing *460 to merchandise it by misrepresenting both its efficacy and its safety." 790 F.2d at 4.
In Hilliard v. A.H. Robins Co., 148 Cal. App.3d 374, 410-11, 196 Cal. Rptr. 117 (1983), the court rejected a similar argument by Robins, stating:
"The question remains, however, whether evidence of allegedly `false' or inaccurate pregnancy rates is inadmissible as claimed by defendant Robins. Dr. Dekle, who fitted plaintiff Hilliard with the Robins' IUD, testified he relied, in part, on what he was told by detailmen and what he had seen in Robins' promotional material in using and recommending the Dalkon Shield. He was dubious about the low pregnancy rate claimed for the Dalkon Shield, yet he did not anticipate the rate would exceed two percent based on Robins' promotional efforts and his experience. This evidence was clearly admissible and relevant. If the evidence showed that the rate was substantially higher than the advertised rates in 1972, when Dalkon Shield was placed in plaintiff's uterus, the doctor might not have used that IUD or perhaps any IUD."
In the present case, Dr. Pfuetze also testified that he relied upon Robins to properly test its product.
Neither was Robins successful before the Supreme Court of Colorado. In Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984), the plaintiff had experienced a septic abortion rather than a pelvic inflammatory disease. The court held that Robins' Dalkon Shield adverse reaction reports were admissible, even where they involved injuries other than septic abortions:
"The adverse reaction reports constituted legally relevant evidence on the issue of notice to Robins of the potentially dangerous character of the shield. Robins' knowledge of reported adverse consequences from the use of the shield was a significant component of Palmer's claim that, by failing to eliminate these dangers or to give warning of them, Robins prevented her and her physician from making an informed decision on the use of the shield as a contraceptive device. The adverse reaction reports rendered the existence of notice of a dangerous or defective product more probable with the evidence than without it. [Citation omitted.]
"Although the adverse reaction reports included references to untoward consequences other than septic abortions, the nature of these other reported incidents did not impair the legal relevancy of the evidence. These other incidents were probative of notice to Robins that something might well be amiss with its product." 684 P.2d at 199.
Robins complains of plaintiff's counsel's reference in closing argument to Robins' antitrust lawsuit, the Hartz settlement (but not, apparently, to the original evidence of the Hartz settlement). The financial position of Robins was in issue because of the claim for punitive damages. Robins received $42 million *461 under the Hartz settlement, and it was therefore relevant as to punitive damages.
Robins complains of a "reference to law suits." The complaint is somewhat misleading. The reference by plaintiff's counsel in closing argument did not involve use of the other pending Dalkon Shield cases for any improper purpose. Plaintiff's counsel was stressing Dr. Tatum's credibility by noting that his tests proving the string's wicking action occurred prior to his subsequent testimony in Dalkon Shield litigation. It should be noted that Robins, as well as the plaintiff, consistently attacked the other's compensated witnesses for appearances in prior Dalkon Shield litigation. We find no merit to Robins' challenge to this evidence and conclude the trial court did not err in its rulings on the evidence.
Robins next contends there was no evidence to justify submitting the claim of fraud to the jury. Robins' contention is based on a lack of reliance by the plaintiff or her doctors upon any representations by Robins as to the Dalkon Shield, or if there was reliance, that it was the cause of plaintiff's injuries.
When a verdict is challenged for insufficiency of the evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, will support the verdict, the verdict will not be disturbed on appeal. Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984).
The existence of fraud is a question of fact and we are limited to determining whether the verdict is supported by substantial evidence. Keeping in mind that fraud is never presumed and must be proven by clear and convincing evidence, we turn to the record in the instant case.
Plaintiff did not know the IUD she wore was a Dalkon Shield until after her injuries and after it had been removed. When Dr. Pfuetze inserted the Dalkon Shield in 1971, he did not mention what brand it was. Therefore, Robins argues plaintiff did not rely upon any representations by Robins.
Robins further argues that there was no evidence that Dr. Pfuetze relied upon representations that the Dalkon Shield was *462 safe and effective when he inserted the device in plaintiff in 1971. Robins claims he was aware of potential dangers of IUDs, including specific possible problems with infection. In 1978, Robins argues, Dr. Pfuetze was aware of specific problems of infection in Dalkon Shield users, and he advised plaintiff of this problem and recommended removal. Thus, regardless of Robins' failure to inform Dr. Pfuetze about wicking problems, there was no causative effect on Dr. Pfuetze's decision to insert the Dalkon Shield, since he was already aware of the potential problem that would result from wicking, if it occurred. As to Dr. Weber, Robins argues that, when in 1979 he made the decision not to remove the Dalkon Shield, he had not been "detailed" by anyone from Robins nor relied upon any representations attributed to Robins.
The factual conclusions Robins makes from the evidence are not supported by the record. Dr. Pfuetze testified that he had been detailed by Robins representatives prior to the insertion. He testified that he was aware there was some danger of infection associated with IUDs, but that he did not discover until later the full dangers of infective disease. Dr. Pfuetze testified that he had relied upon Robins for adequate testing of its device prior to marketing. Dr. Pfuetze did not tell plaintiff of any dangers associated with IUDs. If Dr. Pfuetze had been told that the Dalkon Shield string could wick bacteria, he would never have used it. If plaintiff had known of the dangers of the Dalkon Shield, she would never have used it.
In 1978, about a year before plaintiff's symptoms began, she again saw Dr. Pfuetze for a bad cold. Based upon information he had read in medical literature, Dr. Pfuetze recommended removal of the device. However, while he told her that removal might be preferable, he also did not insist on it. Removal would be imperative only if she became pregnant. Dr. Pfuetze told her that, since she had worn the device this long, she should not have any trouble with it.
Plaintiff saw Dr. Weber in 1979 when the infection began. Dr. Weber did not remove the device but treated her with antibiotics. Dr. Weber testified that, if he had received information in 1979 similar to that Robins released in its third "Dear Doctor" letter in 1984, he would have immediately removed the device.
*463 The argument that there was no reliance in this case is simply incredible in light of the evidence. Both the woman using the device and the doctor inserting it testified they would not have used the Dalkon Shield if they had been informed of its true nature. Dr. Weber testified he would have immediately removed the Shield in 1979 rather than first treating plaintiff with antibiotics if he had known of the Shield's dangers.
Dr. Pfuetze's recommendation that removal of the IUD might be preferable was based on his reading of general medical literature, which did not disclose the full dangers of the Dalkon Shield that Robins had concealed. Dr. Pfuetze, in 1978, was only following the limited information that Robins had released in 1974 in its first "Dear Doctor" letter, that the Dalkon Shield should be removed from pregnant wearers to prevent septic abortions. Because of Robins' failure to fully inform doctors of the dangers of the Dalkon Shield, Dr. Pfuetze told plaintiff that, since she had worn the device for so long, she should not have any trouble with it.
That Loretta Tetuan did not know the device within her was a Dalkon Shield and that Robins made no representations directly to her, is irrelevant. IUDs are ethical products that is, they are available only through licensed medical care providers. In Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984), we held that the manufacturer of an ethical drug has a duty to warn the medical profession of dangerous side effects of its products of which it knows, has reason to know, or should know, based upon its position as an expert in the field. This duty is a continuing one, and a breach of that duty by the manufacturer will result in the manufacturer being directly liable to the patient. The rationale for adopting such a rule was stated in Terhune v. A.H. Robins Co., 90 Wash.2d 9, 14-15, 577 P.2d 975 (1978):
"The reasons for this rule should be obvious. Where a product is available only on prescription or through the services of a physician, the physician acts as a `learned intermediary' between the manufacturer or seller and the patient. It is his duty to inform himself of the qualities and characteristics of those products which he prescribes for or administers to or uses on his patients, and to exercise an independent judgment, taking into account his knowledge of the patient as well as the product. The patient is expected to and, it can be presumed, does place primary reliance upon that judgment. The physician decides what facts *464 should be told to the patient. Thus, if the product is properly labeled and carries the necessary instructions and warnings to fully apprise the physician of the proper procedures for use and the dangers involved, the manufacturer may reasonably assume that the physician will exercise the informed judgment thereby gained in conjunction with his own independent learning, in the best interest of the patient. It has also been suggested that the rule is made necessary by the fact that it is ordinarily difficult for the manufacturer to communicate directly with the consumer.
"While recognizing the efficacy of this rule as applied to prescription drugs, the plaintiffs question its applicability to devices such as the Dalkon Shield. In advising upon the selection of a contraceptive, they say, the physician is not attempting to cure a malady and does not `rely upon his many years of education and experience' to select an appropriate medication. We do not see this as a significant distinction. The physician does not confine his practice to the curing of maladies. He is concerned with the total health and physical well-being of his patients and appropriately gives advice upon preventive measures. Certainly the insertion of the Dalkon Shield requires a physician's services, his knowledge and his skill. While the physician does not make the final choice but leaves that to the patient, he advises the patient with respect to the advantages and disadvantages of various choices, as was done in this case, and it is he who supplies and inserts the device.
"The fact that the patient makes the final choice among suggested contraceptives (or decides not to use any at all) does not constitute a distinction which makes the general rule inapplicable. We can readily conceive of situations in which a physician gives the patient a choice of courses to follow. There is, for example, a patient's choice between continuing to endure a physical ailment or submitting to surgery or some other course of treatment; an obese person's choice among diets suggested by the doctor; and a surgery patient's choice of anesthesia where, in the doctor's opinion, a choice is permissible.
"In any such situation which may come to mind, the patient is expected to look to the physician for guidance and not to the manufacturer of the products which he may use or prescribe in the course of treatment."
We apply that same rationale to plaintiff's action for fraud against Robins, and we hold that, where a patient relies on a physician for treatment or advice as to an ethical or prescription device, justifiable reliance by the physician on misrepresentations or concealment by the manufacturer of that device constitutes justifiable reliance by the patient. Loretta Tetuan relied upon Dr. Pfuetze, as her doctor, to insert a safe device. The testimony at trial was that both doctors in general, and Dr. Pfuetze specifically, relied upon manufacturers to test their products and warn of any dangers.
Robins was told by Dr. Davis that it would have to "move fast" if it wanted to successfully enter the IUD market. Robins moved *465 fast. With one intensive promotional campaign directed at medical professionals, and another designed by a New York public relations firm to plant news stories to attract the interest of the general public, Robins was able to capture a large part of the IUD market. By 1972, 80 percent of doctors prescribing IUDs were prescribing Dalkon Shields. Robins achieved this success by publicizing Dr. Davis' pregnancy rate, which it knew was false and misleading, and by concealing information about the dangers of the Shield.
Finally, even though plaintiff had never received any direct promotions or representations from Robins, as Dr. Pfuetze had, she still had a right to rely upon Robins. In allowing the Dalkon Shield to remain inside her, she relied upon Robins' failing to come forward with the information it possessed. She relied upon Robins' malicious silence which, at the time of her injuries, had lasted for more than ten years. Fraud includes "anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence resulting in damage to another." Goben v. Barry, 234 Kan. 721, Syl. ¶ 8, 676 P.2d 90 (1984).
"`While the broad outlines of fraud have been indicated by regarding it as including any cunning, deception, or artifice used, in violation of a legal or equitable duty, to circumvent, cheat, or deceive another, the forms it may assume and the means by which it may be practiced are as multifarious as human ingenuity can devise, and the courts consider it unwise or impossible to formulate an exact, definite, and all inclusive definition thereof.'" Citizens State Bank v. Gilmore, 226 Kan. 662, 667, 603 P.2d 605 (1979) (quoting 37 C.J.S., Fraud § 1, p. 204).
Fraud may arise by the concealment of facts which legally or equitably should be revealed, as well as by affirmative misrepresentation. 226 Kan. at 667. The deliberate suppression of a fact that a party has a duty to disclose is fraud. Jenkins v. McCormick, 184 Kan. 842, 339 P.2d 8 (1959). The evidence in this case viewed in the light most favorable to the plaintiff is sufficient to support the jury's finding of fraud. We find no merit in Robins' argument.
Next, Robins attacks jury instruction No. 16 on numerous grounds, first claiming that it was "misleading, confusing, and improperly instructed the jury upon the law." Essentially, *466 Robins' argument is that the instruction omitted essential elements of fraud under Kansas law. Instruction No. 16 reads:
"In connection with the claim of the Plaintiff based on fraud, the jury is instructed as follows:
"Fraud must be proved by clear and convincing evidence. To be clear and convincing, evidence should be `clear' in the sense that it is certain, plain to the understanding, unambiguous, and `convincing' in the sense that it is so reasonable and persuasive as to cause you to believe it.
"If the jury finds by clear and convincing evidence that either the labeling or the advertising of the Dalkon Shield IUD was false and that A.H. Robins Company, Inc., either knew that they were false or were recklessly made without knowledge concerning the truth or falsity of the claim made in the labeling or the advertising and you further find by clear and convincing evidence that the false labeling and advertising caused the selection of the Dalkon Shield by the Plaintiff's physician and you further find that the Dalkon Shield caused the injuries complained of by Plaintiff, then you will be justified in basing a verdict in favor of the Plaintiff on the grounds of fraudulent misrepresentation.
"If the jury finds by clear and convincing evidence that the defendant, A.H. Robins Company, Inc., during the time that Plaintiff was using the Dalkon Shield knew that the continued use of the device by women constituted a hazard, you are instructed that they had a duty to timely and effectively make that known in a way reasonably calculated to reach the women users. Warning to the medical community may be adequate unless the jury finds by clear and convincing evidence that such a warning was or would be either insufficient or ineffective. If you find by clear and convincing evidence that the A.H. Robins Company did not give a sufficient and effective warning, as described herein, and you further find that the failure to do so caused the injuries complained of by the Plaintiff, then you would be justified in basing a verdict in favor of the Plaintiff on fraudulent concealment.
"To recover on her claim of fraudulent misrepresentation, Plaintiff must sustain her burden as to each element set forth in this instruction concerning that claim. To recover on her claim of fraudulent concealment, Plaintiff must sustain her burden as to each element set forth in this instruction concerning that claim. Plaintiff need not prove both claims. However, if she fails to sustain her burden on her claim of fraudulent misrepresentation and on her claim of fraudulent concealment, you will be required to decide the claim based upon fraud in favor of the Defendant A.H. Robins Company, and you should so indicate that on the verdict form and proceed to decide the case on the other issues presented in these instructions."
Robins did not object at trial to instruction No. 16 on the grounds now alleged that the instruction was misleading or confusing, or that it improperly stated the law. The objection made at trial to instruction No. 16 by Robins was that the evidence did not support a finding of reliance, that the physician *467 inserting the Dalkon Shield should not have been considered Robins' agent, or that no instruction at all should have been given on fraud:
"MR. BUCK: Sixteen, we object to the Court's allowing the theory of fraud in this case, fraudulent misrepresentation and fraudulent concealment. This is not a proper case, as a matter of law, for the type of common law fraud recognized in the Kansas cases. We also it's also our position that there's not enough evidence as a matter of law to allow this theory to go to the jury; and we also object to the use of the physician as the agent for Robins for purposes of finding reliance. In other words, when you're having common law fraud, there is no direct reliance by the party injured or allegedly injured; therefore, there is no cause of action for fraud on that grounds. Also, there's also no evidence of reliance by plaintiff in this case such as to support an action for fraud."
Robins did not object to the provisions contained in instruction No. 16 as improper statements of the law. K.S.A. 60-251(b) provides:
"No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous." (Emphasis added.)
Where a party makes only a general objection to an instruction, he or she may not later raise new attacks against a specific provision of the instruction unless it is clearly erroneous. Thompson v. General Finance Co., Inc., 205 Kan. 76, 93, 468 P.2d 269 (1970). Except as to those specific grounds enumerated by Robins at trial, our inquiry is limited to determining if the instruction is clearly erroneous.
Robins properly points out that intent to deceive and reliance are elements of fraud in Kansas. The misrepresentation must be known to be untrue by the person making the statements, or made with reckless disregard for the truth, and reliance thereon must be reasonable and justifiable. Hutchinson Travel Agency, Inc. v. McGregor, 10 Kan. App.2d 461, 701 P.2d 977, rev. denied 238 Kan. 877 (1985). The party to whom a misrepresentation is made must also rely upon the misrepresentation to his detriment. Minnesota Avenue, Inc. v. Automatic Packagers, Inc., 211 Kan. 461, 507 P.2d 268 (1973).
As to the intent requirement, the instruction obviously met the requirement of Kansas law. The instruction required the jury to find, by clear and convincing evidence, that Robins' labeling or *468 advertising was false and that Robins "either knew that they were false or were recklessly made without knowledge concerning the truth or falsity of the claim made in the labeling or the advertising."
The instruction given was prepared by the trial court specifically for this case. Although it does not speak expressly of "reliance," the instruction validly reflects the legal requirements for reliance. The instruction requires the jury to find, by clear and convincing evidence, that Robins' misrepresentations "caused the selection of the Dalkon Shield by the Plaintiff's physician and you further find that the Dalkon Shield caused the injuries complained of by Plaintiff."
The reliance element of misrepresentation serves the function of causation in fact: that the misrepresentation causes someone to act or refrain from acting. Restatement (Second) of Torts § 546, Comment b (1976). To satisfy the requirements of misrepresentation, it "must appear that the defendant's tortious conduct has in fact caused the plaintiff damage." 2 Harper, James & Gray, Law of Torts § 7.13 (2d ed. 1986). The false representation must play a "material and substantial part" in causing another to adopt a particular course of conduct. Prosser, Law of Torts § 108, p. 714 (4th ed. 1971). In instruction No. 16, the magic word "reliance" was not used, but the effect was the same: the jury was required to find that Robins' misrepresentations caused Dr. Pfuetze to use the Dalkon Shield which, in turn, caused Loretta Tetuan's injuries. The jury was thus required to find reliance, although that term was not expressly stated. Indeed, the instruction was more favorable to Robins than the law itself, since it apparently required the jury to find that the misrepresentations were the cause of Dr. Pfuetze's use of the Dalkon Shield. Normally, reliance may be found where the misrepresentation "played a substantial part" in the other party's conduct. Restatement (Second) of Torts § 546, Comment b.
A different matter is presented by the fact that the instruction does not require a finding of justifiable reliance. Ordinarily, the reliance upon another's misrepresentations must be shown to be justifiable in order to recover for fraud. Hutchinson Travel Agency, Inc. v. McGregor, 10 Kan. App.2d 461. However, the instruction is not clearly erroneous. An instruction is clearly *469 erroneous only if there is a real possibility that the jury would have returned a different verdict. Powers v. Kansas Power & Light Co., 234 Kan. 89, 671 P.2d 491 (1983).
The testimony introduced at trial clearly indicated that physicians in general necessarily rely upon the representation of pharmaceutical manufacturers. Robins provided utterly no evidence which would suggest Dr. Pfuetze was not justified in relying on Robins' claims of safety and effectiveness. On the basis of the evidence presented at trial, there was no real possibility a jury could have found Dr. Pfuetze's reliance unjustified.
Robins argues that its fraudulent misrepresentations and concealment were not the "cause" of plaintiff's injuries because, when she saw Dr. Pfuetze again in 1978, and Dr. Weber in 1979, both "had independent knowledge from medical literature concerning the problems possibly associated with IUDs." The record does not support Robins' contention. Dr. Pfuetze testified he knew there was some danger of infection, but that he did not know the full dangers posed by the Dalkon Shield. Both doctors testified that, if they had been fully informed of the Dalkon Shield's dangers, they would have either immediately removed it or would never have inserted it in the first place. Causation plainly exists. The doctors had received some information from medical literature on the dangers of IUDs, but they did not know of the overwhelming amount of information Robins was concealing or attempting to destroy.
Robins' next argument is rather novel, to say the least. Robins suggests that the instruction was invalid because "[w]hether the product caused the injury is not a proper inquiry for fraud. The test is whether any misrepresentation caused Plaintiff's injury." The case to which Robins cites, Canterbury Court, Inc. v. Rosenberg, 224 Kan. 493, 582 P.2d 261 (1978), does not support this novel proposition, nor does any other Kansas case. Canterbury provides only that fraud requires reliance, and that the reliance result in injury. The suggestion that a distinction should be made between the "fraud" (Robins' misrepresentations) and the item that is the subject matter of the fraud (the Dalkon Shield), and that only the former can "cause" the injury, is completely without any authority. It is twisted logic at its best. The trial court instructed the jury that it must find that the *470 misrepresentation caused Dr. Pfuetze to use the Dalkon Shield, and that the Dalkon Shield caused injury to Loretta Tetuan in order to find fraud. There is no error.
Next Robins argues that Dr. Weber had a duty to warn plaintiff. When Dr. Weber treated plaintiff, he was aware of the potential problems associated with IUDs. According to Robins, since the jury found Dr. Weber without fault, he either adequately warned the plaintiff, relieving Robins' duty to warn, or he did not adequately warn, and therefore there is no causation by Robins. Dr. Weber had a duty to warn plaintiff only of those dangers "within his knowledge." Robins' interpretation of the facts finds no support in the record. Dr. Weber was not aware of the specific dangers of the Dalkon Shield. The portion of the record to which Robins cites establishes only that Dr. Weber "had read articles on different problems associated with all types of the IUDs [including the] Dalkon Shield." The record does not say whether these were articles critical of the Dalkon Shield, or whether they were the results of some of the "favorable" studies to which Robins solely devoted its funding assistance. In any case, Robins ignores that part of the record which deals with the extent of Dr. Weber's knowledge of the Dalkon Shield dangers. Dr. Weber was not aware of the type of "string" utilized by the Dalkon Shield or that it could wick bacteria through the vagina into the uterus. He further testified that, had he known about these facts, he would have immediately removed the Dalkon Shield from the plaintiff.
The jury could have found Dr. Weber not liable, having fully informed plaintiff of the dangers known to him, yet still have found Robins liable for fraudulent misrepresentation and/or concealment.
Instruction No. 9 provides:
"The laws of Kansas provide that an advertisement of a device shall be deemed to be false if it is false or misleading in any particular.
"Advertisement means all representations disseminated in any manner or by any means other than labeling, for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase of devices.
"In determining whether an advertisement is misleading, you should consider representations made by statement, word, design, device, sound, or in any combinations thereof, but also the extent to which the labeling or advertisement fails to reveal facts material in the light of such representations or materials with *471 respect to consequences which may result from the use of the article to which the advertisement relates under the conditions of use prescribed in the advertisement thereof or under such conditions of use as are customary or usual.
"The violation of the above law may be considered an act of negligence if the misleading or false statements relate to the cause of an injury."
Instruction No. 10 provides:
"You are instructed that the laws of the State of Kansas provide that the following acts are unlawful and are prohibited:
"1) Manufacture, sale, or delivery or offering for sale any device that is misbranded;
"2) The misbranding of any device;
"3) The dissemination of any false advertisement.
"A device within the meaning of this act includes any instrument, apparatus, or contrivance intended to affect any function of the human body.
"A device is misbranded if its labeling is false or misleading in any particular; or
"If it is dangerous to health when used as recommended or suggested in its labeling.
"Labeling means all labels and other written, printed, or graphic matter upon an article or its containers or accompanying such article.
"The violation of the above law may be considered an act of negligence if the misleading or false statements relate to the cause of an injury."
Robins attacks these instructions on four grounds: that the Kansas food, drug, and cosmetic act, K.S.A. 65-655 et seq., is preempted by federal law; that the act was not set forth in the pretrial order; that the legislature did not intend the act to apply to this type of case; and that the instructions improperly state the law regarding causation.
Robins cites no authority for its conclusory statement that the Kansas law is "preempted by the Federal Act for the labeling and branding of prescription drugs and devices such as the Dalkon Shield." Nor does Robins provide any argument why preemption exists.
In 1976, Congress added the Medical Device Amendments (21 U.S.C. § 360c et seq. [1982]) to the federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq. [1982]). The amendments included new section 21 U.S.C. § 360k (1982), which preempts certain state regulations relating to medical devices. However, the 1976 preemption section applies only to provisions of state laws which create substantive requirements for devices. The preemption does not apply where the state statute operates only *472 to prohibit false labeling or misbranding a device. 21 C.F.R. § 808.1(c) (6)(ii) (1987) provides that the Medical Device Amendments do not "preempt a State or local requirement prohibiting the manufacture of adulterated or misbranded devices." Instructions Nos. 9 and 10 are based upon K.S.A. 65-669 and K.S.A. 65-672, which relate to misbranding and false advertising. Neither the instructions nor the statutory sections on which they are based establish independent substantive labeling requirements, other than the prohibition against false or misleading labeling and advertising. There is no preemption.
However, even assuming the federal law preempts present Kansas law, the relevant period for determining Robins' duty of due care in its labeling and advertising of the Dalkon Shield was the period during which Robins labeled, advertised, and sold the Dalkon Shield: 1970 - 1974. Because the Medical Device Amendments were not passed until 1976, there could be no preemption during the relevant time period.
Robins' second argument is that these statutory standards of care were not identified in the pretrial order. This is not supported by the record. The pretrial order stated:
"PLAINTIFF'S CONTENTIONS
"1. Plaintiff claims the defendant Robins was negligent in one or more of the following respects:
....
"(l) Promoting and selling a misbranded medical device for profit contrary to state and federal law;
"(m) Using false and misleading advertising and labeling to promote Dalkon Shield sales for profit, contrary to law."
During this time, only the Kansas food, drug, and cosmetic law applied to Robins' actions. Robins' argument is without merit the only possible state laws upon which these plaintiff claims could be based are those used as a basis for instructions Nos. 9 and 10: K.S.A. 65-669 and K.S.A. 65-672. The statutes were adequately identified in the pretrial order.
In any event, the trial court had the power to amend the pretrial order to prevent manifest injustice. K.S.A. 1986 Supp. 60-216; Black v. Don Schmid Motor, Inc., 232 Kan. 458, 657 P.2d 517 (1983). There is no surprise in this case. The plaintiff's requested jury instructions, which expressly cite to the provisions *473 of the state food, drug, and cosmetic law as a statutory basis for Robins' duty of due care, were filed with the court (and hand delivered to counsel for Robins) 44 days prior to the date the trial court began consideration of requested instructions. There was no surprise. As in Black, the appellant knew the other party was relying on this theory and the only possible prejudice was the unfavorable jury verdict.
Robins' third argument appears to be that the Kansas act was designed to protect only the consuming public and that, since the Dalkon Shield was an ethical device available only by prescription, the plaintiff was not within the class protected by the statute. The argument has no merit. We have held that K.S.A. 65-655 et seq. is designed to "protect the consuming public from fraud and deception." Coffee-Rich, Inc. v. Kansas State Board of Health, 192 Kan. 431, Syl. ¶ 1, 388 P.2d 582 (1964). Plaintiff is a member of the consuming public who has been severely, permanently injured by the fraud, deceit, or negligence of Robins. Robins argues that K.S.A. 65-669(n) removes its statutory duty of care. That statute provides:
"A drug or device shall be deemed to be misbranded:
....
"(n) In the case of any prescription drug distributed or offered for sale in this state, unless the manufacturer, packer, or distributor thereof includes in all advertisements and other descriptive printed matter issued or caused to be issued by the manufacturer, packer, or distributor with respect to that drug a true statement of (1) the established name, as defined in subsection (e)(2) of this section, (2) the formula showing quantitatively each ingredient of such drug to the extent required for labels under 21 U.S.C. 352(e), and (3) such other information in brief summary relating to side effects, contraindications, and effectiveness as shall be required in regulations issued under the federal act."
Even if Robins' argument were true, it relieved it only of the misbranding requirements of K.S.A. 65-669, not the false advertising requirements of 65-672. In addition, the exception in K.S.A. 65-669(n) applies, by its express term, only to "prescription drugs." (Emphasis added.) Under Kansas law, the Dalkon Shield is a "device" not a "drug." K.S.A. 65-656 provides statutory definitions of the terms used in the food, drug, and cosmetic act:
"The term `device' ... means instruments, apparatus and contrivances, including their components, parts and accessories, intended (1) for use in the *474 diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; or (2) to affect the structure or any function of the body of man or other animals." K.S.A. 65-656(e).
The definition of the term "drug" expressly "does not include devices or their components, parts or accessories." K.S.A. 65-656(d).
The mislabeling provisions (K.S.A. 65-669) of the act clearly express the intent that no specific exemption exists for prescription devices. K.S.A. 65-669(a) provides: "A drug or device shall be deemed misbranded: (a) If its labeling is false or misleading in any particular." (Emphasis added.) The statute directly recognizes that mislabeling may occur for both drugs or devices, but provides a limited exemption in subsection (n) for prescription drugs only. Robins' argument is without merit.
Finally, Robins attacks the instructions because they state that the violation of the state law must "relate to the cause of an injury," rather than stating that the violation must cause the injury.
Instructions must be read as a whole. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 614, 549 P.2d 1354 (1976). Instructions Nos. 9 and 10 are not erroneous when viewed together with the other instructions to the jury. Instructions Nos. 9 and 10, by their express terms, permitted the jury to find only negligence, they did not independently permit the jury to find liability. Other provisions in the instructions fully satisfy the requirements of causation. Instruction No. 31 expressly requires that, before the jury could find fault for negligence, it must have found that negligence caused the injury complained of. Read in their entirety, the instructions are not erroneous.
We also note that, in Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984), Robins made essentially the same arguments regarding the Colorado drug mislabeling statute, which appears to be very similar to the Kansas statute. The Colorado court was no more impressed than are we with Robins' argument.
Next, Robins objects to several of the trial court's instructions relating to the manufacturer's duty to warn. The first, instruction No. 7, provides:
"It is the duty of the manufacturer of a device such as the Dalkon Shield to continuously monitor the use of its product by the consuming public and to *475 gather information relative to its safety by all reasonable means, including adverse reaction reports, scientific literature and other sources available to it.
"The duty of the manufacturer requires that it give reasonable and adequate warnings concerning any defects or risks associated with the use of the device which come to its knowledge or which, in the exercise of ordinary care, should have come to its knowledge.
"The fact that there is a difference of opinion among authorities as to the existence of or the seriousness of a risk does not by itself entitle the company to ignore or discount the risk if to do so would be unreasonable. The fact that no warning was required by a regulatory agency or was being given by manufacturers of similar products does not exonerate the defendant A.H. Robins Company if the product was defective and they knew or should have known of the defect.
"As previously stated in this instruction, the nature and extent of the warnings or other actions required of the company in the light of the hazards and risks associated with its product must be commensurate with the dangers and risks involved. Whether or not a warning to the medical community alone or other action or warnings were required is for the jury to determine. In this connection, evidence that the company sent out `Dear Doctor' letters in 1974 and in 1980 may not be considered by the jury as evidence of the company's duty to send out such warnings unless you find that the knowledge and experience existed prior to those dates which would have required the company to issue such warnings earlier. The same is true of the company's `recall' campaign in the fall of 1984. It may not be considered as evidence of the company's duty to recall the product at any time unless you further find that the literature, the adverse reaction reports and other sources of information available to the company would have required that action be taken earlier.
"The knowledge, actual or constructive, with which the company is charged in this case is that existing between September 14, 1971, and March 17, 1980."
Robins suggests that this instruction created a duty to warn the general public of the dangers of the product, instead of limiting Robins' duty to warn the members of the medical profession only.
It is undisputed that Robins made no warnings to either doctors or women using the Dalkon Shield. If the jury found that a warning was necessary under the circumstances, it could have only found for the plaintiff, since Robins had failed to warn anyone of the dangers of PID created by the wicking characteristics of the Dalkon Shield string.
In Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 409, 681 P.2d 1038 (1984), this court rejected an argument similar to Robins' present argument. Wooderson held that a manufacturer of ethical drugs has a duty to continuously monitor its product and to warn the medical profession of any known dangerous *476 side effects. The court did not reach the question of whether there existed a duty to warn persons outside the medical profession because Ortho had warned neither the medical profession nor the general public. 235 Kan. at 409. Thus, "Ortho's failure to warn the physician is sufficient to sustain the finding of negligence or breach of duty against it in this case." 235 Kan. at 409. Robins' argument fails because it made no warnings to anyone of the dangers of the Dalkon Shield.
Robins next takes exception to instruction No. 8, which provides:
"You are instructed that the manufacturer of an intrauterine contraceptive device to be used in human beings is held to the standard and skill of an expert in that particular field and to an expert's knowledge in the design, testing, manufacture, promotion, and sale. It is also held to the standard and skill of an expert concerning the scientific literature and other available means of communication concerning the device."
Robins argues that the instruction allowed the jury to hold Robins responsible for knowledge acquired after the date of plaintiff's injuries (March 17, 1980). Again, instructions must be read as a whole. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. at 614. Instruction No. 7 states: "The knowledge, actual or constructive, with which the company is charged in this case is that existing between September 14, 1971, and March 17, 1980." There is no error.
Instruction No. 13 provides:
"As you have been previously instructed, a product may be defective where not accompanied by adequate warnings concerning risks and dangers associated with its use. Whether or not a warning accompanying a device is adequate depends upon a number of factors. In this case, since the device could only be obtained through a physician, the warning must be of such a nature as to be comprehensible to the average physician using it and to convey a fair indication of the nature and extent of the danger to the mind of the physician using it. As you have been elsewhere instructed with respect to the duty of the manufacturer to take all reasonable steps necessary to warn of dangers and risks which become known to him after the product is placed on the market, the duty to update literature accompanying the device is also a continuing one, and the sources of information to which the company must look in determining whether or not to amend or modify its labeling are the same sources, that is, adverse reaction reports, the scientific literature and any other sources available to it."
Robins' argument is that the trial court erred by failing to instruct the jury that it was unnecessary for Robins to warn *477 Loretta Tetuan's physicians if they were already aware of the risks of the Dalkon Shield. Again, the record does not support Robins' contention that either Dr. Pfuetze or Dr. Weber had such knowledge concerning the Dalkon Shield.
The testimony of both physicians was that they were not aware of the full dangers of the Dalkon Shield. They further testified that, if they had been fully informed, they either would have immediately removed the device or would have never inserted it in the first place. Robins' consistent policy of concealing (or attempting to destroy) information on the true dangers of the Shield, of trying to "neutralize" critics of the Shield, and of funding only "favorable" studies ensured that the information available to Dr. Pfuetze and Dr. Weber was inadequate to break the chain of causation between Robins' failure to warn and Loretta Tetuan's injuries. There is no error as to instruction No. 13.
Robins next complains of several instances of alleged misconduct by opposing counsel. In Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 443, 581 P.2d 372 (1978), this court stated:
"Remarks of counsel are reversible error when, because of them, the parties have not had a fair trial. [Citation omitted.] Of course, the trial court is in a better position than an appellate court to determine whether the verdict resulted from asserted misconduct of counsel or from passion and prejudice, and ordinarily its conclusion in the matter will not be disturbed."
An example of misconduct by counsel which prevents the parties from having a fair trial may be found in Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062 (1973), and the court concluded that the misconduct was not an isolated instance of impropriety:
"It is apparent in this case that plaintiff's counsel's trial strategy was to try defendant's counsel rather than the issues. His efforts were not of an isolated nature but, to the contrary, permeated the whole of the trial from opening statement to final argument." 213 Kan. at 96.
Where the alleged misconduct is isolated and is insufficient to result in substantial prejudice or prevent a fair trial, the trial court's verdict will not be overturned. In State Farm Fire & Cas. Co. v. Liggett, 236 Kan. 120, 125, 689 P.2d 1187 (1984), this court found that the remark by counsel
*478 "had no relevance and was improper; but it was clearly a minor incident, insufficient to result in substantial prejudice, and any error was cured by the prompt ruling of the trial court. The case was ably tried, argued and presented to the jury by competent and aggressive counsel. Viewing these remarks from the perspective of the entire six-week trial, they were insignificant and did not prevent the appellant from having a fair trial."
In the present case, Robins has culled from a nine-week trial, with a record of over 6,000 transcript pages, 24 instances of alleged "impropriety." After reviewing these instances of "misconduct," we conclude that the conduct does not approach that which was condemned by this court in Smith. A review of the "litany of alleged misconduct" in this case reveals that Robins was not denied a fair trial.
In only two instances was plaintiff's counsel's action in any sense improper or misconduct, as opposed to simply asking questions objectionable on an evidentiary basis. Indeed, in an overwhelming proportion of Robins' "litany," counsel for plaintiff was entirely within his rights, asking questions about or commenting on evidence that had already been independently admitted or would be subsequently admitted.
The first instance was in impeaching Robins' lead witness on the basis of a National Public Radio broadcast by the witness, in which the extent of the Dalkon Shield litigation was revealed, and the second in counsel's comment in closing argument that "thousands" of injuries might have been averted but for Robins' fraudulent concealment. In the former instance, Robins' counsel objected, the objection was sustained, and the trial court carefully instructed the jury to disregard the question. The reference appears from the record to have been entirely inadvertent. The NPR broadcast transcript, from which counsel for plaintiff was reading in order to impeach a witness who had spoken on the broadcast, mentions the extent of the Dalkon Shield litigation. The record does not indicate that counsel was deliberately seeking to introduce invalid evidence.
In the latter instance, while the statement was not inadvertent, it was made in passing during the course of a four-hour oral argument. No objection was made. The trial court instructed the jury that argument by counsel is not evidence, and should be disregarded to the extent it is not supported by the evidence. We *479 cannot find that these two comments, in the course of a nine-week trial in which an immense amount of information was collected and given to the jury, so prejudiced Robins that it did not receive a fair trial.
In determining whether improper actions by counsel amount to reversible error, Kansas courts have given great weight to the presence or absence of an objection and the curative effect of a well-phrased admonition to the jury. Masson v. Kansas City Power and Light Co., 7 Kan. App.2d 344, 350, 642 P.2d 113, rev. denied 231 Kan. 801 (1982). It is only in the extreme case that a lawyer's misconduct cannot be cured by instructing the jury to disregard it. In Merando v. A.T. & S.F. Rly. Co., 232 Kan. 404, 418, 656 P.2d 154 (1982), we found that allegations of misconduct during a lengthy trial "were cured by prompt rulings of the trial court or they were insufficient to result in substantial prejudice." In Kelty v. Best Cabs, Inc., 206 Kan. 654, 656, 481 P.2d 980 (1971), we held that, where mention of insurance was inadvertent, its admission may be cured by instruction of the jury to disregard. In a products liability action in Cantrell v. R.D. Werner Co., 226 Kan. 681, 602 P.2d 1326 (1979), the defendant drug manufacturer argued on appeal that plaintiff's counsel had intentionally prejudiced the trial, asserting six different areas of alleged misconduct. We reviewed the allegations and found all to be without merit. 226 Kan. at 683. The same conclusion is warranted here. This was a long and difficult trial; the record indicates that the trial court should be commended for its handling of the case.
The jury awarded plaintiff compensatory damages in the amount of $1.7 million, and punitive damages in the amount of $7.5 million. Robins attacks these awards on four grounds: that the compensatory and punitive damage awards are excessive, that the trial court erred by refusing to remit the punitive damage award, that further awards of punitive damages against Robins would be contrary to the public interest, and that the punitive damage award unconstitutionally punishes Robins.
A. Compensatory Damages
Robins bases its argument that the compensatory damages awarded are excessive by comparing the $1.7 million award in the present case to other awards. Robins then concludes without *480 substantial analysis that the award could be only a product of "the passion and prejudice" of the trial court jury.
Where a charge of excessive verdict is based on passion or prejudice of the jury but is supported solely by the size of the verdict, the trial court will not be reversed for not ordering a new trial, and no remittitur will be awarded unless the amount of the verdict in light of the evidence shocks the conscience of the appellate court. Cantrell v. R.D. Werner Co., 226 Kan. at 686. Where the alleged passion or prejudice of the jury is not shown by definite proof, but depends for support solely on the size of the verdict, the award will be upheld unless it shocks the conscience of the court. Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650 (1979). There is no simple, symmetrical pattern or design for determining whether a verdict is sufficient or insufficient, since each case must stand on its own facts. McGuire v. Sifers, 235 Kan. 368, 681 P.2d 1025 (1984).
Robins emphasizes that Loretta Tetuan incurred only $6,000 in medical expenses, that she now earns more than she did prior to her injury, and that her second child had Down's syndrome. Prior to her injury, plaintiff earned $3.75 per hour. At the time of trial, she was employed by the American Bindery Company in Topeka, Kansas, and earned $4.15 per hour.
It is true that one of plaintiff's children has Down's syndrome. It is equally true that the other does not. In any case, the issue is whether plaintiff and her husband planned on having additional children; the uncontradicted testimony of plaintiff was that they did. Robins fails to mention other uncontradicted trial testimony. The surgical measures necessary to save plaintiff's life have created permanent psychological scars and directly caused the disintegration of her otherwise successful marriage. For the rest of her life she will have to take powerful, and occasionally dangerous, synthetic hormones, not by choice but due to the acts or failure to act by Robins.
In Cleveland v. Wong, 237 Kan. 410, 701 P.2d 1301 (1985), we held that a jury verdict of slightly over $1 million, which included the wife's loss of consortium, was not excessive where the defendant had caused the husband to be impotent and incontinent. In so holding we stated:
"In the case now before us, the injury sustained by the plaintiff is substantial, *481 severe, and permanent. The causal negligence of the defendant is clearly established. The effect upon the plaintiff and his wife has been and will continue to be severe. The verdict, though substantial, does not shock the conscience of this court." 237 Kan. at 426.
Plaintiff's injuries are substantial, severe, and permanent. At the age of 28, she was permanently surgically castrated, with all the psychological damage that entails. Her marriage was destroyed. The compensatory damages awarded do not shock the conscience of the court, and are supported by the evidence.
B. Punitive Damages
Robins alleges that the punitive damages awarded were excessive and advances two arguments: first, that the size of the verdict "even viewed in isolation" shocks the conscience, and second, that the trial court erred by excluding "good guy" evidence relevant to punitive damages.
It is difficult, if not impossible, to lay down precise rules of law to determine whether an award of punitive damages is excessive. In Henderson v. Hassur, 225 Kan. at 694, we stated:
"The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. Will v. Hughes, 172 Kan. 45, 55, 238 P.2d 478 (1951). In fixing an award of punitive damages a jury may consider the amount of actual damages recovered, defendant's financial condition and the probable litigation expenses. Ayers v. Christiansen, 222 Kan. 225, 229, 564 P.2d 458 (1977)."
Punitive damages may be awarded whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl. ¶ 16. Punitive damages are awarded to punish the wrongdoer for his malicious, vindictive, or willful and wanton invasion of another's rights, with the ultimate purpose being to "restrain and deter others from the commission of like wrongs." 235 Kan. 387, Syl. ¶ 17. "Punitive damages ... remain as the most effective remedy of consumer protection against defectively designed mass produced articles. They provide a motive for private individuals to enforce rules of law and enable them to recoup the expense of doing so." Grimshaw v. Ford Motor Co., *482 119 Cal. App.3d 757, 810, 174 Cal. Rptr. 348 (1981). An award of punitive damages "must be viewed in light of the actual damages sustained, the actual damage award, the circumstances of the case, the evidence presented, the relative positions of the plaintiff and the defendant, and the defendant's financial worth." Wooderson, 235 Kan. at 420.
Kansas courts have considered the issue of excessive punitive damages in a number of cases. In U.S.D. No. 490 v. Celotex Corp., 6 Kan. App.2d 346, 629 P.2d 196 (1981), the Court of Appeals upheld an award of $100,000 compensatory and $600,000 punitive damages against a nationwide seller of roofing systems that had fraudulently concealed defects in its products.
This court, in Wooderson, 235 Kan. at 420, upheld punitive damages of $2.75 million, compared with compensatory damages of $2 million, as not excessive. (1.38 to 1 ratio.) A punitive damage award of $1 million was upheld in Plains Resources, Inc. v. Gable, 235 Kan. 580, 682 P.2d 653 (1984), where compensatory damages totaled $282, 569.05. (3.54 to 1.) See also Iola State Bank v. Bolan, 235 Kan. 175, 679 P.2d 720 (1984) (upholding $150,000 punitive damages award compared to $26,663.14 actual damages 5.6 to 1 ratio); Binyon v. Nesseth, 231 Kan. 381, 646 P.2d 1043 (1982) (upholding punitive damage award of $100,000 compared to $9,326.06 actual damages 10.7 to 1); Henderson v. Hassur, 225 Kan. 678 (upholding punitive damage award of $215,000 compared to $48,000 actual damages 4.48 to 1). In Sampson v. Hunt, 233 Kan. 572, 665 P.2d 743 (1983), this court upheld a punitive damage award of $600,000 in a malicious prosecution action where $20,000 actual damages had been awarded. The court stated:
"The award of punitive damages here is 30 times the award of actual damages. The jury verdict shows they found the appellants guilty of maliciously prosecuting these claims against the plaintiff. The jury had before it and was entitled to consider the attending circumstances, the nature of the acts and the intent of the defendants, as well as any mitigating circumstances and Hunt's financial condition. Sampson testified he believed it would take at least a million dollars to stop Hunt's court of litigation against him. The jury obviously believed a large sum was necessary for that purpose. This amount is supported by the evidence. The trial court did not err in refusing to order a remittitur." 233 Kan. at 588.
*483 Robins stresses that no Kansas appellate court has ever upheld a punitive damage award of this magnitude. Neither has any been presented with corporate misconduct of such gravity and duration. We note that, in Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984), the Colorado Supreme Court upheld an award of punitive damages of $6.2 million for fraud under a Colorado statute requiring proof of punitive damages to be beyond a reasonable doubt. The Palmer award occurred prior to the revelation of Robins' 1975 document destruction program.
In Wooderson this court upheld a punitive damage award of $2.75 million as not excessive, having found that there was sufficient evidence for the jury's conclusion that Ortho had been grossly negligent or recklessly indifferent to the rights of others in failing to warn of the dangers of its product. In the present case, the jury made a specific finding of fraud. A review of the record indicates that there was substantial evidence tending to show Robins knew the Dalkon Shield was not safe or effective; that Robins knew of the wicking nature of the tail string; that Robins knew of a high rate of PID and septic abortion associated with the Dalkon Shield; that Robins misled doctors through claims of safety and efficacy while it knew there was no basis for a claim of safety, and all responsible tests for the Dalkon Shield's effectiveness showed a much higher pregnancy rate than Dr. Davis' "1.1%" figure; that Robins similarly misled consumers through a misleading lay promotional campaign; that Robins never publicly retracted its claims of "effectiveness" even though it had privately acknowledged the 1.1% rate as invalid; and that Robins knew there were serious problems with its open-ended nylon multifilament string in maintaining its integrity within the body. But not only was there substantial evidence to conclude that Robins fully comprehended, by 1974 at the latest, the enormity of the dangers it had created, but that it deliberately and intentionally concealed those dangers; that it put money into "favorable" studies; that it tried to neutralize any critics of the Dalkon Shield; that Robins was motivated by a desire to avoid litigation judgments rather than a concern for the safety of the users of the Dalkon Shield; that it consistently denied the dangers of the Dalkon Shield for nearly fifteen years after its original marketing of the Dalkon Shield; that it commissioned *484 studies on the Dalkon Shield which it dropped or concealed when the results were unfavorable; and, ultimately, that it consigned hundreds of documents to the furnace rather than inform women that the Dalkon Shield carried inside their bodies was a bacterial time bomb which could cause septic abortions, PID, and even death.
As to Robins' financial condition, it was established that, in 1970, A.H. Robins Co., Inc., reported net sales of $132.5 million. By 1983, net sales had increased over 400% to $563.5 million. Earnings before taxes in 1983 amounted to more than $91 million and, after tax, net earnings were over $58 million. In 1979, one of Robins' subsidiaries, Miller Morton, received a settlement of $42.5 million in an antitrust suit, which amount was to be paid over a five-year period. Robins' outstanding stock amounted to 25,426,000 shares as of March 1984. The company's stock was being publicly traded on April 1, 1985, for $23.00 per share, indicating the investor-perceived value of Robins to be in the vicinity of $584,798,000.00.
Far from simply being "grossly negligent" in marketing the Dalkon Shield, there was substantial evidence to conclude that Robins deliberately, intentionally, and actively concealed the dangers of the Shield for year after year until those dangers worked their tragic results on Loretta Tetuan. We find that the punitive damages award is not excessive nor does it shock the collective conscience of this court.
Robins suggests that the trial court improperly excluded evidence relevant to punitive damages, specifically, "good guy" evidence showing that Robins had sponsored "orphan drugs" and performed other philanthropic activities. Robins suggests that these were relevant to the issue of its intent.
The evidence was not relevant and was properly excluded. This court announced the standard of relevancy in Henderson v. Hassur:
"In assessing the punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which bear upon any of the above factors may be considered to reduce such damages." (Emphasis added.) 225 Kan. at 694.
A person who is ordinarily a philanthropist and humanitarian *485 does not receive thereby a license to commit intentional wrongs on his days off. Robins was perfectly free to introduce evidence relevant to its knowledge of the Dalkon Shield's dangers or its intent in failing to warn of these dangers, and Robins did so. The jury chose not to believe Robins' evidence. Robins' actions in areas of endeavor wholly separate from the Dalkon Shield were not relevant to the course of action which was the subject matter of this case. In Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 420-21, 681 P.2d 1038 (1984), we upheld exclusion of evidence of the beneficial effects of oral contraceptives as not proper "mitigating circumstances."
Robins argues that the punitive damages award should have been remitted because of the extent of Dalkon Shield litigation it faces. Robins introduced no evidence of this possibility of exposure to other punitive damages claims at trial for, as Robins states in its brief, "obvious reasons."
The defendant's exposure to other punitive damage claims is a relevant circumstance which may be introduced at trial. Restatement (Second) of Torts § 908, Comment e (1977). Robins recognized this potential defense at trial, but chose not to utilize it. In U.S.D. No. 490 v. Celotex Corp., 6 Kan. App.2d 346, defendant Celotex argued that its potential liability for punitive damages in similar cases should be considered in reducing the present punitive damages award:
"As USD 490 points out in its brief, Celotex had available numerous witnesses who for the purpose of mitigating the punitive damages here might have testified about the cases going on across the country with similar claims of punitive damages. Celotex, however, for tactical reasons, chose not to present such evidence to the jury." 6 Kan. App.2d at 355.
As in Celotex, the defendant here made a calculated tactical decision to attempt to avoid any liability, rather than trying to mitigate its punitive damages. Robins made a similar argument before the Colorado Supreme Court in Palmer, but again did not present any evidence at trial on the likelihood of other punitive damages. We concur with the Colorado Supreme Court, which rejected the argument as speculative. 684 P.2d at 215-16.
Robins next argues that additional awards of punitive damages are contrary to the public interest. Robins relies upon Judge Friendly's dicta in Roginsky v. Richardson-Merrell, Inc., 378 *486 F.2d 832 (2d Cir.1967). In Roginsky, the Second Circuit reversed a $100,000 punitive damages award, holding that the evidence was insufficient to justify the award. In acknowledged dicta, Judge Friendly stated his concerns regarding punitive damages in products liability situations:
"The legal difficulties engendered by claims for punitive damages on the part of hundreds of plaintiffs are staggering. If all recovered punitive damages in the amount here awarded these would run into tens of millions, as contrasted with the maximum criminal penalty of `imprisonment for not more than three years, or a fine of not more that $10,000, or both such imprisonment and fine', 21 U.S.C. § 333(b), for each violation of the Food, Drug and Cosmetic Act with intent to defraud or mislead. We have the gravest difficulty in perceiving how claims for punitive damages in such a multiplicity of actions throughout the nation can be so administered as to avoid overkill." 378 F.2d at 839.
In Celotex, the defendant made substantially the same argument Robins now makes. The Court of Appeals stated:
"While Roginsky certainly provides some support for Celotex's position, it is by no means dispositive of the issue. Alternative solutions exist that allow punitive damages to be awarded in a products liability situation without running into the problems that were anticipated in Roginsky. See Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1258 (1976)." 6 Kan. App.2d at 355.
However, as the Court of Appeals found, Celotex had precluded the ability of the trial court to consider other punitive damage litigation by its tactical decision to exclude all references to other such litigation. The Colorado Supreme Court, in Palmer, rejected Robins' argument:
"Robins' due process arguments are several. It initially asserts that the potential for multiple punitive awards involving the same product clashes with the concept of fundamental fairness. If this argument were followed to its logical conclusion, however, it would mean that `punitive damages could never be assessed against a manufacturer of a mass produced article.' Grimshaw v. Ford Motor Co., 119 Cal. App.3d 757, 812, 174 Cal. Rptr. 348, 383 (1981). The need for punitive damages is just as real as the danger of multiple awards. Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437 (1980); Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257, 1325 (1976)." 684 P.2d at 215.
The Palmer court also noted that the dangers of excessive punitive awards could be avoided:
"While the propriety of punitive damages must be decided on a case-by-case basis, there are safeguards available to a trial court faced with a defendant's claim *487 that, due to past punitive awards arising out of the same course of conduct, it will face economic disaster from a substantial punitive damages verdict in the case at issue. When an adequate showing is made by the defendant, the court might consider granting a bifurcated trial on the issue of punitive damages in order to avoid any prejudice to the defendant on the issue of liability. [Citation omitted.] The jury under such circumstances could consider at the second phase of the trial the amount of any unsatisfied or satisfied past punitive awards as well as the past and present financial condition of the defendant. Another safeguard, closely related to a bifurcated proceeding, is to instruct the jury, when so requested by the defendant, that it may properly consider the amount of past punitive verdicts imposed on the defendant as a result of its marketing conduct. [Citation omitted.] Finally, close judicial scrutiny of a punitive damages verdict, against the backdrop of the particular circumstances of the case, is another means of assuring that the award is proportionate to the defendant's wrongdoing, is commensurate with the defendant's financial ability to pay, and actually serves the purposes of punishment and deterrence. [Citations omitted.]" 684 P.2d at 215-16.
However, Robins' failure to provide at trial any evidence on its probable punitive liability exposure frustrated any of these mechanisms.
This court discussed the issue in McDermott v. Kansas Public Service Co., 238 Kan. 462, 712 P.2d 1199 (1986), stating:
"The Roginsky court was concerned that an award of punitive damages in a large number of those cases would be staggering. The Roginsky court disallowed the award of punitive damages, however, not because of the multiplicity of punitive claims but because the evidence presented on trial was not sufficient to allow the issue to go to the jury. In a later Oregon case, State ex rel. Young v. Crookham, 290 Or. 61, 618 P.2d 1268 (1980), the court discussed Roginsky and said:
"`Hindsight demonstrates that the apprehension of the Roginsky court was heavily exaggerated. Of the 1,500 cases, in only 3 did juries award punitive damages. The vast majority of cases were settled and the financial destruction feared by the Second Circuit did not come to pass.' 290 Or. at 66.
"In State ex rel. Young v. Crookham, the Oregon Supreme Court faced the issue of whether Oregon should adopt the `one bite' or `first comer' theory, so that the award of punitive damages to the first plaintiff would preclude the recovery of punitive damages for all subsequent plaintiffs. In a lucid and well-reasoned opinion, Oregon rejected the `one bite' theory, concluding that such a rule would threaten to reduce civil justice to a race to the courthouse steps, would provide a windfall to the first plaintiff, and would not be fair. The court points out possible alternatives such as class actions, remittitur, total elimination of punitive damages in mass litigation, and jury consideration of earlier and possible future punitive awards in each case. We have found no case holding that a plaintiff is prohibited from recovering punitive damages from a defendant merely because a previous plaintiff has recovered punitive damages from the same defendant based on the same conduct." 238 Kan. at 465.
While we have been cited to no cases that have adopted Judge *488 Friendly's Roginsky dicta, several courts have considered and rejected it. In Moran v. Johns-Manville Sales Corp., 691 F.2d 811 (6th Cir.1982), the Sixth Circuit expressly rejected Judge Friendly's views:
"We are not dissuaded from allowing punitive damages because this cost will ultimately be borne by `innocent' shareholders. Punitive damage awards are a risk that accompanies investment.... Investors may typically place their money where they choose and withdraw it when they wish. The prospect of ultimate liability for punitive damages may encourage investors to entrust their capital to the most responsible concerns." 691 F.2d at 817.
The court found the defendant's requests for protection from punitive damages were more properly addressed to the state legislatures or Congress than to the courts.
In Froud v. Celotex Corporation, 107 Ill. App.3d 654, 658, 437 N.E.2d 910 (1982), the court stated:
"We note, however, that defendants' brief contains a broad-based attack on the propriety of punitive damage awards in the context of mass tort litigation, such as the large number of asbestos cases which have been filed across the nation. It is feared that, in such mass tort cases, the possibility that each plaintiff could separately recover a substantial award of punitive damages might bankrupt even the richest defendants. The defendants therefore argue that public policy should prohibit punitive damages in mass tort cases. But we do not believe that defendants should be relieved of liability for punitive damages merely because, through outrageous misconduct, they may have managed to seriously injure a large number of persons. Such a rule would encourage wrongdoers to continue their misconduct because, if they kept it up long enough to injure a large number of people, they could escape all liability for punitive damages."
In Neal v. Carey Canadian Mines, Ltd., 548 F. Supp. 357, 376-77 (E.D. Pa. 1982), the court also rejected a manufacturer's argument based upon the concerns expressed in the Roginsky dicta:
"Moreover, there is no legal or equitable basis to allow punitive damage awards to the first plaintiffs in multiple product liability litigation but then to deny such a right to recovery to future plaintiffs. Each tort committed by the defendant is individual and peculiar to that particular plaintiff who has brought suit. Punitive damages are a recoverable item of relief so long as the conduct exhibited by the defendant with respect to that individual plaintiff can be termed as `outrageous' and a reckless indifference to the rights of that plaintiff."
Before considering whether the concerns expressed in Roginsky should be available to Robins as a defense, we must determine whether Robins has provided this court with adequate *489 proof that the punitive damages it faces are, in fact, likely to destroy the company.
The affidavits provided to the trial court by Robins indicated that Robins has incurred eleven punitive damage awards in its fifteen years' experience with the Dalkon Shield prior to the filing of its Chapter 11 bankruptcy petition. The largest award is the present award of $7,500,000.00. The smallest punitive damage award was a 1985 judgment for $5.00. Not including the present award, Robins has incurred punitive damage judgments of $17,327,005.00. Robins has paid only $11 million in satisfaction, however, and plaintiff strongly argues that much of this figure represents interest on unsatisfied judgments.
The figures Robins provides in its affidavits are woefully inadequate to determine Robins' true potential for future punitive damage exposure. If the figures are correct, 12,512 Dalkon Shield cases have arisen, of which 7,727 (or 61%) have been settled (7,704) or have had judgment for the plaintiff (23). 4,785 claims remain outstanding. Robins provides no information on the likelihood of future claims. Robins provides no information on previous claims which it successfully defended. It is impossible on this limited basis to determine the total outstanding liability exposure of Robins.
Robins' affidavits state the company has paid out a total of $368 million in Dalkon Shield claims. Of this amount, $357 million appears to have been for compensatory damages. How much of this amount was covered by Robins' liability insurance is not stated.
Is Robins insolvent? The information before this court does not give a satisfactory answer. It is important to note that the Chapter 11 petition Robins has filed is a voluntary action and contains no insolvency requirement. In re Johns-Manville Corp., 36 Bankr. 727, 732 (Bankr. S.D.N.Y. 1984). Indeed, there is serious doubt whether Robins is in the imminent financial peril it now claims. A recent analysis (Note, Strategic Bankruptcies: Class Actions, Classification & the Dalkon Shield Cases, 7 Cardozo L. Rev., 817, 827 [1986]), concludes that Robins' main motivation in filing the Chapter 11 petition was to create a "de facto" class action by forcing claimants to proceed through the Eastern District of Virginia Bankruptcy Court and indicates the filing was essentially a response to the federal court decision to *490 decertify a nationwide class action on punitive damages. In re Northern Dist. of Cal., Dalkon Shield, Etc., 693 F.2d 847 (9th Cir.1982); In re Dalkon Shield Punitive Damages Litigation, 613 F. Supp. 1112 (E.D. Va. 1985).
The trial court indicated that Robins' net sales have increased from $132.5 million in 1970 to $386.4 million in 1979, and to $563.5 million in 1983. Robins' net worth was $79 million in 1970; in 1983, it was $355 million. There is no evidence in the record as to Robins' financial status after 1983. The record indicates only that, until 1983 despite the Dalkon Shield litigation Robins experienced phenomenal growth. Of course, while the case remains under the jurisdiction of the bankruptcy court, Robins' management continues to operate the corporation, and further proceedings against Robins have been stayed. 11 U.S.C. § 1108 (Supp. III, 1985).
A review of the relatively meager information Robins has put before the court indicates that, of all the claims it has paid on the Dalkon Shield, the overwhelming amount, some $357 million, or 97%, has been for compensatory damages. Robins has paid some $11 million (3%) for punitive damages. If Robins does, in fact, become insolvent due to Dalkon Shield litigation, it would not be because of punitive damage awards, but because of the overwhelming amount of compensatory claims. The question remains whether Judge Friendly's Roginsky dicta should protect Robins in this case. We find it should not.
The concerns expressed in Roginsky of multiple punitive damage awards in mass accident or products liability cases may require consideration by this court at some future time. But this is not the "ordinary" products liability case. It is not based upon negligence (gross or ordinary), it is not based upon strict liability, and it is not based upon a breach of warranty although many elements of those may also be present here. It is based upon the defendant's deliberate and active fraudulent concealment of the dangers of its product. It is not based upon a "single management sin" such as producing a defective product or negligently designing a product but, rather, it arose out of a continuous corporate policy of misrepresentation and concealment for more than a decade. There may be a case when granting a product *491 manufacturer relief from punitive damages may be wholly appropriate. It is not appropriate in the present case.
Robins advances a number of other arguments against the punitive damages award. It argues that plaintiff's request in closing argument that the jury give a "final judgment" against Robins was an effort by which "the jury was asked to return a verdict which was to provide complete punishment against Robins for all problems claimed to be related to the Dalkon Shield." Robins also stresses that it only netted "approximately $500,000" from the Dalkon Shield. Robins' final general argument is that the punitive damages award cannot "be justified as necessary to deter Robins from action in the future because it stopped selling the Dalkon Shield more than 10 years before the Tetuan trial."
The first argument is simply not persuasive. A plain reading of the record does not indicate that plaintiff's counsel did anything more than request the jury to return punitive damages against Robins in its "final judgment." The record does not indicate counsel requested the jury to give "complete punishment" of Robins for all its misdeeds.
Robins' second argument has a questionable factual basis. Plaintiff contends that the $500,000.00 figure was developed solely for litigation purposes and asks how Robins, which sold 4.4 million Dalkon Shields in the United States and abroad, costing $.30 per unit to produce and selling for $4.35, could net only $500,000.00. In any case, how much Robins managed to profit by its fraud is not the ceiling of its punitive damage liability. Indeed, if such were the case, punitive damages would have no deterrent effect because the wrongdoers would be compelled to relinquish only their ill-gotten gains and no more. Robins' profits on the Dalkon Shield are relevant, but only to the extent that they affected the net wealth of the company.
Finally, Robins' suggestion that, since it removed the Dalkon Shield from the marketplace in 1974, it should not be subject to punitive damages awards ten years later is truly remarkable. While Robins stopped selling the Dalkon Shield in 1974, it did so only under pressure from the FDA; it continued to sell its remaining stock of Dalkon Shields overseas after 1974. Most importantly, of course, the punitive damages were awarded in this case not solely because Robins had sold Dalkon Shields, but *492 that, even after doing so, it fraudulently concealed the Shield's defects for years.
Robins' final argument is that the punitive damages award unconstitutionally punishes Robins, and that the present award will not achieve its purpose of deterrence. Robins relies upon Judge Heaney's dissent in In re Federal Skywalk Cases, 680 F.2d 1175, 1188 (8th Cir.), cert. denied 459 U.S. 988 (1982) (Heaney, J., dissenting):
"Unlimited multiple punishment for the same act determined in a succession of individual lawsuits and bearing no relation to the defendants' culpability or the actual injuries suffered by victims, would violate the sense of `fundamental fairness' that is essential to constitutional due process."
We would point out that Robins is not being punished for a "single act." It is not being punished for a single instance of negligence or recklessness in designing a skywalk. It is being punished for a series of corporate actions which for more than a decade involved fraudulent misrepresentations and fraudulent concealment.
A similar argument was presented to the Kansas Court of Appeals in U.S.D. No. 490 v. Celotex Corp., 6 Kan. App.2d 346, 629 P.2d 196 (1981). The court stated:
"Celotex presents the novel argument that the imposition of punitive damages against Celotex, an interstate mass-marketer, violates its constitutional guarantee of due process, its right to protection against double jeopardy, and subjects it to cruel and unusual punishment. The imposition of punitive damage awards, although penal in nature, does not approach the severity of criminal sanctions and does not demand the same safeguards as do criminal prosecutions. See Comment, Criminal Safeguards and the Punitive Damages Defendant, 34 Univ. Chicago L. Rev. 408 (1967).
"In arguing that successive punitive damage verdicts subject it to cruel and unusual punishment, Celotex relies upon the suggestion in a concurring opinion by United States Supreme Court Justice Frankfurter that the Eighth Amendment could protect against multiple civil penalties. See U.S. ex rel. Marcus v. Hess, 317 U.S. 537, 556, 87 L.Ed. 443, 63 S.Ct. 379 (1943). The United States Supreme Court, however, has recently ruled that the Eighth Amendment is generally limited to challenging conditions of a criminal sentence. See Ingraham v. Wright, 430 U.S. 651, 51 L.Ed.2d 711, 97 S.Ct. 1401 (1977). In our opinion, the Eighth Amendment does not apply to the facts before us." 6 Kan. App.2d at 355-56.
This court rejected a similar claim in McDermott v. Kansas Public Serv. Co., 238 Kan. at 467. See Palmer v. A.H. Robins Co., Inc., 684 P.2d 187, 214-17 (Colo. 1984).
*493 Robins' final point is: "Maximum deterrence was achieved long ago," and cites Judge Kelly's decision in O'Gilvie v. Intern. Playtex, Inc., 609 F. Supp. 817, 819 (D. Kan. 1985). Robins' argument, of course, entirely fails to address the fact that the purpose of punitive damages in Kansas is not merely to deter the defendant from future misconduct, but "to restrain and deter others from the commission of like wrongs." Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl. ¶ 17, 681 P.2d 1038 (1984). In O'Gilvie, in order to obtain a remittitur of a $10 million punitive damages award to $1.35 million, the defendant immediately recalled its product and began a public education campaign about its product's dangers. Robins' historical reaction to punitive damage awards has proven to be less than commendable.
The $6.2 million punitive damage award against Robins in Palmer was rendered by the jury on July 30, 1979. Loretta Tetuan first experienced symptoms of PID in late September of that year. It is entirely possible that plaintiff's injuries could have been avoided if the company had reacted to the verdict by immediately moving to recall the product or to at least warn of its dangers. Instead, Robins responded with the same position it had taken for the last decade that the Dalkon Shield was "safe and effective." Robins issued a statement on July 31, 1979, that the verdict was "an aberration" and that it was confident "this unwarranted verdict will not survive" on appeal.
The first Dalkon Shield case to proceed to trial on the merits occurred in Kansas in Deemer v. A.H. Robins Co., Case No. C-26420. On March 1, 1975, the jury awarded punitive damages against Robins in the amount of $75,000. Robins did not recall the product; it did not warn users of the Dalkon Shield's dangers; it did not warn physicians. It certainly did not warn Loretta Tetuan or the physicians who treated her. Instead, it reacted to the modest punitive damages award in Deemer by promptly attempting to destroy all evidence of its knowledge of the Dalkon Shield's dangers, consigning hundreds of documents to the draft furnace. To punish Robins for its conduct and to discourage others from committing like wrongs in the future, the punitive damages award is justified.
The judgment is affirmed.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL PIO-DIAZ, AKA Octavio Oros, No. 16-72866
Petitioner,
Agency No. A205-699-958
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 7, 2020**
Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.
Miguel Pio-Diaz, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”), and his request
for administrative closure. We have jurisdiction under 8 U.S.C. § 1252. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review for substantial evidence the agency’s factual findings. Zehatye v. Gonzales,
453 F.3d 1182, 1184-85 (9th Cir. 2006). We review de novo questions of law,
Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that
deference is owed to the BIA’s interpretation of the governing statutes and
regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny the
petition for review.
Substantial evidence supports the agency’s determination that Pio-Diaz
failed to establish the harm he experienced or fears was or would be on account of
a protected ground, including his family membership. See Ayala v. Holder, 640
F.3d 1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is
established, an applicant must still show that “persecution was or will be on
account of his membership in such group”); Zetino v. Holder, 622 F.3d 1007, 1016
(9th Cir. 2010) (an applicant’s “desire to be free from harassment by criminals
motivated by theft or random violence by gang members bears no nexus to a
protected ground”).
In addition, the BIA did not err in finding that Pio-Diaz’s proposed social
group of “Mexican returnees from the United States perceived as wealthy” was not
cognizable. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to
demonstrate membership in a particular social group, “[t]he applicant must
‘establish that the group is (1) composed of members who share a common
2 16-72866
immutable characteristic, (2) defined with particularity, and (3) socially distinct
within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227,
237 (BIA 2014))); see also Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th
Cir. 2016) (concluding that “imputed wealthy Americans” returning to Mexico
does not constitute a particular social group). The BIA also did not err in declining
to consider Pio-Diaz’s arguments regarding a social group that was not proposed to
the IJ. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (BIA did not
err in declining to consider social group that was not raised to IJ).
Thus, Pio-Diaz’s asylum and withholding of removal claims fail. In light of
this disposition, we need not reach Pio-Diaz’s remaining contentions concerning
asylum and withholding of removal. See Simeonov v. Ashcroft, 371 F.3d 532, 538
(9th Cir. 2004) (courts and agencies are not required to decide issues unnecessary
to the results they reach).
Substantial evidence supports the agency’s denial of CAT relief because
Pio-Diaz failed to show it is more likely than not he will be tortured by or with the
consent or acquiescence of the government if returned to Mexico. See Aden v.
Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Delgado-Ortiz v. Holder,
600 F.3d 1148, 1152 (9th Cir. 2010) (generalized evidence of violence and crime
in petitioner’s home country insufficient to meet standard for CAT relief).
Pio-Diaz establishes no error in the agency’s denial of administrative closure
3 16-72866
under the factors applicable at the time of the BIA’s decision. See Gonzalez-
Caraveo v. Sessions, 882 F.3d 885, 891 (9th Cir. 2018).
We reject Pio-Diaz’s contentions that the agency failed to consider evidence
or otherwise erred in its analysis of his claims.
Finally, we deny Pio-Diaz’s request to file a document that is not part of the
administrative record. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en
banc) (court’s review is limited to the administrative record).
PETITION FOR REVIEW DENIED.
4 16-72866
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239 F.2d 645
Donald James ELKINS et al.v.NEW MEXICO AND ARIZONA LAND COMPANY et al.
No. 5371.
United States Court of Appeals Tenth Circuit.
August 3, 1956.
Appeal from the United States District Court for the District of New Mexico.
Bart W. O'Hara, Denver, Colo., Charles A. Murdock, Denver, Colo., and Robertson & Skinner, Raton, N. M., for appellants.
J. R. Modrall, and William C. Briggs, Albuquerque, N. M., for appellees.
Before BRATTON, Chief Judge.
1
Dismissed on motion of appellants, appellees consenting thereto. D.C., 137 F. Supp. 767.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7569
KINGDAWUD MUJAHID BURGESS,
Plaintiff - Appellant,
v.
AARON R. YBARRA, Agent; THE UNITED STATES OF AMERICA THROUGH
THE BUREAU OF ALCOHOL TOBACCO AND FIREARMS,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:08-cv-00120-GBL-TCB)
Submitted: April 22, 2010 Decided: April 26, 2010
Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kingdawud Mujahid Burgess, Appellant Pro Se. Yiris E. Cornwall,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kingdawud Mujahid Burgess appeals the district court's
order denying his motion to reconsider the court’s earlier order
dismissing his action without prejudice based on Burgess’
failure to comply with court orders to provide notification of
his transfer, release, or relocation, or risk involuntary
dismissal pursuant to Fed. R. Civ. P. 41(b). We have reviewed
the record and find no reversible error. Accordingly, we affirm
on the reasoning of the district court. Burgess v. Ybarra, No.
1:08-cv-00120-GBL-TCB (E.D. Va. July 24, 2009). 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
2
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865 F.2d 1264
Espyv.C.I.R.S.
NO. 88-4117
United States Court of Appeals,Fifth Circuit.
JAN 10, 1989
1
Appeal From: U.S.T.C.
2
AFFIRMED.
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378 B.R. 550 (2007)
In Re Ali M. ALMASRI, Debtor.
Lauren A. Helbling, Chapter 7 Trustee, Plaintiff,
v.
Stanley L. Josselson, Defendant.
Bankruptcy No. 05-10812, Adversary No. 06-1989.
United States Bankruptcy Court, N.D. Ohio, Eastern Division.
November 21, 2007.
*551 *552 Stephen D. Hobt, Cleveland, OH, for Plaintiff.
George H. Carr, Gallagher Sharp, Cleveland, OH, for Defendant.
MEMORANDUM OF OPINION AND ORDER
RANDOLPH BAXTER, Chief Judge.
Before the Court is Defendant Stanley L. Josselson's Motion to Dismiss Complaint with Prejudice ("Motion"). The Trustee opposes the Motion. After considering the parties' respective briefs and conducting oral arguments on the Motion, the Court rules as follows:
*
The Debtor filed a voluntary Chapter 7 petition on January 24, 2005. The Trustee filed a Complaint to Revoke Debtor's Discharge on December 14, 2005 objecting to discharge pursuant to 11 U.S.C. §§ 727(a)(4)(A). The basis of the Trustee's complaint was failure of the Debtor to disclose the existence of a bank account and a business. This Court entered judgment against the Debtor, revoking his discharge, on April 14, 2006. Otherwise, the Debtor conceivably would have received a discharge of debts totaling $262,787.94. The Defendant, Stanley L. Josselson, was the Debtor's bankruptcy counsel.
The Trustee brought the instant adversary proceeding against Josselson, alleging that he committed legal malpractice and that the Debtor was damaged in the amount of $262,787.94 as a result. Specifically, the Trustee alleges that the Debtor informed Josselson of the existence of the bank account and the business but Josselson failed to include such in the Debtor's petition and schedules as a claimant. The Trustee alleges that it was Josselson's failure to list the account and business that resulted in the Debtor's revocation of discharge.
* *
The dispositive issue for the Court is whether the Defendant has met his burden to prove that the Trustee's complaint fails to state a claim for which relief can be granted.
* * *
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and General Order No. 84 of the District. This adversary proceeding is a non-core proceeding and therefore this Court is precluded from entering a final judgment in this matter absent consent of the parties. 28 U.S.C. §§ 157(c)(1) and (2). The Sixth *553 Circuit has noted that malpractice claims asserted by the debtor's successor in interest against the debtor's bankruptcy counsel were "non-core" because as "claims . . . against a non-creditor third party, they are not among the core proceedings arising under the Bankruptcy Code or listed in 28 U.S.C. § 157(b)(2)(A-O)." Browning v. Levy, 283 F.3d 761, 773 (6th Cir.2002). Josselson has never sought payment from the debtor's estate, nor did the debtor list Josselson in his petition and schedules. Further, the Trustee's allegations relate solely to acts that occurred prepetition in the preparation of the Debtor's petition and schedules. Therefore, Southmark Corp. v. Coopers & Lybrand (In re Southmark Corp.), 163 F.3d 925 (5th Cir.1999), relied on by the Trustee, is distinguishable. In that case, the court found that the debtor's malpractice claim against a court-appointed examiner was core because the debtor alleged breaches of fiduciary duty and of a contract whose terms had been approved postpetition by the bankruptcy court. The court found that the claims were inseparable from the bankruptcy context and that a "court-appointed professional's dereliction of duty could transgress both explicit Code responsibilities and applicable professional malpractice standards." Id. at 931. In addition the examiner in that case had filed an administrative claim to obtain fees and the court found that the malpractice claim was similar to a counterclaim. Id. at 932. Herein, Josselson has not filed a proof of claim against the Debtor's bankruptcy estate.
This Court has the authority, however, to hear this adversary proceeding pursuant to 28 U.S.C. § 157(c)(1), which states in pertinent part that:
(c) (1) A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such a proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge's proposed findings of fact and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected.
A civil proceeding is "related to" a bankruptcy case where "the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy." Wolverine Radio Co., 930 F.2d 1132, 1142 (6th Cir.1991). The Trustee's allegations herein are related to the Debtor's bankruptcy estate because any recovery will impact distribution to the estate's creditors.
Although this Court is precluded from entering a final order or judgment on the subject adversary proceeding, the denial of a motion to dismiss is not a final order. Archie v. Lanier, 95 F.3d 438, 442 (6th Cir.1996). Because 28 U.S.C. § 157(c)(1) speaks only to "final" orders or judgments, the plain language of that provision dictates that this Court has the authority to enter interlocutory orders in non-core proceedings and courts have consistently held such to be within, the power of the bankruptcy court. See In re Quality Care Medical Equipment, Co., Inc., 92 B.R. 117, (E.D.Pa.1988)("bankruptcy courts, in non-core matters, may enter only interlocutory orders, absent the consent of all parties."); In re Kennedy, 48 B.R. 621, 623 (Bankr.D.Ariz.1985)("[w]hile not defined, Congress' use of the familiar legal expression `final order' connotes its intent that the words be given their usual legal meaning and bankruptcy interlocutory orders in noncore proceedings need not be submitted to the district court."); and In re One-Eighty Investments, Ltd., *554 72 B.R. 35, (N.D.Ill.1987)(striking objections to bankruptcy court's findings of fact and conclusions of law denying motion for summary judgment because "Congress did not intend to impose the burden on the district court that would result if bankruptcy courts could not enter interlocutory orders.")
* * * *
Josselson moves to dismiss the Trustee's complaint pursuant to Rule 12(b)(6), Fed. R.Civ.P., which provides:
(b) How Presented, Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
(6) failure to state a claim upon which relief can be granted.
The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief if all the facts and allegations in the complaint are taken as true. See Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993)(citing Nishiyama v. Dickson County, 814 F.2d 277, 279 (6th Cir.1987)). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir. 2001). In a Rule 12(b)(6) determination, "the factual allegations of the complaint must be accepted as true", Kerasotes Michigan Theatres, Inc. v. National Amusements, Inc., 854 F.2d 135, 136 (6th Cir.1988) and construed in the light most favorable to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In deciding a motion to dismiss for failure to state a claim, it is improper for the court to consider matters outside the complaint. Kostrzewa v. City of Troy, 247 F.3d 633, 643 (6th Cir.2001). If the court considers matters outside the complaint, then it must convert the motion to one for summary judgment and give the opposing party a reasonable opportunity to respond. Id. at 643-44. The defendant bears the burden to prove that no claim has been stated. Gould Electronics, Inc. v. U.S., 220 F.3d 169, 178 (3d Cir.2000).
* * * * *
Josselson alleges three basis for dismissing the Trustee's complaint: 1) The Trustee lacks standing to assert the malpractice claim because the Trustee is actually suing for benefit of the debtor's creditors; 2) The alleged malpractice claim is not property of the estate because each element of the claim did not exist prior to the bankruptcy filing; and 3) The Trustee, standing in the shoes of the debtor, is barred from bringing the claims alleged by the doctrine of in pari delicto.
The Trustee opposes the Motion and alleges that the claim brought is on behalf of the debtor because the debtor sustained damages as result of having his discharge revoked, that the action is property of the estate because the malpractice occurred pre-petition and that the doctrine of in pari delicto is inapplicable or, in the alternative, inappropriate to decide at this juncture.
* * * * * *
Josselson first alleges that the Trustee is seeking to assert claims on behalf of the Debtor's creditors and therefore lacks standing to bring the adversary proceeding. Caplin v. Midland Marine Grace Trust Co., 406 U.S. 416, 434, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972). However, the malpractice claim brought by the Trustee does not belong to Josselson's *555 creditors, but to the Debtor's estate. As alleged in the complaint, the Debtor suffered the loss of his discharge because of Josselson's alleged malpractice. Had Josselson adequately performed as Debtor's counsel, the Debtor arguably, would have received a discharge of his debts in the amount of $262,787.94. Josselson alleges that the Trustee fails to identify actual damages suffered by the Debtor, i.e., in the form of claims by creditors that the Debtor now must pay because of the loss of his discharge. Although this may be relevant to the amount of damages suffered by the Debtor, it does not demonstrate that the Trustee lacks standing to bring the malpractice claim.
As discussed below, the malpractice claim is property of the Debtor's estate pursuant to 11 U.S.C. § 541 and it is the Trustee's duty to "reduce to money the property of the estate." 11 U.S.C. § 704(a)(1). Consistent with that duty, Bankruptcy Rule 6009 authorizes a trustee to "commence and prosecute any action or proceeding in behalf of the estate before any tribunal." Accordingly, Josselson's motion to dismiss with respect to Trustee's standing is not well-premised.
Josselson's argument that the malpractice claim is not property of the estate is also not well-premised. Property of the bankruptcy estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1). Congress enacted § 541 as part of the Bankruptcy Reform Act of 1978 with the intent that "property of the estate" be construed broadly and "include practically every conceivable interest a debtor may have in property as of the bankruptcy filing date." In re Minton, 348 B.R. 467, 472 (Bankr. S.D.Ohio 2006). This includes the debtor's interest in causes of action which exist at the time of filing. In re Graham Square, Inc., 126 F.3d 823, 831 (6th Cir.1997).
Property interests are "created and defined by state law." Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). In order to establish a cause of action for legal malpractice under Ohio law, the plaintiff must show that (1) the attorney had a duty to the client, (2) a breach of duty occurred due to the failure to conform to the standard of care required by law, and (3) the breach proximately cause the injury or harm, Montgomery v. Gooding, Huffman, Kelly & Becker, 163 F.Supp.2d 831 (N.D.Ohio 2001). The cause of action for malpractice accrues when the client discovers or should have discovered, using a reasonable person standard, that the injury he suffers is related to his attorney's action or non-action or when the attorney-client relationship is terminated, whichever occurs later. Zimmie v. Calfee, Halter and Griswold, 43 Ohio St.3d 54, 58, 538 N.E.2d 398 (1989). Whether a cause of action exists at the commencement of the bankruptcy estate and therefore becomes property of the estate is a separate issue to when the legal malpractice had accrued. Kovacs, 117 Ohio App.3d at 470, 690 N.E.2d 970. When the three elements of legal malpractice under state law are present, the cause of action exists. In re Dow, 132 B.R. 853, 859 (Bankr.S.D.Ohio 1991).
The Trustee alleges that Josselson breached his duty to the Debtor when preparing the bankruptcy petitions and schedules. By the time of the filing of the petition, therefore, the first two elements of the legal malpractice claim had been met. The injury of the third element did not occur until the discharge had been revoked, which occurred post-petition. However, "the Dow court explicitly rejected the proposition that. . . . a plaintiff suffers damages only when adverse economic *556 consequences arise-rather damages from advising and representing the debtor `occurred at the point of the filing of the petition.'" Kovacs, 117 Ohio App.3d at 471, 690 N.E.2d 970 (quoting In re Dow, 132 B.R. at 860). Therefore, the third element of the legal malpractice suit has also been satisfied.
This is consistent with the Bankruptcy Appellate Panel for the Sixth Circuit's decision, In re Parker, 2007 WL 1376081 (6th Cir. BAP 2007). Therein, the court stated that the question of whether the malpractice claim was property of the estate "is not whether the malpractice claim accrued, based on the moment the last element of the cause of action accrued, prior to Parker filing bankruptcy, but whether the malpractice claim is sufficiently rooted in Parker's prebankruptcy past to constitute property of the estate." Id. at *7.
Further, in Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A. v. Alvarez (In re Alvarez), 224 F.3d 1273 (11th Cir.2000), the debtor sought to sue his bankruptcy attorney for filing a Chapter 7 petition on his behalf when a Chapter 31 petition should have been filed. The court determined that the malpractice cause of action was property of the estate because the debtor "had a cognizable interest in his legal malpractice claim at the time it was filed." Id. at 1277. The court further noted that the debtor had established the attorney-client relationship prepetition and that the cause of action arose directly from the debtor's prepetition actions with his counsel. Id. at 1279. See also, In re Tomaiolo, 205 B.R. 10, (Bankr.D.Mass. 1997) (concluding that debtor's legal malpractice claims, including claim concerning services in preparation of documents filed with the bankruptcy petition, were sufficiently rooted in the pre-bankruptcy past to be included in bankruptcy estate.); and In re J.E. Marion, Inc., 199 B.R. 635, 637 (Bankr.S.D.Tex.1996)(finding that legal malpractice claims against the debtor's bankruptcy counsel were property of the estate.) Accordingly, Josselson's allegation that the Trustee's complaint should be dismissed because the malpractice claim is not property of the estate is not well-premised,
Finally, Josselson alleges that the complaint should be dismissed based on the doctrine of in pari delicto and cites to the case of Terlecky v. Hurd, 133 F.3d 377 (6th Cir.1998) in support of this argument, Specifically, Josselson alleges that the doctrine of in pari delicto bars the Trustee's claims because in the Trustee's adversary proceeding to revoke the Debtor's discharge, this Court found that the Debtor had acted with intent to defraud when he failed to adequately disclose in his petition and statement of financial affairs. However, in Terlecky, the defendant's motion to dismiss was granted because the trustee
admits in his complaint that the debtor' own actions were instrumental in perpetrating the fraud on the individuals choosing to invest in the Dublin securities scheme. That pleading concedes, for example, that the debtors intentionally defrauded their investors. Such purposeful conduct thus establishes conclusively that the debtors were at least as culpable as the defendants in this matter.
Id. at 380. Herein, the Trustee alleges in the complaint that the Debtor informed his counsel of the existence of the business account and that it was his counsel who omitted the information. The Court does not determine on this record that the Debtor was "at least as culpable" as debtor's counsel, taking the allegations in the complaint as true. Accordingly, Josselson has not met his burden with respect to his claim that the doctrine of in pari delicto bars the Trustee's claims.
*557 * * * * * *
Accordingly, Josselson's Motion to Dismiss is not well-premised and his hereby denied. The Trustee's opposition thereto is sustained. Each party is to bear its respective costs.
IT IS SO ORDERED.
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220 F.Supp.2d 61 (2002)
UNITED STATES of America
v.
Robert CORREA and Shelton Lewis
No. CR.99-10416-EFH.
United States District Court, D. Massachusetts.
September 18, 2002.
Kevin J. Reddington, Law Offices of Kevin J. Reddington, Brockton, MA, for Robert Correa, Defendant.
Charles P. McGinty, Federal Defender Office, Leo Sorokin, Public Defender Office, Boston, MA, for Shelton Lewis, Defendant.
Donald L. Cabell, United States Attorney's Office, Boston, for U.S. Attorneys.
MEMORANDUM AND ORDER
HARRINGTON, Senior Judge,
Introduction
At issue in this Memorandum and Order is a motion by counsel for co-defendants Shelton Lewis and Robert Correa to suppress *62 a September 9 telephone conversation between them.[1] The call was placed by Correa from the Plymouth County House of Correction ("Plymouth"), where Correa was detained, to an individual named Wilson. After Wilson accepted the call, Lewis took the receiver and talked with Correa. The call was recorded by Plymouth officials pursuant to its inmate telephone system policy. Law enforcement officials later listened to a recording of the call, as well as others made by Correa, with the assistance of a Plymouth employee. Because Correa consented to the monitoring and recording of his calls and because Plymouth's sharing of those recordings with law enforcement officials did not exceed the scope of Correa's consent, the motion to suppress the September 9 telephone conversation is denied. Further, even if the disclosure of the conversation to a member of the State Police and a member of the Brockton Police department had exceeded the scope of Correa's consent, that disclosure was proper under the law enforcement exception to Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C. § 2510(5)(a)(ii).
Background
Plymouth records all inmate calls, except those made to designated attorneys or clergy members, on reel-to-reel tapes. The calls also are subject to monitoring by prison employees.
The parties have stipulated that Massachusetts State Police Officer John Brooks and Detective Cummings of the Brockton Police Department went to Plymouth, where telephone systems administrator George Pyne played a recording of some of Correa's calls for them. The officers subsequently used what they heard to obtain a subpoena for cassette copies of the calls.
The telephone conversation between Correa and Lewis was recorded by Plymouth officials pursuant to the Plymouth Inmate Telephone System policy ("PCCF-482"). PCCF-482 was issued under authority granted to the superintendents of the Commonwealth's correction facilities by 103 C.M.R. 482, a regulation issued by the Department of Corrections and governing prison telephone access and use. Under the regulation, superintendents are to develop procedures to insure inmates have access to telephones, while ensuring the orderly and safe use of prison telephones. 103 C.M.R. 482.07(1).
Call monitoring and recording is explicitly authorized by 103 C.M.R. 482.07(3)(d). However, the regulation does not address the issue of whether law enforcement officials may be permitted, absent court order, to listen to inmate telephone calls. Instead, it is the Plymouth policy that states: "Criminal justice agencies outside the Plymouth County Sheriff's Department are allowed access to recorded tapes within the scope of their legally authorized request (i.e., court orders). Random or general access to monitored telephone conversations are [sic] strictly prohibited." PCCF-482 XVIII A.
Plymouth's recording and monitoring is not conducted surreptitiously. For example, when inmates protect calls to attorneys and clergy from this regime by placing excluded names and telephone numbers on a form entitled "Inmate List of Designated Telephone Numbers" ("Inmate List"), they see a notice stating that their use of an assigned pin number ("IPIN") to make calls from Plymouth constitutes consent to recording and monitoring. The notice states:
Your acceptance of the IPIN and use of the inmate telephones will be deemed as *63 consent to the conditions and restrictions placed upon inmate telephone calls, including call monitoring, recording, and call detail.
In addition, prior to making calls, inmates sign and date forms expressly consenting to such recording and monitoring. Finally, under the Plymouth policy, inmates and the recipients of their calls hear the following message before being connected:
Nynex has a collect call from [name of inmate], an inmate at the Plymouth County House of Correction. To refuse this call, hang up. If you use three-way calling or call waiting, you will be disconnected. All call detail and conversation, excluding approved attorney calls, will be recorded. To accept this call, dial one now.
In this case, Lewis did not hear this announcement because he took the receiver after it was made. However, as discussed below, it is sufficient for purposes of this motion for the Court to concern itself only with Correa's consent.
Discussion
A. Scope of Consent
Counsel for the defendants argue that when Pyne allowed Brooks and Cummings to listen to the recording of the conversation, he violated Title III, which prohibits, subject to certain exceptions, the interception of telephone conversations without a court order. 18 U.S.C. §§ 2510-2521. As a basis for their motion to suppress, counsel rely on a provision of Title III prohibiting the use as evidence of wire or oral communications intercepted in violation of this law. 18 U.S.C. § 2515.
At oral argument, defense counsel apparently conceded, however, that at first blush the so-called "consent exception" to Title III applies here. 18 U.S.C. § 2511(2)(c) states:
It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
It is no longer an open question in this Circuit whether inmates may be deemed to have consented to monitoring and recording under a system like that employed at Plymouth. See U.S. v. Footman, 215 F.3d 145, 154-55 (1st Cir.2000). Addressing the Concord state prison, the First Circuit found in Footman that prisoners there who had received such notices had consented to the monitoring and recording. Id.[2]
*64 Faced with this precedent, counsel for the defendants argue that the sharing of the recordings with law enforcement prior to the issuance of the subpoena nevertheless exceeded the scope of Correa's consent, and therefore, the September 9 telephone conversation should be suppressed. Specifically, defense counsel contend that the scope of Correa's consent was limited by two factors: the purpose for which inmate calls are monitored and recorded, or the object of the recording, in search and seizure terms, and the prohibition against random or general access by law enforcement agencies contained in PCCF-482.
Regarding defense counsel's first proposed limitation, it is settled that "the scope of a search is generally defined by its expressed object." Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). However, Plymouth expressed no object for its monitoring and recording in any of the notices that form the basis for a finding of consent. Inmates, such as Correa, are told merely that all calls will be monitored and/or recorded. No indication of why the calls are recorded is given in the document entitled "Orientation to the Inmate Telephone System for Inmates," for example. Nor is a purpose stated in the Inmate Telephone List. The recorded message callers and recipients hear before a call is accepted by the recipient also fails to mention a reason for the recording. Finally, PCCF-482 express no object for the recording.
In an attempt to suggest an express object that would preclude sharing the content of the conversation with law enforcement officials, defense counsel points only to Cacicio v. Secretary of Public Safety, 422 Mass. 764, 768, 665 N.E.2d 85 (1996). According to defense counsel, Cacicio stands for the proposition that recording and monitoring may be used only to prevent inmates from using the telephones to plan escapes, organize drug trafficking, orchestrate criminal activities, and solicit murder; to prevent fraudulent use of third-party calls or telephone credit cards; and to prevent inmates from using telephones to harass members of the media, public officials, and victims. Id. However, these objects are merely the Supreme Judicial Court's description of the purpose of the regulation, which it distilled from an affidavit provided by the assistant deputy commissioner of secure facilities detailing some of the problems with the prison phone system prior to the regulation. See id. at 89 n. 8. This description by the Supreme Judicial Court of the Department of Corrections' purpose for recording is not part of what Plymouth tells its inmates about the telephone system. Nor is the Cacicio decision likely to be so familiar to inmates that prisoners such as Correa should be deemed to have impliedly limited their consent to recording only to the purposes catalogued by the Supreme Judicial Court.
Turning to defense counsel's second proposed limitation on the scope of Correa's consent, it cannot be disputed that Pyne violated PCCF-482 when he permitted Officer Brooks and Detective Cummings to listen to the recordings prior to the issuance of the subpoena. However, suppression does not necessarily follow. PCCF-482 was established, as noted earlier, under the power given correction facility superintendents by 103 C.M.R. 482. That regulation includes an important limitation: it does not create or confer any *65 procedural or substantive rights or any private cause of action not otherwise granted by state or federal law. 103 C.M.R. 482.01. In effect, this provision of the regulation tells defendants they must look elsewhere for a limitation on the scope of Correa's consent.
As discussed, no such limitation exists. Co-defendant Correa consented to a monitoring and recording system that was unqualified in all relevant aspects. And, Plymouth officials expressed no object of the search that could be construed to limit its scope. Hence, the use of the recording as evidence is permissible under the consent exception to Title III. 18 U.S.C. § 2511(2)(c).
B. The Law Enforcement Exception
As noted in the introduction to this order, the Court concludes that the disclosure by Pyne to Brooks and Cummings falls within the law enforcement exception of Title III, providing an independent ground for denying the motion to dismiss. 18 U.S.C. § 2510(5)(a)(ii). Specifically, Title III does not apply to communications intercepted by any device operated "by an investigative or law enforcement officer in the ordinary course of his duties." Id. Further, assuming that Pyne fits the definition of an "investigative or law enforcement officer" and that his interception of Correa's conversations occurred in the ordinary course of his duties, his disclosure is proper under 18 U.S.C. § 2517(1). This provision of Title III permits any investigative or law enforcement officer, who by any means authorized in Title III has obtained knowledge of the contents of any wire, oral, or electronic communication, "to disclose such contents to another law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure." Id. (Emphasis added.)
The Court's conclusion that Pyne's disclosure is protected by the law enforcement exception is the product of a three-part inquiry. The first addresses the question of whether prison officials, like Pyne, are law enforcement or investigative officers under the statute. The second is whether Pyne's recording occurred in the ordinary course of his duties. Finally, it must be decided whether the disclosure to Brooks and Cummings was proper in the absence of a court order. The Court addresses these questions in turn.
The Court concludes that Pyne, as an employee of Plymouth, was an investigative or law enforcement officer, based on numerous prior decisions deeming prison officials investigative or law enforcement officers for purposes of Title III. The First Circuit has not ruled unequivocally on the question, but in Gilday v. Dubois, the court left unchallenged a District Court's conclusion that Department of Corrections officials responsible for monitoring and recording prisoner calls came within the law enforcement exception. 124 F.3d 277, 282 n. 7 (1997). See also U.S. v. Hammond, 286 F.3d 189, 192 (4th Cir.2002) (applying law enforcement exception to recordings by employees of Bureau of Prisons); U.S. v. Van Poyck, 77 F.3d 285, 291-92 (9th Cir.1996) (applying law enforcement exception to recordings by employees of Metropolitan Detention Center); U.S. v. Sababu, 891 F.2d 1308, 1328-29 (7th Cir.1989) (recordings by employees of Leavenworth penitentiary); U.S. v. Feekes, 879 F.2d 1562, 1565-66 (7th Cir.1989); U.S. v. Paul, 614 F.2d 115, 117 (6th Cir.1980).
The Court's conclusion is unaffected by language in the definition of "investigative or law enforcement officer" limiting such designation to those "empowered ... to conduct investigations of or to make arrests for offenses enumerated in this chapter." *66 18 U.S.C. § 2510(7).[3] This Court rules, as have the few courts that have construed this language, that prison officials must be deemed, at the least, to have authority to investigate potential criminal violations in the interest of prison security. U.S. v. Clark, 651 F.Supp. 76, 79 (M.D.Pa. 1986); Crooker v. U.S. Department of Justice, 497 F.Supp. 500, 503 (D.Conn.1980).
Reaching the second requirement of the law enforcement exception, this Court concludes that Pyne's recording was made in the "ordinary course of ... his duties" because it was done pursuant to 103 C.M.R. 482 and PCCF-482, and because Correa was not personally targeted by the recording program. This conclusion is supported by the weight of the case law. Hammond, 286 F.3d at 192 ("Because the [Bureau of Prisons] was acting pursuant to its well-known policies in the ordinary course of its duties in taping the calls, the law enforcement exception exempted the actions of the BOP from the prohibitory injunction in Section 2511"); Van Poyck, 77 F.3d at 292 ("[Metropolitan Detention Center] is a law enforcement agency whose employees tape all outbound inmate telephone calls; interception of these calls would appear to be in the ordinary course of their duties"); Feekes, 879 F.2d at 1565-66 ("The regulations of the Bureau of Prisons authorized the tape recording of all prisoner calls except to prisoners' lawyers, and [inmate's] calls to his son were recorded in accordance with this routine, which was the `ordinary course' for the officers who supervised the monitoring system."). The recording of Correa's calls under PCCF-482 is distinguishable from the facts in Campiti v. Walonis, 611 F.2d 387, 392 (1st Cir.1979). There, the decision to assign the monitoring of an individual call to an investigator from the Department of Corrections Security Management Team who had not previously been involved in telephone monitoring was "an exceptional course of conduct" that fell outside the law enforcement exception. Id. In fact, in Campiti, the inmate was only allowed to make the call so that it could be monitored. Id. In contrast, Correa's calls were monitored pursuant to a general system that applied to all inmates. See U.S. v. Cheely, 814 F.Supp. 1430, 1439 (D.Alaska 1992) (finding law enforcement exception applied because recording was routine and not aimed at inmate "personally").
Finally, this Court concludes that, having lawfully intercepted Correa's calls, Pyne did not violate Title III by playing the tapes for Brooks and Cummings. Pyne's disclosure is exempted from Title III because any investigative or law enforcement officer who obtains knowledge of a wire, oral, or electronic communication lawfully under Title III may disclose such contents to another investigative or law enforcement officer to the extent such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure. 18 U.S.C. § 2517(1). In this case, Pyne obtained knowledge of Correa's communications by means authorized by Title III-consent and the law enforcement exception-and thus was free to disclose the contents to Brooks and Cummings to the extent it was appropriate to *67 the proper performance of his official duties or of the official duties of Brooks and Cummings. Id. See Hammond, 286 F.3d at 191 ("... once a recording is permitted under either [the consent or law enforcement exceptions], it is thereafter exempted from any further restrictions under Title III. Thus, ... the FBI was free to obtain the tapes from the [Bureau of Prisons] without any further judicial intervention.") (citing In re High Fructose Corn Syrup Litigation, 216 F.3d 621 (7th Cir.2000)). In this case, disclosure absent a court order was not appropriate to Pyne's official duties, given that Plymouth's policy conditions access to recordings by outside criminal justice agencies upon legal authorization. PCCF-482 XVIII A. However, it is beyond dispute that it was proper for Brooks and Cummings, who were investigating the alleged crimes of Correa and Lewis, to obtain evidence against the two men by any lawful means. See Hammond, 286 F.3d at 191.[4]
Conclusion
The Court concludes that Pyne did not violate Title III when he recorded Correa's telephone calls and played tapes of those conversations for Brooks and Cummings. Rather, Correa consented unqualifiedly to the recording. Furthermore, Pyne's actions, as they comported with Plymouth's routine call monitoring and recording regime, were the actions of an investigative or law enforcement officer acting in the ordinary course of his duties. For both reasons, the interception and disclosure were lawful under Title III and there are no grounds for excluding the use of the recordings as evidence at trial. Defendants' motion to suppress is denied.
SO ORDERED.
NOTES
[1] Counsel for co-defendant Robert Correa orally joined the motion at a hearing on September 4, 2002. The initial motion was filed only by counsel for co-defendant Lewis.
[2] The First Circuit noted that for Title III purposes it is settled law that only one party need consent to the interception of the calls. Footman, 215 F.3d at 154 citing U.S. v. Pratt, 913 F.2d 982, 986-87 (1st Cir.1990). When the prisoner is found to consent, "there is no need to go further." Id. However, in a filing, Lewis's counsel points to a footnote in Footman to suggest that, Correa's consent notwithstanding, the recording violated Lewis's privacy interests, providing a non-Title III basis for suppression. ("We do not address whether those privacy interests are given up by a person, outside of the prison context, merely because she accepts a call that has been preceded by a phone company announcement that the call is being recorded." Footman, 215 F.3d at 155 n. 12.). As noted by the government, however, other courts have squarely addressed the question of whether a person has a reasonable expectation of privacy in telephone calls from a prisoner and found in the negative. U.S. v. Willoughby, 860 F.2d 15, 22 (2d Cir.1988) (holding interception of calls from inmates to noninmates does not violate the privacy rights of noninmates) cited with approval in U.S. v. Peoples, 71 F.Supp.2d 967, 977 (W.D.Mo.1999); U.S. v. Harrison, 986 F.Supp. 280, 280-82 (M.D.Pa.1997) (finding individual who knew he was talking to inmate had no reasonable expectation of privacy). To make out a Fourth Amendment violation, Lewis would first have to demonstrate a subjective expectation of privacy in the call. See U.S. v. Mancini, 8 F.3d 104, 107 (1st Cir.1993) (citing California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988)). Defense has not made such a showing, perhaps because of Lewis' own history of incarceration and the likely familiarity with the fact that prison telephone calls are routinely monitored that would accompany such a history.
[3] "The relevant enumeration would appear to be in § 2516(2), which seems to include any state felony, i.e., offense with a potential punishment of more than one year." U.S. v. Cheely, 814 F.Supp. 1430, 1440 n. 8 (D.Alaska 1992). § 2516(2) indicates which offenses would permit a state prosecutor to seek a Title III judicial authorization for a wiretap. The relevant portion reads: "... murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year [under state statutes]..." § 2516(2).
[4] Defense's argument that an interception occurred when Pyne, Brooks, and Cummings listened to the recording and that this listening was for investigative purposes and outside the law enforcement exception ignores the exception to Title III's disclosure prohibition contained in 18 U.S.C. § 2517(1) and discussed above. U.S. v. Lanoue, the case to which defense points for the proposition that a subsequent listening should be analyzed as an independent interception, offered only guidance to the trial court on the Title III issues before it. 71 F.3d 966, 980-82 (1st Cir.1995). It did not reach the application of 18 U.S.C. § 2517(1). Although the First Circuit stated that a conversation is intercepted when it is heard by someone other than the parties to the conversation, whether by listening as the conversation takes place or by tape recording and listening afterwards, it too noted that if the recording in that case were determined to have been for prison security purposes the law enforcement exception would bar suppression. Id. at 981-82. In Lanoue, it appears that an investigating law enforcement official had requested that the prison keep track of all calls made by a particular inmate, suggesting an investigatory purpose. Id. at 972. In this case, the conversation was captured by a uniform recording policy executed in the ordinary course of Pyne's duties, not as part of an investigation of Correa.
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"pile_set_name": "FreeLaw"
} |
838 F.2d 718
10 Fed.R.Serv.3d 722
SNOW MACHINES, INCORPORATEDv.HEDCO, INC. and the Dewey Electronics Corporation.Appeal of FRIEDMAN AND KAPLAN.
No. 87-5516.
United States Court of Appeals,Third Circuit.
Submitted Dec. 16, 1987.Decided Feb. 9, 1988.
Friedman and Kaplan, New York City, pro se.
Before GIBBONS, Chief Judge, SLOVITER and COWEN, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Chief Judge:
1
In this case we must determine whether the district court acted properly, under Fed.R.Civ.P. 11, when it ordered an attorney to pay a sanction of $1500 to the court for submitting a proposed form of order to a magistrate. The district court concluded that the submission misrepresented the magistrate's decision, even though the magistrate signed the proposed order. We hold that, at least in the absence of extraordinary circumstances not present here, the submission of a proposed order which is actually signed by one judge cannot be considered objectively unreasonable by another. Therefore, we will reverse.
2
* Snow Machines, Inc. and Hedco, Inc., a division of the Dewey Electronics Corporation, are competitors in the manufacture of snowmaking equipment. In May of 1985, Hedco distributed a circular at a trade show discussing patent litigation between it and Snow Machines. In July of 1985, Snow Machines instituted this action, alleging that the circular was defamatory. It also claimed various business torts.
3
This case was litigated vigorously, if not bitterly. The aspect of the battle that concerns us here is Hedco's discovery request for evidence of causation and special damages, necessary elements of plaintiff's non-libel claims. In particular, Hedco asked for information concerning those customers which Snow Machines claimed failed to do business with it because of the circular (Interrogatory 5) and asked for the basis of Snow Machines' contention that Hedco's conduct "reduced the volume of [Snow Machines'] business" (Interrogatory 6). (A. 61-63). Snow Machines failed to supply any detailed information, responding to Hedco's interrogatories as follows:
4
5. The specific details requested by defendant are unknown by plaintiff at this time, however plaintiff's sales are down compared to one year ago, before the Circular was distributed.
5
6. While the exact figures are confidential, plaintiff's sales for year to date, January 1985, were down approximately $600,000. Plaintiff expects the publication of the Circular to influence future sales as well.
6
(A. 82). On April 23, 1986, in response to a motion to compel more specific answers, Magistrate Serena Perretti, finding these answers "totally unresponsive," ordered that questions 5 and 6 be answered "in full and complete detail within 10 days," (A. 130). The supplementary response to question 6 reads in its entirety:
7
Preliminary figures just computed by [Snow Machines'] accountants place [its] gross sales for 1985 down approximately $400,000 from the previous year.
8
(A. 399).
9
On May 20, 1986, Magistrate Perretti conducted a conference to deal with various discovery disputes and scheduling matters. See Fed.R.Civ.P. 16. She took the unusual step of conducting the conference in open court and recording it. She opened the conference as follows:
10
All right, madam and gentlemen, I asked you to come into the Courtroom rather than the library so that there would be no mistake about who says what today, and I can start off, knowing that this is on record--please be seated--and let you know that I am extremely troubled, No. 1, about the extraordinary exchange of correspondence that I have been getting here. I cannot keep up with it. There are responses, some responses I've received to adversary's letters even before I've received adversary's letters. That's how quick this has been being exchanged. That's No. 1, I simply can't keep up with it and I have got the impression from it that there is a problem.
11
No. 2, I'm quite aware of the fact that there was other litigation, that there is other litigation as well. I can draw an inference that the parties who have been involved in this litigation over the course of so many years--it certainly must be close to ten--may have developed somewhat of an antipathy toward each other. I would certainly hope that counsel, being professional persons, are not letting what might be a reasonable antipathy on the part of clients rub off on them, but I fear that maybe that's happening in this case and that's why I'm having this on the record and why I am starting it off by freely saying, noting that I am being recorded, what I have in my mind. And maybe if you folks say what you have in your minds we can get this show on the road.
12
I've entered orders in this case, my orders have been ignored, my time limits have been expanded, my expanded time limits have been ignored. You know, I'm just here to try to get you people to the point where you can best serve your clients by bringing this case to resolution, and if you're not going to abide by my orders, well I guess we'll have to take steps.
13
(A. 138-39).
14
Magistrate Perretti persistently questioned counsel for Snow Machines:
15
THE COURT: Do you take the position that you've given them fully responsive answers to all of their questions?
16
[COUNSEL]: I take the position that we have
17
* * *
18
responded to their questions to the best of our ability.
19
THE COURT: Is there anything else?
20
[COUNSEL]: Apparently not, unless--
21
THE COURT: No. Is there anything else? Not "apparently not," not to the best of your ability. Have you given them all that there is?
22
[COUNSEL]: Yes, your Honor.
23
THE COURT: In other words you have given them your case. You have told them your case.
24
[COUNSEL]: Yes, your Honor.
25
THE COURT: Whatever it is that will be produced in this case in support of your client's position has already been revealed.
26
[COUNSEL]: Yes, your Honor.
27
THE COURT: Nothing more.
28
[COUNSEL]: Yes, your Honor.
29
(A. 147-48). Attention turned specifically to the supplemented answer to interrogatory 6, indicating that sales were down approximately $400,000. Magistrate Perretti stated with regard to that answer:
30
All right, you still haven't got anything about cause and ... you've been told everything that they intend to tell the trial court and, therefore, without being able to establish the cause ... they can't get the amount in, can they? Therefore it seems to me that you've won....
31
(A. 149). A short time later, the magistrate commented:
32
But at this point in time you're never going to get to amount, ... because there has been no causal relationship revealed in the discovery.
33
* * *
34
You got what you wanted for your motion for summary judgment.
35
(A. 153). Counsel for Hedco requested "an order that precludes them from putting evidence on as to the cause with respect to either a summary judgment or a trial." Magistrate Perretti responded, "I will issue a preclusionary order limiting them to their discovery produced." (A. 154-55).
36
This, however, was neither the end of the conference nor the end of the discussion concerning interrogatory 6. As the conference continued, counsel for Snow Machines explained that "the sales information that they are requesting is forcing our client literally to decide whether or not to proceed with the suit.... We are willing to take the risk that we can't establish the damages." (A. 156). He further explained, "We brought [the suit] for libel. I understand that there are other torts. If those torts fail at summary motion, they fail. But if we win on libel and we're awarded a dollar, as far as we're concerned that's a victory." (A. 156). Tempers apparently flared as counsel interrupted each other. The magistrate interjected, "Hey, both of you, please." "You'll be here when this case is long gone. You won't even be able to remember the name of your client, believe me, and you'll still be here." (A. 157). Counsel for Hedco apologized. The following colloquy ensued:
37
[COUNSEL FOR HEDCO]: But the point--if, if what [counsel for Snow Machines] is telling me is that they recognize--and I know he's going to say, "I don't recognize that we haven't produced damages," but he does recognize.
38
THE COURT: That's what he said.
39
[COUNSEL FOR HEDCO]: Should we be forced to even make a motion for summary judgment to get these claims out of the suit? There's been no discovery, they admit. We'll also move, and I may add we will move--
40
[COUNSEL FOR SNOW MACHINES]: We didn't admit that.
41
[COUNSEL FOR HEDCO]:--for rule 11 sanctions because there's been no basis for this law suit.... So if what he's saying at this point is an [in?] order to avoid discovery, he'll, he'll recognize that there's no merits and they have no basis to substantiate those claims, those claims should be dismissed.
42
[COUNSEL FOR SNOW MACHINES]: I didn't say that, your Honor.
43
THE COURT: Ma'am, he not only--
44
[COUNSEL FOR SNOW MACHINES]: I didn't say that, your Honor. I mean that's a misstatement.
45
THE COURT: He not only does not want to give discovery, he seems willing to take a known risk of losing. And I can't compel him to do anything else. It's like a personal injury claim, if you will. Plaintiff was knocked down while a pedestrian in the crosswalk. Everybody saw her knocked to the ground. She refuses to go to a doctor of the defendant's cho[o]sing. Okay? For reasons of her own.
46
[COUNSEL FOR HEDCO]: I understand, your Honor. I will drop the point.
47
THE COURT: And I can't do anything more than say: Yes, you must do it or else. And that's what I'm willing to do here--yes, you must do it or else. The "or else" is a preclusionary order and I will enter a preclusionary order as a sanction, if you will, for their inadequate discovery. I'[m] perfectly willing to do that. Whether it's a sanction for inadequate discovery, whether it's a pre-trial device to limit the issues for trial, I'm perfectly willing to do it, and that should get the show on the road.
48
(A. 158-59). As the conference was drawing to a close, the magistrate summed up:
49
And frankly I think that you already got this case. I think you've all got what each other has to give. I think you're at the point that you both determined that you're going to trial on the basis of the following facts--not conclusions but facts. We'll see them in a pre-trial order. You'll be limited to them. You'll be limited to what has been divulged in discovery. You make your pretrial--you make your motion for summary judgment based on those facts. If there are disputed facts for resolution, you're going to trial but you're going to trial on those facts and on those facts alone. Okay? Everybody knows that. That's the grounds rules.
50
[COUNSEL FOR HEDCO]: We agree to that, your Honor.
51
(A. 174). Counsel for Snow Machines sought clarification, stating, "I ... understand from what you just said that I don't have to produce [the confidential information] because I'm precluded from using it[.]" The magistrate replied, "From using it, yes." (A. 174).
52
Counsel for Snow Machines then requested a few days so that his client could make a final decision whether to turn over the information. Magistrate Perretti granted the request, noting:
53
You're going to have to do it. I mean it's obvious you're going to have to do it. Your--to be very informal, you're going to have to put up or shut up. And it's important enough so that you can take that time to explain to your client in those graphic terms, knowing that there will be a preclusionary order entered.
54
(A. 177-78).
55
Snow Machines did not produce the discovery, and on May 28, 1986, counsel for Hedco submitted a letter and proposed order. The text of the letter provides in full:
56
At the conference on May 21, Your Honor made clear that a preclusion order would be entered unless [Snow Machines] produced, on or before May 26, any evidence it believes it has that Dewey's conduct caused harm to [Snow Machines]. No such information has been produced.
57
Accordingly, we respectfully request the entry of the enclosed form of order.
58
(A. 189). The operative language of the proposed order states:
59
Plaintiff having failed to produce any evidence that defendants' conduct caused harm to plaintiff's business;
60
IT IS HEREBY ORDERED that plaintiff is precluded from producing any evidence with respect to its claim that defendants' conduct caused harm to plaintiff's business.
61
(A. 191). The record does not reflect when Magistrate Perretti received this correspondence.
62
On May 29, counsel for Snow Machines wrote to the magistrate objecting to the proposed order submitted by counsel for Hedco. The letter stated:
63
Plaintiff has determined that the potential damage caused by producing any of its confidential and hig[h]ly sensitive financial information to its arch co[m]petitor, without the benefit of a protective Order, jeopardizes the very existence of the Company and thus this information cannot be produced. As a result plaintiff is prepared to accept the consequences of a preclusion Order by Your Honor as outlined at the May 21st conference, wherein Your Honor stated:
64
"I will issue a preclusionary order limiting them to their discovery produced" (p. 18, lines 3-4 of the transcript).
65
(A. 193). Counsel requested that the magistrate enter the accompanying form of order, which provided:
66
The parties having appeared before this Court on May 21, 1986 and plaintiff having been directed to produce, on or before May 26, 1986, any further material responsive to Interrogatory No. 6:
67
IT IS HEREBY ORDERED that plaintiff is precluded from using at trial any information not produced in discovery on or before May 26, 1986.
68
(A. 195). This correspondence was apparently sent by Federal Express, but the record does not disclose when the magistrate received it.1
69
On May 30, 1986, Magistrate Perretti signed the form of order submitted by Hedco. She made no notation on the order indicating that she had considered objections to the form of the order. The Clerk filed the order at 4:02 pm on May 30, 1986. It was entered on the docket on June 2, 1986.
70
On June 9, 1986, Snow Machines appealed to the district judge from the preclusion order. On June 17, 1986, Hedco moved for summary judgment and for Rule 11 sanctions. On June 30, 1986 Snow Machines cross-moved for summary judgment on the libel claim and for Rule 11 sanctions. Although both parties' motions were originally returnable on July 17, 1986, they were repeatedly adjourned and not heard until February 9, 1987. Approximately one month before the motions were heard, on January 6, 1987, Magistrate Perretti resigned as United States Magistrate to become a judge of the New Jersey Superior Court.
71
The district judge delivered his decision in open court in the presence of counsel on a regularly scheduled motion day.2 On the appeal, he held that the order submitted by Hedco and signed by the magistrate was a "clearly erroneous embodiment" of the magistrate's oral decision while the order submitted by Snow Machines did embody that oral decision. Alternatively, the district judge concluded that the order that was entered was a "clearly excessive sanction for plaintiff's failure to produce the requested sales evidence." Accordingly, the district judge modified the magistrate's order to conform to the proposed order submitted by Snow Machines. (A. 268).
72
The victory for Snow Machines was short-lived. The district judge agreed with Magistrate Perretti that the evidence which Snow Machines had produced was insufficient to carry the issue of causation to the jury and therefore granted Hedco's motion for summary judgment on the non-libel claims. (A. 282-85). Naturally, the cross-motion for summary judgment was denied. The district judge also granted summary judgment for Hedco on Snow Machines' libel claim, holding that the challenged statements were expressions of opinion and therefore not actionable.3
73
Turning to the issue of sanctions, the district judge concluded that at least once Snow Machines decided not to produce the information regarding causation which the magistrate had ordered, it had no reasonable basis for pursuing its non-libel claims.4
74
The district judge also concluded that it was unreasonable for Hedco's counsel to submit the proposed order which she did, concluding from the transcript of the conference before Magistrate Perretti that the magistrate had "rejected defendants' express request for an order precluding plaintiff from introducing evidence of causation, opting instead for an order limiting plaintiff to discovery materials produced by a set cutoff date." (A. 302). He viewed the signature on the letter of transmittal sufficient to bring Rule 11 into play. (A. 303).
75
The district judge reprimanded counsel for plaintiff and counsel for defendants. Since he viewed each side's transgressions as roughly equal, he imposed a sanction of $1500 on counsel for each side, payable to the court. The individual lawyers or their firms, not the clients, were directed to pay the sanction. (A. 305).
76
Both sides sought reconsideration of the sanctions decision. On reconsideration, the district judge adhered to his earlier decision. He evaluated in detail possible arguments for the extension of law that could be made in support of plaintiff's non-libel claims, and concluded that none of them had in fact been made by the plaintiffs. (A. 315-19). He also rejected the arguments that counsel lacked adequate notice and opportunity to be heard, and that the sanction was excessive. The district judge, however, in response to a request that the names of the plaintiff's attorneys be omitted from the opinion imposing sanctions before publication, stated that he did not intend to publish the underlying opinion.5 (A. 322).
77
With regard to the sanctions imposed on counsel for Hedco, the court rejected various arguments tending to show that the proposed order submitted was a reasonable response to the discovery dispute. The district judge reasoned:
78
It is irrelevant ... that [Hedco's proposed order] may have presented a reasonable approach to plaintiff's intransigence in discovery, or a better approach than the Magistrate adopted, or indeed the best approach possible given the plaintiff's behavior. [Counsel for Hedco] made her argument on May 21 and lost. The proposed order she submitted should not have continued the argument. The submission should have done no more than embody the Magistrate's decision of May 21. Its reasonableness as a submission to the court depended wholly on how well it embodied that decision. Its reasonableness depended in no degree on how well it embodied the spirit of Fed.R.Civ.P. 37, how wisely it regulated the relations among the parties, or how reasonable it would have appeared in the first instance to some other judge of the matter, or [counsel for Hedco] herself.
79
(A. 329). He also viewed any inadequacy in the notice provided to counsel for Hedco as cured by the proceedings on the motion for reconsideration. Lastly, he rejected the contention that Rule 11 does not apply to proposed orders. He noted that proposed orders are literally "papers" and held that the attorney's signature on the cover letter constitutes a representation regarding the content of the proposed order. Acknowledging that the submission of a proposed order is less a document of advocacy and more a document based on the trust of the court and/or the courtesy of the attorney, he concluded, "I cannot fail to find that once the trust is assumed or the courtesy extended, the submission must be carried out in a reasonable manner." (A. 332-33).
80
The order on the motion for reconsideration was entered on July 8, 1987. This appeal followed.
II
81
The court has said that on review of a district court's imposition of Rule 11 sanctions, "the question is not whether the reviewing court would have applied the sanction, but whether the district court abused its discretion in doing so." Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 540 (3d Cir.1985) (citations omitted); see also Gaiardo v. Ethyl Corp., 835 F.2d 479, 485 (3d Cir.1987); Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59, 64 (3d Cir.1986); Dreis & Krump Mfg. v. Int'l Ass'n of Machinists, 802 F.2d 247, 255 (7th Cir.1986); Stevens v. Lawyers Mut. Liab. Ins. Co. of N.C., 789 F.2d 1056, 1059 (4th Cir.1986). As the Court of Appeals for the Ninth Circuit pointed out, however:
82
Appellate review of orders imposing sanctions under Rule 11 may require a number of separate inquiries. If the facts relied upon by the district court to establish a violation of the Rule are disputed on appeal, we review the factual determination of the district court under a clearly erroneous standard. If the legal conclusions of the district court that the facts constitute a violation of the Rule is disputed, we review that legal conclusion de novo. Finally, if the appropriateness of the sanction imposed is challenged, we review under an abuse of discretion standard.
83
Zaldivar v. City of Los Angeles, 780 F.2d 823, 828 (9th Cir.1986); see also Donaldson v. Clark, 819 F.2d 1551, 1556 (11th Cir.1987) (in banc); Robinson v. National Cash Register Co., 808 F.2d 1119, 1126 (5th Cir.1987); Westmoreland v. CBS, 770 F.2d 1168, 1174-75 (D.C.Cir.1985); Eastway Construction Corp. v. City of New York, 762 F.2d 243, 254 n. 7 (2d Cir.1985). This court has noted that the "tone of the rule [as amended in 1983] makes clear that although trial judges still retain substantial discretion, its exercise is now directed more to the nature and extent of sanctions than to initial imposition." Lieb v. Topstone Industries, 788 F.2d 151, 157 (3d Cir.1986).
84
There is no need in this case, however, to refine this court's doctrine concerning the standard of review applicable to Rule 11 sanctions. It is well established that this court exercises plenary review concerning the legal standards applied by the district court in exercising its discretion. See Delaware Valley Citizens' Council v. Pennsylvania, 762 F.2d 272, 280 (3d Cir.1985), rev'd on other grounds, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) and --- U.S. ----, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987). Undertaking that plenary review, we conclude that the district court failed to apply the correct legal standards.
III
85
The appellant does not challenge the propriety of that aspect of the district court's order directing that payment be made to the court, rather than to the plaintiff. Various courts have stated that such financial penalties are permissible under Rule 11. Donaldson v. Clark, 819 F.2d 1551 (11th Cir.1987) (in banc); In re Curl, 803 F.2d 1004, 1007 (9th Cir.1986); Cotner v. Hopkins, 795 F.2d 900 (10th Cir.1986); Hilgeford v. Peoples Bank, 776 F.2d 176 (7th Cir.1985), cert. denied, 475 U.S. 1123, 106 S.Ct. 1644, 90 L.Ed.2d 188 (1986); see also Eastway Construction Corp. v. City of New York, 821 F.2d 121, 125-26 (2d Cir.) (Pratt, J., dissenting), cert. denied, --- U.S. ----, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987). As the Court of Appeals for the Eleventh Circuit explained:
86
The imposition of a monetary sanction is a particularly reasonable use of a court's discretion under Rule 11. The everyday meaning of "appropriate sanction" encompasses a monetary sanction. Imposing a financial penalty often will be the most effective and fair means of enforcing Rule 11 and deterring baseless suits. When imposed upon a lawyer, a financial penalty forces the lawyer rather than the client to bear the costs of violations of the rule. Monetary sanctions may be the most effective way to deter a powerful and wealthy party from bringing frivolous or vexatious litigation.
87
Donaldson, 819 F.2d at 1557. Such a sanction recognizes that deterrence of improper behavior, not simply compensation of the adversary, is a goal of Rule 11. As the Advisory Committee stated in its Notes, "The word 'sanctions' in the caption ... stresses a deterrent orientation...."
88
Courts have grappled with the procedural protections necessary before imposing what is, at bottom, simply a fine. In Eash v. Riggins Trucking, 757 F.2d 557 (3d Cir.1985) (in banc) we held that a district court must afford notice and "some occasion to respond" before exercising its inherent power to impose a modest monetary sanction on an attorney. Id. at 570. More significant protections may be appropriate under Rule 11, since the rule authorizes sanctions which no one would seriously describe as "modest." See Donaldson v. Clark, 786 F.2d 1570, 1577 ("where an attorney is fined as punishment[,] the court imposing the fine must follow the procedures as required in criminal contempt proceedings"), vacated, 794 F.2d 572 (11th Cir.1986), on rehearing, 819 F.2d 1551 (1987) (in banc) (contempt proceedings not required; flexible standard depending on the nature of the infraction and the type and severity of the contemplated sanction); see also Cotner v. Hopkins, 795 F.2d 900, 903 (10th Cir.1986) (citing the panel decision in Donaldson and holding "contempt procedural protections are indicated here where the fine was precipitated, in part, by plaintiff's failure to comply with a previous court order"). We need not decide this issue, since appellant makes no due process argument in this court.
89
We note, however, a difficulty which the procedure followed by the district court creates on appeal: there is no appellee. This problem would be avoided if contempt procedures were used, since the United States Attorney or a disinterested private attorney--but not counsel for an interested party--would be appointed to prosecute the contempt and/or defend the district court's judgment. See Young v. United States ex rel. Vuitton et Fils, --- U.S. ----, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). This aspect of the contempt process, however, merely underlines how severely the hope of the Advisory Committee that "the efficiencies achieved through more effective operation of the pleading regimen ... not be offset by the cost of satellite litigation over the imposition of sanctions" would be dashed by requiring the use of contempt procedures.
90
Short of relying on or analogizing to contempt procedures and appointing counsel to defend the district court's ruling--a step we have not taken--we are left in an uncomfortable position.6 We must play not only our accustomed and proper role of neutral adjudicator, but also (albeit temporarily) the role of adversary to the appellant in order to test the assertions made on appeal. Our role is further complicated by the institutional association we share with the appellant's "adversary" in fact: the district judge.7 We are surprised that this problem has attracted no attention. We offer no solutions to it, but simply note its existence.
91
We also have no occasion to decide whether Rule 11 applies to proposed orders, since appellant does not pursue this contention on appeal. We observe, however, that there are substantial reasons to believe that it does not.
92
Rule 11 provides, "Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name...." The Rule goes on to define the implications of an attorney's signature on such a document, and further provides, "If a pleading, motion, or other paper is not signed, it shall be stricken unless signed promptly after the omission is called to the attention of the pleader or movant." A proposed order, however, is not signed by the submitting party.8 Instead, it is submitted in blank for the court's signature. It is difficult to imagine that a proposed order would ever be "stricken"--whatever that would mean--if submitted unsigned, or that anyone would consider calling such an "omission" to the attention of the submitter. It was only by seizing on the signature on the letter of transmittal that the district court sidestepped this difficulty. Although it might have been rude to submit a proposed order without a signed letter of transmittal--and ruder still to submit a proposed order without a letter of transmittal at all--it does not appear that Rule 11 would have led anyone to believe that the proposed order should not be considered in such circumstances.9
93
Moreover, neither of the two categories of proposed orders, unlike the documents with which Rule 11 is explicitly concerned, are typical advocacy documents. The first category of proposed orders consists of those that accompany motions, serving not only to facilitate the memorializing of the decision if the motion is granted, but also to make clear both to the court and the other parties precisely what relief is sought. Indeed, some district courts require by local rule that all motions be accompanied by proposed orders of this type. D.N.J. Rule 12(C); E.D.Pa. Rule 20(a); M.D.Pa. Rule 401.1; W.D.Pa. Rule 4(a)(2). Such a proposed order has no life of its own independent of the motion which requests its entry. The second type of proposed order is one submitted after a court has rendered a decision; the proposed order is supposed to merely memorialize that decision. It is used simply to reduce the clerical work of the court. Ideally, it is a document whose substance is the same whether physically prepared by the winning party, the losing party, or the court.
94
Even assuming, however, that Rule 11 applies to proposed orders, the sanction imposed by the district court cannot stand. "The standard for testing conduct under amended Rule 11 is reasonableness under the circumstances...." Eavenson, 775 F.2d at 540. Central to the district court's conclusion that appellant lacked a reasonable basis for submitting the proposed order was the interpretation of the magistrate's signing of the proposed order as "an unintentional error." (A. 312). The district judge apparently thought that the magistrate's "guard against partisan representation might have been down." (A. 334). While this is possible, it seems unlikely that the same magistrate who only the week before took the precaution of tape recording a conference in this case and reminded counsel at that conference of their professional obligations, would unquestioningly accept a proffered order.
95
The district judge also minimized the extent to which a court's decision (particularly an oral one) may not be viewed in exactly the same way by adversaries or may not address all the details that should be addressed.10 This seems to be precisely why the local rules of the District of New Jersey afford an opportunity to the non-drafter of a proposed order to object to the submitted form of order. See D.N.J. Rule 12(C). When such disputes occur, the court is really being called upon to clarify or refine its ruling. Thus the resulting order, after such clarification or refinement, may well be different from the statements made from the bench. This seems especially likely where a judge conducts a conference, rather than simply hears argument and then renders a decision.
96
Most fundamentally, however, apart perhaps from the correction of the most obvious formal errors or in some extraordinary circumstances, it is simply improper for one judge to rely on a transcript to conclude that another judge did not intend to order what she in fact ordered. There is wide authority for the proposition that where a court makes formal findings of fact, they control over any statement from the bench. E.g., E.E.O.C. v. Exxon Shipping Co., 745 F.2d 967, 974 (5th Cir.1984); see generally 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2580 (1971) (citing cases). This same principle dictates that a formal order controls over a prior oral statement. The operative act of the judge is the order. Even a formal published opinion, to say nothing of a bench opinion and even less of a comment at a conference, is a statement of reasons for the order; it does not supplant the order.
97
Recognizing a power in one judge to conclude that another judge did not intend to do what she in fact did is fraught with danger. It opens a gaping hole in the carefully constructed legal principles governing standards of appellate review. A district judge may only set aside an order of a magistrate concerning a nondispositive matter where the order has been shown to be clearly erroneous or contrary to law. 28 U.S.C. Sec. 636(b)(1)(A); Fed.R.Civ.P. 72(a); see Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1120 (3d Cir.1986). If the district court may simply conclude that the magistrate did not really intend to enter the order which she did, this limitation on the reviewing power is illusory. The same is true of review by the court of appeals of orders rendered by the district court.
98
Even if the power could be cabined within tolerable limits, a decision that another judge inadvertently signed an order is highly disrespectful. Surely it is true that judges occasionally sign orders due to inadvertence. But a decent respect for fellow judges requires that, at least absent the most extreme circumstances, correction of such errors be left to the inadvertent judge and the normal appellate processes. In this case, counsel for the plaintiff submitted objections to the form of order, an alternative proposed order, and a transcript of the May 21, 1986 conference. Even if Magistrate Perretti had signed the proposed order submitted by appellant due to inadvertence, we must assume that the plaintiff's objections would have led her to vacate her earlier order if it did not represent her considered views. Perhaps if she had left the federal bench shortly after signing the order there might be reason to believe that she lacked an adequate opportunity to notice and correct her inadvertence. However, seven months passed between the time she signed the order and when she left the federal bench.11 Thus while if it were this court's role--or the district court's role--to determine the most appropriate interpretation of the transcript of May 21, 1986, we might agree with or defer to the district court's reading, we see no justification for the district court's decision to use that transcript to contradict the magistrate's order.
99
In light of this conclusion, it is clear that the order directing the payment of sanctions must be reversed. If the order signed by the magistrate is considered her own deliberate decision, as we conclude it must, then submission of the proposed order which was signed obviously cannot be viewed as an "objectively unreasonable" embodiment of the magistrate's decision.12
100
We also must comment on a major source of the difficulty in this case. If the district judge had heard the appeal within five months of the date on which it was originally scheduled, there would have been plenty of time for the district court to determine directly from the magistrate whether she in fact had intended to sign the order or had done so inadvertently. It was the delay in hearing the appeal that resulted in the magistrate leaving the federal bench before the appeal was heard. The reasons for this delay are not clear from the record. We are aware of the value of accommodating reasonable requests for adjournments, and the burdens placed on district judges with heavy caseloads. Nevertheless, we must exhort district judges to move as expeditiously as possible, and to be sensitive to the difficulties which delay creates for litigants and attorneys. Even apart from the other issues addressed in this opinion, we would have hoped that where such delay made a determinative resolution of the question of the magistrate's intent impossible, the district court would have been reluctant to impose as heavy a sanction as it did in this case.
101
We will reverse the order of the district court requiring appellant to pay $1500 to the court. Since there is no appellee, there can be no recovery of costs. For the same reason, there is no one to seek further review of this decision. Accordingly, the mandate may issue immediately.
1
The parties have stipulated to its inclusion in the record. Therefore, even though it is not stamped "received" by Magistrate Perretti, we assume that she received it in the normal course
2
Thus it is likely that other attorneys were in attendance for the announcement of the sanctions. An oral opinion was read into the record later that day. (A. 263)
3
In a separate appeal, Snow Machines appealed the summary judgment as to the libel claim. This court affirmed in an unpublished memorandum opinion. No. 87-5252, December 16, 1987
4
This conclusion demonstrates the irony of sanctioning counsel for Hedco. The only difference between the competing proposed orders was that the Snow Machines order left it to the district judge to decide whether the evidence produced was sufficient on the issue of causation while the Hedco order (assuming it was upheld on appeal) would have foreclosed the causation issue. In sanctioning counsel for Snow Machines, the district judge not only agreed with the magistrate's view of the sufficiency of the evidence, but also concluded that no reasonable lawyer could hold a different view of that evidence
5
Accordingly, this opinion does not mention them by name
6
In an unusual case which presents a legal issue of particular interest to the court, we could also, as we did in Eash, appoint an amicus to assert a position adverse to that of the appellants. 757 F.2d at 559 n. 1
7
Thus the situation we face is the converse of the typical mandamus proceeding. In the typical mandamus proceeding, although the district judge is the nominal respondent, there is a litigant who stands as a true adversary of the petitioner. See, e.g., Cipollone v. Liggett Group, Inc., 822 F.2d 335 (3d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 487, 98 L.Ed.2d 485 (1987); see generally Rapp v. Van Dusen, 350 F.2d 806 (3d Cir.1965). In this case, there is no appellee, and the district judge is the closest thing to an adversary that the appellee has
8
The only exception is when counsel signs a proposed order simply to demonstrate consent to its form and/or entry
9
We do not intimate a view whether only the person who actually signs a document to which Rule 11 clearly applies, as opposed to the person or persons who were responsible for its content, is susceptible to sanctions. Compare In re Ruben, 825 F.2d 977, 984 (6th Cir.), petition for cert. filed, No. 87-735, 56 U.S.L.W. 3368 (filed Oct. 27, 1987) and Robinson v. National Cash Register Co., 808 F.2d 1119, 1129 (5th Cir.1987) (only signer may be sanctioned) with Alcan Alum. Corp. v. Lyntel Products, Inc., 656 F.Supp. 1138, 1140 n. 4 (N.D.Ill.1987) and Itel Containers Int'l v. Puerto Rico Marine Mgt., 108 F.R.D. 96, 103 (D.N.J.1985) (non-signer may be sanctioned); see also Gaiardo, 835 F.2d at 484-85 ("Rule 11 sanctions are improper in situations which do not involve signing a paper"); see generally Schwarzer, Sanctions Under the New Rule 11-A Closer Look, 104 F.R.D. 181, 186 (1985)
10
In particularly complex or contentious circumstances, some judges conclude an oral ruling by instructing counsel not to leave the courthouse until they agree on the form of order, noting that if they cannot agree, they should return to the courtroom so that the judge can fix the form of order immediately
11
It is true that for almost all of this time the order was on appeal to the district judge. While by analogy to Fed.R.Civ.P. 60(a) a magistrate might determine that she needed leave of the district court before actually vacating her order, we cannot assume that a United States Magistrate, well aware of the volume of work in the district court, would simply stand by and let an appeal be litigated concerning an order which she had signed and filed by accident
12
We intimate no views on the standards or procedures which govern the situation where the same judge who rendered an oral decision desires to sanction counsel for submitting a proposed order inconsistent with that oral decision
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76 F.3d 1528
Jetty Lee HARVEY, Petitioner-Appellant,v.Duane SHILLINGER, Warden, Wyoming State Penitentiary;Attorney General of the State of Wyoming,Respondents-Appellees.
No. 95-8011.
United States Court of Appeals,Tenth Circuit.
Feb. 26, 1996.
Mary Beth Wolff (William U. Hill, Attorney General with her on the briefs), Special Assistant Attorney General, Cheyenne, Wyoming, for appellees.
Howard A. Pincus (Michael G. Katz, Federal Public Defender with him on the briefs), Assistant Federal Public Defender, Denver, Colorado, for appellant.
Before KELLY, BARRETT and JONES*, Circuit Judges.
BARRETT, Senior Circuit Judge.
1
Jetty Lee Harvey (Harvey) appeals from the district court's order of February 1, 1995, Harvey v. Shillinger, 893 F.Supp. 1021 (D.Wyo.1995) (Harvey III ), dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
Facts
2
On January 9, 1986, Harvey and two others were charged in the District Court, Third Judicial District, Sweetwater County, Wyoming, with kidnapping and sexual assault in the first degree or aiding and abetting in those offenses. Following a three-day jury trial in July, 1987, Harvey was convicted of all charges. At sentencing, on October 23, 1987, the trial court asked Harvey if he had anything to say in mitigation of punishment. After being sworn in, Harvey made an allocution statement to the trial court under oath. He was subsequently sentenced to not less than twenty years nor more than thirty years imprisonment on each charge, to run concurrently.
3
On direct appeal to the Wyoming Supreme Court, Harvey's convictions were vacated on speedy trial grounds. See Harvey v. State, 774 P.2d 87 (Wyo.1989) (Harvey I ).
4
On July 7, 1989, Harvey was charged with conspiracy to commit kidnapping and conspiracy to commit sexual assault. After a plea agreement fell through and the Wyoming Supreme Court denied a writ of prohibition, Harvey proceeded to trial on the conspiracy charges. At trial, the prosecution read portions of Harvey's allocution statement made at his first sentencing hearing in evidence, including the following:
5
I meant this woman no harm. In fact, I even stopped her from being harmed at the end. But before that, there was--I even tried stopping. I tried resisting long before she was even abducted. Everett was just insistent from two blocks past her to two blocks to her, telling me to grab her. Grab her. And I was saying, 'No. I don't want this.' And even when I pulled up beside her and I rolled down my window, she walked by. I just asked her if she wanted a ride because it was cold. She never looked at me. She never answered. She just kept her head down, her hands in her coat pocket and she walked by. And I turned to Everett and I said, 'See, she doesn't even want a ride.' And he says, 'No. All you got to do is grab her.' He throws it into reverse and backs up past the woman, slapping me, 'Just grab her. Grab her.' And that's when I finally broke down on it there. I got out and stepped out in front of her. She walked up to me, lifted her head, looked at me and I said, 'Hey, look. Just get in and we'll give you a ride home.' And she turned and walked around me. And that's when I heard Everett say, 'Grab her, chicken shit.' And that was the final straw of the dare.
6
I turned and grabbed her by the coat, the shoulder, pulled her off her feet toward the pickup. Picked her up and put her in the vehicle. She was laying between the seats with her hands up like this. She was saying, 'Don't hurt me.' I said, 'No one is going to hurt you.' She relaxed. I turned back to roll up my window and she starts kicking the dash with her boots and hollering, 'Don't hurt me. Don't hurt me.' I grabbed her legs by the boots and I said, 'Don't worry. No one is going to hurt you.'1
7
And then Everett Phillips--I don't know where we were going. He pulls into this trailer park and start hollering, 'I want some. I want some.' I says, 'No, Everett. Let's take the woman home.' And he goes, 'Well, the bitch can suck it.' And I grabbed his arm then and I said, 'No, Everett. We're taking her home. Let's go.' And that is when I saw a cop car go by through the window. And I said, 'Now there is a cop. Let's just take her home.'
8
And when we stopped, the cops, I didn't even know it was cops. I could see lights in the mirror. Everett got out and went back to them. He was gone for, anyway, two minutes and there was no struggle in the back. There was no one hollering, screaming. I just looked in the mirror. And then as I'm looking in the mirror back a couple of minutes or so, this woman, Sharon Brouillette, she got between the seats and started headed for the driver's door. And I just stepped out of the truck. And the police officer told me to stop and put my hands on the camper. That's just what I done until after the fight with David Swazo. They cuffed us and took us to jail. But, at the time of all of this, there was a real--there was a big factor too of very drunk.
9
(Exhibits to Motion to Supplement the Record, Exhibit B at 1168-1170).
10
On January 17, 1990, following a jury trial, Harvey was convicted of conspiracy to commit kidnapping and acquitted of conspiracy to commit sexual assault. He was sentenced to twelve to fifteen years in the Wyoming State Penitentiary.
11
Harvey appealed his conspiracy conviction to the Wyoming Supreme Court alleging, inter alia, double jeopardy, speedy trial violation, violation of right to an impartial jury, and improper use of his allocution statement. On June 11, 1992, the Wyoming Supreme Court affirmed his conspiracy conviction. See Harvey v. State, 835 P.2d 1074 (Wyo.), cert. denied, 506 U.S. 1022, 113 S.Ct. 661, 121 L.Ed.2d 586 (1992) (Harvey II ).
12
On April 5, 1993, Harvey petitioned the federal district court for a writ of habeas corpus alleging: improper use of his allocution statement made at the sentencing phase of his first trial; ineffective assistance of counsel at his first sentencing; denial of his right to speedy trial; double jeopardy; and Wyoming Supreme Court Justice Thomas' participation in the second appeal violated "fundamental fairness" principles.
13
On February 1, 1995, the district court dismissed Harvey's petition. See Harvey III, 893 F.Supp. 1021. The district court found that: the use of Harvey's allocution statement at his conspiracy trial was not error because he "voluntarily, knowingly, and intelligently waived his right against self-incrimination at his first sentencing hearing," id. at 1030; Harvey's was not denied effective assistance of counsel; "prosecution of [Harvey] on conspiracy charges after his conviction for the substantive offenses, does not violate double jeopardy principles," id. at 1032; Harvey's right to a speedy trial was not violated; and Justice Thomas' participation in Harvey's direct appeal did not violate his right to due process. We agree.
Issues
14
On appeal, Harvey contends that the district court erred in dismissing his petition for a writ of habeas corpus because: (1) his conspiracy conviction violated the principles of double jeopardy; (2) his Sixth Amendment right to a speedy trial was violated; (3) the use of his allocution statement violated his Fifth Amendment and Fourteenth Amendment rights; and (4) trial counsel's failure to advise him of the consequences of making an allocution statement at his first sentencing hearing deprived him of his Sixth Amendment right to effective assistance of counsel.2
15
We review a district court's legal conclusions in dismissing a petition for a writ of habeas corpus de novo. Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir.1993). "Legal conclusions and mixed questions of law and fact are reviewed de novo, although findings of fact underlying mixed questions are accorded the presumption of correctness." Manlove v. Tansy, 981 F.2d 473, 476 (10th Cir.1992).
Discussion
I. Double Jeopardy
16
Harvey contends that his second trial and conviction for conspiracy to commit kidnapping after the Wyoming Supreme Court vacated his convictions for kidnapping and sexual assault violates the Double Jeopardy Clause of the Fifth Amendment.
17
The Double Jeopardy Clause provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." In United States v. Felix, 503 U.S. 378, 380-81, 112 S.Ct. 1377, 1379, 118 L.Ed.2d 25 (1992), the Supreme Court held that "prosecution of a defendant for conspiracy, where certain of the overt acts relied upon by the Government are based on substantive offenses for which the defendant has been previously convicted, does not violate the Double Jeopardy Clause." See also Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946) ("[T]he commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses ... [a]nd the plea of double jeopardy is no defense to a conviction for both offenses.").
18
Accordingly, we hold that prosecuting Harvey on conspiracy charges after his convictions for the substantive offenses were vacated did not violate his right to be protected from double jeopardy.
II. Speedy Trial
19
Harvey contends that he was denied his Sixth Amendment right to a speedy trial by the delay between his original arrest on the substantive offenses on January 5, 1986, and his second trial on the conspiracy charges on January 8, 1990.
20
"A Sixth Amendment speedy trial claim is assessed by balancing the length of the delay, the reason for the delay, whether the defendant asserted his right to a speedy trial, and whether the delay prejudiced the defendant." United States v. Dirden, 38 F.3d 1131, 1138 (10th Cir.1994) (quoting United States v. Tranakos, 911 F.2d 1422, 1427 (10th Cir.1990)). See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972) (identifying four factors in speedy trial balancing test). While no single factor is "either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial," Barker, 407 U.S. at 533, 92 S.Ct. at 2193, "the length of the delay is to some extent a triggering mechanism." Id. at 530, 92 S.Ct. at 2192. Only if the period of delay is "presumptively prejudicial" need we inquire into the other factors. Id.; Dirden 38 F.3d at 1137; Tranakos, 911 F.2d at 1427.
21
In determining whether a delay is "presumptively prejudicial," we have not drawn a bright line beyond which pretrial delay will trigger a full Barker analysis because "the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case." Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192. See Dirden, 38 F.3d at 1138 (seven and one-half month delay between arraignment and trial not "presumptively prejudicial"); United States v. Occhipinti, 998 F.2d 791, 798 (10th Cir.1993) (delay of 172 days insufficient to trigger Barker analysis); United States v. Kalady, 941 F.2d 1090, 1095-96 (10th Cir.1991) (eight month delay between indictment and trial nonprejudicial); United States v. Bagster, 915 F.2d 607, 611 (10th Cir.1990) (delay of thirty months insufficient to trigger Barker analysis). But see Perez v. Sullivan, 793 F.2d 249, 255 (10th Cir.) (fifteen month delay triggered Barker analysis), cert. denied, 479 U.S. 936, 107 S.Ct. 413, 93 L.Ed.2d 364 (1986).
22
In addition, the right to a speedy trial "attaches only when a formal criminal charge is instituted and a criminal prosecution begins." United States v. MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982). Hence, "[o]nce charges are dismissed, the speedy trial guarantee is no longer applicable." Id. at 8, 102 S.Ct. at 1502.
23
Because Harvey's original convictions were vacated and conspiracy to commit kidnapping3 is a separate offense, see part I., the speedy trial clock for Harvey's second trial did not start to run until the first filing relating to the conspiracy charge. Thus, the relevant time period is from the filing of the indictment on the conspiracy charge on July 7, 1989, until the date of the conspiracy trial on January 8, 1990, 185 days or approximately six months.
24
This period is further reduced by two delays attributable to Harvey. See Dirden, 38 F.3d at 1138 (delays attributable to the defendant do not weigh against the government). First, Harvey filed a petition for a writ of prohibition with the Wyoming Supreme Court on July 25, 1989, which was denied on September 18, 1989. See State ex rel. Harvey, 779 P.2d 291 (Wyo.1989). This is a span of fifty-five (55) days. Second, on December 18, 1989, an order certifying questions to the Wyoming Supreme Court on Harvey's motion was entered. The Wyoming Supreme Court remanded the case to the district court with the questions unanswered on January 2, 1990. This is a span of fifteen (15) days. Therefore, the time from the filing of the complaint to the date of trial, with time deducted for delays attributable to Harvey, is 115 days.
25
Based upon the circumstances of this case and application of the speedy trial factors outlined in Barker, we conclude that the 115-day time span between the filing of the complaint and the date of the start of the trial was neither "presumptively prejudicial" nor significantly long. Thus, under Barker, we need not analyze the speedy trial issue further. Accordingly, Harvey was not denied his right to a speedy trial.
III. Allocution Statement
26
Harvey challenges the use of his allocution statement as evidence of guilt in his conspiracy trial. Harvey contends that his allocution statement was not made voluntarily and that he did not know the rights he was giving up by making the statement.
27
Under 28 U.S.C. § 2254(a) an application for a writ of habeas corpus to disturb a state court judgment may issue only if it is found that the applicant is "in custody pursuant to the judgment of a State court ... in violation of the Constitution or laws or treaties of the United States." Thus, the only injury that will suffice to support a petition for habeas corpus relief is an injury to a petitioner's federally protected right; state law injuries cannot and do not suffice. Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874-75, 79 L.Ed.2d 29 (1984).
28
While Wyoming has recognized the right to make a statement in mitigation of a fine or punishment as constitutionally protected, see Christy v. State, 731 P.2d 1204, 1207 (Wyo.1987), under federal law, the right to allocution is not constitutionally protected. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962); United States v. Gardner, 480 F.2d 929, 932 (10th Cir.), cert. denied, 414 U.S. 977, 94 S.Ct. 297, 38 L.Ed.2d 220 (1973). Rather, it is a right delineated by Fed.R.Cr.P. 32(c)(3)(C)4, the violation of which is not subject to collateral attack as unconstitutional. Hill, 368 U.S. at 426, 82 S.Ct. at 470. Therefore, the fundamental issue here is not whether Harvey's right to allocution was violated, but whether his right to due process was violated by forcing him to choose between his constitutional right to remain silent and his statutory right to speak on his own behalf in mitigation of punishment.
29
In Crampton v. Ohio, decided with McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), vacated in part on other grounds, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972), the Court addressed a similar situation under Ohio's single trial procedure where a defendant could exercise his constitutional right not to be compelled to be a witness against himself on the issue of guilt only at the cost of surrendering any chance to plead his case on the issue of punishment. The Court upheld Ohio's single procedure, stating:
30
The criminal process, like the rest of the legal system, is replete with situations requiring "the making of difficult judgments" as to which course to follow. McMann v. Richardson, 397 U.S. [759, 769, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970) ]. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose. The threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.
31
Crampton, 402 U.S. at 213, 91 S.Ct. at 1470. See Jenkins v. Anderson, 447 U.S. 231, 236, 100 S.Ct. 2124, 2128, 65 L.Ed.2d 86 (1980); Corbitt v. New Jersey, 439 U.S. 212, 218-19 n. 8, 99 S.Ct. 492, 497 n. 8, 58 L.Ed.2d 466 (1978) (quoting Crampton ); Middendorf v. Henry, 425 U.S. 25, 48, 96 S.Ct. 1281, 1293-94, 47 L.Ed.2d 556 (1976) (quoting Crampton ); United States v. Jenkins, 904 F.2d 549, 558 n. 10 (10th Cir.1990).
32
We turn first to the privilege against self-incrimination. The contention is that Harvey was unlawfully compelled to become a witness against himself in order to take advantage of his right to allocution in the hope of receiving a lenient sentence. The Court in Crampton defined the issue as "whether it is consistent with the privilege for the State to provide no means whereby a defendant wishing to present evidence or testimony on the issue of punishment may limit the force of his evidence ... to that issue." Id. at 213-14, 91 S.Ct. at 1470.
33
The Crampton Court concluded that "the policies of the privilege against compelled self-incrimination are not offended when a defendant ... yields to the pressure to testify on the issue of punishment." Id. at 217, 91 S.Ct. at 1472. In reaching its decision, the Court cited to many examples where the defendant is forced to choose between competing rights. See Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958) (one who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination); Spencer v. Texas, 385 U.S. 554, 561, 87 S.Ct. 648, 652, 17 L.Ed.2d 606 (1967) (a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or otherwise inadmissible evidence); United States v. Calderon, 348 U.S. 160, 164 n. 1, 75 S.Ct. 186, 188 n. 1, 99 L.Ed. 202 (1954) (a defendant whose motion for acquittal at the close of the State's case is denied must decide whether to stand on his motion or put on a defense, with the risk that in so doing he will bolster the State's case enough to support a verdict of guilty); Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (upheld a Florida law requiring a defendant to choose between abandoning his alibi defense or giving the State both an opportunity to prepare a rebuttal and leads from which to start).
34
Accordingly, the privilege against compelled self-incrimination is not offended when a defendant yields to the pressure to testify on the issue of punishment in the hope of leniency. A defendant's choice to exercise his right to allocution, like the choice to exercise the right to testify, is entirely his own; he may speak to the court, but he is not required to do so. Once a defendant chooses to testify, though, he waives his privilege against compelled self-incrimination with respect to the testimony he gives and the testimony is admissible in evidence against him in later proceedings. See Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047 (1968) ("[W]e do not question the general evidentiary rule that a defendant's testimony at a former trial is admissible in evidence against him in later proceedings."). It makes no difference that the defendant may have been motivated to testify in the first instance only by reason of the strength of the lawful evidence adduced against him. Id. Therefore, the use of a Harvey's allocution statement in his subsequent conspiracy trial did not violate his due process rights if the making of the statement was an effective waiver of his Fifth Amendment rights.
35
An effective waiver of one's Fifth Amendment right against compelled self-incrimination may exist only if it is voluntary, knowing, and intelligent with an understanding of the consequences of such waiver. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). In Colorado v. Spring, 479 U.S. 564, 573, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (1987), the Court stated that the inquiry of whether a waiver is coerced "has two distinct dimensions:"
36
First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
37
(quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986)).
38
We hold that Harvey's decision to make an allocution statement was voluntary. At the pretrial hearing to determine if his allocution statement was admissible in his conspiracy trial, Harvey conceded that he made his allocution statement voluntarily and that he was not coerced.5 (ROA, Vol. I, Tab 3, Exhibit C at 969). Therefore, our only concern is whether or not he did so knowingly, intelligently, and with an understanding of the consequences.
39
Although Harvey may not have been aware of the specific consequences that ultimately resulted from his waiver of his right to remain silent at the sentencing hearing, "[t]he Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege." Colorado, 479 U.S. at 574, 107 S.Ct. at 857. "The Fifth Amendment guarantee is both simpler and more fundamental: A defendant may not be compelled to be a witness against himself in any respect." Id. at 574, 107 S.Ct. at 857. Under Miranda, the defendant must be aware of his right to remain silent and of the consequences of abandoning that right. Id. at 577, 107 S.Ct. at 859.
40
There is no allegation that Harvey failed to understand the basic privilege guaranteed by the Fifth Amendment; Harvey understood that he had the right to remain silent. Nor is there any allegation that he misunderstood the consequences of speaking freely to the district court; Harvey knew that anything he said could be used as evidence against him. Harvey was advised of his Fifth Amendment rights at the time he was arrested, at the time of his initial appearance in county court, and at the time of his arraignment in district court. Harvey was represented by counsel at all times. Finally, Harvey made his allocution statement under oath after having been sworn in by the trial court. In sum, we agree with the district court that Harvey "voluntarily, knowingly, and intelligently waived his right against self-incrimination at his first sentencing hearing." Harvey III, 893 F.Supp. at 1030.
IV. Ineffective Assistance
41
Harvey contends that he was denied effective assistance of counsel at the sentencing phase of his first trial because his counsel failed to advise him that his allocution statement could be used against him in a second trial.
42
"The writ of habeas corpus shall not extend to a prisoner unless [h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). See also 28 U.S.C. § 2254(a). In Maleng v. Cook, 490 U.S. 488, 491-92, 109 S.Ct. 1923, 1925-26, 104 L.Ed.2d 540 (1989), the Court concluded that while the concept of "in custody" does not require that the petitioner be physically confined and extends beyond incarceration to parole on an unexpired sentence, it does not extend to the "situation where a habeas petitioner suffers no present restraint from a challenged conviction" at the time of the filing of the habeas petition. In Gamble v. Parsons, 898 F.2d 117, 118 (10th Cir.), cert. denied, 498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 172 (1990), we held that Maleng:
43
precludes a defendant from challenging a fully-expired conviction in isolation even though it may have potential collateral consequences in some future case. Further, even if the fully-expired conviction, has, in fact been used to enhance a subsequent sentence, it may not be attacked directly in a habeas action. Rather the attack must be directed toward the enhanced sentence under which the defendant is in custody. However, if the attack is so directed, the defendant may argue that his present sentence is improper because it has been enhanced by a prior, unconstitutional conviction.
44
See also Waldon v. Cowley, 880 F.2d 291, 292 (10th Cir.1989).
45
Harvey is currently incarcerated pursuant to the conspiracy conviction and sentence entered after his second trial. However, his claim is a direct attack on his counsel's performance at the sentencing phase of his first trial. Inasmuch as his first convictions were vacated by the Wyoming Supreme Court, see Harvey I, 774 P.2d 87, he suffers no present restraint as a result of those convictions. Accordingly, we interpret his habeas petition, when construed with the deference to which he is entitled as a pro se litigant,6 as a challenge to his current incarceration through his first counsel's performance at the sentencing hearing during his first trial. Therefore, the issue becomes whether Harvey's "present sentence is improper because it has been enhanced by a prior unconstitutional conviction." Gamble, 898 F.2d at 118.
46
To constitute enhancement, a petitioner must show that "if he prevails in challenging his prior expired conviction, the sentence that he is currently serving will be reduced." Collins v. Hesse, 957 F.2d 746, 748 (10th Cir.1992). If Harvey were to prevail on his ineffective assistance of counsel claim, his first convictions would be unconstitutional. However, this would not affect his current sentence. The subsequent use of Harvey's allocution statement depends on the effectiveness of his waiver of his Fifth Amendment rights, see part III.; it does not depend on his counsel's failure to advise him in any way. Therefore, Harvey's current sentence was not "enhanced" in any manner by his vacated prior convictions.
47
As a result, Harvey is not "in custody" for purposes of this claim. Therefore, we are without jurisdiction to consider this claim further.
*
The Honorable Nathaniel R. Jones, Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation
1
At his request, this portion of Harvey's allocution statement, which had been excised by the district court, was also read to the jury:
She relaxed. I let go, turned back and finished rolling up the window. The woman got up into the back seat. She started a conversation which was, like, 'You guys from Texas?' And we just kind of smiled. I looked at David. And she says--looks at David and leans up against him and says to him, 'You're kind of cute.' And they actually kissed at that time. She took her coat off and I quit watching from that point on. We just drove.
(Exhibits to Motion to Supplement the Record, Exhibit B at 1172).
2
Harvey's original pro se petition raised issues (1), (3), and (4). After counsel was appointed, issue (2) was added. Due to the inadequate supplemental briefing, we will address issues (3) and (4) according to Harvey's pro se petition which we review under a liberal standard. See Jones v. Cowley 28 F.3d 1067, 1069 (10th Cir.1994)
3
Harvey was acquitted of conspiracy to commit sexual assault; thus, we are only concerned with the charge of conspiracy to commit kidnapping on which we was convicted
4
Fed.R.Cr.P. 32(c)(3)(C) provides that:
(3) Imposition of Sentence. Before imposing sentence, the court must:
(C) address the defendant personally and determine whether the defendant wishes to make a statement and to present any information in mitigation of the sentence;
5
Although Harvey conceded the issue of voluntariness, Harvey's appointed counsel rests the bulk of his argument on this issue premised on the idea that the trial court coerced Harvey into making his allocution statement by addressing him personally and asking if he would like to make a statement in mitigation of punishment. (Appellant's Supplemental Opening Brief at 37-42). However, the trial court simply followed the dictates of the Wyoming rules of criminal procedure. See W.R.Cr.P. 32(c); (ROA, Vol. I, Tab 12, Exhibit 2 at 2). There cannot be coercion when the court simply follows the mandated procedures without any independent elaboration
6
For the purposes of this case only, we construe Harvey's petition as pro se, even though appointed counsel filed an Appellant's Supplemental Opening Brief, to avoid the adverse effects of counsel's apparent oversight of Maleng 's and Gamble 's prohibition against attacking expired convictions directly
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People v Molina (2020 NY Slip Op 01261)
People v Molina
2020 NY Slip Op 01261
Decided on February 20, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 20, 2020
Renwick, J.P., Mazzarelli, Gesmer, Kern, JJ.
11086 3211N/16
[*1] The People of the State of New York, Respondent,
vJuan Molina, Defendant-Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Ronald Alfano of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Rebecca Hausner of counsel), for respondent.
An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Michael Sonberg, J.), rendered January 31, 2017,
Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive,
It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.
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OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS
OFFIO!@\lso3lLlSi8HiA8@)LST^TioN^^i^ MS E83.iP>OSTAGE»PITNEY BOWES
STATE OF TEXAS °w
PENALTY FOR ..'
ZIP 78701
PRIVATE USE 02 1W
0001401623 MAY. 20. 2015
5/15/2015 •::., . - «
LOCK, DANIEL ROBERT Tr. Ct. No. 97-780-K277%'^ WR-83,294-01
On this day, the application for 11.07 Writ, of Habfe^QSp^&taas been received
and presented to the Court.
*&
fyfyfibeilAcosta, Clerk
TDC#811059 \
HOUSTON, TX 77002
N3B 77002 vv'-
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43 F.3d 670
Gramajo-Ramosv.INS*
NO. 94-40471
United States Court of Appeals,Fifth Circuit.
Dec 22, 1994
Appeal From: D.La., No. INS A# 71-641-253
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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79 B.R. 584 (1987)
In re CORSO STEIN ENTERPRISES, INC., Debtor.
Bankruptcy No. 86-03341.
United States Bankruptcy Court, D. New Jersey.
November 2, 1987.
*585 Richard Shaine, Stark and Stark, for trustee.
William Wolfson, Wolfson and Knee, for Official Unsecured Creditors Committee.
Helen Davis Chaitman, Ross and Hardies, and Frederick Dennehy, Wilentz, Goldman and Spitzer, for Amboy-Madison Bank and GS Realty Corp.
Laurie Rush-Masuret, John J. Rush, P.A., for First Indem. of America Ins. Co.
Marianne McKenzie, Greenbaum, Rowe, Smith, Ravin, Davis and Bergstein for Whispering Pines Homeowners Ass'n.
W. Cary Edwards, Atty. Gen., Susan Doppelt-LaPoff, Deputy Atty. Gen., Trenton, N.J., for State of N.J., Dept. of Community Affairs.
Barry Frost, Teich, Groh and Frost, Trenton, N.J., for contract purchasers.
Dale W. Baker, New Brunswick, N.J., for debtor.
WILLIAM H. GINDIN, Bankruptcy Judge.
This matter arises as a result of a motion made by Amboy-Madison National Bank (Bank) to authorize the bank to honor a draw under a letter of credit issued to First Indemnity of America Insurance Company (F.I.A.) for the amount which F.I.A. has paid to former contract purchasers of the debtor. The trustee responds by seeking an order directing that F.I.A. marshal assets and proceed against individual indemnitors.
FACTS
The debtor was engaged in the construction of housing units in a planned unit development, which units were sold to the general public prior to their completion. Purchasers placed deposits with the debtor prior to such completion and the debtor used the funds so received. In order to protect the purchasers, the debtor obtained a bond from F.I.A.F.I.A. required that it be supplied a letter of credit in an amount equal to the amount of the deposits so that any losses it sustained could be reimbursed. In addition to the letter of credit, F.I.A. took an indemnification from John and Nadia Corso. Mr. Corso is one of the principals of the debtor and Mrs. Corso is his wife.
The bank issued the letter of credit based upon the debtor's certificate of deposit placed with the bank in an amount necessary to cover the letter of credit. The bank in turn took a guarantee signed by John Corso and David Stein, principals of the debtor.
The debtor has defaulted on its various contracts and, as a result of such a default, F.I.A., after a hearing and order of this court, has honored its obligation to the individual contract purchasers. It now seeks to exercise its rights under the letter of credit. If the bank permits or is authorized to permit the honoring of such a letter of credit, it will then have a setoff against the certificate of deposit and the debtor will ultimately have paid the money. If, on the other hand, either F.I.A. or the bank can be compelled to seek recovery under an appropriate indemnity agreement or guarantee, the certificate of deposit will remain the property of the debtor and inure to the benefit of the creditors.
A diagram may be helpful. *586
DEBTOR CERTIFICATE OF BANK LETTER OF F.I.A.
DEPOSIT CREDIT
G I
u n
a d
r e
a m
n n
t i
e t
e y
DAVID STEIN JOHN CORSO
JOHN CORSO NADIA CORSO
In order to accomplish recovery for the creditors, the trustee seeks to invoke the common law equitable doctrine of marshaling.
DISCUSSION
While not labeled, marshaling was first recognized in the case of Culpepper contra Aston, 2 Chan.Cas. 116, 22 English ReportsFull reprint 873 (1682). In that case, a decedent left his daughter a legacy to be paid specifically from personal property. The balance was to be paid to his son. In addition, the son was to receive certain real estate. The decedent directed the payment of debts from the real estate, but prior to his death, transferred the real estate to pay some of the debts (as in a deed in lieu of foreclosure). The court allowed the son to retain the balance of the land after satisfaction of that debt. In the meanwhile, the trustee had used the personal property to pay debts, thereby defeating the legacy. The chancellor held that the residue of the lands should be charged with the legacy, thus directing the employment of the funds, both of which were the property of the son, equitably.
The doctrine was more clearly defined in La Noy against The Duchess of Athol, 2 Atk 44, 88 English Reports Full reprint 532 (Ch. 1742). There, the court prevented creditor who had a choice of going against real estate or personal estate from going against the real estate, which was the only fund from which another creditor could hope to receive an annual income owed by the estate of a deceased debtor. 88 English ReportsFull reprint 535.
Similarly, Lord Chancellor Eldon in Ex Parte Kendall, 17 Ves.Jun. 514, 34 English ReportsFull reprint 199 (Ch. 1811) used the doctrine to require creditors of a partnership to first go against all of the members of the partnership so as to preserve assets for the benefit of creditors who were owed funds by fewer than all of the partners.
In Sowell v. Federal Reserve Bank, 268 U.S. 449, 456-457, 45 S.Ct. 528, 530-531, 69 L.Ed. 1041, 1049 (1925), the court summarized the doctrine and identified it as:
The equitable doctrine of marshaling rests upon the principle that a creditor having two funds to satisfy his debt may not, by his application of them to his demand, defeat another creditor, who may resort to only one of the funds.
268 U.S. 456-457, 45 S.Ct. 530. The doctrine is "designed to promote fair dealing and justice". Meyer v. United States, 375 U.S. 233, 237, 84 S.Ct. 318, 321, 11 L.Ed.2d 293, 297 (1963).
The basic principle that the bankruptcy courts are courts of equity, has been unchallenged. "[C]ourts of bankruptcy are essentially courts of equity and their proceedings are inherently proceedings in equity". Local Loan Co. v. Hunt, 292 U.S. 234, 240, 54 S.Ct. 695, 697, 78 L.Ed. 1230, 1233, (1934). This court is directed to apply "the principles and rules of equity jurisprudence". Pepper v. Litton, 308 U.S. 295, 304, 60 S.Ct. 238, 244, 84 L.Ed. 281, 287 (1939). The Bankruptcy Code, 11 U.S. *587 C. § 105, codifies the general powers of the bankruptcy court and such powers require this court to determine whether or not to invoke the doctrine of marshaling to compel F.I.A. to proceed against its individual indemnitors or the bank to proceed against its guarantors.
Recent case law involving the doctrine of marshaling is sparse, for the courts have hesitated to place a creditor under restrictions not contemplated by the creditor when it entered into its initial arrangement. Thus in New Jersey, the Chancery Division in Johnson v. Lentini, 66 N.J.Super. 398, 169 A.2d 208 (Ch.Div.1961) declined to direct the marshaling of assets at the behest of the debtor. There the court held that "the doctrine of marshaling is only applicable as between creditors". 66 N.J.Super. 409, 169 A.2d 208. Furthermore, that case set forth the proposition that the creditor must have two liens, a situation not present in the instant case.
Similarly, a creditor bank held liens upon life insurance policies, a certificate of deposit and a second mortgage in Matter of Multiple Services Industries, Inc., 18 B.R. 635 (Bankr.E.D.Wis.1982). There the court required the bank to foreclose a second mortgage even as against the bank's argument that no one contemplated such a result, that the bank would be delayed, and that the bank would run the risk that its claim would not be satisfied. In directing foreclosure, the court required that the trustee maintain funds sufficient to pay the claim of the bank in the event the foreclosure did not yield sufficient money. Given that posture, the doctrine directs the court to arrange assets and claims in such a way as to allow all parties to receive payment in their just proportion. Matter of McElwaney, 40 B.R. 66 (Bankr.M.D.Ga. 1984).
The doctrine of marshaling has been referred to as the "two funds" doctrine. In re The Computer Room, Inc., 24 B.R. 732 (Bankr.N.D.Ala.1982). In analyzing the history of the marshaling doctrine in that case, Judge Wright emphasized that in order to invoke the doctrine it was necessary to have three basic elements. The two creditors must be of the same debtor, the debtor must have two funds, and one of the creditors alone may have the right to resort to both funds. This outline is derived as well from In re Beacon Distributors, Inc., 441 F.2d. 547 (1st Cir.1971). Beacon Distributors, however, sounds a note of caution, for in that case Judge McEntee required that the invocation of the doctrine be preceeded by a finding that such a treatment would necessarily be just and equitable. See also Caplinger v. Patty, 398 F.2d 471 (8th Cir.1968).
The trustee urges that this court apply general equitable principles and go beyond a more rigid interpretation of the early doctrine. A few cases have gone beyond a simple approach and allowed marshaling in more complex situations. In In re Tampa Chain Co., Inc., 53 B.R. 772 (Bankr.S.D.N. Y.1985) Judge Buschman found that there was a common debtor, in the sense that a corporate debtor and the guaranteeing shareholders were to be treated as one and the same. In reaching that conclusion, however, the court made a specific finding of fraud and inequitable conduct, for he found "the elements of inequitable conduct and fraud justifying disregard of the corporate veil or requiring equitable subordination are clearly present". 53 B.R. 779.
The court has also permitted a piercing of the corporate veil where creditors relied to their detriment upon the actions of the guarantors. Farmers & Merchants Bank v. Gibson, 7 B.R. 437 (Bankr.N.D.Fla.1980). The court there found it would be inequitable to allow the guarantors to hide behind the corporation where the individually owned property was specifically pledged to secure a guarantee and the loan itself had been used to obtain working capital. In addition, the individuals were makers rather than guarantors on part of the obligation. In that case, the court took into account the rights of the creditor which might be endangered by delay and allowed the bank to proceed against the corporate property holding out a certain amount of it and granting the trustee equitable subrogation. In the instant case, the indemnitors guaranteed only a specific obligation. In Farmers & Merchants, the court specifically *588 determined that the guarantee was a contribution to capital and served as an inducement of others to innocently commence or continue to extend supplies or services to the principal on credit. 7 B.R. 441.
More troubling is the chief case relied upon by the trustee, In re Jack Green's Fashions for Men Big and Tall, Inc., 597 F.2d 130 (8th Cir.1979). The court simply relied on equitable principles and extended the doctrine of marshaling. No specific finding of fraud was made and the court did not argue that it was piercing the corporate veil. No other cases have gone as far as the Eighth Circuit in Jack Green's. Judge Wright in In re The Computer Room, supra, rejected the case as being inconsistent with the historical background of the doctrine. Judge Elliott in In re United Medical Research, Inc., 12 B.R. 941 (Bankr.C.D.Cal.1981) likewise considered Jack Green's to be an anomalous result.
In the absence of some law pursuant to which this court has authority to pierce the corporate veil, this court must also reject the Jack Green's reasoning as having no support in history or in law. The burden of proof for one seeking to go beyond the corporation is a heavy one. There must be some basis upon which the court relies.
The circumstances under which the court should disregard the corporate fiction are not always clear and it is difficult, if not impossible, to formulate a precise and categorical definition applicable to all situations, . . . each case being sui generis. The burden, however, in each case rests upon the plaintiff to establish that there is a basis which serves for disregard of the corporate form. . . .
Brunswick Corp. v. Waxman, 459 F.Supp. 1222, 1229 (D.N.Y.1978), aff'd., 599 F.2d 34 (2d Cir.1979). In the instant case no such facts are alleged.
In analyzing the case before this court, one must go back to the diagram set forth above. In the case of F.I.A. there is a claim against a letter of credit and a claim against the Corsos. The debtor does not have any interest in either fund. Thus the common fund or two fund doctrine simply does not apply. With respect to the bank (not directly involved in this motion, but clearly presenting an issue which will arise shortly) the debtor has a claim to the residual of the certificate of deposit, but the two funds are simply not owned by the same debtor. In order to reach Mr. Corso and Mr. Stein, one must find some justification for piercing the corporate veil. None has been suggested.
Finally, the courts have taken into account the question of prejudice to the secured creditor. Matter of Dealer Support Services International, 73 B.R. 763, 15 BCD 1274 (Bankr.E.D.Mich., So.Div., 1987). Judge Brody pointed out that the delay to the creditor occasioned by compelling the secured creditor to proceed on the guarantee would force the secured creditor to "suffer the inherent delays and expense of a foreclosure proceeding . . . [which] . . . clearly prejudice the bank" 73 B.R. 766, 15 BCD 1276. The position of Nadia Corso, not a principal of the corporation, would likewise suffer prejudice. No adjudication of her position has yet been made and a determination which immediately fixes her rights would be inherently unfair.
This court, therefore, finds that the prerequisites for the invocation of the doctrine of marshaling have not been met. The motion by F.I.A. to permit it to charge the letter of credit is granted and the position of the trustee is rejected.
The attorney for F.I.A. shall submit an order in accordance with this opinion.
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Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
2-3-1999
Heller v. Shaw Ind Inc
Precedential or Non-Precedential:
Docket 97-1735
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999
Recommended Citation
"Heller v. Shaw Ind Inc" (1999). 1999 Decisions. Paper 30.
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Filed February 3, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
NO. 97-1735
_______________
CAROL HELLER; THOMAS HELLER individually and as
the parents and natural guardians of EMILY HELLER and
KATHERINE HELLER, minor children,
Appellants
v.
SHAW INDUSTRIES, INC.
_______________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 97-07657)
District Judge: Honorable William H. Yohn, Jr.
_______________
Argued: October 6, 1998
Before: BECKER, Chief Judge, NYGAARD, and
NOONAN,* Circuit Judges
(Filed: February 3, 1999)
JOSEPH C. KOHN, ESQUIRE
JOANNE ZACK, ESQUIRE (ARGUED)
MARTIN J. D'URSO, ESQUIRE
DAVID G. CONCANNON, ESQUIRE
Kohn, Swift & Graf, P.C.
1101 Market Street, 24th Floor
Philadelphia, PA 19107
Attorneys for Appellants
_______________________________________________________
*Honorable John T. Noonan, Jr., Senior Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
JOHN F. KENT, ESQUIRE
ANNE M. MANERO, ESQUIRE
Kent & McBride
18th & Arch Streets
Two Logan Square, Suite 600
Philadelphia, PA 19103
LEE ANN JONES, ESQUIRE
(ARGUED)
Powell, Goldstein, Frazer & Murphy,
LLP
191 Peachtree Street
Atlanta, GA 30303
Attorneys for Appellee
_______________
OPINION OF THE COURT
_______________
BECKER, Chief Judge:
This is an appeal by plaintiff Carol Heller ("Heller"), who
sought to recover from defendant Shaw Industries ("Shaw"),
for certain respiratory illnesses allegedly caused by volatile
organic compounds emitted by Shaw carpet installed in
Heller's former home. The District Court's grant of summary
judgment against Heller and in favor of Shaw is largely a
function of its exclusion, following an extensive in limine
hearing, of key expert testimony by which Heller hoped to
establish liability. See Heller v. Shaw Indus., Inc., No.
Civ.A.95-7657, 1997 WL 535163 (E.D. Pa. Aug. 18, 1997). In
reviewing the District Court's rulings, we revisit the caselaw
interpreting Federal Rule of Evidence 702, particularly
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), and In re Paoli Railroad Yard PCB Litigation, 35 F.3d
717 (3d Cir. 1994), and apply their teachings to this case.
2
After careful but deferential review, see General Elec. Co. v.
Joiner, 118 S. Ct. 512, 517 (1997), we conclude that,
although the District Court erred in excluding certain aspects
of the experts' proffered testimony, it properly excluded the
central portions of their testimony, depriving Heller's claim of
its needed evidentiary support.
More specifically, the District Court was too restrictive in
requiring Heller's medical expert to rely on published studies
specifically linking Heller's illness with Shaw's product, and
in requiring Heller's medical expert to rule out all alternative
possible causes of her illness. However, it properly excluded
this expert's causation testimony because his conclusion
regarding the cause of Heller's illness was heavily based on
a flawed temporal relationship between the installation of the
Shaw carpet and the presence of Heller's illness. The District
Court also properly excluded the testimony of Heller's
environmental expert on the grounds that his environmental
testing revealed levels of dangerous compounds in the air in
Heller's home that were not significantly higher than
background levels, and his methodology for extrapolating
from these tests to estimate the (higher) levels of compounds
at an earlier time was seriously flawed. Therefore, because
the District Court did not abuse its discretion in excluding
the key elements of Heller's experts' testimony necessary to
prove causation, the grant of summary judgment will be
affirmed.
I. Facts and Procedural History
On September 30, 1993, Heller, her husband Thomas, and
their two children moved into a nine-year old house in West
Chester, Pennsylvania. Shortly after the move, Thomas Heller
experienced allergy symptoms. In November and December
1993, an allergist advised Mr. Heller to replace the carpeting
in the home because cat hair from previous owners might
have caused his allergic reactions. On December 13 and 14,
1993, the Hellers put new carpeting--manufactured by Shaw
Industries--in certain rooms of their home, including the
3
master bedroom on the first floor and a guest room on the
second floor.
In late December 1993, Carol Heller began to experience
respiratory problems, including asthma, breathing difficulty,
wheezing, coughing, and dizziness. After seeking treatment
from her father, a physician, Heller consulted Dr. Joseph
Papano, an allergist and one of her two expert witnesses.1 Her
first visit to Dr. Papano was on February 15, 1994. Dr.
Papano took Heller's medical and family history, questioned
her about her environment (whether there were cats or dogs
in the home, etc.), and performed allergy tests, chest X-rays,
and pulmonary function tests. Based on the history, tests,
and a physical examination, Dr. Papano ruled out various
possible causes of her respiratory problems. In February
1994, the doctor recommended that Heller contact Alan Todd
of Todd Environmental Consultants (collectively "Todd") to
test both the air quality in her home and the carpet.2 When
Dr. Papano next saw Heller, on March 19, 1994, she was still
experiencing problems, but informed him that her symptoms
_______________________________________________________
1. Because, as discussed below, Dr. Papano relied heavily for
his diagnosis on the temporal relationship between the
installation of the Shaw carpet and the onset of Heller's
illness, the date on which she began to experience her symptoms
is a contested and important issue. Dr. Papano originally
testified at his deposition that her symptoms began in "January
1994," and he so stated in his expert witness report. However, at
the Daubert hearing, he testified that the symptoms began in
"mid-January 1994." Heller testified at the Daubert hearing that
her symptoms began in late December 1993 or early January 1994,
while her father testified that they began either in mid-December
or during the first two weeks of December. Given the conflicting
testimony, we find no clear error in the District Court's
reliance, in its findings following the Daubert hearing, on
Heller's testimony that her symptoms began in late December 1993.
See Heller, 1997 WL 535163, at *17 n.29.
2. Dr. Papano's expert report represents that he referred Heller
to Todd at her March 1994 visit, while Todd's expert report
states that he was first contacted by Heller and did the initial
testing in February. The District Court apparently credited Todd
and we will not revisit this (supported) conclusion. Given that
the initial home testing was performed by Todd in February 1994,
Dr. Papano must have referred the Hellers to Todd in February.
4
improved when she was out of her house. At this time, she
brought the doctor a sample of the Shaw carpet, which he
testified had a strong odor.
The Hellers contracted with Todd to perform the testing of
the environment in the house and of the carpet. Todd initially
tested for excessive levels of dust or other possible
contaminants, finding nothing unusual. By April 7, 1994, the
Heller family had moved out of their home in an attempt to
eliminate Heller's respiratory problems. On April 14, 1994,
Todd tested the air in the closet of one of the Hellers'
bedrooms; the closet contained both some of the Shaw carpet
and some carpet from an unknown manufacturer. Todd's
initial test, conducted over approximately eight hours, found
fourteen types of volatile organic compounds ("VOC"s) present
in the air in the closet.
Three weeks later, on May 5, 1994, the Shaw carpet was
removed from the house. Less than a week later, on May 11,
1994, Todd again tested the air in the bedroom closet for
eight hours. During the period between the two tests, no
other changes were made in the house: no objects were added
or removed, the windows remained closed, and no persons
entered or left the by-now empty house. In the second test,
Todd found only five types of VOCs present. Four of these
were present in levels virtually indistinguishable from the
initial readings. Therefore, nine compounds completely
disappeared and one (benzene) remained present, but at
lower levels. Todd's initial conclusion, in a May 23, 1994,
letter to Heller, was that "none of the compounds identified
would be expected to typically result in asthmatic or
sensitization responses." (Later, however, in his first expert
witness report, dated January 16, 1997, he opined that the
compounds that disappeared or diminished were emitted
from the Shaw carpet, and were "the likely source of [the
Hellers'] irritation and related responses.")
The Hellers returned to the home briefly on May 11, 1994.
Although the carpet had been removed six days earlier and
the May 11 testing would reveal the presence of very few
5
VOCs, Mrs. Heller again experienced "wheezing, shortness of
breath and an irritated throat." The Hellers then left the
house, never to return. In November 1994, they sold the
home for less than they had paid for it a year earlier.
Dr. Papano's expert report stated that he performed a
differential diagnosis, which involved ruling out possible
causes of Heller's symptoms other than Shaw's carpet
(including "an infectious cause"), and, based largely on the
temporal relationship between her symptoms and the
installation of the Shaw carpet, concluded that the Shaw
carpet precipitated Heller's respiratory problems. As noted
above, Alan Todd also offered his expert opinion (in his
original expert report) that "to a reasonable degree of
scientific certainty, . . . the illness[es] suffered by the Heller
family were caused by their prolonged exposure to the VOC's
measured in their home and emitted by the carpeting
manufactured by Shaw Industries."
In December 1995, the Hellers brought a diversity action
against Shaw in the District Court for the Eastern District of
Pennsylvania, under 28 U.S.C. S 1332, alleging breach of
warranty, failure to warn, negligent and intentional
misrepresentation, defective design, and violation of state
consumer protection laws. The complaint sought
compensatory and punitive damages for both personal
injuries and property damage, as well as a medical
monitoring award. To establish defective design and failure to
warn, a plaintiff must prove that the defendant's product
caused her injuries. Causation therefore was the primary
focus of the District Court's inquiry and the primary disputed
issue in this case.
Following extensive discovery, Shaw moved for summary
judgment and, as an adjunct to that motion, moved in limine
to exclude all of Heller's expert witness testimony. The
District Court held a Daubert hearing over several days. It
then filed an unpublished opinion and order, granting
defendant's motions for exclusion of plaintiff's expert
testimony and for summary judgment. See Heller v. Shaw
6
Indus., Inc., No. Civ.A.95-7657, 1997 WL 535163 (E.D. Pa.
Aug. 18, 1997).
On appeal, we review a District Court's decision to exclude
expert testimony for abuse of discretion. See Joiner, 118 S.
Ct. at 517. The District Court's interpretation of the
requirements of Rule 702, however, is subject to plenary
review. See Paoli, 35 F.3d at 749. As to the District Court's
entry of summary judgment for defendants, "we exercise
plenary review, construing all evidence and resolving all
doubts raised by affidavits, depositions, answers to
interrogatories, and admissions on file in favor of the non-
moving party." Iberia Foods Corp. v. Romeo, 150 F.3d 298,
302 (3d Cir. 1998).
Heller does not appear to dispute that, if we determine that
the District Court properly excluded all of plaintiff's expert
testimony, summary judgment for defendant was the proper
course for the key claims of design defect and failure to warn.
This is because, without either Dr. Papano's or Alan Todd's
testimony, Heller would be left without any proof of
causation, a necessary element for each of these claims.
However, if we decide (as we do) that some of the testimony
should have been admitted, we must determine whether that
testimony is sufficient to create a material issue of fact on the
causation issue. Most of our opinion will focus on the key
underlying issue of the admissibility of Heller's expert witness
testimony, on which the causation issue hinges. While there
are other issues in the case, including breach of warranty
and misrepresentations, we will address these only briefly, for
they are easily disposed of without extended discussion.
II. Expert Witnesses: The Legal Background
Rule 702 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 . . . may testify thereto in the
form of an opinion or otherwise." Relying on the language of
7
Rule 702 and the liberal thrust of the Federal Rules of
Evidence, the Supreme Court held in Daubert that expert
testimony need be based only on a reliable and scientifically
valid methodology that fits with the facts of a case. See
Daubert, 509 U.S. at 592-93.3 The Court listed four factors to
guide a district court in its preliminary assessment of these
requirements, but cautioned that these were guideposts and
not required factors in each case. The factors are: (1) whether
the methodology can and has been tested; (2) whether the
technique has been subjected to peer review and publication;
(3) the known or potential rate of error of the methodology;
and (4) whether the technique has been generally accepted in
the proper scientific community. See id. at 593-94. The Court
made clear that its listing of these factors should not obscure
the fact that the district court's gatekeeper role is a flexible
one, see id. at 594 & n.12, and that the factors are simply
useful signposts, not dispositive hurdles that a party must
overcome in order to have expert testimony admitted. In this
regard, a party seeking to exclude (or to admit) expert
testimony must do more than enumerate the factors from
Daubert (and the additional ones from Paoli, discussed below)
and tally the number that are or are not met by a particular
expert's testimony.
In Daubert, the Court noted that "[v]igorous cross-
examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible
evidence," and that, even if expert testimony is admitted,
summary judgment might be warranted if a party has still
failed to present sufficient evidence to get to the jury. Id. at
596; see also Paoli, 35 F.3d at 750 n.21. Clearly, the Court
envisioned cases in which expert testimony meets the
Daubert standard yet is "shaky," and cases in which
_______________________________________________________
3. In Daubert, the Supreme Court interred the decades-old Frye
doctrine,from Frye v. United States, 293 F. 1013 (D.C. Cir.
1923), which required that an expert's methodology be "generally
accepted" within the scientific community before the expert's
testimony could be admitted. See Daubert, 509 U.S. at 588-89.
8
admissible expert testimony provides only a "scintilla" of
support for a claim or defense. Put differently, an expert
opinion must be based on reliable methodology and must
reliably flow from that methodology and the facts at issue--
but it need not be so persuasive as to meet a party's burden
of proof or even necessarily its burden of production.
In Paoli, filed barely a year after Daubert, we identified a
number of factors that a istrict court might use in
evaluating expert testimony in addition to the four factors
listed in Daubert. The additional factors include: (1) "the
existence and maintenance of standards controlling the
technique's operation"; (2) "the relationship of the technique
to methods which have been established to be reliable"; (3)
the expert witness's qualifications; and (4) "the non-judicial
uses to which the method has been put." Paoli, 35 F.3d at
742 n.8. In Paoli, we explained that even if the judge believes
"there are better grounds for some alternative conclusion,"
and that there are some flaws in the scientist's methods, if
there are "good grounds" for the expert's conclusion, it should
be admitted. Id. at 744.4
We also emphasized in Paoli that the district court could
not exclude the testimony simply because the conclusion was
"novel" if the methodology and the application of the
methodology were reliable. See id. at 746 n.15. However, we
rejected the plaintiffs' argument in Paoli (also urged strongly
by the plaintiff here) that the district court had abused its
discretion by examining the experts' conclusions. While "[t]he
focus, of course, must be solely on principles and
methodology, not on the conclusions that they generate,"
Daubert, 509 U.S. at 595, a district court must examine the
expert's conclusions in order to determine whether they could
_______________________________________________________
4. In addition to the "good grounds" requirement, in a diversity
case such as this, state rules on the degree of certainty
required of an expert's opinion apply. In Pennsylvania, a doctor
can give an opinion on the cause of a plaintiff's illness if he
or she can do so with a reasonable degree of medical certainty.
See Paoli, 35 F.3d at 750-52.
9
reliably follow from the facts known to the expert and the
methodology used.5
III. Plaintiff's Expert Witnesses
In this case, Heller must demonstrate, as part of her prima
facie case, that Shaw's carpet emitted VOCs into the air; that
she inhaled these VOCs; that she has an injury; and that the
VOCs were the cause of this injury. See In re Paoli R.R. Yard
PCB Litig., 916 F.2d 829, 860 (3d Cir. 1990). The expert
testimony of Alan Todd, who is a certified industrial
hygienist, is integral to plaintiff proving the first of these
elements, and would bolster a medical conclusion on
causation by demonstrating that the level of VOCs present in
the Heller home was significantly higher than the background
levels typically present. Without his testimony, drawn from
the tests he performed in the Heller household, Heller has
adduced no evidence that the Shaw carpet installed in the
Heller home emitted VOCs into the air (let alone emitted them
at a level sufficient to cause her illness). Further, even if
Todd's testimony is admitted and is sufficient to meet
plaintiff's burden on this first element at the summary
judgment stage, Dr. Papano's testimony is necessary to prove
that Heller became sick. His testimony also is critical for
proving that the Shaw carpet was the cause of Heller's
illness. While Todd also offered his expert testimony
regarding the fourth element, i.e., that the VOCs from the
Shaw carpet caused Heller's illness, as we will discuss below,
only Dr. Papano is qualified to testify as to this element.6
_______________________________________________________
5. The Advisory Committee on the Federal Rules of Evidence has
proposed changes to Rule 702 that would reflect the standards
from Daubert (and Paoli), requiring that an expert's testimony be
based on reliable facts, be the product of reliable principles
and methodology, and be based on a reliable application of these
principles and methods to the facts of the case. See Fed. R.
Evid. 702 (Preliminary Draft 1998).
6. We do not focus on the second element, that Heller inhaled
the VOCs. If she is able to prove, through her expert witnesses'
testimony, that the Shaw carpet installed in the home emitted
VOCs, that she became ill, and
10
A. Dr. Papano
Shaw did not challenge Dr. Papano's qualifications, so we
mention them only briefly here. Dr. Papano is board-certified
in internal medicine and allergy-immunology. He has been a
practicing physician for more than 35 years, and currently
treats 60 to 80 patients per week. Dr. Papano has held a
number of prominent positions at Bryn Mawr Hospital in
suburban Philadelphia, and has taught fellows and residents
in allergy and internal medicine.
Dr. Papano's written expert report, from January 1997,
opines that he "can state with a reasonable degree of medical
certainty, that both Mr. and Mrs. Heller's respiratory
problems or difficulties [were] precipitated [by] the rugs
installed in their home in December 1993." Dr. Papano also
testified at the Daubert hearing that, following Mrs. Heller's
visit in May 1994, "I concluded that the carpeting in her
house was the major factor in her illness." The basis for Dr.
Papano's conclusion was a differential diagnosis drawn from
his examination of Heller, the results of a series of medical
tests, review of Heller's personal and family medical history,
and Heller's descriptions of her personal activities (smoking,
etc.) and environmental conditions ("cats, dogs, the type of
heating system, rugs, pillows, things of that sort").
Dr. Papano testified that he also relied on the temporal
relationship between Heller's exposure to the Shaw carpet
and the onset of her symptoms, as well as information from
Todd Environmental Consultants after its testing of the Heller
home in April and May 1994. Finally, Dr. Papano relied on
his more than thirty years of experience treating patients
with allergy-related medical problems and his knowledge of
environmental causes of respiratory problems gained at
professional seminars he attended.
_______________________________________________________
that the VOCs caused her illness, it certainly would be within a
jury's purview to find that Heller had inhaled the VOCs, without
further direct proof.
11
The District Court excluded all of Dr. Papano's testimony,
largely because he could point to no studies indicating at
what level the VOCs detected in the Heller home could cause
symptoms such as those experienced by Mrs. Heller, see
Heller, 1997 WL 535163, at *15; his differential diagnosis
"failed to rule out all alternative possible causes of Carol
Heller's illness," id. at *16; and the court found that the
temporal relationship on which Dr. Papano relied was weak,
see id. at *17. We address each of these in turn.
1. Lack of Studies
The District Court faulted Dr. Papano for citing "no
research to support his contention that the levels of VOCs
detected by Todd Environmental can and did cause the type
of illness allegedly experienced by [Mrs. Heller]." Id. at *15.
The court found that the lack of studies supporting Dr.
Papano's conclusion was a "defect" in his testimony. Id. We
do not believe that the court's reading of Rule 702--as
requiring research studies supporting a finding of general
causation--is correct. Assuming that Dr. Papano conducted
a thorough differential diagnosis (see infra Part III.A.2) and
had thereby ruled out other possible causes of Heller's
illness, and assuming that he had relied on a valid and
strong temporal relationship between the installation of the
carpet and Heller's problems (see infra Part III.A.3), we do not
believe that this would be an insufficiently valid methodology
for his reliably concluding that the carpet caused Heller's
problems.
A number of courts, including our own, have looked
favorably on medical testimony that relies heavily on a
temporal relationship between an illness and a causal event.
See, e.g., Zuchowicz v. United States, 140 F.3d 381, 385 (2d
Cir. 1998); Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802,
809 (3d Cir. 1997). The temporal relationship will often be
(only) one factor, and how much weight it provides for the
overall determination of whether an expert has "good
grounds" for his or her conclusion will differ depending on
12
the strength of that relationship. For example, if there was a
minor oil spill on the Hudson River on the same day that
Heller began experiencing her symptoms in West Chester,
Pennsylvania, and she recovered around the time the oil was
cleaned up, a proper differential diagnosis and temporal
analysis by a well-qualified physician such as Dr. Papano
could not possibly lead to the conclusion that the oil spill
caused Heller's illness. See, e.g., Paoli, 35 F.3d at 745 (both
the methodology and the application of that methodology
must be reliable). Conversely, "if a person were doused with
chemical X and immediately thereafter developed symptom Y,
the need for published literature showing a correlation
between the two may be lessened." Cavallo v. Star Enter., 892
F. Supp. 756, 774 (E.D. Va. 1995), aff'd in relevant part, 100
F.3d 1150, 1159 (4th Cir. 1996), cert. denied, 118 S. Ct. 684
(1998).
The present case falls between these two hypotheticals. In
this middle area, we do not believe that Daubert and Paoli
require a physician to rely on definitive published studies
before concluding that exposure to a particular object or
chemical was the most likely cause of a plaintiff's illness.
Both a differential diagnosis and a temporal analysis,
properly performed, would generally meet the requirements
of Daubert and Paoli. While again emphasizing that the
Daubert/Paoli factors are simply guideposts, we note that
differential diagnosis "consists of a testable hypothesis," has
been peer reviewed, contains standards for controlling its
operation, is generally accepted, and is used outside of the
judicial context. Paoli, 35 F.3d at 742 n.8.
The question we have thus posed is whether the expert's
conclusion can be considered reliable if it is based on these
scientifically valid methods, but is not based on published
studies. We acknowledge that a number of courts have
answered this question in the negative. See, e.g., Moore v.
Ashland Chem. Inc., 151 F.3d 269, 278 (5th Cir. 1998) (en
banc) (holding that, absent a "compelling" situation such as
the Cavallo example above, a temporal relationship is to be
given little weight when there are few scientific studies
13
supporting a medical expert's specific causation diagnosis),
petition for cert. filed, 67 U.S.L.W. 3409 (U.S. Dec. 17, 1998)
(No. 98-992); Cavallo, 892 F. Supp. at 766-69 (excluding
expert testimony on causation primarily because "there is no
support for this causation theory in the scientific literature").
But see Kennedy v. Collagen Corp., 161 F.3d 1226, 1229 (9th
Cir. 1998) (finding district court abused its discretion by
excluding expert testimony that was based on reliable
methodology simply because "no epidemiological or animal
studies" linked defendant's product to plaintiff's disease).
The Supreme Court has held that it was not an abuse of a
district court's discretion to exclude expert testimony when
there was "too great an analytical gap between the data [of
scientific studies] and the opinion proffered," Joiner, 118 S.
Ct. at 519, but we do not read the Supreme Court as
requiring a medical expert to always rely on published
studies indicating the exposure necessary to cause a
particular illness. Rather, given the tenuous link in Joiner
between plaintiff's exposure to PCBs and the onset of his
cancer a number of years later, the lack of studies linking
PCBs to cancer in humans left only "the ipse dixit of the
expert" to support his conclusion. Id. Therefore, the Court
held that it was not an abuse of discretion for the district
court to exclude the expert's testimony. See id.
Given the liberal thrust of the Federal Rules of Evidence,
the flexible nature of the Daubert inquiry, and the proper
roles of the judge and the jury in evaluating the ultimate
credibility of an expert's opinion, we do not believe that a
medical expert must always cite published studies on general
causation in order to reliably conclude that a particular
object caused a particular illness. Cf. McCullock v. H.B. Fuller
Co., 61 F.3d 1038, 1043 (2d Cir. 1995) (affirming admission
of treating doctor's testimony despite the fact that he "could
not point to a single piece of medical literature that says glue
fumes cause throat polyps"). To so hold would doom from the
outset all cases in which the state of research on the specific
ailment or on the alleged causal agent was in its early stages,
and would effectively resurrect a Frye-like bright-line
14
standard, not by requiring that a methodology be "generally
accepted," but by excluding expert testimony not backed by
published (and presumably peer-reviewed) studies. We have
held that the reliability analysis applies to all aspects of an
expert's testimony: the methodology, the facts underlying the
expert's opinion, the link between the facts and the
conclusion, et alia. See Paoli, 35 F.3d at 743-45. However,
not only must each stage of the expert's testimony be reliable,
but each stage must be evaluated practically and flexibly
without bright-line exclusionary (or inclusionary) rules.
In the actual practice of medicine, physicians do not wait
for conclusive, or even published and peer-reviewed, studies
to make diagnoses to a reasonable degree of medical
certainty. Such studies of course help them to make various
diagnoses or to rule out prior diagnoses that the studies call
into question. However, experience with hundreds of patients,
discussions with peers, attendance at conferences and
seminars, detailed review of a patient's family, personal, and
medical histories, and thorough physical examinations are
the tools of the trade, and should suffice for the making of a
differential diagnosis even in those cases in which peer-
reviewed studies do not exist to confirm the diagnosis of the
physician. The Federal Rules of Evidence recognize as much.
See, e.g., Fed. R. Evid. 703 advisory committee's note ("[A]
physician in his own practice bases his diagnosis on
information from numerous sources and of considerable
variety . . . . The physician makes life-and-death decisions in
reliance upon them. His validation, expertly performed and
subject to cross-examination, ought to suffice for judicial
purposes.").
We repeat that all of these reliable methods for making a
diagnosis cannot sanitize an otherwise untrustworthy
conclusion. See Paoli, 35 F.3d at 745-46; see also Joiner, 118
S. Ct. at 519 ("A court may conclude that there is simply too
great an analytical gap between the data and the opinion
proffered."). In this case, however, there is certainly evidence
in the record--from Shaw's own records and from reliable
studies--that carpets emit VOCs and that VOCs can cause
15
certain health problems. This might be sufficient to give Dr.
Papano "good grounds" for making his conclusion, even
though the District Court (or a jury) may not agree with that
conclusion. Therefore, to the extent that the District Court
excluded Dr. Papano's testimony on the basis that it was not
grounded in scientific studies, it erred. However, it was not
necessarily error to exclude Dr. Papano's causation
conclusion as unreliable if he relied on no scientific studies
and the remaining foundation for his conclusion was shaky.
2. Dr. Papano's Differential Diagnosis
The District Court also found it important that Dr. Papano
"failed to rule out all alternative possible causes of Carol
Heller's illness." Heller, 1997 WL 535163, at *16 (emphasis
added). Applying plenary review, we hold that this is a more
stringent standard for a medical expert's differential diagnosis
than is required under Rule 702. A medical expert's
causation conclusion should not be excluded because he or
she has failed to rule out every possible alternative cause of
a plaintiff's illness. As Professor Capra, Reporter to the
Advisory Committee on the Federal Rules of Evidence, has
put it:
[T]o require the experts to rule out categorically all other
possible causes for an injury would mean that few
experts would ever be able to testify . . . .
. . . Obvious alternative causes need to be ruled out.
All possible causes, however, cannot be and need not be
eliminated before an expert's testimony will be admitted.
Daniel J. Capra, The Daubert Puzzle, 32 Ga. L. Rev. 699, 728
(1998).
Differential diagnosis, as we noted in Paoli, is "the basic
method of internal medicine." Paoli, 35 F.3d at 755. Dr.
Papano engaged in this basic method in a reliable manner,
ordering standard laboratory tests, physically examining the
16
plaintiff, taking medical histories, and considering alternative
causes of the plaintiff's illness. See id. at 755, 758. That he
used this technique to "testify to a novel conclusion" is not
sufficient grounds for excluding his testimony. Id. at 759
n.27. Dr. Papano was not required to rule out all alternative
possible causes of Heller's illness. Rather, only "where a
defendant points to a plausible alternative cause and the
doctor offers no explanation for why he or she has concluded
that was not the sole cause, that doctor's methodology is
unreliable." Id.
When cross-examining Dr. Papano at the Daubert hearing,
Shaw offered a number of plausible alternative causes,
including dust from other carpets, benzene and 2-
butoxyethanol from other sources, and paint and new
hardwood floors in the house. Dr. Papano did not offer
detailed explanations for why he concluded that these were
not the causes of plaintiff's illness, but his responses,
grounded in the alleged temporal relationship, the results of
Todd's testing showing a reduction in VOCs when the carpet
was removed, and Heller's medical history and physical
examination, certainly are more than "no explanation." See,
e.g., App. at A602 (Dr. Papano's discussion of his
consideration of other possible causes). Had the District
Court applied the proper standard for evaluating a differential
diagnosis, we might conclude that it had not abused its
discretion in finding that Dr. Papano's responses were
inadequate, but it did err in requiring him to "rule out all
alternative possible causes."
As we concluded in Paoli, a physician need not conduct
every possible test to rule out all possible causes of a
patient's illness, "so long as he or she employed sufficient
diagnostic techniques to have good grounds for his or her
conclusion." Paoli, 35 F.3d at 761. More recently, we held
that a district court erred in excluding expert medical
testimony because a defendant's suggested alternative causes
(once adequately addressed by plaintiff's expert) affect the
weight that the jury should give the expert's testimony and
not the admissibility of that testimony. See Kannankeril, 128
17
F.3d at 808. In Kannankeril, we held that even absent hard
evidence of the level of exposure to the chemical in question,
a medical expert could offer an opinion that the chemical
caused plaintiff's illness. See id. at 809. The medical expert
there relied primarily on the temporal relationship and the
nature of the plaintiff's complaints, as in the present case.
While the potential harm of the chemical in that case was
clearer than in this case, there was also some information
indicating that there may not have been a harmful level of the
chemical in Kannankeril's home. Nonetheless, we emphasized
that the district court should take care not to "mistake
credibility questions for admissibility questions." Id. If the
medical expert's "opinion on causation has a factual basis
and supporting scientific theory" that is reliable, it should be
admitted. Id.
3. Temporal Relationship
Neither Heller nor Dr. Papano disputes the absence of
definitive studies establishing the level at which the VOCs
detected in the Heller home could cause respiratory illnesses
such as those Heller experienced. Nor do they dispute that
studies linking Shaw carpeting to such illnesses do not exist.
Rather, they rely heavily on the temporal relationship
between the installation of the carpeting and the onset of
Heller's illness, as well as the fact that she appeared to
improve in health when she was away from her home. As we
noted in Part III.A.1 supra, we do not believe that the lack of
studies linking an alleged defective product to a plaintiff's
illness is fatal to a plaintiff's case on causation. However, as
noted, some reliable basis for a causation conclusion must
exist--and here, that basis was largely the alleged temporal
relationship between the installation (and removal) of the
Shaw carpet and the presence of Heller's illness.
The District Court relied on three major weaknesses in the
temporal relationship to find Heller's burden to prove
causation unmet. We review the factual findings of the
District Court for clear error and can find none, as the
18
background facts to its critique of Dr. Papano's temporal
conclusion are undisputed: (1) the Shaw carpeting was
installed in the Heller home in mid-December 1993; (2) Carol
Heller first experienced respiratory problems no earlier than
late December 1993; (3) Mr. and Mrs. Heller experienced
renewed symptoms upon returning to the home in May 1994,
almost a week after the carpet had been removed; and (4)
although Dr. Papano originally relied on the same temporal
relationship to conclude that the carpeting was the cause of
Thomas Heller's illness, Mr. Heller actually experienced his
symptoms prior to the installation of the Shaw carpet.
In reaching its legal conclusion regarding the temporal
relationship, the court first noted that Heller did not
experience symptoms until at least two weeks after the Shaw
carpeting was installed.7 Dr. Papano himself testified that a
reaction to VOCs in the home would typically occur within 24
hours of exposure to the VOCs. See App. at A638. While
Heller contends that this can be explained by her use of an
upstairs bedroom (rather than the downstairs master
bedroom) after the Shaw carpet was first installed, she
admitted that both of these rooms contained the Shaw carpet.
Not only did Heller's symptoms not appear until at least
one or two weeks after the Shaw carpeting was installed, but
they remained after the carpet was removed in May 1994.
The District Court properly faulted Dr. Papano's testimony for
not accounting for this fact as well. Plaintiff attempts to
explain this weakness in the temporal relationship by
reference to the "sink" effect, by which VOCs sink into objects
other than the ones from which they are emitted and then are
re-emitted at later times. See Appellants' Br. at 21 n.6. This
explanation is dubious, however, as the air was actually
_______________________________________________________
7. Plaintiff relies on the testimony of her other expert, Alan
Todd, to establish the level of VOCs at the time the carpet was
installed in mid-December. While we find serious problems with
his calculations, see infra Part III.B.2, we note that the level
of VOCs in mid-December would appear immaterial, as Heller did
not experience any adverse reactions until at least one or two
weeks later, when, according to plaintiff's own experts, the
level of VOCs would be substantially lower.
19
measured on the day Heller returned to the home and
experienced renewed symptoms--and there were virtually no
VOCs present at that time. Further, this "sink" effect theory
was disavowed by Heller's own environmental expert. See
App. at A882-883. Most importantly, it is not evident that Dr.
Papano relied on any "sink" effect or any other explanation
for why Heller continued to suffer ill effects from the Shaw
carpeting after it had been removed from the house. Finally,
the District Court noted that Dr. Papano's temporal analysis
failed to explain why Thomas Heller (who Dr. Papano also
concluded suffered ill effects from the Shaw carpet) exhibited
allergy symptoms prior to the installation of the Shaw carpet.
These weaknesses, according to the District Court,
"disprove the existence of a temporal relationship." Heller,
1997 WL 535163, at *17. While we review such a conclusion
for abuse of discretion, as noted above, our review of the
court's legal analysis--i.e., whether it properly followed Rule
702 as prescribed in Daubert and Paoli--is plenary. The
court's analysis of the temporal relationship included the
criticism that "plaintiffs proffer no statistical evidence to show
the existence of a statistically significant correlation" between
the Hellers' symptoms and their exposure to the Shaw carpet.
Id. However, a physician's diagnosis, based in part on a
strong temporal relationship between symptoms and
exposure, need not necessarily be supported by "a
statistically significant correlation." What is required is that
the physician have "good grounds" for his or her diagnosis.
See Paoli, 35 F.3d at 744 (noting that, even if the judge
believes "there are better grounds for some alternative
conclusion" and that there are some flaws in the expert's
methods, if there are "good grounds" for the expert's
conclusion, it should be admitted). Further, when the
temporal relationship is strong and is part of a standard
differential diagnosis, it would fulfill many of the
Daubert/Paoli factors. See id. at 742 n.8.
Here, however, we have no problem concluding that the
temporal relationship between the exposure to the Shaw
carpeting and the onset of Heller's illness was questionable
20
at best and exculpatory at worst. While the district court may
not reject an expert's conclusion simply because the court
finds it wanting, it is surely within the court's province to
ensure that the conclusion, particularly a medical expert's
ultimate conclusion on causation, "fits" with the data alleged
to support it. See id. at 746 ("[T]he expert's view that a
particular conclusion 'fits' a particular case must itself
constitute scientific knowledge . . . ."). Had the Hellers
experienced a prompt reaction at the time the Shaw carpeting
was installed in mid-December 1993, and had they suffered
no reaction upon return to their home after the Shaw carpet
was removed in May 1994, this would be the type of temporal
relationship that might reliably support a conclusion that the
carpet was the cause of plaintiff's illness. However, that is not
the case here.
4. Dr. Papano's Testimony: Summary and Conclusion
We have explained that the District Court erred to the
extent that it required Dr. Papano's testimony to be backed
by scientific studies linking the type and level of VOCs
detected in the Heller home to Heller's illness, and to the
extent that it required Dr. Papano to rule out all other
possible causes of Heller's illness before concluding that the
Shaw carpet was the cause. The District Court could,
however, properly consider the fact (rather than requiring it
as a prerequisite to admissibility) that Dr. Papano relied on
few, if any, studies linking exposure to the VOCs allegedly
emitted by the Shaw carpet to the illnesses suffered by Heller.
It could also properly consider Dr. Papano's (weak) responses
to Shaw's proffered alternative theories on the cause of
Heller's illness in evaluating whether he truly had "good
grounds" to arrive at the causation conclusion he reached.
Dr. Papano relied extremely heavily on the temporal
relationship between the installation of the carpet and
Heller's illness, and the District Court did not err in
concluding that this relationship was unreliable. Without
either scientific studies pointing to VOCs of the type and
21
amount detected as the culprit or a reliable temporal
relationship, Dr. Papano was left with no valid means for
concluding that the Shaw carpet was the cause of Heller's
illness. Dr. Papano's conclusion had to "fit" with the data and
the methodology that precedes it. See Paoli, 35 F.3d at 746.
Even if the data (e.g., the medical history, the laboratory
studies, evidence of VOCs in the Heller home) and the
methodology (i.e., the differential diagnosis) were reliable, the
District Court did not err in finding that the conclusion Dr.
Papano reached did not reliably flow from this data and
methodology. Under these circumstances, the District Court
did not abuse its discretion in ultimately deciding to exclude
Dr. Papano's testimony regarding the cause of Heller's
illness.8
B. Alan Todd
Plaintiff's second expert witness, Alan Todd, of Todd
Environmental Consultants, opined in his initial expert report
that "the illness[es] suffered by the Heller family were caused
_______________________________________________________
8. We add that the District Court should not necessarily have
excluded all of Dr. Papano's testimony. In many cases, a treating
physician whose methods and data are reliable, but whose
causation conclusion is excluded as unreliable, may still have
other reliable testimony to offer. In such a case, the medical
expert should be permitted to "testify about his examination of
[the plaintiff], the tests he conducted, and the diagnosis he
reached," Moore, 151 F.3d at 273, as these are all based on
reliable methods. See also Cavallo, 892 F. Supp. at 770 ("There
is no question that Dr. Bellanti is qualified to testify
regarding the nature of Ms. Cavallo's illnesses . . . . Rather,
the focus of the dispute is whether his opinion regarding the
cause of these illnesses is scientifically valid and therefore
admissible under Daubert." (first emphasis added)). Thus, even if
it was proper to exclude Dr. Papano's expert testimony regarding
the cause of Heller's illness, as we conclude it was, testimony
as to his examination and treatment of her illness was almost
certainly relevant and reliable. It would be relevant to at least
one of the elements in most of Heller's claims, i.e., whether or
not she suffered an injury (as well as the extent of her
injuries, a relevant factor in any damages analysis). Of course,
without Dr. Papano's causation testimony, summary judgment may
still have been warranted--and we conclude that it was--because
without it there was insufficient evidence of causation to get to
the jury.
22
by their prolonged exposure to the VOC's measured in their
home and emitted by the carpeting manufactured by Shaw
Industries." Todd based his conclusion on his testing of the
air in a closet of the Heller home in which the Shaw carpet
had been installed, and on his extrapolation from the results
of these closet tests. He thereby estimated the level of VOCs
emitted by the Shaw carpet at the time it was installed,
approximately four months prior to his testing. We note
preliminarily that we are doubtful that a non-medical expert
such as Todd is qualified to testify as to the cause of
someone's illness.9 We need not address that issue here,
however, because we conclude that the District Court did not
abuse its discretion in excluding Todd's extrapolations as
being unreliable so that any arguable basis for Todd's
causation conclusion was missing, making it appropriate for
the District Court to exclude Todd's causation testimony.
Todd is a certified industrial hygienist, who consults on
environmental problems in occupational and residential
settings. His qualifications were not challenged by defendant,
though as we discuss below, his methodologies were
thoroughly attacked. Because Heller must show that her
exposure to VOCs was at a greater level than "the normal
'background' level," Paoli, 916 F.2d at 860-61, and that this
exposure came from defendant's carpet, see id. at 860, Todd's
testimony was necessary for her to survive summary
judgment. Todd testified that, at the time the Shaw carpet
was installed (December 13-14, 1993), the level of benzene in
the air in the Heller home was approximately 1712 parts per
billion ("ppb"), and that this benzene came from the Shaw
carpet. He also estimated that, at that time, the level of other
VOCs was approximately 11,469 ppb, and that these VOCs
_______________________________________________________
9. While Todd was knowledgeable about studies on VOCs and
illness, and on recommended maximum occupational VOC levels, he
is not a physician and did not examine the Hellers nor discuss
with them their symptoms or their medical histories. Thus,
whatever his qualifications for testifying about the source and
level of VOCs in the Hellers' house or his expertise regarding
dangerous levels of VOCs, his qualification to offer an opinion
on the ultimate cause of the Hellers' illnesses is another
matter.
23
came from the Shaw carpet. If his methodologies were
reliable, and his application of these methodologies to the
facts of the case was reliable, his conclusion that there were
VOCs, emitted from Shaw's carpet, at levels higher than
background levels could support a proper medical diagnosis
that the Shaw carpet caused the plaintiff's illness.
1. Subtraction Methodology10
Todd's method for determining the source and level of
VOCs in the Heller house was to take air samples in a
bedroom closet before and after the Shaw carpet had been
removed from the house (and the closet). Comparing the two
measurements, he determined the amount of VOCs emitted
by the Shaw carpet, the only item present for the first test
and absent for the second one. If the methodology for
collecting air samples and for measuring the VOCs present in
the air was valid and reliable, and the difference in the level
of VOCs was significant, this part of Todd's testimony would
be probative of whether or not the Shaw carpeting emitted
VOCs, and should have been admitted.
While the District Court faulted Todd's subtraction
methodology on a number of counts, we uphold its decision
to exclude this testimony largely because the conclusions
Todd reached could not reliably flow from the data and
methodology he used. We first consider the District Court's
criticisms of Todd's subtraction methodology (not all of which
we find warranted) before turning to our own critique of his
testimony.
The District Court found that the studies cited by Todd for
the proposition that carpet such as Shaw's could cause
Heller's illness did not support this conclusion. See Heller,
1997 WL 535163, at *9. We address this aspect of the matter
_______________________________________________________
10. Although not so labeled by Todd, the parties and the
District Court utilized the terms "subtraction methodology" and
"back-extrapolation methodology" to describe Todd's two major
methodologies. For the sake of consistency, we will do likewise.
24
in the margin, for, given our ultimate conclusion, we need not
decide whether the District Court's analysis of the studies
was an appropriate factor in determining whether Todd's
subtraction methodology itself was valid and reliable.11
In addition, although Todd testified that he used an
accepted methodology for collecting the air samples and
described this method in detail, Shaw and the District Court
criticized him for not using some other test, specifically a
closed chamber laboratory test. While the latter is an
accepted test for measuring compounds in new carpet, it is
neither the only nor necessarily the best test for measuring
VOCs from carpet already installed in a home. Further, the
record provides ample evidence that laboratory tests and on-
site tests produce similar results, see, e.g., App. at A88, and
defendant's own expert conducted on-site tests in a number
of carpet-emission studies, see id. at SA0892, SA1013,
SA1030. That expert also admitted using in a prior study
essentially the same "subtraction method" used by Todd. See
_______________________________________________________
11. In our view, the record can be read to support Todd's claim
that carpeting such as Shaw's can emit some of the VOCs detected
in the Heller home and may cause illnesses similar to those
suffered by Heller after prolonged exposure. In any event, we do
not believe that unequivocal studies are required before a
qualified expert may opine that a product emits a certain
compound or causes a certain irritation, if the basis for the
opinion is otherwise reliable and scientifically valid.
Further, this aspect of Todd's testimony was based on first-hand,
field testing of the object in question--the Shaw carpet. If Todd
was qualified to conduct such tests, and if his means of
collecting air samples was scientifically valid and the initial
conclusion he drew--that the Shaw carpet was the source of a
certain level of VOCs--was reliably drawn from the field testing,
this testimony would be both reliable and relevant. We note that
this is not a case in which a party sought to avoid the
application of Daubert by labeling such testing "non-scientific."
See, e.g., Carmichael v. Samyang Tire, Inc., 131 F.3d 1433, 1435-
36 (11th Cir. 1997) (finding that testimony based on "skill- or
experience-based observation," rather than on "application of
scientific principles or theories," was not subject to Daubert),
cert. granted sub nom. Kumho Tire Co. v. Carmichael, 118 S. Ct.
2339 (1998). Here, plaintiff argued that Todd's testimony met the
requirements of Daubert in that it was reliable and valid.
25
id. at A1152-1157.12 Properly performed, such on-site tests
would appear to meet most of the factors suggested in
Daubert and Paoli.
Finally, the District Court placed great weight on Todd's
alleged failure to "insure that other variables did not [affect]
the air sampling tests." Heller, 1997 WL 535163, at *12.
However, Todd testified that the contents of the closet (and
the house) remained constant and that the environmental
conditions in the house were essentially static (i.e., no
persons came or went, the windows were not opened, the rate
of air flow was not changed, etc.). While it is true that the
concentration of VOCs is affected by more than the emission
from a source such as carpeting, a substantial decline in the
amount of VOCs would constitute strong (and reliable)
evidence that at least some of these VOCs were coming from
the Shaw carpet--the only item that was removed before the
lower readings were taken.
Our decision does not turn, however, on the validity of
Todd's air sampling methodology, i.e., on whether the testing
was unreliable because he did not conduct different tests or
did not control for other possible sources of VOCs. This is
because the District Court was correct to question the
reliability of Todd's conclusions. The level of VOCs detected
by Todd's closet tests, even if they could all be attributed to
the Shaw carpet, were substantially lower than any amounts
ever known or believed to cause illnesses in humans; in fact,
_______________________________________________________
12. The court also faulted Todd's testimony because he "did not
conduct further tests to ascertain whether changes in the levels
of VOCs were attributable to the removal of the carpet or whether
the changes were attributable to the natural fluctuation in VOC
levels within the home." Heller, 1997 WL 535163, at *12. It is
not clear what "further tests" the District Court would have
required. Todd did not take snapshot tests at single moments,
which would have been subject to natural fluctuations and random
error; such tests likely would not be reliable enough to meet
the Daubert standard. Rather, Todd took air sample readings over
eight hours on one day, with the carpet present, and then took
readings for eight hours on a second day, without the carpet
present. Such prolonged readings may be sufficient to account for
"natural fluctuations in VOC levels."
26
they appear to be extremely close to the background amounts
(i.e., the levels naturally occurring in the air) for each of the
VOCs.13 A number of studies cited by the parties and
contained in the record have concluded that any ill effects
from these particular VOCs (and related ones) only occur at
much higher levels than those found in the Heller home. See,
e.g., App. at SA0835-0840 (finding basic irritation at 50-750
ppb of VOCs; headaches at 750-6250 ppb; and additional
neurotoxic effects at levels above 6250 ppb); id. at A126
(reporting pulmonary irritation at 275 ppb; slight sensory
irritation at 600 ppb); id. at SA0210 (finding that persons
exposed to 25,000 ppb of benzene for eight hours
demonstrated no acute effect). Another major study found
that the background levels of benzene averaged 5 ppb overall
and about 3 ppb indoors, see id. at SA0200, actually above
the levels (2.2 ppb) detected in the Heller home in April, when
the Shaw carpet was still in the house.14
_______________________________________________________
13. We note that a number of the VOCs allegedly attributable to
the Shaw carpet were detected at levels well below the maximum
amounts recommended by various federal agencies and professional
groups. For example, only 2.22 ppb of benzene was detected in
April 1994; the lowest suggested limit for exposure to benzene is
500 ppb. Other VOCs detected in the closet, with the maximum
amount attributable to the Shaw carpet and the lowest recommended
limit, include:
VOC Amount Found Recommended
(in ppb) Limit (in ppb)
2-Butoxyethanol 5.60 20,000
Carbon Tetrachloride 0.13 2,000
Cumene 0.11 50,000
Methyl Chloroform 0.09 200,000
See Richard J. Lewis, Sr., Hazardous Chemicals Desk Reference
113, 180, 235, 318, 745 (4th ed. 1997). We note that these limits
are for long-term occupational exposure and assume exposure at
these levels for 40 hours per week, indefinitely.
14. Unfortunately, comparing these studies and industry
documents to Todd's findings can be difficult, as the latter are
reported in terms of ppb (parts per billion), while many of the
studies and industry documents measure air concentration in mg/m3
(milligrams per cubic meter) or ug/m3 (micrograms per cubic
meter). The conversion from one to the other is
27
Todd attempted to address this shortcoming in his
testimony by dividing the suggested occupational limits by
420, based on two assumptions whose validity is problematic.
First, because the limits are based on a 40-hour work week
and there are potentially 168 hours per week in which a
person could occupy her home (if she never left), Todd
reduced the limits by 4.2. Then, because the occupational
limits are based on an average healthy adult, Todd testified
that it is standard practice to reduce these limits further by
a factor of 100, to account for the fact that homes include
children, older adults, unhealthy persons, etc. As a result, he
opined that the limit for exposure to benzene in the home is
actually approximately 1.2 ppb (i.e., 500 ppb / 420), slightly
lower than the amount attributable to the Shaw carpet.
This methodology is suspect. In one study in the record,
the American Society of Heating, Refrigeration, and Air
Conditioning Engineers ("ASHRAE") is cited as recommending
a maximum level of contaminants arrived at by dividing the
OSHA limit by 10, see App. at SA0860-0861, for essentially
the same reason that Todd gave for dividing the permissible
limits by 420. The OSHA limit for benzene is 1000 ppb; the
ASHRAE limit, then, would be 100 ppb, still well above the
amount detected in the Heller home in April (2.22 ppb). The
OSHA limit for 2-butoxyethanol is 25,000 ppb, making the
ASHRAE limit 2500 ppb, significantly higher than the
amount detected in the Hellers' house (5.60 ppb). At all
events, even if the methodology is valid, the levels measured
in April (the earliest period at which Todd actually took air
concentration measurements) do not even approach the
(modified) recommended maximums for any of the other
VOCs.
Thus, while the closet tests conducted by Todd were not
necessarily unreliable, because the level of VOCs detected
_______________________________________________________
different for every compound. For benzene, it is about 3 ug/m3 for every
1 ppb; for other compounds, it ranges from about 3 ug/m3 for every 1 ppb
to 7 ug/m3 for every 1 ppb. For the sake of analyzing Todd's
testimony, we have made rough conversions, using 4 ug/m3 for
every 1 ppb. No difference in outcome would result from using
another conversion equation.
28
and (arguably) attributable to the Shaw carpet were so low
and so close to background levels, the District Court did not
abuse its discretion in excluding Todd's testimony that the
Shaw carpet was emitting VOCs sufficient to cause Heller's
illness--a conclusion that was unreliable if based on the
closet tests alone. Todd, however, attempted to reinforce his
closet tests--and to provide a stronger foundation for his
opinion about the dangerous level of VOCs in the house--by
introducing his back-extrapolation methodology in a
supplemental expert witness report (issued in March 1997,
following his original January 1997 report). We turn to this
aspect of his testimony.
2. Back-Extrapolation Methodology
If Todd's sampling of the air in the closet: (1) was reliable
and adequately controlled for factors other than the Shaw
carpet, and (2) demonstrated that the Shaw carpet was
emitting VOCs at potentially harmful levels, his testimony
would be sufficiently reliable to meet the Daubert standard
and hence would be admissible. While we believe that the
first proposition may be true, as noted above, the closet tests
themselves fail to demonstrate the second. If it was possible
to use the results of the closet tests to estimate, in a
scientifically valid way, the level of VOCs emitted by the
carpet at some earlier time, and if these estimated levels were
potentially harmful, again, Todd's testimony would be reliable
and relevant. We express no opinion as to whether
extrapolation back in time, using known levels of compounds
and a scientifically valid mathematical formula for the
extrapolation, would meet the standards of Rule 702 and
Daubert. Cf. Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161
F.3d 77, 85 (1st Cir. 1998) (approving of a back-extrapolation
and half-life methodology that "has been subjected to, and
survived, the rigors of testing, publication, and peer review,
and . . . appears to have won significant (if not universal)
acceptance within the scientific community"). Here, however,
it is clear that Todd's formula for his extrapolation was based
29
on speculation and estimation that was subject to gross
error, and that the District Court did not abuse its discretion
in excluding Todd's testimony based on the back-
extrapolation.15 Indeed, we doubt that Todd's back-
extrapolation methodology would meet even one of the eight
suggested factors from Daubert and Paoli.
Heller argues that the back-extrapolation method is "a
standard reversibility of chemical processes equation,"
Appellants' Br. at 27, but provides no support for the
reliability of Todd's equation or for the suggested relationship
between chemical half-lives and the level of VOCs in the air.
Todd's back-extrapolation method relies on at least three
questionable assumptions: (1) the concentration of VOCs in
the air declines exponentially by half-lives (i.e., the level of
VOCs are cut in half every X days or weeks or years); (2) the
half-life of VOCs in the air can be estimated based on
information on the decay curve of VOC emissions from
carpets; and (3) the concentration of VOCs in the air is not
affected by anything other than its natural half-life decline.
None of these assumptions, however, appears supported by
reliable scientific methods or the reliable application of any
valid theory. In fact, Todd admitted as much in his own
testimony and expert report. See, e.g., App. at A350-351,
A761-762; id. at SA0247 (Todd's Expert Report: "The precise
magnitude of difference quantitatively in off-gassing
emissions at the carpet between April 1994 and December
1993 is not readily evident from the published literature and
or studies conducted by the rug manufacturers or their trade
associations."). In fact, numerous published studies and
industry documents consistently demonstrate that the actual
rate of decline of emissions from carpet is nothing like a half-
_______________________________________________________
15. Plaintiff relies heavily on a Louisiana state case to
support Todd's back-extrapolation theory. See Appellants' Br. at
38-40. The judgment in that case, however, has been reversed and
a new trial ordered, specifically because the trial court failed
to hold a Daubert hearing and to find whether the Daubert
criteria were met, as required by Louisiana law. See Caubarreaux
v. E.I. duPont de Nemours, 714 So. 2d 67, 71-72 (La. Ct. App.
1998).
30
life progression. See, e.g., id. at A128, A145, A242, A248-250,
A268-270, SA0860, SA0956, SA1020. Rather, emissions
decline rapidly in the first hours and days after installation,
reaching a level of about 10% of the original emission rate in
only one week and as low as .05% of the initial emission rate
in only one month. The differences between the emission
rates indicated in these studies and those estimated by
Todd's back-extrapolation theory are fairly substantial. (We
express them graphically in the margin.16) For example,
under Todd's theory, about ten days after installation of new
carpet, VOCs would remain at levels approximately 50% of
their initial level, while the studies in the record indicate that
the levels would actually be less than 10% of their initial
level. Within three weeks of installation, under Todd's theory,
_______________________________________________________
16
31
VOCs would be at 25% of their initial level, while the studies
show that carpet, at this point, is emitting only about 1% of
the initial amount of VOCs emitted at the time of installation.
In short, the VOC levels estimated by Todd greatly exceed
those which more likely existed, and follow a very different
curve. Therefore, the District Court properly exercised its
discretion to exclude this part of Todd's testimony.
Heller contends that even if Todd's "calculations were
imprecise, it is undisputed that the level of VOC emissions in
December 1993 were significantly higher than the VOC levels
measured in April 1994." Appellants' Br. at 10 n.2. The
problem with this argument, however, is that even if the
levels were higher in December 1993, the calculations of
plaintiff's expert were "imprecise" because his methodology
was unreliable, and therefore Heller has presented no reliable
evidence to demonstrate what the actual (or even reliably
estimated) level of VOCs was in December 1993. Without a
reliable method to determine how much higher the levels
were in December 1993, only the actually measured levels in
April 1994 are admissible evidence--and, as noted above,
these levels were far too low to prove that the Shaw carpet
was emitting harmful levels of VOCs.
There are other flaws in Todd's back-extrapolation
testimony that also support the District Court's decision to
exclude this testimony. First, Todd conflates emission rates
and air concentration rates in his analysis. All of the record
data on which Todd claims he relied to estimate his back-
extrapolation formula involve the declining emission rate:
VOCs are emitted at a certain rate at the time of carpet
installation; by 24 hours later, they are emitted at
approximately half this rate; by a week later, they are emitted
at approximately 10% the original rate, etc. The air
concentration of VOCs (which is what Todd measured in the
closet in April and May 1994, and used as the starting point
for his back-extrapolation) is a function of not only the rate
at which VOCs are emitted from the carpet to the air, but
also such factors as the rate at which VOCs dissipate in the
air, the size of the room or house in which the VOCs are
32
emitted, the molecular weight of the particular VOC, the rate
of air flow, the moisture, light, and air temperature in the
room, and other factors. See, e.g., John C. Little et al.,
Modeling Emissions of Volatile Organic Compounds from New
Carpets, 28 Atmospheric Env't 227 (1994) (describing
development of a model indicating that air concentration of
a VOC is a function of time, distance from carpet, diffusion
rate of the VOC, carpet thickness, air flow rate, carpet and
room area, and air volume). Therefore, to measure the air
concentration at one point in time (as Todd did) and to
attempt to estimate the air concentration four months earlier,
one would need to know (or have a good estimate of) each of
these factors, i.e., emission rates, room size, air flow,
dissipation rate of each compound, etc.--none of which Todd
considered in his back-extrapolation formula.
Second, there is at least one study in the record that
appears to indicate that while emission rates of VOCs decline
rapidly (see supra note 16), air concentration levels remain
fairly constant after an initial slight increase, making Todd's
conflation of these two factors even more problematic. See
Alfred T. Hodgson et al., Emissions of Volatile Organic
Compounds from New Carpets Measured in a Large-Scale
Environmental Chamber, J. Air & Waste Mgmt. Ass'n, Mar.
1993, at 316, 323 (describing study indicating that emission
rates of styrene and 4-phenylcyclohexene decline rapidly,
while air concentration rates fluctuate within a relatively
narrow range). Therefore, it is entirely plausible that the level
of VOCs in the air was not much higher in December 1993
than the very low level measured in April 1994, the only time
such VOCs were actually measured.
Finally, if one were to credit Todd's back-extrapolation
theory, it would actually invalidate his closet studies, thereby
eliminating the only basis for his opinion that the Shaw
carpet was the source of the VOCs in the Heller home. This
is because the decline in benzene and 2-butoxyethanol, two
of the key VOCs on which plaintiff rests her case, could be
explained almost entirely by the back-extrapolation theory,
eliminating the possibility that it was the removal of the
33
carpet that caused the levels of these VOCs to decline. Under
Todd's back-extrapolation theory, the benzene would be
expected to decline from 2.22 ppb on April 14, 1994, to
approximately 0.40 ppb on May 11, 1994, even without the
removal of the Shaw carpet; it actually declined to only 0.55
ppb. The 2-butoxyethanol would have been expected to
decline from 5.6 ppb to approximately 1.0 ppb; it actually
declined to 0.0 ppb, making the maximum amount
attributable to the removed carpet only 1.0 ppb--
substantially lower than the recommended limit of 20,000
ppb for this compound. The District Court noted this
inconsistency, see Heller, 1997 WL 535163, at *12, as did
Todd himself implicitly on cross-examination at the Daubert
hearing, see App. at A543, A886.
3. Todd's Testimony: Summary and Conclusion
Although we believe that the District Court may have been
overly critical of Todd's closet tests and that those aspects of
its unreliability finding may have been inconsistent with the
exercise of sound discretion, given the patent unreliability of
Todd's back-extrapolation theory and the fact that the closet
tests did not indicate levels of VOCs anywhere near the levels
found to cause illnesses in humans, we hold that the District
Court did not abuse its discretion in excluding all of Todd's
testimony. Cf. Paoli, 35 F.3d at 749 n.19 (noting that all of an
expert's testimony could be excluded as irrelevant if it no
longer assists plaintiff's case after certain parts are excluded
as unreliable).
IV. Summary Judgment
Without Dr. Papano's testimony on specific causation or
Todd's testimony on the allegedly higher levels of VOCs in
December 1993 (both of which we hold the District Court was
correct to exclude), the remaining expert testimony and other
evidence in the record are insufficient to create a material
issue on causation. We note that the District Court granted
34
summary judgment at least in part because "defendant's
carpeting is not the obvious cause of plaintiffs' illnesses."
Heller, 1997 WL 535163, at *18. This appears to place a more
stringent burden on plaintiff than is warranted at summary
judgment, but the District Court also relied on the total lack
of causation evidence absent the expert testimony, which is
a proper ground for summary judgment.
Certain of plaintiff's claims do not rely on the causal
connection between Heller's illness and the Shaw carpet to
survive. However, without Todd's testimony, plaintiff has
failed to offer admissible proof that the Shaw carpet was
defective. The only claim that does not require proof of either
the causal connection or defectiveness is plaintiff's
misrepresentation claim. We are satisfied, however, that the
District Court properly granted summary judgment on this
claim as well. See id. at *19 ("[T]here is no evidence of record
to support plaintiffs' assertion that they were injured by
reliance on [Shaw's] alleged misrepresentation.").
The order of the District Court granting summary judgment
to Shaw will be affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
35
| {
"pile_set_name": "FreeLaw"
} |
J-S30018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
FREDERICK D. COLLINS
Appellant No. 1265 WDA 2017
Appeal from the Judgment of Sentence April 26, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at Nos: CP-02-CR-0012275-2015,
CP-02-CR-0013218-2015, CP-02-CR-0013234-2015,
CP-02-CR-0013236-2018, CP-02-CR-0013238-2015,
CP-02-CR-0013685-2015
BEFORE: BENDER, P.J.E., STABILE, J. AND STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED JULY 16, 2018
Appellant, Frederick D. Collins, appeals from his judgment of sentence
for a series of felonies. Appellant argues that the trial court erred in denying
his presentence motion to withdraw his nolo contendere plea and abused its
discretion in sentencing him to an aggregate of 25-50 years’ imprisonment.1
We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The trial court sentenced Appellant to the following consecutive terms of
imprisonment: at CP-02-CR-0012275-2015, 4-8 years for terroristic threats
(18 Pa.C.S.A. § 2706); at CP-02-CR-0013234-2015, 5-10 years for persons
not to possess firearms (18 Pa.C.S.A. § 6105); at CP-02-CR-0013236-2015,
5-10 years for persons not to possess firearms; at CP-02-CR-0013238-2015,
5-10 years for aggravated assault (18 Pa.C.S.A. § 2702); and at CP-02-CR-
0013685-2015, 6-12 years for intimidation of witnesses or victims (18
Pa.C.S.A. § 4952).
J-S30018-18
Appellant was charged with a series of offenses arising from events
between July and October of 2015, when he was 34½ years old. On October
25, 2016, Appellant pleaded nolo contendere to multiple charges at the above
caption numbers. The trial court identified the charges and informed Appellant
of the maximum sentence for each offense, and Appellant acknowledged that
he understood the charges. N.T., 10/25/16, at 1-9. The Commonwealth
summarized the relevant facts as follows:
[H]ad we proceeded to trial [at CP-02-CR-0013234-2015], we
would have called officers from the City of McKeesport Police
Department, [and] they would have testified that on September
6th of 2015 at about 4:22 p.m., they were notified by Shona
Green that a male had pointed a gun at her. Shona’s neighbor,
Michelle Simpson, had asked Shona to go over to Michelle’s house
to feed her dog. When Shona Green went to the house, the door
swung open and [Appellant] was standing there pointing a silver
pistol at her and he said to her: What the fuck are you doing at
my house? I will fucking shoot you. So Shona then ran away.
Six minutes later . . . at [CP-02-CR-0013236-2015], West Mifflin
police received a dispatch about the prior incident, and Michelle
Simpson who stated that [Appellant] was on his way to Monview
Heights to kill her and everyone else. The officers arrived on
scene, observed a silver minivan exiting the front gate and they
pursued the van, initiated a traffic stop, and the officer asked who
the passenger was and he stated his name was Louis Ellis, [and]
they later identified him as [Appellant]. They identified the driver
as Daryl Waite who apparently was a jitney driver and Waite told
them that [Appellant] had entered the vehicle with a firearm, he
pulled the firearm and said take me to Monview. During the
drive[,] [Appellant] stated he was going to kill her, and Waite said
that . . . there was a firearm in the glove compartment which the
officer retrieved. There are two firearms charges [for] which we
would have provided the certificate of non-licensure. Then at the
lab, the firearm was identified as a .25–caliber Raven Arms pistol
912566, good operation, no barrel length in the report, but the
officer would testify it was less than 16 inches. As to the persons
not to possess, we would have introduced a certified conviction
-2-
J-S30018-18
for robbery of a motor vehicle and aggravated assault, November
19th of 2001, at CC 1999-14932.
* * *
In [CP-02-CR-0013218-2015], had this matter proceeded to trial,
the Commonwealth would have called witnesses from McKeesport
City Police Department, as well as the victim in this matter,
Michelle Simpson. The testimony would have been heard that on
or about July 16, 2015, in Allegheny County, that [Appellant]
threatened the victim as well as her juvenile daughter, who was
six years old at the time, that he would kill Michelle Simpson as
well as physically assault her six-year-old daughter. [Appellant]
also physically assaulted the victim Michelle Simpson by punching
her in the back of the head.
Moving on to . . . [CP-02-CR-0013685-2015], had this matter
proceeded to trial, the Commonwealth would have called officers
from the West Mifflin Borough Police Department, namely Officer
Joseph Hoffman, Officer Robert Fedor and Officer Michael Pintigh
. . . Further the Commonwealth would have called a witness who
was the victim, Michelle Simpson, as well as Magisterial District
Judge Richard Olasz. The testimony would have been heard that
on or about October 1, 2015, in the County of Allegheny that a
preliminary hearing was being held where [Appellant] was Mr.
Collins and the victim was Michelle Simpson, during the course of
that preliminary hearing, Mr. Collins became disorderly and was
removed from the hearing. On the way out of the hearing, he
threatened the victim Michelle Simpson and threatened to kill her,
put his hand in the shape of a gun. He further threatened to kill
Officer Joseph Hoffman and Officer Robert Fedor. Later, MDJ
Olasz was leaving the hearing. As he walked by the police car
where [Appellant] was being held, [Appellant] threatened Judge
Olasz and said that he would kill him as well. At this time he was
currently at preliminary hearing facing charges of felonies of a first
degree for a prior assault on Michelle Simpson. While in the police
car [Appellant] was handcuffed, however, he was able to remove
his hands from a handcuff. During that time Officer Joseph
Hoffman and Officer Robert Fedor were present. [Appellant]
physically resisted their arrest resulting in them deploying their
Tasers at him. Further, while [Appellant] was in the police car he
did defecate and damage the police car with the feces.
-3-
J-S30018-18
Moving on to [CP-02-CR-0013238-2015,] had this matter
proceeded to trial, the Commonwealth would have called
witnesses from the City of McKeesport Police Department, as well
as the victim in this matter, Michelle Simpson. Had this matter
proceeded to trial, the testimony would have been heard that on
or about September 5, 2015, that [Appellant] physically assaulted
Michelle Simpson with a firearm, striking her in the face with it.
Further, he threatened both her and her 7-year-old daughter who
was asleep on the couch with her with the firearm, threatening to
kill both of them.
* * *
[H]ad [CP-02-CR-0013275-2015] proceeded to trial on . . . three
. . . counts of terroristic threats, the Commonwealth would have
called officers from the West Mifflin Borough Police Department,
as well as the victim in this matter, Michelle Simpson, as well as
Jason Steward. Here testimony would have been heard that on
or about September 6, 2015, that [Appellant] had threatened the
three victims, to kill all of them. Mr. Steward was currently in a
relationship with Ms. Simpson, and Ms. Simpson’s daughter was
present when [Appellant] threatened to kill all of them.
N.T., 10/25/16, at 9-15.
The trial court accepted Appellant’s nolo contendere plea as knowing,
voluntary and intelligent, adding that Appellant could receive a maximum of
203 years’ imprisonment. Id. at 15.
On April 26, 2017, Appellant appeared for sentencing. At the beginning
of the hearing, defense counsel, Carl Marcus, Esquire, informed the court that
both he and Appellant wished for Attorney Marcus to withdraw from
representation, and that Attorney Marcus had filed a motion to withdraw. The
following exchange ensued:
The Court: Okay. First of all, there is no reason to withdraw until
- - there is no petition to withdrawn until after sentencing and
-4-
J-S30018-18
when you put in your appearance you represent a client through
the trial and through sentencing.
Mr. Marcus: I understand.
The Court: So I’m asking you to represent him through
sentencing. I will appoint someone else if you still wish to
withdraw at the end of sentencing.
N.T., 4/26/17, at 3. Appellant then asked to withdraw his plea as follows:
[Appellant]: Ms. McDaniels, I will not ---
The Court: Address me as judge is a pretty good place to start.
[Appellant]: Judge McDaniels, I did not enter a guilty plea or a
nolo contendere plea of my own free will. He told me if I entered
the plea in January, you would sentence me to two to four years.
I came over here in January, my sentence was postponed until
today. I do not want a guilty plea. I was coerced. I didn’t enter
it on my own free will.
The Court: Well, I’ve reviewed the transcript and the transcript
says that you were not forced or —
[Appellant]: If you sentence me, I’m going to blow your fucking
face off.
The Court: Okay. I will say for the record that in your mitigation,
the only thing that I found - -
Deputy Sheriff: You’ve got to wait until the Judge is done, sir.
The Court: -- is that you did enter a plea of nolo contendere. You
apparently as a child - -
[Appellant]: I don’t give a flying fuck. If you sentence me, I’m
going to blow your fucking face off and your grandchildren, too.
You fucking, dick-eating bitch, do you not understand that? I
don’t have a fuck you about her being no judge. Do you not
understand that? I will shove a fucking curling iron up your
fucking granddaughter’s fucking pussy. Do you understand me?
-5-
J-S30018-18
The Court: Okay. [Appellant] will be removed from the courtroom
for obvious reasons. I’ll let you know what your sentence is.
[Appellant]: Suck my dick you fucking bitch.
The Court: Well, I would rather not.
Id. at 3-4. The trial court then imposed the sentence described above.
On May 4, 2017, through Attorney Marcus, Appellant filed post-sentence
motions. Subsequently, through new counsel, Appellant filed amended post-
sentence motions. On August 31, 2017, the trial court denied post-sentence
relief. This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises two issues in this appeal:
1. Whether the trial court erred in denying [Appellant’s] oral, pre-
sentencing request to withdraw his pleas of nolo contendere?
2. Whether the trial court’s aggregate sentence of twenty-five
(25) to fifty (50) years of incarceration was manifestly excessive
and an abuse of discretion?
Appellant’s Brief at 5.
Courts treat motions to withdraw nolo contendere pleas in the same
manner as motions to withdraw guilty pleas. Commonwealth v. Miller, 748
A.2d 733, 735 (Pa. Super. 2000). Thus, as is the case when we review an
order denying a motion to withdraw a guilty plea, “we will not disturb the
court’s decision on such motion unless the court abused that discretion."
Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013). When the
defendant moves to withdraw his nolo plea before sentencing, “[a]lthough
-6-
J-S30018-18
there is no absolute right to withdraw a [nolo] plea . . . it is clear that a request
made [b]efore sentencing . . . should be liberally allowed.” Commonwealth
v. Forbes, 299 A.2d 268, 271 (Pa. 1973). Further, “[i]f the trial court finds
any fair and just reason, withdrawal of the plea before sentence should be
freely permitted, unless the prosecution [will be] substantially prejudiced.”
Id.
In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), our
Supreme Court, breaking from prior precedent, held that a bare assertion of
innocence is no longer a fair and just reason permitting a pre-sentence
withdrawal of a guilty plea. Instead, “a defendant’s innocence claim must be
at least plausible to demonstrate, in and of itself, a fair and just reason for
presentence withdrawal of a plea.” Id., 115 A.3d at 1292. The accused must
make “some colorable demonstration, under the circumstances, such that
permitting withdrawal of the plea would promote fairness and justice.” Id.
Just as bare assertions of innocence no longer provide sufficient reason
to withdraw a guilty plea prior to sentencing, neither do Appellant’s bare
assertions of “coercion” entitle him to pre-sentence withdrawal of his nolo plea
in the case at bar. Appellant made an unsupported claim that his attorney
“coerced” him into a nolo plea, and when the court began to express its
disagreement, he interrupted with a string of vile epithets and threats toward
the court. Through his own misconduct, Appellant prevented the court from
conducting a proper or rational evidentiary hearing on his motion. The court
-7-
J-S30018-18
properly exercised its discretion under these circumstances to proceed with
sentencing.
In his second argument, Appellant contends that the trial court abused
its discretion by imposing an aggregate sentence of 25-50 years’
imprisonment. Appellant presents a challenge to the discretionary aspects of
sentence.
“A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right.” Commonwealth v. Grays,
167 A.3d 793, 815 (Pa. Super. 2017). Before we can reach the merits of a
discretionary aspects challenge,
[w]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
[Pa.R.Crim.P. 720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id. at 815–16. Here, Appellant filed a timely notice of appeal, preserved this
issue in post-sentence motions, and included a statement in his brief in
compliance with Pa.R.A.P. 2119(f). Therefore, we must determine whether
Appellant has presented a substantial question that his sentence is not
appropriate under the Sentencing Code.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Caldwell, 117 A.3d
763, 768 (Pa. Super. 2015) (en banc). “While a bald claim of excessiveness
-8-
J-S30018-18
does not present a substantial question for review, a claim that the sentence
is manifestly excessive, inflicting too severe a punishment, does present a
substantial question.” Commonwealth v. Haynes, 125 A.3d 800, 807–08
(Pa. Super. 2015). Therefore, we shall consider the merits of Appellant’s
sentencing issue.
“In reviewing a challenge to the discretionary aspects of sentencing, we
evaluate the court's decision under an abuse of discretion standard.”
Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa. Super. 2011). Further,
“this Court’s review of the discretionary aspects of a sentence is confined by
the statutory mandates of 42 Pa.C.S.[A.] § 9781(c) and (d).”
Commonwealth v. Macias, 968 A.2d 773, 776–77 (Pa. Super. 2009).
Section 9781(c) directs:
The appellate court shall vacate the sentence and remand the case
to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S.A. § 9781(c).
-9-
J-S30018-18
Section 9781(d) directs that the appellate court, in reviewing the record,
shall have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
In the present case, Appellant committed a pattern of violent and
disturbing crimes, including (1) pointing a firearm at various victims; (2)
repeatedly threatening to kill his girlfriend, her little daughter, police officers,
and the judge who presided over his preliminary hearing; (3) striking his
girlfriend with a firearm; (4) resisting arrest, and (5) defecating in a police
vehicle. His prior criminal history is lengthy as well. The trial court
summarized Appellant’s background as follows:
[Appellant’s] prior [offenses] start[ed] in 2002 . . . with the charge
of possession with intent to deliver; a 2002 escape; 2002,
institutional vandalism; 2004, possession with intent to deliver
where he was sentenced to 4 to 8 years and maxed out, was
released from custody March 14th, of 2015; in 2015, there was a
conviction for flight, an additional conviction for open lewdness.
[Appellant] was in the community having been released from the
state correctional institution for approximately six months before
the instant arrest. His prior offenses began in [19]99 when he
was convicted of three counts of robbery and one count of escape.
His juvenile record began at age 12 and throughout his teenage
years he was in a series of placements through the juvenile court
facility, and was transferred back and forth because of physical
and verbal abuse.
- 10 -
J-S30018-18
[Appellant] admits to daily drug use. He has no job history.
[Appellant] has not done a single thing positive in his life. Family
support has been offered a number of times, he always turned his
back on it. And apparently he does better when he is in placement
and is forced to take his medication. [Appellant] has very little, if
any, mitigation in his behalf. He is a dangerous and violent
person. He frequently uses drugs and guns in his criminal activity.
He is an abuser both of his intimate partner as well as strangers.
I feel that he is not a candidate for rehabilitation. He’s been in jail
both in the state system and the county system and that has not
deterred any continued criminal relief. The record will reflect that
[Appellant] is not RRRI eligible.
N.T., 4/26/17, at 5-6. Appellant’s present and past crimes, along with his
shocking behavior at sentencing, establish that he is a violent and unstable
individual not susceptible to rehabilitation. Thus, the trial court acted within
its discretion in imposing a sentence of 25-50 years’ imprisonment.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2018
- 11 -
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978 P.2d 809 (1999)
90 Hawai`i 371
CREDIT ASSOCIATES OF MAUI, LTD., a Hawai`i corporation, Plaintiff-Appellee,
v.
Charles W. BROOKS and Donna J. Brooks, aka Donna J. Pagan Brooks, Defendants-Appellants.
No. 20895.
Supreme Court of Hawai`i.
May 20, 1999.
Andre' S. Wooten, on the briefs, Honolulu, for defendants-appellants.
Lynn A.S. Araki, on the briefs, for plaintiff-appellee.
MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and RAMIL, JJ.
Opinion of the Court by RAMIL, J.
In this debt collection case, plaintiff-appellee Credit Associates of Maui, Ltd. brought an action to collect a total of $11,092.59 against defendants-appellants Charles W. Brooks and Donna J. Brooks, aka Donna J. Pagan Brooks (collectively, Defendants). The district court denied Defendants' demand for trial by jury. On appeal, Defendants argue that the district court erred when it denied their demand for trial by jury because the amount in controversy exceeded $5,000.00. For the reasons discussed below, we hold that "the amount in controversy" for *810 purposes of HRS § 604-5(b) is the aggregate amount being sought in a complaint by a single plaintiff against a single defendant, as opposed to the amount alleged as damages in each individual "count" of a complaint. We therefore vacate the district court's findings of fact, conclusions of law, and order for entry of judgment filed July 9, 1997, and remand this case to the district court with instructions to grant Defendants' demand for trial by jury.
I. BACKGROUND
Plaintiff is a debt collection agency, the clients of which include GTE Hawaiian Telephone (GTE), Straub Hospital, Howard G. Barbarosh, M.D., LBJ Texaco, and Maui Medical Group. Between March 17, 1994 and November 27, 1995, each of these clients assigned various debts allegedly incurred by Defendants to Plaintiff for collection. On February 13, 1997, Plaintiff filed an assumpsit action against Defendants for monies due and owing to the following clients: (1) GTE totaling $468.28; (2) Straub Hospital Services totaling $4,001.29; (3) Howard G. Barbarosh, M.D. totaling $3,841.28; (4) LBJ Texaco totaling $20.00; and (5) Maui Medical Group totaling $2,781.74.[1]
In summary, the case involved a total amount of $11,092.59 allegedly owed to Plaintiff, which, in turn, would distribute any monies collected to various clients. Although Plaintiff could have brought a separate complaint on behalf of each client, Plaintiff chose to pursue the claims of its clients in a single multi-count complaint.
At a hearing on March 10, 1997, the district court denied Defendants' request for a jury trial on the basis that less than $5,000.00 was alleged to be owing to each of Plaintiff's clients noted in the complaint. Reasoning that each debt or claim (i.e., each count of the complaint) was to be reviewed separately, the district court did not consider the aggregate amount allegedly owing to all five of Plaintiff's clients as the amount determining whether Defendants were entitled to a jury trial.
At the time of the bench trial on May 5, 1997, there were outstanding debts alleged owing to four of Plaintiff's clients. Accordingly, Plaintiff presented four witnesses, each of whom was the custodian of records of the respective client, in addition to George S. Shimada, president of the Plaintiff collection agency. Based on the evidence presented at trial, the district court found Defendants indebted to four of Plaintiff's clients as alleged in the complaint.[2] As a result, the judgment totaled $15,779.14, which included interest, court costs, attorney's fees, and sheriff's fees. From this judgment, Defendants filed a timely notice of appeal.
II. STANDARD OF REVIEW
The denial of a demand for trial by jury under HRS § 604-5 (1993) involves the interpretation of the statute. The interpretation of a statute is a question of law reviewable de novo. Shimabuku v. Montgomery Elevator Co., 79 Hawai`i 352, 357, 903 P.2d 48, 52 (1995).
*811 III. DISCUSSION
Defendants argue that the district court erred when it denied their numerous demands for a jury trial because the amount in controversy in this case exceeded $5,000.00. We agree.
A. Applicable Rules of Statutory Construction
"When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself." Korean Buddhist Dae Won Sa Temple of Hawai`i v. Sullivan, 87 Hawai`i 217, 229, 953 P.2d 1315, 1327 (1998) (quoting State v. Cullen, 86 Hawai'i 1, 8-9, 946 P.2d 955, 963-64 (1997)). This court has rejected, however, an approach to statutory construction which is limited to the words of a statute. Four Star Ins. Agency, Inc. v. Hawaiian Elec. Indus., Inc., 89 Hawai'i 427, 431, 974 P.2d 1017, 1021 (1999)(quoting Bragg v. State Farm Mut. Auto Ins. Co., 81 Hawai'i 302, 306, 916 P.2d 1203, 1207 (1996) (citation omitted)). Instead, we must read statutory language in the context of the entire statute and construe it in manner consistent with its purpose. Shipley v. Ala Moana Hotel, 83 Hawai'i 361, 364-65, 926 P.2d 1284, 1287-88 (1996) (citing State v. Toyomura, 80 Hawai'i 8, 19, 904 P.2d 893, 904 (1995)).
In doing so, we may consider "[t]he reason and spirit of the law, and the cause which induced the legislature to enact it ... to discover its true meaning." HRS § 1-15(2) (1993). "Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called upon in aid to explain what is doubtful in another." State v. Ake, 88 Hawai`i 389, 395, 967 P.2d 221, 227 (1998) (quoting HRS § 1-16 (1993)). In considering the meaning of the words in a statute, "[t]he legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction[,] and illogicality." Kim v. Contractors License Bd., 88 Hawai`i 264, 270, 965 P.2d 806, 812 (1998) (quoting State v. Arceo, 84 Hawai`i 1, 19, 928 P.2d 843, 861 (1996) (citation and internal quotation marks omitted)); see also HRS § 1-15(3) (1993) (providing that "[e]very construction which leads to an absurdity shall be rejected").
B. Right to Jury Trial in Civil Cases
The Hawai`i Constitution provides that "[i]n suits at common law where the value in controversy shall exceed five thousand dollars, the right of trial by jury shall be preserved." Haw. Const., art. I, § 13 (as amended in 1988). "Given the recognition by... both the Hawai`i and United States Constitutions,[3] the right to a jury trial in civil cases is clearly among the most sacred, fundamental rights enjoyed by our citizens." Pancakes of Hawai`i, Inc. v. Pomare Properties Corp., 85 Hawai`i 300, 305, 944 P.2d 97, 102 (App.1997) (footnote added). The parties do not dispute that this debt collection case constitutes a suit at common law and is therefore subject to the provisions of article I, section 13 of the Hawai`i Constitution.
To reinforce a party's right to jury trial, Rule 38 of the District Court Rules of Civil Procedure (DCRCP) (1996) provides in relevant part:
Rule 38. Jury trial of right
(a) Right Preserved. The right of trial by jury as declared by the Constitution of the State of Hawai`i or as provided by a statute shall be preserved to the parties inviolate.
*812 (b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the case is at issue.
(Emphases in original.) See Lum v. Sun, 70 Haw. 288, 295, 769 P.2d 1091, 1095 (1989) (noting that the DCRCP reinforce the constitutional provision securing the right to a jury trial in suits at common law where the value in controversy exceeds $5,000.00). The parties in this case do not dispute that Defendant made a proper demand for jury trial under DCRCP Rule 38.
HRS § 604-5, which defines the jurisdictional limits of the district courts, provides that a case shall be transferred to the circuit court whenever a civil matter is triable of right by a jury and trial by jury is demanded. Lum, 70 Haw. at 295, 769 P.2d at 1095. HRS § 604-5 (Supp.1998) provides in relevant part:
§ 604-5. Civil jurisdiction
(a) Except as otherwise provided, the district courts shall have jurisdiction in all civil actions where the debt, amount, damages, or value of the property claimed does not exceed $20,000, except in civil actions involving summary possession or ejectment, in which case the district court shall have jurisdiction over any counterclaim otherwise properly brought by any defendant in the action if the counterclaim arises out of and refers to the land or premises the possession of which is being sought, regardless of the value of the debt, amount, damages, or property claim contained in the counterclaim.
(b) The district courts shall try and determine all actions without a jury, subject to appeal according to law. Whenever a civil matter is triable of right by a jury and trial by jury is demanded in the manner and within the time provided by the rules of court, the case shall be transferred to the circuit court. If the demand is made in the complaint and the matter is triable of right by a jury, the action may be commenced in the circuit court if the amount in controversy exceeds $5,000.
(Some emphases in original and some added.) Based upon the clear and unambiguous language of HRS § 604-5, although the district court has jurisdiction over cases having a value under $20,000.00, any party may demand a jury trial in circuit court if the amount in controversy exceeds $5,000.00. See K.H. Properties v. Mitchell, 72 Haw. 373, 818 P.2d 1177 (1991) (holding that parties have the right to a jury trial under article I, section 13 of the Hawai`i Constitution where (1) a complaint alleged a claim in assumpsit, (2) a party has prayed for damages in excess of $5,000.00, and (3) jury demand was properly made under DCRCP Rule 38).
In this case, Plaintiff brought a complaint containing five counts on behalf of various clients against Defendants, jointly and severally. Because the complaint prays for a total of $11,092.59 in damages, the total amount in question exceeds $5,000.00. It therefore follows the total amount in controversy exceeds $5,000.00. Accordingly, under the clear and unambiguous language of HRS § 604-5(b), because Defendants have properly demanded trial by jury under DCRCP Rule 38, Defendants are entitled to trial by jury in circuit court.
Plaintiff contends, however, that each count of the complaint constitutes a separate "claim" (i.e., "controversy") because each count involved distinct creditors, factual situations, allegations, and issues. Plaintiff maintains that Defendants were not entitled to a jury trial because none of the counts alleged in the complaint exceeded $5,000.00.
In support of its contention, Plaintiff relies on Lum, supra, for the proposition that "it was entirely permissible for the district court in the instant case to have segregated the dollar amount of each claim when considering whether a party has the right to a trial by jury for any and/or all of the claims." Lum, however, is inapposite to this case because the issue therein was whether the district court properly segregated a landlord's summary possession claim from other issues that were triable by jury. 70 Haw. at 299, 769 P.2d at 1097-98.
In Lum, the plaintiff brought a summary possession action against the defendants, *813 who in turn filed a multi-count counterclaim and demanded trial by jury. Id. The district court retained jurisdiction over the summary possession proceeding but severed and transferred the other issues to the circuit court for trial by jury. Id. On appeal, the defendant argued:
whenever a demand for trial by jury is properly made as to a `matter' (in the words of the statute) or `any issue' (in the words of the rule) which is triable of right by a jury, `the case,' not just the matter or issue, shall be transferred [to the circuit court].
Id. at 295, 769 P.2d at 1096 (alterations in original).
After recognizing that summary possession claims fell within the exclusive jurisdiction of the district courts, this court stated:
"In a legal sense, `case' is generally understood as meaning a judicial proceeding for the determination of a controversy between parties where rights are enforced or wrongs are prevented or redressed. State v. Montevallo Coal Mining Co., 29 Ala. App. 318, 197 So. 82, 85 [,cert. denied, 240 Ala. 73, 197 So. 87 (1940)]; Ex Parte Chesser, 93 Fla. 590, 112 So. 87, 90 [(1927)]." Opinion of the Clerk, 345 So.2d 1329, 1330 (Ala.1977). Read narrowly, it is "a question contested before a court of justice." Black's Law Dictionary 195 (5th ed.1979). It may also be "the lawsuit, the cause of action, or the matter as a whole." Wetmore v. Wrynn, 32 Conn.Supp. 249, 254, 349 A.2d 857, 860 (1974). Read in the context of the relevant rule, "the case" could hardly be "the matter as a whole," as [the defendant] contends, for the litigant is allowed thereunder to "specify the issues which he wishes tried by jury[;] otherwise he shall be deemed to have demanded trial by jury for all issues so triable." DCRCP 38(c). The rule thus contemplates that the questions raised by the aggregate of facts furnishing occasion for the exercise of judicial authority are subject to segregation for bench or jury trial.
Id. at 298-99, 769 P.2d at 1097 (some alterations in original and some added). Based upon this reasoning, this court held that there is no constitutional barrier to trials in different courts of separate issues arising from the same facts. Id. at 299, 769 P.2d at 1097-98.
We decline to read Lum to stand for the proposition that each count of a complaint constitutes a separate controversy for purposes of determining whether a party is entitled to demand trial by jury under HRS § 604-5(b). Unlike Lum, this case does not involve the question whether a summary possession claim, over which the district court has exclusive jurisdiction, can be separated from other claims that are subject to trial by jury.
Instead, this case involves a single claim by a debt collection agency alleging that Defendants have failed to pay various debts owed to various clients of the collection agency. Each count alleged in the complaint narrates facts as to how Defendants have incurred the debt being sought. At trial, Plaintiff must prove the facts alleged in each count to support an award of damages. This case therefore involves a single debt of $11,092.59 allegedly owed to Plaintiff. It is only after Plaintiff is able obtain a judgment and collect on that judgment that it will be in a position to distribute the proceeds to its clients. Indeed, by virtue of their assignment of their claims to Plaintiff, GTE, Straub, Howard G. Barbarosh, M.D., and Maui Medical Group are not parties to this case. Thus, this case, unlike Lum, poses the question whether the "amount in controversy" constitutes the amount being claimed as damages in each count or the aggregate amount of all counts in a single complaint.
Further, "controversy" is generally defined as: "[a] litigated question; adversary proceeding in a court of law; a civil action or suit, either at law or in equity; a justiciable dispute." Black's Law Dictionary, 330 (6th ed.1990). As applied to this case, the amount in "controversy" is the amount in dispute that is being claimed by Plaintiff, which is $11,092.59. Put differently, this amount represents the amount over which the parties are fighting. Given this definition of "controversy," it would be a fiction to view this case as five separate "controversies."
Our result in this case is consistent with the general policy protecting a party's right *814 to jury trial. In 1994, the legislature doubled the jurisdictional limit of the district courts from $10,000.00 to $20,000.00.[4] 1994 Haw. Sess. L. Act 4, § 1, at 90. This amendment was enacted to encourage parties to litigate cases involving less than $20,000.00 in district court, where cases are generally disposed of in a shorter time period as compared to circuit court. Sen. Stand. Comm. Rep.No. 2552, in 1994 Senate Journal, at 1028 (noting that "a case filed in circuit court takes approximately 24 months from filing to disposition... [while] district court can bring a case to trial in as little as two months"). However, there has not been a similar attempt to increase the $5,000.00 threshold amount at which a party is entitled to a jury trial. Therefore, there is a general policy in favor of preserving a party's right to trial by jury in cases where the amount in question exceeds $5,000.00.
In this case, Plaintiff is seeking to recover $11,092.59 from Defendants Charles W. Brooks (Charles) and Donna J. Brooks (Donna), jointly and severally. Under the theory of joint and several liability, Charles and Donna are each potentially liable for the entire amount of $11,092.59, an amount in excess of $5,000.00. In turn, given that Plaintiff is the assignee of various debts allegedly incurred by Defendants, Plaintiff is really a single creditor seeking to recover a single debt allegedly owed to Plaintiff as an assignee. Inasmuch as the total debt allegedly owed by each defendant to a single plaintiff exceeds $5,000.00, the amount in controversy in this case supports a jury demand. Accordingly, we hold, under the facts of this case, that "the amount in controversy" for purposes of HRS § 604-5(b) is the aggregate amount being sought in a complaint by a single plaintiff against a single defendant, as opposed to the amount alleged as damages in each individual "count" of a complaint. The district court therefore erred in denying Defendants' demand for jury trial in this case.
IV. CONCLUSION
For the reasons stated above, we vacate the district court's findings of fact, conclusions of law, and order for entry of judgment filed July 9, 1997, and remand this case to the district court with instructions to grant Defendants' demand for jury trial.[5]
NOTES
[1] The complaint in this case alleged as follows:
COUNT ONE On or about 10-21-95, Defendant(s) became indebted to GTE HAWAIIAN TELEPHONE in the sum of $468.28[.]
COUNT TWO On or about 5-11-93, Defendant(s) became indebted to STRAUB HOSPITAL SERVICES in the sum of $4,001.29[.]
COUNT THREE On or about 5-27-93, Defendant(s) became indebted to HOWARD G. BARBAROSH, M.D. in the sum of $3,841.28[.]
COUNT FOUR On or about 8-23-94, Defendant(s) became indebted to LBJ TEXACO in the sum of $20.00[.]
COUNT FIVE On or about 1-15-94, Defendant(s) became indebted to THE MAUI MEDICAL GROUP, INC. in the sum of $2,092.80[.]
COUNT SIX On or about 1-24-95, Defendant(s) became indebted to THE MAUI MEDICAL GROUP, INC. in the sum of $688.94[.]
A seventh count was subsequently added. Thereafter, counts four and seven involving a check returned because of insufficient funds written to LBJ Texaco were dismissed with prejudice prior to trial.
[2] The four clients were GTE Hawaiian Telephone, Straub Hospital Services, Howard G. Barbarosh, M.D., and Maui Medical Group. As noted supra note 1, counts four and seven involving LBJ Texaco were dismissed with prejudice prior to trial.
[3] In Lum v. Sun, 70 Haw. 288, 294, 769 P.2d 1091, 1095 (1989), we stated:
[T]he Seventh Amendment to the United States Constitution guarantees that "[i]n [s]uits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law...." "[T]he Seventh Amendment[, however,] applies only to proceedings in courts of the United States and does not in any manner whatever govern or regulate trials by jury in state courts...." Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211, 217, 36 S.Ct. 595, 596, 60 L.Ed. 961 (1916) (citations omitted).
(Some alterations in original and some added.) (Emphasis added.)
[4] Compare HRS § 604-5 (Supp.1998) with HRS § 604-5 (1993). HRS § 604-5 (Supp.1998) provides in relevant part:
Except as otherwise provided, the district courts shall have jurisdiction in all civil actions where the debt, amount, damages, or value of the property claimed does not exceed $20,000 [.]
(Emphasis added.) HRS § 604-5 (1993) provided in relevant part:
Except as otherwise provided, the district courts shall have jurisdiction in all civil actions where the debt, amount, damages, or value of the property claimed does not exceed $10,000 [.]
[5] Defendants also argue that there was insufficient evidence of their indebtedness to Plaintiff. "It is well settled, however, that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence." Steinberg v. Hoshijo, 88 Hawai`i 10, 18, 960 P.2d 1218, 1226 (1998) (citing See Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 117, 839 P.2d 10, 28, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992)). In this case, Plaintiff presented four witnesses, each of whom was the custodian of records of Plaintiff's respective clients. Each of these witnesses testified that Defendants owed the respective amounts alleged in the complaint. Based upon our review of the record, there was substantial and probative evidence to support the district court's finding that Defendants were indebted to Plaintiff. In any event, because we agree with Defendants' first point of error, we remand this case with instructions to grant Defendants' demand for jury trial.
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91 F.3d 776
Adan Arturo HERNANDEZ, Individually and on behalf of allpersons similarly situated, Plaintiff-Appellant,Cross-Appellee,v.Janet RENO, in her official capacity as Attorney General ofthe United States, Defendant-Appellee Cross-Appellant.
No. 95-40186.
United States Court of Appeals,Fifth Circuit.
Aug. 21, 1996.Rehearing Denied Nov. 7, 1996.
Richard Sheldon Fischer, Holt, Tatum and Fischer, Nacogdoches, TX, for Hernandez.
David V. Bernal, Philemina McNeill Jones, Stewart E. Deutsch, United States Department of Justice, Office of Immigration Litigation, Washington, DC, Alexander H. Shapiro, Department of Justice, Washington, DC, Randi Davis Russell, U.S. Attorney's Office, Tyler, TX, for Reno.
Appeals from the United States District Court for the Eastern District of Texas.
Before POLITZ, Chief Judge, and DeMOSS and DENNIS, Circuit Judges.
POLITZ, Chief Judge:
1
Adan Arturo Hernandez filed this action under the Administrative Procedure Act1 challenging the Immigration and Naturalization Service regulations implementing the Family Unity Provision of the Immigration Act of 1990.2 The district court granted partial summary judgment in favor of Hernandez and partial summary judgment in favor of the Attorney General. Both parties appeal. We modify and affirm in part, reverse in part, and remand.
Background
2
In 1985 Hernandez, then 14 years of age, made an undocumented entry into the United States to join his father who had emigrated several years earlier. In 1990 his father obtained lawful permanent resident status under the amnesty program of the Immigration Reform and Control Act of 1986.3 His father submitted a visa petition seeking to have Hernandez classified as the unmarried child of a permanent resident alien under 8 U.S.C. § 1153(a)(2), which authorizes second preference visas for unmarried children and spouses of permanent resident aliens.
3
The petition was granted. To avoid deportation while awaiting the grant of his permanent residency,4 Hernandez applied under the Family Unity Provision for "voluntary departure," paying the $75.00 filing fee required by 8 C.F.R. §§ 103.7 and 242.6(e).5 This application was approved but it did not state that Hernandez was authorized to work; rather, it advised that if he chose to work he could apply for employment authorization with the INS office having jurisdiction over his place of residence. This process, which typically takes several months, required Hernandez to submit, inter alia, a Form I-765 application and a $60.00 filing fee. Hernandez complied and in due course the INS issued the employment authorization document.
4
Hernandez and Elizabeth Castillo, a legal alien, currently live together with their child who was born in the United States. The record reflects that they desire to marry but have not done so because of their belief that marriage would jeopardize Hernandez's Family Unity status. This perceived impediment to marriage has caused great hardships for Hernandez and Castillo, who have been ostracized by their families and the community for the deemed illicit cohabiting.
5
Hernandez, on behalf of himself and others similarly situated, filed this action under the APA challenging certain regulations implementing the Family Unity Provision. Specifically, he claims that the INS may not require the filing of a separate application, with an additional filing fee, to obtain authorization for employment. He also challenges the INS interpretation of the statute which requires an alien seeking Family Unity status as the spouse or unmarried child of a legalized alien, to be such not only on May 5, 1988, but continuously thereafter until permanent residency is granted.
6
The district court entertained cross-motions for summary judgment and held that the INS may not require an alien eligible for Family Unity status to apply separately for employment authorization, but that the fee associated with the work authorization request was reasonable.6 Additionally, the court held that the INS regulation interpreting the Family Unity Provision requiring the alien to maintain the same relationship throughout the pendency of his petition was a permissible construction of the statute. In light of its resolution of the motions for summary judgment, the trial court denied the motion to certify a class, despite finding that Hernandez satisfied the requirements of Fed.R.Civ.P. 23(a). Finally, the district court declared the offending regulation impermissible and enjoined its enforcement. Both parties timely appealed.
Analysis
7
We review a grant of summary judgment de novo, applying the same standards as the district court.7 Under the APA, agency action is reviewed solely to determine whether it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.8 Under the rubric announced by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council Inc.,9 an agency's interpretation of a statute whose administration is entrusted to it, generally is to be accepted unless Congress has spoken directly on the issue.10 If Congress has, we give effect to the congressional intent. If the language is ambiguous, we typically will defer to the agency's interpretation.
8
A. Separate Application for Employment Authorization
9
Hernandez challenges the requirement that a qualifying applicant under the Family Unity Provision must file a separate application and pay an additional filing fee in order to obtain employment authorization and documentation thereof.11
10
The Family Unity Provision states, in relevant part:
11
The Attorney General shall provide that in the case of an alien who is an eligible immigrant (as defined in subsection (b)(1))12 as of May 5, 1988, who has entered the United States before such date, who resides in the United States on such date, and who is not lawfully admitted for permanent residence, the alien (1) may not be deported or otherwise required to depart from the United States ... and (2) shall be granted authorization to engage in employment in the United States and be provided an "employment authorized" endorsement or other appropriate work permit.13
12
Congress unequivocally has mandated that eligible immigrants are entitled to: (1) a stay of deportation, (2) authorization to be employed in the United States, and (3) documentary evidence of that authorization. The INS regulation requiring an eligible immigrant to apply separately for employment authorization and documentation effectively reads the components we number (2) and (3) above out of the statute. This the INS may not do; it has no power to either ignore clear congressional intent or amend the legislation. The trial court did not err in finding and concluding that the agency's mandated separate application procedure was arbitrary, capricious, and otherwise not in accordance with the law.
B. Reasonableness of the Fee
13
Hernandez contends that the district court should have certified a class of all similarly situated persons so that the fees they paid to obtain employment authorization and documentation could be returned. To address these contentions we first must determine whether the fee assessed was reasonable. The district court held that the "defendant can require one reasonable fee for processing the application and issuing whatever documents she decides are appropriate for evidence of status and permission to work." In addressing the reasonableness of the fee, however, the district court apparently did not consider the aggregate fee charged persons applying under the Family Unity Provision. We view this as the proper inquiry, given the trial court's holding, which we affirm, that requiring separate applications is violative of the statute.
14
We therefore must remand to the district court so that it might consider whether the aggregate fee charged herein was reasonable. If the district court determines that the fee was unreasonable, it should consider the propriety of certifying a class and conducting further proceedings consistent therewith.
C. Based on Same Relationship Requirement
15
Hernandez challenges the requirement imposed by 8 C.F.R. § 242.6(c)(1)(ii) that an applicant's claim to eligibility for Family Unity status be "based on the same relationship" to a legalized alien as the relationship the person had on May 5, 1988.14 The district court deferred to the INS interpretation of the statute, citing Chevron.
16
Chevron deference does not lie where the intent of Congress is clear from the words of the statute, but rather only where a statute is "silent or ambiguous with respect to the specific issue...."15 The statute requires that Hernandez be the spouse or unmarried child of a legalized alien on May 5, 1988. It requires no more. The INS regulation adding a requirement that the alien continuously maintain that same relationship is in conflict with the plain language of the statute. Our duty is to give effect to the clear, unambiguous intent of Congress. Whether Hernandez marries after May 5, 1988 is irrelevant to the inquiry under the Family Unity Provision of the Immigration Act of 1990.
D. Scope of the Injunction
17
The defendant contends that the district court's injunction is overly broad. The injunction provides:
18
It is ORDERED that Defendant is permanently enjoined from promulgating or enforcing any regulations or procedures that would require an alien with Family Unity status to apply separately for a work permit.
19
Class-wide relief may be appropriate in an individual action if such is necessary to give the prevailing party the relief to which he or she is entitled.16 The breadth of the injunction issued by the trial judge in this case, however, is not necessary to remedy the wrong suffered by Hernandez.17 The injunction is modified to apply to Hernandez only. Should the district court determine to certify a class per our remand, this question of the breadth of the injunction may, in the trial court's discretion, be revisited.
20
We MODIFY and AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent herewith.
1
5 U.S.C. § 701 et seq
2
Immigration Act of 1990, § 310, Pub.L. No. 101-649, 104 Stat. 4978
3
Pub.L. 99-603, 100 Stat. 3359
4
Cognizant of the statutory limit on the number of available visas, the district court noted the likelihood that it would take four or more years before Hernandez could receive permanent resident status
5
The Family Unity Provision operates in conjunction with 8 U.S.C. § 1153 which sets forth the criteria for a visa and the numbers of such visas which may be issued. The Family Unity Provision provides that persons seeking visas under section 1153 may remain in the United States pending action on their applications
6
The summary judgment order states:
The court finds that once Defendant determines that an alien is eligible for Family Unity status, she cannot require the alien to apply separately for employment authorization or documentary evidence of such authorization, which is inherent in the status.
The district court denied Hernandez's motion to alter or amend the judgment. Fed.R.Civ.P. 59(e). Additionally, the court stated that to the extent the defendant sought relief such was also denied. The ruling includes a "clarification" of the previous order on the motions for summary judgment, stating:
The Order enjoins defendant from adopting or enforcing any regulation or procedure that would require an alien with Family Unity status to apply separately for a work permit. The Order does not prohibit sequential applications in instances where the applicant chooses that option. The applicant, however, must be given the option of simultaneous filing, and, in that event, the family unity status and work permit must be issued at the same time.
The use of the phrase "simultaneous filing" suggests that two applications are permitted provided they are filed at the same time. Such an interpretation, however, appears contrary to the quoted summary judgment order. We conclude the district court did not intend to amend its previous order, which unequivocally states that separate applications are impermissible, considering its ruling on the Rule 59 motion, that, to the extent the defendant sought relief from the adverse summary judgment, that relief was denied.
7
Montgomery v. Brookshire, 34 F.3d 291 (5th Cir.1994)
8
5 U.S.C. § 706
9
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)
10
White v. I.N.S., 75 F.3d 213 (5th Cir.1996)
11
The INS maintains that Hernandez's challenge to these regulations is moot because he received his employment authorization document before the district court ruled that requiring separate applications violated the statute. The challenge is not moot because four years or more may pass before Hernandez receives permanent resident status, thus making it likely that he will be required to repeat the process at least once because Family Unity status is granted in two-year increments. See Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (claim is not moot when it is capable of repetition yet evading review)
12
The term "eligible immigrant" means a qualified immigrant who is the spouse or unmarried child of a legalized alien. Immigration Act of 1990, § 310, Pub.L. No. 101-649, 104 Stat. 4978
13
Id
14
The defendant states in a footnote that we lack jurisdiction on this claim because Hernandez does not have standing and failed to exhaust his administrative remedies. No authority is cited nor is a reasoned argument advanced and we do not consider these issues. L & A Contracting Co. v. Southern Concrete Services, Inc., 17 F.3d 106 (5th Cir.1994)
15
Sullivan v. Everhart, 494 U.S. 83, 89, 110 S.Ct. 960, 964, 108 L.Ed.2d 72 (1990) (citing Chevron )
16
Bresgal v. Brock, 843 F.2d 1163 (9th Cir.1987). See also Washington v. Reno, 35 F.3d 1093 (6th Cir.1994) (upholding a nationwide preliminary injunction before class certification because it was necessary to provide relief)
17
None of the cases cited by Hernandez support the scope of the injunction. See e.g., Bailey v. Patterson, 323 F.2d 201 (5th Cir.1963), cert. denied, 376 U.S. 910, 84 S.Ct. 666, 11 L.Ed.2d 609 (1964) (refusing to reach the propriety of certifying a class action where the plaintiff seeks desegregation because the nature of the right sought to be vindicated requires the decree to run to the benefit of others similarly situated); United Farmworkers v. City of Delray Beach, Fla., 493 F.2d 799 (5th Cir.1974) (same)
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180 F.2d 750
HARVEY CO-OPERATIVE CREAMERY ASSOCIATION, Appellant,v.UNITED STATES of America.
No. 13992.
United States Court of Appeals, Eighth Circuit.
March 10, 1950.
Appeal from the United States District Court for the District of North Dakota.
Robert O. Sullivan, St. Paul, Min., for appellant.
P. W. Lanier, United States Attorney, Fargo, N.D., and J. P. Stevens, Assistant United States Attorney, Minot, N.D., for appellee.
PER CURIAM.
1
Appeal from District Court dismissed, on motion of appellee and stipulation of parties.
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04/20/2015
NO. 14-14-00831-CV
In the Twelfth District Court of Appeals at Tyler
_______________________________________________
BRENDA BREWER, DEANNA MEADOR, PENNY ADAMS,
and SABRA CURRY,
Appellants
v.
LOWE’S HOME CENTERS, INC.,
Appellee
_______________________________________________
UNOPPOSED MOTION FOR EXTENSION OF TIME
TO FILE APPELLEE’S BRIEF
_______________________________________________
Appellee Lowe’s Home Centers, Inc. files this motion seeking an additional thirty
days of time to file its Appellee’s Brief. In support thereof, Appellee states as follows:
I.
INTRODUCTION
1. Appellee’s Brief is currently due on April 20, 2015. Appellee seeks an
extension of thirty days to file its brief, making it due on May 20, 2015. This is
Appellee’s first request for extension, and the requested extension is unopposed.
1
II.
ARGUMENT AND AUTHORITIES
2. Pursuant to Texas Rule of Appellate Procedure 10.5(b) and 38.6(d),
Appellee requests an extension of time to file Appellee’s Brief due to the current
obligations of Appellee’s counsel, Sheri Caldwell.
3. Sheri Caldwell is one of Appellee’s counsel and is responsible for
preparing and filing Appellee’s Brief. The following obligations of Ms. Caldwell
necessitate the requested extension:
a. Petition for Review due on April 29, 2015 in the Texas Supreme
Court in Gilberto Rincones v. WHM Custom Services, Inc., et al., Cause No. 13-11-
00075-CV;
b. Appellee’s Brief due on April 29, 2015 in the Fourteenth Court of
Appeals in Jennifer Johnson v. Oxy USA, Inc., Cause No. 14-14-00831-CV;
c. Preparing and filing an Application for Temporary Restraining
Order, Temporary Injunction and Permanent Injunction during the week of April 13,
2015, as well as attending the hearing to obtain the temporary restraining order on April
15, 2015 in CloudLogix, LLC v. Robert K. Langhorne III, et al., Cause No. DC-15-04163,
in the 95th District Court of Dallas County, Texas;
d. Preparing for and taking a deposition in Wright-Jones v. Baylor
Health Care System, Inc., pending in the U.S. District Court for the Northern District of
Texas; and
2
e. In addition, various other internal deadlines and projects have
prevented counsel from preparing Appellee’s Brief in this matter
4. This Motion for Extension is unopposed and is not sought for delay
purposes only but so that justice may be done.
III.
CONCLUSION
Appellee respectfully requests that the Court grant its first request for extension of
time to file Appellee’s Brief and order that Appellee’s Brief is due on May 20, 2015.
Respectfully submitted,
/s/ Sheri L. Caldwell
Holly H. Williamson
State Bar No. 21520100
Sheri L. Caldwell
State Bar No. 24038798
HUNTON & WILLIAMS LLP
1445 Ross Avenue, Suite 3700
Dallas, Texas 75202
(214) 979-3000 (Telephone)
(214) 880-0011 (Facsimile)
[email protected]
[email protected]
ATTORNEYS FOR APPELLEE
LOWE’S HOME CENTERS, INC.
3
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been sent to the
following counsel of record by email, on this the 20th day of April, 2015:
Matthew R. Pearson
Brendan K. McBride
Gravely & Pearson, LLP
425 Soledad, Suite 600
San Antonio, Texas 78205
[email protected]
[email protected]
/s/ Sheri L. Caldwell
Sheri L. Caldwell
4
23797.000411 EMF_US 55337105v1
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418 S.W.2d 940 (1967)
H. B. DEAL CONSTRUCTION CO., a Corporation, Plaintiff-Respondent,
v.
LABOR DISCOUNT CENTER, INC., a Corporation, Defendant,
A. L. Uebel, Trustee, Charles W. Sunderman, James S. Barnes, Trustee, General Title Service Corporation, a Corporation, State Bank and Trust Company of Wellston, a Corporation, Mercantile Trust Company National Association (Formerly Security Trust Company), a Corporation, American National Bank in St. Louis, a Corporation, The Brentwood Bank, a Corporation, City Bank, a Corporation, North County Bank and Trust Company, a Corporation, and Seventeen Ninety-Five Dunn Road, Inc., a Corporation, Defendants-Appellants,
and
Hartman-Walsh Painting Company, a Corporation, R. B. Cleveland Company, a Corporation, Asphaltic Concrete Corp., a Corporation, Grinnell Company, Inc., a Corporation, Crescent Planing Mill Company, a Corporation, Bridges-Jarell, Inc., a Corporation, M. D. Magary, d/b/a M. D. Magary Construction Company, Guarantee Electrical Company, a Corporation, and Vic Koepke Excavating and Grading Company, Inc., a Corporation, Defendants-Crossclaimants-Respondents.
No. 51939.
Supreme Court of Missouri, Division No. 1.
September 11, 1967.
Motion for Rehearing or to Transfer Denied October 9, 1967.
*942 Leo F. Laughren, St. Louis, for plaintiff-respondent, H. B. Deal Construction Co.
William M. Ward and Thomas R. Mc-Ginnis, St. Louis, for defendant-cross-claimant-respondent, R. B. Cleveland Co.
M. A. Ochsner, St. Louis, for defendant-cross-claimant-respondent, Asphaltic Concrete Corp.
Meyer & Traeger, Clayton, for defendant-cross-claimant-respondent, Bridges-Jarrell, Inc.
Rassieur, Long & Yawitz, St. Louis, for defendant-cross-claimant-respondent, Guarantee Electrical Co.
Robert C. Jones, Herbert W. Ziercher, Ziercher, Tzinberg, Human & Michenfeldder, Clayton, for defendants-appellants.
Oliver F. Erbs, Kirkwood, for Crescent Planing Mill Co.
A. Wimmer Carr, Bertram W. Tremayne, Jr., Tremayne, Joaquin, Lay & Carr, Clayton, for M.D. Magary.
Eugene P. Walsh, Harold S. Goodman, St. Louis, for respondent-cross-claimant, Hartman-Walsh Painting Co.
Fred J. L. Schuler, Charles M. Schmidt, Clayton, for Vic Koepke Excavating and Grading Co., Inc.
Motion for Rehearing or to Transfer to Court En Banc Denied October 9, 1967.
*943 HOUSER, Commissioner.
This is an equitable proceeding to impress a mechanic's lien on the real property located at 7995 Dunn Road in an unincorporated area of St. Louis County in the amount of $178,182.80 plus interest and to have the mechanic's lien declared superior to the lien of a deed of trust and a security agreement of record. Plaintiff is the general contractor, H. B. Deal Construction Company, a corporation. Defendants named in the petition are the owner, Labor Discount Center, Inc.; A. L. Uebel, trustee, and Charles W. Sunderman, beneficiary, of a $2,000,000 deed of trust on the property; the trustee and named beneficiary, General Title Service Corporation, named in a security agreement affecting the property; six banks claiming a beneficial interest in the two million dollar deed of trust, and nine other mechanic's lien claimants, five of whom were subcontractors and four of whom were contractors who dealt directly with the owner. An excavating and grading contractor who also contracted directly with the owner was permitted to intervene and Seventeen Ninety-Five Dunn Road, Inc., purchaser of the land and improvements at a foreclosure sale under the two million dollar deed of trust, conducted after the institution of this action, was added as a defendant.
Defendant Labor Discount Center, Inc. filed an answer and cross-petition seeking damages against the six banks for breach of contract, fraud and conspiracy. On motion the trial court ordered the separate trial of the mechanic's lien controversies and the issues raised in that cross-petition, so those issues are not involved in this appeal.
Defendant State Bank and Trust Company of Wellston, General Title Service Corporation and the latter's trustee, filed answers and a counterclaim against the general contractor for $316,141.48 damages from the filing of mechanic's liens by the general contractor and its subcontractors.
The five subcontractors each sought judgment against the general contractor for the balance due on their accounts and the four defendants contracting directly with the owner asked judgment against the owner for the balance due each of them. Each of these defendants by crossclaim or crossbill also prayed for a mechanic's lien upon the buildings, improvements and land. Appropriate answers and replies were filed.
Judgment was rendered (1) for the general contractor and against the owner for a total amount of $197,604.73, including interest, fixing a mechanic's lien against the property and declaring the mechanic's lien superior to the liens of the deed of trust and security agreement; (2) for the five subcontractors and the four original contractors and against the general contractor for the amounts of their respective claims, which were adjudged to be paid out of the judgment in favor of the general contractor (also fixing a mechanic's lien on the property for each of the nine and adjudging their liens superior to the liens of the deed of trust and security agreement); (3) for the general contractor and against the bank, title service company and its trustee on the counterclaim; (4) declaring the aggregate judgment of $228,172.46 plus interest paramount to the purchase by Seventeen Ninety-Five Dunn Road, Inc. at foreclosure of the property under the two million dollar deed of trust, and (5) declaring the judgment final for the purpose of appeal under § 512.020, V.A.M.S.
The six banks, the title service company and its trustee, and the purchaser at foreclosure appealed. The owner did not appeal.
On November 29, 1962 the then beneficial owners of the approximately 106-acre tract in question contracted with Labor Discount Center, Inc. for its sale and purchase. On the same day the beneficial owners and the record title holder executed quitclaim deeds conveying the tract to Labor Discount Center, Inc., subject to an outstanding *944 note and deed of trust on the property.
On December 5, 1962 Labor Discount Center, Inc. entered into a contract with H. B. Deal Construction Company as general contractor for the erection thereon of a building to be used as a discount house and shopping center. Deal contracted to furnish all material and do all work according to specifications and drawings prepared by the architects and to erect and construct the commercial building, parking area, fences, sidewalks, appurtenances and improvements as provided for in the contract documents, for the actual cost of the work plus a fixed fee of $50,000, "guaranteeing the total cost of the work described in this contract, including said Fixed Fee, shall not exceed the sum of One Million Two Hundred Fifty Thousand And No/100 Dollars ($1,250,000.00)." This sum was referred to in the contract as "The maximum guaranteed sum." The contract was made contingent upon the signing of a satisfactory construction and dispersing escrow agreement providing for the deposit with the escrowee of the funds necessary for the payment of the contract amount. In a supplemental agreement it was provided that the maximum guaranteed price was based on several specified changes in the plans and specifications, and that "The contract price only includes the items of work clearly outlined in this contract, and does NOT include any work in connection with tenant changes, which are not indicated on the drawings." Article 8 dealt with the securing of payment of the fixed fee of the general contractor. Article 15 of the General Conditions made provisions for changes in the work, as follows: "The Owner, without invalidating the Contract, may order extra work or make changes by altering, adding to or deducting from the work, the Contract Sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract except that any claim for extension of time caused thereby shall be adjusted at the time of ordering such change.
"In giving instructions, the Architect shall have authority to make minor changes in the work, not involving extra cost, and not inconsistent with the purposes of the building, but otherwise, except in an emergency endangering life or property, no extra work or change shall be made unless in pursuance of a written order from the Owner signed or countersigned by the Architect, or a written order from the Architect stating that the Owner has authorized the extra work or change, and no claim for an addition (sic) to the contract sum shall be valid unless so ordered.
"The value of any such extra work or change shall be determined in one or more of the following ways:
"a) By estimate and acceptance in a lump sum.
"b) By unit prices named in the contract or subsequently agreed upon.
"c) By cost and percentage or by cost and a fixed fee."
On December 5, 1962 (the date of execution of the construction contract) the general contractor's project manager, John Mincher, who was instructed to "get the job going," spent 3 hours visiting the site, walking over the ground to acquaint himself with any of the problems involved in the site work. On December 6 he returned to the site and spent 4 hours getting acquainted with the conditions such as trees and amount of grading to be done, preparatory to awarding subcontracts. On December 10 he and a laborer performed surveying work to determine the limits of the property in order to locate the building. With a survey in hand the project manager had the laborer dig to locate the corner markers, which were overgrown with brush and had to be cleared out. The brush was cut or chopped. He found sufficient corner markers by which to locate the building. On December 14 he and a laborer each spent 3 hours digging for markers and cutting brush for lines. To establish the location of the building it was necessary to *945 clear out the underbrush which obstructed the view. After locating the property lines the building was located on the plot by using a surveyor's transit and a tape. A level survey was run to confirm the elevations on the drawings and check the quantities estimated by the excavators. The site required a substantial cut in the front and a substantial fill in the back. Stakes were set to level the site, indicate the necessary cut and fill, and balance the cuts and fills to get an elevation to accommodate the building. These were 2x2 inch oak stakes, driven into the ground, marked with chalk to indicate the number of feet and inches to cut or fill. The next work was done on December 18, 4 hours each for project manager and a laborer, again cutting brush for lines and levels and doing the same kind of work done on December 14. On December 19 the authorities issued a building permit to the owner. On that date the two men worked a total of 8 hours doing the same type of work and on December 20 four hours were charged to the job for estimating quantities (office work). Work was charged to the job on December 24, 26, 31 and January 3, 4, 7 and 8, 1963. Ground-breaking took place on January 8, 1963. The construction work continued without interruption until the work was completed. The general contractor furnished the last item of material and labor with its forces on February 4, 1964. The last item furnished by a subcontractor was in April, 1964. The building was built according to the plans, specifications, contract, allowances and change orders, in a good and workmanlike manner. Owner accepted the building as complete and the work under the construction contract was accepted by owner as fully performed. The first tenant moved into the building in September, 1963.
Interim financing for the discount house and shopping center was arranged with six local banks, of which defendant State Bank & Trust Company of Wellston (hereinafter "the Wellston bank") was the lead bank. Permanent financing was arranged in October, 1962 with the pension fund of the Teamster's Union, at which time the owner was given a commitment to lend it $1,666,000. Relying on that commitment the six banks, on December 18, 1962, gave owner a written commitment to lend it for construction funds the sum of $1,900,000 "to be secured by a valid and merchantable first deed of trust" on the property. The commitment further provided that the debt be secured by the execution and delivery to the banks "at the time of the first draw" of a principal note in the amount of $2,000,000 secured by a valid first deed of trust on the property, the note and deed of trust to be guaranteed by a title insurance company. Further provisions required the assignment to the six banks of the Teamster's pension fund commitment and committed the six banks to lend owner an additional $175,000 after the completion of the improvements and the placing of the permanent financing by the pension fund, to be secured by a second deed of trust. The pension fund commitment was assigned to the six banks on December 18, 1962. The assignment was acknowledged and agreed to by the pension fund in January, 1963.
On December 19, 1962 the following documents were executed: (1) The owner, Labor Discount Center, Inc., made and executed a promissory note for $50,000 payable to the order of the general contractor, due one year after date of completion of the improvements on the real estate in question, and a deed of trust thereon to secure the note. (2) General Title Service Corporation (hereinafter "the escrowee") acknowledged in writing receipt of the $50,000 note and supporting deed of trust and agreed to hold them in its escrow account until the contract between the contractor and the owner was fully performed and until the owner secured permanent financing and the permanent deeds of trust were recorded, e.g., a first deed of trust in the sum of $1,666,000 and a second in an amount not to exceed $334,000 and agreed to record the $50,000 deed of trust after the permanent deeds of trust were recorded, *946 and to deliver the note and deed of trust to the contractor after crediting the note with any payments received in reduction of the fixed fee of $50,000. (3) The owner made and executed a promissory note for $2,000,000 payable to the order of Charles W. Sunderman, due and payable June 1, 1964 with interest at 6% and a deed of trust on the real estate in question to secure the note, which deed of trust was recorded December 21, 1962. (4) The owner made and executed a security agreement by which the owner conveyed the real estate in question to a trustee for the escrowee to secure the owner's performance of its contract with the general contractor. (5) The general contractor, the owner, the escrowee, and the Wellston bank, named as "mortgagee," made and entered into a construction and disbursing escrow agreement. In it the general contractor agreed to build and fully complete the improvements according to the plans, specifications and building contract "for the sum of $1,250,000.00 with all claims for labor and materials paid in full, and free and clear of any and all liens"; agreed not to authorize any payments for labor or materials in excess of the estimated cost of construction including cost of ground ($1,900,000) and until said labor and material were actually incorporated in the construction of the improvements, and agreed not to "permit any changes in or additions to said plans, specifications and contract without written approval of Owner, Mortgagee and Escrowee. Failure to secure such written approval shall render Contractor liable for any cost or damages resulting therefrom and Contractor hereby waives his right to make any additional charge for same." The owner agreed to deposit with escrowee "funds necessary for the completion of said improvements, for all authorized extras, and for payment of all other items under this agreement required to be paid by Owner"; agreed that all funds deposited with escrowee be disbursed for the payment of the construction of the improvements "and all authorized extras," etc.; agreed to deposit with escrowee "the funds for all structural changes in said plans and specifications, in order to secure approval by State, County or Municipal government," and agreed not to "permit any changes in or additions to [the] plans, specifications and contract without written approval of Mortgagee, Escrowee and Contractor, and shall, prior to the construction of any extra items, deposit in cash with the Escrowee a sum sufficient to pay for such extra item or items." The mortgagee agreed to lend the owner $1,900,000, and to accept therefor "pursuant to commitment" a note or notes secured by a first deed of trust on the property; to pay as requested by escrowee the full proceeds thereof to escrowee for the account of the owner, and agreed that all funds received by escrowee be disbursed according to the terms of the agreement. The escrowee agreed to accept and disburse the funds in accordance with the terms of the agreement and to use due care in so doing and reserved the right to withhold approval of any changes or additions in or to the plans, specifications and contract "until additional funds for the same are deposited with it." All of the parties further agreed that "[u]pon completion of the contract if the cost as defined in the contract plus the fee is less than the maximum guaranteed price as modified by allowances or changes in work, the savings, if any, shall be applied to the Contractor's fee and the note for payment of fee shall be reduced accordingly."
Charles W. Sunderman, payee named in the two million dollar note and beneficiary named in the deed of trust securing the note, was an officer in the Wellston bank. A. L. Uebel, trustee, was also an officer in that bank. The deed of trust recited that the note was given for borrowed money but Mr. Sunderman did not lend any money to Labor Discount Center, Inc. He was a mere nominee having no personal interest in the transaction. He endorsed the note to the Wellston bank without recourse immediately upon its execution. Nor did the six banks advance any money to the maker, Labor Discount Center, Inc., or to the escrowee *947 for its use, on the two million dollar note. At the trial the vice-president of the Wellston bank took the position that the two million dollar note was not owned by the bank but was the sole property of the maker of the note, Labor Discount Center, Inc. and that the payee, Mr. Sunderman, was acting in the matter for Labor Discount Center, Inc. The bank considered that the two million dollar note and deed of trust given to secure it constituted collateral security deposited by the owner of that collateral (Labor Discount Center, Inc.) to secure a series of promissory notes totaling $1,900,000 which the bank required Labor Discount Center, Inc. to execute as the construction work advanced. This understanding is documented on the reverse side of the first of this series of notes, in the form of a pledge signed by Labor Discount Center, Inc., reciting that the two million dollar note and deed of trust (which Labor Discount Center, Inc. warranted was its own property) were pledged "as collateral security for the payment of the within note." In each of the notes in this series the Wellston Bank was the payee. They were all payable on June 1, 1964. Each bore interest at the rate of 6½%. The bank claimed ownership of this series of notes.
The method by which the general contractor received funds under the banks' commitment to the owner was as follows: The general contractor would send a request for payment, or billing, to owner, accompanied by a voucher drawn on escrowee. If the amount was agreeable to owner the latter would sign and approve the voucher, which would be presented to escrowee. Escrowee would in writing request of the Wellston bank funds for disbursement in the amount requested. The request to the bank would show also the amount advanced previously and the balance to be drawn. The Wellston bank would then issue its check in the amount requested, payable to escrowee, which in turn would issue its check to the general contractor.
The first of the above mentioned series of notes given by Labor Discount Center, Inc. to the Wellston bank was executed on December 21, 1962 in the amount of $600,000. As indicated, on the reverse side of the note the maker warranted that it was in good faith the owner of the two million dollar note and first deed of trust and pledged that note and deed of trust as collateral security for the payment of the $600,000 note. The proceeds were used to pay the outstanding note and deed of trust which encumbered the property when it was purchased (in the amount of $569,613.28) and the balance was placed in the escrow account for construction purposes.
The general contractor presented to escrowee its first voucher for payment on February 1, 1963 for $30,400. Escrowee requested funds from the Wellston bank to pay this voucher. The bank notified the owner and took from the owner its note dated February 5, 1963 for $32,000, with a pledge on the reverse side of "any and all collateral now in the bank's possession, or hereafter, or any substitutes therefor." The bank then delivered the funds to escrowee which countersigned the order for disbursement and delivered it to the general contractor in payment of its billing. This procedure was followed every time construction funds were requested, until the tenth request for payment dated November 8, 1963 in the amount of $109,648.03, which was not paid. At that time there was no balance left to complete the job. A total of $1,350,000.00 had been billed and $1,240,351.97 had been paid. Two other requests for payment, one dated January 8, 1964 in the amount of $64,098.06, and the other dated February 21, 1964 in the amount of $3,540.85 were not paid.
They ran out of money before the job was completed because of changes ordered by the owner as the work progressed. From the beginning to the end of construction there were 52 change orders which increased construction costs by considerably more than $150,000. The procedure followed *948 by the parties in connection with change orders was as follows: Owner would tell the general contractor what changes were required and request a proposal. When they agreed upon the cost the general contractor would prepare a written change order setting out the work, the cost, and the allowance to be credited or the amount by which the additional work would increase the guaranteed contract amount, and submit it to the owner. Owner would approve and accept the change in writing. At first the owner took the approved change order to the Wellston bank with a request for the bank's written approval as required by the escrow agreement. The official of the bank, relying upon the escrowee, and having delegated to it all of the bank's rights and authority in this respect, told the owner's representative on three or four occasions that if changes were required in order to satisfy the tenants it was not necessary to bring the change orders to the bank; that change orders should be sent direct to escrowee; that escrowee would deliver them to the bank "at the proper time." Apparently whatever escrowee did in connection with the disbursement of funds had the approval of the bank. After having been repeatedly told that the bank did not want the change orders presented to it the owner adopted the practice of sending approved change orders direct to the escrowee. The escrowee knew about the change orders and was informed in writing, as early as July 2, 1963, and thereafter that the guaranteed contract cost was going up. On July 2, 1963 the contract cost stood in the amount of $1,374,146.75, less savings effected in the sum of slightly more than $56,000. Nevertheless escrowee, without raising any question about depletion of the funds by reason of changes and without at any time withholding approval pending deposit of additional funds to cover the growing discrepancy between available funds and billings, issued to the bank its requests for disbursement of funds for the payment of billings as they were presented, until all but $9,648.93 was drawn out.
The bank was not in the dark about the financial problem created by the changes. As early as April, 1963 the vice-president of the owner discussed with the officials of the bank the additional costs and inquired whether the secondary financing could be increased to cover them. He was advised that this could not be done because of the banking laws but that if the Teamster's pension fund would increase its commitment the bank could give the owner the additional financing. In June, 1963 the bank officials told the owner's vice-president that the minute he brought in a commitment from the Teamster's pension fund, raising the amount to $2,400,000, the bank would advance additional interim financing. The president of the general contractor informed the bank in December, 1963 that payment of its last bills had not been received. A bank official told the president that the owner had applied for an increase in the commitment and as soon as the increase came through and became official the bank would increase its loan to the owner, which would enable escrowee to pay the bills. The additional commitment was made by the Teamster's pension fund on January 2, 1964. It was assigned to the bank and its assignment acknowledged and consented to by the pension fund. On January 9, 1964 the bank advanced $59,000 on the increased commitment but failed to advance any additional funds thereon, claiming that another deed of trust had "appeared" that stopped the bank from advancing any more money.
In the summer of 1964 the owner defaulted on a payment of interest. In the fall of 1964 the trustee named in the two million dollar deed of trust foreclosed the deed of trust, selling the land and improvements to Seventeen Ninety-Five Dunn Road, Inc. for the sum of $1,900,000. The beneficial owners of the stock of the purchasing corporation are the six banks.
The circuit court upheld the claims of all who filed mechanics' liens, held that their liens attached both to the land and to the improvments and adjudged their liens prior *949 and paramount to the lien of the two million dollar deed of trust.
Preliminary to a determination of the matter of priorities is the question whether any lien ever came into existence in favor of either the bank or the general contractor.
The general contractor contends that the lending institutions acquired no lien by the execution of the two million dollar deed of trust, on the ground that the note which it supports was given without consideration. We hold that there was consideration for the two million dollar note and deed of trust, namely, the $1,900,000 loaned to the maker of the note. It is true that the parties adopted an unusual method of handling this transaction. The Wellston bank took the position that the note and deed of trust were the property of the maker of the note and not the property of the bank. The maker of the note, by executing notes which described the transaction as a pledge of collateral to secure other notes (the series of notes which the owner signed at the time the funds were dispersed), treated the note and deed of trust as its own. The trustee named in the deed of trust and the payee of the note and named beneficiary in the deed of trust, although officials of the Wellston bank, were said to have acted for Labor Discount Center, Inc. (the borrower). There is no explanation why a note for two million dollars was executed for a loan of $1,900,000, or whether the bank now acknowledges satisfaction of the series of notes totaling $1,900,000. Behind all of these unusual circumstances, however, is the central, all-important and controlling fact that, whatever the mechanics of the procedure, both lender and borrower intended and understood that the two million dollar deed of trust should be and was the basic security for a loan of $1,900,000; that it should be a first lien on the land and on the improvements to be constructed upon the land, and that in case the borrower defaulted the six banks, by exercising their rights through the Wellston bank as pledgee, should have the ultimate beneficial interest in the enforcement of the lien. In a similar situation this Court acknowledged that "a debtor may give two notes for the same indebtedness, one, the principal note, secured by another, as collateral, the collateral note being secured by a deed of trust on real or personal property. In such case, the mortgage securing the collateral note may be foreclosed by the creditor who is entitled to receive the proceeds to pay the sum due on his principal note. Dibert v. D'Arciy et al., 248 Mo. 617, 154 S.W. 1116." Graham v. Finnerty, Mo.Sup., 232 S.W. 129, 131 [2].
Appellants contend that the general contractor is not entitled to any mechanic's lien because the general contractor increased the costs of construction in violation of its covenant to complete the construction of the improvements for $1,250,000, which they say is the maximum amount it can recover, and that the general contractor violated paragraph 11 of the escrow agreement which prohibited the contractor from permitting any changes or additions to said plans, specifications and contract without written approval of owner, mortgagee and escrowee. Appellants urge that plaintiff's violations of the contract constitute a waiver of any lien over and above said contract price. We hold that the general contractor's right to a mechanic's lien was not waived and its enforcement was not barred either by reason of the fact that the actual cost of construction exceeded the sum of $1,250,000 or that the Wellston bank and escrowee did not endorse their approval in writing on the change orders. In the escrow agreement the general contractor agreed to build in accordance with the building contract between Labor Discount Center, Inc. and the general contractor, the terms of which were well known to the appellants. In the building contract the contract sum was not a fixed and inflexible sum but was subject to modification by changes agreed to by all. There was no provision in any of the agreements that *950 the general contractor would not be entitled to a mechanic's lien for labor performed and materials supplied in excess of the basic contract sum. We do not find the general contractor at fault in connection with the change orders. It had the right to make the changes requested by the owner, provided the written approval of the bank and escrowee were obtained. For the protection of the lenders it was the duty of the bank to examine the change orders and withhold approval thereon until the owner made arrangements to finance the additional cost involved, but by its conduct the bank waived its right to withhold such approval. The banking officials told the president of Labor Discount Center, Inc. on three or four occasions that there was no necessity for bringing the change orders to the bank and directed him to take them direct to the escrowee, on whom the bank relied with implicit confidence and to whom we find the bank surrendered its right to pass judgment on the change orders. Under these circumstances there was no duty on the general contractor to insist that the bank give its written approval. Furthermore, it was the contractual duty of the escrowee to withhold approval of any changes or additions until additional funds to pay for them were deposited with it. The escrowee breached its duty in this respect. By their conduct the bank and escrowee waived the provision of the escrow agreement in which the general contractor agreed to waive its right to make additional charges for changes or additions as to which the contractor failed to secure the written approval of the bank and escrowee. (The fact is that the escrowee did give its written approval to the change orders by endorsing every voucher form for the disbursement of construction funds submitted to it, with full knowledge in each case of the amount by which the change order increased construction costs, and after receiving letters from the general contractor showing how much the guaranteed contract price was being increased by reason of the change orders.) In any event, the parties by agreement established a pattern, a routine practice, a method of handling change orders which the parties accepted and adopted as full compliance with and performance of the contract. In such a situation the courts will follow the practice agreed to by the parties. Robson v. United Pacific Ins. Co., Mo.Sup., 391 S.W.2d 855, 862 [14, 15]; Woolfolk v. Jack Kennedy Chevrolet Co., Mo.App., 296 S.W.2d 511, 514 [2, 6].
No requirement having been made by the Wellston bank or the escrowee that additional funds be deposited by the owner to pay for the extra costs of the changes, the initial loan was insufficient to complete the building without going on credit. When the till was empty the general contractor proceeded to complete the building, relying for payment on the mechanic's lien law.
Appellants' argument that the general contractor agreed to absorb any cost over the sum of $1,250,000 by delivering the improvements lien-free at that cost is untenable. The agreement was to deliver the building and improvements described in the original specifications for that price, before costly changes were ordered by the owner. The general contractor did not agree to absorb the additional cost involved in the making of the 52 change orders.
Both the general contractor's mechanic's lien, and the bank's lien arising out of the deed of trust, were in existence and were valid. The vital question is one of priorities as between these liens.
Appellants urge that the court erred in adjudging the mechanic's liens prior and paramount to the lien of the two million dollar deed of trust. They say that the deed of trust having been recorded on December 21, 1962, prior to the commencement of the building or improvements, the court should apply the general rule of lien law that "prior in time is prior in right," and that the lien of the deed of trust should be applied to the entire property, not only to the land but also to the improvements.
*951 The following sections of the statutes, RSMo 1959, V.A.M.S., relate to priorities of mechanics' liens:
"429.050. Priority of lienimprovements removed whenexception. The lien for the things aforesaid, or work, shall attach to the buildings, erections or improvements for which they were furnished or the work was done, in preference to any prior lien or encumbrance or mortgage upon the land upon which said buildings, erections, improvements or machinery have been erected or put; and any person enforcing such lien may have such buildings, erections or improvements sold under execution, and the purchaser may remove the same within a reasonable time thereafter; provided, that nothing contained in this section shall be so construed as to allow any such sidewalk as is mentioned in sections 429.010 to 429.340 to be so sold under execution or so removed."
"429.060. Lien shall have precedence over subsequent encumbrances. The lien for work and materials as aforesaid shall be preferred to all other encumbrances which may be attached to or upon such buildings, bridges or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements."
A mechanic's lien properly filed dates from the commencement of the building or improvement, § 429.060, or as stated in Riverside Lumber Co. v. Schafer, 251 Mo. 539, 158 S.W. 340, "from the commencement of the work on the building, or the furnishing of the materials therefor." The commencement of the building or improvement, under the "first spade rule" which we recognize in this state, Schroeter Bros. Hdw. Co. v. Croatian "Sokol" G. Ass'n, 332 Mo. 440, 58 S.W.2d 995, 1003, means the visible commencement of actual operations on the ground for the erection of the building or the making of the improvement which makes it apparent that a building has been commenced or that an improvement is to be made, done with the intention and formed purpose to continue the work until completed. 36 Am.Jur. Mechanics' Liens § 167; 57 C.J.S. Mechanics' Liens § 179, p. 732. Boisot on Mechanics' Liens (1897) § 56, says the building is begun "when the first permanent work is done on the land" such as excavation for the foundation, or attaching to the land any material used in constructing a building, or "when the permanent work on the ground has progressed so far as to inform reasonable observers that it is designed for the erection of a building," or "the first labor done on the ground which is made the foundation of the building, and is to form part of the work suitable and necessary for its construction," but that "* * * laying off the ground for buildings and driving pegs in the ground to mark the location does not constitute a commencement of the building. Neither does clearing the ground of stumps and other obstructions, that would render insecure the foundations to be built, * * *." (Our emphasis.) In Mark's Sheet Metal, Inc. v. Republic Mortgage Co., Ark. (1967), 414 S.W.2d 106, a preliminary "on-site" inspection of the premises in which the president of a contracting firm determined the direction the house would face by a compass reading and the location of the center of the house on the lot, the use of a tape measure and the driving of a wooden peg into the ground to aid in the use of the tape, was held not to constitute "commencement of the building." In North Shaker Blvd. Co. v. Harriman Nat. Bank, 22 Ohio App. 487, 153 N.E. 909, the presence of steam shovels on the property, the location of test holes, the driving of stakes and other work of similar nature, and in Rupp v. Cline & Sons, Inc., 230 Md. 573, 188 A.2d 146, 1 A.L.R. 3d 815, grading and leveling the lot, were held insufficient to constitute "commencement" of the building. The rule is clearly stated in 57 C.J.S. Mechanics' Liens, § 179 b, p. 732: "* * * [W]ork which, although it may improve the property, is merely preparatory to building operations at some future time, and does not of itself tend to contribute directly to the erection, *952 such as clearing, leveling, filling up, or fencing the property, * * * does not constitute a commencement for the purpose of fixing the time to which the lien relates, * * *. Also staking out the plan of the building or the line of foundations, or staking the boundary line of the tract, * * * does not constitute a commencement of the building within the meaning of the lien statutes." (Our italics.)
The circuit court found that the general contractor "began the erection" of the buildings and improvements on December 5, 1962. Under the authorities, however, the acts performed by John Mincher and his workmen on that date and on the several days thereafter prior to December 21 when the deed of trust was filed for record did not constitute the commencement of the building and improvement within the meaning of § 429.060. Accordingly, the lien of the deed of trust attached on December 21, 1962, before the mechanic's lien, which attached on January 8, 1963. The lien of the deed of trust would be prior and superior to that of the mechanic's lien claimants, in the absence of a contrary statute or rule of law. There is, however, such a statute and under the circumstances of this case there is such a rule of law.
(1) The statute
Section 429.050, supra, is applicable and by its force a lien in favor of the general contractor and all other lien claimants whose liens were properly filed attached to the building and improvements in preference to the prior lien of the deed of trust upon the land on which they were put. Appellants asserts that § 429.050 does not apply to construction loan arrangements in which the lender is legally obligated to disburse the proceeds of the construction loan for the improvement of the property and the mortgage is taken not only on the land but also with the expectation that the improvements to be built thereon will provide the major portion of the security for the loan; where the security only comes into being as the improvements are made and the loan proceeds are disbursed. This argument, being a matter for the General Assembly, not the courts, to consider, is advanced in the wrong forum. Section 429.050 is plainly written to encompass all prior liens, encumbrances or mortgages, and we cannot construe it to apply to less than all of them. The same question was answered the same way in Drake Lumber Co. v. Paget Mortgage Co., 203 Or. 66, 274 P.2d 804, 814 [13]: "Our statute makes no exception, but manifestly refers to all prior recorded mortgages, whether given for future advances to aid in construction or not. We are not at liberty to import exceptions into the statutes because of possibilities conjured up by counsel that the expectations of a mortgagee concerning the security which he is receiving will be disappointed." And in 57 C.J.S. Mechanics' Liens § 201, p. 760, it is stated that "the general rules governing priority between mechanics' liens and mortgages ordinarily are deemed applicable notwithstanding the loan secured by the mortgage was made with the purpose, understanding, or expectation that the proceeds thereof would be used in improving the property or the mortgage was given to secure a debt for work done on, or materials furnished for, the building."
(2) The rule of law
Under the doctrine of waiver a mortgagee by reason of having induced the furnishing of labor and material may be precluded from asserting the priority of the mortgage over a mechanic's lien. 57 C.J.S. Mechanics' Liens § 204 b. (1), p. 768. The rule was asserted and applied in Magidson v. Stern, 235 Mo.App. 1039, 148 S.W.2d 144 [8,9]. Stern and wife owned three tenement buildings on which an investment company held a prior deed of trust. The owners wished to build and make substantial additions and alterations which would materially increase the value of the security. The investment company loaned *953 Stern the money with which to make the improvements with full knowledge of the purpose of the loan and actually paid the money out as the work progressed, some of it directly to the principal contractor or to the subcontractors on his orders. Adverting to the rule that a mortgagee does not waive the priority of his lien by merely consenting or failing to object to improvements made on the property, the court of appeals said, 148 S.W.2d, l.c. 153 [9]: "The admitted facts in the case at bar show clearly that [the investment company] did far more than merely consent, or fail to object, to the making of the improvements. On the contrary, it not only provided the funds to be used in payment for the work, but indeed actively participated to the extent of writing the checks, and, in instances, making payments directly to the contractors themselves as the work progressed, for which payments it took and retained receipts in its files. * * * It is obvious from the facts and circumstances as shown by defendants' own evidence that the matter of contracting with plaintiff for the improvements was handled by prearrangement with the Sterns and [the investment company] for the benefit of their respective interests in the property; and with [the investment company] having thus induced the furnishing of the labor and material, and having actively participated in the transaction by retaining the proceeds of the improvement loan which it thereafter paid out as the work progressed, it must follow, as the lower court found, that the mechanic's liens for the unpaid balance due for labor and material going into the improvements are to be held prior and superior to the lien of the existing first deed of trust."
The same rule was applied to subordinate a purchase money deed of trust to the lien of a materialman in Jefferson County Lumber Co. v. Robinson, Mo.App., 121 S. W.2d 209, where repairs to existing buildings were made and materials furnished not only with the knowledge and consent of the mortgagee, but also with his active co-operation, pursuant to an agreement between the owner and the mortgagee, under circumstances in which the mortgagee would not have taken back a deed of trust for the purchase price if there had not been an agreement about improvements.
This rule applies in this case. The Wellston bank, mortgagee,[1] not only did not object and consented to the making of the improvements but was a prime mover in making the project possible. Its officials conferred with the president of Labor Discount Center, Inc. with reference to interim financing, arranged with the other five banks for their participation, had the owner assign its commitment from the pension fund to the bank, signed the escrow agreement in which the general contractor promised to build and fully complete the improvements according to the plans, specifications and building contract of which the bank had full knowledge, received all billings and requests for funds, furnished the money for the payment of the billings, took the promissory notes of the owner for the amounts advanced for construction purposes as the work progressed, and otherwise actively participated in the entire transaction. The bank would not have loaned any such sum as $1,900,000 on the bare land without an agreement to build a shopping center on the land. It was to the interest of the bank to procure the services of a general contractor to accomplish the building of the improvements. The bank was one of the signatories to a contract which obligated plaintiff to undertake the project. The arrangements thus made with plaintiff for the doing of the work and the furnishing of the materials were made to redound to the benefit of the bank. On the date the deed of trust was recorded *954 the bank not only had actual knowledge that a building was to be constructed on this land, but also the bank then knew that the employment of subcontractors by the general contractor was contemplated and that the mechanics and materialmen whose labor and materials were to create the improvement might be expected to file mechanics' liens against the property if their bills were not paid. The bank had much more knowledge about the construction of the improvement than it would have had if its officials had merely visually observed excavation for a foundation (which would have constituted "commencement of the building" and would have been notice to the world that a building was to be constructed there and if done prior to the recording of the deed of trust would have made the mechanics' liens paramount to a subsequently filed deed of trust, under all of the authorities). By its acts and conduct the bank caused, procured and induced all of the direct contractors and the subcontractors to perform the necessary services and to supply the needed materials for the construction of the improvement. Under these circumstances the bank is in no position to insist upon the subordination of the liens of the mechanics and materialmen and is taken to have waived the priority of the lien of the deed of trust in favor of the liens of the mechanic's lien claimants. The plaintiff and the other mechanic's lien claimants, therefore, have a paramount mechanic's lien not only on the improvements (by virtue of § 429.050) but also on the land itself.
Appellants try to differentiate Magidson v. Stern, supra, on the ground that the mortgage in that case was taken on improved property and the improvement consisted of repairs and additions to pre-existing buildings. We see no difference in principle between that kind of case and one in which the improvements are built on bare land. The important fact is that the mortgagee actively participated in the transaction whereby the mechanic's lien claimants were induced to supply the material and perform the labor.
The next point is that the court erred in adjudging that plaintiff's $50,000 fee be recovered as a part of its mechanic's lien.
Article 8 of the construction contract provided: "To secure payment to Contractor of the Fixed Fee of $50,000.00 referred to in Article 3 hereof, it is agreed between the parties hereto that Owner shall execute and deliver to Contractor its negotiable promissory note in the sum of $50,000.00 to become due and payable one year after date of completion of the work to be performed under this Contract. Said note shall bear no interest prior to maturity and shall bear interest after maturity at the rate of 8% per annum.
"Said note shall be secured by a Deed of Trust encumbering the same Real Estate described in the construction loan for $1,666,000.00 to be obtained by Owner and shall be subject to or subordinated to only the following described construction or permanent Deeds of Trust:
"all notes and deeds of trust executed in connection with the construction loan and permanent financing, the total sum of said notes and deeds of trust, however, not to exceed the sum of Two Million Dollars ($2,000,000.00)
"The above described promissory note and deed of trust in the sum of Fifty Thousand Dollars ($50,000.00) shall be delivered by the Owner to the Contractor upon completion of the work to be performed under the terms of this Contract."
The escrow agreement provided that "* * * upon completion of all improvements and payment of all bills for labor and materials hereunder, any surplus remaining unexpended in the Escrow Account shall be delivered to the Contractor and the amount of indebtedness of Owner to Contractor, being the fixed fee to be earned by Contractor, of $50,000.00, shall be reduced by the amount of such surplus *955 so delivered to Contractor, and the note or other evidence of indebtedness shall be credited with said surplus amount."
The escrow agreement further provided that "[u]pon completion of the contract if the cost as defined in the contract plus the fee is less than the maximum guaranteed price as modified by allowances or changes in work, the savings, if any, shall be applied to the Contractor's fee and the note for payment of fee shall be reduced accordingly."
There were savings in the awards to subcontractors totaling $82,734.80.
Appellants argue that the fee was paid by the note and deed of trust, which they say were intended by the parties to constitute full and final payment. We do not so find. The express wording of Article 8 of the contract indicates that the note and deed of trust were regarded as security for payment, not as payment and satisfaction. There is nothing to show to the contrary.
Appellants further argue that the fee and the security for the fee were to be inferior to all deeds of trust put on the property for the purpose of financing the project. The intention to subordinate is clear, but only if the agreement with reference to the taking of the note and deed of trust was executed. The note and deed of trust were signed and delivered to the escrowee (not to plaintiff) to be held in the escrow account until the construction contract was fully performed and the permanent financing should be secured and the permanent deeds of trust recorded. Then (and only then) escrowee was to record the deed of trust and deliver the recorded deed of trust and note to the general contractor after crediting the note with any payments received. If at the time of completion of the contract the general contractor had effected savings resulting in a surplus in the escrow account such surplus was to be delivered to the general contractor in reduction of the fixed fee, and the note credited therewith.
The agreement as to the taking of the note and deed of trust was never executed. The permanent deeds of trust were never recorded. The $50,000 deed of trust was never recorded. The note and recorded deed of trust were never delivered to the general contractor. (In order to obtain possession of them for the purpose of making a formal tender to the owner and appellants at the beginning of the trial it was necessary for counsel for the general contractor to call on appellants' counsel to produce them.) A mere agreement by one entitled to a mechanic's lien to accept other security does not amount to a waiver of the lien where such agreement is not executed. Fuhler v. Gohman & Levine Const. Co., 346 Mo. 588, 142 S.W.2d 482, 485 [7]; 57 C.J.S. Mechanics' Liens § 227, p. 801. There was no waiver or forfeiture of the general contractor's right to a mechanic's lien. But for the withdrawals to pay for change orders there would have been an unexpended surplus of $82,734.80 in the escrow account upon completion of all improvements and payment of all bills for labor and materials under the contract as originally written, and plaintiff would have been entitled to the fee in full in cash. Neither the withdrawals nor the failure of the escrowee to insist that additional funds be deposited to cover them was the fault of plaintiff. As it was, the cost was $82,734.80 less than the original contract price as modified by changes in the work, and these savings were properly applied to the payment of the fee by inclusion in the mechanic's lien.
Next, error is assigned in allowing Hartman-Walsh Painting Company a mechanic's lien, based upon a $17,552.17 painting bill. This claimant contracted directly with the owner. It completed its work on November 6, 1963 and filed a mechanic's lien statement on March 27, 1964. In its statement it named as owner of the property only Labor Discount Center, Inc. On May 5, 1964 it *956 filed its amended mechanic's lien statement in which it named as an additional owner the cestui que trust named in the deed of trust, and within six months thereafter (on November 2, 1964) it filed its cross-claim to enforce the lien. Both original and amended lien statement are identical in the amount claimed due and owing and in all respects other than the recitals of ownership, the date the general contractor began work, and an allegation of priority over the two million dollar deed of trust.
Appellants say that having filed a good and proper lien statement on March 27, 1964 this claimant was required by § 429.170 to file its action to perfect its mechanic's lien within six months after that date, that is, no later than September 27, 1964 and not having filed its cross-claim until November 2, 1964 is not entitled to a mechanic's lien. Hartman-Walsh claims that the March 27 lien statement was defective in that it failed to name the equitable owner of the property and therefore it was justified in filing a new or amended lien statement on May 5, and that its cross-claim was timely filed because its action was commenced within six months after May 5. Appellants counter with the argument that it is only when the first statement is void that a new six-month period starts with the filing of a proper second lien statement; that the first lien statement was not void or defective; that the second lien statement related back to the first and therefore the cross-claim was filed too late.
The first lien statement was defective in that it failed to include the cestui que trust as owner as required by § 429.150: "Every person, including all cestui que trust, * * * shall be included by the words `owner or proprietor' thereof under sections 429.010 to 429.340, * * *." When this omission was discovered claimant filed a new, complete lien statement "in amendment" of the first one, naming all owners within its knowledge (the record title holder and the cestui que trust) in accordance with § 429.080 which provides that "It shall be the duty of every original contractor, within six months * * * to file with the clerk of the circuit court * * * a just and true account * * * with the name of the owner or contractor, or both, if known to the person filing the lien * * *." When a defective or incomplete lien statement is filed a claimant may at any time thereafter (within the period prescribed for filing lien statements) file a perfect one. The right to file a second lien statement or a new statement in amendment of the first is not confined to cases like Davis v. Schuler, 38 Mo. 24, in which the first statement was void. It extends to cases in which the second corrects an error, South Missouri Lumber Co. v. Wright, 114 Mo. 326, 21 S.W. 811, or an omission, as in the case at bar. The time for the beginning of an action began to run on May 5, which is the date of the filing of the lien statement on which claimant relies. See Lindley v. McGlauflin, 58 Wash. 636, 109 P. 118, 120. Appellants' position was not changed on the basis of the first filing and their rights have been in no way prejudiced by the second filing. The court did not err in this connection.
Next, it is urged that the court erred in adjudging that the excavating and grading company was entitled to any mechanic's lien. On August 23, 1963 the grading company was hired by the president of Labor Discount Center, Inc. to "take down" a hill to provide a better line of sight from Interstate Highway 70 to the shopping center and spread the dirt around a road that led to a sewage treatment plant and to backfill around the sewage plant. The work was done under one continuous arrangement. The erection of the sewage plant was part of the original contract between plaintiff and the owner. The last work done by the grading company was performed on January 27, 1964, prior to completion of the work by plaintiff on February 4, 1964. The price charged, $3,468, was fair and reasonable. We consider this work as an essential and integral part of the plan for the construction of the shopping *957 center, appurtenant to the building, and fully lienable. See Vasquez v. Village Center, Inc., Mo.Sup., 362 S.W.2d 588.
Finally, appellants say the court erred in adjudging the mechanic's liens of Vic Koepke Excavating and Grading Company and of M. D. Magary, who built an incinerator at the site for $7,780, prior and paramount to the lien of the two million dollar deed of trust, "because the deed of trust was recorded prior to the time said cross-claimants began work as independent contractors, and disbursements under the deed of trust were made before said cross-claimants began work as independent contractors." Magary's mechanic's lien relates back to the first work done by the general contractor on January 8, 1963. There was no abandonment of the work, or break or cessation in the making of these improvements; there was a continuous flow of events from beginning to end. Under the doctrine of waiver, which we have held fully applicable in this situation, the court did not err in adjudging these mechanics' liens prior and paramount to the lien of the deed of trust. The fact that the incinerator was not included in the original plans on which the loan was made does not bar Magary's claim. An incinerator is a basic necessity in the operation of a building in which numerous tenants lease retail stores. It is an integral part of such an improvement. The cases cited by appellants are distinguishable on the facts.
The judgment is affirmed.
WELBORN and HIGGINS, CC., concur.
PER CURIAM.
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
HENLEY, P. J., SEILER, J., and STORCKMAN, Alternate J., concur.
HOLMAN, J., not sitting.
NOTES
[1] The Wellston bank, while not named as cestui que trust in the two million dollar deed of trust, was recognized as a mortgagee by all of the parties and designated as such in the escrow agreement. In law the bank was the beneficial mortgagee and the rights of the parties on this appeal will be adjudicated on that basis.
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FILED BY CLERK
IN THE COURT OF APPEALS FEB 26 2008
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
BARBARA HORNBECK, )
)
Petitioner/Appellant, ) 2 CA-CV 2007-0139
) DEPARTMENT B
v. )
) OPINION
THE HON. DENNIS LUSK, Justice of )
the Peace, Apache Junction Precinct, )
Pinal County Justice Courts; and THE )
PINAL COUNTY ATTORNEY’S )
OFFICE, )
)
Real Parties in Interest/Appellees. )
)
APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY
Cause No. CV200701676
Honorable William J. O’Neil, Judge
REVERSED AND REMANDED
Neal W. Bassett and Natalee Segal Phoenix
Attorneys for Petitioner/Appellant
James P. Walsh, Pinal County Attorney
By Joe A. Albo Florence
Attorneys for Real Parties in Interest/
Appellees
E C K E R S T R O M, Presiding Judge.
¶1 Appellant Barbara Hornbeck appeals from the superior court’s denial of her
petition for special action. In it, she asserted that the respondent judge, appellee Hon.
Dennis Lusk, justice of the peace of the Apache Junction Justice Court, abused his discretion
when he reassigned her case rather than transferring it to the presiding justice of the peace
of Pinal County for reassignment. Because we conclude the superior court erred in ruling
the respondent judge was entitled to reassign the case under the relevant rules of criminal
procedure, we reverse the judgment denying special action relief and remand the case for
further proceedings.
¶2 When reviewing the superior court’s denial of relief in a special action, we
view the facts in the light most favorable to sustaining the court’s ruling. McCown v.
Patagonia Union High Sch. Dist., 129 Ariz. 127, 127, 629 P.2d 94, 94 (App. 1981).
Hornbeck was charged with three counts of driving under the influence of an intoxicant in
Apache Junction Justice Court. After discovering her case was assigned to the respondent
judge, she filed a notice of change of judge as a matter of right pursuant to Rule 10.2, Ariz.
R. Crim. P. In that notice, she asserted that the presiding judge of the Pinal County justice
courts, rather than the respondent judge, should determine the reassignment of her case.
Essentially determining that he was the presiding judge of Apache Junction Justice Court,
the respondent judge reassigned the case himself, assigning it to a justice of the peace pro
tempore serving in the Apache Junction precinct.
2
¶3 Hornbeck filed a petition for special action in Pinal County Superior Court,
arguing the respondent judge abused his discretion when he failed to transfer her notice to
the presiding justice of the peace of Pinal County. The superior court dismissed Hornbeck’s
petition, concluding that each justice of the peace is generally only authorized to preside in
his or her own elected precinct and that no specific authority exists for the presiding justice
of the peace of Pinal County to reassign cases pursuant to Rule 10.2. This appeal followed.
¶4 Under most circumstances, we review a superior court’s denial of relief in a
special action for an abuse of discretion. Stoudamire v. Simon, 213 Ariz. 296, ¶ 3, 141 P.3d
776, 777 (App. 2006). However, when the resolution of an issue depends on the
interpretation and interplay of court rules and statutes, we review the superior court’s ruling
de novo. State ex rel. Brannan v. Williams, 217 Ariz. 207, ¶ 4, 171 P.3d 1248, 1250-51
(App. 2007). Hornbeck argues the superior court erred when it concluded the respondent
judge was the presiding judge under the relevant rules of criminal procedure.
¶5 Several rules of criminal procedure are relevant to the issue presented here.
Rule 10.2(a) provides that, in any noncapital criminal case, “each side is entitled as a matter
of right to a change of judge.” Rule 10.5(a), Ariz. R. Crim. P., provides that, after a party
requests a change of judge under Rule 10.2, “the case shall be transferred immediately to
the presiding judge who shall reassign the case to a new judge.” Finally, Rule 1.4(a), Ariz.
R. Crim. P., defines “presiding judge” in pertinent part, as follows: “For other courts [than
superior court]: the judge, or, in courts having more than one judge, the judge designated as
3
presiding judge by the appropriate authority.” In 2004, our legislature enacted A.R.S. § 22-
103, which provides that, in counties with two or more justice court precincts, “the justices
of the peace in that county shall periodically select one justice of the peace to serve as
presiding justice of the peace.” See also 2004 Ariz. Sess. Laws, ch. 98, § 1.
¶6 We use principles of statutory construction to interpret procedural rules.
Fragoso v. Fell, 210 Ariz. 427, ¶ 7, 111 P.3d 1027, 1030 (App. 2005). In doing so, we read
the rules “in conjunction with related statutes and harmoniz[e] the two whenever possible.”
Id. Our purpose is to interpret the statutes and rules according to the drafters’ intent, and
we will first look to the plain language of the statute or rule as the best evidence of that
intent. Id. If there is “uncertainty about the meaning or interpretation of the [rule]’s terms,”
we are required to employ “methods of statutory interpretation that go beyond the [rule]’s
literal language,” such as “consideration of the [rule]’s context, language, subject matter,
historical background, effects and consequences, and spirit and purpose.” Estancia Dev.
Assocs. v. City of Scottsdale, 196 Ariz. 87, ¶ 11, 993 P.2d 1051, 1054 (App. 1999). If the
language of a rule can be interpreted in more than one way, we honor the interpretation that
would achieve the general goals of the scheme in question. Estate of Hernandez v. Ariz.
Bd. of Regents, 177 Ariz. 244, 251, 866 P.2d 1330, 1337 (1994).
¶7 Here, Hornbeck and the respondent judge have interpreted the language of
Rule 1.4, which defines “presiding judge,” in two different and plausible ways. The
respondent judge concluded that, because he is the sole judge of the Apache Junction Justice
4
Court, he is the presiding judge under the terms of Rule 1.4. See Ariz. R. Crim. P. 1.4(a) (in
courts with only one judge, lone judge is “presiding”). By contrast, Hornbeck contends the
justice courts of Pinal County are a unitary court with different precincts; therefore, the
respondent judge is but one justice of the peace of many in that court. Accordingly, under
Rule 1.4, Rule 10.5, and § 22-103, the “presiding judge” would be the presiding justice of
the peace of Pinal County. See Ariz. R. Crim. P. 1.4(a) (in courts with more than one judge,
presiding judge is judge so designated by the appropriate authority).
¶8 The superior court rejected Hornbeck’s interpretation of the rules, in part
because it found no Arizona law authorizing the presiding justice of the peace of Pinal
County to reassign cases under the rules of criminal procedure, a conclusion suggesting that
it viewed the Apache Junction Justice Court, rather than the Pinal County Justice Courts,
as the relevant entity addressed in Rule 1.4(a). But, because we address the applicability
of a rule promulgated by our supreme court, our analysis of Rule 1.4(a) as applied by Rule
10.5(a), must be guided by that court’s intent. See Bergeron ex rel. Perez v. O’Neil, 205
Ariz. 640, ¶ 29, 74 P.3d 952, 962 (App. 2003) (local courts may not make orders that
“frustrate the intent of a [supreme court] rule”).
¶9 In March 2005, the supreme court issued Administrative Order No. 2005-22.
That order mirrors the language of § 22-103 in requiring “any county” with more than one
justice court precinct to provide for the selection of a presiding justice of the peace and
expressly sets forth the duties of that presiding judge, including:
5
1. Exercise administrative supervision, as directed by the
Supreme Court, over the justices of the peace, pro tem
judges and hearing officers.
....
4. Perform any duties and carry out any responsibilities that
are provided by law, rules or administrative orders of the
Supreme Court.
Thus, the express language of the administrative order not only suggests that counties are the
relevant administrative unit for justices of the peace, it also unequivocally assigns to the
presiding justice of the peace, selected countywide, those duties given to a presiding judge
under supreme court rules.1 Accordingly, under the terms of Administrative Order No.
2005-22, the presiding justice of the peace for Pinal County—not the justice of the peace
for its subdivision, Apache Junction Justice Court—is responsible for carrying out the duties
of a presiding judge as described by Rule 10.5(a).
¶10 Real Party in Interest the Pinal County attorney’s office (hereinafter “the
state”) counters that Order No. 2005-22 “is silent on the issue of p[er]emptory requests for
a change of judge” under the rules of criminal procedure. We disagree. The language of the
order requires the presiding justice of the peace to “[p]erform any duties and carry out any
responsibilities that are provided by . . . rules . . . of the Supreme Court.” (Emphasis added).
1
Although Rule 1.4, Ariz. R. Crim. P., standing alone, is arguably ambiguous about
what administrative unit is encompassed by the term “court,” it is clear that the term
“presiding judge” applies equally to justices of the peace in the context of applying the
Arizona Rules of Criminal Procedure.
6
We can think of no way to describe the Arizona Rules of Criminal Procedure, which are
promulgated by the Arizona Supreme Court, other than as rules of the supreme court. And
we reject the suggestion that the order is somehow inapplicable to the specific rules of
criminal procedure relevant here. To the contrary, the order expressly confers on the
presiding justice of the peace “any” duties and “any” responsibilities given by all the rules
promulgated by the supreme court. Because we presume the supreme court was aware of
the content of its own pre-existing rules when it adopted Administrative Order No. 2005-22,
cf. Daou v. Harris, 139 Ariz. 353, 357, 678 P.2d 934, 938 (1984) (legislature presumed to
be aware of existing laws when passing new legislation), we assume it fully intended
presiding justices of the peace to perform the duties enumerated for presiding judges under
those rules, including those duties specified in Rule 10.5(a).
¶11 The state also argues that the interpretation of Rules 1.4 and 10.5(a) we now
adopt is incorrect because the authority of a justice of the peace to act in other precincts is
limited by law.2 Specifically, the state observes that A.R.S. § 22-114(A) itemizes those
limited circumstances when a justice of the peace can preside and act in another precinct and
2
Pinal County’s justices of the peace, elected by the voters of specific precincts, see
A.R.S. §§ 22-101(A) and 22-111, sit in sometimes geographically remote venues. Here, for
example, the current presiding Pinal County justice of the peace, Marie Lorona, adjudicates
disputes in the Eloy precinct, while the respondent judge has been elected to serve the
Apache Junction precinct, whose courthouse is located a considerable distance away. See
Justice Courts Precinct Map, http://co.pinal.az.us/Justicecourts.
7
asserts that none of those circumstances exists here. In its cogently written and
comprehensive order, the superior court appeared to adopt this reasoning.
¶12 But we cannot agree that § 22-114(A) prohibits a presiding justice of the peace
from reassigning a case that has arisen in a precinct other than his or her own. To the
contrary, that provision broadly authorizes a justice of the peace to act as a judicial officer
in other precincts upon the “absence, illness or inability to act or upon the request of the
justice of the other precinct.” § 22-114(A) (emphasis added). Given our conclusion that
the respondent judge cannot be characterized as a presiding judge for the purposes of Rule
10.5(a), when read in light of Administrative Order No. 2005-22, he is unable to reassign
cases upon receipt of a notice of change of judge filed pursuant to Rule 10.2. Because he
is therefore unable to act to reassign cases, § 22-114(A) authorizes the presiding justice of
the peace of Pinal County to exercise her duty under Rule 10.5(a) to execute the
reassignment.3 See Fragoso, 210 Ariz. 427, ¶ 7, 111 P.3d at 1030 (we must read rules and
statutes in harmony when possible).
¶13 Last, we observe that our construction carries out the implicit goal of the
relevant rules. Once a litigant has filed a motion for change of judge, those rules generally
prevent the originally assigned judge, whom the litigant presumably has removed from the
case for some perceived bias, from taking any further actions affecting that litigant’s case.
3
Nothing in Rule 10.5(a) or any other pertinent provision would prohibit Justice
Lorona from assigning any other qualified judicial officer of the Pinal County justice courts
to handle the case.
8
See Court Comment to 2004 Amendments to Rules 10.2(a) through (d) (“The purpose of
the rules is to allow a party to ask for a new judge when a party may perceive a bias that
does not rise to disqualification [for cause].”); see also Ariz. R. Crim. P. 10.5(a) (“case shall
be transferred immediately to the presiding judge” upon filing of Rule 10.2 motion); Ariz.
R. Crim. P. 10.6 (“[W]hen a motion or request for change of judge is timely filed under this
rule, the judge shall proceed no further in the action, except to make such temporary orders
as may be necessary in the interest of justice before the action can be transferred to the
presiding judge . . . .”); see also Nordstrom v. Leonardo, 214 Ariz. 545, ¶ 12, 155 P.3d
1069, 1072 (App. 2007) (strictly enforcing Rule 10.6 requirement that court “proceed no
further in the action”).
¶14 Were we to interpret the rules as the respondent judge did—characterizing
each justice-of-the-peace precinct as a separate court for purposes of Rule 1.4(a) and
therefore concluding that each justice of the peace, elected by precinct, is a presiding judge
under the rules—the general intent of Rules 10.5(a) and 10.6, that a preempted judge not
choose his or her successor for the case, would be thwarted in our justice courts. See A.R.S.
§§ 22-101(A) and 22-111 (all Arizona counties divided into justice court precincts with one
elected justice of the peace per precinct). Because we adopt the interpretation of the rules
most consistent with their overall goal, see Estate of Hernandez, 177 Ariz. at 251, 866 P.2d
at 1337, we conclude that, for purposes of Rules 10.2, 10.5(a), and 10.6, the “presiding
9
judge” in any county with two or more justice courts is the presiding justice of the peace of
that county.
¶15 For the foregoing reasons, we reverse the judgment of the superior court
denying special action relief and remand the case to the Apache Junction Justice Court for
further proceedings consistent with this decision.
____________________________________
PETER J. ECKERSTROM, Presiding Judge
CONCURRING:
____________________________________
PHILIP G. ESPINOSA, Judge
____________________________________
GARYE L. VÁSQUEZ, Judge
10
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 7, 2001
STATE OF TENNESSEE v. ERIC D. THOMAS
Appeal from the Criminal Court for Shelby County
Nos. 97-08123,24,25,27 Joseph B. Dailey, Judge
No. W1999-00337-CCA-R3-CD - Filed June 26, 2001
The Defendant, Eric D. Thomas, pled guilty to four counts of robbery and was sentenced to six years
for each conviction. The sentences were ordered to run consecutively, which ruling the Defendant
now appeals. The judgment of the trial court ordering the Defendant’s sentences to run consecutively
is reversed, and this matter is remanded for resentencing on the issue of consecutive sentences.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed in Part
DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE , J., joined.
Eric Thomas, Whiteville, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
Initially, we note that this case began with a rather unusual procedural twist. James C. Paris
of the Shelby County Sheriff’s Office was investigating whether the Defendant committed four bank
robberies and a post-office robbery. The Defendant agreed to make statements concerning all five
robberies in exchange for the State agreeing to prosecute them as simple robberies and agreeing to
drop several other charges. The Defendant gave the statements, and the State subsequently charged
the Defendant with three counts of robbery and two counts of aggravated robbery. The Defendant
filed a motion to enforce a verbal plea agreement, and an evidentiary hearing was held. Upon hearing
the Defendant’s testimony, the State voluntarily reduced the two aggravated robbery charges to
robbery. However, the Defendant also claimed during the hearing that the plea bargain included a
provision as to the amount of time he would serve on the five counts. At the conclusion of the
hearing, the trial court expressly found the Defendant’s testimony on this point to be not credible and
found that the agreement made no provision as to the length of the Defendant’s sentences.
The Defendant went to trial on the first of the charges and was convicted of that robbery; he
was subsequently sentenced to eight years and one day. The Defendant later went to trial on another
of the robbery charges; mid-trial, he changed his plea and pled guilty to all four remaining robbery
charges. The trial court subsequently sentenced the Defendant as a Range II, multiple offender to the
minimum of six years1 on each of the four additional robbery convictions.2 The trial court further
found the Defendant to be a dangerous offender and ordered the four sentences to run consecutively
to each other and to the prior sentence of eight years and a day, for an effective sentence of thirty-two
years and a day. The Defendant now appeals.
In his pro se pleadings, the Defendant raises numerous issues, several of which do not relate
to his sentence. Specifically, the Defendant complains that the original charge of aggravated robbery
does not support his guilty plea to the lesser charge of robbery; that the trial court lacked jurisdiction
over the robbery committed at a United States Post Office; and that the trial court erred with respect
to its findings on the Defendant’s motion to enforce his alleged plea agreement. All of these claims
are without merit. Robbery is a lesser included offense of aggravated robbery. See generally State
v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). The State of Tennessee generally has jurisdiction over
crimes committed on federal property such as a United States Post Office located within the State of
Tennessee. See Tenn. Code Ann. § 4-1-107. The trial court’s findings of fact on the Defendant’s
motion to enforce a verbal plea agreement are supported by the record, and we find no error with
respect thereto. Furthermore, the Defendant’s contentions regarding the trial court’s findings on his
motion were waived upon his plea of guilty to the charges encompassed by the alleged agreement.
The Defendant is therefore entitled to no relief on these issues.
The Defendant also contends that he was “fraudulently induced” to plead guilty by the trial
court’s findings on his alleged plea agreement and the trial court’s subsequent admission into
evidence of the statements the Defendant made in conjunction with his plea agreement. However,
prior to entering his guilty pleas, the Defendant knew that the trial court had specifically found that
there was no agreement as to the length of his sentences. Thus, there was no “fraud” practiced upon
the Defendant. Moreover, the Defendant waived his right to complain about the trial court’s
admission of evidence when he pleaded guilty to the charges for which he was being tried. This issue
is without merit.
The Defendant also raises several issues with respect to his sentences. He contends that the
prior convictions on which his Range II status is based are “facially void”; that the trial court erred
1
Robbery is a Class C felo ny. See Tenn. Code Ann. § 39-13-401(b). The minimum sentence for a Range II,
multiple offend er for a Class C felony is six years. See id. § 40-35-112(b)(3).
2
The trial court found as enhancement factors that the Defendant has a previous history of criminal convictions
or behavior in addition to th ose necess ary to establis h his sentencing range and that he has a previous history of
unwillingness to c omply with the conditio ns of a sentenc e involving re lease in the co mmunity. See Tenn. Code Ann.
§ 40-35-1 14(1), (8 ). In mitigation, the tria l court found that the Defendant had accepted responsibility for his crimes
and pled guilty. See id. § 40-35-113(13). The trial court gave little emphasis, however, to any of these factors in its
sentencing decision.
-2-
by failing to use certified copies of his prior convictions in determining him to be a Range II offender;
and that the trial court erred by ordering his sentences to be served consecutively. With respect to the
Defendant’s contentions regarding his Range II status, these issues have been waived because the
Defendant is raising these complaints about his prior convictions for the first time in this appeal.3
Issues raised for the first time on appeal are generally waived. See State v. Alvarado, 961 S.W.2d
136, 153 (Tenn. Crim. App. 1996). A party who participates in or invites error is not entitled to relief.
Tenn. R. App. P. 36(a). Accordingly, we decline to address these contentions. We will, however,
address the Defendant’s contentions regarding his consecutive sentencing.
When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is
“conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).
When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App.
1988).
If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the factors
and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
A trial court may order sentences for multiple convictions to run consecutively if it finds by
a preponderance of the evidence that, inter alia,
(1) [t]he defendant is a professional criminal who has knowingly
devoted [himself] to criminal acts as a major source of livelihood;
(2) [t]he defendant is an offender whose record of criminal activity is
extensive; [or]
...
3
W e also note that during the hearing on the Defendant’s motion to enforce a verbal plea agreement, the
Defenda nt’s attorney described the Defendant’s Range II status as a fact about which there was no dispute. Indeed, the
Defenda nt himself testified that h is plea agree ment was “five c ounts simple robbery, ra nge two.”
-3-
(4) [t]he defendant is a dangerous offender whose behavior indicates
little or no regard for human life, and no hesitation about committing
a crime in which the risk to human life is high[.]
Tenn. Code Ann. § 40-35-115(b). In order to impose consecutive sentences on the basis that the
defendant is a dangerous offender, the trial court must make two additional findings: that an extended
sentence is necessary to protect the public against further criminal conduct by the defendant, and that
the consecutive sentences reasonably relate to the severity of the offenses committed. See State v.
Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).
In this case, the trial court first found that “the offenses, themselves, did not involve any injury
to anyone and did not, apparently, actually involve a weapon.” Rather, the court found, the robberies
involved “threats of violence of one form or another conveyed during the course of the robberies.”
The court then found the Defendant to be a dangerous offender based on “his record and the number
of cases, the types of cases, the types of messages conveyed, [and] the fear stated by the victims.”4
The trial court did not make the additional findings required under Wilkerson.
We find ourselves constrained to disagree with the trial court that the Defendant qualifies
under our sentencing law as a “dangerous offender.” The four robberies to which the Defendant pled
guilty involved neither injuries nor weapons. While the Defendant apparently threatened the victims
with violence, he did not cause any injuries and was not armed. The evidence does not, therefore,
support a finding that the Defendant behaved in a manner which indicates little or no regard for
human life; nor does it support a finding that he had no hesitation about committing these crimes in
such a way that the risk to human life was high. Accordingly, we must find that the trial court erred
in ordering that the Defendant serve his sentences consecutively on the basis that he is a “dangerous
offender.”
Given the Defendant’s prior criminal record, however, he may qualify for consecutive
sentencing as a professional criminal or as an offender whose record of criminal activity is extensive.
4
The trial court also stated in support of its decision to impose consecutive sentencing that, “If somebody
commits one robbery -- one bank robbery that hadn’t been caught yet, if he’s to commit four more and get concurrent
time for everything, then there’s no deterrent, whatsoever, for not going out and committing as many as he can before
he finally gets caught. If he’s going to get concurrent time for it all ultimately, anyway, then there is absolutely no
incentive for him to curb his conduct and comply with the law. He might as well commit as many as he can get away
with until he finally gets caught because they’re all going to be served concurrently, anyway, so they’re all free after that
first one would be the logic of it. And so I think you virtually have to be sentenced to consecutive sentencing in order
for there to be any sense at all to our sentencing scheme -- sentencing structure -- in a situation of this sort.” While we
are sympathetic to the trial court’s reasoning, our Legislature did not provide for consecutive sentencing on this basis.
-4-
Accordingly, we remand this matter to the trial court for further findings as to the Defendant’s
eligibility for consecutive sentencing. If, on remand, the trial court finds an alternative ground for
consecutive sentences which is supported by a preponderance of the evidence, then consecutive
sentences may still be appropriate, so long as the actual length of the sentence is “justly deserved in
relation to the seriousness of the offense[s]” and is “no greater than that deserved for the offense[s]
committed.” Tenn. Code Ann. §§ 40-35-102(1), -103(2); see also State v. Lane, 3 S.W.3d 456, 460
(Tenn. 1999).
For the reasons set forth herein, we vacate that portion of the trial court’s judgment ordering
the Defendant’s sentences to be served consecutively, and we remand this matter for resentencing
solely on the issue of consecutive sentencing.
___________________________________
DAVID H. WELLES, JUDGE
-5-
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15-2883-cv
Shaw v. Prindle, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 1st day of September, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR.,
JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
MICHAEL SHAW,
Plaintiff-Appellant, No. 15-2883-cv
v.
S. PRINDLE, CORRECTION OFFICER, RUSSO, CAPTAIN,
ACTING DEPUTY SUPERINTENDENT OF SECURITY,
ROLLIN LARKIN, SUPERINTENDENT,
Defendants-Appellees. *
FOR PLAINTIFF-APPELLANT: Michael Shaw, pro se, Gowanda, New
York.
* The Clerk of Court is directed to amend the official caption to conform to the caption above.
FOR DEFENDANTS-APPELLEES: Brian D. Ginsberg, Assistant Solicitor
General, Andrew B. Ayers, Senior
Assistant Solicitor General, Barbara D.
Underwood, Solicitor General, Eric T.
Schneiderman, Attorney General of the
State of New York, Albany, New York.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Frederick J. Scullin, Jr., Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the August 10, 2015 judgment of the District Court is
AFFIRMED.
Appellant Michael Shaw (“Shaw”), proceeding pro se, appeals the District Court’s judgment
(1) dismissing his amended complaint brought under 42 U.S.C. § 1983, alleging supervisory-liability
claims against Superintendent Rollin Larkin (“Larkin”) and Captain Russo (“Russo”), and (2)
granting summary judgment in favor of Corrections Officer Simon Prindle (“Prindle”) with respect
to his Eighth Amendment sexual-misconduct claim. He also seeks review of a decision of the
District Court (3) denying his discovery request for documentation of past inmate grievances against
Prindle. We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.
We review the grant of judgment on the pleadings and summary judgment de novo, Kirkendall
v. Halliburton, Inc., 707 F.3d 173, 178–79 (2d Cir. 2013), and the denial of a discovery request for
abuse of discretion, Gualandi v. Adams, 385 F.3d 236, 244–45 (2d Cir. 2004). To survive a motion for
judgment on the pleadings, “the complaint must contain sufficient factual matter to state a claim to
relief that is plausible on its face.” Kirkendall, 707 F.3d at 178–79 (internal quotation marks omitted).
Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Sousa v. Marquez, 702
F.3d 124, 127 (2d Cir. 2012) (internal quotation marks omitted). We are required to resolve all
ambiguities and draw all inferences in favor of the non-movant. Nationwide Life Ins. Co. v. Bankers
Leasing Assoc., Inc., 182 F.3d 157, 160 (2d Cir. 1999).
I. Supervisory-Liability Claims
As a threshold matter, we conclude that we have appellate jurisdiction to review the portion
of the judgment that involved the District Court’s order dismissing Shaw’s supervisory-liability
claims because Shaw is a pro se appellant who appealed from an order closing the case. See Elliot v.
City of Hartford, 823 F.3d 170, 171 (2d Cir. 2016). We now turn to the District Court’s dismissal of
Shaw’s complaint under Federal Rule of Civil Procedure 12(c).
2
To state a claim for supervisory liability, a plaintiff must establish that:
(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant
exhibited deliberate indifference . . . by failing to act on information
indicating that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
In the circumstances presented here, we conclude that the District Court properly
determined that Shaw failed to state a plausible claim for relief against Larkin and Russo under Colon.
See Shaw v. Prindle, No. 9:12-CV-1281 (FJS/CFH), 2014 WL 4988233, at *5 (N.D.N.Y. Oct. 7, 2014).
Shaw alleged in his amended complaint that Larkin and Russo “knowingly and willingly allow[ed] the
actions of . . . Prindle to continuously violate the Civil and Constitutional rights of plaintiff, based on
all of the sexual complaints against . . . Prindle o[ver] the course of several years.” No. 9:12-cv-
01281-FJS-CFH, ECF No. 9, at 4. But Shaw did not allege that Larkin or Russo were aware of the
alleged complaints against Prindle based on sexual misconduct, nor did he allege the dates when
those complaints were made or that Larkin and Russo were employed in supervisory positions when
those complaints were made.1 Accordingly, we conclude that Shaw has failed to state a plausible
supervisory-liability claim against Larkin or Russo under Colon.2
1 We note that the magistrate judge’s explanation that “merely writing letters and grievances to a
defendant is insufficient to establish notice and personal involvement,” Shaw v. Prindle, No. 9:12-CV-1281
(FJS/CFH), 2013 WL 9769725, *4 (N.D.N.Y. Dec. 4, 2013), could be construed as contrary to our statement
in Grullon v. City of New Haven that, at the pleading stage, a plaintiff is “entitled to have the court draw the
reasonable inference—if his amended complaint contained factual allegations indicating that the Letter was
sent to the Warden at an appropriate address and by appropriate means—that the Warden in fact received the
Letter, read it, and thereby became aware of the alleged conditions of which [plaintiff] complained.” 720 F.3d
133, 140–41 (2d Cir. 2013). This does not alter our conclusion, however, because Shaw failed to allege that
any such information was forwarded to the attention of Larkin or Russo.
2 “Although the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), may have heightened
the requirements for showing a supervisor’s personal involvement with respect to certain constitutional
violations, we need not reach Iqbal’s impact on Colon in this case, for [Shaw’s] [amended] complaint did not
adequately plead [Larkin’s or Russo’s] personal involvement even under Colon.” Grullon, 720 F.3d at 139.
3
II. Eighth Amendment Claim
To succeed on an Eighth Amendment claim, a plaintiff must show “(1) a deprivation that is
objectively, sufficiently serious” and “(2) a sufficiently culpable state of mind on the part of the
defendant official.” Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (internal quotation marks
omitted). “A corrections officer’s intentional contact with an inmate’s genitalia or other intimate
area, which serves no penological purpose and is undertaken with the intent to gratify the officer’s
sexual desire or humiliate the inmate, violates the Eighth Amendment.” Crawford v. Cuomo, 796 F.3d
252, 257 (2d Cir. 2015). Moreover, “even if contact between an officer and an inmate’s genitalia was
initially justified, if the officer finds no contraband, continued sexual contact may be actionable.” Id.
“In determining whether an Eighth Amendment violation has occurred, the principal inquiry is
whether the contact is incidental to legitimate official duties, such as a justifiable pat frisk or strip
search, or by contrast whether it is undertaken to arouse or gratify the officer or humiliate the
inmate.” Id. at 257–58.
We conclude that, in the circumstances presented here, there is no genuine issue of material
fact as to whether Prindle’s physical contact with Shaw’s genitalia during the pat frisk was “incidental
to legitimate official duties, such as a justifiable pat frisk.” Crawford, 796 F.3d at 257. At the outset,
Prindle was justified in searching Shaw for contraband (stamps), which Shaw testified he had indeed
possessed, even if Shaw relinquished the contraband before the search commenced. Indeed, Shaw’s
relinquishment of contraband does not necessarily obviate the need for a search, insofar as Shaw
easily could have hidden additional contraband on his person. And although Shaw testified that the
search, which was conducted over clothing, took longer than it was supposed to, and included what
Shaw viewed as excessive searching of his “crotch area and . . . in between [his] buttocks” and
massaging of his “rectum and groin area,” see No. 9:12-cv-01281-FJS-CFH, ECF No. 50-4, at 10–11,
19, we have previously held that “even an officer who is meticulous in conducting a search does not
violate an inmate’s constitutional rights as long as the officer had no intention of humiliating the
inmate or deriving sexual arousal or gratification from the contact,” Crawford, 796 F.3d at 258. Shaw
has adduced no evidence from which we can reasonably infer that Prindle had intended to search
him with intent to arouse or gratify Prindle’s sexual desires or to humiliate Shaw. We cannot infer
solely from the thoroughness of the search at issue here, which was conducted in the presence of
other officers in order to find known contraband, that Prindle was so motivated.
Accordingly, we conclude that the District Court properly granted summary judgment to
Prindle. As a result, we need not decide whether Prindle was entitled to qualified immunity in the
circumstances.
III. Discovery Issue
Finally, we conclude that the District Court did not err or “abuse its discretion” in denying
Shaw’s discovery request for documentation of past grievances against Prindle because the requested
4
material appears to relate to Shaw’s supervisory-liability claims, which were properly dismissed at the
pleading stage.
CONCLUSION
We have considered all of the parties’ arguments. For the reasons set forth above, we
AFFIRM the August 10, 2015 judgment of the District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5
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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHECKPOINT SYSTEMS, INC.,
Plaintiff-Appellant
v.
ALL-TAG SECURITY S.A., ALL-TAG SECURITY
AMERICAS, INC., SENSORMATIC ELECTRONICS
CORPORATION, KOBE PROPERTIES SARL,
Defendants-Appellees
______________________
2016-1397
______________________
Appeal from the United States District Court for the
Eastern District of Pennsylvania in No. 2:01-cv-02223-
PBT, Judge Petrese B. Tucker.
______________________
ON MOTION
______________________
Before NEWMAN, LOURIE, and MOORE, Circuit Judges.
NEWMAN, Circuit Judge.
ORDER
The appellees have filed an objection to Checkpoint’s
Bill of Costs.
2 CHECKPOINT SYSTEMS, INC. v. ALL-TAG SECURITY S.A.
The appellees first state that the court did not award
costs. That is incorrect, for the court’s Entry of Judgment
stated: “Costs are taxable against the appellee in favor of
the appellant under Rule 39.” This conforms with Federal
Circuit Rule 39(a), which states that: “When the clerk of
court provides notice of judgment or order disposing of an
appeal, the clerk of court must advise which party or
parties are entitled to costs.”
Federal Rule 62 states that “if an appeal is taken, the
appellant may obtain a stay by supersedeas bond,” and
Federal Rule 39(e)(3) states that “premiums paid for a
supersedeas bond or other bond to preserve rights pend-
ing appeal” are “taxable in the district court to the benefit
of the party entitled to costs under this rule.”
The appellees object to taxation of the premiums paid
for such bond, stating that they “did not insist on a super-
sedeas bond.” The record is otherwise. The record in-
cludes an email from Sensormatic stating that “execution
will begin in 14 days” and “if Checkpoint wishes to appeal,
I am sure we would stipulate to the adequacy of a 120%
Appeal Bond,” and Checkpoint’s response: “We will take
you up on the latter offer since Checkpoint plans to ap-
peal.”
On the record and in accordance with the Rules,
Checkpoint is entitled to include in its taxable costs the
premiums paid for the bond.
It is so ordered.
FOR THE COURT
August 31, 2017 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
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545 F.2d 95
GOODYEAR RUBBER & SUPPLY, INC., an Oregon Corporation,Plaintiff-Appellant,v.GREAT AMERICAN INSURANCE CO., a New York Corporation,Defendant-Appellee.
No. 74-3125.
United States Court of Appeals,Ninth Circuit.
Nov. 11, 1976.Rehearing Denied Dec. 22, 1976.
Patric J. Doherty (argued), Portland, Or., for plaintiff-appellant.
Frederick V. Betts (argued), of Skeel, McKelvy, Henke, Evenson & Betts, Seattle, Wash., for defendant-appellee.
Before MOORE* and DUNIWAY, Circuit Judges, and TAYLOR,** District Judge.
DUNIWAY, Circuit Judge:
1
Appellant Goodyear purchased two insurance policies from appellee Great American. The first, a "Select Liability Policy," provided:
2
COVERAGE D PROPERTY DAMAGE LIABILITY EXCEPT AUTOMOBILE. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of property damage caused by an occurrence.
3
(emphasis added)
4
"Property damage" was defined as "injury to or destruction of tangible property."
5
"Occurrence" was defined as:
6
. . . An accident, including injurious exposure to conditions which results . . . in bodily injury or property damage neither expected nor intended from the standpoint of the insured. . . .
7
The second policy, known as a catastrophe or umbrella policy, provided:
8
I. COVERAGE. To pay on behalf of the insured the ultimate net loss in excess of the retained limit hereinafter stated, which the insured shall become obligated to pay by reason of the liability imposed upon the insured by law or assumed by the insured under contract:
9
(a) . . .
10
(b) PROPERTY DAMAGE LIABILITY. For damages because of injury to or destruction of tangible property including consequential loss resulting therefrom . . . to which this insurance applies . . . caused by an occurrence. (emphasis added)
11
On August 8, 1971, while a barge owned by Pacific Inland Navigation Company was discharging gasoline at a Tank Farm in Pasco, Washington, a hose assembly sold by Goodyear leaked, causing an explosion and fire which killed a Pacific Inland employee, caused extensive damage to the Tank Farm, and endangered and damaged the barge, setting it afire. The tug Chinook, owned by Shaver Transportation Company, removed the barge to safety and helped to put out the fire. Shaver later filed a salvage claim against the barge's owners, who cross-complained against Goodyear. Goodyear then brought this separate action for declaratory relief. The trial court gave judgment for Great American, and Goodyear appeals. The question is whether the policies cover the potential liability of Goodyear for the salvage claim. We hold that they do.
12
Resolution of this controversy requires us to apply the principles stated by the Oregon Supreme Court in Gowans v. Northwestern Pacific Indemnity Co., 1971, 260 Or. 618, 489 P.2d 947. In that case the insureds sought reimbursement from their insurer for the amount of a reward paid for recovering stolen jewelry. The trial court held that the costs incurred were not a "loss by theft," and so were not covered by the policy. Reversing and ordering that judgment be entered for the plaintiff, the Supreme Court of Oregon stated:
13
It is an established rule of insurance law that where a peril specifically insured against sets other causes in motion which, in an unbroken sequence and connection between the act and final loss, produces the result for which recovery is sought, the insured peril is regarded as the proximate cause of the entire loss. 5 Appleman, Insurance Law and Practice 309. § 3083.
14
It is our opinion that in this case the payment by plaintiffs of a reward for recovery of their jewelry was a natural and direct consequence of the theft of the jewelry and followed naturally, although indirectly, from that act under the facts of this case and in the absence of evidence to the contrary. It is also our opinion, under these facts, that the dominant cause of the loss incurred by plaintiffs as a result of the payment of that reward was the theft of the jewelry. Accordingly, we hold that plaintiffs are entitled to recover that amount from defendants as the measure of their "loss" from the theft of their jewelry.
15
260 Or. at 621, 489 P.2d at 948-49.
16
American Economy Insurance Co. v. Commons, 1976, 26 Or.App. 153, 552 P.2d 612, is also closely in point. The policy there contained the same language as the Select Liability Policy here. The court held that the policy covered the costs incurred by the State Fire Marshal and chargeable to the insured in putting out a fire caused by an occurrence covered by the policy and producing property damage. Accord Globe Indem. Co. v. California, 1974, 43 Cal.App.3d 745, 118 Cal.Rptr. 75, cited and followed in American Economy, supra.
17
Here, as in Gowans, the peril insured against, the damage caused by the occurrence of explosion and fire, set the salvage operation in motion. The loss prevented by the rescue, like the loss prevented by the reward in Gowans, and the losses prevented by the fire fighters in American Economy and Globe Indemnity, was covered by the policy. It would be a strange kind of justice, and a stranger kind of logic, that would hold the defendant to be liable for as much as $450,000 if the barge and its contents had been consumed by fire, but free of liability for a much lesser amount because of the fortuity of rescue.
18
The judgment is reversed and the case is remanded with instructions to enter judgment for the plaintiff. Appellant's Petition for Attorney's Fees is referred to the district court, for an award of fees for services in that court and in this court (ORS 743.114).
*
The Honorable Leonard P. Moore, Senior United States Circuit Judge for the Second Circuit, sitting by designation
**
The Honorable Fred M. Taylor, Senior United States District Judge for the District of Idaho, sitting by designation
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675 So.2d 1049 (1996)
Sharon PETREL, Appellant,
v.
STATE of Florida, Appellee.
No. 95-1381.
District Court of Appeal of Florida, Fourth District.
July 3, 1996.
Richard L. Jorandby, Public Defender, and David McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee and Elliot B. Kula, Assistant Attorney *1050 General, West Palm Beach, for appellee.
PER CURIAM.
Appellant challenges the trial court's order denying her motion to suppress evidence. She claims that the stop of her vehicle, which ultimately led to the seizure of evidence, was a pretextual stop.[1] Recently in State v. Daniel, 665 So.2d 1040 (Fla.1995), our supreme court held that in determining whether a stop for a minor traffic violation which results in the seizure of evidence was impermissible under the Fourth Amendment, the proper analysis was whether a reasonable officer following usual police practices would have stopped the vehicle for the traffic infraction. However, more recently, the United States Supreme Court has held that under the Fourth Amendment an officer's reasons for a stop are immaterial and that stop is reasonable when the officer had probable cause to believe that a traffic violation occurred. Thus, the test adopted by the United States Supreme Court is whether an officer could have stopped the vehicle for a traffic infraction. See Whren v. United States, ___ U.S. ___, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). As we are constitutionally directed to construe the Fourth Amendment consistent with United States Supreme Court rulings, see Article I, Section 12, Florida Constitution, we affirm appellant's conviction and sentence.
Affirmed.
WARNER, FARMER and SHAHOOD, JJ., concur.
NOTES
[1] After appellant was stopped, she was arrested for driving with a suspended license.
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ACCEPTED
01-14-00522-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/31/2015 6:26:03 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00522-CR
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
FIRST SUPREME JUDICIAL DISTRICT
3/31/2015 6:26:03 PM
CHRISTOPHER A. PRINE
AT HOUSTON, TEXAS Clerk
********************
JAMES ALLEN BUNDAGE
Appellant
V.
THE STATE OF TEXAS
Appellee
********************
Appeal from the
12th District Court of Grimes County, Texas
Trial Cause No. 17,304
********************
STATE’S BRIEF
TUCK MOODY MCLAIN
District Attorney
P. O. Box 599
Anderson, Texas 77830
(936) 873-2137
State Bar No. 13737650
NO. 01-14-00522-CR
IN THE COURT OF APPEALS
FIRST SUPREME JUDICIAL DISTRICT
AT HOUSTON, TEXAS
********************
JAMES ALLEN BUNDAGE
Appellant
V.
THE STATE OF TEXAS
Appellee
********************
Appeal from the
12th District Court of Grimes County, Texas
Trial Cause No. 17,304
********************
STATE’S BRIEF
TUCK MOODY MCLAIN
District Attorney
P. O. Box 599
Anderson, Texas 77830
(936) 873-2137
State Bar No. 13737650
IDENTITY OF PARTIES AND COUNSEL
ATTORNEYS FOR THE STATE OF TEXAS
Tuck McLain
District Attorney
Grimes County, Texas
P.O. Box 599
Anderson, Texas 77830
TSB#13737650
(936) 873-2137
(936) 873-2688 fax
APPELLANT:
James Allen Bundage
TDC #1925564
McConnell Unit
3001 S. Emily Dr.
Beeville, Texas 78102
ATTORNEY FOR APPELLANT AT TRIAL
Frank Blezek
1414 11th St.
Huntsville, Texas 77340
William Bennett
P.O. Box 1748
Madisonville, Texas 77864
ATTORNEY FOR APPELLANT ON APPEAL
Mark Maltsberger
216 N. Bryan Ave, Suite 110
Bryan, Texas 77803
TRIAL JUDGE
Hon. Donald Kraemer
12th Judicial District Court, Grimes County, Texas
1100 University Ave., Room 303
Huntsville, Texas 77340
ii
TABLE OF CONTENTS
Identity of Parties and Counsel .......................................................................................... ii
Table of Contents .............................................................................................................. iii
Index of Authorities .......................................................................................................... iv
Statement of Case ............................................................................................................... 1
Issues Presented................................................................................................................... 2
Statement of Facts............................................................................................................... 2
State’s Response to Appellant’s Issue No. 1 ...................................................................... 3
THE TRIAL COURT PROPERLY DENIED APPELLANT’S REQUEST
FOR A JURY INSTRUCTION ON “VOLUNTARY CONDUCT”.
Summary of State’s Response to Appellant’s Issue No. 1 ................................................. 4
Argument and Authorities - State’s Response to Appellant’s Issue No. 1 ......................... 4
State’s Response to Appellant’s Issue No. 2 ...................................................................... 7
THE TRIAL COURT PROPERLY DENIED APPELLANT’S CHALLENGE
TO THE JURY PURSUANT TO BATSON V KENTUCKY AND ART.
35.261 TEX. CODE CRIM. PRO.
Summary of Argument - State’s Response to Appellant’s Issue No. 1 .............................. 8
Argument and Authorities - State’s Response to Appellant’s Issue No.1 .......................... 8
Prayer ................................................................................................................................ 12
Certificate of Service ........................................................................................................ 13
Certificate of Compliance ............................................................................................... 13
iii
INDEX OF AUTHORITIES
STATE CASES
Brown v. State, 906 S.W.2d 565, 568 (Tex.App.-
Houston [14th Dist.] 1995) ................................................................................................. 7
Dockery v. State, 542 S.W.2d 644, 649 (Tex.Cr.App.1976) .............................................. 5
Gerber v. State, 845 S.W.2d 460, 467 (Tex.App.-
Houston [1st Dist.] 1993, pet. ref'd) ................................................................................... 7
Gibson v. State, 144 S.W.3d 530, 534 (Tex.Crim.App.2004) ................................... 10, 11
Goldberg v. State, 95 S.W.3d 345, 385 (Tex.App.–
Houston [1st Dist.] 2002, pet. ref'd) ................................................................................. 11
Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) ............................................ 11
Joiner v. State, 696 S.W.2d 68 (Tex.App. -
San Antonio 1985, pet. granted, rev’d) .............................................................................. 6
Joiner v. State, 727 S.W.2d 534 (Tex Crim App. 1987) .................................................... 5
Rodgers v. State, 2004 WL 2363830, (Tex.App.-
Houston [1 Dist.] - 2003) ................................................................................................... 7
Satterwhite v. State, 858 S.W.2d 412, 415 (Tex.Crim.App.1993) ................................... 10
Smith v. State, 676 S.W.2d 379, 387 (Tex.Crim.App.1984) ............................................ 10
Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.1975) .......................................................... 5
Whitsey v. State, 796 S.W.2d 707, 713 (Tex.Crim.App.1989) .......................................... 9
Williams v. State, 630 S.W.2d 640, 644 (Tex.Cr.App.1982) ............................................. 5
Williams v. State, 804 S.W.2d 95, 97 (Tex.Cr.App. 1991) ................................................ 8
FEDERAL CASES
Hernandez v. New York, 500 U.S. 352, 358, 360 111 S.Ct. 1859,
114 L.Ed.2d 395 (1991) ..................................................................................................... 9
iv
Miller–El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) ................... 9
Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769,
131 L.Ed.2d 834 (1995) ................................................................................................... 10
RULES, CODES, AND STATUTES
Penal Code Sec. 6.01(a) .......................................................................................................... 4, 5
v
NO. 01-14-00522-CR
IN THE COURT OF APPEALS
FIRST SUPREME JUDICIAL DISTRICT
AT HOUSTON, TEXAS
********************
JAMES ALLEN BUNDAGE
Appellant
V.
THE STATE OF TEXAS
Appellee
********************
Appeal from the
12th District Court of Grimes County, Texas
Trial Cause No. 17,304
********************
STATE’S BRIEF
TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:
Now Comes, The State of Texas, and submits this brief in support of its prayer for
affirmation of the jury finding of guilty for murder. Having elected to have the Court assess
punishment appellant was sentenced to confinement for thirty-five (35) years in the Texas
Department of Criminal Justice - Institutional Division.
STATEMENT OF THE CASE
On December 13, 2012 in cause number 17,304, appellant was indicted for capital
murder. After the State having waived the death penalty, a jury was empaneled on the
Page 1 of 13
January 7, 2014 and appellant’s trial began that same date. On January 10, 2014, the jury
found appellant guilty of the lesser included offense of murder. Pursuant to the appellant’s
election, punishment was assessed by the trial court. A sentencing hearing was held on May
19, 2014 whereupon appellant was sentenced to thirty-five (35) years confinement in the
Texas Department of Criminal Justice - Institutional Division.
Appellant timely filed his notice of appeal on May 27, 2014.
ISSUES PRESENTED
The State will not reiterate appellant’s Issues Presented.
STATEMENT OF FACTS
The State will adopt Appellant’s Statement of Facts except to supplement when
appropriate. As stated in Appellant’s Brief, on September 24, 2012, James Bundage shot
Patrick McHale between the eyes with a .30-30 rifle in Grimes County, Texas. (State’s
Exhibit #39)(interview of Appellant). Death was instantaneous. (4 RR 103). Years of bad
blood existed between these neighbors who shared a fence line. (3 RR 77-82, 4 RR 7-13).
McHale operated a dog training facility on his property. (3 RR 74-77). Bundage lived alone
on family land that adjoined the McHale property. (3 RR 74). Bundage had previously been
convicted of disorderly conduct in regards to a prior incident between the neighbors. (4 RR
8-20; see State’s Exhibit #38).
On the morning of McHale’s death, McHale had contacted the Grimes County
Sheriff’s Department to complain of Bundage’s actions. (3 RR 86-91). Deputy Mike Beweley
Page 2 of 13
was dispatched to Stoneham, Texas and learned of the alleged cross words and actions of
Bundage directed toward McHale and his wife earlier that morning. (3 RR 36-37). Beweley
attempted to interview Bundage at this time but was unable to locate him. (3 RR 37-42).
Shortly thereafter, Beweley was dispatched to return to Stoneham following a 911 call from
McHale’s property. (3 RR 46). The 911 recording captured the audio of the shooting (State’s
Exhibit #5). Upon his arrival, Beweley discovered the dead body of Patrick McHale. (3 RR
48-49). Bundage was not at the scene when Deputy Beweley arrived. Beweley secured the
scene until other officers arrived whereupon a search of the are for Bundage was conducted.
Law enforcement was unable to locate Bundage. He had apparently fled the scene and was
in hiding. Subsequently, a warrant was issued for James Bundage (4 RR 49-50), Later that
evening, Bundage entered his residence without the knowledge of law enforcement watching
the residence. As he was “slipping” out of the residence, he was spotted by a Deputy.
Bundage was holding a .30-30 rifle and supplies while attempting to sneak away from the
his residence (3 RR 180-184). Bundage was immediately arrested. As he was being arrested,
Bundage told Deputies the shooting was an accident (3 RR 185). After his arrest, Bundage
confessed to causing the death of Patrick McHale but claimed that it was an accident. (4 RR
62-63, see State’s Exhibit #39).
STATE’S RESPONSE - APPELLANT’S ISSUE NO. 1
THE TRIAL COURT PROPERLY DENIED APPELLANT’S REQUEST
FOR A JURY INSTRUCTION ON “VOLUNTARY CONDUCT”.
Page 3 of 13
Summary of Argument - Stae’s Response to Appellant’s Issue No. 1:
Appellant requested the jury be instructed on the law of “voluntary conduct”.
Appellant’s request was based on appellant’s statement when arrested that “it was an
accident” along with appellant’s statement during his post arrest interview that it was an
accident. Appellant contended the simple expression that the shooting was a n accident was
sufficient to warrant the charge. The trial court denied the instruction.
The concept of “accident” is now partly performed by the requirement of Penal Code
Sec. 6.01(a). However, the mere assertion that a shooting was an “accident” does not require
an instruction on “voluntary conduct”. To be entitled to an instruction on involuntary
conduct, there must be evidence of an independent event, such as the conduct of a third party,
which could have precipitated the discharge of the weapon. As a result, an appellant's bare
assertion that a killing was accidental does not raise the issue of voluntariness. In the case
at bar, there is not a scintilla of evidence to support appellant’s assertion that the murder was
an accident. Without some evidence of an involuntary act, appellant was not entitled to the
instruction. The trial court properly denied appellant’s request for an instruction on
“voluntary conduct”
Argument and Authorities - State’s Response to Appellant’s Issue 1:
Appellant properly describes the standard of review and general law concerning the
analysis of an objected to charging error. For the sake of argument, the State agrees
appellant’s trial counsel properly preserved error and it is ripe for review. Appellant
Page 4 of 13
complains that the trial court erred in failing to give a requested jury instruction on
“voluntary conduct” based on appellant’s bare assertion that the shooting was an “accident”.
Appellant offers no evidence of “accident” other than his self serving statement it was an
accident. Appellant seems to imply that this mere assertion somehow necessitates an
instruction on “voluntary conduct.”
In discussing the distinction between “voluntariness” and “accident” and the genesis
of the law related to these concepts, the Court of Criminal Appeals stated as follows:
Under the former penal code there was a defense of accident, which properly
applied to cases in which the defendant's act was not “intentional.” Stiles v.
State, 520 S.W.2d 894 (Tex.Cr.App.1975). It must be recognized that the term
“intentional” had a much different meaning in the law of accident under the
former penal code than it now has in the law of culpable mental states under
the present penal code. See Dockery v. State, 542 S.W.2d 644, 649
(Tex.Cr.App.1976). In the former law of accident, the term “intentional” meant
something like “voluntary.” Therefore, the correct meaning of the former term
“accident” was that the actor did not voluntarily engage in conduct. But,
“accident” was also used under the former penal code to describe a
hodgepodge of defenses, including the absence of a culpable mental state,
conduct which was voluntary but that differed from the intended conduct,
mistake of fact, and an unexpected result. See Dockery v. State, 542 S.W.2d
644, 650 (Tex.Cr.App.1976) (Odom, J., dissenting). It is understandable that
the drafters of the present penal code rejected a term which had so many
meanings in law, as well as in popular usage, that it served to confuse issues
rather than to clarify them. Williams v. State, 630 S.W.2d 640, 644
(Tex.Cr.App.1982);
As such, “accident” is not a defense recognized in the law today contrary to appellant’s
implication. The concept of “accident” is now partly performed by the requirement of Penal
Code Sec. 6.01(a) that “[a] person commits an offense only if he voluntarily engages in
conduct....” Williams at 644; Dockery. 649–50.
Page 5 of 13
In Joiner v. State, 727 S.W.2d 534 (Tex Crim App. 1987), the Court of Criminal
Appeals addressed this issue with facts very similar to the case at bar. The defendant in
Joiner pulled out a pistol when confronting his victim in a bathroom and shot her. After
shooting her, the defendant stated “it was accident”. The Court of Criminal Appeals, in
reversing the lower court, favorably quoted Judge Butts dissent in the court of appeals
opinion. Judge Butts describes why an instruction on “voluntary conduct’ was inappropriate:
Even if we assume as true in this case the unintended but fatal discharge of the
gun pointed unlawfully at the deceased, the fact remains the intentional
pointing of the weapon was a voluntary act and the resulting death is imputable
to the appellant, who carried the gun concealed on his person, who drew the
gun, who pointed it at the deceased from two to three inches distance, and who
shot her in the face. There was no evidence of a scuffle, of the deceased's
striking him or the gun, or of any other movement not willed by appellant. This
is clearly voluntary conduct as contemplated by the statute, [V.T.C.A., Penal
Code Sec. 6.01(a) ] Joiner at 537 quoting Joiner v. State, 696 S.W.2d 68
(Tex.App.—San Antonio 1985) Judge Butts Dissent.
The Court of Criminal Appeals went on to hold:
We hold that on the facts of this case a charge on absence of voluntary conduct
was not required. As previously noted, appellant did not testify; thus, the only
evidence that even remotely raised the issue was the bare statement, “It was an
accident.” There was no explanation of what the “it” was: the statement could
have meant that appellant intentionally fired the revolver but did not intend to
hit her; or, he intended to hit her but not kill her; or, the act of firing the
revolver was unintentional. Joiner at 537.
This very court, faced with a similar set of facts, addressed this issue properly following
Joiner by stating.
Appellant's bare assertion that the firing of the pistol was accidental does not
raise the issue of voluntariness. An accused's testimony that a weapon
“accidentally went off” or that he “didn't intend to shoot but that it was an
Page 6 of 13
accident,” does not raise the issue of the voluntariness of his conduct. Gerber
v. State, 845 S.W.2d 460, 467 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd);
see also Joiner v. State, 727 S.W.2d 534, 536 (Tex.Crim.App.1987) (holding
that request for instruction on voluntariness was properly denied because bare
assertions of lack of intent and accidental discharge do not raise issue of
absence of voluntary conduct).
To be entitled to an instruction on involuntary conduct there must be “evidence
of an independent event, such as the conduct of a third party, which could have
precipitated the discharge of the bullet.” Brown v. State, 906 S.W.2d 565, 568
(Tex.App.-Houston [14th Dist.] 1995), aff'd, 955 S.W.2d 276 (Tex.Crim
.App.1997). Rodgers v. State, 2004 WL 2363830, (Tex.App.-Hous. [1 Dist.]
- 2003)
In the case at bar, appellant did not testify. His recorded statement to law enforcement
made the night of the murder merely had an assertion that the shooting was an accident
(State’s Exhibit #39) . Appellant admitted shot the victim with a 30-30 lever action rifle.
Appellant acknowledged loading the gun (State’s Exhibit #39) . Walking over to the victim’s
property and confronting him with the rifle (State’s Exhibit #39) . Appellant admits he
chambered the gun and, at some point “cocked” the hammer (State’s Exhibit #39) . The
evidence adduced at trial was that the “trigger pull’ on the rifle was 5 ½ - 6 ½ pounds (RR
vol 4 pp 34). Appellant admitted shooting at appellant but denied “intending” to kill him
(State’s Exhibit #39). There was no evidence from any source that there was a scuffle, of
anyone striking the gun or of any other force other than appellant’s own actions causing the
gun to be fired (State’s Exhibit #39). Additionally, the shooting was actually recorded via
a 911 call made by the deceased before the shooting (State’s Exhibit #5). It is clear from the
911 recording, in which the fatal shot can be heard, that there was no struggle, no intervening
Page 7 of 13
force, nothing that would have caused appellant actions to be “involuntary” or “accidental”.
As in Joiner and Rogers above, the only evidence appellant brings to the court
justifying his request for an instruction on voluntariness is the “bare assertion” that “it” was
an accident. Such “evidence” wholly fails to raise the issue and justify the charge. The trial
court properly denied appellant’s request for a charge on voluntariness.
STATE’S RESPONSE - APPELLANT’S ISSUE NO. 2
THE TRIAL COURT PROPERLY DENIED APPELLANT’S
CHALLENGE TO THE JURY PURSUANT TO BATSON V
KENTUCKY AND ART. 35.261 TEX. CODE CRIM. PRO.
Summary of Argument - State’s Response to Appellant’s Issue No. 2:
The State was challenged for using 3 of its strikes to strike 3 venire men that were
African American. The State offered race neutral reasons for each of the strikes. None of
the State’s race neutral reason were rebutted by appellant and the trial court accepted the
prosecutors explanations as race neutral and denied appellants challenge.
Argument and Authorities - State’s Response to Appellant’s Issue 2:
Appellant’s description of the prevailing law on the requirements to preserve error and
the courts standard of review is correct as it relates to a Batson Challenge. However
appellant simply makes a conclusory statement that the State’s race neutral reasons for each
strike were “invalid explanations.” Appellant asserts the State, therefore, failed to meet its
burden in providing race neutral reason for any strikes they utilized against a member of a
racial minority. As appellant stated, the Texas Court of Criminal Appeals has held that
Page 8 of 13
Batson contemplates a scheme of shifting burdens, whereby
1. Appellant has the initial burden of proof to establish a prima facie case of
purposeful discrimination
2. Burden (termed a burden of production) then shifts to the challenging party
to supply a race-neutral explanation for the peremptory challenge(s)
3. Burden (termed a burden of persuasion) next shifts back to the movant to
rebut the challenging party’s explanations so that it can be rationally inferred
that the challenging party engaged in purposeful racial discrimination.
Williams v. State, 804 S.W.2d 95, 97 (Tex.Cr.App. 1991).
Appellant objected to three of the State’s strikes claiming they were based on race.
Appellant complained of the State’s strike of Juror No. 42, Nicholas, Juror No. 36, Lewis,
and Juror No. 5, Johnson (RR Vol 2, pp 222). The State did not challenge the defenses
assertion that the venire men were of a protected class and the complained of venire men
were African-American as is appellant. Appellant met the first step of a proper Batson
Challenge. The State, essentially agreeing that the appellant had met their prima facie
burden then offered it’s race neutral reasons. The State responded that Juror No. 42,
Nicholas had a short employment history, was young (under 30) and had no ties to the
community (only a resident for a few months). A race-neutral explanation is one based on
something other than the race of the venire men. Hernandez v. New York, 500 U.S. 352, 358,
360 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). At this step of the inquiry, the issue is simply
the facial validity of the prosecutor's explanation. Id. Unless discriminatory intent is inherent
in the explanation, the offered reason is race neutral. Clearly the prosecutors explanation was
race neutral. In the third step, the court must determine whether the defendant proved
purposeful discrimination. The trial judge must evaluate the facially race-neutral reasons
Page 9 of 13
given by the prosecutor to determine whether those explanations are genuine or merely a
pretext for purposeful discrimination. Whitsey v. State, 796 S.W.2d 707, 713
(Tex.Crim.App.1989). Batson affords the State an opportunity to give its reason for striking
a venire men, but requires the court to “assess the plausibility of that reason in light of all
evidence with a bearing on it. Miller–El v. Dretke, 545 U.S. at 252, 125 S.Ct. 2317.
After providing this race neutral reason, the burden shifts to appellant to rebut the
State’s reasoning. Appellant offered no additional evidence indicating that any non-African
American jurors with Juror 42's “profile” were not struck by the State or allowed on the jury.
There was no evidence adduced by witnesses nor presented in the record indicating the
State’s reasoning was, in any way, a pretext. As a result, the appellant wholly failed to rebut
the State’s reasoning.
In reviewing Batson challenges, courts have held that the reviewing court examines
jury selection from a cold record. Satterwhite v. State, 858 S.W.2d 412, 415
(Tex.Crim.App.1993). The trial court, unlike a reviewing court, has the opportunity to view
each venire men's demeanor and to evaluate his or her credibility and, ultimately, is in the
better position to pass on the challenges for cause presented. Satterwhite, 858 S.W.2d at 415
(citing Smith v. State, 676 S.W.2d 379, 387 (Tex.Crim.App.1984)). Consequently, a
reviewing court should not reverse a trial court's ruling on a Batson challenge unless it is
clearly erroneous. See Gibson v. State, 144 S.W.3d 530, 534 (Tex.Crim.App.2004). To hold
that a trial court clearly erred, the reviewing court must have a “definite and firm conviction
Page 10 of 13
that a mistake has been committed.” Goldberg v. State, 95 S.W.3d 345, 385
(Tex.App.–Houston [1st Dist.] 2002, pet. ref'd). The reviewing court should not substitute
it’s opinion for the trial court's factual assessment of the neutrality of the prosecutor's
explanation for exercising strikes, and we focus on the genuiness, rather than the
reasonableness, of the prosecutor's asserted nonracial motive. Gibson, 144 S.W.3d at 534 n.
5 (citing Purkett, 514 U.S. at 765, 115 S.Ct. at 1771–72). The appellate court must give great
deference to the trial court's determination, and view the evidence in the light most favorable
to the trial court's ruling. Gibson, 144 S.W.3d at 534 n. 6 (citing Guzman v. State, 955
S.W.2d 85, 89 (Tex.Crim.App.1997)). In the case at bar, the trial court clearly accepted the
prosecutors race neutral explanations and no evidence in the record a adduced by appellant
contradicts the prosecutors race neutral explanation.
Likewise, the State went on to explain it’s strike of Juror No. 36, Lewis by indicating
Lewis was seen waving at the defendant when entering the courtroom and that they gave
each other the “thumbs up”. This was unrebutted by appellant. Furthermore, the State
testified that during questioning, Juror 36 denied knowing the defendant. (RR Vol 2, pp 222-
223). Once again, appellant failed to offer any evidence challenging the State’s proffer or
indicating the race neutral reasons were a pretext.
Finally, the State explained it’s strike of Juror No 5, Johnson, indicating their decision
was based on multiple criminal charges the State was aware of against Juror No. 5. Once
again, appellant failed to offer any rebuttal for this race neutral reason.
Page 11 of 13
In his brief, appellant’s only attempt to claim appellant made any rebuttal to the
State’s race neutral explanations is a reference to a statement made BEFORE appellant even
made his Batson challenge based on race. Appellant’s attempt at a Batson challenge to
challenge the State’s strikes based on gender. This tactic failed when it was pointed out the
ENTIRE JURY WAS FEMALE! (RR Vol 2 pp 223-224). The state had struck at least four
males and appellant had also struck every male in the strike zone. In support of this
argument that the State was trying to eliminate all women as well as all people of color,
appellant’s trial counsel made an “off hand” and unsubstantiated comment that the state
couldn’t strike all of the women because they were trying to also strike all of the blacks.
Appellant’s made no offer of any proof to substantiate his side bar comment. Of course, this
absurd assertion was completely unsupported by any facts and amounted to no more than an
improper sidebar. This statement was also made some time PRIOR to appellant’s charge that
the State struck jurors based on race and prior to the State’s offer of their race neutral
explanations. Such a sidebar made before the State even makes its race neutral explanation
can not be seriously considered a response to the State unless appellant’s trial counsel is
prescient. As a result, appellant failed to rebut any of the State’s race neutral explanations
and, therefore, the trial court properly denied appellant’s motion to have those jurors seated.
PRAYER
Based on the above, the State of Texas, by and through her District Attorney, prey that
this Honorable Court uphold the jury’s verdict and affirm Appellant’s convictions for Murder
Page 12 of 13
and subsequent sentence of confinement for thirty-five (35) years in the Institutional
Division of the Texas Department of Criminal Justice.
Respectfully submitted:
/S/ Tuck McLain
Tuck McLain
District Attorney - 506th Judicial District
P.O. Box 599
Anderson, Texas 77830
Phone: (936) 873-2137
Fax: (936) 873-2688
TSB# 13737650
CERTIFICATE OF SERVICE
I, Tuck McLain, District Attorney, Grimes County, Texas do hereby certify that a true
and correct copy of the foregoing State’s Brief was sent via U.S. Mail, CMRRR to Counsel
for Appellant, Mark Maltsberger, 216 N. Bryan Ave., Suite 110, Bryan, Texas, 77803 and
via email to [email protected] on March 31, 2015.
/S/ Tuck McLain
Tuck McLain
District Attorney - 506th Judicial District
CERTIFICATE OF COMPLIANCE
I, Tuck Moody McLain, do hereby certify that the forgoing State’s Brief complies
with Rule 9.4 (i)(2) Tex. Rule A. Pro. and contains three thousand thirty-two (3032) words.
/S/ Tuck McLain
Tuck Moody Mclain
Page 13 of 13
| {
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} |
170 B.R. 884 (1994)
In re T.F. STONE COMPANIES, INC., Reorganized Debtor.
T.F. STONE COMPANIES, INC., Plaintiff,
v.
Lucy HARPER, County Treasurer of Bryan County, Oklahoma, Defendant.
Bankruptcy No. 389-34130 RCM-11. Adv. No. 393-3743.
United States Bankruptcy Court, N.D. Texas, Dallas Division.
July 7, 1994.
*885 Samuel M. Stricklin, Sheinfeld, Maley & Kay, P.C., Dallas, TX, for plaintiff.
Jeff Mixon, Asst. Dist. Atty., Durant, OK, for defendant.
MEMORANDUM OPINION
ROBERT McGUIRE, Chief Judge.
On May 9, 1994 came on to be heard the motion of T.F. Stone Companies, Inc., a reorganized debtor ("Debtor" or "Plaintiff") for summary judgment and the cross motion for summary judgment filed by Lucy Harper, County Treasurer of Bryan County, Oklahoma ("Bryan County" or "Defendant"). Pursuant to Bankr.R. 7052, the following are the Court's findings of fact and conclusions of law in connection with such motions. The Court has jurisdiction over this matter under 28 U.S.C. § 1334(b) and the General Order of Reference in this District. Also see, U.S. v. Nordic Village, Inc., ___ U.S. ___, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) ("Nordic Village"). This is a core proceeding under 28 U.S.C. § 157(b)(2)(H).
In July 1985, Debtor acquired title to property in Bryan County (the "Property") from Alfred Odell Wood. Debtor had title to the Property continuously through October 1, 1990. Debtor failed to pay the 1989 ad valorem taxes on the Property.
Debtor filed its Chapter 11 petition on July 3, 1989. Bryan County was not listed as a creditor on Debtor's schedules. Debtor listed the Property in its schedule of assets. The Property was described as "Approximately 5 acres of rural land outside Kingston, OK with trailer lodgings." (Statement of All Property of the Debtor Schedule B-1). Debtor stated a value of $65,000. Kingston, Oklahoma is in Marshall County, not Bryan County. Notice of the bankruptcy was not filed in the Bryan County property records. The Property was property of the bankruptcy estate as of July 3, 1989.
On October 1, 1990, Defendant conducted a sale of the Property to satisfy the delinquent taxes, as authorized under Okla.St.Ann. tit. 68, §§ 3105 and 3107 (West 1994). Bryan County did not receive any bids on the Property at the sale. Okla.St.Ann. tit. 68 § 3108 (West 1994) provides that the county treasurer may "bid off" property in the amount of the taxes due and the county obtains all the rights, both legal and equitable, that any other purchaser would acquire. The treasurer notes the bid off in his records. § 3108. Defendant bid off the Property under § 3108 at the October 1, 1990 sale. In effect, it appears that the Bryan County bid off return is the memorialization of a lien for taxes at such time. Okla.St.Ann. tit. 68 § 3111 describes the rights a purchaser at such a sale would acquire from the county:
The purchaser of any tract of land sold by the county treasurer for taxes shall be entitled to a certificate in writing describing the land purchased and the sum paid, and the time when the purchaser will be entitled to a deed. . . . The purchaser shall have a lien on the land for the delinquent taxes and if he subsequently pays the taxes levied on said sale, he shall have the same lien for said delinquent taxes and may add said delinquent taxes to the amount paid by him in the purchase. . . . Such certificate shall be substantially in the following form: [etc.]
Plaintiff acquired a right of redemption from that sale under Okla.Stat.Ann. tit. 68 § 3113 (West 1994). Plaintiff retained a right to redeem the Property by paying the delinquent taxes within two years.
*886 Defendant never filed a motion to lift stay prior to conducting the foreclosure sale on the Property. The stay has never been lifted in regards to the Property. Defendant never filed a proof of claim in the bankruptcy. Plaintiff concedes for the purpose of this motion that Defendant never had notice of the bankruptcy prior to any of its actions. Actions taken in violation of the stay are voidable, not void. Matter of Pointer, 952 F.2d 82 (5th Cir.1992); Sikes v. Global Marine, Inc., 881 F.2d 176 (5th Cir.1989). For reasons stated hereafter, the Court will not void the actions taken by Defendant.
Plaintiff never redeemed the Property. Defendant then conducted a resale of the Property on June 14, 1993. Okla.Stat.Ann. tit. 68 § 3125 provides for the resale of unredeemed properties after a two year period. Dickie and Carolyn Kidd ("Kidds" or "Purchaser") purchased the Property at the sale for $325 (Umsted Affidavit), and were given a deed to the Property by Bryan County. (Debtor's Exhibit D). The sale of the Property to the Kidd's extinguished Debtor's right of redemption. Okla.Stat.Ann. tit. 68 § 3113 (West 1994). It is undisputed that the sale was conducted in accordance with all Oklahoma state laws, and that there was no collusion present. Stone's Affidavit places a range of market value of the entire Property at $50,000 to $65,000. Defendant does not contest this valuation.
In n. 6 of Plaintiff's brief, Plaintiff advises that Plaintiff hereafter purchased the Property from the Kidds for $39,500 and dismissed the Kidds from litigation then pending in Oklahoma State Court.
Plaintiff then filed a § 549 action against Defendant in the bankruptcy case on October 21, 1993.
In ruling on a motion for summary judgment, the Court must determine whether there is any issue of material fact, and if none exists whether the moving party is entitled to a judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of showing that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Any inferences to be drawn must be viewed in the light most favorable to the opposing party. Matsushita Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The parties admit that no issues of material fact exist.
I. Sovereign Immunity
Section 106(a) provides the statutory scope of sovereign immunity in bankruptcy proceedings. Section 106(a) states:
§ 106 Waiver of Sovereign Immunity
(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit's claim arose.
There is a three part test that must be met to have a waiver of sovereign immunity under § 106(a): (1) a claim against the government must exist; (2) the claim must be property of the estate; and (3) the governmental unit must have a claim against the debtor that arises out of the same transaction or occurrence. In re Craftsmen, Inc., 163 B.R. 88, 90-91 (Bankr.N.D.Tex.1993).
Prongs one and two of this test are met. This adversary is a claim against a governmental unit. The § 549 transfer cause of action is property of the estate. The remaining question is whether the third prong encompasses a situation where a governmental entity, without notice of the bankruptcy or filing of a proof of claim, forecloses on the estate's property. Restated, is Bryan County's collection on the debt outside of the bankruptcy proceeding a claim that triggers § 106(a)? See generally, Richardson, After Nordic Village Sovereign Immunity is Still Not in From the Cold, ABI INSTITUTE JOURNAL, Vol. XIII, No. 4, pp. 19 et seq., May 1994.
Many courts have held that § 106(a) does not require the filing of a proof of claim to waive sovereign immunity. See In re Gribben, 158 B.R. 920 (S.D.N.Y.1993); In re Germaine, 152 B.R. 619, 624 (9th Cir. BAP 1993); In re Town & Country Home Nursing *887 Services, Inc., 112 B.R. 329 (9th Cir. BAP 1990); In re Craftsmen, Inc., 163 B.R. 88 (Bankr.N.D.Tex.1993); In re Boldman, 148 B.R. 874 (Bankr.C.D.Ill.1993); In re Operation Open City, Inc., 148 B.R. 184 (Bankr. S.D.N.Y.1992); In re St. Mary Hosp., 125 B.R. 422 (Bankr.E.D.Pa.1991). However, other courts have held that § 106(a) requires the filing of a proof of claim in order to waive sovereign immunity. In re 995 Fifth Ave. Associates, L.P., 963 F.2d 503, 507 (2nd Cir. 1992) (Stating that "The plain meaning of these words [Section 106(a)] obviously reflects Congress's intent to provide a waiver of immunity where `a governmental unit' files a claim in the bankruptcy court."); In re Prudential Lines, Inc., 79 B.R. 167 (Bankr. S.D.N.Y.1987); In re Neavear, 16 B.R. 528 (Bankr.C.D.Ill.1981).
The Supreme Court has twice addressed this issue in dicta. In In re Nordic Village, Inc., supra, the Court stated:
If the first paragraph of § 106(c) means that, by reason of use of the trigger-word `entity,' this provision applies in all respects to governmental units, then the Government may be sued on all alleged debts, despite the prior specification in subsections (a) and (b) that claims against the Government will lie only when the Government has filed a proof of claim, and even then only as a setoff unless the claim is a compulsory counterclaim.
Id. ___ U.S. at ___, 112 S.Ct. at 1015. The Court provided no further explanation or support for this statement. The opinion focused on the statutory construction of § 106(c).
In Hoffman v. Connecticut Dept. of Income Maintenance, 492 U.S. 96, 109 S.Ct. 2818, 106 L.Ed.2d 76 (1989) the Court also addressed § 106(a) in dicta. The Court first noted:
Neither § 106(a) nor § 106(b) provides a basis for petitioner's actions here, since respondents did not file a claim in either Chapter 7 proceeding.
Id. at 101, 109 S.Ct. at 2822. However, the Court continued by noting that § 106(a) uses the word "claim", while § 106(c) does not. The Court stated:
This language differs significantly from the wording of §§ (a) and (b), both of which use the word "claim," defined in the bankruptcy code as including a "right to payment." See 11 U.S.C. § 101(4)(A).
Id. at 102, 109 S.Ct. at 2823. The Hoffman Court seems to imply a broader reading of § 106(a) than in Nordic Village, supra. Section 106(b) refers to "allowed claim", whereas § 106(a) refers to "claim".
Where the statutory scheme of the Code is coherent and consistent, the Court generally need not inquire beyond the statute's language. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240-41, 109 S.Ct. 1026, 1029-30, 103 L.Ed.2d 290 (1989).
The language of § 106(a) is clear. The statute uses the term "claim", not "proof of claim". Claim is a defined term in the Code. Section 101(5) defines claim as:
(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or
(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured;
The explicit language of § 106(a) requires that the trigger of the waiver of sovereign immunity be construed broader than the filing of a proof of claim.
The legislative history also supports this interpretation of § 106(a). See In re Craftsmen, Inc., supra. The initial versions of § 106 expressly required the filing of a proof of claim. See H.R. 8200, 95th Cong., 1st Sess. 324 (1977); S. 2266, 95th Cong., 2nd Sess. 313 (1978). However, the enacted version of § 106(a) omitted the proof of claim language.
The Supreme Court stated, "Where Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended." Russello v. United States, 464 U.S. 16, 23-24, 104 S.Ct. 296, 301, 78 L.Ed.2d 17 (1983). The filing of a proof of *888 claim is not required for the waiver of sovereign immunity under § 106(a).
Bryan County foreclosed upon property of the estate and conducted a tax sale. These actions by Bryan County are sufficient to be an assertion of a claim as defined in § 101(5). As a result, Bryan County has waived sovereign immunity under § 106(a).
II. Standing
The Debtor's joint plan of reorganization provides for the retention of causes of action arising under § 549 in the Debtor. The Court takes judicial notice, in accordance with FRE 201(b), of the Debtor's joint plan of reorganization, confirmed August 29, 1991. Section 6.5 provides in relevant part:
Section 6.5 Retained Causes of Action. On the Effective Date, except as provided otherwise in the Plan or in the Settlement Agreement, all Causes of Action are hereby preserved and retained for enforcement by the Reorganized Debtors whether or not commenced prior to the Effective Date. The Causes of Action retained include, without limitation: . . . (iv) all claims relating to post-petition transactions under Section 549 of the Bankruptcy Code. . . .
Final Joint Plan of Reorganization, § 6.5.
Plaintiff, the Debtor, has standing to bring a § 549 claim against Defendant.
III. The Statute of Limitations Issue
Section 549(d) sets forth the statute of limitations on § 549 actions. A proceeding can be brought within two years of the transfer that is attempting to be avoided or prior to the case being closed or dismissed, whichever event occurs first. In the case at hand, the two year statute of limitation period is the relevant portion.
Defendant argues that the transfer that is sought to be avoided is the tax sale that occurred on October 1, 1990. The adversary was filed on December 21, 1993. If the Defendant is correct, then the statute of limitations has run. Plaintiff asserts that a second transfer occurred when the right of redemption was extinguished concurrent with the resale on June 14, 1993. If Plaintiff's presumption is correct, then the action is well within the statute of limitations period.
Bryan County bid off the Property on October 1, 1990, as it is permitted to do under Okla.Stat.Ann. tit. 68 § 3108 (West 1994). This sale gave rise to a right of redemption in favor of Debtor. Okla.Stat.Ann. tit. 68 § 3113 (West 1994). The right of redemption exists at a minimum for two years and until the county executes a deed of conveyance. Okla.Stat.Ann. tit. 68 §§ 3113, 3125 (West 1994). The county can then resell unredeemed property two years after the initial sale. Okla.Stat.Ann. tit. 68 § 3125 (West 1994). Bryan County sold the Property to the Kidd's in a valid resale on June 14, 1993, thereby cutting off Debtor's right of redemption. No party contends that the Bryan County violated any of the Oklahoma statutes.
Transfer is a defined term in the Bankruptcy Code. Section 101(54)[1] provides:
(54) "transfer" means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or an interest in property, including retention of title as a security interest and foreclosure of the debtor's right of redemption;
(Emphasis added). The Bankruptcy Code specifically includes foreclosure of a right of redemption as a transfer. As impacted by § 101(54), under the Oklahoma statutes, a transfer occurs when the taxpayer's right of redemption is extinguished. In effect, the extinguishment of Debtor's right of redemption by resale deed is the culmination of the foreclosure of the Debtor's right of redemption. § 101(54).
Foreclosure is legally defined as "[t]o shut out, to bar, to destroy an equity of redemption. Anderson v. Barr, 178 Okl. 508, 62 P.2d 1242, 1246." Black's Law Dictionary 646 (6th ed. 1990). In re Slack-Horner Foundries Co., 971 F.2d 577, 582 n. 3 (10th Cir.1992). In the Slack-Horner, supra, case, at p. 582, the dissent states:
*889 ... Here, the debtor's equity of redemption was foreclosed by the issuance of the treasurer's deed, and this foreclosure is a transfer within the meaning of section 548. . . .
Three courts have addressed the issue of when a transfer occurs either the original foreclosure date or the date of the extinguishment of the right of redemption. See In re Moureau, 147 B.R. 441 (Bankr.N.D.Ill. 1992); In re McKeever, 132 B.R. 996 (Bankr. N.D.Ill.1991); In re Allegheny Int'l Credit Corp., 128 B.R. 125 (W.D.Pa.1991). In Moureau, supra, the Court held that the point of transfer occurs upon the expiration of the right of redemption, citing to the McKeever, supra, decision. In In re McKeever, supra, the Court described the transfers that occurred in a tax sale with redemption rights as:
. . . The first transfer occurred when the tax lien attached to the property and the debtor's interest became subject to such lien. At this point, the rights of the debtors regarding their real property were involuntarily, albeit conditionally altered. Just as the grant of a mortgage lien or a security interest would constitute a transfer, the creation of a statutory lien transfers an interest in property.
Subsequent to the attachment of the tax lien, a second transfer occurred when the property was sold at the annual tax sale. The tax lien was extinguished along with the personal liability of the debtors for the delinquent taxes and a new type of lien was transferred to the tax sale purchaser as represented by the Certificate of Purchase. Again the debtor's rights with respect to the real property were involuntarily, albeit conditionally altered. The defendant tax sale purchaser argues that the transfer occurred at the time the judgment for tax sale was entered and that the tax sale purchaser merely became a mediate transferee of the original transferee . . . to the extent this argument characterizes the tax sale transfer as merely an extension of the prior tax lien transfer, the Court rejects this characterization of the transfer.
Id., 132 B.R. at 1008-09. The McKeever court continued:
. . . Upon expiration of the debtor's redemption period the tax sale purchaser became entitled to obtain a tax deed and acquire legal title to the property. Until such exercise, the Certificate of Purchase does not transfer any ownership interest in the property and legal title remains with the debtors. The expiration of the redemption period and the resulting right to proceed to tax deed, therefore, fundamentally altered the rights of the parties. The debtors were involuntarily divested of their remaining ownership rights at that time, resulting in a transfer within the meaning of § 101(54) and § 548.
Id. at 1009. Under Oklahoma law, the foreclosure extinguishment of the right of redemption was not accomplished until the resale deed was recorded and noticed, because, until then, Debtor could still redeem.
However, in Allegheny, supra, the Court held that the date of the tax sale, and not the date of the expiration of the redemption, is the date of the transfer for § 548 actions. The Court, in essence, merged the termination of the redemption period in with the initial sale. The Court concluded that the rights of the debtor had been altered at that point.
The reasoning of the Allegheny opinion is not compelling. The Bankruptcy Code defines the foreclosure (extinguishing) of a right of redemption as a transfer in and of itself. Bankr.Code § 101(54). It cannot be merged back with the prior tax sale. In In re Slack-Horner Foundries Co., supra, the dissenting judge stated:
In my judgment, the foreclosure of an equity of redemption by the issuance of a treasurer's deed simply cuts off the debtor's right of redemption, see n. 2 supra, rather than conveying that right to the state.
The debtor's right of redemption was foreclosed or transferred when the Property was conveyed from Bryan County to the Kidds at the resale on June 14, 1993. The statute of limitations on the transfer of the right of redemption began to run on June 14, 1993. This action was filed within the two-year statute of limitations period.
*890 IV. Is the Defendant an Initial Transferee?
Plaintiff asserts that Defendant has liability under § 550(a)(1). This section provides that the plaintiff may recover from an initial transferee for the value of such property. The safe harbor provisions of § 550(b) apply only to § 550(a)(2) claims. If Defendant is an initial transferee under § 550(a)(1), then it cannot rely on § 550(b) as a defense to the transfer.
Okla.Stat.Ann. tit. 68 § 3113 (West 1994) provides that, "[the redemption rights holder] may redeem the same from the lien resulting from the tax sale at any time before the execution of a deed of conveyance therefor by the county treasurer. . . ." Plaintiff issued a County Treasurer's Resale Deed on June 14, 1993, conveying the Property to the Kidds. The deed states in part, "WHEREAS, the said Bryan, County Treasurer, is now by law vested with the power and authority to execute this resale deed. . . ." (Plaintiff's Exhibit D). The county treasurer is without authority to issue a resale deed where the right of redemption is in effect. Lee v. Myles, 390 P.2d 489 (Okla.1964); Burnett v. McGrath, 293 P. 1102 (Okla.1931). Upon execution of the resale deed, the purchaser obtains an absolute estate in fee simple, absolute subject only to the claims of the state. Okla.Stat.Ann. tit. 68 § 3118 (West 1994).
The Tenth Circuit confronted this issue while analyzing a fraudulent conveyance action resulting from tax sales under Colorado statutes. In re Slack-Horner Foundries Co., 971 F.2d 577 (10th Cir.1992). The transactions in Slack-Horner are on point with the ones at hand. The State of Colorado foreclosed on a debtor's property and resold it to a third party after the redemption period. The trustee attempted to recover against the third party purchaser as the initial transferee. The Court concluded that the statutes dictated that the signing of the treasurer's deed caused the debtor's interest in the property to be transferred to the state and then transferred to the purchaser. The court stated: "The interest in the property must have passed to the state in order for the state to issue a deed conveying the property to Simons." Id. at 580. The dissent states:
In my judgment, the foreclosure of an equity of redemption by the issuance of a treasurer's deed simply cuts off the debtor's right of redemption, see n. 2 supra, rather than conveying that right to the state.
Id. at 582 n. 3. The dissent further states at pp. 582-83: ". . . First, Simons now holds property that once belonged to the debtor. Thus he is clearly a transferee, albeit not an initial transferee, of that property." (Emphasis added).
The Tenth Circuit has interpreted a substantially similar Colorado Statute to hold that the state (or, in our case, Bryan County), not the purchaser, like Kidd, is the initial transferee under § 550. While conceptually the Tenth Circuit analysis may be troublesome, there is no reason to distinguish the Oklahoma Statute or facts in this case from those presented in Slack-Horner, supra. In the Tenth Circuit, it appears that Bryan County would be considered the initial transferee for the purposes of § 550(a)(1).
V. Section 549 and BFP
Plaintiff must still satisfy the requirements of § 549(c) to recover from Bryan County. § 549(c) provides a defense for the transferee if the property was transferred for present fair equivalent value. The meaning of this phrase is the subject of conflicting opinions.
The Supreme Court has addressed the meaning of "reasonably equivalent value" in § 548(a)(2)(A) in the context of foreclosure sales. The Court held that the price obtained at a valid foreclosure sale satisfies "reasonably equivalent value". BFP v. Resolution Trust Corporation, ___ U.S. ___, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) ("BFP"). Defendant has urged that this analysis should be adopted when construing § 549(c) as well. The Court did not address the applicability of this reasoning when interpreting the language of § 549(c).
In BFP, the purchaser took possession of a home pursuant to a prepetition non-tax foreclosure sale. The home was sold for $433,000, but it had a fair market value of at least *891 $725,000. Id. at ___, 114 S.Ct. at 1759. The Court was confronted with the question of whether this constituted "reasonably equivalent value". The Court concluded that "reasonably equivalent value" did not equal fair market value. Id. at ___, 114 S.Ct. at 1761. The Court noted the discrepancies between a federal reasonable foreclosure-sale price as specified in Durrett v. Washington Nat. Ins. Co., 621 F.2d 201 (5th Cir.1980) ("Durrett") and historical fraudulent transfer law. BFP at ___-___, 114 S.Ct. at 1763-64. The Court noted that it could find no other case prior to Durrett where, "[a court] had ever applied the `grossly inadequate price' badge of fraud under fraudulent transfer law to set aside a foreclosure sale." Id. at ___, 114 S.Ct. at 1764. The Court continued:
Surely Congress has the power pursuant to its constitutional grant of authority over bankruptcy, U.S. Const., Art. I, § 8, cl. 4, to disrupt the ancient harmony that foreclosure law and fraudulent-conveyance law, those two pillars of debtor-creditor jurisprudence, have heretofore enjoyed. But absent clearer textual guidance than the phrase `reasonably equivalent value' a phrase entirely compatible with pre-existing practice we will not presume such a radical departure.
Id. at ___, 114 S.Ct. at 1764. (Citations omitted).
The Court further stated ". . . foreclosure has the effect of completely redefining the market in which the property is offered for sale. . . ." Id. at ___, 114 S.Ct. at 1767. The Court concluded:
We deem, as the law has always deemed, that a fair and proper price, or a `reasonably equivalent value,' for foreclosed property, is the price in fact received at the foreclosure sale, so long as all the requirements of the State's foreclosure law have been complied with.
Id. at ___, 114 S.Ct. at 1765. The Supreme Court abandoned any tie to the use of fair market value when analyzing validly-conducted mortgage foreclosure sales under § 548(a)(2)(A).
Two courts have addressed the applicability of the Ninth Circuit BFP opinion to § 549(c).[2] These courts came to divergent results after extended discussions of the issue at hand.
In In re Bago, 149 B.R. 610 (Bankr. C.D.Cal.1993), the Bankruptcy Court found that the reasoning of the BFP case extended to § 549(c). The Court looked to the underlying policy behind § 548(a)(2)(A) and § 549(c). The Court concluded that the policy behind both sections of the code was to protect good faith purchasers. The Court further discussed the inapplicability of In re Powers, 88 B.R. 294 (Bankr.D.Nev.1988).[3]
In re Powers, supra, held that the language of § 549 must be construed more stringently than the language in § 548. The Powers Court struck down a sale where the property had been sold for 73% of the fair market value. The Powers court reasoned that post-petition transfers should be treated differently than pre-petition transfers. Post-petition transfers are property of the estate which was transferred in violation of the automatic stay without Court approval. The Powers Court concluded that in light of these differences the aim of § 549(c) is to maximize the estate. Therefore, the property must be transferred for near fair market value for a valid defense to exist under § 549(c).
The Bago Court concluded that the Powers, supra, decision was not consistent with the Ninth Circuit's analysis in BFP. The Bago Court cited two factors in declining to follow Powers: (1) the BFP Court's strong language favoring upholding non-collusive foreclosure sales and (2) the rejection of the Durrett rationale of maximizing the recovery to the estate. The Bago Court held that the purchase price at a non-collusive regularly conducted foreclosure sale satisfies the "present fair equivalent value" test.
The Bankruptcy Appellate Panel has also addressed the meaning of present fair equivalent value in § 549(c) after the Ninth Circuit BFP decision. In re Shaw, 157 B.R. 151 (9th *892 Cir. BAP 1993). In Shaw, the Court focused on the differences in the language in §§ 548 and 549. The Court concluded that the difference in the language signaled that Congress intended for different results under the code sections. Id. at 153 (Citing Energy Research Foundation v. Defense Nuclear Facilities Board, 917 F.2d 581, 582 (D.C.Cir. 1990)). The Court then adopted the stricter reading of § 549(c) providing that, in order to satisfy the requirements of "present fair equivalent value" there must be little deviation from fair market value in the price obtained at the foreclosure sale. Id. at 153-54 (Citing In re Powers, supra, and In re Auxano, Inc., 96 B.R. 957, 963 (Bankr W.D.Mo. 1989)).
The general policies set forth in the BFP, supra, opinion appear to apply in this case as well. The Supreme Court required clear congressional intent from the language in the Code to overturn prior foreclosure law. The Supreme Court's rationale to protect bona fide purchasers appears to be no less applicable to a § 549 transfer in a non-collusive tax foreclosure sale as it is in a § 548 transfer by way of a mortgage foreclosure sale. Footnote 3 in the BFP, supra, opinion does explicitly reserve a ruling on tax sales. Footnote 3 reads:
We emphasize that our opinion today covers only mortgage foreclosures of real estate. The considerations bearing upon other foreclosures and forced sales (to satisfy tax liens, for example) may be different.
Id. ___ U.S. at ___, n. 3, 114 S.Ct. at 1760, n. 3. The rationale behind the BFP, supra, decision appears to be likewise compelling in a tax sale foreclosure under § 549(c). In re War Eagle Floats, Inc., 104 B.R. 398 (Bankr. E.D.Okla.1989). This is not to say that a persuasive argument cannot be made for following the In re Shaw, supra, decision; however, this Court finds the In re Bago, supra, opinion more compelling when viewed in conjunction with the Supreme Court's analysis in BFP, supra. The price obtained at a non-collusive tax foreclosure sale, conducted in accordance with all state laws, presumptively meets the "present fair equivalent value" standard in § 549(c).
Accordingly, Defendant's motion for summary judgment is granted. Plaintiff's motion for partial summary judgment is denied.
FINAL JUDGMENT
For the reasons contained in the Memorandum Opinion signed this date,
It is, therefore, ORDERED that Plaintiff T.F. Stone Companies, Inc. take nothing from Defendant Lucy Harper, County Treasurer of Bryan County, Oklahoma on claims asserted in Plaintiff's complaint.
NOTES
[1] There are two sections 101(54) due to a congressional oversight. This opinion refers to the second section 101(54).
[2] The Supreme Court opinion has yet to be addressed by any court in this context.
[3] In re Powers was decided prior to the Ninth Circuit BFP decision.
| {
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3205
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
Angela Smiley, *
*
Appellant. *
_____________
Submitted: June 11, 2008
Filed: January 26, 2009
_____________
Before LOKEN, Chief Judge, COLLOTON, Circuit Judge, and PIERSOL1, District
Judge.
_____________
PIERSOL, District Judge.
After pleading guilty to mail fraud and failure to pay over federal taxes,
Defendant and Appellant Angela Smiley was originally sentenced to 36 months of
imprisonment. Seven days after Smiley was originally sentenced the Government
moved to vacate her sentence, contending that Smiley had improperly failed to
identify for United States Probation an interest she was holding in a condominium in
1
The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota, sitting by designation.
Florida. The district court vacated the original sentence and eventually sentenced
Smiley to seventy-two months of imprisonment and ordered restitution in the amount
of $674,691.41. On appeal Smiley contends that the district court lacked the authority
to vacate her original sentence and resentence her. Smiley also challenges the amount
of restitution ordered by the district court. We reverse the district court’s order
vacating Smiley’s original sentence and the district court’s resentencing of Smiley but
affirm the district court’s order of restitution.
I. Background
Defendant and Appellant Angela Smiley was the president of American Payroll
Service (APS). APS offered business clients payroll and payroll tax services which
included the preparation of IRS forms and the transmission of federal tax deposits.
At Smiley’s direction APS drafted funds directly from its business clients’ bank
accounts for the purpose of paying its APS business clients’ federal tax liabilities, but
on numerous occasions failed to pay the clients’ federal tax liabilities. Instead of
forwarding the funds to the IRS, Smiley used the funds to pay APS’ employees’
payroll and operating expenses, and to pay her own salary and to pay her husband,
who was not an APS employee. Smiley made numerous false statements to APS
business clients to conceal and further her scheme.
On November 1, 2006, Smiley waived indictment and pleaded guilty to a
two-count information for mail fraud and failure to pay over federal taxes for the time
frame of January 2001 through September 2004. The plea agreement recommended
a final total offense level of 20. The plea agreement also required Smiley to truthfully
provide complete information to the United States Probation office (Probation) by
completing Net Worth and Cash Flow Statements as well as by signing releases
concerning financial information.
Prior to sentencing the Government moved pursuant to18 U.S.C. § 3664(d)(5)
to extend the date for final determination of restitution to no later that 90 days
-2-
following the sentencing date. The district court granted this motion. On January 19,
2007, Smiley appeared for sentencing with no objections to the factual statements or
application of sentencing guidelines to the facts in the presentence report. The district
court found a total offense level of 20 and a criminal history category of 1, with an
incarceration range of 33 to 41 months. The district court sentenced Smiley to
concurrent terms of 36 months.
On January 26, 2007, a week after the original sentencing, the Government filed
a motion to vacate Smiley’s sentence. In the motion to vacate the Government
contended that when Smiley was interviewed by Probation on November 16, 2006,
Smiley failed to disclose an interest she held in a condominium2 in Florida. The
Government further asserted that a notice of foreclosure had been served on this
property on October 26, 2006, and that a foreclosure sale was scheduled for
February 12, 2007, should Smiley and her husband fail to pay off the loan balance by
that time. In addition, the motion represented that Smiley had purchased a $44,000
membership in a golf club in connection with the condominium. It was later revealed
that the membership in the golf club was terminated as there were no payments made
on it after October of 2006.
On January 26, 2007, the same date that the motion to vacate was filed, the
district court entered an Order Vacating Sentence. The order vacating the sentence
referenced clear error under FED. R. CR. P. 353 as the basis for vacating Smiley’s
original sentence. This order also required Smiley to provide a true and accurate
2
A Special Agent with the Internal Revenue Service, Criminal Division, later
testified that the condominium was a time share. Smiley later testified that she and her
husband held a one-eighth fractional interest in the property.
3
FED. R. CR. P. 35(a) provides: “ Within 7 days after sentencing, the court may
correct a sentence that resulted from arithmetical, technical, or other clear error.”
-3-
statement of her assets to the United States Probation Office and for Probation to
prepare a revised Presentence Investigation Report.
After Smiley made the subsequent disclosure of assets, the Government
challenged the accuracy and completeness of the information, and the district court
granted the Government’s motion for further fact finding. On February 23, 2007, the
district court ordered Probation to: 1) obtain an inventory and appraisal of Smiley’s
personal possession, including home furnishings and vehicles owned and/or titled to
Smiley; 2) obtain valuation of Smiley’s husband’s companies; 3) obtain a minimum
of two years of bank statements from each and every personal and business account
of Smiley and her husband; and 4) obtain a detailed listing of assets transferred by
Smiley and/or her husband from the date of her initial appearance of November 1,
2006.
On March 15, 2007, the Government, in seeking an injunction pursuant to the
All Writs Act, 28 U.S.C. § 1651(a), contended that the three Net Worth and Monthly
Cash Flow Statements completed by Smiley on November 14, 2006, and those
completed after the original sentencing failed to accurately and completely disclose
assets. The Government alleged that Probation in conducting its inventory of the
Smiley home located undisclosed assets including a 1969 classic GTO vehicle.4 The
inventory also located financial documents from the summer of 2006 indicating that
Smiley had transferred more than $851,000 in stocks to satisfy bank debts, a contract
transferring a business from Smiley’s father-in-law to Smiley’s husband, and April 14,
2006 Personal Financial Statements to a bank in which Smiley asserted an individual
net worth of $2,574,000. On April 9, 2007, the district court enjoined Smiley, and her
husband, mother, father and father-in-law from affecting the availability or value of
Smiley’s individually or jointly-held property or marital property, without seeking
4
The vehicle was titled in the name of Smiley’s father-in-law but had been used
by Smiley’s husband for many years.
-4-
prior approval from the district court. The district court also revoked Smiley’s bond
after finding that Smiley had misled Probation with regard to the existence and
location of assets. On April 27, 2007, the district court ordered Probation to search
a storage container rented by Smiley and her husband and to report the contents of the
storage container to the Court. On July 20, 2007, the district court ordered an
appraisal of Smiley’s personal residence.
On July 14, 2007, Smiley moved to vacate the sentencing hearing which was
scheduled for July 16, 2007, on the ground that the district court lacked jurisdiction
to proceed since the seven-day period to correct a sentence set forth in FED. R. CR. P.
35 had expired. On the August 23, 2007, hearing on the motion to vacate the
sentencing hearing the district court clarified that it was not proceeding under FED.
R. CR. P. 35, but had been proceeding on the inherent power of the court to determine
whether fraud had been committed on the court at the time of the original sentencing
and intended to vacate any sentence if such fraud had been committed.
Smiley appeared for resentencing on August 28 and August 29, 2007. The
district court announced that it was proceeding “under the Court’s inherent authority
to determine whether or not the original sentence imposed on Ms. Smiley was the
product of fraud on the court.” The district court found that Smiley “failed to disclose
any number of things in any number of financial statements” to Probation. The
district court stated: “Can I tell you 100 percent what I would do then if I knew
everything today I knew on January 19? No one can take that crystal ball and
reconstruct it. But I’ll be honest. I struggled with whether a below guideline sentence
was appropriate. . . .” The original presentence report listed Smiley’s net worth as
$404,830, and the final presentence report listed her net worth as -$55,387. The
district court stated on the record at the August 2007 resentencing that a fraud had
been committed on the court based on the totality of the circumstances, which he
found as including Smiley lying about being separated from her husband and her
-5-
husband’s failure to provide financial information,5 failing to disclose the Florida
property, inflating the value of her assets when they were in foreclosure, and failing
to disclose judgments of almost two million dollars that were entered against Smiley
or her business in January of 2007. The district court stated that although Smiley’s
conduct after the initial sentencing was not relevant to the determination of fraud, that
this conduct was relevant in judging Smiley’s credibility. The district court disclosed
that he was interested in Smiley being able to make restitution, and that the fraudulent
misrepresentations affected his thought process.
The district court resentenced Smiley based on a total offense level of 27, as
opposed to the offense level of 20 which was applied at the original sentencing, and
resentenced Smiley to a Guidelines sentence of 72 months of imprisonment. The
district court also ordered restitution in the amount of $674,691.41.
II. Discussion
The Power to Vacate Judgments Procured by Fraud
Smiley contends that the district court erred in concluding that “fraud on the
court” gave the district court an independent jurisdictional basis to resentence her.
Smiley relies on Carlisle v. United States, 517 U.S. 416, 426 (1996), as support for
her position that there is no inherent power of the district courts to act in contravention
of the 7-day time limit to correct a sentence that is set forth in FED. R. CR. P. 35.
5
Smiley had advised Probation that she was encountering difficulty getting
financial information from her husband. The presentence writer in the original report
states that Smiley and her husband “were reportedly separated in September 2006 due
to the stress of Smiley’s current legal situation. . . . The husband was interviewed and
confirmed the above information.” The final presentence report states basically the
same regarding the marriage. Smiley’s husband of sixteen years testified at an April
27, 2007, hearing. When asked if he had lived in the same home with her until the
time Smiley was detained, the husband responded in the affirmative. The husband
also testified that he and Smiley had discussed getting a divorce and that he had not
cooperated with Smiley in providing financial information to Probation.
-6-
Smiley also relies on Bowles v. Russell, 127 S.Ct. 2366 (2007),6 for the proposition
that the federal courts possess “no authority to create equitable exceptions to
jurisdictional requirements.” Smiley cites to decisions which hold that Rule 35 sets
a jurisdictional time limit which cannot be extended. See United States v. Higgs, 504
F.3d 456 (3d Cir. 2007); United States v. Lopez, 26 F.3d 512 (5th Cir. 1994). The
Eighth Circuit has also held that more than seven days after the imposition of a
defendant’s sentence, a district court has no jurisdiction to alter a sentence, even if the
sentence was legally erroneous. See United States v. Austin, 217 F.3d 595, 597(8th
Cir. 2000)(interpreting former FED. R. CR. P. 35 ( c) which is now set forth in FED.
R. CR. P. 35(a)).
In Carlisle v. United States, the Supreme Court held that a district court did not
have the authority to grant a defendant's untimely motion for judgment of acquittal.
The Supreme Court reasoned that FED. R. CR. P. 29 with its 7-day time limit was
plain and unambiguous and that the district court had no authority to grant an untimely
postverdict motion for judgment of acquittal. The Court rejected the defendant’s
argument that the district court had acted within its “inherent supervisory power” so
as to “circumvent or conflict with the Federal Rules of Criminal Procedure.” 517 U.S.
at 425-25. Although the Supreme Court acknowledged its earlier recognition of a
court’s inherent powers in Chambers v. NASCO, Inc., 501 U.S. 32 (1991), the Court
in Carlisle rejected reliance on the court’s inherent power because it was “unaware of
any ‘long unquestioned’ power of federal district courts to acquit for insufficient
evidence sua sponte, after return of a guilty verdict.” 517 U.S. at 426.
In Chambers v. NASCO, Inc., 501 U.S. 32 (1991), the Supreme Court held that
a district court, properly invoked its inherent power in assessing attorney's fees and
related expenses as a sanction for a party's bad-faith conduct in a diversity action. In
6
In this habeas corpus action the Supreme Court ruled it would no longer
recognize the unique circumstances exception to excuse an untimely filing of a notice
of appeal.
-7-
reaching this holding the Court rejected an argument that the Federal Rules of Civil
Procedure displaced the inherent power of the courts to maintain an orderly and
expeditious disposition of the cases before them. 501 U.S. at 43-44. The Court noted
that of “particular relevance” to its holding was the inherent power of federal courts
to vacate their own judgments upon proof that a fraud has been perpetrated upon the
court. The Court quoted Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238,
245-46 (1944), in recognizing the “‘historic power of equity to set aside fraudulently
begotten judgments’”in order to maintain the integrity of the courts and safeguard the
public. The Court in Chambers also recognized a court’s power to conduct an
independent investigation in determining whether it has been the victim of fraud. 501
U.S. at 44. However, the Court in Chambers also admonished that because of the
potency of inherent powers these powers must be exercised with restraint and
discretion. Id.
The Government challenges Smiley’s contention that the inherent power to
vacate a judgment procured by fraud, which was recognized in Chambers, exists only
in the civil context. The Government cites to decisions in which courts have held that
district courts have the inherent power to correct criminal sentences which were
procured through fraud. See United States v. Gregg, No. 04-103, 2006 WL 2850564
(E.D. Pa., Oct. 3, 2006)(order vacated in United States v. Washington, 2008 WL
5173327 (3rd Cir. Dec. 11, 2008)); United States v. Bishop, 774 F.2d 771 (7th Cir.
1985). In United States v. Bishop, the defendant had been convicted in federal district
court and his 3-year sentence was stayed pending appeal. The defendant was then
convicted in state court and sentenced to a 4-year sentence and an additional thirty-
year sentence under the state’s habitual offender statute. The defendant requested that
the federal sentence be modified to run concurrently with the thirty-four-year state
sentence. Although the state court subsequently vacated the habitual offender
conviction, the defendant failed to advise the federal district court that this conviction
was vacated, and the federal district court granted the modification and sentenced the
-8-
defendant concurrently with the state sentence, based on the representation that the
defendant was serving a thirty-four-year state sentence.
After the federal district court in Bishop learned that the defendant’s state
habitual offender conviction had been vacated it contacted the Government and held
an evidentiary hearing concerning the matter. The district court then found that the
defendant had intentionally misrepresented the status of his state convictions and
misled the federal district court into believing that he was subject to a sentence of
thirty-four years rather than the four-year sentence he was actually serving in the state
penitentiary. The district court then vacated its order modifying the defendant’s
sentence and reinstated its earlier sentence. 774 F.2d at 772-773.
At the time the district court in Bishop vacated the order modifying the
defendant’s sentence FED. R. CR. P. 35(b) provided that the court may amend the
sentence within 120 days after the sentence is imposed. Since the 120-day period had
expired by the time the court had reimposed his original sentence, the defendant
contended the district court was without jurisdiction under Rule 35(b) to reimpose his
sentence. The Seventh Circuit concluded that this argument was faulty in that it
ignored the district court's inherent power to correct a judgment procured through
fraud. 774 F.2d at 773 (citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322
U.S. 238 (1944)). The Seventh Circuit further reasoned that the fact the case involved
a criminal sentencing process rather than a civil proceeding, such as in Hazel-Atlas,
was inconsequential. The Seventh Circuit explained, “It is the power of the court to
correct the judgment gained through fraud which is determinative and not the nature
of the proceeding in which the fraud was committed.“ 774 F.2d at 774 n.5.
Although Hazel-Atlas involved a civil rather than a criminal case, the United
States Supreme Court later commented on the power of a court to correct a judgment
gained through fraud in a criminal case, United States v. Smith, 331 U.S. 469 (1947).
-9-
In Smith the Supreme Court construed Rule 33 of the Federal Rules of Criminal
Procedure and held that because of the 5-day limit on making a motion for new trial
under that rule it was improper for the district court to grant a new trial on its own
motion more than five days after conviction and after affirmance by the Circuit Court
of Appeals. The Supreme Court further held that the Government was entitled to writs
of mandamus and prohibition to require vacating the order granting the new trial.
Although the Supreme Court found that the district court erred in untimely granting
a new trial in Smith based only upon the defendant’s complaints of errors and
irregularities during his trial, the Supreme Court noted, “Of course, the federal courts
have power to investigate whether a judgment was obtained by fraud and make
whatever modification is necessary, at any time.” 331 U.S. at 476 n.4 (citing Univeral
Oil Products Co. V. Root Refining Co., 328 U.S. 575 (1946)).
Recently the Third Circuit Court of Appeals issued a decision in United States
v. Washington, 2008 WL 5173327 (3rd Cir. Dec. 11, 2008), which differs with the
Seventh Circuit’s holding in Bishop and the statement in Smith. The decision in
Washington effectively overrules United States v. Gregg, 2006 WL 2850564 E.D. Pa.,
Oct. 3, 2006), a case relied upon by the government in the case at hand. In the
Washington case, the defendant repeatedly misrepresented himself as “Kennard
Gregg,” and the misrepresentation was not disclosed until after the time for correcting
a sentence had passed under FED. R. CR. P. 35(a). Based on this misrepresentation,
“Gregg's” criminal history category was two and the total offense level was nine,
yielding a Sentencing Guidelines range of six to twelve months. Had Washington not
misrepresented his identity and had his criminal history been properly calculated using
his true record, his criminal history category would have been four and his offense
level nine, yielding a Guidelines range of twelve to eighteen months. The district
court issued an order vacating its original sentence and directing resentencing based
on fraud upon the court. The Third Circuit issued a writ of mandamus instructing the
district court to vacate its order vacating the original sentence.
-10-
In Washington, the Third Circuit held that a district court may modify its own
criminal sentence only under specific statutory circumstances set forth in FED. R. CR.
P. 35(a) and 18 U.S.C. § 3582(c). The Third Circuit further held that a district court
lacks inherent power sua sponte to vacate its own criminal sentence based on fraud
upon the court. The Third Circuit reasoned that “to the extent there might have at one
point been inherent power in the court [to vacate a criminal sentence based on fraud
upon the court], such power was abrogated by Congress pursuant to § 3582(c) and
Federal Rule of Criminal Procedure 35(a).” 2008 WL 5173327 at *8.
Recently, this Court was asked to remand a case so the district court could
vacate the sentence it imposed based on a defendant's misrepresentations and so the
district court could resentence the defendant during the pendency of his appeal. In
denying this request, this Court questioned “whether the district court has jurisdiction
to resentence a defendant in the absence of statutory authority to do so.” United States
v. Fincher, 538 F.3d 868, 878 (8th Cir.2008).
We need not and will not determine in this case whether a district court has a
historically recognized inherent power to vacate criminal judgments procured by fraud
or whether such power has been abrogated by Congress, because even if this inherent
power still exists any misrepresentations made in this case would not justify vacating
the sentence. The power to vacate judgments procured by fraud must be exercised
with restrain and discretion, see Chambers 501 U.S. at 44, and with consideration of
the long established general rule that prohibits the alteration or setting aside of
judgments after the expiration of the term when such judgments were finally entered.
See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322U.S. at 244. It must be shown
by clear and convincing evidence that there was fraud on the court with all doubts
being resolved in favor of the finality of a judgment. Bulloch v. United States, 763
F.2d 1115, 1121 (10th Cir. 1985). In addition, it is necessary to examine the nature
of the alleged misrepresentation that is the impetus for vacating a judgment procured
by fraud.
-11-
Fraud on the court which justifies vacating a judgment is narrowly defined as
“fraud which is directed to the judicial machinery itself and is not fraud between the
parties or fraudulent documents, false statements or perjury.” Bulloch at 1121; see
also, United States v. Buck, 281 F.3d 1336, 1342 (10th Cir. 2002). The standard for
fraud on the court in the context of the court exercising its inherent powers under the
principles of Hazel-Atlas Glass is higher and distinct from the more general standard
for fraud under FED. R. CIV. P. 60(b)(3). A finding of fraud on the court under this
standard “is justified only by the most egregious misconduct directed to the court
itself, such as bribery of a judge or jury or fabrication of evidence by counsel . . . .”
Greiner v. City of Champlin, 152 F.3d 787, 789 (8th Cir. 1998)(quoting Landscape
Properties, Inc. V. Vogel, 46 F.3d 1416, 1422 (8th Cir. 1995)). Rules arising from the
inherent powers of the courts have evolved to become exceedingly narrow, and to
require that the power to set aside a judgment based upon fraud on the court involve
the court actually being deceived by the misrepresentation. See Joseph J. Anclien,
Broader is Better: The Inherent Powers of Federal Courts, 64 N. Y. U. Ann. Surv.
Am. L., 37, 69 (2008).
While we do not condone anything less than full disclosure for defendants
submitting financial forms as required by 18 U.S.C. § 3664(d)(3),7 we do not believe
that the nondisclosures that occurred prior to the original sentencing in Smiley’s case
constitute the “most egregious misconduct” so that the value of vacating the sentence
outweighed the general principle supporting finality of judgments. The failure of
7
18 U.S.C. § 3664(d)(3) provides:
Each defendant shall prepare and file with the probation officer an
affidavit fully describing the financial resources of the defendant,
including a complete listing of all assets owned or controlled by the
defendant as of the date on which the defendant was arrested, the
financial needs and earning ability of the defendant and the defendant's
dependents, and such other information that the court requires relating
to such other factors as the court deems appropriate.
-12-
Smiley to report the fractional interest in the Florida property that was subject to
foreclosure proceedings as well as the failure to report judgments against her did not
influence the district court to sentence outside the Sentencing Guidelines.8 The debt
versus equity information set forth in the original presentence report as well as the
obviously chaotic state of Smiley’s finances reveals the unlikelihood of Smiley paying
restitution even though Smiley overstated her net worth.
After Counsel at the original sentencing hearing advised the district court that
Smiley was committed to repaying every dime to her victims, the district court asked
if there was a plan for doing so, and counsel advised that Smiley intended to work
and that she was in a position to liquidate assets and secure additional loans. The
district court was justifiably troubled about that misrepresentation. Smiley’s
sentencing memorandum, however, focused on Smiley’s community service,
commitment to family and unlikelihood of recidivism, not the ability or intention to
make restitution, as the basis for a variance. In her allocution at the original
sentencing Smiley made no reference to making restitution. Significantly, as was
previously noted, the district court sentenced near the middle of the Guidelines range
and did not grant the request for a variance.
Also, the record does not support by clear and convincing evidence the finding
that Smiley misrepresented the relationship with her husband since the record
establishes that Smiley’s husband confirmed with the presentence writer that he and
his wife had been separated for a time. In addition, the husband testified he had been
uncooperative with Smiley in providing financial information to Probation. Assuming
without deciding that the district court had the inherent power to set aside the original
sentence, it was still an abuse of discretion to vacate the original sentence since the
heightened standard for fraud on the court was not met in this case. The order
8
The financial condition of Smiley did not impact the restitution that was owed
under the Mandatory Victims Restitution Act since restitution is mandatory. See
United States v. Miller, 419 F.3d 791, 794 (8th Cir. 2005).
-13-
vacating the original sentence and the subsequent sentence of seventy-two months of
imprisonment are reversed and the matter is remanded with instruction to reinstate the
original sentence.
Disputed Restitution Amounts
Smiley stipulated to the restitution amounts owed to all but seven victims.
Smiley contends that the government failed to prove by a preponderance of evidence
the disputed restitution amounts for these seven victims and claims that the Postal
Inspector who testified regarding the restitution owed these victims accepted the
amounts these victims stated they were owed without conducting an independent
investigation of the amounts owed.
The government has the burden of proving the restitution amount by a
preponderance of the evidence. United States v. Young, 272 F.3d 1052, 1056 (8th Cir.
2001). We review for clear error the district court's determination of the amount of
restitution. United States v. Fogg, 409 F.3d 1022, 1028 (8th Cir. 2005). The transcript
of the July 16, 2007 restitution hearing reveals that when the Postal Inspector
interviewed the victims in issue regarding their losses for restitution purposes, most
of these victims had reviewed their own bank records, records received from Smiley,
and correspondence and notices from the Internal Revenue Service. Also, the victims
were knowledgeable in business and tax matters, and the Postal Inspector had
received records and information from some of the victims’ legal representatives. In
addition, the Postal Inspector instructed the victims to calculate their losses without
adding in penalties and interest. The Government met its burden in proving the
amount of restitution, and there is no clear error in the district court's determination
of the amount of restitution.
III. Conclusion
We conclude that even if a district court possesses a historically recognized
inherent power to vacate a criminal judgment procured by fraud, the conduct in issue
-14-
which occurred before the original sentencing in this case does not fall within the
narrow definition of “fraud upon the court” which is required to vacate a judgment.
We reverse the order vacating the original sentence and the subsequent judgment
sentencing Smiley to seventy-two months of imprisonment, but affirm the district
court’s order of restitution.
COLLOTON, Circuit Judge, concurring in the judgment.
Even assuming that a district court enjoys inherent power, in cases of fraud on
the court, to vacate a judgment in a criminal case outside the limits established by 18
U.S.C. § 3582(c) and Federal Rule of Criminal Procedure 35(b), the court explains
that “fraud on the court” must be “narrowly defined as ‘fraud which is directed to the
judicial machinery itself and is not fraud between the parties or fraudulent documents,
false statements or perjury.’” Ante, at 12 (quoting United States v. Bulloch, 763 F.2d
1115, 1121 (10th Cir. 1985)); see also United States v. Throckmorton, 98 U.S. 61,
65-67 (1878) (“The doctrine is . . . well settled that the court will not set aside a
judgment because it was founded on a fraudulent instrument, or perjured evidence, or
for any matter that was actually presented and considered in the judgment assailed.”);
Commentary, Effect of Rule 60b on Other Methods of Relief from Judgment, 4 Fed.
Rules Serv. 942, 945 (1941) (“[B]y the majority view intrinsic fraud, such as perjury
or use of falsified documentary evidence, is not a ground for relief in federal courts.”).
Because the district court in this case relied exclusively on misrepresentations,
incomplete disclosures, and failures to disclose by Angela Smiley during the
pre-sentencing process and at her sentencing hearing, I concur in the court’s judgment.
Even application of the inherent power available in civil cases would not authorize
the district court to vacate the judgment in this case, because there was no “fraud on
the court” as defined in that context. I express no view on whether the evidence is
sufficient to establish clearly and convincingly that Smiley made misrepresentations
to the district court. I agree with the court’s disposition of Smiley’s challenge to the
district court’s order of restitution.
______________________________
-15-
| {
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} |
205 Mich. App. 236 (1994)
517 N.W.2d 563
PEOPLE
v.
BLOXSON
Docket No. 159646.
Michigan Court of Appeals.
Submitted September 14, 1993, at Lansing.
Decided May 16, 1994, at 9:05 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Donald E. Martin, Prosecuting Attorney, and Barbara A. Vander Voord, Assistant Prosecuting Attorney, for the people.
Hubbard, Fox, Thomas, White & Bengtson, P.C. (by Thomas A. Bengtson), for the defendant.
Before: HOLBROOK, JR., P.J., and FITZGERALD and TAYLOR, JJ.
HOLBROOK, JR., P.J.
Defendant was charged with possession with intent to deliver less than fifty grams of a mixture containing cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), carrying a concealed weapon, MCL 750.227; MSA *238 28.424, resisting and obstructing a police officer, MCL 750.479; MSA 28.747, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Following a suppression hearing, the circuit court determined that there was an unreasonable seizure and suppressed the relevant evidence. The prosecutor appeals as of right. We affirm.
The parties do not dispute the facts. Jaime Corona of the Michigan State Police was assigned to the drug interdiction unit. Traveling to various public transportation stations to thwart the transport of narcotics and weapons on public carriers, members of the drug interdiction unit were trained to observe certain characteristics in people. On June 9, 1992, Detective Corona and two detectives from the Ingham County Sheriff's Department boarded a westbound bus in Lansing. The detectives were casually dressed and were not in uniforms. The three detectives did not display any guns. The two county detectives sat in the rear of the bus.
There were fifteen to twenty people randomly seated on the bus. When Detective Corona entered the bus, two people immediately caught his attention. The detective walked up to the defendant, identified himself by showing his credentials, and asked to speak with him. The detective stated that he was making citizen contact with people because the police were aware that people were using buses to transport weapons and narcotics. The detective asked the defendant if he had any weapons, and the defendant said, "No." The detective observed the defendant's nervousness, evidenced by the defendant's shaking hands, his feet tapping on the ground, and his watery eyes. The detective also saw a duffel bag on the seat next to the defendant. The bag was partially unzipped, and *239 the defendant's hand covered the open end of the bag. Detective Corona again asked if the defendant had any weapons, and the defendant said, "No." The detective did not advise the defendant that he could decline to speak with the detective. Detective Corona then asked the defendant whether he could look in the bag. The defendant said, "I really don't see the reason." The record does not indicate whether the defendant was advised that he had the right to refuse consent to a search of the bag. The detective asked the defendant why he was acting nervously. The detective then told the defendant that he sensed that the defendant had something illegal in the bag and that he should just be honest and let him know what was in the bag. During this questioning, the detective was standing in the bus aisle next to the seat in front of the defendant. The defendant then admitted that he had a gun in the bag and removed his hand to reveal it. Because the defendant kept returning his hand to the bag, the detective told him he was under arrest and asked him to stand. The defendant stood and physically confronted the detective. The other two detectives helped arrest the defendant. The other suspect who initially caught Detective Corona's attention was arrested also.
In granting the defendant's motion to suppress the evidence, the circuit court took into account the physical position of the detective standing in the bus aisle and determined that a reasonable person would not feel free to leave. The court also noted that the defendant neither was advised that he was free to leave nor was told that he did not have to consent.
The trial court's decision to grant a motion to suppress evidence will not be reversed unless it is clearly erroneous. People v Burrell, 417 Mich 439, *240 448; 339 NW2d 403 (1983); People v Muro, 197 Mich App 745, 747; 496 NW2d 401 (1993).
The Supreme Court in People v Faucett, 442 Mich 153, 157-158; 499 NW2d 764 (1993), recently stated:
The Fourth Amendment, then, protects citizens from unreasonable searches and seizures. Terry v Ohio, 392 US 1, 9; 88 S Ct 1868; 20 L Ed 2d 889 (1968); United States v Brignoni-Ponce, 422 US 873, 878; 95 S Ct 2574; 45 L Ed 2d 607 (1975); United States v Sharpe, 470 US 675, 682; 105 S Ct 1568; 84 L Ed 2d 605 (1985); People v Shabaz, 424 Mich 42, 52; 378 NW2d 451 (1985). The reasonableness of a Fourth Amendment seizure balances the governmental interest that justifies the intrusion against an individual's right to be free of arbitrary police interference. Terry, supra at 20-21; Brignoni-Ponce, supra.
In addition, the federal constitutional protections against unreasonable searches and seizures have been extended to state proceedings through the Due Process Clause of the Fourteenth Amendment. See Mapp v Ohio, 367 US 643, 655; 81 S Ct 1684; 6 L Ed 2d 1081 (1961); People v Nash, 418 Mich 196, 211; 341 NW2d 439 (1983) (opinion of BRICKLEY, J.); People v Burrell, 417 Mich 439, 448, n 15; 339 NW2d 403 (1983). Because the Michigan Constitution does not provide more protection than its federal counterpart, under the circumstances of this case, federal law controls our inquiry. Thus, consideration of defendant's motion for exclusion of the marijuana necessarily implicates his federal constitutional rights. See People v Toohey 438 Mich 265, 270-271; 475 NW2d 16 (1991), and People v Collins, 438 Mich 8, 25-31; 475 NW2d 684 (1991). [Emphasis in the original.]
Similarly, federal law is applicable in determining the issue presented in the present case.
The court in United States v Johnson, 910 F2d *241 1506, 1508 (CA 7, 1990), stated the extent of Fourth Amendment protections in the three categories of encounters between the police and citizens:
The first category is an arrest, for which the Fourth Amendment requires that police have probable cause to believe that a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment `seizure,' but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen's liberty, and is characterized by an officer seeking the citizen's voluntary cooperation through noncoercive questioning. This is not a seizure within the meaning of the Fourth Amendment. [Citations omitted.]
First, we must determine whether the defendant was seized within the meaning of the Fourth Amendment. In Florida v Bostick, 501 US 429; 111 S Ct 2382; 115 L Ed 2d 389 (1991), the United States Supreme Court held that drug interdiction agents may approach individuals on a bus, ask them questions, and request consent to search their luggage as long as a reasonable person would understand that he could refuse to cooperate. In Bostick, two officers boarded a bus and asked to inspect the defendant's ticket and identification. The ticket matched the defendant's identification. The officers identified themselves as narcotics agents and explained that they were looking for illegal drugs. They specifically advised the defendant that he had the right to refuse consent. The agents requested the defendant's consent to search his luggage. The defendant consented to the *242 search, and contraband was found in one of his bags. Although one of the officers carried a zipper pouch containing a pistol, it was neither removed from the pouch nor used in a threatening manner.
The United States Supreme Court in Bostick held that the Florida Supreme Court had erred in focusing on whether the defendant was free to leave and in adopting a rule that a police drug interdiction encounter on a bus necessarily constitutes an unreasonable seizure per se. Id. at 435-436, 439-440. Indeed, even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual as long as they do not convey a message that compliance with their requests is required. Id. at 434-435. In Bostick, it was stated that Immigration & Naturalization Service v Delgado, 466 US 210; 104 S Ct 1758; 80 L Ed 2d 247 (1984), is dispositive in determining whether police conduct is coercive. In Delgado, agents of the Immigration and Naturalization Service visited factories to question employees with respect to whether they were illegal aliens. INS agents stood near the buildings' exits while other agents questioned workers on the job. The confinement that the workers felt was not the result of police activity, but was the result of the workers' voluntary obligations to their employers. Id. at 218. Consequently, there was no seizure in Delgado, because the agents' conduct gave the employees no reason to believe that they would be detained if they answered the questions honestly or if they simply refused to answer. Id.
When determining the reasonableness of a seizure on a bus, courts must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise *243 terminate the encounter. Bostick, supra at 402. The Court refrained from deciding whether a seizure occurred in Bostick, because the trial court had made no express findings of fact and because the Florida Supreme Court improperly had based its decision on the sole fact that the encounter took place on a bus.
Other federal courts have applied these principles in considering whether encounters between the police and individuals constituted a lawful seizure. In United States v Bloom, 975 F2d 1447, 1453-1456 (CA 10, 1992), the court decided that a seizure of the defendant occurred when narcotics agents questioned him concerning whether he was transporting drugs while the defendant was confined in a private train compartment without first having been advised that he was free to decline the agents' request or to terminate the encounter. Likewise, in United States v Wilson, 953 F2d 116 (CA 4, 1991), an officer's prolonged and persistent questioning of the defendant, who had indicated his unwillingness to continue the encounter, and the officer's following and questioning of the defendant through an airport constituted investigative detention. However, in United States v Gonzales, 979 F2d 711 (CA 9, 1992), the court determined that the district court clearly did not err in ruling that the seizure on a bus of a bag containing marijuana was lawful where the defendant was not advised of his right to terminate the encounter, the agent who questioned the defendant was in uniform and armed, and there was no evidence that the defendant knew the agent could ask him to get off the bus if the defendant refused to answer questions. In addition, the court in United States v Washington, 957 F2d 559, 562 (CA 8, 1992), agreed with the district court's determination that there was no coercion or restraint of *244 liberty where the defendant was not physically detained or restrained and the defendant voluntarily talked to the detectives and produced identification and a train ticket.
After comparing the above cases with the present case and applying the principles espoused in Bostick, we believe that the police conduct in this case would convey to a reasonable person that he was not at liberty to ignore the police presence and go about his business. 501 US 437, citing Michigan v Chesternut, 486 US 567, 569; 108 S Ct 1975; 100 L Ed 2d 565 (1988). The detective in the present case asked the defendant if he had any weapons, and despite a negative response, the detective again asked if the defendant had any weapons. Although the confinement on the bus was not the result of police conduct, Bostick, supra at 436, one circumstance to consider is the fact that the detective was standing over the defendant and between the defendant and the bus door. Like the officers in Bostick, the detective in this case did not threaten the defendant by displaying a gun. However, unlike Bostick, supra at 432, the detective failed to advise the defendant that he had the right to refuse consent. The detective asked to look in the defendant's bag and the defendant denied the request. We disagree with the prosecutor's contention that the defendant's response at this point proves that a reasonable person would know that he was free to decline the detective's request. The repetitive, potentially incriminating questions undoubtedly would lead a reasonable person to believe that he was less able to terminate the encounter. Wilson, supra. Considering all the circumstances surrounding the encounter, we conclude that the detective's conduct communicated to the defendant, as it would to any reasonable person, that he was not free to decline *245 the requests. Thus, the encounter involved a restraint on liberty sufficient to become a seizure of the defendant that necessarily implicated the defendant's Fourth Amendment rights as set forth in Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
Next, we must determine whether the seizure was based on a reasonable suspicion supported by articulable facts that criminal activity might be afoot. Id. at 30; United States v Sokolow, 490 US 1, 7; 109 S Ct 1581; 104 L Ed 2d 1 (1989). The standard of review to be applied to the lower court's factual findings concerning the detective's suspicion of criminal activity is whether the findings are clearly erroneous, but the question whether such suspicion was reasonable under the Fourth Amendment is a question of law that we review de novo. Bloom, supra at 1456. Like the district court in Bloom, the lower court in this case did not consider specifically whether the seizure was supported by a reasonable suspicion. However, because the facts are undisputed, we must determine as a matter of law whether Detective Corona's suspicion was reasonable under the Fourth Amendment. Id. Accordingly, we must consider the totality of the circumstances in deciding the legality of the seizure. Sokolow, supra at 8.
There was a reasonable suspicion to justify an investigative stop in United States v Glover, 957 F2d 1004, 1010-1011 (CA 2, 1992), where the defendant was traveling on an early morning express bus that had been used by drug carriers to transport narcotics from a "source city" of narcotics for western New York. When the defendant left the bus, he was sweating profusely and was nervously looking around the bus terminal. The defendant entered a different terminal than the other passengers in an extremely slow manner while continually *246 scanning the entire terminal. When confronted by the officers, the defendant produced two pieces of identification that bore different addresses. Similarly, in Washington, supra at 563, the court found that the police had a reasonable suspicion to justify the investigative stop where the codefendant had traveled from a known source city for drugs and paid for a one-way train ticket in cash. The codefendant lived within two blocks of the defendant, arrived on the same train with him, and talked with him in the station lobby, yet denied knowing the defendant. The codefendant also denied ownership of a suitcase that the detective had seen him carry into the train station. Also, in United States v Manuel, 791 F Supp 265, 269 (D Kan, 1992), the district court found that there were articulable facts justifying the investigative stop where the defendant arrived on a bus and was visiting a person whose last name and address he did not know. The defendant was supposed to dial a telephone number given to him so that someone could pick him up, and he did not know the contents of a package he was carrying that was wrapped in Christmas paper in late January.
On the other hand, the court in Bloom, supra at 1458-1459, decided that no reasonable suspicion of criminal activity existed to justify the investigative detention of a train passenger in his private compartment. The defendant in Bloom appeared nervous and somewhat agitated in the presence of the Drug Enforcement Administration agents. One of the agents was visibly armed. The agents identified themselves, and the defendant agreed to speak with them. After confirming the defendant's travel plans, one of the agents told the defendant that he had a problem on board the train with people carrying drugs in their luggage. The defendant *247 declined consent to a search of his luggage and stated that he was taking the remains of his mother to New York for burial. The agents checked the defendant's story with the train attendant. The agents then seized the defendant's luggage over his objection.
The court in Wilson, supra at 123-127, also found that the police did not have a reasonable suspicion to justify an investigative stop where the officer observed a bulge in the defendant's coat pocket, the defendant glanced over his shoulder a few times when he walked through the airport terminal, and the defendant produced only a check-cashing card for identification. The defendant also falsely claimed that he was coming from Boston. The defendant consented to a search of his luggage and of himself, but refused to consent to a search of his coat.
We find that the facts in the present case did not create a reasonable suspicion that criminal activity was afoot. The defendant told the detective twice that he did not have any weapons. The defendant also declined consent to the search of the bag next to him. Under these circumstances, if the police were permitted to disregard the suspect's attempts to decline consent and to instead persist until reasonable suspicion was created, the Fourth Amendment would be diminished greatly in its intended role as the bulwark against overbearing police conduct. Wilson, supra at 126, citing Terry, supra at 15. Although the defendant appeared to the detective to be nervous, nervousness alone is insufficient to create a reasonable suspicion of criminal activity. United States v $83,900 in United States Currency, 774 F Supp 1305, 1317 (D Kan, 1991).
When Detective Corona entered the bus, the defendant was one of the two people who immediately *248 caught his attention. The detective was trained to observe certain characteristics in people. However, any special observations must be articulated to the courts, and its reasonableness as a basis for the seizure assessed independently of the detective's subjective assertions. United States v Gooding, 695 F2d 78, 82 (CA 4, 1982). The only characteristic that the detective articulated to the court that made him immediately observe the defendant was that the defendant was seated sideways in his seat and was watching people enter the bus. We believe that the defendant's actions were consistent with innocent travel and that any degree of suspicion that attached to his actions was minimal. Bloom, supra at 1458, citing Sokolow, supra at 9-10. Only after the detective accused the defendant of carrying something illegal and asked him to be honest did the defendant admit that he had a gun in the bag.
Considering the totality of the circumstances, we believe that the prosecution failed to meet its burden to demonstrate that the seizure was limited sufficiently in scope and duration to satisfy the conditions of the investigative seizure. Florida v Royer, 460 US 491, 500; 103 S Ct 1319; 75 L Ed 2d 229 (1983). We conclude that the detective did not have a reasonable suspicion based on articulable facts to justify the investigative stop. Because Detective Corona seized the defendant without a reasonable suspicion when the detective accused him of criminal activity, the defendant's subsequent answer that he had a gun in the bag was the tainted fruit of the unlawful seizure of the defendant's person. Bloom, supra at 1458-1459. Thus, the circuit court did not clearly err in suppressing the evidence. Burrell, supra.
Affirmed.
*249 FITZGERALD, J. (concurring).
I concur in Judge HOLBROOK'S opinion. I write separately, however, to acknowledge Justice Marshall's dissenting opinion in Florida v Bostick, 501 US 429, 441; 111 S Ct 2382; 115 L Ed 2d 389 (1991), wherein he realistically portrayed what is occurring in this country in an attempt to halt the "war on drugs":
Typically, under this technique, a group of state or federal officers will board a bus while it is stopped at an intermediate point on its route. Often displaying badges, weapons or other indicia of authority, the officers identify themselves and announce their purpose to intercept drug traffickers. They proceed to approach individual passengers, requesting them to show identification, produce their tickets, and explain the purpose of their travels. Never do the officers advise the passengers that they are free not to speak with the officers. An "interview" of this type ordinarily culminates in a request for consent to search the passenger's luggage.
These sweeps are conducted in "dragnet" style. The police admittedly act without an "articulable suspicion" in deciding which passengers to approach for interviewing. [Citations omitted.]
In discussing the "suspicionless sweep," the dissent, quoting State v Kerwick, 512 So 2d 347, 348-349 (Fla, 1987), stated at 443:
"`[T]he evidence in this cause has evoked images of other days, under other flags, when no man traveled his nation's roads or railways without fear of unwarranted interruption, by individuals who held temporary power in the Government. The spectre of American citizens being asked, by badge-wielding police, for identification, travel papers in short a raison d'etre is foreign to any fair reading of the Constitution, and its guarantee of human liberties. This is not Hitler's Berlin, nor *250 Stalin's Moscow, nor is it white supremacist South Africa. Yet in Broward County, Florida, these police officers approach every person on board buses and trains ("that time permits") and check identification [and] tickets, [and] ask to search luggage all in the name of "voluntary cooperation" with law enforcement.'"
I agree with the dissent in Bostick that "the suspicionless, dragnet-style sweep of buses in intrastate and interstate travel" is not consistent with the Fourth Amendment. Bostick, supra at 444.
Nonetheless, following Supreme Court precedent, as we are compelled to do, the relevant inquiry is whether, under the totality of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. Bostick, supra at 436. Given the facts of this case, which are amply stated in Judge HOLBROOK'S opinion, I do not understand how our dissenting colleague can possibly suggest a negative answer to this question. The officer's repeated questioning regarding the possession of a weapon, after receiving negative responses to his inquiry, was, in my opinion, coercive. The officer went one step further, however, and directly accused defendant of possessing "something illegal." The officer then asked defendant to "be honest" and tell him what was in the bag. Under the totality of the circumstances, I do not believe that even a wrongfully accused innocent person would have felt free to terminate the encounter.[1]
TAYLOR, J. (dissenting).
I respectfully dissent from the opinions of the majority in this matter.
*251 The majority concludes that the defendant's liberty was sufficiently restrained to implicate his Fourth Amendment rights. I feel that the majority misapprehends the current constitutional standard and mischaracterizes the police conduct at issue.
This matter is controlled by federal law. People v Faucett, 442 Mich 153, 157-158; 499 NW2d 764 (1993). In Florida v Bostick, 501 US 429, 439; 111 S Ct 2382; 115 L Ed 2d 389 (1991), the United States Supreme Court stated:
[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.
It cannot be overemphasized that "the `reasonable person' test presupposes an innocent person." Id. at 438 (emphasis in original). Furthermore, "no seizure occurs when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage so long as the officers do not convey a message that compliance with their requests is required." Id. at 437.
In applying this standard, the majority emphasizes that "the detective failed to advise the defendant that he had the right to refuse consent." Ante at 244. No such advice is constitutionally required:
While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the *252 response. [Immigration & Naturalization Service v Delgado, 466 US 210, 216; 104 S Ct 1758; 80 L Ed 2d 247 (1984).]
The determination of the voluntariness of a defendant's consent does not
turn[] on the presence or absence of a single controlling criterion; each [case requires] ... a careful scrutiny of all the surrounding circumstances....
[K]nowledge of the right to refuse consent is one factor to be taken into account, [but] the government need not establish such knowledge as the sine qua non of an effective consent. [Schneckloth v Bustamonte, 412 US 218, 226-227; 93 S Ct 2041; 36 L Ed 2d 854 (1973).]
The majority concludes that the "repetitive, potentially incriminating questions undoubtedly would lead a reasonable person to believe that he was less able to terminate the encounter." Ante at 244. In fact, the right of
police officers [to] approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions ... is by no means novel; it has been endorsed by the Court any number of times. Terry, Royer, Rodriguez, and Delgado[[1]] are just a few examples. [Bostick, supra at 401.]
Furthermore, the detective's questioning was not objectionably repetitive.
When he approached the defendant, the detective was dressed in casual clothes and his weapon *253 was not visibly displayed. He immediately identified himself to the defendant as a police officer, showing him his picture identification and badge. He first asked the defendant if he could speak with him. He then asked the defendant if he was carrying any weapons, and the defendant said he was not. At the same time, the detective noticed that the defendant's hands were shaking, his feet were tapping on the ground, he could not sit still in his seat, he seemed almost on the brink of crying, and he appeared to be concealing something with his hand in the duffle bag on the seat next to him. Because of this furtive behavior, the detective again asked the defendant if he had any weapons, and again the defendant said no. The detective then asked if he could look in the defendant's bag. The defendant replied that he did not see the reason for the detective's request, and the detective told him the reason: that he felt the defendant had something illegal in the bag and that the defendant should be honest with him. The defendant then stated that he had a weapon in the bag, specifically, a gun.
In Bostick, two police officers in full uniform, and one of them holding a zipper pouch clearly containing a pistol, approached a passenger on a bus. In this case, there was only one police officer, he was dressed in casual clothes, and his pistol was not visible. It is true that, unlike in Bostick, the defendant was not specifically advised that he had the right to refuse consent. However, as discussed above, this is not required. The majority relies on the assertion that "the detective was standing over the defendant and between the defendant and the bus door." Ante at 244. The detective's testimony, however, was that he was standing next to the seat in front of the defendant. He was not directly alongside the defendant's seat, *254 blocking access to the aisle. More importantly, as the Bostick Court specifically noted and the majority in the instant case concedes, the restriction of a passenger's freedom of movement on a bus is not the product of police conduct; it is merely an inherent consequence of being a passenger on a bus. Id. at 435-436.
The majority relies on two federal appellate cases to support its interpretation of Bostick. Both cases are factually dissimilar from the case at bar and, in fact, evidence by comparison how unobtrusive the detective's conduct was. In United States v Wilson, 953 F2d 116 (CA 4, 1991), the defendant allowed a police officer, who was accompanied by two other police officers, to search his person and his carry-on bag in an airport terminal. The defendant, however, refused permission to search two coats he was carrying and began to walk away. The police officer walked alongside the defendant and persisted in asking to be allowed to search the coats. The defendant replied in an angry tone that he was being harassed and continued to refuse permission to search the coats. When asked if he would accompany the police officers to the police station so that a drug-sniffing dog could examine the coats, the defendant said no and again proceeded toward the exit. The police officer continued to walk alongside the defendant and asked if he could just pat down the coats. Two of the police officers persisted in asking the same question even after the defendant had left the building and, ultimately, the defendant agreed to allow them to search the coats. Crack cocaine was found in the pocket of one of the coats and the defendant was arrested after a chase. Id. at 118-120. The district court denied the defendant's motion to suppress the evidence, concluding that "a stop or seizure had occurred, but that it was founded on `reasonable *255 suspicion or probable cause.'" Id. at 120. Citing Bostick, the Fourth Circuit Court of Appeals concluded that the defendant was seized within the meaning of the Fourth Amendment:
The officer's prolonged and persistent questioning after the suspect had conveyed an unequivocal unwillingness to engage in further conversation with the officer is the type of conduct that is proscribed by the Fourth Amendment. [Wilson, supra at 123].
The court relied on the following facts: that the defendant continuously said that the police were stopping him and harassing him; that the defendant refused the officer's requests in an angry tone and on numerous occasions was asked by the officers to lower his voice; and, most importantly, that the police persisted with the same questions even after the defendant attempted to terminate the encounter on at least four occasions. Id. The court also distinguished its case from "a case heavily relied upon by the government" in which "there was no effort whatsoever by the suspect to terminate the police-initiated encounter." Id. at 123, n 2.
In the other case relied on by the majority, United States v Bloom, 975 F2d 1447 (CA 10, 1992), two police officers, one in uniform and visibly armed, the other in plainclothes with his weapon concealed, questioned the defendant from the hallway outside his small private train compartment. The officers examined the defendant's ticket and identification and asked him if he had any drugs in his luggage. The defendant stated that he did not. When asked if he would voluntarily consent to a search of his luggage, the defendant said no, stating that his mother's remains, which he was transporting for burial, were inside. *256 Subsequently, one of the police officers questioned a train attendant, who confirmed that the defendant had told him to be very careful with his luggage because his mother's remains were inside. The officer then made inquiries at the ticket office and the defendant's story was again corroborated. Despite this, the officers returned to the defendant's compartment and questioned him again. After eliciting a discrepancy in the defendant's story, one of the officers seized the defendant's suitcases over his objection. The results of a canine sniff indicated the presence of contraband, the defendant was arrested, and, after a warrant was obtained, a search of the luggage uncovered marijuana. Id. at 1449. The district court denied the defendant's motion to suppress the evidence, concluding that the defendant had not been seized and that he voluntarily had provided the information requested by the police officers. In reversing the decision of the district court, the Tenth Circuit Court of Appeals held that "the location of the encounter in the confines of a small private train compartment" was a "critical factor [that] weighed heavily in our analysis." Id. at 1453. The court specifically noted that a person traveling in a private train compartment has a higher expectation of privacy than an individual traveling in a public passenger car of the train. Id. at 1453, n 6. The court also distinguished a private train compartment from the public passenger section of a bus, the location of the encounter in Bostick. Bloom, supra at 1453-1454, n 7. The court cited two other factors in support of its conclusion that the defendant had been seized: there were two police officers, and one of them was in uniform and visibly armed. Id. at 1454. Finally, the court acknowledged that "[t]he Supreme Court has recognized that the failure to [advise a defendant that *257 he is free to terminate the encounter] does not necessarily eliminate the consensual nature of the encounter." Id. at 1454-1455. "Nonetheless, [the court] afforded this factor `greater weight' ... because the encounter occurred in a nonpublic setting." Id. at 1455.
In the case at bar, unlike in Wilson, the defendant did not refuse numerous requests, did not accuse the detective of harassing him, and made no effort to terminate the encounter. And, unlike in Bloom, the defendant did not expressly deny the detective's request to look in his bag; his response to the request, that he did not see any reason for it, actually indicates that the defendant understood that he was free to refuse the request. Furthermore, far from expressing an unequivocal desire to terminate the encounter, the defendant's response actually invited the response from the detective.
The circumstances of this encounter would not have led a reasonable innocent person to believe he was not free to decline the detective's request or otherwise terminate the encounter. More significantly, this particular defendant does not appear to have so believed. The detective's conduct was not the type of conduct that is proscribed by the Fourth Amendment.
The concurrence's evocation of notoriously repressive regimes is emotionally compelling but analytically impotent. References to dragnet-style sweeps by groups of police officers and "`other days, under other flags, when no man traveled his nation's roads or railways without fear of unwarranted interruption'" are wholly impertinent, given the actual facts of this case. Such bombast does little to assist in the serious analysis required here.
Obviously, the case law dealing with encounters *258 between the police and citizens, with its fact-intensive analytical framework, does not provide mechanically applicable rules to be administered by lower courts. That very fact, however, makes it all the more important to heed the underlying balance of policy considerations articulated in Bostick, supra at 439:
If that war [i.e., the war on drugs] is to be fought, those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime. By the same token, this Court is not empowered to forbid law enforcement practices simply because it considers them distasteful. The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation.
In the instant case, the circuit court clearly erred in granting the defendant's motion to suppress the evidence. The defendant was not seized within the meaning of the Fourth Amendment. I would reverse the circuit court's order and allow the evidence to be used at trial.
NOTES
[1] Indeed, I believe this case is distinguishable from the typical case where an individual is not personally accused of criminal activity but is, solely by virtue of his location, subject to police interrogation.
[1] Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968); Florida v Royer, 460 US 491; 103 S Ct 1319; 75 L Ed 2d 229 (1983); Florida v Rodriguez, 469 US 1; 105 S Ct 308; 83 L Ed 2d 165 (1984); Immigration & Naturalization Service v Delgado, 466 US 210; 104 S Ct 1758; 80 L Ed 2d 247 (1984).
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739 A.2d 975 (1999)
325 N.J. Super. 447
STATE of New Jersey, Plaintiff-Respondent,
v.
Joe BROWN, Defendant-Appellant.
Superior Court of New Jersey, Appellate Division.
Submitted October 25, 1999.
Decided November 10, 1999.
*976 Ivelisse Torres, Public Defender, for defendant-appellant (William Welaj, Designated Counsel, of counsel and on the brief).
Daniel G. Giaquinto, Mercer County Prosecutor, for plaintiff-respondent (Charles Ouslander, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges PETRELLA, CONLEY and COBURN.
The opinion of the court was delivered by COBURN, J.A.D.
A Mercer County Grand Jury returned an indictment charging defendant with first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree robbery, N.J.S.A. 2C:15-1 (count two); fourth-degree possession of a weapon, a knife, under inappropriate circumstances, N.J.S.A. 2C:39-5d (count three); and third-degree aggravated assault, N.J.S.A. 2C:12-1b(7) (count four). A trial jury found defendant not guilty of count one, guilty of counts two and three, and guilty under count four of the lesser included offense of simple assault, N.J.S.A. 2C:12-1a. The judge merged count four into count two and imposed an extended term on count two of twenty years imprisonment, ten years to be served without parole. The judge imposed a consecutive term on count three of eighteen months imprisonment, nine months to be served without parole. We affirm the judgment.[1]
The crimes occurred on the evening of July 24, 1996. The victim was an elderly woman. Shortly before 9:00 p.m., she left her Hamilton Township home and walked to a nearby Burger King restaurant where she ate and received a receipt marked 9:07 p.m. She crossed the street and entered a Pathmark supermarket *977 where she purchased various items, including a Tastykake Chocolate Junior Yellow Layer Cake and a can of Folger's coffee. She placed those items in her pocketbook and the remaining items in a shopping bag. She received a receipt marked 9:55 p.m., left the store, and started walking home.
When she got to Churchill Avenue, she was hit in the back by an assailant. The blow forced her to fall forward, injuring her elbows and knees, and seriously damaging some of her teeth, which, as a result, had to be replaced with dentures. The assailant grabbed her shopping bag and pocketbook and ran. She looked up and noticed that her attacker, who was running away, was a black male. Her screams of distress brought neighbors to the scene. Someone called for the police, who arrived within minutes.
Four juveniles in the area of Churchill Avenue and South Clinton Street provided the police with a physical description of a man they had recently observed running: "a black male, approximately five seven, medium build, short, cropped hair, white tee-shirt, blue shiny warm-up pants and dark shoes."
Within minutes, a police officer saw a man, the defendant, fitting the description and running away from the direction of the crime. The officer stopped him. He was "breathing very heavily, and he was soaked in perspiration...." The officer noticed a "silvery pointy object protruding from the right front of [defendant's] sweat pants...." More specifically, the officer said that the object, apparently an ordinary kitchen knife with a five-inch long blade, was in defendant's "right front pocket of his running pants, the blade facing up out of the pants towards his face." The officer took the knife. A search of the defendant's left front pocket resulted in the discovery of a Tastykake Chocolate Junior Yellow Layer Cake. Later investigation showed that the cake had the same expiration date, bar code, and serial number as other cakes in the Pathmark where the victim had just shopped.
A search of the area between the crime and arrest scenes resulted in the discovery of the victim's purse. Among other things, it contained her checkbook, the receipts from the two stores, and, most importantly, the Folger's coffee can. Subsequently, defendant's right thumbprint was found to be on the coffee can.
The four juveniles were transported to the arrest scene. An officer testified that two of them identified defendant as the person they had seen running and two indicated that he looked like the person but they were not sure. One of the latter two juveniles testified.
I
Defendant contends that the admission of the hearsay evidence of the identifications made by the three non-testifying juveniles prejudiced his right to a fair trial. This testimony was volunteered by the police officer in an unresponsive answer to a question from the prosecutor. Although defendant did not object when the evidence was received, he later moved for a mistrial on the ground that the evidence was impermissible hearsay. The judge denied the motion and instructed the jury to consider the testimony only for the limited purpose of explaining the conduct of the police in stopping the defendant. The judge twice instructed the jury that it could not consider the identifications as substantive evidence.
The hearsay evidence of the identifications by the non-testifying juveniles was clearly inadmissible. State v. Bankston, 63 N.J. 263, 268-69, 307 A.2d 65 (1973). But "it is axiomatic that `[n]ot every admission of inadmissible hearsay ... can be considered to be reversible error ...; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently.'" State v. Winter, 96 N.J. 640, 646, 477 A.2d 323 (1984) (quoting Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476, 484 (1968)).
*978 The Winter Court explained that in these circumstances the resolution of a mistrial motion rests with the sound discretion of the trial judge, and the reviewing court should give deference to the trial judge's determination to give a curative instruction instead of a mistrial.
The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting. [This Court has] upheld the denial of a mistrial motion based on the trial court's directive to the jury to disregard a prejudicial comment....
Likewise, when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court.
[Id. at 646-47, 477 A.2d 323.]
Although defendant now complains that the judge's charge was inadequate, no such objection was raised either time the charge was given, first shortly after the evidence was received without initial objection, and later during the general charge at the end of the case. Consequently, we may infer that the instructions were adequate in the context of this trial. See, e.g., State v. Macon, 57 N.J. 325, 333, 273 A.2d 1 (1971).
We emphasize that the identifications were not based on observations of the defendant during the commission of the crime. At most, they merely confirmed that the defendant was a man the witnesses had seen running in the area. That evidence was confirmed by the juvenile who did testify, and it was, in essence, reconfirmed by the arresting officer's observation of defendant running from the direction of the crime scene and sweating profusely. Moreover, defendant was in possession of the cake just purchased by the victim, and he had left his thumbprint on the coffee can found in her pocketbook. Given the limited importance of the hearsay evidence, the judge's charge, and the overwhelming evidence of defendant's guilt, we are satisfied that the error does not warrant reversal since it was not "clearly capable of producing an unjust result...." R. 2:10-2.
II
Defendant made a timely motion for an acquittal on the charge of first-degree robbery. R. 3:18-1. The judge denied the motion. Although the jury acquitted defendant on this count, he argues that the denial was error and that it prejudiced his right to a fair trial because "the jury may have reached a compromise verdict."
First-degree robbery is defined in N.J.S.A. 2C:15-1b:
Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.
[Emphasis added.]
"Deadly weapon" is defined by N.J.S.A. 2C:11-1c
as any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.
[Emphasis added.]
We are only concerned with the underlined portion of the robbery statute since the charge of first-degree robbery was based solely on defendant's possession of *979 the knife. The question is whether he could have been found to have been armed with a "deadly weapon," as defined by N.J.S.A. 2C:11-1c, simply because a knife was in his pocket during the robbery. The answer is no.
This issue was addressed in State v. Riley, 306 N.J.Super. 141, 703 A.2d 347 (App.Div.1997). In that case, the defendant committed a robbery by knocking the victim to the ground and taking money from his pocket. The defendant, who was immediately detained by a passer-by and arrested when the police arrived a few minutes later, had in his pocket the victim's money and "a three-bladed pocket folding knife, the largest blade being about four inches long." Id. at 145, 703 A.2d 347. The court reversed defendant's conviction for first-degree robbery because this was an ordinary knife, i.e., not a per se or qualified per se weapon within the definitions of N.J.S.A. 2C:39-1r and 2C:39-3e, and because there was no evidence that he used or intended to use the knife in the robbery. Id. at 146-50, 703 A.2d 347. The court concluded that lacking evidence of use or intended use, this ordinary knife was not a deadly weapon within the definition of N.J.S.A. 2C:11-1c. Id. at 149, 703 A.2d 347.
The only differences between Riley and this case is that here the knife, apparently an ordinary kitchen knife, had a fixed, five-inch blade, a small portion of which was protruding from defendant's pocket at the time of his arrest. Those differences are of no moment. As in Riley, the knife was neither held by defendant nor seen by the victim. The only evidence was that it was immediately available to defendant during the robbery. While that establishes that defendant was armed, State v. Merritt, 247 N.J.Super. 425, 429-30, 589 A.2d 648 (App. Div.), certif. denied, 126 N.J. 336, 598 A.2d 893 (1991), it is not sufficient evidence that the weapon was a "deadly weapon" as defined by N.J.S.A. 2C:11-1c. Therefore, the motion to dismiss the first-degree robbery charge should have been granted.
Defendant contends that his conviction for second-degree robbery was tainted by the judge's submission of the first-degree charge to the jury. He argues that State v. Christener, 71 N.J. 55, 362 A.2d 1153 (1976), mandates reversal in these circumstances. We disagree.
In Christener, the jury was instructed on first- and second-degree murder and manslaughter and found defendant guilty of manslaughter. After taking note of the general principle "that jury instructions may only be delivered where they are supported by evidence," id. at 69, 362 A. 2d 1153, the Court expressed its reasons for reversing the conviction in the following manner:
[W]e find that the first degree murder charge in this case was plain and harmful error requiring reversal.... On the record in this case, there was a real possibility that the jury could have found the defendant not guilty. Hence, the possibility that the jury, in the absence of sufficient evidence to sustain a first degree murder charge, may have reached a compromise verdict suggests that Christener may have suffered prejudice by that instruction in spite of his manslaughter conviction.
[Id. at 69-70, 362 A.2d 1153.]
In reaching its conclusion, the Court relied on cases from other jurisdictions "hold[ing] that an unsupported charge on first-degree murder constitutes prejudicial and reversible error even where a verdict is returned by the jury on a different and lesser charge." Id. at 70, 362 A.2d 1153. Although the Court went on to state generally that "[h]enceforth, it should be regarded as error for a trial judge to deliver a jury instruction on a criminal charge for which there is no, or insufficient evidence to support the instruction," id. at 73, 362 A.2d 1153, as is evident from the quotation, the Court did not hold that in every instance such error must be deemed prejudicial and reversible. Consequently, the applicable rule is R. 2:10-2, which dictates *980 that we disregard any error "unless it is of such a nature as to have been clearly capable of producing an unjust result...."
Defendant was not prejudiced in this case because of the manner in which the judge charged the jury. He instructed the jury to first consider and resolve the issue of second-degree robbery. Only if defendant was guilty of that charge was the jury to consider and resolve whether defendant was armed.[2] That is precisely the course followed by this jury, as confirmed by the jury verdict form. After convicting defendant of second-degree robbery, the jury determined that he was not guilty of being armed. In light of the strength of the State's case, unlike the situation in Christener, there was no real possibility that the jury could have found defendant not guilty of second-degree robbery. The victim was found injured and bloody within moments after the robbery. Shortly thereafter, the police found defendant sweating profusely and running away from the direction of the crime. He had the victim's cake in his pocket and he had left his thumbprint on her coffee can. Consequently, we can perceive no basis for defendant's speculation that the verdict resulted from a compromise.
III
Defendant argues that the verdict on count three, possession of a knife under circumstances not manifestly appropriate for its lawful use, was against the weight of the evidence. Since he did not raise this issue in the trial court, he is barred from raising it on appeal. R. 2:10-1; State v. McNair, 60 N.J. 8, 9, 285 A.2d 553 (1972); State v. Pickett, 241 N.J.Super. 259, 265-66, 574 A.2d 1014 (App.Div.1990). Apart from the procedural bar, our review of the transcript reveals that defendant's guilt of this charge was established beyond reasonable doubt.
The applicable statute, N.J.S.A. 2C:39-5d, provides, "Any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree." A "weapon" is defined as including "anything readily capable of lethal use or of inflicting serious bodily injury." N.J.S.A. 2C:39-1r. That definition contrasts with the definition of "deadly weapon" in N.J.S.A. 2C:11-1c, the latter section focusing primarily on the defendant's use or intended use of the weapon.
In State v. Lee, 96 N.J. 156, 161, 475 A.2d 31 (1984), the Court said that N.J.S.A. 2C:39-5d concerns "the situation in which someone who has not yet formed an intent to use an object as a weapon possesses it under circumstances in which it is likely to be so used." The Court "conclude[d] that the Legislature did not require proof of an intent to use a weapon for an unlawful purpose as an element of a violation of [this statute]." Id. at 163, 475 A.2d 31. The defendant in Lee was arrested shortly after committing a burglary. In his pocket, the police found a pair of scissors partially wrapped in tape so as to form a stiletto-like instrument. Id. at 159, 475 A.2d 31. Those circumstances were found to justify conviction under this statute.
In State v. Wright, 96 N.J. 170, 475 A.2d 38 (1984), appeal dismissed, Wright v. *981 New Jersey, 469 U.S. 1146, 105 S.Ct. 890, 83 L.Ed.2d 906 (1985), the Court sustained a conviction under this statute for a defendant who, when arrested on outstanding warrants, was found to have "strapped to his ankle by a rubber band ... an Exacto knife, with an eight-inch handle and a one-inch razor-like blade, protected by a cardboard sheath." Id. at 172, 475 A. 2d 38.
In State v. Blaine, 221 N.J.Super. 66, 533 A.2d 980 (App.Div.1987), the court found the statute inapplicable to a defendant who had a closed folding knife in his pocket when the police arrested him on a warrant as he walked down the street. The court analyzed Lee and Wright in the following manner:
As we therefore understand the rationale of Lee, where the implement is of an equivocal character, susceptible to both lawful and unlawful uses, its status as a weapon whose possession is capable of subjecting its possessor to criminal liability is entirely dependent on the circumstances attending the possession. See, e.g., State v. Jones, 198 N.J.Super. 553, 569 [565], 487 A.2d 1278 (App.Div. 1985), so construing N.J.S.A. 2C:39-7. Thus, a pair of scissors taped in such a way as to form a homemade stiletto will justify a conviction under N.J.S.A. 2C:39-5(d) when it is found on the person of an intruder into a home. State v. Lee, supra. And an Exacto knife having an eight-inch handle and a one-inch razor-like blade, a tool which has obvious lawful uses, loses its innocent character when strapped to a person's ankle inside his sock. See State v. Wright, 96 N.J. 170, 475 A.2d 38 (1984), app. dism. 469 U.S. 1146, 105 S.Ct. 890, 83 L.Ed.2d 906 (1985).
[Id. at 70, 533 A.2d 980.]
The court then explained its resolution of the case:
The question which is directly before us is whether a knife of the nature here involved is by itself of such a character as to permit a conviction in the absence of any incriminating factor other than its presence in one's pocket as he is walking down the street. We conclude that it is not. Obviously, a folding knife with a four-inch blade can be used lethally and is capable of inflicting serious injury. See N.J.S.A. 2C:39-1(r). But it also has a myriad of perfectly proper uses.... It is not, as in the case of weapons defined by N.J.S.A. 2C:39-3(e), presumptively possessed for purposes which are not lawful and it is, in fact, an implement which is commonly and regularly sold throughout the state as a matter of ordinary commerce. We are constrained, therefore, to conclude that this knife was not of a character whose bare possession, in the absence of a single additional incriminating circumstance, can sustain a conviction of crime.
[Id. at 70-71, 533 A.2d 980 (citations omitted).]
The circumstances of the instant case are analogous to the circumstances of Lee and clearly distinguishable from those of Blaine. As in Lee, here the weapon was possessed by the defendant during the commission of a crime. Since it was readily available to him, he was armed. State v. Merritt, supra, 247 N.J.Super. at 429-30, 589 A. 2d 648. Furthermore, although there is no difference between a folding pocketknife and a kitchen knife for purposes of determining whether the weapon is a deadly weapon under the armed robbery statute, a distinction may be drawn between those weapons under this statute. While a pocketknife belongs in one's pocket, a kitchen knife belongs at home. See State v. Lee, supra, 96 N.J. at 161, 475 A.2d 31 ("A steak knife is appropriate at the dinner table, but sinister when concealed in a car with a BB gun."). Defendant's possession of the kitchen knife in this case can fairly be described as sinister, too. This was a situation in which, even though defendant may not have formed an intent to use the weapon, it was likely to be so used if necessary to accomplish his criminal purpose of robbery. Unlike Blaine, where the defendant was *982 merely walking down the street with a pocketknife, the commission of the crime while armed with a kitchen knife were additional incriminating circumstances which fully warranted the conviction.
In State v. Riley, supra, which parallels this case except for the design of the weapon, the court reversed defendant's conviction of N.J.S.A. 2C:39-5d, saying that "the lack of intent to use the implement [a pocketknife] as a weapon precludes the conclusion that the implement was a weapon." 306 N.J.Super. at 150, 703 A.2d 347. Although we agree that the lack of intent demonstrated that the knife was not a deadly weapon for purposes of the robbery statute, we cannot agree that it was not a weapon, as defined by N.J.S.A. 2C:11-1c. Thus, we understand Riley as turning on the fact that the weapon was merely a pocketknife, an item customarily carried by ordinary citizens, and that in the circumstances of that case there was insufficient evidence that it was likely to be used during the commission of the crime.
IV
Last, defendant argues that the sentence imposed was manifestly excessive. He concedes that he "clearly qualified for extended term treatment in light of his prior convictions." The pre-sentence report describes him as a "27 year old career criminal ... [who] has accumulated 10 juvenile and 18 adult arrests. He has been exposed to institutionalization, probation and parole supervision and nothing has deterred this defendant from his continuing pattern of criminal behavior." The report notes that this was defendant's ninth indictable conviction in Mercer County.
Specifically, the defendant claims that the judge erred in sentencing him to a maximum extended term for the robbery, in ordering parole ineligibility, and in ordering that the sentences be served consecutively. Our review of the record and the judge's expression of his reasons for imposing the sentence in question reveals that this point is without merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(2). The sentencing guidelines were followed, there was substantial evidence supporting the facts underlying the judge's application of the guidelines, and the judge did not clearly err by reaching a conclusion that could not have been reasonably made upon the weighing of the relevant factors. State v. Roth, 95 N.J. 334, 365-66, 471 A.2d 370 (1984).
Affirmed.
NOTES
[1] The sentencing transcript reveals that the judge imposed a nine month period of parole ineligibility, but in the judgment of conviction that period is set at eight months. "Where there is a discrepancy between the trial court's oral pronouncement of sentence and the sentence described in the judgment of conviction, the transcript of the trial judge's remarks controls." State v. Rivers, 252 N.J.Super. 142, 147 n. 1, 599 A.2d 558 (App. Div.1991). Accordingly, we remand to the trial court for entry of an appropriately amended judgment.
[2] The first question on the verdict form read: "How do you find as to the charge of robbery, that the defendant ... did, in the course of committing a theft, inflict bodily injury and/or use force upon, [the victim], on or about July 24, 1996?" The second question on the verdict form, to be answered only if the answer to the first was "yes," read: "Was the defendant... armed with a deadly weapon, to wit: a knife at the time of the commission of the robbery?" We do not mean to indicate by this opinion that the issues should have been submitted in that manner. See State v. Diaz, 144 N.J. 628, 677 A.2d 1120 (1996). But given the not guilty verdict on the armed "charge," we perceive no prejudice to defendant. Had the jury been asked to first resolve whether defendant was guilty of first-degree robbery, a stronger argument could have been made that the result was a compromise verdict. But that was not the situation.
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255 S.W.2d 557 (1953)
KIRK
v.
HARRINGTON.
No. 15407.
Court of Civil Appeals of Texas, Fort Worth.
February 6, 1953.
Rehearing Denied March 6, 1953.
*559 M. J. Flahive, of Austin, Chas. J. Murray and M. Hendricks Brown, both of Fort Worth, for appellant.
Mays & Mays and Dave Miller, all of Fort Worth, for appellee.
MASSEY, Chief Justice.
Appeal from order overruling appellant's plea of privilege. Affirmed.
This is an appeal from an order overruling a plea of privilege filed by Jesse Kirk, Jr., as the only appellant, to a suit denominated by plaintiff's original petition as W. B. Harrington, plaintiff, v. Jack Kirk Truck Lines, a corporation, defendant, domiciled in Milam County, Texas.
The cause of action was for personal injuries and damages growing out of the appellee Harrington's having been struck by a truck on a highway in Tarrant County, Texas, within the corporate limits of the City of Fort Worth, at about 8:15 P.M., on the evening of April 17, 1952. Suit was filed in Tarrant County and appellee maintained venue therein, based on section 9 of Article 1995, R.C.S.1925, Vernon's Ann. Civ.St. art. 1995, subd. 9, which section allows suits based upon crime or trespass to be brought in the county in which such was committed.
From the record before us, there was never any appearance by any legal entity save by Jesse Kirk, Jr., and individual, whose exact connection with the Jack Kirk Truck Lines, a corporation, if any, is not shown except by these words in the beginning of his plea of privilege: "Now comes Jesse Kirk, Jr. who has heretofore been served in the name of Jack Kirk and in the business name of Jack Kirk Truck Lines, and showing the court that Jesse Kirk is the same person as Jack Kirk, files this his plea of privilege, * * *."
The appellee filed a controverting affidavit to this plea of privilege, terming it a controverting affidavit to the defendant's plea of privilege, and he also served some written requests for admissions under Rule 169, Texas Rules of Civil Procedure, upon the attorney who filed the plea of privilege for appellant, as requests for admissions of fact to be made by the defendant. Answers to such requests for admissions were made and filed by appellant, upon whose attorney service of the requests was had. He predicated such answers with the words, "Now comes the defendant in the above entitled and numbered case, and after having been served with requests for admission * * *," and he follows with his numbered answers to the requests, each beginning with the words, "This defendant says * * *." (Emphasis ours.)
A hearing was had before the court, without a jury, upon the plea of privilege so filed. No motion was ever filed in the trial court or on the appeal to correct any misnomer of the defendant in the original suit. No motion to dismiss this appeal is filed, though appellee argues in his brief that a defendant, "a corporation," having been sued, no proper appeal has been taken from the order overruling the plea of privilege.
The notice of appeal is by Jesse Kirk, Jr., and the bond is also by him. The record is silent as to whether or not there is such a concern as Jack Kirk Truck Lines, a corporation, or whether there actually is such a concern being operated by an individual or co-partnership, or otherwise. No showing *560 is made that the defendant as named in the petition, Jack Kirk Truck Lines, a corporation, was ever served or ever appeared in court for any purpose. Neither is there any denial, under oath or otherwise, by anyone that such concern is a corporation. The statement of facts indicates that the appellant and appellee were the only parties present at the hearing in the trial court, and no question was ever raised as to misnomer or as to whether the proper parties were before the court. The court and the parties upon the trial of the plea of privilege treated Jesse Kirk, Jr., as party defendant in the suit, without reference during the course of the hearing as to there being any other party who was or should have been a defendant.
There was no plea in abatement filed in the trial court by appellee to the plea of privilege filed by Jesse Kirk, Jr., nor any exception to it by appellee on any ground. The trial proceeded as to venue as to Jesse Kirk, Jr. There was an adjudication to the effect that exception to the venue statute existed and the plea of privilege so filed by appellant was overruled. However, such order overruling the plea of privilege bore the title of the suit as originally filed and reads as follows:
"On this the 29th day of September 1952 came on to be concluded the hearing on the defendant's appliation for change of venue in the above cause, and all parties appearing in open Court through their respective attorneys, and the Court, after hearing the evidence and being fully advised, is of the opinion that said plea should be overruled.
"It is therefore ordered, adjudged and decreed by the Court that the plea of privilege filed herein by the defendant be and the same is hereby in all things overruled, to which action the defendant then and there in open Court excepts and gives notice of appeal. * * *"
The appeal bond, bearing the caption of the suit as oiginally filed, recites that "Whereas, in the above entitled and numbered cause pending in the 96th District Court of Tarrant County, Texas, wherein W. B. Harrington is the plaintiff and Jesse Kirk, Jr. is the defendant, the said Court did on the 29th day of September, 1952, overrule the plea of privilege of the defendant theretofore timely filed to be sued in the County of his residence, * * *." Said bond is executed by Jesse Kirk, Jr., as principal, along with surety company. No complaint has been made as to said bond by appellee. The transcript and statement of facts on appeal styled the case as same was styled in the suit originally filed, but the case is docketed as Jesse Kirk, Jr., appellant, v. W. B. Harrington, appellee, on appeal, and both parties to the appeal briefed the case under this styling.
The appellant complains that the evidence introduced upon the hearing is wholly insufficient to sustain venue in Tarrant County, Texas, against Jesse Kirk, Jr., under the alleged exception to Article 1995, and appellee counters, claiming that suit having been filed against Jack Kirk Truck Lines, a corporation, with corporate status not having been denied under oath, and the suit not being against Jesse Kirk, Jr., who is the appellant, the evidence was sufficient to show that Jack Kirk Truck Lines, a corporation, was the owner of the truck involved in the collision and that such was being operated by and under the control of said defendant corporation at the time of the injuries. This is followed by counterpoints generally replying to the claim of the appellant as to the insufficiency of the evidence.
At the outset, a question to be determined is whether or not there was a lawful adjudication upon the plea of privilege filed in the court below, from which an appeal was taken, of which this court has jurisdiction. There is no question but had this been a trial on the merits in the court below and Jesse Kirk, Jr., been then and there pleading to the merits and trying the merits, he would have been bound by a judgment rendered in behalf of the plaintiff for damages. Under the circumstances of this case, he would have been bound by the judgment as a true defendant, if not the true defendant, and he would have owed the amount thereunder found as damages to the plaintiff. 65 A.L.R. 1134; White House Lumber Co. v. Denny, Tex. *561 Civ.App., Amarillo, 1934, 75 S.W.2d 709 (error refused); Paxton v. First State Bank of Tatum, Tex.Civ.App., Texarkana, 1931, 42 S.W.2d 837; Robinson v. Watkins, Tex.Civ.App., Dallas, 1925, 271 S.W. 288 (error refused); Southern Pacific Co. v. Granham, 1896, 12 Tex.Civ.App. 565, 34 S.W. 135; Butler v. Express Publishing Co., Tex.Civ.App., San Antonio, 1939, 126 S.W.2d 713 (writ refused).
The question is, since all such proceedings were on a dilatory plea filed by Jesse Kirk, Jr., in a suit against a defendant denominated a corporation, whether the proceedings were a nullity or whether they were good proceedings as to Jesse Kirk, Jr., if not as to the defendant named in the suit as filed, to-wit, Jack Kirk Truck Lines, a corporation.
There is no question but that appellant inserted himself in the suit in one of the following capacities: a real party at interest; the real party at interest; or intervener with an ultimate or contingent interest, based upon any liability of the defendant named as a corporation. In any event, his intervention was with interest as a defendant, at least upon the plea of privilege and he should be so treated. 67 C.J.S., Parties, § 69, p. 1009. If appellant was either a real party at interest or the real party at interest, he was entitled to proceed and to file his plea of privilege. If the intervention by him was based upon an ultimate or contingent interest and obligation predicated upon primary liability being established in the named defendant corporation, as in the cases of liability insurance companies insuring such a defendant, etc., then he would have no right to file a plea of privilege. If any such had been filed, it could have been abated. However, no plea of abatement having been filed to the plea of privilege filed by the appellant, the appellee must be held to have accepted the entry as having been made by Jesse Kirk, Jr., as a real party at interest, if not as the real party at interest. 67 C.J.S., Parties, § 145, p. 1148. This being so, the adjudication is binding upon the parties who were in court participating in the proceedings held therein upon the plea of privilege filed by the one of them and controverted by the other on the ground that exception 9 to Article 1995 existed. Should it be required to make a transfer on appellant's plea of privilege, the transfer would be had only in so far as the cause of action filed constituted a cause of action as against Jesse Kirk, Jr., as no service of appellee's controverting affidavit to appellant's plea of privilege having been had on any other party defendant to the suit, the court had no jurisdiction of any other party and the hearing of the plea worked, in effect, a severance between defendants (if there be more than one). Tunstill v. Scott, 1942, 138 Tex. 425, 160 S.W.2d 65.
A plea of privilege is a dilatory plea which a defendant may file at the outset, and subject to action upon it he may afterwards file the other pleas available to him, such as in abatement or to the jurisdiction. 1 Tex.Jur., p. 161, sec. 117.
In any event, by the court's having treated the parties to this appeal as before it with issue joined on appellant's plea of privilege, without objection on the part of appellee, and, by the court's having adjudicated the question of venue based upon the evidence offered upon the issue so joined, and appeal having been taken by one of the persons present in court upon the trial and participating as a party at interest, this court has jurisdiction of the appeal.
A principal point upon which appellant brings forward his appeal is his complaint that the evidence introduced before the trial court was insufficient to sustain venue in Tarrant County against him, Jesse Kirk, Jr., by virtue of the fact that the truck which was involved in the accident with the plaintiff was not shown to have been the truck of such appellant, and further that the evidence did not show that the manner of operation of such truck, if any, at the time of the accident was active negligence of requisite degree to constitute trespass, or constitute a crime as defined in Article 827a, section 8, of the Vernon's Annotated Penal Code, alleged by appellee in his controverting affidavit as basis for venue under exception 9 of Article 1995.
*562 Said appellant by his plea of privilege, under oath, asserts the following: (1) He was served "in the name of Jack Kirk" and in the business name of Jack Kirk Truck Lines"; (2) that Jesse Kirk is the same person as Jack Kirk; (3) that he, Jesse Kirk, Jr., is a resident of Milam County, Texas.
By his answers to the requests for admission served upon him, the appellant admits that O. A. Witt was his employee, in his service, operating a truck belonging to him in the City of Fort Worth on April 17, 1952, the date of the collision and injury to the appellee. By such answers, such appellant does not admit that his said employee "was acting within the scope and course of his employment" at the time and place of the collision and injuries. But he admits, at least by reasonable inference, that if such truck did strike the plaintiff (of which neither he nor his driver knows other than from hearsay), that his driver was acting within the scope and course of his employment if he was operating the truck "on the route" prescribed by the said appellant, without stating what was the route so prescribed, and without denial that the collision and injuries occurred on such route.
It is true that if ownership alone of the truck was proven, that would be a mere inference and less than requisite in Texas to support a presumption of agency on the part of the driver thereof at the time of the collision. Moreland v. Hawley Independent School District, Tex.Civ. App., Eastland, 1942, 163 S.W.2d 892, supplemented on other questions in Tex.Civ. App., 169 S.W.2d 227, and cases therein cited; Longhorn Drilling Corporation v. Padilla, Tex.Civ.App., Eastland, 1940, 138 S.W.2d 164.
But appellee, by appellant's own admissions, having established that on the day in question appellant's servant was in Fort Worth operating a truck, in his service, has satisfied the burden incumbent upon him to prove prima facie that such servant was acting in the scope and course of his employment by appellant even at the hour when the collision in question occurred. Such a relationship between appellant and his servant and such performance of the purposes thereof, as between them, having been established, it would be presumed to continue to exist to and including the time of the collision and injuries to appellee, in the absence of any affirmative showing to the contrary by the appellant. This would be true regardless of the part of Fort Worth in which the collision occurred, and agency was shown, if it be additionally shown that it was the truck of appellant which was involved. Winerich Motor Sales Co. v. Ochoa, Tex. Civ.App., San Antonio, 1933, 58 S.W.2d 193, reversed on other grounds, 127 Tex. 542, 94 S.W.2d 416, principle declared and approved; In re Black (Black v. Isaak), 1938, 58 Idaho 803, 80 P.2d 24; see also 10 R.C.L., p. 872, sec. 15; 5 Am.Jur., p. 842, sec. 612; 17 Tex.Jur., p. 255, sec. 62.
The next question to be decided is whether or not the fact that the truck observed in the immediate vicinity and at the scene of the collision resulting in injuries to appellee was prima facie the truck of the appellant. Should said truck, so observed, be presumed to have been sufficiently shown to have been the truck of the appellant? There was testimony by Leon Kitchen, an impartial eyewitness, to the effect that the truck so observed at and near the scene of the collision in question, bore the name on the side thereof of "Kirk Truck Lines," and bore an address as Cameron, Texas. It is to be noted that Cameron is the county seat of Milam County, Texas, which County is asserted by appellant in his plea of privilege to be his residence.
The law is well settled in Texas to the effect that a motor vehicle involved in a collision which bears the name or insignia shown to have been that of the party sued may be deemed to have been operated at such time by or in behalf of the party whose name or insignia appears thereon. In this case there was no insignia on the truck and the only name appearing thereon was "Kirk Truck Lines," and the address of Cameron, Texas. Is this suficient to raise the requisite presumption that this was the truck of the appellant, under the rules of law relating to names or insignias?
*563 There are numerous cases on the point but few as to the sufficiency of the name as designating the owners, absent supplemental proof.
It is held that presence of letters or initials on a truck designating the name of a business is insufficient proof as against a defendant to show, in itself, venue as against such defendant, absent additional proof connecting such defendants with such a business. Dillard v. Smith (Rusin v. J. A. and E. D. Transport Co.) 1947, 146 Tex. 227, 205 S.W.2d 366.
In a recent case, where the designation "Strickland" was shown to have been on the side of a truck without anything additional, such was held insufficient to show ownership or agency requisite to hold the defendant. Strickland Transp. Co. v. Atkins, Tex.Civ.App., Dallas, 1949, 223 S.W. 2d 675.
In a case where the members of a copartnership were sued, growing out of an accident involving a truck, the side of which was shown to have borne the name and address of such copartnership, the court said:
"There are many cases holding that where the name of a corporation or an individual is printed on the side of a truck it is sufficient to justify the inference that the corporation or individual is the owner of the truck and that its driver is the agent of the corporation or individual and was acting at the time in the course of its or his employment. (Citing many cases.)
"But we have been unable to find any case holding that such circumstance conclusively establishes the fact of ownership, agency and scope of employment. The firm's name being on the truck could be nothing more than a circumstance which would be sufficient to support the trier of facts in finding that the driver of a truck was the agent of the firm and was acting at the time in the course of his employment, but would not compel him to do so. * *" Walker v. Johnston, Tex.Civ.App., San Antonio, 1951, 236 S.W.2d 534, 536.
It is to be borne in mind that upon the trial of this case that the appellant was in court, at least by and through his attorney of record. There, neither by him, nor any party in his behalf, was any testimony introduced asserting as a fact that his trucks, one of which had admittedly been operated for him on the day in question by O. A. Witt in Fort Worth, Texas, did not bear such a name. Neither was there any testimony by him rebutting such truck's presence at the situs in question. Neither was there any request for time in which to secure rebuttal testimony to that introduced by appellee. Both matters were such as were peculiarly within the appellant's knowledge, and if he could have rebutted same, the testimony whereby he could have done so should have been readily available to him.
The name "Kirk" is the same as the last name of Jesse Kirk, Jr., and Cameron, Texas, the address on the truck, is the county seat of Milam County, his residence, which fact could also have been considered in connection with the name "Kirk" by the trier of the facts. Such name on the side of the truck at the time and place in question raises presumption requisite in law entitling the trier of the facts to find that such truck was being operated, in appellant's service, at such time and place. Especially is this so when there was no evidence introduced in his behalf by appellant in rebuttal thereof, coupled with his admissions that he had in operation, in his service, in Fort Worth, on the date in question, a truck and driver.
The presence of the name "Kirk" on the truck, along with the name of the county seat of the county of the residence of Jesse Kirk, Jr., is a circumstance which is sufficient to support the trier of the facts in finding that the driver of the truck was the agent of appellant and was acting at the time in the course of his employment with appellant. The additional facts admitted by Jesse Kirk, Jr., in his pleadings and in his answers to requests for admissions, and his failure to rebut any testimony on these points were all persuasive and in aid of such trier of the facts in arriving at the *564 findings of fact on which his judgment was based.
This leaves the final question as to whether or not the appellee made out a prima facie case connecting the operation of such truck of appellant with appellee's injuries.
The appellee, in his controverting affidavit, contended that the truck which struck him upon the occasion in question, having been driven at a dangerous and excessive speed in excess of thirty miles per hour, or at a greater speed than was then and there reasonable and prudent under the conditions then existing, constituted a crime under section 8 of Article 827a of the Penal Code, as well as a trespass.
Section 8 of Article 827a, Penal Code, relates to rate and speed of vehicles, and prescribes under subsection 1(a) that "No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing, having regard to the actual and potential hazards * * * or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions; and in every event, speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care." Subsection 1(b) prescribes speeds in excess of certain stated limits to constitute prima facie evidence establishing such as not reasonable or prudent, and hence unlawful, when no special hazard exists which would require lower speeds for compliance with subsection 1(a).
The court filed findings of fact and conclusions of law, in which it was found that the appellee was injured by being struck by a truck after nightfall on the date in question at the place complained of; further that the truck which struck him was appellant's, driven by his employee, O. A. Witt, acting within the scope and course of his employment by appellant, and such truck bore the name "Kirk Truck Lines"; and that appellant committed a crime in Tarrant County, Texas, at said time and place and on the occasion in question, which comes within the violation of Section 8, Article 827a of the Penal Code, and that appellant's said truck was being operated at such time and place at a greater rate of speed than thirty miles per hour, which was negligence. There was no finding of fact will reference to this having constituted a proximate cause of the collision and appellee's injuries, as alleged by him in his petition and controverting affidavit.
Appellant contends that subsection 6, section 8 of Article 827a, Penal Code, by its provisions, makes it requisite that appellee prove proximate cause connecting his injuries and the crime of the appellant, as well as alleging it in his pleadings.
Subsection 6 of said Article reads as follows: "Rule in civil actions. The provisions of this Act declaring prima-facie speed limits shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence on the part of the defendant as the proximate cause of any accident." (Emphasis ours.) Under this article and subsection, a plaintiff in a civil case tried on the merits, though having shown a violation of the act as to excessive speed on the part of a defendant from whom he is seeking relief, is not relieved of the burden of proving that such negligence, the excessive speed, was the proximate cause of his injuries, or of a collision resulting in his injuries. However, such proof of proximate cause in addition to a proving of such negligence is not required in a plea of privilege case, but it is sufficient in a plea of privilege case if the plaintiff's pleadings alone show and allege such. Gann v. Murray, Tex.Sup., 1952, 246 S.W.2d 616.
Actually, Article 827a, Section 8, Penal Code, is so broad in its provisions that it might be construed to mean that the operation of a motor vehicle at any speed which resulted in or had to do with a collision between such vehicle and a person or other vehicle constituted a violation. This would be an unduly broad application. But as regards the facts of this case, a construction of the act is warranted to the effect that it is a violation of law when there is a collision between a person upon the highway and a truck operated thereon *565 at a speed greater than is reasonable and prudent under the conditions then existing, or, with respect to pedestrians, when special hazard exists by reason of weather or highway conditions.
Under such a construction as applied to this case, considering the fact that the collision in question occurred after nightfall, in inclement weather, and between appellee, a pedestrian, and appellant's truck, the appellant could be held to have violated the provisions of said article.
The witness, Leon Kitchen, observed plaintiff's truck as it passed through an intersection, some three hundred yards distant from the point of the collision and injuries to appellee, and Kitchen turned into the lane being traveled by said truck and was following along behind it when the accident occurred. Without his having testified with particularity as to how far behind said truck he was at the time he saw a person or object collide with the side of the truck (and which person or object was later prima facie shown to have been the appellee by virtue of his having been found on the highway at the point Kitchen made such observation), this distance was without question closer than three hundred yards. He did testify that when he reached the point on the highway where he observed the appellee lying immediately after the collision, he was approximately one hundred yards behind appellant's truck, which never stopped. He testified with sufficient certainty as regards these matters to have warranted the trier of the facts to have believed him, and to find that it was appellant's truck with which appellee collided, and that appellant's truck was being operated at the time at a speed in excess of thirty miles per hour, and that such constituted a crime or trespass warranting the retention of the case for a trial on the merits in Tarrant County, Texas.
The speed of appellant's truck came within the provisions, as to unlawfulness as being excessive, of Section 8, Article 827a of the Penal Code and was a violation thereof. Hence it was a crime. Admittedly such was shown and alleged by appellee's pleadings to have been a proximate cause of the collision, and of his injuries. This is sufficient under authority of Gann v. Murray, supra.
The judgment of the trial court overruling appellant's plea of privilege is affirmed.
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461 F.Supp.2d 736 (2006)
Jennifer McNICHOLS, Plaintiff,
v.
JOHNSON & JOHNSON, Ortho-McNeil Pharmaceutical, Inc., Johnson & Johnson Pharmaceutical Research & Development, LLC f/k/a R.W. Johnson Pharmaceutical Research Institute, and Walgreen Co., d/b/a Walgreens, Defendants.
No. CIV. 06-160-GPM.
United States District Court, S.D. Illinois.
April 19, 2006.
*737 Roger C. Denton, Schlichter, Bogard & Denton, St. Louis, MO, Jerome J. Schlichter, Schlichter, Bogard, Swansea, IL, for Plaintiff.
Richard K. Hunsaker, Robert H. Shultz, Jr., William W. Blair, Heyl, Royster et al., Edwardsville, IL, for Defendants.
MEMORANDUM AND ORDER
MURPHY, Chief Judge.
This action is before the Court on Plaintiff Jennifer McNichols' Motion to Remand (Doc. 5). For the following reasons, the motion is GRANTED.
INTRODUCTION
Plaintiff Jennifer McNichols originally filed this action in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois, asserting claims based upon strict products liability, negligence, consumer *738 fraud, common-law fraud, and breach of warranty arising from personal injuries allegedly caused by Ortho Evra, a prescription contraceptive device manufactured by Defendants Johnson & Johnson, Crtho-McNeil Pharmaceutical, Inc., and Johnson & Johnson Pharmaceutical Research & Development, LLC (hereinafter, collectively, "the Johnson & Johnson Defendants").[1] McNichols alleges that Crtho Evra, a transdermal contraceptive patch, has a dangerous propensity to cause blood clots in users of the product and that, as a result of using Ortho Evra, she suffered a severe thrombosis and associated complications. The Johnson & Johnson Defendants removed the action to this Court, asserting that Defendant Walgreen Co. ("Walgreens"), which is, like McNichols, a citizen of Illinois, had been fraudulently joined to defeat federal diversity jurisdiction. McNichols has requested remand of the action to Illinois state court for lack of subject matter jurisdiction.
At issue here are Count IV and Count X of McNichols' complaint, which assert, respectively, a claim in strict products liability that Ortho Evra failed to conform to representations about the product made by the Johnson & Johnson Defendants and Walgreens and a claim for breach of warranty against Walgreens based upon McNichols' purchase of Ortho Evra at a Walgreens pharmacy in Glen Carbon, Illinois. The Johnson & Johnson Defendants contend that McNichols has fraudulently joined Walgreens because her claims against Walgreens are barred by the "learned intermediary" doctrine under Illinois law.
DISCUSSION
A. Legal Standard
Federal courts are courts of limited jurisdiction, with power to hear a case only if such power is granted by the Constitution and authorized by statute, and the presumption is that a case lies outside of this limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Application of County Collector of County of Winnebago, 96 F.3d 890, 895 (7th Cir.1996). Because a federal court's jurisdiction is limited, it has a "nondelegable duty to police the limits of federal jurisdiction with meticulous care." Market St. Assocs. Ltd. P'ship v. Frey, 941 F.2d 588, 590 (7th Cir.1991). See also Fed.R.Civ.P. 12(h)(3); Krueger v. Cartwright, 996 F.2d 928, 930 (7th Cir.1993). "[P]olicing the border of federal jurisdiction" is both a duty and a constitutional "necessity." Unified Catholic Schs. of Beaver Dam Educ. Ass'n v. Universal Card Servs. Corp., 34 F.Supp.2d 714, 717 n. 2 (E.D.Wis.1999).
Removal based on diversity jurisdiction requires that the parties be of diverse state citizenship and that the amount in controversy exceed $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332; Id. § 1441. The party seeking removal has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). "Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum." Id. Put another way, there is a strong presumption in favor of remand. See Jones v. General Tire *739 & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976). In evaluating diversity of citizenship, a court must disregard a defendant that has been fraudulently joined. See Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir.1999). A defendant is fraudulently joined when "there is no possibility that a plaintiff can state a cause of action against [the] nondiverse defendant[] in state court, or where there has been outright fraud in plaintiffs pleading of jurisdictional facts." Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.1993).
A defendant seeking removal based on fraudulent joinder has the "heavy" burden of proving that, after the court resolves all issues of law and fact in the plaintiffs favor, there is no possibility that the plaintiff can establish a cause of action against a diversity-defeating defendant in a state court. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir.1992). See also Tom's Quality Millwork, Inc. v. Delle Vedove USA, Inc., 10 F.Supp.2d 1042, 1044 (E.D.Wis.1998). Moreover, this burden cannot be shifted to the plaintiff by, for example, pointing to formal defects in the plaintiffs submissions to the court. See McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) (a party asserting federal jurisdiction bears the burden of proving that a case is properly in federal court and may not "be relieved of his burden by any formal procedure"); Hart v. Bayer Corp., 199 F.3d 239, 247 n. 6 (5th Cir.2000) (fraudulent joinder is not established by a plaintiffs failure to plead up to the requirements of Rule 9(b) of the Federal Rules of Civil Procedure); Waterloo Coal Co. v. Komatsu Mining Sys., Inc., No. C2-02-560, 2003 WL 124137, at *4 (S.D.Ohio Jan.9, 2003) (same).
B. Fraudulent Joinder
I. Count IV of the Complaint (Strict Products Liability)
As discussed, Count IV of McNichols' complaint asserts a claim in strict products liability against the Johnson & Johnson Defendants and Walgreens. The Johnson & Johnson Defendants argue that this claim is barred by the learned intermediary doctrine, which provides that, where a manufacturer of a prescription drug gives adequate warning to physicians of the drug's known dangerous propensities, the manufacturer and pharmacists dispensing the drug are relieved of a duty to warn the drug's potential users; instead, the physicians, in turn, using their medical judgment, have a duty to convey the warnings to their patients. See Kirk v. Michael Reese Hosp. & Med. Ctr., 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 392 (Ill.1987); Fakhouri v. Taylor, 248 Ill.App.3d 328, 187 Ill.Dec. 927, 618 N.E.2d 518, 519-20 (Ill.App.Ct.1993); Leesley v. West, 165 Ill.App.3d 135, 116 Ill.Dec. 136, 518 N.E.2d 758, 761-62 (Ill.App.Ct.1988); Eldridge v. Eli Lilly & Co., 138 Ill.App.3d 124, 92 Ill.Dec. 740, 485 N.E.2d 551, 552-53 (Ill.App.Ct.1985).
The Court is skeptical about whether the learned intermediary doctrine is a proper basis for a claim of fraudulent joinder, as it implicates issues about foreseeability and causation germane to the liability of both the Johnson & Johnson Defendants and Walgreens. In Simmons v. Norfolk Southern Railway Co., 324 F.Supp.2d 914 (S.D.Ill.2004), the Court explained that a claim "of fraudulent joinder that "indicate[s] that the plaintiffs case [is] ill-founded as to all the defendants" is one which "manifestly [goes] to the merits of the action as an entirety, and not to the joinder" and is "not such as to require the state court to surrender its jurisdiction." Id. at 917 (quoting Chesapeake & Ohio *740 Ry. Co. v. Cockrell, 232 U.S. 146, 153-54, 34 S.Ct. 278, 58 L.Ed. 544 (1914)). The issue of whether the Johnson & Johnson Defendants gave adequate warning to physicians and users of Ortho Evra is at the heart of this case, and the Court questions whether a finding that Walgreens is shielded from liability by the learned intermediary doctrine might have preclusive effects with respect to the Johnson & Johnson Defendants as well. Presumably a determination that Walgreens is immune from liability under the learned intermediary doctrine would be the law of the case as to the Johnson & Johnson Defendants also. See Moore v. Anderson, 222 F.3d 280, 284 (7th Cir.2000) ("Under the law of the case doctrine, . . . when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case."). See also Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir.2004) (explaining that, when a finding of fraudulent joinder will have law-of-the-case effect as to the liability of diverse defendants, the "jurisdictional" issue is in fact a challenge to the merits of a plaintiffs claim for relief that must be resolved in state court).
However, assuming for the sake of argument that the Johnson & Johnson Defendants have properly asserted the learned intermediary doctrine as the basis for their claim that Walgreens has been fraudulently joined, the Court finds nevertheless that the applicability of the doctrine presents questions of fact that must be resolved in state court. Under Illinois law, the learned intermediary doctrine is a shield against liability only where the manufacturer of a prescription drug has given adequate warning of known dangerous propensities of the drug to physicians:
Because the duty to warn is a duty to [a]dequately warn, it is imperative that the communication of the warnings be given in a manner reasonably calculated to reach the medical profession.
* * * * * *
[The warning] must be in such [f]orm that it could reasonably be expected to catch the attention of the reasonably prudent man in the circumstances of its use (here, the members of the medical profession). . . . [T]he [c]ontent of the warning must be of such a nature as to be comprehensible to the average [physician] and to convey a fair indication of the nature and extent of the danger to the mind of the reasonably prudent [physician]. . . . [T]he question of whether or not a given warning is legally sufficient depends upon the language used and the impression that such language is calculated to make upon the mind of the average user of the product. Implicit in the duty to warn is the duty to warn with a degree of [i]ntensity that would cause a reasonable [physician] to exercise . . . the caution commensurate with the potential danger. . . . A clear cautionary statement setting forth the exact nature of the dangers involved would be necessary to fully protect the seller.
Mahr v. G.D. Searle & Co., 72 Ill.App.3d 540, 28 Ill.Dec. 624, 390 N.E.2d 1214, 1230 (Ill.App.Ct.1979). See also Allan E. Korpela, Annotation, Failure to Warn as Basis of Liability under Doctrine of Strict Liability in Tort, 1973 WL 33912, 53 A.L.R.3d 239 (1974) (collecting cases).
Correspondingly, the learned intermediary doctrine is not a bar to liability where a manufacturer never communicated an adequate warning to physicians. In Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420, 261 Ill.Dec. 744, 764 N.E.2d 35 (Ill. 2002), the court explained that "a drug manufacturer that only share[s] information about its product's toxicity with its *741 own employees breache[s] its duty to warn the medical community because without this information, doctors [cannot] provide appropriate and comprehensive medical advice for their patients. This prevent[s] them from functioning as `learned intermediaries' to protect their patients' best medical interests." Id. at 43. The court said, "Doctors who have not been sufficiently warned of the harmful effects of a drug cannot be considered `learned intermediaries.'" Id. (quoting Proctor v. Davis, 291 Ill.App.3d 265, 225 Ill.Dec. 126, 682 N.E.2d 1203, 1215 (Ill.App.Ct.1997)) (emphasis in original). See also AMF, Inc. v. Victor J. Andrew High Sch., 172 Ill.App.3d 337, 122 Ill.Dec. 325, 526 N.E.2d 584, 588 (Ill.App. Ct.1988) ("Critical to imposing liability on physicians who prescribe drugs is their failure to communicate warnings to their patients which the manufacturer communicated to them. In the present case, however, . . . AMF failed to give adequate warnings to the defendants in the first instance, . . . and, therefore, the learned intermediary doctrine is, if for no other reason, inapplicable.").
Most importantly, under Illinois law the issue of whether a manufacturer gave adequate warning of the known dangerous propensities of a drug so as to trigger the learned intermediary doctrine is one of fact. In Hansen the Supreme Court of Illinois instructed, "the adequacy of warnings is a question of fact, not law, for the jury to determine." 261 Ill.Dec. 744, 764 N.E.2d at 43 (quoting Proctor, 225 Ill.Dec. 126, 682 N.E.2d at 1215). See also Noyola v. Johnson & Johnson, No. 85 C 2184, 1986 WL 14657, at *2 (N.D.Ill. Dec.16, 1986) ("[U]nder Illinois law, the adequacy of warnings is ordinarily a question of fact which is inappropriate for resolution on a motion for summary judgment."); Mahr, 28 Ill.Dec. 624, 390 N.E.2d at 1230 ("[T]he sufficiency of form, content and intensity [of a manufacturer's warning to physicians] is not resolved by pointing to a single document, but remains a question to be resolved by the trier of fact in the light of all the information provided by the manufacturer and all that was reasonably possible to provide.").
In this instance the clear import of the allegations of McNichols' complaint is that the Johnson & Johnson Defendants never gave adequate warning of the known dangerous propensities of Ortho Evra to physicians so as to trigger the application of the learned intermediary doctrine in this case. See, e.g., Compl. 79 ("The [Johnson & Johnson] Defendants failed to warn consumers and their health care providers that the transdermal birth control patch Ortho Evra is more likely to cause blood clots than oral contraceptives."). In fact, the complaint alleges that the Johnson & Johnson Defendants deliberately misrepresented those propensities to physicians. See id. ¶ 54 ("[The Johnson & Johnson] Defendants communicated the purported benefits of Ortho Evra while failing to disclose the serious and dangerous side effects related to the use of Ortho Evra with the intent that . . . healthcare providers rely upon the omissions and misrepresentations and . . . prescribe Ortho Evra[.]").
In the Court's view, the question of the applicability of the learned intermediary doctrine in this case is one of fact. Therefore, the question must be resolved in favor of McNichols and remand to state court. See Poulos, 959 F.2d at 73. See also Griggs v. State Farm Lloyds, 181 F.3d 694, 700 (5th Cir.1999) ("[W]e have frequently cautioned the district courts against pretrying a case to determine removal jurisdiction."); Darras v. Trans World Airlines, Inc., 617 F.Supp. 1068, 1069 (N.D.Ill.1985) (observing that a court *742 "need not try (or even pretry) [a] case" to resolve allegations of fraudulent joinder).[2]
2. Count X of the Complaint (Breach of Warranty)
Count X of McNichols' complaint asserts claims for breach of express warranties and the implied warranty of merchantability. See 810 ILCS 5/2-313; 810 ILCS 5/2-314. In addition to the reasons the Court already has given for refusing to find fraudulent joinder based on the learned intermediary doctrine in this case, certain other considerations militate against applying the doctrine in the context of a warranty claim.
First, the Court is not aware of any published decision of an Illinois state court that has extended the learned intermediary doctrine beyond the scope of strict products liability and negligence claims to warranty claims. As discussed, in evaluating fraudulent joinder the Court is required to construe issues of state law in the light most favorable to McNichols. See Poulos, 959 F.2d at 73. See also Poison v. Cottrell, Inc., No. 04-CV-822-DRH, 2005 WL 1168365, at *1 (S.D.Ill. May 17, 2005) (quoting Batoff v. State Farm Ins. Co., 977 F.2d 848, 853 (3d Cir.1992)) ("[I]f `intricate analysis of state law' is needed to dismiss [a] claim, the claim may not be disregarded for purposes of diversity jurisdiction."). Cf. Dodson v. Spiliada Mar. Corp., 951 F.2d 40, 42 (5th Cir.1992) ("In evaluating fraudulent joinder claims, we must . . . resolve all . . . ambiguities in the controlling state law in favor of the nonremoving party.").
Second, the Court's research indicates that even in jurisdictions that have extended the learned intermediary doctrine to warranty claims, claims for breach of express warranty have been excluded from the scope of the doctrine, for reasons the Court finds persuasive in this case. For example, in Rite Aid Corp. v. Levy-Gray, 391 Md. 608, 894 A.2d 563 (Md. Mar. 13, 2006), the court held that the learned intermediary doctrine did not insulate a pharmacy from liability for breach of an express warranty made by the pharmacy in a patient package insert:
[W]e decline to extend the doctrine to those cases in which the pharmacy is disseminating information concerning the properties and efficacy of a prescription drug. To extend the defense to the facts of the instant case to insulate the pharmacy from the consequences of its *743 affirmative decision to distribute information and instructions contained that provide direction to the patients in a patient package insert is without legal justification. Therefore, we decline to hold as a matter of law that the "learned intermediary" doctrine precludes a pharmacy from being held liable for breach of express warranty when it provides a package insert that could provide the basis for such a warranty.
Id. 894 A.2d at 579. See also Rosci v. AcroMed Inc., 447 Pa.Super. 403, 669 A.2d 959, 969 (Pa.Super.Ct.1995) (holding that a patient's claim against a manufacturer of bone plates and screws for breach of express warranties was not barred by the learned intermediary doctrine because the basis for the claim "is unrelated to the issue of the warnings given to the prescribing physician and instead is based solely upon the express affirmation of fact made by the manufacturer.").
The Court sees no reason why pharmacists should not be bound by their own voluntary contractual undertakings. More to the point, the Court sees great mischief in allowing contracting parties to make representations, then evade them through invocation of the learned intermediary doctrine, particularly where the representations at issue are likely to affect public health. McNichols has properly asserted a claim for breach of warranty against Walgreens, and, therefore, this case will be remanded to Illinois state court for lack of federal subject matter jurisdiction.[3]
C. Costs and Expenses under 28 U.S.C. § 1447(c)
McNichols requests an award of costs and expenses pursuant to 28 U.S.C. § 1447, which provides, in pertinent part, "An order remanding [a] case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). In Martin v. Franklin Capital Corp., 546 U.S. 132, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005), the Court held that, "[a]bsent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal." Id. at 711. The Court concludes in its discretion that an award pursuant to section 1447(c) is not appropriate in this case.
CONCLUSION
For the foregoing reasons, Plaintiff Jennifer McNichols' Motion to Remand (Doc. 5) is GRANTED. Pursuant to 28 U.S.C. § 1447(c), this action is REMANDED to the Circuit Court for the Third Judicial Circuit, Madison County, Illinois, for lack of federal subject matter jurisdiction.
IT IS SO ORDERED.
NOTES
[1] The record establishes that Johnson & Johnson is a New Jersey citizen and that the sole member of Johnson & Johnson Pharmaceutical Research & Development, LLC, is Crtho-McNeil Pharmaceutical, Inc., a citizen of Delaware and New Jersey. See 28 U.S.C. § 1332(c)(1); Gracedale Sports & Entertainment, Inc. v. Ticket Inlet, No. 99 C 2781, 1999 WL 691824, at *1 (N.D.Ill. Aug.23, 1999).
[2] The Court notes that Count IV of McNichols' complaint asserts a claim for strict products liability on the alleged grounds that "[t]he Ortho Evra birth control patch supplied by the [Johnson & Johnson] Defendants and Walgreens was defective in that . . . it did not conform to representations made by all Defendants concerning the safety of the product." Compl. ¶ 29. To the Court's knowledge, strict products liability in Illinois is limited to three kinds of claims: defective design; defective manufacture; and failure to warn. See, e.g., Miller v. Rinker Boat Co., 352 Ill. App.3d 648, 287 Ill.Dec. 416, 815 N.E.2d 1219, 1230 (Ill.App.Ct.2004). It is difficult to determine whether Count IV is in the nature of a failure-to-warn claim; although the preceding count of the complaint asserts an explicit claim for failure to warn, it does so only against the Johnson & Johnson Defendants, excluding Walgreens. However, in evaluating a claim of fraudulent joinder, the Court must construe all of McNichols' factual allegations in the light most favorable to her. See Kocot v. Alliance Mach. Co., 651 F.Supp. 226, 227 (S.D.Ill.1986). Thus, the Court has assumed for purposes of the instant motion for remand that Count IV asserts a failure-to-warn claim, a reasonable construction of the complaint if the term "representations" for purposes of Count IV is taken to include partial and inadequate warnings and omissions. See Blue v. Environmental Eng'g, Inc., 215 Ill.2d 78, 293 Ill.Dec. 630, 828 N.E.2d 1128, 1140 (Ill.2005). In any event, the precise nature of Count IV does not alter the Court's analysis regarding the learned intermediary defense set out above.
[3] Naturally, the scope and enforceability of the warranties at issue is not a matter the Court can resolve in addressing the question of fraudulent joinder. See B., Inc. v. Miller Brewing Co., 663 F.2d 545, 551 n. 14 (5th Cir.1981) (identifying the issue of "was there a contract?" as one that "relate[s] to matters of substance rather than jurisdiction" and "[is] to be resolved in favor of the plaintiff" in evaluating a claim of fraudulent joinder).
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108 F.3d 1392
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.CHIUMINATTA CONCRETE CONCEPTS, INC., Edward Chiuminatta, andAlan R. Chiuminatta, Plaintiffs-Appellees,v.CARDINAL INDUSTRIES, INC. and Green Machine Corporation,Defendants-Appellants,andAllen Engineering Corporation, Defendant.
No. 96-1477.
United States Court of Appeals, Federal Circuit.
Feb. 20, 1997.
MICHEL, Circuit Judge.
ORDER
1
Cardinal Industries, Inc. moves to voluntarily dismiss its appeal on the ground that it has become moot. Cardinal states that Chiuminatta Concrete Concepts, Inc., Edward Chiuminatta, and Alan R. Chiuminatta (collectively Chiuminatta) consent. Counsel for Cardinal* files a notice stating that Green Machine Corporation has filed a voluntary bankruptcy petition under Chapter 11 of the Bankruptcy Code. The effect of the petition, however, is moot in view of the following.
2
Cardinal states that the appeal concerns the district court's order granting a preliminary injunction against Cardinal and Green Machine. On December 12, 1996, the district court entered a permanent injunction against Cardinal and Green Machine. Those parties have filed a separate notice of appeal concerning the permanent injunction. Thus, the present appeal has been rendered moot.
3
Accordingly,
IT IS ORDERED THAT:
4
(1) Cardinal's unopposed motion to dismiss is granted.
5
(2) All sides shall bear their own costs.
*
Counsel for Cardinal, who had entered an appearance on behalf of Green Machine, states that "on information and belief," he is "not presently authorized by the debtor in possession to represent Green Machine Corporation."
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0160p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner-Appellant, -
PHILIP RAY WORKMAN,
-
-
-
Nos. 06-6451; 07-5031
v.
,
>
RICKY BELL, Warden, -
Respondent-Appellee. -
N
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 94-02577—Bernice B. Donald, District Judge.
Decided and Filed: May 4, 2007
Before: SILER, COLE, and SUTTON, Circuit Judges.
_________________
OPINION
_________________
SILER, J., delivered the opinion of the court, in which SUTTON, J., joined. COLE, J. (pp.
6-7), delivered a separate dissenting opinion.
SILER, Circuit Judge. Philip Ray Workman seeks a stay of execution in connection with
his appeal from the denial of a motion under FED. R. CIV. P. 60(b), a motion contending that the
Attorney General for the State of Tennessee (“State Attorney General”) perpetrated a fraud upon the
district court during Workman’s habeas corpus proceedings. Because Workman has been given
considerable process during the 25 years since a state court jury found that he murdered Lieutenant
Ronald Oliver, because Workman cannot seriously contend that his allegations have any bearing on
a claim of actual innocence given that he testified at the state court trial that he killed Lieutenant
Oliver and that he shot and injured Officer Aubrey Stoddard during the incident, see Workman v.
Bell, 178 F.3d 759, 768 (6th Cir. 1998); State v. Workman, 667 S.W.2d 44, 46–47 (Tenn. 1984);
State v. Workman, 111 S.W.3d 10, 12 (Tenn. Ct. Crim. App. 2002), because the claims of fraud on
the court are exceedingly attenuated and vague, and because the Tennessee Court of Criminal
Appeals has rejected the premises of two of the claims, see Workman, 111 S.W.3d at 18–20,
Workman has little to no likelihood of success in showing that the district court abused its discretion
in rejecting his Rule 60(b) motion. We therefore deny his motion for a stay.
I.
Workman was convicted of killing Lieutenant Oliver for which he received a capital sentence
in 1982. Since that time, Workman was denied his final appeal on the merits by the Tennessee
Supreme Court, State v. Workman, 667 S.W.2d 44 (Tenn.), cert. denied, Workman v. Tennessee, 469
U.S. 873 (1984), and he has concluded traditional federal habeas relief, Workman v. Bell, 178 F.3d
1
Nos. 06-6451; 07-5031 Workman v. Bell Page 2
759 (6th Cir. 1998), cert. denied, 528 U.S. 913 (1999). Post-habeas, Workman’s execution has been
delayed on five occasions. He has been back through the state courts and has also had a clemency
hearing.
Workman’s contentions stem from alleged new evidence that he suggests will show
Lieutenant Oliver was killed by friendly fire from a fellow officer. He initially points to the
testimony of Lieutenant Clyde Keenan during Workman’s 2001 clemency hearing. Lieutenant
Keenan testified that he, not Terry Willis, found the bullet that killed Lieutenant Oliver at the crime
scene. According to Workman, this supports his theory that Lieutenant Oliver was killed by friendly
fire.
Workman next points to witness Harold Davis, who testified at the trial as an eyewitness
linking Workman to the shooting. During a 2001 state coram nobis hearing, Workman alleges that
Davis stated that he had not, in fact, seen the shooting as he claimed (but had observed the incident
from a different vantage point), and alleges that Davis falsely testified after receiving threats.
Workman, finally, points to a crime scene photograph showing a cup that may have contained the
police bullet that killed Lieutenant Oliver and testimony from Memphis police officers suggesting
that the shooting may have been a friendly fire incident.
II.
We consider the following factors in deciding whether to grant Workman a stay of execution:
1) whether there is a likelihood he will succeed on the merits of the appeal; 2) whether there is a
likelihood he will suffer irreparable harm absent a stay; 3) whether the stay will cause substantial
harm to others; and 4) whether the injunction would serve the public interest. See Capobianco v.
Summers, 377 F.3d 559, 561 (6th Cir. 2004); see also In re Sapp, 118 F.3d 460, 464 (6th Cir. 1997),
abrogated on other grounds by Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007). As the Supreme
Court recently has indicated, a claimant must show a “significant possibility of success on the
merits” in order to obtain a stay. Hill v. McDonough, ___ U.S. ___, 126 S. Ct. 2096, 2104 (2006).
The success-on-the-merits inquiry here relates to the district court’s rejection of Workman’s
Rule 60(b) motion, which he filed after our court rejected his habeas corpus petition. Our review
of the denial of a Rule 60(b) motion is limited: We may reverse such a decision only when the trial
court abuses its discretion. See Futernick v. Sumpter Twp., 207 F.3d 305, 313 (6th Cir. 2000). “An
abuse of discretion occurs when the district court relies on clearly erroneous findings of
fact, . . . improperly applies the law, . . . or . . . employs an erroneous legal standard.” Surles v.
Greyhound Lines, Inc., 474 F.3d 288, 296 (6th Cir. 2007) (internal quotation marks omitted).
In our view, Workman has not met his burden of showing “a significant possibility” that the
district court abused its discretion. Workman argues that the alleged perjurious testimony of Davis
and Willis and the other exculpatory evidence amount to a fraud on the court by the State Attorney
General during the habeas proceedings.1 In making this serious allegation against the Attorney
General, however, Workman offers nothing serious to show that the Attorney General sponsored this
false testimony or knew about it during the federal habeas proceeding. The alleged perjury came
to light in state proceedings and not until 2001—five years after the district court’s denial of his
federal habeas petition and three years after a panel of our court affirmed that decision. Nothing
about this time line, save sheer speculation, shows or even suggests that the State Attorney General
was aware of the alleged perjury at the time of the federal habeas proceedings. Workman offers no
1
The elements of fraud on the court include conduct: 1) on the part of an officer of the court; 2) that is directed
at the judicial machinery itself; 3) that is intentionally false, wilfully blind to the truth, or is in reckless disregard for the
truth; 4) that is a positive averment or a concealment when one is under a duty to disclose; and 5) that deceives the court.
See Demjanjuk v. Petrovsky, 10 F.3d 338, 348 (6th Cir. 1993).
Nos. 06-6451; 07-5031 Workman v. Bell Page 3
evidence showing that the State Attorney General was aware of the missing evidence cup, knew that
Davis or Willis made statements at trial that may have been incorrect, or had heard statements by
Memphis police officers that Lieutenant Oliver’s death was a possible friendly fire incident.2 Even
assuming for the sake of argument that Davis and Willis lied at the state court trial, Workman has
failed to show that the conduct in question was “on the part of an officer of the court” as required
by Demjanjuk. 10 F.3d at 348.
The district court also did not exceed its discretion in declining to impute the conduct of
other state and local officials to the State Attorney General. In Workman v. Bell, 227 F.3d 331 (6th
Cir. 2000) (en banc), our court was equally divided on whether fraud on the court turns on whether
the fraud was “perpetrated by an attorney”—namely, by a state attorney during the habeas
proceeding. Id. at 341. A district court’s acceptance of a point of law on one side of an intra-circuit
split, like a district court’s decision to answer an unresolved question of law within the circuit, does
not constitute an abuse of discretion. See Surles, 474 F.3d at 297–98.
No less importantly, Workman has not shown how the imputation question would affect the
outcome of this case. While Workman focuses most of his fraud-on-the-court allegations on the
testimony of Davis and Willis, he has not made a meaningful showing that their testimony was
indeed materially false.
The testimony of Davis at the state coram nobis proceeding consumes roughly 300 pages of
transcript. State v. Workman, 111 S.W.3d 10, 15 (Tenn. Ct. Crim. App. 2002). At times, Davis says
he did not see Workman shoot the Lieutenant Oliver; at other times, Davis says he does not
remember whether he saw Workman shoot Lieutenant Oliver. Id. According to the Tennessee
Court of Criminal Appeals, the essence of Davis’s testimony “can be best summarized” by the
following exchange:
Prosecutor: You’re not saying you lied, right?
Davis: Right.
Prosecutor: Ok. In the trial, you’re not saying-
Davis: Right.
Prosecutor: -You lied about that?
Davis: Right. I’m not saying that.
Prosecutor: You just don’t know.
Davis: I just don’t remember. I just don’t know . . . .
Id.
The Tennessee courts thus considered this evidence and concluded that it did not show that
Davis lied at the trial. The state trial court found that the testimony did not amount to a recantation
and did not show that Davis had lied during the trial. Id. at 16–17. The Tennessee Court of
Criminal Appeals, “[b]ased upon [its] review of his testimony,” found “it difficult to conclude
otherwise.” Id. at 18. If the Tennessee courts failed to find that Davis had recanted his trial
2
Nor has Workman put forth any facts suggesting that the State Attorney General should have accepted these
statements as credible.
Nos. 06-6451; 07-5031 Workman v. Bell Page 4
testimony or lied at trial, it is difficult to believe that the federal courts could conclude that Davis
prevaricated at the same trial.
The state coram nobis proceeding also undermines Workman’s claim as it relates to Terry
Willis. The Tennessee Court of Criminal Appeals expressed skepticism about Workman’s claim that
“it was the state’s theory at trial that this recovered bullet [the one found by Willis] was, in fact, the
bullet that killed the victim.” Id. at 20. The state’s opening statement at trial, the state appellate
court acknowledged, “arguably might indicate the fatal bullet would be produced at trial.” Id. But
later developments undermined the notion that this was the state’s theory of the case. During closing
argument, Workman argued that the state did not make good on its promise, as it did not prove that
the bullet introduced into evidence was the one that killed Lieutenant Oliver. Id. During rebuttal,
however, the state did not take issue with this statement, but it instead pointed to an FBI laboratory
worker’s testimony that “the bullet [introduced as Exhibit 35 and found by Willis] was perfectly
consistent . . . with going through the arm of Officer Stoddard. That’s what that slug was.” Id.
(emphasis added). Recall that the evidence at trial showed (and Workman’s own testimony
confirmed) that Workman shot Lieutenant Oliver and Officer Stoddard. Viewed in this light,
Lieutenant Keenan’s testimony during the state clemency proceeding that he found the bullet that
killed Lieutenant Oliver at the crime scene is perfectly consistent with Willis’s trial testimony that
he found a bullet at the crime scene. Compare First Amended Motion for Equitable Relief at 7
(“Willis claimed that he found Exhibit 35 in the parking lot the following morning . . . . He claimed
that he thought the bullet . . . was a ‘ball bearing.’ He claimed that he then took this used ‘ball
bearing’ inside and placed it in his toolbox.”) (internal footnotes omitted), with Clemency Tr. at 276
(“I’m talking about the round that the police found at the scene. The toolbox round I’m not exactly
sure when they found that.”) (testimony of Lieutenant Keenan).
In the face of this record, it seems quite doubtful that the trial testimony targeted by
Workman was indeed false. And, at any rate, it remains pure conjecture to say that the State
Attorney General knew anything about the allegations of falsity (much less the potentially false
allegations of falsity) until well after Workman’s federal habeas proceeding had concluded. Under
these circumstances, we have considerable sympathy for this observation by the district court in
explaining its denial of Workman’s Rule 60(b) motion:
The prospect of holding a hearing which would necessarily require the Defendant to
prove grave ethical and professional misconduct on the part of the state’s habeas
attorneys strikes the Court as particularly untoward in the absence of any colorable
allegation of such misconduct.
D. Ct. Op. at 18–19.
Workman’s reliance on our one-paragraph order granting a stay in Johnson v. Bell, No. 05-
6925 (Oct. 19, 2006), does not alter this conclusion. That this court has granted a stay in one capital
case involving a Rule 60(b) fraud-on-the-court motion of course does not mean that we must grant
a stay in every capital case involving such a Rule 60(b) motion. And that is particularly so here
since Johnson had not received the same degree of state and federal judicial consideration that
Workman has received over the last 25 years.
On this record, Workman has not met his burden of showing a likelihood of success in
demonstrating that the district court abused its discretion. Nearly twenty-five years after Workman’s
capital sentence and five stays of execution later, both the state and the public have an interest in
finality which, if not deserving of respect yet, may never receive respect. See Calderon v.
Thompson, 523 U.S. 538, 556 (1998) (“A State’s interests in finality are compelling when a federal
court of appeals issues a mandate denying federal habeas relief.”). Although Workman will
Nos. 06-6451; 07-5031 Workman v. Bell Page 5
undeniably suffer irreparable harm if executed, the other factors weigh heavily in favor of denying
the stay.3
For these reasons, we deny the motion for a stay of execution.
3
To the extent Workman means to suggest that the district court’s grant of a certificate of appealability means
that we should grant a stay, he is wrong on two fronts. The two standards, to begin with, are quite different: The one
requires showing a likelihood of success on the merits, while the other requires showing that reasonable jurists could
debate the matter. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“Under the controlling standard, a petitioner
must sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.”)
(citation and internal quotation marks omitted). A district court’s certificate of appealability decision, moreover, by no
means controls a court of appeals’ merits determination.
Nos. 06-6451; 07-5031 Workman v. Bell Page 6
__________________
DISSENT
__________________
R. GUY COLE, JR., Circuit Judge, dissenting. I would grant Workman’s stay of execution
and therefore I respectfully dissent.
The majority denies Workman’s motion for a stay on the grounds that his allegations of fraud
are not meritorious. The majority concludes that Workman has not established that fraud was
committed “by an officer of the court” because Workman has not presented sufficient evidence
showing that the Tennessee Attorney General knew about the alleged witness perjury, the missing
evidence, or the statements by Memphis police describing Oliver’s death as the possible result of
friendly fire.
Further, the majority takes it upon itself to review the record in the state-court proceedings
and based on that record, concludes that Workman has failed to make “a meaningful showing that
[Davis’s and Willis’s testimony] was indeed materially false.” The State does not argue before this
Court, nor did it argue before the district court, that Workman’s showing as to the falsity of Davis’s
and Willis’s testimony is lacking. In addition, the district court did not rely on this as a basis for
denying Workman’s motion for relief from judgment. Indeed, the district court appears to have
come to the opposite conclusion in light of its statement that “Petitioner’s fraud claims are replete
with allegations, in part corroborated by the sworn testimony of Davis—a witness with relevant and
personal knowledge—concerning the manufacturing of evidence, solicitation of perjury, and
intimidation of witnesses by police officers investigating the shooting of Lt. Oliver.” (Dist. Ct.’s
Order On Workman’s First Amended Motion For Equitable Relief at 17) (emphasis added). That
the majority chooses to rely on a conclusion not pressed by the State or adopted by the district court
strikes me as curious.
In any event, contrary to the majority’s reasoning, the ultimate merit of Workman’s claims
has nothing to do with whether a stay of execution is warranted. See Alley v. Bell, 405 F.3d 371, 373
(6th Cir. 2005) (en banc) (Cole, J. concurring) (“Perhaps Alley’s allegations of fraud are true, and
perhaps they are not—obviously it will be up to the district court to consider the Rule 60(b) motion
and determine if fraud actually occurred.”). Workman’s entitlement to a stay instead turns on
whether he has shown a likelihood of success in arguing that he is entitled to an evidentiary hearing
to prove his fraud claims. This in turn depends on whether the allegedly fraudulent conduct of State
officials during Workman’s trial can be imputed to the State’s federal habeas counsel. I believe that
Workman has made the necessary showing that he is likely to succeed on this inquiry.
The district court properly recognized that the central question here of whether fraud
committed by State officials during Workman’s trial can be imputed to the State’s habeas counsel
“continues to be ‘open and controversial’ in this Circuit.” (Dist. Ct.’s Order Granting In Part And
Denying In Part Petitioner’s Application For Certificate Of Appealability at 8) (quoting Buell v.
Anderson, 48 F. App’x. 491, 499 (6th Cir. 2002)). Because of this lack of clarity, the district court
stated that it was “forced to analyze Petitioner’s fraud-upon-the-court claim subject to a persisting
ambiguity in circuit precedent governing whether and to what extent the alleged trial court fraud or
misconduct of state officials can be imputed to the state’s habeas attorneys when fraud upon the
federal habeas court is alleged.” (Dist. Ct.’s Order On Workman’s First Amended Motion For
Equitable Relief at 15-16).
The district court drew on Buell, where Chief Judge Boggs characterized our evenly divided
en banc opinions in Workman v. Bell, 227 F.3d 331 (6th Cir. 2000), as setting forth a “broader” and
a “more stringent” standard of what a habeas petitioner must show to be entitled to an evidentiary
Nos. 06-6451; 07-5031 Workman v. Bell Page 7
hearing on a Rule 60(b) motion alleging that the habeas court’s judgment was procured through
fraud. Under the “broader” view, allegations of misconduct by the State’s trial counsel are sufficient
to entitle a habeas petitioner to an evidentiary hearing on whether the State’s federal habeas counsel
was aware of the fraud. Under the “more stringent” view, allegations of fraud against State officials
during state-court proceedings cannot be attributed to the State’s federal habeas counsel. Although
the district court here adopted the “more stringent” view, it nonetheless acknowledged that “[u]nder
the ‘broader’ standard . . . Petitioner has perhaps stated a claim of fraud upon the court deserving
of further inquiry.” (Dist. Ct.’s Order On Workman’s First Amended Motion For Equitable Relief
at 16).
I would therefore grant Workman’s motion for a stay due to the prevailing uncertainty about
the applicable standard for determining whether his allegations entitle him to an evidentiary hearing.
But a further consideration remains.
A panel of this Court, comprised of Chief Judge Boggs and Judges Norris and Clay recently
granted a stay of execution in Johnson v. Bell, No. 05-6925, under, as the district court put it,
“similar circumstances.” (Dist. Ct.’s Order Denying Motion For Stay Of Execution at 6, fn. 1).
Johnson stood in the same procedural posture as this case at the time the stay there was granted.
After federal review of Johnson’s habeas petition had run its course, Johnson filed a Rule 60(b)
motion in the district court on the grounds that the district court’s denial of his habeas petition was
procured by fraud. The district court denied both Johnson’s Rule 60(b) motion and his motion for
a stay. Moreover, Johnson’s allegations of fraud are similar to Workman’s in that Johnson alleged
that the State’s habeas counsel filed false documents in the district court and allowed a witness to
testify falsely at trial. As here, the district court in Johnson (the same district court that has presided
over Workman’s case), noted that the resolution of “whether the ‘broader’ or ‘more stringent’
standard [for reviewing claims of fraud by State officials] applies could be determinative of whether
Petitioner is entitled to an evidentiary hearing on his fraud-upon-the-court claim.” Johnson v. Bell,
No. 97-3052, Order Denying Motion For Stay Pending Appeal, dated Oct. 17, 2006, at 5. The only
conceivable difference between Johnson and Workman then is that Johnson’s execution has been
stayed, but unless the en banc Court or the U.S. Supreme Court intervenes, Workman’s will not be.
The situation is even more troubling when one considers that the Johnson panel could very
well resolve the ambiguity surrounding what legal standard applies to Johnson’s and Workman’s
claims of fraud and hold that Johnson is entitled to an evidentiary hearing on that basis. If that
occurs, a manifest miscarriage of justice will ensue: Johnson will get his hearing, a hearing that
Workman too would get, but for the fact that he will already have been executed. I simply cannot
conclude that this inconsistency in the administration of the death penalty is permissible, especially
where it can so easily be eliminated.
For these reasons, I believe that Workman is entitled to a stay of execution, and I therefore
respectfully dissent.
| {
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
SHEILA ALFORD, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-2121 (RMC)
)
PROVIDENCE HOSPITAL, )
)
Defendant. )
_________________________________ )
OPINION
Sheila Alford was discharged by Providence Hospital after multiple on-the-job
injuries because she had exhausted all leave and was unable to get to work. She sues here for
alleged violations of the federal and District of Columbia family and medical leave statutes, as
well as intentional and negligent misrepresentation. The parties have filed cross motions for
summary judgment. Because Ms. Alford mischaracterizes additional personal leave granted by
the Hospital as required by federal or D.C. law, and because there is no evidence to support her
misrepresentation claims, summary judgment will be granted in favor of Providence Hospital.
I. FACTS
Sheila Alford worked for Providence Hospital as a secretary or front desk
operator since July 1983 and has been a paraplegic requiring a wheelchair since 1991. Her job
did not require her to perform heavy lifting. Ms. Alford experienced a workplace injury to her
hand that required her to be away from work for a lengthy period, with job protection under the
federal Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and its local
counterpart, the District of Columbia Family and Medical Leave Act (DCFMLA), D.C. Code.
§ 32-501 et seq. On March 31, 2010, an independent medical examiner declared the hand injury
to be healed, and the Hospital then required Ms. Alford to report back to work. Ms. Alford
alleges that, despite the fact that her hand had not fully healed, she returned to work. Soon
thereafter, on April 2, 2010, Ms. Alford was injured as she arrived at work. She fell while
transferring from her car to her chair in the Hospital parking lot, injuring her left shoulder, head,
and neck. Am. Compl. [Dkt. 20] ¶ 11. She then took additional FMLA/DCFMLA leave.
Ms. Alford exhausted all federal FMLA and DCFMLA leave as of April 14,
2010. 1 Due to her injuries, however, she was not able to come back to work at that time. The
Hospital’s Human Resources Department (HR) notified her direct supervisor, Bonnie Lancaster,
that Ms. Alford (1) could be terminated if there were an operational need to fill her position, or
(2) could be granted an additional 60 days of personal leave. Def.’s MSJ [Dkt. 21-15], Ex. E
(Apr. 29, 2010 Email) [Dkt. 21-6]. Ms. Lancaster chose the latter, and the Hospital granted Ms.
Alford 60 days of personal leave without pay. See id.; Def.’s SOF [Dkt. 21-1] ¶ 5; Pl.’s Facts in
Dispute at 2 (admitting that there are no genuine issues regarding Defendant’s SOF ¶ 5). Ms.
Alford took personal leave from April 14 to May 7 2 and then returned to work, before she had
1
Hospital records demonstrate that Ms. Alford’s FMLA and DCFMLA leave expired as of April
14, 2010. See Def.’s Statement of Facts [Dkt. 21-1] (Def.’s SOF) ¶¶ 3-4; Def.’s Mot. for Summ.
J. [Dkt. 21-15] (Def.’s MSJ), Ex. A (Parker Aff.) [Dkt. 21-1]; id., Ex. M (Jan. 25, 2011 letter
from HR) [Dkt. 21-14]. Ms. Alford has been confused at times regarding the exhaustion date.
See Def.’s MSJ, Ex. C (Pl.’s Answer to Interrog.) [Dkt. 21-4] at 6 (stating that her FMLA leave
was exhausted on April 10, 2010 and that her DCFMLA leave was exhausted four weeks later);
Pl.’s Opp’n [Dkt. 27] at 2 (referencing March 2010 as the exhaustion date). In her response to
the Hospital’s statement of undisputed facts, however, she agrees that she exhausted all FMLA
and DCFMLA leave as of April 14, 2010. See Pl.’s Statement of Facts in Dispute [Dkt. 27-1]
(Pl.’s Facts in Dispute) at 2 (admitting that there are no genuine issues regarding Defendant’s
SOF ¶¶ 3-4, asserting the April 14 exhaustion date).
2
See Def.’s Opp’n [Dkt. 25], Ex. O (Hospital’s Answer to Interrog.) [Dkt. 25-3] at 2-3 (setting
forth Ms. Alford’s 2010-2011 leave record).
2
exhausted the 60 additional days of personal leave. Am. Compl. ¶ 13. Ms. Alford worked for
the Hospital until December 3, 2010. 3 Id.
On December 3, 2010, Ms. Alford reported to the Hospital’s Occupational Health
Department (OHD) crying and complaining that she had shoulder pain and decreased range of
motion. See Def.’s MSJ, Ex. G (OHD Medical Records) [Dkt. 21-8] at 2 (patient reported pain
level of 9 on a 10 point scale). OHD sent her to the Hospital’s Emergency Department for
treatment and directed her to return to OHD on December 7, 2010 for clearance to return to
work. Id. On the morning of December 7, before coming to the Hospital, Ms. Alford saw Dr.
Wilson.4 She complained of pain and upon examination, Dr. Wilson determined that she
suffered from trapezius tenderness, limited range of motion in her shoulder, and an acute cervical
[neck] sprain. Id., Ex. H (Medical Records of Dr. Wilson) [Dkt. 21-9] at 2. Ms. Alford
requested time off from work, until December 14; accordingly, Dr. Wilson signed a disability
certificate excusing her from work through that date. Id. at 2, 4. He instructed her not to lift
anything weighing more than 10 pounds. Id. at 4. Ms. Alford presented the disability certificate
to OHD on December 7. Id., Ex. F (Abbott Dep.) [Dkt. 21-7] at 105. At that time, Ms. Alford
expressed “concern” about her ability to lift her 48-pound wheelchair to get it in and out of her
car. OHD Medical Records at 4. The Hospital released her from work and instructed her to
3
Upon her return to work in May 2010, Ms. Alford continued to see an orthopedist, Robert
Wilson, M.D. Am. Compl. ¶ 14. She saw Dr. Wilson five times between May 5 and October 27,
2010.
4
Ms. Alford had two outstanding workers’ compensation claims––one for injury to her hand and
the other for injury to her shoulder and upper body. The record does not distinguish doctor
visits/reports related to those injuries and those related to her difficulty getting herself to work
due to an inability to lift her wheelchair in and out of her car. Because Ms. Alford does not
contest her difficulties with her wheelchair, but argues that medically-imposed weight
restrictions did not impact her performance on the job, the Court does not parse out which
doctors Ms. Alford saw at the request of the Hospital’s workers’ compensation administrator,
which doctors she saw on her own, and which doctors she saw at the Hospital’s direction.
3
report back to OHD on December 14 for follow-up and work clearance. Abbott Dep. at 57;
OHD Medical Records at 5. When she left the Hospital on December 7, a security officer was
directed to help her get her wheelchair into her car, since it was too heavy for her to lift, and it
was noted that her husband would help her get out when she got home. Id. at 4.
On December 14, 2010, Ms. Alford told OHD that her shoulder pain had not
improved and she could not transport herself to work. Abbott Dep. at 66, 76, 78; OHD Medical
Records at 6. Because she could not transport herself, OHD arranged transportation for Ms.
Alford to see Dr. Wilson on December 15, 2010. OHD Medical Records at 6. At the December
15 appointment, Ms. Alford reported to Dr. Wilson that she still had shoulder trouble and was
having difficulties getting to work. Medical Records of Dr. Wilson at 5. Dr. Wilson cleared Ms.
Alford to return to work with a 20-pound lifting restriction, id., still less than the weight of her
wheelchair. Id. In her deposition, Ms. Alford admitted that the 20 pound lifting restriction
prohibited her from lifting her wheelchair, which weighs more than 40 pounds. Pl.’s Opp’n
[Dkt. 27], Ex. 3 (Alford Dep.) [Dkt. 27-4] at 27. Despite being cleared by Dr. Wilson to return
to work, Ms. Alford did not do so.
On December 17, 2010, Sedgwick Claims, a third party administrator that
processes workers’ compensation claims filed by Hospital employees, sent Ms. Alford a letter
directing her to undergo an independent medical examination (IME). Def.’s Opp’n [Dkt. 25],
Ex. P (Dec. 17, 2010 Letter to Ms. Alford) [Dkt. 25-4]; Am. Compl. ¶¶ 18, 20. 5 Dr. John
O’Connell conducted the IME on January 3, 2011. Dr. O’Connell concluded that although Ms.
Alford could drive, she could not lift more than 10 pounds. Def.’s Opp’n, Ex. R (IME Report)
5
OHD asked the workers’ compensation administrator if workers’ compensation would provide
transportation to Ms. Alford to enable her to get to and from work, but the administrator
declined. Def.’s MSJ, Ex. I (12/22/2010 Email from Ms. Abbott) [Dkt. 21-10] at 1.
4
[Dkt. 25-6] at 6. He also reported that she could not lift her wheelchair in and out of her car, but
that with four to six weeks of physical therapy she should be able to do so. Id. at 7.
Seeing little progress in Ms. Alford’s ability to get herself to work, personnel
from HR and OHD met on January 6, 2011, to discuss Ms. Alford’s employment status. OHD
advised that Ms. Alford could not transport herself to work, and the Hospital determined that
there was an operational need to fill Ms. Alford’s position. Because she had exhausted all
FMLA and DCFMLA leave in April 2010 and she had been unable to work since December 3,
2010, the Hospital terminated Ms. Alford. Am. Compl. ¶¶ 33, 34. By letter dated January 25,
2011, the Hospital notified her of her termination, effective as of January 7, 2011. Id. ¶ 32;
Def.’s MSJ, Ex. M (Jan. 25, 2011 Letter from HR to Ms. Alford) [Dkt. 21-14].
Arising from these circumstances, Ms. Alford brought suit against the Hospital.
She characterizes the additional 60 leave days that the Hospital had granted to her in the spring
of 2010 as additional statutory FMLA/DCFMLA leave, and contends that because she did not
exhaust this leave she was protected from termination by the FMLA and the DCFMLA. She also
baldly alleges, despite evidence to the contrary, that her condition did not prevent her from going
to work. She claims that she stayed out of work because LaToya Abbott of OHD told her to
remain home until she was cleared to return by an independent medical exam. She filed an
Amended Complaint consisting of five Counts:
Count I – violation of the FMLA;
Count II – violation of the DCFMLA;
Count III – retaliation under the FMLA and the DCFMLA;
Count IV – Intentional Misrepresentation; and
Count V – Negligent Misrepresentation.
5
Ms. Alford seeks monetary damages, damages for pain and suffering, punitive damages, and
attorney fees. 6 The parties have filed cross motions for summary judgment.
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall
be granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). On summary judgment, the burden on a moving
party who does not bear the ultimate burden of proof in the case may be satisfied by making an
initial showing that there is an absence of evidence to support the nonmoving party’s case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This burden “may be discharged by
‘showing’––that is, pointing out to the district court––that there is an absence of evidence to
support the nonmoving party’s case.” Id.
The burden then shifts to the nonmovant to demonstrate the existence of a
genuine issue of material fact. The nonmovant may not rest on mere allegations or denials, but
must instead by affidavit or otherwise, present specific facts showing that there is a genuine issue
for trial. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324; see also Greene v. Dalton, 164
F.3d 671, 675 (D.C. Cir. 1999) (nonmovant must present specific facts that would enable a
reasonable jury to find in its favor).
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor. Anderson, 477 U.S. at 255. A nonmoving party,
6
Recovery under FMLA is limited to actual monetary losses. Walker v. United Parcel Serv.,
Inc., 240 F.3d 1268, 1277 (10th Cir. 2001); see 29 U.S.C. § 2617(a)(1)(A)(i). Other kinds of
damages––such as punitive damages and damages for emotional distress––are not recoverable.
Settle v. S.W. Rodgers Co., Inc., 998 F. Supp. 657, 666 (E.D. Va. 1998), aff’d, 182 F.3d 909 (4th
Cir. 1999). Recovery under the DCFMLA is similarly limited to monetary loss. See D.C. Code
§ 32-509.
6
however, must establish more than “the mere existence of a scintilla of evidence” in support of
its position. Id. at 252. In addition, if the evidence “is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations
omitted). Summary judgment is properly granted against a party who “after adequate time for
discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an
element essential to that party=s case, and on which that party will bear the burden of proof at
trial.” Celotex, 477 U.S. at 322.
III. ANALYSIS
A. FMLA and DCFMLA
Under certain circumstances, the FMLA and its DC counterpart, the DCFMLA,
grant an employee the right to take temporary medical leave from employment, with protection
from the threat of, or actual, termination from her job. The FMLA provides that “an eligible
employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . .
[b]ecause of a serious health condition that makes the employee unable to perform the functions
of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). The DCFMLA provides that
“any employee who becomes unable to perform the functions of the employee's position because
of a serious health condition shall be entitled to medical leave for as long as the employee is
unable to perform the functions, except that the medical leave shall not exceed 16 workweeks
during any 24-month period.” D.C. Code § 32-503.
Under the FMLA, a plaintiff may state: (1) an interference claim under
§ 2615(a)(1), alleging that her employer has restrained, denied, or interfered with her substantive
rights under the Act, and/or (2) a retaliation claim under § 2615(a)(2), alleging that her employer
has taken adverse action against her because she took leave or engaged in activity protected by
7
the Act, such as by filing a complaint. Roseboro v. Billington, 606 F. Supp. 2d 104, 107-08
(D.D.C. 2009); see Strickland v. Waterworks & Sewer Bd. of the City of Birmingham, 239 F.3d
1199, 1206 n.9 (11th Cir. 2001) (while the FMLA does not clearly label claims as alleging
“interference” or “retaliation,” those are the labels courts have used to describe violations of the
Act). Claims under the DCFMLA similarly include claims for interference and claims for
retaliation. D.C. Code § 32-507(a) (interference); id. § 32-507(b)(1) (retaliation).
Ms. Alford alleges interference claims, i.e., that when she was terminated, she
was denied the rights and protections of the FMLA and the DCFMLA. See Am. Compl., Counts
I and II. She also alleges retaliation claims, i.e., that the Hospital terminated her in retaliation for
having exercised her rights under the FMLA and the DCFMLA. Id., Count III.
1. Interference
Ms. Alford alleges that the Hospital did not permit her to return to work in
January 2010 in violation of the FMLA and the DCFMLA. As described above, the FMLA
provides an employee with 12 weeks of unpaid leave in a 12-month period due to a serious
health condition that renders the employee unable to perform her job, 29 U.S.C. § 2612(a)(1)(D),
and the DCFMLA provides 16 weeks of leave in a 24-month period under similar circumstances.
D.C. Code § 32-503(a). Once these periods are exhausted, an employer is not required to hold
the employee’s job for her eventual return. In other words, the Acts do not provide a guarantee
that employment will continue if the unpaid leave expires and the employee is still unable to
return to work. “[A]n employee who exceeds the permitted FMLA leave time has no right to be
restored to his or her job.” Austin v. Fuel Sys., LLC, 379 F. Supp. 2d 884, 889 (W.D. Mich.
2004); see 29 C.F.R. § 825.216(c) (an employee who is unable to perform an essential function
of his job due to a physical or mental condition has no right to job restoration under the FMLA).
8
The FMLA and the DCFMLA permit termination when an employee remains absent from work
after her qualified leave expires. Roseboro, 606 F. Supp. 2d at 111; see Etheridge v. FedChoice
Fed. Credit Union, 789 F. Supp. 2d 27, 39-40 (D.D.C. 2011) (after plaintiff received her full 16
weeks off and she was unable to return to work, her termination did not violate the DCFMLA). 7
Ms. Alford exhausted both her FMLA and her DCFMLA leave by April 14,
2010. See Def.’s SOF ¶¶ 3-4; Pl.’s Facts in Dispute at 2 (admitting that there are no genuine
issues regarding Def.’s SOF ¶¶ 3-4). Thus, Ms. Alford remained an employee entitled to job
restoration under FMLA/DCFMLA until April 14, 2010. At that point, the Hospital could
lawfully require her to return to work or lose her position.
Instead of imposing such a requirement, the Hospital granted Ms. Alford an
additional 60 days of leave. Ms. Alford did not use all 60 days before she returned to work in
early May 2010. She now argues that the Hospital had an obligation to allow her to use the
remainder of such leave in December 2010, when shoulder pain forced her out of work again. 8
She posits that the additional 60 days of leave was an extension of her FMLA and DCFMLA
statutory leave and that her discharge in January 2011 resulted from her exercise of statutory
rights in taking protected leave.
Ms. Alford overlooks the fact that she did, in fact, receive all statutory leave to
which she was entitled under federal and local law and her job was protected throughout. She
exhausted the last of such leave on April 14, 2010. Her discharge in January 2011 cannot
7
Courts interpret the FMLA and the DCFMLA similarly. Cobbs v. Bluemercury, Inc., 746 F.
Supp. 2d 137, 142 (D.D.C. 2010). Accordingly, this Court applies the case law arising from
suits involving the FMLA to Ms. Alford’s claims under the DCFMLA.
8
The Hospital notes that, if it applied, the remainder of the 60 days of extended personal leave
would have been exhausted as of January 7, 2011, the last date of Ms. Alford’s employment.
Hospital’s Answer to Interrog. at 2-3.
9
constitute interference with her FMLA or DCFMLA rights because all such rights were
recognized and exhausted more than nine months earlier.
In opposition to summary judgment and in support of her own dispositive motion,
Ms. Alford labels the additional 60 days of leave as “constructive,” “extended,” or “additional”
FMLA/DCFMLA leave. Pl.’s Opp’n at 2; Pl.’s Mot. for Summ. J. (Pl.’s MSJ) [Dkt. 22] at 10.
This characterization of the 60-day leave period overlooks an elementary concept: statutes are
adopted by federal and local legislatures and cannot be amended by private companies or
citizens. The Hospital had no power or authority to extend Ms. Alford’s statutory medical leave
because the Hospital is neither the U.S. Congress nor the D.C. City Council. Rather, the
Hospital granted Ms. Alford an additional 60 days of personal leave, which no law required it to
do. It may be that Ms. Alford’s years of service to the Hospital, since 1983, prompted this
extension. The rationale for granting additional leave is not revealed in the record. That
rationale is not relevant, however, to whether the additional 60 days constituted statutory or
personal leave. Since it was clearly the latter, Ms. Alford’s claims of interference with FMLA
and DCFMLA rights have no merit.
Ms. Alford further argues that the Hospital should not be allowed to terminate her
in January 2011 based on the exhaustion of her FMLA/DCFMLA leave nine months prior
because the exhaustion of leave was too distant in time. See Pl.’s Opp’n at 12 (arguing that
Defendant should not be allowed to “reach back” so far in time for a reason for termination); id.
at 16 (arguing that the Court should impose a temporal proximity requirement and Ms. Alford’s
exhaustion of protected leave time was too distant in time from her termination). Ms. Alford’s
argument is based on a false premise––that the Hospital terminated her for using her FMLA and
DCFMLA leave. In fact, the Hospital’s reason for termination on January 7, 2011 was that Ms.
10
Alford was unable to come to work at that time and for the foreseeable future. Because she had
exhausted her FMLA/DCFMLA leave the prior spring, those statutes no longer protected her job.
Ms. Alford also contends that the modified duty restrictions of 10 and 20 pounds
imposed by Drs. Wilson and O’Donnell should not have been factored into the Hospital’s
reasoning for terminating her since neither restriction impacted her ability to perform her job, a
desk job that required no lifting. The Hospital does not contend that the weight restrictions
impeded Ms. Alford’s ability to do her job, once she arrived at work. Those restrictions,
however, were directly germane to the question of whether she could get herself to work.
Attendance is a basic necessity for all jobs. On and after December 3, 2010, Ms. Alford
repeatedly made it clear to OHD and to her doctors that she had shoulder pain; that she could not
lift her wheelchair in and out of her car; and that she could not transport herself to work. See
OHD Medical Records at 4, 6 (Ms. Alford was concerned with lifting her 48-pound wheelchair
overhead to get it in and out of her car; OHD directed a security guard to help her into her car;
OHD arranged transportation to Dr. Wilson’s office); Medical Records of Dr. Wilson at 5 (Ms.
Alford reported that she was having difficulties getting to work). Drs. Wilson and O’Donnell
limited her to lifting 10 or 20 pounds, significantly less than the weight of her wheelchair. See
Medical Records of Dr. Wilson at 4-5; IME Report at 6. A priori, she could not single-handedly
get herself into her car, to the Hospital, out of her car, to her desk to work, and back home again.
The Hospital was legally permitted to discharge Ms. Alford after she had expended her allotted
FMLA and DCFMLA leave and she remained unable to get herself to work.
Ms. Alford attempts to revise history by alleging that despite her acute cervical
sprain and shoulder pain she was ready, willing, and able to return to work at any time after
December 3, 2010, that the Hospital put her on “involuntary” leave starting on that day, and she
11
stayed out of work in compliance with Ms. Abbott’s directive that she should do so. See Pl.’s
Opp’n at 2, 14; id. at 10 (alleging that the Hospital terminated Ms. Alford despite her “desire and
ability to return to work”); Alford Dep. at 27 (explaining that her husband could assist her or she
could use Metro Access (public transportation which accommodates persons in wheelchairs), and
stating that “[t]here was no issue about getting to work or anything like that”). In ruling on the
Hospital’s motion for summary judgment, the Court recognizes that it must draw all justifiable
inferences in Ms. Alford’s favor and accept her evidence as true. See Anderson, 477 U.S. at 255.
Even so, the Court is not required to accept as true Ms. Alford’s bald, conclusory allegations. In
response to the Hospital’s motion, Ms. Alford may not rest on mere allegations or denials, but
must instead present specific facts showing that there is a genuine issue for trial. See Celotex,
477 U.S. at 324; Greene, 164 F.3d at 675. Further, “[w]hen opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); see Reetz v. Jackson, 176
F.R.D. 412, 414-15 (D.D.C. 1997) (a plaintiff cannot create a genuine issue of material fact by
contradicting her own deposition testimony).
Ms. Alford has not presented any evidence that corroborates her own self-serving
testimony that she was ready, willing, and able to get to the Hospital to work; in fact, her
allegations and deposition testimony are directly contradicted by both the record and her own
prior statements. The evidence demonstrates that Ms. Alford was not able to return to work from
December 3, 2010 to the date she was terminated, January 7, 2010, due to her inability to
transport herself. Ms. Alford’s own admissions reveal that she suffered from severe shoulder
pain on December 3, 2010. OHD Medical Records at 2 (patient reported pain level of 9 on a
12
scale of 1-10). On December 7, 2010, she asked for more time off, see Medical Records of Dr.
Wilson at 2, and reported “concern” with lifting her 48-pound wheelchair overhead to get it in
and out of her car. See OHD Medical Records at 4. On December 15, 2010, she reported to Dr.
Wilson that she was having difficulties getting to work. Medical Records of Dr. Wilson at 5. In
December 2010 and January 2011, Drs. Wilson and O’Donnell limited her to lifting 20 pounds
or less, which meant she could not lift her wheelchair. See Medical Records of Dr. Wilson at 4-
5; IME Report at 6.
Ms. Alford’s attempt to create an issue of material fact that would preclude
summary judgment in favor of the Hospital fails. The Hospital’s motion for summary judgment
will be granted, and Ms. Alford’s cross motion will be denied. Judgment will be entered in
favor of the Hospital on Counts I and II.
2. Retaliation
Ms. Alford alleges in Count III of the Amended Complaint that the Hospital
terminated her employment in retaliation for her having taken FMLA/DCFMLA leave in the
spring of 2010. The McDonnell Douglas 9 framework applies to retaliation claims. See Gaujacq
v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010). Under that burden-shifting framework, an
employee may establish a prima facie case creating a presumption of retaliation by showing that
(1) she exercised rights afforded by the [FMLA or DCFMLA]; (2) she suffered an adverse
employment action; and (3) there was a causal connection between the exercise of her rights and
the adverse employment action. See Roseboro, 606 F. Supp. 2d at 109. Once the plaintiff
establishes a prima facie case, the burden shifts to the defendant to proffer a legitimate basis for
9
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
13
the adverse action; then the burden shifts back to the plaintiff to show that the proffered reason is
pretextual. Id.; Dorsey v. Jacobson Holman, PLLC, 756 F. Supp. 2d 30, 37 (D.D.C. 2010).
Ms. Alford has not established a prima facie case of retaliation. When a plaintiff
relies on temporal proximity to establish causation, events must have occurred close in time. See
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (under Title VII, 42 U.S.C. § 2000e et
seq., three months is too long to show proximity demonstrating causation); Gustave-Schmidt v.
Chao, 360 F. Supp. 2d 105, 118-19 (D.D.C. 2004) (three months is the “outer limit” of temporal
requirement under Title VII). Here, Ms. Alford exhausted her FMLA and DCFMLA leave on
April 14, 2010. The Hospital terminated her nine months later, in January 2011. Due to the
nine-month passage of time, Ms. Alford has not shown a causal connection between the exercise
of her FMLA and DCFMLA rights and her termination.
Even if Ms. Alford had a prima facie case, her claim for retaliation still would fail
as the Hospital proffers a legitimate reason for termination––because she could not lift her
wheelchair, Ms. Alford could not transport herself and could not come to work. Ms. Alford
presents no evidence that the reason was pretextual. In sum, because she could not get to work,
Ms. Alford stopped going to work on December 3, 2010. The Hospital had a legitimate, non-
discriminatory reason for terminating Ms. Alford––she was unable to come to work.
Accordingly, the Hospital’s motion for summary judgment will be granted, and Ms. Alford’s
motion will be denied. Judgment will be entered in favor of the Hospital on Count III, retaliation
under the FMLA and DCFMLA.
B. Fraudulent Misrepresentation
Count IV of the Amended Complaint alleges fraudulent misrepresentation. Ms.
Alford alleges that LaToya Abbott directed her to stay out of work until she underwent
14
independent medical examinations and was cleared to return to work. Ms. Alford asserts that she
complied with this directive, but the Hospital terminated her for failing to come to work. Ms.
Abbott denies that she told Ms. Alford to remain at home or that she directed Ms. Alford to
submit to an independent medical examination as a condition precedent to return to work.
Abbott Dep. at 78, 80. The nature and extent of any such conversation is not material to the
disposition of the cross motions for summary judgment.
In order to establish fraudulent misrepresentation under D.C. law, a plaintiff must
prove by clear and convincing evidence that (1) there was a false representation; (2) made about
a material fact; (3) with knowledge of its falsity or with reckless indifference to knowledge of its
falsity; (4) with intent to deceive; and (5) plaintiff acted in reliance on the misrepresentation. In
re Estate of McKenney, 953 A.2d 336, 342 (D.C. 2008).
Ms. Alford has not provided evidence that she acted in reliance on this alleged
misrepresentation. On summary judgment, she may not rely solely on conclusory and self-
serving allegations, but must present specific facts that would enable a reasonable jury to find in
her favor. Greene, 164 F.3d at 675. Her allegation that she remained away from work in
reliance on Ms. Abbott’s directive is clearly contradicted by the record. See Scott, 550 U.S. at
380 (on summary judgment, a court should not rely on allegations blatantly contradicted by the
record). As detailed above, the record reveals that Ms. Alford was in pain and could not
transport herself to work; that she requested time off; and that her doctors restricted her lifting to
10-20 pounds, much less than the weight of her wheelchair. Ms. Alford remained away from
work because she was unable to transport herself there.
In her response to the Hospital’s motion for summary judgment, Ms. Alford
advances a series of allegedly disputed and material facts. Her disputes, however, are distinctly
15
marginal. Moreover, she does not actually contest any of the material facts bearing on Ms.
Abbott’s understanding of Ms. Alford’s inability to get to work.
Ms. Alford contends that she was cleared to return to work by the Emergency
Department on Monday, December 6, 2010, but Ms. Abbott told her to return to work on the
next day, after her appointment with Dr. Wilson. Pl.’s Notice [Dkt. 23], Pl.’s Facts Not in
Dispute [Dkt. 23-1] ¶¶ 1-2. She also alleges that she did not ask Dr. Wilson for a disability
certificate, see Pl.’s Facts in Dispute [Dkt. 27-1] ¶ 9, and that “there was no issue about getting to
work or anything like that,” see Alford Dep. at 27; more to the point, Ms. Alford asked Dr.
Wilson for time off of work, Dr. Wilson provided a disability certificate, and she submitted it to
the Hospital on December 7, thereby excusing her from work through December 14. See
Medical Records of Dr. Wilson at 2, 4. She asserts that she did not call Ms. Abbott on December
14 because it was Ms. Abbott who placed the call, and she asserts that “without reason” Ms.
Abbott extended her leave from December 14 to December 20 and arranged transport for Ms.
Alford to see Dr. Wilson on December 15––but she does not contest that she told Ms. Abbott
that her pain still had not improved, that she was having difficulties driving, and that she could
not transport herself to work. Pl.’s Facts in Dispute ¶¶ 13-14. Ms. Alford notes that Dr. Wilson
was puzzled to see her on December 15 and cleared her to work with a 20-pound lifting
restriction, yet Ms. Alford does not contest that she told Dr. Wilson that she was “having
difficulties getting to work.” Id. ¶¶ 16-17. Ms. Alford claims that she never advised Ms. Abbott
that anything prevented her from lifting her wheelchair in and out of her car but acknowledges,
as she must, that Ms. Abbott advised other managers in HR that Ms. Alford could not “lift[] her
wheelchair to get in and out of her automobile,” without attributing the statement to Ms. Alford.
Id. ¶ 18; see Ex. I (12/22/2010 Email from Ms. Abbott) [Dkt. 21-10]. Further, Ms. Alford admits
16
that “[a]t the time of that meeting [on January 6, 2011, to discuss Ms. Alford’s employment] it
was Ms. Abbott’s understanding based on her conversations with Alford that she was still unable
to transport herself to work.” Pl.’s Facts in Dispute ¶ 20.
The disputes identified by Ms. Alford do not advance her case. The question is
not whether, once at the Hospital and at her desk, she could have performed her job. The lifting
restrictions imposed by doctors who examined Ms. Alford in this time period would not have
prevented her job performance. The question is not even whether she could have, in fact, gotten
herself to and from work despite her pain. Rather, the question with regard to Count IV is
whether there is clear and convincing evidence that Ms. Abbott falsely represented a material
fact to Ms. Alford that Ms. Abbott knew or did not care was false, with the intention of deceiving
Ms. Alford. There is no evidence to support the allegation, much less clear and convincing
evidence, as admitted by Ms. Alford herself: she admits that there are no genuine issues of
material fact as pertains to the Hospital’s statement that at the time of the January 6, 2011
meeting to discuss Ms. Alford’s job it was Ms. Abbott’s understanding based on her
conversations with Ms. Alford that Ms. Alford was still unable to transport herself to work. See
id. ¶ 20.
Inasmuch as Ms. Abbott understood that Ms. Alford could not transport herself to
work based on what Ms. Alford had told her, and since the Hospital terminated Ms. Alford
because she could not meet the basic job requirement of getting to work, the allegation that Ms.
Abbott engaged in fraudulent misrepresentation that injured Ms. Alford fails. Because Ms.
17
Alford has failed to raise a genuine issue of material fact, summary judgment will be granted in
favor of the Hospital on Count IV, the claim of intentional misrepresentation. 10
C. Negligent Misrepresentation
Count V of the Complaint, alleging negligent misrepresentation, repeats Count IV
as a matter of negligence, not fraud. Count V asserts that Ms. Abbott negligently and falsely told
Ms. Alford that her return to work was contingent on passing additional independent medical
examinations. To establish negligent misrepresentation, a plaintiff must prove that (1) defendant
made a false statement or omitted a fact he had a duty to disclose; (2) the false statement or
omitted fact was material; and (3) the plaintiff reasonably relied on the false statement or
omission to his detriment. Redmond v State Farm Ins. Co., 728 A.2d 1202, 1207 (D.C. 1999).
For the same reasons that apply to the claim of intentional misrepresentation, summary judgment
will be granted in favor of the Hospital on the claim of negligent misrepresentation.
IV. CONCLUSION
For the reasons stated above, the Hospital’s motion for summary judgment [Dkt.
21] will be granted, Ms. Alford’s motion for summary judgment [Dkt. 22] will be denied, and
10
While at a glance Count IV might be read to allege fraudulent concealment, on closer
examination it does not state such a claim. Count IV alleges that Ms. Abbott intentionally failed
to inform Mr. Fabiyi that she had told Ms. Alford to stay home. To prove fraudulent
concealment, a plaintiff must show by clear and convincing evidence that (1) the defendant had a
duty to disclose a material fact to the plaintiff; (2) the defendant failed to disclose the fact; (3) the
defendant had an intention to defraud or deceive the plaintiff; (4) the plaintiff took action in
justifiable reliance on the concealment; and (5) the plaintiff suffered damages as a result of the
concealment. Alexander v. Wash. Gas Light Co., 481 F. Supp. 2d 16, 36-37 (D.D.C. 2006).
Count IV does not state a claim for fraudulent concealment, however, as it asserts that Ms.
Abbott concealed material information from Mr. Fabiyi––not that Ms. Abbott concealed
information from Ms. Alford.
18
judgment will be entered in favor of the Hospital. A memorializing Order accompanies this
Opinion. 11
Date: May 23, 2013
/s/
ROSEMARY M. COLLYER
United States District Judge
11
The previously scheduled trial date for this case will be vacated.
19
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417 B.R. 505 (2009)
In re Parameshwar SRIKANTIA, Debtor.
No. 09-11414.
United States Bankruptcy Court, N.D. Ohio, Eastern Division.
October 29, 2009.
*506 Stephen D. Hobt, Cleveland, OH, for Debtor.
MEMORANDUM OF OPINION AND ORDER
RANDOLPH BAXTER, Bankruptcy Judge.
This matter is before the Court on the Motion to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(1) and (3) (the "Motion") filed by the United States Trustee for Region 9 (the "Trustee") over the objection of Parameshwar Srikantia (the "Debtor").
This Court acquires core matter jurisdiction over this matter pursuant to 28 *507 U.S.C. §§ 157(a), (b)(1), 28 U.S.C. § 1334 and General Order No. 84 of the District.
A hearing was held upon due notice to all entitled parties. After considering the record, generally, arguments of counsel and evidence adduced, the following constitutes the Court's factual findings and conclusions of law.
*
On February 26, 2009, the Debtor, a college professor, filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Ohio, Eastern Division. The Debtor is employed full-time and has one child, a son, age 12. The Debtor shares joint custody of his son with his ex-wife. His present wife is also a full-time college professor at another institution located out of state. This petition is the Debtor's only bankruptcy filing.
The parties stipulated that the Debtor's non-filing spouse's annual income is $69,000.00, and that the IRS National Standards, referenced as UST Exhibit 12, may be used in the course of the hearing.
* *
The dispositive issue before this Court is whether the Debtor's petition for relief, as amended, constitutes an abusive filing.
* * *
The Trustee asserts that, under the totality of the circumstances, granting the Debtor a Chapter 7 discharge would be an abuse under 11 U.S.C. § 707(b)(3). The Trustee contends that a number of the Debtor's scheduled expenses are either excessive or wholly inappropriate. He further asserts that, although the Debtor and his current spouse are maintaining separate households, several of the expenses claimed still appear excessive. Additionally, the Trustee asserts that the Debtor's high income level suggests that the case is abusive and that the Debtor is able to repay creditors given that his income is stable and a number of his expenses could be reduced without depriving him or his family of necessities.
The Debtor opposes the relief sought by the Trustee. The Debtor contends that his scheduled expenses to which the Trustee objects are necessary expenses. He further asserts that his high food expense is necessary because his son suffers from "cluster migraines" and "stab-and-jab headaches" that are exacerbated by food additives, making it necessary for the Debtor to buy organic food whenever possible. The Debtor asserts that his transportation expense is necessary because he commutes to two separate campuses for work. The Debtor further asserts that his son is extremely introverted, and the scheduled summer camps and various art and music lessons have been recommended by therapists and are necessary for his development. He further contends that his income is not as stable as the Trustee suggests. The Debtor contends that his previous high income level resulted from teaching a number of "overload" classes, and the College recently began pressuring him to teach fewer classes.
* * * *
Section 707 of the Bankruptcy Code provides for dismissal of a Chapter 7 case or conversion to a case under chapter 11 or 13. A case is dismissed where a court finds that the granting of relief would constitute an abuse of the Chapter 7 provisions.
Title 11 U.S.C. § 707(b) states the following:
(b)(1) After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, trustee (or bankruptcy administrator, if any), or any party in interest, may dismiss a case *508 filed by an individual debtor under this chapter whose debts are primarily consumer debts, or, with the debtor's consent, convert such a case to a case under chapter 11 or 13 of this title, if it finds that the granting of relief would be an abuse of the provisions of this chapter. In making a determination whether to dismiss a case under this section, the court may not take into consideration whether a debtor has made, or continues to make, charitable contributions (that meet the definition of "charitable contribution" under section 548(d)(3)) to any qualified religious or charitable entity or organization (as that term is defined in section 548(d)(4)).
(2)(A)(i) In considering under paragraph (1) whether the granting of relief would be an abuse of the provisions of this chapter, the court shall presume abuse exists if the debtor's current monthly income reduced by the amounts determined under clauses (ii), (iii), and (iv), and multiplied by 60 is not less than the lesser of
(I) 25 percent of the debtor's nonpriority unsecured claims in the case, or $6,000, whichever is greater; or
(II) $10,000.
Section 101(8) of the Bankruptcy Code defines "consumer debt" as "debt incurred by an individual primarily for a personal, family, or household purpose."
If the presumption of abuse does not arise under Section 707(b)(2), or is rebutted, then the court considers the totality of the circumstances under 11 U.S.C. § 707(b)(3):
(3) In considering under paragraph (1) whether the granting of relief would be an abuse of the provisions of this chapter in a case in which the presumption in subparagraph (A)(i) of such paragraph does not arise or is rebutted, the court shall consider
(A) whether the debtor filed the petition in bad faith; or
(B) the totality of the circumstances (including whether the debtor seeks to reject a personal services contract and the financial need for such rejection as sought by the debtor) of the debtor's financial situation demonstrates abuse.
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") has amended the Bankruptcy Code in ways that impact the present Motion. First, BAPCPA removed the express presumption in favor of granting the relief requested by the debtor and, second, BAPCPA added § 707(b)(3) to the Bankruptcy Code as an additional basis for dismissal of a Chapter 7 debtor's bankruptcy case. See 11 U.S.C. § 707(b).
Pre-BAPCPA, a United States Trustee seeking dismissal of a chapter 7 case bore the burden of overcoming the strong presumption in favor of granting the discharge requested by the debtor. In re Farrell, 150 B.R. 116, 118 (Bankr.D.N.J. 1992). Historically, courts treated the pre-BAPCPA presumption in favor of granting the relief requested by the debtor as a "caution and reminder" for the court to "give the benefit of any doubt to the debtor and dismiss a case only when a substantial abuse is clearly present." In re Kelly, 841 F.2d 908, 917 (9th Cir.1988); see also In re Krohn, 886 F.2d 123 (6th Cir.1989). BAPCPA eliminated the substantial abuse standard utilized in determining if a debtor's case required dismissal and adopted a lower standard of abuse in considering a motion under § 707(b). See 11 U.S.C. § 707(b)(3).
Pre-BAPCPA, a debtor's case could be dismissed for substantial abuse based upon either lack of honesty or want of need. See Behlke v. Eisen (In re Behlke), 358 F.3d 429 (6th Cir.2004); see *509 also In re Krohn, 886 F.2d 123 (6th Cir. 1989). BAPCPA codified the lack of honesty and want of need factors under § 707(b)(3). Therein, a debtor's case can be dismissed for abuse upon either bad faith (i.e. lack of honesty) or where the totality of the circumstances of the debtor's financial situation demonstrates abuse (i.e. want of need). 11 U.S.C. § 707(b)(3); See In re Oot, 368 B.R. 662, (Bankr. N.D.Ohio 2007); In re Wright, 364 B.R. 640, (Bankr.N.D.Ohio 2007); In re Henebury, 361 B.R. 595 (Bankr.S.D.Fla.2007); In re Mestemaker, 359 B.R. 849 (Bankr. N.D.Ohio 2007); In re Simmons, 357 B.R. 480 (Bankr.N.D.Ohio 2006). "It is a closely related fundament of statutory construction that, where Congress codifies prior ease law, those prior holdings remain not only good law, but should serve as a valuable touchstone for interpreting the statute." In re Oot, 368 B.R. 662, 666 (Bankr. N.D.Ohio 2007) (citing CoStar Group Inc. v. LoopNet, Inc., 373 F.3d 544, 553 (4th Cir.2004)). Therefore, pre-BAPCPA decisions provide sound guidance and are instructive in evaluating motions to dismiss.
Section 707(b)(3) grants a court the authority to dismiss a Chapter 7 case, where the presumption of abuse does not arise, for either bad faith or the totality of the circumstances if the debtor's financial situation demonstrates abuse. 11 U.S.C. § 707(b)(3). Because there have been no allegations of bad faith brought by the Trustee against the Debtor, the Court's consideration herein is focused on the totality of the circumstances.
The Bankruptcy Code does not define the phrase "totality of the circumstances." Notwithstanding, two pre-BAPCPA Sixth Circuit Court of Appeals decisions, Behlke v. Eisen (In re Behlke), 358 F.3d 429 (6th Cir.2004) and In re Krohn, 886 F.2d 123 (6th Cir.1989), provide guidance regarding the totality of the circumstances test for dismissal under § 707(b). Among the factors to be considered in deciding whether the totality of the circumstances warranted a dismissal of the debtor's case under § 707(b), the Krohn court opined:
A court would not be justified in concluding that a debtor is needy and worthy of discharge, where his disposable income permits liquidation of his consumer debts with relative ease. Other factors relevant to need include whether the debtor enjoys a stable source of future income, whether he is eligible for adjustment of his debts through Chapter 13 of the Bankruptcy Code, whether there are state remedies with the potential to ease his financial predicament, the degree of relief obtainable through private negotiations, and whether his expenses can be reduced significantly without depriving him of adequate food, clothing, shelter and other necessities.
In re Krohn, 886 F.2d at 126; accord Behlke v. Eisen, 358 F.3d at 435. Additionally, to meet the burden established in 11 U.S.C. § 707(b) for dismissal, the Trustee, who is the moving party, must prove by a preponderance of the evidence that the debts in question are consumer debts, and that granting relief would constitute abuse. In re Browne, 253 B.R. 854, 856-857 (Bankr.N.D.Ohio 2000).
To determine whether a debtor can significantly reduce his expenses, courts will look to the debtor's scheduled expenses to determine their reasonableness. In re Mooney, 313 B.R. 709, 715 (Bankr.N.D.Ohio 2004). This is not to say, however, that a court must simply accept the expense amounts a debtor schedules as necessary. In determining the reasonableness of a debtor's expenses, a court must scrutinize those provided expenses and may "make downward adjustments where necessary." In re Felske, 385 B.R. *510 649, 655 (Bankr.N.D.Ohio 2008). Although a debtor need not reduce his expenses in such a way that he is living in poverty, the Bankruptcy Code envisions some sacrifice on the debtor's part in granting him relief. Id. at 656. A court need not get bogged down in minute details of the debtor's expenses, but the debtor must demonstrate that he is making some sacrifices to repay unsecured creditors. In re Mars, 340 B.R. 844, 850 (Bankr.W.D.Mich.2006).
* * * * * *
On the first page of his original bankruptcy petition, the Debtor identified the nature of his debts as "consumer/nonbusiness". The Debtor scheduled three secured claims. The first claim is a $5,371.69 car loan, which the Debtor intends to reaffirm and retain the vehicle. See Debtor's Schedule D and Debtor's Statement of Intention. The remaining secured claims are a first and second mortgage secured by the Debtor's personal residence, totaling $84,597.08 and $ 10,743.48, respectively. See Debtor's Schedule D. He intends to surrender the residence, which currently is the subject of a foreclosure proceeding pending in the Cuyahoga County Court of Common Pleas. See Debtor's Statement of Intention and Debtor's Statement of Financial Affairs. He scheduled two unsecured priority tax claims totaling $4,059.30. See Debtor's Schedule E. The Debtor scheduled five unsecured nonpriority claims, consisting entirely of credit card debt, in the amount of $41,054.94. See Debtor's Schedule F.
Concurrent with the filing of his voluntary petition, the Debtor filed the required Statement of Current Monthly Income and Means Test Calculation, Form B22A (hereinafter, the "Means Test"). The Trustee reviewed the papers filed by the Debtor and determined that the Debtor's case is not presumed to be an abuse pursuant to 11 U.S.C. § 707(b). The Trustee filed a Motion to Extend Time in Which to File a Motion to Dismiss, citing the need to obtain the financial information of the Debtor's non-filing spouse. Subsequent to the granting of that Motion by this Court, the Debtor filed Amended Schedules I and J reflecting his non-filing spouse's income and expenses.
The Debtor's Means Test lists his gross monthly income as $7,289.16, for an annualized income of $87,469.92. See Debtor's Means Test Calculation Form 22A. The Debtor's Means Test lists a household size of 2. Id. The Debtor's annualized income exceeds the applicable median family income of $50,965 for a family of two in Ohio. See http://www. usdoj.gov/ust/eo/bapc-pa/ 20081001/bci_data/median_income_table.htm (median income amount for a debtor, who is an Ohio resident, with a family of two and filed a bankruptcy case between October 1, 2008 and March 14, 2009). The Debtor's Amended Schedule J lists his wife's monthly gross income as $5,750.00 for an annualized gross income of $69,000.00. See Debtor's Amended Schedule J, Line 1.
The Debtor made several modifications on his Amended Schedule J. He scheduled the following monthly expenses:
-------------------------------------------------
Item Monthly Expense
-------------------------------------------------
House cleaning $ 83
-------------------------------------------------
Cellular telephone $175
-------------------------------------------------
Home maintenance $100
-------------------------------------------------
Food $700
-------------------------------------------------
Transportation $400
-------------------------------------------------
Books and CDs for son $100
-------------------------------------------------
Storage (wife's furniture) $100
-------------------------------------------------
Art lessons for son $120
-------------------------------------------------
Drum lessons for son $ 80
-------------------------------------------------
Summer camps for son $375 (annualized)
-------------------------------------------------
See Debtor's Amended Schedule J. The Debtor's Amended Schedule J shows a negative monthly net income of $159.97.
*511 In determining whether the totality of the circumstances of a debtor's financial situation demonstrates abuse pursuant to § 707(b)(3), a court should consider the debtor's ability to repay his creditors out of future earnings. In re Krohn, 886 F.2d at 126. Herein, the Debtor is gainfully employed as a full-time college professor and has been for a sustained period of time, eight years, He earns an above-median income for his family size and geographical location, without including his non-filing spouse's income. The Debtor enjoyed substantial income in the years prior to filing bankruptcy, earning a gross salary of $103,418.36 in 2007 and $106,730.74 in 2008. See Debtor's Statement of Financial Affairs. Substantial income weighs in favor of abuse. See In re Wadsworth, 383 B.R. 330, 333 (Bankr. N.D.Ohio 2007)("Under any measure, a debtor, having a stable annual salary of almost $100,000.00, will be hard pressed to establish that they do not have the ability to pay some of their unsecured debt, such as through funding a Chapter 13 plan of reorganization."). The Trustee acknowledges that, without an adjustment in expenses, the Debtor cannot fund a Chapter 13 plan. The Debtor's apparent inability to fund a Chapter 13 plan, however, is not determinative on the issue of abuse. In re Krohn, 886 F.2d at 127 ("[I]nability to qualify under Chapter 13 should not be dispositive of whether there may be a § 707(b) dismissal, since there are other factors to be considered in deciding if a debtor is needy.").
At the evidentiary hearing, the Debtor testified that his high level of income is the result of teaching "overload" classes beyond his required teaching load. (Srikantia, P., Direct). He testified that his employer has been pressuring him to reduce his teaching load as a result of lower student enrollment, thus reducing his income. Id. He also testified that it was not possible to predict the exact reduction in his income without knowing which classes he would be required to drop. (Srikantia, P., Cross). This Court found the Debtor's testimony generally credible with respect to his income level. Despite the uncertainty of the Debtor's future income level, the Debtor testified that his base salary is $68,000, without including any overload classes, and at present he continues to teach a number of overload classes (Srikantia, P., Direct). Even if the Debtor's teaching load consisted only of his required course load, Debtor still earns a substantial income and is still well above the median income for his family size and location. Further, it appears that the Debtor enjoys a stable future income from which creditors could be repaid.
The Trustee objected to the following expenses from Debtor's Amended Schedule J:
-----------------------------------------------
Line Listed Expense
-----------------------------------------------
Line 2(d): House cleaning $ 83
-----------------------------------------------
Line 2(d): Cellular telephone $175
-----------------------------------------------
Line 3: Home maintenance $100
-----------------------------------------------
Line 4: Food $700
-----------------------------------------------
Line 8: Transportation $400
-----------------------------------------------
Line 17: Books and CDs for son $100
-----------------------------------------------
Line 17: Storage (wife's
furniture) $100
-----------------------------------------------
Line 17: Art lessons for son $120
-----------------------------------------------
Line 17: Drum lessons for son $ 80
-----------------------------------------------
Line 17: Summer camps for son
(annualized) $375
-----------------------------------------------
The Trustee also questioned the reasonableness of the Debtor's "professional expenses" in the amount of $270.72 per month and airfare expenses of $337.55 per month. (Debtor's Exh. D).
The Debtor testified that he no longer pays for a house cleaning service; that his home maintenance expense results from living in an older home and required numerous repairs to remedy code violations; *512 that his son's medical condition is exacerbated by food additives, and he spends extra to purchase organic food to alleviate his son's symptoms; that his transportation expense was not unreasonable because he commutes between two separate campuses for work purposes. (Srikantia, P., Direct). He also testified that he pays his wife's monthly storage expense because he is generally responsible for the bills that arise in Ohio. (Srikantia, P., Cross). Other testimony reveals that he occasionally calls family in India using his cellular phone, and that is the main method he uses to keep in touch with his wife, resulting in a higher expense. Id. With respect to the amount of his expenses, this Court found the Debtor's testimony to be generally credible. The Debtor further testified that his son's medical condition makes him extremely withdrawn socially and introverted, and therapists recommended the various art lessons, music lessons, books and CDs, and numerous summer camps to further his development. (Srikantia, P., Direct). During the summer of 2009, the Debtor's son attended several weeks of camp, including two week-long music camps, a video production camp, and two other local camps. (Debtor's Exh. D). In addition to the camp tuition, Debtor purchased a $1,400 drum set for his son, stating that these music camps required his son to have advanced equipment. (Debtor's Exh. D; Srikantia, P., Cross). In addition to these expenses, the Debtor testified that his ex-wife pays for their son's guitar lessons. (Srikantia, P., Cross). Although the Debtor's son receives medical treatment for his migraines, the Debtor offered no evidence to show that his son requires organic foods or that the music and art lessons and camps are necessary. In this regard, the Debtor's testimony is conclusory and unsubstantiated.
A bankruptcy analyst from the Trustee's office offered testimony regarding his examination of the Debtor's expenses. He testified that, upon reviewing Debtor's Amended Schedule J, the Debtor claimed excessive expenses for storage, books, art and music lessons, summer camps, and cellular phone service. He also testified that the Debtor's spouse's expense for air travel were excessive. (Weaver, J., Direct). On cross examination, however, the bankruptcy analyst stated that he did no investigation of the reasonableness of several of the claimed expense amounts, and merely testified that in the context of a bankruptcy petition, expenses such as the Debtor had listed were generally considered unreasonable. (Weaver, J., Cross). He conceded that he did not investigate whether $175.00 per month is a reasonable expense for a debtor who makes international calls, or whether $100.00 per month is a reasonable expense for furniture storage. (Weaver, J., Cross). Thusly, his testimony in these regards was both conclusory and unsubstantiated.
Significantly, he also testified that the Debtor's food and transportation expenses exceed those listed in the IRS National Standards. (Weaver, J., Direct; UST Exh. 12). He testified that the Debtor claimed a household size of two individuals on his Means Test. Notedly, the IRS National Standards lists an allotted monthly food expense of $528 for a household of two individuals and $626 for a household of three individuals. (UST Exh. 12). It is further observed that the Debtor's claimed food expense of $700 per month even exceeds the dollar amount allotted for a household of three. Thus, the Debtor's food expense would be excessive even if his son and wife lived with him full time. The IRS National Standards also provides a monthly transportation expense for one car in the Cleveland Metropolitan Statistical Area of $186. (UST Exh. 12). The Debtor's claimed fuel expense of $359 per *513 month far exceeds the $186 allotted in the IRS National Standards. In this regard, the bankruptcy analyst's testimony was persuasive and supported by the IRS National Standards. Id.
A number of the Debtor's expenses are excessive. Even assuming it was reasonable for the Debtor to purchase organic foods to alleviate his son's health condition, $700.00 per month is an excessive food expense for two people, particularly considering that the Debtor's son does not live with him full-time and does not eat every meal with the Debtor. A gasoline expense of approximately $359.00 per month is excessive, even considering the Debtor's commute from his residence to the two campuses where he works. Notwithstanding the lack of reasonableness of the fees of art and music lessons and summer camps, such expenses are, in and of themselves, unreasonable in light of the Debtor's other expenses. See In re Christie, 172 B.R. 233 (Bankr.N.D.Ohio 1994) (finding recreation and entertainment expenses excessive); In re Mooney, 313 B.R. 709 (Bankr.N.D.Ohio 2004) (finding $900.00 per month in childcare expenses excessive); In re Roth, 108 B.R. 78 (Bankr. W.D.Pa.1989) (finding expenses for piano lessons excessive). Furthermore, there is no evidence of record that Debtor's son has any certified disability or condition that qualifies as exceptional circumstances to justify these expenses. None of the subject camps appear to be directed at assisting children with special needs; rather, they appear to be open to the general public. Further, a $100 per month expense for books and CDs for the Debtor's son is excessive when the Debtor testified that his son checks out books and CDs from the library. (Srikantia, P., Cross). Several of these expenses could be reduced or eliminated without depriving the Debtor or his dependents of necessities while providing at least some payment to unsecured creditors.
There is no set standard by which a court can decide if a debtor's budget is excessive, given the fact-intensive inquiry of such a determination. In re Mooney, 313 B.R. at 716. It is well established, however, that a discharge in bankruptcy is conditioned on a debtor's willingness to make some sacrifices. In re Felske, 385 B.R. at 656. Herein, it appears that the debtor earns a substantial income, even with a reduction in his teaching load, but continues to live beyond his means rather than reduce his expenses to pay some dividend to unsecured creditors. The Debtor was not forced into bankruptcy by an unanticipated or catastrophic event. With prudent adjustments to his cost of living, he has the ability to pay a reasonable dividend to his unsecured creditors.
Thusly, based on the totality of the Debtor's financial situation, it is hereby determined that granting the Debtor relief under Chapter 7 would constitute abuse pursuant to § 707(b)(3).
* * * * * *
Accordingly, the Trustee's motion to dismiss pursuant to 11 U.S.C. §§ 707(b)(3) is granted, and the Debtor's case is hereby dismissed. The Debtor's objection is hereby overruled. Each party is to bear its respective costs.
IT IS SO ORDERED.
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395 S.W.2d 751 (1965)
CITY OF NORTH LITTLE ROCK, Appellant,
v.
Cecelia HABRLE, Appellee.
No. 5-3664.
Supreme Court of Arkansas.
November 22, 1965.
*752 Reed W. Thompson, City Atty., James R. Wallace, Charles L. Carpenter, Asst. City Attys, North Little Rock, for appellant.
Moses, McClellan, Arnold, Owen & Mc-Dermott, and James R. Howard, Little Rock, for appellee.
WARD, Justice.
This litigation concerns an attempt to rezone property in North Little Rock. In 1962 a comprehensive Zoning Code was adopted embracing a large part of the City. The portion of the property here involved was zoned for use as R-3, meaning that it could be used only for single family and multi-family residential purposes.
On March 6, 1964 Cecelia Habrle (appellee) purchased a lot described as Lot 1, Counts' Addition to the City of North Little Rock, located in the area zoned R-3. Shortly thereafter she petitioned the Zoning Commission to rezone her property to "C-2" so she could operate a beauty shop thereon. This request was denied by the Commission on April 7 and by the City Council on April 27, 1964.
On June 3, 1964 appellee filed a complaint in chancery court against the City (appellant) alleging: The action of the City was unreasonable and arbitrary in that the limitation on the use of her property bears no definite relationship to the health, safety, morals or general welfare of the inhabitants of the area zoned R-3, that the existence of a beauty shop on her property would in no wise affect the value of the property in the area; that it would not constitute a traffic hazard, and that there are similar businesses in the area. She asked the court to enjoin and restrain the City from prohibiting her and her successors in title from "using the land * * * for C-2 purposes". Appellant filed a general denial, and a trial was had on the issues thus enjoined.
The trial court made, in essence, these material findings: (a) Appellee became the owner of the subject lot two years after the Zoning Code became effective; (b) Appellee's property is located in an area which consists of single and multiple family residences and there are several quiet businesses such as a grocery store etc, which were there before the property was zoned as class R-3, being non-conforming uses; (c) Using appellee's lot for a beauty shop would not devalue the property in the area; (d) But rezoning the property for other types of business (permissible under the C-2 classification) would result in a devaluation of the other property in the area, and; (e) The action of the Planning Commission and the City in refusing to rezone this one *753 lot was arbitrary, unreasonable, and capricious. The court's order was that the lot be rezoned from an R-3 to a C-2 classification, and that the City be enjoined from preventing appellee from using "the property * * * in any manner provided in the C-2 classification". This appeal by City follows.
For a reversal appellant relies on three separate points. One, the court cannot substitute its judgment for that of the Zoning Authorities; Two, there is no proof the City acted arbitrarily, capriciously, or unreasonably, and; Three, there is no proof to justify the trial court in substituting its judgment for that of the City. However, since there is much similarity in the points, we deem it unnecessary to discuss them separately.
The decisive issue before us is whether the testimony justified the trial court in reversing the Zoning Authorities. The fundamental rule by which we must decide this issue has been frequently announced by this Court, and it is clearly stated in the recent case of City of Little Rock v. McKenzie, 239 Ark. 9, 386 S.W.2d 697. In that case the trial court held the City acted arbitrarily in rezoning certain property. In reversing the trial court we used this language:
"In resolving this conflict we cannot substitute our judgment for that of the zoning authorities. We must uphold their decision unless we can say that it is arbitrary and capricious."
Applying the above rule to the testimony in the record here we are unwilling to say the action of the Zoning Authorities was arbitrary or capricious. One definition of the word arbitrary given by Webster is "decisive but unreasoned", and capricious is defined by Webster as "not guided by steady judgment or purpose". It is true that, according to testimony presented by appellee, eight persons said they would not object to appellee using the lot for a beauty shop, but they did not say they would not object if she used it for some other purpose permissible under C-2 classification. It was also shown that there were other operations not permissible under an R-3 classification, but it is admitted they were in existence when the area was originally zoned. It is undisputed that appellee bought her property after the area was zoned. No doubt it will be a financial disadvantage for appellee if she cannot operate a beauty shop on her lot, but we do not understand this is necessarily any indication the Zoning Authorities acted arbitrarily when they refused to let her do so. In the McKenzie case, supra, we indicated we were not insensitive to hardships which sometimes result in a case of this kind, but said: "Yet in every case such as this one a similar loss in property value must be suffered by one side or the other."
It is significant in this case that there is no contention by appellee the Zoning Authority acted arbitrarily under the conditions existing when the Code went into effect in 1962, yet there is no contention conditions have changed since 1962.
As pointed out before several neighbors said they had no objection to appellee operating a beauty parlor on her lot, and it was also stated that appellee had no intention to use her lot for any other purpose. The facts are, however, that if appellee's lot is rezoned to C-2 classification she can sell her property at any time and the purchaser would have the right to use the same for any business permissible under such classification. In this connection, as has previously been pointed out, the trial court found as a matter of fact that a rezoning of the lot to C-2 would devalue other property in the area. We find nothing in the record to support a finding that the Zoning Authorities acted arbitrarily.
It is our conclusion therefore that the decree of the trial court must be reversed, and it is so ordered.
Reversed.
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408 F.Supp.2d 1275 (2005)
Alphonso MITCHELL, et al., Plaintiffs,
v.
OSCEOLA FARMS CO., Defendant.
No. 0580825CIVCOHN.
United States District Court, S.D. Florida.
December 29, 2005.
*1276 Gregory S. Schell, Migrant Farmworker Justice Project, Lake Worth, Florida; David L. Gorman, North Palm Beach, FL, James K. Green, West Palm Beach, FL, for the Plaintiffs.
Robert C.L. Vaughan and Joseph B. Klock of Squire, Sanders & Dempsey, Miami, FL, for the Defendant.
*1277 ORDER ON VARIOUS MOTIONS
COHN, District Judge.
THIS CAUSE came before the Court on Defendant Osceola Farms Co.'s Motion to Dismiss the Complaint and For Rule 11 Sanctions [DE 13], Defendant's Motion to Stay Discovery and For a Protective Order [DE 14], Plaintiffs' Motion For Class Certification [DE 24, 25], and Defendant's Motion For Extension of Time [DE 28]. The Court has reviewed the Motions, the Plaintiffs' Responses [DE 15, 17, 29],[1] Defendant's Reply [DE 21], Plaintiffs' supplemental authority [DE 22], Defendant's supplement to its Reply [DE 27], and pertinent portions of the record, and is otherwise fully advised in the premises.
Plaintiffs are alien farm workers who allegedly cut sugar cane for Defendant during the late 1980s and early 1990s. They allege that they were not adequately paid pursuant to employment contracts with Defendant, asserting jurisdiction under the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d)(1), and under 28 U.S.C. § 1331. Plaintiffs were all "H-2A" workers under 8 U.S.C. § 1101(a)(15)(H)(ii)(a), which allows U.S. employers to hire alien workers for temporary labor under certain circumstances. Complaint, ¶ 15 (Sept. 9, 2005) [DE 1]. To implement the statute, the U.S. Department of Labor requires employers to submit an application that includes a job offer, known as a "clearance order" or "job order." Id., ¶ 16. These job offers incorporate various Department regulations on wage rates. Id., ¶¶ 16-18. Plaintiffs argue that they accepted the terms of these job offers, incorporating all federal regulations, and Defendants violated those terms by paying wages below those required by federal regulations. Id., ¶¶ 21, 23. Plaintiffs allege that some of them accepted the contract terms by signing agreements and others accepted the terms orally. Id., ¶ 21.
This action stems from protracted litigation in Florida state courts. Plaintiffs initially brought their claim against five growers and obtained summary judgment in their favor. See Okeelanta Corp. v. Bygrave, 660 So.2d 743, 744-47 (Fla.Dist. Ct.App.1995). After the summary judgment was reversed, the trial court severed the case into separate actions against each grower. One grower settled and three successfully defended the suits in trial and on appeal. See Gordon v. Okeelanta Corp., 784 So.2d 537 (Fla.Dist.Ct.App. 2001); Williams v. Atlantic Sugar Ass'n, 773 So.2d 1176 (Fla.Dist.Ct.App.2000); Sugar Cane Growers Coop., Inc. v. Bygrave, 660 So.2d 743 (Fla.Dist.Ct.App. 1995). Defendant here is the fifth grower.
After several years of litigation, the state court ultimately de-certified Plaintiffs' class in its class action claim against Defendant because the named Plaintiff was missing and Plaintiffs failed to substitute a different representative. Bygrave v. Sugar Cane Growers Coop., Inc., No. 501989CA008690XXCDAA at 5-9 (Fla. 15th Jud. Cir. June 27, 2005) (order granting defendant's motion to decertify). Plaintiffs then voluntarily dismissed the action and filed the instant action. Plaintiffs include in their Complaint allegations concerning the 1991-1992 and 1992-1993 growing seasons. These allegations were not included in the original state court litigation. Rather, they appeared in a separate state action that was never certified as a class action, Walters v. Atlantic Sugar Ass'n, No. CL 93-9304 (Fla. 5th Jud. Cir.). The plaintiff in that action voluntarily dismissed *1278 his claim shortly after Plaintiffs filed the instant action.
The instant action attempts to create a class with members of the decertified class in the previous state action, along with the plaintiff and others similarly situated who brought individual claims regarding the 1991-1992 and 1992-1993 seasons. Defendant argues that the statute of limitations has long since run on all Plaintiffs' claims, the latest of which arose at least 12 years before Plaintiffs filed their Complaint.[2] Plaintiffs argue that the previous class action in state court tolled the statute of limitations.
The Supreme Court of the United States has held that the statute of limitations for claims of individual class members is tolled during pendency of a class action and those members may proceed with individual claims following denial of a class certification. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). Such tolling does not, however, apply to a subsequent class action that merely attempts to correct deficiencies in a previous class action. See Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir.1994). "[P]laintiffs may not `piggyback one class action onto another' and thereby engage in endless rounds of litigation in the district court . . . over the adequacy of successive named plaintiffs to serve as class representatives." Id. (citation omitted) (quoting Salazar-Calderon v. Presidio Valley Farmers Ass'n, 765 F.2d 1334, 1351 (5th Cir.1985)); see also 2 Alba Conte and Herbert B. Newberg. Newberg on Class Actions § 6:3 (4th ed.2002) (discussing tolling rule for subsequent class actions).
Here, the putative class attempts certification in much the same manner as the putative class in Griffin. The state court decertified the class because the named plaintiff was not an adequate representative. The only way to cure this defect would be to assert an adequate representative, something Plaintiffs had ample opportunity to do in state court. Accordingly, the statute of limitations is not tolled for Plaintiffs' class action claims, and this Court lacks jurisdiction under the Class Action Fairness Act.
Nevertheless, because the statute of limitations is tolled for Plaintiffs' individual claims, Plaintiffs may pursue those claims here if the Court has federal question jurisdiction. Plaintiffs argue that the Court has federal question jurisdiction because the breach of contract claim turns on a substantial question of federal law. Specifically, the Court must determine the meaning and purpose of federal immigration statutes and regulations governing the H-2A program in order to determine whether Defendant breached its contracts with Plaintiffs.
Federal question jurisdiction under 28 U.S.C. § 1331 exists both for federal causes of action or for "state-law claims *1279 that implicate significant federal issues." Grable & Sons Metal Prods. v. Darue Eng'g, ___ U.S. ___, ___, 125 S.Ct. 2363, 2367, 162 L.Ed.2d 257 (2005). Jurisdiction in the latter type of federal question case, however, "demands not only a contested federal issue, but a substantial one, indicating a serious federal interest in claiming the advantages thought to be inherent in a federal forum." Id. "[T]he federal issue will ultimately qualify for a federal forum only if federal jurisdiction is consistent with congressional judgment about the sound division of labor between state and federal courts governing the application of § 1331." Id. Thus, in evaluating jurisdictional claims under this type of federal question jurisdiction, "the question is, does a state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Id. at 2368.
Here, there is no express or implied federal cause of action for allen workers under the Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537. See Michael Holley, Disadvantaged By Design: How the Law Inhibits Agricultural Guest Workers From Enforcing Their Rights, 18 Hofstra Lab. & Emp. L.J. 575, 605-07 (2001) (discussing lack of federal cause of action for allen farm workers). Both parties, however, state that the crux of Plaintiffs' claim concerns the parties' intent with respect to the federally dictated terms in the clearance order, as the terms were not clear and unambiguous. Furthermore, Defendant acknowledges that such intent depends on the underlying federal purpose in setting these terms. Accordingly, Plaintiffs' federal issue whether the federal purpose of the clearance order terms supports Plaintiffs' claim that Defendant breached those terms by failing to compensate Plaintiffs the appropriate amount is "actually disputed and substantial."
Whether hearing this federal issue would disturb "any congressionally approved balance of federal and state judicial responsibilities" is a more difficult question. In Grable & Sons Metal Products, the Supreme Court held that federal courts had jurisdiction over a quiet title action where the plaintiff claimed that the defendant's title was defective because the plaintiff had not received proper notice under the Internal Revenue Service's governing statute. 125 S.Ct. at 2366. The Court held that federal question jurisdiction was appropriate because the
Government has a strong interest in the "prompt and certain collection of delinquent taxes" and the ability of the IRS to satisfy its claims from the property of delinquents requires clear terms of notice to allow buyers like [the defendant] to satisfy themselves that the service has touched the bases necessary for good title.
Id. (citation omitted) (quoting United States v. Rodgers, 461 U.S. 677, 709, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983)).
The Court distinguished Grable & Sons Metal Products from its earlier holding in Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), where it held that federal court did not have jurisdiction over a state tort claim even though under the law of the forum state, the defendant drug maker's violation of a federal misbranding prohibition gave rise to a presumptive negligence standard. 125 S.Ct. at 2369. The Court explained that "if the federal labeling standard without a federal cause of action could get a state claim into federal court, so could any other federal standard without a federal cause of action. And that would have meant a tremendous number of cases." Id. at 2370. In Grable *1280 & Sons Metal Products, however, "it is the rare state quiet title action that involves contested issues of federal law. Consequently, jurisdiction over actions like Grable's would not materially affect, or threaten to affect, the normal currents of litigation." Id. at 2371 (citation omitted).
Similarly in the instant case, it is the rare breach of contract action that "involves contested issues of federal law," particularly federal immigration law regarding alien farm workers. Thus, federal question jurisdiction in matters such as this would not open the flood gates and disturb "any congressionally approved balance of federal and state judicial responsibilities."
Moreover, the federal interest in regulating immigration is unquestionably substantial. "For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government." Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); see also Sudomir v. McMahon, 767 F.2d 1456, 1464 (9th Cir.1985) ("[F]ederal authority in the areas of immigration and naturalization is plenary."). Additionally, federal courts have long provided a forum for migrant workers to enforce their rights under the Wagner-Peyser Act in circumstances similar to those here. Even before the Wagner-Peyser Act was amended to allow private rights of action, see 29 U.S.C. § 1854(a), courts heard claims from migrant workers under an implied right of action. See Gomez v. Fla. State Employment Serv., 417 F.2d 569, 575-77 (5th Cir. 1969).
Accordingly, the Court has federal question jurisdiction over Plaintiffs' individual claims. Those claims that were part of the prior state class action are not barred by the statute of limitations because the statute was tolled while the class action was pending.[3] Those claims regarding the 1991-1992 and 1992-1993 seasons, however, are time-barred, as the statute of limitations was not tolled by the individual claims in state court. The Court therefore shall dismiss that portion of Plaintiffs' Complaint.
With regard to Defendant's motion for Rule 11 sanctions, this motion is defective on two fronts. First, Defendant failed to file the motion separately from its Motion to Dismiss, pursuant to Rule 11(c)(1)(A) of the Federal Rules of Civil Procedure. A failure to file a motion for Rule 11 sanctions separately warrants denial of the motion. See Wendy's Intern., Inc. v. Nu-Cape Const., Inc., 164 F.R.D. 694, 701 n. 2 (M.D.Fla.1996); 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1337.1, at 709-10 (3d ed.2004). Second, Defendant failed to abide by the 21-day "safe harbor" provision of Rule 11(c)(1)(A). Because Defendant filed its motion with the court contemporaneously with service to Plaintiffs, the Court must deny Defendant's motion. See DeShiro v. Branch, 183 F.R.D. 281, 287-88 (M.D.Fla.1998).
Finally, turning briefly to the remaining two motions, the Court shall deny Defendant's Motion to Stay Discovery as moot in light of the above ruling. The Court shall also deny Plaintiffs' Motion For Class Certification, because, as explained above, Plaintiffs' class action claim is barred by the statute of limitations. Finally, the Court shall deny Defendant's Motion For Extension of Time as moot.
*1281 For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1. Defendant Osceola Farms Co.'s Motion to Dismiss the Complaint and For Rule 11 Sanctions [DF 13] is GRANTED IN PART and DENIED IN PART, as follows:
a. Plaintiffs' class action claim is dismissed;
b. Plaintiffs' claim regarding the 1991-1992 and 1992-1993 harvesting seasons is dismissed;
c. Defendant's Motion is otherwise denied.
2. Defendant's Motion to Stay Discovery and For a Protective Order [DE 14] is DENIED.
3. Plaintiff's Motion For Class Certification [DE 24] is DENIED.
4. Defendant's Motion For Extension of Time [DE 28] is DENIED.
NOTES
[1] Plaintiffs are 1048 migrant agricultural workers from various Caribbean nations. Defendant allegedly employed Plaintiffs during sugar cane harvest seasons in the late 1980s and early 1990s.
[2] Although Plaintiffs assert federal question jurisdiction, there is no federal law that supplies the statute of limitations for Plaintiffs' claim, which is essentially a breach of contract claim. Accordingly, the Court must look to state law for the appropriate statute of limitations. See Trawinski v. United Techs., 313 F.3d 1295, 1298 (11th Cir.2002) ("When there is no specifically stated or otherwise relevant federal statute of limitations for a federal cause of action, the controlling period would ordinarily be the most appropriate one provided by state law."); Wales v. Jack M. Berry, Inc., 192 F.Supp.2d 1269, 1286 (M.D.Fla.1999) (applying oral breach of contract statute of limitations for migrant farm worker claim). The statute of limitations in Florida for a breach of contract claim is five years for a written contract, Fla. Stat. § 95.11(2)(b), and four years for an oral contract, Id. § 95.11(3)(k). In either case, the statute of limitations has run for Plaintiffs' claim unless Plaintiff can demonstrate that the prior state action tolled the statute.
[3] The Court shall not consider at this time the obvious managerial difficulties of a suit with 1048 Plaintiffs. The Court sees no reason to sever claims pursuant to Rule 42(b) of the Federal Rules of Civil Procedure at this stage of the litigation.
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50 Haw. 563 (1968)
445 P.2d 370
HUNG WO CHING AND ELIZABETH LAU CHING, YAU ON LEONG AND JAMES DOO, TRUSTEES UNDER INSTRUMENT DATED JANUARY 3, 1958, AND FILED IN THE OFFICE OF THE ASSISTANT REGISTRAR OF THE LAND COURT OF THE STATE OF HAWAII AS DOCUMENT NO. 211549
v.
HAWAIIAN RESTAURANTS, LTD.
No. 4687.
Supreme Court of Hawaii.
September 30, 1968.
RICHARDSON, C.J., ABE, LEVINSON, JJ., CIRCUIT JUDGE KING IN PLACE OF MARUMOTO, J., DISQUALIFIED, AND CIRCUIT JUDGE FUKUSHIMA ASSIGNED BY REASON OF VACANCY.
*564 Douglas E. Prior (Smith, Wild, Beebe & Cades of counsel) for defendant-appellant.
Asa M. Akinaka (Padgett, Greeley, Marumoto & Akinaka of counsel) for plaintiffs-appellees.
OPINION OF THE COURT BY ABE, J.
The plaintiffs, as lessors, and the defendant, as lessee, executed a lease of a parcel of land at the intersection of Kalakaua Avenue and Kapiolani Boulevard in Honolulu. The defendant operates a restaurant under the name of Coco's on the premises.
The lease is for a term commencing July 1, 1960 and ending June 30, 1985 and provides for a monthly rental of $2,250 for the period ending June 30, 1965. The lease contains a rental provision calling for renewal negotiation every five years throughout the twenty-five year term. It also provides that when the parties are unable to agree on the rental for any five-year period, the annual rental shall be 6 percent of the fair market value as determined by "three impartial appraisers."[1]
The parties were unable to agree on the rental for the second five-year period and each party appointed an appraiser. When the two appraisers could not agree on the fair market value for *565 the determination of the rental, plaintiffs brought suit for a declaratory judgment in the first circuit court for the interpretation of the words "fair market value."
The defendant moved to require arbitration of this dispute over the rent and to stay the suit, contending that the lease required arbitration. The trial judge denied this motion and also refused to allow the defendant to take an interlocutory appeal on this point.
After trial, the trial court ruled that the words "fair market value" of the demised land as used in the lease meant fair market value of the land at its highest and best use, unencumbered by the lease. The defendant appealed from this judgment.
The covenant of the lease provided for the appointment of three "appraisers" only when the lessors and lessee were unable to agree on the rental. It also provided that the decision of any two of the appraisers was to be "final, conclusive and binding upon both parties, subject, however, to vacation or modification in accordance with the provisions of Chapter 188 of the Revised Laws of Hawaii 1955, as the same now exists, or if amended, as they shall exist at the time of the appraisal."
The plaintiffs contend that the agreement merely calls for an appraisal and not arbitration because the terms "appraisers," "appraisal," and "decision" are used instead of "arbitrators," "arbitration," or "award," and also because the lease provides that each of the appraisers appointed be both a recognized real estate appraiser and a member of the Honolulu Realty Board.
We disagree with that contention. An agreement should be construed as a whole and its meaning determined from the entire context and not from any particular word, phrase or clause. Territory v. Arneson, 44 Haw. 343, 354 P.2d 981 (1960).
The requirement that "appraisers" to be named be recognized local real estate appraisers is not indicative that the parties did not intend to provide for arbitration. It would be natural for the parties to the lease to desire that the best qualified people be appointed to carry out their duties as arbitrators. The requirement that only recognized local real estate appraisers be appointed is merely an indication of this desire.
*566 The parties had agreed that the three "appraisers," to be selected as provided in the lease, were to determine the fair market value when they were unable to agree on the rental for any five-year period. The fair market value as determined by any two of the "appraisers" was to be final, conclusive and binding upon both parties, and the annual rental for any five-year period was to be 6 percent of the fair market value, but not less than $2,250 per month. By this provision, the decision of the two "appraisers" had the binding effect of a judgment of a court of law. This is a function of a board of arbitration.
Further, Chapter 188, R.L.H. 1955, pertains to arbitration and award and it would seem that the parties to the lease contemplated arbitration, otherwise they would not have referred to this chapter.
We are satisfied that by the covenant, the parties to the lease intended to provide for and contemplated arbitration on the question of rental when there was a disagreement. Courts in other jurisdictions have so construed similar provisions of leases. Citizens Bldg. v. Western Union Telephone Co., 120 F.2d 982 (1941); Earle v. Johnson, 81 Minn. 472, 84 N.W. 332 (1900).
Thus, the trial judge should have submitted the entire question of rental to arbitration, including the interpretation of the term "fair market value."
Reversed and remanded for further proceedings consistent with this opinion.
NOTES
[1] "The Lessors and the Lessee shall each, on or before thirty (30) days prior to the commencement of the period for which the rent is to be determined, name an appraiser and so notify the other party in writing, and in case one party shall fail so to do, the party who has named an appraiser shall have the right to apply to the person who shall hold office at the time as the senior judge in service of the First Circuit Court of the State of Hawaii, or, if said judge is for any reason unavailable or unwilling to act, then to any other judge of said Court who shall be available and willing to act, requesting him to select and appoint an appraiser on behalf of the party so failing to appoint an appraiser, and the two appraisers thus appointed (in either manner) shall select and appoint a third appraiser, and in the event that the two appraisers so appointed shall within fifteen (15) days after the naming of the second appraiser, fail to appoint the third appraiser, either party may have such third appraiser selected and appointed by said senior judge, or if he is unavailable or unwilling, by any other judge of said Court, and the three appraisers so appointed shall thereupon proceed to determine the fair market value, as of the first day of the period, of the land demised hereby, exclusive of buildings and improvements thereon for the purpose of determining the rental for the demised premises for said period, and the decision of any two of them shall be final, conclusive and binding upon both parties, subject, however, to vacation or modification in accordance with the provisions of Chapter 188 of the Revised Laws of Hawaii 1955, as the same now exist, or if amended, as they shall exist at the time of such appraisal.... Each of said appraisers shall be a recognized local real estate appraiser and shall also be a member of the Honolulu Realty Board ..."
| {
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Filed 12/21/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
DEAN DRULIAS, H045049
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 1-16-CV-294673)
v.
1ST CENTURY BANCSHARES, INC., et al.,
Defendants and Respondents.
This appeal raises the issue of whether a forum selection bylaw adopted by a
Delaware corporation without stockholder consent is enforceable in California. The trial
court concluded the bylaw was enforceable and, accordingly, stayed this putative
shareholder class action under Code of Civil Procedure section 410.30. 1 On appeal,
plaintiff and appellant Dean Drulias contends the trial court erred in enforcing the forum
selection bylaw, which designates Delaware as the exclusive litigation forum for intra-
corporate disputes. He maintains the bylaw conflicts with California law and,
alternatively, that its enforcement is unreasonable given the manner and timing of its
adoption and defendants’ litigation conduct below. Finding those contentions
unpersuasive, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
1st Century Bancshares, Inc. (1st Century) was a Delaware corporation
headquartered in Los Angeles, California, whose shares were publicly traded on
the NASDAQ. On March 10, 2016, 1st Century and Midland Financial Co. (Midland)
1
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
announced plans to merge. The merger agreement called for Midland to acquire 1st
Century for $11.22 in cash per share, a 36.3 percent premium over 1st Century’s closing
share price on March 10, 2016. The merger was subject to approval by the holders of a
majority of 1st Century’s outstanding shares. A shareholder vote on the proposed merger
agreement was scheduled for June 20, 2016.
1st Century’s certificate of incorporation authorized its board of directors
“to adopt, alter, amend or repeal” the company’s bylaws, “subject to the power of the
stockholders of the Corporation to alter or repeal any Bylaws whether adopted by them or
otherwise.” 1st Century’s board of directors exercised its power to amend the bylaws at
the time it approved the merger agreement. The board added a forum selection bylaw
providing that, absent the corporation’s written consent, Delaware is “the sole and
exclusive forum for” intra-corporate disputes, including any action asserting a breach of
fiduciary duty claim. 2
2
The forum selection bylaw provides, in full: “Unless the Corporation consents in
writing to the selection of an alternative forum, the Court of Chancery of the State of
Delaware (or, if the Court of Chancery does not have jurisdiction, the federal district
court for the District of Delaware) shall be the sole and exclusive forum for (i) any
derivative action or proceeding brought on behalf of the Corporation, (ii) any action
asserting a claim of breach of a fiduciary duty owed by any director, officer, other
employee or stockholder of the Corporation to the Corporation or the Corporation’s
stockholders, (iii) any action asserting a claim arising pursuant to any provision of the
DGCL or the Certificate of Incorporation or these Bylaws or as to which the DGCL
confers jurisdiction on the Court of Chancery of the State of Delaware, (iv) any action to
interpret, apply, enforce or determine the validity of the Certificate of Incorporation or
these Bylaws or (v) any action asserting a claim governed by the internal affairs doctrine.
Any person purchasing or otherwise acquiring or holding any interest in shares of capital
stock of the Corporation shall be deemed to have notice of and consented to the
provisions of this Section 5 of this Article VII of these Bylaws. [¶] If any provision or
provisions of this Section 5 of this Article VII of these Bylaws shall be held to be invalid,
illegal or unenforceable as applied to any person or circumstance for any reason
whatsoever, then, to the fullest extent permitted by law, the validity, legality and
enforceability of such provision(s) in any other circumstance and of the remaining
provisions of this Section 5 of this Article VII of these Bylaws (including, without
limitation, each portion of any sentence of this Section 5 of this Article VII of these
2
Drulias is a California resident and a 1st Century shareholder. On May 3, 2016, he
filed a putative class action on behalf of all holders of 1st Century’s common stock
against 1st Century and its directors (the director defendants). The complaint alleged that
1st Century and the director defendants (collectively, the 1st Century defendants)
breached their fiduciary duties in connection with their approval of the merger
agreement. Pursuant to a stipulation between the parties, the court, on May 24, 2016,
ordered the 1st Century defendants to respond to the complaint on or before July 1, 2016.
On May 25, 2016, Drulias filed an application for a preliminary injunction
enjoining the closing of the shareholder vote on the merger until curative disclosures
were made to shareholders. The 1st Century defendants opposed that application on June
6, 2016. They argued that the forum selection bylaw required Drulias’s claims to be
litigated in Delaware and that Drulias’s claims lacked merit.
On June 9, 2016, the court entered an order deeming the case complex and staying
discovery. That order set a Case Management Conference for September 2, 2016 and
ordered that parties not to “file or serve responsive pleadings, including . . . motions for
change of venue . . . until a date is set at the First Case Management Conference for such
filings and hearings.”
Drulias and the 1st Century defendants reached a proposed settlement, which they
memorialized in a stipulation of settlement dated June 10, 2016. Under the terms of the
proposed settlement agreement, 1st Century agreed to make supplemental disclosures to
the SEC and its shareholders in connection with the merger agreement and to pay
Drulias’s counsel $400,000 in exchange for the settlement and release of the putative
class’s merger-related claims.
Bylaws containing any such provision held to be invalid, illegal or unenforceable that is
not itself held to be invalid, illegal or unenforceable) and the application of such
provision to other persons and circumstances shall not in any way be affected or impaired
thereby.”
3
Shareholders approved the merger on June 20, 2016.
The trial court declined to approve the stipulation of settlement on November 21,
2016. The court reasoned that the settlement was not fair and reasonable to the putative
class because the supplemental disclosures were not plainly material, such that they were
of minimal value to the class and did not justify the release of all claims associated with
the merger.
The parties submitted a joint Case Management Conference statement on
December 22, 2016. In it, they indicated that Drulias intended to file a first amended
complaint and proposed a January 13, 2017 deadline for that filing. The parties also
informed the court that the 1st Century defendants might “file a motion to stay or dismiss
for forum non conveniens” and proposed a February 10, 2017 deadline for such a motion.
The court adopted the parties’ proposed briefing schedule at a January 6, 2017 hearing.
Drulias’s first amended complaint, filed on January 13, 2017, added Sandler
O’Neill & Partners, L.P. (Sandler), the investment bank that advised 1st Century in
connection with the merger, as a defendant. Like the original complaint, the first
amended complaint asserted breach of fiduciary duty claims against the 1st Century
defendants; it also included an aiding and abetting the breach of fiduciary duties claim
against Sandler.
On February 10, 2017, the 1st Century defendants filed a motion to dismiss
pursuant to sections 410.30 and 418.10, arguing that the forum selection bylaw requires
Drulias’s claims be litigated in Delaware. Following briefing and a hearing, the trial
court declined to dismiss the action but stayed it under section 410.30. Drulias timely
appealed from that order.
II. DISCUSSION
A. Background and Governing Law
Unilaterally adopted forum selection bylaws have become increasingly popular in
recent years. (Boilermakers Local 154 Retirement Fund v. Chevron Corp. (Del.
4
Ch. 2013) 73 A.3d 934, 944, fn. omitted (Boilermakers) [“in the last three years, over 250
publicly traded corporations have adopted such provisions”].) In Boilermakers, the
Delaware Court of Chancery ruled that such bylaws are facially valid under Delaware
law. Their enforceability has been litigated across the country, 3 but California state
courts have yet to consider the issue.
The parties agree that Delaware law governs Drulias’s breach of fiduciary duty
claims under the internal affairs doctrine, which “generally requires application of the
law of the state of incorporation to any dispute regarding relations between the
corporation and its shareholders or officers and directors.” (The Police Retirement
System of St. Louis v. Page (2018) 22 Cal.App.5th 336, 340.) They also agree that the
issue of the forum selection bylaw’s validity is governed by Delaware law.
(Boilermakers, supra, 73 A.3d at p. 938 [“a foreign court that respects the internal affairs
doctrine, as it must, when faced with a motion to enforce the bylaws will consider, as a
first order issue, whether the bylaws are valid under the ‘chartering jurisdiction’s
domestic law,’ ” fns. omitted].) And Drulias does not contest the bylaw’s validity under
Delaware law. At issue is whether California law renders the otherwise valid bylaw
unenforceable in this state.
B. Legal Principles
The proper procedure for enforcing a contractual forum selection clause in
California is a motion pursuant to section 410.30. 4 (Berg v. MTC Electronics
3
See Roberts v. TriQuint Semiconductor, Inc. (2015) 358 Or. 413 (Roberts)
[holding forum selection bylaw enforceable under Oregon law]; North v.
McNamara (S.D. Ohio 2014) 47 F.Supp.3d 635 (North) [holding forum selection bylaw
enforceable under federal law]; Butorin on behalf of KBR Inc. v. Blount (S.D. Tex. 2015)
106 F.Supp.3d 833 [same].
4
Section 410.30, subdivision (a), provides: “When a court upon motion of a party
or its own motion finds that in the interest of substantial justice an action should be heard
in a forum outside this state, the court shall stay or dismiss the action in whole or in part
on any conditions that may be just.”
5
Technologies (1998) 61 Cal.App.4th 349, 358 (Berg).) That provision codifies the forum
non conveniens doctrine, under which a trial court has discretion to decline to exercise its
jurisdiction over a cause of action that it believes may be more appropriately and justly
tried elsewhere. (Bushansky v. Soon-Shiong (2018) 23 Cal.App.5th 1000, 1005, fn. 2;
see Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.) Where a section 410.30 motion is
“based on a forum selection clause[,] . . . factors that apply generally to a forum non
conveniens motion do not control . . . .” (Berg, supra, at p. 358.) Instead, “the test is
simply whether application of the clause is unfair or unreasonable[; if not,] the clause is
usually given effect. Claims that the previously chosen forum is unfair or inconvenient
are generally rejected.” (Ibid.)
Ordinarily, the party seeking to avoid enforcement of a forum selection clause
bears the “burden of establishing that [its] enforcement . . . would be unreasonable.”
(Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 496 (Smith,
Valentino); Global Packaging, Inc. v. Superior Court (2011) 196 Cal.App.4th 1623, 1633
[“the party opposing its enforcement bears the ‘substantial’ burden of proving why it
should not be enforced”].) “That burden, however, is reversed when the claims at issue
are based on unwaivable rights created by California statutes. In that situation, the party
seeking to enforce the forum selection clause bears the burden to show litigating the
claims in the contractually-designated forum ‘will not diminish in any way the
substantive rights afforded . . . under California law.’ ” (Verdugo v. Alliantgroup, L.P.
(2015) 237 Cal.App.4th 141, 147 (Verdugo).) Drulias’s breach of fiduciary duty claims
are not based on unwaivable rights created by California statutes. Accordingly, the
burden is his.
C. Standards of Review
This appeal requires us to resolve the parties’ conflicting constructions
of Corporations Code section 2116. We review questions of statutory interpretation de
6
novo. (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4
Cal.5th 1032, 1041.)
This appeal also requires us to review the trial court’s decision to enforce the
forum selection bylaw and stay the action under section 410.30. In Lifeco Services Corp.
v. Superior Court (1990) 222 Cal.App.3d 331, 334 (Lifeco), this court applied the
substantial evidence standard of review to the trial court’s finding that enforcement of a
forum selection clause would be unreasonable. Lifeco selected the substantial evidence
standard without explanation or citation to legal authority. The Third Appellate District
agreed with that standard of review in Cal-State Business Products & Services, Inc. v.
Ricoh (1993) 12 Cal.App.4th 1666, 1680-1681 (Cal-State), reasoning that courts lack
discretion to enforce a forum selection clause where the requirements for invalidating a
binding contract are present. By contrast, our colleagues in the First, Second, and Fourth
Appellate Districts review a trial court’s decision to enforce or not enforce a forum
selection clause for abuse of discretion. (America Online, Inc. v. Superior Court (2001)
90 Cal. App. 4th 1, 7-9 (America Online); Schlessinger v. Holland America (2004) 120
Cal.App.4th 552, 557; Verdugo, supra, 237 Cal. App. 4th at p. 148.) Notably, in Smith,
Valentino, our Supreme Court concluded “that the trial court acted within its discretion”
when it stayed the proceeding based on a contractual forum selection clause, suggesting
that the proper standard of review is abuse of discretion and casting doubt on this court’s
selection of the substantial evidence standard in Lifeco. (Smith, Valentino, supra, 17
Cal.3d at p. 493.)
At least one court reviewing a decision under section 410.30 combined the
standards, reviewing the trial court’s order for abuse of judicial discretion, which it
defined as an order unsupported by substantial evidence (Bechtel Corp. v. Industrial
Indem. Co. (1978) 86 Cal.App.3d 45, 47-48 (Bechtel).) Bechtel is not alone in
recognizing that the “two standards bear a reciprocal relationship” in some cases.
(Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813,
7
831 (Department of Parks & Recreation); In re Robert L. (1993) 21 Cal.App.4th 1057,
1065-1066 [noting that “it is difficult to distinguish between application of the
sufficiency of the evidence standard and the abuse of discretion standard” and that “in
some cases the courts have applied both standards”].)
“The practical differences between the [substantial evidence and abuse of
discretion] standards of review are not significant. ‘[E]valuating the factual basis for an
exercise of discretion is similar to analyzing the sufficiency of the evidence for the
ruling.’ ” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) And “[b]oth of these
standards of review entail considerable deference to the fact-finding tribunal.”
(Department of Parks & Recreation, supra, 233 Cal.App.3d at p. 831.) We need not
resolve which standard of review applies because the trial court’s order must be sustained
under either.
D. The Forum Selection Bylaw Does Not Conflict With California Law or
Public Policy
Drulias argues the forum selection bylaw is not enforceable under California law
because it conflicts with section 2116 of the Corporations Code. That provision states:
“The directors of a foreign corporation transacting intrastate business are liable to the
corporation, its shareholders, creditors, receiver, liquidator or trustee in bankruptcy for
the making of unauthorized dividends, purchase of shares or distribution of assets or false
certificates, reports or public notices or other violation of official duty according to any
applicable laws of the state or place of incorporation or organization, whether committed
or done in this state or elsewhere. Such liability may be enforced in the courts of this
state.” Drulias construes the second sentence of Corporations Code section 2116—“Such
liability may be enforced in the courts of this state”—as conferring on California
shareholders a right to sue the directors of a foreign corporation in California. Drulias
argues the director-adopted forum selection bylaw should be held unenforceable because
its enforcement would deprive him of his statutory “right” to a California forum. For that
8
argument, he relies on the rule that “a forum selection clause will not be enforced if to do
so would bring about a result contrary to the public policy of this state.” (Intershop
Communications AG v. Superior Court (2002) 104 Cal.App.4th 191, 200; see (America
Online, supra, 90 Cal.App.4th at p. 15 [refusing to enforce forum selection and related
choice of law provisions where their enforcement “would necessitate a waiver of the
statutory remedies of the CLRA, in violation of that law’s antiwaiver provision (Civ.
Code, § 1751) and California public policy”]; (Verdugo, supra, 237 Cal.App.4th at p. 157
[refusing to enforce forum selection and choice of law clause where party seeking
enforcement failed to show that enforcement would not diminish plaintiff’s unwaivable
statutory rights under the Labor Code]). For the following reasons, Drulias’s
construction of Corporations Code section 2116 is unpersuasive.
Corporations Code section 2116 codifies the internal affairs doctrine, which we
discussed briefly above. (Vaughn v. LJ Internat., Inc. (2009) 174 Cal.App.4th 213, 222
(Vaughn).) That doctrine “ ‘is a conflict of laws principle which recognizes that only one
State should have the authority to regulate a corporation’s internal affairs—matters
peculiar to the relationships among or between the corporation and its current officers,
directors, and shareholders—because otherwise a corporation could be faced with
conflicting demands.’ [Citations.] ‘States normally look to the State of a business’
incorporation for the law that provides the relevant corporate governance general
standard of care.’ [Citation.]” (State Farm Mutual Automobile Ins. Co. v. Superior
Court (2003) 114 Cal.App.4th 434, 442.) “Earlier cases took the strict view that a court
would not entertain an action involving the internal affairs of a foreign corporation.”
(9 Witkin, Summary of Cal. Law (11th ed. 2018) Corporations, § 252, p. 1041.) One
such case is Southern Sierras Power Co. v. Railroad Com. (1928) 205 Cal. 479, 483, in
which our Supreme Court explained that “courts will refuse to exercise visitatorial
powers over foreign corporations, or interfere with the management of their strictly
internal affairs. [Citations.] Such matters must be settled by the courts of the state
9
creating the corporation.” However, under the modern version of the internal affairs
doctrine, “a court will exercise jurisdiction [over an action involving the internal affairs
of a foreign corporation] unless it is an inappropriate or inconvenient forum for the trial
of the action.” (9 Witkin, Summary of Cal. Law, supra, Corporations, § 252, p. 1041;
see 2 Witkin, Cal. Proc. (5th ed. 2008) Jurisdiction § 388, pp. 1031-1032 [“The modern
view . . . appears to be that the subject matter (internal affairs) is not in itself a sufficient
reason for refusing jurisdiction”].)
As the parties acknowledge, the first sentence of Corporations Code section 2116
codifies the internal affairs doctrine by requiring the application of the law of the state of
incorporation in certain actions against directors of a foreign corporation involving the
corporation’s internal affairs. (As noted, the parties agree that portion of the provision
requires the application of Delaware law to Drulias’s claims, wherever they are
adjudicated.) But the provision’s second sentence also codifies an aspect of the internal
affairs doctrine—namely, the modern version “of the common law doctrine, whereby a
court will entertain an action involving the internal affairs of a foreign corporation.”
(Vaughn, supra, 174 Cal.App.4th at p. 223 [“section 2116 codifies the modern view of
the common law doctrine . . .”].) That is, the portion of Corporations Code section 2116
on which Drulias relies merely codifies the modern view of the internal affairs doctrine
under which courts will not decline to exercise jurisdiction over cases merely because
they involve the internal affairs of a foreign corporation. However, nothing in the
provision requires a California court to exercise jurisdiction over such a case where it
finds “that in the interest of substantial justice [the] action should be heard in” another
forum. (§ 410.30, subd. (a).) Put differently, Corporations Code section 2116 does not
deprive a court of the discretion to decline to exercise its jurisdiction over an action
involving the internal affairs of a foreign corporation where that action would be more
appropriately and justly tried elsewhere. (Rest.2d Conf. of Laws § 313 [under the
internal affairs doctrine, “[a] court will exercise jurisdiction over an action involving the
10
internal affairs of a foreign corporation unless it is an inappropriate or an inconvenient
forum for the trial of the action,” italics added].)
Drulias’s contrary view that Corporations Code section 2116 “was enacted to
protect California shareholders from misconduct by directors of foreign corporations . . .
by giving them the right to sue such directors in California” finds no support in case law
or other binding authority. In short, there is no basis for concluding that Corporations
Code section 2116 creates substantive rights. Accordingly, Drulias has not shown that
enforcement of the forum selection bylaw will impair his statutory rights or otherwise
violate California public policy.
E. The Trial Court Did Not Err in Concluding That Enforcement of the
Forum Selection Bylaw is Reasonable in This Case
Drulias contends the trial court erred in concluding that enforcement of the forum
selection bylaw is fair and reasonable in the context of this case for three reasons: (1) the
manner in which the bylaw was adopted—unilaterally by the board without notice to
shareholders—renders its enforcement unreasonable; (2) the timing of the adoption of the
forum selection bylaw—simultaneous with the adoption of the merger agreement—
makes its application to his complaint unreasonable; and (3) the 1st Century defendants’
decision to seek entry of a final judgment in California makes their later decision to
enforce the forum selection bylaw unreasonable. For the reasons below, the trial court
did not err in concluding that Drulias failed to carry his burden of establishing that
enforcement of the forum selection bylaw is unreasonable.
First, Drulias maintains forum selection clauses are enforceable in California only
where they are “freely and voluntarily” negotiated or, at the very least, the plaintiff had
the opportunity to walk away from negotiations rather than agree to the provision. He
says that, accordingly, we should decline to enforce the forum selection bylaw, given the
board adopted it without shareholder approval. In the context of forum selection clauses,
enforcement is considered unreasonable where “the forum selected would be unavailable
11
or unable to accomplish substantial justice” or there is no “rational basis” for the selected
forum. (CQL Original Products, Inc. v. National Hockey League Players’ Assn. (1995)
39 Cal.App.4th 1347, 1354 (CQL).) Drulias does not assert any of those conventional
grounds for denying enforcement. Indeed, when Drulias’s “reasonableness”
characterization is stripped away, his first argument is simply that the bylaw is invalid
under California law. But, of course, the validity inquiry is governed by Delaware law.
In any event, Drulias’s argument fails, as neither California nor Delaware law requires
forum selection clauses be freely negotiated to be enforceable.
A forum selection clause need not be subject to negotiation to be enforceable.
(Net2Phone, Inc. v. Superior Court (2003) 109 Cal.App.4th 583, 588-589 [applying
California law]; Hornberger Mgmnt. Co. v. Haws & Tingle General Contractors,
Inc. (Del. Super. Ct. 2000) 768 A.2d 983, 987, fn. omitted [applying Delaware law and
holding that “ ‘[t]he mere absence of negotiation over a forum selection clause does not
make the forum selection clause unenforceable.’ ”]; Carnival Cruise Lines, Inc. v.
Shute (1991) 499 U.S. 585, 593 (Carnival Cruise) superseded by statute on other grounds
by 46 U.S.C. § 30509 [applying federal law and rejecting lower court’s conclusion “that a
nonnegotiated forum-selection clause in a form ticket contract is never enforceable
simply because it is not the subject of bargaining”].) Rather, a forum selection clause
contained in a contract of adhesion, and thus not the subject of bargaining, is
“enforceable absent a showing that it was outside the reasonable expectations of the
weaker or adhering party or that enforcement would be unduly oppressive or
unconscionable.” (Furda v. Superior Court (1984) 161 Cal.App.3d 418, 426; Carnival
Cruise, supra, at p. 595 [“forum-selection clauses contained in form passage contracts are
subject to judicial scrutiny for fundamental fairness”].)
The forum selection bylaw is entirely consistent with Drulias’s reasonable
expectations at the time he chose to purchase stock in 1st Century. At that time, Drulias
knew or should have known that 1st Century was a Delaware corporation and that,
12
consistent with Delaware law 5, its certificate of incorporation empowered its directors to
amend the corporate bylaws unilaterally, subject to subsequent shareholder repeal.
(See Roberts, supra, 358 Or. at p. 428 [“When purchasing stock in a Delaware
corporation, shareholders buy into a legal framework that allows corporate directors to
unilaterally amend the corporation’s bylaws and gives the shareholders the right to repeal
those bylaws.”]; North, supra, 47 F.Supp.3d at pp. 642, fn. omitted [“shareholders . . .
consented to the Delaware corporate framework by buying shares in a Delaware
corporation and agreeing to the certificate of incorporation that allowed the board to
unilaterally adopt bylaws”].) Given that knowledge, Drulias consented to the board’s
unilateral adoption of corporate bylaws by purchasing stock. (Boilermakers, supra, 73
A.3d at p. 956 [“stockholders have assented to a contractual framework established by
[Delaware law] and the certificates of incorporation that explicitly recognizes that
stockholders will be bound by bylaws adopted unilaterally by their boards. Under that
clear contractual framework, the stockholders assent to not having to assent to board-
adopted bylaws”], fns. omitted.) And Drulias reasonably should have expected that 1st
Century would prefer to litigate in Delaware. (See Cal-State, supra, 12 Cal.App.4th at
p. 1681-1682 [forum selection clause requiring litigation in New York was within
plaintiff’s reasonable expectations where defendant was domiciled in New Jersey]; CQL,
supra, 39 Cal.App.4th at p. 1355 [forum selection clause requiring litigation in Ontario,
Canada held to be “completely consistent with the reasonable expectations of [plaintiff]
given that [defendant] is an Ontario, Canada domiciliary . . .”].) Thus, the reasonable
expectation a stockholder like Drulias should have is that 1st Century’s board may adopt
a forum selection bylaw designating Delaware as the exclusive forum for intra-corporate
disputes. Drulias does not show that enforcement of the bylaw would be unduly
5
Delaware law “allows the corporation, through the certificate of incorporation, to
grant the directors the power to adopt and amend the bylaws unilaterally.”
(Boilermakers, supra, 73 A.3d at p. 939, fn. omitted.)
13
oppressive or unconscionable. To the contrary, we agree with the trial court’s assessment
that there is “no unfairness in a requirement that claims against a Delaware corporation
under Delaware law be brought in a Delaware court.” Accordingly, the trial court did not
err in concluding that enforcement of the forum selection bylaw was reasonable despite
its unilateral adoption by the director defendants. 6
Second, Drulias contends that a unilaterally adopted forum selection bylaw cannot
reasonably be applied “retroactively to litigation arising out of conduct that occurred
before shareholders had notice of the bylaw and an opportunity to walk away.” His
opening brief offers no legal support for that position beyond his argument that assent to
a forum selection provision is required. Other courts have concluded that there is nothing
inherently unreasonable about enforcing a forum selection bylaw adopted after the
alleged wrongdoing. (North, supra, 47 F.Supp.3d at p. 644 [“forum-selection bylaw does
not become unenforceable simply because it was adopted after the purported
wrongdoing.”]; City of Providence v. First Citizens BancShares Inc. (Del. Ch. 2014) 99
A.3d 229, 241 (City of Providence) [rejecting argument that forum selection bylaw could
not be applied to claims that arose before it was adopted]; In re: CytRx Corp. Stockholder
Derivative Litigation (C.D. Cal. 2015) 2015 U.S. Dist. LEXIS 176966 at *16 (In re:
CytRx Corp.) [“the timing of a forum-selection clause’s adoption does not dictate the
clause’s validity”].) We agree. Valid reasons exist for a corporate board to adopt a
forum selection bylaw in conjunction with approving a merger agreement, as occurred
here. “Today, the public announcement of virtually every transaction involving the
acquisition of a public corporation provokes a flurry of class action lawsuits alleging that
6
In Galaviz v. Berg (N.D. Cal. 2011) 763 F. Supp. 2d 1170, a federal district court
held a unilaterally adopted forum section bylaw to be unenforceable under federal
common law. That case—decided, as it was, before Boilermakers and without reference
to “the contractual framework established by [Delaware law] for Delaware corporations
and their stockholders”—is unpersuasive. (Boilermakers, supra, 73 A.3d at p. 956,
fn. omitted.)
14
the target’s directors breached their fiduciary duties by agreeing to sell the corporation
for an unfair price.” (In re Trulia, Inc. Stockholder Litigation (Del. Ch. 2016) 129 A.3d
884, 891.) Forum selection bylaws have the effect of consolidating such litigation into a
single forum, thereby reducing litigation expenses and avoiding duplication of effort (not
to mention promoting efficient use of judicial resources), which is beneficial to
corporations and their shareholders alike. (In re: CytRx Corp., supra, 2015 U.S. Dist.
LEXIS 176966 at *16; North, supra, 47 F.Supp.3d at p. 644; Boilermakers, supra, 73
A.3d at p. 952 [“the forum selection bylaws are designed to bring order to what the
boards . . . say they perceive to be a chaotic filing of duplicative and inefficient derivative
and corporate suits against the directors and the corporations”].) Drulias does not argue,
let alone demonstrate, that the bylaw at issue was adopted for any reason other than to
consolidate merger-related litigation into a single forum, where it could be resolved
efficiently and cost-effectively.
For the first time on reply, Drulias analogizes to California cases involving
unilaterally adopted arbitration clauses to argue that unilaterally adopted forum selection
bylaws should not be applied retroactively to accrued or known claims. “Points raised in
the reply brief for the first time will not be considered, unless good reason is shown for
failure to present them before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794,
fn. 3.) Because Drulias has not shown good cause for raising this argument belatedly, we
will not consider it. 7
7
Even if we were to consider the new argument, we would reject it. The line of
cases on which Drulias relies holds that while “[a]n arbitration agreement between an
employer and an employee may reserve to the employer the unilateral right to modify the
agreement,” the covenant of good faith and fair dealing implied in every contract bars “an
employer [from making] unilateral changes to an arbitration agreement that apply
retroactively to ‘accrued or known’ claims because doing so would unreasonably
interfere with the employee’s expectations regarding how the agreement applied to those
claims.” (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 61.)
Drulias effectively asks us to decline to enforce the bylaw because it would, he says, be
invalid under California contract law. But Delaware law governs the validity of the
15
Finally, Drulias argues it would be unreasonable to enforce the forum selection
provision because the 1st Century defendants “chose to invoke the benefits and
protections of California law and a California court by seeking the entry of a final
judgment” here. For that contention, he relies on Trident Labs, Inc. v. Merrill Lynch
Commercial Finance Corp. (2011) 200 Cal.App.4th 147, 157 (Trident Labs), which held
that the defendant’s extensive litigation in California made enforcement of the forum
selection clause, calling for litigation in Illinois, unreasonable as a matter of law.
In Trident Labs, the plaintiff filed suit in California on October 31, 2008. (Trident
Labs, supra, 200 Cal.App.4th at p. 151.) The defendant moved to dismiss based on the
forum selection clause in June 2010. (Id. at p. 152.) In the intervening 19 months, the
defendant had removed the case to federal court; after it was remanded, filed an answer
and a counterclaim; engaged in “substantial discovery,” including filing a motion to
compel the plaintiff to produce additional documents and for an award of sanctions
against the plaintiff; moved for judgment on the pleadings; and demurred to the
plaintiff’s first amended complaint. (Id. at p. 152.) The court of appeal held “that when a
party, under the terms of a forum selection clause, has the option to litigate in more than
one forum, that party cannot choose to extensively litigate in the original forum by filing
a cross-complaint, conducting substantial discovery, and filing motions seeking relief
from the forum court, and then decide to enforce the right it otherwise would have had to
compel the other party to litigate in a different forum. Such circumstances make
enforcement of the forum selection clause unreasonable as a matter of law.” (Id. at
p. 157.)
Here, nine months passed between the filing of the complaint and the
section 410.30 motion. That delay was attributable, not to the 1st Century defendants,
but to the parties’ attempt to settle, the court’s scheduling orders, and Drulias’s decision
bylaw. And in City of Providence a Delaware court rejected the very retroactivity
argument Drulias now asserts.
16
to file an amended complaint. Unlike the defendant in Trident Labs, the 1st Century
defendants did not file a cross-complaint or seek discovery from plaintiff.8 Nor did they
file multiple motions seeking relief from the court; aside from their motion to dismiss,
they filed a single motion seeking relief—namely, approval of the settlement agreement.
Given this state’s strong public policy in favor of pretrial settlements (Fisher v. Superior
Court (1980) 103 Cal.App.3d 434, 440), the trial court did not err in concluding that
defendants’ settlement efforts did not render enforcement of the forum selection bylaw
unreasonable.
III. DISPOSITION
The order staying the action is affirmed. Respondents shall recover their costs on
appeal.
8
The 1st Century defendants did produce certain documents to Drulias in late
May 2016, including board meeting minutes, Sandler’s fairness opinion and related
presentation to the board, and indications of interest received from Midland. Defendants
also permitted Eric George, the Chairman of the Special Committee of 1st Century’s
Board formed to evaluate the Merger Agreement and alternatives thereto, and Peter Buck,
a senior banker at Sandler who advised 1st Century on the Merger Agreement, to be
deposed in connection with the settlement agreement.
17
_________________________________
ELIA, ACTING P. J.
WE CONCUR:
_______________________________
BAMATTRE-MANOUKIAN, J.
_______________________________
MIHARA, J.
Drulias v. 1st Century Bancshares, Inc. et al.
H045049
Trial Court: Santa Clara County Superior Court
Superior Court No.: 1-16-CV-294673
Trial Judges: Honorable Peter Kirwan
Honorable Brian C. Walsh
Counsel for Plaintiff and Appellant: Kirk Bartlett Hulett
DEAN DRULIAS Hulett Harper Stewart
John F. Keating Jr.
The Brualdi Law Firm
Counsel for Defendants and Respondents: Adam Seth Paris
1ST CENTURY BANCSHARES, INC et al., Jackson S. Trugman
Zac A. Tafoya
Laura Kabler Oswell
Sullivan & Cromwell
Anna-Rose Mathieson
California Appellate Law Group
William Savitt
Anitha Reddy
Wachtell, Lipton, Rosen & Katz
Drulias v. 1st Century Bancshares, Inc. et al.
H045049
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FILED
NOT FOR PUBLICATION APR 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHERYL SILVER, No. 12-56221
Plaintiff-counter-defendant - D.C. No. 8:11-cv-01127-AG-RNB
Appellant,
v. MEMORANDUM*
CORINTHIAN COLLEGES, INC., a
Delaware corporation,
Defendant-counter-claimant -
Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted April 9, 2014**
Pasadena, California
Before: FERNANDEZ, N.R. SMITH, and MURGUIA, Circuit Judges.
Sheryl Silver sued her former employer, Corinthian Colleges, Inc.
(“Corinthian”), for (1) interference with her putative Family Medical Leave Act
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“FMLA”) rights, (2) wrongful termination in violation of public policy, and (3)
failure to pay all wages owed upon termination under California Labor Code § 201.
The district court granted summary judgment on all claims. Reviewing de novo,
Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1137 (9th Cir.
2009), we affirm.
The district court properly granted summary judgment on Silver’s claim that
Corinthian had interfered with her purported FMLA rights by failing to notify her
of such rights. An “employer is liable [under 29 U.S.C. § 2617] only for
compensation and benefits lost ‘by reason of the violation,’ for other monetary
losses sustained ‘as a direct result of the violation,’ and for ‘appropriate’ equitable
relief . . . .” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)
(citations omitted); see also 29 U.S.C. § 2617(a)(1). Silver presented no evidence
that she lost compensation or benefits, or otherwise suffered monetary losses, due
to Corinthian’s failure to notify her. While Silver did present evidence of her
claimed equitable relief in the form of front pay, see Traxler v. Multnomah Cnty.,
596 F.3d 1007, 1011 (9th Cir. 2010), the FMLA does not provide a remedy for an
injury resulting solely from termination for misconduct. See § 2614(a)(3)(B)
(“Nothing in [the FMLA] shall be construed to entitle any restored employee to . . .
any right, benefit, or position of employment other than any right, benefit, or
2
position to which the employee would have been entitled had the employee not
taken the leave.”); 29 C.F.R. § 825.216(a) (“An employee has no greater right to
reinstatement or to other benefits and conditions of employment than if the
employee had been continuously employed during the FMLA leave period.”). In
the district court, Silver did not dispute that Corinthian terminated her employment
solely due to her misconduct, barring any argument to the contrary on appeal. See
United States v. Kitsap Physicians Serv., 314 F.3d 995, 999 (9th Cir. 2002).
Silver waived any other theories of how Corinthian interfered with her
alleged FMLA rights by failing to raise them in the district court. See Baccei v.
United States, 632 F.3d 1140, 1149 (9th Cir. 2011) (“[W]e will not reframe an
appeal to review what would be in effect a different case than the one decided by
the district court.”).
Silver’s claim for wrongful termination in violation of the public policy
embodied in the FMLA fails, because she did not allege a causal nexus between
her termination and Corinthian’s failure to notify her of her potential FMLA rights.
See Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 749 (9th
Cir. 2011) (citing Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1034 (Cal.
1994)).
3
Finally, Silver waived her California Labor Code claim by expressly
abandoning it in the district court. See United States v. Kitsap Physicians Serv.,
314 F.3d 995, 999 (9th Cir. 2002).
Corinthian’s motion for judicial notice is GRANTED.
The judgment of the district court is AFFIRMED.
4
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LEE WESSON HOPE, )
)
Appellant, )
)
v. ) Case No. 2D18-169
)
ADVANTAGE TRIM & LUMBER OF )
FLORIDA, INC., )
)
Appellee. )
___________________________________)
Opinion filed January 30, 2019.
Appeal from the Circuit Court for Sarasota
County; Andrea McHugh, Judge.
Philip N. Hammersley, and Eric M. Hanson
of Norton, Hammersley, Lopez, & Skokos,
P.A., Sarasota, for Appellant.
Scott K. Petersen, Sarasota, for Appellee.
PER CURIAM.
Affirmed.
KHOUZAM, MORRIS, and BADALAMENTI, JJ., Concur.
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN MICHAEL DOCKET NUMBER
NOPPENBERGER, PH-0752-11-0216-X-1
Appellant,
v.
DATE: August 12, 2014
UNITED STATES POSTAL SERVICE,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven Michael Noppenberger, Westminster, Maryland, pro se.
Norma B. Hutcheson, Esquire, Landover, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The administrative judge issued a recommended decision that the Board
find, under the Board’s regulations in effect at that time, the agency in partial
compliance with the June 21, 2011 initial decision, and referred the matter to 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
Board for consideration. 2 See 5 C.F.R. § 1201.183 (Jan. 1, 2012). For the
reasons discussed below, we find the agency in compliance and DISMISS the
petition for enforcement. This is the final decision of the Merit Systems
Protection Board in this compliance proceeding. Title 5 of the Code of Federal
Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE
¶2 On June 21, 2011, the administrative judge issued an initial decision
ordering the agency to cancel the appellant’s removal and pay him appropriate
back pay, interest, and benefits. See MSPB Docket No. PH-0752-11-0216-I-1,
Initial Appeal File, Tab 28, Initial Decision (ID) at 1-2. The initial decision
became final on July 26, 2011, after neither party petitioned for review. See ID.
¶3 On September 27, 2011, the appellant filed a petition for enforcement, and
the administrative judge found the agency in partial compliance with the initial
decision. The administrative judge found that the agency had paid the
appropriate amount of back pay, with interest. MSPB Docket No. PH-0752-0216-
C-1, Compliance File, Tab 14, Compliance Initial Decision (CID) at 6. The
administrative judge ordered the agency to process the appellant’s election of
thrift savings plan (TSP) coverage during the back pay period, including his 1%
and appropriate matching contributions; “take all necessary steps” within its
power to reactivate repayment of the loan he had taken from his TSP account
prior to the canceled removal; and process his election of federal employee health
benefits (FEHB) coverage, including dental and vision coverage, and correct any
duplicate billing for premiums. CID at 8.
¶4 On December 22, 2011, the agency submitted evidence that it had made the
required 1% deposit and matching contributions to the appellant’s TSP account.
2
Except as otherwise noted in this decision, we have applied the Board’s regulations
that became effective November 13, 2012. We note, however, that the petition for
enforcement in this case was filed before that date. The revisions to 5 C.F.R.
§ 1201.183 do not affect our consideration of the merits of this compliance proceeding.
3
Compliance Referral File (CRF), Tab 5 at 5, 12-13. The agency also stated that it
had restored the appellant’s dental and vision insurance and had made appropriate
deductions. Id. at 6, 14-15. Finally, the agency explained that the appellant had
taken out a loan against his TSP account prior to his canceled removal and was
required to repay it through biweekly TSP contribution deductions from his
salary; but that he defaulted on the repayment when he was placed in non-pay
status and failed to notify the Federal Retirement Thrift Investment Board
(FRTIB) of his non-pay status. Id. at 6. The FRTIB therefore deemed his loan to
be a taxable distribution, which carries certain penalties and does not permit the
employee to repay the loan through salary deductions. Id. at 6, 18. The agency
stated that it had no involvement in the appellant’s attempts to reactivate
repayment of his loan and that such attempts were exclusively between the
appellant, the FRTIB, and the Internal Revenue Service. Id. at 7.
¶5 On December 22, 2011, the appellant responded. 3 He acknowledged that
the agency had restored his dental and vision benefits but stated that BENEFEDS,
which administers federal employee health benefits, informed him that his
benefits had been activated as though he were a new employee, and therefore he
might have a gap in coverage. CRF, Tab 6 at 4. He provided two letters from
BENEFEDS that concerned premiums owed but that did not address his coverage.
Id. at 7-8. The appellant agreed that the agency had probably deposited the
required funds in his TSP account. Id. at 4. Finally, the appellant contended that
the agency was not in compliance with respect to his TSP loan because upon his
return to work in July 2011 (following the initial decision in this appeal), “the
TSP loan was taken out till the Agency took an action that notified the TSP that
he was in a non pay status and they were successful in ending his employment.”
3
The appellant also filed a response on December 9, 2011, that solely concerned issues
raised in his second petition for enforcement, MSPB Docket No. PH-0752-11-0216-C-2.
See CRF, Tab 3. His second petition for enforcement was separately adjudicated and
denied on January 30, 2012. Accordingly, we have not considered his December 9,
2011 response.
4
Id. Although his statements are unclear, it appears the appellant contends that the
agency deliberately obstructed his efforts to reactivate repayment of his loan
because it did not wish to acknowledge that it “wrongfully terminated” him.
¶6 Due to the length of time that had passed between the above submissions
and the Board’s consideration of them, on June 2, 2014, the Board issued an order
requiring both parties to submit statements updating their positions. CRF, Tab 9
at 1. The agency stated that its December 22, 2011 submission was accurate with
respect to resolving issues from the instant compliance proceeding. CRF, Tab 11
at 4. The agency also noted that it had subsequently removed the appellant and
that his petition for review was pending before the Board. Id. The appellant did
not respond either to the Board’s order or to the agency’s submission.
¶7 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325,
¶ 5 (2010).
¶8 The agency asserted that it is in compliance, as explained above. The
appellant originally objected to the agency’s evidence with regard to his FEHB
benefits and the reactivation of his TSP loan repayment. However, when the
agency reiterated its compliance statements, the appellant failed to respond. Nor
did he respond to the Board’s express order instructing him to state whether his
arguments remain the same since his December 22, 2011 filing, although the
Board informed him that failure to respond might cause the Board to assume he
5
was satisfied and dismiss his petition for enforcement. See CRF, Tab 9 at 2.
Accordingly, in view of the agency’s detailed explanations and the appellant’s
failure to respond, we assume he is satisfied, find the agency in compliance, and
dismiss the petition for enforcement.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
6
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
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705 N.W.2d 815 (2005)
2005 ND 191
STATE of North Dakota, Plaintiff and Appellee
v.
Virgil Scott LAIB, Defendant and Appellant.
No. 20050099.
Supreme Court of North Dakota.
November 9, 2005.
*816 Walter M. Lipp, State's Attorney, McClusky, N.D., for plaintiff and appellee; submitted on brief.
Kent M. Morrow, Bismarck, N.D., for defendant and appellant.
SANDSTROM, Justice.
[¶ 1] At a jury trial, Virgil Laib was convicted of terrorizing under N.D.C.C. § 12.1-17-04. He appeals, arguing the evidence was insufficient to convict him. Specifically, he argues that because he made no verbal threats, his conduct the night of the alleged offense does not meet the threat element of terrorizing. Holding that a threat does not have to be made verbally to be a terroristic threat under N.D.C.C. § 12.1-17-04, we affirm the criminal judgment and commitment.
I
[¶ 2] One night in February 2004, Laib and his wife were involved in a domestic dispute. The exact circumstances are themselves disputed. According to Laib's testimony at trial, his wife struck one of their children with a spoon earlier that evening, and he and his wife argued over the alleged abuse. Laib testified that he then discovered $1,000 was missing from the family safe, and when he asked his wife about the missing money, she said she had purchased $500 worth of medicine. According to Laib's testimony, their argument continued until he led his wife by the arm toward the door and out of the house. Laib testified that she came back into the house and slept on the couch.
[¶ 3] Laib's wife disputed Laib's account of the facts. Laib's wife testified that Laib wanted to have sex, and that after she refused, he became angry and a fight ensued. She testified Laib grabbed her around the neck with his arms, choking her, and then he stopped choking her, pushed her into a wall, and forced her outside of the house. She testified that she was dressed only in a nightshirt. She testified that after a couple of minutes, she reentered the house and slept on the family's living room floor because one of the children was sleeping on the couch. According to her testimony, Laib was standing inside at the top of the stairs, watching her when she reentered the house, and he periodically watched her throughout the night.
[¶ 4] Law enforcement authorities were not informed of this incident until June 2004, when Laib's wife sought a protection order against him. Laib was *817 charged with terrorizing. A jury found him guilty of the charge.[1] He was sentenced to three years imprisonment with all but 60 days suspended.
[¶ 5] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b), and this Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.
II
[¶ 6] The standard of review for an appeal based on the sufficiency of the evidence is deferential to the fact-finder's verdict:
In reviewing the sufficiency of the evidence, we view the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the verdict to decide whether a reasonable fact finder could have found the defendant guilty beyond a reasonable doubt. The tasks of weighing the evidence and judging the credibility of the witnesses belong to the jury. On appeal, we assume the jury believed the evidence which supports the verdict and disbelieved any contrary evidence.
State v. Carlson, 1997 ND 7, ¶ 51, 559 N.W.2d 802 (citations omitted). Laib moved for an acquittal, thus preserving the issue for appeal. N.D.R.Crim.P. 29.
III
[¶ 7] Laib argues the evidence is insufficient to support a conviction for terrorizing because there is no evidence that he verbally threatened his wife, which he contends is required by the threat element of the offense. The State argues that the threat contemplated by N.D.C.C. § 12.1-17-04 does not need to be verbal; it requires only that a threat be communicated by speech, writing, or act. We hold that a threat does not have to be made verbally to be a terroristic threat under N.D.C.C. § 12.1-17-04.
[¶ 8] Section 12.1-17-04, N.D.C.C., provides, in part:
A person is guilty of a class C felony if, with intent to place another human being in fear for that human being's or another's safety or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious disruption or public inconvenience, or in reckless disregard of the risk of causing such terror, disruption, or inconvenience, the person:
1. Threatens to commit any crime of violence or act dangerous to human life[.]
For Laib's conviction of terrorizing, the State had to prove: (1) the defendant intended to put the victim in fear for her safety or acted with reckless disregard of the risk of causing her fear; and (2) the defendant made a threat of a "crime of violence or act dangerous to human life." N.D.C.C. § 12.1-17-04; Carlson, 1997 ND 7, ¶ 36, 559 N.W.2d 802. "[T]he critical inquiry is whether the defendant intended to place others in fear for their safety." Carlson, at ¶ 20. Whether N.D.C.C. § 12.1-17-04 requires verbal threats is a question of law, fully reviewable by this Court. Estate of Kimbrell, 2005 ND 107, ¶ 9, 697 N.W.2d 315.
[¶ 9] Section 12.1-17-04 does not define "threat." Words used in statutes are to be given their ordinary meaning. N.D.C.C. § 1-02-02. Black's Law Dictionary defines "threat" as: "A communicated intent to inflict harm or loss on another *818 or on another's property, esp. one that might diminish a person's freedom to act voluntarily or with lawful consent." Black's Law Dictionary 1519 (8th ed.2004). "Communication" is defined as: "The expression or exchange of information by speech, writing, gestures, or conduct; the process of bringing an idea to another's perception." Id. at 296. The plain reading of these definitions is that a threat can be communicated in several ways, only one of which is verbal. Webster's New World Dictionary defines threat as "an expression of intention to hurt, destroy, punish, etc., as in retaliation or intimidation." Webster's New World Dictionary 1482 (2d coll. ed.1980). Neither definition limits the method of communicating a threat to speaking.
[¶ 10] Section 12.1-23-10(12), N.D.C.C., defines threat for theft and related offenses. Threat in this context is defined, in part, as:
an expressed purpose, however communicated, to:
a. Cause bodily injury in the future to the person threatened or to any other person;
....
c. Subject the person threatened or any other person to physical confinement or restraint;
d. Engage in other conduct constituting a crime; [or]
....
l. Do any other act which would not in itself substantially benefit the actor or a group he represents but which is calculated to harm another person in a substantial manner with respect to his health, safety, business, employment, calling, career, financial condition, reputation, or personal relationship.
N.D.C.C. § 12.1-23-10(12). Although the definition provided in N.D.C.C. § 12.1-23-10 specifically applies only to chapter 12.1-23, the definition demonstrates what the legislature intends when it uses the word "threat." The phrase "however communicated" implies that a threat could be in words, verbal or written; actions; gestures; suggestive innuendo; or any other form of communication.
[¶ 11] Section 12.1-17-04, N.D.C.C., was patterned after § 1614 of the proposed Federal Criminal Code, and we look to the Working Papers of the National Commission on Reform of Federal Criminal Laws for guidance when interpreting sections of the North Dakota criminal code. E.g., Carlson, 1997 ND 7, ¶ 19, 559 N.W.2d 802. The Working Papers discussing terrorizing and menacing state: "The threat may be a prank, or may be made in anger; while there may be no intent to inflict actual injury, such acts can be intended to cause fear." II Working Papers of the National Commission on Reform of Federal Criminal Laws 837 (July 1970).
[¶ 12] To hold that a threat must be verbal would lead to the irrational result that a perpetrator could clearly threaten and terrorize a victim, but would be immune from the crime of terrorizing merely by not saying a word. For example, a perpetrator could tie a victim to a chair, pour gasoline around the victim, step away, and light a match, all without saying a word. Although the perpetrator has never said, "I'm going to kill you," or "you're going to burn," this message is still clearly communicated. Actions can speak louder than words.
[¶ 13] Weighing the evidence in a light most favorable to the verdict supports the conviction. Laib's act of forcing his wife outside their house in the middle of winter while she was wearing only a nightshirt constituted a threat of a crime of violence or act dangerous to human life. Laib's wife testified that after attempting to choke her, Laib took her by the arm *819 and forced her outside. She testified that it was cold and that she was wearing only a nightshirt. Although Laib did not lock the door, his wife did not know that until she tried to reenter. She reentered after a couple of minutes because she could no longer stand the cold, especially on her bare feet. Being outside during a cold winter night without proper attire or shelter can be dangerous to human life. A communication, either verbal or nonverbal, is sufficient to be a threat if a reasonable person could conclude that it was a threat under the circumstances. State v. Hass, 268 N.W.2d 456, 463 (N.D.1978). The jury, as a reasonable fact-finder, could easily conclude that Laib was threatening to commit an act dangerous to human life, specifically, locking someone outside during a cold winter night without sufficient clothing or shelter. There was sufficient evidence for the jury to find Laib guilty of terrorizing as provided for in N.D.C.C. § 12.1-17-04.
[¶ 14] We affirm the criminal judgment and commitment.
[¶ 15] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.
NOTES
[1] The jury also found Laib not guilty of other charges relating to other incidents involving his wife and children.
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181 F.2d 839
UNITED STATES ex rel. KNAUFFv.McGRATH, Attorney General, et al.
No. 192.
Docket 21616.
United States Court of Appeals Second Circuit.
Argued March 6, 1950.
Decided March 28, 1950.
The relator, Mrs. Knauff, born in Germany, arrived at the port of New York on August 14, 1948, seeking admission to this country under the War Brides Act, 8 U.S. C.A. § 232. She was detained at Ellis Island. On recommendation of the Assistant Commissioner of Immigration and Naturalization, the Attorney General, on October 6, 1948, decided that she should be permanently excluded, without a hearing, on the ground that her admission would be prejudicial to the interests of the United States. Her counsel then filed, in the court below, a petition for a writ of habeas corpus; the district court dismissed the writ; on appeal, this court affirmed.1 The Supreme Court, having granted certiorari, affirmed2 on the ground that the War Brides Act was subject to 22 U.S.C.A. § 223, which, via a Presidential Proclamation and regulations, conferred upon the Attorney General the power, during war or "the existence of the national emergency proclaimed by the President on May 27, 1941,"* to exclude an alien if he found that the alien's entry would be prejudicial to the interests of the United States, and so to find without a hearing "on the basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest."
The mandate was filed in the district court on February 20, 1950. Subsequently, the Immigration and Naturalization Service was about to deport her, when, on February 27, her counsel filed in the district court another petition for habeas corpus stating, among other things, the following: "A private bill to relieve Mrs. Knauff from the exclusion order against her has been introduced by Hon. William C. Langer, Senator from North Dakota, who introduced S.2979 which, on February 2, 1950, was read in the Senate and referred to the Committee on the Judiciary. Said bill proposes to authorize the Attorney General and to direct him to discontinue exclusion proceedings, and to cancel the outstanding order of exclusion issued against Ellen Knauff, and to permit her immediate entry into the United States for permanent residence. It also proposes that said Ellen Knauff shall not be subject to deportation by reason of the facts upon which exclusion proceedings were commenced or the exclusion order issued * * * It has been the invariable practice, in the past, to stop all deportation proceedings, as if and when congressional action has been taken and a private or remedial bill actually been introduced in either House of Congress, as has been done in the present case * * * I called upon Mr. Mackay, Deputy Commissioner of Immigration and Naturalization, on Monday, February 20, 1950, in his office at Washington, D. C. At that time I inquired whether the action taken by Congress would be honored by the government or whether it was contemplated to deport Mrs. Knauff before congressional action had been taken. Mr. Mackay at that time told me that it was the practice of the Immigration and Naturalization Service not to effectuate deportations while relief bills concerning an alien were pending in Congress, and that it was not contemplated in the present case, to bring about deportation before Congress had acted on the bill."
The respondent filed no return. No evidence was heard. The district court entered an order refusing to grant a writ. This appeal is from that order. This court granted a stay of deportation pending the decision of this appeal.
Gunther Jacobson, New York City, for relator-appellant.
Irving H. Saypol, New York City (David McKibbin and William J. Sexton, New York City, of counsel; Louis Steinberg and Lester Friedman, Immigration and Naturalization Service, New York City), for respondents-appellees.
Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.
FRANK, Circuit Judge.
1
Respondents in their brief concede that the applicable statutory provision is 8 U.S.C.A. § 154 which provides: "All aliens brought to this country in violation of law shall be immediately sent back * * * to the country whence they respectively came, on the vessels bringing them, unless in the opinion of the Attorney General immediate deportation is not practicable or proper." That "deportation" in that context includes "exclusion" seems clear on the face of the statute.3
2
Respondents also, on oral argument of this appeal, conceded that, on the pleadings as they now stand, we must take it as true that, as alleged in the petition, "it has been the invariable practice to stop all deportation proceedings" whenever a bill, such as Senator Langer's, has been introduced in either House of Congress. We italicize the word "all": It allows of no exceptions of cases, like this, in which an alien has been ordered to be excluded because the Attorney General, on confidential information, found that the alien's entry would be prejudicial to the interests of the United States. This "invariable practice" may be regarded in one (or both) of the following two ways:
3
(1) The practice constitutes an administrative interpretation of the Act to the effect that it is never "proper" in "the opinion of the Attorney General" not to suspend execution of an exclusion order when a Senator or Congressman introduces such a bill and that bill is still pending. Such a settled administrative interpretation, unless unreasonable or flatly contrary to the statute, has generally been given great weight,4 especially when the statute, thus administratively interpreted, has been re-enacted by Congress.5 8 U.S.C.A. § 154 was re-enacted, with changes of no significance here, in 1944. It is most unlikely that Congress was unaware of this administrative interpretation, inasmuch as it related to the introduction of bills by Senators and Congressmen.
4
(2) 8 U.S.C.A. § 154 gives the Attorney General discretion to determine when "immediate deportation is not * * * proper." By the adoption of an "invariable practice," he has established a class of situations with respect to which he has always so exercised that discretion as to suspend deportation. That classification is entirely reasonable. To depart from it in a single instance is to act arbitrarily or capriciously, to abuse the administrative discretion.
5
Whichever of the two foregoing views we accept, the refusal to suspend action here, on the record facts, was improper. In U. S. ex rel. Pirinsky v. Shaughnessy, 2 Cir., 177 F.2d 708, 709, an alien, a resident of this country, was arrested and taken in custody in deportation proceedings. On his application for release on bail, pending decision, the Attorney General, purporting to exercise the discretion granted him by 8 U.S.C.A. § 156, fixed bail at $25,000. The alien sought habeas corpus. We held that bail in excess of $5,000 was unreasonable, saying: "It was brought out at the argument before us that the bail ultimately set was uniquely high in this type of proceeding," adding that "there is nothing in the record to justify the singling out of the individual for unusual treatment."
6
That ruling is applicable here. It accords with many cases deciding that arbitrary use of administrative authority is invalid.6 It is worth recalling that that doctrine, now a vital part of American liberties, received its clearest enunciation in the famous case of the Chinese laundryman.6a To be sure, he was a resident alien;6b and it may be — although we need not and do not here so decide — that Congress could constitutionally empower an official to use his sheer personal whim or caprice in dealing with aliens (like relator) stopped at the border. But, absent an explicit congressional grant of such arbitrary power, we think it cannot be implied.7
7
In such circumstances as this, habeas corpus may be employed not to procure relator's release but to prevent the improper course respondents intended to pursue.8 For the habeas corpus statute9 provides that the court shall "hear and determine the facts, and dispose of the matter as law and justice require."10 See United States ex rel. Zaffarano v. Corsi, 2 Cir., 63 F.2d 757, 758.
8
It is true that the Attorney General has already exercised his discretion (without a hearing) to exclude relator; that, in doing so, he decided that her admission would be prejudicial to the interests of the United States; and that this court and the Supreme Court sustained his decision. But his decision dealt with the issue of her exclusion. We do not hold that she is not to be excluded, i. e., we do not hold that she is to be admitted. We merely hold that, so long as Senator Langer's bill is pending during the present session of Congress, the exclusion order may not be executed. Meanwhile she will be detained in custody at Ellis Island, as closely guarded as the Attorney General deems reasonably necessary to safeguard the country's interests; therefore she cannot become a security risk.11
9
Our decision, however, rests on the present state of the record. On the remand of this case, respondents should be permitted, if they so desire, to file a return denying the relator's allegations as to the administrative practice. If they do so, of course there will be a trial of the resulting issue of fact.12
10
Reversed and remanded.
Notes:
1
U. S. ex rel. Knauff v. Watkins, 2 Cir., 173 F.2d 599
2
U. S. ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 70 S.Ct. 309, 312
*
Proclamation No. 2487, 50 U.S.C.A.Appendix, note preceding section 1
3
See also 8 C.F.R. (1949 edition) Sec. 145.2
4
See, e. g., U. S. v. Moore, 5 Otto 760, 95 U.S. 760, 763, 24 L.Ed. 588; U. S. v. Macdaniel, 7 Pet. 1, 14-15, 8 L.Ed. 587; U. S. v. Finnell, 185 U.S. 236, 243-244, 22 S.Ct. 633, 46 L.Ed. 890; U. S. v. Sweet, 189 U.S. 471, 473, 23 S. Ct. 638, 47 L.Ed. 907; U. S. v. Johnston, 124 U.S. 236, 237, 253, 8 S.Ct. 446, 31 L.Ed. 389; Hahn v. U. S., 107 U.S. 402, 405-406, 2 S.Ct. 494, 27 L.Ed. 527; U. S. v. Philbruck, 120 U.S. 52, 59, 7 S.Ct. 413, 30 L.Ed. 559; Copper Queen Mining Co. v. Arizona Board, 206 U.S. 474, 479, 27 S.Ct. 695, 51 L.Ed. 1143; Logan v. Davis, 233 U.S. 613, 627, 34 S.Ct. 685, 58 L.Ed. 1121; cf. U. S. ex rel. Hirschberg v. Cooke, 336 U.S. 210, 216, 69 S.Ct. 530; Hiatt v. Brown, 1950, 70 S.Ct. 495; U. S. v. American Trucking Ass'ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 84 L.Ed. 1345; Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301; Billings v. Truesdell, 321 U.S. 542, 552-553, 64 S.Ct. 737, 88 L.Ed. 917; U. S. v. Minnesota, 270 U.S. 181, 205, 46 S.Ct. 298, 70 L.Ed. 539; Swendig v. Washington Water Power Co., 265 U.S. 322, 331, 44 S.Ct. 496, 68 L.Ed. 1036; Kern River Co. v. U. S., 257, U.S. 147, 154, 42 S.Ct. 60, 66 L.Ed. 175; U. S. v. Shreveport Grain & El. Co., 287 U.S. 77, 84, 53 S.Ct. 42, 77 L.Ed. 175; State of Wisconsin v. Illinois, 278 U.S. 367, 413, 49 S.Ct. 163, 73 L.Ed. 426
5
See, e. g., Copper Queen Mining Co. v. Arizona Board, 206 U.S. 474, 479, 27 S.Ct. 695, 51 L.Ed. 1143; U. S. v. G. Falk & Brother, 204 U.S. 143, 152, 27 S.Ct. 191, 51 L.Ed. 411; U. S. v. Cerecedo Hemanos Y Compania, 209 U.S. 337, 339, 28 S.Ct. 532, 52 L.Ed. 821; National Lead Co. v. U. S., 252 U.S. 140, 146, 40 S.Ct. 237, 64 L.Ed. 496; U. S. v. Bailey, 9 Pet. 238, 255, 9 L.Ed. 113
6
See, e. g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 560, 22 S.Ct. 431, 46 L.Ed. 679; Dobbins v. Los Angeles, 195 U.S. 223, 240, 25 S.Ct. 18, 49 L.Ed. 169; Raymond v. Chicago Union Traction Co., 207 U.S. 20, 28 S.Ct. 7, 52 L.Ed. 78, 12 Ann.Cas. 757; Southern Ry. Co. v. Greene, 216 U.S. 400, 417, 30 S.Ct. 287, 54 L.Ed. 536, 17 Ann.Cas. 1247; Greene v. Louisville & Interurban R. Co., 244 U.S. 499, 515-518, 37 S.Ct. 673, 61 L.Ed. 1280, Ann.Cas.1917E, 88; Bohler v. Callaway, 267 U.S. 479, 489, 45 S.Ct. 431, 69 L.Ed. 745; Whitfield v. Hanges, 8 Cir., 222 F. 745, 748; cf. Mastrapasqua v. Shaughnessy, 2 Cir., 1950, 180 F.2d 999
6a. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.
6b. Moreover, the "equal protection" clause of the Fourteenth Amendment was there invoked, while here we have action by a federal official. We need not decide whether the "due process" clause of the Fifth Amendment includes "equal protection" in these circumstances — cf. Whitfield v. Hanges, 8 Cir., 222 F. 745, 748 — for we do not rest our decision on constitutional grounds.
7
As an indication of a congressional policy against such arbitrary conduct, compare the Administrative Procedure Act, 5 U. S.C.A. § 1009 (e), as to the duty of a court reviewing administrative conduct: "It shall * * * set aside * * * action * * * found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Cf. Wong Yang Sung v. McGrath, 1950, 70 S.Ct. 445
8
Tod v. Waldman, 266 U.S. 113, 118, 45 S.Ct. 85, 69 L.Ed. 195; Mahler v. Eby, 264 U.S. 32, 46, 44 S.Ct. 283, 68 L.Ed. 549; U. S. ex rel. Mazur v. Commissioner, 2 Cir., 101 F.2d 707, 709; U. S. ex rel. Di Paola v. Reimer, 2 Cir., 102 F.2d 40, 42; U. S. ex rel. Zaffarano v. Corsi, 2 Cir., 63 F.2d 757, 758
9
28 U.S.C.A. § 2243, formerly 28 U.S. C.A. § 461
10
Referring to this language, the Court said in Storti v. Massachusetts, 183 U. S. 138, 143, 22 S.Ct. 72, 74, 46 L.Ed. 120: "All the freedom of equity procedure is thus prescribed; and substantial justice, promptly administered, is ever the rule in habeas corpus."
11
Of course, if Congress should enact the bill, she will be released
12
Judge Hand and I disagree to this extent: He would require no proof if the return states that the Attorney General has found that relator's presence, even at Ellis Island, would be prejudicial to the interests of the United States
11
L. HAND, Chief Judge (concurring).
12
I wish to base my concurrence on what is a somewhat narrower ground than my brother Frank, as I understand him. The case comes to us on a record which, as he says, compels us to assume that the Attorney General has hitherto in all cases postponed deportation while a bill to admit the alien has been pending in Congress. This practice may never in fact have covered the case of an alien whose presence the Attorney General has found to be prejudicial to the interests of the United States; and it can be argued that we should not assume that it has gone so far. However, since it is alleged to have been a general practice, we should accept the allegation as it reads, unless the return denies that it has ever covered cases like the relator's. The absence of any such denial and of any excuse seems to me to present an unrelieved instance of administrative caprice, which we may not ignore.
13
The absence of any denial would not in my judgment lead to a grant of the writ, if it were supplied by the excuse which I shall mention; and it is in this that I may not be in accord with Judge Frank. To continue the analogy of the old course of pleadings, the return, instead of denying the applicability of the practice to the relator might have pleaded in confession and avoidance, that the Attorney General has found that the alien's continued presence in the United States would be prejudicial to its interests, even though she were detained at Ellis Island. I should accept that plea as a defense, because I think that no court has power to inquire whether it is supported by the facts; it is enough that on its face it is not beyond the possible reach of the discretion conferred. Such a finding would be altogether different from the finding already made that the alien's admission as a resident would be prejudicial to the interests of the United States. It may be argued that it ought to be implied from the order of deportation itself; but I think that that is not true. The order may have been made because the practice never covered such a case; and, that aside, it appears to me that the exercise of so drastic and absolute a power should not be left to implication, but should be expressly avowed. There is some genuine protection in insisting upon bringing into the clear the basis of such official action, even though a court may inquire no further. Hence, in spite of the absence of any denial of the applicability of the practice, I should have voted to affirm the order, if it had contained an allegation that the Attorney General had found that the detention of the alien, even though in custody, was prejudicial to the interests of the United States. Since, however, it contained neither a denial, nor such an excuse, I agree that the order must be reversed, and the cause remanded with leave to the respondent to replead.
14
SWAN, Circuit Judge (dissenting).
15
The appellant was excluded from admission to this country and the order of exclusion was affirmed by the Supreme Court. Pursuant to § 154 of Title 8 the immigration officials made arrangements to send her back to the country whence she came. On the day preceding the date fixed for her departure, a petition for habeas corpus was filed on her behalf in the district court to stay her deportation. The district judge forthwith denied the petition. He stated that he refused to grant the writ because he knew of no law giving him authority to issue it.
16
My brothers are agreed that the order must be reversed, a writ must issue, and the respondents must be given an opportunity to file a return thereto. If no return is filed, I take it that the respondents will be ordered to defer deportation of the appellant so long as a remedial bill to admit her remains pending in Congress. If a return is filed, my brothers appear to be not in complete agreement as to what course the subsequent proceedings will take.
17
Judge Hand believes that if the return states that "the Attorney General has found that the alien's continued presence in the United States would be prejudicial to its interests, even though she were detained at Ellis Island," the writ will be discharged without any hearing because no court has power to determine whether the excuse stated is supported by the facts. As a technical objection to this view it may be noted that to speak of this alien's "continued presence in the United States" runs counter to the legal theory that an alien stopped at the border is still in theory of law outside the country, even though physically allowed to enter, as this court has recently held with respect to this very alien. Knauff v. Shaughnessy, 2 Cir., 179 F.2d 628. A substantial objection is the futility of the proposed procedure. To issue the writ, merely to permit the Attorney General to say that he exercised his discretion in the public interest seems to me a barren formality. Concededly the alien is excludable and must be sent back to the country whence she came. The discretion which § 154 confers upon the Attorney General is to send her back "immediately," or to defer her departure, if in his opinion "immediate deportation is not practicable or proper." The Attorney General must be presumed to perform his duty and to exercise in the public interest the discretion conferred upon him. If the court cannot consider whether the facts upon which the Attorney General acts justify his action, I can see no useful purpose in requiring him to plead. The ordinary plea in confession and avoidance raises issues of fact which, if denied, must be tried out, but in the case at bar, if I correctly understand Judge Hand's view, a plea such as he suggests will end the case and the writ will be discharged.
18
Judge Frank suggests that upon remand the respondents may "file a return denying the relator's allegations as to the administrative practice" and, if they do, "there will be a trial of the resulting issue of fact." This I take to mean that the only ground on which the writ may be discharged will be the relator's failure to prove the existence of an "invariable practice" to suspend deportation proceedings when a private bill for the deportee's relief has been introduced in Congress. This court's decision in United States ex rel. Pirinsky is relied upon. I do not think it supports my brother's decision in the case at bar. In the first place, that case dealt with the provision in § 156 that pending the final disposition of his case, an alien may be released under bond. That provision was plainly intended for the benefit of the alien. The discretion conferred by § 154, with which we are now dealing, is to be exercised not for the benefit of the alien but with a view to what is "practicable or proper" in the public interest of efficient administration of the provisions relating to sending back excluded aliens. Secondly, and more important, although we held in the Pirinsky case that it was an abuse of discretion to set bail at a "uniquely high" sum when the particular circumstances of the relator's case did not justify singling him out for such treatment, we did not hold that a deviation from invariable administrative practice was itself an abuse of discretion regardless of circumstances. Yet that is the doctrine which my brothers have here adopted. They do not contemplate, if I understand them, an inquiry into the particular circumstances of the appellant's case which might differentiate it from other prior cases and justify a departure from the alleged invariable administrative practice. I do not understand how it can be within the competence of a court to declare the exercise of administrative discretion unreasonable if the court may not inquire into the reasons upon which the administrative official acted.
19
I think the order should be affirmed.
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250 A.2d 379 (1969)
In the Matter of Herbert F. STEIGLER.
Supreme Court of Delaware.
February 6, 1969.
William E. Taylor, Jr., Wilmington, for petitioner.
Jerome O. Herlihy and Jay H. Conner, Deputy Attys. Gen., for the State.
WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.
*381 WOLCOTT, Chief Justice:
Herbert F. Steigler petitioned for a writ of prohibition and admission to bail upon a charge of murder in the first degree. We heard oral argument upon the motion and entered an order dismissing the petition for prohibition, and remanding the application for bail to the Superior Court for hearing. At the time we stated we would file an opinion setting forth our reasons for so doing. This is that opinion.
The petitioner was arrested following indictment on three counts of murder in the first degree and one count of assault with intent to commit murder. Following his arrest, he was arraigned before the Superior Court. In his behalf, his counsel asked that he be admitted to bail on all four counts. The Superior Court denied bail on the three murder charges, fixed bail at $1,000.00 on the assault charge, and committed the petitioner to the Correctional Institution to await trial. His counsel at no time insisted upon a hearing on the application for bail.
Following this, the petitioner obtained other counsel who filed a petition with this court requesting that bail be fixed pursuant to our Rule 3(2) or, alternatively, that a writ of prohibition issue prohibiting the Superior Court from committing the petitioner to await trial.
The petitioner misconceived the function of Rule 3(2). The scope and purpose of the authorization in the rule to one Justice to admit to bail is limited to bail after conviction pending appeal. The rule may not be extended to permit a preliminary application for bail in advance of trial. We accordingly dismissed the petition that bail be set pursuant to Rule 3(2), and remanded the question of bail to the Superior Court for the following reasons:
Article I, § 12 of the Delaware Constitution, Del.C.Ann. provides, inter alia, that "all prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is positive or the presumption great." In our opinion, there is no doubt at all that by reason of Article I, § 12, all prisoners charged with capital offenses have a constitutional right to bail, except when the proof is positive or the presumption great.
Article I, § 12 of our present Constitution first appeared in our law in its present form as Article I, § 12 of the Constitution of 1792. Prior to that time, capital offenses were not bailable. 1 Laws, Ch. LVIII (4 Geo. II). No change was made in the colonial act after the adoption of the 1792 Constitution until 1829 when an act was passed providing that capital offenses shall not be bailable, except that before indictment, "if upon full inquiry it appears that there is good ground to doubt the truth of the accusation", the prisoner may be admitted to bail. 1829 Code, § 33, p. 64. This statutory language has been continued in the various Codes of the State. See 1852 Code, § 2039, p. 335; 1915 Code, § 3980; 1935 Code, § 4480, and 11 Del.C. § 2106.
By 56 Laws, Ch. 231, 11 Del.C. § 2106, on January 8, 1968, was repealed and a new § 2102 substituted in lieu of it. By 11 Del.C. § 2102(a), it was provided that a capital crime shall not be bailable, but by § 2102(b) it was provided that the Superior Court may admit to bail in capital offenses "if after full inquiry, [it] shall determine that there is good ground to doubt the truth of the accusation, and the *382 burden of demonstrating such doubt shall be on the accused."
We observe that prior to January 8, 1968 the statutory law of this State limited bail in capital offenses to the preindictment stage. Article I, § 12, however, grants a constitutional right to bail in all offenses, including capital offenses upon the stated condition, and does not limit the right in terms of indictment. It follows, therefore, that such right may be available in capital offenses before as well as after indictment. State v. Koester, 5 W.W.Harr. 258, 162 A. 513; Quillen v. Betts, 9 Terry 93, 98 A.2d 770. Old § 2106, and its progenitors, were therefore in conflict with the constitutional right, and were invalid in so far as they limited the possibility of bail in capital offenses to the period prior to indictment. The recent enactment of § 2102 has removed this conflict.
The present § 2102(b) provides that bail shall be allowed in capital offenses if after full hearing "there is good ground to doubt the truth of the accusation." We think this quoted language must be equated with the constitutional requirement that bail shall be allowed in capital offenses unless "there is proof positive or presumption great." We regard the statutory requirement as a proper definition of the constitutional provision.
11 Del.C. § 2102(b) requires a "full inquiry" upon the application for bail in capital offenses before the Superior Court which, alone, is authorized to admit to bail for such offenses. The statute further provides that the burden of demonstrating at such hearing that there is good ground to doubt the truth of the accusation shall be upon the accused.
In remanding the petitioner's application for bail to the Superior Court, we instructed it to follow generally the guidelines laid down in State v. Konigsberg, 33 N.J. 367, 164 A.2d 740, 89 A.L.R.2d 345, with the exception that, by reason of 11 Del.C. § 2102(b), we placed upon the State the burden of going forward with the evidence, while recognizing that the burden of demonstrating that there is no proof positive or presumption great is placed by § 2102(b) upon the accused.
A minority of the states hold that an indictment for murder is conclusive evidence sufficient to deny bail, the basis for the rule being that to permit otherwise would be to impugn the indictment found after secret proceedings before the Grand Jury. Ford v. Dilley, 174 Iowa 243, 156 N.W. 513. This reason does not exist in Delaware for in circumstances where the interests of justice require it, disclosure of proceedings before the Grand Jury may be ordered by the Superior Court. Petition of Jessup, 11 Terry 530, 136 A.2d 207; Superior Court Criminal Rule 6.
The majority of the states, however, permit the accused to rebut the indictment, thus giving a prima facie presumption of guilt to the indictment, itself. Cf. Shaw v. State, 164 Tenn. 192, 47 S.W.2d 92; Annotation, 89 A.L.R.2d 345.
By reason of the dicta in the Koester and Quillen cases, Delaware seemingly was among the states holding that the indictment raises a prima facie presumption of proof positive or presumption great. We think, however, the rule, if indeed it has been the rule of this State, offends against a basic concept of our criminal law the presumption of innocence until found guilty after trial. There is something inherently contradictory in maintaining the presumption of innocence until final conviction and, at the same time, presuming probable guilt from the fact of indictment when the accused seeks to exercise his constitutional right to bail.
The right to bail is constitutionally conferred in all offenses with one exception a capital offense where the proof is positive or the presumption great. Since the general rule is admission to bail, the *383 State, if it seeks to invoke the exception to the rule, must bear the burden of going forward with evidence to produce facts to warrant the invocation of the exception. See Young v. Russel (Ky.), 332 S.W.2d 629; Application of Wheeler, 81 Nev. 495, 406 P.2d 713; State v. Konigsberg, supra; Fields, Determination of the Accused's Right to Bail in Capital Cases, 7 Vill.L. Rev. 438.
While there is a burden on the State to produce facts to justify the denial of bail, the fact of indictment by the Grand Jury for a specific degree of murder may not be ignored. This is not conclusive of proof positive or presumption great, but, at the same time, it may not be disregarded by reason of the fact that murder indictments in Delaware are returned by the Grand Jury in a specific degree. This practice differs, for example, from the practice in New Jersey where the Grand Jury returns a general murder indictment and the degree of the crime is later fixed by the petit jury after trial. This explains the holding in Konigsberg that no weight is to be attached to the indictment.
It should be remembered that, while first degree murder is a capital offense, second degree murder and manslaughter are not, and bail is an unconditional right in the latter cases. Also to be realized is the fact that the prosecutor, not the Grand Jury, usually decides the specific degree of the offense, a decision often changed by the prosecutor during the course of the prosecution. The granting or denial of bail is a judicial function, and may not be made to turn solely upon the label placed on the offense in the first instance by the State.
11 Del.C. § 2102(b) places upon the accused the ultimate burden of demonstrating that there is doubt as to the truth of the accusation. The result, under our holding therefore, is that the State must go forward with evidence tending to show "proof positive or presumption great." When this has been done, the State has laid the basis for the application of the exception to the constitutional right to bail; and the burden of proof is then upon the accused to demonstrate the contrary.
We emphasize that the full inquiry required by 11 Del.C. § 2102(b) is preliminary in nature. It is designed to determine basically whether or not the accused, if admitted to bail, would be tempted to forfeit his bail and to flee the jurisdiction rather than face the prospect of conviction and a possible sentence of death. If, therefore, such a conviction is fairly likely, presumably the temptation to flee would be great and bail should be denied.
In ruling on an application for bail in capital cases, the Superior Court should avoid even the appearance of a determination of ultimate guilt or innocence. The term "proof positive or presumption great" is not precise in its command. The defendant's burden is met if the Court in its discretion concludes from the evidence that the State does not have a fair likelihood of convicting the accused of the capital offense.
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841 P.2d 413 (1992)
122 Idaho 883
Blaine FOSTER and Votis Foster, husband and wife, Plaintiffs-Appellants,
v.
CITY OF ST. ANTHONY, a municipal corporation, Defendant-Respondent.
Steve ZUNDEL and Judy Zundel, husband and wife; and David Murdoch and Yvonne Murdoch, husband and wife; as representative parties of the property owners of the City of St. Anthony, Plaintiffs-Appellants,
v.
The CITY OF ST. ANTHONY, a municipal corporation, Defendant-Respondent,
v.
The STATE of Idaho, By and Through the DEPARTMENT AND BOARD OF CORRECTIONS, Defendant-Intervenor-Respondent.
Nos. 19675, 19866.
Supreme Court of Idaho, Idaho Falls, September 1992 Term.
October 28, 1992.
Rehearing Denied December 15, 1992.
*414 Daniel L. Hawkley, Boise, for plaintiffs-appellants.
Hoopes & Thomson, Chtd., Rexburg, for defendant-respondent City of St. Anthony. Karen L. Rogers argued.
Larry EchoHawk, Atty. Gen.; and Robert R. Gates and Michael R. Jones, Boise, for defendant-intervenor-respondent State of Idaho. Michael R. Jones argued.
JOHNSON, Justice.
The two cases that are before us in this appeal are primarily zoning cases. We are also required to address questions of municipal law, administrative law, claim preclusion, and the award of attorney fees.
I.
BACKGROUND AND PRIOR PROCEEDINGS
On December 20, 1989, the City of St. Anthony leased an unused hospital owned by the city to the State of Idaho for use as a correctional facility. The city contends *415 that the mayor and the city council approved a resolution authorizing the lease in a preliminary oral vote on December 12, 1989, and in a final oral vote on December 20, 1989. The mayor signed the resolution on December 22, 1989.
When the city leased the hospital to the state, the property was zoned as a "conditional use district." The city's zoning ordinance listed a hospital as a permitted conditional use. The city took the position that a correctional facility was allowed in a conditional use district without the issuance of a "special use permit."
THE FOSTER CASE
In the first case that is before us in this appeal, the owners of property across the street from the hospital, Blaine and Votis Foster (Foster), applied for a writ of mandamus requiring the city to put the question of leasing the hospital to a popular vote. Later, by amendment Foster sought declaratory and injunctive relief to prevent the city from allowing the hospital to be used as a correctional facility. Foster asserted that the lease was invalid because: (1) the city did not follow procedural and technical formalities required to approve a resolution, (2) a correctional facility was not allowed in a conditional use district without a special use permit, and (3) the failure of the city to give public notice and conduct public hearings violated Foster's procedural due process rights.
The trial court granted summary judgment (Foster I) permanently enjoining the city from using the hospital as a correctional facility until the city fully complied with the procedural due process requirements set forth in the city's zoning ordinance and in Cooper v. Board of County Comm'r, 101 Idaho 407, 614 P.2d 947 (1980).
The state then applied for a special use permit to permit the use of the hospital as a correctional facility. Following public hearings the city approved the permit. Foster requested that the trial court review the administrative proceedings. Following a hearing, the trial court found that the city violated I.C. §§ 67-6535 and 67-6536 by its failure to: (1) keep the required transcribable record of the hearings required under I.C. § 67-6536, (2) have standards and criteria within its zoning ordinances by which to evaluate the merits of issuing a special use permit as required by I.C. § 67-6535, and (3) provide meaningful discussion to support its findings as required by I.C. § 67-6535. The trial court remanded the matter to the city for further proceedings.
Both the city's planning and zoning commission and the city council held public hearings to consider amending the city's comprehensive land use plan and zoning ordinance. The city council approved the amendments, which provided for the creation of "public service districts," and authorized the planning and zoning commission to rezone any area as a public service district that was determined to be of local or state importance.
The state then withdrew its application for a special use permit and applied for a building permit authorizing the repair of the hospital roof. The planning and zoning commission held a hearing and approved the building permit.
The trial court then granted the state's motion to dissolve the injunction, denied relief to Foster on other issues, and denied Foster attorney fees (Foster II). Foster appealed.
THE ZUNDEL CASE
In the second case that is before us in this appeal, Foster, Steve and Judy Zundel, and David and Yvonne Murdoch (referred to collectively as Zundel), as representative parties of the property owners in the city, brought a class action against the city. By this action Zundel sought: (1) declaratory judgment that the city's amended comprehensive land use plan and zoning ordinance were invalid, and (2) an injunction enjoining the city from permitting any use of property within the city except as permitted before the attempted amendment of the zoning ordinance. Later, Zundel amended the complaint to delete Foster as a party and to eliminate the request for injunctive relief. The amended complaint alleged that the *416 amended zoning ordinance did not conform to state law.
The trial court allowed the state to intervene as a defendant in the Zundel case. The city moved to dismiss Zundel's claim on the ground it was precluded under the doctrine of res judicata by the final judgment in the Foster case. The state moved to dismiss, asserting that Zundel had failed to exhaust administrative remedies and that the claim was barred by the doctrine of collateral estoppel.
The trial court granted the motions and dismissed Zundel's claim. Zundel appealed.
This Court has consolidated the cases for appeal.
II.
THE ORAL MOTION PASSED BY THE CITY COUNCIL WAS A RESOLUTION WITHIN THE MEANING OF I.C. § 50-902.
Foster asserts that the lease between the city and the state is invalid because the mayor lacked authority to sign it. Foster argues that the resolution authorizing the lease was not adopted as required by I.C. §§ 50-902 and 50-1409. We disagree.
I.C. § 50-1409 provides that the mayor and city council, by resolution, may authorize the lease of any property not needed for city use. I.C. § 50-902 provides that the passage of every resolution by the city council to enter a contract requires a majority vote by a recorded oral roll call.
The Foster court heard testimony from several officials, including the city clerk. The city clerk testified that the city council took a vote to approve the lease conditionally on December 12, 1989, and that she took handwritten notes of the vote. The clerk also testified that a motion authorizing the lease was presented at the December 20, 1989 meeting of the city council and that the city council took a final vote at that time. The clerk testified that she did not record this vote because she believed that she was only required to record the vote taken on December 12, 1989. The clerk testified that the correction of typographical errors delayed the mayor signing the resolution until December 22, 1989.
The Foster court admitted as an exhibit a copy of the resolution signed by the mayor on December 22, 1989, on the ground that the document fell within the public records exception, I.R.E. 803(8), to the hearsay rule. A trial court has broad discretion to decide questions regarding the admissibility of evidence at trial, and its decisions will not be overturned absent clear abuse. State v. Tierney, 109 Idaho 474, 477, 708 P.2d 879, 882 (1985). Applying the three-step analysis stated in Sun Valley Shopping Ctr. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991), we conclude that the trial court did not abuse its discretion in admitting the copy of the resolution in this case.
The trial court concluded that "the oral motion made and passed by the City Council on December 20, 1989 amounted, in substance, to a `resolution' within the meaning of I.C. § 50-902" prior to execution of the lease. We agree.
III.
THE CITY COUNCIL WAS ENTITLED TO AMEND ITS ORDINANCES SO THAT A SPECIAL USE PERMIT BECAME UNNECESSARY.
Foster asserts that Idaho law does not allow the city to legislate away impediments to the approval of a pending application for a permit. In the context of this case, we disagree.
When the trial court permanently enjoined the city from allowing the hospital to be used as a correctional facility, the city responded by amending its comprehensive land use plan and zoning ordinance, which placed the hospital in a zone that did not require a special use permit for it to be used as a correctional facility. The Foster court held that the city had complied with its new ordinance and that the property could be used as a correctional facility.
Foster argues that South Fork Coalition v. Board of Comm'r, 117 Idaho 857, 860-62, 792 P.2d 882, 885-87 (1990), requires *417 this Court to apply the city's original zoning ordinance to the state's application for a building permit. In South Fork, this Court considered whether to apply the ordinance in effect at the time an application for a development was filed, or whether to apply the ordinance as amended before a final decision on the application was made. The Court stated that an applicant's rights are determined by the ordinances in existence at the time of filing an application for the permit. Id. at 861, 792 P.2d at 886. The rationale for this rule is that permitting a city to apply an amendment to a previously filed application would allow a city to withhold action on a permit, amend its ordinances to defeat the application, and thereby give effect to an amended ordinance before it exists. Id.
South Fork is not applicable to this case. The state did not file an application for a building permit until after the new ordinance was in effect.
Because of our resolution of this issue, we find it unnecessary to address the failure of Foster to exhaust administrative remedies concerning the building permit, which was an issue raised by the city and the state.
IV.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT DETERMINED THAT NEITHER PARTY PREVAILED, THAT THE CITY HAD NOT ACTED FRIVOLOUSLY, AND THAT FOSTER WAS NOT ENTITLED TO COSTS AND ATTORNEY FEES.
Foster asserts that the trial court should have awarded costs and attorney fees to Foster as a prevailing party pursuant to I.C. § 12-121. We disagree.
We first point out that I.C. § 12-121 allows for an award of attorney fees in civil actions, but not in administrative cases. Lowery v. Board of County Comm'r, 117 Idaho 1079, 1081-82, 793 P.2d 1251, 1253-54 (1990). Foster initiated a civil action by filing a complaint in district court, but converted the action to an administrative case with the filing of a petition for review of administrative proceedings on September 26, 1990. The trial court was, therefore, allowed to consider awarding attorney fees on proceedings arising from Foster's civil action, but not for proceedings arising from the administrative case.
The trial court did not abuse its discretion when it determined that Foster was not the prevailing party in the civil action. Identification of a prevailing party is within the sound discretion of the trial court. Stewart v. Rice, 120 Idaho 504, 510-11, 817 P.2d 170, 176-77 (1991). Applying the three-step analysis the Court employed in Stewart, we conclude that the trial court did not abuse its discretion in ruling that none of the parties in the Foster case were prevailing parties and denying Foster costs and attorney fees.
In any event, I.R.C.P. 54(e)(1) further limits an award of attorney fees under I.C. § 12-121 to those circumstances where the trial court finds that the action was frivolous, and the trial court found that the city did not assert frivolous defenses.
V.
ZUNDEL WAS NOT REQUIRED TO EXHAUST ADMINISTRATIVE REMEDIES BEFORE CHALLENGING THE VALIDITY OF THE CITY'S AMENDMENT IN COURT.
Zundel asserts that Zundel was not required to exhaust remedies before challenging the validity of the city's amended zoning ordinance through a declaratory judgment action. We agree.
In Jerome County v. Holloway, 118 Idaho 681, 685, 799 P.2d 969, 973 (1990), the Court distinguished between challenging the propriety of a special use permit and challenging the validity of an amended zoning ordinance. In Jerome, the Court said that it is necessary to exhaust administrative remedies in challenging the propriety of a permit, but that the district court has jurisdiction to entertain a declaratory judgment action challenging the validity of the enactment of amendments to zoning ordinances, *418 even though the party challenging the validity has not exhausted administrative remedies.
VI.
RES JUDICATA (CLAIM PRECLUSION) DOES NOT PREVENT ZUNDEL FROM LITIGATING THE VALIDITY OF THE AMENDED COMPREHENSIVE LAND USE PLAN AND AMENDED ZONING ORDINANCE.
Zundel asserts that under the doctrine of res judicata (claim preclusion) the decision in the Foster case does not prevent Zundel from litigating the validity of the amended comprehensive land use plan and zoning ordinance. We agree.
We first note that the city brought its motion to dismiss under I.R.C.P. 12(b)(8) ("another action pending between the same parties for the same cause") on the basis of the order dissolving the injunction and rejecting Foster's other claims in Foster II. The state brought its motion to dismiss under I.R.C.P. 12(b)(1) ("lack of jurisdiction over the subject matter") on the ground that Zundel's claims are barred by collateral estoppel (issue preclusion). The trial court granted the motions to dismiss on the grounds that the Zundel's claim "is not fundamentally different from Foster I or Foster II; the issue is likewise virtually identical."
In Andre v. Morrow, 106 Idaho 455, 680 P.2d 1355 (1984), the Court stated the two aspects of the doctrine of res judicata:
There are two aspects to the doctrine of "res judicata." Under the principle of "res judicata" or claim preclusion, a judgment on the merits in a prior proceeding bars a subsequent lawsuit between the same parties or their privies upon the same cause of action.
The doctrine of collateral estoppel, or issue preclusion, prevents the relitigation of issues actually litigated and decided in another action, even in connection with a different claim or cause of action between the same parties in any subsequent suit.
Id. at 458 n. 1, 680 P.2d at 1358 n. 1 (citations omitted); but cf. Anderson v. City of Pocatello, 112 Idaho 176, 182-84, 731 P.2d 171, 177-79 (1986), aff'd on reh'g, (1987) (stating the elements of collateral estoppel, including whether the party against whom estoppel is asserted was a party or in privity with a party to the prior adjudication and that lack of mutuality is not a bar to application of collateral estoppel).
In this case we are clearly dealing with claim preclusion. Although the trial court ruled that Zundel was foreclosed from litigating the validity of the amended comprehensive land use plan and amended zoning ordinance, the record indicates that the validity of these amendments was not litigated in Foster I or II.
The dispositive question in determining the applicability of claim preclusion in this case is whether Zundel was in privity with Foster in relation to the subject of Foster I and II. In Kite v. Eckley, 48 Idaho 454, 282 P. 868 (1929), Justice Givens writing for the Court stated succinctly the meaning of the "privies" requirement:
Plaintiff was not a party to [the former] action. He is therefore not concluded by a judgment rendered therein unless he derives his interest from one who was a party to it, that is, unless he is in privity with a party to that judgment.
Id. at 459, 282 P. at 869.
Likewise, in this case Zundel was not a party to Foster I or Foster II. Therefore, claim preclusion does not apply unless Zundel was in privity with Foster concerning the subject of Foster I and II.
The Court has considered the concepts of "privies" and "privity" as they relate to res judicata, both the claim preclusion and issue preclusion aspects, in many cases. See, e.g., First Nat'l Bank v. Hays, 7 Idaho 139, 61 P. 287 (1900) (grantees were privies to a judgment lien entered against their grantor); Schuler v. Ford, 10 Idaho 739, 80 P. 219 (1905) (party in possession of land under contract to purchase is not in privity with seller where action against seller commenced after contract of sale was signed); Smith v. Kessler, 22 Idaho 589, 127 P. 172 *419 (1912) (assignee of tax sale certificate is in privity with assignor); Collard v. Universal Auto. Ins. Co., 55 Idaho 560, 45 P.2d 288 (1935) (injured passenger in automobile accident not in privity with driver of automobile); Kite v. Eckley, 48 Idaho 454, 282 P. 868 (1929) (beneficiaries of trust not in privity with trustee); Smith v. Smith, 67 Idaho 349, 180 P.2d 853 (1947) (natural father of child adopted without notice to him was not in privity with natural mother who was given notice).
In dismissing Zundel's claim on the basis of claim preclusion, the trial court did not specifically address the privity requirement. The trial court did say that Foster may not rely on Zundel to seek a declaratory judgment "which would have been more properly pursued in Foster II," and that Zundel's "rights will be protected by the procedures in the zoning ordinance and amended plan adopted pursuant to the Foster Court's order." These statements do not constitute a determination of privity within the meaning given by this Court to "privies" and "privity" in the cases cited above. They do not establish that Zundel derived an interest from Foster.
The city and the state argue that Zundel was in privity with Foster because Zundel had the capacity as "affected persons" under I.C. § 67-6521 to seek judicial review of the city's decision to grant a building permit. This argument flies in the face of our holding above that Zundel was not required to exhaust administrative remedies before pursuing a declaratory judgment action to determine the validity of the amended comprehensive land use plan and amended zoning ordinance.
The city and the state also argue that Zundel was in privity with Foster because Zundel participated actively in Foster I and II. Specifically, the city and the state contend that this privity is demonstrated by the following:
1. Foster and Zundel had the same counsel.
2. A large number of phone calls to Zundel were included in the request of Foster's counsel for costs and attorney fees.
3. Zundel attended all of the hearings before the planning and zoning commission and before the city council during the course of Foster's litigation.
4. Foster was originally included as a party in Zundel's action.
5. The amended complaint in Zundel's action was crafted to avoid the effect of claim preclusion.
We first point out that whether these facts would constitute privity is a question of fact that can not be resolved on motions to dismiss under I.R.C.P. 12(b). In Collard, Justice Budge, writing for the Court, pointed out that a determination of privity based on a party's participation in a prior action is a factual determination:
In order to make a judgment obtained in one action conclusive in another, it must appear that the former was rendered in an action between the same parties, or between those in privity with parties to the former action.
It is urged, however, that respondent assumed such control over, and took such a part and interest in, the action between Peterson and appellant that the judgment obtained therein is binding upon respondent. While the record discloses that respondent may have taken some part in the former suit, there was proof submitted in the present case as to the nature of respondent's connection therewith and the court permitted the jury to determine the question of whether or not respondent's participation was sufficient to constitute the judgment in the former action a bar to the second action brought by respondent, which question the jury answered in favor of respondent. The evidence with relation to respondent's participation in the Peterson suit is to the effect that respondent appeared as a witness; some consultation among attorneys for Peterson and respondent; some contribution in the expense of the appeal taken; and assistance in preparation of briefs on appeal. It is generally necessary that a person, not a party to a pending suit, in order that such suit constitute res judicata, appear openly in the case to the knowledge *420 of the adverse party, and it is not sufficient to bind him that he merely advised or aided in the trial, gave evidence, contributed to the expense or otherwise aided therein in such respects.
Id., 55 Idaho at 568-69, 45 P.2d at 291-92 (citations omitted) (emphasis in original).
In Collard, the Court also pointed out:
The plea of res judicata is an affirmative defense and the burden rests on the party asserting it to establish all of the essential elements thereof by a preponderance of the evidence.
Id. at 570, 45 P.2d at 292 (emphasis in original).
On the state of the record before us, we cannot conclude as a matter of law that Zundel was in privity with Foster.
VII.
CONCLUSION.
In Foster's case, we affirm the trial court's orders dissolving the injunction, denying Foster relief on all issues, and denying Foster costs and attorney fees. We award the city and the state costs, but not attorney fees, on appeal.
In Zundel's case, we vacate the order dismissing Zundel's claim with prejudice and remand the case for further proceedings.
We award Zundel costs, but not attorney fees, on appeal.
BAKES, C.J., and BISTLINE, McDEVITT and TROUT, JJ., concur.
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Case: 14-10159 Date Filed: 08/25/2014 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10159
Non-Argument Calendar
________________________
Agency No. A094-888-756
JOEDSON COSTA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 25, 2014)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Joedson Costa, a native and citizen of Brazil, proceeds pro se and petitions
for review of the Board of Immigration Appeals’s (BIA) order denying his motion
Case: 14-10159 Date Filed: 08/25/2014 Page: 2 of 8
to reconsider its prior order affirming the Immigration Judge’s (IJ) denial of his
application for an adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i). On
appeal, Costa argues that the BIA erred by concluding that the first
labor-certification application filed on his behalf by his former employer, Arch
Company, Inc. (Arch), was not “approvable when filed” under 8 C.F.R.
§ 1245.10(a)(3) and that he was ineligible for an adjustment of status under INA §
245(i), 8 U.S.C. § 1255(i) as a “grandfathered” alien. Upon review of the record
and consideration of the parties’ briefs, we dismiss in part, and deny in part the
petition for review.
I. BACKGROUND
Costa entered the United States on June 9, 1999, as a non-immigrant visitor,
with authorization to remain until December 8, 1999. His visa was extended until
December 7, 2000. He remained in the United States beyond that date without
authorization. On April 30, 2001, Costa’s former employer, Arch, filed a labor-
certification application on his behalf with the U.S. Department of Labor (DOL).
In 2003, the attorney who filed that application, Javier Lopera, was convicted of
immigration fraud. Based on that conviction, the DOL issued a Notice of Findings
(NOF) in which it informed Arch that it was conducting an internal investigation
into the application in light of its discovery of Lopera’s fraud conviction and
2
Case: 14-10159 Date Filed: 08/25/2014 Page: 3 of 8
requested additional supporting evidence for the application. In response, Arch
withdrew the application.
In 2004, another employer, Hurley Construction Company, Inc. (Hurley),
filed a second labor-certification application on Costa’s behalf. The DOL certified
that application. Hurley then filed a Form I-140 Immigration Petition for Alien
Worker Application on Costa’s behalf, which U.S. Citizenship and Immigration
Services (USCIS) approved.
Subsequently, Costa filed a Form I-485 application for an adjustment of
status with USCIS pursuant to INA § 245(i), 8 U.S.C. § 1255(i). USCIS denied
Costa’s application because Costa had not maintained lawful status and had
engaged in employment without authorization. Further, Costa’s unlawful presence
and employment could not be waived under INA § 245(i) as requested because the
first labor-certification application filed on his behalf was ineligible for
“grandfathering” under 8 C.F.R. § 245.10(a)(1)(i) as it was not “approvable when
filed” under 8 C.F.R. § 1245.10(a)(3). The application had not been approvable
due to the fraud concerns regarding certification as noted in the DOL’s NOF,
including that Lopera had been convicted of separate acts of immigration fraud.
USCIS’s Administrative Appeals Office (AAO) affirmed the denial.
On March 2, 2011, the Department of Homeland Security (DHS) issued
Costa a notice to appear (NTA), charging him as removable pursuant to INA §
3
Case: 14-10159 Date Filed: 08/25/2014 Page: 4 of 8
237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States for
longer than permitted. At a master-calendar hearing, Costa admitted the
allegations contained in his NTA and the IJ sustained the charge of removability.
Costa indicated that he wished to renew his adjustment-of-status application.
In a written brief in support of his adjustment-of-status application, Costa
argued that the first labor-certification application filed by Arch on his behalf was
“approvable when filed” under § 1245.10(a)(3). The evidence reflected that Arch
withdrew the application because the company had “lost interest” in pursuing
Costa’s certification after learning of Lopera’s immigration fraud.
Notwithstanding that fact that Arch later withdrew the application, it still remained
that the application had been properly filed, meritorious in fact, and non-frivolous
at the time of filing. When confronted with Arch’s unwillingness to pursue the
application, Costa immediately changed employers and continued the application
process through Hurley to preserve the first application’s 2001 priority date
through “grandfathering” under INA § 245(i). The documents submitted in
support of Arch’s labor-certification application would have been sufficient to
certify the application but for the fraud allegations against Lopera.
At the merits hearing, the government argued that Costa had not met his
burden to demonstrate that he was eligible for an adjustment of status under INA §
245(i). The government submitted a complete copy of the DOL’s NOF related to
4
Case: 14-10159 Date Filed: 08/25/2014 Page: 5 of 8
the denial of Arch’s labor-certification application. The IJ inquired whether either
party had a copy of the first labor-certification application that Arch had filed on
Costa’s behalf. Both the government and Costa responded that they did not. The
IJ noted that it was Costa’s burden to demonstrate that the application was
approvable at the time of filing. Without a copy of the application, the IJ would be
unable to conduct the required analysis to determine if the application was
approvable when filed. After the IJ determined that Costa was not eligible to apply
for any other form of relief, Costa requested a voluntary departure, which the IJ
granted.
In an oral decision, the IJ concluded that Costa was ineligible for an
adjustment of status pursuant to INA § 245(i), as he did not meet his burden to
establish that the first labor-certification application had been “approvable when
filed.” Costa had not produced a copy of the first labor-certification application,
and, thus, the IJ could not determine whether that application had been
“approvable when filed,” such that Costa was eligible for an adjustment of status
pursuant to INA § 245(i). Regardless of the approval of the 2004 labor-
certification application, Costa could not adjust his status unless he was eligible
under INA § 245(i). The IJ granted Costa’s request for a voluntary departure.
Costa appealed the IJ’s decision to the BIA. In his appeal brief, Costa
argued that he had satisfied his burden of proving that the first labor-certification
5
Case: 14-10159 Date Filed: 08/25/2014 Page: 6 of 8
application filed on his behalf had been “approvable when filed” under §
1245.10(a)(3). The DOL had never stated that the application was fraudulent and
had denied that application only because Arch withdrew it. That application had
been properly filed, meritorious in fact, and non-frivolous because it was filed with
authentic documents by Arch. Because the DOL had issued a NOF that presumed
the first application to be fraudulent because it was filed by Lopera, the DOL
improperly found the application to be fraudulent based on guilt by association. In
denying Costa’s adjustment-of-status application, the IJ erroneously made the
same presumption of fraud as the DOL had.
On October 23, 2013, the BIA dismissed Costa’s appeal, concluding that the
IJ had not erred by determining that he was ineligible for an adjustment of status
under INA § 245(i) because he had failed to meet his burden to establish that the
first labor-certification application was “approvable when filed.” Contrary to
Costa’s assertion, the IJ did not deny Costa’s adjustment-of-status application
based on fraud, but rather on Costa’s failure to meet his burden to establish that the
application had been “approvable when filed.” Costa failed to provide a copy of
the first labor-certification application and the letter from Arch attesting to the
company’s filing the application provided little additional support for the
application’s approvability at the time of filing. The BIA noted that, while not
dispositive, the attorney who had filed the first labor-certification application had
6
Case: 14-10159 Date Filed: 08/25/2014 Page: 7 of 8
been convicted of immigration fraud. The BIA reinstated the IJ’s grant of
voluntary departure.
In November 2013, Costa moved for the BIA to reconsider its prior decision.
Costa contended that the BIA had overlooked relevant facts, namely, that the
second labor-certification application and Form I-140 filed by Hurley both had
been approved. Costa also argued that, because the fraud allegations against
Lopera arose after the time of filing the first labor-certification application, they
provided no basis for the BIA’s conclusion that the application had not been
“approvable when filed.”
On December 23, 2013, the BIA denied Costa’s motion to reconsider,
concluding that he largely had raised the same or similar arguments as those raised
in his original appeal brief. Costa’s mere disagreement with the BIA’s prior
decision was an insufficient basis upon which to reconsider that decision. Further,
to the extent that Costa was attempting to raise new arguments related to the first
labor-certification application, those arguments were not properly before the BIA
on a motion to reconsider as they could have been raised in the original appeal.
Nevertheless, these arguments did not alter the BIA’s decision to deny Costa’s
request. Costa filed a Petition for Review with this Court on January 14, 2014
challenging the BIA’s December 23, 2013 decision.
II. DISCUSSION
7
Case: 14-10159 Date Filed: 08/25/2014 Page: 8 of 8
“We review the BIA’s denial of a motion to reconsider for abuse of
discretion.” Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). A
motion to reconsider must specify errors of fact or law in the BIA’s decision and
must be supported by pertinent authority. Id. at 1329.
On appeal, Costa raises the same arguments he has already raised twice
before the BIA.1 He asserts that the government erred by denying him adjustment
status; however, he does not argue any error on the part of the IJ or the BIA. The
only issue before us is whether the BIA abused its discretion in denying Costa’s
motion to reconsider for failure to identify material legal or factual error in the
October 23, 2013 decision. See Calle, 504 F.3d at 1329 (holding that “merely
reiterating arguments previously presented to the BIA does not constitute
‘specifying . . . errors of fact or law’ as required for a successful motion to
reconsider”); 8 U.S.C. § 1229a(c)(6)(C). Because Costa did not identify any errors
in the BIA’s decision, we affirm.
PETITION DISMISSED IN PART, DENIED IN PART.
1
To the extent that Costa’s arguments on appeal are related to the BIA’s October 23,
2013 order affirming the IJ’s denial of his adjustment-of-status application, we will dismiss the
petition as to those issues for lack of jurisdiction. Costa’s petition was untimely filed on January
14, 2014, more than 30 days after entry of that order. See 8 U.S.C. § 1252(b)(1) (“The petition
for review must be filed not later than 30 days after the date of the final order of removal.”); Lin
v. U.S. Att’y Gen., 677 F.3d 1043, 1045 (11th Cir. 2012).
8
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COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTION FOR
Appellate case name: Mark Hotze, Steven Hotze, Richard Hotze and Troika Partners, et al
v. David Hotze, Donna Hotze as Trustee, and Bruce Hotze
Appellate case number: 01-18-00039-CV
Trial court case number: 2016-36300
Trial court: 61st District Court of Harris County
Date motion filed: August 30, 2018
Party filing motion: Appellees, David Hotze, Donna Hotze as Trustee, and Bruce Hotze
It is ordered that the motion for rehearing is DENIED GRANTED.
Judge’s signature: /s/ Jennifer Caughey
Acting Individually Acting for the Court
Panel consists of: Justices Higley and Caughey.
Justice Brown not participating.
Date: September 26, 2018
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 06-6068
v. (D.C. No. 06-CV -00005-L)
(D.C. No. 04-CR-00090-L)
M ERL W ILLIA M HICKM AN, SR., (W .D. Okla.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE O F APPEALABILITY
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
Defendant-Appellant M erl W illiam Hickman, Sr., a federal inmate
proceeding pro se, seeks a certificate of appealability (“COA”) to appeal from the
district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside, or
correct sentence (submitted for filing on December 27, 2005). M r. Hickman pled
guilty to money laundering, 18 U.S.C. § 1957, and was sentenced to 97 months on
November 22, 2004. Shortly thereafter, he pled guilty in state court to sixteen
counts of obtaining money by false pretenses and received a sentence on
December 27, 2004, of ten years on each count, to run consecutive to one another
and consecutive to the federal sentence. Because we determine that M r. Hickman
has not made a “substantial showing of the denial of a constitutional right,” 28
U.S.C. § 2253(c)(2); Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000), we deny a
COA and dismiss the appeal.
In his motion, M r. Hickman attacked his state sentence. The district court
concluded that it would not stay the matter and hold it in abeyance even if it were
to construe the § 2255 motion as a § 2254 petition attacking the state convictions.
After considering the factors in Rhines v. W eber, 544 U.S. 269, 277-78 (2005),
the district court determined that the state claims had not been exhausted, and
were either not cognizable in habeas or not sufficiently meritorious to warrant a
stay. The district court did not pass on the diligence of M r. Hickm an. Thereafter,
the district court declined to treat the motion under § 2254, and denied it pursuant
to § 2255 because it did not challenge the federal sentence.
W e think it is apparent that the motion is seeking § 2254 relief and should
be recharacterized to correspond w ith its substance. See Castro v. United States,
540 U.S. 375, 381-82 (2003). On appeal, M r. Hickman maintains that he filed a
motion for appointment of counsel on appeal with the state, which he claims was
ignored. He contends that he tried to exhaust his state remedies, but then went to
the next level, federal court. He also argues the merits of his claims relating to
his state sentence.
Rhines dealt with mixed petitions. Traditionally, when a petition contains
entirely unexhausted state claims, the petition would be dismissed without
prejudice. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). It is
-2-
theoretically true that a federal habeas court could deny a petition containing
totally unexhausted claims. 28 U.S.C. § 2254(b)(1)(A). However, stay and
abeyance of totally unexhausted petitions increases the temptation to decide
unexhausted claims and decreases the incentive to exhaust first. See Rhines, 544
U.S. at 277; Rose v. Lundy, 455 U.S. 509, 519 (1982). W e need not decide
whether the procedure in Rhines applies to totally unexhausted petitions. If
Rhines applies, the district court certainly did not abuse its discretion in declining
to stay this matter given the nature of the claims. Regardless, given that the
claims are entirely unexhausted, the § 2254 petition should be dismissed without
prejudice. W e order the district court to amend its order to recharacterize the
§ 2255 motion as a § 2254 petition and dismiss it without prejudice. 1
W e DENY the COA, GRANT M r. Hickman’s request to proceed IFP, and
DISM ISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
1
W e recognize that a subsequent § 2254 motion probably will be time
barred, but do not pass on that issue.
-3-
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973 F.2d 224
GOVERNMENT OF THE VIRGIN ISLANDSv.Patrick RILEY, Appellant.
No. 91-3511.
United States Court of Appeals,Third Circuit.
Argued April 21, 1992.Decided Aug. 25, 1992.
Thurston T. McKelvin, (argued), Federal Public Defender, St. Thomas, V.I., for appellant.
Terry M. Halpern, U.S. Atty., James R. Fitzner (argued), Asst. U.S. Atty., Christiansted, St. Croix, V.I., for appellee.
Before: SLOVITER, Chief Judge, MANSMANN and WEIS, Circuit Judges.
OPINION OF THE COURT
MANSMANN, Circuit Judge.
1
In this appeal we are faced with the question of whether the defendant's right to a fair trial was violated on retrial due to the publicity surrounding his first trial which had ended in a hung jury. Prior to retrial, Acting Chief Judge Brotman (who did not preside over the first trial) conducted voir dire of the venirepersons in his chambers and ascertained that each person who ultimately sat on the jury had an open mind and would determine the defendant's guilt or innocence based solely on the evidence introduced at trial. We concur with the district court that Riley has not demonstrated substantial prejudice arising from the publicity. Further, we conclude that the district court did not abuse its discretion by admitting into evidence the videotape deposition testimony of a minor child eyewitness. Consequently, we will affirm the judgment of the district court.
I.
2
Patrick Riley's first trial made headlines because the district judge, a senior visiting judge from another circuit, chastised the jury after it became apparent that two hold-outs would not be able to reach a verdict.1 The district judge's comments produced a backlash of animosity from local officials and brought arguments from commentators, both pro and con. The facts underlying the trial were more simple, and yet more tragic.
3
On August 27, 1990, Samuel "Bing" Joseph was shot to death. The crime was witnessed by his three-year old son, Jamiel. Approximately two hours after Joseph's body was discovered, the Virgin Islands police apprehended Patrick Riley and brought him in for questioning. While Riley was waiting in an interrogation room in front of a one-way mirror, Jamiel Joseph was brought into the adjoining room by his mother and a detective where Jamiel could observe Riley without his presence being known. The detective asked Jamiel to tell him if he recognized the person in the room.2 Jamiel looked at Riley, cried out and ran from his mother. He tried to hide under the mirror.
4
That afternoon the detective and his partner went to the boy's home where they showed him a photo array consisting of six photographs. The array included a photo of Riley and five other men who resembled Riley. The detectives requested that Jamiel pick out the man that "shot his Daddy." Jamiel identified Patrick Riley. The detectives rearranged the photos and asked him to pick out the man once again. Jamiel chose Patrick Riley's photo a second time. A second photo array identification by Jamiel was videotaped several months later. Although Riley waived his right to be present at the deposition, his counsel cross-examined Jamiel.
5
Riley, through his defense counsel, moved to suppress the evidence of the photo display, contending that it was tainted by the suggestive confrontation which took place earlier. The district court denied the motion after conducting a hearing where the police detective testified to the conduct of the identification procedure. A videotape of the identification was played to the jury at the trial.3 Riley renewed his objection to the use of the evidence before the second trial and his motion was once again denied. The district court4 determined that the denial of the motion was the law of the case and the evidence was admissible.
6
The second trial was scheduled to start approximately five months after the first ended in a mistrial. Eighty-seven people made up the venire for the second Riley trial. Of those, nineteen were dismissed due to familiarity with the parties or relationship to police officers or for personal reasons. Of the remaining sixty-eight, all but sixteen admitted to having heard or read about the previous trial. The district court judge interviewed, in his chambers, all of the jurors admitting familiarity with the case.5 He asked each venireperson individually what the source of publicity was, whether the person had already made a decision on the merits of the case and whether, if chosen to serve, the venireperson would keep an open mind and reach a decision based solely on the evidence introduced at trial.6 During this process, counsel for Riley did not object to any of the venirepersons for cause.
7
Finally, twelve jurors and four alternates were chosen. After several days of trial the jury returned a guilty verdict. This appeal followed.
8
We analyze the defendant's claims of lack of an impartial jury by conducting an independent review of the voir dire of the empaneled jurors to determine whether Riley has demonstrated that "substantial prejudice" arose from the publicity. United States v. Gilsenan, 949 F.2d 90, 95 (3d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2971, 119 L.Ed.2d 590 (1992); United States v. Provenzano, 620 F.2d 985, 996 (3d Cir.1980); United States v. D'Andrea, 495 F.2d 1170, 1172 (3d Cir.), cert. denied, 419 U.S. 855, 95 S.Ct. 101, 42 L.Ed.2d 88 (1974). We review the district court's admission of the minor's identification of the defendant for an abuse of discretion.
II.
9
Riley's first contention on appeal is that he was denied a fair trial because the publicity surrounding the first trial and the trial judge's comments to the deadlocked jury deprived him of an impartial jury for the second trial.
10
It is axiomatic that one of the fundamental rights a defendant possesses is the right to a fair trial before an impartial, "indifferent" jury of his peers. Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). Thus, a defendant's conviction may be overturned if the trial atmosphere was so pervaded by publicity that no jury could be empaneled which did not have a preconceived determination of guilt. E.g., Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (string of murders were extensively covered by the news media and after petitioner's arrest police officials issued press release of petitioner's confession); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).
11
Riley argues that the publicity surrounding the first trial judge's improper comments to the jury, including the judge's statements that the defendant was guilty, were so inflammatory that he could not get a fair and impartial retrial. Furthermore, he contends, there were no jurors on the island who could render a fair and impartial verdict. We disagree.
12
We note that most of the jurors were aware that there had been a previous trial which ended in a mistrial. Nonetheless, if this knowledge did not color their judgment or cause them to have a preconceived notion of the defendant's guilt, that knowledge alone is insufficient to deprive Riley of a fair trial by an impartial and "indifferent" jury.
13
The Supreme Court has made it clear that the "relevant question is not whether the community remembered the case, but whether the jurors at [the] trial had such fixed opinions that they could not judge impartially the guilt of the defendant." Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984). Yount involved a well-publicized murder case where the victim was an eighteen-year-old high school student and the defendant, Yount, was the high school mathematics teacher. Yount's first trial ended in a conviction which was later overturned when the Pennsylvania Supreme Court determined that his Miranda rights had been violated when the police obtained a confession without allowing Yount to consult with his attorney. The publicity prior to retrial revealed Yount's previous confession to the murder and his plea of temporary insanity, none of which was admissible evidence at the second trial. Yount argued to the United States Supreme Court that the pretrial publicity deprived him of a fair trial. The Supreme Court upheld the conviction, concluding that "the voir dire testimony and the record of publicity do not reveal the kind of 'wave of public passion' that would have made a fair trial unlikely by the jury that was empaneled as a whole." Yount, 467 U.S. at 1040, 104 S.Ct. at 2893.
14
We have held that "[p]retrial publicity exposure will not automatically taint a juror." United States v. Provenzano, 620 F.2d 985, 995 (3d Cir.1980). Thus, "[e]ven if the juror has heard of or about the case and of the allegations of a defendant's guilt, he may sit if he is still capable of abandoning his prior impressions and rendering a fair verdict on the evidence." 620 F.2d at 995.
15
The publicity in Provenzano involved newspaper accounts which utilized terms such as "Mafia," "gangster," and "organized crime," but none of the potential jurors gave any credence to the generic inferences. 620 F.2d at 996. Here, the statements made by the first trial judge after declaring a mistrial were more specific, but it was equally clear from the record of the voir dire that none of the venirepersons gave it any weight.
16
Moreover, we note from our reading of the trial transcript that Judge Brotman instructed the jury on retrial, prior to the opening arguments, that the defendant was presumed innocent until the government was able to prove his guilt beyond a reasonable doubt. Trial trans. July 16, 1991, at 70-72. Additionally, the district court cautioned the jury that they were to determine the verdict based only on the evidence placed before them during the trial and they were not to investigate or discuss the case, nor read about it or listen to news reports of the case.7 Trial trans. July 16, 1991 at 73-74. The judge repeated the caution at the end of each trial day. Trial trans. July 16, 1991, at 197, July 17, 1991 at 171-72.
17
We find Riley's argument that he could not have received a fair trial by an impartial jury to be without merit in light of the extensive voir dire conducted by the second trial judge. After reviewing the transcripts of the voir dire, we are convinced that the jurors who were finally empaneled had not already determined the defendant's guilt, but rather, maintained an open mind and ultimately determined Riley's guilt based on the evidence placed before them at trial. Consequently, the record does not support a finding of substantial prejudice necessary for relief under Provenzano and D'Andrea.
III.
18
Riley's other contention on appeal is that the admission into evidence of the identification of the defendant by the victim's son, Jamiel Joseph, as the man who shot his father was a violation of his right to due process. Riley argues that Jamiel's identification was impermissibly suggestive and tainted.
19
The district court conducted a hearing on Riley's motion to suppress and concluded that the identification process had not been unduly suggestive.8 The district court concluded that no one had made suggestive comments to Jamiel nor was Riley's photo manifestly different from the others in the array. As for the identification of Riley by Jamiel on the opposite side of the one-way mirror, the district court stated: "That seems to me one of the most reliable of recognition that there is." App. at 27.
20
To violate due process, an identification procedure used by the police must be unnecessarily suggestive and create a substantial risk of misidentification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The question of whether the suggestiveness created a substantial likelihood of misidentification is to be considered:
21
with reference to the "totality of the circumstances," with particular attention paid to such relevant factors as the quality of the witnesses' original opportunity to view the criminal, their degree of attention, their level of certainty when confronted with the subject or his image, and the length of time between the crime and the confrontation.
22
United States v. Dowling, 855 F.2d 114, 117 (3d Cir.1988), citing Neil, 409 U.S. at 199-200, 93 S.Ct. at 382.
23
Applying these factors to this case, we discern that the crime occurred at approximately 10:00 a.m., during the daylight hours. Jamiel had an opportunity to watch Riley approach his father's car, saw his father get out of his car and observed Riley shoot his father and then drive away. This provided Jamiel with ample opportunity to form an impression of Riley's appearance. Jamiel recognized Riley a few hours later at the police station behind the one-way mirror. The confrontation occurred around 1:30 p.m., a mere three-and-a-half hours later. The first photo array occurred at Jamiel's home around 5:00 p.m. that afternoon, less than eight hours after the crime occurred. The videotape deposition of Jamiel's identification by photo array occurred eighty-three days after the commission of the crime. In addition, Jamiel's identification of Riley was unshakable. When the police officers rearranged the photos of the array during the identification by Jamiel at his home, Jamiel still picked out Riley.
24
Having reviewed the record of the suppression hearing and the deposition of the minor witness, Jamiel, based on the totality of the circumstances test of Neil and Dowling, we hold that the identification process was neither suggestive nor apt to produce a misidentification. Therefore we conclude that the district court did not abuse its discretion by admitting into evidence Jamiel's identification of Riley as the man who shot his father.
25
While Riley suggests that his conviction occurred solely due to the testimony of the minor witness, the trial record does not support his assertion. The videotape deposition of Jamiel Joseph identifying Riley was only one link in the chain of evidence presented by the government in its case against Riley. We will recount some of this evidence as we adduced it from the trial transcript.
26
Calvert Charleswell testified that on Sunday, August 26, 1990, at around 6:30 p.m., he was a passenger in a car driven by Samuel "Bing" Joseph. The two were at Brewer's Beach when Bing spotted Patrick Riley's car and motioned for Riley to come over. Riley approached the car and Bing asked Riley why he had hung up the phone on him. Riley became animated and angry and the two men exchanged heated words. The argument concerned Valecia Patrick, a woman who was dating both men. Trial trans. July 17, 1991, at 37-41.
27
Emanuel De Foe testified that De Foe's niece, Candido Charles, had been married to Bing Joseph and Bing was often at his house visiting Jamiel, his son. Patrick Riley called De Foe's house on Sunday evening, August 26, asking if Bing Joseph was there. When De Foe answered that he was not, Riley left the message that Bing was to meet him at 6:00 a.m. in town. De Foe relayed the message to Candido but not to Bing. Trial trans. July 17, 1991, at 33-35.
28
Clyde Richardson testified that around 9:00 p.m. on Sunday, August 26, 1990, Patrick Riley came to his home and asked to borrow a gun. Richardson produced a .357 magnum which he had purchased several years prior from Riley for $350.00. When Richardson asked Riley why he needed the gun, Riley told him that he was going to show the gun because someone was interested in buying it. Riley checked the cylinder of the gun, found that it had two empty chambers and requested more bullets from Richardson. Richardson gave Riley two more rounds so that all chambers were filled. Trial trans. July 16, 1991, at 89-91.
29
Richardson further testified that the bullets in the gun were .38 caliber, but of different construction. Some of the bullets were hollow point, some were short, flat bullets used for target practice, and some were standard solid rounds. Trial trans. July 16, 1991, at 91-92.
30
Jeffrey Turbe testified that on the morning of August 27, he and his friend were in a fishing boat approximately 200 to 300 yards off the shore of Brewer's Beach when he heard a series of five or six shots. He saw a black man wearing a white shirt standing in the grass looking down at something. Turbe stated that he heard the man say something but all he could understand was "got you". Then he saw the man get in a maroon or dark red car and drive away in a hurry. Trial trans. July 16, 1991, at 106-108.
31
Patrick Riley's neighbor, Alfred Medura, testified that Riley drove a red Mazda 626 and on the morning of August 27, the day of the shooting, he had returned to his home around 11:00 a.m. driving at a high rate of speed. Medura stated that Riley did not usually drive at that speed. Trial trans. July 17, 1991, at 51-54.
32
Doctor Joseph Garceau, a forensic pathologist at St. Thomas Hospital, testified that he identified five separate injuries resulting from gunshots to Bing Joseph. Of these injuries, three were non-fatal injuries: one graze injury to the left shoulder, a penetrating injury to the left shoulder, and entry and exit wounds in the right arm. Two of the bullet wounds were fatal: one where the bullet entered the back and pierced the lungs and another which entered from the back, pierced the lungs and the heart. Dr. Garceau explained that the bullet which pierced the heart was fired by someone standing over the victim and firing in a downward direction. Trial trans. July 16, 1991, at 171-81.
33
Dr. Garceau removed three bullets from the body of Bing Joseph and gave them to the forensic team of the St. Thomas Police Department. These, along with the bullets recovered from the scene of the shooting, were sent to the F.B.I. laboratory in Washington, D.C. for examination. Trial trans. July 16, 1991, 167-69, 180, 184-85.
34
Gerald Wilkes from the F.B.I. Washington lab testified that the bullets he received from the St. Thomas Police were probably all fired from the same gun due to the markings on the rounds which occurred when the bullets were fired. Moreover, he testified that some of the bullets were hollow point, some standard and some were wad cutters, i.e., bullets with flattened heads. Trial trans. July 16, 1991, at 184-189.
35
Agent John Riley of the F.B.I. testified to the results of the gunpowder test taken by Officer George of the St. Thomas Police Department. The test required the examiner to swab the suspect on the palms and on the backs of both hands. The swabs are then tested for traces of antimony and barium, two products of expelled gunpowder. Based on the amount of antimony and barium found on the swab taken from the palm of Riley's left hand, the agent concluded that Riley had fired a gun or had handled a gun which had recently been fired.9 Trial trans. July 17, 1991, at 65-68.
36
We have not recapped all the evidence presented by the government. However, that which we noted demonstrates that the government had both the scientific and circumstantial evidence from which the jury could have convicted Riley for the murder of Bing Joseph. Thus the conviction did not hinge on the testimony of a four-year-old child.
IV.
37
For the above stated reasons, we will affirm the judgment of the district court.
1
The judge stated, inter alia:
If you--if there had been any adherence to your oath, there is no reason or conscience, conviction that to reach a conclusion that this man is not guilty. If there is any doubt about it, that child's reaction when he saw this man on the day that this happened on the day of the incident would be sufficient to remove all doubt that this is the man--as a matter of fact was guilty of this murder.
... And I am going to make a formal request of the United States Attorney's office that the jurors in this case, the two jurors be investigated with a view that if it's determined that they have any connections with the family or with this man, that they be--that the matter is brought against him in terms of being prosecuted for obstruction of justice.
... One would think that in this community where blacks are in the majority, that this--there would be some concern about this [black men killing black men] and that you would send a message when you had an opportunity, that this is not going to happen. We are going to do something about it.
....
I think there is something desperately wrong with that, and I think that the two who have been--who have held out with the conviction of this are culprits and I believe that in my judgment that they should be investigated.... That's the end of it. I am not going to have anything more to do with this.
As a concerned citizen, I am taking this opportunity to tell you just how craven and criminal that I regard your conduct. You may be dismissed.
App. at 34-36.
2
There is some dispute as to whether the detective asked Jamiel if he recognized the man in the next room or if the boy just saw Riley after the detective tapped on the glass to get Riley to look up. Jamiel became very agitated, ran from the room and begged to be taken home
3
Jamiel testified that he was in the front seat of the car beside his father when a man approached the car. Jamiel saw the man shoot his father, get in his car and drive away up the hill. Supp.App. at 20-29
4
As previously noted, the district judge on the retrial was not the same judge who presided over the first trial
5
One juror was aware that approximately half a million dollars in jewelry from a highly publicized theft had been found in the defendant's house. The juror nonetheless expressed his ability to keep an open mind
6
An example of the district court's questioning is as follows:
You indicated in response to my question that you had heard or read something about this case.... Could you tell me what you have heard? ... Do you recall anything more specific than what you just mentioned to me? ... Would the information that you hear, received or read about from the sources you have just mentioned, would that information in any way affect your impartiality in this case? ... Have you made a determination in this case? ... Can you enter on this jury with an open mind? ... Can you then decide this case fairly and impartially and based solely upon the testimony and evidence produced in this courtroom? ...
The voir dire occurred in the district court judge's chambers with the defendant and his counsel present. The defense counsel did not object to any of the questions asked of the potential jurors.
7
One juror came forward on the second day of the trial and told the district judge's courtroom assistant that she had had a conversation with a friend of the victim who blurted out that he hoped she would do the right thing as a juror. The juror was excused and replaced by an alternate
8
The determination was made by the district judge who presided at Riley's first trial. The second district judge hearing the motion before Riley's retrial determined that he was bound to follow the denial of the motion to suppress as the law of the case. Without commenting on the correctness of the use of the law of the case doctrine, in order to determine that a manifest injustice has not occurred, we must review the decision of the first district judge. See Hayman Cash Register Co. v. Sarokin, 669 F.2d 162 (3d Cir.1982); Sanders v. Sullivan, 900 F.2d 601 (2d Cir.1990) (under the law of the case doctrine, court adheres to its own decision at earlier stage of litigation unless there are compelling reasons not to, such as an intervening change in the law, newly discovered evidence or the need to correct clear error or prevent a manifest injustice)
9
At the time Officer George performed the test on Riley, he claimed to be right-handed. However, F.B.I. Agent Luis Rivera testified that he had the opportunity to observe Riley when he was writing and noticed that Riley was using his left hand
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899 N.E.2d 1080 (2009)
Winnie MADISON, et al., respondents,
v.
HARTFORD INSURANCE COMPANY OF THE MIDWEST et al., petitioners.
No. 107685.
Supreme Court of Illinois.
January 28, 2009.
Petition for leave to appeal denied.
In the exercise of this Court's supervisory authority, the Appellate Court, Fifth District, is directed to vacate its order in Madison v. Hartford Insurance Co., case No. 5-08-0550 (11/25/08), denying defendant's application for leave to appeal pursuant to Supreme Court Rule 308. The appellate court is instructed to take the appeal and answer the following questions certified by the circuit court:
1. Whether a class may be certified where essential elements of plaintiffs' claims, such as "reasonableness" and "necessity," cannot be adjudicated on a classwide basis.
2. Whether a class may be certified on the ground that litigation of the class representatives' claims may resolve a "central issue" in the case, even if such litigation would not establish a right to recovery on behalf of any other class members.
3. Whether a 36-state class may be certified without any inquiry into the potential variations in the laws of those 36 states.
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JARVIS v. K2 INC. 4757
APPENDIX A
SP5
4758 JARVIS v. K2 INC.
SP6
JARVIS v. K2 INC. 4759
FT10
4760 JARVIS v. K2 INC.
FT11
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63 So.3d 778 (2011)
B.M.
v.
STATE.
No. 5D10-343.
District Court of Appeal of Florida, Fifth District.
May 24, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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114 Cal.App.3d 378 (1981)
170 Cal. Rptr. 697
PHILIP CHARLES TOUBUS, Petitioner,
v.
THE SUPERIOR COURT OF MARIN COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Docket No. 49876.
Court of Appeals of California, First District, Division Four.
January 7, 1981.
*380 COUNSEL
Krause, Timan, Baskin, Shell & Grant and Marshall W. Krause for Petitioner.
No appearance for Respondent.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Robert R. Granucci and Ronald E. Niver, Deputy Attorneys General, for Real Party in Interest.
*381 OPINION
ANDERSON, J.[*]
Philip Charles Toubus has petitioned for a writ to compel respondent superior court to suppress evidence (Pen. Code, § 1538.5, subd. (m)) and consequently to set aside (Pen. Code, § 999a) an information charging him with possession for sale of cocaine (Health & Saf. Code, § 11351), trafficking in cocaine (Health & Saf. Code, § 11352) and possession of amphetamines (Health & Saf. Code, § 11377, subd. (a)).
The motion to suppress was submitted on the preliminary hearing transcript, which showed that an informant named Liz and an undercover agent of the Department of Justice, Christie McCampbell, went to petitioner's apartment in Larkspur to buy cocaine. The agent was introduced as the girl friend of informant's cousin. Previous telephone conversations had established that the informant's cousin was going to purchase the cocaine. Petitioner produced a bag of white powder; after viewing a demonstration that the powder was cocaine, McCampbell and Liz left the residence to get Agent Ken Brown, the pretended purchaser. They met with three agents and reported on the situation. McCampbell, Liz and Brown returned to the apartment where Brown was introduced as Liz' cousin. Brown then tested the cocaine and told Liz to go out and get a scale to weigh the powder. Her departure was actually a prearranged signal to Agent Platt, the officer in charge of the investigation, to enter and arrest petitioner.
Platt and two other officers who entered to make the arrest were in civilian clothes. The door had been left ajar and the officers came in without knocking. As they came through the door, they identified themselves as police officers. They arrested petitioner and also handcuffed Brown in order to hide his identity as a police officer. The arresting officers then made a cursory search of the residence to determine if there were any other people there.
Platt then obtained a warrant to search the premises for cocaine, narcotic paraphernalia, articles tending to establish identity and "any papers or writings, records that evidence dealings in controlled substances including, but not limited to address books, ledgers, lists, notebooks, etc."
*382 While Platt was obtaining the search warrant, Brown remained to secure the premises; he later assisted Platt in executing the warrant and seizing the contraband which is the subject of the pending charges. This included the cocaine which Brown had tested in the living room as well as pills and more cocaine found in a yellow bag in the front bedroom.
Petitioner's argument includes six propositions: (1) since he was arrested in his own residence without the benefit of a judicially approved arrest warrant, his arrest is "presumptively unreasonable and illegal under both the state and federal Constitutions," citing Payton v. New York (1980) 445 U.S. 573 [63 L.Ed.2d 639, 100 S.Ct. 1371], and People v. Ramey (1976) 16 Cal.3d 263 [127 Cal. Rptr. 629, 545 P.2d 1333]; (2), there are no "exigent" circumstances to remove the case from the proscriptions of Payton and Ramey; (3), the arrest was in any event unlawful since the officers who actually made the arrest did not comply with the knock-notice requirement of Penal Code section 844; (4), therefore, the "fruits" of that arrest are tainted and must be suppressed, citing Wong Sun v. United States (1963) 371 U.S. 471 [9 L.Ed.2d 441, 83 S.Ct. 407]; People v. Cook (1978) 22 Cal.3d 67 [148 Cal. Rptr. 605, 583 P.2d 130]; People v. Solario (1977) 19 Cal.3d 760 [139 Cal. Rptr. 725, 566 P.2d 627]; and People v. Negrete (1978) 82 Cal. App.3d 328 [147 Cal. Rptr. 101]; (5), the fruits of the illegal arrest include the observations of the illegally arresting agent; and (6), the search warrant, "based upon the arrest and seizure" of the petitioner, is invalid and everything seized thereunder must be suppressed.
I
Was the Warrantless Arrest of Defendant Unconstitutional?
(1) Petitioner contends, relying on Payton v. New York, supra, 445 U.S. 573, and People v. Ramey, supra, 16 Cal.3d 263, that his arrest without a warrant in his own home was presumptively unreasonable and illegal. In Payton and Ramey, a crime had been committed. The police developed probable cause to arrest a suspect and entered the suspect's residence to arrest him without first obtaining a warrant. The United States Supreme Court in Payton and the California Supreme Court in Ramey, held it is the entry into a home that is the evil condemned by the Fourth Amendment. In Payton, Justice Stevens quotes from Judge Leventhal who, in Dorman v. United States (D.C. Cir.1970) 435 F.2d *383 385, after first noting that arrests in public places are valid, states: "`A greater burden is placed, however, on officials who enter a home or dwelling without consent. Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment.'" (Payton v. New York, supra, 445 U.S. at p. 587 [63 L.Ed.2d at p. 651], italics added.) The Supreme Court then quoted approvingly from United States v. Reed (2d Cir.1978) 572 F.2d 412: "To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances...." (Payton v. New York, supra, 445 U.S. at pp. 588-589 [63 L.Ed.2d at p. 652], italics added.)
Likewise, the California Supreme Court in Ramey said: "we believe that the Fourth Amendment prohibits a warrantless entry into a dwelling to arrest in the absence of sufficient justification for the failure to obtain a warrant." (People v. Ramey, supra, 16 Cal.3d 263 at pp. 274-275, italics added.) But this does not imply that warrantless arrests in general must be justified by exigent circumstances excusing the lack of a warrant, and the Supreme Court expressly limited its holding to warrantless entries of dwellings for the purpose of making arrests within those dwellings. (People v. Ramey, supra, 16 Cal.3d 263 at p. 275, fn. 5.)
Payton and Ramey are inapplicable where an agent is invited by a suspect to enter. (People v. Evans (1980) 108 Cal. App.3d 193, 196 [166 Cal. Rptr. 315].) Petitioner argues that the entry here was not consensual since it was obtained by subterfuge. The argument is factually unfounded. Petitioner admitted McCampbell and Brown to sell them cocaine. McCampbell and Brown entered to purchase cocaine from him. There was no ruse. The Fourth Amendment does not protect "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." (Hoffa v. United States (1966) 385 U.S. 293, 302 [17 L.Ed.2d 374, 382, 87 S.Ct. 408].)
II
Does Failure to Comply With Penal Code Section 844 Invalidate the Arrest?
(2) Petitioner contends that the arrest was invalidated by failure to comply with Penal Code section 844. Section 844 provides in pertinent *384 part: "To make an arrest ... a peace-officer, may break open the door or window of the house in which the person to be arrested is, ... after having demanded admittance and explained the purpose for which admittance is desired." The purposes of the statute are: "`(1) The protection of the privacy of the individual in his home; (2) the protection of innocent persons who may also be present on the premises where an arrest is made; (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice; and (4) the protection of police who might be injured by a startled and fearful householder.'" (People v. Solario, supra, 19 Cal.3d 760, at p. 763.) None of those purposes would be served by requiring compliance with the statute when a crime is in progress.
Here, there was no occasion to protect the privacy of petitioner in his home since a peace officer who already possessed probable cause to arrest was already in that home; there were no innocent persons on the premises who needed protecting; it was unlikely the entry without notice would provoke a violent confrontation; and with two officers already present on the premises it is highly unlikely that the police would be in any danger from actions taken by a fearful defendant. The officers who came in to make the arrest acted to assist their fellow officers who were lawfully inside the apartment and who had probable cause to make an arrest for a felony then being committed in their presence; that the officers chose to seek the help of their colleagues in accomplishing the arrest in their presence is not improper. (Cf. People v. Cornejo (1979) 92 Cal. App.3d 637 [155 Cal. Rptr. 238]; People v. McCoy (1974) 40 Cal. App.3d 854 [115 Cal. Rptr. 559].)
III
Was the Search Warrant "Based Upon" Petitioner's Illegal Arrest?
(3) Petitioner contends that asserted unlawfulness of the arrest vitiates, as support for the search warrant, information obtained at the time of the arrest. The officer who actually made the arrest related in his affidavit that he saw "a plastic bag containing approximately 14 ounces of white powdery substance, which appeared to be cocaine, on a table in the living room." He saw an "Ohaus scale" in the front bedroom, and stated that he "has seen Ohaus scales used as a weighing *385 device on many occasions in which illicit drug sales were being made." Also set out in the affidavit are the personal observations of Agents McCampbell and Brown, whose presence in the residence at the time of their observations was concededly lawful.
Although we hold otherwise, assuming arguendo that the affiant's observations were the fruits of an unlawful arrest and must be excluded, is the warrant thus rendered invalid? The question is whether, considering only the personal observations of McCampbell and Brown, was there a substantial basis for concluding that contraband was to be found on petitioner's premises. (People v. Hill (1974) 12 Cal.3d 731, 759 [117 Cal. Rptr. 393, 528 P.2d 1], citing Theodor v. Superior Court (1972) 8 Cal.3d 77, 100-101, fn. 14 [104 Cal. Rptr. 226, 501 P.2d 234].)
The affidavit showed, without reference to any observations of the arresting officer, that (1) Agent McCampbell went to the home of petitioner; (2) she was admitted by him; (3) she was shown approximately one pound of white powdery substance which petitioner told her was cocaine; (4) she left and immediately returned with fellow-agent Brown, who was to purchase the cocaine; (5) both were admitted by the defendant; (6) Brown tested the powder to verify that it was cocaine; (7) the test was positive; and (8) Brown was qualified to make the test. This competent evidence is sufficient to support the magistrate's finding of probable cause to believe that contraband was present. The affiant's informants (fellow agents) spoke from personal knowledge concerning their actions and observations (see Aguilar v. Texas (1964) 378 U.S. 108 [12 L.Ed.2d 723, 84 S.Ct. 1509]), and affiant gained all of his information through "official channels" (see People v. Ruster (1976) 16 Cal.3d 690 [129 Cal. Rptr. 153, 548 P.2d 353, 80 A.L.R.3d 1269]). We conclude that the warrant was valid whether or not the arrest was lawful.
IV
Should the Seized Pills be Suppressed as Beyond the Warrant's Scope?
(4) Contraband pills (methaqualone, amphetamine, methylenedioxy amphetamine), not mentioned in the warrant, were seized at the place authorized to be searched. There is no evidence suggesting that the police were not acting in good faith in executing the warrant. It was *386 proper for them to seize the additional contraband which they found. (Skelton v. Superior Court (1969) 1 Cal.3d 144, 157 [81 Cal. Rptr. 613, 460 P.2d 485].)
V
Is the Search Warrant Unconstitutionally Broad and Vague?
(5) Petitioner attacks the part of the warrant that authorizes seizure of "any papers or writings, records that evidence dealings in controlled substances including, but not limited to address books, ledgers, lists, notebooks, etc." He claims the quoted language "is so broad and vague that it has absolutely no limits." This argument ignores the qualifying clause "that evidence dealings in controlled substances"; each record, book, etc. seized must evidence dealings in controlled substances. As so limited, the authorization is not "overly broad."
Petitioner further complains that many items not described in the warrant were seized under color of its authority. But the law makes provision (Pen. Code, § 1540) for recovery of such items by the person entitled to possession. Suppression of contraband or other evidence which was covered by the warrant is not an available remedy.
(6) Petitioner argues that the quoted language "substantially interferes with the defendant's right of privacy under the state and federal Constitutions." The same may be said of every warrant authorizing law enforcement officers to search a citizen's home; hence, the constitutional requirement of a judicially authorized warrant supported by probable cause. The argument is without merit.
The alternative writ is discharged; the petition is denied.
Christian, Acting P.J., concurred.
POCHE, J.
I concur in the judgment and in parts IV and V of the lead opinion.
Before the entry by the three officers led by Officer Platt which gives rise to appellant's primary contentions, other undercover police officers were already lawfully in the residence and were eyewitnesses to the "buy." With respect to them no Ramey or knock-notice problems arise. *387 The observations of these officers formed an independent basis for the search warrant and for the seizure of each item sought to be suppressed. Accordingly, I see no need to address the issues, particularly those of constitutional dimension, discussed in parts I, II and III of the lead opinion. Any illegality involved in the arrest by the other officers or by the entry of the residence by them is irrelevant for purposes of evaluating the denial of this section 1538.5 motion.
Petitioner's application for a hearing by the Supreme Court was denied March 11, 1981.
NOTES
[*] Assigned by the Chairperson of the Judicial Council.
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991 F.Supp. 1237 (1998)
Randy LEONG, Plaintiff,
v.
TACO BELL CORPORATION, a foreign corporation, and Joseph Ertman, Defendants.
No. Civ. 97-1462-FR.
United States District Court, D. Oregon.
January 29, 1998.
Jana Toran, Portland, OR, for plaintiff.
Corbett Gordon, Kathleen H. Fields, Richard Meneghello, Corbett Gordon & Associates, P.C., Portland, OR, for defendants.
*1238 OPINION AND ORDER
FRYE, District Judge.
In this action, the plaintiff, Randy Leong, is suing his former employer, defendant Taco Bell Corporation (Taco Bell), for wrongful discharge and his former supervisor, defendant Joseph Ertman, for intentional interference with economic relations. Before the court is the motion of the plaintiff to remand (# 6-1) and for attorney fees (# 6-2) and the motion of the defendants for reconsideration (# 8).
BACKGROUND
The plaintiff, Randy Leong, filed this action in the Circuit Court of the State of Oregon for the County of Multnomah. In his complaint, plaintiff Leong alleges a claim for wrongful discharge against defendant Taco Bell and a claim for the intentional interference with economic relations against defendant Ertman.
The defendants removed the action to this court on December 23, 1996 on the ground that the joinder of defendant Ertman was fraudulent. Thereafter, this court determined that there was a factual question as to whether defendant Ertman was acting solely within the scope of his employment and, thus, whether defendant Ertman could be held liable as a third party to the economic relationship between plaintiff Leong and his employer, defendant Taco Bell. The court determined that because plaintiff Leong had stated a claim against defendant Ertman, defendant Ertman was not fraudulently joined, and complete diversity did not exist. Accordingly, on May 8, 1997, this court remanded the case to the Circuit Court of the State of Oregon for the County of Multnomah.
On October 8, 1997, the Honorable Frank Bearden, Multnomah County Circuit Court Judge, dismissed the claim against defendant Ertman after concluding that plaintiff Leong could not plead sufficient facts to support his claim that defendant Ertman was a third party to the economic relationship between plaintiff Leong and defendant Taco Bell.
On October 14, 1997, defendant Taco Bell filed a second notice of removal.
Plaintiff Leong then filed this motion to remand and request for attorney fees.
CONTENTIONS OF THE PARTIES
Plaintiff Leong contends that a case cannot be removed, even following a judgment dismissing a defendant, if the plaintiff has not dismissed or discontinued the case against that defendant. Defendant Taco Bell contends that fraudulent joinder is an exception to this rule.
ANALYSIS AND RULING
Defendant Taco Bell asks the court to reconsider its order of remand filed on May 8, 1997. In Seedman v. United States Dist. Court, 837 F.2d 413 (9th Cir.1988), the court explained that:
28 U.S.C. § 1447(c) requires a district court to remand a case to state court when it determines the case was improvidently removed. Remand orders based on section 1447(c) are unreviewable on "appeal or otherwise." 28 U.S.C. § 1447(d).
This language has been universally construed to preclude not only appellate review but also reconsideration by the district court. Once a district court certifies a remand order to state court it is divested of jurisdiction and can take no further action on the case.
Id. at 414.[1] The court declines to reconsider the first order of remand.
The "voluntary-involuntary" rule states that in the absence of fraudulent joinder, an action cannot be removed unless a voluntary act of the plaintiff causes a change that makes the case removable. Self v. General Motors Corp., 588 F.2d 655, 659 (9th Cir.1978).
Defendant Taco Bell contends that plaintiff Leong voluntarily amended his complaint, which is the type of action which makes this case removable. In his amended complaint, plaintiff Leong again alleges a *1239 claim against defendant Ertman. Only specific allegations are changed. This is not the type of voluntary action which makes the case removable.
Defendant Taco Bell next contends that Judge Bearden's dismissal of defendant Ertman for failure to state a claim means that defendant Ertman was fraudulently joined. To the contrary, Judge Bearden considered the statements that plaintiff Leong made in his deposition and concluded that plaintiff Leong was unable to plead as fact that defendant Ertman was not motivated in any way to serve his employer. Accordingly, Judge Bearden ruled that defendant Ertman was acting, at least in part, within the scope of his employment; that he was not a third party to the economic relationship between plaintiff Leong and defendant Taco Bell; and that he could not be held liable for interfering with that relationship.
This court decided that in light of the comments referring to plaintiff Leong's Chinese heritage, a jury could find that the comments related to the restaurant management skills of plaintiff Leong were motivated solely by racial discrimination.
Judge Bearden's ruling does not compel this court to conclude that there was no possibility that the state court would rule otherwise, and defendant Ertman would remain a party in the case. This court continues to hold that plaintiff Leong did not fraudulently join defendant Ertman in an attempt to defeat diversity jurisdiction. Consequently, this court lacks subject matter jurisdiction over this action, and it must be remanded.
Plaintiff Leong asks for an award of attorney fees and the costs incurred in his motion to remand. Since this court determined that removal of this case was improper, it may award attorney fees to plaintiff Leong to reimburse him for the unnecessary costs associated with the motion to remand. 28 U.S.C. § 1447(c); Moore v. Permanente Med. Group, Inc., 981 F.2d 443, 446-47 (9th Cir.1992). A finding of bad faith by the removing party is not necessary. Id. The court is given wide discretion in deciding whether to award fees. Id. at 447. Because this is the second time that this court has remanded the action, the court would consider awarding to plaintiff Leong the attorney fees and costs incurred in this motion to remand. Plaintiff Leong, however, has not provided the court with the expenses incurred. The court declines to award attorney fees.
Under 28 U.S.C. § 1447(c), the case must be remanded to the Circuit Court of the State of Oregon for the County of Multnomah.
ORDER OF THE COURT
The motion of the plaintiff, Randy Leong, to remand (# 6-1) is GRANTED. This case shall be remanded to the Circuit Court of the State of Oregon for the County of Multnomah. The motion of plaintiff Leong for attorney fees (# 6-2) is DENIED. The motion of the defendants for reconsideration (# 8) is GRANTED to the extent that the court has considered the argument submitted and DENIED in that the court declines to change the order of remand.
IT IS SO ORDERED.
NOTES
[1] 28 U.S.C. § 1447 has since been amended. However, the amendments are not relevant to the substantive issues raised in this case.
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490 A.2d 203 (1985)
Edward PERREAULT
v.
Carol PARKER.
Supreme Judicial Court of Maine.
Argued January 22, 1985.
Decided March 29, 1985.
*204 Rocheleau, Fournier & Lebel, P.A., Paul C. Fournier (orally), William Rocheleau, Jr., Lewiston, for plaintiff.
Pine Tree Legal Assistance, Inc., Patricia M. Ender (orally), Lewiston, for defendant.
Before McKUSICK, C.J., and ROBERTS, VIOLETTE, WATHEN, GLASSMAN and SCOLNIK, JJ.
VIOLETTE, Justice.
The plaintiff brought this forcible entry and detainer action in the District Court, Lewiston, to recover possession of an apartment that he owned and that the defendant had occupied for about three years as a tenant at will. The defendant contended that the eviction was retaliatory, and that the plaintiff was therefore precluded from obtaining the relief he sought. The District Court found that the plaintiff was entitled to possession of the premises. The Superior Court, Androscoggin County, upheld that finding. The defendant then appealed to this Court. We deny the appeal.
In October of 1980, the defendant, Carol Parker, began renting an apartment at 186 Blake Street in Lewiston from the plaintiff, Edward Perreault. The plaintiff testified that the agreed rent was $45 per week. The defendant testified that, although she could not remember the exact terms of the original rental agreement, she understood that the plaintiff would accept $180 per month.[1] Both parties testified that the defendant has regularly paid $180 per month since the start of the tenancy.[2] Based upon the discrepancy between $45 per week and $180 per month, the plaintiff testified that the defendant was thirteen weeks behind in the payment of her rent.
On about August 3, 1983 the plaintiff gave the defendant oral notice that he intended to raise the rent by $5 per week. The plaintiff testified, however, that after he learned that the rent increase would be invalid in the absence of thirty days written notice,[3] he never tried to collect the extra $5 per week.
*205 On August 30, 1983 the defendant filed a complaint with a code enforcement officer for the City of Lewiston. She reported to the officer various conditions in the apartment that she felt were in need of repair. She later made further complaints to the same authority concerning the apartment. Lewiston code enforcement officers visited the apartment on several occasions during the period between August 30 and mid-December of 1983. One code enforcement officer testified that during such visits he found several code violations. The plaintiff acknowledged receiving a Notice of Municipal Code Violations from the City of Lewiston on September 2, 1983. Apparently, the defendant had never complained about the condition of her apartment before August 30, 1983.
The defendant first received a notice to quit[4] from the plaintiff on September 8, 1983. A court, however, dismissed the resultant action. The plaintiff had a second notice to quit served upon the defendant on October 25, 1983. On December 2, 1983 the defendant received the summons and complaint for the action presently before this Court.
The District Court held a hearing on December 20, 1983. On January 10, 1984 the trial judge ruled for the plaintiff. The defendant requested findings of fact and conclusions of law from the District Court. After accepting proposed findings and conclusions from both parties, the trial judge adopted verbatim those submitted by the plaintiff, and granted judgment to the plaintiff for possession. The Superior Court affirmed the judgment on August 28, 1984. The defendant then appealed to this Court.
The process of forcible entry and detainer allows a landlord to evict a tenant through the issuance of a writ of possession by the District Court. 14 M.R.S.A. §§ 6001(1), 6005 (Supp.1984). A presumption of retaliation by the landlord arises, however, if, within six months prior to the commencement of the action, the tenant has:
Complained as an individual, or a complaint has been made in his behalf, in good faith, of conditions affecting his dwelling unit which may constitute a violation of a building, housing, sanitary or other code, ordinance, regulation or statute, presently or hereafter adopted, to a body charged with enforcement of that code, ordinance, regulation or statute, or such a body has filed a notice or complaint of such a violation.
14 M.R.S.A. § 6001(3)(B) (Supp.1984). "No writ of possession may issue in the absence of rebuttal of the presumption of retaliation." 14 M.R.S.A. § 6001(3) (Supp.1984).
In the case at bar, the tenant defended against the forcible entry and detainer action on the ground that the plaintiff could not recover possession of the premises because the action was retaliatory. See 14 M.R.S.A. § 6001(3) (Supp.1984). The District Court, however, found that the defendant's complaints to the City of Lewiston code enforcement body were not made in good faith because they occurred only after she received notification from the plaintiff of a five dollar per week rent increase. The District Court also found that the basis for the eviction was the defendant's refusal to pay the agreed rent. For those two reasons, the court concluded that "[t]he provisions of 14 M.R.S.A. § 6001(3) are not applicable."
Before addressing the retaliation issue, we pause to comment on the fact that the District Court adopted verbatim the findings of fact and conclusions of law proposed by the plaintiff. In In re Sabrina M., we noted at some length our disapproval of such a practice. 460 A.2d 1009, *206 1013 (Me.1983); see also Clifford v. Klein, 463 A.2d 709, 711-13 (Me.1983). There is a significant danger that findings and conclusions adopted verbatim from a proposal of the prevailing litigant will be inadequate under M.D.C.Civ.R. 52(a). See In re Sabrina M., 460 A.2d at 1013; Clifford, 463 A.2d at 712. Nevertheless, "[i]t is not automatic error for the trial court to adopt verbatim the findings proposed by counsel...." In re Sabrina M., 460 A.2d at 1012. This was not a complex case where it would have been difficult for counsel "to divine the rationale supporting the decision of the court." Clifford, 463 A.2d at 713. After close scrutiny, we determine that the District Court's findings and conclusions, although certainly flawed,[5] "are sufficiently explicit to give ... an understanding of the basis of its decision." In re Sabrina M., 460 A.2d at 1013. Accordingly, they are sufficient under M.D.C.Civ.R. 52(a). Id.
Returning to the retaliation issue, we first determine that the District Court erred by finding the statutory presumption of retaliation inapplicable based upon the defendant's lack of good faith in complaining to the Lewiston code enforcement body. The statute provides that the presumption of retaliation arises when, within six months prior to the commencement of a forcible entry and detainer action, the tenant has "[c]omplained as an individual, or a complaint has been made in his behalf, in good faith, of [a code violation] to a body charged with enforcement of that code ..., or such a body has filed a notice or complaint of such a violation." 14 M.R.S.A. § 6001(3)(B) (Supp.1984) (emphasis added). The plain language of section 6001(3)(B) makes good faith an issue only when the basis for the presumption is a complaint to the code enforcement body by the tenant or someone in his behalf. When the basis for the presumption is the filing of a notice of a code violation by an enforcement body, the good faith of the tenant is not an issue. In this case, the record shows that the plaintiff received a Notice of Municipal Code Violations issued by the Lewiston code enforcement body within six months prior to the commencement of the forcible entry and detainer action. This evidence is sufficient to establish the statutory presumption of retaliation without regard to whether the defendant acted in good faith when she complained to the code enforcement body. See 14 M.R.S.A. § 6001(3)(B) (Supp.1984).
We also determine, however, that, although the presumption of retaliation did arise in this case, the plaintiff successfully rebutted it. See 14 M.R.S.A. § 6001(3) (Supp.1984). "[A] presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence." M.R.Evid. 301(a). In this case, therefore, the plaintiff had to show that the nonexistence of a retaliatory motive for the eviction was more probable than its existence. The trial court found that the plaintiff rebutted the presumption of retaliation by establishing that the basis for the eviction was the defendant's refusal to pay the agreed rent in full. Although not free from doubt, this finding is not clearly erroneous on the record before us.[6]See Harmon v. Emerson, 425 A.2d 978, 981-82 (Me.1981). Because the plaintiff rebutted the presumption of retaliation by establishing a non-retaliatory *207 motive for the eviction, section 6001(3) presented no bar to the issuance of a writ of possession. We therefore deny the appeal.
The entry is:
Judgment affirmed.
McKUSICK, C.J., and ROBERTS, WATHEN and GLASSMAN, JJ., concurring.
SCOLNIK, Justice, dissenting.
I respectfully dissent. In an effort to give the District Court Judge the benefit of the doubt, the Court adopts a strained reading of his conclusions that obscures the legal error he committed. Because that error deprived the defendant of an important protection, I would vacate and remand for a new trial.
The Court's opinion correctly demonstrates that the District Court Judge erred in finding that no presumption of retaliation arose. Whatever motivated the tenant's original complaint, the landlord also received a notice of Municipal Code Violation, showing that the tenant's complaint had merit. Within a week, the landlord served the tenant with a notice to quit. Nonetheless, the District Court Judge did not recognize that he was bound to presume retaliation. He said,
[t]he provisions of 14 M.R.S.A. § 6001(3) are not applicable because the Defendant's complaints were not made in good faith and because the Plaintiff has established that the basis for the eviction was the Defendant's refusal to pay the agreed rent.[1]
Because he explicitly did not presume retaliation as the statute required, the Judge could not properly have weighed the evidence. This Court stretches the meaning of the above quoted statement of the District Court Judge when it states that he found plaintiff rebutted the presumption of retaliation by establishing that the basis for eviction was defendant's refusal to pay the agreed rent in full. A fact finder who concludes that a presumption is not applicable is hardly likely to "find" that the presumption has been rebutted, let alone to evaluate whether the plaintiff had carried his burden under M.R.Evid. 301(a) of proving that the nonexistence of the presumed fact is more probable than its existence. The mere appearance of a non-retaliatory motive for eviction in the evidence is not sufficient, since M.R.Evid. 301(a) does not embody the "bursting bubble" theory of presumptions. Ambassador Ins. Co. v. Dumas, 402 A.2d 1297, 1299 (Me.1979). To find the presumption inapplicable was plain error that tainted beyond salvage the further finding regarding the basis for eviction.
I dissent in this case because the District Court Judge's error of law goes to the heart of the defendant's case and contravenes a strong public policy. The error unavoidably affected the fact-finding. Thus this Court should not rely on a contradictory factual conclusion to hold that the error was inconsequential. In barring retaliatory evictions the Legislature has given tenants a very important protection. Doubts and contradictory findings should be resolved in favor of the tenant to ensure that the legislative policy behind 14 M.R. S.A. § 6001(3) is carried out. The defendant is entitled to a fair and legally correct hearing when her eviction is presumptively retaliatory.
NOTES
[1] The defendant paid rent to the plaintiff monthly, apparently because her state aid checks came at the beginning of each month. She asserted that $180 was the most she could afford per month. According to the defendant, the plaintiff accepted this monthly amount without complaint until about June of 1982. The plaintiff testified that he told the defendant from the outset of the tenancy that she would be responsible for a rental amount equal to $45 per week.
[2] There were two months during the period of the tenancyJune of 1981 and December of 1983where the defendant did not pay $180 to the plaintiff. In June of 1980 the defendant paid $135 in rent. She gave the plaintiff an extra $45 in October of 1983, however, to compensate for this aberration from her regular monthly payments of $180. In December of 1983 the defendant paid $167 in rent. The defendant testified that she deducted $13 from her regular $180 payment to pay for pesticides she purchased to remedy a cockroach problem.
[3] See 14 M.R.S.A. § 6015 (Supp.1984).
[4] The defendant had no written lease and thus was a tenant at will. See 33 M.R.S.A. § 162 (1978); State v. Fin & Feather Club, 316 A.2d 351, 358 n. 4 (Me.1974). The plaintiff had to terminate the defendant's tenancy pursuant to 14 M.R.S.A. § 6002 (Supp.1984), which imposes a notice requirement, before he could maintain a forcible entry and detainer action against her. 14 M.R.S.A. § 6001(a)(Supp.1984).
[5] For example, these findings and conclusions completely omit any mention of the plaintiff's receipt of a Notice of Municipal Code Violations from the City of Lewiston on September 2, 1983, a fact material to the retaliation issue. See infra p. 206. The plaintiff's receipt of such a notice was clearly established on the record by the plaintiff's own admission.
[6] There was conflicting testimony concerning whether the monthly payments made by the defendant fully satisfied her rental obligation. See supra pp. 204-205 note 1. The plaintiff testified that they did not, and that the resultant arrearage was the basis for the eviction. It is the role of the fact finder to resolve issues of credibility. Qualey v. Fulton, 422 A.2d 773, 775-76 (Me.1980). We cannot say that it was irrational for the trial court to believe the plaintiff's testimony on this issue. See id. at 776.
[1] It is not clear from the findings of fact that the defendant actually refused to pay any rent that had, in fact, been "agreed" upon previously.
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NO. 07-02-0439-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
SEPTEMBER 3, 2003
______________________________
SHANON LEE THOMAS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT OF ARMSTRONG COUNTY;
NO. 2538; HONORABLE HUGH REED, JUDGE
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
In presenting one question of law for our decision, appellant Shanon Lee Thomas
contends his conviction of the Class C Misdemeanor offense of speeding must be
reversed. His complaint and challenge are based upon the State’s failure to file a formal
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
complaint before trial de novo in the County Court of Armstrong County. Disagreeing that
reversal is required, we affirm the judgment of the trial court.
The underlying facts and the procedural history of this case are undisputed. On
December 24, 2001, appellant was driving on a public highway in Armstrong County when
he was stopped by a Department of Public Safety Trooper. As a result of the stop, the
trooper issued a citation, charging that appellant was driving 95 miles per hour in an area
with a posted speed limit of 70 miles per hour.
In the justice court, appellant appeared by counsel, who filed a written nolo
contendere plea. Contemporaneously with the plea, counsel filed an appeal bond seeking
appeal to the Armstrong County Court. When the case was called for trial in the county
court, appellant unsuccessfully sought dismissal of the prosecution on the basis that the
State had never filed a complaint or information meeting the requirements of article 45.019
of the Code of Criminal Procedure (the Code). At trial, the only testimony produced was
that of the trooper. At the conclusion of the bench trial, appellant was assessed a fine of
$200 and court costs.
In support of his sole point of error, appellant initially cites article 27.14(d) of the
Code. That article provides that for a misdemeanor offense for which the maximum
punishment is a fine, written notice of an offense “serves as a complaint to which the
defendant may plead ‘guilty,’ ‘not guilty,’ or ‘nolo contendere.’” However, the article goes
on to provide that if the defendant pleads not guilty, “a complaint shall be filed that
2
conforms to the requirements of Chapter 45 of this Code, and that complaint serves as an
original complaint.” Tex. Code Crim. Proc. Ann. art. 27.14(d) (Vernon Pamph. 2003).
Appellant argues that because of his not guilty plea in the county court, the requirement of
a complaint meeting the requirements of Chapter 45 became operative. In responding, the
State concedes that the county court erred in proceeding to trial without a complaint
meeting Chapter 45 requirements, but it contends the error was harmless
In support of his proposition that reversal is required, appellant cites two cases,
namely, State v. Campbell, 820 S.W.2d 44 (Tex.App.–Austin 1991, pet. ref’d), and State
v. Shaw, 822 S.W.2d 807 (Tex.App.–Austin 1992, no pet.). That reliance requires a
discussion of the two cases. In each case, the State was appealing a dismissal by the
county court at law of a speeding charge upon which the appellant had been found guilty
in the justice court. In Campbell, the county court at law had reversed and dismissed the
cause because of perceived deficiencies in the justice court’s judgment. In reversing that
dismissal, the appellate court held that when Campbell appealed the justice court judgment
against him, he “stood before the county court at law as if the prosecution began in that
court, unaffected by what might have happened in the justice court.” Thus, the justice court
judgment was a nullity and any deficiencies in that judgment did not matter. 820 S.W.2d
at 45.
In Shaw, the defendant moved for dismissal of the de novo trial in the county court
at law on the basis that no complaint meeting the requisites of the progenitor of present
3
Chapter 45 of the Code2 had been filed in the justice court at the time the defendant pled
nolo contendere in that court. The appellate court reversed the dismissal because
“appellee (the defendant) pleaded no contest, the requirement that a formal complaint was
never triggered . . .” 822 S.W.2d at 809.3 Thus, the Shaw court’s relevant holding here
was that the procedure concerning the necessity for a complaint in the justice court carried
forward to the trial de novo in the county court. Neither of these decisions support
appellant’s argument and indeed militate against it.
We agree with the interpretation given the statute by the Austin court. By filing his
nolo contendere plea, appellant obviated the necessity for the filing of a formal complaint
by the State. Therefore, under this record, there is no reversible error.
Accordingly, the judgment of the trial court is affirmed.
John T. Boyd
Senior Justice
Do not publish.
2
Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon Supp. 1977).
3
But see, Tex. Atty Gen.Op. JM-869 (1988).
4
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-1584
___________
United States of America, *
*
Plaintiff/Appellee, *
*
v. *
*
Kelley Anne Liveoak, *
*
Defendant/Appellant. *
___________
Appeals from the United States
No. 03-1694 District Court for the Western
___________ District of Missouri.
United States of America, *
*
Plaintiff/Appellee, *
*
v. *
*
Robert Joseph Dupont, Jr. *
*
Defendant/Appellant. *
___________
03-2029
___________
United States of America, *
*
Plaintiff/Appellee, *
*
v. *
*
Julia Elaine Bazazzadegan, *
*
Defendant/Appellant. *
__________
Submitted: November 19, 2003
Filed: July 27, 2004
___________
Before MELLOY, RICHARD S. ARNOLD, and SMITH, Circuit Judges.
___________
MELLOY, Circuit Judge.
Robert Dupont, Jr., Kelley Liveoak, and Julia Bazazzadegan were charged with
various counts involving a home health care fraud scheme. Dupont pled guilty and
seeks to have his plea set aside for failure of consideration. Liveoak appeals her
conviction, claiming improper joinder and that her motion for acquittal should have
been granted. Bazazzadegan appeals the amount of loss assessed against her at
sentencing. We affirm in part and reverse in part.
I. BACKGROUND
On June 15, 2000, the government filed a twenty-two count indictment against
eleven individuals and four corporations. In the indictment, the government alleged
a health care fraud scheme that involved several residential care facilities, thousands
of claims, and over 200 patients. The government alleged that over at least five years
fifteen defendants, in various conspiracies, defrauded the government by falsely
-2-
certifying patients as homebound and submitting false claims to Medicare and
Medicaid.
In order to receive home health services under Medicare, physicians are
required to certify that certain individuals are considered homebound and require
home health care. In this case, the various defendant home health agencies that
provided these home health services, as well as their owners, were alleged to have
conspired with the doctors to fraudulently certify patients as requiring home health
care.
The Personal Care Program of Medicaid provides services to individuals who
need assistance with everyday activities, such as bathing and taking medication. To
qualify for this program, patients are assessed by case managers who visit residential
care facilities. In this case, the government alleged defendants submitted false
applications for payment for services on dates when the patients were in the hospital
and therefore not receiving the personal care services.
A. Robert Dupont, Jr.
Appellant Robert Dupont, Jr. was charged with ten counts, including
conspiracy to defraud the United States, failure to file a cost report with the Medicare
Program, submitting false applications for Medicaid Benefits, and paying illegal
renumeration under the Medicare Program. Three days into his trial, Dupont agreed
to plead guilty to Count One, conspiracy to defraud the United States, in violation of
Title 18 U.S.C. § 371. The government dismissed the remainder of the charges
against him.
Though the written plea agreement made no mention of the condition, Dupont
believed that the government would dismiss all charges against his stepdaughter,
Kelley Liveoak, in exchange for his plea. Dupont’s counsel also believed dismissal
-3-
of all charges against Liveoak was a term of the agreement, and he stated this
understanding at the plea hearing. The government moved to dismiss only one of the
two counts against Liveoak.
B. Kelley Liveoak
Appellant Kelley Liveoak was charged in Counts One and Nine. In Count One,
the government alleged that Liveoak participated in a conspiracy to defraud the
United States government under the Medicare Part A program in violation of 18
U.S.C. § 371. In Count Nine, the government alleged that Liveoak submitted false
applications for Medicaid benefits in violation of 42 U.S.C. § 1320a-7b(a)(1). The
government dismissed Count One against Liveoak after Dupont’s guilty plea.
On March 8, 2002, the magistrate judge ordered that all remaining defendants
and counts be set for joint trial. Liveoak filed a Motion for Reconsideration of the
magistrate judge’s order, asking that her trial be severed from the trial of her co-
defendant. The magistrate judge denied the motion on June 16, 2002. Trial began
the next day against Dr. David Ray Trobaugh, Dr. Rafael Calabria, and Liveoak.
Dr. Trobaugh was charged in Counts Two, Six, and Eighteen. Count Two
alleged that Dr. Trobaugh, along with three other individual defendants and three
corporate defendants, conspired to certify patients as being homebound, when they
were allegedly not homebound, in violation of 18 U.S.C.§ 371. Count Six alleged
that Dr. Trobaugh conspired with certain defendants to obtain benefit payments based
on the false certification of patients as being homebound, in violation of 18
U.S.C.§ 286. Count Eighteen alleged that Dr. Trobaugh was illegally receiving
kickbacks related to home health care.
Dr. Calabria was charged in Counts Four and Eight. Count Four alleged that
Dr. Calabria conspired with two other individual defendants and two corporate
-4-
defendants to certify patients as being homebound, when they were allegedly not
homebound, in violation of 18 U.S.C.§ 371. Count Eight alleged that Dr. Calabria
conspired with certain defendants to obtain benefit payments based on the false
certification of patients as being homebound, when they were allegedly not
homebound, in violation of 18 U.S.C.§ 286.
Liveoak was named only in Count Nine. Count Nine alleged that Liveoak,
along with Lou Ann Dinkmeier and Dupont, submitted false claims for
reimbursement under the Missouri Medicaid Program for personal care services in
violation of 42 U.S.C. § 1320a-7b(a)(1) and 18 U.S.C. § 2.
Liveoak moved for a judgment of acquittal at the end of the government’s case
in chief, and it was denied. The jury found Liveoak guilty of Count Nine and
acquitted Dr. Trobaugh and Dr. Calabria on all counts. On February 27, 2003, the
district court sentenced Liveoak to six months imprisonment, with a recommendation
she be placed in a halfway house.
C. Julia Bazazzadegan
Appellant Bazazzadegan was accused of conspiring to certify certain patients
as homebound to make them eligible to receive home health services. After the court
granted her motion for severance, she proceeded to trial on February 8, 2002.
Bazazzadegan presented evidence that the total loss to the government, as it relates
to her, was $12,478.36. The government did not present any other evidence at trial
regarding the amount of loss as it relates to Bazazzadegan.
Bazazzadegan pled guilty to Count Two, conspiring with Co-Defendant Dr.
Trobaugh, and Count Four, conspiring with Co-Defendant Dr. Calabria, to certify
patients as homebound. She was convicted of Counts One and Five at trial. The
district court sentenced her to 30 months imprisonment, followed by three years of
-5-
supervised release. The district court ordered restitution of $122,386.81 to be paid
within the first 30 months of release, and a mandatory assessment of $400.
II. DISCUSSION
A. Robert Dupont, Jr.
Dupont states in his appeal that he and his attorney believed that, in exchange
for Dupont’s guilty plea, all charges against his stepdaughter, Kelley Liveoak, would
be dropped. Because only one of two counts against Liveoak was dropped after his
plea, Dupont argues that the district court should have set aside his guilty plea due to
the failure of consideration for the plea. The government responds that there was no
such element in the plea agreement and that Dupont failed to object or move for relief
in the district court.
We review the denial of a motion to withdraw a plea for abuse of discretion.
United States v. Gamble, 327 F.3d 662, 663 (8th Cir. 2003). We find the district
court did not err in failing to set aside the guilty plea.
Even assuming Dupont satisfied procedural requirements below, his contention
that his plea agreement included dismissal of all charges against Liveoak is without
support in the record. There is no mention in the plea agreement of either of the
charges against Liveoak being dropped. Further, the plea agreement states:
The defendant has read the Plea Agreement, understands it, and by his
signature, states that it is true and accurate and not the result of any
threats or coercion. Both parties agree that no promises or agreements
have been made other than those set forth in the Plea Agreement, nor has
the United States promised the defendant any additional consideration
to induce him to sign this Plea Agreement.
-6-
Dupont Plea Agreement at page 8. Dupont signed the agreement on February 13,
2002. The statements therein directly contradict the argument he brings on appeal.
Therefore, we find that the district court did not err in failing to set aside his guilty
plea for lack of consideration.
B. Kelley Liveoak
Kelley Liveoak argues on appeal that the district court erred in: (1) failing to
sever Liveoak’s case for trial and (2) failing to grant Liveoak’s motion for judgment
of acquittal at the end of the government’s case.
1. Improper Joinder
Liveoak claims that the charge against her at trial was unrelated to the charges
against the two doctors with whom she was tried. She argues that while the doctors
were charged with home health violations under Medicare (falsely certifying patients
as homebound and illegally receiving benefits), she was not implicated in the
Medicare fraud, but charged with falsely submitting claims to Medicaid. The
government alleges that all the activities were related and, citing a statement by
Dupont, the scheme was “to hit Medicaid and Medicare hard before they knew what
hit them.”
This court reviews claims of misjoinder de novo. United States v. Rimell, 21
F.3d 281, 288 (8th Cir. 1994). However, “misjoinder requires reversal only if it
resulted in actual prejudice because it had substantial and injurious effect or influence
in determining the jury’s verdict.” United States v. Sazenski, 833 F.2d 741, 745 (8th
Cir. 1987) (internal quotations omitted). This court reviews a denial of a motion to
sever for an abuse of discretion and will reverse only upon a showing of severe
prejudice. United States v. Rock, 282 F.3d 548, 552 (8th Cir. 2002).
-7-
To properly join defendants for trial, the indictment must allege that the
defendants “participated in the same act or transaction, or in the same series of acts
or transactions, constituting an offense or offenses.” Fed. R. Crim. P. 8(b). It is not
necessary that all defendants be charged in each count. Id. “The prerequisites for
joinder are liberally construed in favor of joinder.” Rimell, 21 F.3d at 288. In
Rimell, joinder was proper when “the indictment reflect[ed] a sequence of connected
events with the defendants being involved at various points in the continuum.” Id.
at 289.
If joinder of defendants in the indictment “appears to prejudice a defendant or
the government, the court may order separate trials of counts, sever the defendants’
trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14(a). “To
grant a motion for severance, the necessary prejudice must be ‘severe or
compelling.’” United States v. Pherigo, 327 F.3d 690, 693 (8th Cir. 2003) (quoting
United States v. Warfield, 97 F.3d 1014, 1018 (8th Cir. 1996)). “In our consideration
of the jury’s ability to compartmentalize the evidence against the joint defendants, we
consider 1) the complexity of the case; 2) if one or more of the defendants were
acquitted; and 3) the adequacy of admonitions and instructions by the trial judge.”
Pherigo, 327 F.3d at 693.
Liveoak argues that her case was improperly joined with the cases of Drs.
Trobaugh and Calabria, because there was no common scheme alleged linking the
charges of the three defendants. She asserts that the doctors are alleged to have
schemed to defraud Medicare by falsely certifying patients as homebound. Liveoak
argues that the claim against her—that she submitted false claims to Missouri
Medicaid for actual patients, but for dates during which they were in the hospital and
not receiving care—is not part of a common scheme with the two doctors. The
government, on the other hand, sees the activities as part of the same health care fraud
scheme or related schemes.
-8-
We find that joinder was proper in this case. Though charges linked merely by
common conspiracy members may not be joined, United States v. Nicely, 922 F.2d
850 (D.C. Cir. 1991), the charges here are linked not only by common conspiracy
members, but also by an overall scheme in which each conspiracy member
participated to fraudulently charge the government for health care costs. Further,
even assuming Liveoak’s case was improperly joined, she suffered no actual
prejudice. Sazenski, 833 F.2d at 745 (in case of misjoinder, reversal required only
upon showing of actual prejudice). Given that there was ample evidence supporting
her conviction and the fact that her co-defendants were acquitted, Liveoak cannot
show that misjoinder had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Id.
We also find unpersuasive Liveoak’s related arguments that the district court
abused its discretion in failing to grant her motion for severance because the jury was
not able to compartmentalize the evidence. As stated above, there are three factors
given in Pherigo that the court can use to assess the risk that the jury will not be able
to compartmentalize the evidence: “1) the complexity of the case; 2) if one or more
of the defendants were acquitted; and 3) the adequacy of admonitions and instructions
by the trial judge.” Pherigo, 327 F.3d at 693. The first factor is present to some
extent, because the overarching conspiracy was complicated. However, what this jury
had before it was not the whole conspiracy, but three defendants with six counts
between them. The case was therefore not overly complex. The second factor clearly
weighs in favor of the government, because both the doctors were acquitted on all
counts. The third factor also weighs in favor of the government, because the court
provided adequate admonitions to the jury. In light of these factors, Liveoak has
failed to show that the district court abused its discretion in failing to grant severance.
-9-
2. Motion for Acquittal
Liveoak argues that the district court erred in denying her motion for judgment
of acquittal at the end of the government’s case. When reviewing the sufficiency of
the evidence, we view the evidence in the light most favorable to the verdict, giving
the verdict “the benefit of all reasonable inferences that might have been drawn from
the evidence presented.” United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.
1996).1 In this case, the district court considered all the evidence and found it
sufficient to support a conviction. Having reviewed the record, we find that the
district court properly denied Liveoak’s motion for judgment of acquittal.
C. Julia Bazazzadegan
On appeal, Bazazzadegan claims that the district court erred in calculating the
amount of loss in her case. First, she agues that the evidence did not reasonably
support the loss estimate used by the district court, as required by U.S.S.G. § 2B1.1
n.3(C)(i). Second, she argues that the district court failed to give credit for the fair
market value of the services rendered, as required under U.S.S.G. § 2B1.1 n.3(E)(i).
The government responds, first, that activities involving a common purpose were
properly considered when assessing the loss; and, second, that no offset was
appropriate because the Part B (physicians services) payments would never net
against Part A (home health benefit) losses.
1
The government’s first argument in response is that Liveoak is appealing her
motion for acquittal she made at the close of the government’s evidence, and that this
motion was waived when she subsequently put on evidence in her defense. While it
is true that her first motion for acquittal was waived, Zacher v. United States, 227
F.2d 219, 222 (8th Cir. 1955), Liveoak made a second motion for acquittal after the
close of all evidence. We treat her appeal as one of this latter motion.
-10-
Generally, we review the district court’s application of the Federal Sentencing
Guidelines de novo. United States v. Gonzales, 220 F.3d 922, 926 (8th Cir. 2000).
However, “[l]oss calculations also involve factual findings, which we review for clear
error and reverse only if ‘we are left with a definite and firm conviction that the
district court erred.’” United States v. Piggie, 303 F.3d 923, 926-27 (8th Cir. 2002)
(quoting United States v. Whatley, 133 F.3d 601, 606 (8th Cir. 1998)); see also 18
U.S.C. § 3742(e).
1. Evidentiary Claim
When calculating a sentence, the sentencing court must “make a reasonable
estimate of the loss.” U.S.S.G. § 2B1.1 n.3(C). “The estimate of the loss shall be
based on available information, taking into account, as appropriate and practicable
under the circumstances, factors such as the following: (i) The fair market value of
the property unlawfully taken. . . .” Id. “The government bears the burden of proving
the amount of loss by a preponderance of the evidence.” United States v. Sample,
213 F.3d 1029, 1034 (8th Cir. 2000).
The only evidence in the record regarding the amount of loss in
Bazazzadegan’s case is the testimony of two nurses at trial. The government
presented evidence regarding three patients of Bazazzadegan’s home health agency,
Paul E., John H., and Timothy S. Nurse Michelle Bahansen testified that the
overpayment for Paul E. for home health benefits was $3,742.38 and that the
overpayment for John H. was $1,369.54. Nurse David Newman testified that the loss
to the government for overpayment for Timothy S. was $7,366.44. The government
presented no other evidence as to the amount of loss for which Bazazzadegan was
responsible. The total loss shown by the government was therefore $12,478.36.
However, the government recommended the loss figure of $122,386.81, based on
other defendants’ plea agreements. Bazazzadegan disputed the figure in her plea
-11-
agreement. The court adopted the government’s figure and ordered Bazazzadegan
to pay restitution in the amount of $122,386.81.
The presentence report in this case recommended a loss amount in excess of
$1 million. The government responded by indicating it was recommending a loss
figure of $122,336.81. The defendant also disputes the loss computation but does not
indicate a specific dollar amount. Both the government and the defendant referenced
the plea agreement which provides that the government will assert that the loss to the
defendant will result in no more than a ten level enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(1). This stipulation means that the government was recommending a loss
between $120,000 and $200,000. The plea agreement goes on to recite that the
defendant disputes this loss amount. The net effect is that the loss amount is in
dispute and the amount set forth in the plea agreement was objected to. We have
repeatedly held that the presentence report is not evidence when a timely objection
is made. United States v. DeWitt, 366 F.3d 667, 671 (8th Cir. 2004); United States
v. Stapleton, 268 F.3d 597, 598 (8th Cir. 2001); United States v. Hammer, 3 F.3d 266,
272 (8th Cir. 1993).
We are unable to determine from the record the basis of the court's finding that
the loss amount was $122,386.81. The court did state at the beginning of the
sentencing hearing "I am going to use the same amount. $122,386. Do you have any
dispute with that?" Ms. Bazazzadegan's attorney then went on to indicate that she did
dispute that amount and set forth the reasons for the dispute. However, the
government presented no evidence to support the $122,386 figure. It appears that the
$122,386 loss figure may have come from a stipulation involving a co-defendant.
However, that is unclear from the record, and there is nothing to indicate that a co-
defendant stipulation would be in any way binding upon Ms. Bazazzadegan.2
2
Our review of the record is further complicated by the fact that apparently a
number of exhibits were introduced into evidence at the sentencing hearing. None
of those exhibits have been made part of the appellate record.
-12-
We must conclude the government failed to prove the amount of loss was
$122,386.81 as to defendant Bazazzadegan. We therefore remand this claim to the
sentencing court for further development of the record as to the amount of loss.3
2. Offset Claim
Once the sentencing court estimates the amount of loss, it must credit the fair
market value of the services rendered against this figure. U.S.S.G. § 2B1.1 n.3(E)(i).
(“Loss shall be reduced by the following: The money returned, and the fair market
value of the property returned and the services rendered, by the defendant or other
persons acting jointly with the defendant, to the victim before the offense was
detected.”) Bazazzadegan argues that, if there had been no fraudulent billing, some
of the home health care her patients received would have been received in a different
form (a visit to a physician’s office, instead of a physician’s visit to the home), which
would have been reimbursed by the government. In other words, Medicare would
have paid for the office visit, so the amount of loss for the home health care should
be offset by the cost of this legitimate service.
The district court heard evidence on this issue at Ms. Bazazzadegan's
sentencing. It made a finding that it was mere speculation as to whether the patients
would have gone to the doctor if they weren't homebound, or if they would have
received all the services provided by the doctors in this case. The judge went on to
find that there was no doubt that all the conspirators were working together to make
as much money in a fraudulent manner as possible. Consequently, he did not feel that
any offset was appropriate. We cannot conclude that factual finding was clearly
erroneous and will not overturn it on appeal.
3
Bazazzadegan is the only defendant who appeals her sentence in this case. We
are expressing no opinion whether Blakely v. Washington, No. 02-16322004 WL
1402697 (U.S. June 24, 2004), has any applicability at the time of resentencing.
-13-
III. CONCLUSION
The judgment of the district court is affirmed with regard to Robert Dupont, Jr.
and Kelley Liveoak. As to the judgment against Julia Bazazzadegan, we reverse and
remand for resentencing.
-14-
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4 N.Y.3d 627 (2005)
830 N.E.2d 301
797 N.Y.S.2d 403
JO'ELL SHEPPARD-MOBLEY, by His Father and Natural Guardian, LEMUEL MOBLEY, et al., Respondents,
v
LESLIE KING, M.D., et al., Appellants.
Court of Appeals of the State of New York.
Argued March 21, 2005.
Decided May 10, 2005.
*629 McAloon & Friedman, P.C., New York City (Timothy J. O'Shaughnessy and Lawrence W. Mumm of counsel), for Leslie A. King, M.D. and another, appellants.
Marulli & Associates, P.C., New York City (John Tomaszewski *630 and Pamela M. Gleit of counsel), for Ira J. Spector, M.D., appellant.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York City (Steven C. Mandell of counsel), for Sheila Kumari-Subaiya, M.D. and another, appellants.
*631 Davidson & Cohen, P.C., Rockville Centre (Bruce E. Cohen of counsel), for respondents.
*632 Law Offices of Michael A. Haskel, Mineola (Michael A. Haskel of counsel), for University Associates in Obstetrics and Gynecology, P.C., amicus curiae.
Mauro Goldberg & Lilling LLP, Great Neck (Kenneth Mauro and Richard J. Montes of counsel), for New York and Presbyterian Hospital and others, amici curiae.
*633 Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Steven J. Ahmuty, Jr. of counsel), and Susan C. Waltman, New York City, for Beth Israel Medical Center and others, amici curiae.
Michael A. Cardozo, Corporation Counsel, New York City (Fay Leoussis, Laurel Hoffman, Kristin M. Helmers and Alan G. Krams of counsel), for New York City Health and Hospitals Corporation, amicus curiae.
Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains (Edward J. Guardaro, Jr. of counsel), for Combined Coordinating Counsel, Inc., amicus curiae.
Shoshana T. Bookson, New York City, Val Washington, Clifford S. Nelson and Glenn von Nostitz for New York State Trial *634 Lawyers Association, Inc., amicus curiae.
LeBoeuf, Lamb, Greene & MacRae, L.L.P, New York City (Jay G. Safer and Brian K. Friedman of counsel), for Medical Society of the State of New York and another, amici curiae.
OPINION OF THE COURT
G.B. SMITH, J.
In Broadnax v Gonzalez and Fahey v Canino (2 N.Y.3d 148 [2004]), this Court held that medical malpractice resulting in a miscarriage or stillbirth must be construed as a violation of the duty of care to the expectant mother, entitling her to damages for emotional distress. This case calls upon us to determine whether an expectant mother may recover damages for emotional harm where the alleged medical malpractice causes in utero injury to the fetus, subsequently born alive. We hold that, under Broadnax/Fahey, she may not.
In July 1999, plaintiff Karen Sheppard met with defendant Dr. Leslie A. King, of defendant Obstetrical & Gynecological Services of Rockville Centre (OGSRC), complaining of lower abdominal discomfort. After conducting various tests, Dr. King informed her both that she was pregnant and that she had large fibroids in her uterus. Dr. King told her that as a result of her fibroids, she was not likely to carry the fetus to term. Sheppard alleges that Dr. King advised her to terminate the pregnancy.
Dr. King subsequently referred Sheppard to Dr. Ira J. Spector for a second opinion concerning the performance of a surgical *635 abortion. She asserts that Dr. Spector informed her that as a result of the fibroids, her pregnancy would not last beyond the fifth month, and that if the fibroids did not abort the pregnancy, "the baby would be terrible." However, Dr. Spector advised her that, given her condition, a surgical abortion would be difficult and dangerous. Thus, Dr. Spector suggested that a nonsurgical abortion be accomplished with the drug methotrexate, which breaks down fetal tissue.
In August 1999, while Sheppard was in her seventh week of pregnancy, Dr. King administered the methotrexate. According to Dr. King, he acted in consultation with Dr. Spector, who allegedly advised that the drug be administered in two separate 50-milligram doses, the second dose to be administered one week after the first. Upon administering the second dose, Dr. King allegedly advised Sheppard that she could detect no fetal heartbeat. Shortly thereafter, Sheppard met with defendant Dr. Sheila Kumari-Subaiya, a radiologist and owner of defendant Promedica Imaging, P.C., because although Sheppard believed the pregnancy to be terminated, she was concerned about the absence of fetal discharge. Dr. Kumari-Subaiya performed a sonogram and advised Sheppard that there was no fetal heartbeat.
Sheppard asserts that over the next few months, she experienced abdominal and pelvic discomfort and was concerned about the possibility of ovarian, cervical or uterine cancer. She consulted with a different radiology group, and after a sonogram was performed, learned that the abortion procedure had failed and that she was in her 28th week of pregnancy. Sheppard alleges that Dr. King had given her too small a dose of methotrexate to accomplish the abortion.
When Drs. King and Spector learned that Sheppard was still pregnant and that the fetus was at risk of birth defects due to exposure to methotrexate, they discussed with her the possibility of an out-of-state late-term abortion. Sheppard ultimately rejected that option and decided to carry the child to term. On March 3, 2000, infant plaintiff Jo'Ell Sheppard-Mobley was born, suffering from fetal methotrexate syndrome, manifested through serious congenital impairments. This action was commenced in Supreme Court on behalf of Sheppard, the infant and the infant's father, Lemuel Mobley, alleging malpractice by Drs. King, Spector and Kumari-Subaiya, as well as OGSRC and Promedica. In seven causes of action, the complaint alleges that infant plaintiff suffered severe physical injuries caused by *636 defendants' failure to properly diagnose, care for and treat Sheppard during the course of her pregnancy. The complaint seeks to recover damages on behalf of the infant for his physical injuries and for the parents' loss of the child's services and medical expenses. On behalf of Sheppard, the complaint alleges physical and emotional injuries caused by defendants' alleged medical malpractice. Finally, as against Dr. King, OGSRC and Dr. Spector, the complaint alleges lack of informed consent in their treatment of Sheppard.
Defendants made motions for summary judgment dismissing various causes of action, the most pertinent of which was their motion to dismiss the sixth cause of action seeking damages for Sheppard's emotional distress. While the trial court granted defendants' motion, the Appellate Division overturned that decision. Noting that during the pendency of the appeal, this Court decided Broadnax/Fahey and thereby implicitly overruled Tebbutt v Virostek (65 NY2d 931 [1985]), the Appellate Division concluded that even in the absence of physical injuries, Sheppard could recover damages for emotional distress caused by a violation of the duty of care owed to her while she was being treated during her pregnancy. The Court concluded that while Broadnax/Fahey involved the stillbirth or miscarriage due to alleged malpractice, this Court's analysis was also applicable to cases involving the live birth of a severely impaired child. Thus, the Court reinstated this cause of action, and granted defendants leave to appeal to this Court. We now modify the order of the Appellate Division by dismissing the sixth cause of action with leave to plaintiffs to replead that claim, and otherwise affirm.
Our decision in Broadnax/Fahey was intended to fill a gap created by our previous decision in Tebbutt which concerned the medical malpractice performed upon the body of an expectant mother resulting in a miscarriage or stillbirth. Our jurisprudence has long permitted infants who suffer a legally cognizable injury in the womb and survive the pregnancy to seek damages for their injuries (see Woods v Lancet, 303 NY 349 [1951]). We also have long permitted a pregnant mother who suffered an independent injury as a result of malpractice to bring suit for her own personal injuries (see Ferrara v Bernstein, 81 NY2d 895 [1993]; Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697 [1987]). However, where medical malpractice caused a miscarriage or stillbirth, no claim for wrongful death existed on behalf of the child (see Endresz v Friedberg, 24 NY2d 478 [1969]). As we held in Tebbutt, the expectant mother could not *637 bring a cause of action for negligently causing a miscarriage or stillbirth (65 NY2d 931 [1985]).
As we recognized in Broadnax/Fahey, our tort jurisprudence in this area created a "peculiar result" in that "it exposed medical caregivers to malpractice liability for in utero injuries when the fetus survived, but immunized them against any liability when their malpractice caused a miscarriage or stillbirth" (2 NY3d at 154). Moreover, we recognized the injustice created by "categorically denying recovery to a narrow, but indisputably aggrieved, class of plaintiffs" (id.). It was this particular injustice that we sought to rectify when we held that a mother could recover for emotional injuries when medical malpractice caused a stillbirth or a miscarriage, even without a showing that she suffered an independent physical injury. In other words, our holding in Broadnax/Fahey is a narrow one, intended to permit a cause of action where otherwise none would be available to redress the wrongdoing that resulted in a miscarriage or stillbirth.
In the case now before us, the Appellate Division improperly extended our decision in Broadnax/Fahey by reinstating Sheppard's sixth cause of action seeking damages for emotional harm based on the birth of a live infant with physical injuries. The rule pronounced in Broadnax/Fahey does not apply here, where infant plaintiff was injured in utero, but carried to term and born alive. After all, as we stated in Woods v Lancet, a child born alive may bring a medical malpractice action for physical injuries inflicted in the womb (303 NY 349 [1951]).
However, as defendants conceded during oral argument, Sheppard's sixth cause of action can proceed to the extent that she seeks damages for emotional harm that she suffered as a result of an independent injury (see Ferrara, 81 NY2d at 898 [plaintiff permitted to recover emotional damages caused by negligent abortion services and the defendant's failure to inform her of the incomplete abortion and the need to promptly return to the medical facility]; Martinez, 70 NY2d at 699 [plaintiff entitled to recover damages for mental anguish suffered as a result of the defendant's breach of duty to her in negligently advising her that her child would be born with severe congenital defects, thus convincing her to obtain an unnecessary abortion, contrary to her strongly held beliefs]).
Sheppard now alleges that as a result of defendants' breach of their duties owed directly to her, she suffered mental *638 anguish resulting from an independent injury. Specifically, Sheppard claimed that she was advised that due to fibroids, she would not be able to carry her child to term. Relying on defendants' advice, she underwent a chemical abortion. She was subsequently informed that the procedure was a success when, in fact, it had failed. Upon learning that she was carrying a compromised fetus, she had to decide whether to seek an out-of-state late-term abortion or give birth to a child likely to have congenital defects due to exposure to methotrexate. Such allegations may support a finding of injury independent of the birth of an impaired child. Because the complaint does not set forth these independent allegations, however, we dismiss the sixth cause of action and remit for Sheppard to amend her complaint to plead such injury. Finally, we conclude that the Appellate Division properly reinstated the first two causes of action against Drs. King and Spector brought on behalf of infant plaintiff. To be sure, a cause of action may not be maintained on behalf of an infant plaintiff based on a claim of "wrongful life" or the assertion that but for the negligence of the healthcare provider, the parent would have aborted the fetus rather than giving birth to a child with abnormalities (see Alquijay v St. Luke's-Roosevelt Hosp. Ctr., 63 NY2d 978 [1984]; Becker v Schwartz, 46 NY2d 401 [1978]). However, as the Appellate Division properly concluded, the first two causes of action are not limited to wrongful life claims. Thus, infant plaintiff does not claim that defendant doctors negligently failed to administer the proper dosage of methotrexate in order to abort the pregnancy. Rather, he has alleged that his injuries were caused by defendants' erroneous advice to Sheppard that she would not be able to carry the fetus to term and thereby wrongly advised her to undergo the chemical abortion. Infant plaintiff claims that had defendants not been negligent in this regard, Sheppard would not have undergone methotrexate treatments and she would have given birth to a healthy child. These claims are sufficient to overcome defendants' motion to dismiss (see Woods, 303 NY at 356-357).
Accordingly, the order of the Appellate Division should be modified, without costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed. The certified question should be answered in the negative.
*639 Order modified, etc.
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 7, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
VICTOR CEJKA; JAMES WALKER;
STEVEN WASCHER; JAMIE LYTLE,
Plaintiffs - Appellees/Cross-
Appellants,
and
JENNIFER CROSS,
Plaintiff,
v. Nos. 18-1439 & 18-1459
(D.C. No. 1:15-CV-02418-MEH)
VECTRUS SYSTEMS CORPORATION, (D. Colo.)
f/k/a Exelis Systems Corporation,
Defendant - Appellant/Cross-
Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Plaintiffs Victor Cejka, Jamie Lytle, Steven Wascher, and James Walker
(plaintiffs) sued their former employer, Vectrus Systems Corporation (Vectrus).
Plaintiffs claimed they engaged in protected whistleblowing activity and alleged that,
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
in retaliation, Vectrus wrongfully discharged them in violation of Colorado state law
and 10 U.S.C. § 2409 (Supp. II 2008), a Department of Defense (DOD)
whistleblower-protection statute. The district court granted summary judgment to
Vectrus on three of the plaintiffs’ § 2409 claims. The remaining claims were tried by
a jury, which found for the plaintiffs. The district court affirmed the verdict after
Vectrus filed two motions for a judgment as a matter of law and a motion for a new
trial.
Cejka, Lytle, and Wascher appeal the district court’s order granting summary
judgment to Vectrus on their § 2409 claim. Because this order contradicts the plain
language of § 2409, we reverse the district court’s grant of summary judgment to
Vectrus. And Vectrus appeals the district court’s orders denying its motions for
judgment as a matter of law for two reasons. First, it argues plaintiffs cannot bring
Colorado wrongful-discharge claims because such claims are available only to at-will
employees, which plaintiffs are not. Second, Vectrus argues that Wascher’s and
Walker’s claims fail because they argued that they were constructively discharged,
which requires resignation, and Wascher and Walker testified that they did not
resign. Vectrus also appeals the district court’s order denying its motion for a new
trial, arguing that the jury heard military evidence that was irrelevant and unduly
prejudicial. Because we reject Vectrus’s arguments for the reasons explained below,
we affirm the district court’s orders denying Vectrus’s posttrial motions.
2
Background
Plaintiffs formerly worked for Vectrus as security investigators on a military
subcontract at Bagram Air Force Base (Bagram) in Afghanistan. Vectrus employed
each plaintiff under a one-year contract, terminable by Vectrus for cause or for
convenience with a 30-day notice. During their employment, each plaintiff reported
to military officials that they believed Vectrus employees engaged in unlawful
conduct. In response to these reports, the military raided Vectrus operations in
Afghanistan in November 2013 and removed eight Vectrus employees. The next
month, Vectrus terminated Cejka’s and Lytle’s employment and transferred Wascher
and Walker from Bagram to forward operating bases that were rumored to be closing.
Vectrus then gave Wascher and Walker the option of accepting a biometric-clerk
position or accepting a layoff. Wascher and Walker chose to be laid off, effective
June 1, 2014, and July 10, 2014, respectively.
Plaintiffs then filed a complaint against Vectrus, claiming that Vectrus
violated (1) § 2409, a DOD whistleblower-protection statute, and (2) Colorado
common law prohibiting wrongful termination in violation of public policy.1
Relevant to this appeal, Vectrus moved for summary judgment on Cejka’s, Lytle’s,
and Wascher’s § 2409 claims, arguing that their claims fail because their separations
occurred before § 2409’s protections applied to the Vectrus subcontract under which
1
Each plaintiff also brought an outrageous-conduct claim. The district court
dismissed two of those claims and granted Vectrus summary judgment on the others.
3
they were employed. The district court agreed, granting Vectrus summary judgment
on those three plaintiffs’ § 2409 claims.
Walker’s § 2409 claim and all four plaintiffs’ state-law wrongful-discharge
claims eventually were tried to a jury. During trial, military personnel described
plaintiffs’ reports, the military’s investigation into Vectrus, and the resulting raid.
The district court also admitted several military documents related to the
investigation.
After plaintiffs set forth their evidence at trial, Vectrus made two motions for
judgment as a matter of law under Federal Rule of Civil Procedure 50. Specifically,
Vectrus argued that (1) all plaintiffs’ wrongful-discharge claims fail because this
doctrine applies only to at-will employees and plaintiffs were not at-will employees,
and (2) Wascher’s and Walker’s wrongful-discharge claims, which were based on a
constructive-discharge theory, fail because Wascher and Walker did not resign and
instead Vectrus laid them off. The district court denied the motions and submitted the
case to the jury.
The jury found for plaintiffs on all claims. Specifically, the jury found for all
four plaintiffs on their state-law wrongful discharge claims, concluding they engaged
in whistleblowing activity and that Vectrus knew of this activity. With respect to
Cejka and Lytle, the jury found that Vectrus terminated them because of this
whistleblowing activity. With respect to Wascher and Walker, the jury found that
Vectrus constructively discharged them—that is, the jury found that that because of
their whistleblowing activity, Vectrus made Wascher’s and Walker’s “working
4
conditions . . . so difficult or intolerable that [they] had no reasonable choice but to
resign.” App. vol. 35, 10,388, 10,392. For the same reasons, the jury also found for
Walker on his § 2409 claim.
After the trial, Vectrus renewed its Rule 50 motions for a judgment as a matter
of law and filed a motion for new trial under Federal Rule of Civil Procedure 59. In
addition to the arguments it made in its initial Rule 50 motions, Vectrus argued that
Walker’s § 2409 claim should fail because he did not resign. Relevant to this appeal,
Vectrus argued in its new-trial motion that the district court erred in permitting
military personnel to testify and in admitting military documents. The district court
denied all Vectrus’s post-trial motions.
Cejka, Lytle, and Wascher appeal the district court’s order granting summary
judgment to Vectrus on their § 2409 claims. Vectrus appeals the district court’s
orders denying its motions for judgment as a matter of law and its motion for a new
trial.
Analysis
I. Motion for Summary Judgment on Applicability of § 2409 to Plaintiffs
Plaintiffs argue that the district court erred in granting summary judgment to
Vectrus on Cejka’s, Lytle’s, and Wascher’s § 2409 claims. Plaintiffs, who worked on
a military subcontract, brought a claim under § 2409, a whistleblower-protection law
that provides protection to certain individuals who make a complaint “related to a
[DOD] contract.” § 2409(a). A version of § 2409 enacted in 2008 applied to
“employee[s] of a contractor.” Id. In 2013, Congress expanded the scope of
5
employees covered by § 2409 from “[a]n employee of a contractor” to “[a]n
employee of a contractor or subcontractor.” § 2409 (2012); see also National Defense
Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, sec. 827, § 2409, 126
Stat. 1632, 1833 (2013).
Vectrus filed a motion for summary judgment, arguing in part that § 2409 did
not protect Cejka, Lytle, and Wascher at the time they separated from Vectrus. In
ruling on the motion, the district court first determined that plaintiffs were
“employees of a subcontractor, not a contractor,” and concluded that the 2008
version of the statute therefore did not apply to plaintiffs. Supp. App. vol. 3, 461.
Next, the district court determined that the 2013 version of the statute—which
explicitly includes subcontractors—likewise did not apply. Vectrus employed
plaintiffs under a contract it had with a DOD prime contractor—that is, an entity that had
a contract directly with the DOD. And Vectrus and the prime contractor did not modify
their contract to incorporate the amended statutory language until June 17, 2014.
Because Cejka, Lytle, and Wascher separated from Vectrus before this date, the
district court determined that they were not protected by the 2013 version of § 2409.
Therefore, the district court granted Vectrus summary judgment on Cejka’s, Lytle’s,
and Wascher’s § 2409 claims.
We review de novo an order on summary judgment, “applying the same
standard as the district court.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1180 (10th
Cir. 2018). Summary judgment is appropriate if “there is no genuine dispute as to any
material fact.” Fed. R. Civ. P. 56(a). When summary judgment turns on a question of
6
statutory interpretation, we interpret the statute—here § 2409 (Supp. II 2008)—
de novo. See Elephant Butte Irrigation Dist. of N.M. v. U.S. Dep’t of Interior, 538
F.3d 1299, 1301 (10th Cir. 2008). Thus, we will reverse the district court if its order
is based on an incorrect interpretation of § 2409.
On appeal, Cejka, Lytle, and Wascher do not challenge the district court’s
determination that the 2013 amendment applied to Vectrus’s subcontract only after
they left Vectrus. Instead, they argue that, based on its plain meaning, the 2008
version of the statute protected them. See Edwards v. Valdez, 789 F.2d 1477, 1481
(10th Cir. 1986) (explaining that generally, a statute’s “literal language . . .
controls”). Specifically, plaintiffs argue that the 2008 statute covered them because
(1) Vectrus was a prime military contractor and (2) they made a complaint “related to
a [DOD] contract.” § 2409(a) (emphasis added). First, plaintiffs note that § 2409
defined a “contractor” as “a person awarded a contract or a grant with an agency.”
§ 2409(e)(4) (Supp. II 2008). And Vectrus stipulated that when it employed
plaintiffs, it “held prime contracts with certain agencies within the [DOD].” Supp.
App. vol. 2, 331. Thus, plaintiffs reason, Vectrus was a contractor per § 2409 because
it was “awarded a contract” with the DOD. § 2409(e)(4) (Supp. II 2008). And
because plaintiffs were employed by Vectrus, they were “employee[s] of a
contractor.” § 2409(a) (Supp. II 2008).
Next, plaintiffs argue that they made a complaint “related to a [DOD]
contract,” even if it was not the contract under which they were employed. § 2409(a)
(Supp. II 2008) (emphasis added). In doing so, they point to guidance from the
7
Supreme Court stating that “[t]he ordinary meaning of [relating to] is a broad one—
‘to stand in some relation; to have bearing or concern; to pertain; refer; to bring into
association with or connection with.’” Morales v. Trans World Airlines, Inc., 504
U.S. 374, 383 (1992) (quoting Black’s Law Dictionary 1158 (5th ed. 1979)); see also
Related, Black’s Law Dictionary (11th ed. 2019) (defining “related” as “[c]onnected
in some way; having relationship to or with something else”). And, plaintiffs argue,
reporting what they believed to be security violations regarding Vectrus’s subcontract
with a DOD prime contractor “[stood] in some relation” to that prime contractor’s
contract with the DOD. Morales, 504 U.S. at 383 (quoting Black’s Law Dictionary
1158 (5th ed. 1979)).
Plaintiffs also point out that the district court’s reasoning depends on an
interpretation of the 2008 version of § 2409(a) that reads additional text into the
statute. That is, the district court interpreted the statute to cover only the employees
of a contractor working on a contract with a covered agency. But as plaintiffs note,
the 2008 version made no such limitation: it covered “employee[s] of a contractor”
with no further specifications. § 2409(a). And “[w]e do not—we cannot—add
provisions to a federal statute.” Alabama v. North Carolina, 560 U.S. 330, 352
(2010).
Vectrus waived all but one of its arguments in reply because it
“incorporate[ed]” its briefing on the issue below “by reference.” Aplt. Rep. Br. 43;
see United States v. Patterson, 713 F.3d 1237, 1250 (10th Cir. 2013) (explaining that
party “waived the claim” when party “fail[ed] to develop any argument on th[e]
8
claim at this court” and instead incorporated briefing below by reference). In its
appellate briefing, Vectrus argues that if the 2008 version of § 2409 applied to
plaintiffs even though they worked on a subcontract, then certain aspects of the 2013
amendment would have been unnecessary. But this argument misunderstands the
effect of post-enactment legislative history. Although an amendment might inform us
of the perspective of the amending 2013 Congress, it says nothing about the meaning
of the 2008 statute. Indeed, “[p]ost-enactment legislative history (a contradiction in
terms) is not a legitimate tool of statutory interpretation” because it “could have had
no effect on the congressional vote.” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242
(2011) (second quoting District of Columbia v. Heller, 554 U.S. 570, 605 (2008)).
Accordingly, the 2013 amendments have no bearing on our interpretation of the 2008
version of § 2409. We therefore reject Vectrus’s argument.
We conclude that the plain language of § 2409 applies to plaintiffs.
Specifically, as described above, because Vectrus was a “contractor,” plaintiffs were
“employee[s] of a contractor,” and they made a complaint “related to a [DOD]
contract.” § 2409(a), (e)(4) (Supp. II 2008). And Vectrus’s argument about the 2013
amendments do not disturb this plain language. See Edwards, 789 F.2d at 1481. Thus,
the district court erred in concluding that Cejka’s, Lytle’s, and Wascher’s
whistleblowing activity was not protected by § 2409. Accordingly, we reverse the
district court’s order granting summary judgment to Vectrus on Cejka’s, Lytle’s, and
Wascher’s § 2409 claims and remand this issue to the district court.
II. Motions for Judgment as a Matter of Law on Wrongful-Discharge Claims
9
After trial, Vectrus filed two renewed motions for judgment as a matter of law
under Rule 50(b), arguing that (1) all plaintiffs’ wrongful-discharge claims fail
because Colorado’s wrongful-discharge doctrine does not apply to at-will employees
and plaintiffs were at-will employees, and (2) Wascher’s and Walker’s wrongful-
discharge claims fail because they argued they were constructively discharged but
testified that they did not resign—and resignation is a required element of
constructive discharge. In two separate orders, the district court denied these
motions, and Vectrus appeals.
We review the denial of a motion for a judgment as a matter of law de novo,
“applying the same standard as the district court.” Bannister v. State Farm Mut. Auto.
Ins. Co., 692 F.3d 1117, 1126 (10th Cir. 2012). Thus, we must affirm the denial
unless Vectrus demonstrates that a “reasonable jury would not have a legally
sufficient evidentiary basis to find for” plaintiffs. Fed. R. Civ. P. 50(a)(1). In doing
so, we “construe the evidence and inferences most favorably to the nonmoving party,
[the plaintiffs,] and refrain from weighing the evidence, passing on the credibility of
witnesses, or substituting our judgment for that of the jury.” Bannister, 692 F.3d at
1126 (quoting Magnum Foods, Inc. v. Cont’l Cas. Co., 36 F.3d 1491, 1503 (10th Cir.
1994)).
A. Availability to Non-At-Will Employees
Vectrus argues that the district court erred in denying its Rule 50 motion
regarding all plaintiffs’ Colorado wrongful-discharge claims because only at-will
employees can bring wrongful-discharge claims and plaintiffs were not at-will.
10
In denying the motion below, the district court analyzed Martin Marietta
Corp. v. Lorenz, where the Colorado Supreme Court first recognized a wrongful-
discharge claim for termination in violation of public policy. 823 P.2d 100, 108
(Colo. 1992). Specifically, Martin Marietta stated:
In light of Colorado’s long-standing rule that a contract violative of
public policy is unenforceable, it is axiomatic that a contractual
condition, such as the terminability condition of an at-will employment
contract, should also be deemed unenforceable when violative of public
policy. There is no question that the manifest public policy of this state
is that neither an employer nor an employee should be permitted to
knowingly perpetrate a fraud or deception on the federal or state
government. A corollary of this policy is that an employee, whether
at-will or otherwise, should not be put to the choice of either obeying an
employer’s order to violate the law or losing his or her job.
Id. at 109 (emphasis added). Based largely on this passage, the district court
determined that non-at-will employees could bring Colorado wrongful-discharge
claims.
On appeal, Vectrus first argues that only at-will employees can bring Colorado
wrongful-discharge claims because the Colorado Supreme Court describes wrongful
discharge as an exception to at-will employment. To be sure, wrongful discharge is
an exception to at-will employment, and the Colorado Supreme Court has described
it as much. See, e.g., Crawford Rehab. Servs., Inc. v. Weissman, 938 P.2d 540, 547
(Colo. 1997) (describing wrongful discharge as a “judicially crafted exception[]” to
at-will employment). But the fact that at-will employees can bring wrongful-
discharge claims despite their at-will employment does not mean that non-at-will
employees cannot bring such claims. Indeed, Vectrus does not cite to a single
11
Colorado case affirmatively holding that non-at-will employees cannot bring a
wrongful-discharge claim. Instead, it cites only to cases involving at-will employees.2
See Coors Brewing Co., 978 P.2d at 666-67; Crawford Rehab. Servs., Inc., 938 P.2d
at 546–47. As such, those courts had no reason to consider whether non-at-will
employees could bring wrongful-discharge claims for violation of public policy.
Thus, these cases’ descriptions of wrongful discharge do not limit the scope of who
may bring wrongful discharge claims.
Vectrus next argues that the district court erred because it ignored our decision
in Doll v. U.S. West Communications, Inc., 60 F. App’x 250 (10th Cir. 2003)
(unpublished). There, after a pro se appeal, we upheld a district court opinion ruling
that “a [Colorado] retaliatory-discharge claim is available only to at-will employees.”
Id. at 251–52. We did not independently analyze the issue, and instead “affirm[ed]
for substantially the reasons expressed by the district court.” Id. at 252. The district
court in Doll determined that an employee covered by a collective bargaining
agreement (CBA) could not bring a Colorado wrongful-discharge claim because
“such a wrongful discharge claim is an exception to the at-will doctrine.” Doll v. U.S.
2
Neither Crawford nor Coors explicitly states that the plaintiffs were
employed at will. But the cases’ analyses imply that they were at-will employees. See
Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999) (explaining definition
of at-will employment); Crawford Rehab. Servs., Inc., 938 P.2d at 546–47
(explaining significance of being employed at-will). Moreover, if the employees in
these cases were not at-will, then these cases would provide further evidence that
non-at-will employees can bring wrongful-discharge claims.
12
W. Commc’ns, Inc., 85 F. Supp. 2d 1038, 1046 (D. Colo. 2000), aff’d in part, 60
F. App’x 250.
Because Doll is unpublished, it can be persuasive, but not binding. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1. And there is good reason to find Doll
unpersuasive and deviate from its holding. In Doll, the district court reasoned that
“no Colorado state court case has ever addressed . . . whether a party to a CBA can
assert [a wrongful-discharge] claim.” Doll, 85 F. Supp. 2d at 1046. But in fact, a
Colorado court had addressed this issue prior to the panel’s decision in Doll.
Specifically, in Lathrop v. Entenmann’s, Inc.—which Martin Marietta cited
favorably—the court recognized a wrongful-discharge claim brought by a
CBA-covered employee. See Martin Marietta, 823 P.2d at 108; Lathrop v.
Entenmann’s, Inc., 770 P.2d 1367, 1372–73 (Colo. App. 1989). In doing so, the court
in Lathrop explicitly rejected the employer’s argument that “such a claim should be
barred if the employment relationship is governed by a collective bargaining
agreement.” Lathrop, 770 P.2d at 1373. It reasoned that the wrongful-discharge
doctrine is “based solely upon [Colorado’s] public policy” and “the duty of the
employer to refrain from retaliation in violation of a state’s public policy does not
find its source in any private contract.” Id.; see also Ferris v. Bakery, Confectionery
& Tobacco Union, Local 26, 867 P.2d 38, 45 (Colo. App. 1993) (upholding district
court’s order denying employer summary judgment on CBA-covered employee’s
wrongful-discharge claim). In discussing wrongful discharge, neither the district
13
court nor appellate court in Doll discussed Lathrop or Ferris.3 See Doll, 60 F. App’x
at 252; Doll, 85 F. Supp. 2d at 1046–47. Accordingly, we decline to follow Doll here.
Plaintiffs argue that Lathrop and Ferris, among other cases, show that
Colorado wrongful discharge is not limited to at-will employees. For the reasons
discussed above, we agree. Because we conclude that non-at-will employees may
bring wrongful-discharge claims, we need not determine whether plaintiffs were
at-will employees. Accordingly, we affirm the district court’s order denying
Vectrus’s motion for judgment as a matter of law on this issue.
B. Constructive Discharge
Vectrus argues that even if plaintiffs could file wrongful-discharge claims,
Walker’s § 2409 claim and Wascher’s and Walker’s wrongful-discharge claims fail
because (1) Wascher and Walker relied exclusively on a constructive-discharge
theory, which requires that employees resign, and (2) they did not resign because
they were laid off. In response, Wascher and Walker contend that Vectrus’s argument
defines “resignation” too narrowly. Aplee. Br. 32. Alternatively, Wascher and
Walker urge us to uphold the jury verdict because Vectrus “concede[d] that they were
actually terminated” and “the ‘whole point’ of the constructive-discharge doctrine is
that it is the functional equivalent of an actual termination.” Aplee. Br. 38.
Below, the jury found that Vectrus constructively discharged Wascher and
Walker because they “proved by a preponderance of the evidence that [their]
3
It is worth noting that the plaintiff in Doll appealed pro se. See Doll, 60 F.
App’x at 251.
14
separation[s] from Vectrus constituted a resignation from employment” and that
Vectrus made their “working conditions so . . . intolerable that [they] had no
reasonable choice but to resign.”4 App. vol. 35, 10,388, 10,392; see also Wilson v.
Bd. of Cty. Comm’rs, 703 P.2d 1257, 1259 (Colo. 1985) (noting that employee is
constructively discharged if employer “makes or allows an employee’s working
conditions to become so difficult or intolerable that the employee has no other choice
but to resign”). The jury also found that this constructive discharge was wrongful
because Wascher and Walker reported conduct that they “reasonably believed was
unlawful” and that Vectrus made their working conditions intolerable because of
those reports. App. vol. 35, 10,388, 10,392; see also Krauss v. Catholic Health
Initiatives Mountain Region, 66 P.3d 195, 203 (Colo. App. 2003) (explaining that
discharge is wrongful when it “contravenes a clear mandate of public policy”). After
trial, Vectrus filed a Rule 50 motion, arguing that the jury’s constructive-discharge
finding was against the weight of the evidence. See Fed. R. Civ. P. 50 (explaining
that court may grant “judgment as a matter of law” to party if “a reasonable jury
4
The district court explicitly instructed the jury on resignations versus layoffs.
Specifically, jury instruction number 30 read:
You have heard that just before their separations of employment from
Vectrus, Plaintiffs Walker and Wascher were informed that their
positions were to be “de-scoped,” and Vectrus offered Walker and
Wascher positions as biometric clerks. You will decide, based on the
evidence presented, whether Walker’s and Wascher’s decisions to
decline the positions constituted resignations (as opposed to layoffs)
from employment.
App. vol. 35, 10,433.
15
would not have a legally sufficient evidentiary basis to find for the [non-moving]
party”).
The district court denied this motion. First, it found that “there was ample
evidence at trial of [p]laintiffs’ [intolerable] working conditions.” App. vol. 37,
10,852. Next, the court rejected Vectrus’s argument that Wascher’s and Walker’s
testimony that they were laid off was dispositive, stating that “whether [p]laintiffs
resigned is a quintessential jury question.” App. vol. 37, 10,850. And the district
court found sufficient evidence for a jury to determine that Wascher and Walker
resigned. For example, the district court noted that both men signed a job offer
declination form stating that “I decline the conditions of employment as stated above,
with the understanding that it will result in separation and demobilization.” App.
vol. 37, 10,851. Moreover, in an exit questionnaire, Vectrus asked Wascher his
“primary reason for leaving,” and Wascher responded “[p]ersonal issues/reasons.”
App. vol. 37, 10,851.
The district court then determined that constructive discharge does not “turn
on the ultimate mechanical act of whether the employer or the employee makes the
final move.” App. vol. 37, 10,854. Instead, the district court concluded, Colorado
courts consider resignation in a broader context and focus on whether the separation
of employment was voluntary. Thus, because it determined there was ample evidence
that Wascher’s and Walker’s separations from employment were not voluntary, the
district court denied Vectrus’s Rule 50 motion. Applying de novo review, we must
affirm this denial unless Vectrus demonstrates that a “reasonable jury would not have
16
a legally sufficient evidentiary basis to find for” plaintiffs. Fed. R. Civ. P. 50(a)(1);
see also Bannister, 692 F.3d at 1126.
In attempting to make this demonstration, Vectrus first notes that “[t]o prove a
constructive discharge, a plaintiff must present sufficient evidence establishing
deliberate action on the part of an employer [that] makes or allows an employee’s
working conditions to become so difficult or intolerable that the employee has no
other choice but to resign.” Wilson, 703 P.2d at 1259 (emphasis added). Thus,
Vectrus contends, an employee who did not explicitly resign cannot bring a
constructive-discharge claim. But the cases Vectrus relies on do not address the
nuanced situation before us—where Wascher and Walker accepted a layoff in lieu of
a demotion. In one of those cases, the employee explicitly resigned, and the
definition of “resignation” was not at issue. See Green v. Brennan, 136 S. Ct. 1769,
1774 (2016). So that case tells us little about whether the definition of “resignation”
is limited to instances where an employee explicitly resigns. In the other cases
Vectrus relies on, employees were unable to bring constructive-discharge claims
because their employers explicitly terminated them.5 See Jackson v. Dillard’s Dep’t
Stores, Inc., 92 F. App’x 583, 588 n.5 (10th Cir. 2003) (unpublished) (holding that
5
Vectrus also cites to Cummings v. Brookhaven Science Associates, LLC,
No. 11 CV 1299 DRH ETB, 2011 WL 6371753 (E.D.N.Y. Dec. 20, 2011)
(unpublished) and Valenti v. Carten Controls Inc., No. CIV. 3:94CV1769 AHN, 1997
WL 766854 (D. Conn. Dec. 4, 1997) (unpublished). As these cases are district court
opinions from other circuits, they hold little persuasive value here. This is likewise
true for Vectrus’s reliance on Justice Thomas’s dissent in Pennsylvania State Police
v. Suders, 542 U.S. 129 (2004).
17
employee could not sustain her constructive-discharge claim because she “did not
resign; she was terminated”); Koinis v. Colo. Dep’t of Pub. Safety, 97 P.3d 193, 196
(Colo. App. 2003) (declining to find constructive discharge when “complainant’s
employment had already been terminated when he submitted his letter of
resignation”). Accordingly, these cases are inapt for the more nuanced situation
Wascher and Walker faced.
Here, Vectrus gave Wascher and Walker the option of accepting a demotion or
being laid off, and they chose to be laid off. And when (1) an employer gives an
employee a choice between a demotion and separation of employment and (2) the
employee choses separation of employment, persuasive authority6 indicates that the
employee has resigned within the meaning of Colorado’s constructive-discharge law.
For example, in James v. Sears, Roebuck & Co., plaintiffs successfully brought an
Age Discrimination in Employment Act (ADEA) constructive-discharge claim after
their employer pressured them to accept an early retirement package by threatening
them with a demotion, among other things. 21 F.3d 989, 993–94 (10th Cir. 1994); see
also Cockrell v. Boise Cascade Corp., 781 F.2d 173, 175 (10th Cir. 1986) (permitting
6
As this is a Colorado state-law claim, Colorado substantive law applies.
Where, as here, there is no decision on the issue from the Colorado Supreme Court,
we must “predict” how the Colorado Supreme Court could rule. Johnson v. Riddle,
305 F.3d 1107, 1118 (10th Cir. 2002). In Wilson, an early Colorado constructive-
discharge case, the Colorado Supreme Court noted that “[t]he doctrine of
‘constructive discharge’ has been developed largely through the federal courts” and
relied almost exclusively on federal law when establishing Colorado’s definition of
constructive discharge. 703 P.2d at 1259. Thus, we consider federal constructive-
discharge law persuasive here.
18
ADEA constructive-discharge claim when employer told employee to accept a
demotion or “leave” and employee left). These cases demonstrate that employees can
resign for the purposes of constructive-discharge law when they choose their
separation of employment—even if they did not explicitly resign. Thus, the fact that
Wascher and Walker did not expressly resign does not automatically mean they did
not satisfy the resignation element of a constructive-discharge claim.
Vectrus next argues that even if separation in lieu of demotion can sometimes
serve as the basis of a constructive discharge claim, it does not do so here.
Specifically, it argues that this case does not present the “typical situation in which
an employer demotes an employee . . . and the employee resigns rather than accept
the demotion” because Wascher’s and Walker’s security investigator positions were
eliminated by the prime contractor—meaning that Vectrus played no role in the
decision to lay them off. Aplt. Rep. Br. 16. And, Vectrus continues, its offers of
biometric-clerk positions were helpful, not harmful, to Wascher and Walker because
it could have not offered them another position. Thus, Vectrus concludes, Wascher
and Walker “did not ‘refuse[] a demotion’” and instead “refused an offer of
continued employment.” Aplt. Rep. Br. 19 (alteration in the original).
But Wascher and Walker contend that even if their positions were eliminated
by the prime contractor, Vectrus nevertheless deliberately targeted them for a layoff
by “sending them to bases that would soon be closing.” Aplee. Br. 12. And the jury
heard testimony to this effect. For example, an employee-relations specialist at
Vectrus testified that Vectrus sent Wascher and Walker to bases that were rumored to
19
be closing. Further, Wascher testified that before his and Walker’s transfers, other
employees volunteered to go to those bases, but Vectrus nevertheless transferred him
and Walker. And Walker testified that after his transfer, Vectrus asked for volunteers
to transfer back to Bagram and that he was not transferred back, despite volunteering.
Therefore, contrary to Vectrus’s assertion, there is evidence in the record from which
a reasonable jury could find that Vectrus targeted Wascher and Walker for layoff.
Moreover, Vectrus’s argument assumes that the only “deliberate action”
Vectrus took to create an intolerable work environment was to eliminate their
positions. Wilson, 703 P.2d at 1259. To the contrary, Wascher and Walker testified
that Vectrus management called them “troublemaker[s]” and “traitors,” threatened to
terminate them, transferred them to more dangerous forward operating bases, and
ignored their requests to return to Bagram despite openings. App. vol. 15, 4275,
4277. And this evidence supports the jury’s finding that Wascher and Walker
“proved by a preponderance of the evidence that [their] working conditions were so
difficult or intolerable that [they] had no reasonable choice but to resign.” App.
vol. 35, 10,388, 10,392. Thus, even if Vectrus had no choice but to eliminate
Wascher’s and Walker’s positions, the record nevertheless supports a jury finding
that Vectrus deliberately subjected Wascher and Walker to conditions such that they
felt they had no reasonable option but to leave Vectrus. Fed. R. Civ. P. 50.
Vectrus next argues that Wascher’s and Walker’s testimony that they did not
resign demonstrates that the jury did “not have a legally sufficient evidentiary basis
to find” that Vectrus constructively discharged them. Id. In doing so, Vectrus
20
highlights portions of Wascher’s and Walker’s testimony in which they admit that
they were laid off. For example, Walker responded, “[y]es sir” to the question “[y]ou
didn’t quit; right? Vectrus laid you off.” App. vol. 25, 7391. And Wascher agreed
that “[t]he exact reason [he] left was that [his] position was phased out.” App.
vol. 15, 4424. Vectrus also notes that in his unemployment benefit application,
Wascher stated that he was unemployed because his position was “phased out.” Id.
at 4423.
But the record is not as unequivocal as Vectrus suggests. For one thing, when
declining the biometric-clerk position, both Wascher and Walker signed a form
stating, “I decline the conditions of employment as stated above, with the
understanding that it will result in separation of employment and demobilization.”
App. vol. 35, 10,317, 10,342. For another, a Vectrus HR employee testified that
Wascher “voluntarily demobilized or left.” App. vol. 29, 8432. Moreover, Wascher’s
and Walker’s testimony itself was not so one-sided. For example, Wascher agreed
that he “left” Vectrus and explained that he did so because the “conditions there just
became unbearable.” App. vol. 15, 4218–19. And, on cross-examination, Wascher
initially denied that he was laid off and agreed only after the attorney for Vectrus
framed being “laid off” as the alternative to being “fired for misconduct.” Id.
at 4418–19. For his part, Walker responded to the question “when did you terminate
your employment, sir?” with “I believe it was the 14th of July,” implying that he
agreed that he terminated his employment. App. vol. 25, 7327.
21
Relying primarily on our unpublished order in Romero v. Helmerich & Payne
International Drilling Co., Vectrus argues that “whether [an employee] resigned is
uniquely within [the employee’s] knowledge” and that the district court “should have
accepted” Walker’s and Wascher’s “testimony as true.” 768 F. App’x 838, 842
(10th Cir. 2019) (unpublished). But unlike in Romero—where it was “undisputed”
that the employee was terminated after refusing to sign a disciplinary write-up—
Vectrus was not so straightforward and gave Wascher and Walker the choice between
a demotion and a layoff. Romero, 768 F. App’x at 840. Further, the Romero plaintiff
“testified that [his employer] fired him from his job and that he did not resign or
quit.” Id. Here, in contrast, Wascher’s and Walker’s testimony was not so
unequivocal. Thus, viewing the record as a whole and “constru[ing] the evidence and
inferences most favorably to” Wascher and Walker —as we must when reviewing an
order on a Rule 50 motion—we conclude that the jury had sufficient evidence to find
that Wascher and Walker resigned as required by constructive-discharge law.7
Bannister, 692 F.3d at 1126 (quoting Magnum Foods, Inc., 36 F.3d at 1503).
7
Wascher and Walker argue that we should affirm because their testimony did
not amount to judicial admissions, which are “formal, deliberate declarations which a
party or his attorney makes in a judicial proceeding for the purpose of dispensing
with proof of formal matters or of facts about which there is no real dispute.” U.S.
Energy Corp. v. Nukem, Inc., 400 F.3d 822, 833 n.4 (10th Cir. 2005) (quoting
Kempter v. Hurd, 713 P.2d 1274, 1279 (Colo. 1986)). But the issue is whether the
jury had sufficient evidence to find that Wascher and Walker resigned, which is not
dependent on whether Wascher’s and Walker’s testimony amounted to judicial
admissions. See Fed. R. Civ. P. 50. Thus, this argument is irrelevant, and we do not
rely on it for our conclusion.
22
Accordingly, we affirm the district court’s order denying Vectrus’s motion for
judgment as a matter of law based on Vectrus’s constructive-discharge argument.8 As
such, we need not address Wascher and Walker’s alternative argument that we may
uphold the jury verdict because they were actually terminated.
III. Motion for a New Trial on Evidentiary Rulings
Vectrus argues that the district court erred by denying its Rule 59 motion for a
new trial regarding the admissibility of military documents and testimony of three
military witnesses.
Prior to trial, Vectrus filed a motion in limine, requesting that the district court
exclude (1) “reference to the content of the [p]laintiffs’ alleged complaints and
reports of unlawful activity,” (2) “reference to the . . . [m]ilitary’s actions in response
to [p]laintiffs’ reports of unlawful activity,” and (3) “the testimony of any military
8
This affirmance applies to both Walker’s state-law constructive discharge
claim and his § 2409 claim. Even if a different standard for determining constructive
discharge applied to § 2409 claims, Vectrus explicitly waived its constructive-
discharge argument with respect to Walker’s federal claim. “If a ground is omitted
from a [Rule 50(a)] motion . . . the ground cannot be asserted in a [Rule 50(b)]
motion or in an appeal.” Advanced Recovery Sys. v. Am. Agencies, 923 F.3d 819, 825
(10th Cir. 2019). Here, Vectrus did more than just fail to raise its constructive-
discharge argument with respect to Walker’s federal claim—it explicitly
acknowledged that its Rule 50(a) motion did not apply to this claim. For example,
when the trial judge was orally ruling on Vectrus’s Rule 50(a) motion, Vectrus’s
attorney stated that if the court granted its motion, “Walker’s 10 U.S.C. [§] 2409
claim would remain.” App. vol. 29, 8476. And in Vectrus’s supplemental written
support for its oral Rule 50(a) motion, Vectrus specified that the Rule 50(a) motion
applies to Walker’s “first claim for wrongful discharge in violation of public policy”
but it did not mention his federal claim. App. vol. 32, 9477. Thus, Vectrus cannot
now assert the constructive-discharge argument with respect to Walker’s federal
claim on appeal. See Advanced Recovery Sys., 923 F.3d at 825.
23
witnesses at trial.” App. vol. 9, 2668–69. In this motion, Vectrus offered to stipulate
that plaintiffs engaged in activity protected by Colorado wrongful-discharge law and
§ 2409. The district court denied Vectrus’s motion. At the start of the trial, the
district court gave a limiting instruction regarding the permissible use of the military
evidence. During trial, military personnel described the military investigation into
Vectrus and the resulting raid. The district court also admitted several military
documents, including an internal legal memorandum about the scope of federal
whistleblower protection law and a document containing allegations regarding
Vectrus employees’ wrongdoing, including drug use and possession of child
pornography. Vectrus objected to the military testimony and to these exhibits, and the
district court overruled these objections.
After the trial, Vectrus filed a Rule 59 motion for a new trial, arguing that the
district court erred in admitting the military testimony and exhibits. The district court
denied this motion. In doing so, it determined that evidence regarding the substance
of the plaintiffs’ complaints and the military’s response was relevant to explain the
“extent and context of the risk that [p]laintiffs’ actions potentially posed to Vectrus.”
App. vol. 37, 10,869. The district court further concluded that “[i]t would have been
impossible for the jury to understand this case unless they heard at least some content
of the whistleblowing complaints, along with the impact that the complaints had on
Vectrus.” Id. at 10,870. The district court also determined that its limiting instruction
“adequately addressed [d]efendant’s concerns” regarding the military evidence. Id.
24
at 10,869. Vectrus appeals the district court’s order denying its motion for a new
trial.
We review this denial for abuse of direction. Weaver v. Blake, 454 F.3d 1087,
1091 (10th Cir. 2006). Because Vectrus’s “motion for a new trial assert[ed] that the
district court erred in determining the admissibility of evidence, the verdict must
stand unless the district court ‘made a clear error of judgment or exceeded the bounds
of permissible choice in the circumstances.’” Id. (quoting Hinds v. Gen. Motors
Corp., 988 F.2d 1039, 1046 (10th Cir. 1993)). Even if the district court’s evidentiary
ruling was in error, we should grant a new trial only if we can “reasonably
conclude[] . . . there would have been a contrary result” without the error. Id.
(quoting Hinds, 988 F.2d at 1049).
Vectrus first argues that the district court erred in admitting the documents
containing allegations regarding Vectrus employees because plaintiffs did not lay a
proper foundation. The district court admitted these documents as properly
authenticated business records. See Fed. R. Evid. 803(6) (requiring in part that
custodian or “qualified witness” introduce record made by someone with knowledge
“in the course of a regularly conducted activity”). Vectrus contends that plaintiffs
introduced these documents through a Vectrus employee, David Cleary, who did not
author the document and could not otherwise testify that the evidence met the
elements of a business elements of Federal Rule of Evidence 803(6). But “there is no
requirement that the party offering a business record produce the author of the item.”
FDIC v. Staudinger, 797 F.2d 908, 910 (10th Cir. 1986). Moreover, Cleary testified
25
that he was familiar with the documents, knows the author, was part of the
investigation that produced the documents, and that making these types of documents
is part of the military’s “regular practice.” App. vol. 16, 4599. Thus, the district court
did not err in admitting these documents under Rule 803(6).
Vectrus next argues that the district court erred by admitting irrelevant
evidence. See Fed. R. Evid. 402. Specifically, Vectrus contends that because it
offered to stipulate that plaintiffs engaged in protected whistleblowing activity, then
“there was no relevance to the details of the plaintiffs’ whistleblowing reports” or to
any of the military evidence. Aplt. Br. 40. For this evidence to have been irrelevant,
it must not have had “any tendency to make a fact” that is “of consequence in
determining the action” any “more or less probable.” Fed. R. Evid. 401. Here, to
prove wrongful discharge, plaintiffs had to prove that “Vectrus personnel” terminated
or constructively discharged them “because [they] made the[ir whistleblowing]
reports.” App. vol. 35, 10,382, 10,385, 10,389, 10,393 (emphasis added). That is,
plaintiffs had to prove that Vectrus was motivated by the plaintiffs’ whistleblowing.
And the military evidence is relevant to Vectrus’s potential motivation. For example,
the military’s response to the plaintiffs’ complaints—an “early morning surprise
‘raid,’ effectively arresting eight of [Vectrus’s] employees including senior
supervisory personnel”—posed a risk to “Vectrus’s contractual relationships with the
United States military” and therefore to Vectrus’s “corporate existence.” App.
vol. 37, 10,868–69. Such risk likely makes it “more . . . probable” that Vectrus took
adverse action against plaintiffs because of their reporting. Fed. R. Evid. 401; see
26
also McCue v. Kan., Dep’t of Human Res., 165 F.3d 784, 789 (10th Cir. 1999)
(admitting evidence of employee’s sexual harassment complaint even though
employer stipulated that employee engaged in protected activity because complaint
was relevant to another aspect of employee’s claim). And we cannot say that the
district court abused its discretion in concluding as much. Weaver, 454 F.3d at 1091.
Thus, we are not persuaded by Vectrus’s relevancy argument.
Finally, Vectrus argues that the district court should have excluded the military
evidence because the “probative value” of the evidence was “substantially
outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. It asserts that
prejudice arose from (1) the sensational and salacious details of the allegations and
(2) the external validation that military approval may have bestowed upon plaintiffs.
But the district court gave a limiting instruction, telling the jury to “consider [the
military] evidence for the limited purpose of determining whether [p]laintiffs have
established the elements of their claims including whether [Vectrus] was aware of
[p]laintiffs’ reports and whether the reports and their consequences motivated
Vectrus to terminate or constructively terminate the [p]laintiffs.” App. vol. 37,
10,869. And we “generally presume that juries follow the instructions given to them
notwithstanding what has been said in court.” Cavanaugh v. Woods Cross City, 718
F.3d 1244, 1250 (10th Cir. 2013). As such, we presume that the jury was not
influenced by aspects of the military evidence and testimony beyond the claims at
issue. Thus, the risk of prejudice did not outweigh the evidence’s probative value.
Fed. R. Evid. 403. And, even if the district court did err in admitting the evidence,
27
Vectrus has not demonstrated that “there would have been a contrary result” had the
error not occurred. Weaver, 454 F.3d at 1091 (quoting Hinds, 988 F.2d at 1049).
We thus affirm the order denying Vectrus’s motion for a new trial.
Conclusion
For the reasons stated above, we reverse the district court’s order granting
summary judgment to Vectrus on Cejka’s, Lytle’s, and Wascher’s § 2409 claims and
remand to the district court for further proceedings. We affirm the district court’s
orders denying Vectrus’s motions for judgment as matter of law and for a new trial.9
Entered for the Court
Nancy L. Moritz
Circuit Judge
9
As a final matter, we grant the motion to seal a portion of the supplemental
appendix as these portions contain “financial information” and military “contracts.”
Suture Express, Inc. v. Owens & Minor Distrib., Inc., 851 F.3d 1029, 1047 (10th Cir.
2017).
28
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-1891
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Enrique Cazarez, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: August 30, 2007
Filed: September 5, 2007
___________
Before BYE, RILEY, and MELLOY, Circuit Judges.
___________
PER CURIAM.
Enrique Cazarez (Cazarez) appeals the 235-month sentence the district court1
imposed upon his guilty plea to conspiring to distribute 50 grams or more of
methamphetamine (actual), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846.
Cazarez’s counsel has moved to withdraw and filed a brief under Anders v. California,
386 U.S. 738 (1967), questioning the reasonableness of the sentence, which was at the
bottom of the advisory Sentencing Guidelines range.
1
The Honorable Fernando J. Gaitan Jr., Chief Judge, United States District
Court for the Western District of Missouri.
We conclude the sentence is not unreasonable. The district court considered
Cazarez’s Guidelines imprisonment range, along with other 18 U.S.C. § 3553(a)
factors. Nothing in the record suggests the district court failed to consider a relevant
factor that should have received significant weight, gave significant weight to an
improper or irrelevant factor, or considered only appropriate factors but in weighing
those factors committed a plain error of judgment. See United States v. Booker, 543
U.S. 220, 261 (2005) (§ 3553(a) factors will guide reasonableness review); United
States v. Haack, 403 F.3d 997, 1003-04 (8th Cir. 2005) (reasonableness of sentence
reviewed for abuse of discretion; defining ways in which abuse of discretion may
occur).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
find no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw, and
we affirm.
__________________
-2-
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958 F.2d 217
UNITED STATES of America, Appellee,v.Juan Ramon MARTINEZ, Appellant.
No. 91-3320.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 11, 1992.Decided Feb. 28, 1992.
Jon Baptiste Schuster, Des Moines, Iowa, argued, for appellant.
Ronald Michael Kayser, Des Moines, Iowa, argued (Gene W. Shepard and Ronald M. Kayser, on brief), for appellee.
Before ARNOLD, Chief Judge, MAGILL, Circuit Judge, and LARSON,* Senior District Judge.
ARNOLD, Chief Judge.
1
Juan Ramon Martinez appeals his convictions for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and the use and carrying of a firearm during the commission of a drug-trafficking offense in violation of 18 U.S.C. § 924(c)(1). Martinez argues that the evidence presented at trial was insufficient to support his convictions on all three counts. We affirm the convictions.
I.
2
Evidence at trial established that Martinez had known the government's informant, Joe Navin, since January or February of 1990, and had sold cocaine to Navin ten to twelve times before November 1990. Navin was arrested on November 14, 1990, on cocaine possession and gun charges. He immediately indicated to law-enforcement personnel that he wanted to cooperate. In cooperation with the government, Navin set up a meeting with Martinez for him and Agent Weir to buy cocaine. Martinez agreed to call Navin at the Holiday Inn when the cocaine was available. On the evening of December 9, 1990, Martinez called Navin at the hotel and told him to come over to Martinez's apartment for the purchase in twenty to twenty-five minutes. The government taped the telephone conversation.
3
When Agent Weir and Navin arrived at Martinez's apartment, Martinez led them to the apartment of co-defendants Humberto Carlin and Jose Velazquez. Agent Weir was wearing a recording device. During the meeting, Carlin brought out eight ounces of cocaine in eight individual packets and showed it to Agent Weir and Navin. Navin noticed that Carlin was carrying a gun. Martinez and Agent Weir began to negotiate. Martinez told Agent Weir that the cocaine was "primo" and would cost $1,250 an ounce. After discussing the purchase a while longer, Martinez told Agent Weir that he had promised Carlin a sixteenth of an ounce of cocaine for handling the transaction. Agent Weir offered Martinez a $200 bonus in lieu of Carlin's taking any of the cocaine and handed Martinez $200. Martinez kept a $100 bill and gave $100 to Carlin. Agent Weir and Navin then paid $4,800 each for the cocaine and left the apartment.
4
Shortly after Navin and Agent Weir left the apartment, they re-entered with law-enforcement officers and arrested Martinez. He still had the $100 bill. Carlin attempted to escape, and in doing so, a gun fell out of his pants. It was this gun which the jury convicted Martinez of using and carrying during the commission of the drug-trafficking offenses.
II.
5
First, Martinez argues that Navin's testimony--i.e., the testimony of a drug dealer who struck a deal with the government--was directly contradicted by Martinez and therefore insufficient to support the convictions.
6
The jury was aware of Navin's cooperation with the government, of the potential for a reduction of his sentence in exchange for his assistance, and of his extensive criminal record. They were free to give whatever weight they chose to his testimony. It is the sole province of the jury to weigh the credibility of a witness. Had Navin's testimony been the only evidence presented by the government, it would still have been perfectly proper for the jury to credit this testimony and convict Martinez on all three counts. This was not, however, the only evidence presented on Martinez's guilt. Navin's testimony was fully corroborated by Agent Weir, the tape of the telephone conversation, and the tape of the negotiations in Carlin's and Velazquez's apartment. Thus, we hold that a reasonable juror could have found guilt beyond a reasonable doubt.
7
Martinez's second argument is that the evidence was insufficient as a matter of law to support his conviction on possession of a firearm since another individual was in possession of the weapon. In Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946), the Supreme Court held that a party to a conspiracy may be responsible for the substantive offense of a co-conspirator "when the substantive offense is committed by one of the conspirators in furtherance of the [conspiracy]." This is true even though the party has no actual knowledge of the offense as long as it could be "reasonably foreseen as a necessary or natural consequence of the [conspiracy]." Id. at 648, 66 S.Ct. at 1184.
8
Certainly, it was reasonably foreseeable that one of Martinez's co-conspirators might carry a weapon in a transaction involving $9,600 worth of cocaine. Moreover, while Martinez might not have known that Carlin had a gun on this particular occasion, Martinez admitted that he himself had carried a loaded gun when he was trafficking marijuana in 1986. The jury could have concluded from this admission that he was aware of the possibility that a weapon might be involved. The evidence was sufficient to convict Martinez of the firearm charge. Carlin's carrying the gun in furtherance of the conspiracy to sell cocaine was reasonably foreseeable as a natural consequence of the conspiracy.
9
We affirm Martinez's convictions on all three counts.
*
The Hon. Earl R. Larson, Senior United States District Judge for the District of Minnesota, sitting by designation
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628 F.Supp.2d 241 (2009)
UNITED STATES of America,
v.
Thomas HARGROVE, Defendant.
Crim. Action No. 98cr10185-2-NG.
United States District Court, D. Massachusetts.
June 15, 2009.
*242 Theodore B. Heinrich, United States Attorney's Office, Boston, MA, for Plaintiff.
MEMORANDUM AND ORDER RE: MOTION FOR RETROACTIVE APPLICATION OF SENTENCING GUIDELINES
NANCY GERTNER, District Judge.
I. OVERVIEW
On May 12, 1999, Thomas Hargrove ("Hargrove") was charged in eight counts of a seventy-three-count, multi-defendant superseding indictment. Pursuant to a plea agreement, he pleaded guilty on May 23, 1999, to one count of distribution of and possession with intent to distribute cocaine base. That offense involved 27.5 grams of crack cocaine. The government dismissed the remaining counts. On June 7, 2000, I sentenced him to 188 months in prison and four years of supervised release.
On May 5, 2008, Hargrove filed a pro se petition for sentence modification based on the retroactive revisions to the Sentencing Guidelines for crack cocaine. I appointed counsel, took additional briefing on the matter, and held a hearing on February 25, 2009. I now resolve the pending motion.
II. STATE OF THE LAW
Congress provided for the reduction of sentences based on amendments to the U.S. Sentencing Guidelines (U.S.S.G.) in 18 U.S.C. § 3582(c)(2):
In the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
On November 1, 2007, the Sentencing Commission amended U.S.S.G. § 2D1.1, reducing the base offense level for most quantities of crack cocaine by two levels effective May 1, 2008. U.S.S.G. Supp. to App. C, amend. 706 (2008).[1] On December 11, 2007, the Commission voted unanimously to make that amendment retroactive, effective March 3, 2008. Id., amend. 713. The applicable policy statement issued by the Commission states that a reduction "is not consistent with this policy statement and therefore is not authorized" if the amendment "does not have the effect of lowering the defendant's applicable guideline range." U.S.S.G. § 1B1.10(a)(2)(B).
In light of these cocaine amendments, Hargrove moves for a reduction under § 3582(c)(2). According to the statute, to be eligible for such a reduction, he must show that his original sentence was "based on" the drug quantity guidelines that were subsequently lowered. Hargrove argues that his sentence was indeed based on the *243 pre-amendment crack guidelines because in the presentence report Probation calculated what the Guidelines range would have been, absent the career offender guidelines and because courts often consider that calculation in selecting a sentence. He argues that his offense level should now be reduced by two, giving him a total level of 29 and criminal history category of VI, for a Guidelines range of 151 to 188 months.
The First Circuit explicitly rejected the argument Hargrove advances in United States v. Caraballo, 552 F.3d 6 (1st Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1929, 173 L.Ed.2d 1075 (2009). In that case, the defendant pleaded guilty to two counts of crack cocaine distribution in April 2005. The court calculated that crack guideline range, a range then trumped by the career offender provisions. The career offender guidelines raised the defendant's base offense level from 22 to 32, with a three-level reduction for acceptance of responsibility. With a total offense level of 29 and a criminal history category of VI, the Guidelines range was 151 to 188 months. The district court granted a variance based on the defendant's deteriorating health and imposed a sentence of 108 months. Following the amendments to the drug quantity guidelines discussed above, the defendant petitioned for a reduction. The First Circuit found him ineligible:
Refined to bare essence, the defendant's suggestion is that, even though his sentence was not dictated exclusively by the crack cocaine guideline, it was `based on' that guideline because that guideline was a way station along the road that the district court traveled in arriving at the appropriate sentencing range. He insists that, given this imbrication, Amendment 706 unlocks section 3582(c)(2) and authorizes the district court, on his motion, to recalculate his sentencing range and determine anew, in light of generally applicable sentencing factors, see 18 U.S.C. § 3553(a), whether a sentence reduction is warranted. . . .
The defendant's argument that this oblique reference to the crack cocaine guideline was enough to trigger section 3582(c)(2) disregards the way in which the career offender guideline operates.... [T]he career offender guideline provided the higher offense level and, thus, yielded a more punitive sentencing range. That was the range that the district court actually used at sentencing. Consequently, to say that the defendant's sentence was `based on' the crack cocaine guideline strains credulity. Reaching that result would require us to rewrite section 3582(c)(2) and, in the bargain, invade Congress's exclusive preserve.
Id. at 9-10; see also, e.g., United States v. Cruz, No. 96-76-P-H-01, 2008 WL 2967527 (D.Me. July 31, 2008) (ruling that defendant was not eligible for reduction based on crack revisions because his "status as a career offender drove his 360-month sentence, not his drug quantity").[2]
The Second Circuit has taken a distinctly different approach to this issue. In United States v. McGee, 553 F.3d 225 (2d Cir.2009), the sentencing judge calculated the appropriate career offender range and then departed downward because that range overstated the defendant's criminal *244 history. The judge explicitly stated that he was departing "to the level that the defendant would have been in absent the career offender status calculation and consideration." Id. at 227 (internal quotation marks omitted). The cocaine base quantity guidelines produced a range of 92 to 115 months, and the judge sentenced the defendant to the high end of that range. The Second Circuit held that the decision was clearly "based on" the crack guideline range and that the district judge "would likely have considered a different sentence from the one imposed if the applicable crack guidelines had so provided." Id. at 228.
To be sure, the different results in McGee and Caraballo, may reflect the fact that the First and Second Circuits frame the issue differently. The First Circuit believes that "based on" refers to the pre-departure range, the career offender range, while the Second believes it refers to the post-departure range.
Nevertheless, in my judgment, notwithstanding Caraballo, the First Circuit has not foreclosed the possibility of a more nuanced approach. In responding to the defendant's argument in Caraballo that the court's computation of the crack guidelines range meant his sentence was "based on" that range, the court remarked that such an "oblique reference" could not support his reading of the statute. 552 F.3d at 9. The court's phrasing suggests that a more direct reference toand a more direct reliance onthe crack guideline may have made this a different case. To be sure, the court stated of § 3582(c)(2) that "[t]he term `sentencing range' clearly contemplates the end result of the overall guideline calculus, not the series of tentative results reached at various interim steps in the performance of that calculus." Id. at 10. But it did not confront a case in which the final result as in McGeerather than the interim stepsin fact rested on a guidelines sentence driven by drug quantity.[3]
Such an approachconsidering the post-departure resultis particularly significant in career offender cases. Long before Booker, the career offender guidelines were only a starting point. See United States v. Ennis, 468 F.Supp.2d 228, 234 (D.Mass.2006). Departures were readily available because the criminal history overstated the defendant's culpability; indeed, the scholarly literature makes clear that they were regularly used. See, e.g., Michael S. Gelacak et al., Departures Under the Federal Sentencing Guidelines: An Empirical and Jurisprudential Analysis, 81 Minn. L.Rev. 299, 356 (1996). The discretion now celebrated in Booker, was long available and used because of the widely recognized flaws in the career offender guidelines. As such, a judge who departed from the career offender guidelines would often have to consider and grapple with the regular crack cocaine guidelines.
Ultimately, the question should be not an abstract line about pre-departure or post-departure computations but what the district court actually said and did at the original sentencing. If the crack guidelines played no role in the final sentence, then there should be no retroactivity. If the final sentence was in fact based on the crack guidelines in some wayfor example, if the district court judge departed specifically to the guidelines range called for by the quantity of cocaine base at issuethen relief should be available under *245 § 3582(c)(2). This approach is more faithful than Caraballo's bright line rule to the fact-driven, offender-specific enterprise that is sentencing and in particular, career offender sentencing.[4]
Indeed, assuming that the language of 18 U.S.C. § 3582(c)(2) is ambiguousthat "based on" could refer either to the pre-departure range, as the First Circuit found, or the post-departure range, as the Second Circuit suggeststhe rule of lenity counsels that the Court adopt the latter interpretation. As the Supreme Court has previously held and recently confirmed, the rule of lenity is to be invoked in cases of "grievous ambiguity." Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974); see also United States v. Hayes, ___ U.S. ___, 129 S.Ct. 1079, 1089, 172 L.Ed.2d 816 (2009). Here, the Sentencing Commission's regulations do not resolve the ambiguity in the statute. Under U.S.S.G. § 1B1.10(a)(2)(B), a reduction is not authorized if a retroactive amendment would not "have the effect of lowering the defendant's applicable guideline range," but the phrase "applicable guideline range" is itself ambiguous.
A final point: The crack cocaine guidelines have been widely criticized as being fundamentally unfair. Scores of defendants are serving onerous imprisonment terms because of them. That alone should propel the courts to a conclusion other than that reached in Caraballo.
III. HARGROVE'S ELIGIBILITY FOR A REDUCTION
Whatever my concerns about the scope of the Caraballo decision, however, it clearly forecloses relief for Hargrove. He admitted as much in a status report filed by counsel on the significance of the case. See document # 2014 (arguing simply that Caraballo was wrongly decided).
Nor would he fare any better under the Second Circuit's approach. At Hargrove's original sentencing, I was well aware that I could depart from the career offender guidelines. I had done so with respect to his co-defendants. See United States v. Lacy, 99 F.Supp.2d 108, 121-22 (D.Mass. 2000). I concluded that the range was appropriate in Hargrove's case because his criminal history included instances of violence.
Without the career offender guidelines, Hargrove's offense level would have been 27base offense level 28 for cocaine base between 20 and 35 grams, § 2D1.1(c)(6), plus 2 because the offense was committed close to a school, § 2D1.2, minus 3 for acceptance of responsibility, § 3E1.1(a), (b). Given criminal history category VI, his guidelines range would have been 130 to 162 months.
But Hargrove's sentence was entirely driven by the career offender guidelines. Under 21 U.S.C. § 841(b)(1)(B), the maximum penalty for more than five grams of cocaine base is forty years. Under U.S.S.G. § 4B1.1(b)(B), an offense that carries a statutory maximum of over twenty-five years carries an offense level of 34. Factoring in the reduction for acceptance of responsibility, his total offense level was 31 for a guidelines range of 188 to 235 months. I sentenced him to the low end of this range. Because I did not depart from the career offender guidelines, under Caraballo *246 Hargrove's ultimate sentence of 188 months was not "based on" a range that was subsequently lowered by the Commission.
IV. CONCLUSION
Based on the reasoning described above, the defendant's Motion for Retroactive Application of Sentencing Guidelines (document # 1967) is hereby DENIED.
SO ORDERED.
NOTES
[1] This was done in recognition that the 100-to-1 disparity between crack and cocaine drug sentencing "significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere." U.S.S.G. Supp. to App. C, amend. 706 ("Reason for Amendment"). The Commission called for Congress to correct the disparity enshrined in the mandatory minimums of the Anti Drug Abuse Act of 1986. It further explained that "the problems associated with the 100-to-1 drug quantity ratio are so urgent and compelling that this amendment is promulgated as an interim measure to alleviate some of those problems." Id.
[2] Hargrove cites United States v. Jenkins, 537 F.3d 1 (1st Cir.2008), to support his argument for a sentence reduction. In that case, the court upheld a sentence as reasonable but suggested that the defendant, who was sentenced based on the career offender guidelines, could file a motion with the trial judge for a sentence reduction based on the crack amendments. Jenkins came down before Caraballo and was superceded by it.
[3] In Caraballo, the sentencing judge departed downward, but he did so based on the defendant's medical condition and not with reference to the otherwise applicable drug quantity guidelines.
[4] It appears that the Eleventh Circuit may also favor such an approach. In United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), a case often cited for coming out the same way as Caraballo, the court noted in dicta that there was no "indication that the court based [the defendant's] sentence on the guideline range that would have applied absent the career offender designation." Id. at 1330. The implication is that if the court had done so, as in McGee, the defendant might have been eligible for relief.
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 00-60261
___________________________
FEREIDOON GHASEMI-TARI,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
___________________________________________________
Petition for Review of an Order of the Board of Immigration
Appeals
A27 594 880
___________________________________________________
December 18, 2000
Before JOLLY, DAVIS, Circuit Judges, and RESTANI*, Judge.
PER CURIAM:**
This is an immigration case in which an alien residing
illegally in the United States seeks reopening of his deportation
proceedings to apply for suspension of deportation. The Board of
Immigration Appeals (“BIA”) denied petitioner’s motion to reopen,
and he now challenges that ruling on appeal.
Ghasemi-Tari is a native and citizen of Iran who entered the
United States as a temporary visitor in 1985 with permission to
*
Judge, U.S. Court of International Trade, sitting by
designation.
**
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.
remain for six months. In 1986, the Immigration and Naturalization
Service (“INS”) served him with an order to show cause, requiring
him to appear in deportation proceedings to answer a charge of
deportability. Ghasemi-Tari conceded deportability and applied for
asylum and withholding of deportation. In 1987, an immigration
judge denied that application, and gave him thirty days to leave
the United States voluntarily or be deported to Iran. In 1992, the
BIA dismissed Ghasemi-Tari’s appeal from that decision. Later in
1992, Ghasemi-Tari filed with the BIA a motion to reopen
deportation proceedings, requesting a remand to the immigration
judge for an opportunity to apply for suspension of deportation.
The BIA denied the motion to reopen in 2000 based on intervening
changes in the law.
Prior to the changes in the law in 1996 (with the enactment of
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRAIRA”)), it was within the discretion of the Attorney
General to grant suspension of deportation to any alien physically
present in the United States for seven years preceding the date of
his application for suspension. 8 U.S.C. § 1254(a). However, in
1996, Congress enacted a new “stop-time” rule, which states that
“any period of continuous physical residence or continuous physical
presence in the United States shall be deemed to end when the alien
is served with a notice to appear.” 8 U.S.C. § 1229b(d)(1).
Though these amendments ordinarily would not apply to aliens placed
in deportation proceedings before their effective date, Congress
specifically provided that the new “stop-time” rule would apply to
2
aliens in pending deportation proceedings. If this rule were
applied to Ghasemi-Tari’s case, he would be ineligible for
suspension of deportation, since he lived in the United States only
one year before he was served an order to show cause.1
First, petitioner argues that the “stop-time” rule enacted in
1996 may not be constitutionally applied retroactively to him,
since he was already involved in deportation proceedings at the
time of its enactment. After petitioner completed briefing,
however, this Court decided the issue in Gonzalez-Torres v. INS,
213 F. 3d 899, 902 (5th Cir. 2000), where we held that a retroactive
application of the rule does not violate a petitioner’s due process
rights.
Second, Ghasemi-Tari argues that notwithstanding the potential
application of the “stop-time” rule, nothing in the IIRAIRA
specifically precludes him from becoming eligible for suspension of
deportation by accruing seven years of continuous physical presence
in the United States after service of the order to show cause. He
contends, in essence, that his time should “start over” with the
service of the order to show cause. We agree with the respondent,
however, that we lack jurisdiction to hear this argument because
petitioner failed to exhaust his administrative remedies on this
point. Gonzalez-Torres at 904.
1
On the other hand, under the old law, it would be within the
Attorney General’s discretion to suspend Ghasemi-Tari’s
deportation, since he lived in the United States for more than
seven years after the order to show cause was served, and thus
fulfilled the requirement of seven years of physical presence
immediately before the application for suspension of deportation.
3
For the above reasons, the order of the BIA denying Ghasemi-
Tari’s motion to reopen deportation proceedings to apply for
suspension of deportation is AFFIRMED.
4
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101 Ga. App. 85 (1960)
112 S.E.2d 826
BAYNES et al.
v.
LIBERTY MUTUAL INSURANCE COMPANY et al.
38090.
Court of Appeals of Georgia.
Decided January 21, 1960.
*87 Harbin M. King, for plaintiffs in error.
Henry A. Stewart, Sr., contra.
GARDNER, Presiding Judge.
Counsel for the employer and insurance carrier argue that the provisions of the Workmen's Compensation Act must be construed reasonably and liberally with a view of applying the beneficent provisions of the statute so as to effectuate its purpose. This is a correct principle of law generally, but of course the appellate courts have some leeway in deciding how to apply the rule. It is also true, as contended, that in order to recover for an injury under the provisions of the Workmen's Compensation Act, it must appear that the injury arose out of, and in the course of employment, and that the accident was within the purview of the act. We are of the opinion that the record in the instant case will measure up to these requirements. While the evidence is not as full as is the evidence in most workmen's compensation cases, still, this court cannot say there was no evidence to support the findings of fact and award. We see no good reason to discuss the many cases cited and discussed by counsel on behalf of the widow and minor daughter of the deceased, since this court is still bound to affirm the award of the State Board of Workmen's Compensation if the findings of fact and award are supported by any facts. In General Accident, Fire &c. Assurance Corp. v. Rhodes, 83 Ga. App. 837 (1) (65 S. E. 2d 254), this court said: "An award made upon review by all of the directors of the State Board of Workmen's Compensation under Code § 114-708, affirming a previous award by one director upon issues of fact, is conclusive as to those issues if there is any evidence to sustain it. Fralish v. Royal Indemnity Co., 53 Ga. App. 557 (186 S. E. 567); Merry Bros. Brick & Tile Co. v. Holmes, 57 Ga. App. 281 (195 S. E. 223); Peninsular Life Ins. Co. v. Brand, 57 Ga. App. 526 (196 *88 S. E. 264); American Mutual Liability Ins. Co. v. Jenkins, 63 Ga. App. 777 (12 S. E. 2d 80); Maryland Casualty Co. v. Sanders, 182 Ga. 594 (186 S. E. 693); Webb v. General Accident, Fire & Life Ins. Co., 72 Ga. App. 127 (33 S. E. 2d 273)." There is evidence authorizing the award of the single director in denying compensation, which award was affirmed by the full board, and the superior court did not err in sustaining the award.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
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970 N.E.2d 125 (2008)
385 Ill. App.3d 1123
361 Ill. Dec. 125
GORDON
v.
LEE.
No. 1-07-2840.
Appellate Court of Illinois, First District.
November 7, 2008.
Affirmed.
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NOTE: This order is nonprecedential
United States Court of Appeals
for the Federal Circuit
FRANK P. SLATTERY, JR. AND LFC NO. 1 CORP,
ON BEHALF OF THEMSELVES AND ON'BEHALF
OF ALL OTHER SIMILARLY SITUATED
SHAREHOLDERS OF MERITOR SAVINGS BANK,
Plaintiffs,
AND
STEVEN ROTH AND INTERSTATE PROPERTIES,
Plaintiffs-Appellants,
n
V.
UNITED STATES,
Defendcmt-Appellee,
V.
JOHN R. MCCARRON,
Movant-Appellant.
2012-5041, -5068
Appeals from the United States Court of Federal
Claims in 93-CV-280, Senior Judge Loren A. Smith
ON MOTION
SLATTERY V. US 2
ORDER
The United States moves without opposition for an ex-
tension of time, until June 29, 2012, to file its opposition
brief, and for an extension of time, until July 23, 2012, for
the appellants to file their reply brief, and for the joint
appendix to be filed no later than 7 days after service of
any reply briefs
Upon consideration thereof,
lT IS ORDERED Tl-IATZ
The motion is granted.
FOR THE COURT
2 1 /s/ J an Horbaly
Date J an Horbaly
Clerk
cc: Thomas M. Buchanan, Esq.
Brian A. Mizoguchi, Esq.
Richard J. Urowsky, Esq.
Jeffrey B. McCarron, Esq. u_S_gggq-F mg
THE FED'E="!!‘.L CIRCU|T
324
|“|AY 2 l 2012
JAN HORBA\.V
CLERK
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People v Reid (2016 NY Slip Op 03594)
People v Reid
2016 NY Slip Op 03594
Decided on May 5, 2016
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 5, 2016
Sweeny, J.P., Acosta, Manzanet-Daniels, Gische, Gesmer, JJ.
1076 334N/12
[*1]The People of the State of New York, Respondent,
vEdward Reid, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Joshua L. Haber of counsel), for respondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J. at suppression motions; Melissa Jackson, J. at plea and sentencing), rendered March 12, 2014, convicting defendant of criminal possession of a controlled substance in the second degree, and sentencing him to a term of four years, unanimously affirmed.
The court properly denied defendant's initial suppression motion, in which he claimed that the search of his apartment unlawfully preceded the issuance of a search warrant. This claim was made in a conclusory affirmation by counsel, based on information and belief, and it was refuted by the People's submission of a detective's affidavit demonstrating, with specificity, that the search warrant was issued before the entry into defendant's apartment. In connection with the original motion, defendant did not file a reply or make any attempt to contradict the timeline of events in response to the People's submission. Accordingly, there was no factual dispute warranting a hearing (see generally People v Mendoza , 82 NY2d 415 [1993]).
Defendant's remaining suppression claims were never raised before the motion court, and are therefore unpreserved, or were raised in successor counsel's supplemental motions, which the court properly rejected as untimely (see CPL 255.20[1],[3]). We decline to review any of these claims in the interest of justice. As an alternative holding, we reject each of them on the merits.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record, concerning counsel's choice of suppression issues (see People v Rivera , 71 NY2d 705, 709 [1988]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento , 91 NY2d 708, 713-714 [1998]; Strickland v Washington , 466 US 668 [1984]), particularly in light of the lack of merit of the unpreserved and [*2]untimely arguments. We reject defendant's ineffective assistance claim either as an excuse for untimeliness or lack of preservation, or as a separate basis for ordering new suppression proceedings.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 5, 2016
DEPUTY CLERK
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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. 11-12726
DECEMBER 9, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D.C. Docket No. 1:96-cr-00798-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SYLVESTER REID,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 9, 2011)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Sylvester Reid, a federal prisoner proceeding pro se, appeals his total 610
months’ sentence imposed after the district court granted his 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentences based on Amendment 599 to the
Sentencing Guidelines.
After a 1996 jury trial, Reid was convicted of three counts of Hobbs Act
robbery, in violation of 18 U.S.C. § 1951(a) (Counts One, Three and Five) and
three counts of using a firearm during and in relation to the robberies, in violation
of 18 U.S.C. § 924(c) (Counts Two, Four and Six). At sentencing, the district
court, among other things, applied a five-level “specific offense characteristic”
increase for Counts One, Three and Five (the robberies) because Reid had
brandished a firearm. See U.S.S.G. § 2B3.1(b)(2)(C). The district court imposed
concurrent 120-month sentences on Counts One, Three and Five; a mandatory
consecutive 60-month sentence on Count Two; and mandatory consecutive 240-
month sentences on Counts Four and Six, for an initial total 660-month sentence.
Reid appealed his convictions, but not his sentences. This Court affirmed. See
United States v. Reid, No. 98-4337 (11th Cir. Aug. 20, 1999) (unpublished).
On November 1, 2000, Amendment 599 amended the commentary to
U.S.S.G. § 2K2.4, which provides the base offense level for a defendant who
commits a § 924(c) offense. After Amendment 599, if the district court imposes a
2
§ 924(c) sentence “in conjunction with a sentence for the underlying offense” the
court “do[es] not apply any specific offense characteristics for possession,
brandishing, use, or discharge of an explosive or firearm when determining the
sentence for the underlying offense.” U.S.S.G. app. C, amend. 599.
In 2008, Reid filed a pro se § 3582(c)(2) motion based on Amendment 599.
Reid argued that under Amendment 599, his consecutive, twenty-year sentences
on Counts Four and Six were improper because they were charged in a single
indictment. The district court denied Reid’s § 3582(c)(2) motion. On appeal, this
Court affirmed the district court as to Counts Two, Four and Six (the firearm
counts) because Amendment 599 had no effect on those sentences. However, the
Court vacated and remanded as to Counts One, Three and Five (the robbery
counts) because application of Amendment 599 eliminated the “specific offense
characteristic” enhancement of U.S.S.G. § 2B3.1(b)(2)(C), which resulted in a new
guidelines range of 70 to 87 months’ imprisonment on those counts. See United
States v. Reid, 364 F. App’x 554 (11th Cir. 2010). As noted earlier, the original
sentence on these counts was 120 months concurrently.
On remand, Reid was represented by counsel and argued, inter alia, that the
district court should resentence Reid to a single mandatory 60-month sentence on
Counts One, Three and Five because they were charged in the same indictment
3
and the sentences were imposed on the same day.1 The district court granted
Reid’s § 3582(c)(2) motion and imposed three concurrent 70-month sentences, at
the low end of the new, amended guidelines range, as to Counts One, Three and
Five. The district court ran the three, new 70-month sentences concurrent to each
other, but consecutive to the unchanged sentences for Counts Two, Four and Six,
for a total of 610 months.
On appeal, Reid argues that: (1) his 1996 indictment was flawed because it
did not identify with sufficient specificity under which subsection of § 924(c) he
was charged; (2) Counts Four and Six should not have received consecutive,
twenty-year sentences as “second or subsequent” convictions under § 924(c)
because those offenses were charged in the same indictment as Count Two; and
(3) remand is necessary because the district court failed to address these arguments
when it granted his § 3582(c)(2) motion.
The problem for Reid is that his claims are outside the scope of his
1
Reid also argued that, pursuant to Pepper v. United States, 562 U.S. ___, 131 S. Ct. 1229
(2011), he was entitled to a full resentencing hearing, including consideration of his post-
sentencing rehabilitation. Even construed liberally, Reid’s pro se appellate brief does not raise
this argument, and thus he has abandoned it. See Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008) (explaining that, although we construe pro se pleadings liberally, “issues not briefed
on appeal by a pro se litigant are deemed abandoned”).
4
§ 3582(c)(2) motion.2 Under § 3582(c)(2), the district court may reduce an
incarcerated defendant’s term of imprisonment when the defendant has been
sentenced pursuant to a guidelines range “that has subsequently been lowered by
the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). However, a § 3582(c)(2)
proceeding “does not constitute a de novo resentencing” and “all original
sentencing determinations remain unchanged with the sole exception of the
guideline range that has been amended since the original sentencing.” United
States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000).
Here, only the sentences for Counts One, Three and Five received the
“specific offense characteristic” enhancement eliminated by Amendment 599. As
such, these were the only sentences the district court could modify. The district
court lacked the authority under § 3582(c)(2) to consider Reid’s arguments
regarding his indictment and his sentences for Counts Two, Four and Six.3
Accordingly, the district court properly limited its determination to whether to
reduce Reid’s sentences on Counts One, Three and Five.
2
We review de novo the district court’s legal conclusions regarding the scope of its
authority under 18 U.S.C. § 3583(c)(2). United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.
2008).
3
Reid’s arguments are also barred by the law of the case doctrine because he did not raise
them in his direct appeal after his original sentencing. See United States v. Escobar-Urrego, 110
F.3d 1556, 1560 (11th Cir. 1997).
5
AFFIRMED.
6
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664 F.Supp. 156 (1987)
INDEPENDENT UNION OF FLIGHT ATTENDANTS, Plaintiff,
v.
PAN AMERICAN WORLD AIRWAYS, INC. and Pan American Corporation, Defendants.
No. 87 Civ. 1640 (LBS).
United States District Court, S.D. New York.
July 16, 1987.
Bredhoff & Kaiser, Washington, D.C., for plaintiff; George H. Cohen, Mady Gilson, David A. Slansky, of counsel.
Vladeck, Waldman, Elias & Englehard, P.C., New York City, for plaintiff; Seymour M. Waldman, Patricia McConnell, of counsel.
Richard Schoolman, New York City, for defendants Pan American World Airways, Inc.
SAND, District Judge.
Plaintiff, Independent Union of Flight Attendants ("IUFA"), moves for summary judgment against defendants, Pan American World Airways, Inc. ("PAWA") and its parent company, Pan American Corporation, charging that the defendants have violated the Railway Labor Act, 45 U.S.C. § 151, et seq., and IUFA's collective bargaining agreement with Pan American by refusing to arbitrate what IUFA describes *157 as a contract dispute. Defendants have cross-moved to dismiss IUFA's complaint for lack of subject matter jurisdiction and for costs and sanctions.
The defendants' motion to dismiss for lack of subject matter jurisdiction is granted. Therefore, we do not reach plaintiff's motion for summary judgment. The motion for costs and sanctions is denied.
Background
In evaluating a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a "court is not restricted to the face of the pleadings, but may review any evidence such as affidavits and testimony...." 2A J. Moore, Moore's Federal Practice ¶ 12.07 [2.-1] (2d ed. 1986). Our statement of the relevant facts is based on both the pleadings and the affidavits submitted in connection with the motions.
PAWA is an international airline which is a wholly-owned subsidiary of defendant Pan American Corporation. IUFA is the exclusive collective bargaining representative of PAWA's flight attendants. IUFA obtained its representative status through a certification issued by the National Mediation Board in 1977 after IUFA won an election among PAWA's flight attendants. See Affidavit of Bonnie Singer at ¶¶ 2, 3.
At all relevant times, PAWA and IUFA have been parties to a collective bargaining agreement (the "Agreement") which governs the terms and conditions of flight attendant employment. The Agreement recognizes IUFA as "the sole collective bargaining representative of the craft or class of Flight Attendants in the employ of the Company." See Agreement, Section 1. The Agreement also provides that:
All flying performed by any subsidiary established by Pan Am or any other organization which Pan Am or a subsidiary establishes shall be performed by Flight Attendants on the Pan Am Flight Service System Seniority List in accordance with the terms and conditions of this Agreement or any other applicable Agreement between the Company and the IUFA. Id.
Pursuant to a side letter agreement, defendant Pan American Corporation is bound by the PAWA-IUFA collective bargaining agreement to the same extent as PAWA.
In April 1986, Pan American Corporation purchased a regional airline known as Ransome Airlines, Inc. ("Ransome"). Prior to the acquisition, Ransome had been an independent carrier, unaffiliated with either of the defendants. Subsequent to the acquisition, Ransome became a wholly-owned subsidiary of the entity which, as we have stated, is also PAWA's parent company Pan American Corporation. In October 1986, Ransome's name was changed to Pan American Express, Inc. ("Pan Am Express"). See Declaration of David E. Ferrucci at ¶¶ 1-3.
There are several dozen flight attendants who work the Pan Am Express flights but none of these flight attendants is on the Pan American Flight Service System Seniority List. At no time have the Ransome/Pan Am Express flight attendants been represented by a union neither before nor after the acquisition.
IUFA claims that pursuant to its agreements with the defendants, flight attendants on the System Seniority List have the right to perform the work now performed by unrepresented employees on the Pan Am Express flights. To enforce what it sees as a bargained-for contract right, IUFA pursued the grievance and arbitration procedures set forth in the Agreement. Specifically, after PAWA denied IUFA's grievance, the union promptly petitioned to the System Board of Adjustment and invoked expedited arbitration procedures. See Complaint ¶¶ 12-14. PAWA, in turn, responded by declining arbitration and informed IUFA of the company's position, asserted again here as part of the defendants' claim that the Court lacks subject matter jurisdiction, that "the adjustment board lacks jurisdiction to decide this grievance." See Complaint, Exhibit K. After it became apparent that PAWA would not willingly submit to arbitration before the adjustment board, IUFA filed its complaint in the Southern District of New York.
*158 Discussion
A consideration of the threshold jurisdictional question requires a brief review of the tripartite dispute resolution scheme which Congress established in enacting the Railway Labor Act, a statute which regulates labor relations on the nation's railroads and airlines. The statute defines three types of labor disputes and "establishes a distinct resolution procedure" for each type of dispute. International Brotherhood of Teamsters (Airline Division) v. Texas International Airlines, 717 F.2d 157, 158 (5th Cir.1983). "Minor" disputes concern the application or interpretation of an existing collective bargaining agreement. 45 U.S.C. § 184. These disputes are "committed to a grievance-arbitration process" before an authorized system board of adjustment. Texas International Airlines, 717 F.2d at 158. "Major" disputes involve the formation of collective bargaining agreements, and the resolution of such disputes proceeds according to conference and mediation procedures pursuant to Section 6 of the Act. 45 U.S.C. §§ 156, 181. "Representation" disputes involve the definition of a bargaining unit and the determination of the employee collective bargaining representatives. "Representation disputes include issues whether two related carriers will be treated as one for representation purposes, and whether a craft or class must be system-wide or may be split for representation purposes." Texas International Airlines, 717 F.2d at 159 (footnotes omitted). Under Section 2, Ninth of the Railway Labor Act, 45 U.S.C. 152 Ninth, the National Mediation Board has exclusive jurisdiction over all representation disputes.
IUFA claims that the present dispute with the defendants is a "minor" dispute and the Court should therefore compel PAWA to submit to arbitration before a system board of adjustment. Defendants, by contrast, assert that the controversy is more properly characterized as a representation dispute within the sole jurisdiction of the National Mediation Board. We agree with defendants' position, although we believe the question is a close one.
In deciding whether a particular labor dispute is minor, major or representational, a court is guided by certain widely accepted principles. Justice O'Connor, sitting as a Circuit Justice, recently observed that:
[t]he great weight of the caselaw supports the proposition that disputes as to the effect of collective-bargaining agreements on representation in an airline merger situation are representation disputes within the exclusive jurisdiction of the National Mediation Board.
Western Airlines v. Intern. Broth. of Teamsters, ___ U.S. ___, 107 S.Ct. 1515, 1517, 94 L.Ed.2d 744 (O'Connor, Circuit Justice 1987).
It is also generally recognized that labor relations problems after a merger or acquisition in the airline industry may in some instances straddle the Railway Labor Act's seemingly discrete lines of demarcation. That is, what may be characterized as a "minor" dispute over the interpretation of a contract may also implicate concerns which are representational in nature. Where the issues thus overlap, a jurisdictional problem arises. The proper course for a court to follow in such circumstances is to allow the National Mediation Board "alone to consider the post-merger problems that arise from existing collective bargaining agreements." Texas International Airlines, 717 F.2d at 164. See also Western Airlines, 107 S.Ct. at 1517.
Another recognized principle holds that a dispute may be considered representational, even if it does "not arise between two rival representatives. It is enough that there is one claimant and employees who are or who may be either hostile or indifferent." Air Line Pilots Ass'n v. Tex. Intern. Airlines, Inc., 502 F.Supp. 423, 425 (S.D.N.Y.1980). See also Summit Airlines v. Teamsters Local Union No. 295, 628 F.2d 787, 793 n. 3 (2d Cir.1980). (Dispute requirement met "even though only one union seeks representation if some employees are indifferent or hostile to being represented by that union or by any other union").
The question presented in the case at bar, according to IUFA, is not whether *159 IUFA is to be the collective bargaining representative of the flight attendants who service the Pan Am Express Flights but whether the scope clause of the collective bargaining agreement is to govern the assignment of work on Pan Am Express Flights. Although there is no doubt that the union's complaint is cast in contract terms and purports to seek only the enforcement of the Agreement and the corresponding side letter, it appears that a decision on the contract issues will necessarily implicate representational concerns. While this is not a traditional dispute over representation, the unrepresented flight attendants who worked Ransome's flights in the past and who now service the Pan Am Express flights have "a representational stake" in the matters raised. Independent Union of Flight Attendants v. Pan American World Airways, Inc., 789 F.2d 139, 143 (2d Cir.1986). That only one union is involved does not, as previously noted, negate the existence of a representation dispute.
In certain respects, this case resembles the litigation which led to the Second Circuit's decision in Air Line Pilots Ass'n v. Texas Intern. Airlines, 656 F.2d 16 (2d Cir.1981). In that case, the parent company of Texas International expanded its operations by establishing a new, formally separate subsidiary, New York Air, which employed non-union personnel. The union, which represented Texas International's pilots, argued that union pilots had the right to perform the work on the new flights pursuant to the collective bargaining agreement and applicable seniority provisions. Id. at 19. The Second Circuit affirmed Judge Nickerson's finding that the facts raised a representation dispute that was not justiciable. Id. at 17.
IUFA distinguishes the Second Circuit's decision on two grounds. First, the union states that this case, unlike the Second Circuit case, is based on the presence of a scope clause which one set of employees has in its contract. Second, IUFA asserts that our circuit court's decision in Texas International turned largely on the fact that the union had not invoked the Railway Labor Act's dispute resolution mechanisms but had instead sought judicial intervention "to prevent what it perceived as [the carrier's] illegal attempt ... to circumvent its collective bargaining obligations." Id. at 20. See also Air Line Pilots Ass'n v. Texas Intern. Air, 567 F.Supp. 66, 72 (S.D. Tex.1983) (Union's claim held to be a "minor" rather than a "representation" dispute).
Notwithstanding the distinctions IUFA has drawn, we believe this case raises a representation dispute. It is true that from IUFA's perspective a contractual scope clause is at the center of the controversy. It is likewise true, as IUFA points out, that the present case differs from the Second Circuit Texas International litigation in that the union in this case filed its federal court action only after pursuing grievance procedures. In essence, however, the present case is similar to Texas International. The IUFA flight attendants in this case claim, just as the pilots in Texas International claimed, that work on a related carrier should be assigned to them. To the extent that Air Line Pilots Ass'n Intern. v. Texas Intern. Air, 567 F.Supp. 66 (S.D.Tex.1983), is inconsistent with our analysis, we decline to adopt its reasoning.
In concluding that there are representation issues present here, we highlight several factors. First, it is not clear whether IUFA's previously obtained certification applies to the present Pan Am Express flight attendants (the former Ransome employees). Given that the Ransome acquisition took place in a post-certification context, the question of the present scope of the prior certification raises a representation issue which may play a role in the resolution of this dispute and which the National Mediation Board has jurisdiction to decide under the statute. Second, whether two related carriers in this case, PAWA and Pan Am Express should be treated as a single carrier for representation purposes is considered a representation matter within the National Mediation Board's jurisdiction. International Brotherhood of Teamsters (Airline Division) v. *160 Texas International Airlines, 717 F.2d at 159.
It is settled that a "court may not entertain an action involving ... a [representation] dispute even if it arises in the context of otherwise justiciable claims." Id. at 161. In addition, the Second Circuit has held that "[w]here a representation dispute appears on the fact of the complaint, even in the absence of a challenge by a competing union or an application to the NMB, the court is bound to dismiss the action." Air Line Pilots Ass'n v. Texas Intern. Airlines, 656 F.2d at 24. This precept applies even where the presence of a representation dispute is "murky." Id.
Conclusion
For the foregoing reasons, we grant the defendants' motion to dismiss on subject matter jurisdiction grounds. We find no merit in the defendants' application for costs and sanctions.
Complaint dismissed.
SO ORDERED.
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116 F.3d 470
U.S.v.Leo F. Schweitzer, III
NOS. 95-1977, 95-2010, 95-2015
United States Court of Appeals,Third Circuit.
May 15, 1997
Appeal From: E.D.Pa. ,No.95-0200-01
1
Affirmed.
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418 Pa. Superior Ct. 326 (1992)
614 A.2d 295
HEFFERNAN & COMPANY, Appellee,
v.
HARTFORD INSURANCE COMPANY OF AMERICA and Hartford Accident and Indemnity Company, Appellants,
v.
PYE, KARR, AMBLER & COMPANY, Appellee.
Superior Court of Pennsylvania.
Argued May 14, 1992.
Filed September 28, 1992.
*327 Thomas L. Delevie, Philadelphia, for appellants.
Jonathan K. Hollin, King of Prussia, for appellee.
Before WIEAND, OLSZEWSKI and KELLY, JJ.
*328 WIEAND, Judge:
In this declaratory judgment action, the trial court entered a summary judgment directing that Hartford Insurance Company (Hartford) provide a defense to its insured, Heffernan & Company, in an action filed against the insured by a third party for damages resulting from the collapse of the roof of a building which had been constructed by Heffernan & Company. Hartford appealed. It contends that the policy excludes coverage for damages to work performed by the insured.
In a 1983 action against Heffernan & Company, averments of the complaint asserted that a collapse of a gymnasium roof had been caused, inter alia, by Heffernan's negligent construction of the building. "As a result of the collapse of the roof," it was alleged, "plaintiffs have sustained damages in the approximate sum of $132,000, representing the fair and reasonable value of the repairs required to restore the building at the project to a condition suitable for its intended use." Hartford refused to defend the action. It relied upon exclusions in the policy issued to Heffernan which stated that coverage does not apply
.....
(n) to property damage to the named insured's products arising out of such products and any parts of such products;
(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.
Heffernan then filed an action for declaratory judgment. It relied upon answers to interrogatories filed in the underlying action in which the plaintiffs had recited damages to the contents of the building in excess of $24,954.00.[1] It contended *329 that inasmuch as damages to the contents were not excluded from the coverage provided by the policy, Hartford had a duty to defend the action on behalf of its insured. The trial court agreed and entered summary judgment in favor of Heffernan and against Hartford.[2] On appeal, Hartford argues that its *330 duty to defend must be determined from the averments of the complaint and cannot be enlarged by answers to interrogatories subsequently filed in the underlying action. Because the complaint in the underlying action has not been amended to include damages to the building contents and because there is no coverage for the cost of repairing or replacing the insured's defective work, Hartford argues, there is no basis for finding coverage in the underlying action.
The general principles of law to be applied in determining an insurer's duty to defend in cases of this type were reviewed by the Superior Court in State Auto Ins. Ass'n v. Kuhfahl, 364 Pa.Super. 230, 527 A.2d 1039 (1987), as follows:
In analyzing whether the insurer has a duty to defend, we must first look to the complaint filed against the insureds. D'Auria v. Zurich Ins. Co., 352 Pa.Superior Ct. 231, 507 A.2d 857 (1986), and determine whether the insurer is required to defend. Vale Chemical Company v. Hartford Accident and Indemnity, 340 Pa.Superior Ct. 510, 490 A.2d 896 (1985), reversed on other grounds, 512 Pa. 290, 516 A.2d 684 (1986).
After discerning the facts alleged in the complaint, we must then decide whether, if those facts were found to be true, the policy would provide coverage. If it would, then there is a duty to defend. Id.
In Cadwallader v. New Amsterdam Casualty Company, 396 Pa. 582, 152 A.2d 484 (1959), our Supreme Court referred to this principle as explained by Judge Learned Hand in Lee v. Aetna Casualty and Surety Company, 178 F.2d 750 (2d Cir.1919). In Lee, an insured brought suit on a policy of liability insurance in two counts, seeking both relief from a judgment against the insured and costs in defense of the suit. Our Supreme Court in Cadwallader stated that the Lee Court found
*331 that the insurer was not obligated to pay the amount of the judgment recovered against the insured as the recovery was not one within the coverage of the policy. However, the Court went on to grant the insured his costs of defending that suit. The insurance policy in that case, as in this one, required the insurance company to defend only those claims covered by the policy. The court said, that so long as the complaint filed by the injured party covered an injury which "might or might not" fall within the coverage of the policy the insurance company was obliged to defend. In the course of the opinion they said "... the injured party might conceivably recover on a claim, which, as he had alleged it, was outside the policy; but which, as it turned out, the insurer was bound to pay. Such is the plasticity of modern pleading that no one can be positive that that could not happen. In such a case of course the insurer would not have to defend; yet, even then, as soon as, during the course of the trial, the changed character of the claim appeared, we need not say that the insured might not insist that the insurer take over the defense. When, however, as here, the complaint comprehends an injury which may be within the policy, we hold that the promise to defend includes it.
.....
"It follows that, if the plaintiff's complaint against the insured alleged facts which would have supported a recovery covered by the policy, it was the duty of the defendant to undertake the defense, until it could confine the claim to a recovery that the policy did not cover ...". (Emphasis supplied).
Cadwallader, supra 396 Pa. at 589-90, 152 A.2d at 488. The Court in Cadwallader affirmed the judgment of the trial court which granted plaintiff the costs of defending an underlying malpractice suit against his insurance company which refused to defend him in a suit premised both on negligence and fraud. The former was covered in his policy, while the latter was excluded. The Court found the complaint to be sufficient to trigger a defense by the *332 insurance company. Thus, the obligation to defend arises whenever the complaint filed by the injured party may potentially come within the coverage of the policy. Gedeon v. State Farm Automobile Insurance Company, 410 Pa. 55, 58, 188 A.2d 320, 321 (1963) in Seaboard Industries, Inc. v. Monaco, 258 Pa.Superior Ct. 170, 392 A.2d 738 (1978).
Id., 364 Pa.Superior Ct. at 234-236, 527 A.2d at 1040-1041. Thus, the insurer has an obligation to defend its insured, even if the action against the insured is groundless, whenever the complaint filed by the injured party may potentially come within the coverage of the policy. Gedeon v. State Farm Mutual Automobile Ins. Co., 410 Pa. 55, 58, 188 A.2d 320, 321-322 (1963). The duty to defend may exist even though ultimately there may be no duty to indemnify. Id., 410 Pa. at 58-59, 188 A.2d at 322.
The averments of the complaint support Hartford's contention that the complaint sought to recover only the cost of repairs to the building. It was only the cost of restoring the "building" for which recovery was sought. When answers to interrogatories were filed, however, the potential for an additional loss became apparent. Then, for the first time, a reference was made to damages which had allegedly occurred to contents of the building. When this potential became apparent, we conclude, Hartford incurred a duty to defend.
Hartford observes that the complaint in the underlying action has not been amended to include a specific claim for damage to the contents of the building and argues that until the complaint has been amended there can be no recovery therefor. As a general rule, however, a complaint can be amended to state an additional item of damage at any time prior to trial or even before final judgment. See, e.g., Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987). Both Heffernan and Hartford are now on notice that a claim for damage to the contents of the building will probably be made in the underlying action. If that occurs, coverage will become clear. In the meantime, we conclude, the insurer has an obligation to enter an appearance on behalf of its insured in the underlying action and defend the action. This duty will continue unless and until the claim asserted against *333 the insured can be confined to a recovery which the policy does not cover. Therefore, the trial court correctly entered judgment declaring that Hartford has an obligation to defend Heffernan in the underlying action.
It was premature, however, for the court to order the insurer to provide "indemnification for any resulting property damage claims [in the underlying action], including but not limited to those already disclosed in the [underlying] plaintiffs' answers to interrogatories." The insurer's duty to indemnify its insured can better be determined after the nature of the damages, if any, has been determined in the underlying action. The present posture of the underlying action does not permit a summary determination of the insurer's duty of indemnification. Indeed, the complaint in the underlying action has not yet been amended to make a formal claim for any loss for which Hartford has agreed to indemnify its insured.
We believe it was also improper for the trial court to make a general award of counsel fees. Even the trial judge, in her opinion, concedes that Hartford properly interpreted the complaint in the underlying action, prior to the filing of answers to interrogatories, as making a claim only for defective work for which there was no coverage and that counsel fees, therefore, should not be assessed for Hartford's failure to undertake an immediate defense. The trial court has not fixed the amount of counsel fees. Indeed, the amount thereof cannot be determined summarily. If they are to be awarded, they can only be awarded from the time when the duty to defend arose. Counsel fees can be awarded only for services rendered to the insured in an amount calculated to reimburse the insured for legal services which the insurer should have provided on the insured's behalf.
The trial court's adjudication is modified by removing therefrom the general directions to Hartford to make indemnification and pay counsel fees. As so modified, the trial court's summary judgment directing Hartford to provide a defense to its insured is affirmed.
NOTES
[1] The contents for which a claim was made in the answers to interrogatories were listed as follows:
TOTALS
2 Copiers 1,395.00 2,790.00
1 Wooden Desk 835.00 835.00
7 Metal Desks 624.00 4,368.00
15 File Cabinets 226.00 3,390.00
1 File Box Cabinet 1,320.00 1,320.00
1 Drafting Table 402.00 402.00
2 Storage Cabinets 211.50 423.00
1 Water Cooler (hot/cold) 510.00 510.00
1 Small Refrigerator 219.36 219.36
3 Phones 59.95 179.85
8 Calculators 99.95 799.60
8 Staplers 21.95 175.60
1 Electric Typewriter (Repaired) 200.00
1 Electric Typewriter w/Memory (Repaired) 200.00
7 Office Chairs 199.00 1,393.00
1 Executive Chair 514.00 514.00
__________
OFFICE EQUIPMENT TOTAL $17,719.41
==========
Additionally, the following law books stored in the Building were ruined. Replacement cost is based upon prices from used book dealers for used books rather than prices for new books:
Atlantic Reporter, 2d series $3,995.00 to $4,200.00
Purdon's Pa. Statutes $1,095.00 to $1,250.00
United States Code Annotated $ 595.00 to $ 850.00
Pennsylvania Legal Encyclopedia $ 950.00 to $1,195.00
Dunlap-Hannah, Pennsylvania Forms $ 150.00 to $ 450.00
Remmick's Orphan's Court Practice $ 325.00
Hunter, Orphan's Court Practice $ 125.00
[2] The declaratory judgment entered by the trial court was as follows:
AND NOW, this 30th day of July, 1991, upon consideration of the Motion for Summary Judgment of Defendant, Hartford Insurance Company of America and Hartford Accident and Indemnity Company, Plaintiff's Answer thereto, Plaintiff's Motion for Partial Summary Judgment, Defendants' Answer thereto, memorandum of law in support thereof and following oral argument, it is ORDERED and DECREED that Defendant's Motion is DENIED. Plaintiff's Motion is GRANTED.
It is further ORDERED and DECREED that defendants, The Hartford Insurance Company of America and Hartford Accident and Indemnity Co. shall provide a defense for plaintiff, Heffernan and Company in the Moran, et al v. Marathon Mettalic Building Company and Heffernan & Company (Montgomery County CCP No. 83-15842) litigation, as well as an indemnification for any resulting property damage claims in same, including but not limited to those already disclosed in the Moran plaintiffs' Answers to Interrogatories.
Additionally, defendants shall reimburse plaintiff for all reasonable attorneys' fees incurred to the date of this Order by plaintiff in defending itself in the Moran litigation.
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227 P.2d 590 (1951)
TRENOUTH
v.
MULRONEY
No. 9021.
Supreme Court of Montana.
February 10, 1951.
*591 Smith, Boone & Rimel, Missoula, for appellant.
Fred W. Schilling, Missoula, for respondent.
ADAIR, Chief Justice.
Dr. S.M. Trenouth, a physician, brought this action at law against the defendant Thomas E. Mulroney as administrator of the estate of Mrs. Lyde Schall Buckhouse, deceased, to recover a money judgment of $1,563 on a disallowed creditor's claim for professional services claimed to have been rendered under a written power of attorney executed by decedent six years prior to her demise.
Plaintiff is associated with a number of other doctors in the practice of medicine at Missoula, Montana, in what is known as the Western Montana Clinic.
On September 30, 1942, the decedent signed and executed a writing termed "Power of Attorney" prepared by an attorney at law at the request of decedent which reads:
"Power of Attorney
"Know All Men By These Presents:
"That I, Lyde Schall Buckhouse, of Arlee, Lake County, Montana, do by this instrument make, constitute and appoint Stanley M. Trenouth, M.D., of Missoula, Montana, my true and lawful attorney-in-fact and my agent, for the purposes hereinafter stated:
"Whereas, said Stanley M. Trenouth, M.D., is an eminent physician and surgeon in whom I have the utmost confidence and who has heretofore been, and is now, my physician, and it is my earnest wish and desire that when and if I am in need of medical or surgical care and attention, that such surgical care and attention will be rendered to me by said Stanley M. Trenouth, M.D.; and in view of the fact that when I am so in need of such medical or surgical care and attention, I may not be able to declare my wish and intention so to be attended and treated or operated upon by said Stanley M. Trenouth, M.D.,
"Now Therefore, after earnest and thoughtful consideration and in view of *592 the uncertainties of the future, I do hereby declare it to be my wish, will and desire that any and all medical and surgical care or attention that I may ever hereafter be in need of, be rendered to me by said Stanley M. Trenouth, M.D., and I do hereby give him the complete and absolute authority and right to render and to administer to me whatever medical or surgical care in his judgment I am in need of at any time in the future; giving and granting to him the full and absolute right, power and authority to use his own discretion and judgment as to any medical or surgical care which he believes should be administered to me; and I expressly declare it to be my will, wish and intent that no other person shall have any right whatsoever to interfere with his decision, discretion or right so to administer to me such medical or surgical care or attention; giving and granting unto said Stanley M. Trenouth, M.D., such full right, power and authority;
"And in consideration of the foregoing trust and confidence which I have in said Stanley M. Trenouth, M.D., and in the security and peace of mind which I have by reason of the execution of this instrument and of any future services of any kind which may be rendered to me by him, I do hereby acknowledge my indebtedness to him in the sum of Two Thousand Dollars ($2,000.00), and I direct that in case of my death, my executor or administrator or heirs shall pay to him said sum of $2,000.00, if said amount has not theretofore been paid to him, or the unpaid amount thereof in case part only has been paid to him.
"In Witness Whereof, I have hereunto set my hand and seal at Missoula, Montana, this 30th day of September, 1942.
"Lyde Schall Buckhouse (Seal)"
[Acknowledged before a Notary.] Emphasis supplied.
Immediately upon the execution thereof the decedent delivered the above document to plaintiff who gave it to his office girl at the Clinic to put in the safe where it remained until after the death of decedent. Upon the appointment of defendant as administrator the plaintiff attached the "Power of Attorney" to a creditor's claim for $1,563 and presented same to the administrator for allowance.
The claim, with the title, caption and claimant's affidavit omitted, reads:
"Creditor's Claim
"The undersigned creditor of Lyde Schall Buckhouse, deceased, presents his claim against the Estate of said deceased, with the necessary vouchers, for approval as follows, to-wit:
Estate of Lyde Schall Buckhouse, Deceased to Stanley M. Trenouth, M.D., Dr.
For professional services rendered
to deceased under Power of
Attorney and Agreement attached
hereto no part of 2,000.00
which has been paid, except
the sum of $437.00 437.00
_________
Balance 1,563.00"
The $437 credit is for money paid by decedent to the Western Montana Clinic for medical services rendered her subsequent to the execution and delivery of the "Power of Attorney." The claim was rejected by the administrator whereupon plaintiff brought this action.
In his complaint plaintiff pleads: That decedent executed the "Power of Attorney" and thereafter delivered same to him; that he accepted the instrument and thereafter performed all acts required of him thereunder; that during decedent's lifetime she paid to the plaintiff and to doctors selected by him to perform various services for her, the sum of $437, but that no part of the balance representing the difference between $2,000 and $437 has been paid and that such balance in the sum of $1,563 is now due, owing and unpaid.
Defendant's answer admits his appointment as administrator; admits the execution of the so-called "Power of Attorney;" admits that the instrument was delivered to plaintiff and that he rendered her certain medical and surgical care, but denies that plaintiff performed all the acts required to be performed by him under the instrument; admits that during *593 her lifetime decedent paid $437 for professional services rendered by plaintiff and other doctors selected by him; avers that upon the death of decedent the "Power of Attorney" became null, void and ceased to be of any force or effect and denies that there is due or owing to plaintiff the sum of $1,563 or any other amount. As a separate defense defendant denies that plaintiff performed all the acts which he was required to perform under the instrument and alleges that at the time the instrument was delivered to plaintiff there was an understanding between plaintiff and decedent that during the remainder of decedent's lifetime plaintiff would, without cost or expense to her, render to her all necessary and reasonable services as a physician but that in violation of said instrument plaintiff charged decedent $437 for professional services and required her to pay same.
Plaintiff filed a reply wherein he denied that upon the death of decedent the power of attorney became null and void; denied that he accepted the power of attorney with the understanding that during the remainder of her lifetime he would without cost to decedent render her all necessary and reasonable services as a physician; admits that plaintiff rendered needed professional services to decedent and admits that plaintiff and other physicians selected by him charged her the sum of $437 and that she paid such sum.
A jury having been waived, trial of the issues was had before the court. Two witnesses testified on behalf of plaintiff. No evidence was introduced by defendant. The court made written findings of fact and conclusions of law in favor of defendant and in accordance therewith judgment of dismissal was entered from which judgment plaintiff has appealed.
There is no evidence that at the time decedent signed the "Power of Attorney" or that at the time she delivered it to plaintiff she was then indebted to plaintiff in any sum or amount whatever. However, the evidence affirmatively shows that subsequent to the execution and delivery by her of the power of attorney, she was regularly billed by the clinic for medical care and attention rendered her by the members of the clinic; that such bills and charges totaled $437 and that decedent paid for such services and charges in full.
On his direct examination at the trial, plaintiff testified:
"Q. At the time that instrument was delivered to you had you ever seen it prior to that time? A. No.
"Q. Had you ever discussed with Mrs. Buckhouse the subject matter of the agreement, prior to that time? A. No.
"Q. The instrument then came to you as something of a surprise? A. It was very much of a surprise.
"Q. After the instrument was given to you, what did you do with it? A. I gave it to our office girl to put in the safe.
"Q. Then after Mrs. Buckhouse's death, it was given to me, was it not? A. Yes.
"Q. It was in your possession from the time it was given to you by Mrs. Buckhouse until her death? A. Yes.
"Q. At the time that Mrs. Buckhouse delivered this instrument to you, did you read it? A. Yes.
"Q. Was anything said to Mrs. Buckhouse as to whether you would accept it or not?
"Mr. Schilling: We object to that. Our witness is gone. The instrument speaks for itself. It would be calling for hearsay.
"Mr. Smith: This question was as to what he said about accepting it.
"The Court: All right, Overruled.
"Q. What did you say as to whether you would accept the instrument? A. I agreed to accept it.
"Q. Knowing the contents of the instrument, was anything said by you as to whether you would do the things that the instrument requested you to do? A. I told her I would do them to the best of my ability.
"Q. After the instrument was executed and delivered to you, did you then continue to act as Mrs. Buckhouse's physician? A. Yes, I did.
"Q. Did you perform, yourself, all of the services that were rendered to her? *594 All the medical services rendered? A. No, I didn't.
"Q. When she needed medical services, you recommended the doctors to do particular things for her? A. I did.
"Q. Those doctors were doctors in the Western Montana Clinic, is that correct? A. Yes.
"Q. You are a member of this firm of doctors? A. I am.
"Q. When these services were rendered by the members of the Clinic, were regular bills sent to her from time to time? A. Yes.
"Q. Is the amount of $437.00 the amount that was charged by the Clinic to Mrs. Buckhouse between the date you got this instrument and the date of Mrs. Buckhouse's death? A. It is to the best of my knowledge.
"Q. Other than that, there were no payments made by Mrs. Buckhouse to you or to the Clinic? A. No.
"Q. This $437.00 would include charges by doctors other than yourself? A. Yes."
On his cross-examination plaintiff testified:
"Q. You say you are a member of the Western Montana Clinic? A. Yes.
"Q. And have been during all the time mentioned here? A. Yes.
"Q. These bills that were rendered to Mrs. Buckhouse were rendered by the Western Montana Clinic office? A. Yes.
"Q. The charges were the charges of the Clinic? A. Yes.
"Q. Were the payments made to you directly, or were they made to the Clinic? A. They were made to the Clinic.
"Q. The money that Mrs. Buckhouse paid, she paid it to the Clinic for these services, and not to you? A. That's correct.
"Q. Because you are a member of this organization? A. Yes.
"Q. The charges, I take it, were the regular Clinic charges? A. Yes.
"Q. For the services rendered? A. Yes.
"Q. And the payments were made for the services rendered? A. Yes."
In its findings of fact and conclusions of law incorporated in its judgment the trial court found that at the time of the execution and delivery of the "Power of Attorney" there was no debt or obligation owing by decedent to plaintiff; that plaintiff knew nothing about the execution of the writing until it was delivered to him; that thereafter plaintiff personally rendered no professional services to decedent and that he did nothing whatever on his part in the performance of the instrument; that subsequent to its execution all medical and surgical services received by the decedent were done and performed by the doctors of the Western Montana Clinic; that decedent was billed by the clinic for such services and that she paid the same to the clinic; that such payments were made without regard to the instrument and that none of the payments were endorsed on the instrument; that plaintiff breached the terms and conditions thereof on his part to be performed in that he entirely failed to render any medical, surgical or professional services to decedent after the writing was delivered to and accepted by him.
The court thereupon concluded that as a power of attorney the instrument died with decedent; that there was no consideration of any kind past, present or future passing from plaintiff to decedent for the execution and delivery of the instrument; that plaintiff breached the terms and conditions thereof by his failure to perform what was required of him under the terms and conditions thereof; that viewing such instrument as an order to the administrator to pay the plaintiff the amount therein mentioned, it constituted a testamentary disposition of the property of decedent; that the instrument is not executed with any of the formalities required for a testamentary disposition and that it is not a will.
In this action at law wherein a jury was waived the court found for the defendant and on appeal the appellate court indulges the presumption in limine that the trial court's findings are correct and that the conclusion reached is justified, Dover Lumber Co. v. Whitcomb, 54 Mont. 141, 149, 168 Pac. 947. In aid of such presumption *595 every legitimate inference will be drawn from the evidence. Tucker v. Missoula Light & Ry. Co., 77 Mont. 91, 250 Pac. 11; Kosonen v. Waara, 87 Mont. 24, 30, 285 Pac. 668; State v. Schoenborn, 55 Mont. 517, 179 Pac. 294; Lindeberg v. Howe, 67 Mont. 195, 199, 215 Pac. 230.
Power of Attorney. The writing on which plaintiff seeks to recover is denominated "Power of Attorney." The ordinary power of attorney is merely an instrument in writing authorizing another to act as one's agent. The McLaren Gold Mines Co. v. Morton, 124 Mont. 382, 224 Pac. (2d) 975. Unless the power of the agent is coupled with an interest in the subject of the agency it is terminated, as to every person having notice thereof, by the death of the principal. R.C.M. 1947, sec. 2-305.
The general rule for determining what constitutes a power coupled with an interest is as stated in 2 Am. Jur., Agency, section 78, page 63, viz.: "The question is, does the agent have an interest or estate in the subject-matter of the agency independent of the power conferred, or does the interest or estate accrue by or after the exercise of the power conferred. If the former, the agency is coupled with an interest; if the latter, it is not. It has also been laid down that the estate or interest vested or created in the agent must be such as the agent could transfer or convey in his own name in the event of the death of the principal."
In the annotation in 64 A.L.R. at page 380, it is said: "In order that a power may be irrevocable because coupled with an interest, it is necessary that the interest shall be in the subject-matter of the power, and not in the proceeds which will arise from the exercise of the power."
The power of attorney executed by Mrs. Buckhouse clearly did not create a power coupled with an interest; hence, it terminated upon her death. R.C.M. 1947, sec. 2-305; Gardner v. First National Bank of Billings, 10 Mont. 149, 25 Pac. 29, 10 L.R.A. 45, citing the leading case of Hunt v. Rousmanier's Admrs., 8 Wheat 174, 5 L.Ed. 589. The California statute from which section 2-305, supra, was taken was construed in: In re Scott, 205 Cal. 525, 271 Pac. 906, 909; Capital National Bank of Sacramento v. Stoll, 220 Cal. 260, 30 Pac. (2d) 411. See also, Bowman v. Ledbetter, 173 Okl. 345, 48 Pac. (2d) 334; Terre Haute Brewing Co. v. Dugan, 8 Cir., 102 F. (2d) 425; 2 Am. Jur., Agency, sec. 59, p. 52.
There is no evidence, nor does the record herein otherwise show, that decedent owed plaintiff anything at the time she executed the "Power of Attorney" and the reasonable inference to be drawn from plaintiff's testimony and the recital in the instrument that "in consideration of the foregoing trust and confidence which I have in said Stanley M. Trenouth, M.D., * * * and of any future services of any kind which may be rendered to me by him," is that decedent did not owe plaintiff anything at the time she signed and acknowledged the writing. A reasonable inference is sufficient to sustain the trial court's findings and conclusion. R.C.M. 1947, secs. XX-XXXX-X to XX-XXXX-X; Jenkins v. Northern Pac. Ry. Co., 44 Mont. 295, 119 Pac. 794; California Packing Co. v. McClintock, 75 Mont. 72, 76, 241 Pac. 1077.
Stronger and more positive and definite language could not well have been employed in the writing which decedent executed to show the confidence reposed by her in the particular learning, experience, skill and ability of plaintiff as a physician and surgeon, and that she intended by the writing that plaintiff and he alone was to give her such medical and surgical care and treatment as she should require and plaintiff's testimony is: "I told her I would do them to the best of my ability." However, following the delivery to plaintiff of the instrument he thereafter failed to personally give to decedent the medical services that were required by her or that were rendered to her, but instead plaintiff recommended other doctors at the clinic to do and perform such professional services, thus assuming to delegate to others the duties he had assumed and which he had agreed he would personally do and perform.
The general rule is thus stated in 2 Am. Jur., Agency, section 196, page 154, viz.: "It is a general rule that in all cases *596 of delegated authority where personal trust or confidence is reposed in the agent and especially where the exercise and application of the power is made subject to his judgment or discretion, the authority is purely personal and cannot be delegated to another unless there is a special power of substitution, either express or necessarily implied." See also, Restatement of the Law of Agency, sec. 78, p. 186.
In Bond v. Hurd, 31 Mont. 314, 323, 78 Pac. 579, 583, an employee of defendant employed a doctor to treat defendant's injured employee and such doctor then employed one Dr. Miller to assist him in treating the patient. Thereafter the second doctor assigned his claim to Bond. In holding that Bond could not recover on the assigned claim of Dr. Miller the court said: "We are satisfied that the record fails to show any such emergency as authorized the employment of Miller, or that Dr. Miller was employed by any one having competent authority to that end." So here, we find no evidence to show any emergency that would justify plaintiff to turn decedent over to other doctors for the medical or surgical services which he had agreed to personally render. In delegating the task to others to perform plaintiff breached the express provisions of the power of attorney as the trial court correctly concluded and held. Compare: 1 Page on Contracts, 2nd Ed., p. 753, sec. 455; 5 Williston on Contracts, Rev. Ed. 1937, pp. 4541-4545, sec. 1625A, note 14; Woodbury v. Woodbury, 141 Mass. 329, 5 N.E. 275, 55 Am. Rep. 479; Bogie v. Nolan, 96 Mo. 85, 9 S.W. 14; Unruh v. Lukens, 166 Pa. 324, 31 A. 110; Warren v. Pfeil, 346 Ill. 344, 178 N.E. 894; Gerrish v. Chambers, 135 Me. 70, 189 A. 187.
Testamentary Disposition. There is much in the written instrument of a testamentary character, which portions we have set forth in italics.
R.C.M. 1947, sec. 91-229, provides: "A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated."
The power of attorney contains a conditional disposition and bequest of $2,000 or of any balance thereof unpaid upon her death. While it was her right to dispose of her property as she saw fit, In re Benson's Estate, 110 Mont. 25, 98 Pac. (2d) 868; In re Irvine's Estate, 114 Mont. 577, 591, 139 Pac. (2d) 489, 147 A.L.R. 882; 57 Am. Jur., Wills, sec. 1503, p. 1016; and 19 Am. Jur., Estates, sec. 58, p. 520, yet to make a valid testamentary disposition the decedent was required to execute her will and have it witnessed in the manner required by our codes and this she wholly failed to do. In re Williams' Estate, 50 Mont. 142, 154, 145 Pac. 957; In re Watts' Estate, 117 Mont. 505, 160 Pac. (2d) 492; In re Noyes' Estate, 40 Mont. 178, 105 Pac. 1013; In re Bragg's Estate, 106 Mont. 132, 76 Pac. (2d) 57.
The trial court found there was no debt or obligation owing from Mrs. Buckhouse to plaintiff at the time she executed the power of attorney and therefore it was not a contract between them but only an attempted testamentary disposition of $2,000 and as such void for the reasons stated.
In 57 Am. Jur., Wills, section 40, page 67, it is said: "The dominant purpose of the maker of an instrument as manifested therein controls in determining whether the instrument is a contract or a will. Whether any given writing is a will or a contract must be determined by the character of its contents, rather than from its title or any formal words with which it may begin or conclude, but words which do not change the legal effect of the instrument may, nevertheless, be significant by revealing the intention with which it was made."
In the following cases, with varying fact situations comparable in many instances to those which here obtain, it was held that the instrument involved was a "testamentary disposition" and therefore should have been executed as a will, viz.: United States Trust v. Giveans, 97 N.J.L. 265, 117 A. 46; American University v. Conover, 115 N.J.L. 468, 180 A. 830; In re Murphy's Estate, 193 Wash. 400, 75 P.2d *597 916; Spinks v. Rice, 187 Va. 730, 47 S.E. (2d) 424; Taylor v. Wilder, 63 Colo. 282, 165 Pac. 766. See also, cases cited in 2 A.L.R. at pages 1474 and 1475. The instrument should have been executed in the manner required by sections 91-107 and XX-XXXX-X, R.C.M. 1947, in order to make the conditional bequest valid. In re Watts' Estate, supra; In re Williams' Estate, supra.
Under the authorities cited the judgment of the trial court is affirmed.
MR. JUSTICES METCALF, BOTTOMLY, ANGSTMAN and FREEBOURN, concur.
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