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COURT OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT
WORTH
NO.
2-06-465-CV
KENNETH J. MAGNUSON APPELLANT
V.
CITIBANK (SOUTH DAKOTA) N.A. APPELLEE
------------
FROM COUNTY
COURT AT LAW NO. 2 OF DENTON COUNTY
------------
MEMORANDUM OPINION[1]
------------
Appellant Kenneth J. Magnuson appeals from a
summary judgment awarding Appellee Citibank (South Dakota), N.A. damages of
$18,815.02, plus $4,327.45 in attorney=s fees,
$1,500 in additional attorney=s fees
in the event of an unsuccessful appeal by Magnuson to the court of appeals, and
$2,500 in additional attorney=s fees
in the event of an unsuccessful appeal by Magnuson to the Texas Supreme
Court. Because we hold that the trial
court did not err by granting summary judgment for Citibank, we affirm.
I. Facts
and Procedural History
On June 18, 2004, Citibank sued Magnuson on
claims of account stated, breach of contract, and quantum meruit for the unpaid
balance on Magnuson=s credit card account after he
stopped paying on the account. Magnuson
filed an answer pro se. On September 20,
2004, Citibank filed a motion for summary judgment. Magnuson filed a response. Citibank asked for a hearing by submission,
but Magnuson appeared in person on the hearing date. The trial court denied Citibank=s motion
without prejudice and without considering the merits because Citibank did not
appear.
On November 7, 2005, Citibank filed a second
traditional motion for summary judgment and submitted in support of its motion
the affidavit of Crystal Britt, its representative, stating among other things
that demand had been made on Magnuson more than thirty days prior to suit. Citibank also attached copies of the card
agreement, Magnuson=s account application, and
billing records. Magnuson filed a
verified response but did not attach any evidence in support. In his response, he argued that the
application included with Citibank=s
evidence is illegible and therefore no contract exists and that because the
cardholder agreement does not contain his signature, the conditions therein are
not a part of any alleged agreement between the parties. He also asserted that
no contract was signed by Citibank.
Magnuson also filed a motion to show authority
under Rule 12 of the Texas Rules of Civil Procedure.[2] Citibank filed a response, attaching an
affidavit of a vice president for Citicorp Credit Services, Inc., in which the
vice president avers that Citicorp is the servicer for Citibank, that her
duties include supervising attorneys retained to collect debts on Citibank=s
behalf, and that Citicorp retained the acting counsel for the proceedings
against Magnuson.
Both motions were set for a hearing on February
3, 2006. Citibank had requested a
hearing by submission on its summary judgment motion, and Citibank=s
attorney did not appear in person on that date.
The trial court stated that it intended to hold a hearing on the Rule 12
motion and asked Magnuson to offer evidence that Citibank was served with
notice of the hearing. Magnuson did not
have such evidence with him at the hearing.
The trial court then offered to waive the in-person hearing and base its
ruling on the pleadings then on file.
Magnuson declined the offer and suggested that the trial court swear him
in and allow him to testify that he served Citibank with notice. The trial court instead allowed Magnuson the
opportunity to supplement the file with the confirmation and told Magnuson
that, once the evidence was submitted, he would consider it. Magnuson did not supplement with proof of
notice.
The trial court subsequently set a hearing date
of June 14, 2006, for the hearing on the motion for summary judgment and on
Magnuson=s Rule
12 motion. Magnuson did not appear, and
the trial court orally dismissed the Rule 12 motion for failure to
prosecute. The trial court also granted
Citibank=s
summary judgment motion in a written order without stating the grounds. On November 22, 2006, the trial court entered
a written order denying Magnuson=s Rule
12 motion. Magnuson filed a motion for
new trial, including a motion for reconsideration on his Rule 12 motion, in
which he alleged that by filing an answer to his Rule 12 motion, Citibank made
a judicial admission that it had notice of the February 2006 hearing on the
motion. He further argued that the trial
court had violated Magnuson=s due
process rights by failing to sign orders Magnuson had presented to it after the
court granted summary judgment. Magnuson
also alleged that the June 2006 hearing was essentially a rehearing on the Rule
12 motion, that the rehearing was granted without proper motion, and that by
granting the rehearing the trial court violated the Texas Code of Judicial
Conduct, held Magnuson to a higher standard than opposing counsel, and violated
Magnuson=s due
process and equal protection rights. The
trial court denied the motion on December 20, 2006.
II.
Analysis
Magnuson presents nine issues on appeal. We begin with Magnuson=s second
and third issues, which relate to his Rule 12 motion. In his second issue, he asks, AIf a
hearing is scheduled and the [m]ovant appears and the nonmovant fails to appear
but files a written answer which is insufficient as a matter of law, has the
movant [sic] waived all objections to said hearing?@ In his third issue, he questions whether the
trial court has a duty to provide relief for the party that appeared.
In the arguments section of Magnuson=s brief,
he states,
Notice was given and
received by the opposing counsel. Trial
judge abused discretion in not signing order after CITIBANK failed to
appear. All elements of the requirements
of the rule were pleaded. CITIBANK
answered with an affidavit of their representation. However, the rule requires a hearing in order
to allow cross‑examination of witnesses as to the authentication and
source of the documents. Without the
hearing[,] self‑serving affidavits would replace evidentiary
standards. It was not within the trial
court[=]s discretion not to hear
a motion that invoked a rule that protected the rights of litigants against
barratry or frivolous pleadings. It is
the contention of the Appellant that the attorneys acting to represent CITIBANK
are actually third party debt [collectors] which would equate to fraud upon the
court.
This paragraph constitutes the extent of his argument for these issues
in the AArguments@ section
of his brief.
We
consider together Magnuson=s
contentions that he was entitled to have his motion granted because Citibank
did not appear in person on February 3, 2006, and that by failing to appear,
Citibank waived its objections to the hearing.
The motion was first set for hearing on February 3, 2006. On that date, Magnuson was unable to show
that Citibank had notice of the hearing.
As the trial court attempted to explain to Magnuson, notice that a
motion has been filed is not notice of the setting of a hearing on the
motion. Citibank clearly did know that
Magnuson had filed a Rule 12 motion because, as Magnuson correctly points out,
Citibank filed a response. But that does
not signify that Citibank had any notice of when the hearing on the
motion would be held.
Rule 21
of the Texas Rules of Civil Procedure provides that
[a]n application to the
court for an order and notice of any hearing thereon, not presented
during a hearing or trial, shall be served upon all other parties not less than
three days before the time specified for the hearing unless otherwise provided
by these rules or shortened by the court.[3]
The
local rules of the trial court provide that A[u]pon
receiving the date and time of hearing [as scheduled by the court coordinator],
the moving party shall immediately notify all other parties in writing as to
the date, time, and subject matter of the hearing.@[4]
A trial
court=s final
dismissal of a plaintiff's cause of action without proper notice is an abuse of
discretion.[5] Thus, the trial court did not abuse its
discretion by requiring that Magnuson show proof of service on Citibank before
granting his motion and striking Citibank=s
pleadings. It is irrelevant for purposes
of Magnuson=s issue whether Magnuson later
established that he had served Citibank with notice of the hearing date because
on the date of the hearing, the time at which Magnuson alleges the trial
court erred, Magnuson offered no evidence that Citibank had notice of the
hearing. Without proof of service on
Citibank, Magnuson was not entitled to any sort of default ruling on his
motion, and Citibank did not waive objections to the hearing.[6]
Magnuson
makes a related argument in the AConclusion@ section
of his brief. There he contends that the
trial court created a heightened pleading standard for him, a nonattorney, when
the trial court failed to grant his Rule 12 motion on February 3, 2006, after
Citibank did not appear at the hearing.
He argues that this heightened standard violates due process and equal
protection.
Magnuson
cites no authority for this argument.[7] Further, as we discussed above (and as the
trial court attempted to explain to him on that date), there is a difference
between having notice that a motion has been filed with the trial court and
having notice of the date of a hearing on that motion. The trial court did not create a heightened
pleadings standard by requiring Magnuson to offer such evidence; rather, the
trial court applied the Texas Rules of Civil Procedure.[8]
We note
that the trial court set a hearing date for June 14, 2006, and that Magnuson
did not appear. It was Magnuson=s
responsibility to diligently pursue his motion, and by failing to show up at
the hearing, he faced dismissal of his motion.[9] Accordingly, the trial court dismissed the
motion for want of prosecution, rather than ruling on the merits either with or
without an oral hearing, and Magnuson does not challenge the propriety of that
dismissal on appeal. Thus, the question
of whether Rule 12 requires an oral hearing before a ruling on the merits may
be issued is irrelevant to this appeal, and we do not consider it.[10] Accordingly, we overrule issues two and
three.
In his
first issue, Magnuson asks, AMay a
litigant file a second Motion for Summary Judgment without any change in their
pleadings?@ In issue four, Magnuson asks,
does Athe
opposing party have the authority to reset a hearing or in effect have a
rehearing of a motion filed by opposing counsel without filing a motion to
rehear?@ Issue five relates to the trial court=s grant
of Citibank=s second motion for summary
judgment and asks, ADoes any court have the ability
to rule in favor of a summary judgment motion that had been previously denied?@ Issue six questions whether a trial court has
discretion to grant a summary judgment motion if the nonmoving party fails to
appear on the date set for the summary judgment hearing. Magnuson makes no argument in support of
these issues; therefore, they present nothing for this court to review.[11] Accordingly, we overrule issues one, four,
five, and six as inadequately briefed.[12]
Issues
seven through nine relate to Magnuson=s access
to reporter=s records under Rule 145 of the
Texas Rules of Civil Procedure and Rule 20.1 of the Texas Rules of Appellate
Procedure for the purpose of proving a motion for new trial.[13] He states in his brief that he filed a motion
for new trial, and Citibank=s
counsel argued in response that there was no hearing on the Rule 12 motion Aand that
no transcript has been provided to demonstrate that a hearing had in fact
occurred.@
Magnuson then notes that he is indigent and that he filed Athe
necessary documents@ under Rule 145 and Rule 20.1 to
prove his indigency, and that he had made a request for Athe
transcript to provide evidence of the hearing and the opposing parties[>]
absences from that hearing,@ which
the trial court denied. With that
preface, Magnuson asks,
Seven: Does the lack of access to an
indigent to hearing transcripts in rehearings or in a New Trial Motion deny the
indigent the right to due process and equal protection under the U.S.
Constitution?
Eight: If it does not in Question 7
above, how can a person place evidence of errors or omissions before the trial
court without having to appeal it first in order to be provided the transcripts
under the Texas Rules of Appellant Procedure 20.1?
Nine: In considering the situation
in the above scenario and questions create; explain how an indigent person can
persuade a trial court of mistakes made in previous hearings if they are denied
transcripts and cannot afford them, when the same court bars tape records as a
standing rule? Is this not a de facto
denial of access to the courts with an equal footing as the opposing party?
In support of
these issues, Magnuson argues that Rule 145 does not allow for reporter=s records to be
provided to indigent parties for purposes of filing motions for rehearing or
motions for new trial, and the denial of access to the reporter=s record of the
hearings in this case denied him due process, violated his equal protection
rights, and denied him access to the courts.
While Magnuson
phrases his issues in terms of indigent defendants in general, we consider only
whether the denial of access to the reporter=s record for
purposes of filing a motion for new trial or motion for rehearing violated
Magnuson=s rights, not the
rights of other indigent defendants.[14] We conclude that we need not determine
whether Magnuson has been denied due process, equal protection, or access to
the courts because Magnuson has not shown any harm.[15]
A party has
several avenues for obtaining a remedy for trial court error. A party can try to persuade the trial court
to remedy the error by filing a motion for new trial or a motion for rehearing.[16] In addition, the party can file an appeal and
try to persuade a court of appeals to remedy the alleged error.[17]
In this case,
Magnuson claims that he could not persuade the trial court of mistakes made or
show the trial court evidence of errors or omissions without having access to
the reporter=s record.
But Magnuson did have access to the reporter=s record in making
his appeal. This court has the authority
to remedy error and grant a new trial in the appropriate circumstances.[18] Thus, if Magnuson wished the trial court to
cure error by granting a new trial, this court could have cured the error with
the same remedy if such remedy was appropriate.
And although Magnuson appears to assert that there should be some
procedure, other than filing an appeal, for gaining access to the reporter=s record in order
to raise a point of error in the trial court, in this case, Magnuson has not
demonstrated how he was harmed by the absence of such a procedure. Despite the fact that Magnuson has now been
given access to the reporter=s record, he has
not told this court what arguments he would have made to the trial court or
what evidence of errors or omissions he would have noted in his motion for new
trial or motion for rehearing if he had been able to examine the reporter=s record before
drafting the motions. Thus, Magnuson has
not shown any error of law that probably caused the rendition of an improper
verdict.[19]
Magnuson could
have also demonstrated harm by showing that the trial court made an error of
law that probably prevented him from properly presenting his case to this court
on appeal.[20] Under Rule 324(b) of the Texas Rules of Civil
Procedure, in some instances, a complaint must be made as a point in a motion
for new trial as a prerequisite to making the complaint on appeal.[21] For example, a party complaining about the
factual sufficiency of the evidence supporting a jury finding must raise the
complaint in a motion for new trial.[22] Magnuson
has not argued, much less demonstrated, that denial of access to the reporter=s record prevented
him raising a Rule 324(b) point in a motion for new trial (and thus prevented
him from raising it on appeal) or that it in any other way prevented him from
properly presenting his case to this court.[23] We overrule issues seven, eight, and nine.
Finally,
we consider one additional argument raised by Magnuson. In the arguments section of his brief, he
argues that no written contract signed by the parties exists and that without a
formal written contract, the amount of damages, if any, cannot be
calculated. This argument does not
clearly relate to any of the issues he raised in the AIssues
Presented@ section of his brief, but we
will consider it.[24]
In
addition to its breach of contract claim, Citibank filed for summary judgment
on its claim on account stated. The
trial court did not specify whether it granted summary judgment on the breach
of contract claim or on the account stated claim, and on appeal, Magnuson
challenges only the propriety of the summary judgment as to the breach of
contract claim. We therefore must affirm
the summary judgment on the account stated ground.[25]
Having
affirmed the summary judgment on procedural grounds, we need not address the
merits of Magnuson=s argument. Nevertheless, in the interest of justice, we
note that the agreement on which an account stated claim is based can be
express or implied, and therefore a plaintiff bringing a claim on an account
stated does not have to produce a written contract to recover on the
claim. Assuming arguendo that a
past due balance on a credit card can give rise to damages on an account stated
claim, Citibank did not have to produce a written contract to recover on its
claim against Magnuson, as long as it could produce other evidence of the
agreement between the parties sufficient to meet its burden of proof.[26]
Further,
we disagree that Citibank did not provide evidence of a contract and that the
amount of damages cannot be calculated. AThe
elements of a valid contract are (1) an offer, (2) an acceptance, (3) a meeting
of the minds, (4) each party=s
consent to the terms, and (5) execution and delivery of the contract with the
intent that it be mutual and binding.@[27] ADelivery
may be proved by acts or words showing that the parties intended the contract
to become effective.@[28] A[W]hen
the parties manifest an intent through their actions and words that the
contract become effective, delivery is shown.@[29]
To its
summary judgment motion, Citibank attached evidence in the form of copies of
billing statements from January 20, 1998, to July 26, 2005. The statements reflect charges made on the
account; they also reflect payments made.
Citibank also attached the cardmember agreement (the AAgreement@) for
the account. The Agreement states that
the cardmember is responsible for all amounts owed on the account and that the
cardmember agrees to pay such amounts according to the terms of the Agreement. It further provides that it is effective when
the cardmember uses the card. The
Agreement sets out how the monthly minimum payment is determined and how
finance charges are determined.
Citibank
also attached the application for the credit card account. The application has the name AKenneth
J. Magnuson@ and an address preprinted on
it. The address is the same address that
Magnuson provided to this court as his current address. The application states that it is for a pre-approved
credit line up to $25,000, and it shows a signature and a date.
These
documents establish (1) an offer, (2) an acceptance by Magnuson, (3) a meeting
of the minds, (4) each party=s
consent to the terms, and (5) execution and delivery of the contract with the
intent that it be mutual and binding.
The terms of the contract are set out in the Agreement, which, as the
Agreement states, Magnuson accepted by using the card. The billing statements show that he used the
card. Nothing in the record establishes
that Magnuson disputed any of the terms of the account while using the
card. Delivery was established by
Magnuson=s use of
the card and by his making payments on the account for the charges shown on his
monthly billing statement.[30] We overrule Magnuson=s
argument.
III. Conclusion
Having
overruled Magnuson=s issues, we affirm the judgment
of the trial court.
LEE ANN DAUPHINOT
JUSTICE
PANEL B: DAUPHINOT, HOLMAN and WALKER, JJ.
DELIVERED:
February 14, 2008
[1]See Tex. R. App. P.
47.4.
[2]Tex. R. Civ. P. 12 (AA party in a suit or
proceeding pending in a court of this state may, by sworn written motion
stating that he believes the suit or proceeding is being prosecuted or defended
without authority, cause the attorney to be cited to appear before the court
and show his authority to act.A).
[3]Tex. R. Civ. P. 21 (emphasis added).
[4]Denton
County (Tex.) Dist. & Stat. County Cts. Loc. R. 1.11.3.
[5]Petitt v. Laware, 715 S.W.2d 688, 691
(Tex. App.CHouston [1st Dist.] 1986,
writ ref=d n.r.e.) (AThe authorities are clear
that an action taken by the court that results in a final dismissal of
plaintiff=s cause of action without
proper notice involves more than a mere violation of the rules of practice and
procedure; such action will constitute abuse of discretion.@).
[6]See id.
[7]See Tex. R. App. P.
38.1(h) (requiring a brief to contain appropriate citations to authority).
[8]See Tex. R. Civ. P. 21.
[9]See Denton
County (Tex.) Dist. & Stat. County Cts. Loc. R. 2.12 (AFailure of a party
seeking affirmative relief to appear at any scheduled trial or hearing shall
result in dismissal of the case or waiver of the matters presented in the
motion scheduled for hearing.@).
[10]See Tex. R. App. P. 47.1.
[11]See Strange v. Cont=l Cas. Co., 126 S.W.3d 676, 678
(Tex. App.CDallas 2004, pet.
denied), cert. denied, 543 U.S. 1076 (2005) (AAn issue on appeal
unsupported by argument or citation to any legal authority presents nothing for
the court to review.@).
[12]See Tex. R. App. P.
38.1(h).
[13]See Tex. R. Civ. P. 145; Tex. R. App. P. 20.1.
[14]See Tex. Ass'n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (holding that Texas courts have no
jurisdiction to render an advisory opinion, that is, an opinion that decides an
abstract question of law without binding the parties); see also Advantage
Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 26 (Tex. App.CHouston [14th Dist.]
2005, no pet.) (holding that an issue asking whether a letter of protection can
ever be a contract sought an advisory opinion and noting that courts may not
issue advisory opinions).
[15]See Tex. R.
App. P. 44.1.
[16]See D/FW Commercial Roofing Co. v.
Mehra, 854 S.W.2d
182, 189 (Tex. AppCDallas 1993, no writ) (AThe purpose of a motion for new
trial is to provide an opportunity for the trial court to cure any errors by
granting a new trial.@);
OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234
S.W.3d 726, 747 (Tex. App.CDallas 2007, pet. filed) (AThe sole purpose of a motion for
rehearing is to provide the court an opportunity to correct any errors on
issues already presented.@)
[17]See Tex. R. App. P. 25.1.
[18]See Tex. R.
App. P. 43.2(d).
[19]See Tex. R.
App. P. 44.1(a).
[20]See Tex. R.
App. P. 44.1(a)(2).
[21]Tex.
R. Civ. P.
324(b).
[22]Id. 324(b)(2).
[23]See Tex. R.
App. P. 44.1.
[24]See Tex. R. App. P.
38.9.
[25]See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121
(Tex. 1970) (AThe judgment must stand,
since it may have been based on a ground not specifically challenged by the
plaintiff and since there was no general assignment that the trial court erred
in granting summary judgment.@).
[26]See Arnold D. Kamen &
Co. v. Young,
466 S.W.2d 381, 388 (Tex. Civ. App.CDallas 1971, writ ref=d n.r.e.) (AThe essential elements of
an >account stated= are transactions between
the parties [that] give rise to an indebtedness of one to the other; an
agreement, express or implied, between the parties fixing the amount due; and a
promise, express or implied, by the one to be charged, to pay such indebtedness.@); Cent. Nat=l Bank of San Angelo v.
Cox, 96
S.W.2d 746, 748 (Tex. Civ. App.CAustin 1936, writ dism=d) (determining whether
the amounts shown by a company=s books as due to an employee=s wife after his death
constituted a stated account between employer and employee where the books
showed no agreement by the employer as to the correctness of the amount due,
and holding that employer=s payment of various sums
to the employee=s wife over a two-year
period Awas clearly sufficient to
constitute an implied assent to the correctness of said account@ and was conclusive of
the amount still due to the employee=s wife).
[27]Prime Prods., Inc. v.
S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.CHouston [1st Dist.] 2002, pet. denied).
[28]Awad Tex. Enters., Inc.
v. Homart Dev. Co., 589 S.W.2d 817, 820 (Tex. Civ. App.CDallas 1979, no
writ).
[29]Winchek v. Am. Express
Travel Related Servs. Co., 232 S.W.3d 197, 204 (Tex. App.CHouston [1st Dist.] 2007, no pet.) (op. on reh=g).
[30]See id.
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498 P.2d 106 (1972)
Peter Richard TROUNCE, Appellant,
v.
STATE of Alaska, Appellee.
No. 1476.
Supreme Court of Alaska.
June 12, 1972.
Herbert D. Soll, Public Defender, Bruce A. Bookman and Lawrence J. Kulik, Asst. Public Defenders, Anchorage, for appellant.
John E. Havelock, Atty. Gen., Juneau, Monroe N. Clayton, Dist. Atty., Lyle L. Carlson and James Hackett, Asst. Dist. Attys., Fairbanks, for appellee.
Before BONEY, C.J., and RABINOWITZ, CONNOR, ERWIN, and BOOCHEVER, JJ.
OPINION
RABINOWITZ, Justice.
Appellant Peter Trounce, together with five codefendants, was indicted for the separate offenses of assault with a dangerous weapon and malicious destruction of personal property. After trial by jury, *107 Trounce was found guilty of assault with a dangerous weapon but was acquitted of the malicious destruction of personal property count. Trounce was thereafter sentenced to two years' imprisonment with one and one-half years suspended. Trounce now appeals from this conviction.
In this appeal Trounce urges two specifications of error. First, Trounce contends that the trial court should have granted his motion for judgment of acquittal as to the assault with a dangerous weapon charge. Secondly, Trounce argues that the trial court committed reversible error when it failed to grant his motion to dismiss the assault with a dangerous weapon count because of its duplicity.[1]
The indictment in the case at bar in part charged Trounce with the crime of assault with a dangerous weapon in the following manner:
That on or about the 4th day of July, 1970, at or near Fairbanks, in the Fourth Judicial District, State of Alaska, ... Peter Richard Trounce [and others] ... being then and there armed with dangerous weapons, to-wit: lengths of chain, did wilfully, unlawfully and feloniously assault Edward Patrick Leonard and Terry Don Lee, by striking them about the face, head and back with said lengths of chain.
The incidents that led to Trounce's conviction were horrifying and reflective of some of the most lawless attributes of man. This tale of violence begins in the early morning hours of July 4, 1970, by the shores of Harding Lake, a popular recreation area located approximately 49 miles south of Fairbanks. Shortly after midnight, several of the occupants of two cars, a Ford Falcon station wagon and gunmetal gray sedan, got into a fight at Pearl's Landing.[2] It seems that the fight started when the operator of the sedan took a shoe belonging to the operator of the station wagon and threw it into the lake. Several vacationers, some soldiers from Ft. Wainwright and some civilians, who happened to be in the vicinity of Pearl's Landing, witnessed the scuffle, intervened, and broke it up. After the fight was stopped, the original combatants and their friends got into their respective cars and drove off. As they departed, the occupants of the sedan informed the civilians and the soldiers who had intervened in the fight that they would be back and would get even with them.
At approximately 3:30 the same morning, Russell Gillaspie, one of the civilians who helped break up the earlier fight was sitting in his camper, with his wife and some visitors. At that time he "heard a screeching of tires and a couple of cars pulled" into the landing. Gillaspie recalled that one of the vehicles was of the same color as the sedan that had been seen at the landing earlier that same morning; the other vehicle was an old blue pickup. This witness saw six people get out of the two cars with chains and clubs in their hands and stated that they were "swinging [the chains] around the air and beating the ground and hollering and ranting and raving out there." Gillaspie next observed that the chain wielders were beating on the latrine where Sergeant John Daly, one of Gillaspie's guests, had gone just a few minutes prior to the arrival of the two vehicles.
Edward Leonard, a serviceman who had been present at the earlier fight, was at this time in the area of the latrine building. Leonard saw the pickup and sedan drive up. He identified the car as the one that had been there earlier and stated that some of the people who drove up at this time were involved in the earlier fight. According to *108 Leonard, they all jumped out of the car, looking like "they were going to beat us up." He noted that the occupants of both vehicles were taking chains out of the rear of the pickup. At this point, Leonard testified, "All these men that were in the car, and the pickup moved towards me at one time all together." and "[t]hey were around me; I was completely encircled" by seven chain carrying assailants. As the group came closer, Leonard was struck by a chain. Leonard then ran off into the woods pursued by an assailant armed with a chain. During his flight, Leonard fortuitously found a length of pipe, picked it up, and with it persuaded his pursuer to break off the chase.
When the two vehicles drove up, Terry Lee, another serviceman, moved to be near Edward Leonard. Lee saw seven or eight people get out of the vehicles and observed that some had chains and one individual had a rifle or shotgun. According to Lee, three or four members of the group "came around" Leonard and himself. Lee said that Leonard was then told to take off. Lee next remembers being hit four or five times by chains. Sergeant Daly was in the latrine at the time the two vehicles arrived. The next thing he heard was screaming and yelling for him to come out; he was told he was going to get his. When he came out, he saw a bunch of youths standing not far away holding five or six chains, two or three clubs, and a shotgun. According to Daly, the group at this point in time was talking about how they were going to get even with the soldiers. Daly then made a successful dash for the Gillaspie camper.
The state's evidence showed that all of the assailants were young with the exception of an older man who appeared to be the one who was "directing or commanding these young people what to do," and "giving orders ... telling to go down and get this one, do this, do that."[3]
After the two servicemen had been chained, some of the group directed their attention towards Gillaspie's camper, chaining the camper and smashing a window. According to Sergeant Daly, the persons that were outside the camper threatened they were going to get even with the soldiers. The harassment of the occupants of the camper lasted for approximately ten minutes, and then the entire group left together, using the two vehicles. Just prior to the departure of the two vehicles, John Somaduroff, a young high school student, and two friends were walking down a road which led to the boat landing. Somaduroff described the scene he came upon in the following manner:
What I saw was, there was one guy with his he was kind of beat up, hanging on a pole. And there was another guy laying off to the side and there were several several men running around. I think a couple of guys had chains and one guy had a gun. And he was yelling ... `Come out or I'm gonna shoot . .. through the camper.'
Somaduroff was the only prosecution witness who was able to identify Trounce as being at Pearl's Landing, although he could not remember Trounce's exact location or what Trounce was doing at the time.[4]
*109 After the assailants left, Somaduroff's two friends, Bruce and Blake Gwalthney, chased the vehicles and were successful in getting their license numbers. Gillaspie called the state police office in Fairbanks, giving the dispatcher a description of the two vehicles and their license numbers. Later in the day Officer DeTemple of the Alaska State Troopers spotted the pickup truck just north of Tok, Alaska, some 250 miles south of Harding Lake.[5] Shortly thereafter, back in Tok, Officer DeTemple came upon the gunmetal sedan with four occupants in it. Trounce was identified as one of the occupants of the sedan.[6] DeTemple testified that he asked the four occupants of the sedan "why they looked so well, they weren't they didn't look beat up, but they looked like they'd gone a few rounds with somebody... . [and] one of them said that they had had a disagreement." No arrests were made at this time. Officer Morris Rogers of the Alaska State Troopers related that on the same day, July 4, he also had occasion to stop the sedan on the Richardson Highway. This witness said that at this time he observed Trounce, and that Trounce's forehead showed signs of a scuffle.
I recall there was ... a slight fresh looking scab over one of his eyes. It did not appear serious so I did not take critical note of it, but I do recall that there was a slight injury to his above one of his eyes.
Just before the prosecution rested its case, trial counsel for Trounce stipulated that
in the case of the registration of the automobile that was stopped by Trooper Nickel, the district attorney and I have agreed to stipulate the registration into evidence plus the fact that the car is registered in the name of the father of the defendant Trounce.
We hold that the evidence detailed above supports the trial court's denial of Trounce's motion for judgment of acquittal. Alaska's Code of Criminal Procedure abrogates the distinction between accessories and principals: "[A]ll persons concerned in the commission of a crime, whether they directly commit the act constituting the crime or, though not present, aid and abet in its commission, shall be prosecuted, tried, and punished as principals."[7] Here, Trounce was charged as a principal, although the theory of the prosecution's case was that he aided and abetted the assaults of Lee and Leonard. We note that the trial court properly instructed the jury on the prosecution's theory of aiding and abetting, *110 as well as the requisite intent for conviction of the crime of aiding and abetting an assault with a dangerous weapon.
On appeal from a denial of a defense motion for judgment of acquittal, we view the evidence and the inferences to be drawn therefrom in a light most favorable to the prosecution. Beavers v. State, 492 P.2d 88, 97 (Alaska 1971). Analysis of the prosecution's case in this light has convinced us that fair-minded men in the exercise of reasonable judgment could have differed on the question of whether Trounce's guilt had been established beyond a reasonable doubt, and that therefore the motion for judgment of acquittal was properly denied. Bush v. State, 397 P.2d 616 (Alaska 1964). Here the jury had before it evidence that the gunmetal sedan, which was registered in Trounce's father's name, was at Pearl's Landing at the time the servicemen and Gillaspie broke up the first fight. The state also showed that before leaving, the three occupants of the Trounce sedan told the servicemen and Gillaspie that they would be back to get even with them. Later the same morning, the Trounce vehicle returned accompanied by a pickup truck. The occupants of both vehicles, numbering then at least six, got out of their respective vehicles, proceeded to the rear of the pickup truck, and armed themselves with chains.
After some preliminaries which involved hollering, beating the ground with the chains and whirling the chains in the air, the group encircled two servicemen, Leonard and Lee, striking them with their chains. Some of the group also pounded Gillaspie's camper with chains. There was evidence that all of the young assailants were acting under the direction of an older man. One state witness placed Trounce at the scene of the chainings shortly after they had taken place. All left Pearl's Landing at the same time. Later that day, Alaska State Troopers saw Trounce in the gunmetal sedan on two separate occasions. Trounce "appeared to have gone a few rounds" and one Alaska State Trooper noticed that Trounce's forehead showed signs of a scuffle. All of the other occupants of the Trounce vehicle at the time it was stopped by the Alaska State Troopers were identified by other prosecution witnesses as having been at Pearl's Landing during the chainings. In our view, this evidence warranted denial of Trounce's motion for judgment of acquittal and adequately supports the jury's guilty verdict. The jury could have found beyond a reasonable doubt that Trounce was a member of a group that planned to seek revenge against the soldiers and civilians who had earlier stopped a fight that involved some members of the group. The jury could have further concluded that Trounce actively aided and abetted in the chainings of Leonard and Lee which were committed by the group.
Trounce also asserts that the trial court erred in denying his motion to dismiss the assault with a dangerous weapon count of the indictment on the ground that it was duplicitous. Criminal Rule 12(b) (2) provides, in pertinent part:
Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial... . Failure to present any such defense or objection constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.[8]
Under the parallel Rule 12(b) (2) of the Federal Rules of Criminal Procedure, it has been held that an objection to the indictment on grounds of duplicity is waived unless this objection is raised prior to trial, e.g., Pino v. United States, 125 U.S. App.D.C. 225, 370 F.2d 247, 249 n. 1 (1966); Beauchamp v. United States, 154 F.2d 413 *111 (6th Cir.1946), or, at the very least, unless the objection is raised prior to the verdict, e.g., Mitchell v. United States, 434 F.2d 230 (9th Cir.1970); United States v. Costner, 359 F.2d 969 (6th Cir.1966). In the case at bar, the record shows that although the indictment was returned in July 1970, and that Trounce was represented by counsel at his arraignment in November 1970, his trial counsel first moved to dismiss the assault with a dangerous weapon count at the trial, which was commenced in January 1971, after the jury had been impanelled. For purposes of this appeal, we will consider the issue of the duplicitous character of the assault with the dangerous weapon count as having been timely raised.
As a matter of proper procedure, a motion to dismiss is not the appropriate way to remedy duplicity. Criminal Rule 7(c) provides in part:
No indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of a defect or imperfection in matter of form in the indictment, which does not tend to prejudice the substantial rights of the defendant.
It is generally recognized that the rule against duplicity is a pleading rule rather than one that affects substance. Duplicity, therefore, is not necessarily a fatal defect. Rather, charges improperly joined in a single count can be segregated into separate counts in the same indictment. See 1 C. Wright, Federal Practice and Procedure § 142 (1969). It would have been proper, then, for counsel to move to amend the indictment as suggested by Criminal Rule 7 (e),[9] or, as suggested by Criminal Rule 14, to move to require the prosecutor to make an election.[10]See 1 C. Wright, Federal Practice and Procedure § 145 (1969).
Assuming the assault with a dangerous weapon count was duplicitous in that it alleged separate assaults upon Leonard and Lee, we must now determine whether this defect requires reversal of Trounce's conviction.[11] In Drahosh v. State, 442 P.2d 44, 48-49 (Alaska 1968),[12] this court said:
Normally, in the absence of a showing that a defendant's substantial rights were prejudiced thereby, an otherwise proper judgment of conviction will not be disturbed because of a duplicitous count in the indictment or complaint. (footnote omitted.)
Reversing the conviction in Drahosh, we emphasized that "there remains the possibility that there was no unanimity as to either, or both, of these separate offenses." 442 P.2d at 49. Unlike the Drahosh situation, here the jury was specifically instructed *112 that before they could find Trounce guilty they must find that he aided and abetted in the chain assaults upon both Leonard and Lee. On the basis of our study of the entire record, and in particular the evidence which has been heretofore detailed, we cannot find that any of Trounce's substantial rights were prejudiced by the assumed duplicitous wording of the indictment.[13] For we fail to discern in the evidence any significant basis for the possibility that the jury's verdict of guilt as to the assault with a dangerous weapon count lacked unanimity as to either, or both, of these assaults. Compare Nickerson v. State, 492 P.2d 118 (Alaska 1971).
The judgment of conviction is affirmed.
NOTES
[1] In his brief Trounce further specified that it was reversible error on the trial court's part to have refused his requested instruction which pertained to the essential elements of the crime of assault with a dangerous weapon as charged in the indictment. At oral argument counsel for Trounce abandoned this specification of error.
[2] Pearl's Landing consisted of a strip of shoreline 50 feet wide, a boat ramp for loading and unloading boats, two rest rooms, and a small store building. Parking space for vehicles was also available.
[3] The only prosecution witness whose testimony differed was that of Terry Lee. This witness was asked if it appeared that the old man was giving instructions. Lee answered, "No. Just doing a lot of yelling... ."
[4] Many of the prosecution witnesses had difficulty identifying the defendants. Edward Leonard, one of the two servicemen who was chained, testified that because of the time lapse he could not identify any of the individuals involved. Terry Lee, the other victim, said that the assailants had much longer hair than that of the defendants present in the courtroom, and that two of the assailants had beards at the time. Two other state witnesses, Mrs. Bonnie Daly and Melvin Wilson, admitted difficulty in making an in-court identification of any of the defendants. They asserted that their difficulties stemmed from the fact that the individuals they saw during the Pearl's Landing chainings had long hair and beards.
During the examinations of several state witnesses, the prosecutor showed the pictures of the defendants that had been taken by the Alaska State Troopers on July 4. The pictures were of no assistance to any of the state's witnesses with the exception of John Somaduroff. The witness Somaduroff was shown the photographs of the defendants and stated that the picture of Trounce refreshed his recollection, and he was then able to make an in-court identification of Trounce. On cross-examination by Trounce's counsel, the witness admitted that the only difference between the photograph and Trounce's in-court appearance was that Trounce's hair was somewhat shorter and cleaner at present. On redirect, Somaduroff explained that he could not identify Trounce in the courtroom before being shown the photograph "[b]ecause I can't see too well from here... . I busted my glasses and these are just temporary." Counsel for Trounce stated that he had no objection to the admission of Trounce's photograph into evidence, and later in the trial moved its admission.
[5] Officer DeTemple asked the two boys who were in the pickup for identification and ascertained that one was Harry John Ketzler and the other Robert Benefield. Other prosecution witnesses placed both Ketzler and Benefield at the landing during the time the chainings occurred.
[6] Officer DeTemple also identified Clifford Lewis Avey and John Braham as being occupants of the sedan that he had stopped at Tok.
Several state witnesses placed Avey and Braham at the landing at the time the servicemen and Gillaspie broke up the first fight. Several prosecution witnesses also placed Avey and Braham at Pearl's Landing at the time the chainings took place.
[7] AS 12.15.010. E.g., Ransom v. State, 460 P.2d 170, 172 (Alaska 1969).
[8] Crim.R. 12(b) (3) provides that "[t]he motion shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter."
[9] Crim.R. 7(e) provides:
If any error in form shall exist in any indictment ... or in the manner of describing the offense, ... the court may permit the indictment or information to be amended at any time before verdict or finding if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced.
[10] Crim.R. 14 provides in pertinent part:
If it appears that a defendant or the state is prejudiced by a joinder of offenses ... in an indictment ... the court may order an election or separate trials of counts ... or provide whatever other relief justice requires.
[11] The rationale of the rule which bars duplicity has been explained as follows:
It protects a defendant's right under the Sixth Amendment and Rule 7(c) to notice of the `nature and cause of the accusation' against him so that he may prepare his defense. It also insures that if defendant is convicted, the offense upon which he is convicted will clearly appear from the verdict, so that appropriate punishment may be imposed. Finally, duplicity is prohibited because confusion as to the basis of the verdict may subject defendant to double jeopardy in the event of a subsequent prosecution.
8 J. Moore, Federal Practice ¶ 8.03[1] (2d ed. 1968) (footnotes omitted).
[12] Drahosh involved two separate crimes, namely, failure to remain at the scene of an accident and failure to render assistance to an injured passenger. The two charges were joined in a single count in the complaint and were similarly joined in the form of verdict. There we held this to be violative of Crim.R. 8(a) which, while it allows two or more offenses to be charged in the same indictment, requires that each offense be charged in a separate count.
[13] After all parties had rested, counsel for Trounce renewed his motion to dismiss the assault count because of its duplicity. In denying the motion, the trial court said in part, after discussing when the motion should be made and the possibility of requiring an election by the prosecution in certain circumstances:
I have considered it in the theory of this case, . .. being fundamentally one of aiding and abetting, that it doesn't really change ... the burden of either the state or the defendant or any of the defendants... . If you were to strike out ... or get another count there ... separating the two soldiers Leonard and Lee, . . the whole theory of this case, as I see [it] is there was a group assault on these people out there and that is in essence the criminal act which is being prosecuted.
So ... it reduces down to virtual insignificance just who they were or how many there were.
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943 N.E.2d 335 (2007)
373 Ill. App.3d 1157
REDELMAN
v.
ALEXANDER CHEMICAL CORP.
No. 1-04-2978.
Appellate Court of Illinois, First District.
June 21, 2007.
Dismissed.
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NUMBER 13-07-700-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
______________________________________________________________
THE STATE OF TEXAS FOR THE BEST INTEREST
AND PROTECTION OF J.M.
____________________________________________________________
On Appeal from the Probate Court
of Hidalgo County, Texas.
______________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Benavides
Memorandum Opinion Per Curiam
The appellant's brief in the above cause was due on January 9, 2008. On January
30, 2008, the Clerk of the Court notified appellant that the brief had not been timely filed
and that the appeal was subject to dismissal for want of prosecution under Texas Rule of
Appellate Procedure 38.8(a)(1), unless within ten days from the date of receipt of this
letter, appellant reasonably explained the failure and the appellee was not significantly
injured by the appellant's failure to timely file a brief. Appellant has not responded to this
notice. Appellant has failed to either reasonably explain his failure to file a brief, file a
motion for extension of time to file his brief, or file his brief.
The Court, having considered the documents on file and appellant's failure to file
his brief, is of the opinion that the appeal should be dismissed. Accordingly, the appeal is
DISMISSED FOR WANT OF PROSECUTION. See Tex. R. App. P. 38.8(a), 42.3(b).
PER CURIAM
Memorandum Opinion delivered and
filed this the 24th day of April, 2008.
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798 F.2d 1413
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Joyce COBERN, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 85-3989.
United States Court of Appeals, Sixth Circuit.
July 21, 1986.
Before KENNEDY, WELLFORD and MILBURN, Circuit Judges.
ORDER
This matter is before the Court upon a motion by appellee, Secretary of Health and Human Services, to remand appellant's claim for social security disability benefits for reconsideration pursuant to newly-promulgated mental impairment regulations. The motion is unopposed.
Sections 5(b)(1) and 5(c)(1) of the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, require appellee to reexamine any claim based upon the occurrence of a mental disorder when: 1) an initial administrative determination to deny benefits was made prior to October 9, 1984, the date of the statute's enactment; and 2) administrative or judicial review of that decision was either filed for or pending on or after June 7, 1983. Appellant's claim clearly falls within that classification as the initial denial of benefits was entered on June 8, 1983, with her appeal from that decision being filed thereafter. The language of Pub.L. No, 98-460, Sections 5(b)(1) and 5(c)(1) is mandatory and the case must therefore be remanded.
1
Accordingly, pursuant to 42 U.S.C. Sec. 405(g) it is ORDERED that the judgment of the district court be and hereby is vacated and the cause is remanded to the district court for further remand to the Secretary of Health and Human Services for reconsideration under the new regulations promulgated pursuant to Pub.L. No. 98-460.
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740 F.Supp. 404 (1990)
ZURICH INSURANCE CO., Plaintiff,
v.
UPTOWNER INNS, INC., Defendant.
Civ. A. No. 3:87-0013.
United States District Court, S.D. West Virginia, Huntington Division.
January 4, 1990.
Thomas J. Hurney, Jr., W.T. Shaffer, Charleston, W.Va., for plaintiff.
William D. Levine, Huntington, W.Va., for defendant.
MEMORANDUM OPINION AND ORDER
STAKER, District Judge.
The plaintiff, Zurich Insurance Company, has instituted this action for a declaratory judgment, pursuant to West Virginia Code §§ 55-13-1 to -16 (Repl.Vol.1981), regarding coverage under a comprehensive general business liability policy. Jurisdiction of this court is properly invoked under 28 U.S.C.A. § 1332 (West 1966 & Supp.1990), as the parties are of diverse citizenship and the amount in controversy satisfies the jurisdictional *405 prerequisite in effect at the time the action was begun.
The parties have filed cross-motions for summary judgment, asserting that there is no genuine issue of material fact involved and that they are entitled to judgment as a matter of law.
Under Rule 56(a) of the Federal Rules of Civil Procedure, "[a] party seeking to recover upon a claim ... may, at any time after the expiration of 20 days from the commencement of the action ... move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof." Fed.R.Civ.P. 56(a). "The judgment sought shall be rendered forthwith if the pleadings ... and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). This court is persuaded that there are not any material facts in dispute in this case and, therefore, summary judgment is appropriate.
FACTS
The following facts are not in dispute. The plaintiff in this action, Zurich Insurance Company (Zurich), is a Swiss corporation with its principal place of business in the State of Illinois. Zurich issued "Comprehensive General Liability Policy No. TOP-77-96-481" to defendant, Uptowner Inns, Inc. (Uptowner). Uptowner is a West Virginia corporation with its principal place of business in Huntington, West Virginia. At the time the policy was issued, Uptowner operated a hotel and a tavern (Mingle's) located within the hotel which served food and alcoholic beverages. Mingle's was operated under a license issued to Uptowner and was managed and operated by Uptowner.
On or about February 26, 1986, a complaint was filed in state court against Uptowner. Complainant in that action alleges that he was injured on March 18, 1984, when he was struck by a vehicle operated by respondent in that action, a person who had left Mingle's in an intoxicated state. Complainant further alleges that Uptowner, doing business as Mingle's, was negligent in selling the respondent alcoholic beverages while he was in an intoxicated state, that such acts violated West Virginia Code § 60-7-12 (Repl.Vol.1989), and that such acts were the proximate cause of the complainant's injuries. The complainant seeks actual and punitive damages totalling ten million dollars ($10,000,000).
Zurich maintains that coverage in the state court action is excluded by a provision of the insurance policy, but has assumed the defense of Uptowner in that action under a reservation of rights agreement. Zurich seeks a declaratory judgment from this court that the exclusion is unambiguous and that the policy does not afford coverage for the claims made by complainant in state court.
Uptowner admits the foregoing; however, it asserts that the policy specifically provides for "Host Liquor Liability Coverage" and that Violet Midkiff, president of Uptowner, expected that Uptowner would be protected under the policy for any liability arising from the conduct of intoxicated patrons of Mingle's. As support for these assertions, Uptowner refers to the depositions of Violet Midkiff and Carl Midkiff, contending that these depositions establish that such coverage was requested by Uptowner and that the insurance agent promised such coverage under the policy. In the alternative, Uptowner contends that, at a minimum, the depositions establish a genuine issue of material fact and, therefore, summary judgment is not appropriate. In short, Uptowner maintains that the "doctrine of reasonable expectation," as enunciated by the West Virginia Supreme Court of Appeals in the case of National Mutual Insurance Co. v. McMahon & Sons, Inc., 356 S.E.2d 488 (W.Va.1987), controls in the instant case. Zurich contends that this doctrine is not applicable here because the language of the relevant policy exclusion is not ambiguous.
DISCUSSION
The policy at issue, under the heading "Optional Extended Protection" on the *406 schedule of coverage, provides for "Host Liquor Liability Coverage" under subheading "H". The policy contains various exclusions, including the one pertinent to this litigation. Under the "Exclusions" section, the relevant provision states the following:
This form does not apply: ...
(h) to bodily injury or property damage for which the insured or his indemnitee may be held liable
(1) as a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages or,
(2) if not so engaged, as an owner or lessor of premises used for such purposes,
if such liability is imposed
(i) by, or because of the violation of, any statute, ordinance or regulation pertaining to the sale, gift, distribution or use of any alcoholic beverage, or
(ii) by reason of selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person;
but part (ii) of this exclusion does not apply with respect to liability of the insured or his indemnitee as an owner or lessor described in (2) above....
Zurich claims that this language unambiguously precludes recovery in this case; Uptowner claims that the language is ambiguous and, moreover, incomprehensible, and does not comport with the reasonable expectations of the insured, as the exclusions are "impossible to understand" and render other provisions "meaningless and illusory" by means of fine print. Therefore, Uptowner contends that this court should rewrite the contract of insurance to comply with such expectations and provide coverage in the state court action, if Uptowner is found liable to the complainant therein.
The policy also defines "Host Liquor Law Liability Coverage" under subheading "H" on page six of the policy. Thereat, it states:
If coverage is applicable as indicated in the Schedule:
Exclusion (h) does not apply with respect to liability of the insured or his indemnitee arising out of the giving or serving of alcoholic beverages at functions incidental to the named insured's business, provided the named insured is not engaged in the business of manufacturing, distributing, selling or serving of alcoholic beverages. (emphasis by court).
National Mutual Insurance Co. v. McMahon & Sons, Inc., 356 S.E.2d 488 (W.Va.1987), provides the law which governs this case, pursuant to the Erie doctrine, since this court's ability to decide this cause of action is based on diversity jurisdiction. The case was before the West Virginia Supreme Court of Appeals as an appeal from a declaratory judgment action in state court wherein the lower court ruled that the appellee, an insurance company, had no duty to defend and/or pay under a general business liability policy issued to the appellant. The Court of Appeals found that the record did not support the circuit court's rulings and remanded the case for further development of the record. In so doing, the court noted that the primary issue in the case was whether an exclusionary clause in the policy relieved the insurer of its obligation to defend or pay. The court stated that, "[u]nlike the circuit court, we do not find the language of [the relevant] exclusion to be plain and unambiguous. ..." Id. at 494. Further, "where the policy language involved is exclusionary, it will be strictly construed against the insurer...." Id. Having found that the policy language was ambiguous, the court applied the "doctrine of reasonable expectations." Id. at 495. This doctrine dictates that "`[a]n insurance contract should be given a construction which a reasonable person standing in the shoes of the insured would expect the language to mean.'" Id. (citations omitted). However, a finding of ambiguity is a threshold matter for the court to address, for "the doctrine of reasonable expectations is limited to those instances ... in which the policy language is ambiguous." Id. at 496. Once ambiguity is found, "`[t]he objectively reasonable expectations of applicants ... regarding the *407 terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.'" Id. at 495, quoting Keeton, Insurance Law Rights at Variance with Policy Provisions, 83 Harv.L.Rev. 961 (1970). Regarding standardized insurance contracts, which it characterized as contracts of adhesion, the court rejected "the general rule that a party to a contract has a duty to read the instrument" and adopted the majority view "that the insured is not presumed to know the contents of an adhesion-type insurance policy delivered to him...." Id. at 495-96, n. 6 (citations omitted). Further, "[w]here an insured has a reasonable expectation of coverage under a policy, he should not be subject to technical encumbrances or to hidden pitfalls." Id. at 496 (citation omitted). Finally,
[a]n insurer wishing to avoid liability on a policy purporting to give general or comprehensive coverage must make exclusionary clauses conspicuous, plain, and clear, ... placing them in such a fashion as to make obvious their relationship to other policy terms, ... and must bring such provisions to the attention of the insured....
Id.
The threshold issue is whether the policy language is ambiguous. Further, it is well established that any conflicts and/or ambiguities must be resolved against the insurer. Pearson v. Supreme Liberty Life Ins. Co., 116 W.Va. 147, 178 S.E. 814 (1935); West Virginia Public Employees Ins. Bd. v. Blue Cross Hosp. Serv., Inc., 328 S.E.2d 356, 359, n. 3 (W.Va.1985). The test to be applied to determine whether an insurance policy provision is ambiguous, thereby warranting judicial construction of the provision, is thus: "Whenever the language ... is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning, it is ambiguous." Prete v. Merchants Property Ins. Co. of Indiana, 159 W.Va. 508, 223 S.E.2d 441, Syllabus Point 1 (1976); see also Huggins v. Tri-County Bonding Co., 337 S.E.2d 12 (W.Va.1985).
In this case the court need not even reference exclusion (h) to reach the conclusion that the insured was not covered for the type of liability alleged in the state court action. The definition of "Host Liquor Liability Coverage" on page six of the policy is clear. Paraphrased in relevant part, it states that Uptowner is covered for any liability arising from the giving or serving of alcohol at social functions which are incidental to Uptowner's business, so long as Uptowner is not engaged in the business of selling or serving such beverages. The provision, in essence, provides coverage when Uptowner hosts Christmas parties for customers, social functions pursuant to solicitation of business for the hotel, and like functions. This is apparent from the language providing coverage when the insured is "giving or serving." However, the policy does not cover functions where Uptowner sells or serves alcoholic beverages for a profit. The caption, read in connection with the explanation provided on page six, clearly precludes coverage if Uptowner is "engaged in the business of ... selling or serving alcoholic beverages." "[A] `business' is an activity in which a person engages on a regular basis for profit." Camden Fire Insurance Ass'n v. Johnson, 294 S.E.2d 116, 119 (W.Va.1982). To "engage" means to "involve one's self; to take part in; to embark on." Black's Law Dictionary 474 (5th ed. 1979). Based on the common understanding of the relevant terms, to "engage in business" means to embark on an activity for profit on a regular basis; therefore, when a function is one for profit, there is no coverage for liquor liability.
Were it necessary to refer to exclusion (h), even though the above-referenced definition definitively settles the issue as far as the court is concerned, the same result obtains and no ambiguity results. This exclusion, once again in paraphrased form, provides that there is no coverage for potential liability of a person selling or serving alcoholic beverages or for the owner or lessor of premises used for such purposes if liability is imposed by statute, ordinance or regulation, or is imposed by the common *408 law. However, there is coverage if the insured is merely an owner or lessor of premises used for such purposes, if liability is asserted under a common law theory of recovery.
"It is widely recognized that language [contained in] insurance policies is often necessarily complicated and difficult for the layperson to understand. This [fact,] alone[,] does not [automatically] connote ambiguity." See McGann v. Hobbs Lumber Co., 150 W.Va. 364, 145 S.E.2d 476, 481 (1965). Furthermore, provisions in such policies must be read together, and it is not reasonable to assume coverage has been provided based merely on the language of a heading on the Schedule page which refers to "optional extended protection" for "host liquor liability coverage," without reference to the explanatory provisions contained within the policy.
Even if the language of the insurance policy involved here were found to be ambiguous, leading to a liberal construction of the language in favor of the insured, "the liberal construction rule does not require, or even permit, the twisting or distorting of plain words or language." Green v. Farm Bureau Mutual Automobile Ins. Co., 139 W.Va. 475, 80 S.E.2d 424, 425 (1954) (citations omitted); see also Christopher v. United States Life Ins. Co., 145 W.Va. 707, 116 S.E.2d 864 (1960); Polan v. The Travelers Ins. Co., 156 W.Va. 250, 192 S.E.2d 481, Syllabus Point 6 (1972). "We presume that if the insured had desired an insurance policy of broader or unlimited coverage [she] could have obtained it by paying necessary or additional premiums. We see nothing unusual or unfair in a policy which limits recovery thereunder in certain situations, provided the amount of the premium charged is fixed accordingly." Green, 80 S.E.2d at 426.
There has been no evidence presented to the court which establishes or suggests that an additional premium was paid for the coverage asserted by Uptowner. Moreover, the policy assigns a definite meaning to the phrase "Host Liquor Liability Coverage," which meaning governs in the court's interpretation of the contract for insurance. Finally, it is worthwhile to note that the Circuit Court of Raleigh County, West Virginia, has interpreted the same exact provision as the one at issue here and found it, as this court also finds it, to be unambiguous. General Stations, Inc. v. The Travelers Company, Civil Action # 86-C-201 (Raleigh Co. Cir.Ct. Mar. 30, 1987).
It is not the function of this court to make contracts for the parties, especially in cases such as this one, which involves knowledgeable business people who, particularly because they have been involved in litigation in the State of Florida under very similar circumstances prior to the purchase of this policy, should have been put on notice that general business insurance contracts do not necessarily include the type of coverage involved here.
ORDER
For the reasons set forth in the foregoing memorandum opinion, and pursuant to Rule 56, Fed.R.Civ.P., it is ORDERED that the motion for summary judgment of the plaintiff in this declaratory judgment of the plaintiff in this declaratory judgment action be, and the same hereby is, GRANTED. Therefore, this court holds that Zurich Insurance Company has no duty to defend or indemnify Uptowner Inns, Inc., for any liability which may be imposed as a consequence of an adverse judgment obtained against Uptowner in the case of Burton v. Holliday Inns, et al., Civil Action # 86-C-829 (Kanawha Co. Cir.Ct., filed Feb. 26, 1986), as this court finds that the subject matter of the complaint in that action is unambiguously excluded from coverage by the policy of insurance issued by Zurich to Uptowner.
Having so decided, it is not necessary for the court to address the merits of defendant's motion for a jury trial.
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NO. 07-09-0013-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 26, 2010
______________________________
MIGUEL AVELAR aka MICHAEL AVELAR,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_______________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-438,946; HON. JIM BOB DARNELL, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Miguel Avelar aka Michael Avelar (appellant) appeals from a judgment convicting
him of aggravated sexual assault. He originally pled guilty to the charge and per a plea
agreement had the adjudication of his guilt deferred for ten years. Thereafter, the State
moved the court to adjudicate his guilt. The trial court granted the motion and entered
the aforementioned judgment. On appeal, he questions the sufficiency of the evidence
supporting the court's decision to adjudicate him and its decision to admit certain
evidence. We affirm.
We review the trial court's judgment revoking community supervision under the
standard of abused discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006). This standard obligates us to indulge in all reasonable inferences favoring the
trial court's decision, Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. [Panel Op.]
1979), and sustain the order if the evidence substantiates a single violation. Jones v.
State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978).
Next, a revocation hearing is administrative, and the State is only required to
prove by a preponderance of the evidence that a condition of probation was violated.
Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). If it does not, then the trial
court abuses its discretion in proceeding to adjudicate guilt. Cardona v. State, 665
S.W.2d 492, 493-94 (Tex. Crim. App. 1984) (dealing with the revocation of probation).
In applying the foregoing standard to the record at bar, we see that the State
averred that appellant violated three conditions of his probation. Yet, the trial court
addressed only one. Indeed, it informed the parties that it was going to "disregard" the
others. The sole ground it considered concerned the prohibition against being in the
presence of "any child 17 years of age or younger at any time" unless supervised by an
approved chaperone. On appeal in his first two issues, appellant contends the evidence
is insufficient to support this allegation because the only evidence presented came from
his probation officer. That is, he suggests that a probation officer cannot be the only
source of the evidence. In so arguing, he does not question the quantitative or
qualitative substance of what the officer said. Nor does he question whether the same
testimony would have been sufficient if it had been proffered by some other witness.
Yet, we know of no case that bars a probation officer from supplying the requisite
testimony, as occurred here. Nor did appellant cite us to one. Accordingly, we cannot
say that the evidence is insufficient simply because it was proffered through a probation
officer. Issues one and two are overruled.
In his last issue, appellant contends the trial court erred by admitting irrelevant
evidence concerning the probation officer's failure in finding appellant at home on
several occasions. However, we note that several questions had been answered by the
witness concerning his inability to locate appellant at his home before an objection was
lodged. It is clear that one must contemporaneously object to that which he perceives
as objectionable. Darnes v. State, 118 S.W.3d 916, 919 (Tex. App.-Amarillo 2003, pet.
ref'd). Furthermore, a specific objection must be made as soon as possible for error to
be preserved for appellate review. See Tex. R. App. P. 33.1. Because appellant failed
to object as soon as possible, he waived the issue. Therefore, we overrule his final
issue.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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STATE OF MICHIGAN
COURT OF APPEALS
ALI A. EL-KHALIL, UNPUBLISHED
April 4, 2017
Plaintiff-Appellant,
v No. 329986
Wayne Circuit Court
OAKWOOD HEALTH CARE INC., OAKWOOD LC No. 15-008259-CK
HOSPITAL SOUTHSHORE, OAKWOOD
HOSPITAL DEARBORN, DR. RODERICK
BOYES, M.D., and DR. IQBAL NASIR, M.D.,
Defendants-Appellees.
Before: STEPHENS, P.J., and SERVITTO and SHAPIRO, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor
of defendants and dismissing plaintiff’s complaint. We affirm.
Plaintiff, a podiatrist, began employment with defendant Oakwood Hospital Dearborn as
a staff physician on May 27, 2008. He ended his staff employment in June 2011, at which time
he entered into contracts, in the form of bylaws of medical staff, with the defendant medical
facilities as an independent physician, obtaining staff privileges at Oakwood Annapolis Hospital,
Oakwood Heritage Hospital, Oakwood Hospital and Medical Center, and Southshore Medical
Hospital. Every year plaintiff, like all other independent physicians, was required to request
reappointment and be re-credentialed for the following year. Plaintiff worked without incident,
obtaining reappointments and being re-credentialed over the next few years, building his
practice.
In 2014, plaintiff allegedly obtained information about certain physicians at Oakwood
Hospital and Medical Center engaging in illegal activities (healthcare fraud and professional
negligence). According to plaintiff, when he confronted them and reported the actions to proper
authorities, defendants retaliated against him by initiating an administrative agency proceeding
against him which resulted in plaintiff having to take anger management classes. In August
2014, plaintiff initiated legal action against the defendants for violation of the civil rights act
(race discrimination) and for tortious interference with an advantageous business relationship,
based upon the allegations that defendants had made against him and which had resulted in the
-1-
administrative agency proceeding. These claims were dismissed on defendants’ summary
disposition motion, the trial court having found that defendants were statutorily immune from
liability and that plaintiff failed to state a discrimination claim under the civil rights act. Plaintiff
filed a delayed application for leave to appeal that decision with this Court, which we denied.1
Plaintiff filed the instant action in June 2015, asserting that since the time he initially
sued defendants, they have continued to engage in actions attempting to prevent plaintiff from
practicing at Oakwood Dearborn and Oakwood Southshore. According to plaintiff, he in fact
received correspondence from the Chiefs of Staff of those facilities, defendants Boyes and Nasir,
indicating that his staff privileges at those locations would expire in June 2015 even though his
privileges were not set to expire until November 2015. The correspondence further indicated
that the medical executive committees of the facilities had recommended that plaintiff not be
reappointed to the medical staffs. Plaintiff thus asserted claims of breach of contract and
retaliation in violation of the civil rights act.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(7) and (8). They
argued that plaintiff’s staff privileges were set to expire in June 2015 and that the executive
committee decided not to renew his privileges such that there was no breach of contract.
Defendants additionally argued that there was no breach of contract because the bylaws signed
by plaintiff and defendants did not constitute a contract, that the breach of contract claim was
barred by release and that defendants were entitled to qualified immunity. As to the civil rights
claim, defendants asserted that plaintiff failed to set forth a prima facie case of retaliation and,
because there is a statutory ban on disclosure of peer review information, plaintiff could not
obtain discovery to support his claim. The trial court granted defendants’ motion. The trial court
found that the bylaws were an enforceable contract but that the documents submitted by the
parties indicate that plaintiff’s most recent appointment term was set to expire on June 25, 2015,
not in November 2015 as plaintiff claims. Thus, defendants did not terminate plaintiff’s
appointment term. The trial court further found that defendants’ failure to renew plaintiff’s
appointment was not a breach of contract, as the allegations relied upon by defendants in making
their decision relate directly to plaintiff’s ability to provide efficient and quality care and plaintiff
provided no evidence that the peer review was a sham. The trial court further found that plaintiff
released defendants from liability under the bylaws because plaintiff offered no support for his
allegations of malice and bad faith. The trial court found that defendants followed the guidelines
set forth in the bylaws and were entitled to qualified immunity under the Health Care Quality
Improvement Act and the Michigan Peer Review Immunity Statute. Finally, the trial court found
that plaintiff failed to state a claim for retaliation in that, essentially, plaintiff failed to establish
any causal connection between his protected activity and an adverse employment action.
Plaintiff now appeals.
1
El-Khalil v Oakwood Health Care Systems, Inc., unpublished Order of the Court of Appeals,
entered January 8, 2016 (Docket No. 328569).
-2-
Plaintiff asserts that he stated a claim for unlawful retaliation under the Elliott Larsen
Civil Rights Act and the trial court improperly granted summary disposition in defendants’ favor
on this issue. We disagree.
We review de novo a trial court's summary disposition ruling. Allen v Bloomfield Hills
Sch Dist, 281 Mich App 49, 52; 760 NW2d 811 (2008). A court may grant summary disposition
under MCR 2.116(C)(8) if “[t]he opposing party has failed to state a claim on which relief can be
granted.” A motion brought under subrule (C)(8) tests the legal sufficiency of the complaint
solely on the basis of the pleadings. Dalley v Dykema Gossett, 287 Mich App 296, 304; 788
NW2d 679 (2010).
We note that both parties attached exhibits to their pleadings concerning this motion. It
appears that the trial court considered this documentary evidence that was outside of the
pleadings and that it thus also considered defendants’ motion under MCR 2.116(C)(10). A
motion for summary disposition premised upon MCR 2.116(C)(10) tests the factual sufficiency
of the complaint. Bernardoni v City of Saginaw, 499 Mich 470, 472–73; 886 NW2d 109 (2016).
The court considers all affidavits, pleadings, depositions, admissions, and other evidence
submitted by the parties in the light most favorable to the party opposing the motion to determine
whether a question of material fact exists to warrant a trial. Id.
Under the Elliott Larsen Civil Rights Act (ELCRA):
Two or more persons shall not conspire to, or a person shall not:
(a) Retaliate or discriminate against a person because the person has opposed a
violation of this act, or because the person has made a charge, filed a complaint,
testified, assisted, or participated in an investigation, proceeding, or hearing under
this act. [MCL 37.2701]
“To establish a prima facie case of unlawful retaliation under the Civil Rights Act, a plaintiff
must show (1) that he engaged in a protected activity; (2) that this was known by the defendant;
(3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a
causal connection between the protected activity and the adverse employment action.” Rymal v
Baergen, 262 Mich App 274, 300; 686 NW2d 241 (2004).
In some discrimination cases, the plaintiff is able to produce direct evidence of racial
bias. “Direct evidence” is defined as “evidence which, if believed, requires the conclusion that
unlawful discrimination was at least a motivating factor in the employer's actions.” Hazle v Ford
Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001). Where direct evidence exists, a plaintiff
may proceed and prove unlawful discrimination in the same manner as a plaintiff would prove
any other civil case. Id. Rarely, however, will an employer openly admit having undertaken an
adverse employment action in retaliation for an employee engaging in a protected activity. In
these cases, the employee generally must rely on circumstantial evidence. When a plaintiff
presents circumstantial rather than direct evidence of an employer's retaliatory motive, we
-3-
examine the claim under the McDonnell Douglas2 burden-shifting framework. Cuddington v
United Health Services, Inc, 298 Mich App 264, 276; 826 NW2d 519 (2012). The McDonnell
Douglas approach allows a plaintiff “to present a rebuttable prima facie case on the basis of
proofs from which a factfinder could infer that the plaintiff was the victim of unlawful
discrimination.” Hazle, 464 Mich at 462, quoting DeBrow v Century 21 Great Lakes, Inc (After
Remand), 463 Mich 534, 537-538; 620 NW2d 836 (2001). As explained in Hazle:
[O]nce a plaintiff establishes a prima facie case of discrimination, the
defendant has the opportunity to articulate a legitimate, nondiscriminatory reason
for its employment decision in an effort to rebut the presumption created by the
plaintiff's prima facie case. The articulation requirement means that the defendant
has the burden of producing evidence that its employment actions were taken for
a legitimate, nondiscriminatory reason. “Thus, the defendant cannot meet its
burden merely through an answer to the complaint or by argument of counsel.” If
the employer makes such an articulation, the presumption created by the
McDonnell Douglas prima facie case drops away.
At that point, in order to survive a motion for summary disposition, the plaintiff
must demonstrate that the evidence in the case, when construed in the plaintiff's
favor, is “sufficient to permit a reasonable trier of fact to conclude that
discrimination was a motivating factor for the adverse action taken by the
employer toward the plaintiff.” [A] plaintiff “must not merely raise a triable issue
that the employer's proffered reason was pretextual, but that it was a pretext for
[unlawful] discrimination.” [Id. at 464-466, internal citations omitted]
There appears to be no dispute that plaintiff relies on indirect, or circumstantial evidence
to establish his case of retaliation. In this case, the trial court found that plaintiff engaged in a
protected activity by filing a discrimination case against defendants in 2014. We agree that this
was a protected activity. Contrary to what defendants argue, MCL 32.2701 does not require that
the 2014 lawsuit was successful, or even meritorious. Instead, MCL 32.2701 prohibits
retaliation simply if a person has, among other things, “filed a complaint” under the civil rights
act. Plaintiff’s act of filing the 2014 complaint against defendants alleging violations of the civil
rights act was thus a protected activity. Defendants clearly knew of this activity because they
were called upon to defend against the lawsuit and did, in fact defend against it. The remaining
two steps plaintiff must establish in his prima facie case are that defendants took an adverse
employment action and that this adverse action was causally related to his filing of the 2014
lawsuit.
In Pena v Ingham Co Rd Com'n, 255 Mich App 299, 312; 660 NW2d 351 (2003), this
Court stated, “[a]lthough there is no exhaustive list of adverse employment actions, typically it
takes the form of an ultimate employment decision, such as a termination in employment, a
2
McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).
-4-
demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices that might be unique
to a particular situation.” (quotations omitted). Because plaintiff was denied a renewal of the
hospital privileges he had enjoyed for many years, albeit subject to a yearly renewal and re-
credential process, we are satisfied that this was an adverse employment action.3
With respect to a causal connection, plaintiff has alleged that the failure to renew came
only after and because of his 2014 lawsuit. However, in order to show causation in a retaliatory
discrimination case, “[p]laintiff must show something more than merely a coincidence in time
between protected activity and adverse employment action.” Garg v Macomb Co Cmty Mental
Health Services, 472 Mich 263, 286; 696 NW2d 646 (2005), opinion amended on denial of reh
(July 18, 2005). In his complaint, plaintiff alleged that no adverse actions had been taken against
him until after the 2014 lawsuit. Attached to his complaint, however, were emails from three
doctors who practiced with plaintiff (ranging in date from February 2015 through March 2015)
asserting that plaintiff had threatened them and that they do not feel safe in the hospital around
him. Plaintiff also attached his response to the emails, wherein he stated that the allegations
were false and otherwise attempted to discredit the statements. Thus, plaintiff has provided
nothing but temporal proximity between the adverse employment action and his protected
activity. Had he provided a causal connection between the two, and established a prima facie
case of retaliation, under the burden shifting approach in McDonnell Douglas “defendant has the
opportunity to articulate a legitimate, nondiscriminatory reason for its employment decision in an
effort to rebut the presumption created by the plaintiff's prima facie case.” Hazle, 464 Mich at
464.
Defendants here provided evidence that other doctors complained about plaintiff
harassing, threatening, and intimidating them and creating an atmosphere that made them feel
unsafe. This is a legitimate, nondiscriminatory reason to not renew plaintiff’s hospital privileges.
Thus, the burden shifts back to plaintiff to provide evidence “sufficient to permit a reasonable
trier of fact to conclude that discrimination was a motivating factor for the adverse action taken
by the employer toward the plaintiff.” Id. at 465-466. Plaintiff has provided no evidence to
show that retaliation was a motivating factor in not renewing his hospital privileges. He relies
solely on his letter explaining that the allegations by the three doctors were false. Having failed
to support his position, summary disposition of plaintiff’s retaliation claim was appropriate under
MCR 2.116(C)(10).
Given that plaintiff’s breach of contract claim was initially premised upon his staff
privileges expiring sometime after June 2015 and plaintiff no longer claims that he was entitled
to staff privileges after that time, we need not consider plaintiff’s breach of contract claim
premised upon the time that staff privileges were not renewed. To the extent that plaintiff asserts
that defendants breached the Bylaws by denying him a renewal of staff privileges for reasons
3
Although plaintiff initially claimed that defendants “suspended” his hospital privileges and that
his privileges were not set to expire until November 2015, plaintiff does not dispute the
expiration date of June 2015 on appeal.
-5-
other than those related to the efficient delivery of quality patient care and to professional ability
and judgment, plaintiff points only to his exemplary record as a doctor in support of his claim.
That is not, however, enough.
In Wieters v Roper Hosp, Inc, 58 Fed Appx 40 (CA 4 2003), the plaintiff was a surgeon
who had his staff privileges at a hospital suspended for what the hospital termed his “disruptive
behavior.” The surgeon did not deny that he frequently expressed his dissatisfaction with the
care that the hospital provided its patients in an angry and disruptive manner. Id. at 41. The
surgeon sued the hospital and the trial court granted summary disposition to the hospital. On
appeal, the surgeon argued that “the action was taken not in the reasonable belief that it would
further quality care, but to halt his complaints about the declining standards of care at the
hospital.” Id at 45. The hospital provided the affidavit of its president of medical staff, who
noted that the surgeon had engaged “in seventeen instances of disruptive conduct, but gives no
specifics.” The affidavit generally described the surgeon as erupting in rage and unprofessional
behavior. The Fourth Circuit concluded, “[i]t is not difficult to see that the hospital would be
justified in the belief that this conduct was detrimental to the quality of the health care it
provided.” Thus, while a doctor’s treatment of his patients may be exemplary, how he or she
interacts with staff may, in fact, serve as the basis for a reasonable belief that the quality of
health care is being affected.
Defendants here provided complaints made by doctors about plaintiff and the affidavit of
the administrative director of medical affairs for Oakwood Healthcare wherein she swore that the
Dearborn medical executive committee (MEC) is comprised of 21 physicians who voted in June
2015 to not renew plaintiff’s hospital privileges. She swore that the MEC had information
before it concerning numerous complaints about plaintiff’s behavior. She also swore that the
Southshore and Wayne MEC’s thereafter met and also voted to not renew his privileges.
Plaintiff has provided no evidence to contradict that provided by defendants and has thus not
established a material question of fact concerning whether defendants breached the Bylaw relied
upon and cited by plaintiff. Summary disposition on plaintiff’s breach of contract claim was thus
appropriate.
Because we have determined that dismissal of both plaintiff’s retaliation and breach of
contract claims was appropriate, we need not consider plaintiff’s remaining claims on appeal.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Deborah A. Servitto
/s/ Douglas B. Shapiro
-6-
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541 U.S. 1028
JURICHv.McLEMORE, WARDEN.
No. 03-7936.
Supreme Court of United States.
April 26, 2004.
1
540 U. S. 1194. Petitions for rehearing denied.
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441 S.W.2d 649 (1969)
SANI-SERV FREEZER SALES, INC., Appellant,
v.
D. R. COKER and Ralph C. Graham. Appellees.
No. 428.
Court of Civil Appeals of Texas, Tyler.
May 15, 1969.
*650 Chester A. Oehler, Dallas, for appellant.
Moore & Holland, Willis D. Moore, Athens, for appellees.
DUNAGAN, Chief Justice.
This is an appeal from an order overruling appellant's plea of privilege. This case arose as a result of a contract under which Sani-Serv sold an ice maker and an ice cream maker to Coker and Graham, the appellees.
Under the contract between the parties, Sani-Serv was to give 90 days' free service to the machines. After the 90-day free service ran out, the appellees filed suit in Henderson County, Texas, to rescind the contract alleging a breach of its warranty provision and for damages resulting from Sani-Serv's failure to give the 90 days' free service and because the ice cream maker was not suitable for the purpose for which it was sold.
Appellant timely filed a statutory plea of privilege to be sued in Dallas County, Texas, alleging that it was not a resident of Henderson County, Texas; that its principal office is located in Dallas County, Texas; and that no exception to exclusive venue in the county of its principal office exists.
Appellees duly controverted the plea of privilege seeking to sustain venue in Henderson County, Texas, under Subdivision 23 of Article 1995, Vernon's Ann.Tex.Civ. St.
The trial court, after a hearing thereon, overruled appellant's plea of privilege. From this order, the appellant has perfected its appeal to this court.
Pursuant to appellant's request, the court filed its findings of fact and conclusions of law.
Appellant first contends that "Appellees failed to prove, by a preponderance of the evidence, that a cause of action, or a part thereof, against appellant arose in Henderson County, Texas."
The only witness offered upon the hearing of the plea of privilege was appellee, D. R. Coker. He testified that he and Ralph C. Graham made and entered into a contract in writing with appellant on February 12, 1968, in Henderson County, Texas, to purchase a used Sani-Serv ice cream maker and an ice making machine; that the contract provided for 90 days free service on the machines and one year on parts. The machines were delivered to and installed in appellees' place of business located in Henderson County, Texas, known as Mike's Drive-Inn. Coker also testified that the ice making machine performed properly, but the ice cream making machine did not so perform. The ice cream machine was to make ice cream frozen hard enough to stand up on a cone. Coker testified "* * * when you tried to draw a cone, * * * it would either be too hard froze or be too loose and run all over the floor. * * * it would either freeze up where you couldn't draw it or turn right the other way and be where it *651 wouldn't stand up on the cone, it would run off and the customers couldn't get their ice cream." Sani-Serv was notified about the improper performance of the ice cream maker and they later installed another old machine in its place, which did not perform any better than the replaced one. He testified that the trouble with the second machine was that the cream would never get hard and it would only make malts. They also replaced the second machine with the original ice cream maker, but it still did not perform properly and would freeze the cream so hard it couldn't be put into either a cone or a cup. The cream would freeze so hard it would not come out of the spout or it would be so loose you couldn't put it on a cone. Coker further testified that he could not serve his customers with the machine and because the machine did not perform or function properly, it was not of any use or benefit to them (appellees). All of the above transpired within the 90-day warranty. Coker further testified that "We had a lot of dissatisfaction and people would be leaving there and going to the Dairy Queen to get their ice cream, therefore, we would lose our hamburger business, * * *. It has eventually put us out of business." Appellees informed the appellant that it had not fixed the machine properly and requested it to try again to fix the ice cream making machine. The appellant never did return or attempt to correct the malfunction of the ice cream maker.
Omitting the formal parts, the court made the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. On February 12, 1968, Plaintiffs and Defendant, Sani Serv Freezer Sales, Inc., a corporation, entered into a contract whereby Defendant sold to Plaintiffs an ice maker and ice cream maker.
2. Such contract was entered into by Plaintiffs and Defendant in Athens, Henderson County, Texas.
3. Under such contract of February 12, 1968, Defendant agreed to give Plaintiffs 90 days free service on the machines.
4. The ice machine and ice cream machine were installed by Defendant on February 21, 1968.
5. The purpose of the ice cream machine was to make ice cream that was hard enough to stand up on a cone.
6. The ice cream machine installed by Defendant on February 21, 1968, worked properly for about only two weeks after it was installed.
7. Within two weeks after the installation of the ice cream machine D. R. Coker, one of the plaintiffs, called Defendant about the ice cream machine not working properly.
8. Thereafter the Defendant replaced the ice cream machine with another old ice cream machine, which did not work properly in that the ice cream would not harden.
9. Thereafter, and within 90 days after the installation of the original ice cream machine, Defendant removed the replacement machine and put the original machine back in service.
10. The ice cream machine did not work properly during the remainder of the 90-day free service period.
11. One of the plaintiffs, D. R. Coker, thereafter and within the 90-day free service period, informed Defendant that the ice cream machine had not been fixed properly, but Defendant did not ever properly fix the machine thereafter.
12. Plaintiffs lost customers because the ice cream machine would not operate properly.
CONCLUSIONS OF LAW
1. I find that Defendant was obligated to maintain the ice cream machine sold to Plaintiffs in proper working order during the 90-day free service period.
*652 2. I find that Defendant failed to put the ice cream machine sold to Plaintiffs in proper working order during the 90-day free service period.
3. I find that the ice cream machine sold to Plaintiffs by Defendant was not suitable for the purposes for which it was sold.
4. I find that Defendant's failure to maintain the ice cream machine sold to Plaintiffs in proper working order during the 90-day free service period caused Plaintiffs to lose customers.
5. I find that Plaintiffs have established a causes of action against Defendant, a part of which arose in Henderson County, Texas.
6. I find that venue in this cause is properly laid in Henderson County, Texas.
Subdivision 23 of Article 1995, V.T.C.S. provides, in effect, that suits against a private corporation may be brought in any county in which the cause of action, or a portion thereof, arose.
Appellees (plaintiffs) were required to prove that some part of the transaction creating the primary right, or some part of the transaction relating to the breach of that right, occurred in Henderson County, Texas. Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674. The making of a valid contract and its breach with resulting damages give rise to a cause of action on behalf of the aggrieved party. Consequently, within the meaning of the foregoing venue statute, a cause of action against a private corporation for the breach of the contract consists of the contract itself and its breach, hence suit may be maintained. In the county where the contract was made. Therefore, in order to maintain a suit in a county other than that in which the corporation's principal place of business is located, it is only necessary that some part of either the primary right or the breach thereof must have occurred in the county where the suit was filed and that the requirement that "a part thereof" shall have arisen in the county where the suit was brought is met by proof that the contract was made in that county. Sealy Oil Mill & Mfg. Co. v. Barronian, 282 S.W. 315 (Tex.Civ.App., Galveston, 1926, n.w.h.); Ed Friedrich Sales Corporation v. Deitrick, 134 S.W.2d 760 (Tex.Civ.App., Galveston, 1939, n.w.h.); Ohio Oil Co. v. Varner, 150 S.W.2d 185 (Tex.Civ.App., Dallas, 1941, n.w.h.); Gleason v. Southwestern Sugar & Molasses Co., 214 S.W.2d 640 (Tex.Civ.App., Waco, 1948, n.w.h.); G. & M. Products Corporation v. Clayton Specialties, Inc., 386 S.W. 2d 843 (Tex.Civ.App., Houston, 1965, n.w. h.); Lone Star Gas Company v. Coastal States Gas Producing Company, 388 S.W. 2d 251 (Tex.Civ.App., Corpus Christi, 1965, n.w.h.); National Furniture Mfg. Co. v. Center Plywood Co., Inc., 405 S.W.2d 115 (Tex.Civ.App., Tyler, 1966, writ dism.). It is undisputed that the contract here involved was entered into in Henderson County.
Moreover, as we view the record, the appellees proved appellant (defendant) breached its warranty, and that the malfunction of the ice cream maker subjected appellees to business losses in Henderson County. That part of their action, at least, arose in Henderson County, the county in which the suit was brought. Texas Portland Cement Co. v. Carsey, 3 S.W.2d 930 (Tex.Civ.App., Texarkana, 1928, n.w.h.); Brown Cracker & Candy Co. v. Jensen, 32 S.W.2d 227 (Tex.Civ.App., Waco, 1930, n. w.h.); Teague Brick Sales Company v. Dewey, 355 S.W.2d 249 (Tex.Civ.App., Amarillo, 1962, n.w.h.); Lambert Corporation v. Martin, 369 S.W.2d 703 (Tex.Civ. App., San Antonio, 1963, writ dism.); Josey Miller Company v. Wilson, 384 S.W.2d 231 (Tex.Civ.App., San Antonio, 1964, n. w.h.).
The pleadings and evidence support the trial court's findings, conclusions, and order overruling appellant's plea of privilege. Appellant's points of error are overruled.
Judgment affirmed.
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THE STATE OF TEXAS
MANDATE
*********************************************
TO THE 217TH DISTRICT COURT OF ANGELINA COUNTY, GREETING:
Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 20th
day of August, 2014, the cause upon appeal to revise or reverse your judgment between
DONALD MILLER BALL, Appellant
NO. 12-13-00190-CR; Trial Court No. 2012-0434
By per curiam opinion.
THE STATE OF TEXAS, Appellee
was determined; and therein our said Court made its order in these words:
“THIS CAUSE came to be heard on the appellate record; and the same being considered,
it is the opinion of this court that this court is without jurisdiction of the appeal, and that the
appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this court that this appeal be,
and the same is, hereby dismissed for want of jurisdiction; and that this decision be certified to
the court below for observance.”
WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals
for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly
recognized, obeyed, and executed.
WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court
of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of
Tyler, this the 16th day of March, 2015.
CATHY S. LUSK, CLERK
By: _______________________________
Chief Deputy Clerk
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347 So.2d 318 (1977)
Ruth Brockhoff SHOTTS et al.
v.
John DOE et al.
No. 8186.
Court of Appeal of Louisiana, Fourth Circuit.
June 7, 1977.
Wendell H. Gauthier, Robert M. Murphy, Gauthier & Murphy, New Orleans, for plaintiffs-appellants.
*319 William F. Bologna, McGlinchey, Stafford, Mintz & Hoffman, New Orleans, for defendants-appellees.
Before REDMANN, GULOTTA and BEER, JJ.
REDMANN, Judge.
Plaintiffs appeal from the dismissal on exception of prescription of their tort action against persons not joined as defendants until after the tort prescription period of one year.
In their timely original petition, plaintiffs listed admittedly fictitious names, and no others, as defendants. Plaintiffs did describe the fictitious defendants as their decedent's fellow-employees of Continental Grain Company, and plaintiffs argue that this naming of Continental in the petition served to interrupt prescription against Continental and therefore against all persons solidarily liable with Continental. Further arguing that the other employees later joined would be solidarily liable with Continental, plaintiffs conclude that the demands against those employees were timely. We disagree.
La.C.C. 3552 only provides for interruption against co-debtors in solido by "citation served upon one" of them (or his acknowledgement). Continental was not here cited.
La.R.S. 9:5801 provides for interruption by "commencement of a civil action" but only "as to all defendants" and Continental was not a defendant. Continental was only mentioned in describing the fictitious defendants.
Plaintiffs also argue that C.C. 21 obliges us to "decide equitably" because the law is silent (and further argue they should prevail because defendants' true identity was deliberately obscured). But the law is not silent: C.C. 3536 expressly provides a prescription of one year for actions for damages "from offenses or quasi offenses."
Affirmed.
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 30, 2005
Charles R. Fulbruge III
Clerk
No. 05-40328
Summary Calendar
ARTURO RIVERA,
Plaintiff-Appellant,
versus
JULIO SALAZAR, Individually and in His Official Capacity as
a Corrections Officer at the William G McConnell Unit; ALAN
R CANTU, Individually and in His Official Capacity as a
Corrections Officer at the William G McConnell Unit; WILLIAM
L STEPHENS, Individually and in His Official Capacity as
Senior Warden II, at the William G McConnell Unit; DOMINGO
A CARRILLO, Individually and in His Official Capacity as Major
of Correction Officers at the William G McConnell Unit;
AURELIO AMBRIZ, Individually and in His Official Capacity as
Captain of Correctional Officers at the William G McConnell
Unit; MICHAEL L PARKER, Individually and in His Official
Capacity as Captain of Correction Officers (DHO) at the
William G McConnell Unit; ANDRES GALLEGOS, Individually and
in His Official Capacity as Lieutenant of Correctional
Officers at the William G McConnell Unit; JAROD A BLEIBDREY,
Individually and in His Official Capacity as Sergeant of
Correctional Officers at the William G McConnell Unit;
MARTHA E NAVAJASGALLEGOS, Individually and in Her Official
Capacity as Sergeant of Correctional Officers at the William
G McConnell Unit,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CV-552
--------------------
No. 05-40328
-2-
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Arturo Rivera, a Texas prisoner (# 716185), filed this pro
se civil rights complaint, pursuant to 42 U.S.C. § 1983, against
several correctional officials. He alleged that Correctional
Officer Julio Salazar assaulted him, that Officer Alan Cantu was
standing by and did nothing to stop it, and that Salazar then
filed a false disciplinary report in retaliation for Rivera’s
having reported the assault. He alleged that other defendants
did nothing about Rivera’s grievance regarding these matters and
that they conspired to “aid and abet” the false disciplinary
proceedings against him. On January 27, 2005, the district court
issued a “Final Judgment Dismissing Certain Claims,” dismissing
Rivera’s claims against all of the defendants other than Salazar
and Cantu but retaining on the court’s docket the claims against
those two defendants.
This court must examine the basis of its jurisdiction sua
sponte. Wilkens v. Johnson, 238 F.3d 328, 330 (5th Cir. 2001).
The district court’s grant of partial summary judgment did not
dispose of all of the claims and was therefore not a final
judgment under 28 U.S.C. § 1291. See Briargrove Shopping Ctr.
Joint Venture v. Pilgrim Enter., Inc., 170 F.3d 536, 538-39 (5th
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 05-40328
-3-
Cir. 1999). In addition, the court did not certify the finality
of the dismissed claims under FED. R. CIV. P. 54(b). Although the
district court labeled the judgment “final,” the document does
not reflect an “unmistakable intent” to enter an appealable
partial judgment under Rule 54(b). See id. at 539-40. However,
the district court has subsequently entered final judgment as to
the claims against Salazar and Cantu. Accordingly, we may
exercise appellate jurisdiction over the January 27, 2005,
judgment. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 539
n.1 (5th Cir. 2005); Barrett v. Atlantic Richfield Co., 95 F.3d
375, 379 (5th Cir. 1996).
By failing to brief any challenge to the district court’s
conclusion, under 28 U.S.C. § 1915A(b), that he failed to state a
claim as to defendants Major Domingo Carrillo, Captains Aurelio
Ambriz and Michael Parker, Lieutenant Andres Gallegos, and
Sergeants Martha Navejas-Gallegos and Jarod Bleibdrey, Rivera has
effectively abandoned his claims against those defendants.
See Salazar-Regino v. Trominski, 415 F.3d 436, 451 (5th Cir.
2005); FED. R. APP. P. 28(a)(9).
Rivera argues that Assistant Warden Alfonso Castillo and
Senior Warden William Stephens were liable as supervisors. He
maintains that Castillo was aware of many inmate complaints about
Officer Salazar and of Salazar’s “proclivity to bring false
charges against inmates in retaliation for reporting his various
abuses.” He asserts that Castillo “employed a wholly inadequate
No. 05-40328
-4-
and impotent disciplinary system that permitted officer[ ]s like
Officer Salazar to continue to employ their bullish methods
without sanction.” Rivera has not, however, described the
history of complaints against Salazar or explained how Castillo’s
disciplinary system was “inadequate and impotent.” Although he
asserts that Castillo created a “policy or custom under which
unconstitutional practices occurred,” he describes neither the
policy or custom nor the “unconstitutional practices.” These
conclusory allegations are insufficient to establish supervisory
liability. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir.
2002); Thompkins v. Belt, 828 F.2d 298, 305 (5th Cir. 1987). The
district court did not err in concluding that Rivera had failed
to state a cognizable constitutional claim against either
Castillo or Stephens. See Berry v. Brady, 192 F.3d 504, 507 (5th
Cir. 1999); Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.
1998); 28 U.S.C. § 1915A(b).
The January 27, 2005, judgment of the district court is
AFFIRMED.
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Case: 14-60918 Document: 00513268493 Page: 1 Date Filed: 11/12/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-60918 FILED
Summary Calendar November 12, 2015
Lyle W. Cayce
Clerk
MADAN OLI,
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 361 698
Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Madan Oli, a native and citizen of Nepal, petitions for review of the
Board of Immigration Appeals’ (BIA) dismissing his appeal of the Immigration
Judge’s (IJ) denial of his application for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT).
Initially, Oli contends the BIA erred in accepting the IJ’s determinations
that he: firmly resettled in India; and, alternatively, was able to relocate to
* 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: 14-60918 Document: 00513268493 Page: 2 Date Filed: 11/12/2015
No. 14-60918
Kathmandu from his family home in Dang. He did not present these claims in
his brief to the BIA, however; and it noted he failed to address these findings.
Because these claims are unexhausted, we lack jurisdiction to consider them.
See Claudio v. Holder, 601 F.3d 316, 318 (5th Cir. 2010); Omari v. Holder, 562
F.3d 314, 321 (5th Cir. 2009).
Additionally, Oli challenges the IJ and BIA’s credibility determinations
in denying the relief requested here. Because the BIA relied upon the IJ’s
credibility determinations, we may review the findings of both the IJ and the
BIA. See Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). An IJ’s credibility
determination is reviewed for substantial evidence, and must be upheld unless
“the evidence was so compelling that no reasonable factfinder could conclude
against it.” Id. at 537. Accordingly, “if the IJ’s credibility determinations are
supported by the record, they will be affirmed”. Id. The IJ “may rely on any
inconsistency or omission in making an adverse credibility determination as
long as the ‘totality of the circumstances’ establishes that an asylum applicant
is not credible.” Id. at 538 (emphasis in original); see 8 U.S.C.
§ 1158(b)(1)(B)(iii).
Oli contends the IJ and BIA failed to consider the totality of the
circumstances which, he asserts, support: a credible allegation of past
persecution based on a protected basis; and, a reasonable fear of future
persecution, including in violation of the CAT. He maintains, inter alia, his
justifications for obtaining a passport and his description of his wife’s beating
at the hands of Maoists were not inconsistent. Furthermore, Oli asserts that,
even if his testimony and documentary evidence contained inconsistencies, any
such discrepancies were not apparent, and the IJ was required to give him an
opportunity to explain them.
2
Case: 14-60918 Document: 00513268493 Page: 3 Date Filed: 11/12/2015
No. 14-60918
The IJ and BIA applied the proper standard in determining whether
Oli’s allegations were credible. Although Oli relies upon alternative
explanations for his testimony and documentary evidence to clarify the
inconsistencies and discrepancies, and maintains some problems may have
resulted from translation issues, these assertions do not compel the conclusion
that no reasonable trier of fact could have found him incredible. See Wang,
569 F.3d at 538–39.
DISMISSED IN PART AND DENIED IN PART.
3
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376 So.2d 1101 (1979)
Ex parte Brenda Hogan JENKINS.
(Re: Brenda Hogan Jenkins v. Charles Thomas Jenkins, Jr.)
79-98.
Supreme Court of Alabama.
November 21, 1979.
FAULKNER, Justice.
WRIT DENIED.
TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.
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192 F.Supp.2d 1351 (2002)
Samantha G. O'KEEFE; Patrick H. O'Keefe; Anthony M. O'Keefe; Jennifer D. Bryan; Patrick H. O'Keefe; et al., Plaintiffs,
v.
Robert W. DARNELL; Davis, Persson, Smith & Darnell, also known as Turffs, Persson, Smith & Darnell, also known as Hankin, Persson, Davis, & Darnell, also known as Hankin, Persson, Davis, McClenathen & Darnell; David P. Persson, Kevin P. Smith, Barbara B. Levin, Barry R. Lewis, Jr., Robert G. Turffs, David D. Davis, Lawrence M. Hankin, and Andrew H. Cohen, Defendants.
No. 8:01-CV-722-T-17TGW.
United States District Court, M.D. Florida, Tampa Division.
February 19, 2002.
*1352 *1353 John Jay Waskom, Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, FL, Kenneth J. Catanzarite, Anaheim, CA, for plaintiffs.
William Penn Dawson, II, Macfarlane, Ferguson & McMullen, Tampa, FL, for defendants.
ORDER ON MOTION TO DISMISS
KOVACHEVICH, District Judge.
This cause comes before the Court on the Defendant Robert W. Darnell, et al's Motion to Dismiss or for Judgment on the Pleadings, Counts I VI as the statute of limitations bars all counts; a Motion to Dismiss Counts I VI for lack of standing regarding claims of negligence, breach of fiduciary duty, constructive fraud, intentional interference with expectancy of inheritance; and Motion to Strike Counts II and III (punitive damages), V (vicarious liability), and VI (negligent failure to train and supervise). (Docket No. 23). Plaintiffs filed a responsive motion thereto. (Docket No. 31).
STANDARD OF REVIEW
The Defendants have requested dismissal on several of the claims. A Motion to *1354 Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of a complaint to determine whether it sets forth sufficient allegations to establish a claim for relief. A district court should not dismiss a complaint for failure to state a claim solely on the pleadings "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Additionally, when deciding a motion to dismiss, a court is required to view the complaint in the light most favorable to the plaintiff and accept the truthfulness of well-pleaded facts. See Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); See also Beck v. Deloitte et al., 144 F.3d 732, 735-36 (11th Cir.1998) (quoting St. Joseph's Hosp., Inc. v. Hospital Corp. of America, 795 F.2d 948 (11th Cir.1986)).
Alternatively, the Defendants request a judgment on the pleadings under Federal Rule of Civil Procedure 12(c). The Rule states, in part, "after the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." In viewing the pleadings "in the light most favorable to the nonmovant" the court "may grant the motion only if it appears beyond a doubt that the nonmovant can prove no set of facts in support of his claim which would entitle him to relief, or if material facts are undisputed and judgment on the merits is possible by merely considering the contents of the pleadings." See Dickinson v. Executive Business Group, Inc., 983 F.Supp. 1395, 1396 (1997) (citing Hallberg v. Pasco County, Fla., 1996 WL 153673 (M.D.Fla.1996)).
A Motion to Strike under Rule 12(f) of the Federal Rules of Civil Procedure allows the court, on its own initiate or motion, to order stricken from any pleading any "redundant, immaterial, impertinent, or scandalous matter." The motion "will `usually' be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties." See Gainer v. City of Winter Haven, Fla., 134 F.Supp.2d 1295, 1297 (2000) (citing Seibel v. Society Lease Inc., 969 F.Supp. 713, 715 (M.D.Fla.1997)).
BACKGROUND
The following "facts" are taken as true for the purpose of the pending motions. The Plaintiffs, heirs and conservator of Dolores W. O'Keefe, allege that the Defendants, Davis Pearson, and specifically Robert W. Darnell, committed legal malpractice in the administration of the Dolores W. O'Keefe Living Trust 1990 [Dolores Trust I], the Michael O'Keefe sub-trust of the Dolores W. O'Keefe Living Trust [Michael Trust I], as well as Michael Trust II, the sub-trust of the Dolores W. O'Keefe Irrevocable Trust of 1996. In 1990, Dolores W. O'Keefe created a trust, a pourover will to the trust, and a durable power of attorney naming Anthony D. O'Keefe as power holder. Dolores W. O'Keefe established an annual gifting practice of providing $10,000 "federal exclusion gifts" inter vivos to each of her children Michael O'Keefe, Anthony D. O'Keefe, and Patricia O'Keefe and to trusts for each of her grandchildren, including: Plaintiffs Samantha, Patrick, Anthony, Jennifer, and Molly. The Plaintiffs allege that the 1990 will, the 1990 trust, and this annual giving practice established Dolores' testamentary intent to "retain control of her assets until her death."
The Plaintiffs also claim that a provision of the Dolores I Trust required that upon her death, the estate was to be divided into three parts for disbursement to each of her children. The Plaintiffs claim the Dolores I Trust provided that if any of her children predeceased her, that child's *1355 share "would pass outright to the deceased child's living issue." Dolores W. O'Keefe became incapacitated in 1990. John A. Taylor was court appointed as Dolores' conservator in 1995. The Plaintiffs claim that Anthony D. O'Keefe, who was acting as Dolores' attorney-in-fact, hired Robert Darnell, who then entered into an attorney/client relationship with Dolores' conservatorship in mid-1995 to "provide estate planning services for Dolores." Plaintiffs further allege that Darnell and Anthony O'Keefe worked together, Darnell in conflict with his fiduciary duty to Dolores, to create a "gifting strategy." This gifting strategy allowed Dolores' conservator (Taylor) to transfer 335,000 shares of Albertson's stock (of which Dolores owned 1,760,000 shares) to three sub-trusts: on each for Michael, Anthony D. and Patricia. Taylor then transferred the balance of Dolores' assets to the 1990 Dolores I Trust, of which Anthony D. was the "sole trustee." (P.4) The Dolores I Trust was required to pay gift taxes of "at least" $7.3 Million on the stock gift transfer to the sub-trusts that in essence left Dolores "broke."
Plaintiffs Samantha, Patrick, Anthony, Jennifer, and Molly are the issue of Michael O'Keefe who was killed in an airplane crash on September 6, 1996. As a result of the gift transfer, Michael's 1996 Trust paid $7.5 million in estate taxes. Darnell became representative of the Michael O'Keefe estate on September 5, 1996. The Plaintiffs claim that Anthony D. O'Keefe forged an "unexecuted" will of Michael O'Keefe and sent the will to Darnell to probate. The Plaintiffs further claim that Darnell should have had the gift made to the Michael Trust from Dolores Trust I set aside "for mistake or lack of notice." As a result of Darnell's failure to set aside the gift, the Plaintiffs allege he caused damage "of not less than $14 Million," although he and his firm earned a $65,000.00 bonus on the gift transfer, a bonus they would not have earned if the gift were set aside. Dolores O'Keefe died on January 9, 1999, while still under a conservatorship. The Plaintiffs claim that Darnell continued "post mortem estate planning" for Dolores through March and April 1999, while still acting as representative to the Michael Estate. Therefore, the Plaintiffs will proffer an expert who will testify that Robert Darnell, while acting within the course and scope of his employment as a principle or partner with Davis Persson, acted in adverse interest to his attorney/client relationship with Dolores, her estate, conservatorship, 1990 Dolores I Trust, and the 1996 Trust.
DISCUSSION
Defendants have asserted several arguments supporting their Motions to Dismiss, Motion to Strike, and for a Judgment on the Pleadings. Each argument will be addressed separately.
Abstention
The Defendants argue that this Court should abstain from deciding this case because the Plaintiffs filed a state court action in Kansas on December 8, 2000. Plaintiffs admit that this specific cause of action was a "prophylactic measure," filed to preserve a federal diversity action against the statute of limitations should the Kansas court grant a motion for summary judgment on the state action. In deciding federal grounds required for a district court to abstain from a cause of action, the Supreme Court in Colorado River Water Conservation District v. U.S., 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), defined three categories of claims for which the doctrine of abstention was appropriate. The Court commented that "it was never a doctrine of equity that a federal court should exercise its judicial discretion to dismiss a suit *1356 merely because a State court could entertain it." Id. at 814, 96 S.Ct. 1236. The Court proclaimed abstention appropriate: (1) "in cases presenting a federal issue which might be mooted or presented in a different posture by a state court determination of pertinent state law," (2) "where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends" this single action, and (3) "absent bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings," or a nuisance or tax proceeding. Id. at 816, 96 S.Ct. 1236.
The case at bar obviously does not present a federal issue nor does it in anyway restrain a criminal or nuisance proceeding. Under the second category concerning questions of state law bearing on state public policy, the Supreme Court reasoned that abstention was proper in a case where federal review "would be disruptive of state efforts to establish coherent policy with respect to a matter of substantial public concern." Id. at 814, 96 S.Ct. 1236. The Plaintiffs defend that they are not "seeking resolution of ... overriding state policy." This Court could examine whether allowing a claim of Interference with Expected Inheritance could be "disruptive of state efforts" when Kansas precedent is unresolved. Whether the tort claim is a "substantial public concern" could be argued by the parties. The Defendants, however, have not spoken on this matter. Therefore, this Court accepts the Plaintiffs' claim that Kansas will "recognize" the tort in a separate civil action filed on the facts of this case and, as such, the Court is not compelled to abstain since "abstention is the exception, and not the rule." The motion to abstain is denied.
Conflict of Laws
The Plaintiffs claim that Kansas substantive laws apply to this case under the "significant relationship" test for resolving conflicts of laws issues. This Court agrees.
The Florida Supreme Court adopted the "significant relationship" test, delineated in the Restatement (Second) of Conflict of Laws §§ 145-146, in Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla.1980). The Court found the test controlling "in tort actions involving more than one state," and rejected any distinction between procedural and substantive issues. Merkle v. Robinson, 737 So.2d 540, 542 (Fla.1999).
The Plaintiffs correctly argue that the injury to the 1990 Dolores Trust occurred in Kansas; the conduct causing the injury to the Trust occurred in Kansas, as well as proving Kansas as the place where the relationship between the parties is centered even though the domicile, residence, nationality, place or incorporation and place of business of the parties is diverse. This diversity, however, does not defeat the significant relationship test since "these contacts are to be evaluated according to their relative importance with respect to the particular issue." Bishop, 389 So.2d at 1001. To this end, Plaintiffs argue Section six of the Restatement enumerating seven additional factors to be considered to overcome the diversity issue, especially the fact that Florida and Kansas have "virtually identical statute of limitations ... so Plaintiffs are not obtaining a limitations advantage." The Defendants do not present a specific argument that the conflict of laws should be resolved for either Kansas or Florida. This Court holds that the significant relationship test, along with other policy considerations, requires Kansas substantive law to be controlling in this cause of action.
*1357 Statute of Limitations
Defendants argue that all Counts should be dismissed or a judgment on the pleadings granted as the present claim is barred by the statute of limitations under both Florida and Kansas law for legal malpractice actions. Because this Court has determined Kansas law as binding on this case, the Court will discuss only applicable Kansas law and precedent.
Kansas statute 60-513 provides for a two-year limitation for civil actions without specifically enumerating legal malpractice claims. However, 60-513(a)(4) provides for "an action for injury to the rights of another, not arising on contract, and not herein enumerated." Plaintiffs claim, and the Defendants do not disagree, that this provision applies to legal malpractice claims. Both parties also agree that Pancake House Inc. v. Redmond, 239 Kan. 83, 87, 716 P.2d 575 (Kan.1986), presents the four theories upon which a court may determine legal malpractice cause of action accrual: 1) occurrence rule; 2) damage rule; 3) discovery rule; and 4) continuous representation rule.
The Plaintiffs make two statute of limitations arguments: First, under the representative capacity of John Biscanin as the co-administrator of Dolores' estate; Second, for the heirs in their individual capacity. Each argument is considered separately.
The Plaintiffs first argue that the continuous representation rule should be applied to this cause of action "since a client's cause of action does not accrue until the attorney/client relationship is terminated." Id. at 87. Here, the Kansas Supreme Court held that facts and circumstances determine which theory will be applied to a legal malpractice cause of action. Morrison v. Watkins, 20 Kan. App.2d 411, 417, 889 P.2d 140 rev. denied 257 Kan. 1092 (1995), provides well-reasoned insight into the policy supporting the continuous relationship rule whereas, "[it] is consistent with the purpose of the statute of limitations which is to prevent stall claims and enable the defendant to preserve evidence." Id. at 417, 889 P.2d 140. Peyton v. Chase County Nat. Bank, 124 Kan. 763, 262 P. 595 (1928), held that "the statute of limitations does not begin to run until there are in being a person capable of suing and a different person capable of being sued." The Kansas Supreme Court recognized the folly of tolling the statute of limitations when a person representing an estate, who is partaking in misconduct, would raise a cause of action in the matter. Id. at 597.
In the present case, the Plaintiffs allege that Darnell traveled to Kansas to "provide advice and counsel" in post mortem estate planning for Dolores. Darnell and the firm provided services, in a continuous representation role to Dolores, until April 28, 1999. The Plaintiffs filed this cause of action April 1, 2001, with the two-year statute of limitations provided by Kansas statute 60-513. The Plaintiffs further support that the statute of limitations does not bar this cause of action because John Biscanin was not named as a successor conservator for Dolores until August 8, 2000 and trustee of the 1990 Trust and 1996 Sub-Trust until September 11, 2000. Biscanin was the person capable of suing on behalf of Dolores because the Plaintiffs allege the court-appointed conservator, John Taylor, was assisting the Defendants with the gifting misconduct. Therefore, under this argument, Biscanin could have filed this cause of action on behalf of Dolores at any time prior to August 8, 2002. As to their individual capacities, the heirs rely on the discovery rule, in that they did not discover Darnell and the firms actions until June 1999, when they received discovery in Kansas case number 98-C-8568. Defendants claim that paragraph 21 of the complaint alleges that the Plaintiff discovered *1358 Darnell's services in "approximately March 1999," causing this cause of action to be barred by the statute of limitations. However, Plaintiffs have properly pled "concealment" of Darnell's involvement with the post mortem estate planning activities through "at least" April 1999, as revealed through the discovery documents in the Kansas case. Defendants argue that this cause of action should be dismissed or treated as a judgment on the pleadings because this cause of action is barred by the statute of limitations under all four Kansas statute of limitation rules. In citing Pancake House, the Defendants argue that the damage, occurrence, and discovery rules all apply to March 1999 under which the statute of limitations would bar this cause of action. Defendants have not, however, argued the continuous representation rule and claimed that the Plaintiffs acknowledged the attorney/client relationship ended in March 1999. The Defendants do not provide a specific citation as to where the Plaintiffs make this acknowledgment.
As such, this Court accepts the Plaintiffs argument under Peyton for the co-administrator in his representative capacity and the discovery rule for the heirs as individuals that the statute of limitations does not bar this cause of action. The Defendants' Motion to Dismiss and Judgment on the Pleadings is denied.
Standing
Defendants argue Counts I, II, and III should be dismissed under Rule 12(b)(6) for lack of standing, "simply out of an abundance of caution."
As to Count I (negligence), the Defendants argue that only those persons "in privity" with an attorney has standing or "the right to bring a malpractice action." Defendants' arguments focus primarily on Florida precedent decided on privity within the context of wills and testamentary intent. Specifically, the Defendants argue a lack of standing "the Plaintiffs, and especially their heirs" can allege that Darnell made a "mistake" in a will. The Defendants' reliance on a "mistake" requirement is misplaced. The Plaintiff heirs rely on Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42 (1990), to establish "beyond-privity" test factors to support standing in a cause of action involving an attorney and the intended beneficiaries of a trust. Plaintiff heirs correctly state that the Kansas Supreme Court has imposed a duty of "due care" on an attorney performing services for a client, to an intended beneficiary of the services, as a matter of public policy. Id. at 66. The Pizel court held that intended beneficiaries were no longer barred by contractual privity and could sue an attorney for legal malpractice under this duty of due care. The Plaintiff heirs in the case at bar were the intended beneficiaries of the Dolores Trust and estate plan, and, as such, have standing to pursue the Count I claim.
As to Count II (breach of fiduciary duty) and Count III (constructive fraud), the Plaintiffs correctly remind the Defendants that it is only John P. Biscanin who is suing under these claims. The Plaintiffs correctly rely on Matter of Murdock, 220 Kan. 459, 467, 553 P.2d 876 (1976) as providing Biscanin, as the co-administrator/trustee of the 1990 Trust, 1996 Trust, and 1996 Sub-Trust, with the authority to "assert a claim on behalf of the trusts." Biscanin, therefore, has the authority and standing to claim negligence, breach of fiduciary duty, and constructive fraud, against the defendants on behalf of the Dolores estate and trusts. The defendants' Motion to Dismiss Counts I, II, and III for lack of standing is denied.
Rule 12(b)(6): Failure to State a Claim
Defendants request Counts I (negligence), II (breach of fiduciary duty), III *1359 (constructive fraud), and IV(interference with expected inheritance) be dismissed for failure to state a claim under Rule 12(b)(6). The Court has previously found the Plaintiffs, as heirs and the co-administrator/trustee, have sufficient standing to pursue the cited claims. Here, Defendants argue the Plaintiffs "have failed to plead facts necessary to maintain such causes of actions." The Court will review each claim individually.
Negligence: Heirs
The Defendants and Darnell claim to have no duty to the heir Plaintiffs. This issue was resolved by the determination that the heirs have standing to sue under the beyond privity test. The Plaintiff heirs claim that Darnell breached his duty to them as the intended beneficiaries of the Dolores pour-over will and estate plan by not setting aside the inter vivos gift from the Dolores 1990 Trust to her three children. This gift transfer was adverse to the Plaintiffs as heirs of Michael O'Keefe. Darnell consulted, counseled, and recommended actions to Anthony D. and Patricia O'Keefe adverse to the heir's interests and in conflict with Dolores' estate and gifting plans. The Plaintiffs allege that these actions proximately caused the Michael I Estate to suffer a $7.5 Million estate tax, the estate to which the Plaintiffs were heirs. Defendants reiterate that neither Darnell nor the firm owed a duty to the heirs and that the proper defendants should be Anthony D. O'Keefe, Michael O'Keefe estate, and John Taylor, Dolores' "authorized agents."
The heirs have presented the necessary facts to establish a claim for negligence and, therefore, the Defendants' Motion to Dismiss the negligence claim under Rule 12(b)(6) is denied.
Breach of Fiduciary Duty
The Defendants argue that neither Darnell nor the firm owed a fiduciary duty to the Plaintiffs. In relying on Vignes v. Weiskopf, 42 So.2d 84 (Fla.1949), the Defendants claim that an attorney is under no duty to determine a testator's capacity. However, the capacity of Dolores O'Keefe is not the issue on this claim. Instead, John P. Biscanin is suing on behalf of the Dolores 1990 Trust, 1996 Trust, and 1996 Sub-Trust alleging that Darnell, as the attorney for Dolores, had a duty "to act with the utmost honesty, impartiality, good faith and fair dealing." He further alleges that Darnell breached this duty when he acted in self interest in "misappropriating" Dolores' assets in establishing the gift transfer, and such, caused damage to Dolores' estate.
In reliance on Denison State Bank v. Madeira, 230 Kan. 684, 640 P.2d 1235 (1982), the Defendants also argue that the Plaintiffs fail to meet the "confidence" element, "manifest in all [breach of fiduciary relationship] decisions." While the Defendants do not make any specific references to Denison, this Court will clarify the standard by which a breach of fiduciary duty is established. The Denison facts are not similar to the case at bar. However, the Kansas Supreme Court held that "while no precise definition may be given ... there are certain broad general principles which should be considered." The Kansas Supreme Court uses "[a] position of peculiar confidence placed by one individual in another" as a "general principle" to be considered in determining the existence of a fiduciary relationship. The Defendants claim the Plaintiffs may only claim a confidence in Anthony D. O'Keefe or Taylor, Dolores' first conservator. Plaintiff, Biscanin argues that he can claim this "confidence" to Darnell as an agent for Dolores' This Court agrees. A confidence is one broad general principle that may be used to establish a fiduciary relationship. This *1360 is not an "element" necessary to prove a breach. Darnell had a fiduciary duty to Dolores O'Keefe under the attorney/client relationship. Therefore, the Plaintiff Biscanin, as co-administrator of the Dolores estate and Trusts, has pled the facts necessary to support a breach of this fiduciary duty. The Defendants' Motion to Dismiss the breach of fiduciary duty claim under Rule 12(b)(6) is denied.
Constructive Fraud
The Defendants argue that the plaintiffs claim is fatally flawed because of a lack of "reliance" as a "necessary element to a `Constructive Fraud' claim" citing Robson v. Leedy (Robson Link v. Leedy Wheeler), 154 Fla. 596, 18 S.2d 523 (1944). This case, however, is not on point (case centered on misrepresentation in a contract for securities) nor binding because Kansas substantive law is applicable. Although not cited by either party, the Kansas Supreme Court held in Moore v. State Bank of Burden, 240 Kan. 382, 729 P.2d 1205, (1986) that constructive fraud is "a breach of legal or equitable duty which, irrespective of moral guilt, declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty nor purpose nor intent to deceive is necessary." Although Plaintiff Biscanin alleges intentional acts by Darnell and the Defendants, the complaint presents sufficient "facts" that Darnell's "breach of legal or equitable duty" tended allegedly "to deceive" the heirs through Anthony D. O'Keefe and "violate a confidence" of the Dolores Trusts and estate plan. The Plaintiffs have sufficiently pled facts necessary to state a claim and, as such, the Defendants' Motion to Dismiss the constructive fraud claim under Rule 12(b)(6) is denied.
Interference with Expected Inheritance
The Defendants argue that neither Florida nor Kansas law recognizes the tort claim of interference with expected inheritance. The Defendants also present the argument that "the only way under Kansas law for the Plaintiffs to claim inheritance interference is to contest the devise ... [and] to seek relief in probate court." Plaintiffs counter, however, that Kansas will "recognize" the tort of interference with expected inheritance in a related civil suit, Samantha G. O'Keefe v. Robert L. Grover, et al. (Case No. 00-CV-03456 on these specific facts). The Plaintiffs established the elements for interference with an expected inheritance as found in Restatement (Second) of Torts, § 774B and DeWitt v. Duce, 408 So.2d 216, 218 (Fla.1981). The Defendants argue that Maxwell v. Southwest National Bank, 593 F.Supp. 250, 253 (D.Kan.1984), bars this claim. This case does not support this contention. In Maxwell, the heirs contested the adequacy of a will. The Plaintiffs here argue the interference by Darnell and the Defendants in creating a gift transfer that caused the heirs "a loss of their inheritance." The Plaintiffs have sufficiently pled facts necessary to state a claim, and as such, the Defendants' Motion to Dismiss the interference with expected inheritance claim under Rule 12(b)(6) is denied.
Punitive Damages and the Erie Doctrine
Defendants request the Court to dismiss or strike the punitive damages claims in Count II and III. The Defendants claim that punitive damages cannot be pled in this action as it would conflict with the Erie Doctrine. However, In Cohen v. Office Depot, the Eleventh Circuit Court of Appeals held that because Florida Statute § 768.72 conflicted with Federal Rule of Civil Procedure 8(a)(3), the rule would apply with respect to setting out claims for punitive damages in a pleading. The requirements for pleading as delineated in Florida Statute § 768.732 are therefore, *1361 not applicable in federal diversity cases. Id. at 1299. This specific holding in Cohen has not been reversed. Therefore, the Defendants' Motion to dismiss or strike the punitive damages claims is denied.
Individual Attorney Liability (Vicarious Liability and Negligent Failure to Train and Supervise)
Finally, the Defendants request the Court to dismiss or strike Count V (vicarious liability) and VI (negligent failure to train and supervise) arguing that the Plaintiffs have no legal basis upon which to sue the Defendant attorneys individually. On this argument, the Motion to Strike is denied since it is not of a "redundant, immaterial, impertinent, or scandalous matter" nor will the claim "cause prejudice to one of the parties" since the allegations do have a "possible relation to the controversy."
As to the Defendants' Motion to Dismiss, the Plaintiffs claim that "discovery is necessary to determine whether this professional association of lawyers was properly formed and whether all applicable corporate formalities are actually observed." The Defendants, however, counter that the Plaintiffs cannot sue the individual attorneys since the individual attorneys are not involved in the partnership. The Defendants argue that they can only be sued in their corporate status as a professional association under Florida Statute § 621.01. The Defendants, for the purpose of this motion, "will concede that it is, indeed, a partnership ... of professional associations." This Court agrees. Although the Plaintiffs correctly state that "the corporate construct does not automatically shield the attorneys from individual liability," Florida Statute § 621.07 provides that an attorney, as a "officer, agent, member, manager, or employee of a corporation or limited liability company ... shall be personally liable and accountable only for negligent or wrongful acts or misconduct committed by that person, or by any person under that person's direct supervision and control." The Plaintiffs have pled misconduct only on the part of Darnell and "at least David Davis." No other attorney is specifically named. The Defendants do not argue that the Plaintiffs failed to state a claim for the facts supporting Count V (vicarious liability ¶¶ 55-59), and Count VI (negligent failure to train and supervise ¶¶ 60-64).
It is ORDERED that the Motion to Dismiss (Docket No. 23), be denied, in part, and granted in part, in that the individual attorney defendants, David P. Persson, Kevin P. Smith, Barbara B. Levin, Barry R. Lewis, Jr., Robert G. Turffs, Lawrence M. Hankin, and Andrew H. Cohen, are dismissed with prejudice from this cause of action and the defendants shall have ten days from this date to answer the complaint. Furthermore, the Plaintiffs' Request for Judicial Notice (Docket No. 31) is denied.
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873 S.W.2d 805 (1994)
316 Ark. 609
UNION PACIFIC RAILROAD COMPANY and C.T. Frederking, Appellants, Cross-Appellees,
v.
STATE of Arkansas, ex rel. FAULKNER COUNTY, Arkansas and City of Mayflower, Arkansas, Appellees, Cross-Appellants.
No. 93-838.
Supreme Court of Arkansas.
April 18, 1994.
Herschel H. Friday, Elizabeth J. Robben, M. Gayle Corley, Little Rock, for appellants.
H.G. Foster, Pros. Atty., Larry E. Graddy, Sp. Pros. Atty., Conway, Gregory T. Jones, Little Rock, for appellees.
*806 DUDLEY, Justice.
The City of Mayflower filed this suit in chancery court against Union Pacific Railroad Company and one of its employees, C.T. Frederking. The complaint asked the chancery court to issue an order directing the railroad to construct a crossing so that Scenic Hill Road could be connected to Highway 365, asked that the railroad be enjoined from obstructing the road, and asked for a penalty in the amount of $2,000, plus $5.00 per day, for every day the railroad fails to construct the crossing. The railroad answered and also filed a counterclaim asking damages for inverse condemnation. The railroad filed a motion to dismiss because the chancery court did not have subject matter jurisdiction. The trial court denied the motion to dismiss, heard the case, dismissed the action against the railroad employee, ordered the railroad to construct the crossing, dismissed the complaint for inverse condemnation, and assessed a penalty of $2,000, plus $5.00 per day, from the date the complaint was filed until the railroad completes the crossing. The railroad appeals and the City cross-appeals. The railroad contends that, by ruling that it must pay both a fine and construct a crossing, and by refusing to require damages for condemnation of this roadway, the Chancellor erred in his interpretation of section 23-12-305 of the Arkansas Code Annotated of 1987. The City cross-appeals and contends that the Chancellor did not assess a sufficient penalty and should have awarded attorney's fees. We reverse because the chancery court was wholly without subject matter jurisdiction.
Article 7, section 11 of the Constitution of Arkansas provides: "The circuit court shall have jurisdiction in all civil and criminal cases the exclusive jurisdiction of which may not be vested in some other court provided for by this Constitution." Id. This provision means that, unless a cause of action is confided by the Constitution exclusively to another court, it belongs exclusively, or concurrently, to the circuit court. State v. Devers, 34 Ark. 188 (1879). "All unassigned jurisdiction under the Constitution is vested in the circuit court...." Patterson v. Adcock, 157 Ark. 186, 193, 248 S.W. 904, 906-07 (1923).
Subject matter jurisdiction is determined from the pleadings. McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992). The complaint in this case states that the railroad "is the owner of a railroad line that passes through the City of Mayflower." The answer and counterclaim admit the existence of the railroad's property, and the counterclaim asks the chancery court to award "between one and two million dollars... based on the value of the main track which is condemned and the cost to replace the condemned side track." The City answered the counterclaim and denied "that the cost of locating a suitable tract of land and constructing a replacement facility is estimated at between one and two million dollars." The quoted pleadings state that the City asks for an order authorizing it to open a street across the railroad's right of way. There is no allegation that the City owns an easement, or presently has any right, to cross the railroad's right of way. Before the City has the right to require the railroad to construct the crossing, it must condemn the right of way for the street to cross the railroad. St. Louis & San Francisco R.R. Co. v. Fayetteville, 75 Ark. 534, 87 S.W. 1174 (1905). It can acquire that right by agreement with the railroad or by filing a condemnation suit in circuit court. Id. at 539-40, 87 S.W. at 1175. The circuit court has subject matter jurisdiction of condemnation suits unless equitable defenses are raised. Arkansas Power & Light Co. v. Potlatch Forest, Inc., 288 Ark. 525, 707 S.W.2d 317 (1986); Ark.Code Ann. § 18-15-303 (1987). No equitable defenses were raised by the railroad. Subject matter jurisdiction of the railroad's counterclaim for inverse condemnation is also in circuit court. Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990). In sum, the quoted pleadings do not provide any basis for subject matter jurisdiction in chancery court.
In addition, the City's complaint alleges that the chancery court "has subject matter jurisdiction pursuant to Ark.Code Ann. § 23-12-305 (1987)." In oral argument before this court, one of the City's attorneys was asked about the basis of chancery court jurisdiction, and he responded that jurisdiction was conferred on the chancery court by the cited *807 statute. There is no basis for this assertion. The statute, which was repealed in 1993, makes no mention of subject matter jurisdiction. See Ark.Code Ann. § 23-12-305 (1987). There have been many cases involving this statute, but they were all tried in circuit court. See, e.g., Missouri Pac. R.R. v. Howell, 198 Ark. 956, 132 S.W.2d 176 (1939); Missouri Pac. R.R. v. Meyer, 186 Ark. 810, 56 S.W.2d 169 (1933); St. Louis-San Francisco Ry. v. State, 182 Ark. 409, 31 S.W.2d 739 (1930); Kansas City S. Ry. v. City of Mena, 123 Ark. 323, 185 S.W. 290 (1916); St. Louis Southwest Ry. v. Royall, 75 Ark. 530, 88 S.W. 555 (1905). No case holds that the statute gives subject matter jurisdiction to the chancery court.
The statute provides that, when a city constructs a street across a railroad, the railroad must maintain the crossing "at no greater elevation or depression than one (1) perpendicular foot for every five (5) feet of horizontal distance," and, when the railroad refuses to so maintain the crossing, the city street overseer is authorized to give notice to the railroad that it is not properly maintaining the crossing. See Ark.Code Ann. § 23-12-305(a) and (b) (1987). A copy of the notice is to be filed in the county clerk's office. Id. § 23-12-305(d)(1). If the railroad then refuses to maintain the crossing in conformity with the statute, the county clerk "shall" give the notice to the prosecuting attorney and he "shall institute suit against the railroad company," and the railroad company "shall forfeit and pay ... not less than one hundred dollars ($100) nor more than two thousand dollars ($2000), and five dollars ($5.00) per day for every day such refusal or neglect shall continue...." Id. § 23-12-305(d)(3), (e).
The original version of the statute was enacted in 1887. It provided that the notice should be filed in the office of the county clerk because, at that time, all cases involving public roads were heard in county court. Appeals from county court are to circuit court, and not to chancery court. In Kansas City Southern Railway Co. v. Sevier County, 171 Ark. 900, 286 S.W. 1035 (1926), a case involving the same statute, we outlined the procedure in that case as follows: "The suit was first tried in the county court, then on appeal in the circuit court, where it was adjudged upon the testimony and law that the highway should be opened across appellant's right of way at a point where its land had been acquired exclusively for railroad yards." Id. at 901, 286 S.W. at 1036. At the time the case at bar was filed, the statute still provided that the notice must be given to the county clerk. The complaint alleges that notice was given by the City to the county clerk. This notice provision in the statute strongly implies that the General Assembly contemplated the remedy being at law, and not in chancery court.
In St. Louis Southwestern Railway Co. v. Royall, 75 Ark. 530, 88 S.W. 555 (1905), we held that the statute does not contemplate compensating the railroad either for constructing the crossing or keeping it in repair, but it does contemplate compensating the railroad for appropriating a part of its right of way. The opinion provides:
The public does not seek to deprive the railroad of its right of way. It only seeks to condemn the mere right to cross, which would leave the company free still to use its right of way and track as it had used it before. A right affecting the use of its property by the company to so slight an extent as this country crossing would affect it would not call for any great amount of damages, but whether large or small the company has a right to be compensated to that extent.
Id. at 533, 88 S.W. at 556.
We then reversed the case to the county court for a determination of the amount of damages the railroad suffered because of its loss of part of its right of way. We said the determination of damages for loss of part of the right of way was a fact question. Appeal from the county court's determination of damages would be to circuit court. Again, there was no suggestion of subject matter jurisdiction in chancery court.
In addition, we have held that violation of the statute by the railroad can be evidence of negligence in a tort action. In Missouri Pacific Railroad Co. v. Howell, 198 Ark. 956, 132 S.W.2d 176 (1939), we said the statute makes it the duty of every railroad company *808 to properly construct and maintain crossings over public roads so that they will be safe for motorists crossing the railroad, and whether the railroad so maintained the crossing is a fact question for a jury to determine in a tort suit by a motorist who became stuck on a crossing. Again, the remedy was at law.
The statute, in addition to tort liability, provides for a penalty against the railroad if it fails to maintain the crossing as specified. Penal statutes will neither give nor oust jurisdiction in chancery. Hickinbotham v. Corder, 227 Ark. 713, 301 S.W.2d 30 (1957). Chancery court may invoke jurisdiction where the enforcement of a penal statute does not afford adequate protection against injury to property. Id. at 717, 301 S.W.2d at 33. However, here no pleadings allege facts sufficient to show that the remedy at law is inadequate. In addition, we have said it is a general rule that courts of equity will not aid in the enforcement of penalties when the case originates in chancery court. Sigmon Forest Prods. v. Scroggins, 250 Ark. 385, 465 S.W.2d 673 (1971).
The City asked for an injunction to prohibit the railroad from allowing it to open the road, but merely asking for an injunction will not confer subject matter jurisdiction when, under the pleadings, the chancery court does not otherwise have subject matter jurisdiction. McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990). It is not enough just to name an equity theory cognizable in chancery court and then state facts which would not support the equity theory, but which might support a claim at law. See Martin v. Couey Chrysler Plymouth, Inc., 308 Ark. 325, 824 S.W.2d 832 (1992).
The railroad moved to dismiss for lack of subject matter jurisdiction, but only argued that the chancery court lacked subject matter jurisdiction because the notice was not timely filed with the county clerk. The chancellor correctly denied the motion on that ground. The railroad did not object on the ground that subject matter jurisdiction was wholly lacking. Even so, when subject matter jurisdiction is wholly lacking, it cannot be induced simply because there was no valid objection. J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 836 S.W.2d 853 (1992). In such cases, we have a duty to raise the issue on our own. Arkansas Sav. & Loan Ass'n Bd. v. Corning Sav. & Loan Ass'n, 252 Ark. 264, 478 S.W.2d 431 (1972). The City sought two things: first, it sought a railroad crossing which would require the taking of some part of the railroad's property; second, it sought to have the railroad penalized for refusing to allow it to cross the railroad's property. No matter what the two types of action are labeled, the remedy at law in both actions is fully adequate, and the chancery court is wholly without subject matter jurisdiction in both actions. We have a duty to raise the issue. We do so and, accordingly, reverse.
Reversed and remanded on both direct and cross-appeal.
HAYS, J., not participating.
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63 P.3d 598 (2003)
186 Or. App. 291
BOISE CASCADE CORPORATION, a Delaware corporation, Appellant,
v.
BOARD OF FORESTRY, Respondent.
93-2018; A115966
Court of Appeals of Oregon.
Argued and Submitted November 14, 2002.
Decided February 12, 2003.
*599 Phillip D. Chadsey, Boise, ID, argued the cause for appellant. With him on the briefs were Charles F. Adams and Stoel Rives LLP.
David F. Coursen, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
*600 Before HASELTON, Presiding Judge, and DEITS, Chief Judge,[*] and WOLLHEIM, Judge.
DEITS, C.J.
This appeal concerns the latest installment in an ongoing dispute between plaintiff Boise Cascade Corporation (Boise), and defendant Board of Forestry (board), that has been taking place for a decade. After our last remand of the case to the trial court, it denied Boise's motion for summary judgment and granted the board's motion for summary judgment. Boise appeals. As explained below, we conclude that the trial court properly denied Boise's motion for summary judgment, but that the board was not entitled to summary judgment either. We thus reverse and remand.
In May 1992, the board denied Boise's plan to harvest timber from a 56-acre portion of the "Walker Creek Unit" in Clatsop County in which a pair of northern spotted owls were nesting. Boise initiated this action for inverse condemnation in early 1993, alleging that, by failing to approve that plan, the board had "taken" certain timber in violation of Article I, section 18, of the Oregon Constitution and the Fifth Amendment to the United States Constitution. The trial court dismissed Boise's claims on the ground that it lacked subject matter jurisdiction and that Boise's complaint failed to state a claim. At virtually the same time, Boise petitioned for judicial review of the order disapproving the timber harvest and appealed the trial court's dismissal of its inverse condemnation claim. In the administrative review case, we rejected Boise's arguments concerning the validity of the administrative rule upon which the board based its decision and affirmed the order. Boise Cascade Corp. v. Board of Forestry (A78968), 131 Or.App. 552, 886 P.2d 1041 (1994), aff'd, 325 Or. 203, 935 P.2d 422 (1997) (Boise I). In the inverse condemnation case, we held that the trial court had erred in concluding that it lacked jurisdiction, and further held that Boise's complaint did state a claim. Boise Cascade Corp. v. Board of Forestry (A79626), 131 Or.App. 538, 886 P.2d 1033 (1994) (Boise II). On review of that case, the Oregon Supreme Court agreed with us in pertinent part that the court had jurisdiction and that Boise had stated a claim for a regulatory taking. Boise Cascade Corp. v. Board of Forestry (S42159), 325 Or. 185, 935 P.2d 411 (1997) (Boise III).
On remand, Boise dropped its claim under Article I, section 18, of the Oregon Constitution. The trial court granted Boise partial summary judgment, ruling as a matter of law that a regulatory taking had occurred. Around that time, one of the nesting owls died, the other left the Walker Creek Unit, and the board lifted its temporary restriction on Boise's logging of the site. Boise's claim thus was transformed to a claim for a "temporary" taking.[1] Damages were tried to a jury, as was the question of whether a taking by "physical occupation" had occurred. After a jury verdict in Boise's favor, the board appealed.
In that appeal, the board argued that the trial court erred in failing to dismiss Boise's claim, in granting partial summary judgment, in striking its ripeness defense, and in numerous other respects. Boise Cascade Corp. v. Board of Forestry, 164 Or.App. 114, 116-18, 991 P.2d 563 (1999), rev. den., 331 Or. 244, 18 P.3d 1099 (2000), cert. den., 532 U.S. 923, 121 S.Ct. 1363, 149 L.Ed.2d 291 (2001) (Boise IV). In Boise IV, we agreed with the board on two of its arguments. First, we agreed that the trial court erred in submitting Boise's taking by "physical occupation" theory to the jury. 164 Or.App. at 126, 991 P.2d 563. Second, we agreed that the trial court erred in striking the board's defense that Boise's claim was not ripe because it had neither attempted to obtain an "incidental *601 take permit" (ITP)[2] nor shown that attempting to obtain such a permit would have been futile. Id. at 128-32, 991 P.2d 563. We also rejected Boise's argument that its trial exhibits demonstrated that it would have been futile to try to obtain an ITP. First, we noted that trial exhibits were not relevant to whether the trial court erred in striking a defense from the pleadings. Id. at 133, 991 P.2d 563. Alternatively, we concluded that the exhibits on which Boise relied did not, in fact, demonstrate futility. Id. We thus reversed the verdict in favor of Boise and remanded the case. Id.
On remand, both parties sought summary judgment on the question of ripeness and futility. Most of Boise's arguments in support of summary judgment were to the effect that this court's decision concerning ripeness and futility in Boise IV was wrong. The trial court rejected those arguments and, to the extent that Boise repeats them at great length on this appeal, we reject them without further discussion. See generally State v. Pratt, 316 Or. 561, 569, 853 P.2d 827 (1993) (under the law of the case doctrine, "when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal").
Boise also argued in its motion for summary judgment, however, that it was entitled to judgment as a matter of law on the question of futility. Boise suggested that the board, in asserting a ripeness defense, was required to demonstrate that, had Boise sought an ITP, the federal United States Fish and Wildlife Service (USFWS) would have granted it and, further, that the board then would have authorized the logging on the Walker Creek Unit. In support of its arguments, Boise relied on certain federal "guidelines for consideration of incidental take permits" that it asserted "call[ed] for the elimination of, and not the granting of permits for, timber sales that embrace active nesting sites." (Emphasis in original.) It also submitted materials from which it drew the conclusion that, even after the female owl died and the male owl moved away in 1997, "the USFWS still took the position that the Walker Creek site had not been abandoned under federal law." (Emphasis in original.) But see 186 Or.App. at 303 n. 5, 63 P.3d 605). Boise asserted that the USFWS's position in the late 1990s demonstrated that it would not have granted an ITP when Boise first sought to log the site many years earlier.
The board, in its motion for summary judgment, asserted that it was too late, as a matter of law, for Boise to be able to demonstrate futility. The gist of the board's argument on this point was that Boise was required to have made its "futility" showing concerning an ITP in the course of Boise I, the administrative case described above. The board argued that "estoppel" and "issue preclusion" prevented Boise from arguing in the present case that it would have been futile to attempt to obtain an ITP, because it maintained a position in Boise I that ITPs were not required for private lands. While the board maintained that Boise's showing on summary judgment was insufficient to demonstrate futility as a matter of law, the board did not make any arguments other than those described above, or submit any exhibits, to show that it was entitled to summary judgment on the question of ripeness and futility as a matter of law.
The trial court granted the board's motion and denied Boise's motion. Its letter opinion indicated that it was denying Boise's motion on the ground that Boise had demonstrated nothing more than "predictions" about the likely success of an application for an ITP, and that it was granting the board's motion on the ground of "issue preclusion."
Boise appeals, arguing that the trial court erred in granting the board's motion for summary judgment and in denying its own motion. As noted above, we summarily *602 reject Boise's attempts to relitigate the issue decided in the previous appeal concerning the availability of the ripeness defense, thus disposing of the majority of the arguments Boise asserts in this appeal. That leaves, as viable issues before us, Boise's argument that it was entitled to summary judgment as a matter of law on the board's ripeness defense and its argument that the board was not entitled to summary judgment as a matter of law on that defense.
In response, the board concedes that Boise's failure to litigate futility in Boise I does not preclude Boise from attempting to demonstrate futility in this proceeding. The board acknowledges that that was the basis for the trial court's grant of its motion for summary judgment. The board argues, however, that "the trial court also dismissed because Boise failed to show that its claim was ripe * * * and failed to present sufficient evidence of futility to raise a factual issue and avoid summary judgment." The board also asserts as an alternative basis for affirmance that the trial court's grant of the board's motion for summary judgment was correct because Boise, having dropped its claim under Article I, section 18, of the Oregon Constitution, cannot, as a matter of law, establish a violation of the Fifth Amendment to the United States Constitution. See generally Suess Builders Co. v. City of Beaverton, 294 Or. 254, 656 P.2d 306 (1982) (a federal takings claim does not ripen until the claim under Article I, section 18 has been decided).[3] Finally, the board asserts that, regardless of whether it was entitled to summary judgment, Boise nonetheless was not entitled to summary judgment on the futility issue based on the exhibits that it submitted.
We turn first to the board's asserted alternative basis for affirmance based on Suess Builders Co., because it potentially would dispose of all issues in this case. As noted, this asserted basis for affirmance concerns a different theory of "unripeness" from the theory that the board pleaded as a defense and that served as the basis for our previous remand in Boise IV. In Boise II, 131 Or.App. at 540 n. 2, 886 P.2d 1033, we noted that ripeness issues are not jurisdictional, and that they generally must be presented as matters of defense. Here, while the board did assert a ripeness defense below, it was not the same ripeness defense it now sets forth. We conclude that an entirely new ripeness defense that was not raised in the lower court cannot serve as an alternative basis for affirmance on appeal. In Rogers v. Valley Bronze of Oregon, Inc., 178 Or.App. 64, 68-69, 35 P.3d 1102 (2001), we concluded that a new theory of defense of failure to state a claim under ORCP 21 A(8) could not be advanced in the first instance on appeal, given the rationale of Waddill v. Anchor Hocking, Inc., 330 Or. 376, 381, 8 P.3d 200 (2000), adhered to on recons, 331 Or. 595, 18 P.3d 1096 (2001), that ORCP 21 G(3) requires such a defense to be made "in any pleading permitted or ordered under Rule 13 B or by motion for judgment on the pleadings or at trial on the merits." That holding is controlling here. The board's ripeness defense based on Suess Builders Co. is, in essence, a defense of failure to state ultimate facts sufficient to constitute a claim, ORCP 21 A(8). As such, it must be raised under the circumstances specified in ORCP 21 G(3). In Rogers, we noted that an "appeal from an order granting a motion to dismiss is not one of the limited circumstances in which a defendant may assert a new defense of failure to state ultimate facts constituting a claim." 178 Or.App. at 69, 35 P.3d 1102. Neither is an appeal from a summary judgment.
We thus turn to the first issue raised in Boise's appealwhether the board was entitled to summary judgment. As noted, the trial court granted the board's motion based on its argument that Boise was estopped or precluded from demonstrating futility now, because it should have done so when it was litigating the administrative case, Boise I. For the following reason, we accept the board's concession that the trial court erred in granting its motion for summary judgment based on "issue preclusion." Issue preclusion applies when:
*603 "1. The issue in the two proceedings is identical.
"2. The issue was actually litigated and was essential to a final decision on the merits in the prior proceeding.
"3. The party sought to be precluded has had a full and fair opportunity to be heard on that issue.
"4. The party sought to be precluded was a party or was in privity with a party to the prior proceeding.
"5. The prior proceeding was the type of proceeding to which this court will give preclusive effect."
Nelson v. Emerald People's Utility Dist., 318 Or. 99, 104, 862 P.2d 1293 (1993) (citations omitted).
The problem here is with the first criterion. Boise I concerned the validity of a state administrative rule that, in turn, referenced the need for an ITP from the federal government. 131 Or.App. at 554-55, 886 P.2d 1041. While Boise certainly attempted to litigate aspects of "takings" in Boise I, it was seeking to have the portion of the administrative order that discussed regulatory takings declared invalid. Id. It was not, in the administrative proceeding, seeking just compensation for a taking by inverse condemnation. Thus, it did not, and was not required to, litigate whether such an inverse condemnation was "ripe" or whether an application for an ITP would have been "futile."[4]
Finally, we address the board's argument that the trial court, although stating that it was granting summary judgment on the basis of "issue preclusion," also granted the board's motion for summary judgment because Boise "failed to present sufficient evidence of futility to raise a factual issue and avoid summary judgment." We disagree with the board's characterization of the trial court's ruling. The board's motion for summary judgment simply did not attempt to put Boise's evidence to the test on that point. As noted above, the board's summary judgment argument was that Boise, as a matter of law, was precluded from making a futility showing it did not argue that Boise could not, as a matter of fact, actually show futility. Thus, we reject the board's argument that it was entitled to summary judgment based on the sufficiencyor lack thereofof Boise's evidence of futility.
The only remaining question, then, is whether the trial court erred in denying Boise's motion for summary judgment. That motionin contrast to the board's motion did raise the issue of whether Boise's evidence demonstrated that it was entitled to judgment as a matter of law on the board's ripeness defense because applying for an ITP would have been futile. We conclude that Boise's evidence was not sufficient to entitle it to summary judgment on that point.
As an initial matter, we point out that, in evaluating Boise's motion for summary judgment, we view the evidence in the light most favorable to the opposing party, the board. ORCP 47 C; see Jones v. General Motors Corp., 325 Or. 404, 939 P.2d 608 (1997). In light of that standard of review, many of Boise's arguments make little sense. Boise seems to be asserting that, in order to avoid summary judgment in Boise's favor, the board was required to show that "in 1993, the USFWS would have granted Boise an ITP" and that, "if an ITP had been issued, the board would have exercised its discretion and authorized the logging." Boise also suggests that "futility" is evaluated based on a "more likely than not" or "preponderance of the evidence" standard. Thus, Boise suggests, if the evidence demonstrates that it is more likely than not that the USFWS would have denied its application for an ITP in 1992 or 1993, then Boise was entitled to summary judgment as a matter of law. Boise's assertions demonstrate a fundamental misunderstanding not only of the "futility" doctrine, but of burdens of proof and the summary judgment process.
It is the plaintiff, not the defendant, who bears the burden of demonstrating futility. See, e.g., Curran v. ODOT, 151 Or.App. *604 781, 788, 951 P.2d 183 (1997) ("To prevail on a futility argument, plaintiffs had to submit evidence that would support a finding that there were no other reasonable locations for an access road."). Moreover, a plaintiff seeking summary judgment on a ripeness defense based on its evidence of futility must demonstrate that there is no genuine issue of material fact that the further actions that the defendants are contending are necessary for ripening of a claim would have been futile. It is at least possible that Boise could be said to have met such a standard if it were correct that futility can be established with evidence that it is "more likely than not" that USFWS would have denied an application for an ITP in 1992 or 1993. However, Boise cites no authority, and we are aware of none, that stands for the proposition that the test for futility is indeed that it is "more likely than not" that an application would have been denied.
Case law from the United States Supreme Court concerning the futility exception to the ripeness doctrine has not specified in great detail the quantum of evidence required to establish futility. However, that case law, as well as the plain meaning of the word "futile," lead to a conclusion that futile does not equate to "more likely than not." The common meaning of the word "futile" is "serving no useful purpose: INEFFECTIVE, FRUITLESS." Webster's Third New Int'l Dictionary 925 (unabridged ed. 1993). "Futility" is defined as "an abortive attempt or useless gesture." Id. The Court's most recent pronouncement on the subject, in Palazzolo v. Rhode Island, 533 U.S. 606, 626, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001), was that "federal ripeness rules do not require the submission of further and futile applications with other agencies." An examination of the facts of that case sheds light on what the Court meant by the word "futile." In Palazzolo, a landowner owned property that, under state law, was considered protected wetland on which filling was prohibited. 533 U.S. at 614, 121 S.Ct. 2448. There existed an exception only if a "compelling public purpose" would be served by the filling. Id. A state agency denied the landowner's proposed use, finding that it did not satisfy the "compelling public purpose" standard. In rejecting the board's argument that the landowner's claim was not ripe because he had not submitted applications for other types of development on the land, the Court stated:
"On the wetlands there can be no fill for any ordinary land use. There can be no fill for its own sake; no fill for a beach club, either rustic or upscale; no fill for a subdivision; no fill for any likely or foreseeable use. And with no fill there can be no structures and no development on the wetlands. Further permit applications were not necessary to establish this point."
Id. at 621, 121 S.Ct. 2448. In sum, further applications under those circumstances would have been futile because the state law in question allowed for only one exception, for a "compelling public purpose," and the board already had determined that that exception did not apply. Thus, "futile," as used by the Court in Palazzolo, meant "serving no useful purpose." Webster's at 925.
A comparison of Palazzolo to Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), is instructive. That case also concerned ripeness. There, a developer was attempting to develop a residential subdivision for which its predecessor had received a preliminary approval from local government. Williamson Planning Commission, 473 U.S. at 177, 105 S.Ct. 3108. Over the next few years, parts of the proposed development were given final approval and built. Id. at 178, 105 S.Ct. 3108. In light of mistakes discovered in the original preliminary approval, the local government asked the developer to submit a revised preliminary plat. The local government rejected the revised plat on the ground that it did not comply with various ordinances and regulations. Id. at 180-81, 105 S.Ct. 3108. The developer then brought an action pursuant to 42 U.S.C. section 1983, alleging a taking without just compensation. The Court held that the developer's claim was not ripe:
"[R]espondent did not then seek variances that would have allowed it to develop the property according to its proposed plat, notwithstanding the Commission's finding that the plat did not comply with the zoning ordinance and subdivision regulations.
*605 It appears that variances could have been granted to resolve at least five of the Commission's eight objections to the plat."
Williamson Planning Commission, 473 U.S. at 188, 105 S.Ct. 3108 (emphasis added). The Court rejected the developer's argument that denial of approval of the plat "was equivalent to a denial of variances." Id. It noted that the regulations in question clearly stated that "any condition shown on the plat which would require a variance will constitute grounds for disapproval of the plat." Id. at 189, 105 S.Ct. 3108. The Court concluded:
"Thus, in the face of respondent's refusal to follow the procedures for requesting a variance, and its refusal to provide specific information about the variances it would require, respondent hardly can maintain that the Commission's disapproval of the preliminary plat was equivalent to a final decision that no variances would be granted."
Id. at 190, 105 S.Ct. 3108. Thus, in Williamson Planning Commission, there was no "futility" exception to the ripeness requirement because it appeared to the Court that "variances could have been granted" that would have allowed the development to occur. 473 U.S. at 188, 105 S.Ct. 3108. The Court did not speculate on whether it was "more likely than not" that such variances would be granted. See also Suitum v. Tahoe Reg. Plan. Agency, 520 U.S. 725, 740, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997) (regulatory taking claim was ripe where "little or no uncertainty" remained as to the value of the petitioner's "transferable development rights"); MacDonald, Somers & Frates v. County of Yolo, 477 U.S. 340, 352, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986) (taking claim was not ripe where there was "le[ft] open the possibility that some development will be permitted").
In sum, while the Court's cases do not precisely quantify futility, the Court has found futility where development required filling but, under the laws, there could be "no fill for any likely or foreseeable use," Palazzolo, 473 U.S. at ____, 121 S.Ct. 2448, and where there was "little or no uncertainty" as to the value of certain development rights, Suitum, 520 U.S. at 740, 117 S.Ct. 1659; but not where there was left open "the possibility of some development," MacDonald, 477 U.S. at 352, 106 S.Ct. 2561; or where "variances could have been granted" that might have permitted development, Williamson Planning Commission, 473 U.S. at 188, 105 S.Ct. 3108. Synthesizing the holdings in those cases, we conclude that, where there remains an unexplored possibility under the regulations in question that development can occur, a claim is not ripe and the "futility" exception will not apply unless the party claiming futility can show that there was very little likelihoodor no likelihoodthat the development would have been approved had that party taken further steps to obtain approval.
With that standard in mind, we examine the exhibits that Boise submitted in support of its claim for summary judgment on the state's ripeness defense. Most of the exhibits simply are not relevant in any significant way to the question before us. Many contain bits and pieces of pleadings and arguments made in several other cases concerning timber harvesting. Those isolated excerpts do not in any way shed light on whether Boise could have obtained an incidental take permit from USFWS in 1992 or 1993 for harvesting timber in the Walker Creek Unit. Boise also submitted excerpts from an action it brought in federal court, apparently in 1998, in an effort to obtain an advisory opinion from USFWS as to whether it would be in violation of the Endangered Species Act were it to log the Walker Creek Unit.[5] The material submitted demonstrates nothing except that, as early as 1998, the USFWS had not taken a position on whether such a project would violate the act. Particularly in light of the fact that Boise did not actually apply for an ITP until November 1998,[6] we conclude *606 that that material simply is not relevant to determining the likelihood of Boise receiving an ITP in 1992 or 1993.
Two remaining exhibits submitted by Boise in support of its motion for summary judgment merit discussion. The first is a document labeled "Procedures Leading to Endangered Species Act Compliance for the Northern Spotted Owl, U.S. Fish and Wildlife Service, Region 1, July 1990." Boise does not dispute that those guidelines were rescinded in 1992, before the controversy at issue here arose, but appears to maintain that the USFWS might have continued to rely on them. These guidelines appear to relate primarily to planned and proposed sales of timber on federal lands. They contain numerous recommendations, only one of which is relevant here: "[I]f incidental take is identified as a concern on state or private lands, individual landowners should consider development of a habitat conservation plan." The document says nothing about the likelihood of the issuance of ITPs in any particular circumstances. While the recommendations do reflect a general concern for preservation of spotted owl habitat, even assuming that USFWS continued to consult those guidelines after they were rescinded, they do not provide any basis for speculating on whether a private landowner's application for an ITP would have been successful in 1992 or 1993. The other exhibit is part of a document entitled "Recovery Plan for the Northern Spotted Owl Draft," dated April 1992. The pages of the draft submitted by Boise detail a decline in northern spotted owl habitat in western Oregon. Again, while the draft expresses USFWS's concern for preserving owl habitat, it does not provide information pertaining to the likelihood of Boise obtaining an ITP.
We thus conclude that Boise was not entitled to summary judgment as a matter of law on the board's ripeness defense. In sum, neither party was entitled to summary judgment based on the theories that each advanced and on the exhibits submitted to the trial court.
Summary judgment in favor of defendant reversed and remanded.
NOTES
[*] Deits, C.J., vice Armstrong, J.
[1] We note that the legal landscape for "temporary" takings has changed significantly since this issue was initially presented to the trial court. See Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (a temporary restriction that merely causes a diminution in value of property is not a taking of the parcel as a whole; property is not rendered valueless by a temporary prohibition on economic use because the property will recover value as soon as the prohibition is lifted).
[2] The administrative rule under which the board had denied Boise's harvesting plan allowed an exception to the requirement for protecting northern spotted owl nesting sites if the operator had obtained an incidental take permit pursuant to the federal Endangered Species Act. Id. at 128, 991 P.2d 563.
[3] Accord Bailey v. U.S. Army Corps of Engineers, ___ F.Supp. ___, 2002 WL 31728947 (D.Minn. 2002) (federal takings claim was not ripe because plaintiff failed to pursue an inverse condemnation action based on state constitution).
[4] We note, moreover, that "futility" is a response to a "ripeness" defense. The board has not asserted here that it raised any sort of ripeness defense in Boise I. Thus, the board also has not demonstrated that "futility" was an issue that was "essential to a final decision on the merits in the prior proceeding." Nelson, 318 Or. at 104, 862 P.2d 1293.
[5] As noted above, by that point in time, the board was no longer taking the position that the unit should not be logged. By 1998, the owls that were present in 1992 and 1993 were no longer on the site. It appears, however, that later litigation between Boise and USFWS about the Walker Creek Unit may have concerned the presence of another owl found dead on the site long after the events at issue in this case. See generally Boise Cascade Corp. v. United States, 296 F.3d 1339 (Fed.Cir.2002).
[6] USFWS indicated that Boise could proceed with the logging in July 1999.
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277 F.Supp.2d 1020 (2003)
NIOBRARA RIVER RANCH, L.L.C., a Nebraska Limited Liability Company, and Lee M. Simmons, Plaintiffs,
v.
Royce HUBER, Refuge Manager, Ft. Niobrara Wildlife Refuge; Ron Cole, Refuge Supervisor; Ralph Morgen-weck, Regional Director for USF & W Region 6, Steven A. Williams, Director of United States Fish & Wildlife Service; Gale A. Norton, Secretary of the United States Department of the Interior, Defendants.
No. 4:03CV3247.
United States District Court, D. Nebraska.
August 19, 2003.
*1021 Paul D. Boeshart, Assistant United States Attorney, Lincoln, NE, for Gale A. Norton.
Victor E. Covalt, III, Ballew, Schneider Law Firm, Lincoln, NE, Kent C. Engdahl, Raynor, Rensch Law Firm, Omaha, NE, for Niobrara River Ranch.
MEMORANDUMAND ORDER
KOPF, District Judge.
This case presents the interesting question of whether the United States Fish and Wildlife Service (the FWS or Service) wrongly denied a license to conduct a commercial canoeing[1] enterprise on the *1022 stretch of the Niobrara river in Nebraska that runs through the Fort Niobrara National Wildlife Refuge. The primary question is whether FWS denied the permit arbitrarily, capriciously or contrary to the law.
After a bench trial, I find and conclude that the FWS was within the law when it denied the permit. I, therefore, dismiss the plaintiffs' claims with prejudice, and enter judgment on the merits for the defendants. My reasons, including the required Fed.R.Civ.P. 52 findings of facts and conclusions of law, are set forth below.[2]
I. BACKGROUND
Introduction
In order to understand the arguments of the parties, it is also necessary to understand both the facts and the history of the law regarding the federal government's interest in, and administration of, the Fort Niobrara National Wildlife Refuge (the Refuge), and the beautiful Niobrara river (the river) that runs through it. Presenting the "pure facts" and "historical legal facts" together for purposes of clarity, I proceed to that task next.
The Record
The administrative record subject to review is found at filing 24 (Ds.'s Index of Evid. Regarding Designation of Admin. R., including exhibits A through M) (hereinafter Ex. `___', Admin. R.) It was a made a part of the evidentiary trial record without objection.
Without objection, the court also took judicial notice for the purposes of evidence of filing 22 (Defendants' Index of Materials Submitted in Supp. of Request to Take Judicial Notice, including exhibits 101 through 110). This index contained various executive orders, extracts from FWS manuals, and Federal Register notices. Without objection, the court also took judicial notice of another executive order. (Trial Ex. 1 (Executive Order 12996).) Filing 22 and Trial Ex. 1 comprise the Judicial Notice Materials. The pertinent trial record thus consists of filing 22, filing 24 and exhibit one.[3]
The facts described below are derived from the foregoing sources. Historical legal facts described below are derived from the evidentiary trial record as well as the legal decisions, notices, executive orders, statutes, regulations and similar governmental materials regularly published by the United States.
The Site
The Refuge is 19,131 acres in size and located along both sides of the river in north-central Nebraska. (Ex. L, Admin. R., Fort Niobrara National Wildlife Refuge Comprehensive Conservation Plan, p. 1 (hereinafter "CCP, p. ___").) One district court has described the river as follows:
The Niobrara, a unique river with abundant resources that runs through north-central Nebraska, is known for its historical, paleontological, archaeological, and ecological treasures. Its forests abound with ponderosa pine, American elm, but [sic] oak, green ash, basswood, hackberry, and black walnut trees. There is striking bio-diversity among *1023 the vegetation, where 160 plant species from eastern, western, and northern forest ecosystems intermingle along the River valley. The Niobrara provides shelter and homes for bald eagles, turkeys, grouse, quails, doves, pheasants, ducks, and geese. It is also home to several threatened and endangered species, including the peregrine falcon, the interior least tern, the piping plover, and the whooping crane. Palaeontologists find a wealth of artifacts on the fossil beds along the Niobrara, including deposits from eighty species of extinct vertebrates. In one fossil excavation site, at least 146 vertebrate species were found. Of the 164 cataloged fossil excavation sites, 15 were rated as internationally significant, and 37 were rated nationally significant. The River was named one of the 10 best canoeing rivers in the nation by Backpacker magazine, and one of the eight special camping areas in the nation by Outside magazine.
National Park & Conservation Ass'n v. Stanton, 54 F.Supp.2d 7, 9-10 (D.D.C. 1999) (internal citations omitted).
The Refuge is owned by the United States of America and managed by the FWS. The Refuge was established by Executive Order No. 1461, signed by President William Howard Taft on January 11, 1912, as a "preserve and breeding ground for native birds." (Filing 22, Exhibit 101, Judicial Notice Materials) (hereinafter "Ex. `___', Jud. Not. Mat").[4]
Federal Regulation of the Refuge and River
As a National Wildlife Refuge, the Refuge is managed in accordance with the National Wildlife Refuge System Administration Act of 1966, Pub.L. No.89-669, 80 Stat. 927 (codified as amended in scattered sections of 16 U.S.C, largely at 16 U.S.C. §§ 668dd 668ee) (the "Refuge Act"). The mission of the National Wildlife Refuge System is "to administer a network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans." 16 U.S.C. § 668dd (a)(2) (emphasis added). The Refuge Act recognizes that compatible wildlife-dependent recreational uses within refuges "should be facilitated, subject to such restrictions or regulations as may be necessary, reasonable, and appropriate." Id. at § 668dd(a)(3)(D).
The Refuge Act, at 16 U.S.C. § 668dd(c), provides, in part:
No person shall ... in any area of the [National Wildlife Refuge] System ... enter, use, or otherwise occupy any such area for any purpose; unless such activities are performed by persons authorized to manage such area, or unless such activities are permitted either under subsection (d) of this section or by express provision of the law, proclamation, Executive order, or public land order establishing the area, or amendment thereof....
The foregoing statutory prohibition has been implemented by the FWS through regulation (50 C.F.R. §§ 27.11-97 (2002)), and boating is specifically regulated by 50 C.F.R. § 27.32. "The use of boats in national wildlife refuges is prohibited except *1024 as may be authorized under and subject to the requirements set forth below." Id.
The Refuge Act at 16 U.S.C. § 668dd(d)(1) further provides, in part:
The Secretary is authorized, under such regulations as he may prescribe, to
(A) permit the use of any area within the [National Wildlife Refuge] System for any purpose, including but not limited to hunting, fishing, public recreation and accommodations, and access whenever he determines that such uses are compatible with the major purposes for which such areas were established....
Public recreation was recognized by Congress as a legitimate use in the National Wildlife Refuge System in 16 U.S.C. § 460k. The Secretary of Interior was authorized therein to "administer such areas or parts thereof for public recreation when in his judgment public recreation can be an appropriate incidental or secondary use" and authorized him "to curtail public recreation use generally or certain types of public recreation use within individual areas or in portions thereof whenever he considers such action to be necessary...." Id.
In 1997, Congress amended the Refuge Act by enacting the National Wildlife Refuge System Improvement Act, Pub.L. No. 105-57, 111 Stat. 1252-1260 (codified as amended at 16 U.S.C. §§ 668dd-668ee). Congress mandated within the amended Refuge Act that the Secretary of the Interior, and thus the FWS, develop comprehensive conservation plans for each national wildlife refuge. Congress also directed the Service to "facilitate[]" subject to "restrictions" and "regulations" certain compatible recreational uses. 16 U.S.C. § 668dd(a)(1)(3)(D). The Service was also directed by Congress in section 668dd(e)(1)(E) to "manage the refuge or planning unit in a manner consistent with the plan...."
Since 1976, the FWS has been responsible for managing a 4,635-acre portion of the Refuge as a wilderness area pursuant to the Wilderness Act of 1964, 16 U.S.C. §§ 1131-1136. (CCP, p. 38.) Virtually all of the river used by the public on the Refuge is inside the wilderness area, as the wilderness boundary is a few hundred yards downstream from the launch point below Cornell Dam, which is owned by the FWS. A wilderness area is to be managed by the Service "to preserve its natural conditions...." 16 U.S.C. § 1131(c). River recreation, such as canoeing, is clearly permissible as long as it is managed by the FWS to preserve "outstanding opportunities for solitude or a primitive and unconfined type of recreation" experience in each wilderness. 16 U.S.C. § 1131(c)(2).
In 1991, a 76-mile stretch of the Niobrara river, including the entire stretch of the river within the refuge boundaries, was designated "scenic" under the National Wild and Scenic Rivers Act of 1968. 16 U.S.C. §§ 1271-1287. Such rivers "shall be preserved in free-flowing condition, and ... they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations." 16 U.S.C. § 1271. The Service is given the express responsibility to ensure these protections are enforced. "[T]he 40-mile segment designated by this subparagraph located within the [Refuge] shall continue to be managed by the Secretary [of the Interior] through the Director of the United States Fish and Wildlife Service." 16 U.S.C. § 1274(a)(117)(A).
The regulation that governs the issuance of Special Use Permits for commercial uses inside refuges, the type of permit at issue in this case, reads:
Soliciting business or conducting a commercial enterprise on any national wildlife *1025 refuge is prohibited except as may be authorized by special permit.
50 C.F.R. § 27.97 (2002) (emphasis added).
The Conservation Plan and the Moratorium
Under the amendments to the Refuge Act, enacted in 1997, the Service was required to develop comprehensive conservation plans (CCPs) for all refuges within 15 years. Title 16 U.S.C. § 668dd(e)(1)(A) implemented Congress's mandate for refuge comprehensive conservation plans:
[T]he Secretary shall
(i) propose a comprehensive conservation plan for each refuge ...;
(ii) publish a notice of opportunity for public comment in the Federal Register on each proposed conservation plan; [and]
(iii) issue a final conservation plan for each planning unit consistent with the provisions of this Act and, to the extent practicable, consistent with fish and wildlife conservation plans of the State in which the refuge is located....
Each CCP was to be proposed in the Federal Register for public comment. Upon completion of a CCP, the Service was directed to manage the refuge in a manner consistent with the CCP and was directed to revise the plan at any time conditions that effect the Refuge are deemed to have changed significantly. 16 U.S.C. § 668dd(e)(1)(E).
The Service followed the Refuge Act's direction regarding the development of a CCP for the Refuge. Although finalized in September of 1999, the Refuge CCP at issue here was originally published in the Federal Register on May 4, 1999, at 64 F.R. 23852 (Ex. 109, Jud.Not.Mat.), and subsequently extended for comment and published on July 15, 1999, at 64 F.R. 38210 (Ex. 110, Jud.Not.Mat.). In the summary page of the CCP it was noted that the CCP was an updated and revised version of the Draft Comprehensive Conservation Plan issued earlier in 1999. (CCP, p. 1.)
The public was involved in the process that led to the development of the draft CCP and the final CCP through a various meetings, personal communications and distribution of the draft plan. (CCP, p. 25). In addition, a period totaling 105 days was granted to interested parties to provide written comments to the draft CCP, before the final plan was issued in September of 1999. (Id). The Service made various changes to the draft CCP and included them in the final CCP as a result of the comments and information received during the comment period. (Id).
Since 1976, when the river was designated as wilderness pursuant to the Wilderness Act, the number of people canoeing the river within the Refuge appears to have steadily increased (at least until recently). In the CCP, the Service found that between 1993 and 1997 the rate of increase was steep (about 30%). It rose from about 23,000 visitations to about 30,000 visitations annually in just four years. (CCP, p. 8.)
In this regard, the CCP states:
Canoeing the Niobrara River was referred to as "increasing in popularity" in 1972. However, the estimated 2,960 activity hours reported in 1972 in the Fort Niobrara Wilderness Study was not considered excessive to prevent inclusion of the River corridor in the area to be designated as wilderness pursuant to criteria under the Wilderness Act. Since then, the number of people canoeing and tubing down the Niobrara River within Fort Niobrara NWR has steadily increased. Beginning in 1993, outfitters and the Service recorded the number of people canoeing and tubing the River through the Refuge. This information *1026 showing the increase in floating use is found in Figure 1. Increased River use has raised concerns about disturbance to wildlife, impacts on vegetation, the quality of experience for Refuge visitors, and compatibility with the Wilderness Act and the Wild and Scenic River Act. Management began to address River recreation concerns through the Environmental Assessment process in 1994 and efforts are ongoing.
(CCP, p. 8.)
Figure 1, referred to in the foregoing quotation, and presented in the CCP, is reproduced below:
(Id.)
In the CCP, the Service announced that it was instituting a temporary moratorium on new outfitters. (CCP, p. 21). This temporary limit, coupled with strict enforcement of the laws governing floating the river, was instituted to stem the apparent overcrowding situation on the stretch of the river through the Refuge. As stated in the CCP, until a study could be completed, the temporary moratorium was, in the Service's judgment, the most logical way of controlling apparent overcrowding without depriving all visitors of the experience of canoeing the river. The Service said:
This temporary measure has been criticized as unfair, inadequate, and without basis on hard evidence and science. However, the Service believes that this interim management policy is better than complete shutdown of River use on this stretch of the Niobrara River (worst case scenario) as discontinuing all use would be no more justifiable than allowing uncontrolled growth of use. At this time, there is no logic in depriving all visitors of the wilderness experience.
(CCP, p. 21.)
The development of the CCP, which included a public NEPA process resulting in an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI), was deemed necessary by the Refuge Act and the Service to guide management of the Refuge over the next 15 years. (CCP, pp. 1, 113-21.) Included in the CCP was the call for the Service to institute a management plan to deal with the recreational use of the river as it flows through the Refuge.
To be specific, in 1999 the CCP stated that the Service would prepare a River Management Plan (RMP or Plan) within two years. (CCP, p. 21). Despite this written assurance, the RMP has not yet been completed. The Plan, which is now scheduled to be in place prior to the 2004 river season, will be based largely on scientific research conducted during the past four years by researchers from Kansas State University. (Ex. M, Admin.R.)
*1027 These researchers are studying the impact river users have on the riparian habitats supporting wildlife and vegetation along the river within the Refuge. The results of this research, coupled with information gained from talking to Refuge visitors, outfitters, Refuge staff and others, will form the knowledge base for the RMP. The Plan will define acceptable use levels for weekdays and weekends that meet the legal mandate. (CCP, p. 21.)
The defendants concede that some canoeing is a compatible use within the Refuge and on the river. (CCP, p. 94 ("River recreation is compatible"); Filing 23, Br. in Supp. of Ds.'s Mot. to Dismiss at 9, 18.) However, that concession is limited by express caveats, including the stipulation in the CCP that "[d]uring the development of the River Recreation Plan, no additional permits for outfitting on the Refuge will be issued and River use will be capped at 1998 levels." (CCP, p. 94).[5]
The Permit Application and the Denial
On about November 26, 2003, the plaintiffs filed their application for a Special Use Permit (SUP) with FWS. (Ex. A, Admin.R.) It was addressed to Mr. Royce Huber, the Refuge manager.
The plaintiffs first observed that:
Applicant understands that river use on weekends in the summer was capped at 1998 levels. (See "Ft. Niobrara National Wildlife Refuge Comprehensive Conservation Plan" "CCP") at page 51; see also "CCP" appendix E, "Comparability Determinations", p. 100. According to annual river use surveys compiled by the Ft. Niobrara National Wildlife Refuge, the total number of vessels launched in 1998 from both outfitters and privately was 16,253; total number of people was 27,619. The years 1999 and 2000 show a steady decline in usage and in the river use summary of 2001, the total number of vessels was 10,173; the number of people was 15,741. The number of outfitters were limited to eleven, as a "Moratorium" according to Outfitter Usage Reports for 2002. Only eight outfitters applied for special use permits for 2002.
Based on this data, it appears that the 1998 cap on river usage has never been violated up to the year 2002 and the number of outfitters has also decreased. In fact, granting this permit application will not and cannot result in any violation of the caps as imposed by the CCP. Thus, the Applicant's request for a special use permit will not violate these caps on use levels or outfitter numbers over the 1998 standards.
(Id.)
Then, the plaintiffs framed and limited their request this way:
Applicant Niobrara River Ranch, LLC requests 60 watercraft vessel decals. Applicant agrees to limit the number of customers using its service through the Refuge to not more than 30 per morning and 30 per afternoon slots for each Saturday and Sunday from May 1 to October 1. Applicants agree not to request any additional annual passes, as allowed under "Special Conditions", section 17, paragraph 6 for year 2003.
(Id. at 2.)
On January 6, 2003, Mr. Huber denied the permit. (Ex. C, Admin.R.) In his two page letter, Mr. Huber first provided the background for his denial:
Due to the rapidly increasing commercial use of the Niobrara River on the Refuge, the U.S. Fish and Wildlife Service (Service) became concerned about the impacts on wildlife resources and the *1028 quality and safety of a wilderness experience by the public. In 1993, a moratorium was issued allowing no new commercial operations, other than the 11 commercial outfitters that were in place at the time of the moratorium. Since that time, there have been requests for SUPs to provide these commercial privileges but none have been granted nor have any permits been transferred to new owners through purchase of existing businesses. In 1999, with public input and involvement, the Service completed the Comprehensive Conservation Plan (CCP) which directs the management of Fort Niobrara National Wildlife Refuge for the next 12 to 15 years. In that document, the Service identified a need to develop a "River Management Plan" which will address future commercial outfitting privileges on the Refuge. The CCP also addressed a need for the Service to conduct an avian study to determine what affect river recreation is having on avifauna. The Service contracted with Kansas State University to conduct this study which tentatively is to be completed in 2003. This document along with other relative information will be used by the Service to complete the "River Management Plan" and a "Wilderness Management Plan". All of these measures are necessary to ensure compliance with the National Wildlife Refuge System Improvement Act of 1997 which states that wildlife conservation is the priority of the System lands and that the Secretary of Interior shall ensure that the biological integrity, diversity and environmental health of refuge lands are maintained.
(Id. at 1.)
Mr. Huber then stated that "the Service cannot issue [the permit] to you or other interested individuals or entities until the Service has acquired the information and completed the plans identified above." (Id. at 2.) Mr. Huber advised the plaintiffs that they could appeal his decision to Ron Cole, the State Supervisor of the FWS. (Id.)
On January 10, 2003, the plaintiffs appealed Huber's decision to Mr. Cole. (Ex. D, Admin.R.) In particular, they asserted that:
As we discussed, my client, Niobrara River Ranch, operates [an] upscale resort with cabins near the river downstream from the Refuge. Mr. Lee M. Simmons, owner of Niobrara River Ranch LLC and its general manager, owns the land on both sides of the river from near Berry Bridge to Smith Falls. The Special Use Permit is particularly designed to allow it to use that portion of the river to enhance the Niobrara experience for Niobrara River Ranch's guests without any impingement upon the terms or the standards set under the CCP.
Recreational use of the river has a long standing history. It pre-dates even the creation of the Refuge itself. Recreational use of the river was expressly approved as a compatible use in the CCP. These two facts mean that restricting access thus must be justified. Without such justification, restrictions are arbitrary and capricious by definition.
As you know, the Ft. Niobrara National Wildlife Refuge CCP instituted a "temporary" cap for canoeing on the river through the Refuge at 1998 numbers which were approximately 27,619 visitors through eleven (11) outfitters. It is my understanding that in year 2002 that there were only nine (9) outfitters still operating through the Refuge. The number of people accessing the river at the Cornell Dam site in 2001 was 15,741. We expect final reports for 2002 to be around 15,000 visitors. Thus, if granted, my client's utilization of access under *1029 the Special Use Application mathematically cannot cause usage to exceed the cap on total visitors or the number of outfitters using the river. Our Special Use Permit also addresses issues of overcrowding and actually proposes a better system of river management than is presently in place. It exceeds the terms and condition imposed in 2002 on the "grandfathered" outfitters.
The "two-year moratorium" was imposed under the CCP adopted in September, 1999 to allow completion of the River Management Plan and their Wilderness Stewardship Plan. These Plans are more than two years past due and at least two more years of delay are projected. Thus, the "moratorium" has become a permanent restriction on prior lawful use. This is having a detrimental impact on the economy of Cherry County and surrounding areas. As we discussed, Yucca Dunes, an upscale outfitter and operator of a retail store in Valentine, is closing its doors because it could not compete without access to the river through the Refuge. Their permit application was denied by your office a few years ago. It is a sad consequence that businesses of the quality of Yucca Dunes must fail while lesser operators enjoy huge profits from their special status as permit holders by virtue of the "moratorium."
(Id. at 1-2.) The plaintiffs supplemented their appeal in a another detailed letter dated January 31, 2003. (Ex. F, Admin.R.)
On January 31, 2003, Mr. Cole denied the appeal. (Ex. E, Admin.R.)[6] He explained his reasons for the denial this way:
Thank you for your letter of January 10, 2003, appealing the denial issued to your client by the Project Leader at Fort Niobrara National Wildlife Refuge (NWR). I have carefully read the letter of January 6, which denies your client's request for a canoe outfitter Special Use Permit (SUP) along the Niobrara River within the NWR. I have carefully read your thoughtful appeal of this denial, and have also reflected on our phone conversation of January 8. After considerable thought, I concur with the decision to deny your request for the SUP. Denial of your request is consistent with similar SUP requests the Refuge has received since the Comprehensive Conservation Plan (CCP) was completed in 1999. The CCP places a cap on weekend outfitters and also prohibits the issuance of SUP's to new outfitters. The purpose of this was to diminish impacts to the resource by reducing the high peak use periods that occurred on weekends by dispersing river traffic and spreading it out over the entire week. These and other measures of the 1999 CCP ensure compliance with the 1997 National Wildlife Refuge System Improvement Act, which states that wildlife conservation is the priority of refuge lands and that the Secretary of Interior shall ensure that the biological integrity, diversity, and environmental health of refuge lands is maintained.
The crux of this issue is not your client's ability to perform or your client's potential revenue losses. It is not about lost opportunity to the public, for there are still thousands of river recreationists from all over Nebraska and other states enjoying the Niobrara River by paying professional outfitters to guide them along its waters as it winds through the Refuge and beyond. What is central to this issue is the inappropriateness for *1030 the Service to issue new Special Use Permits to new clients until we have a better understanding of the impacts that cumulative river recreation is having on the environment. We need to understand what the threshold levels for these activities are, what the impacts on wildlife resources are, and what the impacts on the river wilderness values will be. As directed by the CCP, we are developing a River Management Plan (RMP) and associated Wilderness Stewardship Plan (WSP). You accurately point out in your letter that neither of these is complete and both are significantly behind schedule. To complete these plans, it was decided to conduct a peer-reviewed study by a noted university to gather the information needed to write effective step-down plans. Kansas State University was selected as the principle [sic] investigator and they have been populating the database with cutting edge information for the past 2½ years. It is anticipated they will be providing us a draft of this study by spring of this year. Our RMP and WSP will reflect the high quality of this study. A thorough understanding of all the impacts will allow us to continue to provide quality recreation for river enthusiasts and still maintain the wildlife and wilderness values the river users come to expect. In the meantime, the Niobrara River continues to be enjoyed by thousands of people each year. River outfitters continue to provide their valuable services both on and off the Refuge. We will diligently pursue the completion of the RMP and WSP. These plans will help guide us through the waters of sound river management. In many ways, these plans serve the same purpose to our stewardship of the Niobrara River as good river guides do to their clients. Like a seasoned guide, if the plans are well prepared, the float will be much easier and enjoyable for all. I hope that you and your client will be active participants in the formation of these plans.
(Id. at 1-2.)
On February 3, 2003, the plaintiffs appealed Mr. Cole's denial decision to Ralph Morgenweck, Regional Director of FWS in Denver. (Ex. G, Admin.R.) They made essentially the same arguments that they had made to Mr. Huber and Mr. Cole. In addition, they requested oral argument.
The request for oral argument was granted on March 3, 2003. (Ex. I, Admin.R.) It appears that the argument was heard by Mr. Morgenweck on May 1, 2003. (Ex. J, Admin.R.)
On May 22, 2003, counsel for the plaintiffs supplemented the record with the following:
I am enclosing four pages produced by Mr. Huber showing a continued decline of usage of the Ft. Niobrara NWR launch site in year 2002. He reports that a total of 15,185 persons used the launch site in 2002. This is slightly less than 55% of the number of people who used the launch in 1998, the "base year" for the "moratorium." That is, you have had a 45% decline in the number of people observing the scenic river in the NWR since the moratorium was put in place. As I emphasized in our meeting, the 1996 act encourages and makes increased family oriented recreational use of wildlife refuge system a priority. This stands as a stark contrast to the decreased use of the Ft. Niobrara NWR caused by the CCP and Mr. Huber's management.
I also wish to emphasize that 13,999 people used outfitters in 2002 to go through the Ft. Niobrara National Wildlife Refuge as compared to 1,186 who did not use outfitters. This means that 92.19% of the persons viewing the scenic river through the Ft. Niobrara National *1031 Wildlife Refuge depended on an outfitter.
(Ex. K, Admin. R. (emphasis in original).)
On May 30, 2003, Mr. Morgenweck denied the appeal. (Ex. M, Admin. R.) He gave detailed reasons for his decision, and they were these:
In 1999, the Fish and Wildlife Service (Service) completed the Comprehensive Conservation Plan (CCP) for Fort Niobrara. The purpose of the CCP process, as it relates to the 1997 Refuge Improvement Act, is to provide management plans for all the National Wildlife Refuges (NWR). One of the many issues which the CCP addressed was how to develop a reasonable and fair way to determine appropriate limits on usage of the Niobrara River downstream of the Cornell Dam.
The Service is committed through the CCP process that no new SUPs would be issued; they made verbal agreement with the existing outfitters to limit specific types of uses on the existing permits until a final River Management Plan (RMP) is produced.
In your written and oral presentations, you raise several concerns. You state that the Service does not have the authority to control activities on the Refuge portion of the Niobrara River. The Service was accorded exclusive management authority by Congress as part of the Wildlife and Scenic River System on the Refuge portion of the river and the National Park Service (NPS) on the remainder of the river. By law, Congress holds the Service and NPS accountable for the preservation and management of this national resource.
You state you do not believe the Service has the authority to require an SUP and that commercial outfitting is a compatible use, not a special use, and thus requires only a recreational access fee. Under 50 CFR 27.97 "... Conducting a commercial enterprise on any NWR can only be authorized by special permit." Therefore, the Service is required, by law, to issue an SUP for commercial outfitting and guiding on Fort Niobrara NWR. Refuge lands are public property and the government is directed by law on how to administer this property. Use of refuge lands as granted by an SUP is a privilege, not a right; otherwise all citizens could use refuge lands any way they see fit, often jeopardizing the purposes for which the refuge was established.
You state that the moratorium on guiding, as established in 1993 and supported in the 1999 CCP, is unlawful. The National Wildlife Refuge System (NWRS) Administration Act (16 U.S.C. 668dd, et seq.) and rules found in 50 CFR Chapter I, Subchapter C, close refuge land and water to all forms of public use, including entry, until the Service takes affirmative action to permit use. Subpart C, 25.31 states whenever public access or use is permitted, or that access or use is curtailed, the public may be notified by the following methods:
(a) Official signs posted conspicuously at appropriate intervals and locations,
(b) Special regulations issued under the provisions of 26.33 of the Subchapter C,
(c) Maps available in the office of the Refuge Manager, Regional Director, or Area Director, or
(d) Other appropriate methods which will give the public actual or constructive notice of the permitted or curtailed public access, use or recreational activity, i.e., local newspaper, radio, and television.
In 1999, the Service committed in the CCP that no new SUPs would be issued. This decision is directly supported by the Refuge Improvement Act of 1997, to *1032 "... ensure that the biological integrity, diversity, and environmental health of the System are maintained for the benefit of present and future generations of Americans."
You state that you believe that outfitter SUPs have been issued to "favorites" and that the Service "subtly discourages" outfitters from using their permits. It is refuge policy to issue SUP's using a variety of procedures including lottery, chronological order, reservation systems, and open bid process. Reissuing SUPs to existing users (providing their past performance meets the conditions of the permit) year after year is common practice among many government agencies.
You state that the RMP has yet to be completed. I am pleased to report that this study by Kansas State University has just concluded, and that a draft will be provided for peer review in July of this year. I would like to provide you a brief update on what the principle [sic] investigator has relayed to us thus far. This researcher (a Graduate Research Assistant, Kansas Cooperative Fish and Wildlife Research Unit, Kansas State University) has completed the first three or four chapters of his thesis and will submit them to his major advisor in early June. He continues to work with a statistician on the very large behavioral data set (45,000 observations).
Some draft results reported thus far:
Field Season 2000-Community Level Responses (Pilot Study)
Several bird species were found to be sensitive to recreation disturbance along the river, including common yellowthroat, eastern kingbird, belted kingfisher, great blue heron, spotted sandpiper, and wood duck.
Field Season 2001 and 2002-Population Level Responses
Ground nesting songbirds
Predators were shown to increase their presence in the river corridor as the avian breeding season progressed for pairing, to nesting, to fledgling stages. None of these results differed in recreated vs. non-recreated zones of the Refuge.
Overall, birds with a nesting ecology similar to the common yellowthroat most likely do not pull off many young during the breeding season due to high depredation rates and a good chance of the presence of predators in their nesting habitat. This is most likely due to the regional habitat characteristics found along the Niobrara River. Birds that use these unique habitats key in on them and use them to attempt a successful breeding season. However, due to the limited extent of these habitats, and the fact that these animals are "packing in" to these areas, it makes the river corridor attractive to predators. The river is a good source of cooler refugia and water, which also attracts other wildlife. At the current river recreation level (15,000-17,500 people annually), songbird breeding and presence of predatorial species within the corridor are relatively unaffected by recreation. However, if human activity increases in the future, there is literature supporting that predators (both avian and mammalian) may be attracted to this, thus causing even more predator activity within the immediate corridor and potentially leading to even less of an already meager nest success rate in ground nesting songbirds such as the common yellowthroat. Also, the presence of more people may increase the foot traffic in riparian habitant that is immediately *1033 adjacent to the river which could negatively impact habitats and create a source of disturbance to birds and other wildlife using these areas for breeding and refuge.
The researcher hopes to complete his thesis and defend it at the end of June, followed by a report/presentation at Fort Niobrara NWR in July. However, the avian behavior/river recreation use data (Chapter 4) is a critical component of the project that must be completed before a final report is presented to the Service.
The RMP, when complete, will reflect the results of this study, incorporating all biological and river use data available through an open public process. It will also include data referenced in your letter of May 22. It will be critical that actual river use continue to be monitored. Special Use Permits will be issued in a way that allows for optimum management of river use. The RMP will allow for a thorough analysis of how permittees are selected. We anticipate that a new SUP selection process will be implemented for the upcoming 2004 season.
Our goal is to provide quality recreation for river enthusiasts and still maintain the wildlife and wilderness values the river users come to expect. We will diligently pursue the completion of the RMP and hope that you will be a participant in the public review of this planning process.
(Id. at 1-4 (emphasis in original).)
These Proceedings
This suit followed on June 26, 2003. The complaint sought declaratory and injunctive relief.[7] (Filing 1.) On July 21, 2003, the court, at the request of the parties, expedited the trial of this case. (Filing 19). Trial, immediately followed by oral argument, was held in the late afternoon and evening of August 12, 2003.
II. ANALYSIS
Introduction
Ultimately, I conclude that the Service's denial of the permit was lawful even though the Service has been late in the development of its promised river management plan. See, e.g., United States v. Hells Canyon Guide Serv., 660 F.2d 735, 737 (9th Cir.1981) (even though the Secretary of Agriculture had not promulgated regulations regarding the use of a national recreation area and instead had imposed a moratorium on commercial float permits, denial of a license to conduct boating business by guide service was lawful and the district court properly enjoined the operator from conducting his boating operation on the Snake River in the Hells Canyon National Recreation Area.) My explanation for this decision is set forth in the following portion of this memorandum.
The plaintiffs argue that the license moratorium and the permit denial were arbitrary and capricious and contrary to the law. They also make a Tenth Amendment claim that I summarily deny along with any other claims that were not briefed.[8]
*1034 Jurisdiction and Scope of Review
As a preliminary matter, it is necessary to address the government's jurisdictional argument. An introductory explanation of the law regarding the "arbitrary, capricious and contrary to law" standard is also helpful.
In cases such as this, where jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 2201, this court's standard of review is under the Administrative Procedure Act (APA). See 5 U.S.C. §§ 701-706. Where judicial review is authorized, this court must limit its review to a determination of whether the record of the administrative proceedings reveals that the agency action was arbitrary, capricious, an abuse of discretion, or otherwise contrary to the law. 5 U.S.C. § 706(2)(A).
However, where the underlying statute precludes judicial review or the agency action in question "is committed to agency discretion by law" judicial review is prohibited. 5 U.S.C. § 701(a)(1)-(2). Thus, "before any review at all may be had [under the APA], a party must first clear the hurdle of § 701(a)." Heckler v. Chaney, 470 U.S. 821, 828, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (The Food and Drug Administration's decision not to take enforcement action to prevent the use of drugs for the purposes of implementing the death penalty by means of lethal injection was not subject to review).
Here, the government contends, although not vigorously[9], that the discretion afforded the Service under 16 U.S.C. § 668dd(e)(1)(A)to issue the moratorium as a part of the comprehensive conservation planis so broad as be beyond review. In other words, the government argues that under 5 U.S.C. § 701(a)(2) judicial review is unavailable. I disagree.
The statute, 16 U.S.C. § 668dd(e)(1)(A), requires the FWS to issue a "comprehensive conservation plan." While the discretion afforded the Service in the preparation and administration of the plan is clearly broad, it is not without enforceable boundaries. For example, the statute requires the FWS to manage a refuge "consistent with the [comprehensive conservation] plan," 16 U.S.C. § 668dd(e)(1)(E), and the FWS is specifically required to identify and describe "opportunities for compatible wildlife-dependent recreational uses." 16 U.S.C. § 668dd(e)(2)(F). The statute also specifies that "compatible wildlife-dependent recreational uses ... shall receive priority consideration in refuge planning and management...." 16 U.S.C. § 668dd(a)(3)(C). Indeed, when the FWS determines that "a proposed wildlife dependent recreational use is a compatible use within a refuge, that activity should be facilitated, subject to such restrictions or regulations as may be necessary, reasonable and appropriate." 16 U.S.C. § 668dd(a)(3)(D).
The Refuge Act describes "compatible use" to include such "wildlife dependent recreational uses" as "will not materially interfere with or detract from the fulfillment of ... the purposes of the refuge." 16 U.S.C. § 668ee(1). This "compatible use" determination must be made by "sound professional judgment," id., and that term is defined, in part, to mean a conclusion "that is consistent with principles of sound fish and wildlife management and administration, [and] available science and resources...." 16 U.S.C. § 668ee(3). The terms "wildlife-dependent recreation" and "wildlife dependent recreational use" are defined to mean a "use of a refuge involving hunting, fishing, wildlife observation *1035 and photography, or environmental interpretation." 16 U.S.C. 668ee(2).
In short, the law requires the Service to (a) to prepare a CCP; (b) manage the refuge in accordance with the CCP; and (c) pursuant to the CPP, and among many other values, identify, facilitate, give priority to and regulate compatible wildlife-dependent recreational uses. The law sets a specific standard of care for the FWS employees to meet when identifying, facilitating, planning for and regulating those uses. Consequently, the discretion of the FWS is not absolute or unfettered and judicial review is not precluded under 5 U.S.C. § 701(a)(2). Thus, judicial review is available to determine whether Service's actions were arbitrary, capricious, an abuse of discretion, or otherwise contrary to the law. 5 U.S.C. § 706(2)(A).
There being no bar to judicial review, I turn then to the scope of my review under the APA. As the word "comprehensive" suggests, 16 U.S.C. § 668dd(e), requiring the development and implementation of a "comprehensive conservation plan," of necessity also requires the FWS to consider and balance a wide variety of competing interests such as the overall purposes of the refuge, biological and botanical assets, archaeological and cultural values, and compatible wildlife-dependent recreational uses. 16 U.S.C. § 668dd(e)(2)(A)-(F). The statute cannot be read to provide an answer about how these interests must ultimately be harmonized at a given refuge, and, indeed, that is why the FWS was required by Congress to prepare a plan for each refuge to determine how each refuge shall be used.
It is this inherent and intended statutory ambiguitythe proper use of the refugethat requires the Service be given very wide, or so-called Chevron, deference when I review the CCP and its implementation, including the related license denial. See Chevron U.S.A. Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("`The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress'" and administrative agencies will thus be afforded wide discretion when filling those gaps) (citations omitted). Wide deference is particularly appropriate here because the FWS must not only consider for itself the statutory factors, but it must also, pursuant to 16 U.S.C. § 668dd(e)(1)(A)(ii), solicit and evaluate public comments regarding the development of the comprehensive conservation plan. See, e.g., United States v. Mead Corp., 533 U.S. 218, 230, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (an "overwhelming number" of Supreme Court cases apply Chevron deference to the results of notice-and-comment rule making).
The deference owed administrative agencies in cases like this is "substantial." Central S.D. Coop. Grazing Dist. v. Secretary of the United States Dept. of Agric., 266 F.3d 889, 894-95 (8th Cir.2001) (a decision by the Forest Service to reduce cattle stocking levels pursuant to a management plan for use of the Fort Pierre National Grasslands was accorded Chevron deference and affirmed). However, "deference" does not mean "rubber stamp." Among other things, even when Chevron deference is due, a court should ask whether the agency: (1) has relied on factors which Congress has not intended it to consider; (2) entirely failed to consider an important aspect of the problem; (3) offered an explanation for its decision that runs counter to the evidence before the agency; or (4) has rendered a decision that is so implausible that it could not be ascribed to a difference in view or the product of agency *1036 expertise. Id. at 894 (citation and quotation omitted).
With these principles in mind, I turn to the two arguments of the plaintiffs which merit discussion. That examination follows.
The Validity of the Moratorium
The plaintiffs first attack the moratorium, reasoning that if it fails, then the denial of the license will fail as well because that decision was based upon the moratorium. I conclude that the moratorium was lawful.
As earlier indicated, the Service found that river usage had dramatically increased over a short period of time. In the CCP, the Service found that between 1993 and 1997 the rate of increase was steep (about 30%). It rose from about 23,000 visitations to about 30,000 visitations annually in just four years. (CCP, p. 8.)
The moratorium challenged by the plaintiffs and the reasons for it are described in detail in the CCP. (E.g., CCP, pp. 21, 45.) In particular, the Service gave this long explanation:
Recreational Use and Resources of the Niobrara River
Many people, groups, and agencies were concerned, for various reasons, about the Service's current and proposed policy on access to and management of the Niobrara River resources for recreational use.
Limiting Access to the Niobrara River: The Service has grown increasingly concerned over the possible environmental effects that the current burgeoning use of the Niobrara River resources by River floaters may be having on riparian and upland Refuge resources, as well as on wilderness values.
Recreational canoeing and tubing use of the stretch of the Niobrara River designated as scenic by Congress has increased dramatically in the past few years. In response to this, the Service has attempted to alleviate effects on Refuge resources (riparian habitats and the wildlife that depends upon it, wilderness values, etc.) by placing a temporary limit on the number of outfitter Special Use Permits issued by the Refuge and a cap on use while the environmental effects of this use are assessed. Furthermore, this temporary limit in use is expected to contain the over-crowding situation that has developed on this stretch of the Niobrara River and degraded the quality of wilderness experience. This temporary measure has been criticized as unfair, inadequate, and without basis on hard evidence and science. However, the Service believes that this interim management policy is better than complete shutdown of River use on this stretch of the Niobrara River (worst case scenario) as discontinuing all use would be no more justifiable than allowing uncontrolled growth of use. At this time, there is no logic in depriving all visitors of the wilderness experience.
Management Plan: The Service will prepare a Management Plan in the next two years dealing exclusively with the recreational use of the scenic Niobrara River as it flows through the Refuge. This Plan will be prepared by the Service with the participation of all interested parties, such as the National Park Service, the Niobrara Council, all River outfitters interested in participating, and any city and county officials interested in being part of this effort. The Plan will define acceptable use levels for weekdays and weekends that meet legal mandates. Also, actions to be taken when uses exceed threshold levels or negatively impact resources, and wilderness values will be clearly defined. *1037 In the interim, River use will be capped at the 1998 levels and the moratorium on new outfitters will continue. Weekend and weekday use will be monitored along with habitat, wildlife, erosion, and social parameters to determine threshold levels.
It is not the intention of the Service to obstruct the development of a recreational and revenue-producing enterprise such as River use outfitting, but rather to ensure that this use continues to be compatible with Refuge goals and objectives and with the requirements of the Wild and Scenic River Act and the Wilderness Act promulgated by Congress for the benefit of the American people. The Service believes that the wise use of the River for recreational purposes will, in the end, be beneficial, not only to wildlife, but to the community as well. It is our belief that any decrease in use by River floaters is caused more by a degrading "wilderness" and "wild and scenic" experience caused by too many visitors at certain times of the year, rather than by the Service's limits on Special Use Permits. Ensuring visitors a wildlife-oriented as well as a wilderness experience when using the River would also ensure a healthy tourist industry for the City of Valentine and Cherry County.
While not presently documented on Fort Niobrara NWR riparian habitats along the wild and scenic Niobrara River, a large body of research exists (mostly from studies conducted in California, Colorado and in eastern states) on the issue of effects on migratory birds as public use of rivers increases. Heavy recreation use of riparian areas during the summer (bird breeding season) can have devastating effects on the avifauna, during all portions of their natural history cycle. Riparian habitats are one of the most important wildlife habitats occurring in the Service's Region 6. Seventy-five percent of the terrestrial species occurring in this Region are dependent on riparian and adjacent aquatic zones during some portion of their life cycle. The effects of heavy recreation on the riparian habitats and its associated wildlife species is two-fold: disturbance to the individuals, and disturbance to the vegetation used by wildlife. These effects have not been fully assessed for the riparian habitats of Fort Niobrara NWR. The Service, as a precautionary measure, decided to place limits on recreational use of the segment of the wild and scenic Niobrara River that flows through the Refuge until these effects can be qualified and quantified. The Service's mission is the preservation of wildlife and the habitats on which they depend. Recreational use of Refuge lands must come second to wildlife and be carried out in a compatible way with the purposes of the Refuge. Thus, the necessary use limits at this time until a River Management Plan is developed and implemented.
(CCP, p. 21 (emphasis in original).)
Despite this explanation by the Service, the plaintiffs make two related arguments regarding the invalidity of the moratorium. First, they argue that "there is no empirical evidence" to limit the number of permit holders or to "grandfather" existing permit holders. (Filing 17, Pls.'s Br. in Supp. of Mot. for Prelim. Inj. Relief at 17.) In that connection, they also point out that the Refuge Act, 16 U.S.C. § 668dd(k), regarding emergency protective measures, requires that before emergency measures are instituted the Service must "determine[] that it is necessary to protect the health and safety of the public or any fish or wildlife population." 16 U.S.C. § 668dd(k).
I, assume for the sake of argument, that 16 U.S.C. 668dd(k) applies to a CCP. That *1038 said, there are ample, although necessarily tentative, facts found by the Service in the CCP to justify the moratorium. For example, the CCP sets forth the following facts and factually based reason for the temporary moratorium: (1) while canoeing is generally compatible with use of the Refuge and the river, over a short period of time canoe usage increased significantly (CCP, p. 8); (2) studies in other areas have shown that "[h]eavy recreation use of riparian areas" can have "devastating" effects on nesting birds (CCP, p. 21); and (3) "as a precautionary measure," the Service decided to "place limits on recreational use of [the river] until these effects can be qualified and quantified." (Id.)
Given the documented evidence of rapidly increasing canoe usage and its potential for "devastation" of nesting birds, it was entirely reasonable for the Service to impose a moratorium. Answering the "how much is too much" question is one of the most basic functions of the Service. Allowing the status quo to be maintained but not expanded, while taking time to get good science to answer this critical use question, was certainly not arbitrary, capricious, an abuse of discretion or contrary to any law.
The Validity of the License Denial
The plaintiffs next attack the license denial. Condensed, their argument is this: Even if the moratorium was valid, by 2003 river usage had significantly declined and the river management plan (RMP) was long overdue; therefore, there was no legitimate basis for denying a license to the plaintiffs since the plaintiffs' usage would not have caused total river usage to exceed the usage cap set by the CCP. I reject this challenge as well.
First, the fact that river usage may have declined by 2003 does not demonstrate that the moratorium on new permits must be disregarded by the Service. A plain reading of the CCP shows that the Service allowed the status quo to be maintained until the science could be developed to determine what usage levels were appropriate, but it clearly and reasonably did not promote maintenance of the status quo. Bluntly put, the fact that 1998 usage levels could be tolerated did not mean that 1998 usage levels should be promoted. The desire not to promote 1998 usage levels until the science was completed was the obvious and justifiable reason for a moratorium on new permits. Therefore, at least until the studies were done, there was nothing improper about denying a license to a new user even though river usage by former users had declined.
Second, the fact the RMP was long overdue at the time of the license denial is troubling, but not reason enough to invalidate the decision. The undisputed evidence reveals that the Service was pursing a peer-reviewed study before deciding how to set river usage guidelines, and the undisputed evidence reveals that the study is very near to being completed. Even though the Service imposed a deadline on itself in this case,[10] courts typically do not strictly enforce deadlines against administrative agencies like the Service unless Congress requires strict enforcement. See, e.g., Newton County Wildlife Ass'n v. United States Forest Serv., 113 F.3d 110, 112 (8th Cir.1997) (the failure of the Forest Service to meet a 3-year statutory deadline for a comprehensive management plan in the Ozark National Forest did not entitle environmental group to relief; "Absent specific statutory direction, an agency's *1039 failure to meet a mandatory time limit does not void subsequent agency action.") (citations omitted). Congress has not mandated strict enforcement of deadlines in circumstances like this. Since the Service has provided sufficient and record-based reasons for the delay, at this point, I cannot conclude that the delay has been unreasonable.
The need for a good study, however, is not an open-ended excuse for delay. That scientists and academics are notoriously slow is well-known and the Service must necessarily do its work in that real world, but at some point delay becomes actionable. That is, when unreasonable, delay becomes arbitrary, capricious and an abuse of discretion. This court's patience is not infinite.
Finally, I agree with the plaintiffs that Congress has specifically told the Service that when it "determines that a proposed wildlife-dependent recreational use is a compatible use within a refuge, that activity should be facilitated...." 16 U.S.C. § 668dd(a)(3)(D). When compatibility has been established, this means canoeing must be facilitated. On the other hand, and in the same statute, Congress has given the Service the power to control such compatible uses by "restrictions or regulations" to the extent "necessary, reasonable and appropriate." Id. That means canoeing can be restricted and regulated.
There are stray references in the record which might indicate that the Service is less than enthusiastic about recreational uses. For example, the CCP states that "[r]ecreational use of Refuge lands must come second to wildlife...." (CCP, p. 21.) I do not know what these words mean. Taken literally, they could be read to ignore, or at least evidence an important misunderstanding of, the first portion of the statutory directive of 16 U.S.C. § 668dd(a)(3)(D) regarding facilitating compatible recreational uses. To be clear, when Congress tells the Service to facilitate compatible recreational uses like canoeing, those activities must become an important priority for the Service.[11]
In summary, when the record is reviewed as a whole, I am satisfied, at least for now, that the Service has properly understood and applied the statutory language including its power to restrict and regulate compatible uses like commercial canoeing. Although the delay in promulgation of a river management plan is problematic, the license denial was not improper.
III. CONCLUSION
Although I have great empathy for the plaintiffs and their plight as they wait for the government to do its duty, they have not proven that the Service violated the law when it denied them a license to conduct their canoeing business. Therefore,
IT IS ORDERED that judgment will be entered by separate document providing the plaintiffs shall take nothing against the defendants, and this case is dismissed with prejudice.
JUDGMENT
Pursuant to the court's Memorandum and Order previously filed in this matter, final judgment is entered in favor of the defendants and against the plaintiffs, providing that the plaintiffs shall take nothing as against the defendants and the plaintiffs' complaint is dismissed with prejudice.
NOTES
[1] The application refers to "vessels" which apparently include canoes, tubes and kayaks. For the sake of convenience, and since the parties do not point out any significance to the specific type of craft, I refer only to "canoes" or "canoeing."
[2] Any factual finding that should more properly be considered a conclusion of law shall be so construed. In the same vein, any conclusion of law that should more properly be considered a factual finding shall be so construed.
[3] Because injunctive relief is not warranted, I do not discuss the evidence offered solely for non-merit based arguments such as irreparable injury. (See filings 14 and 15).
[4] Since it became a wildlife preserve in 1912, the Refuge has been expanded several times. See Executive Order No. 1642, signed by President Taft on November 14, 1912, (Ex. 102, Jud.Not.Mat).; Executive Order No. 3256, signed by President Woodrow Wilson on March 31, 1920, (Ex. 103, Jud.Not.Mat); Executive Order No. 7301, signed by President Franklin Roosevelt on February 21, 1936, (Ex. 104, Jud.Not.Mat). The final expansion occurred in 1986, when the Nebraska Public Power District quit-claimed land to the United States that included the Cornell Dam and Power House.
[5] It appears that the River Recreation Plan referenced at page 94 of the CCP is the same document as the River Management Plan referenced at page 21 of the CCP.
[6] Although I attach no significance to the point, it appears that the plaintiffs' supplemental letter of January 31, 2003 crossed in the mail with Mr. Cole's denial letter of the same date.
[7] Even if the plaintiffs had prevailed on the merits, and while I could order other types of relief, it is doubtful that I could issue a mandatory injunction requiring the issuance of the permit. But, since the plaintiffs have not prevailed on the merits, I do not reach this question.
[8] At oral argument, I asked one of the plaintiffs' able lawyers whether he had any cases which supported the Tenth Amendment claim. Candidly, he said he did not. I cannot find any either. Moreover, it is not apparent why the Tenth Amendment has been violated. Because the claim has not been briefed, I deny it without further comment. See, e.g., NELR 39.2(c)("[T]he failure ... to discuss an issue in the brief submitted may be treated as an abandonment of that party's position on any issue not discussed.")
[9] During oral argument, the very capable Assistant United States Attorney defending the case candidly told me that while he did not wish to abandon this argument he did wish to argue it either.
[10] And, the Service should be complimented for doing so. It should also strive mightily to live up to its commitments.
[11] In this regard, the Service must read 16 U.S.C. § 460k in harmony with the more recently enacted provisions of 16 U.S.C. § 668dd(a)(3)(D).
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642 F.2d 672
Samuel ARBEENY, and Director, Office of Workers'Compensation Programs, Petitioners,v.McROBERTS PROTECTIVE AGENCY and State Insurance Fund, Respondents.Samuel ARBEENY, Petitioner,v.McROBERTS PROTECTIVE AGENCY and State Insurance Fund andDirector, Office of Workers' CompensationPrograms, Respondents.Michael CONLON, Petitioner,v.McROBERTS PROTECTIVE AGENCY and State Insurance Fund andDirector, Office of Workers' CompensationPrograms, Respondents.
Nos. 568, 569, Dockets 80-4159, 80-4158.
United States Court of Appeals,Second Circuit.
Argued Jan. 16, 1981.Decided March 9, 1981.
Angelo C. Gucciardo, New York City (Israel, Adler, Ronca & Gucciardo, New York City, of counsel), for petitioner Conlon.
Irving Bushlow, Brooklyn, N. Y., for petitioner Arbeeny.
Catherine A. Giacona, Washington, D. C. (U. S. Dept. of Labor, Washington, D. C., Carin Ann Clauss, Sol. of Labor, Laurie M. Streeter, Associate Sol., Washington, D. C., of counsel), for Office of Workers' Compensation Programs.
Joseph F. Manes, Croton-on-Hudson, N. Y., for respondents McRoberts and State Ins. Fund.
Before MANSFIELD and MULLIGAN, Circuit Judges, and POLLACK,* District Judge.
MULLIGAN, Circuit Judge:
1
These petitions for review of an order of the Benefits Review Board, United States Department of Labor (Board) pose the question whether the petitioners Samuel Arbeeny and Michael Conlon were engaged in "maritime employment" within Section 2(3) of the Longshoremen's and Harbor Workers' Compensation Act (Act), 33 U.S.C. §§ 901-950, and are thus entitled to compensation for injuries suffered while working as pier guards on the Brooklyn Waterfront. A majority of the Board held that neither came within Section 2(3) because their duties "lacked the realistically significant relationship to maritime activities involving navigation and commerce over navigable waters."1 We grant the individual claimants' petitions for review and set aside the orders of the Board.
2
Both petitioners were injured on waterfront piers in the course of their employment as pier guards. There is no question therefore that the "situs" requirement of 33 U.S.C. § 903(a) has been satisfied.2 The issue is whether they were within the "status" requirement of the Act which by the 1972 amendments thereto extends coverage to "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker ...." Act § 2(3), 33 U.S.C. § 902(3).
3
At the time of their injuries both petitioners were employed by the respondent McRoberts Protective Agency. Their primary duty as pier guards was to insure the protection of cargo on the pier, dock and adjacent areas of marine terminals against theft, pilferage, vandalism and fire. While most of their surveillance activity was performed on the pier, at times petitioners were obliged to board vessels and position themselves on gangways, decks or in ships' hatches or holds. When valuable cargo was involved they were required to go below the deck to ensure the safety of the cargo. On occasion Arbeeny counted the cargo with a "checker" whose responsibility was to check and record the cargo removed from the hatch. Conlon in the year before his injury boarded docked ships almost nightly to deliver or obtain manifests or invoices which in the latter case he then brought to stevedores or other dockside personnel responsible for checking shortages in the shipments. Conlon was also responsible for the inspection of mooring lines to determine whether the ship was securely moored to the dock.
4
It has been suggested that in order "to avoid the judicial morass involved in determining whether each worker in any of 'the almost infinite range of conditions of waterfront employment' is or is not involved in the process of unloading vessels," the Act should be construed to cover all waterfront employment. Warren Bros. v. Nelson, 635 F.2d 552, 556 (6th Cir. 1980) (quoting G. Gilmore & C. Black, The Law of Admiralty 430 (2d ed. 1975)). This court has rejected this interpretation, which would in effect read the "status" requirement out of the Act. Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 56 (2d Cir. 1976), aff'd sub nom. Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). Nonetheless the language of the 1972 Act "is broad and suggests that we should take an expansive view of the extended coverage. Indeed, such a construction is appropriate for this remedial legislation." Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 268, 97 S.Ct. at 2359.3 It is also clear that the specific occupations mentioned in Section 2(3) do not exhaust its scope. P. C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979). Longshoremen, ship repairmen, shipbuilders and shipbreakers comprise only "a part of the larger group of activities that make up 'maritime employment.' " Id. at 77 n. 7, 100 S.Ct. at 324 n. 7, see Trotti & Thompson v. Crawford, 631 F.2d 1214, 1220 (5th Cir. 1980).
5
The fact that the petitioners here were not job designated as longshoremen is certainly not dispositive of the issue. Neither is the fact that they did not physically load or off load cargo essential. The checker found covered by Section 2(3) in Northeast Marine Terminal Co., Inc. v. Caputo, supra, was assigned the task of checking and marking items of cargo as they were unloaded from a container. The Court found that "(t)his task is clearly an integral part of the unloading process ...." 432 U.S. at 271, 97 S.Ct. at 2361. Similarly here the activities of the petitioners were an integral part of the loading and unloading of cargo. Pilferage of cargo is endemic at piers. The loading and unloading process presents innumerable opportunities for theft. The major function of these petitioners was to protect against the loss of cargo which in our view unquestionably serves a maritime purpose the safe transit of goods shipped by sea. The pervasive surveillance conducted by guards on the pier and occasionally on board ship is essential to the longshoring operation and is indeed required by the International Longshoremen's Association during the loading and the unloading process.4
6
Because we find both claimants to be engaged in maritime employment, we grant their petitions for review and set aside the orders of the Board.
*
United States District Judge for the Southern District of New York, sitting by designation
1
The Board affirmed the decision of the administrative law judge that petitioner Arbeeny was excluded from coverage. Decision and Order, Nos. 79-371 and 79-371A (June 23, 1980). It reversed another administrative law judge's order determining petitioner Conlon to be engaged in "maritime employment." Decision and Order, No. 79-399 (June 30, 1980). Our jurisdiction over these petitions is conferred by 33 U.S.C. § 921(c)
2
As broadened by the 1972 amendments to the Act, the so-called "situs" requirement covers any injury
"occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel)."
Act § 3(a); 33 U.S.C. § 903(a). To be eligible for benefits a person must have been injured within this covered area and qualify as a maritime employee as defined by § 2(3) of the Act, 33 U.S.C. § 902(3). See infra.
3
Recent decisions in other circuits, notably the Fifth Circuit, emphasize the liberal scope of coverage to be extended under this view of § 2(3). See Warren Bros. v. Nelson, 635 F.2d 552, 556 (6th Cir. 1980); Boudloche v. Howard Trucking Co., Inc., 632 F.2d 1346, 1347 (5th Cir. 1980); Trotti & Thompson v. Crawford, 631 F.2d 1214, 1220-21 & n. 15 (5th Cir. 1980) (act of building pier furthers process of loading and unloading vessels and thus bears a significant relationship to "longshoring operations"); Alabama Dry Dock & Shipbuilding Co. v. Kininess, 554 F.2d 176, 178 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 299, 54 L.Ed.2d 190 (1977) (shipbuilding company employee's act of assembling crane to be used in shipbuilding process furthers maritime function of "shipbuilding" and thus constitutes maritime employment)
4
The Board recognized that theft along the waterfront is a major problem plaguing the longshoring industry. We are not unmindful that this court en passant in Pittston Stevedoring Corp. v. Dellaventura, supra, referred to "guards" as an "unlongshoreman-like" position. 544 F.2d at 52. However, that panel was not faced with this factual situation involving petitioners whose duties were an inextricable part of the loading and unloading function. It may well be that some pier guards stationed at waterfront sites are not so involved. Since the Congress has not definitively addressed these situations in the statute, each case must be decided on its own merits
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253 So.2d 249 (1971)
Ester Lee ELLZEY
v.
Wincfus ELLZEY.
No. 46318.
Supreme Court of Mississippi.
October 11, 1971.
*250 Philip Singley, Columbia, for appellant.
Mounger & Mounger, Tylertown, for appellee.
RODGERS, Presiding Justice.
This is an appeal from the Chancery Court of Walthall County, Mississippi, wherein the Chancellor denied the granting of a divorce to the appellant based upon the grounds of habitually cruel and inhuman treatment.
In August of 1969 the appellant filed a suit against the appellee seeking a divorce, custody of minor children, and child support; and in it she also asked the court to declare a resulting trust in her favor for an undivided one-half interest in and to certain lands described in the bill of complaint. After a hearing on temporary features, the court by its decree dated November 20, 1969, awarded the temporary custody of Hattie Martinas Ellzey and Luzern Ellzey, minor children of the parties, unto the appellant and ordered the appellee to pay the sum of $22.50 per week for the support and maintenance of said children.
At the regular May 1970 term of Chancery Court of Walthall County, Mississippi, the court heard the case on its merits and rendered a decree denying the divorce, and denying the relief prayed for in the bill of complaint as to said lands, but awarded the custody of the two minor children unto the appellant and ordered the defendant to pay the sum of $22.50 per week for the support and maintenance of these children. The appellant has prosecuted this appeal from that final decree.
The only testimony in the record offered to sustain the charge of cruel and inhuman treatment was based upon the following two incidents. The appellant contended that her husband hit her on the head with a shovel twenty-five years before the trial and cut a gash in her head. He denied he hit her with a shovel. They had three children born to them after the alleged shovel incident.
The last incident was alleged to have occurred at a church where, it is said, the defendant accused members of his family of having taken twenty dollars out of his pocket. One of the daughters of the parties and also the appellant testified that the defendant Wincfus Ellzey took a shotgun out of a truck and tried to shoot the appellant. They testified that the children held him until the appellant could run away. Appellee testified that he did not try to shoot the appellant, but that the children had taken the gun out of the truck and he took it and put it back in the truck.
The Chancellor in his opinion said that the testimony was insufficient to establish habitual cruel and inhuman treatment to sustain a divorce decree.
The Court said, however, that:
"* * * [A]nd coming down to the instance in May, 1968, I am inclined to believe the complainant and her witnesses are telling the truth about this episode, but still this is one isolated instance."
The trouble we have here is, if the Chancellor believed that the testimony showed that the defendant tried to shoot his wife, that incident alone was sufficient to establish the charge of cruel and inhuman treatment.
As a general rule the charge of cruel and inhuman treatment is not established by a single act or an isolated incident, there must be more to show habitual cruel or inhuman treatment. Stockton v. Stockton, 203 So.2d 806 (Miss. 1967); McBroom v. McBroom, 214 Miss. 360, 58 So.2d 831 (1952); Manning v. Manning, 160 Miss. 318, 133 So. 673 (1931); Johns v. Johns, 57 Miss. 530 (1879); Bunkley and Morse's Amis Divorce and Separation in Mississippi § 3:14(16).
On the other hand, one incident of personal violence may be of such a violent nature as to endanger the life of the complainant spouse and be of sufficient gravity to establish the charge of habitual cruel and inhuman treatment. Bunkley and Morse's Amis Divorce and Separation in Mississippi § 3:14(3). This is especially *251 true when it is shown that the offending spouse had previously struck the complainant with a shovel. We said in Manning v. Manning, supra, that "her (the wife's) condonation of past acts is impliedly conditioned upon the future good behavior of the husband; and after condonation, if the cruelty is repeated, the right to make the condoned offense a ground for divorce is revived." (160 Miss. 321, 133 So. 673-674)
Since the Chancellor believed the testimony of the complainant and her witnesses about the attempted shooting, this alone was sufficient to establish cruel and inhuman treatment. The Chancellor should have granted the complainant a divorce.
That part of the decree denying appellant a divorce is hereby reversed and a divorce is granted to the appellant. The judgment and decree as to all other matters, custody of children, alimony and determination of property rights are affirmed. The decree is modified only as to the granting of a divorce.
Affirmed in part and reversed in part.
BRADY, PATTERSON, SMITH and SUGG, JJ., concur.
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-1-2009
USA v. Parkin
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4085
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Recommended Citation
"USA v. Parkin" (2009). 2009 Decisions. Paper 1609.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1609
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4085
UNITED STATES OF AMERICA
v.
HARRY G. PARKIN,
Appellant
(D.C. Crim. No. 04-cr-00162)
On Appeal From The United States District Court
for the District of New Jersey
District Judge: The Honorable Garrett E. Brown, Jr.
Submitted Under Third Circuit LAR 34.1(a)
November 19, 2008
Before: BARRY, CHAGARES, Circuit Judges, and COHILL, Jr.,* District Judge
(Opinion Filed: April 1, 2009)
OPINION
COHILL, Senior District Judge.
*
Honorable Maurice B. Cohill, Jr., Senior United States District Judge for the Western
District of Pennsylvania, sitting by designation.
Defendant Harry G. Parkin appeals his conviction for twelve counts of mail fraud,
in violation of 18 U.S.C. §§ 1341, 1346 and 18 U.S.C. § 2, and one count of attempted
extortion in violation of 18 U.S.C. § 1951(a). We will affirm.
I.
Harry G. Parkin is an attorney and former prosecutor for Mercer County, New
Jersey. From 1995 to December 31, 2003, Parkin served as the Chief of Staff to Robert
Prunetti, the Mercer County Executive. Among other things, Parkin served as the County
Executive’s liaison to the governing board of the Mercer County Improvement Authority
(“MCIA”). The MCIA is an autonomous agency within Mercer County established to
conduct municipal finance and oversee development projects for the County. Relevant to
this case, the MCIA is the agency responsible for overseeing the solid waste and recycling
collection programs in the County.
The contract for curbside recycling pickup in Mercer County was due to expire at
the end of 1999. The MCIA was unhappy with the current contractor, Waste
Management, and put the contract up for bid. After Waste Management was the only
bidder, Parkin contacted the Executive Director of the MCIA, James Lambert, to let him
know that a top contributor to the Republican Party, Alex Abdalla, was interested in
bidding on the contract. The MCIA decided to rebid the contract. The only bidders in the
second round were Waste Management and Abdalla’s company, Central Jersey Waste &
Recycling (“CJW&R”). The contract was awarded to CJW&R.
2
In July 2000, Lambert resigned from the MCIA and joined CJW&R as its
President. Due to CJW&R’s financial difficulties Abdalla and Lambert approached
Parkin to ask him to invest in CJW&R. Parkin desired to join forces with Lambert and
Abdalla so that each would become a one-third owner of the company. However, he
wanted to conceal his interest in the company due to his position as Chief of Staff of the
Mercer County Executive and because CJW&R had the recycling contract with the
County. Parkin sought to conceal his interest in CJW&R by first drafting a stock-option
agreement providing for Lambert to purchase a two-thirds interest in CJW&R from
Abdalla. Parkin’s actual, concealed one-third interest in the company would be protected
through a secret side agreement he would have with Lambert. This deal eventually fell
through.
To help with CJW&R’s financial difficulties, Parkin agreed to loan the company
$150,000 at a 15% interest rate, but again sought to conceal his interest in the company.
This was accomplished through the use of a sham loan showing that Parkin was loaning
$150,000 to PMT Contracting Company, a company owned by Abdalla’s nephew. The
$150,000 was actually given to CJW&R, and payments on the loan were made from the
company’s funds to Parkin. Parkin failed to disclose the source of interest income he
received from the loan on mandatory state ethics disclosure forms for calendar year 2000,
and failed to file any forms for calendar year 2001.
Thereafter, Parkin, Lambert, and Abdalla sought other avenues to enable each of
3
the three men to gain a one-third ownership interest in the company. At the same time,
however, Abdalla sought financing from other persons, in particular, Frank Fiumefreddo
and his son. The Fiumefreddos loaned CJW&R $250,000 in exchange for an option for
51% ownership in the company and the right to manage CJW&R.
After the Fiumefreddos took over management responsibilities, Abdalla decided he
did not like the new arrangement. Meanwhile, Parkin was concerned that the interest
payments on his loan might stop under the Fiumefreddos management. He thus began to
plan to have Lambert, Abdalla, and himself buy out the Fiumefreddos’ interest in the
company.
In order to ensure that Abdalla had sufficient funds to accomplish a buyout, Parkin
sought to have a demolition contract to demolish buildings on South Broad Street in
Trenton awarded to Abdalla’s company. To accomplish this, Parkin told the new
Executive Director of the MCIA, Steven Dixon, that he wanted the contract awarded to
Abdalla’s company. After two rounds of bidding, the Deputy Executive Director to the
MCIA recommended to Dixon that the contact be awarded to the company that had
proffered the low bid each time. Instead, Dixon rebid the contract two more times, and
both times CJW&R did not have the low bid. Dixon then gave CJW&R, but not the low
bidding company, a final opportunity to bid. Abdalla submitted an undated, amended bid
directly to Dixon and his company was awarded a $33,300 contract for the South Broad
Street demolition project.
4
As part of his responsibilities as Chief of Staff for the Mercer County Executive
Parkin also oversaw a potential redevelopment project at the Trenton-Mercer Airport.
Parkin attempted to have an airport demolition contract, worth between $1,000,000 and
$1,400,000, awarded to CJW&R. Parkin sent Lambert to inform Abdalla that in order to
get the airport demolition contract, Abdalla would have to agree to get rid of the
Fiumefreddos and allow Parkin to obtain an ownership interest in CJW&R. However, the
company responsible for development of the site was unable to obtain financing and the
airport redevelopment deal fell through.
Parkin also employed threats in an effort to force the Fiumefreddos to sell their
interest in CJW&R. Parkin attempted to accomplish this plan by threatening to require
the elder Fiumefreddo to undergo the New Jersey Department of Environmental
Protection’s licensing approval process to obtain a license to operate a waste hauling
company. This approval was necessary if Fiumefreddo ever wanted to exercise his option
to purchase 51% of CJW&R. Up to this point, Fiumefreddo had not sought approval,
apparently because of alleged ties to organized crime that had caused Fiumefreddo to give
up ownership interest in waste hauling companies in New York City. As part of this plan,
Parkin instructed an MCIA employee named Jerry Fiabane to investigate the elder
Fiumefreddo’s background and report directly back to Parkin so that he could use the
information as leverage. Parkin then instructed Fiabane to meet with the Fiumefreddos to
inform them that Fiabane had information about the elder Fiumefreddo’s ties to organized
5
crime and would have to forward that information to the authorities.
Parkin also sought to force the Fiumefreddos to sell their interest in CJW&R by
threatening to withhold the 2003 renewal of the initial recycling contract, an action that
would effectively destroy the company. To accomplish this plan, Parkin instructed
Fiabane to tell Lou Calisti, the MCIA employee responsible for sending out the contract
renewal, to hold up the renewal process. Parkin then instructed Abdalla to inform the
Fiumefreddos that the contract renewals were in jeopardy as long as they remained with
the company. Finally, Parkin himself told the elder Fiumefreddo not to count on the
contracts being renewed.
On March 11, 2004, a federal grand jury returned a thirteen count indictment
against Parkin alleging twelve counts of mail fraud and one count of extortion. The
government alleged that from September 2000 through March 2003, Parkin devised a
scheme to defraud the citizens of Mercer County of their right to honest services by using
his official position to obtain contracts for CJW&R in order to protect and advance his
own financial interests; by attempting to obtain an ownership interest in CJW&R; and by
concealing material information concerning his financial interests in CJW&R from other
government officials and the public.
Trial commenced with jury selection on February 1, 2005. Before opening
statements, Parkin requested permission to proceed as co-counsel along with his attorney
David Rhoads, Esquire. The District Court, in its discretion, denied the motion for hybrid
6
representation.
During a break in the government’s direct examination of its second witness,
Parkin requested permission to proceed pro se. The District Court conducted a hearing
on the matter and granted Parkin’s request. Parkin represented himself for the remainder
of the trial. At the close of the government’s case, and again at the close of evidence,
Parkin moved for judgment of acquittal under Federal Rule of Criminal Procedure 29,
which the District Court denied.
On March 21, 2005, the jury returned a verdict of guilty on all thirteen counts. On
August 30, 2005, Parkin was sentenced to 90 months’ imprisonment, a term of 3 years’
supervised release, and a fine of $26,000. He now appeals.
II.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the
District Court’s ruling that the defendant’s waiver of his Sixth Amendment right to legal
counsel was knowing, intelligent, and voluntary. United States v. Peppers, 302 F.3d 120,
127 (3d Cir. 2002). We also exercise plenary review over the District Court’s denial of a
motion for judgment of acquittal. United States v. Brodie, 403 F.3d 123, 133 (3d Cir.
2005).
We review the sentence under an abuse of discretion standard to ensure that the
district court “committed no significant procedural error in arriving at its decision.” Gall
v. United States, 552 U.S. —, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). “If we
7
determine that the district court has committed no significant procedural error, we then
review the substantive reasonableness of the sentence under an abuse-of-discretion
standard . . . .” United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008) (citing Gall, 128
S.Ct. at 597.)
III.
A.
Parkin’s first argument is that the District Court erred in granting his request to
represent himself at trial. We find no error.
Our review of the District Court’s extensive colloquy with Parkin shows that
Parkin’s waiver was knowing, voluntary, and intelligent. Parkin concedes that the
District Court “conducted an exhaustive examination of [Parkin], in accordance with
Faretta v. California, 422 U.S. 806 (1975) and its progeny . . . .” (Appellant’s Br. at 21.)
His argument is squarely focused on his assertion that his waiver of the right to counsel
was not voluntary because he was coerced into pro se representation based on the District
Court’s denial of his request for hybrid representation.1
1
Parkin also argues that his waiver of the right to counsel was not knowing and
intelligent because he had not engaged in the practice of law for the past eight years, he
had not participated in a federal trial since 1986, and he was not familiar with the
Sentencing Guidelines. As the government points out, valid waivers of the right to
counsel are regularly made by defendants who are not attorneys and who have never
practiced criminal law. Moreover, “technical legal knowledge” is “not relevant to an
assessment of [a defendant’s] knowing exercise of the right to defend himself.” Faretta,
422 U.S. at 836.
8
As noted, the District Court in its discretion denied Parkin’s request to act as co-
counsel alongside Rhoads. He does not challenge that ruling, and admits that it was a
matter left to the court’s discretion. When Parkin, through Rhoads, informed the District
Court that he wished to proceed pro se, the District Court undertook a careful and
exhaustive inquiry into the matter.
First, the District Court asked Rhoads to formally place the request on the record.
(Defendant’s Appendix, “D.A.”, at 64.) After Rhoads stated his understanding that
Parkin wished to proceed as his own counsel, the District Court immediately
acknowledged that its next responsibility was to “find out what the defendant’s current
position is and what it is that he wants to do.” (Id. at 69.) The District Court then briefly
set forth the applicable law regarding a waiver of the right to counsel, placed Parkin
under oath, and asked him if he wanted to discharge Rhoads and take over his own
defense. Parkin answered that he did. The Court then undertook an inquiry with Parkin
as to why he wanted to proceed pro se, and Parkin explained at length his reasons.
Rhoads again stated that his client wished to proceed pro se and that he was in agreement
with this decision.
The attorney for the government offered his view that Parkin’s request to proceed
pro se was not clear because on one hand it seemed as if Rhoads was saying that the
attorney client relationship had broken down, and on the other hand that it would be
acceptable to Parkin if Rhoads was appointed as his standby counsel. In response,
9
Rhoads stated:
It’s very, very clear. Mr. Parkin made an application to be co-
counsel. It was denied. We’re not even going to revisit that at this point.
He is now saying to this Court he wants to proceed pro se. I am totally in
agreement with that. Our situation is such that I don’t have his confidence -
- or perhaps I should say I don’t have the confidence that I have his
confidence in my being his defense attorney. He is a defense attorney. All
I suggested to the Court, and Mr. Parkin is in agreement, that I would act as
standby counsel. That’s a far cry from co-counsel.
(D.A. at 84.) The District Court then asked Parkin whether he agreed with what Rhoads
said, and Parkin replied that he did. Parkin further explained as follows:
The Court ruled on our previous motion which is what we think we
would have liked to have seen. Now we cannot be there at the preferred
place. Now we are moving into a different mode because this is the only
way that I can achieve and we can achieve what we want to do, an
opportunity to allow me to participate in the defense. The Court has said
the only way that will happen is if I am pro se. I would prefer co-counsel,
but pro se is where we are right now, Your Honor, because that is the only
alternative that’s open.
(Id. at 86.)
At this point the District Court stated that it was going to conduct an inquiry into
Parkin’s request to proceed pro se and the waiver of his right to counsel. In consultation
with the parties, it was decided that the hearing would take place the following morning.
When the hearing began, the District Court first set forth in great detail the
procedural history relevant to Defendant’s desire to serve as co-counsel and his current
desire to proceed pro se. Thereafter, and again in great detail, the Court set forth the
applicable law. Before beginning a colloquy with Parkin, the District Court cited
10
Parkin’s apparent reluctance to proceed pro se in light of the Court’s denial of his request
to serve as co-counsel and thus questioned whether Parkin had clearly and unequivocally
asserted his desire to proceed pro se. Parkin again stated his reasons for wanting to
proceed pro se, and stated that because his request to proceed as co-counsel had been
denied, that he was “faced with an issue of do I proceed pro se or do I proceed with Mr.
Rhoads as my attorney?” (Id. at 124.) Thus, the question of to what extent the District
Court’s denial of the request for hybrid representation influenced Parkin’s decision to
proceed pro se was at the forefront of the colloquy.
The Court then conducted a thorough and searching inquiry. Relevant to the
instant issue of voluntariness the District Court asked Parkin the following general
questions:
Q. Are you making this decision freely and does it represent your personal
desire?
A. Yes.
Q. Is this decision a result of any compulsion or coercion?
A. No.
(Id. at 150.) The District Court then specifically asked Parkin about the effect the Court’s
prior denial of his request for hybrid representation had on Parkin’s decision to proceed
pro se:
Q. The cases have indicated that hybrid representation is disfavored as I
have said before. Your decision to represent yourself, is that influenced by
my denial of the right of hybrid representation.
11
A. Certainly.
(Id. at 151.) The District Court then asked a more direct question:
Q. . . . . So in other words this is not a free and voluntary decision
because it is you say made because I denied you the right to appear together
with Mr. Rhoads, is that right?
A. I disagree with that, Judge. This is a free and voluntary decision based
on the rulings of the Court and the facts that we are facing right at this
particular point in time. I don’t disagree with the Court’s ruling. The Court
had the discretion to make that ruling, you’ve made it. Now we’re moving
on to how do we proceed in light of the Court’s ruling? I don’t think we
can sit here and say the Court’s ruling had nothing to do with what we’re
doing here today.
Q. But you’re not saying that this is a compelled decision or involuntary
decision because the Court has ruled?
A. I didn’t say that.
Q. Okay. That’s my question because I have to make a determination
whether this is a free and voluntary decision and you’re telling me it is free
and voluntary, is that right?
A. Yes. Sure.
(Id. at 151-52.)
Parkin clearly indicated that he was distinguishing between whether the Court’s
prior ruling was a factor in his decision to voluntarily proceed pro se and whether the
Court’s prior ruling compelled him to decide to proceed pro se. He unequivocally stated
that his decision was voluntary and was not compelled. Parkin was faced with the
constitutionally acceptable choice of either proceeding with counsel who was prepared
and competent, or proceeding pro se. The District Court correctly found that Parkin’s
12
decision was knowing and voluntary.
B.
Parkin next argues that the District Court erred in failing to grant his motion for
judgment of acquittal under Federal Rule of Criminal Procedure 29 on all thirteen counts.
“A motion for judgment of acquittal should be denied if, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” United States
v. Jimenez, 513 F.3d 62, 72 (3d Cir. 2008) (citing United States v. Brodie, 403 F.3d 123,
133 (3d Cir. 2005).
Parkin argues that the evidence was insufficient to establish honest services mail
fraud in several ways. First, he argues that a scheme to defraud was not established
because there was insufficient evidence showing official action in relation to CJW&R as
opposed to evidence regarding official action relating to awarding contracts to Abdalla’s
demolition company. He further argues that the evidence was insufficient to show a
scheme to defraud in that the scheme to steer demolition contracts to Abdalla in exchange
for an ownership interest in CJW&R was a legal impossibility because Fiumefreddo
owned 51% of the stock. Similarly, he argues that it was a legal impossibility for Parkin
to steer the airport contract to Abdalla since the awarding of that contract would occur by
a private company. Finally, Parkin argues that the evidence was insufficient in that the
evidence showed that Parkin did not have control or influence over the MCIA.
13
The evidence was sufficient to establish that Parkin took official actions that
furthered his undisclosed interest in CJW&R. The government presented evidence that
Parkin attempted in a variety of ways to get the Fiumefreddos to sell their interest in
CJW&R in order to ensure that he continued to receive interest payments on his loan and
to secure his own interest in CJW&R. Parkin furthered these goals by instructing Fiabane
to withhold renewal of the CJW&R contract, by instructing Fiabane to conduct an
investigation into the elder Fiumefreddo’s alleged ties to organized crime, and by
instructing Fiabane to meet with the Fiumefreddos to pressure them into relinquishing
their ownership. In addition, Parkin furthered his concealed interest in CJW&R by using
his position to try to steer demolition contracts to Abdalla’s demolition company. These
actions were undertaken in an effort to ensure that Parkin, Abdalla, and Lambert all had
sufficient funds so that each could eventually purchase a one-third interest in CJW&R.
The government supported this evidence with testimony from Abdalla, Lambert, and
Fiabane, and with recorded conversations in which Parkin himself corroborated the
evidence.
Parkin’s allegation that the mail fraud schemes were impossible also fails. Mail
fraud schemes need not succeed; the law is clear that the fraud is complete upon mailing.
United States v. Frey, 42 F.3d 795, 800 (3d Cir. 1995). In addition, the mail fraud
charges against Parkin charged not only the execution of the mail fraud schemes, but also
the “attempt” to execute the schemes. By charging an attempt, the jury could premise
14
guilt on the defendant’s intent to defraud even if the scheme was unsuccessful.
The evidence was also sufficient to establish that in fact it was not an
“impossibility” that Parkin’s scheme to steer contracts to Abdalla would further his goal
of gaining an ownership interest in CJW&R. The Fiumefreddos did not own 51% of
CJW&R. Instead, in exchange for investing $250,000 in CJW&R, the Fiumefreddos
were given management control and had an option to purchase 51% of CJW&R. Parkin’s
scheme included an effort to get the Fiumefreddos to relinquish this interest, as well as
efforts to ensure that Parkin, Lambert, and Abdalla had sufficient funds to buy the
Fiumefreddos out. Thus, the plan was not impossible.
With regard to the airport demolition contract, the evidence was sufficient to allow
the jury to determine that Parkin could influence the company that was in charge of
awarding the demolition contract. The government introduced a tape recording of Parkin
explaining that he could make the airport deal happen and that he had taken the necessary
steps to ensure that it would happen. Finally, there was an abundance of evidence
showing that Parkin was able to control the MCIA.
Next, Parkin argues that he should been granted judgment of acquittal on the sole
charge of attempting to commit extortion under color of official right or by wrongful use
of fear of economic harm because there was no evidence that the Fiumefreddos were
ever in fear of economic harm. However, the District Court correctly instructed the jury,
and Parkin did not object, that it was not necessary that the government prove the “actual
15
generation of fear.” (Supplemental Appendix, “S.A.”, at 629.) See United States v.
Marsh, 26 F.3d 14965, 1500-01 (9th Cir. 2004) (“For attempted extortion, ‘the victim’s
state of mind is not important. What is important is that the defendant attempted to instill
fear in the victim.’”) (quoting United States v. Ward, 914 F.2d 1340, 1347 (9th Cir.
1990)). The District Court properly denied Parkin’s motion for judgment of acquittal.
C.
Parkin’s final argument is that the District Court erred in calculating his
Sentencing Guideline range, and that the ultimate sentence imposed was unreasonable.
We find no error.
The District Court applied U.S.S.G. § 2C1.7 to the mail fraud counts, and U.S.S.G.
§ 2C1.1 to the extortion count.2 The attempted extortion count carried a base offense
level of 10 pursuant to section 2C1.1(a). Eight levels were added pursuant to section
2C1.1(b)(2)(B) because the offense involved payments for the purpose of influencing a
high-level public official, to arrive at a total offense level for the attempted extortion
count of 18.
The mail fraud counts carried a base offense level of 10. Fourteen levels were
added pursuant to section 2C1.7(b)(1)(A), based on a loss calculation of more than
$400,000 but less than $1,000,000. Four levels were added pursuant to section 3B1.1(a)
2
The 2002 edition of the Guidelines Manual was used in this case. Effective
November 1, 2004, section 2C1.7 was consolidated with section 2C1.1.
16
for Parkin’s leadership role in the offense as an organizer or leader of a criminal activity
that involved five or more participants or was otherwise extensive. Thus, the total
offense level for the mail fraud counts was 28.
By applying section 3D1.2 and section 3D1.3(b) to the two groups of offenses, the
District Court arrived at an overall total offense level of 28. With a criminal history
category of I, the District Court determined that the applicable advisory guideline range
of imprisonment was 78 to 97 months.
Parkin first contends that the District Court should have applied section 2B1.1 to
the mail fraud counts instead of section 2C1.7. We disagree. The Sentencing Guidelines
indicate that for convictions under 18 U.S.C. § 1341, the appropriate guideline section to
apply is either 2B1.1 or 2C1.7. U.S.S.G. App. A, at 472. In cases where more than one
section is applicable for a conviction, the Guidelines direct courts to use the the most
appropriate guideline section for the offense conduct of conviction. U.S.S.G. App. A,
intro, at 463. Parkin was convicted of being a public official who deprived the citizens of
Mercer County of their intangible right to honest services. Section 2C1.7 is titled in
relevant part: “Fraud Involving Deprivation of the Intangible Right to the Honest Services
of Public Officials,” whereas section 2B1.1 more generally applies to larceny, theft,
fraud, deceit, and other economic crimes. There is no doubt that the District Court
applied the appropriate guideline section.
Parkin next argues that the District Court erred in adding four levels to his offense
17
level for being a leader of criminal activity that involved five or more participants. The
five participants were Parkin, Abdalla, Lambert, Abdalla’s nephew, and Fiabane. Parkin
objects to the inclusion of Abdalla’s nephew and Fiabane arguing that they were
unwitting participants and were not criminally culpable. In addition, Parkin argues that
there was no evidence that he exercised any control over Abdalla’s nephew and Fiabane.
To be included as a “participant” in a criminal activity under section 3B1.1(a), one
may either be criminally responsible for the charged offense or “used to facilitate the
criminal scheme.” United States v. Inigo, 925 F.2d 641, 659 (3d Cir. 1991). It is not
necessary that the “participant” is guilty of the charged offense asserted against the
defendant, “so long as their own criminal conduct made [commission of the offense]
possible.” Id.
The evidence demonstrated that Abdalla’s nephew was aware that he entered into a
written loan on behalf of his company but that the loan was not actually given to his
company. He further understood that the purpose of the sham loan was to protect
Parkin’s interest in CJW&R. Thus, Abdalla’s nephew was not an unwitting participant
and in fact aided and abetted Parkin’s criminal scheme.
As to Fiabane, the evidence shows that he took his instructions directly from
Parkin in order to advance Parkin’s scheme. Upon instruction from Parkin, Fiabane
ensured that renewal of CJW&R contract was upheld, conducted an investigation into
Fiumefreddo’s alleged ties to organized crime, and met with the Fiumefreddos to pressure
18
them into relinquishing their ownership. Fiabane’s actions were not the actions of an
unwitting participant; rather, he aided and abetted Parkin’s scheme.
We find no error with the District Court’s 4 level increase for Parkin’s leadership role in
criminal activity that involved five or more participants.
Next, Parkin argues that the District Court erred in calculating the amount of loss
pursuant to section 2B1.1(b)(1)(H). The District Court calculated that the loss was
greater than $400,000 but less than $1,000,000, resulting in a 14 level increase in Parkin’s
offense level.
Parkin argues that there was no evidence of government loss due to Abdalla
receiving the $33,300 South Broad Street demolition contract. In addition, he argues that
no loss value should be attributed to the airport demolition contract because the contract
was never awarded and the government did not establish the value of the contract.
Finally, Parkin argues that the government cannot rely on loss attributed to Parkin’s
scheme to obtain an interest in CJW&R because there was no evidence of the fair market
value of CJW&R, and no evidence to support a reasonable valuation of the company.
Therefore, Parkin argues, the District Court should have used as an alternative measure
the gain that resulted from this offense pursuant to section 2B1.1 app.n. 2(B). Because
the evidence showed no loss by the government, Parkin claims there should have been no
increase in his base offense level.
The language of section 2C1.7, however, explicitly sets forth that a defendant’s
19
base offense level will be enhanced by the greater of either the loss to the government or
“the value of anything obtained or to be obtained by a public official or others acting with
a public official.” U.S.S.G. § 2C1.7(b)(1)(A). Specifically, this section provides as
follows:
If the loss to the government, or the value of anything obtained or to be
obtained by a public official or others acting with a public official,
whichever is greater (i) exceeded $2,000 but did not exceed $5,000,
increase by 1 level; or (ii) exceeded $5,000, increase by the number of
levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud)
corresponding to that amount.
Id. (emphasis added). Here, Abdalla was acting with Parkin. Thus it was proper for the
District Court to attribute as loss to Parkin not only the value of anything he himself
obtained or he intended to obtain, but also the value of anything Abdalla obtained or that
Parkin intended Abdalla to obtain. United States v. Antico, 273 F.3d 245, 271 (3d Cir.
2001).
As a result of Parkin’s offenses Abdalla obtained or sought to obtain two contracts.
The value of the South Broad Street demolition contract was $33,300 and the value of the
airport demolition contract that Parkin attempted to steer to Abdalla was approximately
$1,000,000. These two contracts together are sufficient to support the 14 level increase
awarded by the District Court.
In addition, the amount of loss calculated for purposes of this enhancement is also
supported by the value of the one-third interest in CJW&R that Parkin attempted to obtain
for himself and the value of the one-third interest he attempted to obtain for Lambert.
20
The evidence in the record supports that the value of each one-third ownership interest
attempted to be obtained was approximately $500,000, for a total amount of $1,000,000.
We find no error with the District Court assigning a loss value under sections 2C1.7 and
2B1.1 greater than $400,000 and less than $1,000,000, and adding 14 levels to Parkin’s
base offense level.
Finally, Parkin argues that by not imposing the lowest range of the guideline
sentence range, the sentence imposed by the District Court was not reasonable. He
contends that the District Court failed to consider his personal factors, his service to the
United States army, and his service to the community.
We reject Parkin’s claim that his sentence is unreasonable. The District Court
stated at sentencing as follows:
This is a sad situation. Everything that I see indicates that before this
period of time the defendant was [a] well respected, highly successful
attorney, he served honorably in the nation’s military and was respected by
a number of people and indeed served as the person responsible for the
ethics in the county.
(D.A. at 240.) The District Court noted that Parkin was “very highly respected,” and that
“[p]eople say a lot of good things about him . . . .” (Id. at 240.) The District Court read
from a letter Parkin wrote to the Court in which Parkin cited his long years in public
service as well as his military service. (Id. at 243.) The District Court considered this
letter as well as “the letters of all the people that knew Parkin and spoke well of him.”
(Id. at 243.)
21
Our review of the entire sentencing hearing shows that the District Court gave
thoughtful consideration to the sentencing factors in 18 U.S.C. § 3553(a) before
pronouncing a reasonable sentence of 90 months of imprisonment, a sentence within the
advisory guideline range of 78 to 97 months’ imprisonment. United States v. Schweitzer,
454 F.3d 197, 204 (3d Cir. 2006) (Court of Appeals reviews a sentence under a standard
that “requires a deferential review of the record developed by the district court to
determine whether the final sentence, wherever it may lie within the permissible statutory
range, was premised upon appropriate and judicious consideration of the relevant
factors.”); see also United States v. Cooper, 437 F.3d 324, 330-32 (3d Cir. 2006).
IV.
For the foregoing reasons, we will affirm the District Court’s judgment of
conviction and sentence.
22
| {
"pile_set_name": "FreeLaw"
} |
171 Cal.App.3d 1042 (1985)
217 Cal. Rptr. 748
SLONA F. WALLACE, Plaintiff and Appellant,
v.
RICHARD W. HIBNER et al., Defendants and Respondents.
Docket Nos. F004264, F004505.
Court of Appeals of California, Fifth District.
September 3, 1985.
*1044 COUNSEL
Kronick, Moskovitz, Tiedemann & Girard and James F. Geary for Plaintiff and Appellant.
Stammer, McKnight, Barnum & Bailey, Craig W. Mortensen, McCormick, Barstow, Sheppard, Wayte & Carruth, Mario L. Beltramo, Jr., and John A. Drolshagen for Defendants and Respondents.
OPINION
RITCHEY, J.
STATEMENT OF THE CASE
Slona F. Wallace (appellant) filed a medical malpractice action against Richard W. Hibner, M.D., and St. Agnes Medical Center (respondents) on January 28, 1984. Dr. Hibner filed an affirmative defense and St. Agnes filed a demurrer claiming the action was barred by Code of Civil Procedure section 340.5.[1] Subsequently, Dr. Hibner made a motion for judgment on the pleadings based on the statute of limitations.
The trial court dismissed the complaint against St. Agnes and granted judgment on the pleadings in favor of Dr. Hibner. Appellant appeals from this judgment.[2]
STATEMENT OF THE FACTS
On August 20, 1970, appellant consulted Dr. Hibner at St. Agnes' emergency room to obtain treatment for a puncture wound caused by a sewing needle that was traumatically embedded in her foot. Dr. Hibner inadvertently failed to remove the entire needle during the operation. Appellant did not discover this fact until May 1983.
DISCUSSION
Does a sewing needle fragment left in a patient's foot after an operation for its removal constitute a "foreign body" within section 340.5?
Appellant argues that under the plain meaning of the statute, a "foreign body" includes any object negligently left in the body, i.e., glass, sewing *1045 needles, slivers of wood, and medical instruments. Appellant then attempts to enlarge this definition by citing dictum from an old case which stated there was "[no] difference in principle between leaving in the patient's body pieces of broken roots of teeth which the surgeon had undertaken to remove and a sponge or drainage tube which had served its purpose and should have been removed." (Ehlen v. Burrows (1942) 51 Cal. App.2d 141, 145-146 [124 P.2d 82].)
Respondents counter that the statute's "foreign body" exception applies only to objects placed in the patient's body by the doctor or hospital employee which were not removed during the operation (i.e., sponges, clamps, drainage tubes). Respondents assert that this interpretation is supported by the statute's legislative intent of limiting the skyrocketing costs of medical malpractice insurance. (Kite v. Campbell (1983) 142 Cal. App.3d 793, 800 [191 Cal. Rptr. 363].) Respondents' definition is also supported by New York case law.
The trial court dismissed appellant's action and stated it did not "believe there was any [legislative] intent that the foreign body should include something that the patient walks in with in his body." We agree with the trial court and affirm the judgment.
A. Statutory interpretation.
(1) It is well established that the applicability of a statute to undisputed facts is a question of law and this court is not bound by the lower court's conclusion. (See, e.g., Neal v. State of California (1960) 55 Cal.2d 11, 17 [9 Cal. Rptr. 607, 357 P.2d 839].) (2) When interpreting a statute, a court must ascertain legislative intent so as to effectuate a law's purpose. (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645 [335 P.2d 672]; Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658 [147 Cal. Rptr. 359, 580 P.2d 1155].) (3) Legislative intent will be determined so far as possible from the language of the statutes, read as a whole, and "if the words of an enactment, given their ordinary and proper meaning, are reasonably free from ambiguity and uncertainty, the courts will look no further to ascertain the legislative intent." (58 Cal.Jur.3d, Statutes, § 102, p. 472.)
(4) "In the construction of a statute ..., the office of the Judge is simply to ascertain and declare what is ... contained therein, not to insert what has been omitted, or to omit what has been inserted; ..." (§ 1858. See also Pepper v. Board of Directors (1958) 162 Cal. App.2d 1, 4-5 [327 P.2d 928].) (5) However, courts will not infer a legislative intent that is capricious or unconstitutional if the statutory language admits of an alternative *1046 interpretation which would serve the statutory policy and render application of law reasonable and just. (Estate of Yush (1970) 8 Cal. App.3d 251, 255 [87 Cal. Rptr. 222].) (6) An absurd and unjust result will not be ascribed to the Legislature. (Brown v. Huntington Beach etc. High Sch. Dist. (1971) 15 Cal. App.3d 640, 646 [93 Cal. Rptr. 417].)
B. Discussion.
Prior to 1936, California courts applied a strict statute of limitations in medical negligence cases. Under former section 340, subdivision 3, a malpractice action was barred if not brought within one year of the date of injury. In 1936, our Supreme Court initiated the "discovery rule" exception in order to mitigate the harsh effect of this statute. (Huysman v. Kirsch (1936) 6 Cal.2d 302 [57 P.2d 908].) In Huysman, a doctor negligently failed to remove a drainage tube used during the operation. Although this case involved a "foreign object," the court did not expressly define it.
In 1970, section 340.5 was enacted, providing a separate statute of limitations for medical malpractice actions. It extended the period of limitations to an absolute four-year period, or a one-year discovery period, whichever occurred first. The four-year limitation was tolled for the health care provider's failure to disclose any act, error, or omission which was, or through exercise of reasonable care, should have been known to him. (See Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 96-97 [132 Cal. Rptr. 657, 553 P.2d 1129].) In Brown v. Bleiberg (1982) 32 Cal.3d 426, 432 [186 Cal. Rptr. 228, 651 P.2d 815], our Supreme Court explained: "Section 340 prescribes a one-year limitations period. Prior to the enactment of section 340.5 in 1970, the limitations period for all medical malpractice actions was the one-year term provided by section 340, subdivision 3, which applies generally to actions for personal injury or death. It was established, though, that the limitations period did not commence until the plaintiff actually discovered his injury and its negligent cause or could, in the exercise of reasonable diligence, have discovered them. Thus, commencement of the running of the statute might be deferred indefinitely. [Citations omitted.]
"Repeated efforts to modify this `open-ended' discovery doctrine culminated in the enactment in 1970 of Code of Civil Procedure section 340.5, which governs actions based on `professional negligence' by `health care provider[s].' As enacted, the statute retained the former one-year limitations period, but circumscribed it with an outside period of four years from the date of plaintiff's `injury,' irrespective of whether its negligent cause had or should have been discovered."
Despite this change in 1970, the concern over ever-increasing costs to procure insurance coverage for doctors and hospitals rose to new highs in *1047 the mid-1970's. In 1975, the Governor of California called an extraordinary session of the Legislature to deal directly with this issue. The Governor proclaimed that the rising costs of malpractice litigation to the health care field endangered the public's health. (Kite v. Campbell, supra, 142 Cal. App.3d at p. 800; see generally, Note, California Code of Civil Procedure Section 340.5: The Discovery Rule Codified? (1983) 13 Sw.U.L.Rev. 759.) The Legislature reacted by amending section 340.5 to further shorten the outside period of limitation. The statute presently states in pertinent part: "In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. ..." (Italics added.)
(7) The question this court must resolve is whether a needle fragment left in a patient's foot after an operation for its removal constitutes a foreign body within the meaning of section 340.5. Our research has revealed that no California case has specifically addressed this issue.[3]
We believe that the Legislature intended the "foreign body" exception to apply only to medically inserted objects that have no therapeutic or diagnostic purpose which are left in the patient's body.[4] In Melnyk v. Cleveland Clinic (1972) 32 Ohio St.2d 198 [61 Ohio Ops.2d 430, 290 N.E.2d 916, 917, 70 A.L.R.3d 1], the Ohio Supreme Court noted: "[I]t is difficult, if not impossible, to imagine a defense to the act charged. To carelessly leave a large and obvious metallic forceps and a nonabsorbent sponge in a surgical patient's body is negligence as a matter of law, and the proof thereof is generally unsusceptible to speculation or error. The relationship between the utterly helpless surgical patient and his surgeon, during surgery, is such that the latter must be held to have assumed the responsibility for the removal *1048 of such articles, excepting only those which are intentionally left there for sound medical reasons. Furthermore, as problems of proof and defense dwindle, so does the persuasiveness of the `stale claims' reasoning." (Fns. omitted. See also Fernandi v. Strully (1961) 35 N.J. 434, 450 [173 A.2d 277].)
The definition of "foreign object" that we have declared today[5] is similar to the one adopted by the New York courts in interpreting their similar statute of limitations.[6]
The issue of what constitutes a "foreign object" under the New York statute of limitations was decided in Garrett v. Brooklyn Hosp. (1984) 99 App.Div.2d 541 [471 N.Y.S.2d 621]. There, in facts analogous to our case, the plaintiff underwent an operation in 1964 to remove tissue in an area which had been lacerated when she fell on glass. A pathology report was issued which stated that no "foreign body" was identified. The plaintiff's mother was informed that the operation had been successful.
In 1980 an X-ray revealed a "foreign body" in the area of the plaintiff's operative scar. A piece of glass subsequently had to be surgically removed. The plaintiff instituted a medical malpractice action against the hospital. In upholding the trial court's dismissal of the action based on the statute of limitations, the appellate court held that "foreign object" applied to medically introduced objects left in the patient's body and not to objects for which the care and treatment was initially rendered. The appellate court stated: "[T]here is, under the facts of this case, no basis for the invocation of the discovery rule or `foreign object' exception. Plaintiff entered defendant's health care facility with a traumatically introduced glass fragment already embedded in her right hand. Thus, the glass fragment retrieved in 1980 was not introduced into plaintiff's body as the result of any affirmative act on the part of one of defendant's employees. Rather, the failure to detect and remove the fragment was `founded exclusively upon diagnostic judgment or discretion' [citations omitted]." (Garrett v. Brooklyn Hosp., supra, *1049 471 N.Y.S.2d at p. 622. See also Garrett v. Brooklyn Hosp. (1982) 115 Misc.2d 933 [454 N.Y.S.2d 637, 639].)
The appellate court in Garrett affirmed the holding and rationale expressed in the comprehensive opinion rendered by the lower special term court. (Garrett v. Brooklyn Hosp., supra, 454 N.Y.S.2d 637.) Both opinions in Garrett referred to Flanagan v. Mount Eden General Hospital (1969) 24 N.Y.2d 427 [301 N.Y.S.2d 23, 248 N.E.2d 871] in which the "foreign object" exception was adopted and later codified in New York Civil Practice Law section 214-a. The special term Garrett court reviewed Flanagan's decision to adopt the "foreign object" rule followed in nine other jurisdictions, all of which had limited the "foreign object" exception to medically introduced objects. The special term Garrett court stated: "The Flanagan case involved the insertion of surgical clamps in a patient's body. In placing New York among jurisdictions that allow a date of discovery rule for foreign objects, the court decided to follow nine other jurisdictions that allowed the rule when medically [italics in original] placed objects were placed in patients' bodies, e.g., sponges, hemostat, needles, wing-nut [citation].
"The rule has been continually limited to medically inserted objects and not objects plaintiffs already had in them when they presented themselves to defendants [italics added] [citation omitted]." (Garrett v. Brooklyn Hosp., supra, 454 N.Y.S.2d at p. 639.)
Appellant claims that we should apply the plain meaning rule to interpret "foreign body" because the statute does not distinguish between a foreign body introduced during medical treatment from a foreign body introduced by other means which creates a necessity for the medical treatment. Although this argument appears persuasive, its inherent weakness is evident upon close analysis. For instance, if a doctor operated and inadvertently left a portion of a tumor within patient A, and A discovered this tumor 10 years later, under the "plain meaning" interpretation A's claim would be barred. However, if a doctor operated and inadvertently failed to entirely remove a traumatically inserted needle in B's foot, 10 years later B's action would be allowed. Thus, two very different statutes of limitation would be made applicable to medical treatment involving, in principle, the same medical diagnostic and judgment risks. To accept appellant's definition and permit B's action and not A's would be an absurd, unfair, and unjust result. (Estate of Yush, supra, 8 Cal. App.3d at p. 255; Brown v. Huntington Beach etc. High Sch. Dist., supra, 15 Cal. App.3d at p. 646.) We will not ascribe such an absurd intent upon the Legislature.
In an attempt to avoid this result, appellant tries to expand this definition by citing Ehlen v. Burrows, supra, 51 Cal. App.2d 141 for the proposition *1050 that the "foreign body" exception may also apply to "natural organs" which a doctor inadvertently leaves behind. In Ehlen, a physician who set out to remove some teeth inadvertently left behind some roots. The court held that the discovery doctrine was applicable to the commencement of the statute of limitations. The court, in dictum, stated that there is no difference in principle between plaintiff's failure to discover broken teeth roots left in her jaw and another plaintiff's failure to discover a surgical drainage tube in her abdomen (Huysman v. Kirsch, supra, 6 Cal.2d 302). The court stated: "As it does not appear on the face of the complaint that plaintiff discovered, or by the use of reasonable diligence should have discovered, the presence of the broken roots at a date more than one year prior to the filing of the complaint, the plea of the statute is not available to defendant by demurrer." (Ehlen v. Burrows, supra, 51 Cal. App.2d at p. 146.)
Ehlen is not authority for expanding the "foreign body" definition as requested by appellant. First, it is quite clear that a tooth or tumor naturally grows within a body and is not a foreign body. Second, Ehlen stands for the proposition of applying the discovery rule before the Legislature's 1970 amendments to section 340.5. The references to broken teeth and a drainage tube are dictum. In People v. Ceballos (1974) 12 Cal.3d 470, 481 [116 Cal. Rptr. 233, 526 P.2d 241], our Supreme Court stated that cases "are not authority for propositions not there considered." Third, appellant's definition runs contrary to the legislative intent of section 340.5.
Moreover, the exceptions to section 340.5, "(1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person," must be construed in context. The first two categories deal with affirmative acts by the health care provider rather than mere omission or exercise of poor judgment. Also, by qualifying "foreign body" with the phrase "which has no therapeutic or diagnostic purpose or effect," the conclusion is that the Legislature intended "foreign body" to mean objects which are surgically inserted or attached and allowed to remain. Thus, where a patient would have no reason whatsoever to suspect negligence, as when the practitioner commits fraud, intentional concealment of facts or when a nondiagnostic or nontherapeutic substance is placed in the body and left behind, the statute is tolled.
We conclude that the trial court correctly dismissed appellant's action for medical malpractice because the action is time-barred by section 340.5.[7]
*1051 The judgment is affirmed.
Woolpert, Acting P.J., and Best, J., concurred.
NOTES
[1] All further statutory references are to the Code of Civil Procedure.
[2] Upon stipulation of the parties, the cases have been consolidated on appeal.
[3] Hills v. Aronsohn (1984) 152 Cal. App.3d 753 [199 Cal. Rptr. 816] held that silicon in an intrabreast silicon injection, though it perhaps constitutes a foreign body, is not entitled to the "foreign body" exception because it was introduced for therapeutic purposes. Although this case dealt with a foreign object, it does not resolve the issue in our case.
[4] Our review of cases from other jurisdictions reveals that the usual fact situation presented concerns negligently left gauze, sponges, needles, surgical tools, etc., which are discovered later due to a related or unrelated illness. (See Annot., When Statute of Limitations Commences to Run Against Malpractice Action Based on Leaving Foreign Substance in Patient's Body (1976) 70 A.L.R.3d 7. See also Johnson v. St. Patrick's Hospital (1966) 148 Mont. 125 [417 P.2d 469, 470].)
[5] In Roybal v. White (1963) 72 N.M. 285 [383 P.2d 250, 252], the New Mexico Supreme Court suggested that under California law a foreign body pertains to "all appliances used in the operation [that] have [not] been removed."
[6] The statute of limitations for medical negligence in New York (N.Y. Civ. Prac. Law, § 214-a (McKinney 1984-1985 pocket supp.)), provides in relevant part: "An action for medical malpractice must be commenced within two years and six months of the act, omission or failure complained of ...; provided, however, that where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.... For the purpose of this section the term `foreign object' shall not include a chemical compound, fixation device or prosthetic aid or device." (Italics added.)
[7] Appellant also argues that the trial court may have erroneously based its dismissal in favor of Dr. Hibner on his contention that appellant's complaint did not set forth facts sufficient to constitute a cause of action. Upon review of the record, we believe it is clear that the dismissal was based upon the trial court's interpretation of section 340.5. Therefore, we reject appellant's contention.
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49 So.3d 750 (2010)
SCOTT
v.
STATE.
No. 1D10-4109.
District Court of Appeal of Florida, First District.
December 1, 2010.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Mar 30 2015, 10:31 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT
Jody M. Butts
Megan M. McCooe
McNeely Stephenson
Shelbyville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Louis Ridgeway, March 30, 2015
Appellant-Defendant, Court of Appeals Case No.
67A04-1409-SC-410
v. Appeal from the Putnam Superior
Court
Richard Jacobs, The Honorable Charles D. Bridges,
Judge
Appellee-Plaintiff
Case No. 67D01-1310-SC-556
Vaidik, Chief Judge.
Case Summary
[1] Richard Jacobs sued Louis Ridgeway in small-claims court alleging that water
run-off from Ridgeway’s property damaged his driveway, making it unpassable.
The small-claims court found in favor of Jacobs and awarded him $4500 in
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 1 of 8
damages. Ridgeway now appeals, arguing that the common-enemy doctrine
applies.
[2] According to the common-enemy doctrine, surface water that does not flow in
defined channels is a common enemy, and each landowner may deal with it in
such a manner as best suits his own convenience. Here, the evidence presented
at trial was that the “run-off” was surface water, which is subject to the
common-enemy doctrine. That is, the evidence showed that the water flowed
over several locations on Jacobs’ property—and not in a defined channel.
According to the common-enemy doctrine, this is not actionable. We therefore
reverse the small-claims court’s judgment in favor of Jacobs.
Facts and Procedural History
[3] Ridgeway owns 103 acres of land on West County Road 350 North in Putnam
County, Indiana, and has farmed it for forty years. Jacobs’ property abuts
Ridgeway’s property on the west. Jacobs purchased his property in 1998 and
last lived there in 2009 or 2010. It is undisputed that “run-off” from
Ridgeway’s crop field has damaged Jacobs’ .25-mile-long driveway, creating a
very large ditch that has made Jacobs’ driveway unpassable. See Appellant’s
App. p. 9. As a result, Jacobs cannot reach his house by car.
[4] In October 2013 Jacobs, pro se, filed a notice of claim in small-claims court.
Jacobs alleged “water damage to driveway” because Ridgeway’s “run off of
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 2 of 8
water did away with my driveway.” Id. at 11. He sought $4500 in damages,
plus interest and costs. Id.
[5] The small-claims trial was held in March 2014. Ridgeway was represented by
counsel. Jacobs testified that Ridgeway was “negligen[t]” because he had done
“nothing” to stop the water from coming onto Jacobs’ property; Jacobs alleged
that instead Ridgeway was required to do “conservation work” on his property
to stop the water from coming onto Jacobs’ property. Tr. p. 6, 17, 21, 34; see
also id. at 6 (“I’ve got pictures here that show the erosion of [Ridgeway’s] field
and how it runs down directly on to my property. . . . It’s like a flash flood, it’s
that fast.” (emphasis added)). Jacobs admitted into evidence photographs of
Ridgeway’s field showing the erosion. Ex. 1 (three photos). Jacobs also
admitted into evidence a letter from a conservationist at the United States
Department of Agriculture who visited his and Ridgeway’s properties. Ex. 2.
The conservationist addressed the “washed out crossings that [were] restricting
access to [Jacobs’] property” and the “erosion issue” in “the crop field next to
[Jacobs’] property.” Id.
[6] Ridgeway testified about the run-off but said “it’s not coming from my farm, it’s
coming from up above my farm.” Tr. p. 35. And he testified that it does so
only when it rains two or three inches. Id. at 23. Ridgeway explained that he
grades and fixes his field each year in order to maintain it and that he started
planting wheat in order to slow the water. Id. at 35-36. In addition, Ridgeway
said he “maintained [the] ravines, ke[pt] them built up, there’s been times I
went and bought dirt and put dirt in them, to keep the field farmable.” Id. at 25.
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 3 of 8
Ridgeway was adamant that he did not make any improvements that would
cause any surface water to run onto Jacobs’ property, and he said he never
collected or disposed of water on Jacobs’ property. Id.
[7] Finally, Ridgeway explained that about thirty years ago, Putnam County
installed drainage systems called “whistles” on the east and north sides of his
property. Id. at 22. Ridgeway did not request the whistles and had no input in
their installation.
[8] In closing, counsel for Ridgeway argued that the common-enemy doctrine
applied and therefore Ridgeway was not liable for the damages to Jacobs’
driveway. The trial court took the case under advisement and later found in
favor of Jacobs. Appellant’s App. p. 7. After a damages hearing, the court
issued the following order in August 2014:
1. The Plaintiff presented credible testimony and a witness as to the
damage the run-off from the Defendant’s farm field caused to the
Plaintiff’s driveway.
2. Said damage is in the form of an approximately 15’ wide x 9’ deep x
50’ long ditch, which transverses the Plaintiff’s drive thereby
preventing the Plaintiff from gaining access to his residence. Plaintiff’s
estimate to repair the drive and install a drainage “whistle” is
$4500.00.
3. The Defendant has taken no corrective measures to prevent the run-
off damage to Plaintiff’s property.
4. This Judgment is for damages sustained to the Plaintiff’s driveway
only.
Id. at 9. Accordingly, the court ordered Ridgeway to pay Jacobs $4500 plus
interest and costs of $94.
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 4 of 8
[9] Ridgeway now appeals.
Discussion and Decision
[10] Ridgeway contends that the trial court erred in determining that he was liable
for the damage to Jacobs’ driveway. Jacobs has not filed an appellee’s brief.
When an appellee does not submit a brief, we do not undertake the burden of
developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42
(Ind. Ct. App. 2002). Instead, we apply a less stringent standard of review and
may reverse if the appellant establishes prima facie error. Id.
[11] Our standard of review in small-claims cases is well settled. Small-claims-court
judgments are “subject to review as prescribed by relevant Indiana rules and
statutes.” Ind. Small Claims Rule 11(A). Under Indiana Trial Rule 52(A), the
clearly erroneous standard applies to appellate review of facts determined in a
bench trial with due regard given to the opportunity of the trial court to assess
witness credibility. This deferential standard of review is particularly important
in small-claims actions, where trials are designed to speedily dispense justice by
applying substantive law between the parties in an informal setting. Vance v.
Lozano, 981 N.E.2d 554, 557 (Ind. Ct. App. 2012). But this deferential standard
does not apply to the substantive rules of law, which are reviewed de novo just
as they are in appeals from a court of general jurisdiction. Id. at 557-58.
[12] The parties in small-claims court bear the same burdens of proof as they would
in a regular civil action on the same issues. Ind. Small Claims Rule 4(A). It is
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 5 of 8
incumbent upon the party who bears the burden of proof to demonstrate that it
is entitled to the recovery sought. Vance, 981 N.E.2d at 558. We consider
evidence in the light most favorable to the judgment, together with all
reasonable inferences to be drawn therefrom. Id. We will reverse a judgment
only if the evidence leads to but one conclusion and the trial court reached the
opposite conclusion. Id.
[13] Ridgeway argues that the common-enemy doctrine applies to this case. Water
classified as surface water is governed by the common-enemy doctrine:
In its most simplistic and pure form the rule known as the “common
enemy doctrine,” declares that surface water which does not flow in
defined channels is a common enemy and that each landowner may
deal with it in such manner as best suits his own convenience. Such
sanctioned dealings include walling it out, walling it in[,] and diverting
or accelerating its flow by any means whatever.
[14] Long v. IVC Indus. Coatings, Inc., 908 N.E.2d 697, 702 (Ind. Ct. App. 2009)
(quoting Argyelan v. Haviland, 435 N.E.2d 973, 976 (Ind. 1982)). However, this
rule does not allow a landowner to “collect or concentrate surface water and
cast it, in a body, upon his neighbor.” Crowel v. Marshall Cnty. Drainage Bd., 971
N.E.2d 638, 649 (Ind. 2012) (quotation omitted).
[15] Under the common-enemy doctrine, it is not unlawful for a landowner to
accelerate or increase the flow of surface water by limiting or eliminating
ground absorption or changing the grade of the land, even if it causes water to
stand in unusual quantities on the adjacent land or to pass into or over the
adjacent land in greater quantities or in other directions than the water did
before. Argyelan, 435 N.E.2d at 976; Long, 908 N.E.2d at 702. A landowner
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 6 of 8
has the right to occupy and improve his land in such manner and for such
purposes as he may see fit, including changing the surface or by erecting
buildings thereon. Long, 908 N.E.2d at 702.
[16] The common-enemy doctrine applies only to surface water, and not to a natural
watercourse. Id. Surface water is defined as water that is diffused over the
natural slope of the ground, not following a defined course or channel. Ross v.
Bartholomew Cnty. Drainage Bd., 995 N.E.2d 1051, 1054 (Ind. Ct. App. 2013),
reh’g denied, trans. denied. Surface water generally originates in rains and
melting snows. Long, 908 N.E.2d at 703.
[17] Here, the evidence presented at the small-claims trial was that the “run-off” was
surface water, which is subject to the common-enemy doctrine. That is, the
evidence was that the water flowed over several locations on Jacobs’ property—
and not in a defined channel. See id. (“A natural watercourse is established
when surface water begins to flow in a definite direction and there is a regular
channel formed with well[-]defined banks and bottom and water flows therein,
not necessarily continually but from time immemorial and for a substantial
period of each year.” (quotation omitted)). For example, Jacobs testified: (1)
the water “comes over” his driveway; (2) the water has “eroded my land all the
way across my property down into the neighbors”; (3) “all[] this land use[d] to
be . . . flat, now it’s like a rolley coaster”; and (4) “two (2) more roads down my
property” were “also taken out.” Tr. p. 6, 9. This testimony shows that the
run-off affected several locations on Jacobs’ property.
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 7 of 8
[18] Moreover, the exception to the common-enemy doctrine does not apply here.
There is no evidence that Ridgeway collected or concentrated surface water and
then cast it on Jacobs’ property.
[19] According to the common-enemy doctrine, surface water that does not flow in
defined channels is a common enemy, and each landowner may deal with it in
such manner as best suits his own convenience. What this case boils down to is
that Jacobs did not like how Ridgeway dealt with the water issue on his
property. But according to the common-enemy doctrine, this is not actionable.
See Crowel, 971 N.E.2d at 649 (“It is true that under Indiana law, the owner of
higher lands is not liable for flooding of lower lands caused by natural surface-
water drainage from his or her land.”). We therefore reverse the trial court’s
judgment in favor of Jacobs.
[20] Reversed.
Kirsch, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 8 of 8
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538 U.S. 970
WARDRICKv.UNITED STATES.
No. 02-9398.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
2
C. A. 4th Cir. Certiorari denied. Reported below: 50 Fed. Appx. 115.
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546 F.2d 1144
94 L.R.R.M. (BNA) 3066, 81 Lab.Cas. P 13,015
OIL, CHEMICAL & ATOMIC WORKERS INTERNATIONAL UNION, LOCAL #4-447, et al., Plaintiffs-Appellants,v.AMERICAN CYANAMID COMPANY, Defendant-Appellee.
No. 76-2346Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
Feb. 9, 1977.
Dennis M. Angelico, New Orleans, La., for plaintiffs-appellants.
Lawrence J. Molony, Terence E. Hall, New Orleans, La., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GODBOLD, HILL and FAY, Circuit Judges.
GODBOLD, Circuit Judge:
1
The union was awarded a judgment under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 et seq. for payment of unpaid vacation benefits under a collective bargaining agreement. The only issue is whether the court erred in declining to award pre-judgment interest (post-judgment interest was awarded).
2
The general federal rule is that in the absence of a statutory provision the award of pre-judgment interest is in the discretion of the court. Wolf v. Frank, 477 F.2d 467 (CA 5, 1973) (§ 10b-5 securities case); Dennis v. Central Gulf Steamship, 453 F.2d 137 (CA 5, 1972) (admiralty); Weeks v. Alonzo Cothron, 493 F.2d 538 (CA 5, 1974) (longshoremen and harbor workers); Solomon v. Warren, 540 F.2d 777 (CA 5, 1976) (DOHSA). The LMRA contains no explicit provision. We apply the general rule to this case. The Second Circuit has done the same. Lodges 743 and 1746 v. United Aircraft Corp., 534 F.2d 422 (CA 2, 1975).
3
No basis is shown for holding that the district judge abused his discretion other than the contention that plaintiffs should be given pre-judgment interest to make them whole. This reason would apply with respect to any § 301 suit in which plaintiff successfully sues for money allegedly due under the terms of a collective bargaining agreement. This is not alone sufficient basis for a finding of abuse of discretion.
4
AFFIRMED.
*
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I
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90 A.2d 421 (1952)
PETER BERETTA
v.
DURASTONE CO., Inc.
Eq. 2121.
Supreme Court of Rhode Island.
July 31, 1952.
Charles A. Kiernan, Providence, for petitioner.
Henshaw, Lindemuth & Siegl, Benjamin F. Lindemuth, Daniel S.T. Hinman, Providence, for respondent.
CAPOTOSTO, Justice.
This original petition under the workmen's compensation act, general laws 1938, chapter 300, article VIII, as amended by public laws 1949, chap. 2253. was brought to recover compensation for disablement from silicosis. Following a hearing in the superior court a decree was entered granting compensation, whereupon the respondent, hereinafter sometimes called Durastone, duly appealed to this *422 court. While the cause was so pending, petitioner died and his widow was made a party to the cause.
It is undisputed that while in the employ of respondent. Beretta became disabled on May 6, 1949 when a lung collapsed due to advanced silicosis. The respondent was a manufacturer of cast stone, a molded product composed of sand, cement, marble dust and tin slag. The manufactured product came from the mold with a coating or "skin" of sand about one-eighth inch thick on various sides, which coating was subsequently removed by means of a pneumatic drill. Beretta, who was sixty-five years old and a stonecutter for about forty-two years, was employed by respondent for more than ten years in removing the coating from the stone in the manner just described, which operation, according to him, raised "plenty of dust."
The ultimate and determinative questions in the case were: first, whether the air dust produced while Beretta was at his particular work, not when some other employee was cutting into the stone itself, contained sufficient free silica of respirable size to constitute a hazard of his employment; and secondly, whether he contracted silicosis while in respondent's employ.
The right to compensation for disablement from an "occupational disease or condition" is presently controlled by art. VIII of the act as amended. Prior to 1949 disablement from silicosis was provided for by art. VIII-A, which was the subject of consideration in Perez v. Columbia Granite Co., 74 R.I. 503, 62 A.2d 658. Chapter 2253 of the public laws of that year repealed art. VIII-A and added to the schedule of compensable occupational diseases and conditions set forth in G.L. 1938, chap. 300, art. VIII, § 2, the following: "32. Disability arising from silicosis or asbestosis."
Section 3 of chap. 300, art. VIII, provides that if the disablement or death of an employee from an occupational disease is due "to the nature of the employment in which such employee was engaged and was contracted therein, he or his dependents shall be entitled to compensation for his death or for his disablement * * *." Section 4 denies compensation unless the occupational disease was contracted as provided in § 3 "or in a continuous employment similar to the one in which he was engaged at the time of his disablement, within 24 months previous to the date of disablement, whether under one or more employers"; and further, that the time limit for contraction of the occupational disease therein prescribed shall not bar compensation in the case of an employee "who had continued in the same employment with the same employer from the time of contracting such occupational disease up to the time of his disablement thereby."
According to the medical evidence in the instant case silicosis is a disease and not a condition. Among other things, the trial justice made findings of fact to the effect that Beretta's disability from silicosis was due to the conditions under which he worked at Durastone. The respondent challenges such findings contending that they were erroneous as a matter of law. It argues that, under the act as it now stands, Beretta was not entitled to recover unless he established by competent proof that he contracted silicosis while in respondent's employ as a result of the hazard to which he was there exposed. In other words, its main contention is that the contraction of the occupational disease of silicosis within the time specified in the act and not mere disablement therefrom is the basic element that must be proved before a person is entitled to compensation under the act.
In view of the ambiguous language used in setting forth the findings in the decree appealed from and of respondent's contention with reference thereto, we examined the decision of the trial justice to ascertain whether he based it merely on Beretta's disablement from silicosis, as respondent argued. That such was the case is plainly evidenced by the following excerpts from the decision: "The collapse of the lung undisputedly was due to silicosis, and so it would seem to be clearly established that the disability arising from silicosis, was contracted in respondent's employment. The substantial question is: Was his disability arising from silicosis due to causes and conditions which were characteristic of and peculiar to his particular trade, occupation, process, or employment? * * * *423 There is room to debate the issue whether petitioner first contracted silicosis while in the respondent's employment. (italics ours) Assuming that he had contracted that disease before he entered respondent's employment, we are firmly satisfied that his disability from such disease is due to the causes and conditions which were characteristic of and peculiar to his trade and to the conditions under which he worked."
The applicable provisions of the act hereinbefore set forth require that a petitioner seeking compensation for disablement from silicosis has the burden of establishing not only that he was so disabled but also that such disease was due to the nature of the employment in which he "was engaged and was contracted therein" within the prescribed time. On the present record we are not warranted in expressing an opinion as to the merits of the case at this time. In our judgment the trial justice misconstrued the pertinent provisions of the act, which misconstruction affected his consideration of the evidence to such an extent that he did not make findings of fact on the real issue under the controlling law. In such a situation we would ordinarily remand the cause to the superior court for further hearing by the same justice, but we cannot do so in this instance as the trial justice whose decision is presently before us has retired.
For that reason we are of the opinion that in the interest of justice the cause should be tried de novo, without prejudice, however, to the rights of either party because of these proceedings. If in preparation for such trial the present petitioner, Beretta's widow, should desire to have determined by appropriate analysis the amount of free silica of respirable size in the air while the sand coating is being removed from the stone by the same operation Beretta was performing when he became disabled, she shall be allowed to do so at a proper time without objection from respondent.
The respondent's appeal is sustained, the decree appealed from is reversed without prejudice, and the cause is remanded to the superior court for a new trial in accordance with this opinion.
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996 F.2d 1214
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Donald R. BRYANT, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 92-2169.
United States Court of Appeals, Sixth Circuit.
June 17, 1993.
1
Before GUY and BATCHELDER, Circuit Judges, and MILES, Senior District Judge.*
ORDER
2
Donald R. Bryant appeals a district court order affirming the Secretary's denial of social security disability benefits. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. The parties have waived oral argument, and the panel unanimously agrees that oral argument is not needed in this case. Fed.R.App.P. 34(a).
3
Bryant filed an application for social security disability benefits with the Secretary, alleging disability due to a back injury. Following a hearing, the administrative law judge (ALJ) determined that Bryant was not disabled because he had the residual functional capacity to perform his past relevant work. The Appeals Council affirmed the ALJ's determination.
4
Bryant then filed a complaint seeking judicial review of the Secretary's decision. Over Bryant's objections, the district court adopted the magistrate judge's report and recommendation and granted summary judgment for the defendant. Bryant has filed a timely appeal.
5
Upon review, we determine that substantial evidence exists to support the Secretary's decision. Brainard v. Secretary of Health and Human Servs., 889 F.2d 679, 681 (6th Cir.1989) (per curiam). Substantial evidence supports the Secretary's conclusion that Bryant can do a limited range of light work and, therefore, is capable of performing his past relevant work as a security guard. Further, as Bryant can perform a limited range of light work, he does not match the vocational profile of the hypothetical claimant set forth at 20 C.F.R. § 404, Subpart P, App. 2, Section 201.00(h), Example 2. Substantial evidence also supports the Secretary's conclusion that Bryant does not suffer from disabling pain.
6
Accordingly, we affirm the judgment for the reasons set forth in the magistrate judge's report and recommendation filed on April 27, 1992, as adopted in the district court's order filed on August 13, 1992. Rule 9(b)(3), Rules of the Sixth Circuit.
*
The Honorable Wendell A. Miles, Senior U.S. District Judge for the Western District of Michigan, sitting by designation
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727 F.2d 1114
Armandv.Holmes*
NO. 83-3473
United States Court of Appeals,Eleventh Circuit.
FEB 23, 1984
1
Appeal From: M.D.Fla.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 23
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652 F.Supp. 598 (1987)
Jean Claude MARQUIS, Innocent Desir, Miclise Ocsuis, Edvar Nicholas, Wilfred Pierre, Hubert Delva, Luc Africain, Misius Tanus, Kesnel Olibrice, Prenance Sommerville, Jean Claude Madel, Valet Charles, Wilnor Valsaint, Paul Calixte, Sauveur Atilus, Merilien Pierrisaint, Soelle D'afinice, Frisner Sentil, Pierre Petit-Dor, Osijean Saint Fort, and all others similarly situated, Plaintiffs,
v.
UNITED STATES SUGAR CORPORATION, Atlantic Sugar Association, Gulf and Western Food Products, Co., Osceola Farms Co., Sugar Cane Growers Cooperative of Florida, Cane Contractors Inc., Sugar Cane Harvesting, Inc., Shawnee Farms, Inc., Okeelanta Corp., and Florida Fruit and Vegetable Association, Defendants.
No. 85-8388-CIV.
United States District Court, S.D. Florida, Fort Lauderdale Division.
January 30, 1987.
*599 Charles Kelso, Ann Margaret Pointer, David P. Brenskelle, Phillips M. Smalling, Fisher & Phillips, Atlanta, Ga., Charles S. Caulkens, Fisher & Phillips, Fort Lauderdale, Fla., for defendants.
Kristine Poplawski, Edward J. Tuddenham, Farmworker Justice Fund, Washington, D.C., James Green, Green, Eisenberg, & Cohen, West Palm Beach, Fla., Gregory Schell, Susan Campernolle, Legal Aide Bureau, Inc., Salisbury, Md., for plaintiffs.
ORDER
GONZALEZ, District Judge.
THIS CAUSE has come before the court upon the Motion to Dismiss filed by defendants in this action. Defendants are corporations involved in producing and harvesting sugar cane in South Florida. Defendant Florida Fruit and Vegetable Association is an association owned and controlled by its members, including each of the defendants named in the complaint. The FFVA acts as an agent for its members with respect to the recruitment, selection, hiring and transporting of United States and foreign cane harvest workers hired by defendants.
Plaintiffs are United States migrant farmworkers who have either sought employment or were employed by defendants at any time since January 1, 1980. This action challenges plaintiffs' exclusion from job opportunities in the Florida sugar cane industry. Plaintiffs claim that they have been systematically excluded from working as sugar cane cutters in favor of foreign laborers.
The hiring of foreign laborers by defendants is highly regulated. Non-immigrant aliens may be admitted into the United States to provide temporary labor or services only if unemployed persons capable of performing such services cannot be found in the United States. 8 U.S.C. §§ 1101(a)(15)(H)(ii) and 1184(c); 20 C.F.R. part 655. Department of Labor (DOL) regulations set forth requirements for determining the availability of U.S. workers and for determining whether an "adverse effect" will result from hiring foreign workers.
Plaintiffs' complaint avers that defendants prefer to hire foreign workers because they can be more selective in the hiring process. As a result, defendants allegedly use unlawful methods of excluding domestic *600 workers from the labor force. Plaintiffs allege that defendants manipulate the amount of sugar cane that U.S. workers must cut in order to maintain their jobs, discharge plaintiffs and other domestic workers for arbitrary and discriminatory reasons and maintain an industry wide blacklist against workers who have not completed a prior work contract. Plaintiffs also allege that defendants have abolished wage or benefit competition among themselves.
Plaintiffs have filed suit under federal and state antitrust laws; the Wagner-Peyser Act, 29 U.S.C. § 49 et seq.; the Farm Labor Contractor Registration Act (FLCRA), 7 U.S.C. § 2041 et seq.; and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 U.S.C. § 1801, et seq. Plaintiffs also seek relief for violations of their civil rights under 42 U.S.C. §§ 1981 and 1985(3). Plaintiffs seek declaratory and injunctive relief as well as actual, statutory and punitive damages.
Defendants have moved to dismiss the complaint, or in the alternative, for summary judgment. A motion to dismiss may be granted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Furthermore, the allegations in the complaint must be construed favorably to the plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). A motion for summary judgment may be granted only when the pleadings, admissions and affidavits show there is no genuine issue of material fact. Fed.R.Civ.P. 56; Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., et al, ___ U.S. ___, ___, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
The court has considered the pleadings and all matters on file and has heard the argument of counsel. The court has determined the plaintiffs' complaint must survive a motion to dismiss and, further, that genuine issues of material facts do exist. Defendants have raised several issues that require further discussion.
I. EXHAUSTION OF REMEDIES
Defendants move to dismiss plaintiffs' complaint in its entirety because plaintiffs have failed to exhaust their administrative remedies through the Job Service Complaint System, 20 C.F.R. 658.400 et seq.
Exhaustion of remedies may not be required where claims are grounded upon the Civil Rights Act, Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) or upon the Sherman Act, Midland Telecasting Co. v. Midessa Television Co., 617 F.2d 1141, 1149 (5th Cir.) cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980). Neither the FLCRA nor the MSPA require that alternative administrative remedies be exhausted prior to suit under those acts. 7 U.S.C. § 2050a, repealed by 29 U.S.C. § 1801, note; 29 U.S.C. § 1854.
Only plaintiffs' claims under the Wagner-Peyser Act, 29 U.S.C. § 49, et seq. arguably require exhaustion of administrative remedies. The court finds that, notwithstanding Farmworker Rights Organization (FRO) v. Weatherford, 767 F.2d 937 (11th Cir. 1985), plaintiffs' complaint under the Wagner-Peyser Act may stand.
"Courts will not require exhaustion when the administrative remedy is inadequate because it does not exist, or would not provide relief commensurate with the claim...." Panola Land Buyers Association v. Shuman, 762 F.2d 1550, 1556 (11th Cir.1985). Unlike FRO, where plaintiffs sought injunctive relief against the administrator of the U.S. Employment and Training Administration and the District Director of INS District 6, plaintiffs in this action seek damages and injunctive relief against private persons.[1] The sole sanction *601 available under the Job Service Complaint System is discontinuation of services to an offending employer. 20 C.F.R. § 658.416(d)(4). While services may be reinstated if the employer makes restitution or takes remedial action for the complainant, 20 C.F.R. §§ 658.504(a)(2)(ii) and 658.502 (a)(5)(ii), plaintiffs have no assurances of relief should they prevail on the merits. Compliance with the DOL regulations by employers is voluntary. It is clear that the administrative remedies available to plaintiffs may provide insufficient relief for the allegations set forth in their complaint.
II. IMPLIED ANTITRUST IMMUNITY
Defendants argue that their conduct is exempt from antitrust challenge because their actions are highly regulated by DOL regulations. However, "repeals of the antitrust laws by implication from regulatory statutes are strongly disfavored." United States v. Philadelphia National Bank, 374 U.S. 321, 350-51, 83 S.Ct. 1715, 1734-35, 10 L.Ed.2d 915 (1963). Implied repeals are found only where a defendant makes a "convincing showing of clear repugnancy between the antitrust laws and the regulatory system." United States v. National Association of Securities Dealers (NASD), 422 U.S. 694, 719-720, 95 S.Ct. 2427, 2442-2443, 45 L.Ed.2d 486 (1975); Gordon v. N.Y.S.E., 422 U.S. 659, 682, 95 S.Ct. 2598, 2611, 45 L.Ed.2d 463 (1975).
Defendants have failed to show a "clear repugnancy" between the antitrust laws and the DOL regulations, 20 C.F.R. part 655, the Wagner-Peyser Act, 29 U.S.C. § 49 et seq. or the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. No congressional intent to exempt importers of agricultural foreign labor from national antitrust policies can be gleaned from either of the statutes or the DOL regulations. Defendants therefore are not immune from antitrust liability.
III. PRIVATE CAUSE OF ACTION UNDER THE WAGNER-PEYSER ACT
The court also rejects defendants' argument that plaintiffs have no private cause of action under the Wagner-Peyser Act or its regulations. In Gomez v. Florida State Employment Service, 417 F.2d 569 (5th Cir.1969), the court held that a private cause of action for violations of the Wagner-Peyser Act did exist. However, as plaintiffs concede, the Supreme Court has subsequently set narrower standards for determining whether private rights of action may be implied from federal statutes. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975).
At least one court has re-examined the Gomez holding in light of the four-prong test enunciated in Cort. See Jenkins v. S & A Chaissan & Sons, Inc., 449 F.Supp. 216, 221-215 (S.D.N.Y.1978). In Jenkins, the court stated that "each of the four factors in Cort militates in favor of implying a private civil remedy for the migrant laborer plaintiffs in this action." Id. at 222. For the reasons set forth in the well-reasoned decision in Jenkins, 449 F.Supp. at 221-25, this court holds that plaintiffs may maintain their cause of action under the Wagner-Peyser Act and its regulations, 20 C.F.R. part 655.
IV. DISCRIMINATION BASED UPON NATIONAL ORIGIN
Defendants argue that plaintiffs' § 1981 claim should be dismissed as that section does not bar private discrimination based upon national origin. The court disagrees. Although § 1981 is primarily directed to racial discrimination, it "is not necessarily limited to the technical or restrictive meaning of `race.'" Manzanares v. Safeway Stores, Inc, 593 F.2d 968 (10th Cir.1979). This court previously recognized that a claim of national origin discrimination is cognizable under § 1981. Stroud v. Seminole Tribe of Florida, 574 F.Supp. 1043, 1046 (S.D.Fla.1983). Plaintiffs claim that they are discriminated against because of their Haitian origin. The court finds that § 1981 bars such discrimination.
V. STATUTE OF LIMITATIONS
Defendants argue that plaintiffs' claims are limited or barred entirely by applicable *602 statutes of limitations. Plaintiffs are challenging actions taken by the defendants from January 1, 1980 to date. The original complaint in this action was filed on July 9, 1985 and the amended complaint adding new plaintiffs was filed on September 19, 1985. For the reasons which follow, this court concludes that plaintiffs' claims are not time barred.
All parties agree that plaintiffs' federal and state antitrust claims are governed by a four year statute of limitations. 15 U.S.C. § 15b; Fla.Stat.Ann. § 95.11(3)(f). Thus, all of plaintiffs' antitrust claims occurring on or after July 9, 1981 fall within the limitations period and are not time barred. The July 9, 1981 limitation date also applies to those plaintiffs added in the amended complaint. The filing of class allegations in the first complaint tolled the statute of limitations for the entire putative class. Crown Cork and Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983).
Plaintiffs' complaint alleges continuing violations of the antitrust laws. Each refusal to hire plaintiffs gives rise to a claim. See Charlotte Telecasters v. Jefferson-Pilot Corp., 546 F.2d 570 (4th Cir. 1976). Plaintiffs allege that they were refused employment in August and September 1981 as a result of the industry blacklist. Thus, plaintiffs' antitrust claims are timely.
The court has considered the statutes of limitation applicable to plaintiffs' other claims. In light of the Supreme Court's decision in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the court concludes that plaintiffs' claims under 42 U.S.C. §§ 1981 and 1985(3) are subject to a four year statute of limitations. Fla.Stat.Ann. § 95.11(3)(o). These claims are therefore timely.
Similarly, the four year statute of limitations provided for actions on a "contract, obligation, or liability not founded on a written instrument" applies to plaintiffs' claims under the WPA, FLCRA and MSPA. Fla.Stat.Ann. § 95.11(3)(k). See Salazar-Calderon v. Presidio Valley Farmer's Assoc., 765 F.2d 1334 (5th Cir.1985) cert. denied, ___ U.S. ___, 106 S.Ct. 1245, 89 L.Ed.2d 353 (1986) (applying Texas' two-year limitation on actions to enforce debts not evidenced by a contract in writing).
All of plaintiffs' claims under 42 U.S.C. §§ 1981 and 1985(3) and under WPA, FLCRA and MSPA occurring on or after July 9, 1981 fall within the limitations and are not time barred.
In light of the preceding discussion, it is hereby
ORDERED AND ADJUDGED that the Motion to Dismiss, or in the Alternative, for Summary Judgment of the Defendants be and the same is DENIED.
NOTES
[1] This action is not barred by the doctrine of res judicata. The court dismissed the FRO complaint for lack of standing and did not issue a decision on the merits. Therefore, there is no bar against the present action. See American National Bank v. Federal Deposit Insurance Corp., 710 F.2d 1528, 1535-36 (11th Cir.1983).
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(2008)
ROCHE PALO ALTO LLC, Plaintiff,
v.
RANBAXY LABORATORIES LIMITED et al., Defendants.
Civil Action No. 06-cv-2003 (FLW).
United States District Court, D. New Jersey.
March 19, 2008.
OPINION
WOLFSON, District Judge.
Presently before the Court is the Motion of Defendants, Ranbaxy Laboratories Limited and Ranbaxy Inc., (collectively referred to as "Ranbaxy"), for Summary Judgment of Invalidity for Improper Inventorship on Plaintiff Roche Palo Alto LLC ("Roche")'s United States Patent, No. 6,083,953 (the "953 Patent"). Ranbaxy argues that the '953 Patent is invalid because the patent originally issued with improper inventorship and was not corrected until a Certificate of Correction was obtained after the commencement of this litigation. The parties disagree whether the Certificate of Correction was issued pursuant to 35 U.S.C. § 254 (given prospective effect and is the vehicle used to correct errors made by the United States Patent and Trademark Office ("USPTO") in issued patents) or 35 U.S.C. § 256 (given retroactive effect and is the vehicle used to correct inventorship errors). The Court finds that it is unclear from the record whether the USPTO issued the Certificate of Correction pursuant to Section 254 or 256. However, Defendants' Motion must still fail, because when a Certificate of Correction is issued for the sole purpose of correcting inventorship, it is proper to treat such Certificate of Correction under Section 256 and give it retroactive effect. To do otherwise would produce an anomalous result, inconsistent with the applicable statutory framework and public policy rationales promulgated by federal courts. Accordingly, the Court denies Ranbaxy's Motion for Summary Judgment of Invalidity for Improper Inventorship
I. BACKGROUND
On March 4, 1997, Roche filed U.S. Patent Application No. 08/812,991 (the "991 Application"), entitled "2-(2-AMINO-1, 6-DIHYDRO-6-OXO-PURIN-9-YL) METHOXY-1, 3-PROPANEDIOL DERIVATIVE." (Pl.'s Opp'n Fact St. ¶ 12; Def.'s Reply Fact St. ¶ 12). The 991 Application identified John J. Nestor, Scott W. Womble, and Hans Maag as joint inventors. (Jeffrey Z.Y. Liao, Esq., Decl. August 17, 2007, Ex. 9 at R0043991-91, R0043991-92). On July 14, 1999, the examiner allowed claims 23-28 of the 991 application, which became claims 1-6 of the '953 Patent. (Liao Decl. Ex. 9 at R0043851). On October 14, 1999, before the patent issued, Roche noticed that the inventorship of the patent application was incorrect, and filed an amendment and petition to add inventors under 37 C.F.R. § 1.48(a).[1] (Pl.'s Fact St. ¶ 15; Def.'s Fact St. ¶ 15). The amendment and petition sought to add Charles A. Dvorak and Paul R. Fatheree as additional inventors of the claimed subject matter. (Pl.'s Opp'n Fact St. ¶ 16; Def.'s Reply Fact St.¶ 16). In addition to the Rule 48 Petition, an Amendment under 37 CFR § 1.312(a) was also mailed to the USPTO on October 14, 1999, and received on October 18, 1999, which amended the specification and claims. (Liao Decl. Ex. 9 at R0043847-48). On March 10, 2000, the USPTO indicated that the Amendment under 37 CFR § 1.312 had been entered. (Liao Decl. Ex. 9 at R0043821).
The '953 Patent issued on July 4, 2000, naming only three inventors. On November 30, 2000, Roche sent a Status Inquiry to the USPTO indicating it still had not received any decision on the Rule 48 Petition, inquiring into the status of that petition, and requesting that the petition be granted, the amendment entered, and an appropriate notice be issued so that the change of inventorship would be properly noted in the public record. (Liao Decl. Ex. 9 at R0043800-801). On or about the time of the Status Inquiry, patent examiner Mark Berch noted in the margin of the Rule 48 Petition with his initials "MB" and date "11/00" that the Petition was "OK to Enter" (Liao Decl. Ex. 16). On December 28, 2000, approximately one month later, the USPTO acknowledged the Amendment and Petition To Add Inventors, under 37 CFR 1.48(a), by mailing to Derek Freyberg, the attorney of record of applicants of the 991 Application, a Corrected Filing Receipt naming John J. Nestor, Scott W. Womble, Hans Maag, Charles A. Dvorak, and Paul A. Fatheree as joint inventors. (Liao Decl. Ex. 9 at R0043798-99). However, the USPTO failed to correct the inventorship on the face of the patent.
On May 17, 2001, Roche mailed a request for a Certificate of Correction under 37 C.F.R, § 1.322 ("Rule 322 petition") to correct the omission of inventors Charles A. Dvorak and Paul R. Fatheree from the face of the issued patent. (Pl.'s Opp'n Fact St. ¶ 23; Def.'s Reply Fact St. ¶ 23). On May 21, 2001, the USPTO received the request. Id. The USPTO again took no action.
Roche sued Ranbaxy for alleged infringement of the '953 Patent on April 28, 2006, and filed an Amended Complaint on August 15, 2006. (Pl.'s Opp'n Fact St. ¶ 37; Def.'s Reply Fact St. ¶ 37). On June 26, 2007, David Fitzgerald, counsel for Roche, faxed to Michelle Williams, an employee of the Corrections Branch of the Office of Patent Publication of the USPTO, copies of the Status Inquiry dated November 30, 2000, and the Corrected Filing Receipt. (Liao Decl. Ex. 11). The deposition testimony of Roche's researchers confirmed that, at the time of their testimony, the '953 Patent did not name the complete list of inventors on its face. (Pl.'s Opp'n Fact St. ¶ 25; Def.'s Reply Fact St. ¶ 25; Liao Decl. Ex. 10). A Certificate of Correction issued on July 24, 2007 naming all five inventors: John Joseph Nestor, Scott William Womble, Hans Maag, Charles A. Dvorak and Paul A. Fatheree. (Pl.'s Opp'n Fact St. ¶ 25; Def.'s Reply Fact St. ¶ 25).
II. SUMMARY JUDGMENT STANDARD
A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir.2000). In deciding whether summary judgment should be granted, the Court considers "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits," Fed.R.Civ.P. 56(c), and construes all facts and inferences in the light most favorable to the nonmoving party. Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir.2002). The Court's function "at the summary judgment stage ... is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To successfully defend against a motion for summary judgment, a plaintiff cannot merely rely on the unsupported allegations of the complaint, and must present more than the "mere existence of a scintilla of evidence" in his favor. Id. at 252, 106 S.Ct. 2505. F
III. DISCUSSION
A. PRESUMPTION OF VALIDITY WHEN A PATENT IS CHALLENGED FOR IMPROPER INVENTORSHIP
A person is entitled to a patent unless he himself did not invent the subject matter sought to be patented. 35 U.S.C. § 102(f). "Omission of an inventor can invalidate a patent unless the omission was an error `without any deceptive intention.'" Acromed Corp. v. Sofamor Danek Group, Inc., 253 F.3d 1371, 1379 (Fed.Cir. 2001) (quoting 35 U.S.C. § 256) (citations omitted). However, every issued patent enjoys a presumption of validity. See 35 U.S.C. § 282. "Intent to mislead or to deceive must be proved by clear and convincing evidence. ... Deceptive intent is not inferred simply because information was in existence that was not presented to the examiner." C.R. Bard, Inc. v. MS Sys., Inc., 157 F.3d 1340, 1365 (Fed.Cir. 1998) (citation omitted), cert. denied, 526 U.S. 1130, 119 S.Ct. 1804, 143 L.Ed.2d 1008 (1999). Thus, "in order to rebut [the] presumption [of validity], a party challenging patent validity for omission of an inventor must present clear and convincing evidence" that shows the patent is invalid. Acromed, 253 F.3d at 1379 (citing Environ Prods, v. Furon Co., 215 F.3d 1261, 1265 (Fed.Cir.2000)).
B. CORRECTION OF NAMED INVENTOR UNDER 35 U.S.C. § 256
In the landmark case of Pannu v. Iolab, the Federal Circuit discussed the intricacies of correcting improper inventorship. See generally, Pannu v. Iolab, 155 F.3d 1344 (Fed.Cir.1998). To be valid, a patent must list the correct inventors of a claimed invention. Id. at 1348-9. Indeed, where the facts clearly demonstrate omission of an actual inventor from a patent, the court must declare the patent invalid. Id. at 1349. A party challenging the validity of a patent under Section 102(f) must show incorrect inventorship by clear and convincing evidence. Id.; see Hess v. Advanced Cardiovascular Sys., Inc., 106 F.3d 976, 980 (Fed.Cir.1997) (stating that "`the burden of showing misjoinder or nonjoinder of inventors is a heavy one and must be proved by clear and convincing evidence'" (quoting Garrett Corp. v. U.S., 190 Ct.Cl. 858, 422 F.2d 874, 880 (1970))), cert. denied, 520 U.S. 1277, 117 S.Ct. 2459, 138 L.Ed.2d 216 (1997).
"However, in cases of misjoinder and nonjoinder the operation of section 102(f) is ameliorated by Section 256." Id. at 1350; see MCV, Inc. v. King-Seeley Thermos Co., 870 F.2d 1568, 1570 (Fed.Cir. 1989) ("Before the enactment of section 256, patentees and their assignees committed inventorship errors at their peril; misjoinder or nonjoinder of an inventor rendered the patent invalid. Section 256 affords the opportunity to correct the patent."); see also S.Rep. No. 82-1979, at 7-8 (1952), reprinted in 1952 U.S.C.C.A.N. 2394, 2401-02 ("Very often two or three people make an invention together. They must apply as joint inventors. If they make a mistake in determining who are the true inventors, they do so at their peril. This provision permits a bona fide mistake in joining a person as [an] inventor or in failing to join a person as an inventor to be corrected.").
Section 256 provides in pertinent part:
Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Director may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error.
The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Director shall issue a certificate accordingly.
35 U.S.C. § 256.
When a party asserts invalidity under § 102(f) due to nonjoinder, a district court should first determine whether there exists clear and convincing proof that the alleged unnamed inventor was in fact a co-inventor. Upon such a finding of incorrect inventorship, a patentee may invoke Section 256 to save the patent from invalidity. Accordingly, the patentee must then be given an opportunity to correct inventorship pursuant to that section. Nonjoinder may be corrected `on notice and hearing of all parties concerned' and upon a showing that the error occurred without any deceptive intent on the part of the unnamed inventor.
Pannu, 155 F.3d at 1350; see 35 U.S.C. § 256; Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 1555 (Fed.Cir.1997) ("[T]he section allows addition of an unnamed actual inventor, but this error of nonjoinder cannot betray any deceptive intent by that inventor."); see also P.J. Federico, Commentary on the New Patent Act, 35 U.S.C.A. 1, 50 (1954), reprinted in 75 J. Pat. & Trademark Off. Soc'y 163, 211 (1993) ("[N]onjoinder of joint inventors shall not invalidate a patent if the mistake is one that can be corrected under the [sic, this] section, that is, arose by error and without deceptive intention, and gives a court authority to order correction.").
Moreover, the Federal Circuit has declared that "[a]bsent fraud or deceptive intent, the correction of inventorship does not affect the validity or enforceability of the patent for the period before the correction." Viskase Corp. v. American Natl Can Co., 261 F.3d 1316, 1329 (Fed.Cir. 2001); see also Canon Computer Sys., Inc. v. Nu-Kote Int% Inc., 134 F.3d 1085, 1088-89 (Fed.Cir.1998) (granting a preliminary injunction based on a patent subject to an inventorship challenge, based on a finding that, even if an error in naming inventors was shown, the patentee would have the opportunity to correct the error anyway); cf., Stark, 119 F.3d at 1554-56.
Furthermore, the frequently referenced Manual of Patent Examining Procedure (MPEP),[2] states that "correction of inventorship should be effected under the provisions of 35 U.S.C. § 256 and 37 CFR § 1.324 by filing a request for a Certificate of Correction if: (A) the only change being made in the patent is to correct the inventorship; and (B) all parties are in agreement and the inventorship issue is not contested." MPEP § 1412.04 at p. 1400-28. The text then refers to "MPEP § 1481 for the procedure to be followed to obtain a Certificate of Correction for correction of inventorship." Id.
Notably, MPEP § 1481.02 states that "[w]hile a request under 37 C.F.R. § 1.48 is appropriate to correct inventorship in a nonprovisional application, a petition under 37 C.F.R. § 1.324 is the appropriate vehicle to correct inventorship in a patent. ... Similarly, if a request under 37 C.F.R. § 1.48(a), (b), or (c) is filed in a pending application but not acted upon until after the application becomes a patent, the request may be treated as a petition under 37 C.F.R. § 1.324, and if it is grantable, form paragraph 10.14 set forth below should be used."[3] MPEP § 1481.02 at p. 1400-90.
C. CORRECTION OF USPTO MISTAKE UNDER 35 U.S.C. § 254
Section 254 sets forth the statutory framework for correcting an error made by the USPTO in an issued patent. See 35 U.S.C. § 254. Section 254 provides in pertinent part:
Whenever a mistake in a patent, incurred through the fault of the Patent and Trademark Office, is clearly disclosed by the records of the Office, the Director may issue a certificate of correction stating the fact and nature of such mistake, under seal, without charge, to be recorded in the records of patents. A printed copy thereof shall be attached to each printed copy of the patent, and such certificate shall be considered as part of the original patent. Every such patent, together with such certificate, shall have the same effect and operation in law on the trial of actions for causes thereafter arising as if the same had been originally issued in such corrected form. The Director may issue a corrected patent without charge in lieu of and with like effect as a certificate of correction.
35 U.S.C. § 254 (emphasis added). Consistent with the statutory language, and unlike Section 256, the Federal Circuit held, in an issue of first impression, that Certificates of Correction obtained pursuant to Section 254 are prospective, and thus, only apply to causes of action filed after the issuance of a Certificate of Correction. Southwest Software, Inc., v. Harlequin, Inc., 226 F.3d 1280, 1297, 1299 (Fed.Cir.2000).
In MPEP § 1480, the USPTO sets forth the procedure for correcting a patent pursuant to Section 254 and its corresponding regulations at 37 C.F.R. § 1.322. MPEP § 1480 at p. 1400-86 to 1400-87. The USPTO procedure for correcting a mistake under Section 254 is much more open and less specific than those promulgated for Section 256, however the MPEP does advise that the request be submitted on Certificate of Correction Form, PTO/SB/44 (also referred to as PTO 1050).
D. ANALYSIS
The parties in this case contest whether the .July 24, 2007 Certificate of Correction was issued pursuant to Section 254 or 256. Ranbaxy argues in its reply papers that the Certificate of Correction was issued pursuant to Section 254 and urges the Court to follow the Southwest Software, Inc. line of cases, which held that a Certificate of Correction pursuant to Section 254 only applies prospectively. Roche argues that the Certificate of Correction was issued pursuant to 256 and that the Court should follow Pannu v. Iolab and its progeny, which allows retroactive application of a Certificate of Correction for correction of inventorship. The Court finds that because: (1) correction of inventorship is directly addressed by Section 256; (2) the USPTO made an inadvertent mistake by not entering the original Rule 1.48 Petition in a timely manner; and (3) it is unclear from the record whether the USPTO issued the Certificate of Correction pursuant to Section 254 or Section 256, it is proper for the Court to treat the July 24, 2007 Certificate of Correction pursuant to Section 256.[4]
1. '953 PATENT PROSECUTION HISTORY
The issue of whether the July 24, 2007 Certificate of Correction was issued pursuant to Section 254 or Section 256 is conflated because Roche filed two separate petitions with the USPTO, one under each section. The first petition was received by the USPTO on October 18, 1999 and was sent before the '953 Patent issued. (Pl.'s Opp'n Fact St. ¶ 17; Def.'s Reply Fact St. ¶ 17). The petition was made pursuant to Rule 1.48(a), which is the proper vehicle to change improper inventorship prior to a patent issuing. 37 C.F.R. § 1.48(a). The Rule 1.48(a) Petition was not acted upon and the '953 Patent eventually issued July 4, 2000. As discussed infra p. 8, a Rule 1.48(a) Petition may be converted to a 1.324 Petition under Section 256, if the Rule 1.48(a) Petition has not been entered and the patent subsequently issues. On November 30, 2000, Roche sent a Status Inquiry to the USPTO indicating it still had not received any decision on the Rule 48 Petition and requested that the petition be granted. (Liao Decl. Ex. 9 at R0043800-801). While the USPTO acknowledged the request as "OK to Enter," and even sent a Corrected Filing Receipt naming all five inventors to Roche, the USPTO yet again failed to enter the correction of inventorship on the actual patent. (Liao Decl. Ex. 16; Liao Decl. Ex. 9 at R0043798-99).
On May 17, 2001, Roche sent a second petition to the USPTO pursuant to Section 254 "Correction of USPTO Mistake" under 37 C.F.R. § 1.322 ("Rule 322 petition") to correct the omission of inventors Charles A. Dvorak and Paul R. Fatheree from the face of the issued patent, which was received by the USPTO on May 21, 2001. Once more, no action was taken by the USPTO. On June 26, 2007, Roche again contacted the USPTO and faxed the November 30, 2000 Status Inquiry and Corrected Filing Receipt. (Liao Decl. Ex. 11). Finally, a Certificate of Correction was issued on July 24, 2007, naming all five inventors, however the form of the Certificate of Correction did not appear to be consistent with a Certificate of Correction issued pursuant to a 1.324 Petition as specified by MPEP § 1481.02.
Ranbaxy argues in its reply brief that Roche's patent was corrected under Section 254. To support that contention it relies on USPTO. procedure set forth in the MPEP and uses the supporting record as provided in the prosecution history of the '953 Patent. Specifically, MPEP § 1481.02 provides language that should be used when effecting a Certificate of Correction pursuant to Section 256 in a 1.324 Petition. See infra n. 3 at p. 8. As Ranbaxy points out, none of the suggested language was used in the July 24, 2007 Certificate of Correction. (See Liao Ex. 10, Certificate of Correction). In addition, USPTO procedure notes that "[p]etitions to correct inventorship of an issued patent are decided by the Supervisory Patent Examiner." MPEP § 1481.02 Examiner n. 1 at p. 1400-91. It does not appear from the record that the Supervisory Patent Examiner approved the Certificate of Correction since his or her signature was not included in the Certificate. (Liao Decl. Ex. 10). In fact, the Certificate of Correction is substantively identical with the Rule 322 Petition Roche filed pursuant to Section 254, right down to the wrong middle initial in Paul Fatheree's name. (Compare Ragan Decl. Ex. D with Liao Decl. Ex. 10). However, the Court notes that this error in the middle initial was also present in the filing receipt that the USPTO sent to Roche after the first petition was made. (See Liao Decl. Ex. 11). As such, the error in the middle initial is not dispositive as to whether the USPTO acted under Section 256 or Section 254. Although, the facts suggest that the patent examiner may have acted in accordance with a 1.322 Petition pursuant to Section 254 and not a 1.324 Petition pursuant to Section 256, the record does not yield a clear conclusion.
2. RETROACTIVE V. PROSPECTIVE EFFECT OF THE CERTIFICATE OF CORRECTION
Thus, to decide the extant issue, the prospective or retrospective effect of the correction of inventorship through a Certificate of Correction, the Court turns to the statutory framework mandated by Congress for the correction of an issued patent.[5] "To determine Congressional intent, we begin, of course, with the language of the statutes at issue. However, to fully understand the meaning of the statute, we look `not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.'" Associated Elec, Co-op., Inc. v. U.S., 226 F.3d 1322, 1326 (Fed.Cir.2000) (quoting Crandon v. U.S., 494 U.S. 152, 158, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990)).
In this case, the interplay between Section 254 and 256 is at issue.[6] Section 254 is an overarching section, which allows patentees to request the correction of an existing patent when such correction is necessary due to the mistake of the USPTO. 35 U.S.C. § 254. Section 256 is much more specific and deals with the narrow subset of circumstances where the inventorship of an issued patent is improper and must be corrected. 35 U.S.C. § 256. The very notion that Congress carved out a separate section for correction of inventorship indicates its intention to treat it in a different way than the much larger subset of corrections that Section 254 encompasses. Thus, here the canon of statutory interpretation known as generalia specialibus non derogant (general provisions do not qualify specific ones) is applicable. See, e.g., Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293, 300-01 (2d Cir.2002) (the court applied the statutory canon where application of the broad section would essentially consume the narrower reach of the subsection); cf., Williams v. U.S., 327 U.S. 711, 718 n. 17, 66 S.Ct. 778, 90 L.Ed. 962 (1946) (the court used the statutory canon so that the more specific enactment of congress rather than the more general previous enactment was applied); Rodgers v. U.S., 185 U.S. 83, 88-89, 37 Ct.Cl. 552, 22 S.Ct. 582, 46 L.Ed. 816 (1902) (the court used the statutory canon finding that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute); In re Albert Dickinson Co., 104 F.2d 771 (7th Cir.1939) (the court used the statutory canon applying the more specific section of the statutory framework to allow appeals from orders fixing compensation or disbursements to attorneys who render services); Strong Pub. Co. v. Comm'r of Internal Revenue, 56 F.2d 550 (7th Cir.1932) (the court applied the statutory canon to the tax code where the first three subdivisions of the income tax statute provision respecting invested capital deal with tangible property only, and following two subsections deal specifically with intangible property). If this Court were to hold to the contrary, that a change in inventorship, normally given retroactive effect under Section 256 was going to be treated prospectively under Section 254 due to an anomaly in USPTO procedure, it would put form over substance and completely negate the obvious statutory construction and rationale of the sections at issue.
Ranbaxy relies on a litany of cases holding that a Certificate of Correction under Section 254 only applies prospectively, and hence, does not extend to causes of action filed after the issuance of the certificate. However, every single one of those cases is inapposite to the present case because none of them are directed toward correction of inventorship. In Southwest Software, the Court held that when the USPTO omitted a 330 page Program Printout Appendix from the patent specification, the Certificate of Correction issued pursuant to Section 254 had to be applied prospectively. 226 F.3d at 1294, 1296. Similarly, in Intel Corp. Altima Comm'ns, Inc., 275 F.Supp.2d 1236 (E.D.Cal.2003), the court held that when the USPTO made an error in which a dependent claim failed to specify upon which claim it depended, the Certificate of Correction issued pursuant to Section 254 must be applied prospectively. Finally, in Karol v. Burton Corp., 234 F.Supp.2d 450 (D.Vt.2002), the court held that correcting an error by deleting a phrase appearing in three claims of an issued patent by a Certificate of Correction must be applied prospectively.
Southwest Software, Intel Corp., and Karol all regarded a substantive change to the patent at issue through a Certificate of Correction. The courts did not allow the Certificates of Correction to apply retroactively because the corrections changed the substance of the patent, and as such failed to put the public on notice of the new boundaries of the patented invention set forth in the Certificate of Correction. This is not the case with a correction of inventorship and that is why Ranbaxy was unable to cite to a single case that has held that a Certificate of Correction to correct inventorship must be applied only prospectively.
To the contrary, there are many federal cases that have given retrospective effect to a Certificate of Correction when it regards correction of inventorship, albeit all of these cases involve petitions under Section 256. But, that is the section which Congress intended to control such corrections, and as such, the most common vehicle used. Moreover, courts have recognized that obtaining a Certificate of Correction from the USPTO under Section 256 in response to a litigation challenge of invalidity for incorrect inventorship under Section 102(f) has often been used and upheld as a proper means of overcoming the inventorship issue. See, e.g., Winbond Electronics Corp.v. Int'l Trade Comm'n, 262 F.3d 1363, 1373 (Fed. Cir.2001) (after ITC found patent "unenforceable for failure to name an inventor," patentee sought and obtained correction of inventorship, returned to the ITC, and successfully enforced patent against infringer); Nichols Institute Diagnostics v. Scantibodies Clinical Lab., 218 F.Supp.2d 1243, 1248 (S.D.Cal.2002) (patentee acted properly by seeking and obtaining correction of inventorship in USPTO after accused infringer moved for summary judgment of invalidity under section 102(f)); E-Z Bowz, LLC v. Prof I Prod. Research Co., 2003 WL 22068573, *7, **17-19, 2003 U.S. Dist. Lexis 15364, at *19, **51-53 (S.D.N.Y.2003) (patentee acted properly by seeking and obtaining correction of inventorship in USPTO by a 1.324 Petition after accused infringer moved for summary judgment of invalidity under section 102(f)). Thus, the Court finds that even if the USPTO issued the Certificate of Correction as though it were a 1.322 Petition, and inadvertently ignored the prior Rule 1.48 Petition that would have been effected as a 1.324 Petition under Section 256, the equities and realities of the situation dictate that the certificate be treated as a 1.324 petition pursuant to Section 256 and be given retroactive effect.
This result is consistent with the intent of congress, federal case law, and good public policy. The inequity of a contrary holding is evident when considering what would have happened had Roche failed to file any petition to correct the improper inventorship of the '953 Patent. Under the current jurisprudence of the Federal Circuit, promulgated in Pannu and Viskase Corp., infra pp. 5-8, Roche would be entitled to an opportunity to correct inventorship through the district court, even if it did absolutely nothing to correct the improper inventorship beforehand. The Court would subsequently hold a hearing to determine if the omission was an error without deceptive intention. To invalidate the patent Ranbaxy would have the burden of proving by clear and convincing evidence that the omission was made with deceptive intent. See Pannu, 155 F.3d at 1350. If that high burden of proof could not be met by Ranbaxy, then the correction in inventorship would be given retroactive effect. See Viskase Corp., 261 F.3d at 1329; see also Canon Computer Sys., Inc., 134 F.3d at 1088-89. Here, no such hearing is necessary because the Certificate of Correction was already made indeed Roche's attempts to achieve correction spanned years of follow-up with the USPTO. Ranbaxy does not even allege that the omission was made with deceptive intent. Thus, the Court holds that the July 24, 2007 Certificate of Correction must be given retroactive effect and denies Ranbaxy's Motion for Summary Judgment for Improper Inventorship.
IV. CONCLUSION
In conclusion, the Court denies Ranbaxy's Motion for Summary Judgment for Improper Inventorship on the '953 Patent because Roche has properly sought and obtained a Certificate of Correction to correct its improper inventorship. Furthermore, the Court holds that the July 24, 2007 Certificate of Correction issued for correction of inventorship has retroactive effect. An appropriate Order will follow.
NOTES
[1] Internal Roche documents confirm and Roche concedes that the proper inventorship "should include ... five names." (Pl.'s Opp'n Fact St. ¶ 31; Def.'s Reply Fact St. ¶ 31).
[2] The MPEP does not have the force of law or the force of the rules in Title 37 of the Code of Federal Regulations, however it is "published to provide USPTO patent examiners, applicants, attorneys, agents, and representatives of applicants with a reference work on the practices and procedures relative to the prosecution of patent applications before the USTO. It contains instructions to examiners, as well as other material in the nature of information and interpretation, and outlines the current procedures which the examiners are required or authorized to follow in appropriate cases in the normal examination of a patent application." See MPEP at Foreword.
[3] Paragraph 10.14 "Treatment of Request Under 37 C.F.R. § 1.48 Petition Under 37 C.F.R. § 1.324, Petition Granted" sets forth the following form:
In re Patent No. [1]:
Issue Date: [2]: DECISION
Appl. No.: [3]: GRANTING
Filed: [4]: PETITION
For: [5]: 37 C.F.R. § 1.324
This is a decision on the request under 37 C.F.R. § 1.48, filed [6]. In view of the fact that the patent has already issued, the request under 37 C.F.R. § 1.48 has been treated as a petition to correct inventorship under 37 C.F.R. § 1.324.
The petition is granted.
The patented file is being forwarded to Certificate of Corrections Branch for issuance of a certificate naming only the actual inventor or inventors.
MPEP§ 1481.02 at p. 1400-91.
[4] Ranbaxy correctly notes in its reply brief that a correction of inventorship could have also been effected by a reissue application. (Defs.' Rep. Br. at p. 3). However, it would have been inappropriate in the current situation because a reissue under 35 U.S.C. § 251 should only be used by a patentee to correct inventorship where 35 U.S.C. § 256 is inadequate. See Ex parte Scudder, J69 U.S.P.Q. 814, 815 (Pat.& Tr. Office Bd.App.1971); A.F. Stoddard & Co. v. Dann, 564 F.2d 556, 567 n. 16 (D.C.Cir.1977).
[5] Ranbaxy also presents evidence, in the form of a survey of recent patents, that the USPTO has effected changes of inventorship through a 1.322 Petition under Section 254 for other patents, however the fact that the USPTO has allowed a change of inventorship under Section 254 does not negate the intent of Congress to effect such changes under Section 256 nor can it disregard the strong public policy rationale for making a change of inventorship retroactive in effect. (See Colman B. Ragan, Esq., Second Decl., September, 6, 2007, Ex. 1. 2, 3, 4).
[6] Neither party cites to the legislative history of Section 254 or 256.
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230 P.3d 923 (2010)
348 Or. 269
Jerry CARUTHERS, Petitioner,
v.
John R. KROGER, Attorney General, State of Oregon, Respondent.
(SC S057678).
Supreme Court of Oregon.
Decided April 29, 2010.
On Petitioner's Objections to Modified Ballot Title March 29, 2010.
Considered and Under Advisement March 31, 2010.
Thomas K. Doyle, Bennett, Hartman, Morris & Kaplan, LLP, Portland, filed the objections and the reply for petitioner.
Douglas F. Zier, Senior Assistant Attorney General, Salem, filed a response to petitioner's objections for respondent.
Before DE MUNIZ, Chief Justice, and GILLETTE, DURHAM, BALMER, KISTLER, and LINDER, Justices.[*]
PER CURIAM.
This ballot title review proceeding involving Initiative Petition 43 (2010) is before the court for a third time. See Caruthers v. Kroger, 347 Or. 660, 227 P.3d 723 (2010) (certified ballot title referred to Attorney General for modification); Caruthers v. Kroger, 348 Or. 63, 228 P.3d 549 (2010) (Attorney General's modified ballot title referred to Attorney General for further modification). In response, on March 23, 2010, the Attorney General certified a second modified ballot title, which we set out in full:
"Amends Constitution: Prohibits current and future elections laws from disqualifying registered voters' signatures on initiative/referendum petitions
"Result of `Yes' Vote: `Yes' vote sets aside many existing controls over initiative/referendum signature collection and verification process and prohibits the legislature from enacting statutes for those controls.
"Result of `No' Vote: `No' vote retains existing laws and regulations that control the initiative and referendum signature collection and verification process for determining if measure qualifies for ballot.
"Summary: Amends constitution. Initiative and referendum petitions qualify for ballot only when they are signed by a sufficient number of qualified registered voters. Currently, constitutional provisions, statutes, and administrative *924 rules establish requirements for signature collection, verification, and counting to prevent fraud, forgery, or improper signature gathering; for example, disqualifying entire petition signature sheet if circulator's signature is undated or date is crossed out. Measure prohibits the disqualification of any individual registered voter's signature on an initiative/referendum petition, even when signature on the petition was obtained in violation of current elections laws. Prohibits any future statute or administrative rule from disqualifying registered voters' signatures `for purposes of determining whether the initiative or referendum petition has obtained enough signatures to qualify for submission to voters.' Other provisions."
Petitioner has filed objections to the caption and the summary in the second modified ballot title. Petitioner argues that, contrary to this court's prior directions, the caption still focuses incorrectly on election laws that disqualify voters' signatures on initiative and referendum petitions. He also contends that the summary is insufficient. He complains that, by using only a minor technical deficiency as an example of an election law that the proposed measure would invalidate, the summary misleads voters into believing that the subject matter of the measure is the protection of voters' signatures against invalidation due to similar minor technicalities.
The court has reviewed the second modified ballot title and petitioner's objections, and has concluded that petitioner's objections do not demonstrate that the second modified ballot title lacks substantial compliance with the requirements of ORS 250.035. ORS 250.085(8) and (9). Therefore, the court will certify the second modified ballot title, quoted above, to the Secretary of State.
The second modified ballot title is certified to the Secretary of State.
DURHAM, J., dissented and filed an opinion, in which GILLETTE, J., joined.
DURHAM, J., dissenting.
Petitioner has filed objections to the caption and summary in the Attorney General's second modified ballot title. In my view, the objection to the second modified caption is well taken. For the reasons stated below, I would again refer the ballot title to the Attorney General for modification of the caption. Accordingly, I dissent from the majority's decision to certify the second modified ballot title to the Secretary of State.
Initiative Petition 43 (2010), if adopted by the voters, would amend the Oregon Constitution by curtailing the authority of the Oregon legislature to establish procedures for acceptance and verification of voter signature sheets filed in support of initiative and referendum petitions. The proposed measure would accomplish that result by granting to registered voters a constitutional right to have their signatures on petitions "counted" toward applicable total signature requirements.[1] By creating that sort of constitutional right, Initiative Petition 43 (2010) would invalidate a host of statutory requirements concerning the circulation, verification, and filing of petition signature sheets requirements that the legislature adopted to protect petition signers and voters from fraud, forgery, and other abuses by petition circulators. Petitioner contends that, despite three attempts, the Attorney General still has failed to compose a ballot title caption that accurately states the subject matter of the proposed measure. ORS 250.035(2)(a) (15-word ballot title caption must "reasonably identif[y] the subject matter of the state measure").
*925 The context for the court's consideration of petitioner's argument is a familiar one. In Yugler v. Myers, 344 Or. 552, 555, 185 P.3d 1110 (2008), this court stated:
"The caption serves as the `cornerstone for the other portions of the ballot title' and therefore must identify the proposed measure's true subject matter `accurately and in terms that will not confuse or mislead potential petition signers and voters.' Greene v. Kulongoski, 322 Or. 169, 174-75, 903 P.2d 366 (1995)."
This court has insisted that a ballot title caption describe a proposed measure's subject matter accurately and without confusion, because of the central importance of the caption to the decision-making process of petition signers and voters.
"The caption, which is the first information that most potential petition signers and voters will see, is pivotal. It must `inform potential petition signers and voters of the sweep of the measure.' Terhune v. Myers, 342 Or. 475, 479, 154 P.3d 1284 (2007). A caption should not `understate or overstate the scope of the legal changes that the proposed measure would enact.' Kain/Waller v. Myers, 337 Or. 36, 40, 93 P.3d 62 (2004). If a proposed measure has more than one subject, each should be identified in the caption if it is possible to do so within the 15-word limit. Novick/Sager v. Myers, 329 Or. 11, 16, 986 P.2d 1 (1999)."
Frazzini v. Myers, 344 Or. 648, 654, 189 P.3d 1227 (2008).
The review principles mentioned in those quoted passages of course apply in all ballot title review proceedings. The court, however, has been particularly vigilant in scrutinizing ballot title captions that allude to the creation of new legal rights or the modification of existing legal duties. The court's vigilance is especially justified when, as here, the proposed measure's text not only enacts a new legal "right," but also states, redundantly, that the measure guarantees the new right to every registered voter and that no other statute or rule may restrict the guaranteed new right. One case in particular illustrates that point. In Yugler, the proposed measure would have created a statutory requirement that judges deliver an instruction to juries informing them that each juror had the "right" and "duty" to judge both the facts and the law applicable to every case and to disregard a judge's instructions if the juror believed that those instructions would result in "an unjust verdict or judgment." 344 Or. at 554, 185 P.3d 1110 (quoting I.P. 17). The Attorney General seized on the words of the proposed measure in certifying the following ballot title caption:
"Requires Instructing Jury of Right/Duty to Disregard Law if Verdict Against Defendant is `Unjust'"
Id. The Attorney General defended the use of the "`right/duty'" characterization in the caption in part because it accurately reflected the words used in the proposed measure. This court disagreed, because, in that context, the terms "`right/duty'" implied that jurors had an existing right or duty to disregard applicable law in reaching a verdict. According to the court, that inference was incorrect and, moreover, it was debatable whether the proposed measure would create such a right or duty. Id. at 556, 185 P.3d 1110.
This court has declined to approve ballot title captions that repeat the "right," "duty," or similar jargon from a proposed measure's text, but fail to describe accurately the true scope of the legal changes that the measure would create. See Frazzini, 344 Or. at 655, 189 P.3d 1227 (certified caption, "Retroactively Repeals Law Granting State Privileges, Immunities, Rights, Benefits, Responsibilities of Marriage to Domestic Partners," was insufficient because it failed to accurately portray the separate subject of banning enactment of any law granting marriage benefits to same-sex domestic partners); Hunnicutt/Stacey v. Myers, 343 Or. 387, 392, 171 P.3d 349 (2007) (caption, "Limits Land Use Goals, Need for Consistency with Goals, to `Areas of Critical State Concern'" was insufficient because true legal effect was not described "limit," but rather nullification of requirement that local land use planning laws must comply with state land use planning law); Sizemore/Terhune v. Myers, 342 Or. 578, 588, 157 P.3d 188 (2007) (caption understated scope of measure's proposed changes *926 to Oregon law due to failure to disclose that measure (1) created "extensive enforcement provisions" regarding union security agreements, and (2) actually entitled employees to receive mandated representation services without sharing in the cost of the services); Fred Meyer, Inc. v. Roberts, 308 Or. 169, 174, 777 P.2d 406 (1989) (in caption, "Protects Petition Activity at Malls and Premises Open to Public," term "protects" was misleading, because it implied incorrectly that citizens had an existing legal right to gather petition signatures on all premises open to the public). Each of those cases was an application of a principle that this court has long observed in reviewing ballot titles:
"A ballot title should not misstate existing law, even by implication, and thereby create a spurious argument to support the measure's passage."
Dale v. Kulongoski, 321 Or. 108, 113, 894 P.2d 462 (1995) (citations omitted).
The justification for the court's insistence on looking behind the legal jargon in a proposed measure's text is readily apparent. A measure's text states the change or changes in law that the author hopes to enact. However, the measure's text is not meant to fulfill the task of a ballot title caption, i.e., to "reasonably identif[y] the subject matter of the state measure." ORS 250.035(2)(a). Any author of an initiative petition, in drafting a proposed measure, may use any terms he or she may desire, including politically attractive terms, to state the legal changes that the measure proposes. Similarly, an author may avoid referring in the text to politically unattractive costs or consequences of the approval of the proposed measure. However, as the cases cited in the previous paragraph confirm, the ballot title must identify accurately and clearly the proposed measure's subject matter without deference to any distorted or politically charged terminology that the measure's author may have selected, perhaps to boost the measure's appeal to voters.
The proposed measure would create a "right" in every registered voter to have his or her signature counted. But, by enacting such a "right" as a part of the Oregon Constitution, the measure also would invalidate a number of statutory controls that the legislature has created to protect voters from fraudulent practices by petition circulators. In net terms, the proposed measure would circumscribe the heretofore unquestioned authority of the legislature to regulate the procedures that govern the circulation of signature sheets and the verification of signatures on petitions. The question before the court is whether the latter consequence is part of the measure's subject matter and, if so, whether the Attorney General has identified that subject matter accurately.
The caption that the Attorney General first certified for Initiative Petition 43 (2010) provided:
"`Amends Constitution: Guarantees registered voter right to have signature counted in determining initiative/referendum qualification for ballot.'"
In Caruthers v. Kroger, 347 Or. 660, 227 P.3d 723 (2010), this court, after reviewing the relevant provisions of the constitution concerning the people's power of initiative and referendum, concluded that "the constitution empowers the legislature with the authority and responsibility of fleshing out the process." Id. at 664, 227 P.3d 723. The court then reviewed the array of statutes that the legislature had enacted, and the rules of the Secretary of State that it had authorized, to regulate the gathering and counting of signatures on initiative petitions. The court concluded: "[I]t is clear that proposed measure is intended to alter the signature gathering and sampling processes that we have described." Id. at 666, 227 P.3d 723. Referring to the measure's creation of a right to have a voter's signature "counted," the court identified the measure's subject matter in these terms:
"From those two provisions, it becomes clear that the subject of the measure is the removal of impediments to that counting, whether those impediments be statutory or rule-based. And that necessarily means that some of the processes by which signatures presently are vetted processes that can prevent the counting of certain individual signatures are to be set aside and that the legislature is forbidden to enact substitutes for them. The Attorney General's *927 caption fails to identify this subject, which is at the heart of the proposed measure. The Attorney General's certified caption, therefore, does not substantially comply with the requirements of ORS 250.035(2)(a). The ballot title therefore must be referred to the Attorney General for modification."
Id. at 668, 227 P.3d 723 (and citation omitted). The court also expressly agreed with petitioner's contention that the Attorney General's use in the caption of a phrase such as "right to have signature counted," even though taken from the measure's text, introduced a loaded term into the caption that should be avoided on referral. Id. The court referred the ballot title to the Attorney General for modification.
On referral, the Attorney General certified a modified ballot title with the following caption:
"Amends Constitution: Prohibits laws restricting count of registered voters' signatures to determine initiative/referendum qualification for ballot"
Petitioner filed objections to that modified ballot title, including the caption, arguing that the new caption failed to focus, as this court had required, on the statutes and rules that the measure would invalidate. This court agreed, stating:
"Petitioner is correct. This court did state in its earlier opinion that the proposed measure would remove some (not all) of the impediments to counting signatures, but specifically noted that the manner in which that would be accomplished was that
"`some of the processes by which signatures presently are vetted processes that can prevent the counting of certain individual signatures are to be set aside and * * * the legislature is forbidden to enact substitutes for them. The Attorney General's caption fails to identify this subject, which is at the heart of the measure.'
"Caruthers, 347 Or. at 668 [227 P.3d 723]. As further clarification, the opinion included examples of statutes and rules that would be affected by enactment of the proposed measure. Id. at 665 [227 P.3d 723]. Most such statutes and rules focus on practices and procedures that the legislature and the Secretary of State have considered desirable to ensure the legitimacy of the signature-gathering process and to regulate the activities of those who gather the signatures; few (if any) have as their principal focus or purpose the disqualification of signatures. Thus, as our previous opinion indicated (and as petitioner now argues), the subject of the proposed measure was the elimination of many existing controls on the present signature collection and verification process, together with a prohibition on creating substitutes for those controls. The Attorney General's caption still does not capture that subject. It must."
348 Or. at 68, 228 P.3d 549 (omission in original; emphasis added). The court referred the ballot title to the Attorney General for modification.
It is worth noting at this point that this court's two opinions created a clear message about the error that had infected the Attorney General's two captions. In response to that message, the Attorney General certified a second modified ballot title that included the following caption:
"Amends Constitution: Prohibits current and future elections laws from disqualifying registered voters' signatures on initiative/referendum petitions"
Petitioner has filed an objection to that caption. Petitioner notes that the new "yes" vote result statement does comply with the court's prior decisions. It states:
"Result of `Yes' Vote: `Yes' vote sets aside many existing controls over initiative/referendum signature collection and verification process and prohibits the legislature from enacting substitutes for those controls."
But the new caption bears little relationship to the "yes" vote result statement. According to petitioner, the caption again avoids this court's clear statements about what the caption must contain to pass muster.
In my view, petitioner is correct. The statement that the measure would "prohibit current and future elections laws from disqualifying *928 registered voters' signatures" wrongly identifies the measure's focus as "laws" that interfere with the counting of voters' signatures: this court already has rejected that erroneous focus in two previous captions. Despite this court's statement in its second opinion that "few (if any) [of the pertinent statutes and rules] have as their principal focus or purpose the disqualification of signatures[,]" id., the Attorney General's new caption again focuses on the prohibition of "elections laws * * * disqualifying registered voters' signatures * * *." That phrasing reflects an overreliance by the Attorney General on the creation by the proposed measure's text of a right to have a signature counted. The new caption fails to identify, as our prior opinions required, the proposed measure's true subject matter: "the elimination of many existing controls on the present signature collection and verification process, together with a prohibition on creating substitutes for those controls." Id.
The importance of requiring an accurate ballot title caption in his matter cannot be gainsaid. The proposed measure would amend the Oregon Constitution, and thus would remove the prospect of any later adjustment of the proposed measure's operation by the Oregon legislature.
Because the second modified ballot title caption merely recycles the same substantive information that this court already has rejected twice as insufficient, I would refer the second modified ballot title to the Attorney General for modification.
GILLETTE, J., joins in this dissenting opinion.
NOTES
[*] Walters, J., did not participate in the consideration or decision of this case.
[1] Initiative Petition 43 (2010) provides:
"In order to respect voter participation in the initiative and referendum process, and in order to ensure the integrity of public officials in reviewing signatures on petitions, the People add the following provision to Section 1, Article IV of their Constitution:
"Every registered voter who has signed an initiative or referendum petition that has been filed as provided in section (1)(2)(e) or section (1)(3)(b) of this Article is guaranteed the right to have his or her signature counted for purposes of determining whether the initiative or referendum petition has obtained enough signatures to qualify for submission to the voters. No statute or rule may restrict this right."
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375 B.R. 558 (2007)
In re MAPLE-WHITWORTH, INC., Alleged Debtor.
Michael N. Sofris, APC, Appellant.
v.
Maple-Whitworth, Inc.; United States Trustee; Roxanne Kamel; Larry Weinstock; Emanuel Perez; Mica Bintu-Brown, Appellees.
BAP No. CC-06-2096-KNB, Bankruptcy No. LA 04-32868 AA.
United States Bankruptcy Appellate Panel of the Ninth Circuit.
Argued and Submitted on March 21, 2007.
Filed September 4, 2007.
*559 *560 *561 *562 Michael N. Sofris, Beverly Hills, CA, Pro se Appellant.
Leo Fasen, Fasen & Associates, Beverly Hills, CA, for Maple-Whitworth, Inc.
Before KLEIN, NIELSEN[1] and BRANDT, Bankruptcy Judges.
OPINION
KLEIN, Bankruptcy Judge.
The procedure to obtain attorney's fees and costs under 11 U.S.C. § 303(i) in a dismissed involuntary bankruptcy is in issue.
The question is whether one may seek such an award from fewer than all petitioners, the answer to which necessitates determining the nature of the liability. We conclude that § 303(i) liability is joint and several, that a debtor need not join all petitioners in a request for a § 303(i) award, and that, unless the court makes a specific apportionment, a petitioner is entitled seek contribution from other jointly and severally liable petitioners who were not joined in the debtor's motion. Hence, *563 we AFFIRM the award of $42,257 against fewer than all of the petitioning creditors.
FACTS
The former involuntary alleged debtor, Maple-Whitworth, Inc., owns an apartment building in Beverly Hills, California, as to which two competing factions claimed corporate ownership and control: the Marlowe-Shlush Faction and the Mayman-Nathan Faction.
While the details, the skullduggery, and the dramatis personae are fascinating, all that matters for our purposes is that the involuntary bankruptcy case was an intermission in state-court litigation between the two factions over corporate control.
In the midst of that state-court litigation, appellant Sofris (Michael Sofris, APC, a professional law corporation owned by attorney Michael Sofris, which for convenience we refer to as an individual), who is aligned with the Mayman-Nathan Faction, joined by four individuals, filed an involuntary chapter 7 petition against Maple-Whitworth on October 28, 2004. Seven other petitioners holding small claims eventually, and in two phases, joined the petition pursuant to § 303(c).
The bankruptcy court recognized the Marlowe-Shlush Faction as being in control of the debtor corporation for purposes of the bankruptcy and dismissed the involuntary petition on October 11, 2005, making it explicit that the final determination of corporate ownership and control eventually would be made in the on-going litigation in state court.
After dismissal, the Marlowe-Shlush Faction moved on behalf of Maple-Whitworth for an award of costs and fees of $42,257, and punitive damages of $100,000 against appellant Sofris but, viewing Sofris as a ringleader who should bear primary responsibility, did not name the other eleven petitioners in the motion.
Sofris objected that the motion was procedurally and substantively defective. Without asserting any claims for contribution, he contended that the phrase "the petitioners" in § 303(i) requires all petitioners to be served before the court can consider an award and that a court cannot pick and choose among petitioning creditors when making an award.
In addition, based on a release executed on the corporation's behalf by a member of the Mayman-Nathan Faction, Sofris contended that Maple-Whitworth had waived its § 303(i) rights.
After continuing the initial hearing to permit service on all petitioners, the court awarded the requested $42,257 in fees and costs but, ruling that the petition was not filed in bad faith, rejected § 303(i)(2) damages. The court noted that the release executed by the Mayman-Nathan Faction would be effective if that faction later prevailed in the state-court litigation but did not at that time make further detailed findings regarding why it had previously recognized the Marlowe-Shlush Faction[2] Thus, in an order entered February 27, 2006, with accompanying findings that described the liability as "joint and several," the court awarded $42,257 against all of the petitioners who were served with the motion, without naming them. Sofris timely appealed.
On reconsideration, the court twice amended the order. The first amendment *564 named the ten of the twelve petitioners against whom the award was made. The second amendment deleted five of those ten petitioners because notice to them was defective. In the end, the $42,257 order was against only the five initial petitioners, each of whom was listed by name.
Neither of the amended orders was appealed.
ISSUES
1. Whether it was error to consider a § 303(i)(1) award without all petitioners having been named and served.
2. Whether it was error to award fees and costs under § 303(i)(1) against fewer than all the petitioners.
3. Whether the amount awarded under § 303(i) was correct.
STANDARDS OF REVIEW
We review statutory construction questions de novo. Duffy v. Dwyer, 303 B.R. 437, 439 (9th Cir. BAP 2003), aff'd, 426 F.3d 1041 (9th Cir.2005). Fee and cost awards under § 303(i) are reviewed for abuse of discretion. Higgins v. Vortex Fishing Sys., Inc., 379 F.3d 701, 705 (9th Cir.2004) ("Vortex Fishing II").
JURISDICTION
Federal subject-matter jurisdiction was premised on 28 U.S.C. § 1334(a) in this core proceeding under § 157(b). We have jurisdiction over this final order. 28 U.S.C. §§ 158(a) & (c).
DISCUSSION
The substantive nature of the liability of petitioning creditors affects the procedure for obtaining fee and cost awards under § 303(i) in dismissed involuntary cases. Sofris agrees that the liability is joint and several and so argued to the bankruptcy court. This comports with the statute, as we further explain before turning to the procedural implications of joint and several liability and the merits of the amount of the award.
I
Section 303(i) does not specify the nature of the award it authorizes to be made against petitioners when an involuntary petition is dismissed other than on consent of all petitioners and the debtor if the debtor has not waived the right to recovery.
Sofris argues that the term "the petitioners" in § 303(i)(1) means that a fee and cost award must be joint and several and may only be made against all petitioning creditors.
A
As all statutory analysis begins with the language of the statute, we look to § 303(i) and note that, where there is a dismissal without the debtor having waived compensation, the court "may" award attorney's fees and costs against "the petitioners" and, as against any petitioner that filed the petition in bad faith, may also award "damages proximately caused by such filing" and "punitive damages." 11 U.S.C. § 303(i).[3]
*565 This creates a compensation scheme that, in the precise words of the statute, provides for awards of an "attorney's fee," "costs," "damages proximately caused," and "punitive damages." Fees and costs "may" be awarded against "the petitioners."
The Supreme Court requires that statutes "be read as a whole," especially when dealing with adjacent subparagraphs that were constructed together. United States v. Atl. Research Corp., ___ U.S. ___, ___, 127 S.Ct. 2331, 2336, 168 L.Ed.2d 28 (2007) ("Atl.Research"); King v. St. Vincent's Hospital, 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991).
The § 303(i) scheme, then, is construed as an integrated whole in which each of its facets is assessed in the context of the remaining facets. Atl. Research, 127 S.Ct. at 2336; Wechsler v. Macke Int'l Trade, Inc. (In re Macke Int'l Trade, Inc.), 370 B.R. 236, 252 (9th Cir. BAP 2007). Hence, § 303(i)(2) informs analysis of the meaning of § 303(i)(1).
The Atlantic Research rule is consistent with Supreme Court precedent that the construction of the Bankruptcy Code is a "holistic endeavor" in which "a provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme." United Sav. Ass'n v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 065, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988); 2A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 46:5 (5th ed.1992) ("a subsection may not be considered in a vacuum").
B
Three glosses from case law further inform our analysis of § 303(i). First, the verb "may" ("the court may grant judgment") connotes the exigence of discretion in the court's decision whether to make an award based on the "totality of the circumstances." Vortex Fishing II, 379 F.3d at 706-07; accord, Susman v. Schmid (In re Reid), 854 F.2d 156, 159 (7th Cir.1988).
Second, in exercising this discretion, the court begins with a rebuttable presumption that reasonable fees and costs are authorized. Vortex Fishing II, 379 F.3d at 707. In other words, any petitioning creditor in an involuntary case "should expect to pay the debtor's attorney's fees and costs if the petition is dismissed." Id., 379 F.3d at 707 (quoting In re Kidwell, 158 B.R. 203, 217 (Bankr.E.D.Cal.1993)).
Third, § 303(i), as a comprehensive compensation scheme, preempts state-law causes of action (e.g., malicious prosecution) and provides an exclusive federal source of recompense predicated upon the filing of an involuntary bankruptcy petition. Miles v. Okun (In re Miles), 430 F.3d 1083, 1091 (9th Cir.2005).
C
Although Congress did not detail how to apply the multiple liability feature of the § 303(i) scheme, its decision to couch the remedies in terms of tort concepts of "damages proximately caused" and "punitive damages" is significant for purposes of divining the nature of the liability.
1
In addition to award of an "attorney's fee" and "costs" against "the petitioners," Congress authorized award of "damages proximately caused" and "punitive *566 damages" as to any petitioner filing in bad faith. 11 U.S.C. § 303(i). As noted, we view the scheme as an integrated whole and do not consider the terms in § 303(i)(1) in isolation from § 303(i)(2).
Proximate causation and punitive damages are both familiar concepts in the common law of tort. Since Congress based its scheme of remedies on these general tort concepts, it follows that Congress expected the remedies to be applied under the same common-law principles that apply when more than one person is liable for the same harm. See Atl. Research, 127 S.Ct. at 2339.
a
The idea that multiple parties may be liable for the same harm arises often in tort situations, and it is in tort that the basic doctrine regarding multiple liability has been forged. Tort doctrine is particularly apt because it is modulated by consideration of the effect of the precise, conduct of different actors who have varying degrees of involvement in, and responsibility for, the operative facts.
The traditional tort solution is joint and several liability. Here, the bankruptcy court held, without analysis, that the § 303(i)(1) liability of the petitioners is joint and several. As noted above, Sofris agrees that § 303(i)(1) liability is joint and several, does not contend that he is only severally liable, and does not contend that initial apportionment is mandatory.
Courts that have touched on the question likewise agree that, at the first level of analysis, the basic § 303(i)(1) liability is joint and several. In re Johnston Hawks Ltd., 72 B.R. 361, 366-68 (Bankr.D.Hawai`i 1987), aff'd, (D.Haw.1988), aff'd mem., 885 F.2d 875 (9th Cir.1989). Likewise, we have, by implication, treated such awards as joint and several. Jaffe v. Wavelength, Inc. (In re Wavelength, Inc.), 61 B.R. 614, 621-22 (9th Cir. BAP 1986).
Since this appeal presents only a question of joint and several liability in circumstances in which the court made an award against fewer than all petitioners and did not purport to apportion the award, we deal only with the consequences of joint and several liability in that setting.[4] Thus, we treat § 303(i) liability as presumptively joint and several at each of its two tiers, i.e., joint and several among § 303(i)(1) awards and joint and several among § 303(i)(2) awards.
b
Under the settled doctrines of joint and several liability and contribution, we reject Sofris' argument that he cannot be responsible for more than his pro rata share of liability and that all potentially liable parties must be joined.
Since we are dealing with federal law, we begin by confirming that the standard rule regarding torts over which federal law has cognizance the Federal Employers' Liability Act ("FELA") and admiralty is one of joint and several liability. Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 162-64, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003) ("Ayers").
As a statement of the nature of the federal common law of joint and several liability in the tort context, we look to the Restatements, principally the Restatement (Second) of Torts and, to the extent relevant, the Restatement (Third) of Torts. See Atl. Research, 127 S.Ct. at 2339.
*567 As hammered out in the tort arena, joint and several liability and its correlative doctrine of contribution permit adjustments for the purpose of taking into account the equities of a particular situation. There are two distinct, concepts: who is liable; and who actually pays.
The basic rule of joint and several liability is that each such person is responsible for the entire award and, unlike several liability,[5] bears the risk of uncollectability from co-obligors. RESTATEMENT (THIRD) OF TORTS § 10.[6] Moreover, one may sue and collect from "any" of the jointly liable persons, leaving adjustments to the doctrine of contribution. Id.[7] In other words, the risk of uncollectability among co-obligors is on the jointly liable persons rather than the plaintiff, who bears the risk only of total uncollectability.
In short, every jointly and severally liable person is presumed to be liable for the full amount even though there is no requirement that all potentially liable entities be joined as parties in a joint and several liability situation. Judgment can be obtained against one, or any number, of the jointly-liable parties for the full amount, and can be collected in full from any one of them, it being understood that there cannot be more than one satisfaction of the total award.[8]
*568 c
Applying these rules to joint liability under § 303(i), there is no merit to Sofris' contention that all petitioners must be made party to a motion for a § 303(i) award. Such a position runs counter to fundamental rules regarding joint and several liability that permit suing fewer than all the obligors. Ayers, 538 U.S. at 163, 123 S.Ct. 1210 ("Nothing is more clear than the right of a plaintiff, having suffered . . . a loss, to sue in a common-law action all the wrongdoers, or any one of them, at his election;") (quoting The "Atlas", 93 U.S. 302, 315, 23 L.Ed. 863 (1876) (ellipsis in original)). While the bankruptcy court had discretion to decline to proceed without joinder of all petitioners, it was not required to do so and was entitled to proceed without such joinder.
In context, the provision in § 303(i) that "the court may grant judgment against the petitioners" is merely a permissive designation of the universe of persons who may be liable. If suing all jointly-liable parties is not required in tort, there is no reason to think that § 303(i) is any different.
In short, it was permissible for the motion for a 303(i) award to have been directed solely against Sofris. Moreover, even if it had been directed against all petitioners, the entire $42,257 award could be collected from Sofris.
2
The potential harshness of permitting collection of all of a joint and several liability debt from only one of the obligors is ameliorated by the contribution and indemnity doctrines.
a
Contribution is an equitable remedy that protects the jointly-liable party who pays an inequitably disproportionate share of the liability by requiring others who are also liable to reimburse the party who paid. It is founded on principles of equity, assists in fair and just division of losses, and prevents unfairness and injustice. 18 AM.JUR.2D Contribution § 1 (1985); RESTATEMENT OF RESTITUTION § 81 (1937); accord, Atl. Research, 127 S.Ct. at 2339.
Contribution is also an independent right that is contingent and does not become enforceable until the one seeking contribution has paid a disproportionate share of the liability. Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 295 (9th Cir.1996)
(citing 18 Am.JuR.2D Contribution § 11, and RESTATEMENT (SECOND) OF TORTS § 886A(2), and RESTATEMENT OF RESTITUTION § 82(1)).
In addition, contribution is a personal right that may be assigned. Even though the common liability is joint, the liability of each joint obligor to contribute a proportionate share is several. 18 Am.JuR.2D Contribution §§ 3 & 11.
As an equitable remedy, contribution is governed by equitable principles and is not apodictic. Rather, it may be *569 applied only in a manner that comports with equity and notions of fairness.[9]
The underlying premise is that the person entitled to payment (be it a debtor under § 303(i) or a tort victim) does not bear the credit risk of not being able to collect against any particular joint obligor (an unsuccessful petitioner under § 303(i) or a tortfeasor). Thus, the full amount of a judgment can be collected against any one joint obligor, who then can then equilibrate the loss among the other joint obligors by using the muscle of contribution.
Two threshold rules are that there is no right of contribution until one has paid more than one's equitable share of a common liability and that contribution cannot exceed the amount paid by that party in excess of that party's equitable share. Although the entire judgment may be collected from one obligor, no co-obligor can be required to make a contribution in excess of his own equitable share of the liability. Atl. Research, 127 S.Ct. at 2339 (quoting RESTATEMENT (SECOND) OF TORTS, § 886A(2)); Compare RESTATEMENT (THIRD) OF TORTS § 23(a)-(b), with RESTATEMENT (SECOND) OF TORTS § 886A(2).[10]
Determining what constitutes the equitable share is not always easy. While the maxim that "equality is equity" provides the presumptive starting point, adjustments are permitted. Problems arise when a joint obligor is insolvent or beyond the jurisdiction of the court. The classic solution has been to divide the loss only among the solvent joint obligors against whom contribution awards may be expected to be effective. Thus, when there are three joint obligors, one of whom is insolvent *570 or beyond the jurisdiction, "the amount of contribution fairly allowable between the other two may reasonably be affected and the court may be expected to do what is fair and equitable under the circumstances." RESTATEMENT (SECOND) OF TORTS § 886A comment c; accord, RESTATEMENT (THIRD) OF TORTS § 23 comment g.
Unequal allocations that reflect comparative degrees of culpability are also permitted. Under the traditional view, unequal apportionment is permitted to avoid inequity, which entails a finding that equal allocation would be inequitable; the modern trend toward comparative fault does not require a focus on whether equal division would be inequitable. Compare RESTATEMENT (SECOND) OF TORTS § 886A comment c, with RESTATEMENT (THIRD) OF TORTS § 23(b) comments e & g; cf. United States v. Reliable Transfer Co., 421 U.S. 397, 410-11, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975) (adopting comparative negligence in admiralty).[11] Thus, in either a traditional joint and several liability regime or a modern comparative liability regime, the court has authority to make adjustments based on the circumstances in order to assure that contribution does not work an injustice.
Since in this appeal we are merely noting the general availability of contribution, we are not presented with any issue of whether there should be an unequal allocation in this instance or which method (traditional or comparative responsibility[12]) should be employed if unequal allocation is later determined to be appropriate. Those are questions better left to the future.
b
The indemnity doctrine applies in § 303(i) situations when a petitioning creditor has been promised, typically as an inducement to sign the petition, that all expense or liability of the involuntary petition will be borne by another person. Such promises are enforceable. Oakview Treatment Ctrs. of Kansas, Inc. v. Garrett, 53 F.Supp.2d 1184, 1191-92 (D.Kan.1999) (indemnity on § 303(i) liability); RESTATEMENT (THIRD) OF TORTS § 22.[13]
*571 Since indemnity and contribution are mutually exclusive, one with a right of indemnity has no right of contribution against the indemnitor. RESTATEMENT (THIRD) OF TORTS § 23(c).[14]
There could be indemnity issues here if Sofris or someone else used promises of indemnity to induce the various individual creditors holding small claims who joined as petitioners in two phases after the petition was filed.
II
The procedures to implement joint and several liability, contribution, and indemnity all oblige a defendant who is being singled out to take action. Sofris' contention that the debtor should, at the threshold, bear the risk of procedural difficulties in naming, locating, and serving all of the petitioners and that an award cannot be made against him unless the debtor does so turns the theory of joint liability on its head.
A
Procedures through which Sofris may protect himself from disproportionate liability are available both before and after a § 303(i) award is made.
1
First, Sofris could have made a motion within the contested matter to join the other petitioners as parties to the § 303(i) motion.[15] Federal Rule of Civil Procedure 21, which permits joinder of additional parties on motion of a party, applies in bankruptcy "contested matters." Fed.R.Civ.P. 21, incorporated by Fed. R. Bankr.P. 7021 & 9014.[16]
Although Rule 21 permits the court to add parties on its own authority, the burden to make such a motion was on Sofris. That he elected to forego this procedural *572 opportunity should not be held against the debtor. Having sat on his rights, he is in no position to complain on appeal about his own litigation choice.
2
Sofris could also have commenced a third-party action against other petitioners to obtain judgments against them in the event that a judgment was rendered against him.[17] This could have been accomplished as of right by way of an adversary proceeding separate from the § 303(i) motion. Fed. R. Bankr.P. 7001. Or, if the court had been persuaded to exercise its authority under Rule 9014(b) to direct that Rule 7014 apply to the § 303(i) "contested matter" motion (which Sofris could have requested by motion), it could have been done under the third-party procedure of Civil Rule 14. Compare Fed. R. Bankr.P. 9014(b), with id. 7014, incorporating Fed. R.Civ.P. 14.
3
Finally, if Sofris pays a disproportionate share of the $42,257, the independent equitable action in the bankruptcy court for contribution that we have described becomes available. This vestigal remnant of the old distinction between law and equity is still the traditional method of obtaining the equitable remedy of contribution. The action requires, as an essential element for relief, that the party requesting contribution has paid more than its equitable share of the judgment.
As a matter of federal common law, independent contribution actions continue to be available in FELA actions. Ayers, 538 U.S. at 162-63, 123 S.Ct. 1210. Similarly, contribution actions are permitted among joint tortfeasors who cause injury to longshoremen. Cooper Stevedoring Co., 417 U.S. at 113, 94 S.Ct. 2174.
To the extent that the remedial scheme created by § 303(i) does not implicate "uniquely federal interests" of the kind that oblige court to formulate federal common law, the question is whether Congress expressly or by clear implication envisioned a contribution right to accompany the § 303(i) remedies or whether Congress intended that the court could supplement the remedies enacted. Musick Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 290-92, 113 S.Ct. 2085, 124 L.Ed.2d 194 (1993); Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 638-45, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981).
As we have already explained, the choice by Congress to employ traditional tort remedies in the § 303(i) award scheme warrants the conclusion that Congress by clear implication either envisioned a contribution right to accompany § 303(i) remedies or intended that the courts could supplement the remedies with a right of contribution.
There are, to be sure, practical disadvantages to a separate action for contribution. In addition to the obvious inefficiencies of redundant litigation, if the joint and several obligors were not parties to the action in which the judgment was rendered, then that judgment's claim and issue preclusive effect on the unnamed parties may be clouded and could complicate subsequent contribution litigation by permitting them to litigate underlying liability. RESTATEMENT (SECOND) OF JUDGMENTS § 50.
Sofris could, however, have averted these inconveniences by taking direct action when confronted with the motion that *573 was not directed at all petitioners. His earlier inaction now constrains his alternatives.
B
This appeal illustrates the latitude a bankruptcy court has when dealing with multiple petitioners under § 303(i). In the end, a fee and cost award was made against only five of the twelve petitioners.
Such an award against fewer than all petitioners is consistent with other § 303(i) decisions. For example, a close examination of the facts in Vortex Fishing reflects that Ninth Circuit affirmed an award that was made against only some of the petitioners. Compare Liberty Tool & Mfg., Inc. v. Vortex Fishing Sys. Inc. (In re Vortex Fishing Sys., Inc.), 277 F.3d 1057, 1063 (9th Cir.2002) (more than four petitioners), with Vortex Fishing II (award against four petitioners); cf. Val Poterek & Sons, Inc., 169 B.R. at 905-06 (zero percent allocation to one petitioner).
We conclude that it neither was error for the court to have made a § 303(i) award without joining all potentially liable petitioners, nor was it error for the award to have been against fewer than all petitioners.
III
Sofris also challenges the merits of the award of attorney fees and costs as being unreasonable.
As noted, the amount of an award of an attorney's fee and costs under § 303(i)(1) is a matter of discretion to be assessed on the "totality of the circumstances" in a context in which the debtor has the burden to demonstrate that the amount requested is reasonable, subject to a rebuttable presumption in favor of entitlement to an award. Vortex Fishing II, 379 F.3d at 707.[18]
The "totality of circumstances" approach under § 303(i)(1) is different from the analysis of requests for compensation under 11 U.S.C. § 330 because the language of the two sections differs. All § 303(i)(1) requires is that the fee be "reasonable." In contrast, § 330 speaks of "reasonable compensation for actual, necessary services" subject to an elaborate set of statutory criteria. 11 U.S.C. §§ 330(a)(3)-(6). In effect, a § 303(i)(1) attorney's fee is an element of damages. Wavelength, Inc., 61 B.R. at 622-22; accord, Val Poterek & Sons, Inc., 169 B.R. at 907; In re Better Care, Ltd., 97 B.R. 405, 413 (Bankr.N.D.Ill. 1989); 2 COLLIER ON BANKRUPTCY ¶ 303.15[4] (Henry J. Sommer & Alan N. Resnick eds. 15th ed. rev.2006).
The debtor's evidence in support of the amount requested demonstrated attorney fees of $40,250 based on records of 161 hours billed at a rate of $250 per hour, $2,007 in documented costs, and the declaration of counsel. The court was persuaded that the debtor had carried its burden to demonstrate, over Sofris' objection in which he presented no counter-evidence, *574 that $42,257 was a "reasonable" amount to award.
Nor was the court persuaded that Sofris carried his burden to establish that the totality of the circumstances rebut the presumption in favor of the award. Pertinent circumstances include: (1) the merits of the petition; (2) the conduct of the alleged debtor; (3) reasonableness of the actions by petitioning creditors; (4) the motivation and objectives behind filing the petition; and (5) other case-specific matters. Vortex Fishing II, 379 F.3d at 707-08. Sofris made no such showing.
We cannot say that the court abused its discretion as to the amount of the award or the appropriateness of making an award in light of the totality of the circumstances.
IV
Nor do we perceive material error in the court's treatment of the putative § 303(i) release that was executed by Robert Nathan posing as president of the debtor. Although it would have been better if there had been precise findings, the court's reason for disregarding the putative release was not ambiguous. In the procedural posture of the case in which the court had recognized the Marlowe-Shlush Faction as being in control of the debtor, Mr. Nathan was an imposter. The court had recognized the Marlow-Shlush Faction as legitimate. The court correctly noted that the agreement would be effective only if it later was determined by state court that the Mayman-Nathan Faction controlled the debtor.
As a matter of procedure, the court's recognition of the contingency that the Mayman-Nathan Faction might ultimately prevail in its quest for control of Maple-Whitworth constitutes a recognition that relief could become appropriate under Federal Rule of Civil Procedure 60(b)(5) or (6) on the basis that the release was validly executed. Fed.R.Civ.P. 60(b)(5)-(6), incorporated by Fed. R. Bankr.P. 9024. A motion under Rule 60(b)(5) or (6) need only be made "within a reasonable time," which necessarily depends upon the factual context. Id. On such a motion, the prospect of which appears increasingly remote because the state court judgment appears to be final, the $42,257 judgment could be vacated and any sums collected could be recovered on a theory of money had and received.
CONCLUSION
We conclude that the § 303(i) liability of petitioners in a dismissed involuntary bankruptcy case is joint and several. There is no requirement that all petitioners be named in, and served with, a § 303(i) motion. Among other procedures, equitable rights of contribution and indemnity are available to protect a petitioner who is unfairly singled out in such a motion. There having been no abuse of discretion in the award, it is AFFIRMED.
NIELSEN, Bankruptcy Judge, dissenting in part and concurring in part:
As I am troubled by my able colleagues' application of an important bankruptcy statute, I respectfully dissent from sections I-C and II of the majority opinion. Specifically, the plain language of § 303(i)(1) requires that all petitioning creditors be served with an award motion. I must also dissent from a disregard of the error in the trial court's refusal to determine whether the alleged debtor had previously waived the fee award it sought. I gladly join in affirming the bankruptcy court's exercise of discretion to award fees and costs against appellant Sofris.
I
This appeal rests on a correct reading of § 303(i), which provides:
*575 If the court dismisses a petition under this section other than on consent of all petitioners and the debtor, and if the debtor does not waive the right to judgment under this subsection, the court may grant judgment
(1) against the petitioners and in favor of the debtor for
(A) costs; or
(B) a reasonable attorney's fee; or
(2) against any petitioner that filed the petition in bad faith, for
(A) any damages proximately caused by such filing; or
(B) punitive damages.
11 U.S.C. § 303(i) (emphasis supplied).
A
We know that § 303(i) is the exclusive source for damages predicated upon the filing of an involuntary bankruptcy petition. Miles v. Okun (In re Miles), 430 F.3d 1083, 1089-92 (9th Cir.2005) (state tort law action by non-debtors for damages from an involuntary bankruptcy is completely preempted by § 303).
The facts of this case involve conflicting claims regarding ownership and control of the alleged debtor. When the involuntary petition was dismissed, the alleged debtor failed to comply with an express court order to serve all petitioning creditors with its fee award request. The bankruptcy court nonetheless awarded fees and costs against some, but not all of the petitioning creditors. The question before us is how § 303(i) should be applied in this situation. The majority concludes that service on all petitioners is not required and imposes possible contribution liability on all of the petitioning creditors, whether they were served with the fee request or not.
The majority begins correctly. I join section I-A as it instructs that our statutory analysis starts with the language of the statute, that the § 303(i) scheme is construed as an integrated whole and that the Bankruptcy Code's construction is an endeavor where a provision appearing possibly ambiguous in isolation can be clarified by consideration of the remainder of the statutory scheme.
I would add that where, as here, the statute's language is plain, our sole function is to enforce it according to its terms. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (citation omitted). We give each word its common usage. Id.; see also Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (looking to the clear meaning of the word "neglect" by citing a dictionary definition). We must give meaning and import to every word in a statute. Negonsott v. Samuels, 507 U.S. 99, 106, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993). We presume that "`Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another.'" BFP v. Resolution Trust Corp., 511 U.S. 531, 537, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (citation omitted).
Applying these rules, Congress expressly stated "against the petitioners" in identifying those potentially liable for attorney fees and costs. § 303(i)(1). Simultaneously, it omitted this language in providing that a court may award punitive damages against "any petitioner that filed the petition in bad faith." § 303(i)(2) (emphasis supplied). Thus, liability for a bad faith petition expressly need not be considered against all petitioners. Presuming that Congress has acted intentionally and purposefully in choosing different language for two adjacent subsections, the common meaning would be that all petitioning creditors *576 must be considered for potential § 303(i)(1) liability.
It is difficult to perceive how § 303(i)(1) authorizing an award against "the petitioners" can be read as "some" or a "few" of them. Such a reading is particularly suspect when Congress, in the same statute, provides express verbiage to identify less than all petitioners for bad faith awards in § 303(i)(2): "against any petitioner". It is difficult to appreciate why the drafters would use both "the petitioners" and "against any petitioner" to mean exactly the same thing in adjacent subsections of the same statute. A natural reading of § 303(i) is that, absent bad faith, a fee and cost award is to be considered against all petitioners. "When the words of a statute are clear, `judicial inquiry is complete.'" Security Leasing Partners, LP v. ProAlert, LLC (In re ProAlert, LLC), 314 B.R. 436, 441 (9th Cir. BAP 2004) (citation omitted).
B
At least initially, the trial judge agreed with this construction of the statute. Upon discovering that the alleged debtor had not served all petitioning creditors, the court ordered service on all such parties:
Another reason I think I should continue this is, I think this motion should be served on all the petitioners and they should be given notice to the fact that they might be liable for costs, attorney's fees and damages. It is a pretty serious matter. I think they should be I want to be sure that they know what is going on.
Counsel replied:
Sure, your Honor. Well, fees were not requested against them because Michael Sofris was the spearhead and he was the main named petitioning creditor on the involuntary petition and there would be joint and separate liability. But in any event, notice can be served on them, even though fees were not requested against them.
The court responded:
Okay. Well, I think I think well there is an issue, too, as to whether you can pick and choose.
Hrg. Tr. 2, January 4, 2006 (emphasis supplied).
At a subsequent hearing the court indicated:
However, I do think it is appropriate to impose attorney's fees and costs on the petitioning creditors here. I think that essentially a presumption in the law, [sic] I have discretion whether to award those or not. I think given this case, given the lack of evidence to show that the that there wasn't a bona fide dispute regarding the petitioning creditors' claims, I am going to make the award.
So I am going to grant the attorney's fees and costs as against all of the petitioning creditors, which I think I have to do under the statute. So, to that extent I am granting the motion and the total of that sum of course would be the $42,257.
Hrg. Tr. 9, February 1, 2006 (emphasis supplied).
But it was not to be. Although the court clearly stated its intent to sanction all petitioners, two of them (Sinclair and Zeff) were excluded from the award because they were not served as directed. This change in the intent to sanction all petitioners occurred in open court. Upon discovery of the service failure, the court summarily resolved the matter:
All right. Whoever they whoever of the petitioning creditors got served I thought that was all of them, at least initially, but maybe it wasn't.
*577 MR. FAITH: Initially that is correct, your Honor, but there were two more, I believed, that supplemented.
THE COURT: All right. Whoever got served, whoever had notice. I think that is clear, isn't it?
Mr. Kaplan: Yes.
Id. at 10-11.
While it is clear that bankruptcy courts have authority to sanction less than all petitioning creditors under § 303(i), I doubt that discretion on such a serious matter can be exercised "on the fly" as occurred here. More importantly, movants cannot, deliberately or through error, bring less than all petitioning creditors before the court under the clear meaning of § 303(i)(1).[19]
C
I also join the majority regarding the bankruptcy court's broad discretion in § 303(i) awards. First, the statute's use of the permissive "may," rather than the mandatory "shall," contemplates that fees and costs will not always be awarded. Higgins v. Vortex Fishing Sys., Inc., 379 F.3d 701, 705-06 (9th Cir.2004). A court exercises discretion in the award. Id. at 706.
Higgins adopted the "totality of the circumstances" as the appropriate award standard. Id. at 707. However, the panel cautioned it did not abandon the premise that any petitioning creditor should expect to pay debtor's attorney's fees and costs, if the petition is dismissed. An alleged debtor's motion for fees and costs raises a rebuttable presumption that reasonable fees and costs are authorized. This presumption reinforces the principle that filing an involuntary petition is not lightly undertaken. It discourages inappropriate, frivolous filings. An involuntary petition should be a measure of last resort, since even if filed in good-faith, it can chill credit and supply sources and scare away customers. Id. at 707.
Higgins noted that:
[O]nce the debtor has satisfied the burden of demonstrating the reasonableness of the fees requested, lilt is then the petitioning creditors' burden to establish, under the totality of the circumstances, that factors exist which overcome the presumption, and support the disallowance of fees.' However, this does not give the petitioning creditor license to conduct additional discovery and present evidence on an issue that has already been decided. The rebuttable presumption framework allows the court, which by this point in the process has heard all the evidence surrounding dismissal, to make `an informed examination of the entire situation' without the burden of conducting another minitrial.
Id., (citations omitted).
Finally, bankruptcy courts consider additional relevant factors before awarding attorney's fees and costs: (1) the merits of the involuntary petition; (2) any improper conduct of the alleged debtor; (3) reasonableness of the actions by petitioning creditors and (4) the motivation and objectives behind filing the petition. This list is not exhaustive. Id. at 707-708.
Here the bankruptcy court, possibly dealing with a demanding docket and well aware that it could not enter judgment against unserved petitioners, elected to *578 conclude the matter by an award against those whom the alleged debtor managed to serve, rather than granting a second continuance due to service issues. This practical resolution nevertheless allowed the alleged debtor to elude the clear requirement of § 303(i)(1) that all petitioners are to be brought before the court.
D
I detect no undue procedural obstacle from a clear statutory reading that requires naming and serving all petitioners when seeking a § 303(i)(1) award. Judicial discretion and flexibility are preserved. Individual petitioners are free to make their case to the judge as to why the rebuttable presumption of a reasonable fee award should not be imposed against them. Indeed, I question how a bankruptcy court could engage in the broad "totality of the circumstances" review mandated by Higgins, when robbed of the opportunity to have all petitioners appear and potentially explain their individual roles in prosecuting the petition.[20]
II
The majority evades the requirement of presenting all petitioners to the court by a remarkable wholesale importation of common law tort remedies into a federal cause of action that is exclusively statutory. We are instructed that state tort lawsuits are not to be used for such damages. Miles, 430 F.3d at 1091. It is unclear what perceived ambiguity in § 303(i) drives this incorporation. But there must be something. Otherwise, we are to stop our work and simply enforce the statute according to its terms. Ron Pair Enters., 489 U.S. at 241, 109 S.Ct. 1026.
A
The majority states that § 303(i)(2) (the subsection not applicable to this case) mentions "damages proximately caused" and "punitive damages" and these terms are ". . . both familiar concepts in the common law of tort."[21] From this, it follows for them that Congress based its scheme of § 303(i) remedies on general common law tort principles, which traditionally result in joint and several liability.
It is important to first note that the statute does not mention joint and several liability. Accordingly, this liability concept cannot itself cause an ambiguity that prevents application of the statute as written. Nor is there a need, in my view, for the extensive discussion of this liability theory that the majority provides. As they recognize, the error assigned by appellant is not that the sanction imposed involved joint and several liability. As they further recognize, we have yet to expressly read this liability concept into the award statute, treating it to date only by implication. I would leave a definitive discussion and possible incorporation of joint and several liability in some form, if at all, for another day and case, when it is clearly raised.[22]
B
The majority's thorough discussion of joint and several liability, contribution and indemnity highlights the mischief that can *579 occur by the wholesale application of common law tort concepts into an exclusively bankruptcy statutory cause of action. Under the majority's analysis, there is no need to name or even notice all petitioners when a § 303(i)(1) award is sought against fewer than all. Unnamed and unserved petitioners do not escape liability, however. They can be brought to account, possibly long after the award was entered in their absence, when the named party decides it has paid a disproportionate and inequitable share of the liability. The named party can even assign this contribution right to others. While the unnamed parties might mount an indemnity defense, we are not told if they may ask the bankruptcy judge to reopen the original award itself. Vehicles to mount this satellite litigation might include a joinder motion,[23] a third-party complaint in a separately filed adversary, third-party practice in the contested matter itself, (if the court so permits) or an independent contribution action.
The majority admits to "practical disadvantages" and "obvious inefficiencies of redundant litigation" arising under this incorporation. They correctly raise the possibility that issue or claim preclusion of the award "may be clouded" as to unserved petitioners. However salutary this tort scheme works in non-bankruptcy courts, in bankruptcy it is far better to establish a single forum granting all potentially liable parties the opportunity to appear when adjudicating a § 303(i)(1) matter in the first instance. More than an efficient procedure, it is, I believe, statutorily required.[24]
In sum, the remedial scheme of § 303(i) is comprehensive, specifically addressing the full range of remedies from costs and fees to compensatory and punitive damages. It, is for Congress to decide what penalties are appropriate, when they are to be utilized and who benefits from them. Those unsatisfied with the remedies provided in the Bankruptcy Code should look to Congress for supplementation. Miles, 430 F.3d at 1092 (citing cases). For the purposes of this particular case, we need only apply the statute as written. We should close our tort books.
III
Appellant argues that the court erred in not enforcing an alleged settlement and release, executed on December 12, 2005. The petitioning creditors and alleged debtor purportedly agreed that, in exchange for payment of $1,000, the award motion would be withdrawn. The agreement was signed by Robert Nathan, identified as the alleged debtor's president.
Appellee disputed the release's validity as a "bogus settlement" at the award hearing. The bankruptcy court entered the award without deciding the waiver's validity, apparently believing that state court proceedings would eventually resolve the matter:
. . . if that is a valid settlement, that would sort of supersede what I do here anyway, if in fact that is a you are talking about the point release, right? . . . [i]f it turns out that that is a valid release, then it is a valid release.
Hrg. Tr. 1-2, February 1, 2006.
The majority affirms this procedure, concluding that (1) Mr. Nathan was found to be posing as the debtor's president and was an imposter and (2) regardless, if a *580 state court subsequently ruled that Mr. Nathan's faction was in control, then the waiver would be effective and sums paid could be collected in a subsequent suit. This affirmance allows abdication of bankruptcy court jurisdiction over this matter without a definitive ruling.
Since I lack the majority's information on the unmasking of Mr. Nathan as an imposter[25], I can only comment that if the bankruptcy court believed his agreement was unauthorized, it should have so ruled and rejected the waiver. It was inappropriate to leave the matter for subsequent resolution by our state colleagues.
We recently noted that a waiver by the debtor of the right to judgment is one of only two charted safe harbors from § 303(i) remedies. Wechsler v. Macke International Trade, Inc. (In re Macke International Trade, Inc.), 370 B.R. 236, 256-57 (9th Cir. BAP 2007). Concordantly, our circuit characterizes the absence of a waiver as being one of "only two prerequisites" for an award under § 303(i)(1). Higgins, 379 F.3d at 705. It is an important matter. When, clearly raised, as it was here, it must be disposed of prior to making an award.[26] It cannot be left for subsequent resolution by another court.
IV
In conclusion, I perceive no error in the bankruptcy court's award of attorney's fees and costs against appellant and concur with the affirmance of that award. However, ever, as the bankruptcy court was not permitted to consider an award against all petitioning creditors, solely because of a service failure and given the lack of an express finding that the alleged release was invalid as a waiver of such fees, I respectfully dissent from the majority's disposition and would reverse and remand, on those issues.
NOTES
[1] George B. Nielsen, Jr., Bankruptcy Judge for the District of Arizona, sitting by designation.
[2] The state court later ruled in favor of the Marlowe-Shlush Faction. Judgment After Bench Trial, Mayman v. Marlowe, No. BC310024 (Super. Ct., Los Angeles County, July 31, 2006). Sofris objected to inclusion of the judgment in Appellee's Appendix but does not contest its authenticity. As the state court's public docket reflects entry of the judgment, we take judicial notice.
[3] The precise language of § 303(i), which has not been amended since 1986, is:
(i) If the court dismisses a petition under this section other than on consent of all petitioners and the debtor, and if the debtor does not waive the right to judgment under this subsection, the court may grant judgment
(1) against the petitioners and in favor of the debtor for
(A) costs; or
(B) a reasonable attorney's fee; or
(2) against any petitioner that filed the petition in bad faith, for
(A) any damages proximately caused by such filing; or
(B) punitive damages.
11 U.S.C. § 303(i). In 1986, a damages provision ("(C) any damages proximately caused by the taking of possession of the debtor's property by a trustee . . .") was deleted from § 303(i)(1). Pub.L. 99-554, § 204, 100 Stat. 3088, 3097 (Oct. 27, 1986).
[4] Although Sofris did not appeal the amended orders that resulted in an award being made against only five of the twelve petitioners, the original order was against fewer than all petitioners. As that has not changed, this appeal is not moot.
[5] The Restatement (Third) provides:
§ 11. Effect of Several Liability. When, under applicable law, a person is severally liable, to an injured person for an indivisible injury, the injured person may recover only the severally liable person's comparative-responsibility share of the injured person's damages.
RESTATEMENT (THIRD) OF TORTS § 11.
Historically, several liability was employed where a harm was divisible, but eventually came to be applied to include comparative liability for an indivisible injury. It has the effect of placing the risk of insolvency or uncollectability on claimants because recovery is limited and contribution is not available. Id. § 11 comments a b & Reporter's Note.
[6] The Restatement (Third) provides:
§ 10. Effect of Joint and Several Liability. When, under applicable law, some persons are jointly and severally liable to an injured person, the injured person may sue for and recover the full amount of recoverable damages from any jointly and severally liable person.
RESTATEMENT (THIRD) OF TORTS § 10.
The description in the Restatement (Second) was:
§ 878. Persons Subject to a Common Duty. If two or more persons are under a common duty and failure to perform it amounts to tortious conduct, each is subject to liability for the entire harm resulting from failure to perform the duty.
RESTATEMENT (SECOND) OF TORTS § 878.
[7] The Restatement (Second) used the phrase "one, some, or all" to describe which parties to sue:
§ 882. Joinder of Parties. If each of two or more persons is subject to liability for the full amount of damages allowed for a single harm resulting from their tortious conduct, the injured person can properly maintain a single action against one, some or all of them.
RESTATEMENT (SECOND) OF TORTS § 882.
The Restatement (Third), in describing the so-called "A Track" (pure joint and several liability) for §§ 18-21 regarding methods of apportionment explains the traditional rationale:
Joint and several liability has two important consequences. First, a plaintiff may sue and recover all damages from any defendant found liable. This puts the burden of joining and asserting a contribution claim against other potentially responsible persons on the defendant. Second, the risk that one or more legally responsible parties will be insolvent or otherwise unavailable to pay for the plaintiffs injury is placed on each jointly and severally liable defendant the plaintiff does not bear this risk.
RESTATEMENT (THIRD) OF TORTS § A18 comment a.
[8] The Restatement (Second) commentary to § 879 puts it thus:
In situations in which all of the tortfeasors are liable for the entire harm, the injured person is entitled to maintain an action against one or any number of the tortfeasors and to obtain judgment against any one or any number for the full amount of the harm, although no more than one satisfaction can be obtained for the harm.
RESTATEMENT (SECOND) OF TORTS § 879 comment b (cross-references omitted).
This comment retains validity under "Track A" (pure joint and several liability) of the Restatement (Third):
While this Section [§ A18] supersedes § 879 of the Restatement Second, Torts, it effects no change in the rule stated therein.
RESTATEMENT (THIRD) OF TORTS § A18 comment a.
[9] The equitable nature of the remedy is explained in the commentary to the Restatement (Second) of Torts:
c. Equitable nature of contribution. Contribution is a remedy that developed in equity and there is a considerable body of case law dealing with the equity rules governing it, for example in the cases of contribution between joint contract debtors. The rule stated in Subsection (1) is intended to take over and apply these rules of equity so far as they are pertinent. The "right of contribution" stated is not intended to be an absolute right in all cases; and in any case in which contribution would be inequitable it is still intended that a court will deny it. Likewise, when there are three tortfeasors and one of them is clearly insolvent or is beyond the jurisdiction, the amount of contribution fairly allowable between the other two may reasonably be affected and the court may be expected to do what is fair and equitable under the circumstances.
RESTATEMENT (SECOND) OF. TORTS § 886A, comment c. The equitable underpinnings of contribution in joint and several liability situations has become obscured in the Restatement (Third) of Torts by the emphasis on the nowdominant comparative liability regimes.
[10] The provisions from the second and third Restatements can profitably be compared. The version before there Was an attempt to accommodate comparative liability regimes was:
(2) The right of contribution exists only in favor of a tortfeasor who has discharged the entire claim for the harm by paying more than his equitable share of the common liability, and is limited to the amount paid by him in excess of his share. No tortfeasor can be required to make contribution beyond his own equitable share of the liability.
RESTATEMENT (SECOND) OF TORTS § 886A(2).
The version that reflects comparative liability regimes and also subsumes pure joint and several liability regimes is:
(a) When two or more persons are or may be liable for the same harm and one of them discharges the liability of another by settlement or discharge of judgment, the person discharging the liability is entitled to recover contribution from the other, unless the other previously had a valid settlement and release from the plaintiff.
(b) A person entitled to recover contribution may recover no more than the amount paid to the plaintiff in excess of the person's comparative share of responsibility.
RESTATEMENT (THIRD) OF TORTS § 23(a)-(b).
[11] These authorities reflect on-going developments in allocating liability among multiple persons. In 1999, the American Law Institute adopted the Restatement (Third) of Torts: Apportionment of Liability to address various facets of the problem. Our focus is on Topic 2 ("Liability of Multiple Tortfeasors for Indivisible Harm") and Topic 3 ("Contribution and Indemnity"). RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY §§ 10-E21. By 1999, only 15 states retained pure joint and several liability in tort. Id. § A 18 comment a. Although the Supreme Court adopted comparative liability for admiralty actions in Reliable Transfer, it has ruled that the language of the FELA was too specific to warrant departure from a settled regime of joint and several liability, with contribution rights, in FELA actions. Ayers, 538 U.S. at 161-65, 123 S.Ct. 1210.
[12] While there are cogent decisions that allocate § 303(i) awards unequally at the time of making the awards, their underlying theory of allocation is ambiguous because their facts appear to support both traditional "avoiding inequity" analysis in which the court is announcing how it would allocate contribution claims to avoid inequity and modern comparative contribution analysis in which allocation may freely be made. In re Val W. Poterek & Sons, Inc., 169 B.R. 896, 905-06 (Bankr. N.D.Ill.1994) (zero percent of award allocated to relatively innocent petitioner); In re Oakley Custom Homes, Inc., 168 B.R. 232, 242 (Bankr.D.Colo.1994) (apportioning § 303(i)(1) award unequally). It is settled as a matter of federal common law that it is permissible to make the contribution allocation at the time of making the initial award. See Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 108-10, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974).
[13] The indemnity provision is:
(a) When two or more persons are or may be liable for the same harm and one of them discharges the liability of another in whole or in part by settlement or discharge of judgment, the person discharging the liability is entitled to recover indemnity in the amount paid to the plaintiff, plus reasonable legal expenses, if:
(1) the indemnitor has agreed by contract to indemnify the indemnitee, or
(2) the indemnitee
(i) was not liable except vicariously for the tort of the indemnitor, or
(ii) was not liable except as a seller of a product supplied to the indemnitee by the indemnitor and the indemnitee was not independently culpable.
(b) A person who is otherwise entitled to recover indemnity pursuant to contract may do so even if the party against whom indemnity is sought would not be liable to the plaintiff.
RESTATEMENT (THIRD) OF TORTS § 22.
[14] That provision is:
(c) A person who has a right of indemnity against another person under § 22 does not have a right of contribution against that person and is not subject to liability for contribution to that person.
RESTATEMENT (THIRD) OF TORTS § 23(c).
[15] Although the award was made against Sofris and nine other petitioners, the motion was never amended or, even deemed amended, to include those other petitioners as parties. The award was amended to delete the five petitioners who later asked to be deleted from the $42,257 award because the notice to them did not indicate that they were parties to the motion. Four other petitioners appear to be similarly situated but did not appeal. We express no view about whether they still can obtain relief.
[16] Rule 21 provides:
Misjoinder of parties is not ground for dismissal. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.
Fed.R.Civ.P. 21, incorporated by Fed. R. Bankr.P. 7021 & 9014 (emphasis supplied).
[17] The order resolving a motion that is a "contested matter" under Rule 9014 has the status of a judgment under Civil Rule 58, even if it is denominated as an order. Fed. R. Bankr.P. 9021, incorporating Fed.R.Civ.P. 58.
[18] The Vortex Fishing II court explained:
[O]nce the debtor has satisfied the burden of demonstrating the reasonableness of the fees requested, "[i]t is then the petitioning creditors' burden to establish, under the totality of the circumstances, that factors exist which overcome the presumption, and support the disallowance of fees." However, this does not give the petitioning creditor license to conduct additional discovery and present evidence on an issue that has already been decided. The rebuttable presumption framework allows the court, which by this point in the process has heard all the evidence surrounding dismissal, to make `an informed examination of the entire situation' without the burden of conducting another mini-trial.
Vortex Fishing II, 379 F.3d at 707 (citations omitted).
[19] The majority reports that their close examination of Vortex. Fishing reveals that our circuit affirmed an award made against only some petitioners. I've already indicated my belief that bankruptcy courts can do this, under procedurally proper circumstances. My reading of Vortex fails however, to discern that this precise issue was either raised or decided in that case.
[20] If service on all petitioners could be established as impossible, I would presume the court could still act against those capable of being served. That is certainly not the circumstances of this case.
[21] As no authority is cited for this proposition, I'm allowed to quibble that my government dictionary advises' proximate cause is also a criminal term and that punitive damages are sometimes available in breach of contract actions. Black's Law Dictionary 234, 418 (8th ed.2004).
[22] Since the statute neither includes nor excludes this concept, I see no reason to prohibit bankruptcy courts from entering multiple party liability on a basis other than joint and several in an appropriate case.
[23] If I am correct that the statute requires the movant to bring all petitioners before the court, then to require the respondent to do, by a Civil Rule 21 motion, that which the movant should have done is hardly equitable.
[24] The majority's holding regarding unserved petitioners' contribution liability creates due process concerns. See, e.g., Miller v. Cardinale (In re DeVille), 361 F.3d 539, 548-49 (9th Cir.2004) (discussing particularized notice requirements for sanctions).
[25] The majority reports an inquiry outside this record reveals a subsequent superior court ruling in favor of one faction. Since there is no indication this was presented to the bankruptcy court, I see no relevance. I would grant appellant's request to strike certain exhibits, including a state court judgment never presented to the bankruptcy court and keep our investigators home. See Dorothy W. Nelson, et al., Ninth Circuit Civil Appellate Practice, ¶ 4:16 at 4-3 (2001) (citing United States v. Walker, 601 F.2d 1051, 1054-55 (9th Cir.1979)); Morrison v. Hall, 261 F.3d 896, 900 (9th Cir.2001).
[26] It may not be necessary to conduct a full evidentiary hearing. The majority believes that a court ruling has been entered between the parties or their privies regarding the alleged debtor's ownership and control. If a binding, final judgment has been entered, it would constitute the basis for a summary preclusion ruling by the bankruptcy court.
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713 So.2d 1071 (1998)
Frances Thompson KNOIZEN, Appellant,
v.
Jenina M. BRUEGGER, Appellee.
No. 97-2080.
District Court of Appeal of Florida, Fifth District.
July 10, 1998.
Gary L. Sanders of Pattillo, McKeever & Bice, P.A., Ocala, for Appellant.
Roger B. Butcher and Gus R. Benitez of Benitez & Butcher, P.A., Orlando, for Appellee.
THOMPSON, Judge.
Frances Thompson Knoizen appeals a final order denying her motion for new trial following a verdict for Jenina M. Bruegger in a personal injury case. Knoizen raises several issues on appeal, only one of which is discussed as the others have no merit. We affirm.
Bruegger was severely injured when her motorcycle collided head-on with the Knoizen's car. The medical evidence presented during the trial established that Bruegger was severely injured. After the accident, Bruegger's bladder was lying in the sand. She suffered an open book pelvis injury and five major pelvic fractures. As a result of the accident, she also sustained a very extensive vaginal laceration. Bones protruded into her skin and into the vaginal wound. Other injuries included a broken femur and an open wrist fracture. She lost physical support for her bladder, and her bladder and uterus are prolapsed.
Knoizen contends on appeal that the trial court erred during Bruegger's closing argument by allowing her attorney to make reference to damages sustained by her children and family. During closing argument, Bruegger's attorney stated:
*1072 And now she's sitting here damaged for life with the most devastating injury a woman can suffer. Devastating to her, devastating to her family, to her kids, devastating to everybody that knows her and cares for her. Devastating.
* * *
Please don't leave her alone to deal with that. Don't leave her bare and naked, like this accident has already left her, and her children and her family. Don't leave her like that.
Knoizen timely objected and was overruled. Knoizen argues that the closing argument was an improper attempt to invoke jury sympathy to inflate the recovery of damages, and that it went well beyond the scope of the evidence and issues presented. Moreover, she urges, the argument was an attempt to inflame the passions of the jury. See School Bd. of Palm Beach County v. Taylor, 365 So.2d 1044, 1047 (Fla. 4th DCA 1978) (holding the plaintiff's argument was, in effect, argument for punitive damages). Accord Russell, Inc. v. Trento, 445 So.2d 390 (Fla. 3d DCA 1984). We disagree. To warrant reversal on the ground that a closing argument was an improper appeal to the jury's emotions, the argument must be "highly and patently prejudicial." Erie Ins. Co. v. Bushy, 394 So.2d 228, 229 (Fla. 5th DCA 1981). Here, the closing argument is supported by the facts. Bruegger is 34 years old and the mother of six minor children. Before the accident, she was involved in weight lifting, karate, and aerobics, and actively played with her children. Two of her children testified that since the accident she experiences pain and tires quickly when she tries to play with them. Further, she is unable to do household chores.
When reviewed in light of the serious and debilitating injuries, and the testimony from family members about the substantial changes in her life, we find the closing argument only marginally objectionable. Attorneys are given broad latitude during closing, but they must confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence. Venning v. Roe, 616 So.2d 604 (Fla. 2d DCA 1993) In this case, the testimony supports the argument that the accident had a devastating effect upon Bruegger and her family.
Further, Knoizen has not established that any improper closing argument was so "pervasive, inflammatory, and prejudicial to preclude the jury's rational consideration of the case." Hagan v. Sun Bank of Mid-Florida, N.A., 666 So.2d 580 (Fla. 2d DCA 1996). Cf. Superior Industries Int'l, Inc. v. Faulk, 695 So.2d 376 (Fla. 5th DCA), rev. denied, sub nom., Hopper v. Superior Industries Int'l, Inc., 700 So.2d 685 (Fla.1997); D'Auria v. Allstate Ins. Co., 673 So.2d 147 (Fla. 5th DCA 1996); State v. Fritz, 652 So.2d 1243 (Fla. 5th DCA 1995); Walt Disney World Co. v. Blalock, 640 So.2d 1156 (Fla. 5th DCA), rev. dismissed, 649 So.2d 232 (Fla.1994); Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993); Schubert v. Allstate Ins. Co., 603 So.2d 554 (Fla. 5th DCA), rev. dismissed, 606 So.2d 1164 (Fla.1992).
AFFIRMED.
GRIFFIN, C.J., and ANTOON, J., concur.
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471 N.E.2d 726 (1984)
William L. McMichael, Sr., Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 4-684A148.
Court of Appeals of Indiana, Fourth District.
December 6, 1984.
Rehearing Denied February 8, 1985.
*728 Ronald K. Smith, Muncie, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
MILLER, Presiding Judge.
William L. McMichael, Sr. was convicted of the criminal neglect of his dependent 22-month-old son, William L. McMichael, Jr. (Billy), for failure to provide adequate medical care. Billy died as a result of an abdominal trauma, which deteriorated into peritonitis, a condition the jury resolved should have been treated a significant time prior to death. McMichael claims such jury verdict was improperly swayed by two slides of Billy's body and was not supported by sufficient evidence. He also contends that, regardless of our decision with respect to the verdict, the trial court's four-year sentence was unjustifiable because it was based on improper considerations. We affirm both the verdict and the sentence.
ISSUES
1. Did the trial court err in admitting a pair of slides into evidence over McMichael's objection that they were gruesome in nature, served no purpose in proving or disproving any facts at issue, and were unduly prejudicial?
2. Was the evidence insufficient to sustain the jury's verdict that McMichael was guilty of neglect of a dependent?
3. Did the court's probation officer employ improper considerations in preparation of his recommendation of sentence, including the following: statements to McMichael that the probation officer considered this a case of murder; statements that McMichael's wife should have been charged with the offense; and asking McMichael if he would submit to a polygraph examination?
FACTS
On March 23, 1983, between 4:45 and 5:00 P.M., the Delaware County Ambulance Service responded to a call requesting assistance at the McMichael residence in Muncie. When the emergency medical personnel entered the home, they observed 22-month-old Billy lying naked on the floor with McMichael kneeling beside him. One paramedic noticed Billy's abdomen was grossly distended and bloated and that there were both old and recent bruises on his body, visible even in the semi-dark house. Determining from Billy's grayish color that he was not getting enough oxygen in his blood-stream, the emergency team established an airway into his trachea and transported the child to Ball Memorial Hospital. Billy died later that evening.
At trial, a pathology resident at Ball Memorial Hospital, Dr. Daniel House, testified to medical conclusions he had reached as a result of performing an autopsy on Billy's body. He observed multiple bruises over the major part of Billy's anatomy, including his face and head, all along his spine, and on his external genitalia. The other distinctive feature he found was the *729 massive swelling of Billy's abdomen, which was so swollen it was hard. Dr. House's examination of the inner body cavity itself revealed additional abnormalities. He discovered Billy's abdomen contained about one-half quart of a bloody, foul-smelling liquid where normally no liquid is present. Further examination revealed the source of this liquid was an infection (peritonitis) resulting from the irritation and inflammation of the intestinal tissues by digestive juices escaping through two perforations in Billy's small intestine. Dr. House testified the perforations had probably been caused by a blow to Billy's abdomen, the severity of which caused his small intestine to be twice pierced by his spine and his left kidney to be bruised. As a result of the infection's fluid having nowhere to go, Billy's abdomen swelled. He further testified the peritonitis was a chronic type, having existed for more than 48 hours prior to death.
As for the symptoms of the infection, Dr. House stated that for the first twelve hours from its onset, the victim would run a high fever and vomit continuously. After the vomiting stops, the victim has no desire to eat but within the next twelve hours, his abdomen will begin to cause increasing discomfort and will swell. The pain would be so great that a child would not want to move and would resist efforts to make him do so. After 24 hours, the victim's abdomen will increasingly distend, and the victim will often experience muscle spasms in the abdomen. As for combatting the peritonitis itself, Dr. House explained that the best chance of survival exists within the first twelve hours, and he likened the damage to the intestine to a prolonged chemical burning of its surface. He explained that treatment is more difficult after the first twelve hours but not impossible. Succinctly then, Dr. House pronounced the cause of Billy's death was a blow to his abdomen, perforating his small intestine and resulting in a peritonitis (abdominal infection) over 48 hours old and sepsis (infection of whole body).
In his defense, McMichael called forth several character witnesses then took the stand himself. He described how he acquired custody of Billy, as well as his older sister, from his ex-wife. He had had a doctor check the children over because of visible signs of abuse inflicted by his former wife. He said that in the four or five months he had had custody, he attempted to maintain Billy's health by giving him vitamins and juices but noticed that he bruised easily, such that the bruises on Billy's body at his death were allegedly the result of McMichael's efforts to dislodge a hot dog choking him. In the morning of March 22, the day before Billy died, McMichael noticed Billy's abdomen was swelling and that his trousers no longer fit. By that afternoon, McMichael had acknowledged to himself that Billy was also vomiting and was sitting very still and realized he would need medical attention but he wanted to wait until the next day to have him examined by a doctor. In the meanwhile, he attempted to reduce Billy's abdominal swelling with ice packs, alcohol rubs, liniment and warm baths. It was while attempting to administer one of these warm baths, on March 23, that McMichael left Billy unattended for a few moments and returned to find him lying in the tub. McMichael pulled Billy out of the water, realized he was having difficulty breathing, and telephoned his wife, Dixie, for aid. After attempting mouth-to-mouth resuscitation and cardio-pulmonary resuscitation at Dixie's instruction, McMichael called her back and asked that she contact an ambulance. The subsequent events were as described above.
DECISION
Slides
During Dr. House's testimony, the State displayed projections of two slides, Exhibits 3 and 4, taken of Billy after his death. Exhibit 3 is a photographic death mask by which Dr. House identified Billy as the subject upon which he had conducted an autopsy. The other slide, Exhibit 4, is a close-up external view of Billy's abdomen, showing its gross distension and its numerous *730 bruises. McMichael objected to their presentation on the grounds they were gruesome, irrelevant, and cumulative of two other photographs, their evidentiary weight thereby being merely prejudicial. We see no error.
It is of well-established legal principle that the admission of photographic evidence at trial is within a trial court's discretion, subject to appellate reversal only for an abuse thereof. Bray v. State, (1982) Ind., 430 N.E.2d 1162; Talley v. State, (1980) Ind. App., 400 N.E.2d 1167. To determine whether such abuse has occurred, we must determine first whether the photographs are relevant do they portray a material fact to which a witness may testify? Id. Upon a determination of such relevancy, photographs may then be weeded out if their gruesomeness would outweigh their relevance in the minds of the jurors. Bonner v. State, (1979) 271 Ind. 388, 392 N.E.2d 1169. In the instant case, the two slides pass both tests.
First of all, Dr. House testified both photographs were taken during preliminary stages of the autopsy proceedings. Exhibit 3, Billy's face, was identified by Dr. House as the subject of the autopsy about which he was testifying. Exhibit 4 was taken for the specific purposes of demonstrating the two very apparent abnormalities in Billy's anatomy the pattern of bruises and the swelling with its consequent tenseness of Billy's abdomen. Both these bits of evidence would have been proper verbal testimony because they established facts material to the case against McMichael, the identity of the victim and the very apparent symptoms of Billy's ill-health which should have alerted his father to seek proper medical aid. This evidence was relevant; thus, so were the photographs.
The second step of this relevancy review clearly indicates these photographs were not gruesome. We admit their viewing is sad and painful, but their unpleasantness does not make them gruesome. See, e.g., Bonner v. State, supra, 271 Ind. 388, 392 N.E.2d 1169. We therefore dispose of the gruesomeness and irrelevancy arguments of McMichael. See Worthington v. State, (1980) Ind. App., 409 N.E.2d 1261 (photographs as evidence of neglect of child relevant and not gruesome).
As for McMichael's contention the slides are cumulative of other exhibits, we again find no error. Exhibits 1 and 2 are full-length photographs (not slides) of Billy's naked body on a backboard, lying on a hospital bed. One of the paramedics answering the call to the McMichael residence identified the pictures as representing the child she tended on March 23. She testified she was not certain whether she was present when the shots were taken but that they accurately depicted the child. On the other hand, Exhibits 3 and 4 were only of two specific parts of Billy's anatomy, his head and his abdomen, taken for autopsy purposes. We fail to see how these four exhibits could be cumulative because they were intended to fulfill different evidentiary purposes from two different witnesses, one of whom took the slides for his own professional investigation. In the absence of cumulation, there could be no prejudice. See Mingle v. State, (1979) Ind. App., 396 N.E.2d 399 (photographs of various portions of child's anatomy were not repetitive in trial for cruelty to infant.)
Sufficiency of the Evidence
McMichael next attacks the sufficiency of the evidence supporting the jury's verdict. Most specifically he attacks any finding that he knowingly or intentionally "placed" Billy in any situation endangering his health. Our review of the law and of the facts reveals otherwise.
McMichael was charged under IND. CODE 35-46-1-4:
"(a) A person having the care of a dependent, whether assumed voluntarily or because of a legal obligation, who knowingly or intentionally:
(1) places the dependent in a situation that may endanger his life or health
... .
* * * * * *
*731 commits neglect of a dependent, a Class D felony...."
Specifically, the State charged McMichael with endangering Billy's life by not seeking necessary medical attention. The record reveals sufficient direct and circumstantial evidence of probative value and in favor of the State's case for us to reasonably conclude that the jury's conclusion was correct. See, e.g., Choate v. State, (1984) Ind., 462 N.E.2d 1037 (standard of review).
McMichael became admittedly aware of Billy's ill-health at least 30 hours prior to his death. According to the pathologist's testimony, Billy should have (and indeed he had) exhibited symptoms of a severe problem by vomiting, running a fever, refusing to move to avoid discomfort, and showing an increasing abdominal swelling. McMichael acknowledged he had considered taking Billy to a doctor 24 hours prior to decease but had decided to wait. We find that these facts lead to the inexorable conclusion that McMichael knowingly placed Billy in a life-threatening situation by failing to seek necessary medical attention for what can only be described as a very apparent and very serious illness. The jury properly found him guilty of neglect of a dependent. See Eaglen v. State, (1967) 294 Ind. 144, 231 N.E.2d 147 (involuntary manslaughter for failure to provide medical attention to child); Ware v. State, (1982) Ind. App., 441 N.E.2d 20; Smith v. State, (1980) Ind. App., 408 N.E.2d 614; Perkins v. State, (1979) 181 Ind. App. 461, 392 N.E.2d 490 (neglect of a dependent based on child's death caused by blow to abdomen and failure to provide medical attention).[1] McMichael's principle contention is that, irrespective of the favorable evidence, the jury could not have reasonably found he had "knowingly" neglected Billy. On the contrary, we believe the evidence and the reasonable inferences therefrom clearly show McMichael acted knowingly.
The level of culpability required when a child neglect statute requires a finding of "knowing" behavior is that level where "the accused must have been subjectively aware of a high probability that he placed the dependent in a dangerous situation." Ware v. State, supra, 441 N.E.2d at 23. Because such a finding requires one to resort to inferential reasoning to ascertain the defendant's mental state, the appellate courts must look to all the surrounding circumstances of a case to determine if a guilty verdict is proper. Perkins v. State, supra, 181 Ind. App. 461, 392 N.E.2d 490. In McMichael's case, the totality of the circumstances (as we have recited them above) indicates that McMichael was aware of a high probability that, by failing to obtain medical care, he was placing Billy in a dangerous situation.[2] McMichael may *732 argue all he wants that Billy had had this condition before but had recovered without medical attention and any other exculpatory evidence, but we may not reweigh the evidence nor reassess the credibility of witnesses. We must rely only upon the substantial evidence most favorable to the verdict. See Choate v. State, supra, 462 N.E.2d 1037. We are thus compelled to conclude the jury was correct.
Presentence Report
McMichael contends that he was deprived of the right to a neutral presentence report because of improper questioning by his probation officer. He particularly claims that the officer alluded to photographs not admitted at trial, asked McMichael's current wife why she had not been jointly charged, tried to get McMichael to change his story by stating he believed Billy's death was by murder, and requested McMichael take a polygraph test. None of these allegations are supported by the presentence report itself; all it recommends is that McMichael be given a four-year executed sentence due to the aggravating circumstance that Billy ultimately died as a result of the neglect. The trial court noted McMichael's claims:
"THE COURT: Thank you. For the record in cause number C-83/16, State of Indiana versus William McMichael, Sr. note that this Court is paying no attention to: 1) Any pictures that Mr. Thompson, Probation Officer of this Court may have shown Mr. McMichaels [sic]. This Court did not see those pictures nor is it aware of those pictures. 2) Note that the Court pays no attention to a polygraph as the able Defense counsel is well aware. That is not admissible into evidence unless it is in fact done by joint stipulation of the parties. So the Court will pay no attention to any of those comments and have them deleted from the Probation Department, the Probation Officer's recommendation. However, the Court is paying attention to the rest of the pre-sentence report as to the factual basis with the further exception that any references to the fact that if that is a fact that the defendant's wife, why wasn't she charged with murder, the Court is not, nor with murder or with this offense, the Court is paying no attention to that. That is deleted if it is included anywhere or the fact that, anything dealing with the fact other than the actual charge itself, that being neglect of a dependent, a class D felony."
Record, pp. 285-86. We see no error here.
We agree with McMichael's charge that a presentence report should be a theoretically neutral investigation of a defendant with an equally neutral evaluation. See, e.g., Gardner v. State, (1979) 270 Ind. 627, 388 N.E.2d 513. We do not perceive this report here as being anything but neutral, and the trial court declared it would not consider this improper criteria even if present. We see no error. See Lang v. State, (1984) Ind., 461 N.E.2d 1110 ("we find no actual prejudice to defendant as the trial court did not adopt either of the *733 probation officer's recommendations for sentencing and did give sufficient reasons for the sentence finally imposed." Id. at 1115).
Sentencing
McMichael attacks his four-year sentence, alleging it is excessive, unreasonable and based upon improper considerations. He is especially and vehemently opposed to having a determinate two-year term for a Class D felony (IND. CODE 35-50-2-7) increased by two years. He argues the trial court improperly found one aggravating circumstance (Billy's death) outweighed the mitigating circumstances (lack of prior criminal record and hardship to McMichael's remaining dependents). His most strenuous argument is that the enhancement of his sentence by reason of Billy's death is, in essence, a sentence for a greater offense of which he was not convicted. The trial court committed no error.
The factors a trial court may consider in enhancing a determinate sentence are found at IND. CODE 35-38-1-7 (1983 Supp.). Among those factors are "the nature and circumstances of the crime committed." I.C. XX-XX-X-X(a)(2); Owens v. State, (1981) Ind., 427 N.E.2d 880; McNew v. State, (1979) 271 Ind. 214, 391 N.E.2d 607. In this case, we believe the trial court correctly found that Billy's death was an aggravating consideration, arising from the general circumstances of the crime itself.
It is not unusual for trial courts to consider the crime's effect on the victim when enhancing a sentence. See e.g., Nunn v. State, (1983) Ind., 450 N.E.2d 495; Robinson v. State, (1983) Ind., 446 N.E.2d 1287; Abercrombie v. State, (1982) Ind., 441 N.E.2d 442; McNew v. State, supra, 271 Ind. 214, 391 N.E.2d 607; see also Mingle v. State, supra, 396 N.E.2d 399. However, McMichael contends that sentencing him for Billy's death is improper when he was not convicted of a greater offense than child neglect, which would have encompassed his death as a element. There are no limitations on what a court may consider in enhancing a sentence, even if such factor may have also led to a conviction on a greater charge. Lang v. State, supra, 461 N.E.2d 1110 (conviction for Class A felony; sentencing considerations included injury to victim which had elevated to Class A felony to begin with); Robinson v. State, supra, 446 N.E.2d 1287 (sentencing included factor of serious bodily harm to victim although only convicted of Class B child molesting). We find no impropriety in the court's procedure.
McMichael further argues that two mitigating circumstances lack of prior criminal record and hardship on his family should have accounted for more in the court's deliberations. A finding of mitigating circumstances is discretionary, Cornelius v. State, (1981) Ind., 425 N.E.2d 616, and considering the length of McMichael's sentence and the fact that Billy died, we are hardly in any position to say the trial court abused its discretion when the sentence is authorized by statute and is not manifestly unreasonable. See Abercrombie v. State, supra, 441 N.E.2d 442.
Affirmed as to all things.
CONOVER and YOUNG, JJ., concur.
NOTES
[1] McMichael presented no defense with regard to IND. CODE 35-46-1-4, where one may argue the failure to seek medical care is attributable to one's legitimate religious beliefs that prayer will heal the child's illness.
[2] We are aware that there is a conflict in this court with regard to defining "knowingly" in child neglect statutes. The Second and Third Districts adhere to our classic subjective usage of "knowingly" as applied throughout the criminal code and as we have adopted above. See Ware v. State, (1982) Ind. App., 441 N.E.2d 20 (Second District); Perkins v. State, (1979) 181 Ind. App. 461, 392 N.E.2d 490 (Third District). However, the First District, relying on an involuntary manslaughter case from our supreme court (Eaglen v. State, (1967) 249 Ind. 144, 231 N.E.2d 147), has applied an objective standard of intent by requiring the State "to prove that the defendant parent was aware of facts that would alert a reasonable parent under the circumstances to take affirmative action to protect the child." Smith v. State, (1980) Ind. App., 408 N.E.2d 614, 621. In Smith v. State, the court determined a mother was guilty of neglect of her child when she failed to remove him from a household where mother's live-in boyfriend abused the boy. The court relied upon Eaglen v. State, wherein a child neglect provision without an intent element was defined, and applied it to the child neglect statute which parallels the one here. See IND. CODE 35-46-1-4 (1980 Supp.). However, we believe the Smith court was attempting to define the actus reus of our neglect statute rather than the mens rea element. See Carter v. State, (1980) Ind. App., 408 N.E.2d 790 (defining actus reus and mens rea).
The mens rea, or evil intent, element of IND. CODE 35-46-1-4, requires a finding of either knowing or intentional behavior. We believe the better approach to defining this factor is to adopt those definitions generally used in our criminal statutes. See Ware v. State, supra, 441 N.E.2d 20. The difficulty the Smith court encountered was in defining the actus reus, or evil act, element: "plac[ing] the dependent in a situation that may endanger his life or health." I.C. XX-XX-X-X (1980 Supp.). The court evidently did not perceive the facts of the case to support any affirmative action on the mother's part that endangered her child such as to find she had "placed" him in a dangerous position. Rather, the court interpreted an affirmative duty to avoid such circumstances from language in Eaglen v. State, supra, which interpreted the predecessor statute of neglect where a parent is guilty for "failure to do or permit to be done any act necessary for the child's physical or moral wellbeing." IND. ANN. STAT. § 10-813 (1956). In doing so, Eaglen relied upon a definition of neglect as "a want of reasonable care," thereby encompassing both affirmative acts and passive inaction. The Smith court then applied this reasoning to require only an objective inquiry into whether a parent was aware of facts that would have caused a reasonable parent to act. We believe this tortures the language of I.C. XX-XX-X-X. Although we readily agree that the actus reus of the statute, by using the term "places," seems to require a finding of some affirmative action endangering a child, we believe that both action and inaction can "place" a child in an undesirable position, not in an affirmative sense necessarily but by inadequately performing one's affirmative duty of reasonable care. Thus, we do not disagree with the Smith court on the law itself just its application to the mental intent element of the statute.
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66 Wis.2d 454 (1975)
225 N.W.2d 628
HARTFORD FIRE INSURANCE COMPANY, Plaintiff,
v.
OBORN PLUMBING & HEATING, INC., Defendant and Third-Party Plaintiff and Appellant:
KNODLE and others, d/b/a KNODLE, ROSE & ASSOCIATES, Defendants and Respondents:
MOTT BROTHERS COMPANY, Third-Party Defendants.
No. 350.
Supreme Court of Wisconsin.
Argued January 3, 1975.
Decided February 4, 1975.
*459 For the third-party plaintiff-appellant there was a brief by Mark L. Korb and Campbell, Brennan, Steil & Ryan, S. C., all of Janesville, and oral argument by Mr. Korb.
For the third-party defendant-appellant there was a brief by John P. Graves, Jr., and Korf, Pfeil & Graves, all of Elkhorn.
For the defendant-respondents there were briefs by Eli Block and Eli Block Law Offices, all of Janesville, and oral argument by Mr. Block.
HANLEY, J.
Two issues are presented upon this appeal:
1. Did the trial court err in determining that the appellant was not entitled to contribution from the respondents because the statute of limitations had run?
2. Did the respondents waive the defense of the statute of limitations as an affirmative defense to the claim for contribution?
*460 Question of contribution.
Osborn cross-complained for contribution from the respondents if it was found to be liable to the plaintiff. In discussing the doctrine of contribution, this court has said:
"The doctrine of contribution rests on the principle that when parties stand in equal right the law requires equality, and one party should not be obliged to bear the whole of a common burden. The doctrine is founded on principles of equity and natural justice. Wait v. Pierce (1926), 191 Wis. 202, 209 N. W. 475, 210 N. W. 822. This basic elements of contribution as applied to negligence cases are: 1. Both parties must be joint negligent wrongdoers; 2. they must have common liability because of such negligence to the same person; 3. one such party must have borne an unequal proportion of the common burden." Farmers Mut. Automobile Ins. Co. v. Milwaukee Automobile Ins. Co. (1959), 8 Wis. 2d 512, 515, 99 N. W. 2d 746.
The right to contribution arises from common liability and ripens into a cause of action upon payment by reason of a judgment or pursuant to a reasonable settlement by a joint tort-feasor. State Farm Mut. Automobile Ins. Co. v. Continental Casualty Co. (1953), 264 Wis. 493, 59 N. W. 2d 425. However, one alleged to be a joint tort-feasor may, by cross complaint, have the issue of contribution settled in the same action which determines the liability to the plaintiffs. Gies v. Nissen Corp. (1973), 57 Wis. 2d 371, 204 N. W. 2d 519.
In state Farm Mut. Automobile Ins. Co. v. Schara (1972), 56 Wis. 2d 262, 201 N. W. 2d 758, it was held that a cause of action for contribution is separate and distinct from the underlying cause of action and, therefore, the period in which an injured party must commence his action is irrelevant when a joint tort-feasor who has paid more than his share seeks contribution from another *461 with whom he shares joint liability. The cause of action for contribution is based on a contract implied by law and an action on it must be brought within six years after the one joint tort-feasor has paid more than his share under sec. 893.19 (3), Stats., which provides the period of limitations for actions on contracts, express or implied.
The trial court granted the motions for summary judgment as to both the complaint and cross complaints after determining that the statute of limitations had run prior to the fire. The basis for dismissing the cross complaints was that there was no common liability for the damages caused by the fire because the statute of limitations had already run.
Common liability is an essential element of a cause of action for contribution.
". . . [T]he common liability necessary to support a cause of action for contribution . . . is determined as of the time the accident occurs, and not as of the time the cause of action for contribution is later asserted. The fact, that the existing common liability has later been extinguished as to one of the joint tort-feasors, is immaterial in so far as effecting the right to have contribution from such joint tort-feasor is concerned." State Farm Mut. Automobile Ins. Co. v. Continental Casualty Co., supra, pages 503, 504.
If the period of limitations did in fact run out prior to the fire causing the damages complained of here, there was no common liability so that Osborn was not entitled to contribution from the respondents. The pertinent question, therefore, is when did the cause of action accrue so as to start the running of the statute against the building's owner.
A statute of limitations begins to run against a cause of action at the time when the cause of action accrues. *462 In Holifield v. Setco Industries, Inc. (1969), 42 Wis. 2d 750, 756, 168 N. W. 2d 177, it was said:
"It is the fact and date of injury that sets in force and operation the factors that create and establish the basis for a claim of damages. It is true that, without an act of negligence, no claim for damages based on negligence can arise. It is likewise true that, without the result of injury, no claim for damages based on negligence can be asserted, or at least successfully asserted. Both the act of negligence and the fact of resultant injury must take place before cause of action founded on negligence can be said to have accrued."
Therefore, the cause of action accrues and the statute of limitations begins to run when an injury occurs. See: Boehm v. Wheeler (1974), 65 Wis. 2d 668, 223 N. W. 2d 536.
Osborn relies on the case of Holifield v. Setco, Industries, Inc., supra,, in support of its position that the cause of action in this case did not accrue until April, 1970, because it was not until then that there was a loss suffered. Holifield was a products liability case where a grinding wheel exploded resulting in the death of the machine's operator. It was held that the cause of action did not accrue until the time the machine operator was injured. This court said:
"It is the fact and date of injury that sets in force and operation the factors that create and establish the basis for a claim of damages. It is true that, without an act of negligence, no claim for damages based on negligence can arise. It is likewise true that, without the result of injury, no claim for damages based on negligence can be asserted, or at least successfully asserted. Both the act of negligence and the fact of resultant injury must take place before cause of action founded on negligence can be said to have accrued." Holifield v. Setco Industries, Inc., supra, page 756.
Osborn argues that in this case there was no damage until the fire and, therefore, the cause of action did not *463 accrue until then. It contends that there is nothing in the record to show that there was any injury prior to that time upon which the trial court could properly base its granting of the motion for summary judgment.
The trial court and the respondents rely on the case of Milwaukee County v. Schmidt, Garden & Erikson (1969), 43 Wis. 2d 445, 168 N. W. 2d 559. That case involved a suit against an architectural firm by Milwaukee county for alleged malpractice in the preparation of plans for and supervision of construction of an addition to Milwaukee County General Hospital. The alleged malpractice concerned the design and construction of the addition, including its heating system. As damages, the county sought to recover the amount it had expended and would be required to expend to remedy the defects. This court held that to the extent the complaint stated a cause of action in tort, the action was barred by sec. 893.19 (5), Stats., because the injury had occurred more than six years prior to the commencement of the action. The action was commenced on March 18, 1965, but the only act of the architects after March 18, 1959, was the issuance of the final certificate for the heating contract. Parts of the addition had been occupied for some time prior to that and the county had informed the architects that the heating was unacceptable in 1958.
More recently this court decided the case of Rosenthal v. Kurtz (1974), 62 Wis. 2d 1, 213 N. W. 2d 741, 216 N. W. 2d 252. The decision in that case was based on a determination that sec. 893.155, Stats., permits the bringing of a cause of action within six years following the performance of service and completion of construction.[2] The action was against the architects who claimed that the last services performed by them were in 1963. The *464 construction of the building was completed in 1967. A portion of the ceilings began to sag and threaten to collapse in 1970. Because of this, the plaintiffs claimed they incurred damages of $200,000 for repairs and loss of rental income. In discussing the application of sec. 893.155, Stats., it was pointed out that the cause of action accrued in 1970 because that is when the injury occurred.
We think the case at bar is similar to Rosenthal and Holifield rather than Milwaukee County v. Schmidt, Garden & Erikson. The trial court in its memorandum decision of October 5, 1972, did not state what the injury was that started the running of the statute of limitations in 1962. The respondents do not state exactly what that injury is. Apparently, both believe that the placement of the defective heater was an injury. However, if this is true it would appear that the same could be said of the building in the Rosenthal Case.
The affidavit in support of the motion for summary judgment by Mr. Donald Knodle shows only that the heater was installed in 1962, inspected, found to be operational by him and that no other services were performed by the architects after the final inspection in 1962. Mr. Block's affidavit (Knodle's counsel), sets forth a portion of a deposition of Dallman which only shows that the heater was installed in 1962, that there were no contacts among him and the architects concerning the project until 1968, when a defect in a weld of the heater was found, that Dallman could not recall any contact with the architects when a problem developed with a baffle in 1969, and that to his knowledge there was never any change in the location of the combination fan control and limit thermostat. Dallman's own affidavit discloses that the heater was installed in 1962, that in 1967 it was discovered that the heater's heat exchanger was cracked, that this was replaced in 1968, and that the respondents *465 were contacted by Dallman to effectuate its repair and to the best of Dallman's recollection Donald Knodle inspected the heating unit and thereafter Osborn replaced the cracked heat exchanger.
On motion for summary judgment, judgment may be entered in favor of the defendant if his affidavits set forth "`evidentiary facts,' as shall show that his denials or defenses are sufficient to defeat the plaintiff." Weber v. Hurley (1961), 13 Wis. 2d 560, 109 N. W. 2d 65.
We conclude that the affidavits do not really show any injury and, as previously noted, the installation of the heater was not in fact an injury. Therefore, the motion for summary judgment should not have been granted on the basis that the statute of limitations ran out prior to Hartford commencing this action. If the statute had not run, there may be common liability on the part of the appellant and respondents to Hartford which is subrogated to the rights of its insured.
Since we have determined that the statute of limitations did not commence to run in 1962, it is necessary to determine if the other essential elements of a cause of action for contribution are found in this case.
In order to have a right to contribution, the party seeking it and the party against whom it is sought must be joint tort-feasors. In Johnson v. Heintz (1973); 61 Wis. 2d 585, 600, 213 N. W. 2d 85, this court noted that it is correct that successive tort-feasors are not subject to contribution, but it was said:
"In Butzow v. Wausau Memorial Hospital (1971), 51 Wis. 2d 281, 288, 289, 187 N. W. 2d 349, this court pointed out that `to establish joint liability the independent torts must concur in point of time to thereafter inflict a single injury.'"
As to this point, respondents state that the cross complaint does not allege any negligence upon their part nor does it allege any acts from which a conclusion could *466 be arrived at that there was joint negligence by the defendants. As to the sufficiency of a complaint on motion for summary judgment, this court has said:
"The affidavit contains a statement the allegations in the complaint do not constitute a basis for a cause of action. This contention is without merit because the sufficiency of the complaint is not at issue in the pleadings and the motion for summary judgment cannot be used to perform the function of or as a substitute for a demurrer." Dottai v. Altenbach (1963), 19 Wis. 2d 373, 377, 120 N. W. 2d 41. See also: Walter Kassuba, Inc. v. Bauch (1968), 38 Wis. 2d 648, 655, 158 N. W. 2d 387.
The cross complaint here alleges that Hartford's complaint alleges Osborn was negligent and that the other defendants were negligent.
The allegations of Hartford's complaint include, as previously stated, specific allegations of negligence as against the respondents. Also as to Osborn, Hartford alleged it was negligent in failing to install the fan control and limit thermostat in its proper location, in failing to install protective material around the heater and in other respects.
There is a question as to whether or not the appellant and respondents were joint tort-feasors in the sense that their negligence concurred in point of time to produce a single injury. However, the affidavits do not show facts to the contrary.
The respondents also argue that their liability is on contract rather than negligence principles. This court recognizes, however, that a cause of action for malpractice may sound in tort or in contract. Boehm v. Wheeler, supra. This is true of causes of action for architects' malpractice. Milwaukee County v. Schmidt, Garden & Erikson, supra.
The respondents also contend that the third element of a cause of action for contribution, one party bearing *467 an unequal proportion of the common burden is missing here. However, this court allows one alleged to be a joint tort-feasor, by cross complaint, to have the issue of contribution settled in the same action which determines the liability to the plaintiff. Gies v. Nissen Corp., supra.
Issue of waiver.
Osborn takes the position that the respondents waived their right to assert the statute of limitations as a defense to its cross complaint. The defense of the statute of limitations here goes to the nonexistence of an element of a cause of action for contribution, common liability, rather than as a bar to the cross complaint as the statute of limitations is normally applied. Even in this case, however, it would be an affirmative defense.
Sec. 263.15 (3), Stats., provides that no answer need be made to a cross complaint seeking only contribution, the allegations of the cross complaint being deemed controverted. However, only issues of the cross complaint are deemed controverted.
The respondents, however, did answer the cross complaint alleging that the fire and resulting damage were not caused or contributed to by any negligence on their part and denying that Osborn will be or is entitled to contribution. The answer did not set forth the defense that the statute of limitations had run out prior to the fire and, therefore, there was no common liability.
It is true the answer was not necessary, but by allowing a party to submit an unnecessary answer and still raise defenses not found in it may defeat one of the prime purposes for pleadings.
"Pleadings are statements in logical and legal form of the facts which constitute the plaintiff's cause of action or the defendant's ground of defense, their purpose being to define the issues and apprise the parties of what they must be prepared to meet on trial." 71 C. J. S., Pleading, p. 17, sec. 1.
*468 If a cross-defendant answers raising some defenses, the cross complainant will most likely rely on that answer as setting forth defenses it must meet and not prepare to meet other possible defenses. If there is an answer, although not required, it should be complete.
As to setting forth affirmative defenses in an answer, it has been said:
". . . Where such affirmative or new matter is of a character such as cannot be proved under a denial of the plaintiff's allegations, a defendant who wishes to avail himself of it must plead it specially. Since the plaintiff must apprise the defendant in the beginning as to what he relies upon for a recovery, it is only right that the defendant should be required also to inform the plaintiff of any special or affirmative defenses he expects to make by pleading the facts constituting such defenses." 61 Am. Jur. 2d, Pleading, p. 580, sec. 152.
There is no question that affirmative defenses must be specially pleaded. Sec. 263.13 (2), Stats.; Shetney v. Shetney (1970), 49 Wis. 2d 26, 36, 181 N. W. 2d 516; Stanley v. Milwaukee Automobile Ins. Co. (1956), 274 Wis. 226, 230, 79 N. W. 2d 662.
We conclude that the respondents should have pleaded their affirmative defense. Failure to plead the statute of limitations is a waiver of the defense. Sec. 263.15 (3), Stats., does not negate that holding since under that section only the allegations of the cross complaint are deemed controverted.
By the Court.Judgment and order reversed and cause remanded for further proceedings.
NOTES
[2] In Kallas Millwork Corp. v. Square D Co., ante, p. 382, 225 N. W. 2d 454, we have held that sec. 893.155, Stats., is unconstitutional as was suggested in the Rosenthal Case. See footnote 1, supra,.
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945 A.2d 1241 (2008)
2008 ME 61
Kelly WALTON
v.
MAINE SCHOOL ADMINISTRATIVE DISTRICT 52 et al.
Docket: And-07-153.
Supreme Judicial Court of Maine.
Argued: January 18, 2008.
Decided: March 27, 2008.
Donald F. Fontaine, Esq. (orally), Law Offices of Donald F. Fontaine, Portland, ME, for Kelly Walton.
Kaighn Smith, Jr., Esq. (orally), Melissa H. Hewey, Esq., Drummond Woodsom & MacMahon, Portland, ME, for SAD 52.
*1242 Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, and MEAD, JJ.
SILVER, J.
[¶ 1] Kelly Walton appeals from a summary judgment entered by the Superior Court (Androscoggin County, Gorman, J.) in favor of Maine School Administrative District 52 (SAD 52) on Walton's claim of breach of contract and violation of due process of law as a result of SAD 52's termination of her employment. Walton argues that (1) the arbitration decision that considered Walton's grievance under her Collective Bargaining Agreement does not preclude her claim of breach of her individual contract in state court, and (2) SAD 52 breached the individual employment contract it had with her when it terminated her employment. We affirm the judgment.
I. FACTS
[¶ 2] Walton is a licensed social worker in Maine with a bachelor's degree. She had been practicing social work in her employment for SAD 52 for seventeen years and, before this dispute, had never been required to have or requested to obtain a master's degree. Until this dispute, her job description for school social worker required only a bachelor's degree.
[¶ 3] Walton and SAD 52 agreed to a continuing contract in 1988, under which Walton worked for SAD 52 as a school social worker. She did not teach. Under this contract, Walton could be terminated only "for cause as provided by statute." SAD 52 renewed this contract annually knowing that Walton had only a bachelor's degree. The contract was last renewed on September 1, 2005.
[¶ 4] Walton was also covered under the Collective Bargaining Agreement between SAD 52 and the Tri-Town Teachers' Association. Under the Agreement, "[c]ontinuing contract teachers shall not be dismissed or suffer non-renewal of contract without just cause." Under the Agreement, a grievance can be filed by a teacher whenever "a violation of this contract is claimed to have occurred." A "grievance" refers to a complaint by an employee or by the Association that "a violation of the contract has occurred."
[¶ 5] In 1998, the Maine Medical Assistance Manual, which regulates the provision of school-based rehabilitative services, was amended to require school social workers to possess master's degrees as a condition of that school's receiving Medicaid funds. SAD 52 learned of this requirement in November 2005 and immediately gave Walton a ninety-day notice of termination of her contract. Ninety days later, Walton was terminated. This termination took place five months into her 2005-2006 contract.
[¶ 6] Walton invoked the grievance provisions of the Agreement. At arbitration, the arbitrator found that SAD 52 had the right to terminate Walton's individual contract. While pursuing her grievance pursuant to the Agreement, Walton also filed a complaint in Superior Court, claiming breach of her individual contract and violation of due process of law. Following the arbitrator's decision, the Superior Court found that the arbitration decision had a preclusive effect on Walton's claim of breach of contract. The court also granted SAD 52's motion for summary judgment on the same claim. Walton's appeal followed.
II. DISCUSSION
[¶ 7] We have held that "[a] binding integrated agreement discharges prior agreements to the extent that it is inconsistent with them." Me. Mortgage Co. v. *1243 Tonge, 448 A.2d 899, 902 (Me.1982); see Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1015 (9th Cir.2000) (stating that "where [a] position in dispute is covered by the CBA, the CBA controls and any claims seeking to enforce the terms of [an agreement] are preempted") (quotation marks omitted) (second alteration in original); see also Fox v. Parker Hannifin Corp., 914 F.2d 795, 801 (6th Cir.1990) (stating that "employees covered by a CBA cannot rely upon the existence of a separate, individual employment contract giving rise to state law claims").[1] The Agreement was executed after Walton's individual contract, and it contains provisions for the termination of employees such as Walton. The Agreement granted arbitration rights to Walton for her termination. Thus, any ability Walton may have had under her individual contract to seek redress in state court for her termination was discharged as a result of the Agreement's execution.[2] The Superior Court therefore did not err as a matter of law in finding that the arbitrator's decision had preclusive effect over Walton's claim of breach of contract or in granting summary judgment in SAD 52's favor. See Cloutier, Barrett, Cloutier & Conley, P.A. v. Wax, 604 A.2d 42, 43-44 (Me.1992).
The entry is:
Judgment affirmed.
NOTES
[1] Although it was not an argument presented to us or, apparently, to the Superior Court, Article 28(C) of the Agreement reads: "When individual contracts with unit employees contain language inconsistent with express language contained in this agreement, the controlling instrument will be this agreement." Both the Agreement and Walton's individual contract provided inconsistent language concerning the proper method for terminating Walton. The Agreement therefore explicitly controls the issue.
[2] Because Walton elected to have her termination arbitrated, she does not now get a second bite at the apple in state court. We do not hold today, however, that Walton would not have had the right to forego arbitration and proceed initially to state court. This issue is not before us, and we do not address it.
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416 So.2d 1161 (1982)
Frederick JORDAN, Appellant,
v.
STATE of Florida, Appellee.
No. 81-1199.
District Court of Appeal of Florida, Second District.
June 11, 1982.
Rehearing Denied July 26, 1982.
Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Clearwater, and Eula Tuttle Mason, Asst. Public Defenders, St. Petersburg, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
OTT, Judge.
Frederick Jordan appeals his conviction for "attempted resisting arrest with violence." Jordan was initially charged with "resisting arrest with violence," in violation of section 843.01, Florida Statutes (1981), which provides:
Whoever knowingly and willfully resists, obstructs, or opposes any ... municipal police officer, ... in the lawful execution of any legal duty, by offering or doing violence to the person of such officer ... is guilty of a felony of the third degree... . (Emphasis added.)
*1162 During the charge conference, the following exchange occurred:
Ms. Tierney (Assistant State Attorney): I would ask for attempt on the charge. When you attempt to resist.
... .
Mr. Everhart (Defense Counsel): I think attempt without violence there is no such thing.
The Court: I don't know why, but the State insists on confusing the jury with attempt charges. It's just so bad. I don't understand why you all would even want that.
... .
Mr. Everhart (Defense Counsel): That's an attempt case? We would object for the record.
The Court: Okay, I'll overrule the objection.
Four jury verdict forms were then given to the jury: (1) not guilty, (2) guilty of resisting arrest with violence, (3) guilty of attempted resisting arrest with violence, and (4) guilty of resisting arrest without violence. The jury returned a verdict of guilty of "attempted resisting arrest with violence," and appellant was adjudicated guilty of that offense by the court.
Thereafter, the trial judge apparently became aware of our holding in McAbee v. State, 391 So.2d 373 (Fla. 2d DCA 1980). In McAbee, we held that the crime of attempted resisting arrest with violence does not exist in Florida and therefore defendant's conviction for such crime is void. The trial judge attempted to resolve this McAbee dilemma by first sua sponte setting aside the conviction for attempted resisting arrest with violence under the authority of rule 3.580, Florida Rule of Criminal Procedure.[1]
Next, pursuant to rule 3.620, Florida Rule of Criminal Procedure,[2] the trial judge found that even though the evidence could not sustain the verdict rendered by the jury, it was sufficient to sustain a finding of guilt on the lesser-included offense of resisting arrest without violence.
Jordan now contends that he was adjudicated guilty of a crime which is nonexistent and that he should therefore be released.
Before we begin our analysis, we feel compelled to congratulate the trial judge on a job well done. We are sympathetic with the plight of the trial courts and understand that because of the crowded dockets they are sometimes forced to rely too heavily on counsel for assistance in these matters. We commend him for his attempt to remedy a difficult situation that was created by the insistence of an unprepared state attorney. However, because of our holding in McAbee and the very recent supreme court case of Achin v. State, No. 59,840 (Fla. Jan. 21, 1982), we are compelled to reverse.
Initially, the lower court's actions following the adjudication of guilt for "attempted resisting arrest with violence" constitute a legal impossibility. The rule that one may be found guilty of a lesser included offense presupposes a finding of guilt on a legally viable greater offense. Here, the appellant was never convicted of a legal crime; hence, the rule of lesser-included offenses does not come into play. If the jury did not find the appellant guilty of an existing crime, the proceeding is at an end upon the jury verdict and Jordan's presumption of innocence is maintained. No case has been cited to us nor have we found *1163 any which permits a conviction for a nonexistent crime. Adams v. Murphy, 394 So.2d 411 (Fla. 1981) (attempted perjury); Pagano v. State, 387 So.2d 349 (Fla. 1980) (attempted corruption by threat against a public servant).
In so holding, we are aware of our holding in McIntyre v. State, 380 So.2d 1064 (Fla. 2d DCA 1980). In that case, appellant/McIntyre also argued that the crime for which he was convicted (attempted grand theft) did not exist. This court rejected the defendant's argument as follows:
[A]ttempted grand theft is not nonexistent in the sense that the activity encompassed by such a charge is not a crime. Rather, the legislature has simply merged this crime with the crime of grand theft by the use of the phrase "endeavors to obtain or to use" in the theft statute, section 812.014, Florida Statutes (1979)... . Thus evidence of an attempt to commit grand theft can convict a person of the crime of grand theft. Since there was competent and substantial evidence that at the very least appellant attempted to commit grand theft, no prejudice could result from construing the verdict as a finding of guilt for grand theft.
However, McIntyre's holding is rejected for the following reasons. Initially, one of the primary legal underpinnings of the decision was that McIntyre's defense counsel had invited the erroneous jury instruction. Judge Grimes reasoned that such a situation was analogous to the line of cases which holds that a person cannot complain of a conviction for a crime which is not a lesser-included offense of the crime with which he was charged when it appears that he induced the error. E.g., Jones v. State, 358 So.2d 37 (Fla. 4th DCA 1978). Clearly this is not the case sub judice as here it was the state attorney who not only proffered but insisted that the erroneous instruction be given.
The recent decision of Achin invalidates McIntyre. In Achin, the Florida Supreme Court reaffirmed the long-standing general rule that one may never be convicted of a nonexistent crime. This result was reached even though defense counsel had invited the error.
The next issue we must address is whether or not the defendant should be discharged on double jeopardy grounds. In Achin, the defendant was found guilty of attempted extortion a nonexistent crime. However, the Florida Supreme Court held that because defendant was convicted of a crime which, although technically nonexistent, was in all elements equal to the main offense, the double jeopardy provision of the fifth amendment does not bar defendant's reprosecution. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Thus, accordingly, we hold that attempted resisting arrest with violence, while technically nonexistent, is in actuality in all elements equal to the main offense resisting arrest with violence.
Accordingly, the cause is REMANDED for a new trial.
BOARDMAN, A.C.J., and CAMPBELL, J., concur.
NOTES
[1] Rule 3.580 provides:
When a verdict has been rendered against the defendant or the defendant has been found guilty by the court, the court on motion of the defendant or on its own motion may grant a new trial or arrest judgment. (Emphasis added.)
[2] Rule 3.620 provides:
When the offense is divided into degrees or necessarily includes lesser offenses, and the court, on a motion for a new trial, is of the opinion that the evidence does not sustain the verdict but is sufficient to sustain a finding of guilt of a lesser degree or of a lesser offense necessarily included in the one charged, the court shall not grant a new trial but shall find or adjudge the defendant guilty of such lesser degree or lesser offense necessarily included in the charge, unless a new trial is granted by reason of some other prejudicial error.
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190 F.3d 765 (6th Cir. 1999)
MARLON PRIMES, PLAINTIFF-APPELLANT,v.JANET RENO, U.S. ATTORNEY GENERAL, DEFENDANT-APPELLEE.
No. 98-3448
U.S. Court of Appeals, Sixth Circuit
Argued: June 8, 1999Decided: September 13, 1999
Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 97-00632--James S. Gwin, District Judge.
Marlon A. Primes (argued and briefed), Cleveland, OH, pro se.
Janet I. Stich (briefed), Akron, OH, for Plaintiff-Appellant.
Susan Pacholski (argued and briefed), Marleigh D. Dover (briefed), U.S. Department of Justice, Civil Division, Appellate Staff, Washington, D.C., for Defendant-Appellee.
Before: Merritt, Nelson, and Ryan, Circuit Judges.
OPINION
Merritt, Circuit Judge.
1
Plaintiff Marlon Primes, an African-American Assistant U.S. Attorney in the Northern District of Ohio, appeals the district court's granting of the government's cross-motion for summary judgment on all claims. This appeal presents the question whether the plaintiff has set forth a prima facie case of racial discrimination by the Department of Justice, and more specifically, his supervisor, Civil Chief Marcia Johnson. For the reasons set forth below and in the thorough analysis of the lower court, its judgment is affirmed.
2
Mr. Primes began work on October 18, 1992, in the U.S. Attorney's Office in the Northern District of Ohio. Although Primes received work evaluations in both 1992 and 1993, the subject of this suit is the full-year performance evaluation he received in 1994. At that time, Primes was still a junior Assistant U.S. Attorney with very limited litigation experience; to wit, he did not try any cases in 1994 and he delivered his first appellate argument that year. In 1994, all Assistant U.S. Attorneys in the Northern District of Ohio received one of the following performance ratings: (1) Unacceptable; (2) Minimally Satisfactory; (3) Fully Successful; (4) Excellent; and (5) Outstanding. These government attorneys were rated not on the basis of the number of cases won or lost, but rather on the basis of the quality of their work in the light of the complexity of their case assignments. Primes was given a rating of "Fully Successful" for 1994.The government's records indicate that over the past ten years, the majority of Assistant U.S. Attorneys in that district office have received a "Fully Successful" rating in their second annual performance evaluation from Civil Chief Marcia Johnson. Ms. Johnson, herself an African-American, stated that Primes' rating of "Fully Successful" was based on the following relevant factors: (1) Primes did not work on difficult and complex cases; (2) Johnson identified several mistakes in Primes' district court and appellate court briefs in 1994; (3) Johnson identified major deficiencies in Primes' legal analysis and general application to his cases; (4) Primes complained about being overworked despite the fact that he was handling a lighter-than-average caseload - in July 1994, for example, Primes had 14 active cases on his personal docket, or just half of the average of 28 cases on the dockets of all civil Assistant U.S. Attorneys in the Northern District of Ohio; and (5) Johnson did not feel that Primes was progressing in his professional development as an Assistant U.S. Attorney.
3
Primes received his 1994 mid-year progress review on September 28 of that year. Only days later, on October 3, 1994, Primes filed his first written informal complaint of racial discrimination with the Equal Employment Opportunity Office of the Executive Office of U.S. Attorneys in Washington, DC. When Primes' work performance did not improve substantially between the mid-year review and his year-end evaluation, Ms. Johnson expressed the same concerns regarding his work as she had previously. On April 19, 1995, Primes filed his first formal written complaint of racial discrimination with the EEOC, adding an allegation that he had been subject to reprisal for his Equal Employment Opportunity claim. The Department of Justice, however, maintains that Ms. Johnson did not learn that plaintiff had initiated an informal EEO complaint until after she completed his year-end 1994 performance evaluation in March 1995. In March 1997, Primes filed suit in federal court, alleging that his 1994, "fully successful" performance evaluation was discriminatory, that he had been subject to different standards than females and non-African-Americans, and that management had retaliated against him for filing his initial allegation of discrimination in October 1994. The parties filed cross-motions for summary judgment, and the district court denied Primes' motion and granted summary judgment to the Department of Justice, dismissing all of Primes' claims.
4
The district court held that Primes had failed (1) to present direct evidence of discrimination, see JA 291; (2) to set forth a prima facie case of discrimination because he failed to establish that he was qualified for a higher evaluation than the one he received; and (3) to show that similarly situated lawyers were treated differently, see id. at 295, 298. The court held that even if Primes had set forth a prima facie case of discrimination, the defendant had "provided ample reasons to show Primes' performance evaluation... was a legitimate finding and not the result of any racial animus." Id. at 298. The district court also held that Primes had failed to establish an inference of retaliation, as his final evaluation was based on the identical factors set forth in his progress review six months earlier. This appeal ensued.
5
In this disparate treatment case, Primes can make a prima facie claim of discrimination only by showing that the Department of Justice treated differently a member of a non-protected group similarly situated in an analogous situation. In the instant matter, the government maintains that Primes, like other Assistant U.S. Attorneys in the civil division, was evaluated on the basis of the quality of his work in light of the complexity of his case assignments. As the following excerpt from the District Court's opinion demonstrates, the Department of Justice has set forth substantial unrebutted statistical evidence that shows that Primes was not treated differently from similarly-situated non-minority employees:From November 1, 1988, through 1997, the civil division in the Northern District of Ohio hired (or saw transferred in) 12 [Assistant U.S. Attorneys, or AUSAs]. Of these 12 newly-hired AUSAs, records for one who has left the government or gone to work for another U.S. attorney's office were not available. Another AUSA transferred to the civil division after six years experience as an AUSA in another division. A third AUSA joined the office with 10 years of experience and was soon promoted to a supervisory position.
6
About half of the remaining nine attorneys received a "fully successful" rating during their second full year with the Northern District, that was their same rating as their first year, and most of these lawyers were white. (Second year ratings were not complete or available for a few others). A similarly situated attorney who is not a minority was rated on a new scale in his second year evaluation and received a grade... equivalent to the former "fully successful" grade. (Of the two AUSAs who received an "excellent" rating during the second year, one was white and the other was African-American.)
7
In summary, the defendant treated plaintiff the same as at least four similarly situated AUSAs when Primes was rated "fully successful" during his second year with the civil division. One black male and one white male were rated higher but at least four others received the same rating.
8
JA 295-96 (emphasis added) (footnote omitted).
9
Under these circumstances, the employment action at issue -- Primes' 1994, mid-range, performance evaluation of "fully successful" -- is not the type of adverse employment action contemplated by Title VII. If every low evaluation or other action by an employer that makes an employee unhappy or resentful were considered an adverse action, Title VII would be triggered by supervisor criticism or even facial expressions indicating displeasure. Paranoia in the workplace would replace the prima facie case as the basis for a Title VII cause of action. The case law supports our view that the employer conduct in this case will not support a Title VII cause of action. See Yates v. Avco, 819 F.2d 630, 638 (6th Cir. 1987) (plaintiff did not suffer adverse employment action, where demotion was in response to request for a transfer away from a harassing supervisor, salary and benefits were not reduced, and employee was assured that she would receive the next available position at higher grade); Sweeney v. West, 149 F.3d 550, 557 (7th Cir. 1998) (if negative performance evaluation were deemed actionable as "retaliation," it would "send a message to employers that the slightest nudge or admonition... can be the subject of a federal lawsuit"); Rabinovitz v. Pena, 89 F.3d 482, 488-89 (7th Cir. 1996) (low performance evaluation and consequent ineligibility for discretionary bonus not actionable adverse employment action); Montadon v. Farmland Industries, Inc., 116 F.3d 355, 359 (8th Cir. 1997) (lower performance evaluation not used as basis for any action against employee not "adverse employment action"); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir. 1994) (same).
10
Accordingly, the judgment of the district court is AFFIRMED.
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239 F.2d 273
Clarence RUPERT, Appellant,v.TODD SHIPYARDS CORPORATION, a corporation and Pacific Indemnity Company, a corporation, Appellees.
No. 15160.
United States Court of Appeals Ninth Circuit.
December 10, 1956.
McMurray, Brotsky, Walker, Bancroft & Tepper, Rubin, Tepper, San Francisco, Cal., for appellant.
Weingand & Tipton, Jean Wunderlich, Los Angeles, Cal., for appellees.
Warren H. Pillsbury, San Francisco, Cal., for amicus curiae, Warren H. Pillsbury.
Before POPE, CHAMBERS and BARNES, Circuit Judges.
PER CURIAM.
1
These proceedings were instituted in the court below for the purpose of setting aside a portion of a compensation order made under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, Title 33 U.S.C.A. §§ 901-950. Upon pre-trial hearing the facts were stipulated and the cause submitted to the court upon the stipulation and briefs of the parties. Thereafter findings and judgment were made and entered setting aside that part of the order which granted the appellant a sum "on account of serious facial disfigurement". The trial court filed an opinion giving its reasons for the decision, as follows:
2
"At pre-trial hearing the parties presented a stipulation of facts and submitted the cause for decision upon briefs.
3
"The admitted facts, as disclosed by the pre-trial stipulation and the admissions made by the pleadings, are briefly these. On March 27, 1951, while performing services as a stage rigger on the Steamship Cache, afloat off shore from the yards of libelant Todd Shipyards Corporation, respondent Clarence Rupert slipped and fell a distance of approximately sixteen feet, landing on his forehead and face, thereby sustaining serious injuries, totally disabling and permanent in character and including serious facial disfigurement.
4
"Respondent Rupert thereafter duly filed his claim for compensation, and on April 29, 1955, respondent Warren H. Pillsbury by respondent David R. Landy, Deputy Commissioner, made findings of fact and predicated thereon an award of 207 3/7 weeks' compensation at $35.00 per week for `temporary total disability' (33 U.S.C.A. § 908(b)) from March 28, 1951, to March 18, 1955, inclusive; 6 weeks' compensation at $35.00 per week for `permanent total disability' (id. § 908(a)) from March 19 1955, to April 29, 1955, with continuing payments thereafter for permanent total disability at the rate of $35.00 per week until otherwise ordered; and $50.00 per month to the wife of respondent Rupert for services as an attendant as long as the services may be necessary. (Id. § 907(a).)
5
"In addition, the award directs the payment to respondent Rupert of the challenged sum of $2,000 `on account of serious facial disfigurement.' (Id. § 908(c) (20).)
6
"Libelants here object to the award for facial disfigurement, and the stipulation of the parties states that: `the sole question, to be decided is whether the Deputy Commissioner, in addition to total temporary and total permanent disability, has the power and jurisdiction under the Longshoremen's and Harbor Workers' Compensation Act to award additional sums on account of * * * serious facial disfigurement. * * *
7
"The matter must be considered as res integra, since it does not appear that the question has been previously decided.
8
"Libelants urge that the statutory scheme for compensation for disability plainly indicates that an award for `permanent total disability' (33 U.S.C.A. § 908(a)) is the absolute maximum to be paid to the injured employee, and precludes any added award for facial disfigurement.
9
"The schedule of compensation for disability to be paid to the employee is set forth in § 8 of the Act. (33 U.S.C.A. § 908.)
10
"Section 8(e) covers `temporary partial disability', and provides that: `In case of temporary partial disability resulting in decrease of earning capacity the compensation shall be two-thirds of the difference between the injured employee's average weekly wages before the injury and his wage-earning capacity after the injury in the same or another employment, to be paid during the continuance of such disability, but shall not be paid for a period exceeding five years.' (Id. § 908(e).)
11
"Section 8(b) covers `temporary total disability', and provides that: `In case of disability total in character but temporary in quality 66 2/3 per centum of the average weekly wages shall be paid to the employee during the continuance thereof.' (Id. § 908(b).)
12
"Section 8(c) deals with `permanent partial disability', and specifies that: `In case of disability partial in character but permanent in quality the compensation shall be 66 2/3 per centum of the average weekly wages, which shall be in addition to the compensation for temporary total disability or temporary partial disability paid in accordance with subdivision (b) or subdivision (e) of this section, respectively, and shall be paid to the employee, as follows: (1) Arm lost, two hundred and eighty weeks' compensation; (2) Leg lost, two hundred and forty-eight weeks' compensation; (3) Hand lost, two hundred and twelve weeks' compensation. * * * (20) Disfigurement: The deputy commissioner shall award proper and equitable compensation for serious facial or head disfigurement, not to exceed $3,500.' (Id. § 908 (c).)
13
"Section 8(a) covers `Permanent total disability', and provides that: `In case of total disability adjudged to be permanent 66 2/3 per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability. Loss of both hands, or both arms, or both feet, or both legs or both eyes, or of any two thereof shall, in the absence of conclusive proof to the contrary, constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts.' (Id. § 908(a).)
14
"Respondents apparently do not question that as a general proposition there can be no award for `permanent partial disability' in addition to an award for `permanent total disability', but seek to draw a distinction between the types of `permanent-partial disability' injuries designated in paragraphs (1) through (19) of § 8(c), and the `serious facial or head disfigurement' specified in paragraph (20).
15
"Basis for the distinction is said to be found in the mandatory language of paragraph (20), in particular the use of `shall.' However, the language throughout subdivision (c), indeed throughout § 8, appears to be in like manner mandatory. What is meant no doubt is that just as an employee `shall be paid' 212 weeks' compensation for the loss of a hand (Id. § 908(c) (3)), so `shall' the deputy commissioner award him `proper and equitable compensation for serious facial or head disfigurement, not to exceed $3,500' (Id. § 908(c) (20)), provided he isn't already receiving the maximum amount of compensation payable under the Act for a disability that is both total and permanent. (Id. § 908(c).)
16
"Another claimed distinction between the provisions of § 8(c) (20) and § 8 (c) (1)-(19) is that while compensation for certain named injuries listed in paragraphs (1) through (19) of subdivision (c) is payable for a specified number of weeks at 66 2/3% of the average weekly wages, not to exceed $35.00 per week (Id. § 906(b)), compensation for `serious facial or head disfigurement', on the other hand, is payable as a lump sum, to be fixed by the deputy commissioner. The reason for this distinction would appear obvious. As pointed out in Iacone v. Cardillo, 2 Cir., 1953, 208 F.2d 696, 699;
17
`Schedules are set up not to put a "price" on certain parts of the human body, but to ameliorate an otherwise intolerable administrative burden by providing a certain and easily applied method of determining the effect on wage earning capacity of typical and classifiable injuries.' 208 F.2d at [pages] 699-700.
18
"It seems clear from the very framework of the statute itself, as Judge Garrecht pointed out in Case v. Pillsbury, 9 Cir., 1945, 148 F.2d 392, 393, that: `This subdivision [§ 8(c) (20), 33 U.S.C.A. § 908(c) (20)] is just one of a series of classifications of injuries for permanent partial disability. * * * Subdivisions (1) to (19) under (c) provide specific awards for impairment due to loss of members and subdivision (c) (20) provides a separate award for disfigurement.' (148 F.2d at [page] 393.)
19
"The view that § 8(c) sets forth `a series of classifications of injuries for permanent partial disability,' and is not applicable to cases of `permanent total disability' (33 U.S.C.A. § 908(a)), finds support in the language of § 8(c) providing for `permanent partial disability,' which expressly declares that awards thereunder shall be `in addition to' compensation for `temporary total disability' and for `temporary partial disability' paid in accordance with `subdivision (b) or subdivision (e) of this section, respectively'; but significantly omits any mention of subdivision (a) covering cases of `permanent total disability.' (Id. § 908(b) and (e) and (a).)
20
"Upon testing the soundness of the conclusion that § 8(c) (20) is not applicable to cases of `permanent total disability,' it is helpful to examine decisions of the New York courts interpreting the New York statute upon which the Longshoremen's and Harbor Workers' Compensation Act is based. (See: Lawson v. Suwannee Fruit & Steamship Co., 1949, 336 U.S. 198, 205 [69 S.Ct. 503, 93 L.Ed. 611]; Iacone v. Cardillo, supra, 208 F.2d at [page] 697; Case v. Pillsbury, supra, 148 F.2d at [page] 394; Bethlehem Steel Co. v. Parker [D.C.] D.Md.1947, 72 F. Supp. 35, 39, affirmed 4 Cir., 1947, 163 F.2d 334.) The provisions of the New York statute relating to disfigurement are similar to those of § 8(c) (20). (See: N.Y. Workmen's Compensation Law [Consol. Laws, c. 67], § 15(3) (t).) And they have been interpreted by the New York courts to mean that an award for disability that is both total and permanent, such as was granted in the case at bar, precludes an additional award for facial or head disfigurement. (See: Beekman v. N. Y. Evening Journal, 1939, 258 App.Div. 833, 15 N.Y.S.2d 671; Freeland v. Endicott Forging & Mfg. Co., 1931, 233 App.Div. 440, 253 N.Y.S. 597; Clark v. Hayes, 1924, 207 App.Div. 560, 202 N.Y.S. 453, affirmed 1924, 238 N.Y. 553, 144 N.E. 888.)
21
"It is interesting, moreover, that the earliest of the New York decisions just cited was decided some years prior to adoption in 1927 of the Act here. So it may fairly be presumed that Congress was aware of the construction given the facial disfigurement provisions of the New York law when the Longshoremen's and Harbor Workers' Compensation Act was drafted. (See: Employers' Liability Assurance Corp. v. Monahan, 1 Cir., 1937, 91 F.2d 130; Terminal Shipping Co. v. Branham, [D.C.] D.Md.1942, 47 F. Supp. 561, affirmed 4 Cir., 1943, 136 F.2d 655.)
22
"Finally, the Longshoremen's and Harbor Workers' Compensation Act, as its name implies, is a compensation statute and invokes wage-compensation principles rather than tort principles. (See: Iacone v. Cardillo, supra, 208 F.2d at [page] 699; Hartford Accident & Indemnity Co. v. Cardillo, 1940 [72 App.D. C. 52], 112 F.2d 11, 17, certiorari denied 1940, 310 U.S. 649 [60 S.Ct. 1100, 84 L. Ed. 1415]; Wheeling Corrugating Co. v. McManigal, 4 Cir., 1930, 41 F.2d 593, 595; Chappell v. C. D. Johnson Lumber Corp., [D.C.] Ore.1953, 112 F.Supp. 625; Bethlehem Steel Co. v. Parker, [D.C.] D. Md.1946, 64 F.Supp. 615.)
23
"As a compensation statute imposing upon the employer liability regardless of fault, the Act should generally be interpreted as providing for an award intended to compensate for loss of earning capacity. Any interpretation permitting an award of compensation for facial disfigurement to be super-imposed upon an award for `permanent total disability' which presupposes a permanent loss of all earning capacity, would run counter to the manifest spirit and purpose of the enactment.
24
"If considerations of social policy argue for allowance of an additional award for `serious facial or head disfigurement' under § 8(c) (20) (33 U.S.C.A. § 908(c) (20)) in cases of `total disability adjudged to be permanent' under § 8 (a) — thus applying tort rather than wage compensation principles where such disfigurement results — this end should be accomplished by Congressional enactment and not by judicial decision. (See: New York Central R. v. Bianc, 1919, 250 U.S. 596, [40 S.Ct. 44, 63 L.Ed. 1161]; Kobilkin v. Pillsbury, supra, 103 F.2d [677,] at [page] 670.)
25
"Accordingly the award, insofar as it directs libelants to pay respondent Clarence Rupert the sum of $2,000 on account of serious facial disfigurement, must be set aside, and enforcement thereof permanently enjoined."
26
We approve that opinion. Accordingly, the judgment is affirmed.
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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BETTY T. YEE, CALIFORNIA STATE
CONTROLLER,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1555
______________________
Appeal from the United States Court of Federal Claims
in No. 1:17-cv-00206-MBH, Senior Judge Marian Blank
Horn.
______________________
Decided: June 12, 2019
______________________
MARTIN LOBEL, Lobel, Novins & Lamont, LLP, Wash-
ington, DC, argued for plaintiff-appellant.
ZACHARY JOHN SULLIVAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by ALLISON KIDD-MILLER, ROBERT EDWARD
KIRSCHMAN, JR., JOSEPH H. HUNT.
______________________
2 YEE v. UNITED STATES
Before PROST, Chief Judge, LOURIE and CLEVENGER,
Circuit Judges.
PROST, Chief Judge.
The State of California (“California” or “State”) appeals
a decision by the U.S. Court of Federal Claims granting
summary judgment in favor of the United States (“Govern-
ment”) regarding a cooperative agreement for audit ser-
vices related to oil and gas royalties. Because the Court of
Federal Claims’s interpretation of the cooperative agree-
ment was in error, we reverse.
I
In October 2010, the U.S. Department of the Interior
(“Interior”) and California entered into a cooperative agree-
ment for audit services involving royalty collection (“the
Agreement”). The Agreement was entered pursuant to the
Federal Oil and Gas Royalty Management Act of 1982
(FOGRMA), Pub. L. No. 97-451, 96 Stat. 2447 (codified as
amended at 30 U.S.C. §§ 1701–1759). The Agreement was
drafted by Interior and was extended each year until June
30, 2016.
The audits related to oil and gas royalties owed to the
Federal Government and shared with California. The
United States agreed to reimburse California for allowable
costs related to performing the audits. Specifically, Part 2
of the Agreement provides:
[Interior] will reimburse the State up to 100 per-
cent of allowable costs for audits and/or investiga-
tions of Federal oil, gas, and solid minerals leases
(when applicable) in accordance with the State’s re-
quest not to exceed the amount approved for each
fiscal year of this Agreement.
J.A. 220. Under the subheading “Payment of Reimbursa-
ble Costs,” Section 6.4.B of the Agreement further provides:
YEE v. UNITED STATES 3
[Interior] will reimburse the State for approved
costs incurred under this Agreement in accordance
with 43 CFR 12(A) Administrative and Audit Re-
quirements and Cost Principles for Assistance Pro-
grams.
J.A. 228.
Finally, under the heading “Cost Understandings,” Sec-
tion 6.5 of the Agreement provides in relevant part:
B. Salaries and Wages - Compensation to personnel
which are charged as a direct cost under this
Agreement, like other costs, will be reimbursa-
ble subject to the following additional under-
standings:
(1) Salaries and wages may not exceed the
State’s established policy and practice in-
cluding the established pay scale for equiva-
lent classifications of employees whose
salaries are financed from non-Federal
sources, which will be certified by the State,
nor may any individual salary or wage exceed
the employee’s annual rate of compensation
for similar functions performed immediately
prior to employment hereunder . . . .
(2) Salaries and wages paid while in travel sta-
tus will not be reimbursed for a period
greater than the time required for travel by
the most cost effective means.
C. Fringe Benefits [-] Fringe benefits shall be al-
lowed in accordance with the State’s established
accounting system.
J.A. 229–30 (emphasis added).
In 2015, Interior sent a report alleging California had
overbilled for certain salary, fringe benefits, and indirect
costs under the Agreement. J.A. 130 (Draft Attestation
4 YEE v. UNITED STATES
Engagement Report). Interior claimed it overpaid Califor-
nia by $296,459.94 from FY 2011 to FY 2014. See id. It
withheld payments to recoup the allegedly overbilled
amount. California opposed the withholding, but Interior
issued a final report denying California’s protest. Califor-
nia then filed an appeal with Interior on the grounds it
used the State’s established accounting system to properly
calculate the relevant costs. The appeal was denied.
Following transfer from district court, California pro-
ceeded with its complaint before the Court of Federal
Claims in March 2017. California alleged breach of con-
tract. See J.A. 37–41. California sought a declaration that
Interior breached the Agreement “by unilaterally adopting
and imposing a different method of accounting for allowa-
ble costs rather [than] calculating them under California’s
[State Administrative Manual (SAM)] method as specifi-
cally allowed under the Agreement.” J.A. 40. The parties
filed cross-motions for summary judgment on the contract
interpretation issue. The Court of Federal Claims agreed
with Interior’s interpretation.
California now appeals. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(3).
II
We review the grant of summary judgment by the
Court of Federal Claims de novo. TEG-Paradigm Envtl.,
Inc. v. United States, 465 F.3d 1329, 1336 (Fed. Cir. 2006).
Contract interpretation is a question of law, which we also
review de novo. Id.
This case presents a single issue of contract interpreta-
tion. Below, the Government argued that the method Cal-
ifornia used to bill for certain costs under the Agreement
was improper. California used the SAM formula, which re-
lies on accrual accounting for calculating fringe benefits
and overhead. In other words, the SAM formula accounts
for certain accrued benefits before they are paid out to
YEE v. UNITED STATES 5
employees. In the Government’s view, California was re-
quired to use OMB’s method. According to the Govern-
ment, the OMB method only recognizes actual cash
expenditures (e.g., actual payments to employees). The
Court of Federal Claims agreed with the Government, con-
cluding that the contract is “unambiguous” and required
California to bill only for cash expenditures. J.A. 20. On
appeal, California argues that the plain language of the
contract expressly allowed it to use the SAM method of ac-
counting for the disputed benefits. We agree with Califor-
nia that the Court of Federal Claims erred.
We begin with the plain language of the contract. See
Hercules Inc. v. United States, 292 F.3d 1378, 1380 (Fed.
Cir. 2002). Section 6.5.C of the Agreement unambiguously
provides: “Fringe Benefits [-] Fringe benefits shall be al-
lowed in accordance with the State’s established account-
ing system.” J.A. 230.
The Government does not meaningfully dispute that
the method California applied—the SAM formula—is re-
cited in the State Administrative Manual for calculating
fringe benefits. Nor does it dispute that this has been Cal-
ifornia’s established accounting practice for the last thirty
years. See J.A. 4. Furthermore, the Government concedes
that “California multiplied the [SAM] rate by actual hours
worked on this cooperative agreement.” Appellee’s Br. 7.
Instead, the Government only takes issue with the
SAM formula itself because it uses accrued costs rather
than actual cash payments. But nothing in the contract
requires actual cash payments for reimbursement. In-
stead, the plain language of the contract explicitly permits
California to use the SAM formula, which is part of “the
State’s established accounting system” under Section
6.5.C. When the contractual language “is unambiguous on
its face, our inquiry ends and the plain language of the
Agreement controls.” Coast Fed. Bank, FSB v. United
States, 323 F.3d 1035, 1040–41 (Fed. Cir. 2003).
6 YEE v. UNITED STATES
Accordingly, the Court of Federal Claims erred in conclud-
ing the State’s use of the SAM formula to calculate fringe
benefits was improper under the Agreement.
III
The Government mounts three main arguments as to
why California’s SAM method remains improper. None are
persuasive. First, it argues that OMB provisions incorpo-
rated by reference in Section 6.4.B control, overriding Sec-
tion 6.5.C. Second, it avers that the contract’s language
about “costs incurred” and “reimbursement” limit the scope
of state accounting practice authorized under Section 6.5.C
to cash outlays. Third, it argues California’s SAM method
results in overcompensation.
The Government’s first argument relies on the general
provision in Section 6.4.B, which provides that “costs in-
curred under this Agreement must be in accordance with
43 C.F.R. 12(A) Administrative and Audit Requirements
and Cost Principles for Assistance Programs.” J.A. 228. It
then claims California’s billing “runs afoul” of OMB circu-
lars incorporated by reference into the Agreement under 43
C.F.R. Part 12(A). Appellee’s Br. 14. In particular, the
Government claims “OMB Circular A-87 contains many
cost principles and standards, including principles and
standards related to the costs at issue in this case, and fac-
tors affecting allowability of costs, such as reasonableness
and allocability.” Id. at 15.
As an initial matter, the Government fails to substan-
tively discuss any provision in the OMB Circular A-87 that
purports to clearly support its claim that California’s SAM
formula offends OMB practice. See generally id. Indeed,
the Government appeared to concede at oral argument that
no provision expressly precludes accrual accounting.
Oral Argument at 26:18–27:35, No. 2018-1555,
http://www.cafc.uscourts.gov/oral-argument-recordings.
YEE v. UNITED STATES 7
Regardless, even if OMB practice could be read to ex-
clude accrual accounting, the reference to OMB practice in
the more general provision of Section 6.4.B does not con-
trol. Section 6.4.B recites a general provision about allow-
able costs, while Section 6.5.C recites a specific provision
authorizing the use of the State’s accounting method for a
particular type of allowable cost—i.e., fringe benefits. It “is
settled law that where an agreement contains general and
specific provisions that conflict, ‘the provision directed to a
particular matter controls over the provision which is gen-
eral in its terms.’” L.W. Matteston, Inc. v. United States, 61
Fed. Cl. 296, 307 (Fed. Cl. 2004) (quoting Hol-Gar Mfg.
Corp. v. United States, 351 F.2d 972, 980 (Ct. Cl. 1965)); see
also Hills Materials Co. v. Rice, 982 F.2d 514, 517 (Fed. Cir.
1992) (“Where specific and general terms in a contract are
in conflict, those which relate to a particular matter control
over the more general language.”).
The Government also takes the view that fringe bene-
fits could be allowed using California’s established account-
ing system, but only if they are also in accordance with
OMB methods. The Court of Federal Claims implicitly
adopted this reading, treating “the State’s established ac-
counting system” in Section 6.5.C as adequate grounds to
award fringe benefits only to the extent the practice com-
plies with OMB practice incorporated in Section 6.4.B.
J.A. 19 (finding “the administrative regulations and cost
principles prescribed in OMB Circular A-87, however, still
applied to the [State]’s requests for reimbursement, even if
the [State] chose to bill utilizing California’s State Admin-
istrative Manual”).
Such an interpretation would, however, require rewrit-
ing Section 6.5.C. As discussed above, Section 6.5.C ex-
pressly states fringe benefits “shall be allowed” in
accordance with the State’s established accounting system.
“[S]hall be allowed” is a sufficient condition. Contrary to
the Government’s view, the Agreement does not recite a
necessary criterion for recovering fringe benefits. The
8 YEE v. UNITED STATES
specific provision in Section 6.5.C states that fringe bene-
fits are allowed as long as they comport with California’s
established practice. The Government fails to explain why
Section 6.5.C deserves less force and effect than any other
provision in the Agreement.
The Government’s second argument is that the con-
tract was only designed to reimburse California for actual
costs “incurred.” Appellee’s Br. 6, 12. In the Government’s
view, “incurred” means costs that are accounted for when
they are paid out (i.e., according to OMB’s method of ac-
counting), rather than “incurred” under California’s
method of accounting. As such, it treats OMB’s accounting
method as if it is unambiguously written into the contract.
The Government’s position is unavailing.
To support its construction, the Government primarily
relies on the phrase “incurred costs” in Section 6.4.B. How-
ever, the Government fails to mention that the full phrase
refers to “costs incurred under this Agreement.” J.A. 228.
Thus, the use of the word “incurred” does not resolve the
inquiry at hand. We must still analyze whether these costs
“incurred” under the contract are limited to costs actually
incurred by California per employee—i.e., costs that Cali-
fornia already paid each employee—or whether a formula
accounting for accrued costs per employee is acceptable.
Turning to that question, the Government’s position is
unsupported. First, there is no language in the Agreement
defining “incurred” costs as actual cash payments only. 1
Second, nothing in the contract excludes accrued costs for
“fringe benefits” as a category of costs that can be “in-
curred” under the Agreement. Indeed, the plain language
1 The Agreement mentions “actual” costs in two
places, with respect to travel reimbursement and records
maintenance. J.A. 229 (Section 6.5.A(2)); J.A. 231 (Section
7.1.D).
YEE v. UNITED STATES 9
of the contract compels the opposite conclusion: accrued
costs for fringe benefits are “incurred” under the Agree-
ment. Section 6.5.C expressly authorizes the State to use
its own established accounting method to calculate such
costs for fringe benefits. Therefore, we reject the Govern-
ment’s attempt to redefine the term “costs incurred” to map
directly onto its view that the contract requires cash basis
forms of accounting. 2
Finally, the Government’s third argument appears to
be that the SAM formula inherently leads to overcompen-
sation. The Government’s arguments about overcompen-
sation essentially restate its view that California was
permitted to only bill for cash outlays rather than use the
accrual methods inherent to the SAM formula. For the rea-
sons already stated above, these arguments fail.
Even if there were some lingering doubt about whether
the foregoing issues—OMB rules, costs incurred, or alleged
overcompensation—might somehow condition or limit the
State’s ability to use its own practices as authorized under
Section 6.5.C, there is no explanation in the Agreement as
to how the State’s practices must be modified. At best, the
contract would be ambiguous. Any such ambiguity “should
2 Essentially repackaging its argument about “in-
curred” costs, the Government argues California was only
entitled to “reimbursement” for work actually done on the
contract, which it insists means that California’s fringe
benefit costs are capped at the hours of leave it actually
paid to its employees. See Appellee’s Br. 11–12. Like in-
curred costs, “reimbursement” is not defined. The contract
could have specified, as the Government urges, that “reim-
bursement” requires California to account for every dollar
that it actually paid out in a given time period or it cannot
be compensated. But the contract used a different mecha-
nism for compensating the State, which allowed the State
to use its own accounting practices.
10 YEE v. UNITED STATES
be construed most strongly against the drafter, which in
this case was the United States.” United States v. Seck-
inger, 397 U.S. 203, 210 (1970).
We have considered the Government’s remaining argu-
ments and find them unpersuasive. 3
In sum, Interior and the State of California contracted
for use of state employee labor. In exchange for use of that
labor, Interior agreed to reimburse the State for allowable
costs. The contract allowed certain costs to be calculated
and billed using the State’s practice. The State did so.
Thus, the Court of Federal Claims erred.
IV
For the foregoing reasons, we reverse the Court of Fed-
eral Claims’s decision.
REVERSED
3 Based on the way the SAM formula is calculated,
California contends the entire sum Interior withheld
($296,459.94) implicates fringe benefits. In California’s
view, its ability to recover the sum therefore turns on the
dispute over whether accrual accounting for fringe benefits
is allowed under the Agreement. California argues that
while Interior’s original justification for its withholding
purported to break out this disputed sum into salary, fringe
benefits, and indirect costs, see J.A. 147, its breakdown was
inaccurate or arbitrary. See Oral Arg. at 9:05–10:10. On
appeal, the Government did not provide independent rea-
sons why breaking out the withheld portions in this man-
ner was appropriate. Even if the Government had
adequately explained how the SAM formula can be reliably
parsed into distinct categories (e.g., “salary”), it does not
separately explain why it was justified in withholding
these sums in view of the contract’s language about costs.
| {
"pile_set_name": "FreeLaw"
} |
J-A16034-14
2014 PA Super 285
K.A.R. FORMERLY K.A.L. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
T.G.L.
Appellee No. 1561 WDA 2013
Appeal from the Order September 6, 2013
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 00-7928-016
BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.
OPINION BY OTT, J.: FILED DECEMBER 23, 2014
K.A.R., formerly K.A.L. (hereinafter “Wife”), brings this appeal1 from
the order entered September 6, 2013, in the Court of Common Pleas of
Allegheny County, dismissing in part her Exceptions to the Report and
Recommendation of the Master, and granting the Exceptions filed by T.G.L.
(hereinafter “Husband”), in this action brought by Wife to enforce the
parties’ equitable distribution agreement. Wife claims the trial court erred in
ruling (1) that Husband’s statute of limitations defense barred Wife’s action
to enforce the parties’ equitable distribution agreement, and (2) that
____________________________________________
1
Because a consent order to seal the record was entered by the trial judge,
the parties’ names have been replaced with initials, and other identifying
proper names have been replaced with generic labels.
J-A16034-14
Husband’s laches defense barred Wife’s action to enforce the parties’
equitable distribution agreement. Based upon the following, we affirm.
The trial court has aptly stated the factual and procedural history,
which we restate, in part:
Husband and Wife married on June 17, 1988. Two children were
born of the marriage [who] are both emancipated. Wife filed a
Complaint in Divorce on January 29, 2000, and a decree in
divorce was entered August 5, 2003. The parties participated in
an Equitable Distribution hearing before Master Gary Gilman on
August 21 and August 22, 2003. On the second day of the
hearing counsel for the parties read an Equitable Distribution
Agreement into the record. One marital asset the parties
discussed in the Agreement was Husband’s interest in his startup
venture, [Business-1] (hereinafter referred to as “[Business-1]”).
Counsel for Husband stated,
With regard to [Business-1] stock, Husband would
agree – or the parties I believe agree that in this
contemplated agreement that of the first net after
taxes of a million dollars [H]usband received from
the sale of [Business-1] stock, if and when it would
be sold, and/or of the sale of any warrants which
Husband has in [Business-1] stock or any other
benefits he derives from the disposition of his
interest in [Business-1] as it stands right now, as to
the first million dollars of that net, after taxes, Wife
would receive 50 percent – I’m sorry – Wife would
receive 45 percent, Husband would receive 45
percent and 10 percent would be invested in a
vehicle for the Children … And with regard to any
amount over that first million net, again, defining
the proceeds broadly to include remuneration of
any kind other than his salary or wages which he
would receive from the disposition of what
currently exists as of today, it would be split 75
percent to Husband, 15 percent to Wife, 10 percent
to the Children. (8/22/2003 H.T., at 72–3).
-2-
J-A16034-14
Wife served Husband a Petition to Enforce the Equitable
Distribution Agreement and for Sanctions on March 21, 2011
(hereinafter referred to as the “Petition to Enforce”). The Petition
to Enforce asserted, inter alia, that Husband sold a portion of his
[Business-1] stock in January 2004[, that the total sale was
completed] for approximately $22 million[, and that Wife
believes Husband received initial proceeds in excess of $2.5
million.] Wife also stated that Husband retained the advertising
component of [Business-1] as part of the initial transaction,
which was renamed [Business-2]. She claimed that [Business 2]
subsequently became [Business-2A], and Husband then sold his
interest in [Business-2A]. Wife alleged that Husband retained all
the funds from the transaction. Wife averred that Husband made
a payment to her of $300,000 on April 9, 2004 and a second
payment of $150,000 to her on September 15, 2005. Wife
further alleged that Husband failed to include any interest
component for the delayed payments. [Wife averred that based
upon the limited information provided by Husband, she believed
she was owed over $300,000 for her share of the sale proceeds
from Business-1 and Business-2/Business-2A.] Wife asked the
Court, inter alia, to schedule a hearing to address Wife’s claim
for enforcement of the Equitable Distribution Agreement.
On March 30, 2011 Husband served Wife an Answer to the
Petition to Enforce, New Matter and Counter Petition. Husband
stated that Wife’s interests in [Business-1] were limited to
Husband’s ownership rights as they existed on August 22, 2003,1
and Wife was not entitled to any future consideration given to
Husband for the future commitments he made as part of the
[Business-1] transaction. Husband stated that Wife’s interests
were limited to the after-tax proceeds that he would have
received if his stock were treated the same as all common
shares because he only held common stock in [Business-1] on
August 22, 2003. Husband further stated that he retained no
ownership interest in [Business-1] after the January 2004 sale
and that [Business-2A] was completely distinct from [Business-
1]. Husband averred that he overpaid Wife $152,887.28 for her
share of what he received for the [Business-1] stock and asked
that Wife repay this amount to him along with interest.2
_______________________________________________________________________
-3-
J-A16034-14
1
This is the date that the Equitable Distribution
Agreement was read into the record.
2
Husband stated that he would have received a pre-tax
payment of $846,475 as a result of the [Business-1]
transaction if his shares were treated as common shares.
Under Husband’s calculations this would have yielded
after-tax proceeds of $660,000, which would entitle Wife
to $297,112.73. Husband stated that he had paid Wife
$450,000 with respect to [Business-1], which is an
overpayment in the amount of $152,887.28
______________________________________________
****
The four (4) day hearing to address Wife’s Petition to Enforce
took place before Master [Patricia] Miller [on March 20, 2012,
May 29, 2012, May 31, 2012, and August 30, 2012]. Master
Miller entered her Report and Recommendation on September
28, 2012. In this Report the Master determined that no
agreement was formed between the parties on August 22, 2003.
The Master found that Wife’s decision to discharge her attorney
after the parties’ counsel discussed the disposition of the
[Business-1] stock on the record, to sue him for malpractice, and
to state in verified pleadings that there was no valid agreement
was sufficient evidence that an agreement never existed. The
Master also concluded that it was not clear if even Husband
believed there was an agreement that he was to pay Wife 45%
of the first $1,000,000 he received for the sale of his [Business-
1] stock. The Master stated that either party could praecipe for
an equitable distribution hearing to determine the marital
property component of the [Business-1] stock and the
percentage distribution to each party.
Husband and Wife filed Exceptions to the Report and
Recommendation of Master Miller on October 18, 2012. …
****
After the parties argued Exceptions on August 29, 2013, the
Court entered its September 6, 2013 Order that granted in part
-4-
J-A16034-14
Wife’s Exceptions to the Report and Recommendation of Master
Miller. The Court found that the Master ruled on an issue that
was not before her [namely, the validity of the agreement], that
the Master failed to rule on the issues referred to her by the
August 19, 2011 Order of Court [namely, Husband’s affirmative
defenses of statute of limitations and/or laches], that a valid
equitable distribution agreement exists between Husband and
Wife, and that an equitable distribution hearing was not to be
scheduled. The Order dismissed Wife’s remaining Exceptions.
The Order also granted Husband’s Exceptions to the Report and
Recommendation of Master Miller [that asserted Wife’s claims
were time barred by the statute of limitations and the doctrine of
laches]. The Court found that Husband’s defenses of statute of
limitations and laches bar enforcement of the Equitable
Distribution Agreement. The Order also resolved all remaining
economic issues between Husband and Wife.
Wife filed her Notice of Appeal to the September 6, 2013 Order
of Court on September 30, 2013, and she thereafter filed her
Concise Statement of Matters Complained of on Appeal on
October 1, 2013.
Trial Court Opinion, 12/2/2013, at 1–6 (emphasis supplied).
Preliminarily, we note that “[a] question regarding the application of
the statute of limitations is a question of law.” Commonwealth v. Riding,
68 A.3d 990, 993 (Pa. Super. 2013). Furthermore, “the question of whether
laches applies is a question of law.” United National Insurance Co. v.
J.H. France Refractories Co., 668 A.2d 120, 124 n.4 (Pa. 1995). “Our
standard of review over questions of law is de novo and to the extent
necessary, the scope of our review is plenary as [the appellate] court may
review the entire record in making its decision.” Stamerro v. Stamerro,
889 A.2d 1251, 1257 (Pa. Super. 2005) (quotations and citation omitted).
-5-
J-A16034-14
However, we are bound by the trial court’s credibility determinations. Id. at
1257–1258.
Wife first contends that the trial court erred in ruling the statute of
limitations barred the present action to enforce the parties’ agreement. Wife
argues that the parties’ agreement is a “continuing contract.”
The statute of limitations for contracts is four years. 42 Pa.C.S. §
5525(a)(8). “[T]he statute of limitations begins to run as soon as the right
to institute and maintain a suit arises.” Fine v. Checcio, 870 A.2d 850, 857
(Pa. 2005) (citation omitted). However, “[w]hen a contract is continuing,
the statute of limitations will run either from the time the breach occurs or
when the contract is terminated.” Crispo v. Crispo, 909 A.2d 308, 313 (Pa.
Super. 2006) (citing S.T. Hudson Eng'rs, Inc. v. Camden Hotel Dev.
Assocs., 747 A.2d 931, 934 (Pa. Super. 2000)). “The test of continuity, so
as to take the case out of the operation of the statute of limitations, is to be
determined by the answer to the question whether the services were
performed under one continuous contract, whether express or implied, with
no definite time fixed for payment, or were rendered under several separate
contracts.” Thorpe v. Schoenbrun, 195 A.2d 870, 872 (Pa. Super. 1963).
Wife argues that the parties’ equitable distribution agreement is a
continuing contract because, as part of the January, 2004 Business-1 sale,
Husband acquired an interest in Business-2A, which was part of 2006 and
-6-
J-A16034-14
2009 transactions that netted Husband additional proceeds to which Wife is
entitled to under the parties’ agreement. See Wife’s Brief at 23. Wife
points to the language in the parties’ agreement stating, “Wife was to
receive 45% of the initial million dollars, net after taxes, from the sale of
[Business-1] stock, if and when it would be sold, and/or of the sale of any
other warrants which Husband had in [Business-1] stock or any other
benefits [Husband] derived from the disposition of his interest in [Business-
1].” Wife’s Brief at 23 (italics in brief). Wife contends Husband had a
continuing obligation extending through the 2009 [Business-2A] transaction,
which was less than four years prior to the date she filed her petition to
enforce. See id. at 25. In support of her argument that the equitable
distribution agreement was a continuing contract, Wife cites Miller v. Miller,
983 A.2d 736 (Pa. Super. 2009), appeal denied, 998 A.2d 961 (Pa. 2010)
and Crispo v. Crispo, supra.
In Miller, supra, the defendant/husband was obligated by the parties’
post nuptial separation agreement to pay the mortgage, taxes and insurance
on the marital residence. Id. at 738. After the husband stopped making
payments based upon a 1996 interim order of child support that directed
plaintiff/wife to pay the mortgage from husband’s child support payments,
wife filed a petition for enforcement of the parties’ agreement in 2005. Id.
at 738–739. Husband argued that the applicable four-year statute of
-7-
J-A16034-14
limitations barred wife’s claim for reimbursement of payments she made
before November 15, 2001 (i.e., four years prior to when she filed her
petition for enforcement on November 15, 2005). Id. at 743. This Court
rejected husband’s argument, determining that the parties’ agreement was a
continuing contract. The Court found that husband continued to owe
payments on the marital residence, and noted that the agreement did not
set a specific deadline by which to make the payments and did not identify
specific amounts owed. Id.
In Crispo, supra, 909 A.2d 308 (Pa. Super. 2006), the parties
entered into a property settlement agreement that detailed various
payments and debts each party would pay. Id. at 309–10. After husband
failed to make payments, wife filed a petition for contempt and/or
enforcement of the property settlement agreement. Id. at 309. The trial
court found husband in contempt and ordered him to fulfill the terms of the
settlement agreement. Id. at 311. Husband appealed, claiming the four-year
statute of limitations for contracts and marriage settlement agreements
applied to wife’s claims. Id. This Court disagreed, concluding that the
parties’ agreement was a continuing contract and the statute of limitations
defense was inapplicable. Id. at 315. In this regard, the Court noted that
their agreement did not contain a specific deadline by which the debts were
to be paid, and that wife continued to make payments to satisfy the debts
-8-
J-A16034-14
that were husband’s obligation. The Court also noted that there was no
specific start date in the agreement for husband’s installment payments to
wife for the $22,500 amount he had agreed to pay her as her fair share of
the interest in his business. Id. at 313–314.
Here, however, as the trial court aptly explained, the present case is
distinguishable from Miller and Crispo:
Wife argues in her Brief in Support of Exceptions that “the
parties’ agreement is a continuing contract because Husband
was not fully compensated for the sale of [Business-1] in a lump
sum, and he had a continuing obligation to pay Wife her share of
further monies received as a result of the sale.” (Wife’s Brief in
Support of Exceptions, p. 17). This is an inaccurate conclusion in
light of the terms of the Equitable Distribution Agreement and
the evidence before the Court. The Equitable Distribution
Agreement states, in relevant part, that,
... of the first net after taxes of a million dollars husband
received from the sale of [Business-1] stock, if and when
it would be sold, and of the sale of any other warrants
which Husband has in [Business-1] stock or any other
benefits he derives from the disposition of his interest in
[Business-1] as it stands right now ... Wife would receive
45 percent, Husband would receive 45 percent, and 10
percent would be invested in a vehicle for the Children ...
And with regard to any amount over that first million net,
again, defining the proceeds broadly to include
remuneration of any kind other than his salary or wages
which he would receive from the disposition of what
currently exists as of today, it would be split 75 percent
to Husband, 15 percent to Wife, 10 percent to the
Children. (8/22/03 H.T. pp. 72- 3) (emphasis added).
First, the “if and when” language in the Equitable
Distribution Agreement clearly sets a “definitive time fixed for
payment”: Wife’s right to receive a percentage of Husband’s
remuneration from the sale of the [Business-1] stock arose when
-9-
J-A16034-14
Husband disposed of this stock. Since Husband sold all of his
[Business-1] stock in the January 22, 2004 [] merger, January
22, 2004 is the date that Wife became entitled to payment from
Husband. (Husband’s Exhibit 32, §13).
… As of November 4, 2003, Husband owned 2,370,000
shares of voting common stock. (Wife’s Exhibit N). Husband
testified at the Petition to Enforce hearing that the pre-tax
market value of this amount of common stock on January 22,
2004 was worth approximately $850,000. (3/20/12 H.T., p.
162). Husband further testified that he received a stay bonus as
a part of the transaction. Husband was allocated this bonus by a
Corporate Resolution passed by the Shareholders and Directors
of [Business-1] on January 15, 2004. (Husband’s Exhibit 32).
Husband testified that this bonus was received because of the
future commitments he made [], including staying on with
[Business-1] as an employee at a reduced compensation,
assigning his future intellectual property rights, signing a long-
term noncompete, indemnifying the entire merger, and initiating
and forming an advertising initiative ([Business-2A]). (3/20/12
H.T., p. 163). Husband contends that these future commitments
and any monies associated therewith were not available to Wife
under the Equitable Distribution Agreement, ….
****
Wife likens the Equitable Distribution Agreement to the
property settlement agreements in Crispo and Miller. She
argues that the Equitable Distribution Agreement is a continuing
contract that required Husband to pay Wife a percentage of all
proceeds he received from the sale of the [Business-1] assets as
those assets were sold. (Wife’s Brief in Support of Exceptions p.
18). Wife further argues that there is no manner in which the
Court could determine any specific date on which Husband was
required to make payments under the parties’ agreement and it
does not identify specific amounts owed. (Wife’s Brief in Support
of Exceptions p. 18).
As discussed supra, the “if and when” language of the
Equitable Distribution Agreement sets a specific time for
payment to Wife: when Husband sold his [Business-1] stock, his
duty to compensate Wife arose simultaneously. Since Husband
- 10 -
J-A16034-14
disposed of all of his [Business-1] stock on January 22, 2004,
payment to Wife became due on this date. The specific amounts
owed from Husband to Wife are also identified in the Equitable
Distribution Agreement. Under the Agreement Wife would
receive 45% of the net proceeds up to the first million dollars
that Husband reaped from the sale of his [Business-1] stock, and
Wife would thereafter receive 15% of the net proceeds above
the first million dollars. Since the sale of the [Business-1] stock
had not yet occurred at the time the Equitable Distribution
Agreement was entered on the record, the Court finds that the
identification of percentages owed to each party are appropriate
proxies for specific dollar amounts.
In consideration of the above, the Court holds that the
Equitable Distribution Agreement sets a definitive time for
payment from Husband to Wife and is distinguishable from the
property settlement agreements in Crispo and Miller. ….
Trial Court Opinion, supra, at 9–13.
We agree with the trial court’s analysis. The “if and when” language of
the agreement provided that the date that Husband sold the Business-1
stock — here, January 22, 2004 — was the specific date when Husband
became obligated to make payment to Wife for the Business-1 sale.
Moreover, the parties’ agreement identifies the amount owed to Wife, in
terms of percentages of net proceeds received by Husband. Accordingly, we
conclude Wife’s first argument presents no basis to disturb the trial court’s
determination that the parties’ agreement is not a continuing contract and
that the statute of limitations bars the present action.
Alternatively, Wife claims that if the statute of limitations is applicable,
the statute of limitations was tolled by: (1) the writ of summons filed by
- 11 -
J-A16034-14
Wife, (2) the discovery rule, (3) Husband’s concealment and the parties’
ongoing negotiations, and (4) Husband’s acknowledgement of his obligation
to Wife. We are not persuaded by these arguments.
We first address Wife’s argument that the statute of limitations was
tolled by the writ of summons she filed on January 20, 2005, in the Civil
Division of the Allegheny County Court of Common Pleas, against Husband
and Husband’s wife with a demand for a jury trial. The record supports the
trial court’s finding that Wife’s deposition testimony, taken during her legal
malpractice action against her attorney whom she discharged after the
parties’ agreement was made of record, evidences that she had filed the writ
against Husband and a separate writ against Husband’s attorney to protect
her ability to bring a fraud action in relation to the malpractice action, and
not to protect her interests in this enforcement action.2 See Trial Court
Opinion, 12/2/2013, at 24. See also N.T., 8/30/2012, at 259, 267;
Husband’s Exhibit 59 § 12. Wife, however, contends that she filed the writ
against Husband to preserve all her legal claims against him. In this regard,
Wife points to her then counsel’s November 1, 2005 letter to Husband,
____________________________________________
2
In fact, on January 14, 2005, less than one week before Wife filed the writ,
Wife sent Husband an email, stating, in part: “‘The statute of limitations for
fraud in PA is one year, so suit will be filed before the anniversary of the
[January 22, 2004] sale.’” N.T., 3/20/2012, at 84; Husband’s Exhibit 9.
- 12 -
J-A16034-14
demanding Husband’s payment of additional monies and stating, if Husband
did not agree to payment, Wife would “pursue the fraud claim and all other
legal claims and remedies against you[.]” Wife’s Exhibit II, Letter from
Wife’s Attorney to Husband, 11/1/2005. See Wife’s Brief at 29. See also
N.T., 5/29/2012, at 245–246.
Wife relies on case law that allows a party to file an enforcement
action under § 3105 of the Divorce Code3 and a separate action in the civil
division on the property settlement agreement itself, and maintains that,
because she filed the writ, she can still file a complaint in the civil division at
any time.4 Wife, however, cites no authority that supports the application
of a writ of summons in a civil action to an enforcement proceeding under
____________________________________________
3
Section 3105 of the Divorce Code provides, in pertinent part:
(a) Enforcement. --A party to an agreement regarding matters
within the jurisdiction of the court under this part, whether or
not the agreement has been merged or incorporated into the
decree, may utilize a remedy or sanction set forth in this part to
enforce the agreement to the same extent as though the
agreement had been an order of the court except as provided to
the contrary in the agreement.
23 Pa.C.S. § 3105(a).
4
See Wife’s Brief at 31–32, citing, inter alia, Nicholson v. Combs, 703
A.2d 407, 417 (Pa. 1997); Peck v. Peck, 707 A.2d 1163, 1164 (Pa. Super.
1998).
- 13 -
J-A16034-14
the Divorce Code.5 Therefore, we agree with the trial court that “Wife’s
claims in the current enforcement action could not and cannot be preserved
by a Writ of Summons[.]” Trial Court Opinion, 12/2/2013, at 24.
Accordingly, Wife’s reliance on the writ of summons to toll the statute of
limitations fails.
Next, Wife claims that the discovery rule tolls the statute of
limitations.
The discovery rule is a judicially created device that tolls the
running of the applicable statute of limitations until that point
when the plaintiff knows or reasonably should know: (1) that he
has been injured; and (2) that his injury has been caused by
another party’s conduct.
Weik v. Estate of Brown, 794 A.2d 907, 909 (Pa. Super. 2002) (citation
omitted), appeal denied, 813 A.2d 844 (Pa. 2002).
Whether the statute of limitations has run on a claim is a
question of law for the trial court to determine; but the question
as to when a party’s injury and its cause were discovered or
discoverable is for the [factfinder].
Fine v. Checcio, supra, 870 A.2d at 859.
____________________________________________
5
Compare Pa.R.C.P. 1007 (“An action may be commenced by filing with the
prothonotary (1) a praecipe for writ of summons, or (2) a complaint.”) with
Pa.R.C.P. 1920.12 (regarding complaint as to cause of action of divorce or
for annulment) and Pa.R.C.P. 1920.43(a)(3) (providing procedure for special
relief in divorce or annulment actions; “At any time after the filing of a
complaint, on petition setting forth facts entitling the party to relief, the
court may, upon such terms and conditions as it deems just, including the
filing of security, … grant other appropriate relief.”).
- 14 -
J-A16034-14
Pennsylvania’s formulation of the discovery rule reflects a narrow
approach “to determining accrual for limitations purposes” and
places a greater burden upon Pennsylvania plaintiffs vis-à-vis the
discovery rule than most other jurisdictions. The commencement
of the limitations period is grounded on “inquiry notice” that is
tied to “actual or constructive knowledge of at least some form
of significant harm and of a factual cause linked to another’s
conduct, without the necessity of notice of the full extent of the
injury, the fact of actual negligence, or precise cause.”
Gleason v. Borough of Moosic, 15 A.3d 479, 485 (Pa. 2011) (citations
omitted).
Wife claims the statute of limitations could not have begun to run until
after Husband provided her with his relevant tax returns in the summer of
2011 and 2012 pursuant to court order, because only then was she able to
verify the correct amounts of the 2004 sale of Business-1 and the 2006 and
2009 Business-2A transactions. See Wife’s Brief at 34–35. The trial court,
however, found that after Wife learned of the January, 2004 Business-1
sale,6 Husband provided Wife with distribution spreadsheets explaining the
amounts Husband received from the sale, which Wife acknowledged by a
notation on the documents in April 2004. Additionally, the trial court found
that Husband provided Wife with the closing binder of the Business-1
____________________________________________
6
Wife testified she learned about the Business-1 sale, and the new
company, Business-2A, in April, 2004, when a friend sent her a newspaper
article about the sale. See N.T., 3/20/2012, at 45; N.T., 5/29/2012, at
175–178. See also Wife’s Brief at 7–8.
- 15 -
J-A16034-14
transaction in early January of 2005, following which Wife sent Husband an
email on January 14, 2005, indicating that she still believed Husband owed
her money under the parties’ equitable distribution agreement.7 See Trial
Court Opinion, 12/2/2013, at 14–15. These findings are supported by the
record. Furthermore, we agree with the trial court that the January 14,
2005 date of Wife’s email to Husband must be considered the latest date for
application of the discovery rule, as she evidenced her belief at that time
that she had suffered harm. Therefore, the statute of limitations expired on
January 14, 2009, over two years before Wife filed her petition for
enforcement. Accordingly, we conclude the discovery rule does not save
Wife’s petition from Husband’s statute of limitations defense.
Wife further claims that the statute of limitations was tolled by
Husband’s concealment and the parties’ negotiations.
[T]he doctrine of fraudulent concealment serves to toll the
running of the statute of limitations. The doctrine is based on a
____________________________________________
7
The January 14, 2005 email exchange between Wife to Husband included
the following message from Wife to Husband:
You obviously received millions of dollars in a cash deal on
January 22, 200[4]. That fact is not subject to interpretation. I
now have information inconsistent with the homemade
spreadsheets I received from you in April. Meeting with you gets
me nowhere, because it is what it is. I’m not interested in re-
forming the deal. I want a check tonight.
Husband’s Exhibit 9; see N.T., 3/20/2012, at 86–87.
- 16 -
J-A16034-14
theory of estoppel, and provides that the defendant may not
invoke the statute of limitations, if through fraud or
concealment, he causes the plaintiff to relax his vigilance or
deviate from his right of inquiry into the facts. The doctrine does
not require fraud in the strictest sense encompassing an intent
to deceive, but rather, fraud in the broadest sense, which
includes an unintentional deception. The plaintiff has the burden
of proving fraudulent concealment by clear, precise, and
convincing evidence.
Fine v. Checcio, supra, 870 A.2d at 860 (citations omitted).
Wife asserts that Husband concealed the amount of monies he
received from the Business-1 transaction. Wife contends that Husband,
through counsel, “averred that he received no more than $1,000,000” and
“state[d] Wife was overpaid,”8 and in support of this argument points to a
May 7, 2007 letter from Husband’s counsel. However, the letter itself belies
Wife’s claim. Counsel’s letter stated that counsel had “no information
[related to the sale of Business-1] other than what [Husband] advised me,
which is that all of the monies were paid.” Wife’s Exhibit G; N.T.,
3/20/2012, at 270. Counsel further stated: “I believe that it is true
[Husband] has paid [Wife] all or perhaps in excess of the amount he owed
pursuant to the equitable distribution settlement.” Id. Counsel made no
representation concerning the amount Husband received from the Business-
1 sale. Further, counsel’s statement that Husband had satisfied his
____________________________________________
8
Wife’s Brief at 37–38.
- 17 -
J-A16034-14
obligation to Wife was not a misrepresentation of the amount received by
Husband for the sale of Business-1.
Next, Wife points to “Husband’s testimony herein claiming receipt of
only $850,000, while his tax return for 2004 shows receipt of $2.6 million
and his 2006 and 2009 tax returns show receipt of additional funds that are
in excess of $1 million.” Wife’s Brief at 38. Husband’s testimony at the
hearings before the master, however, could not have misled Wife.9
Wife argues that “Husband has taken the position in a letter from
counsel, his answer to Wife’s petition to enforce and his testimony herein,
that he had no further obligation to Wife; this notwithstanding that for years
Husband has negotiated the further amount due Wife, acknowledging such
debt and interest owing for such debt.” Wife’s Brief at 39-40. This
argument, however, ignores the well settled principle that settlement
negotiations do not toll the statute of limitations. Nesbitt v. Erie Coach
Company, 204 A.2d 473 (Pa. 1964). To the extent that Wife relies on
Nesbitt for the proposition that “if through fraud or concealment the
defendant causes the plaintiff to relax his vigilance or deviate from his right
____________________________________________
9
The record reflects that Husband testified at the petition to enforce hearing
that he received $2.6 million in cash for the Business-1 stock and a stay
bonus. He stated the common shares he held in Business-1 on August 22,
2003, had a value of $850,000 on January 22, 2004. See N.T., 3/20/2012,
at 293.
- 18 -
J-A16034-14
of inquiry, the defendant is estopped from invoking the bar of limitation of
action,”10 we conclude, based upon our rejection of Wife’s concealment
arguments, that Nesbitt has no application to the present case. Therefore,
we find Wife’s argument that the statute of limitations was tolled by
Husband’s concealment and settlement negotiations presents no basis upon
which to disturb the trial court’s decision.
In addition, Wife asserts that Husband’s acknowledgement of his
obligation to Wife precluded Husband’s statute of limitation defense.
Pursuant to the “acknowledgement doctrine,” a statute of
limitations may be tolled or its bar removed by a promise to pay
the debt.
A clear, distinct and unequivocal acknowledgement of a
debt as an existing obligation, such as is consistent with a
promise to pay, is sufficient to toll the statute. There
must, however, be no uncertainty either in the
acknowledgement or in the identification of the debt; and
the acknowledgement must be plainly referable to the
very debt upon which the action is based; and also must
be consistent with a promise to pay on demand and not
accompanied by other expressions indicating a mere
willingness to pay at a future time. A simple
declaration of an intention to discharge an
obligation is not the equivalent of a promise to pay,
but is more in the nature of a desire to do so, from
which there is no implication of a promise.
Huntingdon Fin. Corp. v. Newtown Artesian Water Co., 659 A.2d 1052,
1054 (Pa. Super. 1995) (citations omitted) (emphasis added).
____________________________________________
10
Nesbitt, supra, 204 A.2d at 475 (citations omitted).
- 19 -
J-A16034-14
Contrary to Wife’s claim, the record fails to show that Husband
acknowledged a debt to Wife. Here, Wife, on November 20, 2007, sent an
email to Husband in which she stated that she would be willing to accept
$200,000 to resolve the outstanding equitable distribution claims.
Husband’s Exhibit 24; N.T., 3/20/2012, at 215–226. Subsequently,
Husband emailed Wife on May 27, 2009, stating “I just want to verify that
the final payment of $200,000 (plus an interest amount accruing from last
spring which we still need to specify and agree upon) will complete the
payments under our settlement agreement. Please verify this so I can give
you a check this evening.” Husband’s Exhibit 29; N.T., 3/20/2012, at 230.
Husband’s willingness to accept Wife’s proposal was not the
acknowledgement of a debt. Husband had maintained that he had overpaid
Wife.11 Nor was there a promise to pay $200,000 on demand. Husband’s
____________________________________________
11
Following Husband’s May 27, 2007, email, Wife emailed Husband on May
28, 2009, seeking to condition the $200,000 payment upon “authorization if
ever needed to review the appropriate documents,” and Husband answered,
We need to discuss then. You can have access to whatever
information you want and we can then determine what is owed
under the Settlement Agreement. As you know, we have
different perspectives on what that may be. My perspective is
that I have paid more than my obligation – your position is that I
have paid less. As part of a proposed settlement to get
everything resolved, you and [your attorney] presented to me
this dollar amount ($200,000) and said let’s call it complete —
(Footnote Continued Next Page)
- 20 -
J-A16034-14
response asking Wife “to verify that the final payment of $200,000 … will
complete the payments” was a settlement negotiation – “a simple
declaration of an intention to discharge an obligation,”12 which is not the
equivalent of a promise to pay. Accordingly, the statute of limitations was
not tolled where Husband did not acknowledge a debt to Wife.
Finally, Wife claims that the trial court erred in ruling that Husband’s
laches defense barred Wife’s action to enforce the parties’ equitable
distribution agreement.
“The doctrine of laches is applicable when two conditions are satisfied:
‘the complaining party must be guilty of a want of due diligence in failing to
assert his rights and the failure must have worked to the prejudice of the
party seeking its application.’” In re Estate of Bowman, 797 A.2d 973,
977 (Pa. Super. 2002) (citation omitted)).
Wife asserts that the parties’ agreement was a continuing contract,
and therefore, the doctrine of laches cannot be applied in this matter.
_______________________
(Footnote Continued)
please remember that you and [your attorney] came up with
that number — not me.”
Husband’s Exhibit 29; N.T., 3/20/2012, at 230, 232–233.
12
Huntingdon Fin. Corp. v. Newtown Artesian Water Co., supra, 659
A.2d at 1054.
- 21 -
J-A16034-14
Furthermore, Wife contends that neither condition for application of the
doctrine of laches was met in this case. These arguments fail.
As discussed above, the parties’ equitable distribution agreement is
not a continuing contract. Moreover, we conclude that the trial court
committed no error in finding that the conditions for application of the laches
defense were met in this case. See In re Estate of Bowman, supra. In
this regard, we adopt the discussion of the trial court as dispositive:
The Court finds that Wife’s actions in this matter invoke
the doctrine of laches. The evidence shows that Husband
provided Wife in January 2005 the materials that explained the
[Business-1] transaction. In February 2006 Husband offered to
arrange a meeting between the transactional attorney who
helped effectuate the [Business-1] transaction and Wife to
discuss the closing documents. (Husband’s Exhibit 9; Husband’s
Exhibit 22). Wife’s counsel took advantage of this opportunity
(although he refused to discuss the documents with either
Husband or the transactional attorney) later that month. After
two examinations of the [Business-1] closing documents
performed by Wife and/or her agent, followed by Wife’s
consistent assertions that Husband owed her more money under
the Equitable Distribution Agreement, the Court finds that Wife
did not exercise due diligence in the pursuit of her claim by filing
the present action five (5) years after these events took place.
The Court further finds that Husband was prejudiced by
Wife’s actions because he made a $150,000 payment to Wife
under the pretenses that this amount would resolve the parties’
equitable distribution issues. Even though Husband believed that
he paid Wife the correct amount due to her closely following the
[Business-1] sale (a sum of $300,000), Husband paid Wife an
additional $150,000 in September 2005 in an attempt to
completely settle the matter. Wife, however, continued to pursue
more funds under the Equitable Distribution Agreement. This
clearly prejudiced Husband because he believed that the
payment of this amount to Wife would end their dispute and
- 22 -
J-A16034-14
quell the possibility of any further court action. If Wife sought to
enforce her claims in a timely manner, it is likely that Husband
would have withheld any payments to Wife and waited until the
Court disposed of the conflict.
Since the two prongs of the “doctrine of laches” test have
been met, Wife’s claims are properly barred by the doctrine of
laches.
Trial Court Opinion, 12/2/2013, at 27–28.
Accordingly, we affirm.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
- 23 -
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895 S.W.2d 375 (1994)
In the Matter of Annie B. ROGERS, Deceased.
No. 12-93-00064-CV.
Court of Appeals of Texas, Tyler.
September 30, 1994.
Order Overruling Motion for Rehearing December 29, 1994.
*376 Brendan J. Doran, Palestine, for appellant.
Stephen Evans, Palestine, for appellee.
RAMEY, Chief Justice.
This appeal is from a bench trial judgment in favor of a will contestant in which the trial court ruled that a 1959 document was not a valid testamentary instrument, thus necessitating the administration of an estate under the laws of intestate succession. Dollie R. Shelton, decedent's sister, had offered Annie B. Rogers's purported 1959 holographic will as a muniment of title; it was admitted to probate on March 2, 1992. Subsequently, decedent's nephew, Raymond Rogers, filed an action contending that Annie B. Rogers had died intestate and seeking a declaration that a 1988 handwritten document and/or a 1989 typed and handwritten document had revoked the 1959 will. We will affirm the trial court judgment.
The evidence in this record consisted of several stipulations of the parties which included copies of the three pertinent instruments. The relevant stipulations were:
That the holographic will of Annie B. Rogers, Deceased, dated July 14, 1959, admitted to probate on March 2, 1992, in Cause No. 11,505 is the Last Will and Testament of Annie B. Rogers unless it had been revoked or lacked sufficient testamentary language.
That if the holographic Will admitted to probate on March 2, 1992, was revoked, it was revoked either by a handwritten instrument dated both July 25, 1988 and July 22, 1988, or a typed instrument bearing numerous dates, the earliest of which is September 11, 1989.
That the order of creation of the three relevant documents is as follows:
a. First, the holographic Will, dated July 14, 1959 ("1959 document") admitted to probate on March 2, 1992;
b. Second, the handwritten document dated July 22, 1988, and July 25, 1988 ("1988 document"); and
c. Third, the typed instrument the earliest date of which was September 11, 1989 ("1989 document").
That at the time of the making of each of the documents described immediately above, Annie B. Rogers possessed testamentary capacity.
That each of the documents described in the immediately preceding paragraph is admissible in evidence in this proceeding for the purpose of determining the question of revocation.
That neither the 1988 or 1989 document is a valid testamentary instrument. Specifically, the handwritten 1988 instrument contains numerous interlineations in the handwriting of persons other than Annie B. Rogers. However, the parties reserve as a contested issue whether this document was executed with "like formalities" as required by § 63 of the Texas Probate Code. The typed 1989 instrument does not meet the formal requirements of the Texas Probate Code for testamentary or any other purpose.
The Judgment vacating its prior order admitting the 1959 document to probate as a muniment of title and declaring that Annie B. Rogers' estate would pass by intestacy was signed on December 2, 1992. Thereafter, the trial court made its Findings of Fact and Conclusions of Law, the pertinent recitations being:
True and correct copies of all three instruments were received into evidence.
The 1959 document "was not, in and of itself, a valid testamentary instrument, for the purposes of admission into probate as a muniment of title, or estate administration or distribution;"
The 1959 document was revoked by both the 1988 and 1989 documents.
Annie B. Rogers died intestate.
In this appeal Shelton asserts that the evidence was insufficient, legally and factually, to support three trial court findings and conclusions that: (1) the 1959 will was not a valid testamentary instrument; (2) the 1959 will was revoked by the 1988 document; and (3) the 1959 will was revoked by the 1989 document.
The trial court's findings of fact and conclusions are reviewable for legal and *377 factual sufficiency by the same standards applied in reviewing the evidence supporting a jury's answer. Watson v. Dingler, 831 S.W.2d 834, 837 (Tex.App.Houston [14th Dist.] 1992, writ denied). In a no evidence point, only evidence and inferences that support the challenged finding will be considered, and all contrary evidence and inferences will be disregarded. Id. In a factual insufficiency point of error, all of the evidence will be considered and the finding will be set aside only if the evidence is so weak or the finding so against the overwhelming weight of the evidence that it is clearly wrong and unjust. Id.
Shelton's first two points address the insufficiency of the evidence to support the trial court's conclusion that the 1959 handwritten document was not a valid testamentary disposition; this handwritten instrument states:
Codicil to my last will July 14, 1959 It is my will and desire that in event of my death and my sister Jewel Rogers death (both of us) that all my property both personal and real money in banks, bonds and notes any and all interests pass to my two sisters namely
(1) Mrs Novie Rogers Stanaland 2518 MorrowWaco Texas
(2) Mrs Horace W. Shelton 809 Fowler, Palestine Texas
This property is to be equally divided among these two sisters with exception of $100.00 to go to Mexican Missions through Orvil W. Keel Fr. Baptist church as donor
Signed
Annie B. Rogers
My personal Handwriting
We hold that the decedent's use of the terms "[it] is my will and desire that in the event of my death ... any and all interests pass ..." is expressive of the decedent's testamentary intent. The use of the phrase "my will and desire" has been construed to be mandatory testamentary language. Thomasson v. Kirk, 859 S.W.2d 493, 495 (Tex.App.Houston [14th Dist.] 1993, writ denied); Woods v. Wedgeworth, 453 S.W.2d 385, 388-389 (Tex.App.El Paso 1970, no writ); McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412, 414 (1887). "Codicil", the name ascribed to the instrument by the decedent, is itself not controlling as to whether it was a will. Preston v. Preston, 617 S.W.2d 841, 844 (Tex.Civ.App.Amarillo 1981, writ ref'd. n.r.e.); Hinson v. Hinson, 154 Tex. 561, 280 S.W.2d 731, 733 (1955). The silence of the record as to the existence of an attendant will, if any, is not fatal inasmuch as the subject 1959 document makes disposition of the decedent's entire estate. We hold that there is no evidence to support the trial court's conclusion that the 1959 document was not a valid testamentary instrument. Shelton's first point of error is sustained.
The remaining four points of error pertain to the insufficiency of the evidence to support the trial court's findings and conclusions that the 1959 holographic instrument, even if a valid will, was revoked by the 1988 and/or 1989 documents. As stated, the parties stipulated that the 1988 and 1989 documents were not valid testamentary instruments but were admitted for the limited purpose of making a determination of the revocation issue. An instrument not admitted to probate may nevertheless operate as an instrument of revocation. Lisby v. Richardson, 623 S.W.2d 448, 451 (Tex.App.Texarkana 1981, no writ); Chambers v. Chambers, 542 S.W.2d 901, 905 (Tex.Civ.App.Dallas 1976, no writ). A written will may only be revoked by a subsequent will, codicil or declaration in writing which was executed with the "like formalities" of a valid testamentary instrument. TEX.PROB.CODE ANN. § 63 (Vernon 1955).
First, it is noted that the parties stipulated that "[t]he typed 1989 document does not meet the formal requirements of the Texas Probate Code for testamentary or any other purposes". We are therefore constrained to hold that that instrument did not conform to the "like formalities" requirement of the Probate Code; thus the 1989 document did not revoke the 1959 will. (emphasis added) Shelton's fifth point of error is sustained.
*378 The remaining question is whether the 1988 document revoked the 1959 will. Initially, it is noted that the 1988 document expressly recited that it did revoke all prior wills and codicils. The issue of whether a revoking will is executed with like formalities is ordinarily a question of fact to be determined by the fact finder. May v. Brown, 144 Tex. 350, 190 S.W.2d 715, 718 (1945); Baptist Foundation of Texas v. Buchanan, 291 S.W.2d 464, 472 (Tex.Civ.App.Dallas 1956, writ ref'd n.r.e.). In addition to the recitation of two dates on the 1988 instrument, the stipulated defect in that document was that it "contains numerous interlineations in the handwriting of persons other than Annie B. Rogers".
The court was apprised that the parties agreed that this stipulated 1988 document is a true and correct copy of an original instrument. It is a seven page handwritten instrument, entitled "Last Will and Testament of Annie B. RogersDatedJuly 25, 1988"; it was drafted with the traditional recitations of a testamentary instrument. The purported signature of Annie B. Rogers at the end of the document appears to be in the same handwriting as the contents of the instrument, excepting the interlineations. Although the instrument is handwritten, there are signatures of two witnesses to its execution.[1] A further significant stipulation of the parties was that at the time of the making of the 1988 document "that Annie B. Rogers possessed testamentary capacity".
With respect to the stipulated "interlineations" defect in the 1988 document, the trial court could have concluded that the 1988 holographic instrument was executed prior to the inscription of any interlineations. The revocation of a will takes effect at the time the subsequent will is executed; though the new will be annulled for any reason, the will which had been earlier revoked is not reinstated. Sanderson v. Aubrey, 472 S.W.2d 286, 288 (Tex.Civ.App.Fort Worth 1971, writ ref'd n.r.e.). Despite the dearth of proof of the circumstances of the execution of the 1988 document, we are unable to disturb the trial court's finding that the 1988 document revoked the 1959 holographic will. Shelton's third and fourth points of error are overruled.
The judgment of the trial court is affirmed.
OPINION ON REHEARING
The Appellant, Dollie R. Shelton, in her motion for re-hearing, challenges our affirmance of the opinion below on the basis that there was no evidence that any part of the 1988 document was in the handwriting of Annie B. Rogers. We find this contention without merit.
Points of error not raised in a party's appeal cannot be raised for the first time on rehearing. Story Services, Inc. v. Ramirez, 863 S.W.2d 491, 505-06 (Tex. App.El Paso 1993, writ denied). Though Shelton contended in her brief that there was no evidence supporting the trial court's finding that the 1988 document effected a revocation of the earlier instrument, her argument for this position was that
1) "the document was not wholly in the handwriting of Annie B. Rogers," and therefore not capable of being probated as a holographic will, and,
2) there was neither an attestation clause nor any other of a number of enumerated requirements needed to make effective the will as a duly witnessed document.
At no point did Shelton specifically urge that the error in the judgment below was that Appellee Raymond Rogers failed to provide evidence that that portion of the document purporting to be in Annie Roger's handwriting was, in fact, Annie Roger's handwriting. Such contention cannot be raised on Motion for Rehearing for the first time.
Furthermore, it appears from this record that all counsel stipulated that the 1988 document was a holographic will, which, however, was not a valid testamentary instrument because it contained interlineations by an undisclosed third party. As stated above, Shelton's contention that "the document was not wholly in the handwriting of Annie B. Rogers" implicitly supplies probative evidence *379 that the testator drafted the 1988 document revoking the 1959 will.
The motion for re-hearing is overruled.
NOTES
[1] There is a third signature at the bottom of the document which may be that of a third witness.
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177 F.3d 978
A Lawson Enterprisesv.LIGA*
NO. 98-30756
United States Court of Appeals,Fifth Circuit.
March 19, 1999
Appeal From: E.D.La. , No.97-CV-2759-F
1
Affirmed.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34-2
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NOTE: This order is n0nprecedeutial.
United States Court of AppeaIs
for the FederaI Circuit
CHINA FIRST PENCIL CO., LTD.,
SHANGHAI THREE STAR STATIONERY
INDUSTRY CO., LTD., AND SHANGHAI FOREIGN
TRADE CORP.,
Plaintiffs-Appellees,
AND
SHANDONG RONGXIN IMPORT & EXPORT CO.,
LTD.,
Plain,tiff, `
V.
UNITED STATES,
Defendant-Appellee,
AND
SANFORD, L.P. AND
MUSGRAVE PENCIL CO., INC.,
Defen,dants-Appellants.
2011-1237
Appea1 from the United States C0urt of Internati0na1
Trade in case n0. 09-CV-0325, Judge Greg0ry W. Carman.
ON MOTION
CHINA FIRST PENCIL V. US
2
ORDER
China First Penci1 Co., Ltd., et al move for a 14-day
extension of tin1e, until July 27, 2U11, for all appellees to
file their briefs,
Upon consideration thereof
lT IS ORDERED THATZ
The motion is granted
JUL 20 2011
Date
cc: Franois J. Sailer, Esq.
George W. Thompson, Esq.
Carrie A. DunS1no1'e, Esq.
s21
FOR THE COURT
/S/ J an Horba1y
Jan H0rbaly
Clerk
lo
l ll
“~S¢s2veY2E.'lzz:e't=::°"
JUL 20 2011
JAN HORBALY
CLERK
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797 F.2d 214
UNIMOBIL 84, INC., Plaintiff-Appellant,v.Petr L. SPURNEY, Floyd W. Lewis, Federal Insurance Company,National Union Fire Insurance Company ofPittsburgh, Pa. and Western WorldInsurance Company, Inc.,Respondents-Appellees.
No. 85-3460.
United States Court of Appeals,Fifth Circuit.
Aug. 15, 1986.
David Stone, Stone, Pigman, Walther, Wittmann & Hutchinson, Richard C. Stanley, New Orleans, La., for plaintiff-appellant.
Eugene R. Preaus, Phelps, Dunbar, Marks, Claverie & Sims, Brent B. Barriere, for Spurney and Lewis.
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John J. Weigel, New Orleans, La., for Floyd Lewis.
Christovich & Kearney, Lawrence J. Ernst, New Orleans, La., for Federal Ins. Co.
Bienvenu, Foster, Ryan & O'Bannon, Ernest L. O'Bannon, New Orleans, La., for Western World.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before IRVING L. GOLDBERG, JERRE S. WILLIAMS and W. EUGENE DAVIS, Circuit Judges.OPINION
W. EUGENE DAVIS, Circuit Judge:
1
Plaintiff, Unimobil 84, Inc. (Unimobil), appeals the dismissal of its action against Petr L. Spurney and Floyd W. Lewis, officers and directors of the Louisiana World Exposition, Inc. (LWE). The district court held that Spurney and Lewis were not personally liable for LWE's indebtedness to Unimobil. We affirm.
I.
2
Unimobil contracted with LWE, a non-profit corporation, to construct and operate a monorail system at the 1984 World Exposition in New Orleans. In section 4.05 of their contract, LWE agreed that:
3
Fifteen percent (15%) of the Gross Admission Revenue ... shall be collected and held by the Exposition as trustee in trust for the fulfillment of its obligations ... [and such funds] shall not be deemed part of the general assets of the Exposition.
4
LWE filed a petition in bankruptcy and Unimobil did not receive the full amount it was owed under the contract. Unimobil then filed suit against Lewis and Spurney and their insurers alleging that the defendants (1) made intentional or negligent misrepresentations to Unimobil which Unimobil relied on to its detriment; (2) breached their personal duty to fulfill the fiduciary obligation of LWE to Unimobil arising under the concession agreement; (3) were negligent; and (4) converted and diverted assets belonging to Unimobil. The district court rejected all theories of recovery advanced by Unimobil and granted appellees' motion to dismiss.
5
In this appeal, Unimobil argues that its complaint states a cause of action under Louisiana law for either conversion, negligent and intentional misrepresentation, breach of a fiduciary duty or negligence.
II.
6
Unimobil recognizes, as it must, the strong Louisiana policy of shielding officers and directors from liability for corporate debts. The Louisiana Civil Code makes it clear that a corporation is a separate, distinct entity and the creditors of the corporation cannot demand payment of corporate debts from its officers. La.Civ.Code Art. 437. See also La.R.S. 12:226 (1969). The following expression of this policy by the Louisiana Supreme Court in 1932 has been consistently followed: "Officers and directors are merely agents of the corporation, and, except for acts of malfeasance, are answerable to it alone. A creditor of a corporation has no right of action against the corporation's agents for gross negligence or maladministration of corporate affairs or omission of duty." Wirth v. Albert, 174 La. 373, 141 So. 1, 4 (1932); Bacher v. Albert, 180 La. 108, 156 So. 191 (1934); Allen v. Cochran, 160 La. 425, 107 So. 292 (1926).
7
The district court, in denying relief to Unimobil, relied heavily on a closely analogous case recently decided by the Louisiana Fourth Circuit Court of Appeals, Fine Ironworks v. Louisiana World Exposition, 472 So.2d 201 (La. 4th Cir.1985). In that case Fine Ironworks sought to impose liability against Spurney and Lewis, appellees in this case, for indebtedness of LWE. The court, in rejecting Fine Ironworks' claim against the corporate officers and directors, resolved most of the issues appellant raises in this appeal.
8
In Fine Ironworks, the plaintiff agreed to construct three oases for LWE at the fair. LWE had a sponsor for this project which agreed to pay for a portion of this construction. Plaintiff alleged that it relied on the representations of the defendant corporate officers that these grant funds from the sponsor were available to pay the amount due the plaintiff for construction. Plaintiff alleged causes of action against the officers and directors on theories of negligence, misapplication and diversion of funds, breach of a fiduciary relationship and intentional misrepresentations. The court rejected plaintiff's claim under all theories advanced and sustained the defendant's motions to dismiss. We now consider in more detail each theory of recovery advanced by appellant.
A. Conversion
9
Unimobil first seeks to avoid the general rule that officers and directors of a corporation are not personally liable for the corporation's debts by arguing that it is not simply a creditor of LWE, but rather a victim of a tort committed by Spurney and Lewis. It alleges that Spurney and Lewis knowingly converted and diverted property belonging to Unimobil. Unimobil recognizes that it must establish, as an essential element of its conversion claim, that it owned 15% of the admission funds LWE collected. Unimobil argues that the language in the concession agreement1 establishes its ownership of the funds under our recent decision in Chrysler Credit Corporation v. Perry Chrysler Plymouth, Inc., 783 F.2d 480 (5th Cir.1986). In that case, Chrysler Credit Corp. financed the defendant automobile dealer's purchase of vehicles, and took as security a chattel mortgage on the vehicles. Upon the sale of a mortgaged vehicle, the dealer, Perry Chrysler agreed:
10
The proceeds of each sale ... shall be the property of the mortgagee [Chrysler Credit] and shall be held in trust by the mortgagor for the use and benefit of the mortgagee and the mortgagor agrees as such trustee to deliver such proceeds and such evidence of sale immediately upon his or its receipt thereof to the mortgagee....
11
783 F.2d at 482. The dealer failed to remit the proceeds as agreed and in fact Julian Perry, the president and sole shareholder of the corporate dealership, wagered some of the proceeds at the gaming tables in Las Vegas. We held that the contract was sufficient to establish Chrysler Credit's ownership of the funds and concluded that Julian Perry, as a corporate officer, was personally liable for the conversion of the funds.
12
Appellant's reliance on Chrysler Credit Corp. is misplaced because the facts of that case are distinguishable from those in today's case in at least two significant respects. First, the language in the two contracts is materially different. Chrysler Credit's contract with the dealer quoted above--unlike Unimobil's contract with LWE--provided explicitly that the proceeds of the sales belonged to Chrysler Credit and required the dealer to immediately transmit these funds to Chrysler Credit. On these facts we held that the proceeds of the automobile sales belonged to Chrysler Credit. On the other hand, the Unimobil contract did not require LWE to segregate the gate receipts LWE agreed to withhold; neither did the contract require LWE to immediately remit these receipts. Although the contract did provide that 15% of the gate would not "be deemed part of the assets of LWE," this provision standing alone is insufficient to vest ownership of the funds in Unimobil.
13
Second, in Chrysler Credit, Julian Perry took at least a portion of the funds belonging to Chrysler Credit for his personal use. Unimobil did not allege that Spurney and Lewis used the proceeds from admissions for any purpose other than payment of legitimate corporate debts.
14
Unimobil also relies on Bluefields S.S. Co. v. Lala Ferreras Cangelosi S.S. Co., 133 La. 424, 63 So. 96 (La.1913). In that case the defendant corporation, at the direction of its president, sold the plaintiff's cargo of bananas and refused to remit the proceeds. The court allowed the plaintiff cargo owner to recover from the president of the defendant corporation. The facts in Bluefields are also distinguishable from the instant case in at least two respects: first, unlike the proceeds from admissions to LWE's fair, the funds derived from the sale of plaintiff's cargo belonged to the plaintiff. Second, at least part of the funds were used by the corporate officer for his personal benefit. We conclude that the district court correctly rejected Unimobil's conversion theory.
B. Intentional Misrepresentation
15
Unimobil next argues that it has stated a cause of action for intentional misrepresentation. An allegation of intentional misrepresentation is essentially an allegation of fraud. Altex Ready-Mixed Concrete Co. v. Employers Commercial Union Ins. Co., 308 So.2d 889, 892 (La.App. 1st Cir.1975). A corporate officer is, of course, responsible for his own fraudulent acts. Fine Iron Works, 472 So.2d at 202-03. To state a cause of action for fraud, however, requires a plaintiff to allege with particularity the defendant's acts which the plaintiff contends amount to fraud. F.R.Civ.P. 9(b); Fine Iron Works, supra; Brown v. Chaffee, 612 F.2d 497 (10th Cir.1979); Massey-Ferguson, Inc. v. Bent Equipment Co., 283 F.2d 12 (5th Cir.1960). Unimobil's general allegations, which do not state with particularity what representations each defendant made, do not meet this requirement. 2A Moore's Federal Practice p 9.03, pp. 9-20-24 (2d ed. 1985).
C. Fiduciary Duty and Negligence
16
Unimobil concedes that the contract between Unimobil and LWE does not satisfy the requirements for establishing a trust under Louisiana law; Unimobil also acknowledges that constructive trusts are not recognized in Louisiana. Schwegmann v. Schwegmann, 441 So.2d 316, 322-23 (La.App. 5th Cir.1983). Unimobil argues, however, that the language in the concession agreement that LWE would hold the funds as "trustee in trust" created a fiduciary duty which Spurney and Lewis breached. If any fiduciary duty is established by the contract, however, the duty is owed by LWE; Spurney and Lewis are not parties to the contract. The law is well-established in Louisiana that officers and directors owe a fiduciary duty only to a corporation and the shareholders it serves. La.R.S. 12:226(A) (1969). The district court correctly rejected Unimobil's claim predicated on breach of a fiduciary duty. See Fine Iron Works, supra.
17
Finally, Unimobil alleges that negligent misrepresentations and other negligent acts by appellees give rise to a cause of action in its favor. But Spurney and Lewis owed no duty to Unimobil for the reasons stated above and this theory must also fail. Appellant relies on Canter v. Koehring Co., 283 So.2d 716 (La.1973), which holds that an officer of a corporation may be liable in tort for his personal negligence which results in bodily injury to a person. We agree with Fine Iron Works that Canter applies only to bodily injury claims and does not apply to claims arising in a commercial setting. The court in Fine Iron Works succinctly distinguished Canter:
18
The public policy considerations which made the individuals liable in these cases have no application to the relationship between an officer or director of a corporation and a commercial creditor of the corporation. C.C. Art. 437 and R.S. 12:226 would be meaningless if officers and directors were said to have a personal duty to a specific creditor to have its bill paid by the corporation.
19
472 So.2d at 203. We conclude that Unimobil is nothing more than a creditor of LWE and as such Spurney and Lewis have no personal liability to Unimobil.
20
AFFIRMED.
1
Fifteen percent (15%) of the Gross Admission Revenue ... shall be collected and held by the Exposition as trustee in trust for the fulfillment of its obligations ... [and such funds] shall not be deemed part of the general assets of the Exposition
| {
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[Cite as State v. Thornton, 2014-Ohio-4011.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 14 CO 19
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
GRAYLEN THORNTON, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from East Liverpool
Municipal Court, Case No. 13CRB1863.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Robert Herron
Prosecuting Attorney
Attorney Timothy McNicol
Assistant Prosecuting Attorney
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant: Attorney Charles Amato
Attorney Lynsey Lyle-Opalenik
991 Main Street
Wellsville, Ohio 43968
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: September 9, 2014
[Cite as State v. Thornton, 2014-Ohio-4011.]
VUKOVICH, J.
{¶1} Defendant-appellant Graylen Thornton appeals the decision of the East
Liverpool Municipal Court denying his suppression motion. Appellant contends that
the officer needed reasonable suspicion in order to ask for his name. He also states
that the officer’s mistaken belief as to the name he provided was not reasonable.
Appellant lastly contends that there was no probable cause to arrest him for improper
handling of a firearm in a motor vehicle because he complied with his duty to promptly
inform the officer that he had a concealed carry permit. For the following reasons, the
judgment of the trial court is affirmed.
STATEMENT OF THE CASE
{¶2} On August 24, 2013, appellant was arrested for improper handling of a
firearm in a motor vehicle, a first degree misdemeanor in violation of R.C.
2923.16(E)(1). This subdivision states that no person who has been issued a
concealed handgun license, who is the driver or an occupant of a motor vehicle that is
stopped as a result of a traffic stop or a stop for another law enforcement purpose and
who is transporting or has a loaded handgun in the motor vehicle in any manner, shall
fail to promptly inform any law enforcement officer who approaches the vehicle while
stopped that the person has been issued a concealed handgun license and that the
person then possesses or has a loaded handgun in the motor vehicle.
{¶3} Appellant filed a motion to suppress arguing that the stop of the vehicle
was not valid. Regardless, he stated that he should not have been arrested as he had
a concealed carry permit and he notified the officer of such. At the suppression
hearing, Officer 1 testified that he was responding to a call in a “high drug” area
around 2:00 a.m. when he saw appellant and another person walking on the sidewalk.
(Tr. 8). They were right in front of a known drug house on McKinnon Avenue, and it
appeared to the officer that they were heading toward it. (Tr. 9-10). The officer
stopped his vehicle and asked out of his passenger window for their names. (Tr. 11).
{¶4} Appellant’s companion provided his name, and the officer recognized
him. (Tr. 28). The officer, whose K-9 dog was barking in the back seat, believed
appellant Graylen Thornton introduced himself as “Tyson Gordon.” (Tr. 10). Appellant
-2-
is said to have offered his identification, but the officer was in a hurry and continued on
to his call. (Tr. 32). The officer recognized the name Tyson Gordon from the police
station as someone involved in drugs. (Tr. 12, 25).
{¶5} An hour later, the officer drove past the known drug house with Officer 2
in his vehicle. They saw appellant come out of the house. (Tr. 13, 50). Officer 1
inquired with dispatch whether Tyson Gordon had any warrants, and dispatch
responded that there was a warrant for him out of the municipal court. (Tr. 13). By
that time, appellant had entered the back seat of a vehicle; the companion from earlier
was driving, and another passenger was in the front. As the vehicle pulled away, the
K-9 unit initiated a traffic stop. Two other police vehicles stopped as well.
{¶6} Officer 1 approached the driver’s side and began speaking to the driver.
Officer 2 approached from the back passenger side with his flashlight and noticed
appellant in an arched position in the back seat trying to “shove” a gun down his pants.
(Tr. 45, 58). Officer 2 yelled that there was a gun and drew his weapon. Appellant
looked at him and pulled his shirt over the gun. Officer 2 stated that appellant was not
saying anything while in the car. (Tr. 45)
{¶7} The occupants were ordered out with their hands up and told to get on
the ground. Officer 1 testified that appellant did not immediately comply and seemed
to be “messing” with the gun in his waistband even though they were ordering him to
keep his hands off the gun. (Tr. 16). He stated that appellant did not voice that he
had a weapon or a permit. (Tr. 38, 40).
{¶8} Officer 2 confirmed that it took several orders before appellant complied
with his instructions. Appellant did not promptly alight from the vehicle, he alighted
with both hands still in his waistband instead of up in the air, and it then took several
commands before appellant got to the ground. (Tr. 46, 59-60). Officer 2 stated that
appellant may have been “uttering something” at some point after he exited the car.
(Tr. 60).
{¶9} A captain covering the front of the stopped vehicle also testified that
appellant did not immediately put his hands up and instead had his hands around the
front of his waist area, confirming that it took several commands before he put his
-3-
hands up and got on the ground. (Tr. 71-72). The captain did not hear appellant
saying anything. (Tr. 72). As appellant was lying down, a loaded Glock fell from his
waistband. He was then cuffed, and his concealed carry permit was found in his wallet
as they were ascertaining identities. (Tr. 38, 46, 61).
{¶10} After the suppression hearing, the court asked for post-hearing briefs.
The state’s opposition to suppression urged that the officer’s mistaken belief that
appellant was the person with the warrant was objectively reasonable, noting the
similar sounding names. The state also urged that the later stop to investigate the
matter was done in good faith.
{¶11} The defendant’s post-hearing brief stated that the initial stop to ask his
name lacked reasonable suspicion and thus the second stop was invalid. As to the
reasonableness of the officer’s mistake, the defense suggested that the officer should
have used the cruiser’s computer to view a photograph of Tyson Gordon to ensure
appellant was the person with the warrant. It was also said that appellant tried to give
the officer his identification at the initial encounter, but the officer did not view it even
though his barking dog made it hard to hear. Lastly, the defense mentioned that once
the officers discovered his name and his permit, he should have been released.
{¶12} On February 13, 2014, the trial court overruled the suppression motion.
The court explained that the initial encounter did not rise to the level of a Terry stop but
was a mere consensual police-citizen exchange. The court noted that the officer did
not exit the car or show force, merely asked names, and then drove away, concluding
that there was no show of authority that could be seen as a command to stop. The
trial court also ruled that the second encounter was not an illegal stop, adopting the
state’s rationale that the officer’s mistake was reasonable and citing the Kinzy and
Fain cases reviewed below.
{¶13} On March 11, 2014, appellant pled no contest to the offense. He was
given a suspended sentence of ninety days with two years of non-reporting probation
and fined $200. He was ordered to surrender his concealed carry permit, and the
firearm was forfeited by stipulation. Appellant filed a timely notice of appeal.
ASSIGNMENT OF ERROR NUMBER ONE
-4-
{¶14} Appellant sets forth two assignments of error, the first of which alleges:
{¶15} “The trial court erred in denying Defendant’s Motion to Suppress as the
Officer had no reasonable, articulable suspicion to stop Defendant and such stop
violated Defendant’s Fourth and Fourteenth Amendment rights subsequently leading
to Defendant being found guilty of Improperly Handling a Firearm in a Motor Vehicle, a
violation of O.R.C. 2923.16(E)(1).”
{¶16} First, appellant contends that it was improper for the officer to ask his
name merely because he was walking down the sidewalk in a high drug area in front
of a known drug house at 2:00 a.m. He asserts that an objective manifestation that he
was or was about to be engaged in criminal activity was required to stop him, i.e. he
alleges that reasonable suspicion was required to ask for a name. Appellant then
notes that the officer must not have reasonably believed he was about to engage in
criminal activity or he would have alighted from his cruiser, asked for formal
identification, and run the warrant check at that time. The state responds that the
initial momentary question posed to appellant was a mere consensual encounter and
did not rise to the level of an investigatory stop.
{¶17} Appellate review of a suppression decision presents a mixed question of
law and fact. State v. Roberts, 110 Ohio St .3d 71, 2006-Ohio-3665, 850 N.E.2d 1168,
¶ 100. Legal conclusions are reviewed de novo. State v. Burnside, 100 Ohio St.3d
152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. However, factual decisions are afforded
great deference. State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). This is
because the trial court is the fact-finder who occupies the best position from which to
resolve factual questions and evaluate the credibility of witnesses. State v. Mills, 62
Ohio St.3d 357, 366, 582 N.E.2d 972 (1992).
{¶18} An investigatory stop is not an arrest and does not require probable
cause. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Rather, it
must be supported by reasonable suspicion that criminal activity is imminent. Id. In
making an investigatory stop, the officer must point to specific and articulable objective
facts that, along with any reasonable inferences that can be drawn therefrom,
reasonably warrant the intrusion of a Terry stop. Id. The propriety of an investigative
-5-
stop must be viewed in light of the totality of the circumstances. State v. Bobo, 37
Ohio St.3d 177, 179, 524 N.E.2d 489 (1988) (presence in a high crime area, time of
night, furtive movements are circumstances); State v. Carter, 69 Ohio St.3d 57, 65,
630 N.E.2d 355 (1994) (high crime area not enough).
{¶19} However, a consensual police-citizen encounter does not rise to the level
of an investigatory stop and does not require reasonable suspicion of imminent
criminal activity. State v. Starcher, 7th Dist. No. 13JE1, 2013-Ohio-5533, ¶ 22-23 (and
when an officer is engaging in a community caretaking function, he does not need a
reasonable suspicion of criminal activity prior to approaching a person or a vehicle as
the encounter is considered consensual rather than investigatory). Encounters are
consensual where the police merely approach a person in a public place, engage the
person in conversation, request information, and the person is free to decline to
answer and walk away. United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct.
1870, 64 L.Ed.2d 497 (1980).
{¶20} The request to see someone’s identification does not make an encounter
non-consensual. Id. at 555-556; Florida v. Rodriguez, 469 U.S. 1, 4-6, 105 S.Ct. 308,
83 L.Ed.2d 165 (1984). See also Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct.
2382, 115 L.Ed.2d 389 (1991) (request to search belongings does not make encounter
non-consensual if message of required compliance is not conveyed). This is true
unless the police officer has by physical force or show of authority restrained the
person's liberty so that a reasonable person would not feel free to decline the officer's
requests or otherwise disengage from the encounter. Mendenhall, 446 U.S. at 554.
{¶21} The slide from a consensual encounter into an investigatory stop is
evaluated under the totality of the circumstances, and the factors that could indicate a
seizure include a threatening presence of several officers, the display of a weapon by
an officer, some physical touching of the person, the use of language or tone of voice
indicating that compliance with the officer's request might be compelled, approaching
the citizen in a nonpublic place, and blocking the citizen's path. Id. Finally, if
reasonable suspicion arises during or after the consensual encounter, a proper
-6-
investigatory stop can proceed. See Starcher, 7th Dist. No. 13JE1 at ¶ 24, citing State
v. Rappley, 2d Dist. No. 11-CR-2693, 2013-Ohio-964, ¶ 20-31.
{¶22} Here, the officer was driving down the street in a high drug area at 2:00
a.m. and saw two people walking down the sidewalk in front of a known drug house as
if they were approaching that house. The state does not contest the proposition that at
this initial encounter there was no reasonable suspicion to stop the two people to
investigate criminal activity.
{¶23} The officer stopped his vehicle in his own lane of travel and asked the
two people their names. He did not use his siren or activate his lights. He did not
even exit his vehicle. Rather, he spoke to them by remaining in the driver’s seat and
speaking through the open passenger window of his cruiser. The officer asked their
names, and they provided their names. Appellant even notes that he offered his
identification. The officer then drove away without checking identifications. .
{¶24} None of the Mendenhall factors are present here. This was a public
street. There was only one officer. The officer did not display a weapon. There was
no physical force or physical touching of the person. There is no indication that any
language or tone of voice indicated compliance was compelled. The officer did not
block the citizen's path. There was no show of authority over the preexisting fact that
the person asking was a police officer. Moreover, the encounter was extremely brief
and resulted in nothing but the provision of names.
{¶25} Under the totality of the circumstances, we conclude that the initial
encounter did not rise to the level of a Terry stop. The trial court properly ruled that
the initial momentary encounter was a consensual exchange which did not require
reasonable suspicion.
{¶26} The next issue raised under this assignment of error is whether the
officer’s mistake of fact regarding appellant’s name was reasonable. Appellant urges
that the officer should have accepted the offer to show identification or the officer
should have looked up the name he thought he heard on his computer to view a
photograph. The state responds that the mistake was objectively reasonable and that
any lack of good faith was a question for the trial court.
-7-
{¶27} When police have probable cause to arrest X and the officer reasonably
mistakes the person they are arresting for X, the arrest is valid. Hill v. California, 401
U.S. 797, 802-803, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). The same premise applies
in conducting an investigatory stop based upon a factual mistake. State v. Kinzy, 7th
Dist. No. 09MO7, 2010-Ohio-6499 at ¶ 23-25 (officer believed defendant pulled into a
business lot when he pulled behind him to check on business, but defendant had
actually pulled into his own driveway right next to business); State v. Pickens, 5th Dist.
No. 11CAA090085, 2012-Ohio-2901, ¶ 44-48 (officer misidentified person he saw
enter a car); State v. Chapa, 10th Dist. No. 04AP-66, 2004-Ohio-5070, ¶ 17 (officer
mistakenly believed stop sign was on public street); State v. Keilback, 12th Dist. No.
CA2001-01-002 (Oct. 22, 2001) (a stop of a vehicle that was the result of a mistake in
reporting the vehicle's license number was a justified stop, reversing trial court’s
decision to suppress).
{¶28} Thus, a police officer's mistake of fact will not lead to the suppression of
evidence where the mistake was “understandable” and a “reasonable response to the
situation facing the police officer.” Kinzy, 7th Dist. No. 09MO7 at ¶ 23, citing Hill, 401
U.S. at 804 and State v. Fain, 9th Dist. No. 18306 (Jan. 21, 1998) (officer mistakenly
believed driver was Dwayne Fain, whose license was suspended, rather than the true
driver whose last name was also Fain).
{¶29} Here, the officer believed appellant Graylen Thornton provided him with
the name “Tyson Gordon” during a momentary consensual encounter on the sidewalk
in front of a known drug house. His dog was barking, which made it difficult to hear.
But, he correctly heard the other person’s name (and he also recognized him), and he
thought he heard appellant give a name that he recognized from the police station (as
a person involved with drugs). The officer proceeded to respond to an emergency call.
{¶30} An hour later, at 3:00 a.m., the officer again saw appellant, this time
exiting the known drug house. He asked dispatch to run a check on Tyson Gordon,
and he was advised that there was an outstanding warrant for him out of the municipal
court. By this point, appellant was in the back seat of a vehicle that was driving away.
The officer thus initiated a stop of the vehicle.
-8-
{¶31} The failure to obtain and view appellant’s license an hour before or run a
warrant check earlier did not make the mistake in hearing appellant’s name
unreasonable. The officer was not proceeding with any investigation at that point. It
was not until an hour later, when he saw appellant again (this time coming out of the
known drug house), that he decided to check for a warrant.
{¶32} Nor did the mistake in hearing appellant’s response (and proceeding
under that mistake) become unreasonable because the officer did not later personally
run his own check to find a photograph before stopping the vehicle. And, whether the
viewing of a booking photograph of Tyson Gordon would have allowed the officer to
realize that the person he saw on a sidewalk at 2:00 a.m. was not Tyson Gordon is
questionable.
{¶33} The officer thought appellant identified himself by a certain name, the
officer recognized the name, and dispatch advised there was a warrant. There was no
absolute requirement that the officer ascertain what Tyson Gordon looked like before
conducting an investigatory stop of a vehicle that was driving away when he believed it
contained a person wanted on a warrant. Stopping to investigate was one “reasonable
response to the situation facing the police officer” and was understandable. Kinzy, 7th
Dist. No. 09MO7 at ¶ 23
{¶34} In conclusion, the credibility of the officer’s testimony on his good faith
mistake is a matter best left to the trial court. See Pickens, 5th Dist. No.
11CAA090085 at ¶ 51. The trial court could rationally conclude that the officer’s
mistake was understandable or objectively reasonable under all of the facts of the
case. See Hill v., 401 U.S. at 802-803 (if probable cause to arrest one person and
officer reasonably mistakes the person they are arresting for one they intended to
arrest, the arrest is valid). This assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER TWO
{¶35} Appellant’s second assignment of error alleges:
{¶36} “The trial court erred in denying Defendant’s Motion to Suppress as the
Officer had no probable cause to arrest the Defendant and subsequently charge him
-9-
under O.R.C. 2923.16(E)(1) as Defendant had fully complied with his duties in carrying
a concealed weapon.”
{¶37} Although no testimony was provided that he complied with his permit
holder duties, appellant argues here that he stated multiple times that he had a
concealed handgun license. He points out that when Officer 2 approached the vehicle
from the back and saw the gun, that officer yelled that there was a gun, which caused
a commotion. Appellant suggests that they could thus not hear him informing them
that he had a gun and a license as he was required to do by law. He notes that Officer
2 testified that appellant was “uttering something” but the officer could not hear what
he was uttering. (Tr. 60-61). However, the defense did not elicit whether the utterings
occurred while appellant was standing and refusing to comply with orders or while he
was on the ground. In any event, there was no evidence of utterances while he was in
the vehicle trying to shove a gun down his pants.
{¶38} As the state responds, appellant’s compliance with his duties was not
established at the suppression hearing. Appellant was charged with failing to promptly
inform officers who approached the stopped vehicle that he has a concealed handgun
license and he has a loaded handgun in the vehicle. R.C. 2923.16(E)(1). Officer 1
testified that he was speaking with the driver when the other officer yelled about a gun
and that appellant kept “messing with” the gun in his waistband while the other officer
ordered his hands off the weapon during which time appellant did not inform them that
he had a weapon or a permit. (Tr. 16, 38). Officer 2 testified that he approached to
see appellant trying to hide his gun down the front of his pants. When appellant
noticed Officer 2, he did not say anything but pulled his shirt down and failed to
immediately comply with orders to exit with his hands up and then lay down. In fact,
according to Officer 2 and the captain, he exited with his hands on his waist. (Tr. 59-
60, 72). No officer heard him announcing that he was carrying a loaded gun and that
he had a concealed handgun license.1
1
We note that other divisions of (E) provide that the person with the permit and loaded gun in
the vehicle: must keep his hands in plain sight any time after the officer begins approaching the
stopped vehicle; cannot have contact with the loaded gun by touching it with hands or fingers any time
after the officer begins approaching the car; and cannot knowingly disregard or fail to comply with any
-10-
{¶39} Regardless, as the state points out, the parties stipulated that the only
issue before the court was reasonable, articulable suspicion to stop. Dec. 10, 2013
J.E. The defense specifically agreed to this stipulation. (Tr. 6-7). The state also
urges that this issue was not raised below. Appellant’s suppression motion mentioned
that he had a permit so he was permitted to carry the gun and claimed that appellant
notified the officer as required. Yet, this did not present a suppression issue as no
evidence was discovered after the arrest that resulted in any offense.
{¶40} That is, the gun was viewed as the officer approached the vehicle.
Whether appellant complied with his duties as a concealed carry permit holder would
not affect suppression here (as opposed to a case where, for instance, drugs are
discovered on a person after they are arrested for carrying a concealed weapon).
Rather, appellant’s compliance would have been an issue for trial on the offense
charged. Therefore, this assignment of error is overruled.
{¶41} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.
lawful order given while the vehicle is stopped, including, but not limited to, a specific order to the
person to keep his hands in plain sight. See R.C. 2923.16(E)(3)-(5). Although charged only with (E)(1)
for failing to advise about the existence of a loaded gun and a permit, there was probable cause to
arrest him violating one or more of these sections as well.
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890 F.Supp. 960 (1995)
John RHODES, Plaintiff,
v.
BOB FLORENCE CONTRACTOR, INC., Defendant.
No. 94-4034-SAC.
United States District Court, D. Kansas.
May 18, 1995.
*961 Kirk W. Lowry, Topeka, KS, for plaintiff.
Randall J. Forbes, Frieden, Haynes & Forbes, Topeka, KS, for defendant.
MEMORANDUM AND ORDER
CROW, District Judge.
John Rhodes brings this action under the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., claiming that the defendant, Bob Florence Contractor, Inc., (BFC), failed to reasonably accommodate his disabilities, laid him off due to his disabilities, and failed to rehire him due to his disabilities.
This case comes before the court upon BFC's motion for summary judgment (Dk. 51). The plaintiff has filed a response and BFC has filed a reply. The court, having considered the briefs of the parties, the pretrial order, and the applicable law, is now prepared to rule.
Summary Judgment Standards
A court grants a motion for summary judgment if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The substantive law governing the suit dictates which facts are material or not. Id. at 248, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "[T]here are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).
The movant's burden under Rule 56 of the Federal Rules of Civil Procedure is to lay out the basis of its motion and to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). "A movant is not required to provide evidence negating an opponent's claim." Committee for First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir.1992) (citation omitted).
If the moving party meets its burden, then it becomes the nonmoving party's burden to show the existence of a genuine issue of material fact. Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir.1991); see Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) ("If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case."). When the nonmoving party will have the burden of proof at trial, "`Rule 56(e) ... [then] requires the nonmoving party to go beyond the pleadings and by her own affidavits or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). "Unsubstantiated allegations carry no probative weight in summary judgment proceedings." Phillips v. Calhoun, 956 F.2d 949, 951 (10th Cir.1992) (citations omitted); see Martin, 3 F.3d at 1414 (non-moving party cannot rest on the mere allegations in the pleadings). "Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment." Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 929 (7th Cir. 1995); see Vega v. Kodak Caribbean, Ltd., 3 *962 F.3d 476, 479 (1st Cir.1993) ("Optimistic conjecture, unbridled speculation, or hopeful surmise will not suffice."). The court views the evidence of record and draws inferences from it in the light most favorable to the nonmoving party. Burnette v. Dow Chemical Co., 849 F.2d at 1273.
More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion is not the chance for a court to act as the jury and determine witness credibility, weigh the evidence, or decide upon competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).
ADA
"The ADA and its attendant regulations were enacted, in part, to address perceived inadequacies in the Rehabilitation Act of 1973, 29 U.S.C. § 794." Hutchinson v. United Parcel Service, Inc., 883 F.Supp. 379, 387 (N.D. Iowa 1995). In its findings, Congress concluded that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U.S.C. § 12101(a)(2). Congress also found that "individuals with disabilities continually encounter various forms of discrimination,." 42 U.S.C. § 12101(a)(5). One of the purposes of the ADA was "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). See Hutchinson, 883 F.Supp. at 390 (thoroughly discussing the history of the ADA). However, "[t]he ADA is not a job insurance policy, but rather a congressional scheme for correcting illegitimate inequities the disabled face." Hedberg, 47 F.3d at 934. "The ADA became effective on July 26, 1992, and it does not apply retroactively." Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 557 (D.Kan.1995).
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). "The term `qualified individual with a disability' means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). "The term `disability' means, with respect to an individual (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).
"Accordingly, to qualify for relief under the ADA, a plaintiff must establish (1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, that is, with or without reasonable accommodation (which he must describe), he is able to perform the essential functions of the job; and (3) that the employer terminated him because of his disability." White v. York Intern. Corp., 45 F.3d 357, 360-361 (10th Cir. 1995).
"The ADA does not define the term `major life activities'" as used in 42 U.S.C. § 12102(2)(A). However, "[t]he ADA regulations adopt the definition of `major life activities' found in the Rehabilitation Act regulations, 34 C.F.R. § 104." Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir.1994), cert denied, ___ U.S. ___, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995). "The term means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id. (quoting 29 C.F.R. § 1630.2(i)).
To demonstrate that an impairment "substantially limits" the major life activity of working, an individual must show "significant[] restriction in the ability to perform either a class of jobs or a broad range of *963 jobs in various classes as compared to the average person having comparable training, skills and abilities." Id.
1630.2(j)(3)(i) (emphasis added). The regulations specify that "the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id.
Bolton, 36 F.3d at 942.
We review the record for evidence of six factors set forth in the ADA regulations. The first three factors "should be considered" when determining whether an impairment substantially limits a major life activity, 29 C.F.R. 1630.2(j)(2), and the additional three factors "may be considered" when determining whether an impairment substantially limits the major life activity of working, id. 1630.2(j)(3)(ii).
The three factors that "should be considered" when determining whether an impairment substantially limits a major life activity are: "(i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." Id. 1630.2(j)(2).
The three additional factors that "may be considered" when an individual claims substantial limitation in the major life activity of working are:
(A) the geographical area to which the individual has reasonable access;
(B) the job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or
(C) the job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).
Id. 1630.2(j)(3)(ii).
Bolton, 36 F.3d at 943.
The Tenth Circuit "has endorsed a two-part analysis for determining whether a person is qualified under the ADA:
First, we must determine whether the individual could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if (but only if) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions.
Milton v. Scrivner, Inc., 53 F.3d 1118 (10th Cir.1995) (quoting White, 45 F.3d at 361-62) (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994))).
Under the ADA the term "discriminate" includes an employer's "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A). "It is plain enough what `accommodation' means. The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work." Vande Zande v. State of Wis. Dept. of Admin., 44 F.3d 538, 542 (7th Cir.1995).
Burden of Proof under the ADA
"Plaintiff has the burden to establish that he is `disabled' and `qualified' to perform the essential functions of the job either with or without reasonable accommodation." Dutton v. Johnson County Bd. of County Com'rs, 859 F.Supp. 498, 504 (D.Kan.1994); see Tyndall v. National Educ. Centers, 31 F.3d 209, 213 (4th Cir.1994) ("Plaintiff bears the burden of demonstrating that she could perform *964 the essential functions of her job with reasonable accommodation.").
Once the plaintiff produces evidence sufficient to make a facial showing that accommodation is possible, the burden of production shifts to the employer to present evidence of its inability to accommodate. (citations omitted). If the employer presents such evidence, the plaintiff may not simply rest on his pleadings. He "has the burden of coming forward with evidence concerning his individual capabilities and suggestions for possible accommodations to rebut the employer's evidence." Prewitt v. United States Postal Serv., 662 F.2d 292, 308 (5th Cir. Unit A 1981); see Mason, 32 F.3d at 318; Chiari v. City of League City, 920 F.2d 311, 318 (5th Cir. 1991). As with discrimination cases generally, the plaintiff at all times bears the ultimate burden of persuading the trier of fact that he has been the victim of illegal discrimination based on his disability. See St. Mary's Honor Ctr. v. Hicks, ___ U.S. ___, ___-___, 113 S.Ct. 2742, 2747-49, 125 L.Ed.2d 407 (1993) (citations omitted).
White, 45 F.3d at 361.
Arguments of the Parties
BFC's arguments may be summarized as follows:
(1) Rhodes cannot meet his burden of establishing a prima facie case or satisfy his ultimate burden. Specifically, BFC argues:
(a) Rhodes is not "disabled" within the meaning of the ADA;
(b) Rhodes is not "otherwise qualified" within the meaning of the ADA;
(c) Rhodes cannot show that he was laid off and not rehired under any circumstance which gives rise to an inference that the decision was based upon his disability.
(2) Rhodes cannot demonstrate the existence of a genuine issue of material fact regarding the issue of whether BFC's employment decisions were pretextual.
Rhodes responds, arguing that BFC either misconstrues the facts or misapplies the law. In either event, Rhodes contends that summary judgment is inappropriate.
Uncontroverted Facts
At the outset, the court notes that the plaintiff's response to the defendant's motion for summary judgment fails to comply with D.Kan.Rule 206 in certain respects. First, as the defendant argues, the opening section of the plaintiff's statement of controverted facts and additional facts. Many of the plaintiff's statements of fact are clearly not controverted and hence the plaintiff's inclusion of "additional" facts drifts beyond what is permitted by the rules governing his response. See Big Tree Enterprises v. Mabrey, No. 93-4024-SAC, 1994 WL 191996 1994 U.S.Dist.LEXIS 6403 (D.Kan. April 15, 1994). Second, and of more concern, is the plaintiff's failure on some occasions to "refer with particularity to those portions of the records upon which the opposing party relies." D.Kan.Rule 206(c). Based upon the plaintiff's failure to meet the requirements of D.Kan.Rule 206(c), the court has deemed certain facts admitted. See D.Kan.Rule 206(c) ("All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.").
BFC is a corporation engaged in the construction industry. BFC is a union contractor and its construction employees must be union members. Rhodes worked for BFC for fourteen years as a latherer[1]/carpenter November 21, 1978 through November 22, 1992. Rhodes was apparently a good, honest, hard worker for BFC during his tenure.
On December 13, 1990, while working for BFC, Rhodes suffered a rotator cuff tear injury to his left shoulder.[2] Surgery was performed on the shoulder. After a period *965 of rehabilitation, Rhodes was released to return to work at BFC, subject to certain restrictions, on October 10, 1991. Rhodes' treating physician placed the following restrictions upon him if he were to continue the kind of work that he was performing at BFC prior to the injury:
1. No more than 10 pounds lifting with his left arm.
2. No overhead work with his left arm.
3. No more than 30 hours of work per week.
Rhodes' treating physician rated the injury to his shoulder as "a 7% impairment to his left upper extremity."[3] As of August, 1994, Rhodes' treating physician still limited Rhodes to 30 hours per week doing the kind of work he had performed for BFC.
Upon Rhodes' return to BFC in October, 1991, BFC accommodated those restrictions by providing Rhodes with light duty work. Rhodes was assigned to work at the Lied Center project. However, because Rhodes could only work 30 hours per week, he was not able to earn the same amount of money as he had while working 40 hours per week. BFC rejected Rhodes' request to be paid above union scale; BFC would not pay Rhodes 40 hours worth of wages for working only 30 hours. Rhodes' concern that he was not earning the same amount of money as he had prior to the accident caused him to become interested in seeking vocational rehabilitation through his workers compensation case.
Based upon Rhodes' request in his workers compensation case for vocational training, on April 16, 1992, a hearing was held. During the hearing, Rhodes expressed as his tentative goal for rehabilitation was to be retrained as a respiratory therapist. On June 15, 1992, an "Order for a Vocational Rehabilitation Report" was entered in Rhodes' workers compensation case. A vocational rehabilitation specialist named Garry Gammon was hired to perform the assessment.
In August of 1992, Rhodes wanted to begin attending classes at Washburn University as a full-time student in September of 1992. On August 6, 1992, Rhodes, at the request of his attorney, was examined by a physician. That physician, Dr. Wertzberger, in a written report, commented:
Based on consideration of his job description, his present statements, and the modifications he has made at work, I conclude that his longevity as a "Lather/Carpenter" is quite short.
Vocational options should be explored in an attempt to find occupation which does not lead to significant loads upon the shoulders nor the necessity for overhead work activities.
See (Dk. 52), Attachment K.
On October 6, 1992, Gammon submitted the final Vocational Rehabilitation Plan. The Plan recommended that Rhodes be retrained as a medical records technician. In the plan, Gammon indicated that BFC would not accommodate Rhodes because it would not pay Rhodes for working 40 hours when he was only working 30 hours and because BFC would not guarantee, based upon the seasonal nature of its work, that it would in the future have work for Rhodes to perform.
As the Lied Center project was coming to an end, BFC assigned Rhodes to work for a few days on the construction of Talbots in Topeka. On November 27, 1992, due to the lack of work at that time and the lack of work scheduled for the future, BFC laid off Rhodes. As of November, 1992, Rhodes had lost his membership in the Carpenter's Union because he had previously stopped paying dues. As of August 1994, Rhodes had still not rejoined the Carpenter's Union. BFC was aware of the fact that Rhodes was not a member of the union. BFC informed the Carpenter's Union Business Agent that if *966 Rhodes ever rejoined the union and wanted to work again, to send Rhodes to BFC for employment.
Between July and December of 1992, BFC laid off approximately 59 employees. The Lied Center project was one of BFC's largest projects, and at that time BFC had approximately 60-65 employees. A large number of employees without disabilities were laid off in late 1992 due to the fact that the projects BFC had under contract were nearing completion and because of the lack of work scheduled for the future that would justify not laying the majority of its employees off. In a major layoff such as the one that occurred in 1992, BFC will, however, attempt to keep a few key employees, such as employees who run projects, employed. In that way, BFC tries to keep those key employees from being hired by other contractors.
Like Rhodes, Don Uhl was also a latherer. Uhl had more seniority with BFC than Rhodes. Uhl was laid off in late 1992 but prior to Rhodes being laid off. Uhl has no disability. Uhl was not rehired by BFC until August 25, 1993.
Prior to laying Rhodes off, BFC became aware that in the near future Rhodes intended to become a full-time student at Washburn University to be trained to work in a field other than construction. Rhodes apparently personally told employees of BFC of his intention to attend Washburn University to be retrained in something other than the construction industry.
BFC was advised by its insurance company that it would be paying for Rhodes to be a full-time student at Washburn University. On December 7, 1992, Gammon wrote Washburn University authorizing Rhodes' enrollment on January 15, 1993, and directing that the bills for books and tuition be sent to BFC's insurance company. Rhodes enrolled in 14 credit hours in the spring semester of 1993, 6 credit hours during the 1993 summer term, and 13 credit hours during the fall semester of 1993. Since the spring of 1993, Rhodes has continued to be a full-time student at Washburn University. Rhodes currently intends to complete his associates degree in medical records technology during the fall semester of 1995 and then seek employment as a medical records technician.
Since he was laid off from BFC, Rhodes has worked as a self-employed independent contractor doing lathing, installing metal studs and drivit system. Rhodes worked 25 to 40 hours per week as an independent contractor.
On August 17, 1994, Rhodes' treating physician authorized him to return to working 40 hours per week. Rhodes is presently an employee of Barnhart Drywall and Plaster, working part-time while he attends Washburn University. While employed by Barnhart Drywall and Plaster, Rhodes has been doing lathing, R-board installation, metal stud installation and ceiling installation work. During the summer, Rhodes has worked full-time.
Analysis
If Rhodes is "disabled" within the meaning of the ADA, has he presented evidence upon which a rational factfinder could conclude that he is entitled to recover under the ADA?
Assuming, arguendo, that Rhodes is disabled,[4] the court finds that Rhodes has not *967 presented sufficient evidence upon which a rational factfinder could conclude that he is entitled to recover under the ADA.
Reasonable Accommodation
Assuming for the moment that BFC was obligated to retain Rhodes in November of 1992, or in the alternative to rehire him at a subsequent point in time, Rhodes has not demonstrated that BFC failed to reasonably accommodate his disability. While it had sufficient work to employ Rhodes, BFC apparently accommodated Rhodes' physical exertion restrictions. The only additional accommodation Rhodes apparently sought was an increase of pay above the union scale and a guarantee from BFC that he would not be laid off. Neither of these proposals are valid or reasonable "accommodations" under the ADA.
The regulations implementing the ADA and the case law interpreting clearly support this conclusion. See Milton, 53 F.3d at 1124-25 ("An employer is not required by the ADA to reallocate job duties in order to change the essential function of a job. See 29 C.F.R. Pt. 1630 App. 1630.2(o); Gilbert v. Frank, 949 F.2d 637, 644 (2d Cir.1991). An accommodation that would result in other employees having to worker (sic) harder or longer hours is not required.); 29 C.F.R. Pt. 1630, App. 1630.2(o) ("It should be noted that an employer is not required to promote an individual with a disability as an accommodation."). In short, the ADA did not require BFC to increase Rhodes' pay for working thirty hours per week to a rate that would make his gross pay equal to the amount he earned when he was working forty hours per week or to a rate above the amount paid other workers performing the same job. Nor was BFC required to guarantee Rhodes' employment in the future. As mentioned above, the ADA is not a job insurance policy.
Discrimination
The plaintiff has failed to present sufficient evidence upon which a rational factfinder to conclude that BFC violated the ADA in laying him off or in failing to rehire him. None of the evidence presented by the plaintiff is sufficient to provide a reasonable inference that BFC's decisions to retain or rehire Rhodes were based upon Rhodes' disability.
Each of the reasons offered by BFC for its actions are legitimate and non-discriminatory and are largely unrebutted by Rhodes. No reasonable inference from the evidence demonstrates that BFC's decision to lay off Rhodes was based upon his disability. Instead, BFC's decision to lay off Rhodes was based upon the lack of work, the lack of need to retain Rhodes, and the knowledge that Rhodes was seeking a career outside the construction industry. Rhodes' personal career choices cannot serve as the basis for an ADA claim. Rhodes' current contention that he intended and expected to work for BFC for life is belied by his own actions and pursuit of a degree at Washburn University in a field other than construction. No evidence contradicts BFC's contention that the layoffs of its employees was based upon the lack of work. Rhodes' disability does not insulate him from the vagaries of the marketplace. Moreover, Rhodes knew that construction workers were on occasion laid off due to the lack of work. BFC's legitimate reasons for laying off Rhodes are basically unassailed by the evidence presented.
As for Rhodes' failure to rehire claim, there is no evidence that BFC has discriminated against the plaintiff. In fact, BFC's contention that it did not offer Rhodes employment because Rhodes did not apply for reemployment, because Rhodes was no longer a member of the union, and because BFC knew that Rhodes was attending Washburn University full-time in pursuit of another career is not controverted by evidence which the court may consider. Nor is BFC required at this point in time to accept Rhodes' offer of returning to work. Rhodes' offer to quit school and return to BFC is conditioned upon BFC giving a guarantee of 40 hours, no "lay offs" and no retaliation, plus back pay and attorneys' fees.
In sum, the plaintiff has not demonstrated the existence of a genuine issue of material fact precluding summary judgment.
IT IS THEREFORE ORDERED that BFC's motion for summary judgment (Dk. *968 51) is granted. The clerk of the court shall enter judgment in favor of the defendant, each party to bear its own costs.
NOTES
[1] According to the plaintiff's brief, "the essential function of a latherer is to hang lath. Lath is basically a sheet of metal wire that looks like small chicken wire that is very light and is nailed or screwed to studs so that plasterers can then plaster the wall."
[2] As a result of this work-related injury, Rhodes filed a workers compensation claim. On October 21, 1993, Rhodes entered an agreement settling his claim.
[3] A vocational evaluation report dated February 6, 1993, was prepared by the vocational rehabilitation consultant hired by BFC's workers compensation carrier. That report indicates that based upon the "restrictions delineated in the physicians (sic) medical reports, Mr. Rhodes has lost no more than 29.71% of his work capacity or ability to access jobs within the labor market." The 29.71% number is based upon the following calculation: The restrictions prevent Rhodes from performing "Very Heavy" work (.71% of jobs) + "Heavy" work (8.98% of jobs) + a portion of "Medium" work (29.02% of jobs × .30% (percentage of medium jobs Rhodes can perform) = 20.02%) = 29.71%.
[4] Rhodes' shoulder is undoubtedly impaired. Based upon that impairment, he has been given certain restrictions by his physician. Nevertheless, despite the physical exertion restrictions set by his physician, as a factual matter, Rhodes' shoulder injury has not prevented him from performing a broad range of construction tasks, subject to the 30 hour per week limitation. In light of this, it is far from clear that Rhodes' impairment is of sufficient magnitude to demonstrate that he is disabled within the meaning of the ADA. See Bolton, 36 F.3d at 944; Chandler, 2 F.3d at 1392 ("`An impairment that affects only a narrow range of jobs can be regarded either as not reaching a major life activity or as not substantially limiting one.'") (quoting Jasany v. United States Postal Service, 755 F.2d 1244, 1249 n. 3 (6th Cir.1985); Ricks v. Xerox Corp., 877 F.Supp. 1468, 1475-76 (D.Kan. Feb. 14, 1995); Hutchinson, 883 F.Supp. at 395-96. But see 29 C.F.R. Pt. 1630, App. 1630.2(j).
On August 17, 1994, Rhodes was authorized by his treating physician to return to working 40 hours per week, apparently performing the same job that he claims his impairment prevented him from performing. At any point after that date, the court is uncertain that there is any factual basis to support the plaintiff's contention that he is disabled.
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487 F.2d 1400
dZinnamon Associatesv.Swafford
73-1984
UNITED STATES COURT OF APPEALS Fifth Circuit
Dec. 21, 1973
1
W.D.Tex.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-7000
MARK ANTHONY REYNOLDS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-98-27, CA-00-65-1)
Submitted: October 26, 2000
Decided: December 29, 2000
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Mark Anthony Reynolds, Appellant Pro Se. Paul Thomas Camilletti,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. REYNOLDS
OPINION
PER CURIAM:
Mark Anthony Reynolds seeks to appeal the district court’s order
denying his motion filed under 28 U.S.C.A. § 2255 (West Supp.
2000). We have reviewed the record and the district court’s opinion
accepting the recommendation of the magistrate judge and find no
reversible error. On appeal, Reynolds asserts that he was not compe-
tent to enter his guilty plea. He is foreclosed from raising this claim
in a § 2255 action because he failed to show cause and prejudice to
excuse his failure to raise this constitutional claim on direct appeal.
See United States v. Frady, 456 U.S. 152, 167-68 (1982).
Next, Reynolds challenges the district court’s disposition of his
claim that the Government breached the plea agreement. Because
Reynolds litigated this claim on direct appeal, he may not reassert it
in a collateral proceeding, absent exceptional circumstances not pres-
ent here. See Boeckenhaupt v. United States, 537 F.2d 1182, 1183
(4th Cir. 1976).
Finally, Reynolds contends for the first time on appeal that the dis-
trict court’s finding regarding the amount of the loss used to enhance
his base offense violated the Supreme Court’s decision in Apprendi
v. New Jersey, 120 S. Ct. 2348 (2000). We generally do not consider
issues raised for the first time on appeal, except under narrow circum-
stances not present here. See Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993) (holding that issues raised for first time on appeal gen-
erally will not be considered absent exceptional circumstances of
plain error or fundamental miscarriage of justice).*
Accordingly, we deny Reynolds’ motion for a certificate of
appealability and dismiss the appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
*Even if this claim were properly before the court, Reynolds was not
sentenced above the statutory maximum for the offense of conviction, so
the sentence does not implicate the concerns raised in Apprendi. See
United States v. Angle, ___ F.3d ___, 2000 WL 1515159 (4th Cir. Oct.
12, 2000), petition for rehearing filed, Oct. 26, 2000 (No. 96-4662).
UNITED STATES v. REYNOLDS 3
materials before the court and argument would not aid the decisional
process. DISMISSED
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955 So.2d 1231 (2007)
FIRST AMERICAN HOLDINGS, INC., a Florida corporation; and First American Banking Corporation, Appellants,
v.
PRECLUDE, INC., a Florida corporation; and Arnold, Matheny & Eagan, P.A., Appellees.
No. 2D06-317.
District Court of Appeal of Florida, Second District.
May 11, 2007.
*1232 Geoffrey Todd Hodges of G.T. Hodges, P.A., Lutz, for Appellants.
John Calhoun Bales and Kimberly S. Mello of John Bales Attorneys, St. Petersburg, for Appellee Arnold, Matheny & Eagan, P.A.
No appearance for Appellee Preclude, Inc.
DAVIS, Judge.
First American Holdings, Inc., and First American Banking Corporation (collectively, "the Bank") challenge the final judgment dissolving a writ of garnishment. The issue presented here is whether an attorney who is holding a client's funds in the attorney's trust account must, upon receipt of a writ of garnishment, stop payment on a check drawn on those funds and delivered to the payee client. While we certify the issue as a matter of great public importance, we hold that an attorney does have a duty to stop payment on such a check. Accordingly, we reverse the trial court order dissolving the writ.
These proceedings began when the Bank sought to collect on a $26,000 judgment it had obtained against Preclude, Inc. In an unrelated lawsuit, Preclude, which is represented by the law firm of Arnold, Matheny & Eagan, P.A. ("AME"), had obtained a $50,000 settlement from Greenleaf Products, Inc., which Greenleaf had agreed to pay into AME's trust account pursuant to the terms of the settlement. The details of these lawsuits are not relevant to this action.
On June 19, 2002, the Bank served AME with a writ of garnishment seeking to collect its $26,000 judgment from the $50,000 Greenleaf settlement. However, because AME had not yet received the settlement *1233 payment from Greenleaf, AME answered that while Greenleaf was indebted to Preclude, AME did not currently hold any funds belonging to Preclude. Two days later, on June 21, 2002, AME received the proceeds of the settlement and deposited them into its trust account. On that same date, AME issued two trust account checks on those funds. One, in the amount of $26,736.24, was made payable to AME's operating account for attorneys' fees. The other, for the balance of the funds, was made payable to Preclude. The check to Preclude was hand delivered to the president of Preclude on that same day.
Four days later, on June 25, 2002, the Bank served a second writ of garnishment on AME, again attempting to collect on the judgment against Preclude. Once again, AME answered the writ by denying that it was in possession or control of any funds that were the property of Preclude. Upon subsequent review of the records, however, the Bank determined that as of June 25, 2002, the check issued to Preclude had not yet been presented for payment to AME's bank. In fact, it was not presented for payment until June 28, 2002, after AME had answered the writ of garnishment denying possession of the funds.[1]
The Bank filed this action seeking to hold AME responsible for the payment of the funds represented by the trust account check issued to Preclude, arguing that AME's answer had not been truthful. The Bank argued that since the check had not yet cleared the bank, the funds were still in AME's trust account at the time of the service of the second writ and that AME had a duty to issue a stop payment order for the check and to preserve the funds for the Bank's collection. AME argued that such a duty only applied to banks and that since it was not a bank, it did not have such a duty. It further argued that since the check was in the personal possession of Preclude, AME did not have possession or control of the funds at the time that the second writ was served.
The trial court agreed with AME. Basing its ruling on Hiatt v. Edwards, 52 Ga.App. 152, 182 S.E. 634 (1935), the trial court granted AME's motion for summary judgment and entered final judgment dissolving the second writ of garnishment. The Bank now appeals that judgment.
The Florida garnishment statute requires that upon being served with a writ of garnishment, the garnishee must serve an answer stating whether it is indebted to the defendant and what sum the garnishee "has in his or her possession or control at the time" that the writ is served. § 77.04, Fla. Stat. (2002). Additionally, the law makes the garnishee liable for any amount that it holds but fails to properly report in the answer or fails to retain for the benefit of the garnishor. § 77.06. As a general rule, funds held by an attorney in his trust account are subject to garnishment. Robert C. Malt & Co. v. Colvin, 419 So.2d 745 (Fla. 4th DCA 1982); Wilkerson v. Olcott, 212 So.2d 119 (Fla. 4th DCA 1968). However, the issue we must resolve is whether funds held in the attorney's trust account are still considered to be in the "possession or control" of the attorney at the time the attorney receives the writ of garnishment if the attorney has previously drawn a check on those funds and has personally delivered it to his client but the client has not yet presented the check for payment.
Florida courts have determined that a bank has a duty to retain funds subject to garnishment in that situation. See Gelco Corp. v. United Nat'l Bank, 569 So.2d 502 (Fla. 3d DCA 1990). In Gelco, the Third *1234 District noted that "`[a] check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment. . . .'" Id. at 503 (alteration in original) (quoting § 673.409(1), Fla. Stat. (1989)). The court then concluded, "The fact that a check has been written and delivered to the payee prior to service of the writ of garnishment is not a basis for relief from the writ." Id. The court specifically rejected the argument that upon receipt of the check by the payee, the payor effectively assigned the funds still in the payor's account pending the payment of the check. Thus, upon receipt of a writ of garnishment, a bank must place a stop payment on the account to protect the funds in the account for the benefit of the garnishor even if a check drawn on the account has already been delivered to the payee. The question we must resolve is whether an attorney is held to the same duty with regard to the funds held in the attorney's trust account.
While the courts of several states have determined that a nonbank garnishee has no duty to stop payment on a previously delivered check that has yet to clear the garnishee's bank, see Cent. Sec. & Alarm Co. v. Mehler, 125 N.M. 438, 963 P.2d 515 (1998); Schwerdt, Grace & Niemackl v. Speedway Festivals, Inc., 7 Kan.App.2d 40, 637 P.2d 477 (1981), the only case in Florida that addresses this issue suggests that Florida does place such a duty on the nonbank garnishee, see Michael Acri Boxing Promotions, Inc. v. Miles, 758 So.2d 704 (Fla. 4th DCA 2000). Without stating any of the facts or describing the issue, the Fourth District simply affirmed the trial court's ruling and cited three cases. One of the cases cited is Gelco, 569 So.2d 502, which deals with a bank garnishee. However, the special concurrence in Michael Acri does give some insight into the issue involved and suggests that Florida does impose a duty on a nonbank garnishee to retain funds held pending payment of outstanding checks. "This and other Florida courts apparently impose a duty on a garnishee-maker of a check that was issued in discharge of an obligation to a judgment debtor to stop payment on the check when served with a writ of garnishment." 758 So.2d at 705 (Stone, J., concurring). The concurrence goes on to suggest that in the concurring author's opinion, the position of the other states that does not place such a duty on the nonbank garnishee is the "better policy." Id. The implication is that Florida does extend the duty to stop payment on checks to both bank and nonbank garnishees.
A review of the out-of-state opinions that distinguish between bank and nonbank garnishees suggests that the underlying concern is the liability of the nonbank garnishee to innocent third parties who might have accepted the check from the payee in exchange for value before service of the writ of garnishment. If the nonbank garnishee stops payment on the check, it might subject itself to liability to an innocent third party. However, the Florida garnishment law addresses this concern. Section 77.06(3) provides that the garnishee shall not be held liable to the defendant or "to any other person claiming the same or any interest therein or claiming to have sustained damage" due to the garnishee's retention, in good faith, of the funds until the matter is properly resolved by the garnishment procedures.
Similarly, the language of section 673.409(1), Florida Statutes (2002), stating that the check does not create an assignment of the funds, supports the proposition that the garnishee maintains "possession or control" of the funds until the check is paid by the garnishee's bank and that the nonbank garnishee must report *1235 and retain the funds once served with a writ of garnishment.
The final issue, then, is whether there is any reason to treat attorneys' trust accounts differently from bank and nonbank garnishees, both of which are required to retain the funds for the benefit of the garnishor. AME suggests that an attorney's trust account should be treated differently because unlike a bank, an attorney is not a neutral third party in a garnishment proceeding; rather, an attorney has a professional duty to protect his or her client's interests, putting the attorney in a potentially precarious position if he or she stops payment on a check contrary to the client's interests.
This argument is premised on the reasoning that since the funds held by the attorney in the trust account are, in fact, the client's, the attorney has a fiduciary duty to pay those funds only at the direction of the client. Accordingly, retaining the funds for the benefit of the client's creditor would violate that fiduciary duty. However, this argument leads to the erroneous conclusion that the attorney's trust account should not be subject to garnishment. See Robert C. Malt & Co., 419 So.2d 745. To exempt trust accounts from the garnishment provisions that apply to bank and nonbank garnishees would result in allowing the client a protection in the trust account that he would not have if the funds were in his own account. The garnishment statutes do not provide for such a protection, and we decline the invitation to create the same.
Our conclusion is further supported by rule 5-1.1 of the Rules Regulating the Florida Bar, which sets forth an attorney's obligations regarding trust account funds. Although subparagraphs (a) and (b) recognize that a client's funds held in an attorney's trust account are held in "trust" and direct that such funds be handled pursuant to the instruction of the client, subparagraph (e) provides that where a third party claims an interest in the client's funds, the attorney must promptly notify the client or third party of the receipt of such property. This requirement is consistent with our interpretation of the garnishment statute. Likewise, subsection (f) supports our decision because it directs that if a dispute arises over the ownership of the funds, the attorney is to hold the funds until the dispute is resolved. Since the garnishment statute specifically states that the execution and delivery of a check does not transfer control of the funds to the payee until the payee presents the check for payment, it is clear that an attorney maintains control of the funds in his or her trust account until presentment and, accordingly, must comply with the garnishment statute as to those funds in his or her control.
Based on our review of the statutory and decisional law, we conclude that Florida does impose on both bank and nonbank garnishees the duty to retain funds held by the garnishee even after a check on those funds has been drawn by the garnishee and delivered to the payee. Furthermore, we can conceive of no reason to create a third category for attorneys' trust accounts. Accordingly, we conclude that the attorney garnishee has the same duty as other nonbank garnishees, even in matters related to trust accounts. We therefore reverse the trial court's order dissolving the writ of garnishment and remand for further proceedings consistent with this opinion.
However, we recognize that this is a case of first impression that addresses a question of great importance to attorneys and their clients. As such, we certify the following question as one of great public importance:
*1236 DOES AN ATTORNEY GARNISHEE HAVE A DUTY TO ISSUE A STOP PAYMENT ORDER FOR A CHECK DRAWN ON HIS OR HER TRUST ACCOUNT AND DELIVERED TO THE PAYEE PRIOR TO THE RECEIPT OF A WRIT OF GARNISHMENT IF THE SERVICE OF THAT WRIT OCCURS PRIOR TO THE PRESENTMENT OF THAT CHECK FOR PAYMENT TO THE ATTORNEY'S BANK?
Reversed and remanded; question certified.
SILBERMAN and VILLANTI, JJ., Concur.
NOTES
[1] The funds paid to AME's operating account are not subject to this appeal.
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
CALVIN BOBBY WILLIAMS, JR., Petitioner.
No. 1 CA-CR 16-0623 PRPC
FILED 10-5-2017
Petition for Review from the Superior Court in Maricopa County
No. CR 1988-003584
The Honorable Rosa Mroz, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane M. Meloche
Counsel for Respondent
Calvin Bobby Williams, Jr., Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop, Judge Diane M. Johnsen, and
Judge Maria Elena Cruz delivered the following decision.
STATE v. WILLIAMS
Decision of the Court
PER CURIAM:
¶1 Petitioner Calvin Bobby Williams, Jr. seeks review of the
superior court’s order denying his petition for post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure 32.1. This is petitioner’s
eighth successive petition.
¶2 Absent an abuse of discretion or error of law, this court will
not disturb a superior court’s ruling on a petition for post-conviction
relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is petitioner’s
burden to show that the superior court abused its discretion by denying
the petition for post-conviction relief. See State v. Poblete, 227 Ariz. 537, ¶ 1
(App. 2011) (petitioner has burden of establishing abuse of discretion on
review).
¶3 We have reviewed the record in this matter, the superior
court’s order denying the petition for post-conviction relief, and the
petition for review. We find that petitioner has not established an abuse
of discretion.
¶4 We grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
2
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180 B.R. 326 (1995)
In re Forster BARGER, Pamela Barger, Debtors.
In re William J. LEWIS, Debtor.
In re Charles Vernon HUTTO, Harriet Lee Hutto, Debtors.
In re Marvin F. BROWN, Betty Brown, Debtors.
In re Glenda BURNETT, Debtor.
In re Kenneth JONES, Iva Jones, Debtors.
In re Sandra Jean MOSS, Debtor.
In re Carolyn NEWKIRT, Debtor.
In re Winifred BRITTON, Debtor.
In re Lynda Gail COVOS, Debtor.
In re Katherine Marie IVEY, Debtor.
In re Terry C. HAWTHORNE, Debtor.
In re Allen R. NEWSOME, Cynthia E. Newsome, Debtors.
In re Leatha Mae WYNN, Debtor.
In re Lauretha RHODES, Debtor.
In re Dexter PASCHAL, Shirley L. Paschal, Debtors.
In re Angela Jeanette SCRUGGS, Debtor.
In re Margeart DANIEL, Debtor.
Bkrtcy. Nos. 94-10901, 94-10565, 94-10663, 94-10729, 94-10765, 94-10820, 94-10833, 94-10835, 94-10836, 94-10881, 94-10953, 94-10984, 94-11047, 94-11104, 94-11203, 94-11247, 94-11328 and 94-11457.
United States Bankruptcy Court, S.D. Georgia, Augusta Division.
March 28, 1995.
*327 Angela McLeroy, Augusta, GA, for debtors Forster Barger, Pamela Barger, Kenneth Jones, Iva Jones, Allen R. Newsome and Cynthia E. Newsome.
Evita Paschall, Augusta, GA, for all other debtors.
ORDER[1]
JOHN S. DALIS, Bankruptcy Judge.
By application Angela McLeroy and Evita Paschall, attorneys for the debtors in the foregoing Chapter 13 cases, seek an award of attorney's fees in the amount of $950.00 in each case. In essence, counsel seeks an award in excess of the maximum compensation established under General Order Number 9 (1990) issued by the Honorable Lamar W. Davis, Jr., Chief Judge of this Court and filed May 3, 1990, which General Order provides in pertinent part:
I have reviewed the present procedures for allowance of attorney's fees in Chapter 13 cases. This included consideration of the typical obligations undertaken by Chapter 13 attorneys, the time and effort devoted to the task, the current customary allowed fee . . ., the passage of time since [the] . . . fee was last adjusted, and the fees customarily awarded in other districts.
Effective in all cases filed after May 15, 1990, a claim for attorney's fees for services rendered and expenses advanced to a Chapter 13 debtor will be deemed automatically approved by the Court, in the absence of an objection, so long as said claim does not exceed the sum of $750.00. . . . Debtors' counsel are directed to file written statements pursuant to Bankruptcy Rule 2016(b) disclosing the fee arrangement with their clients.
In the event that debtors' attorney subsequently determines that an award of $750.00 does not adequately compensate the attorney for legal services rendered, the attorney may petition for additional compensation, but shall be required to establish the reasonableness of all attorney's fees from the beginning of the case pursuant to 11 U.S.C. § 330 under the standard set in Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292 (11th Cir.1988).
Debtors' attorney may, of course, agree to represent debtors in said cases for a *328 lesser amount should they choose and are urged to do so in appropriate cases when the amount and nature of the debt or other relevant factors result in less substantial expenditure of attorney's time.
In each case, pursuant to 11 U.S.C. § 329[2] and Federal Rule of Bankruptcy Procedure 2016(b)[3] the attorney representing the debtor has disclosed an agreement for compensation of $950.00. Under § 329(b) the compensation must be reasonable. The determination of reasonableness for debtor's attorney's compensation is in part determined pursuant to § 330, ". . . the court may award . . . to the debtor's attorney (1) reasonable compensation for actual, necessary services rendered by such . . . attorney . . . based on the nature, the extent, the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses."[4] The "lodestar" method of fee determination, the reasonable time expended by counsel in performing the reasonably required services rendered multiplied by a reasonable hourly rate, is the required analysis. See Grant v. George Schumann Tire & Battery Co., 908 F.2d 874, 878-79 (11th Cir. 1990); Norman, supra, at 1299 (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); In re Curtis, 83 B.R. 853 (Bankr.S.D.Ga.1988). Under General Order Number 9 (1990) this court took into consideration the typical obligations undertaken by a Chapter 13 attorney in representing a debtor, the time and effort typically devoted to the representation, and applied to that expenditure of time an hourly rate of $100.00 to arrive at an approved fee without separate application of $750.00.
A reasonable hourly rate is determined by the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience and reputation. Blum v. Stenson, 465 U.S. 886, 889 n. 11, 104 S.Ct. 1541, 1547 n. 11, 79 L.E.2d 891, 900 n. 11 (1984). Accord Gains v. Dougherty County Board of Education, 775 F.2d 1565, 1571 (11th Cir.1985). The relevant legal community used in determining the prevailing market rate by this court is the legal community within the Southern District of Georgia, see In re S.T.N. Enterprises, 70 B.R. 823 (Bankr.D.Vt.1987). While the applicant bears the burden of producing satisfactory evidence that the requested hourly rate is in line with prevailing market rates, NAACP v. City of Evergreen, 812 F.2d *329 1332, 1338 (11th Cir.1987), this court has previously established, from competent evidence presented, that an hourly rate not exceeding One Hundred and No/100 ($100.00) Dollars per hour represents a reasonable hourly rate for competent legal services in this legal community. In re: Lighting Galleries, Chapter 11 Case No. 87-10455 (Bankr.S.D.Ga.1987).
In re Burke Manufacturing Company, Inc., Chapter 13 case No. 91-10468, slip op. at 2-3 (Bankr.S.D.Ga. Dalis, J. September 10, 1991), citing In re Georgian Arms Properties and Windover Properties Consolidated Chapter 11 case No. 89-10313, slip op. at 5-6 (Bankr. S.D.Ga. Dalis, J. April 20, 1990).
Counsel urges that I revisit the One Hundred and No/100 ($100.00) Dollar per hour lodestar rate for the relevant legal community, the Southern District of Georgia and increase that rate to One Hundred Twenty-Five and No/100 ($125.00) Dollars per hour. In support of counsel's position, several members of the Augusta bar appeared and testified regarding the ordinary customary hourly fees charged by lawyers in this community ranging from a base rate of One Hundred Twenty-Five and No/100 ($125.00) Dollars upward to Two Hundred and No/100 ($200.00) Dollars per hour for representation requiring a high level of experience and expertise. Counsel has established to my satisfaction that the current hourly fee for comparable legal services other than in the area of bankruptcy within the relevant legal community, the Southern District of Georgia, charged by lawyers of comparable skill, experience and reputation for basic legal services comparable to Chapter 13 debtor representation, is One Hundred Twenty-Five and No/100 ($125.00) Dollars per hour. Applying this reasonable hourly rate of One Hundred Twenty-Five and No/100 ($125.00) Dollars per hour to the typical obligations undertaken by a Chapter 13 debtor's attorney and the time and effort devoted to the task of representation the requested fee of $950.00 is reasonable and is ORDERED allowed.
NOTES
[1] As the issue of attorney's compensation for debtor's counsel was identical in each of the above referenced cases, the fee applications were consolidated for hearing and this order is issued from the consolidated hearing and applies in each case.
[2] 11 U.S.C. § 329 provides in pertinent part:
(a) Any attorney representing a debtor in a case under this title, or in connection with such a case, whether or not such attorney applies for compensation under this title, shall file with the court a statement of the compensation paid or agreed to be paid, if such payment or agreement was made after one year before the date of the filing of the petition, for services rendered or to be rendered in contemplation of or in connection with the case by such attorney, and the source of such compensation.
(b) If such compensation exceeds the reasonable value of any such services, the court may cancel any such agreement, or order the return of any such payment, to the extent excessive, to
(1) the estate, if the property transferred
(A) would have been property of the estate; or
(B) was to be paid by or on behalf of the debtor under a plan under Chapter 11, 12, or 13 of this title; or
(2) the entity that made such payment.
[3] Federal Rule of Bankruptcy Procedure 2016(b) provides:
DISCLOSURE OF COMPENSATION PAID OR PROMISED TO ATTORNEY FOR DEBTOR. Every attorney for a debtor, whether or not the attorney applies for compensation, shall file and transmit to the United States trustee within 15 days after the order for relief, or at another time as the court may direct, the statement required by § 329 of the Code including whether the attorney has shared or agreed to share the compensation with any other entity. The statement shall include the particulars of any such sharing or agreement to share by the attorney, but the details of any agreement for the sharing of the compensation with a member or regular associate of the attorney's law firm shall not be required. A supplemental statement shall be filed and transmitted to the United States trustee within 15 days after any payment or agreement not previously disclosed.
[4] Each of the above referenced cases were filed prior to October 22, 1994, the effective date of the Bankruptcy Reform Act of 1994, Pub.L.No. 103-394, 108 Stat. 4106 (1994).
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17-3489-cr
United States v. Cheng
17-3489-cr
United States v. Jian Guo Cheng
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 5th day of March, two thousand nineteen.
PRESENT: BARRINGTON D. PARKER,
DENNY CHIN,
RICHARD J. SULLIVAN,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
UNITED STATES OF AMERICA,
Appellee,
v. 17‐3489‐cr
JIAN GUO CHENG,
Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR APPELLEE: MARIA CRUZ MELENDEZ, Assistant United
States Attorney (David C. James, Nadia E.
Moore, Assistant United States Attorneys, on
the brief), for Richard P. Donoghue, United
States Attorney for the Eastern District of New
York, Brooklyn, New York.
FOR DEFENDANT‐APPELLANT: MEGAN WOLFE BENETT, Kreindler &
Kreindler LLP, New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Amon, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant‐appellant Jian Guo Cheng appeals from his sentence of 68
monthsʹ imprisonment following a guilty plea to conspiring to participate in the use of
extortionate means to collect and attempt to collect an extension of credit, in violation of
18 U.S.C. § 894(a)(1). We assume the partiesʹ familiarity with the underlying facts,
procedural history, and issues on appeal.
On December 15, 2015, Immigration and Customs Enforcement (ʺICEʺ)
agents detained Cheng, a citizen of the Peopleʹs Republic of China, in connection with
his 2011 extortion conspiracy convictions and subsequently placed him in removal
proceedings. On the same day, the government separately arrested a few of Chengʹs
criminal associates, charging them, inter alia, with participating in a racketeering
organization. While challenging his removability, Cheng met with the government to
provide information about his criminal associates in an effort to avoid deportation. On
May 23, 2016, pursuant to a cooperation agreement, Cheng pleaded guilty to a one‐
count information charging him with conspiracy to engage in the extortionate collection
of credit; specifically, Cheng admitted to participating in a May 2013 assault during
which Cheng and his criminal associates punched and kicked John Doe 3, who was later
hospitalized, in connection with a gambling debt. As a condition of the cooperation
‐ 2 ‐
agreement, Cheng also stipulated that he participated in a second extortion scheme in
which he physically threatened an individual in an effort to collect on a separate
gambling debt. In June 2016, about two weeks after his plea, Cheng was released from
immigration custody on bail.
On November 24, 2016, while on bail and cooperating with the
government, Cheng was arrested for assault in the third degree, menacing in the third
degree, and harassment in the second degree, arising from a physical altercation
between Cheng and two men after Cheng berated and shoved the mother of a testifying
witness in the trial of one of Chengʹs criminal associates. Intercepted communications
from September 2016 also revealed that Cheng had been participating in the
management of an illegal gambling parlor during this time. As a result of Chengʹs post‐
plea misconduct, the government revoked the cooperation agreement, but Cheng did
not withdraw his guilty plea.
Prior to sentencing, Cheng objected to the Guidelines calculation set forth
in the presentence report, which included a two‐level increase for the ʺbodily injuryʺ
inflicted upon John Doe 3 during the May 2013 assault, and the denial of a three‐level
decrease for acceptance of responsibility. Cheng also argued that he was entitled to
sentencing credit for (1) his six‐month detention in immigration custody and (2) his
cooperation, including the assistance he provided prior to his 2015 arrest. After
reviewing the partiesʹ submissions and the evidence presented during a two‐day Fatico
hearing, the district court overruled Chengʹs objections to the two adjustments and
‐ 3 ‐
declined to credit his cooperation or the time spent in immigration custody. The district
court imposed a within‐Guidelines sentence of 68 monthsʹ imprisonment.
On appeal, Cheng challenges the procedural and substantive
reasonableness of his sentence, which we review under a deferential abuse of discretion
standard. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). We
review a district courtʹs interpretation and application of the Guidelines de novo, United
States v. Kent, 821 F.3d 362, 368 (2d Cir. 2016), and factual findings for clear error, see
United States v. Mulder, 273 F.3d 91, 116 (2d Cir. 2001). ʺThe [g]overnment bears the
burden of proving the facts supporting the application of a Guidelines provision, and it
must do so by a preponderance of evidence.ʺ Kent, 821 F.3d at 368. ʺUnder clear error
review, we uphold findings of fact that are plausible in light of the record viewed in its
entirety.ʺ United States v. Gonzalez, 764 F.3d 159, 165 (2d Cir. 2014) (internal quotation
marks omitted).
I. Procedural Reasonableness
A district court procedurally errs when it fails to consider the factors
outlined in 18 U.S.C. § 3553(a) or ʺrests its sentence on a clearly erroneous finding of
fact.ʺ Cavera, 550 F.3d at 190. Unless the record suggests otherwise, however, ʺwe
presume that a sentencing judge has faithfully discharged her duty to consider the
statutory factors.ʺ United States v. Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008) (internal
quotation marks omitted).
‐ 4 ‐
Cheng challenges the procedural reasonableness of his sentence on four
grounds. First, he argues that the district court failed to consider his cooperation prior
to his 2015 detention. This argument is meritless. The record demonstrates that at
sentencing, the parties and the district court thoroughly discussed Chengʹs efforts to
assist ICE and the government. The district court took Chengʹs efforts to cooperate into
account, and, as discussed further below, its decision not to grant Cheng a reduction
below the Guidelines range was not unreasonable under the circumstances.
Second, Cheng contends that the district court erred procedurally by not
granting him a two‐level downward adjustment for acceptance of responsibility. 1 It is
well established that a guilty plea ʺdoes not automatically entitle a defendant to a
sentencing reductionʺ under U.S.S.G. § 3E1.1, United States v. Woods, 927 F.2d 735, 735
(2d Cir. 1991) (per curiam), and a sentencing courtʹs determination as to whether a
defendant has accepted responsibility for his offense is accorded ʺgreat deference,ʺ
U.S.S.G. § 3E1.1 cmt. n.5. Here, the district courtʹs decision to deny Cheng acceptance‐
of‐responsibility credit was not without foundation. It is undisputed that Cheng
continued to operate a gambling parlor and associate with his criminal associates after
pleading guilty. Additionally, after the Fatico hearing, the district court found that
Cheng engaged in assaultive behavior in the November 2016 altercation. Moreover,
1 Although Cheng initially argued entitlement to a three‐point reduction for acceptance of
responsibility, he ultimately conceded that he is not entitled to the third point as the
government did not file a motion pursuant to U.S.S.G. § 3E1.1(b).
‐ 5 ‐
nothing in the record suggests that the district court misunderstood its authority to
depart downward despite its findings as to Chengʹs continued criminal conduct while
released on bail. Accordingly, we conclude that the district court acted well within its
discretion in denying Cheng any reduction for acceptance of responsibility in light of
his post‐plea misconduct.
Third, Cheng asserts that the district court erroneously applied a two‐level
enhancement pursuant to U.S.S.G. § 2E2.1 based on the bodily injury suffered by John
Doe 3 during the May 2013 assault. U.S.S.G. § 2E2.1(b)(2)(A) provides for an increase in
a defendantʹs offense level if a victim sustained significant injury, such as ʺan injury that
is painful and obvious, or is of a type for which medical attention ordinarily would be
sought.ʺ U.S.S.G. § 1B1.1 cmt. n.1(B). We conclude that the district courtʹs factual
findings were amply supported by the evidence introduced at the Fatico hearing as well
as John Doe 3ʹs medical records ‐‐ most notably, the medical recordʹs documentation of
blood found inside John Doe 3ʹs mouth and boot marks on his body.
Finally, Cheng argues that he should have been afforded a downward
departure for the six months he served in immigration custody pre‐indictment because
his detention was considered ʺofficial detentionʺ under the sentencing credit statute, 18
U.S.C. § 3585. In relevant part, Section 3585(b) provides that ʺ[a] defendant shall be
given credit toward the service of a term of imprisonment for any time spent in official
detention prior to the date the sentence commences.ʺ The U.S. Bureau of Prisons
Program Statement 5880.28, however, explicitly excludes time spent in the custody of
‐ 6 ‐
the U.S. Immigration and Naturalization Service ʺpending a final determination of
deportabilityʺ from the definition of ʺofficial detention.ʺ BOP P.S. 5880.28, 1‐15A.
Cheng urges us to adopt the reasoning in Zavala v. Ives, which held that a defendant is
entitled to credit toward his criminal sentence for any period spent in immigration
detention pending potential criminal prosecution ‐‐ as opposed to pending deportation.
785 F.3d 367, 377 (9th Cir. 2015). His reliance on Zavala, however, is misplaced, as he
conceded that he was detained during this period because he was challenging his
deportation determination. Chengʹs cooperation with the government as a way to
prevent his removal did not convert his status from pending deportation to pending
potential criminal prosecution. Thus, the district court did not commit procedural error
by denying sentencing credit for Chengʹs six‐month period in immigration custody.
II. Substantive Reasonableness
A sentence imposed by the district court is substantively unreasonable
only if it ʺcannot be located within the range of permissible decisions.ʺ Cavera, 550 F.3d
at 189 (internal quotation marks omitted). Accordingly, we will set aside sentencing
decisions only in ʺexceptional cases,ʺ as we will not substitute our judgment for that of
the district court. Id.
Cheng submits that the district court substantively erred by failing to
adequately account for his cooperation. We disagree. The district court expressly
evaluated Chengʹs assistance, noting his efforts to cooperate ʺcould have well benefited
himʺ and that it would have been ʺinclined to give [Cheng] some consideration for [it].ʺ
‐ 7 ‐
Appʹx at 353‐54. It also weighed the other mitigating factors cited by Cheng, including
his elderly parents and young children who all currently reside in the United States.
Nonetheless, the district court concluded that his continued participation in extortionate
gambling activities warranted a within‐Guidelines sentence. Therefore, in light of all
the circumstances presented, we conclude that the district courtʹs sentence was
substantively reasonable.
* * *
We have considered Chengʹs remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
‐ 8 ‐
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In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3771
RODNEY L. BOYKO,
Petitioner-Appellant,
v.
AL C. PARKE, Superintendent,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 97 C 424--Allen Sharp, Judge.
ARGUED SEPTEMBER 18, 2000--DECIDED JULY 27, 2001
Before EASTERBROOK, RIPPLE and WILLIAMS,
Circuit Judges.
RIPPLE, Circuit Judge. At the age of
fifteen, Rodney Boyko was convicted of
the murder of Lester Clouse and sentenced
to 35 years in prison. His conviction was
affirmed on direct appeal by the Indiana
Court of Appeals, see Boyko v. State, 566
N.E.2d 1060 (Ind. Ct. App. 1991), and he
did not petition for transfer to the
Indiana Supreme Court. Mr. Boyko then
filed a petition for postconviction
relief in which he alleged, inter alia,
that his trial counsel was
constitutionally ineffective in failing
to consider and to raise certain
defenses. After holding an evidentiary
hearing on the matter, the Indiana trial
court denied Mr. Boyko’s petition. The
Indiana Court of Appeals affirmed that
denial, and the Indiana Supreme Court
denied Mr. Boyko’s petition for transfer.
Mr. Boyko subsequently filed a petition
for habeas corpus in the district court.
He then sought leave from the district
court to expand the record to include a
transcript of a hearing that was held
before his case was waived from juvenile
court; he alleged that this transcript
supported his claim of ineffective
assistance of counsel. He also sought
leave to conduct discovery, primarily in
order to depose his trial defense
counsel. The district court denied Mr.
Boyko’s motions and denied his habeas
petition on the merits. Mr. Boyko now
appeals. For the reasons set forth in the
following opinion, we reverse the
judgment of the district court and remand
for further proceedings.
I
BACKGROUND
A. Facts
When he was fifteen years old, Mr. Boyko
was involved in a homosexual relationship
with twenty-one-year-old Lester Clouse.
Mr. Boyko did not want to continue
therelationship and came to learn that
Clouse had told a mutual acquaintance
that, if he [Clouse] could not have Mr.
Boyko, no one could. Mr. Boyko, armed
with a .22 caliber semiautomatic pistol,
went to Clouse’s apartment to confront
him. During their conversation, Mr. Boyko
asked Clouse to take a drive with him.
Mr. Boyko had been acting strangely, and,
before leaving the apartment, Clouse said
to his roommates, "’If I’m not back by
this evening you know what happened to me.’"
Boyko v. State, 566 N.E.2d 1060, 1062
(Ind. Ct. App. 1991).
Mr. Boyko drove Clouse to a secluded
area. The two men got out of the car. Mr.
Boyko confronted Clouse with the "if I
can’t have you no one can" statement, and
he shot the pistol into the air several
times. Clouse grabbed the pistol from Mr.
Boyko. The two men then returned to the
car, and Clouse gave the pistol back to
Mr. Boyko. Mr. Boyko reloaded the pistol
and cocked it, placing a live round in
the pistol’s chamber. Clouse placed his
hand on Mr. Boyko’s leg, and Mr. Boyko
discharged the pistol into Clouse’s
chest.
After he shot Clouse, Mr. Boyko put the
body in the trunk of his car and asked
several friends to help him dispose of
it. He made plans to leave the state, but
he was apprehended by the police
following a high-speed chase seventeen
hours after the shooting. Clouse’s body
was still in the trunk of the car when
Mr. Boyko was apprehended.
B. Earlier Proceedings
1.
Mr. Boyko was placed on trial for the
intentional killing of Clouse. Mr.
Boyko’s trial counsel defended the case
on the ground that the shooting was
accidental. The jury, however, found
otherwise and convicted Mr. Boyko of
Clouse’s murder. The court sentenced Mr.
Boyko to 35 years’ imprisonment.
2.
Mr. Boyko appealed his conviction to the
Indiana Court of Appeals. He raised three
arguments: (1) the evidence introduced at
trial was insufficient to support the
jury’s finding that he intentionally
killed Clouse, (2) the trial court erred
in allowing him to testify while he was
still feeling groggy from antidepressants
administered to him while he was
incarcerated the night before his trial,
and (3) the trial court erred in
permitting the jury to view evidence that
indicated that Mr. Boyko had a juvenile
record. The Indiana Court of Appeals
rejected all three of Mr. Boyko’s
arguments and affirmed his conviction.
Mr. Boyko did not petition for transfer
to the Indiana Supreme Court./1
3.
Mr. Boyko filed a petition for
postconviction relief in the trial court
after the Indiana Court of Appeals denied
his direct appeal. He raised two
arguments in his petition: (1)
ineffective assistance of appellate
counsel in failing to argue that trial
counsel had been ineffective and (2)
prosecutorial misconduct. The trial court
initially denied Mr. Boyko’s petition
without a hearing, but it vacated its
decision after Mr. Boyko filed a motion
to correct error. The court then held a
full evidentiary hearing on Mr. Boyko’s
petition.
The evidence Mr. Boyko presented at the
hearing pertained mainly to his
ineffective assistance of counsel claim.
Prior to the hearing, Mr. Boyko had been
interviewed by Kathleen Goudy, a
certified clinical social worker. Goudy
then testified at Mr. Boyko’s hearing as
to the content of the interview and the
opinions she had formed from it. She
opined that Mr. Boyko never had consented
to his sexual relationship with Clouse;
instead, Clouse repeatedly had raped and
sexually abused Mr. Boyko, but Mr. Boyko
was unable to recognize Clouse’s conduct
as abuse. Goudy also explained that,
starting from the time he was nine years
old, Mr. Boyko had been sexually abused
by several other older men in addition to
Clouse. In Goudy’s opinion, at the time
he shot Clouse, Mr. Boyko was suffering
from post traumatic stress disorder
("PTSD"), the result of years of sexual
abuse. In Goudy’s opinion, when Clouse
touched Mr. Boyko’s leg on the night of
the shooting, Mr. Boyko thought Clouse
was about to molest him again or possibly
kill him./2 Mr. Boyko reacted to
Clouse’s touch in an uncontrolled manner
because that touch triggered a panic
attack as a result of the PTSD. Goudy’s
opinion was that Mr. Boyko shot Clouse in
an attempt to protect himself.
Based on this testimony, Mr. Boyko
argued at his evidentiary hearing that
his trial counsel had been ineffective in
presenting Mr. Boyko’s relationship with
Clouse to the jury as consensual rather
than abusive, especially given Mr.
Boyko’s legal inability to consent to
sexual relations with an adult under
Indiana’s child molestation laws./3 Mr.
Boyko further argued that his trial
counsel should have considered the
possibility that Mr. Boyko was suffering
from PTSD as a result of years of sexual
abuse and should have presented this
possibility to the jury as negating the
necessary mens rea for murder or as
establishing Mr. Boyko’s perceived need
for self-defense. At the very least, Mr.
Boyko argued, this evidence could have
been presented in mitigation at
sentencing.
Mr. Boyko’s trial counsel testified at
the evidentiary hearing as well, and Mr.
Boyko questioned him about his failure to
consider PTSD as a possible defense.
Trial counsel explained that he knew of
Mr. Boyko’s sexual encounters with Clouse
and with the other men, but he thought
these relationships were consensual
rather than abusive. He further testified
that he did not investigate whether Mr.
Boyko was suffering from PTSD. He
admitted, however, that he would have
raised PTSD as a defense if he had
realized that Mr. Boyko may have suffered
from it, but he was not certain that it
would have been an effective defense.
After hearing the evidence and the
arguments, the trial court ruled that Mr.
Boyko’s trial counsel had not been
constitutionally ineffective in failing
to raise a PTSD defense. The court
pointed out that Mr. Boyko himself did
not recognize that he might have suffered
from PTSD at the time of the shooting nor
did he ever suggest to his attorney that
he raise a PTSD defense at trial. The
court concluded that, if Mr. Boyko’s
trial counsel had raised PTSD as a
defense, it would have been an alternate
theory to the accidental shooting theory,
and the presentation of alternate
defenses may have been ineffective with
the jury. The court also noted that trial
counsel presented evidence on behalf of
Mr. Boyko, cross-examined the
prosecution’s witnesses, presented
closing arguments to the jury, and
successfully argued and obtained a jury
instruction regarding the lesser-included
offense of reckless homicide. In light of
these considerations, the court concluded
that the assistance provided by Mr.
Boyko’s trial counsel "was within the
wide range of reasonable professional
legal assistance and that it was not
inadequate so as to render his legal
representation ineffective." Record of
Postconviction Proceedings, Vol. I at 57.
Mr. Boyko also made several contentions
in his written petition for
postconviction relief that he did not
pursue at his evidentiary hearing. In
particular, Mr. Boyko alleged that his
trial counsel was ineffective in failing
to investigate and present a theory of
self-defense./4 Mr. Boyko indicated in
response to the State’s written
interrogatories that, if his trial
counsel had spoken to various witnesses,
he would have learned that (1) Clouse was
obsessed with Mr. Boyko, (2) Mr. Boyko
feared Clouse, (3) Mr. Boyko did not want
to have a relationship with Clouse, (4)
Clouse repeatedly raped Mr. Boyko, (5)
Mr. Boyko had tried to move out of the
state to avoid Clouse, and (6) Clouse had
threatened Mr. Boyko and was armed when
he made the threat. Although Mr. Boyko
made these assertions in writing, he made
no attempt to support them through live
testimony at his postconviction
evidentiary hearing nor did he pursue
these issues through argument. The trial
court noted Mr. Boyko’s failure to raise
these issues at the evidentiary hearing,
but it declined to comment on them
further.
Having rejected or declined to address
each of the arguments Mr. Boyko raised in
his petition for postconviction relief,
the court denied the petition in its
entirety.
4.
Mr. Boyko appealed the trial court’s
denial of his petition for postconviction
relief to the Indiana Court of Appeals.
He challenged the trial court’s
disposition of his ineffective assistance
of counsel claims. The Court of Appeals
first considered whether Mr. Boyko had
waived his ineffective assistance of
counsel claims by not raising them on
direct appeal. It held that, "because
Boyko raised ineffective assistance of
appellate counsel for failure to raise
ineffective assistance of trial counsel
on direct appeal in his post-conviction
petition, the ineffective assistance of
counsel issues have been preserved."
R.40, App.A at 10 (emphasis added). The
court then proceeded to address the
merits of Mr. Boyko’s claims with respect
to both trial and appellate counsel./5
First, the court considered whether Mr.
Boyko’s trial counsel had been
ineffective. The court recounted Goudy’s
testimony at the evidentiary hearing
concerning her diagnosis of Mr. Boyko as
having suffered from PTSD at the time of
the shooting. It also recounted Mr.
Boyko’s trial counsel’s statements at the
evidentiary hearing that he had not
viewed Mr. Boyko’s relationships as
molestations and that he would have
brought a PTSD defense had he known that
Mr. Boyko was suffering from the
condition. The court also noted Mr.
Boyko’s own statement at trial that he
was "dating" Clouse and his statement at
the postconviction hearing that he did
not know or suggest to his attorney that
he might have had PTSD at the time of the
shooting. Id. at 11. The court then
concluded that, even if Mr. Boyko’s trial
counsel should have investigated a PTSD
defense, it could not say that his
failure to do so "deprived the jury of
evidence concerning that [sic] state of
Boyko’s mental health at the time of the
incident. Boyko’s trial counsel was not
ineffective." Id. at 12.
The court then turned to Mr. Boyko’s
claim that his trial counsel should have
considered a theory of self-defense. The
court observed that Mr. Boyko had
testified at trial that Clouse had not
threatened him at the time of the
shooting and that the gun had discharged
accidentally. The court reasoned that Mr.
Boyko’s trial counsel had to make a
choice as to the best theory of defense
to present to the jury. The court
explained, "In a situation of this sort,
one can always hypothesize that had
Boyko’s trial counsel taken a different
approach to Boyko’s defense it might have
been more successful. Boyko’s trial
counsel rendered adequate legal
assistance." Id.
Lastly, the court concluded that,
because Mr. Boyko’s trial counsel had not
been ineffective, his appellate counsel
was not ineffective for failing to raise
trial counsel’s ineffectiveness. The
court therefore affirmed the trial
court’s denial of Mr. Boyko’s petition
for postconviction relief. Mr. Boyko
petitioned for transfer to the Indiana
Supreme Court, but his petition was
denied.
5.
Having had no success in the state
system, Mr. Boyko sought relief from the
federal courts in the form of a writ of
habeas corpus. His federal habeas
petition has suffered a somewhat tortured
procedural progression. Mr. Boyko
initially filed his habeas petition pro
se. The district court refused to appoint
counsel and dismissed the petition as
untimely. We granted Mr. Boyko a
certificate of appealability and
appointed his current attorney to
represent him. While his appeal was
pending, Mr. Boyko filed a Rule 60(b)
motion for relief from judgment in the
district court. The district court held a
hearing on Mr. Boyko’s Rule 60(b) motion
and purported to grant the motion
following the hearing. We, however, held
that the district court was without
jurisdiction to rule on a Rule 60(b)
motion while an appeal was pending. We
treated the district court’s ruling as a
statement of that court’s intention to
grant Mr. Boyko Rule 60(b) relief and to
reinstate the initial habeas petition.
Consequently, we remanded the case to the
district court to allow it to enter the
appropriate order. See Boyko v. Anderson,
185 F.3d 672 (7th Cir. 1999).
On remand, the district court granted
Mr. Boyko’s Rule 60(b) motion. Now
represented by counsel, Mr. Boyko filed a
motion to expand the record, to undertake
discovery, and to delay disposition of
the habeas petition until discovery had
been completed. Specifically, Mr. Boyko
sought to expand the record to include a
transcript of a juvenile waiver hearing
held in his case before he was
transferred from juvenile to state court
to be tried as an adult ("the
transcript"). He also wanted to include
in the record various documents needed to
establish the authenticity of the
transcript. According to Mr. Boyko, the
transcript contained testimony that
established that Clouse intended to kill
him, that he knew about Clouse’s threats,
and that his relationship with Clouse was
not consensual. Mr. Boyko believed that
this information rendered highly
questionable his trial counsel’s decision
to present an accident defense to the ju
ry; had his attorney had the transcript,
the attorney would have had the evidence
he needed to recognize a potential self-
defense or PTSD defense. Mr. Boyko also
asserted in his written submissions to
the district court that, despite due
diligence on his part, he had been unable
to obtain a copy of the transcript during
the state court proceedings and therefore
could not introduce it earlier as support
for his ineffective assistance of counsel
claims. Lastly, Mr. Boyko asked the
district court for leave to conduct
discovery, primarily to depose his trial
counsel to determine whether counsel knew
about the transcript at the time of the
trial.
The district court denied Mr. Boyko’s
requests to expand the record and to
conduct discovery, and it dismissed his
petition on the merits. The court did not
believe that Mr. Boyko’s case was a
candidate for an evidentiary hearing,
expressing some concern that Mr. Boyko
was seeking to present in the district
court issues that were never raised in
the state courts. The court further
stated that discovery was unnecessary,
presumably because Mr. Boyko had failed
to meet the good-cause standard
established by Bracy v. Gramley, 520 U.S.
899 (1997).
As to the merits of Mr. Boyko’s
petition, the district court stated that
the Indiana Court of Appeals’ decisions
on the ineffective assistance of counsel
claims were not contrary to the Supreme
Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984). The
court also determined that the state
courts’ decisions were not an
unreasonable application of Strickland to
the facts of Mr. Boyko’s case. Although
noting that the materials Mr. Boyko
sought to incorporate into the record had
an "appeal," R.86 at 6, the district
court believed that the standards
established by 28 U.S.C. sec.
2254(d)/6-com-pelled it to deny Mr.
Boyko’s petition for a writ of habeas
corpus. This appeal followed.
II
DISCUSSION
Mr. Boyko believes that he is entitled
to a writ of habeas corpus because the
state courts’ rejection of his
ineffective assistance of counsel claims,
as they were presented to them, was an
unreasonable application of Strickland
and its progeny. See 28 U.S.C. sec.
2254(d)(1). Alternatively, Mr. Boyko
submits that the district court abused
its discretion in refusing to allow him
to expand the record or to conduct
discovery in order to incorporate the
transcript and other materials that are
helpful to his case but were unavailable
to him during the earlier proceedings in
state court. Because we believe that Mr.
Boyko is entitled to a limited use of
discovery and expansion of the record, we
do not reach the merits of his
ineffective assistance of counsel claims.
1.
During his postconviction proceedings,
Mr. Boyko argued to the state courts that
his conviction should be overturned
because his trial counsel’s
representation was constitutionally
deficient. Mr. Boyko submitted that his
counsel should have argued at trial that
the shooting was in self-defense or that
the necessary element of intent was
missing because Mr. Boyko suffered from
PTSD. However, Mr. Boyko never suggested
explicitly to the state courts in the
postconviction proceedings that his trial
counsel was ineffective in failing to
procure a copy of the transcript. Because
Mr. Boyko never has presented his
ineffective assistance claims based on
the transcript to the state courts, we
must determine whether he has exhausted
his state remedies with respect to these
claims.
A federal court may not grant a writ of
habeas corpus unless the petitioner has
exhausted his state court remedies. See
28 U.S.C. sec. 2254(b)(1)(A). To exhaust
his remedies, a habeas petitioner must
fully and fairly present his federal
claims to the state courts. See Rodriguez
v. Scillia, 193 F.3d 913, 916 (7th Cir.
1999). "Fair presentment requires the
petitioner to give the state courts a
meaningful opportunity to pass upon the
substance of the claims later presented
in federal court." Id.; see also Howard
v. O’Sullivan, 185 F.3d 721, 725 (7th
Cir. 1999). The petitioner must have
placed both the operative facts and the
controlling legal principles before the
state courts. See Rodriguez, 193 F.3d at
916.
In applying these standards, federal
courts should "avoid hypertechnicality."
Verdin v. O’Leary, 972 F.2d 1467, 1474
(7th Cir. 1992). A petitioner may
reformulate his claims somewhat, so long
as the substance of his argument remains
the same. See Picard v. Connor, 404 U.S.
270, 277-78 (1971) ("Obviously there are
instances in which the ultimate question
for disposition will be the same despite
variations in the legal theory or factual
allegations urged in its support. . . .
We simply hold that the substance of a
federal habeas corpus claim must first be
presented to the state courts.")
(internal citations and quotation marks
omitted); Verdin, 972 F.2d at 1474.
"[M]ere variations in the same claim
rather than a different legal theory will
not preclude exhaustion." Wilks v.
Israel, 627 F.2d 32, 38 (7th Cir. 1980)
(citing Macon v. Lash, 458 F.2d 942, 948
(7th Cir. 1972)). However, a petitioner’s
reformulation of his claim should not
place the claim in a significantly
different legal posture by making the
claim stronger or more substantial. See
Demarest v. Price, 130 F.3d 922, 932 &
939 (10th Cir. 1997).
Given these principles, we believe Mr.
Boyko’s ineffective assistance of counsel
claim has been exhausted, even though Mr.
Boyko did not base his arguments in the
state court on trial counsel’s failure to
obtain the transcript. The situation
presented in this case is not one in
which a petitioner seeks to present a
ground of ineffectiveness that is
entirely independent of the grounds
presented in the state courts./7 Mr.
Boyko argued throughout his
postconviction proceedings that his trial
counsel should have pursued self-defense
and PTSD theories. He raises these same
claims in his federal habeas petition.
The transcript does not change the
substance of these arguments; instead, it
merely supplies an additional piece of
evidence that counsel would have found
had he pursued self-defense or PTSD
theories. In ruling on Mr. Boyko’s habeas
petition, the federal courts must resolve
the same question that the state courts
were asked to resolve, namely whether Mr.
Boyko’s trial counsel was ineffective in
failing to pursue self-defense or PTSD
theories. See Lanigan v. Maloney, 853
F.2d 40, 44-45 (1st Cir. 1988) (holding
that a habeas petitioner’s claims had
been exhausted, even though the
petitioner reformulated his claim in
federal court by "add[ing] detail"
because the petitioner’s "claim to both
the state and federal courts depend[ed]
upon resolution of the same question").
At most, then, we believe that the
transcript "supplements, but does not
fundamentally alter, the claim presented
to the state courts." Caballero v. Keane,
42 F.3d 738, 741 (2d Cir. 1994); see also
Vasquez v. Hillery, 474 U.S. 254, 258-59
(1986). As such, Mr. Boyko’s present
reliance on the transcript does not
render his ineffective assistance of
counsel claims unexhausted.
2.
Our determination that Mr. Boyko has
exhausted his ineffective assistance of
counsel claims does not necessarily allow
him to rely on the transcript in pressing
his claims in federal court. The
transcript is a new piece of evidence
that never was placed before the state
courts for their consideration, even
though Mr. Boyko was given the
opportunity to explore his claims during
a postconviction evidentiary hearing.
Although the absence of the transcript
during the state court proceedings did
not affect the legal substance of Mr.
Boyko’s argument, and thus did not
prevent exhaustion, it may have prevented
Mr. Boyko from developing the full
factual basis of his claim. We must
determine what effect, if any, this
underdevelopment of the factual record in
the state courts has on Mr. Boyko’s
present efforts to rely on the transcript
in federal court.
A federal court’s ability to hold an
evidentiary hearing in order to
supplement the record when the petitioner
"has failed to develop the factual basis
of a claim in State court proceedings" is
severely circumscribed. 28 U.S.C. sec.
2254(e)(2)/8; see also Williams v.
Taylor, 529 U.S. 420, 437 (2000)
("Federal courts sitting in habeas are
not an alternative forum for trying facts
and issues which a prisoner made
insufficient effort to pursue in state
proceedings."). We recognize that Mr.
Boyko has not yet asked the district
court to hold an evidentiary hearing;
instead, he seeks permission to conduct
discovery and to expand the record. These
procedural devices, however, can be used
to introduce new factual information into
the record in lieu of an evidentiary
hearing. See, e.g., Brown v. Johnson, 224
F.3d 461, 469 (5th Cir. 2000) (stating
that expansion of the record can be used
as a "paper hearing" in place of an
evidentiary hearing). When expansion of
the record is used to achieve the same
end as an evidentiary hearing, the
petitioner ought to be subject to the
same constraints that would be imposed if
he had sought an evidentiary hearing. See
McNair v. Haley, 97 F. Supp.2d 1270, 1286
(M.D. Ala. 2000) ("The petitioner cannot
use Rule 7 [of the Rules Governing sec.
2254 cases, which allows expansion of the
record] to secure the benefits that only
subdivision (e)(2) [of sec. 2254] can
bestow.").
Of course, discovery and expansion of
the record have other uses as well, such
as determining whether an evidentiary
hearing is necessary or proper. See,
e.g., Blackledge v. Allison, 431 U.S. 63,
81-82 (1977) (explaining that discovery
and expansion of the record can be used
to avoid the need for an evidentiary
hearing); Cardwell v. Greene, 152 F.3d
331, 338-39 (4th Cir. 1998), overruled on
other grounds by Bell v. Jarvis, 236 F.3d
149 (4th Cir. 2000) (stating that
expansion of the record may obviate the
need for an evidentiary hearing);
McDonald v. Johnson, 139 F.3d 1056, 1060
(5th Cir. 1998) (stating that expansion
of the record is appropriate to determine
whether an evidentiary hearing is
proper). When the procedural devices
available to habeas petitioners are used
in this manner, it makes little sense to
impose the same restrictions that are
placed on petitioners seeking an
evidentiary hearing.
Mr. Boyko’s ultimate goal in this case
is to introduce the transcript into the
record and to have a federal court
evaluate his ineffective assistance of
counsel claims in light of the
information in the transcript. Regardless
of the procedural device through which
Mr. Boyko seeks to accomplish this goal,
he is asking that a federal court
evaluate the merits of factual matters
never presented to the state courts.
Because sec. 2254(e)(2) restricts a
petitioner’s attempts to supplement the
factual record, Mr. Boyko must satisfy
that provision’s requirements before he
may place new factual information before
the federal court.
The Supreme Court clarified the scope of
sec. 2254(e)(2)’s restrictions in
Williams v. Taylor, 529 U.S. 420 (2000).
There, the Court held that, "[u]nder the
opening clause of sec. 2254(e)(2), a
failure to develop the factual basis of a
claim is not established unless there is
lack of diligence, or some greater fault,
attributable to the prisoner or the
prisoner’s counsel." Williams, 529 U.S.
at 432. The Court emphasized that the
focus ought to be on whether the
petitioner was diligent in his efforts to
develop the facts, not on whether the
facts were discoverable. See id. at 435.
"Diligence for purposes of the opening
clause depends upon whether the prisoner
made a reasonable attempt, in light of
the information available at the time, to
investigate and pursue claims in state
court . . . ." Id. The Court also made
clear that, when there is information in
the record that would alert a reasonable
attorney to the existence and importance
of certain evidence, the attorney "fails"
to develop the factual record if he does
not make reasonable efforts to
investigate and present the evidence to
the state courts. See id. at 438-40
(holding that the petitioner failed to
develop the factual record, and therefore
was subject to the provisions of sec.
2254(e)(2), when there was evidence in
the record that put counsel on notice of
the existence and possible materiality of
a psychiatric report, but counsel made
insufficient efforts to obtain the
report).
In the instant case, Mr. Boyko has made
certain allegations that lead us to
believe that he ought to be given the
opportunity to demonstrate that he did
not "fail" to develop the factual record
in the state courts. Mr. Boyko has
alleged that the State refused to give
him a copy of the transcript, even though
he asked it to do so on several
occasions. The record shows that the
public defender initially appointed to
represent Mr. Boyko, who was not the same
attorney who represented him at trial,
filed a written request for production of
the transcript. According to Mr. Boyko,
this request went unanswered. Mr. Boyko
claims that he personally renewed the
request prior to his postconviction
proceedings by asking the juvenile court
to produce a copy of the transcript for
him, but the "judge and judicial law
clerk" told him that he needed to have a
petition for postconviction relief on
file before a copy of the transcript
could be produced. R.61, Ex.G at 2. These
allegations present the possibility that
the State was delinquent in its duty to
provide Mr. Boyko with a copy of the
transcript. If the State was at fault in
failing to produce the transcript after
Mr. Boyko properly had asked it to do so,
then the absence of the transcript would
not be due to Mr. Boyko’s lack of
diligence in pursuing the matter earlier.
The state court record would be
incomplete through no fault of Mr.
Boyko’s, and sec. 2254(e)(2) would not
prevent him from supplementing the record
in federal court.
We think it important to emphasize,
however, that the lack of cooperation by
the State that we have just discussed is
by no means a foregone conclusion;
indeed, there are competing inferences
available from the record. For instance,
the written request for production of the
transcript filed by the public defender
may have put Mr. Boyko’s trial counsel on
notice that the transcript existed and
potentially was material. If trial
counsel failed to pursue production of
the transcript despite this notice, that
failure might implicate the opening
clause of sec. 2254(e)(2). Similarly, Mr.
Boyko claims that his postconviction
counsel "did not pursue [Mr. Boyko’s]
juvenile issues--he rejected them out-of-
hand with no inquiry or investigation
into them." Id. This claim suggests that
Mr. Boyko’s postconviction counsel may
have made a conscious choice not to
pursue production of the transcript
despite knowledge of its existence, which
also might implicate the provisions of
sec. 2254(e)(2).
These competing inferences available
from the record leave us unable to
determine whether Mr. Boyko has failed to
develop the factual basis of his claim in
state court and whether he ought to be
required to satisfy the provisions of
sec. 2254(e)(2) before being allowed to
rely on the transcript in federal court.
Consequently, we must remand this case to
the district court for resolution of this
issue. The district court may, within its
discretion, allow Mr. Boyko to expand the
record or to conduct discovery for the
sole purpose of obtaining the information
necessary to determine whether Mr. Boyko
failed to develop the record in state
court./9 If Mr. Boyko’s lack of
diligence was not the cause of the
transcript’s nonproduction, the district
court should assess the most efficient
and effective means for evaluating the
material in the transcript to determine
whether it is relevant and helpful to Mr.
Boyko’s case. We wish to emphasize that,
on remand, discovery and expansion of the
record should not be used to augment or
evaluate the merits of Mr. Boyko’s
ineffective assistance of counsel claims,
at least not until the district court has
assured itself that Mr. Boyko is entitled
to rely on the transcript in advancing
those claims.
Conclusion
Mr. Boyko only may rely on the
transcript in advancing his ineffective
assistance of counsel claims in federal
court if he can demonstrate that the
nonproduction of the transcript during
the state court proceedings was not the
result of his own lack of diligence. On
remand, the district court should
determine the proper scope of the
discovery and expansion of the record
necessary to evaluate whether Mr. Boyko
has failed to develop the factual record
in state court. We express no opinion on
the merits of Mr. Boyko’s ineffective
assistance of counsel claims at this
time. Circuit Rule 36 will apply on
remand.
REVERSED and REMANDED
FOOTNOTES
/1 None of the contentions made on direct appeal are
presented in this federal habeas petition.
/2 Mr. Boyko apparently had told Goudy during their
interview that Clouse often began his molesta-
tions by placing his hand on Mr. Boyko’s leg, as
he did that night in the car before Mr. Boyko
shot him.
/3 Under Indiana law at the time of Mr. Boyko’s
trial, a person sixteen years or older who en-
gaged in sexual intercourse with a child between
the ages of twelve and sixteen committed the
crime of child molesting, a Class C felony. See
Ind. Code 35-42-4-3 (amended by P.L. 79-1994,
Sec. 12). Under current Indiana law, a person
twenty-one years or older who engages in sexual
intercourse with a child commits the felony of
child molesting only if the child is under four-
teen years of age. See Ind. Code 35-42-4-3
(2001).
/4 Mr. Boyko also raised a prosecutorial misconduct
claim. That claim is not at issue in this appeal.
/5 The State argues that Mr. Boyko’s arguments in
federal court should be confined to the effec-
tiveness of appellate counsel. However, the
Indiana Court of Appeals held that the ineffec-
tive assistance of counsel issues had been pre-
served and addressed the merits of Mr. Boyko’s
claim with respect to trial counsel without
indicating that the claim was procedurally
barred. Consequently, we are free to reach the
merits of that claim. See Harris v. Reed, 489
U.S. 255, 263 (1989); Jenkins v. Nelson, 157 F.3d
485, 491 (7th Cir. 1998), cert. denied, 527 U.S.
1039 (1999).
/6 28 U.S.C. sec. 2254(d) provides:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the
adjudication of the claim--
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined by
the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
/7 See, e.g., Howard v. O’Sullivan, 185 F.3d 721,
725 (7th Cir. 1999) (holding that the petitioner
had not fairly presented his claim of ineffective
assistance of trial counsel to the state court,
even though he argued in state court that his
postconviction counsel had been ineffective on
the same grounds); Brown v. Shanks, 185 F.3d
1122, 1125 (10th Cir. 1999) (holding that the
petitioner failed to exhaust his claim that
counsel was ineffective in failing to investigate
an intoxication defense, even though the peti-
tioner had argued in state court that counsel had
"failed to raise significant and obvious issues,"
had misadvised him regarding the statute applica-
ble to his conduct, and had failed to raise a
double jeopardy claim) (internal quotation marks
omitted); Smith v. Groose, 998 F.2d 1439, 1441
(8th Cir. 1993) (holding that the federal court
could not review the petitioner’s claim that his
counsel was ineffective in failing to advise him
on a voluntary intoxication defense because the
petitioner had argued in state court only that
counsel was ineffective in failing to advise him
on an involuntary intoxication defense).
/8 28 U.S.C. sec. 2254(e)(2) provides:
If the applicant has failed to develop the factu-
al basis of a claim in State court proceedings,
the court shall not hold an evidentiary hearing
on the claim unless the applicant shows that--
(A) the claim relies on--
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable;
or
(ii) a factual predicate that could not have
been previously discovered through the exercise
of due diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the appli-
cant guilty of the underlying offense.
/9 Mr. Boyko has suggested that his investigation
into the State’s potential recalcitrance in
producing the transcript may reveal that he has
a claim under Brady v. Maryland, 373 U.S. 83
(1963). It would be premature for us to determine
whether such a claim, not presented previously to
the state courts, may now be considered.
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946 F.2d 599
138 L.R.R.M. (BNA) 2652, 120 Lab.Cas. P 56,754
PLUMBERS UNION LOCAL NO. 16, Appellant,v.CITY OF OMAHA, DOUGLAS COUNTY, NEBRASKA, a MunicipalCorporation, Appellee.
No. 90-3089.
United States Court of Appeals,Eighth Circuit.
Submitted June 11, 1991.Decided Oct. 10, 1991.
Thomas F. Dowd, Omaha, Neb., for appellant.
Herbert M. Fitle and Thomas O. Mumgaard, Omaha, Neb., for appellee.
Before LAY, Chief Judge, RONEY,* Senior Circuit Judge, and WOLLMAN, Circuit Judge.
WOLLMAN, Circuit Judge.
1
Plumbers Union Local No. 16 appeals the district court's1 denial of the Union's motion for summary judgment and its grant of summary judgment in favor of the City of Omaha. We affirm.
I.
2
The Omaha Plumbing Board enforces municipal regulations concerning plumbing, including the examination and licensing of plumbers. The mayor of Omaha appoints Board members, subject to approval by the city council. The Board consists of two master and two journeyman plumbers plus the health director of the City/County Health Department. Early in 1988 the city council amended the qualifications for service on the Board to require that one of the journeyman plumbers and one of the master plumbers serving on the Board be affiliated with a union. The remaining plumber members of the Board must not be affiliated with a union.
3
The City claims that equal union and non-union representation on the Board ensures uniform application of the law and promotes public confidence in the Board's integrity. The City contends that two events preceding the 1988 amendment demonstrate the need for balance on the Board. First, in 1986 Robert Newton, a non-union plumber, obtained a substantial money judgment, plus substantial attorneys' fees, against the City, members of the Board, the Union's business manager, and others. Newton alleged that the Union had used its majority on the Board to discriminate against non-union plumbers generally and to force Newton himself out of business. Second, shortly before the city council amended the ordinance, it had denied confirmation to the Board of one of the Union's full-time employee members following testimony expressing concern that the appointment would create an imbalance on the Board in favor of union interests, resulting in the sort of situation that led to Newton's lawsuit.
4
The Union raises two issues on appeal. First, it contends that the ordinance as amended violates the Union's and its members' right to associate as guaranteed by the First and Fourteenth Amendments. Second, it contends that the ordinance violates their right to equal protection under the Fourteenth Amendment.
II.
5
"In reviewing a grant of summary judgment, we apply the same standard as that applied by the district court. We thus will affirm the lower court's grant of summary judgment if 'there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.' " Meyer v. Barnes, 867 F.2d 464, 466 (8th Cir.), cert. denied, 493 U.S. 825, 110 S.Ct. 86, 107 L.Ed.2d 51 (1989) (citations omitted).
III.
6
Our inquiry into whether the ordinance violates the Union's and its members' right to associate is guided by Lyng v. International Union, United Auto., Aerospace & Agric. Implement Workers, 485 U.S. 360, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988). That case concerned an amendment to the Food Stamp Act, 7 U.S.C. § 2011 et seq., forbidding households from becoming eligible to participate in the program or from receiving increased food stamp allotments while a household member was on strike. The Court considered whether this restriction infringed the unions' and their members' right to associate. The statute would only implicate that right, the Court stated, if it " 'directly and substantially' " interfered with the union members' ability to associate for lawful purposes. International Union, 485 U.S. at 366, 108 S.Ct. at 1189 (quoting Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 2729, 91 L.Ed.2d 527 (1986)).
7
The Court found that the statute did not implicate the right of association because it
8
does not "order" [union members] not to associate together for the purpose of conducting a strike, or for any other purpose, and it does not "prevent" them from associating together or burden their ability to do so in any significant manner.... [I]t seems "exceedingly unlikely" that this statute will prevent individuals from continuing to associate together in unions to promote their lawful objectives.
9
Id. (quoting Castillo, 477 U.S. at 638, 106 S.Ct. at 2729). The Court reached this conclusion even though "one individual quit his job and abandoned his union membership in order to receive food stamps, and another individual left a picket line to seek other work and lost his union membership." Id. at 366 n. 4, 108 S.Ct. at 1190 n. 4.
10
The Union argues that the ordinance interferes with the right to associate because its members might leave the Union to qualify for a non-union position on the Board. It seems unlikely that membership on the Board is so attractive that it could induce candidates to alter their union affiliation in order to qualify. Even if it were, however, two positions remain available for union plumbers; candidates may therefore maintain their union affiliation and still qualify generally for service on the Board. Even supposing isolated defections from the Union may be found, the ordinance would not constrain the vast majority of Omaha plumbers from exercising their right to associate. We therefore find it "exceedingly unlikely" that the amendment to the ordinance will prevent Omaha plumbers from associating together in a union.
11
We next address the Union's claim that the ordinance as amended violates the equal protection clause. As discussed above, the ordinance does not implicate the Union's and its members' right of association; neither does the Union constitute a protected class for purposes of equal protection analysis. We therefore review the ordinance to determine whether it " 'is rationally related to a legitimate governmental interest.' " Id. at 370, 108 S.Ct. at 1192 (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 533, 93 S.Ct. 2821, 2825, 37 L.Ed.2d 782 (1973)).
12
The City maintains that the ordinance is rationally related to two legitimate objectives: the uniform application of the law to both union and non-union plumbers and the restoration of public confidence in the Board's integrity. A balanced Board, it argues, will ensure that neither faction uses the Board to enforce plumbing regulations selectively.
13
The first objective is analogous to the objective advanced in Norbeck v. Davenport Community Sch. Dist., 545 F.2d 63 (8th Cir.1976), cert. denied, 431 U.S. 917, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977). There, the court concluded that a school board had an important interest in ensuring efficient school administration and could forbid a school principal from negotiating on behalf of the teachers' union. Otherwise, the principal would face a conflict between his duty to supervise, discipline and evaluate the teachers and his duty as the union's negotiator to advance the teachers' interests. Id. at 67-68. Similarly, the City has, at the very least, a legitimate interest in ensuring uniform enforcement of its plumbing regulations. Therefore the City may require that the Board's membership be balanced so that the Board as a whole faces no conflict between its duty to supervise enforcement of the plumbing regulations and any inclination that Board members may have to advance the interests of union or non-union plumbers.
14
The City also has a legitimate interest in restoring and maintaining public confidence in the Board's integrity. In International Union the Court found that the federal government had a legitimate interest in maintaining the integrity of the food stamp program. Therefore Congress could prohibit striking workers from receiving new or increased food stamp allotments, thereby removing the appearance that the government's food stamp policy favored striking workers involved in private labor disputes. 485 U.S. at 371, 108 S.Ct. at 1192. Likewise, the City may require a balanced Board to eliminate any perception among the public of governmental bias in the enforcement of plumbing regulations.
15
We conclude that both objectives are legitimate and that the amended ordinance is rationally related to them. The judgment of the district court is therefore affirmed.
*
The Honorable Paul H. Roney, United States Senior Circuit Judge for the Eleventh Circuit, sitting by designation
1
The Honorable Lyle E. Strom, Chief Judge, United States District Court for the District of Nebraska
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People v Staton (2014 NY Slip Op 06335)
People v Staton
2014 NY Slip Op 06335
Decided on September 24, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on September 24, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial DepartmentWILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
BETSY BARROS, JJ.
2012-09475
(Ind. No. 7895/11)
[*1]The People of the State of New York, respondent,
vMaurice Staton, appellant.
Lynn W. L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Gregory Musso on the brief), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered September 13, 2012, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which she moves for leave to withdraw as counsel for the appellant.
ORDERED that the judgment is affirmed.
We are satisfied with the sufficiency of the brief filed by the defendant's assigned counsel pursuant to Anders v California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel's application for leave to withdraw as counsel is, therefore, granted (see Anders v California, 386 US 738; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v Paige, 54 AD2d 631; cf. People v Gonzalez, 47 NY2d 606).
MASTRO, J.P., CHAMBERS, COHEN and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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784 F.Supp. 268 (1992)
Brenda PATTERSON, Plaintiff,
v.
McLEAN CREDIT UNION, Defendant.
No. C-84-73-WS.
United States District Court, M.D. North Carolina, Winston-Salem Division.
February 18, 1992.
*269 Harold L. Kennedy, III of Kennedy, Kennedy, Kennedy & Kennedy, Winston-Salem, N.C., for plaintiff.
George E. Doughton, Jr., H. Lee Davis, Jr. and Thomas J. Doughton of Hutchins, Tyndall, Doughton & Moore, Winston-Salem, N.C., for defendant.
MEMORANDUM OPINION AND ORDER
HIRAM H. WARD, Senior District Judge.
This matter comes before the Court on remand from the Fourth Circuit Court of Appeals. In its most recent opinion in this case, Patterson v. McLean Credit Union, No. 90-1729, 1991 WL 68811 (4th Cir. May 3, 1991) (per curiam) [931 F.2d 887 (table)], the Court of Appeals instructed this Court to reconsider plaintiff's refusal-to-promote claim brought under 42 U.S.C. § 1981 after she should have the opportunity to "advance legal arguments as to the sufficiency of the existing or any additional evidence to establish her `new contract' claim." Id., slip op. at 8. Defendant has moved for summary judgment, the parties have been afforded additional time for discovery, and the parties' positions have been fully briefed. Thus, the matter is ripe for a ruling, and the Court, consistent with the opinion offered below, will grant defendant's Motion for Summary Judgment.
*270 I. Procedural History
Prior to the appeal and remand described above, this case traveled extensively in the federal court system. This Court's prior opinion in the case, Patterson v. McLean Credit Union, 130 F.R.D. 617 (M.D.N.C. 1990), was the source of the appeal mentioned above. When last before this Court, the case was on remand from the Fourth Circuit Court of Appeals, Patterson v. McLean Credit Union, 887 F.2d 484 (4th Cir. 1989), where the case was, in turn, on remand from the United States Supreme Court, Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). In its opinion, the Supreme Court stated that a promotion claim is actionable under § 1981 if "the nature of the change in position [contemplated by the promotion] was such that it involved the opportunity to enter into a new contract with the employer." Id. at 185, 109 S.Ct. at 2377. Thus, after having traveled initially from a jury verdict and an opinion of this Court to the Supreme Court, the case made its way back here where it was dismissed on the pleadings then available. On the further direction of the Court of Appeals, the case is before this Court again.
II. Factual Background
Plaintiff, a black female, was hired by defendant in 1972 as a teller and file coordinator. Her job position and title, Account Junior, remained unchanged during her time with defendant. She was always paid on an hourly wage basis. Susan Williamson, a white employee hired as an accounting clerk in 1974, received a title change from "Account Junior" to "Account Intermediate" in 1982. Plaintiff asserted that the title change was a promotion and that she herself should have received such a promotion due to her seniority over Williamson. The title change was accompanied by a pay increase of 89 cents per hour more than Patterson's pay shortly thereafter. Williamson remained at the same desk under the same supervision as she had before the title change.
With additional discovery, plaintiff now makes several assertions which should be noted. First, plaintiff states that the change to Account Intermediate would have produced eighteen different job duties for her. These include the following: (1) reconciling bank statements; (2) preparing Regulation "G" worksheets and reports; (3) preparing monthly work sheets for Branch Income and Expense Report; (4) entering ready credit lines into system; (5) preparing weekly cash on hand reports; (6) preparing Regulation "D" report; (7) maintaining subsidiary ledgers on ICU and Federal Funds; (8) receiving bank figures and calling in wire transfers; (9) auditing computer reports; (10) entering any add-on expenses (to loans) and entry reversal into system; (11) entering write-offs each quarter into system; (12) preparing listing of checks used for bank; (13) filing or distributing daily computer reports; (14) preparing entry for all returned checks for supervisor; (15) balancing weekly CD report to general ledger; (16) checking out, distributing, or filing weekly computer reports; (17) checking out, distributing, or filing monthly computer reports; and (18) inputting branch work daily. (Williamson Deposition, Exhibit 3).
The record also indicates that plaintiff's duties as an Account Junior were as follows: (1) pulling paid loans to be mailed and filing unmailed paid loan information in inactive file cabinets; (2) filing insurance papers and titles for auto and unit loans on a daily basis; (3) preparing information for typing insurance cancellation letters for auto and unit loans and typing letters; (4) filing all loans after they have been reviewed and preparing folders; (5) analyzing auto and unit loans to determine which ones needed insurance and/or title letters and typing letters; (6) filing branch input forms and documents; (7) pulling all loan folders requested and accounting for pulled folders; (8) filing payroll authorization forms; (9) processing all requests for copies of statements and/or drafts; (10) shredding any confidential paperwork. (Plaintiff's Motion to Compel Discovery and for Sanctions, Exhibit A at 7).
Plaintiff also states that she would have received a substantial pay increase in the position of Account Intermediate. As support, *271 she compares the minimum salary of an Account Junior, $4.00 per hour, to the maximum salary of an Account Intermediate, $9.75 per hour. Plaintiff's own Trial Exhibits disclose a different picture. The position of Account Intermediate afforded Susan Williamson an hourly wage of $8.23 while plaintiff's position paid her $7.34 only a few short months after Williamson's title and duties were changed a difference of eighty-nine cents per hour. (Pay Record of Brenda Gail Patterson, Plaintiff's Trial Exhibit 4; and Pay Record of Susan Tengen Williamson, Plaintiff's Trial Exhibit 7). With regard to pay, plaintiff also states that her position on defendant's pay scale, denominated H01, would have been changed to H06. No evidence of corresponding pay values or gradations is offered in conjunction therewith.
Plaintiff next states that, as an Account Junior, her duties were confined to intrastate commerce and were not, therefore, subject to the Fair Labor Standards Act. Because the Account Intermediate position dealt with the transfer of funds in interstate commerce, plaintiff believes that this position would have been covered by the Fair Labor Standards Act. Plaintiff offers no support for this argument and fails to describe how this would have created a new and distinct relationship between her and her employer.
Next, plaintiff states that she would have had the opportunity for higher advancement in the company had she been changed to the position of Account Intermediate. Plaintiff also states that she did not have a computer terminal, a telephone, or an adding machine in the vault where she worked while Williamson had access to these types of machines. Finally, plaintiff states that she was rarely allowed to work overtime while Williamson was allowed to do so.
Having outlined plaintiff's position for the purpose of examining her claim under the summary judgment standard, it is necessary to mention another issue plaintiff raises due to the passage of the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071. Plaintiff argues that the provisions of the Civil Rights Act of 1991 should be applied retroactively to her case. Because it is necessary to determine what law is to be applied to plaintiff's case before it can be determined whether she has stated a genuine issue of material fact under that law, the Court will first examine the applicability of the Civil Rights Act of 1991 to this case.
III. Civil Rights Act of 1991
The Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, was passed into law on November 21, 1991. It is divided into four titles: I Federal Civil Rights Remedies, II Glass Ceiling, III Government Employee Rights, and IV General Provisions. The preamble to the Act states:
An Act to amend the Civil Rights Act of 1964 to strengthen and improve Federal civil rights laws, to provide for damages in cases of intentional employment discrimination, to clarify provisions regarding disparate impact actions, and for other purposes.
Preamble, 105 Stat. at 1071. Thus it was the intention of Congress to alter the present picture of civil rights decisional law. This effort was inspired, at least in part, by the decisions coming from the claims originally brought by plaintiff in this case years ago as evidenced by the changes to section 1981. See 137 Cong. Rec. S15483 (daily ed. October 30, 1991).
Former section 1981 provided:
All persons within the jurisdiction of the United States shall have the same rights in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. Rev.Stat. § 1977.
42 U.S.C. § 1981 (1988).
Congress has changed section 1981 by placing the letter "(a)" before the section quoted above and by adding the following new subsections:
*272 (b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of state law.
§ 101, 105 Stat. at 1071-72. Without attempting to interpret the meaning of these new sections, it appears to the Court that, in the abstract, they could have an impact on a case such as plaintiff's, should they be applied retroactively.[1] However, the Court believes that retroactive application of this statute would be incorrect given the effective date provisions of the statute and relevant case law.
A. The Statute and the Legislative History
Before presenting this Court's reasoning on the matter, an examination of the opinions of other courts which have already considered the retroactive application of the Act is in order. It appears that the Act has been applied retroactively in as many as nine cases while retroactive application has been rejected in as many as six others. The Act was not applied retroactively in James v. American International Recovery, Inc., No. 89-CV-321-RHH, 1991 WL 281734 (N.D.Ga. Dec. 3, 1991); Alexandre v. Amp Inc., 57 Fair Empl.Prac.Cas. (BNA) 768, 1991 WL 322947 (W.D.Pa. Dec. 5, 1991); Van Meter v. Barr, 778 F.Supp. 83 (D.D.C.1991); Hansel v. Public Service Co. of Colorado, 778 F.Supp. 1126 (D.Col.1991); Khandelwal v. Compuadd Corp., 780 F.Supp. 1077 (E.D.Va.1992); and Burchfield v. Derwinski, 782 F.Supp. 532 (D.Col. 1992). The courts in James and Alexandre did not offer their rationales for not applying the Act retroactively, and the court in Van Meter did not apply the Act retroactively for reasons not applicable to the present situation. The court in Hansel, following the precedent of its Circuit Court of Appeals, reasoned that the absence of clear language in the statute and a confusing legislative history precluded retroactive application. 778 F.Supp. at 1136-37. Citing DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991), which held that a statute would apply retroactively to pending cases only if there is clear congressional intent to that effect, the district court in Hansel found first that the language of section 402 "does not facially express clear congressional intent to apply the Act retroactively to cases such as this one." Hansel, at 1136 (emphasis original). Then, because the legislative history "confirms that Congress was anything but clear on whether the Act would apply to pending cases[,]" the court held that the Act could not be applied retroactively under DeVargas. Id. 778 F.Supp. at 1136-37. The court in Khandelwal also reasoned that the Act itself and the legislative history would not lend themselves to a solution of the problem, but the Supreme Court's recent pronouncement in Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988), required that the Act not be applied retroactively.[2]Khandelwal, at 1078-79.
The Act was retroactively applied in Cary v. CHA, No. 87-C-6998, 1991 WL 274443 (N.D.Ill. Dec. 13, 1991); Thakkar v. Provident National Bank, No. 90-3907, 1991 WL 274827 (E.D.Pa. Dec. 17, 1991); and La Cour v. Harris County, 57 Fair Emp.Prac. Cases 622, 1991 WL 321020 (S.D.Tx. Dec. 6, 1991). In each of these cases, the courts applied the Act retroactively without in depth consideration of the language or legislative history of the Act. The Act was also retroactively applied in King v. Shelby Medical Center, 779 F.Supp. 157 (N.D.Ala.1991); Mojica v. *273 Gannett Co., 779 F.Supp. 94, 57 Fair Empl. Prac.Cas. (BNA) 537 (N.D.Ill.1991)[3]; Stender v. Lucky Stores, Inc., 780 F.Supp. 1302 (N.D.Cal.1992); and Goldsmith v. City of Atmore, 782 F.Supp. 113 (S.D.Ala.1992). In Mojica v. Gannett Co., 779 F.Supp. 94, 57 Fair Empl.Prac.Cas. (BNA) 537 (N.D.Ill. 1991), the court followed the lead of its Court of Appeals in applying the Act retroactively primarily via a consideration of the case law concerning retroactive application of statutes generally. Citing Federal Deposit Ins. Corp. v. Wright, 942 F.2d 1089 (7th Cir.1991), the court in Mojica quoted the appellate court's decision to follow the Supreme Court's line of authority found in Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), by which a statute is applied retroactively unless to do so would threaten manifest injustice or there is evidence of congressional intent to the contrary. Finding the language of the statute and the legislative history inconclusive, the court went on to examine the case under the relevant precedent. Mojica, 779 F.Supp. at 97-98, 57 Fair Empl.Prac.Cas. at 539. The court in King felt that it was bound by precedent in its circuit similar to that in Mojica. The court in Stender argued that the statute's plain language and the legislative history require that the Act be applied retroactively as does relevant case law.
As the Supreme Court has stated, "the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Com. v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). See also Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370, 45 S.Ct. 274, 275-76, 69 L.Ed. 660 (1925) ("the plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect could discover." (citation omitted)).
Title IV, General Provisions, Civil Rights Act of 1991, contains section 402 entitled "Effective Date." It reads as follows:
(a) IN GENERAL.Except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment.
(b) CERTAIN DISPARATE IMPACT CASES.Notwithstanding any other provision of this Act, nothing in this Act shall apply to any disparate impact case for which a complaint was filed before March 1, 1975, and for which an initial decision was rendered after October 30, 1983.
§ 402, 105 Stat. at 1099.
Section (a) states "Except as otherwise specifically provided...." A review of the Act as a whole and with particular attention to the changes made to section 1981 discloses that there is no section dealing specifically with the effective date of new section 1981, that isno exception to section 402 for section 1981. Thus, the Court must look to the general effective date provision. The plain meaning of section 402(a) is that the Act shall have no retroactive effect. Each phrase or word, "take effect," "upon," and "enactment" must be examined in turn.
Black's Law Dictionary defines the phrase "take effect" to mean "to become operative or executed. To be in force, or go into operation." Black's Law Dictionary 1304 (5th Ed.1979). Black's also states that the phrases "`take effect,' `be in force,' and `go into operation, etc.' are used interchangeably." Id. at 462. Webster's Dictionary defines the phrase "take effect" to mean "to become operative ... to produce a result." Webster's Third New International Dictionary 2331 (1972). Thus, in both the lawyer's and the layperson's dictionaries, the phrase "take effect" denotes a beginning point from which action will occur, a starting point prior to *274 which the contemplated action did not occur.
"Upon" is defined as "on." Id. at 2517. "On" is defined variously, but its most relevant definition is as a "function word to indicate position with regard to ... time...." Id. at 1574. Specifically, it is described as an "occurrence during the course of a specified day...." Id.
Finally, "enactment" is defined as "the method or process by which a bill in the Legislature becomes a law." Black's Law Dictionary 472 (5th Ed.1979). Webster's defines the word via its entry for "enact" which states "to enter into the public records, ..., to establish by legal and authoritative act: make into a law...." Webster's Third New International Dictionary 745 (1972).
Combining these definitions, the four words, "take effect upon enactment," must be interpreted to indicate a beginning point, November 21, 1991 [the date the President signed the bill into law], from which date the Act and its amendments would be operative on events coming within their scope, but having no effect on events occurring before that date as the Act was not operative prior to November 21, 1991. The language of the statute provides no indication that Congress intended retroactive application of the Act, and the Court will not read such a requirement into the statute.
The Court is aware that other courts, noted earlier, have believed that the language of section 402 is inconclusive as to the issue of retroactivity.[4] However, as the Supreme Court has directed, the plain meaning of a statute controls. See Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370, 45 S.Ct. 274, 275-76, 69 L.Ed. 660 (1925). The plain meaning of this statute is that the Act had no effect prior to November 21, 1991. Thus, it cannot be construed to govern events occurring prior to that time.
Plaintiff makes an argument based on the negative inference she draws from § 402(b) and § 109(c). Section 109, entitled "Protection of Extraterritorial Employment", contains a subsection (c) which states: "The amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this Act." § 109, 105 Stat. at 1078. Plaintiff argues that, because § 109(c) specifically precludes retroactivity and § 402(b) specifically excludes certain cases from application of the Act, Congress must have considered retroactive application of the Act. She continues: by failing to specifically prohibit retroactive application of the Act as in sections 109(c) and 402(b), Congress must have intended that the remaining portions of the Act (other than § 109(c)) be applied retroactively to the remaining *275 body of pending case law (other than that excluded by § 402(b)).
This negative inference drawn by plaintiff would seem to be the sort of "curious, narrow, hidden sense" of a statute that the Supreme Court has sought to avoid. Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370, 45 S.Ct. 274, 275-76, 69 L.Ed. 660 (1925). Congress did clearly consider the retroactive application of the statute. That is the purpose of § 402(a) which, again, states that the Act shall take effect upon enactment.
Even if the language of the statute were not clear on its face, and despite the fact that Congress provided little aid on this issue, current case law on this subject requires that the Act not be applied retroactively.
B. Case Law
1. The Supreme Court
"Retroactivity is not favored in the law." Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988). Of those cases in which the Supreme Court has actually considered the merits of retroactive application of legislation, this is its most recent pronouncement. The Court went on to state: "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Id. (citations omitted).
"The power to require readjustments for the past is drastic. It ... ought not to be extended so as to permit unreasonably harsh action without very plain words." Even where some substantial justification for retroactive rulemaking is presented, courts should be reluctant to find such authority absent an express statutory grant.
Id. at 208-09, 109 S.Ct. at 471 (citing Brimstone R. Co. v. United States, 276 U.S. 104, 122, 48 S.Ct. 282, 287, 72 L.Ed. 487 (1927)).
More recently, in Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990), the Court recognized the split in its previous opinions between Bowen and a line of cases including Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Thorpe v. Housing Authority of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), and United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801). Kaiser, 494 U.S. at 836-39, 110 S.Ct. at 1576, 108 L.Ed.2d at 853-54. The Court declined to reconcile the split between the two lines of authority because the plain language of the statute disclosed clear congressional intent that the changed statute not be applied retroactively. 494 U.S. at 837-39, 110 S.Ct. at 1577, 108 L.Ed.2d at 854. Of particular importance, however, is Justice Scalia's concurring opinion in Kaiser analyzing the history of the concept of retroactivity in the law and concluding that the Court should reconcile the existing tension in favor of non-retroactivity. 494 U.S. at 840-59, 110 S.Ct. at 1579-88, 108 L.Ed.2d at 856-67 (Scalia, J., concurring).
Because a more complete picture of the history of and the arguments against retroactive application of statutory law cannot likely be found, this Court will only point out a few salient passages from Justice Scalia's argument.
Since the issue has been briefed and argued in this case, I would have taken the occasion to admit that the rule we expressed in Thorpe and Bradley was wrong, and to reaffirm the clear rule of construction that has been applied, except for these last two decades of confusion, since the beginning of the Republic and indeed since the early days of the common law: absent specific indication to the contrary, the operation of nonpenal legislation is prospective only. (footnote omitted).
494 at 841, 110 S.Ct. at 1579, 108 L.Ed.2d at 856 (Scalia, J., concurring).
During these more than 150 years of doctrinal certainty [prior to Thorpe ], we did not always deny retroactive application to new statutory law. But when we accorded it, the reason was that the statute *276 affirmatively so required. (citations omitted).
494 U.S. at 844, 110 S.Ct. at 1580, 108 L.Ed.2d at 858 (Scalia, J., concurring).
[Retroactivity] is contrary to fundamental notions of justice, and thus contrary to realistic assessment of probable legislative intent. The principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal. It was recognized by the Greeks, see 2 P. Vinogradoff, Outlines of Historical Jurisprudence 139-40 (1922), by the Romans, see Justinian Code, Book 1, Title 14, § 7, by English Common Law, see 3 H. Bracton, De Legibus et Consuetudinibus Angliae 531 (T. Twiss trans. 1880); Smead 20 Minn.L.Rev., at 776-778, and by the Code Napoleon, 1 Code Napoleon, Prelim. Title, Art. 1, cl. 2 (B. Barrett 2 trans. 1811). It has long been a solid foundation of American law. Chancellor Kent said that "it cannot be admitted that a statute shall, by any fiction or relation have any effect before it was actually passed." 1 J. Kent, Commentaries on American Law *455. Justice Story said that "retrospective laws are ... generally unjust; and ... neither accord with sound legislation nor with the fundamental principles of the social compact." J. Story, Commentaries on the Constitution § 1398 (1851). The United States Constitution itself so far reflects these sentiments that it proscribes all retroactive application of punitive law, U.S. Const, Art. I, § 9, cl. 3, see Calder v. Bull, 3 Dall 386, 1 L.Ed. 648 (1798), and prohibits (or requires compensation for) all retroactive laws that destroy vested rights.... (citations omitted).
494 U.S. at 855-56, 110 S.Ct. at 1586-87, 108 L.Ed.2d at 865-66 (Scalia, J., concurring).
Little more can or need be said against retroactive application of a statute, but a review of Supreme Court case law in favor of retroactive application of new legislation is in order.
Both Bradley and Thorpe find their genesis in United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801). Chief Justice Marshall delivered the opinion of the Court.
[I]f, subsequent to [a] judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.... It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns, where individual rights, acquired by war, are sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest import....
Schooner Peggy, 5 U.S. (1 Cranch) at 110. In Schooner Peggy, the plaintiffs had captured a French schooner, Peggy, the cargo of which they hoped to keep. The district court would not have allowed them to do so, the Court of Appeals reversed, and, in the mean time, the President signed a convention with France stating that captured property of this sort would be mutually restored. Id. at 103-08. The Supreme Court applied the law retroactively to the case. Id.
More than 150 years later, in Thorpe v. Housing Authority of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969) the next major decision involving retroactivity was handed down when the Court retroactively applied an administrative decision requiring that a tenant in a public low-rent housing project be advised of the reasons for eviction. Quoting from Schooner Peggy, the Court noted that an exception had been made to the general rule that new statutes should not be applied retroactively where to do so would result in manifest injustice. Thorpe, 393 U.S. at 282, 89 S.Ct. at 526. Here, no such "manifest injustice" occurred since requiring the defendant Housing Authority to give this plaintiff the reasons for eviction would enable the plaintiff to properly defend himself against the eviction while not infringing on any of the *277 defendant's rights. Id. at 282-83, 89 S.Ct. at 526-27. In fact, the defendant had already begun to comply with the requirement in later cases. Id.
The final major case applying new legislation retroactively is Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). There, the Court retroactively applied a statute dealing with attorney's fees, citing Schooner Peggy and Thorpe and rejecting the "contention that a change in the law is to be given effect in a pending case only where that is the clear and stated intention of the legislature." Bradley, 416 U.S. at 715, 94 S.Ct. at 2018 (footnote omitted). The Court further stated, "While neither our decision in Thorpe nor our decision today purports to hold that courts must always thus apply new laws to pending cases in the absence of clear legislative direction to the contrary, we do note that insofar as the legislative history of § 718 [the statute at issue] is supportive of either position, (footnote omitted) it would seem to provide at least implicit support for the application of the statute to pending cases. (footnote omitted)." Id. at 715-16, 94 S.Ct. at 2018-19.
The Court perhaps expanded this area of the law somewhat in Bradley by further defining the elements of manifest injustice as centering upon "(a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights." Id. at 717, 94 S.Ct. at 2019. As to the first element, the Court reasoned that the disparity in the abilities of the parties to protect their interests and the fact the desegregation issues at the heart of the case benefitted the community at large removed the case from the category of those cases between two private parties. Id. at 718, 94 S.Ct. at 2019-20. The second element, the nature of the rights involved, concerns whether retrospective application of the statute would "deprive a person of a right that had matured or become unconditional." (citations omitted) Id. at 720, 94 S.Ct. at 2020-21. This concern was not implicated in Bradley because the defendant, the Richmond school board, had no rights in the funds at issue. Finally, the third element, interpreted to mean whether "new and unanticipated obligations [might] be imposed upon a party without notice or an opportunity to be heard," was not implicated because retroactive application of the statute would not increase the school board's burden to provide a nondiscriminatory education. Id. at 720-21, 94 S.Ct. at 2020-21.
2. The Fourth Circuit Court of Appeals
Such being the picture of the law in the Supreme Court, it is necessary for this Court to review Fourth Circuit Court of Appeals precedent on the issue. The Fourth Circuit's most recent pronouncement follows the Supreme Court's decision in Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). In Leland v. Federal Insurance Administrator, 934 F.2d 524 (4th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 417, 116 L.Ed.2d 437 (1991), the Court of Appeals stated that, in Bowen, "the Supreme Court recently reaffirmed the longstanding principles relative to the retroactive application of statutory enactments and administrative rulemaking and held that, even where some substantial justification for retroactivity is presented, courts should be reluctant to find such authority absent an express statutory grant." Leland, 934 F.2d at 528. (citation omitted).
Of course, the Court of Appeals has applied the Bradley Thorpe line of cases. See United States v. Monsanto Co., 858 F.2d 160 (4th Cir.1988); Hyatt v. Heckler, 757 F.2d 1455 (4th Cir.1985); National Posters, Inc. v. NLRB, 720 F.2d 1358 (4th Cir.1983): and Alphin v. Henson, 552 F.2d 1033 (4th Cir.), cert. denied, Henson v. Alphin, 434 U.S. 823, 98 S.Ct. 67, 54 L.Ed.2d 80 (1977). This Court's research also discloses, however, a number of cases in which the Court of Appeals has sought to limit the application and even the interpretation of the Bradley rule.
In Condit v. United Air Lines, Inc., 631 F.2d 1136 (4th Cir.1980), the plaintiffs sought the retroactive application of the Pregnancy Discrimination Act per the Bradley rule. The Court of Appeals stated: *278 "it occurs to us that they [the plaintiffs] are, in fact, seeking retroactive operation of this law to impose liability upon United growing out of activities which occurred in 1972, some seven seven years prior to the Act." Condit, 631 F.2d at 1139-40. The statute's language regarding effective date, much like that presently at issue, read:
Sec. 2(a) Except as provided in subsection (b), the amendment made by this Act shall be effective on the date of enactment.
Id. at 1140. Subsection (b) provided that the Act would have no effect on any fringe benefit program in effect on the date of enactment. Id. The Court, borrowing from the Eighth Circuit Court of Appeals, stated:
The usual purpose of a special interpretive statute is to correct a judicial interpretation of a prior law which the legislature determines to be inaccurate. Where such statutes are given any effect, the effect is prospective only.
Id.
Next, in United States v. Holcomb, 651 F.2d 231 (4th Cir.1981), the Court of Appeals noted the Bradley rule and the fact that the Court followed that general rule, "applying to pending cases procedural changes that do not affect substantive or vested rights." 651 F.2d at 234, citing Koger v. Ball, 497 F.2d 702, 706 (4th Cir. 1974) ("Procedural statutes that affect remedies are generally applicable to cases pending at the time of enactment. (footnote omitted). Of course, retrospective application is not allowed when it will work a manifest injustice by destroying a vested right."). See also Varandani v. Bowen, 824 F.2d 307, 313 (4th Cir.1987), cert. dismissed, Varandani v. Bowen, 484 U.S. 1052, 108 S.Ct. 1000, 98 L.Ed.2d 968 (1988) (distinguishing Thorpe where regulation in question fixed an effective date whereas the regulation in Thorpe "merely stated that it superseded the prior regulation without specifying an effective date."); and see Treadway v. Califano, 584 F.2d 48 (4th Cir.1978) (Provisions of Black Lung Benefits Reform Act would not be applied retroactively to detriment of coal miners when entire purpose of Act was to aid that group).
The Court of Appeals has also applied the "manifest injustice" exception of the Bradley line of cases. In Hughes v. Heyl & Patterson, Inc., 647 F.2d 452 (4th Cir. 1981), the Court was faced with the issue of whether to apply retroactively a new definition of the term "operator" under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. (1980). To do so would have greatly expanded the body of persons potentially liable for violations of the Act. 647 F.2d at 454. "An operator is exposed to civil liability for violations of the health or safety standards of the act; therefore persons could be held liable for the violation of standards which they properly believed were not applicable to them at the time of their acts." Id. The Court therefore declined to apply the change retroactively. Id.
3. Analysis
Applying this body of precedent to the issue of whether to apply the Civil Rights Act of 1991 retroactively, it is clear to this Court that the current and overarching preference is to preclude such retroactive application. The Supreme Court's position in Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988), is authority enough for that position. In addition, in its most recent pronouncement on the issue, the Fourth Circuit Court of Appeals has spoken approvingly of that position in Leland v. Federal Insurance Administrator, 934 F.2d 524 (4th Cir.), cert. denied, Leland v. Federal Ins. Admr., ___ U.S. ___, 112 S.Ct. 417, 116 L.Ed.2d 437 (1991). By contrast, some degree of dissatisfaction with retroactive application of legislation can be gleaned from the Fourth Circuit's previous decisions on the matter. See Condit v. United Air Lines, Inc., 631 F.2d 1136 (4th Cir.1980); United States v. Holcomb, 651 F.2d 231 (4th Cir.1981); Koger v. Ball, 497 F.2d 702 (4th Cir.1974); Varandani v. Bowen, 824 F.2d 307 (4th Cir.1987), cert. dismissed, Varandani v. Bowen, 484 U.S. 1052, 108 S.Ct. 1000, 98 L.Ed.2d 968 (1988); *279 Treadway v. Califano, 584 F.2d 48 (4th Cir.1978); and Hughes v. Heyl & Patterson, Inc., 647 F.2d 452 (4th Cir.1981).[5]
When Justice Scalia's analysis from Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring), is added to the mix, the picture is made even clearer. Retroactive application of legislation is unfair, unfair to the citizenry making an attempt to guide its activities by the rule of law. To be forced to conduct one's life and one's business in the fear that a legislative body may later declare that conduct illegal is antithetical to the notions of justice and fair play that undergird our legal system. Of course, should Congress have decided that the Civil Rights Act of 1991 should be applied retroactively, this Court would have little choice but to follow that mandate. However, Congress put no such requirement in the statute, and this Court will not attempt to read one there.
It further appears to this Court that retrospective application of the Act would result in the manifest injustice contemplated as an exception to the Bradley line of cases. It is necessary to examine the nature and identity of the parties, the nature of their rights, and the nature of the impact of the change of law on these rights. Bradley, 416 U.S. at 717-18, 94 S.Ct. at 2019-20.
First, this is a case between two private parties. This is not a case between a school board and the children it educates as in Bradley. Though other courts have been influenced by the public interest and debate generated by this Act to believe that their decisions may have far-reaching impact, see Mojica v. Gannett Co., 779 F.Supp. 94, 57 Fair Empl. Prac. Cas. (BNA) 537, 539 (N.D.Ill.1991), this Court is only able to decide the controversy between the two parties before it. This Court cannot decide the cases of parties not before it, in different places faced with other factual situations. There is no question that civil rights are of great importance, and this Court in no way seeks to limit those rights. However, non-retroactive application of the Civil Rights Act does not preclude plaintiff's claim as she still has the opportunity to make a claim under the previous section 1981 as will be examined in the next section. That determination, as well, will be between these two parties alone.
Second, the nature of the rights of these parties is such that they are matured in the sense that the law of this case has already been decided by the Supreme Court. The Supreme Court decided Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), more than two years ago, and the parties have a right to rely on that Court's interpretation of the law of their case. To place new legal requirements on the parties at this stage of a proceeding which has lasted more than seven years, involves conduct occurring a decade ago, and which has been before various courts of the federal system now seven times including a trial by jury would be patently unfair.
Third, by the same token, the impact of retroactive application of the Act would be to place new and unanticipated obligations on defendant. Again, these events occurred in the early 1980's and were governed by a law, section 1981, which, as the Supreme Court interpreted, did not apply to plaintiff's case except as to the creation of a new and distinct relationship between plaintiff and defendant. Defendant could not have anticipated that Congress, displeased with that interpretation, would change the law to fit the case. It would be "manifestly unjust" to apply this new standard to such a situation.
In sum, this Court believes that the statute itself precludes retroactive application as does the pertinent case law. Even if it did not, it would be plainly inequitable to do so. As Justice Scalia stated:
*280 Once one begins from the premise of Thorpe and Bradley that, contrary to the wisdom of the ages, it is not in and of itself unjust to judge action on the basis of a legal rule that was not even in effect when the action was taken, then one is not really talking about "justice" at all, but about mercy, or compassion, or social utility, or whatever other policy motivation might make one favor a particular result. A rule of law, designed to give statutes the effect Congress intended, has thus been transformed to a rule of discretion, giving judges power to expand or contract the effect of legislative action. We should turn this frog back into a prince as soon as possible.
Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 857, 110 S.Ct. 1570, 1587, 108 L.Ed.2d 842, 866 (1990) (Scalia, J., concurring). This Court agrees that justice requires that legislation not be applied retroactively and so holds with regard to the Civil Rights Act of 1991.
IV. Plaintiff's Failure-to-Promote Claim Under the Civil Rights Act of 1964
Plaintiff argues that even if the Civil Rights Act of 1991 does not apply to the instant case, plaintiff's "failure-to-promote" claim is actionable under the Civil Rights Act of 1964, as interpreted by the Supreme Court in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989).
A. The Applicable Legal Standard for Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of showing that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). After the movant has met this burden, the nonmoving party may not rest on its pleadings, but must come forward with specific facts showing that evidence exists to support its claims and that there is a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553.
In ruling on a motion for summary judgment, the Court must believe the evidence of the non-movant, and all justifiable inferences must be drawn in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). However, in a case where "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial'" and summary judgment is proper. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968)). In the instant case, defendant has moved for summary judgment. There being no genuine issues of material fact, the Court will grant defendant's motion.
B. Patterson v. McLean Credit Union
In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Supreme Court first reaffirmed its holding in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), thereby making § 1981 applicable to the making and enforcement of private contracts in the context of an employment discrimination suit. However, Justice Kennedy, writing for the majority, sharply narrowed the scope of § 1981 in such cases, stating that by its plain terms § 1981 only involved the protection of two rights, "the same right ... to make ... contracts" and "the same right ... to enforce contracts." 491 U.S. at 176, 109 S.Ct. at 2372. Justice Kennedy wrote:
[w]here an alleged act of discrimination does not involve the impairment of one of these specific rights, § 1981 provides no relief. Section 1981 cannot be construed as a general proscription of racial discrimination *281 in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts.
Id. (citations omitted). Justice Kennedy stated that the right to "make" a contract is narrow and:
extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Such post-formation conduct does not involve the right to make a contract, but rather implicates the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state contract law and Title VII.
Id. at 176-77, 109 S.Ct. at 2372-73. Further, Justice Kennedy defined the right to "enforce" a contract as:
a right of access to legal process, that will address and resolve contract-law claims without regard to race. In this respect, it prohibits discrimination that infects the legal process in ways that prevent one from enforcing contract rights, by reason of his or her race, and this is so whether this discrimination is attributed to a statute or simply to existing practices. It also covers wholly private efforts to impede access to the courts or obstruct nonjudicial methods of adjudicating disputes about the force of binding obligations, as well as discrimination by private entities, such as labor unions, in enforcing the terms of a contract.
Id. at 177, 109 S.Ct. at 2373 (emphasis in original).
Accordingly, after Patterson, there exists a bright line distinction between pre-contract formation conduct and post-contract formation conduct. Generally, Patterson stands for two propositions: (1) that § 1981 precludes pre-contract formation conduct only when it involves the plaintiff's right to make a contract; and (2) that § 1981 precludes post-contract formation behavior only when it impairs the right to enforce a contract.
In addition to the above rules, the Court also developed a special rule, consistent with the rules-stated above, regarding discriminatory promotion practices. Justice Kennedy wrote:
the question whether a promotion claim is actionable under § 1981 depends upon whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer. If so, then the employer's refusal to enter into a new contract is actionable under § 1981.
Id. at 185, 109 S.Ct. at 2377. The rationale underlying this rule is that, because discriminatory promotion practices may implicate the right to make a new employment contract, they fall within the "right ... to make ... contracts" language of § 1981, even though promotion practices constitute post-contract formation conduct which is unrelated to contract enforcement. Therefore, it is clear that after Patterson, some, but not all, promotion opportunities are cognizable under the statute.
In determining whether a promotion claim is actionable under § 1981, Justice Kennedy further stated that:
a lower court should give a fair and natural reading to the statutory phrase "the same right ... to ... make contracts," and should not strain in an undue manner the language of § 1981. Only where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and employer is such a claim actionable under § 1981.
Id. at 185, 109 S.Ct. at 2377 (emphasis added). The Court did not, however, provide much specific guidance on how to identify *282 promotion opportunities that meet the "new and distinct relation" test. Instead, the Court simply cited, as its lone example of such a case, Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), where the defendant-law firm refused to accept an associate into partnership.
To summarize, after Patterson, employee claims based on work place racial harassment and/or disparate treatment that took place after the initial employment contract formation period and which does not involve contract enforcement or promotion are not cognizable under § 1981. As stated by Justice Kennedy, such cases are "more naturally governed by state contract law and Title VII." Id. 491 U.S. at 177, 109 S.Ct. at 2373.
C. The Fourth Circuit Court of Appeals
The Fourth Circuit Court of Appeals most recently dealt with the failure to promote issue in White v. Federal Express Corp., 939 F.2d 157 (4th Cir.1991), where the Court affirmed the analysis of the District Court of the Eastern District of Virginia in White v. Federal Express Corp., 729 F.Supp. 1536 (E.D.Va.1990). The case involved the claims of a number of black employees who worked as couriers for Federal Express. Two of those plaintiffs brought claims under § 1981 alleging that they had been discriminated against when denied promotions. Plaintiff John White appealed the district court's entry of summary judgment on his § 1981 claim. White alleged that he had been denied a promotion to the position of dispatcher on three occasions and that white employees had been placed in the positions instead on all three occasions in violation of § 1981. 939 F.2d at 159. The Court of Appeals wrote with regard to the district court's analysis: "The district court thoroughly and, we find, correctly analyzed this issue." Id. (citation omitted).[6] Thus, a review of the district court's analysis is in order.
The district court began by noting that, at that time, the only relevant Fourth Circuit precedent was Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908 (4th Cir.1989), where the Court had stated "`promotion from a clerk to a supervisor [in a company's accounting department] with a consequent increase in responsibility and pay satisfies this [Patterson] test.'" 729 F.Supp. at 1545 (quoting Mallory, 882 F.2d at 910). As the district court noted, however, the Fourth Circuit did not elaborate on the criteria for the test. In its examination of the opinions of other Circuit Courts of Appeals, the district court discussed Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir.1989). There, in separate opinions, a Seventh Circuit panel proposed three interpretations of the "new and distinct relationship" test. The first centers on the contractual relationship between the employer and the employee and whether the change in position would result in a change in that contractual relationship ("the contract test"). 729 F.Supp. at 1545 (citing Malhotra, 885 F.2d at 1311). The second interpretation asks whether an outsider to the firm could fill the position ("the outsider test"). Id. (citing Malhotra, 885 F.2d at 1311). The third interpretation "focuses on whether the promotion would involve a substantial change in the plaintiff's job duties or responsibilities ("the job requirements test"). Id. (citing Malhotra, 885 F.2d at 1317 n. 6 (Cudahy, J., concurring)).
This Court agrees with the District Court of the Eastern District of Virginia where it states with regard to these three tests:
Of the three tests in the Malhotra opinions, the contract test is the most faithful interpretation of Patterson. It is clearly in line with the Patterson mandate to give § 1981 a "fair and natural reading". (citation omitted). Malhotra's proposed outsider and job requirements tests are too broad. These tests sweep within § 1981 not only true promotions, but also lateral transfers that merely involve new duties without significant changes in responsibility *283 and pay. But it is the significant changes in responsibilities and pay, cited in Mallory and implicit in the promotion in Hishon, that form the heart of any new contract between an employee and an employer.... Moreover, any anomaly created by application of this test is mitigated by an employee's right to bring suit under Title VII. See Patterson, 109 S.Ct. at 2374 (Supreme Court recognized that narrowing of § 1981 was ameliorated by existence of Title VII).
729 F.Supp. at 1545-46. Applying the contract test to the issue before it as to whether a change of job from courier to dispatcher created a new and distinct relationship, the district court stated:
[T]he courier to dispatcher change was more in the nature of a lateral transfer than a promotion. Neither couriers nor dispatchers have supervisory responsibilities. Both are hourly, nonsupervisory employees. While the jobs involved different tasks, the level of responsibility is essentially the same. Couriers are responsible for timely and proper pick-up and delivery of parcels. Dispatchers are responsible for relaying customers' orders to couriers. They do not originate or create the orders they relay to couriers. Nor is there any significant difference in pay; White, had he become a dispatcher, would have received a $1 per hour increase, but would have remained a supervised, hourly employee. Such minor differences in courier and dispatcher tasks and pay do not rise to the level of an "opportunity to enter into a new contract with the employer," Patterson, 109 S.Ct. at 2377, nor are they equivalent to the position changes at issue in Hishon or Mallory. Were the Court to hold otherwise, virtually all requests for changes in job assignments would be swept back within the ambit of § 1981, a result at odds with the thrust of Patterson.
729 F.Supp. at 1546.
One other Court of Appeals decision, Rountree v. Fairfax County School Bd., 933 F.2d 219 (4th Cir.1991), noted earlier, should be discussed.[7] There, plaintiffs, black school teachers employed by Fairfax County Public Schools, brought suit alleging violations of § 1981 due to the school board's adoption of a merit pay system and their inability to gain access to the benefits of that system. Under the system, a teacher with enough years of employment and a teaching evaluation of "exemplary" or "skillful" rather than merely "effective" would be classified as Career Level II, an elevation from Career Level I. Id. at 221. This change would not alter job duties or responsibilities nor was it a prerequisite to promotion to management positions. Id. Rather, Career Level II status would "determine eligibility for certain merit pay increments...." Id. Evaluations of teaching effectiveness would become less frequent also. Plaintiffs were rated as "effective" and believed that white teachers with lesser qualifications had been rated higher because of their race. Id.
Particularly worth noting given the situation before this Court is the Court of Appeals' observation in Rountree that the plaintiffs had offered little or no argument as to how the school board's adoption of the merit pay system established a "'new *284 and distinct' contractual relationship sufficient to satisfy the Patterson standard." Id. at 224. Further, with regard to the eligibility for merit pay and the less frequent evaluations, the plaintiff had "devote[d] no discussion in her brief as to how such factors rise to the level of a `new and distinct' contractual relationship." Id. The Court went on to note that the district court in White had concluded that the "contract test" was preferable to the other tests from Malhotra, and the Court concluded that the "White analysis [made] clear that any contractual changes brought about by the School Board's merit pay system fail[ed] to satisfy any of the Malhotra interpretations of Patterson." Id. (emphasis in original).
Various district courts have also passed on the proper application of the Patterson "new and distinct relation" test. Although these cases produce no clear-cut set of rules for finding a claim under § 1981, they provide the Court some guidance in assessing the relative merits of plaintiff's claim.
As a general rule, most district courts have found that for a "new and distinct relation" to arise there must be more than a mere change in pay or title.[8] Numerous courts have offered factors to guide in assessing the existence of a cognizable claim under § 1981, including changes: in the method of calculating the employee's salary (i.e., change in status from hourly to salaried employee); in the employee's responsibility level; in the qualifications required for the new job as opposed to the old position; in the employee's status within the employer's organization; in the employee's duties from non-supervisory to supervisory or managerial; in daily duties; in potential liabilities; and in pension and other benefits. Guzman v. El Paso Natural Gas Co., 756 F.Supp. 994, 997-99 (W.D.Tex. 1990).[9]
Obviously, the above list is not exhaustive as many other factors may be included in making the determination of whether there exists an actionable § 1981 claim in a given case. It is clear, however, that the Court should look at the changes in the employee's situation as a whole and determine if all the changes, individual as well as within the employer's organization, work to create a new and distinct relation between the parties. Id.
D. Analysis
Like the Court in White v. Federal Express Corp., 729 F.Supp. 1536 (E.D.Va. 1990), aff'd, 939 F.2d 157 (4th Cir.1991), this Court would employ the "contract test" of the tests discussed above. It is the most faithful interpretation of the Supreme Court's judgment in Patterson. Having taken that position, it is clear to this Court that plaintiff has failed to state a genuine *285 issue of material fact so as to survive defendant's Motion for Summary Judgment.
There was no change in the contractual relationship between defendant and Williamson, the employee plaintiff claims was improperly made Account Intermediate, just as there would have been none had plaintiff's position been changed to Account Intermediate. The shift in position was nothing more than a lateral transfer: Williamson occupied the same office, remained an hourly employee, had the same supervisor, and enjoyed very little increase in pay compared to what plaintiff received.
Plaintiff argues that the tasks given Williamson in the Account Intermediate position were so different from her own as to create a new and distinct relationship. However, a change in tasks does not necessarily result in a change in contractual relationship. A change in level of responsibility is necessary such as a change from a clerk to a supervisor. See Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908 (4th Cir.1989). Plaintiff has failed to demonstrate such a change here.
Both sets of duties were clerical in nature. In fact, comparison of the two sets of duties shows that they were not greatly different. Plaintiff's tasks included accountability for paperwork through filing. Williamson was also required to perform filing tasks in the Account Intermediate position: (13) filing or distributing daily computer reports; (16) checking out, distributing, or filing weekly computer reports; (17) checking out, distributing, or filing monthly computer reports; and (18) inputting branch work daily. A review of plaintiff's duties also shows that she did more than simply act as a file clerk: (3) preparing information for typing insurance cancellation letters for auto and unit loans and typing letters; (5) analyzing auto and unit loans to determine which ones needed insurance and/or title letters and typing letters. Though there are differences between the two positions, there is not enough difference to conclude that a new and distinct relationship existed between defendant and any employee who moved from Account Junior to Account Intermediate.
Several of plaintiff's other arguments may be disposed of due to their lack of support in the record. Plaintiff's argument concerning the difference in pay is contradicted by her own trial exhibits as noted earlier. Plaintiff's statements regarding defendant's pay scale are also unsupported, and plaintiff fails to describe how the pay scale denominations of H01 and H06 impact on her case. Further, plaintiff's argument that one position would or would not have been covered by the Fair Labor Standards Act is completely without merit.
Plaintiff also argues that she would have had the opportunity for higher advancement in the company had she been changed to Account Intermediate and that this is an element of a new and distinct relationship. There is no evidence as to whether Williamson moved to higher positions in the company. Plaintiff offers the deposition of Sondra Folsom, another of defendant's employee's, who apparently moved from Account Junior to Account Intermediate and then to Account Senior. Even though Folsom may have moved to positions higher than Account Intermediate, it cannot be stated with any certainty that such movement was an element of any new contractual relationship between her and defendant by virtue of her position as Account Intermediate. See Dicker v. Allstate Life Insurance Co., 730 F.Supp. 111, 114 (N.D.Ill. 1989). Plaintiff has produced no support for the position that movement from Account Junior to Account Intermediate was a prerequisite to movement from Account Intermediate to Account Senior or that there was the possibility of movement beyond those positions. This Court will not engage in the sort of speculation necessary to arrive at the conclusion that plaintiff could have eventually moved up the company ladder had she been made an Account Intermediate, a position only marginally different from her own.
Plaintiff next argues that she did not have access to various pieces of office equipment which Williamson and Folsom did: specifically, a telephone, a computer terminal, and an adding machine. Williamson's Deposition indicates that she only had access to a computer terminal and shared a *286 telephone. Apparently she did have her own adding machine. She also had a stapler, paper clips, pencils, pens, and paper. Even assuming that all of this is true, the ludicrous nature of an inquiry into office supplies to determine whether a defendant has violated a plaintiff's civil rights is hardly worthy of this Court's attention, and certainly cannot constitute an element of a new and distinct relationship under § 1981.
Finally, plaintiff states that Williamson was allowed to work overtime while her own requests to do so were rejected. Even if this is true, plaintiff has not offered any argument that overtime work was somehow an incident of the position of Account Intermediate. This difference between plaintiff's work schedule and Williamson's could have many explanations, none of which this Court will entertain due, again, to the speculative nature of such an inquiry.
Plaintiff has failed to identify any genuine issue of material fact precluding the entry of summary judgment on her claim. Neither has she convinced this Court that the Civil Rights Act of 1991 should be applied retroactively so as to lighten her burden under the summary judgment standard.
IT IS, THEREFORE, ORDERED that defendant's Motion for Summary Judgment be, and the same hereby is, GRANTED.
NOTES
[1] As a practical matter, though, based upon the trial evidence as to the respective qualifications of Williams and plaintiff, a claim by plaintiff under the new sections quoted above would also surely fail.
[2] This Court will consider the applicable case law in the next section of this opinion.
[3] Two other courts of the Northern District of Illinois have since followed the Court in Mojica. See Graham v. Bodine Electric Co., 782 F.Supp. 83 (N.D.Ill.1992); and Bristow v. Drake Street, Inc., No. 87 C 4412, 1992 WL 14262 (N.D.Ill. Jan. 21, 1992).
[4] The Court is in agreement with those other courts which have considered the issue as to the clarity of the legislative history on this matter: there is no clarity. The two political parties appear to have split along party lines on the issue, leaving the matter for the courts to decide.
For example, in the Senate, an Interpretive Memorandum representing the views of many of the Republican sponsors of the bill stated with regard to retroactivity:
The bill provides that, unless otherwise specified, the provisions of this legislation shall take effect upon enactment and shall not apply retroactively.
137 Cong.Rec. S15485 (Oct. 30, 1991) (emphasis added). In response, Senator Kennedy, representing the Democratic sponsors stated:
It will be up to the courts to determine the extent to which the bill will apply to cases and claims that are pending on the date of enactment. Ordinarily, courts in such cases apply newly enacted procedures and remedies to pending cases. That was the Supreme Court's holding in Bradley v. Richmond School Board, 416 U.S. 696 [94 S.Ct. 2006, 40 L.Ed.2d 476] (1974).
And where a new rule is merely a restoration of a prior rule that had been changed by the courts, the newly restored rule is often applied retroactively, as was the case with the Civil Rights Restoration Act of 1988. That was what the courts have held in Leake v. Long Island Jewish Medical Center, 695 F.Supp. 1414 (E.D.N.Y.1988), aff'd., 869 F.2d 130 (2d Cir.1989), Ayers v. Allain, 893 F.2d 732 (5th Cir.1990), and Bonner v. Arizona Department of Corrections, 714 F.Supp. 420 (D.Ariz. 1989). But see DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377 (10th Cir. 1990). It was with that understanding that I agreed to be the principal Democratic sponsor of the Danforth-Kennedy substitute.
137 Cong.Rec. S15485 (Oct. 30, 1991). See also 137 Cong.Rec. H9530-31, H9548, and H9549 (Nov. 7, 1991).
[5] More specifically, the changes made to section 1981 appear to be substantive rather than procedural as in Holcomb, 651 F.2d at 234, and Koger, 497 F.2d at 706. Further, the Civil Rights Act of 1991 has an effective date like the regulation at issue in Varandani thereby distinguishing this case from Thorpe as well. 824 F.2d at 313.
[6] A few months prior to its decision in White, the Court of Appeals had also noted with some approval the district court's analysis in White in the case of Rountree v. Fairfax County School Bd., 933 F.2d 219 (4th Cir.1991).
[7] The decisions of several other Courts of Appeals are also worthy of note. See Wall v. Trust Co. of Georgia, 946 F.2d 805 (11th Cir.1991) (change from customer service representative to tax analyst did not implicate new and distinct relationship); Carter v. South Cent. Bell, 912 F.2d 832 (5th Cir.1990) (transfer from engineering to Planning Group was precondition to promotion not implicating § 1981); Harrison v. Associates Corp. of North America, 917 F.2d 195 (5th Cir.1990) (change in duty allowing individual to assign work for department and occasionally train new operators outside scope of Patterson); Bennun v. Rutgers State University, 941 F.2d 154 (3d Cir.1991) (change in status from associate professor to tenured professor did not implicate § 1981); Hull v. Cuyahoga Valley Joint Vocational School Dist. Bd. of Educ., 926 F.2d 505 (6th Cir.1991) (automatic renewal of contract does not rise to level of new and distinct employment relationship); McKnight v. General Motors Corp., 908 F.2d 104 (7th Cir.1990) (transfer of executive from accounting to manufacturing division in the same plant not a new and distinct contractual relationship); Mozee v. American Commercial Marine Service Co., 940 F.2d 1036 (7th Cir.1991) (change from crane operator to Gantry crane operator or leadman did not implicate § 1981).
[8] See James v. Int'l Business Machines Corp., 737 F.Supp. 1420 (E.D.Pa.1990) (promotion from non-management position to management position would not equate to a new and distinct relationship as plaintiff remained employee and outside the scope of Patterson); Frazier v. First Union Nat'l Bank, 747 F.Supp. 1540, 1550 (W.D.N.C.1990) ("normal career ladder progressions ... do not create a different employment relationship." Promotions from Secretary A to Program Coordinator and from Operations Analyst B to Training Analyst are not cognizable under Patterson); Adames v. Mitsubishi Bank, Ltd., 751 F.Supp. 1548, 1557 (E.D.N.Y.1990) ("routine `single-jump' promotions involving only higher pay or title increases are not actionable under Patterson." Change in grade of bank clerk or manager not actionable); Waller v. Consolidated Freightways Corp. of Delaware, 767 F.Supp. 1548 (D.Kan.1991) (promotion of dock manager to account manager not actionable as the move to account manager would have only entailed salary increase without concomitant changes in responsibilities or duties); and Guliford v. Beech Aircraft Corp., 768 F.Supp. 313 (D.Kan.1991) (promotion from Crew Metal Bond Worker to Crew Chief did not create new contract or fundamentally change relationship between employer or employee).
[9] See Wilburn v. Dial Corp., 724 F.Supp. 521 (W.D.Tenn.1989) (promotion to position of Production Manager from Senior Quality Control Chemist would rise to the level of a new and distinct relation as between plaintiff and defendant); Coleman v. Dow Chemical Co., 747 F.Supp. 146 (D.Conn.1990) (promotion from Senior Maintenance Technician to Supervisor formed a "new and distinct relation" between employer and employee); Guzman v. El Paso Natural Gas Co., 756 F.Supp. 994 (W.D.Tex. 1990) (promotion from corporate attorney to member of corporation's Board of Directors which owned a minority interest in plaintiff's company raised question of fact under § 1981).
| {
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} |
J. A33004/15 & J. A33005/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SIKWA STEEL, : No. 3273 EDA 2014
:
Appellant :
Appeal from the Judgment Entered October 17, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0012442-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL RUDD, : No. 1812 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, March 27, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0012443-2012
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 23, 2016
Michael Rudd and Sikwa Steel appeal from the March 27, 2014
judgments of sentence following their convictions of third-degree murder,
* Retired Senior Judge assigned to the Superior Court.
J. A33004/15 & J. A33005/15
conspiracy to commit third-degree murder, various violations of the Uniform
Firearms Act, and possession of an instrument of crime.1 We affirm.2
The trial court provided the following facts:
In the early morning hours of July 22, 2007,
Charles Tunstall (hereafter referred to as the
“decedent”), suffered a fatal gunshot wound to the
head on 54th and Arlington Street in Philadelphia.
Upon investigation of the crime scene, five fired
cartridge cases from a caliber .380 semi-automatic
pistol were recovered.
Dr. Marlon Osbourne, assistant medical
examiner, testified that the decedent suffered a
gunshot wound to the top of his forehead that was
two inches below the top of his head, in the center of
his forehead. He also stated that there was no
evidence of close-range firing on the skin around the
entrance wound. Dr. Osbourne testified that a
deformed bullet was recovered from inside the brain
itself and sent to ballistics.
Officer Ian Nance testified that he received a
radio call of a person screaming on July 22, 2007.
The officer arrived at 54th and Arlington Street and
found the decedent suffering from a gunshot wound
to the forehead. The officer also stated that, after
arriving on the scene, he came into contact with
someone claiming to be the decedent’s brother who
told him that someone started shooting at the
1
18 Pa.C.S.A. §§ 2502(c), 903(a)(1), 6106(a)(1), 6108, and 907(a),
respectively.
2
Appellants were tried in a joint trial before the Philadelphia County Court of
Common Pleas. The first five issues raised by both appellants are identical,
while Steel raises an independent sentencing issue; and we address both
appellants’ issues in this memorandum. Steel’s brief incorporates by
reference the argument section of Rudd’s brief. We call counsel’s attention
to Pa.R.A.P. 2137, and note that such practice is discouraged without
previously notifying this court.
-2-
J. A33004/15 & J. A33005/15
decedent and the decedent tried to pull out his
weapon.
The decedent’s mother, Karen Tunstall,
testified she knew Michael Burton and that he
grabbed her to prevent her from seeing the
decedent’s dead body out on Arlington Street right
after the murder.
Michael Burton was called by the
Commonwealth as an eyewitness at trial. Prior to
trial, Mr. Burton gave a statement to homicide
detectives that he was present when the decedent
was shot and killed. He stated to detectives in
summary that he saw “Seek” and “Mu”, identified as
nicknames for the defendants Sikwa Steel (Seek)
and Michael Rudd (Mu), shoot at the decedent and
flee the scene. He stated to detectives that he “saw
Seek raise a gun and shoot [the decedent] one time
in the head.” He then stated that he “saw [the
decedent] drop to the ground . . . and saw Mu point
a gun in [the decedent’s] direction and Mu fired his
gun four or five times. After Mu fired his gun, both
[Mu] and Seek ran toward the alley in the back of
the Chinese store.” Mr. Burton also identified both
defendants as the shooters from a photo array. In
his statement, he also told the detectives that he
grabbed the decedent’s mother to keep her from
seeing the decedent’s body on the street.
At trial, Mr. Burton stated that he was coerced
into giving the answers in his statement. On
cross-examination, he stated that he gave the
statement to homicide detectives after being
arrested for possessing drugs and a firearm.
Mr. Burton stated that the homicide detectives
coerced him by threatening to charge his mother
with conspiracy on his drug charge and then he
proceeded to make up the answers in his statement.
He further stated that the homicide detectives are
the ones who gave him the names of Sikwa Steel
and Michael Rudd.
-3-
J. A33004/15 & J. A33005/15
Detective John Cahill testified that he was the
detective that interviewed Michael Burton and took
his statement back in 2007. The detective further
testified that Mr. Burton reviewed and signed the
statement while also signing the identifications he
made of the defendants on the photo arrays.
Detective Cahill stated that he was not aware of any
of the details surrounding Mr. Burton’s arrest on a
separate narcotics case.
....
Officer Kevin Palmer testified to coming into
contact with a person named Jimmy Montalmont on
December 19, 2007. The officer stated that he
placed Mr. Montalmont into police custody for
possession of marijuana and submitted the
marijuana for investigation rather than arresting him
because Mr. Montalmont had indicated he had
information. Officer Palmer testified that he took
Mr. Montalmont to homicide and Mr. Montalmont
volunteered information about the murder of the
decedent in this case. Officer Palmer had no prior
knowledge of this incident.
Jimmy Montalmont was called by the
Commonwealth as an eyewitness at trial. Prior to
trial, Mr. Montalmont gave two statements to
homicide detectives indicating that he was present
when the decedent was shot and killed. In 2007, he
stated to detectives, “When I got to 54th and
Arlington, I seen a boy named Seek (Sikwa Steel)
come out of the Chinese store and fire two shots at
[the decedent], then I seen a boy named Mu
(Michael Rudd) come out of the pizza shop in the
middle of the block and he shot at [the decedent]
one time and [the decedent] went down. [The
decedent] went down on the sidewalk across from
the Chinese store.” Mr. Montalmont also identified
both defendants as the shooters from a photo array.
He also stated to detectives that he saw Mu
(Michael Rudd) fire a revolver and Seek
(Sikwa Steel) fire a semi-automatic.
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J. A33004/15 & J. A33005/15
In 2012, Mr. Montalmont stated to detectives
that Seek (Sikwa Steel) was the person who shot the
decedent. He stated to detectives that Seek fired his
gun once at the decedent up close and four times
total. He further stated that Mu (Michael Rudd) was
shooting at the decedent also but he did not know
whether or not he actually hit the decedent because
Mu (Michael Rudd) was not as close as Seek
(Sikwa Steel) when he was firing.
At trial, Mr. Montalmont denied giving the
answers in either of the statements and stated that
he never spoke to homicide detectives about this
case. In order to show Mr. Montalmont’s state of
mind during the time of the statement and why he
denied making the contents of the statement at trial,
the Commonwealth offered into evidence
Mr. Montalmont’s comment at the time the
statement was given that “these guys will have me
killed and I will be labeled a snitch.” On
cross-examination, the defense questioned
Mr. Montalmont about him already being in custody
on an open case at the time he gave the statement
in 2007 and whether police told him he would
receive a lesser sentence on a parole violation if he
gave the statement in 2012. Mr. Montalmont denied
talking to police and giving either of the statements
but stated it was true that he was offered lesser of a
sentence on the parole violation if he gave a
statement in 2012.
Detective John Verrecchio testified that he was
the assigned detective in this case. He stated that
he had applied for an arrest warrant for the
defendants in 2007 which was denied. He then
indicated that he applied for an arrest warrant for
the defendants after receiving the second interview
of Jimmy Montalmont in 2012 and it was approved.
The detective reviewed the affidavit of probable
cause which stated Sikwa Steel shot at the decedent
using a revolver and Michael Rudd shot at the
decedent using an automatic. Detective Verrecchio
testified that he may have mistakenly reversed the
type of weapon fired by each defendant.
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J. A33004/15 & J. A33005/15
Sergeant Daniel Ayres testified that he
responded to the crime scene on July 22, 2007 and
searched the area for any weapons. Sergeant Ayres
stated that he came into contact with the decedent’s
brother, Brian Tunstall, who said he watched the
decedent get shot and that the decedent had a gun
in his possession at the time. Detective Frank Mullen
testified that he visited the hospital when the
decedent was in critical condition. He stated that the
decedent’s brother denied any conversation with
Sergeant Ayres about the shooting.
Kenneth Lay testified as an expert in firearms
and ballistic evidence. Mr. Lay indicated he was
given five fired cartridge cases and one bullet
specimen. He stated that the five fired cartridge
cases were caliber .380 automatic and the bullet
specimen taken from the medical examiner’s office
was a caliber .38/9 millimeter. He testified that the
bullet specimen recovered from the body of the
decedent was most likely a .380 caliber automatic
even though he could not prove that scientifically.
Special Agent Patrick Mangold testified that he
conducted an interview with Jimmy Montalmont on
December 18, 2007 in the homicide unit. Special
Agent Mangold testified that he did not make any
promises to Mr. Montalmont nor did he threaten him.
Detective Thomas Gaul was re-called to testify.
He stated that he interviewed Jimmy Montalmont in
2012 and did not make any promises to him.
Detective Gaul testified that he did not threaten
Mr. Montalmont and that Mr. Montalmont was very
forthcoming with the information he gave in the
statement in 2012.
Trial court opinion, 11/13/14 at 2-6 (citations to record omitted).
Appellants were convicted of the aforementioned charges on
January 21, 2014. On March 27, 2014, Rudd was sentenced to an aggregate
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J. A33004/15 & J. A33005/15
of 10-20 years’ imprisonment, to be followed by 5 years’ probation. Rudd
filed a post-sentence motion on March 28, 2014. The trial court denied
Rudd’s post-sentence motion on June 18, 2014. On June 19, 2014, Rudd
filed notice of appeal. The trial court ordered Rudd to produce a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)
on September 10, 2014. Rudd complied with the trial court’s order, and the
trial court has filed an opinion pursuant to Pa.R.A.P. 1925(a).
On October 17, 2014, the trial court sentenced Steel to an aggregate
15-30 years’ imprisonment. Steel filed a timely notice of appeal on
November 14, 2014. On December 15, 2014, the trial court ordered Steel to
produce a concise statement of matters complained of on appeal pursuant to
Rule 1925(b). Steel complied with the trial court’s order, and the trial court
issued an opinion pursuant to Rule 1925(a).
Appellants raise the following issues for our review:
I. Did the trial court err when it denied
[Appellants’] motion for a judgment of
acquittal, where [Appellants’] conviction was
supported solely by the out-of-court
statements of witnesses who recanted their
accusations at trial, in violation of the due
process guarantees provided by the Fourteenth
Amendment to the United States Constitution
and by Article I, Section 1 of the Pennsylvania
Constitution?
II. Did the trial court err when it failed to
supplement the standard jury instructions with
the special instructions proposed by the
defense, in a case where the only evidence
against [Appellants] consisted of the out-of-
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J. A33004/15 & J. A33005/15
court statements of alleged eyewitnesses who
recanted their prior accusations under oath at
trial?
III. Did the trial court err when it denied
[Appellants’] request to redact that portion of a
Commonwealth witness’ out-of-court
statement, wherein the witness stated that, “if
this [the witness cooperation] gets out, I will
be killed,” where no evidence suggested that
anyone had ever attempted to intimidate the
witness and where the admission of this
portion of his statement unfairly suggested to
the jury that the witness had recanted his
accusation, at trial, due to intimidation?
IV. Did the trial court err when it overruled
[Appellants’] objection to the Commonwealth’s
summation, where the prosecutor told the jury
that a Commonwealth witness changed his
story because he was afraid that it would “get
out in state prison that he was a witness,”
where no evidence indicated that the witness
harbored such fears and where the
prosecutor’s argument was not a fair response
to anything argued by the defense?
V. Did the trial court err when it overruled
[Appellants’] objection to the Commonwealth’s
improper vouching, when the prosecutor
repeatedly told the jury that “the statements
that they [the alleged eyewitnesses] gave to
the homicide detectives are the truth”?
VI. Did [the] trial court abuse its discretion when it
gave a appellate [sic] a much harsher sentence
than his co-defendant without consistent and
conclusive evidence as to who fired the shot
that caused the death of the victim?[3]
Rudd’s brief at 5-6; Steel’s brief at 7 (Issue VI).
3
Issue VI is exclusive to appellant Steel.
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J. A33004/15 & J. A33005/15
I.
In the first issue raised for our review, appellants call into question our
supreme court’s decision in Commonwealth v. Brown, 52 A.3d 1139 (Pa.
2012).4 Appellants aver that Brown was wrongly decided “as a matter of
federal constitutional law.” (Appellants’ brief at 17.)5 Under the
Pennsylvania constitution, the Brown decision, like any decision from the
Pennsylvania Supreme Court, is binding on this court. Commonwealth v.
Prout, 814 A.2d 693, 695 n.2 (Pa.Super. 2002), citing Pa. Const. Art. V,
§ 1; Commonwealth v. Chimenti, 507 A.2d 79 (Pa. 1986). Appellants
concede that their argument is contrary to the Brown court’s holding;
however, we note that, pursuant to Pa.R.A.P. 302(a), appellants have
adequately preserved the issue for potential reconsideration by our supreme
court or federal review. (See appellants’ brief at 17-18.)
II.
In their second issue, appellants aver that the trial court erred when it
refused to provide the jury with special instructions provided by the defense
relating to out-of-court statements of witnesses, which were recanted during
trial. (See appellants’ brief at 27.)
4
In Brown, our supreme court held that a defendant’s due process rights
are not violated if out-of-court statements, which are later recanted at trial
by the declarant, furnish legally sufficient evidence to sustain the
defendant’s conviction. Id. at 1171.
5
For the purposes of this memorandum, “appellants’ brief” shall refer to
Rudd’s brief.
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J. A33004/15 & J. A33005/15
Our standard of review in assessing a trial
court’s jury instructions is as follows:
[W]hen evaluating the propriety of jury
instructions, this Court will look to the
instructions as a whole, and not simply
isolated portions, to determine if the
instructions were improper. We further
note that, it is an unquestionable maxim
of law in this Commonwealth that a trial
court has broad discretion in phrasing its
instructions, and may choose its own
wording so long as the law is clearly,
adequately, and accurately presented to
the jury for its consideration. Only
where there is an abuse of discretion or
an inaccurate statement of the law is
there reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014), quoting Commonwealth v.
Trippett, 932 A.2d 188, 200 (Pa.Super. 2007) (citation omitted). Abuse of
discretion is defined as “not merely an error of judgment; rather discretion is
abused when the law is overridden or misapplied, or the judgment exercised
is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence or the record[.]” Antidormi, 84 A.3d at 745,
citing Commonwealth v. Boxley, 948 A.2d 742, 746 (Pa. 2008),
cert. denied, 555 U.S. 1003 (2008) (citation omitted).
We have typically “granted trial courts broad discretion in phrasing a
jury charge. Our main concern is that the charge clearly, adequately, and
accurately presents the law to the jury for its consideration.”
- 10 -
J. A33004/15 & J. A33005/15
Commonwealth v. Collins, 810 A.2d 698, 701 (Pa.Super. 2002) (citation
omitted).
The trial court is not required to accept the language
of the point submitted by counsel but rather is free
to select its own form of expression. The only issue
is whether the area [covered by the point for charge]
is adequately, accurately and clearly presented to
the jury for consideration.
Commonwealth v. Bryant, 462 A.2d 785, 789 n.2 (Pa.Super. 1983),
quoting Commonwealth v. Boone, 429 A.2d 689, 694 (Pa.Super. 1981)
(citation omitted).
The trial court stated that it was “not required to supplement the
standard jury instructions with the special instructions proposed by
[appellants.] There is no requirement for a special supplemental instruction
that the only evidence consisted of the out-of-court statements of
eyewitnesses who recanted their prior statements at trial.” (Trial court
opinion, 11/13/14 at 7.) After a careful review of the trial court’s
instructions to the jury in their entirety, we find that the point of charge
relating to determining credibility was covered adequately and accurately
and was clearly presented to the jury pursuant to Bryant.
The trial court’s jury instructions relating to credibility were as follows:
You have heard evidence that
Jimmy Montalmont and Michael Burton made
statements to homicide detectives on an earlier
occasion that were inconsistent with their present
testimony in this courtroom. You may, under the
law, if you choose, regard this evidence as proof of
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J. A33004/15 & J. A33005/15
the truth of anything that the witness said in the
earlier statement.
The way that I say it to bring it down to
everyday terms is they gave a statement that is
outside the courtroom that the detectives testified to
and the witnesses were cross-examined about. You
could take that statement as substantive evidence,
as if it were said in the courtroom just like what they
said in the courtroom. So you have what they said
on the stand and the statement and you have to
decide but that is just as powerful evidence, the
statement, as the testimony in the courtroom. You
may also consider this evidence to help you judge
the credibility and weight of the testimony given by
the witness at this trial. When you judge the
credibility and weight of testimony, you are deciding
whether you believe the testimony and how
important you think the testimony is.
You should examine closely and carefully and
receive with caution the statement of
Jimmy Montalmont that he gave to homicide
detectives if you find that he believed he would
receive a benefit on his open case or on his parole
because he gave two statements. At one point he
had an open case. At a second point, he was in
state custody and he had a minimum and maximum
sentence -- in exchange, if he believed, in his mind,
that he would receive a benefit in exchange for his
statement.
You should examine closely and carefully and
receive with caution the statement of Michael Burton
to homicide detectives if you find that he believed he
would receive a benefit on his open cases in
exchange for his statement.
Notes of testimony, 1/17/14 at 42-44.
Appellants have failed to establish an abuse of discretion in the trial
court’s refusal to provide a supplemental instruction relating to the
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J. A33004/15 & J. A33005/15
eyewitnesses’ testimony. As the trial court noted, “it was up to the jury as
fact-finder to weigh the credibility of the witness’ statements and their
testimony at trial. Therefore, it was not error for the trial court to refuse to
give the proposed supplemental instruction to the jury.” (Trial court opinion,
11/13/14 at 8.)
III.
In appellants’ third issue on appeal, they aver that the trial court erred
when it denied appellants’ request to redact a portion of Montalmont’s
statement that was read in court, in which Montalmont stated that “if his
cooperation ‘gets out, [he] will be killed.’” (Appellants’ brief at 37.) The
trial court cited our supreme court’s decision in Commonwealth v. Ragan,
645 A.2d 811, 818 (Pa. 1994), which stated that a witness’ state of mind
when making a statement that is later recanted to the police is relevant. We
agree with the trial court’s analysis that the instant appeal is similar to
Ragan, and we accordingly affirm based on the trial court’s opinion for this
issue. (See trial court opinion, 11/13/14 at 9.)
IV.
In the fourth issue for our review, appellants aver that the trial court
erred when it overruled appellants’ objection to the Commonwealth’s
repeating to the jury that Montalmont was “afraid that it would ‘get out in
state prison that he was a witness.’” (Appellants’ brief at 39, citing notes of
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J. A33004/15 & J. A33005/15
testimony 1/16/14 at 201-202.) When reviewing a claim for prosecutorial
misconduct, we use the following standard of review:
Our standard of review for a claim of prosecutorial
misconduct is limited to whether the trial court
abused its discretion. In considering this claim, our
attention is focused on whether the defendant was
deprived of a fair trial, not a perfect one. Not every
inappropriate remark by a prosecutor constitutes
reversible error. A prosecutor’s statements to a jury
do not occur in a vacuum, and we must view them in
context. Even if the prosecutor’s arguments are
improper, they generally will not form the basis for a
new trial unless the comments unavoidably
prejudiced the jury and prevented a true verdict.
Commonwealth v. Bedford, 50 A.3d 707, 715-716 (Pa.Super. 2012)
(en banc); appeal denied, 57 A.3d 65 (Pa. 2012) (citations omitted). See
also Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005)
(prosecutorial misconduct does not occur unless the jurors form a fixed bias
and hostility toward the defendant based on the prosecutor’s comments).
When specifically considering a prosecutor’s comments to a jury during
closing arguments, this court has stated, “It is well settled that a prosecutor
has considerable latitude during closing arguments and his arguments are
fair if they are supported by the evidence or use inferences that can
reasonably be derived from the evidence.” Commonwealth v. Caldwell,
117 A.3d 763, 774 (Pa.Super. 2015) (en banc) (citations omitted).
Appellants objected to the following from the Commonwealth’s
summation:
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J. A33004/15 & J. A33005/15
[Mr. Montalmont] wanted nothing to do with this.
He denied everything. He denied being arrested for
marijuana. Everything about him was a denial.
Everything about him was to distance himself from
the identifications that he made of these two people.
Why? Because he has to go back to state prison for
a long time and if it gets out in state prison that he
was a witness--
....
He has to worry about his own life for the next 6 to
16 years. He has to worry about his own protection
and if it gets out in state prison that he was a
witness in a homicide, that he was a Commonwealth
witness in a homicide, that he identified two people
and said I saw them commit a homicide, he is going
to have a lot of problems in his life.
Notes of testimony, 1/16/14 at 201-202. We agree with the trial court’s
analysis both during trial and in its opinion that the assistant district
attorney’s comment was “in response to some things that were said by the
defense.” Specifically, Rudd’s counsel indicated during his closing argument
that Montalmont’s own criminal issues might have motivated Montalmont’s
statement to the police. (See notes of testimony, 1/16/14 at 150-154.)
Moreover, as the Commonwealth noted, Montalmont voiced his
concerns to the police about the safety and well-being of both himself and
his family in light of his providing information to the police. Montalmont was
concerned that if knowledge of his providing information to the police got
out, he would be killed. (Notes of testimony, 1/15/14 at 168.) Montalmont
also requested that he and his family be moved because Montalmont was
afraid of being labeled as a “snitch” and killed. (Id. at 169.) Based on this
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J. A33004/15 & J. A33005/15
testimony, which was admitted by the trial court, the assistant district
attorney’s comments regarding Montalmont’s fear for his and his family’s
safety were supported by the evidence. (See id. at 139.) Therefore, the
prosecutor’s comments during the Commonwealth’s summation were not
improper, and this issue has no merit.
V.
In their fifth and final shared issue on appeal, appellants aver that the
trial court erred by overruling appellants’ objection to improper vouching by
the Commonwealth during closing arguments. Specifically, appellants allege
that the Commonwealth assured the jury that statements from several of
the Commonwealth’s witnesses were truthful. (See appellants’ brief at 41.)
It is well settled that vouching is a form of prosecutorial misconduct,
occurring when a prosecutor “places the government’s prestige behind a
witness through personal assurances as to the witness’s truthfulness, and
when it suggests that information not before the jury supports the witness’s
testimony.” Commonwealth v. Reid, 99 A.3d 427, 447 (Pa. 2014), citing
Commonwealth v. Williams, 896 A.2d 523, 541 (Pa. 2006), cert. denied,
549 U.S. 1213 (2007).
In determining whether the Commonwealth improperly vouched for
the credibility of two of its witnesses in this case, we find Commonwealth
v. Judy, 978 A.2d 1015 (Pa.Super. 2009), to be instructive. In Judy, this
court stated that,
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J. A33004/15 & J. A33005/15
It is settled that it is improper for a
prosecutor to express a personal belief
as to the credibility of the defendant or
other witnesses. However, the
prosecutor may comment on the
credibility of witnesses. Further, a
prosecutor is allowed to respond to
defense arguments with logical force and
vigor. If defense counsel has attacked
the credibility of witnesses in closing, the
prosecutor may present argument
addressing the witnesses’ credibility.
Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d
501, 544 (2005) (internal citations and quotations
omitted).
Thus, proper examination of the comments of the
assistant district attorney in closing requires review
of the arguments advanced by the defense in
defense summation.
Judy, 978 A.2d at 1020.
Here, appellants claim that the following statements by the
Commonwealth during its closing statement to the jury were improper
vouching:
[T]hey are going to tell the truth because
the last thing anyone wants to do when
they are already in hot water is lie to a
homicide detective. If you think you are
in trouble now, what do you think is
going to happen if a homicide detective
finds out you are lying?
(Notes of testimony, 1/16/14 at 204.)
....
Who signs their name in the presence of
the police that many times unless what
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J. A33004/15 & J. A33005/15
they are saying is true, unless they are
ready to stand by what they are saying
at that time?
[(Id.)]
Appellants’ brief at 41.
During the closing statement for the defense, counsel for both
appellants called the Commonwealth’s witnesses’ credibility into question
several times. At one point, Rudd’s counsel said, “There is one fact that is
100 percent clear in this case; the District Attorney’s supposed eyewitnesses
are liars.” (Notes of testimony, 1/16/14 at 140.) Steel’s counsel, during his
closing argument, referenced Mr. Burton’s statement:
You know that Mr. Burton then is not reinterviewed
at any point in time in five years. Mr. Burton comes
into court because he is subpoenaed. He tells the
DA out in the hallway, that statement, I lied. It is
bogus, in his words, and he gets on the stand and he
has never testified under oath in this case before,
and what does he tell you? It is all a bunch of lies.
Id. at 178-179.
These excerpts from the defense’s closing arguments clearly indicate
that the Commonwealth’s witnesses’ credibility has been called into
question. Pursuant to Judy, the Commonwealth has the ability, during its
closing statement, to make commentary regarding the credibility of its own
witnesses, without improperly vouching. Taken within the context of his
entire closing statement, the Commonwealth’s attorney did not personally
attest to the truthfulness of the witnesses’ statements--but rather
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J. A33004/15 & J. A33005/15
commented on their credibility. Therefore, appellants’ fifth issue is without
merit.
VI.
In his sixth and final issue, Steel avers that the trial court abused its
discretion by sentencing him to a longer prison term than his co-defendant,
Rudd.
A challenge to the discretionary aspects of
sentencing is not automatically reviewable as a
matter of right. Commonwealth v. Hunter, 768
A.2d 1136 (Pa.Super. 2001)[,] appeal denied, 796
A.2d 979 (Pa. 2001). When challenging the
discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by
including in his brief a separate concise statement
demonstrating that there is a substantial question as
to the appropriateness of the sentence under the
Sentencing Code. Commonwealth v. Mouzon, 812
A.2d 617 (Pa. 2002); Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987); 42 Pa.C.S.A.
§ 9781(b); Pa.R.A.P. 2119(f). “The requirement that
an appellant separately set forth the reasons relied
upon for allowance of appeal ‘furthers the purpose
evident in the Sentencing Code as a whole of limiting
any challenges to the trial court’s evaluation of the
multitude of factors impinging on the sentencing
decision to exceptional cases.’” Commonwealth v.
Williams, 562 A.2d 1385, 1387 (Pa.Super. 1987)
(en banc) (emphasis in original).
Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004).
Steel failed to include a Rule 2119(f) statement in his brief. “A failure
to include the Rule 2119(f) statement does not automatically waive an
appellant’s argument; however, we are precluded from reaching the merits
of the claim when the Commonwealth lodges an objection to the omission of
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J. A33004/15 & J. A33005/15
the statement.” Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa.Super.
2006), appeal denied, 940 A.2d 363 (Pa. 2007), citing Commonwealth v.
Hudson, 820 A.2d 720, 727 (Pa.Super. 2003), appeal denied, 844 A.2d
551 (Pa. 2004).
In the instant case, the Commonwealth objected to Steel’s lack of a
Rule 2119(f) statement:
Rather, Steel was required to provide a statement
demonstrating a substantial basis [for] appellate
review. Pa.R.A.P. 2119(f). His failure to do so is a
fatal defect that renders his claim non-cognizable.
Commonwealth’s brief at 21 (citations omitted). Because the
Commonwealth has objected to Steel’s failure to include a Rule 2119(f)
statement in his brief, we cannot consider the merits of appellant’s claim, as
we are precluded from doing so.
Judgments of sentence as to both appellants are affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2016
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l Circulated 01/29/2016 04:28 PM
JN THE COURT OF COMMON PLEAS OF PHDJAD~LPHl1\
CRIMINAL TRIAL DIVJSJON
COMMONWEALTH. OF PENNSYLVANIA CP-51-CR-OOl 2,UJ-2012
MICHAEL HUDl>
FILED
OPfNION NOV 1 3 2014
Dcfino-Na~tasi. 1. Criminal Appeals Unit
First Judicial District of PA
PROCEDllRAL HISTORY
On Junuary 21. 2014. Michael Rudd (hereafter referred lo as the .. Appellant"). ,, ..as found guilty
by a jury. presided over hy the Honorable Ruse Mari? De Fino-Nastasi, of 3"1 Degree Murder. Conspiracy
to CnmmitJ'.i Degree Murder, V10httinn of the Uniform Firearms .\d Section 611111 (\'UFA 6106),
Violauon of the Uniform Firearms Act Section 6108 (Vt !FA 61 US J and I'osscssron of an Instrument of
Crime (PlC)
On March 2 ,, 20 I I Appellam was sentenced to kn ( IO) to twcnt)- ( 20) ve.irs state confinement
for the 3111 Degree Murder conviction, ten r I 0) to twenty t20) year, state confinement, to run concurrently.
for the Conspiracy fl, Commit 3':i Degree t-. lurder com iction, and five l5 l years reporting probation. co run
consecutively, on the \'UFA 6 I 06 conviction. There was no further sentence for the count of VUF A
6108 and PIC.
On I\ larch ~S . .:!IJ 14, Appellant tibJ post-sentence motions th.it were denied after ·1 he,mng un
June 18. 2014.
Oil J1111c It), ~1) I-~. Appelknu Ii led the Instant Appeal.
On September IS, ::'.014, Appellnnt tiled a 19:Sthl Sratcmeut of Muuers l"<•mplaim·d 1.1fu11
Appeal
.41
T
f'ACTS
In the! early rnormng hours of Julv 22, 2007, Charles Iunstall (hereafter referred to as the
"decedent"), suffered a fatal gunshot wound to the head on 54111 and Arlington Street in Philadelphia.
(Notes of'Testirnony, Volume I, Jan. 14, 20 I 4, Page J 11 ). Upon investigation of the crime scene, CiH!
fired cartridge cases from a caliber .JSO semi-automatic pistol were recovered (N. L, Yul. J, Jun. 16.
2014, ·P-52).
Dr. Marlon Osbourne, assrstant medical exanuner, tesufied that the decedent suffered .1 gunshot
wound to the cop of his forehead that was two inches below the lop of his head. in the center of his
forehead. I le also staled that there was no evidence of close-range firing on the skin around the entrance
wound. Dr. Osbourne testified that a deformed bullet was recovered from inside the brain itself and sent
to ballistics (N.T.. Vol. I. Jan. I!, 2111.t, 92-107).
Officer Ian Nance tesufied that he receiv ed a radio call of a person screaming on July 22, 2007.
The officer arnved at 5-l'h and Arlmgton street and found the decedent suffering from a gunshot wound to
the forehead. The officer also stated that, after arriving on thc scene, he came into contact with someone
claiming to be the decedent's brother who told him that someone started shooung at the decedent and the
dece<lenttriedlopullouthisweapon. (N.T. Vol. !,Jan. 14,2014, 108-130).
The decedent's mother. Karen Tunstall, testified that she knew Michael Burton and that he
arabbed her to pre, ent her from seeing the decedent's dead body out on Arlington Street I ight after the
murder. (N.T .. Vul. I, Jan. I 4, 20 I t, 89-91 ).
Michael Burton \\.ls called hy the Cornmonwealth JS no eyewitness at trial. Prior to trial, Mr,
Burton t;J\.C a statement to homicide detectives that he v.. as present when the rlccedcnt was -;h11t and
killed. Ile stared to detecnves in summary that he sU\\ 'Seek" and "Mu". idenufied as nickuurnes for the
defendants Sikwa Stec! (Seek) and ~fkhJcl Rudd (MuJ. sh,,,11 at the decedent a11d llee the scene. I Ii:
stated to detectives that he "saw Seek r.use a gun and shoot [the decedent] one time in the head." I le then
stated that he "saw [the decedent] drop to the ground .and saw Mu point a gun in (the decedent's!
direction and Mu tired his gun four or five times After Mu fired his gun. both [Mu] and Seek ran toward
the alley in the back of the Chinese store." ~Ir. Burton al st, identified both dclendsnts as the shooters
from a photo array. In his statement he also told the detectives that he grabbed the decedent's mother to
kecpht.·rfrumseeingthc~kceJcnt1.-.b\.1Jyonlheslree1 (NT., Vol.1,Jun.14,201,l, 148-l<>-I)
At trial. Mr. Burton stated that he was coerced into giving. the answers in his statement. On cross-
examination, he stated that he gave the statement to honnctde detectives after being arrested for
posscssmg drugs and a firearm. Mr. Burton slated that the homicide detectives coerced him by
threatening to charge his mother with conspiracy on his drug charge and then he proceeded to make up
the answers in his statement. lie further staled that the homicide detectives are the ones who gave him the
names t I Sikwa Steel and Michael Rudd. (N.T., Vol. 2, Jan. 15, 2014, 1-18).
Detective John Cahill testified that he was the detective that mterv iewed Michael Burton and took
his statement back in 2007. The detective further testified that Mr. Burton re-viewed and signed the
statcrnent w hrle also signing the idenrifications he made of the defendants on the photo arrays. Detccuve
Cahill slated that he was 1101 aware of any of the details surrounding Mr. Burton's arrest on a separate
narcotics case. (N.T., Vol. 2. Jan. 15. 2014. Jl-54).
Officer Clyde Frasier testified that he arrived at the crime scene un 3·J 7 a.rn. on July '.!2, '.!007.
Officer Frasier stated that he recovered five .180 automatic caliber fire cartridge cases from the location
of the crime scene. 1N.T.. Vul. 2, Jan. 15, ~OJ.ct, 55-87),
Officer Kc, in Palmer testified to coming into contact with a person named Jimmy Montalmoru
on December 19, 2007. 'lhe officer stated that he placed Mr. Montalmont into polrcc custody for
possession ~if murijuana und submitted the marijuana for invL·~1,ga1i1in rather than arresting him because
Mr, r-.111111.ilrn11nt had indicated ht: had inforruatron Officer Palmer te),lificd th,1t he took i\11 Montalinont
to homicide and Mr. Montalmont volunteered information about the murder of the decedent inthis case
Officer Palmer had no prior knowledge of this incident (N r.. Vol.:!, Jan. 15. :2014, 88-104)
Jimmy Montalmont was called by the Commonwealth as an eyewitness ot trial. Prior to trial. Mr.
Montahnont gave two statements to homrcide detectives indicating that he was present when the decedent
was shot anJ killed. In 2007. he stated to detectives, "When I got to 5,ttf, and Arlington. l seen a boy
named "ied, ('>i~. wa Steel) come out of the Chinese store and fire two shots at [the decedent], then I seen a
bo) named l\lu (Michael Rudd) come out of the pizza shop in the middle of the hlock and he shot at f the
decedent] one time and lthe decedent] went dow n [The decedent] went down on the sidewalk across
from the Chinese store." Mr, Montalmont also identified both defendants as the shooters from a photo
array. I le also stated to detcctiv cs that he saw Mu (Michael Rudd) lire a revolver and Seek (Sikwa Steel J
fire a semi-automatic. (N .T., Vol. 2, Jan. 15. 20 I 4, 120-170 ).
In 20 I :2. vlr, t\1ontalmont stated to detectives that Seek (Sikwa Steel) was the person who shot the:
decedent. H1- stated to detectives that Seek fired his gun once al the decedent up close and four times
tornl. I le further stated that Mu (Michael Rudd) \, J.S shooting at the decedent also hut he did not know
whether ur nut he uctually hit the decedent because Mu (Michael Rudd),\ as nor as close as Seek (Sikwa
Steen \\ hen he was firing. (N T .• Vol 2, Jan I 5. 20 I ·l. 186-1 IJO ).
J\l trial. l\lr. Montalmont denied giving the answers in either of the statements and stated that he
never spoke Ill homicide detectives about ttus case. ( N.T •• Vol. 2, Ian. I 5 ~O 1-t, 174-190) In order to
shov, Mr. Montalmont's state of mind durin~ the time 11fthc statement and why he denied rnaking the
contents of the statement nt trial, the Commonweahh offered i111, 1 ev idcnce Mr I\ tonralmont ' ~ comment at
the time the statement was given that "these guys will ha, c me killed and I will be labeled a snitch."
(N r. \\11. 2. Jan. 15. ~01,i, 120-1701. l in cross-examinerion, the defense questioned Mr Montalmont
about him already being in custody on an open case :11 the time he gave the statement i11 ~007 and whether
potice tuld him he \\ ould receive a lesser erucncc un 3 parole violation , f he gave the statement in 2tJ I~.
Mr. Montulmont denied talking to police and giving either of the statements but stated it was true lhat he
was offered lesser of a sentence on the parole violation 1f he g.tvc a statement rn 2U 12. (N r.. Vol 2. Jan.
15,2014. 170-180}.
Detective J1..1hn Verrecchio testified that he was the ,1s:,1gned detective in tlus case He stated that
he had applied fo1 an arrest warrant for the defendants in :!ll07 which was denied. I le then indicated that
he applied for an arrest warrant for the defendants after rccen ing the second in terv iew of J irnrny
Montalrnont in 21)12 and it was approved, The detective reviewed the affidavit of probable cause wluch
stated Sikwa Sled shot at the decedent using a revolver and Michael Rudd shot at the decedent using an
automatic. Detective Verrecchio testified that he may have mistakenly reversed the type of weapon tired
by each defendant. (N.T .• vot.z.Jan. l5,201-t 194-214).
Sergeant Daniel r\)res testified that he responded to the cnrne scene on July ~2. 2007 and
searched the area for any weapons Sergeant Ayres stated that he came 'into contact with the decedent s
brother. Brian Tunstall. who said he watched the decedent get ~hut and that the decedent had a gun in his
possession at the time. Detcctiv e Frank Mullen testified that ht: visited the hospual when the decedent
was in critical condition. He stc.1led that the decedent's brother denied an) conversation w ith Sergeant
Ayres about the sbootiug, {N.T., Vol.:!. Jan. 15. ~014. ~l6-232).
Kenneth La) testified as an expert in firearms and ballistic evidence Mr L.1) indicated he was
given fi, e fired cartridge cases and one build specuncn He stuted that the five fired cartridge cases were
caliber .381) automatic and the bullet specimen taken from the medical examiners office was a caliber
.3'6/9 millimeter. He testified that the huller specunen recov ered from the b11J} of the decedent was most
likely a . .lSO caliber automatic even though he could nor rr\1vc that scienttfically (N.-1 , Vol J. Jan. 16,
~01·1. JG-5~).
As
Special Agent Patrick Mangold testified that he conducted an interview with Jimmy Montarnont
on December 18. 2007 in the homic ide unit Special Agent Mangold testified that he did not make an)
promises to Mr. Montalmonr nor did he threaten him.
Detective Thomas Gaul was re-called to tcsti ()'. He stared that he interview ed Jimmy
Montalmont in '20 I 2 and did not make any promises to him. Derecnv e Gaul tesuficd that he did not
threaten I\ Ir. Montalrnont and that Mr, I\ lontalmont was , cry forthcom ing with the information he gan· in
the statement in 2012. (N .T., v ul. 3. fan. 16. 20 l 4. 59-111 ).
ANAL\SJS
I. In his first claim, Appellant argues that the trial court erred when it failed to supplement the
standard jury instructions with the special rnstruction proposed by the defense. in a ease w here the
onl) ev idcnce against Appellant consisted of the out-of-court statements of alleged eyewitnesses
who 1 ecanted their prior accusations under oath at trial.
1 he proposed jury instruction i!- attached as Court Exhibit A,
The trial court did not err when it failed to supplement the standard jury instructions with
the special instruction proposed h) the defense because the trial judge has the discretion to
accept or reject supplemental mstrucuons proposed by counsel Where the basic charge: properly
covers the requested point, it is not error for trial judge i,, refuse to give additional instructions.
Pa. R. Crim. P 647. Com., .. Gardner, 371 A.2d 9S6 ( 1Y77) The trial court is not required to
accept the language uf point submitted by counsel, but rather is free lo select its own form of
expressu .rn in jury instructions. and the only issue is whether the area covered tn the charge is
adequately, accurately nnd dearly presented to the jur1 for considerution. P:1. R Crim. P t,..f 7.
Cnrn. v. Bryant. -462 A.2d 785 (1983)
~--------------------111111•zrsmma
T
Witness' out-of-court statements, \.\ hich were recanted at trial. furnished legally sufficient
evidence to sustain Appellant's convicuons for first degree murder and related charges, and thus
the convictions did not violate due process: statements were reduced to writing, each witness
signed every page or his statement anJ attestation statement declaring that inlormunnn in
statement was accurate, each witness was cross examined al trial. and statements were
fundamentally consistent with one another such that statements were nut patently unreliable.
Com. v. Brown. 617 Pa. !07, 52 A.3d 1139 (2012.).
Herc, the trial court was not required to supplement the standard Jury instructions with
the special instructions proposed by the defense There is nu requirement for a special
supplemental instruction that the only evidence consisted ot the out-of-court statements of
eyewitnesses who recanted their prior statements at trial. Although Mr, Montalmont's two
statements differ regarding which defendant's bullet was the one that killed the decedent, the)
arc fundamentally consistent with each other. and with Mr. Burton· s statement, in that they all
include the fad that they saw both defendants shooting at the decedent and that Sikwa Sled was
closest to the decedent, standing approxirnately w here the .380 caliber fired cartridge casings
were located. Thus. the statements are not patently unreliable and the defense had the
opportunity 10 fully cross-examine the witnesses al trial.
Ihe credibility and weight of the evidence is for the jury to determine as the Iacr-findcr
JnJ the jury was charged on that issue. The trial court gave the standard jury instruction on prior
inconsistent statements and the jury was told the) could consider the statements as substantive
evidence, r he uial court also gave an instruction to the jury that they should cxamme closely
and carefully and receive with caution the statement 11f Jimmy Montulrnont if they found that he
believed he would recei vc a benefit on his ,1p1!11 1..a-.e in exchange for hrs statement Also, the
A1
1
jury was charged that they should examine closely and carefully and receive with caution the
statement of Michael Burton if they found that he believed he would receive a benefit on his
open cases in exchange for his statement. Thus. it was up to the Jury as fact-tinder to weigh the
credibility of the witness' statements and their testimony at trial. 1 hcrcfore. it was not error for
the trial court tu refuse lo give the proposed supplemental instruction to the jury.
JI. In his second claim, Appellant argues that the tn:il court erred when it denied Appellant's motion
for ajudgment '-'f acquittal because hi::. convicuon v related the due process guarantees provided
by the Fourteenth Amendment tu the United States Constitution and by Article I,§ 8 of the
Penns) lvania Constitution, where his conviction was supported solely by the out-of-court
statements of witnesses v. ho recanted their accusations at trial.
As noted in his 1925( b) Statement of Matters t.omplaincd on Appeal, Appellant acknowledges
that. a, a matter of slate con ... titutional law, the Penns) lvarua Supreme Court has decided that such
C\: idence can be sufficient to conv 11.:t. CDm. \'. Brov..'n, 617 Pa. 107, 52 A.3 J I 119 ( 20 I ::::! ) .
Appellant believes Br0\\11 to have been wrongly decided and raises this issue here to preserve it for
future state and federal rev kw. Thus. the trial court did not err when it denied Appellant's motion for a
judgment of acquittal because the ruling" as consistent v. ith Pennsylvania law as stated supra.
Ill In hn thirJ claim, Appellant argues that the trial court erred when it denied Appellant's request to
redact that portion of the out-nt-court statement (If l ommonw ea Ith ,, itncss t,. Iontalmont, wherein
he stated that, "if rhls [Moutulmont's i.:011pcrati,,11J gets out I will he killed." Appellant argue,
th.it the trial C\.1111 t erred because there was nu evidence ,, hich suggested tli;jl anyone had ever
attempted to intimidate (\ INll.1lm,1111 and the adrnissiou 1)f this port ion of' his statement unfairly
$Uggc..· 11.:J 111 the jury thut ,\t,,nralmont had rei.:J111eJ his accusauon, at trial. due: t•l intimidation
~-------------- ................ £111
l
The trial court did not err when it denied Appellant's request to redact part of the
statement by the witness because the statement was relevant to show why the witness may have
recanted his statement at trial. The determination of whether such statements are admissible is
within the sound discretion of the trial court and will be reversed only upon an abuse of that
discretion. Corn.\'. Ragan. 538 Pa. 2, lh. 645 A.2LI 811, 818 ( l lJCJ.+). In Ragnn, the Supreme
Court l,r Pennsylvania held that the fact that the witness was considering the idea of nut
testifying against the defendant would seem to discredit his subsequent testimony in which he
renounced his identification ol the defendant and was admissible to show the state of mind of the
witness at the time of the discussion with the detective. Id. at 8 I 9.
Herc, the trial court properly admitted the portion of the statement by the witness
Montalmont to a homicide detective in which he stated that. "If this [Monralmonts cooperation]
gets out, l will be killed." On the record. the trial court stated that the statement was admissible
because, "That's his state of mind as to why he is going south ... He is nut saying that they did
anything. rt is just what he thinks will happen. that's all." (N 1 .. Vol. 2. Jan. 15, 20H, 13 7-138).
This situation is similar lo Rag~m because the evidence is admissible to show the state of rrund of
the witness at the time or the discussion with the detective .md rs relevant to show a motive as to
whv the witness may have recanted his statement at trial. Thus admitting the statement docs not
constitute till abuse of discretion by the trial court.
[\'. In his fourth claim, Appellant argues that the tri.11 court erred when 11 overruled defense counsel's
objection to the Commonwealth's summntion, where the prosecutor told the 1u1) that" uness
Montalrnont changed his ....tory because he was afr11id that it \\1)1J!d ··get nut in state prison that he
wa ;i ·itnc!>s" when nu evidence indicated that 1\1,mtalr,,unt harbored such tears and the
, ...
prosecutor's argument \\ 3\ not a lair re x ponse ro an) thing argued by the defense,
The trial court did not err when it overruled defense counsel's objection to the
Commonwealth's summation because a prosecutor has considerable latitude during closing
arguments and the statement was an inference which could be reasonably dcnvcd from the
evidence. With specific reference tu a claun of prosccutorial misconduct in J closing statement,
it is well settled that in reviewing nrosecutorial remarks to determine their prejudicial quality.
comments cannot be viewed in isolation but. rather. must be considered in the context in which
they were made. Com. v. Sampson. 900 A.2J 887 890 (PJ.Supcr.2006 ). Our review of
prosecutorial remarks and an allegation of prosecutorial misconduct requires an evaluation JS to
.
whether a defendant received c1 fair trial, not a perfect trial. Com. v. Judy. 978 A.2d IO 15, l lJl 9
( Pc1.Supt:r.20UO). 1l is well settled that a prosecutor has considerable latitude during dosing
arguments and his arguments are fair il they are supported by the evidence or use inferences that
can reasonably be dcnved from the evidence. Further, prosecutonal misconduct does not take
place unless the unavoidable effect of the comments at issue was to prejudice the [urors by
forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability
tu weigh the evidence objcciiv ely and render a true verdict Prosccutorial misconduct is
evaluated under a harmless error standard. Id. at I O:!O.
Here, the prosecutor' s comment that, "[The witness 1 distanced himself from the
identifications that he made of these: two people. Why? Because he has to go had. to state
prison for a lung time and if it gets out in stall! prison that he was ,1 wrtncss in a homicide ... he i~
going. to have a lot of problems in his life", (N.l'., V,,1. J.Jan. to. 21Jl,1. ~01-211::?) .• \.~ stared 11n the
rl!LMJ. the trial court overruled the defense's objection to this comment because ·'it is fair
response to some things that were said by the defense .. , IJ. at 201. Since the defense argued that
the witnesses were lving in their statements for their own personal gain. the prosecutor was
A 10
1
allowed to respond to this argument by offering a reason supported by the evidence as to why the
witness may have recanted his statement at trial. Herc, the prosecutorial comments were a
proper interence taken from evidence in the record. speci fically Mr. Montalmont's statement that
he wus in fear uf being labeled a snitch. Furthermore, it cannot he found that the unavoidable
effect of the comments at issue was to prejudice the jurors by terming in their mmds a fixed bias
and hostility towards the defendants, thus impending their ability to weigh thee, idence
objecu vely and render a true verdict. Thus, the trial court did not err when it overruled <le fense
counsel's objection to this remark made during the prosecutor's dosing argument.
V. ln his fifth claim, Appellant argues that the trial court erred when it overruled defense counsel s
objection to the Cornmonw ea Ith 's improper vouching, when the prosecutor repeatedly told the
jury that "the statements that the) {the alleged eyewitnesses] gave to the homicide detectives are
U1e truth."
[he trial court did not err \\ hen it overruled defense counsel 's objection to the
Commonwealth's statement in closing argument because the prosecutor is allowed Lo respond to
defense arguments with logical force and vigor. Improper bolstering or vouching for a
government witness occurs where the prosecutor assures the jury that the witness is credible and
such assurance is based on either the prosecutor's personal knowledge or other information not
contained in the record. Com. ,•. C'1)us;ir, 593 Pa. 204 212. 928 1\.2d I 025 I 041 (2007).
I Iowever the prosecutor may comment on the credibility of witnesses. Com \'. Jones. 571 Pa.
11 ~. 811 A2J 994. I 006 ( 2002) Cum. v Simmons, 541 P..i. 211. 662 A.2d ,,21 639 ( I Q9").
Further. a prosecutor is allowed to respond t,, defense arguments with logical force and vigor.
Corn .. v. Chmiel, 585 Pa. 547. h20, 889 A.2d 501, 544 (2005). If defense counsel has attacked
An
the credibility of witnesses in closing, the prosecutor may present argument addressing the
witnesses' credibility. Id.
Herc. defense counsel stated in his dosing argument that. "You have a witness stand in a
court ro()JTI and nobody, nobody walked m at any point in time and identifies either one of these
t~, o guys as being invnl vcd m this." ( N. T .. Vol. J, Jan. 16, 2014. I 74 ). Defense counsel
continued. "[The statement] is bogus. in his words and he gets on the stand and he has never
testified unJcr oath be fort: and what does he tell you'? It is aJI a hunch of lies." Id. at 178-179.
The argument of defense counsel was that the statements given by the witnesses were not true.
The prosecutor was allowed to respond m his closing argument that the witnesses' statements
wen: true. IIere, the prosecutor commented on the credibility of the witnesses in response to
defense counsel's argument as to their incredibility with logical force anJ , igor. Thus. the tnal
court did nor err when 1t overruled defense counsel's objection to the remarks made during the
prosecutor's closing argument.
CONCLVSION
Based on the foregoing, Appellant's motion should be denied and the rulings of the rnal
court should be affirmed.
By the Court:
A 12
| {
"pile_set_name": "FreeLaw"
} |
648 F.2d 289
David M. CUMMINGS, Plaintiff-Appellant,v.UNITED STATES of America and Colonel James M. Sigler,Defendants-Appellees.
No. 80-2298
Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Unit A
June 16, 1981.
Bracewell & Patterson, William Fred Hagans, Houston, Tex., for plaintiff-appellant.
William Cornelius, Jr., Asst. U. S. Atty., Tyler, Tex., Thomas L. Riesenberg, Edward J. Shawaker, Attys., Anthony C. Liotta, Acting Asst. Atty. Gen., U. S. Dept. of Justice, Land & Natural Resources Div., Appellate Section, Washington, D. C., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Texas.
Before GEE, RUBIN and RANDALL, Circuit Judges.
Alvin B. RUBIN, Circuit Judge:
1
Forum shopping is an American lawyers' practice made possible by the existence of various courts of concurrent jurisdiction. Both economists and legal historians should find the practice quaint as well as inefficient. It permits litigants to exert inordinate effort for the purpose of seeking not merely a fair trial but a forum they consider more receptive to their cause, and requires courts to squander public resources in adjudicating the propriety of manipulative efforts to gain access to the forum considered most hospitable to the litigants' interests.
2
This suit is one clearly within the federal jurisdiction. The plaintiff sought, however, to prosecute it in a state court. The federal government defendant removed the case to federal court, where it was promptly dismissed on the basis that the federal court had exclusive original jurisdiction. While the plaintiff could, presumably, now file a new suit in federal court, he seeks instead a determination that the litigation was properly instituted in state court and then properly removed to the federal court, a forum that he originally thought less desirable. Constrained by the doctrine, logical albeit involute, that jurisdiction in a removal case is derivative and that, therefore, a removed case must be dismissed if it was improperly filed in state court even though it could have been instituted initially in the federal court to which it was removed, we affirm the judgment dismissing the suit, leaving the parties with nought for their ten months of legal skirmishing save the clearance of this case from the docket so that a new suit may be initiated.
3
While evidence is admissible in a motion to dismiss for want of jurisdiction,1 the court considered this matter only on the pleadings. We, therefore, look only to the complaint, construing it, however, most favorably to the plaintiff and taking all allegations in the complaint as true. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, -- U.S. --, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980).
4
Choosing a Texas state court of general jurisdiction, David Cummings filed suit naming the United States and Col. James M. Sigler as defendants. Mr. Cummings sought a judicial declaration that he owns a described tract of land containing 741 acres situated in Orange County, Texas; a declaration that a document that purportedly conveyed to the United States a right to deposit spoil on the property is void and unenforceable; and an injunction against Col. Sigler, whose address is given as Department of the Army, Galveston District, U. S. Corps of Engineers, and who is referred to in the complaint as a representative of the United States, enjoining him and his agents from trespassing on Cummings' property. That Sigler is sued in his official capacity is thus at least implicit, and, if more is needed to demonstrate this, it is supplied by Cummings' brief which recites that, as the U. S. Army Corps of Engineers' representative in charge of the Galveston District, Col. Sigler has authorized entry on Cummings' property for the deposit of spoil.
5
The United States district courts "have exclusive original jurisdiction of civil actions under (28 U.S.C. s) 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States." 28 U.S.C. § 1346(f). Section 2409a(a) permits joinder of the United States as a party defendant "in a civil action to adjudicate a disputed title to real property in which the United States claims an interest,"2 28 U.S.C. § 2409a(a), thus waiving sovereign immunity. Prater v. United States, 612 F.2d 157, 159 (5th Cir.), clarified on rehearing, 618 F.2d 263 (5th Cir. 1980); Fulcher v. United States, 632 F.2d 278, 282 (4th Cir. 1980) (en banc); McClellan v. Kimball, 623 F.2d 83, 85 (9th Cir. 1980).
6
Cummings concedes that, if the court's classification of his suit as a claim to quiet title under Section 2409a is correct, it lacked jurisdiction and, therefore, dismissal was correct for "upon removal a federal court must dismiss a case that falls within its exclusive jurisdiction if the case was first instituted in, and then removed from, a state court " Key v. Wise, 629 F.2d 1049, 1057 n.7 (5th Cir. 1980). See Lambert Run Coal Co. v. Baltimore & Ohio R. Co., 258 U.S. 377, 42 S.Ct. 349, 66 L.Ed. 671 (1922). Nor, in view of the allegations of his complaint and his own characterization of his claims in his brief to us can he dispute that at least a part of his suit seeks to adjudicate a disputed title to real property in which the United States claims an interest.
7
Cummings contends, however, that the claim against Col. Sigler is a separate and distinct claim, implicitly urging this court to affirm the dismissal of the other claims and remand the supposed separate claim for trial, though he does advance a tenuous argument that the claims against the United States were litigable in district court under 28 U.S.C. § 2410. Considering first the contention that the claim seeking injunctive relief against Sigler is distinct from the claims against the government, we note that Sigler was sued only in his official capacity, as an agent of the United States. An injunction against him would lie only if the United States, whom he represents, is without title to the easement. If the United States has the right to deposit spoil on the property, it would be improper to enjoin Sigler. Therefore, the claim seeking injunctive relief against Sigler cannot properly be characterized as separate and distinct from the claims advanced against the government. Andros v. Rupp, 433 F.2d 70 (9th Cir. 1970), relied upon by Cummings, is inapposite because that case involved a situation in which the United States neither possessed the property at issue nor claimed record title to it. Moreover, that case was decided in 1970, two years before Congress enacted 28 U.S.C. § 1346(f), the statute which provided for exclusive original jurisdiction in the federal district courts over Section 2409a claims.
8
The district court properly held that Section 24103 was inapplicable to confer subject matter jurisdiction here because the United States does not claim a lien interest on Cummings' property. The complaint alleges that the United States claims a title interest pursuant to a recorded deed. Section 2410 does not confer subject matter jurisdiction for suits against the United States where the United States claims not a security interest but title to the property. See, e. g., Bertie's Apple Valley Farms v. United States, 476 F.2d 291 (9th Cir. 1973); Mead Corp. v. United States, 490 F.Supp. 405, 407 (D.C.D.C.1980); Fidelity Federal Savings and Loan Ass'n v. United States, 445 F.Supp. 683, 686 (M.D.Tenn.1978).4
9
Cummings is permitted to sue the United States only by virtue of Section 2409a. He asks the court to determine who has better title, he or the government. Under 28 U.S.C. § 1346(f), the Texas court had no jurisdiction to hear Cummings' claim. See California v. Arizona, 440 U.S. 59, 67-68, 99 S.Ct. 919, 924, 59 L.Ed.2d 144, 151-158 (1979).
10
Accordingly, we AFFIRM the judgment dismissing the action.5 See McClellan v. Kimball, 623 F.2d at 84 & 86. In our judgment the appeal is not only without merit but frivolous. Therefore, we tax attorney's fees to the appellant in the amount of $1,000 in addition to costs.6
11
Accordingly, the judgment is AFFIRMED.
1
See Oaxaca v. Roscoe, 641 F.2d 386 (5th Cir. 1981); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, -- U.S. --, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980); Green v. Forney Engineering Co., 589 F.2d 243, 246 (5th Cir. 1979)
2
Section 2409a "does not apply to trust or restricted Indian lands, nor does it apply to or affect actions which may be or could have been brought under (28 U.S.C. ss) 1346, 1347, 1491, or 2410 , sections 7424, 7425, or 7426 of the Internal Revenue Code of 1954, as amended (26 U.S.C. 7424, 7425, and 7426), or section 208 of the Act of July 10, 1952 (43 U.S.C. 666)." 28 U.S.C. § 2409a(a)
3
That section, which permits suits against the United States in any state or federal court, provides in pertinent part:
Under the conditions prescribed in this section and section 1444 (28 U.S.C. § 1444) of this title for the protection of the United States, the United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter
(1) to quiet title to,
(2) to foreclose a mortgage or other lien upon,
(3) to partition,
(4) to condemn, or
(5) of interpleader or in the nature of interpleader with respect to, real or personal property on which the United States has or claims a mortgage or other lien.
28 U.S.C. § 2410(a) (emphasis added).
4
The legislative history of Section 2410 contains discussion only of various United States lien or security interest claims. There is no mention of title claims. See S.Rep.No.1708, 89th Cong., 2d Sess. 33-35, reprinted in (1966) U.S.Code Cong. & Ad.News 3722, 3754-56
5
Remand to the state court, addressed in Isham v. Blount, 373 F.Supp. 1376 (E.D.Tenn.1974), is improper because that court has no jurisdiction. See Lambert Run Coal Co. v. Baltimore & Ohio R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671, 675 (1922)
6
Fed.R.App.P. 38; 28 U.S.C. § 1912. See Burke v. Miller, 639 F.2d 306 (5th Cir. 1981) (awarding double costs under Fed.R.App.P. 38); Watson v. Callon Petroleum Co., 632 F.2d 646 (5th Cir. 1980) (awarding double costs and delay damages but restraining initial inclination to award attorney's fees also). Cf. TMT Trailer Ferry, Inc. v. Langbein, 577 F.2d 1296, 1304 (5th Cir. 1978) (case in which attorney's fees were assessed for reasons other than the frivolous nature of the appeal, but stating general principle that appellate court is fully capable of setting the amount of attorney's fees); A. L. McAlister Trucking co. v. BHY Trucking Inc., 642 F.2d 1000 (5th Cir. 1981) (same). See also United States v. Rayco, Inc., 616 F.2d 462, 464 (10th Cir. 1980) (appellate court assesses a specific amount of attorney's fees due to frivolous appeal); Overmyer v. Fidelity and Deposit Co. of Maryland, 554 F.2d 539, 543 (2d Cir. 1977) (same); Teledyne Industries, Inc. v. Podell, 546 F.2d 495 (2d Cir. 1976) (same). See generally 9 Moore's Federal Practice P 238.02 (2d ed. 1980); 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure: Jurisdiction § 3984 (1977)
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230 N.J. Super. 430 (1989)
553 A.2d 858
KODE HARBOR DEVELOPMENT ASSOCIATES, A PARTNERSHIP, PLAINTIFF-RESPONDENT,
v.
COUNTY OF ATLANTIC, NEW JERSEY, THE DEPARTMENT OF REGIONAL PLANNING AND DEVELOPMENT, THE DIVISION OF PLANNING, DEFENDANTS-APPELLANTS.
Superior Court of New Jersey, Appellate Division.
Argued January 3, 1989.
Decided February 6, 1989.
*432 Before Judges DEIGHAN, BAIME and D'ANNUNZIO.
Michael Winkelstein, Atlantic County Counsel, argued the cause for appellants (Michael Winkelstein, attorney; Michael Winkelstein and Terry J. Dailey, Assistant County Counsel, on the brief).
Barbara Sardella argued the cause for respondents (Dilworth, Paxson, Kalish & Kauffman, attorneys; Barbara Sardella and Nelson C. Johnson on the brief).
The opinion of the court was delivered by BAIME, J.A.D.
This appeal presents difficult questions of statutory construction relating to various sections of the County Planning Act (N.J.S.A. 40:27-1 et seq.). N.J.S.A. 40:27-6.6 empowers a county planning board to review a site plan where the property to be developed is located "along [a] county road[]." The same statute confers jurisdiction on a county planning board to review a site plan where the proposed development will affect "county drainage facilities as provided by subsection e [N.J.S.A. 40:27-6.6e] of this section." The principal question presented by this appeal is whether a county planning board is authorized to review a site plan and require the developer to contribute to off-site road improvements where the property neither fronts on nor abuts a county road. An ancillary issue is whether a county planning board, whose jurisdiction rests solely on the basis that development of the property will affect county drainage facilities, may compel a developer to contribute to off-tract road improvements as a condition of site plan approval.
We hold that a county planning board may not assert jurisdiction on the basis that the development is situated "along [a] county road[]" under N.J.S.A. 40:27-6.6 unless the property actually abuts or fronts on a county road. In our view, the legislature did not intend to confer county-wide site plan review *433 jurisdiction on a county planning board in instances where the development is merely in close proximity to a county road. We are also satisfied that a county planning board is not statutorily authorized to require a developer to contribute to off-site road improvements where its jurisdiction is predicated solely on the ground that development of the property will affect county drainage facilities.
I.
This is an appeal by defendants Atlantic County and its Division of Planning (Division) from a declaratory judgment in favor of plaintiff Kode Harbor Development Associates. The salient facts are not in dispute, and need not be recounted at length because they are accurately and fully recited in the trial court's written opinion.
Plaintiff owns property which fronts on the south side of Cardiff Circle in Egg Harbor Township. The road upon which this property abuts is state highway U.S. 40 and 322, the Black Horse Pike, a road operated and maintained by the New Jersey Department of Transportation. The record reflects that U.S. 40 is a major east-west arterial highway which transverses the state from Delaware to Atlantic City. At the Cardiff Circle and for many miles on both the east and west sides of plaintiff's property it is a four-lane divided highway. The nearest county highway is Tilton Road (County Route 563), which is for most of its length a two-lane road. Where it merges with Route 40 at the Cardiff Circle it becomes part of the four-lane highway which extends from the circle to a point immediately west of the Garden State Parkway. At that point, Route 40 veers to the left and Tilton Road continues in an eastward direction to its terminus at Ventor Avenue in Margate. The total length of Tilton Road is approximately ten miles.
It is to be emphasized that plaintiff's property is not actually on a county road, but instead borders Cardiff Circle where U.S. Route 40 and Tilton Road merge. As we have mentioned, *434 Cardiff Circle is owned and controlled by the State of New Jersey. Accordingly, although Tilton Road feeds into the circle and continues briefly (as part of Route 40) on the easterly side of the circle, plaintiff's site does not abut any portion of it. Stated differently, that portion of Tilton Road which "includes" the Cardiff Circle is a state road. The county portion of Tilton Road ends about 340 feet north of plaintiff's property and picks up again about 2,400 feet to the south.
Plaintiff intends to develop the site as a commercial shopping center. Because it includes more than one acre of impervious surface, plaintiff was required, as part of the approval process, to submit the site plan to the Division for its review. The Division's purported authority rests on N.J.S.A. 40:27-6.6 which, as we have noted, grants to county planning boards jurisdiction to review site plans for land development along county roads or where the development contains one acre or more of impervious surfaces which affects, either directly or indirectly, county drainage facilities.
Plaintiff's site plan anticipated utilization of a drainage ditch which runs behind the project and which is referred to as the "Maple Run" drainage. Although the details are not altogether clear, it would appear that utilization of that ditch will impact on an existing drainage pipe owned by the county and may require its enlargement. No proof was submitted to the trial court as to what the cost of that enlargement would be, and the Division made no assessment against plaintiff in that regard. It is clear, however, that the improvements which are anticipated as part of the Tilton Road Corridor Improvement Program, which we will describe shortly, do not include any improvement to this particular county culvert, nor do they relate in any way to plaintiff's drainage needs.
In any event, following its review of plaintiff's site plan, the Division conditionally approved the development, but required payment of $161,000 to Atlantic County for off-tract improvements to various county highways, otherwise known as the *435 Tilton Road Phase I Improvement Program or the Tilton Road Corridor Improvement Program. Because the validity of this condition is in dispute, we will describe the Tilton Road improvement program in some detail.
James Rutala, a licensed professional planner who was planning director for the county, explained the nature and purpose of the Tilton Road corridor program. According to Rutala, the Tilton Road area, which is zoned largely commercial with some industrial uses, has been referred to as the "golden mile" or "the downtown of Atlantic County." In the early 1980's, the county undertook a comprehensive master plan study which resulted in a number of recommendations about highway and drainage improvements. The impetus for the county's creation of this master plan came in 1983 when approximately a dozen developers proposed projects of varying sizes for land development in the Tilton Road area. At that point the county realized the necessity to determine each project's impact on the area, particularly in view of the traffic which would be generated thereby. This represented a departure from the prior procedure where, with each new proposed development, the county would review the plan individually with no real consideration of the overall picture. With the implementation of a comprehensive master plan the proposed development's impact on the area as a whole would be examined in the approval process. Intensified development and highway improvements necessitated by traffic would also result in drainage problems. Therefore, improvements in drainage facilities were also considered.
Two reports were commissioned, one in 1984 which examined the Tilton Road corridor area and proposed improvements for traffic and drainage facilitation and another in 1985 which examined the cost allocation mechanism for those highway improvements. The improvement program, described in the 1984 corridor report, consisted largely of roadway widening and resurfacing to facilitate traffic movement and the construction of a drainage connection necessitated by the widening of Tilton Road and other nearby county highways.
*436 Robert Rodgers, a principal in the Orth-Rodgers firm which provided the county with a report supplementing the corridor study, testified that he was responsible for determining the mechanism by which the cost of the improvements to that area would be financed. The primary purpose of his firm's 1985 report was to arrive at a mechanism to develop a pro rata share cost allocation among these different developments along the corridor, including plaintiff's property. He accomplished this task by determining first the amount of traffic that would be generated by each proposed development. Then percentages were calculated to reflect the individual developer's traffic generation as a percentage of the total traffic on the corridor. With respect to plaintiff's project it was determined that it would generate a total of 780 inbound and outbound trips from the site. A total of about 8,000 new trips per hour would be generated by the development of all of the projects, underscoring the need for the improvements set out in the 1984 corridor study. Apparently this trip generation method of cost allocation is accepted in the industry and the methodology is set forth in the Institute of Transportation Engineers Informational Report (3 ed. 1982). Using definitions and formulas found in that report, trip generation was estimated for evening peak hours based upon the square footage of the particular development for commercial properties and upon the number of dwelling units for residential projects. Under the formula applied to these calculations to determine the allocation to each developer, the developer's share of the cost of roadway improvements was equal to the future peak hour traffic generated by the project. Thus, according to Rodgers, "if a developer generated 1% of the traffic in that corridor by virtue of the development, the developer was to pay 1% of the improvement cost." With respect to the Tilton Road corridor improvement plan, it had already been determined that the public was to pay 57.5% of the cost of improvements, leaving the balance to be paid by the developers of the new projects.
*437 In July 1985 plaintiff commissioned a traffic impact study for its proposed Cardiff Plaza Shopping Center from Horner & Canter Associates. The study concluded that the proposed shopping center would have no adverse traffic impact but acknowledged that the improvements planned by the county for the immediate area would "further enhance the quality of traffic flow." The record discloses that the Division calculated the assessment to plaintiff based not only on the Orth-Rodgers report but the Horner & Canter study as well. The Horner & Canter report estimated that only 68% of the trips to and from the shopping center would pass through the Tilton Road corridor because the shopping center was at the edge of the corridor. Timothy Chelius, a licensed professional planner employed by Atlantic county, acknowledged that only those trips which passed through the corridor would affect the intersections and highway linkage which the county intended to improve. Consequently, there was an adjustment in plaintiff's assessment from $238,000 to $161,000.
Following the Division's conditional approval of the site plan, plaintiff instituted an action in lieu of prerogative writ, claiming that the assessment was invalid. After conducting a plenary hearing, Judge Gibson rendered a comprehensive written opinion in which he held that the condition imposed by the Division requiring plaintiff to contribute to off-tract road improvements constituted an ultra vires act. Initially, the trial judge construed the term "along county roads," which appears in N.J.S.A. 40:27-6.6, as requiring as a jurisdictional prerequisite that the property to be developed must abut or front on a county road. Since it was uncontradicted that plaintiff's property had no frontage on Tilton Road, a county highway, the judge determined that the Division could not properly assert jurisdiction on the basis that the development was situated "along county roads," as required by N.J.S.A. 49:26-6.6. Instead, the judge found that the Division had jurisdiction only on the basis that the development included an acre or more of impervious surfaces and that the proposed project would affect county *438 drainage facilities. Although Judge Gibson questioned whether a county planning board, whose jurisdiction is based solely upon the fact that a proposed development would affect a county's drainage facilities, could condition site plan approval on the developer's contribution to wholly unrelated off-tract improvements, he chose not to resolve that issue. While noting that the Tilton Road Corridor Plan did not contemplate the upgrading of any drainage facility affected by plaintiff's project, and, therefore, there did not appear to be a "rational nexus" between the improvements planned by the county and any corresponding benefit to the property to be developed, the judge left open the question whether the Division could impose under the statute conditions not germane to drainage problems. Rather, the judge found that the Tilton Road improvement project did not arise "as a direct consequence" of plaintiff's development. In this respect, the judge determined that "[t]here was no proof ... plaintiff's development, any more than ongoing [projects] in the area as a whole, produced the need for these improvements in any direct way." Judge Gibson thus concluded that the condition "imposed by the Division relating to plaintiff's monetary contribution to off-site improvements was beyond the statutory authority [granted by N.J.S.A. 40:27-6.6] and must therefore be stricken." Accordingly, a judgment was entered declaring the condition invalid.
We are in complete agreement with Judge Gibson's determination that the condition imposed by the Division was not authorized by N.J.S.A. 40:27-6.6 and thus constituted an ultra vires act. However, we arrive at that conclusion for slightly different reasons.
II.
Initially, we are in complete accord with Judge Gibson's decision that the term "along county roads," which appears in N.J.S.A. 40:27-6.6, means that the property to be *439 developed must actually abut, front on or border a county road. Stated another way, a county planning board cannot assert jurisdiction merely on the basis that a development is in close proximity to a county road, or is in a line parallel with its length or direction, as the Division appears to suggest.[1] In our view, the statutory language confines a county planning board's jurisdiction to the review of site plans pertaining to properties which abut, front on or border county roads or which affect county drainage facilities.
N.J.S.A. 40:27-6.6 is the operative statute relating to site plan review by county planning boards. The statute reads in pertinent part as follows:
The governing body of any county having a county planning board may provide for the review of site plans for land development along county roads or affecting county drainage facilities as provided in subsection e. of this section and for the approval of such development as hereinafter set forth and limited for the purpose of assuring a safe and efficient county road system. Such review and approval shall be in conformance with procedures and standards adopted by resolution or ordinance as appropriate by the governing body.... These procedures and standards shall be limited to:
a. The submission of a site plan, prior to the issuance of a municipal building permit, ....
b. The requirement of dedication of additional right-of-way in accordance with the county master plan....
c. The requirement of physical improvement subject to recommendations of the county engineer relating to the safety and convenience of the traveling public, including drainage facilities, other highway and traffic design features as may be deemed necessary on such county road or roads in accordance with the engineering and planning standards established in the site plan review and approval resolution or ordinance of the governing body.
* * * * * * * *
*440 e. The requirement of adequate drainage facilities and easements when, as determined by the county engineer in accordance with county-wide standards, the proposed site plan will cause storm water to drain either directly or indirectly to a county road or through any drainage-way, structure, pipe, culvert or facility which the county is responsible for the construction, maintenance, or proper functioning.
Site plans for land development not along a county road that include less than 1 acre of impervious surfaces are exempt from county site plan review.
As we stressed in our recital of the facts, plaintiff's project is located on and abuts a state highway. The Division contends, however, that the statute must be read broadly. Unfortunately, the County Planning Act contains no definition or explanation as to what is intended by the term "along county roads," and our research discloses no reported decisions which interpret this phrase.
At the outset, we recognize the constitutional mandate that laws concerning municipalities and counties are to be "liberally construed in their favor." N.J. Const. (1947), Art. IV, § VII, par. 11. Our Supreme Court has observed that this constitutional directive "was intended to obviate earlier judicial decisions which had taken the position that grants of power by the Legislature to its political subdivisions should be construed narrowly and that doubt as to existence of any asserted power should lead to its denial." Union Co. Bd. of Freeholders v. Union Co. Park Com., 41 N.J. 333, 339 (1964). While this constitutional rule of liberal construction has long been acknowledged, it is equally well-settled that a county's powers are restricted to those granted to it by the Legislature. See, e.g., Bergen County v. Port of N.Y. Authority, et al, 32 N.J. 303, 312-313 (1960); County of Bergen v. Dept. of Pub. Util. of N.J., 117 N.J. Super. 304, 310 (App.Div. 1971). In this respect, it has been said, albeit in a different context, that "the county's powers are only those granted to it, and the municipality remains the repository over the broad police power over local affairs." Bergen County v. Port of N.Y. Authority, et al, *441 supra, 32 N.J. at 313. The role of the county is still relatively more restricted. Ibid.
We also recognize that the Legislature specifically used the word "abut" rather than "along" when dealing with the jurisdiction of county planning boards over subdivision review. See N.J.S.A. 40:27-6.2. However, we perceive no meaningful distinction in that regard. Simply stated, we discern no legislative design to grant broader authority to county planning boards in the context of their review of site plans than they possess in their consideration of subdivisions.
We are of the view that the statute, read sensibly rather than literally, does no more than grant jurisdiction in instances in which the development either abuts a county road or affects a county's drainage facilities. In our opinion, the interpretation urged by the Division is so uncertain, obscure and amorphous as to preclude a meaningful analysis with respect to the reach of the powers of a county planning board. In the context of the facts here, for example, the Division's construction of the statute would provide it with jurisdiction over land developments adjacent to expansive stretches of highway well beyond and away from county roads. Clearly, however, the Legislature never sought to provide such a broad jurisdictional base for county planning board review.
In sum, we agree with Judge Gibson that the most logical reading of the statute leads to the conclusion that a county planning board's site plan review jurisdiction was not intended to encompass developments which are not contiguous to a county road or highway, at least where they do not affect county drainage facilities.
III.
As we noted previously, N.J.S.A. 40:27-6.6 confers jurisdiction on county planning boards to review site plans *442 "along county roads or affecting county drainage facilities...." Although the precise impact plaintiff's development will have on county drainage facilities was not fully developed by the proofs, and on the record submitted to us appears to be negligible, it is undisputed that storm water will in fact drain into the county's drainage pipe. It is also clear that plaintiff's property includes more than one acre of impervious surfaces. See N.J.S.A. 40:27-6.6e. These facts plainly provide a jurisdictional basis for county planning board review. The remaining question, therefore, is whether this jurisdictional predicate for review, resting as it does on the impact which the site has on county drainage facilities, can be fairly utilized as authority for the imposition of off-tract conditions totally unrelated to drainage. Having obtained jurisdiction over the site plan by virtue of its effect on county drainage facilities, the Division contends that it is authorized to impose off-site conditions pertaining to wholly unrelated improvements. We disagree.
N.J.S.A. 40:27-6.6e expressly defines the manner in which a county planning board may respond to developments affecting county drainage facilities. That part of the statute, subsection e, was adopted by an amendment enacted in 1981. Before that amendment, the statute expressly limited county planning board review to developments situated "along county roads." The statute, as it then existed, permitted "the requirement of physical improvements subject to recommendations of the county engineer relating to the safety and convenience of the traveling public, including drainage facilities, or other highway and traffic design features as may be deemed necessary...." (Emphasis added.) N.J.S.A. 40:27-6.6c. The statement of the Senate County and Municipal Government Committee which accompanied the amendment reveals that the Legislature intended to extend the county's jurisdiction to encompass properties which may not be located "along county roads," but which clearly affected county drainage facilities. Stated another *443 way, the legislative purpose was to authorize counties to ameliorate or correct drainage problems "for the purpose of assuring a safe and efficient county road system" (N.J.S.A. 40:27-6.6), even where the development does not abut a county road.
To recapitulate, the statute, prior to its amendment, was defective because it did not authorize county site plan review of developments, which although not bordering on county roads, nevertheless impacted on highway safety by reason of drainage problems. In order to correct this defect, the Legislature amended the statute and empowered county planning boards to review site plans of developments which do not abut county roads but which, by reason of run-off storm drainage, impact upon their safety. So posited, we perceive no legislative design to authorize a county planning board, whose jurisdiction is predicated solely upon the impact a development may have on county drainage facilities, to impose conditions and require off-tract improvements pertaining to wholly unrelated problems.
Under the amended statute, the county engineer is required to develop county-wide standards for the review of those site plans which "cause storm water to drain directly or indirectly to a county road or through a drainage right-of-way, pipe, culvert or facility for which the county is responsible...." N.J.S.A. 40:27-6.6e. Such standards are required to be established in an ordinance providing for such review. By its very terms, the statute, as amended, provides for the review of site plans for land development "affecting county drainage facilities as provided in subsection e," which, as we have stressed, deals only with storm water run-off and drainage.
We are thus convinced that a county planning board, whose jurisdiction is based solely on the fact that a development will affect the county's drainage facilities, may not attach conditions *444 to site plan approval which pertain to wholly unrelated off-tract improvements. In the context of the facts of this case, although the Division clearly had jurisdiction to review plaintiff's site plan based on the impact of the development on the county's drainage facilities, it was not authorized to require, as a condition of approval, monetary contributions for unrelated off-tract road improvements.
IV.
In light of this conclusion, we have no occasion to determine whether or not the trial judge was correct in his factual determination that there was no rational nexus between the improvement planned by the county and any benefits conferred upon or needs caused by plaintiff's project. Although the "trip generation" methodology employed by the Division bears some resemblance to the "impact fee" found to be statutorily unauthorized by our Supreme Court in N.J. Bldrs. Ass'n. v. Bernards Tp., 108 N.J. 223 (1987), we need not and do not address that difficult issue. See Divan Builders v. Planning Bd. Tp. of Wayne, 66 N.J. 582 (1975); Longridge Builders v. Planning Bd. of Princeton Tp., 52 N.J. 348 (1968); 181 Incorporated v. Salem Cty. Planning Bd., 133 N.J. Super. 350 (Law.Div. 1975), aff'd in part, rev'd. in part, 140 N.J. Super. 247 (App.Div. 1976); Harris v. Salem County Planning Bd., 123 N.J. Super. 304 (App.Div. 1973), certif. den. 64 N.J. 152 (1973). Instead, we find that the Division's authority is limited under N.J.S.A. 40:27-6.6e to requiring adequate drainage, and that the impact fee imposed is not in any real sense generated by the disposal of water from plaintiff's site.
V.
The judgment of the Law Division is accordingly affirmed.
NOTES
[1] In support of its position, the Division refers to the definition of the word "along" as appears in Webster's Third New International Dictionary, Unabridged (G & C Merriam Co., 1971):
... prep ... 1: over the length of (a surface)... in a line parallel with the length or direction of ...
adv.... 2a: in a line with the length or direction.
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930 P.2d 144 (1996)
122 N.M. 609
STATE of New Mexico, Plaintiff-Petitioner,
v.
William Laxton KIRBY, Defendant-Respondent.
No. 23712.
Supreme Court of New Mexico.
November 27, 1996.
*145 Tom Udall, Attorney General, Joan M. Waters, Assistant Attorney General, Santa Fe, for Plaintiff-Petitioner.
T. Glenn Ellington, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Defendant-Respondent.
OPINION
RANSOM, Justice.
1. In State v. Yarborough, 122 N.M. 596, 930 P.2d 131 (1996), affirming, 120 N.M. 669, 905 P.2d 209 (Ct.App.1995), we today have affirmed that to convict of the fourth-degree felony of involuntary manslaughter in the commission of an unlawful act, that act must at least have been one of criminal negligence, not mere civil negligence or carelessness. Certiorari was taken in the instant case for possible consolidation with Yarborough. Here, William Laxton Kirby was convicted of involuntary manslaughter as the result of a death arising from a head-on collision. Kirby drove a semi-truck pulling a fifteen-foot wide mobile home on a nineteen-foot wide two-lane highway in rural New Mexico after dark in violation of New Mexico law. When the accident occurred, it was just after sunset. Evidence adduced at trial showed that, prior to the accident, another driver had to swerve off the road to avoid hitting Kirby's truck.
2. The jury was instructed that the State was required to prove that Kirby unlawfully drove a wide mobile home transport after sunset "such that an ordinary person would anticipate that death might occur under the circumstances." Consistent with its opinion in Yarborough, the Court of Appeals correctly held by an unpublished memorandum opinion in Kirby that "[t]he difference between `reckless disregard' and `would anticipate that death might occur' evinces a failure to instruct on criminal negligence."
3. Kirby was tried, convicted, and sentenced prior to the filing of the Court of Appeals' memorandum opinion in Yarborough. While, like the trial court in Yarborough, the trial court in Kirby failed to instruct the jury that criminal negligence was a necessary element of involuntary manslaughter, Kirby did not timely inform the trial court of a problem with the instruction on the essential elements of the crime before the charge was given to the jury. Kirby asserted on appeal, for the first time, that the jury instructions were insufficient and that Yarborough should be applied to his case.
4. The State poses the issue as whether the holding in Yarborough should be applied retrospectively. We do not agree with this characterization. We agree with the statement in the Court of Appeals' memorandum opinion that while it is true "that Yarborough should be given only prospective effect, we disagree that its application to this case would be retrospective".[1] It is certainly true that this Court stated in Santillanes v. State that the new criminal negligence standard in the child-abuse statute "shall govern all cases which are now pending on direct review, provided the issue was raised and preserved below." 115 N.M. 215, 225, 849 P.2d 358, 368 (1993). As the Court of Appeals correctly noted, however, the retrospectivity of Yarborough is irrelevant if the trial court committed fundamental error in instructing the jury. In Kirby, the Court stated that:
Since the doctrine of fundamental error affords Defendant the right of appeal, we hold that Yarborough may be made applicable to this case without applying its rule retrospectively. See State v. Rodgers [Rogers], 93 N.M. 519, 521, 602 P.2d 616, 618 (1979) (cases finalized only when there *146 has been a judgment of conviction, sentence, and exhaustion of rights of appeal).
We concur in this disposition.
5. The application of a rule from a case is prospective "when a court's decision overturns prior case law or makes new law when law enforcement officers have relied on the prior state of the law." Santillanes, 115 N.M. at 223, 849 P.2d at 366. Neither of these exceptions applies to Yarborough. The rule of Yarborough was not new law, it was a statement of what the law had been at all times applicable to the instant case. Yarborough, 120 N.M. at 672-73, 905 P.2d at 212-13 (discussing almost sixty years of New Mexico precedent). The State had the burden of proving that Kirby should have known of the danger involved in his action and acted in reckless disregard of the safety of others. This burden was present irrespective of the Yarborough rule.
6. Because the essential element of criminal negligence was not included in the instructions to the Kirby jury, there was fundamental error subject to review on direct appeal. In State v. Osborne, we stated that "[w]here fundamental error is involved, it is irrelevant that the defendant was responsible for the error by failing to object to an inadequate instruction or ... by objecting to an instruction which might have cured a defect in the charge to the jury." 111 N.M. 654, 662, 808 P.2d 624, 632 (1991). Responsibility for instructing the jury rests solely with the trial court. "[I]t is the duty of the court, not the defendant, to instruct the jury on the essential elements of a crime." Id. This distinction unfortunately was not drawn in the preservation proviso in Santillanes, but it is a distinction that we must make in this case.
7. The same considerations of fundamental error do not apply once proceedings are finalized by direct appeal. While "principles of finality have rarely been applied with the same force in habeas corpus proceedings as in ordinary litigation," Manlove v. Sullivan, 108 N.M. 471, 476 n. 3, 775 P.2d 237, 242 n. 3 (1989), we do not reexamine essential-elements instructions in proceedings after finality. Only in this sense is the clarification of existing law not retroactive.
8. Conclusion. We are not here presented with a question of retroactivity, cf. Jackson v. State, 122 N.M. 433, 925 P.2d 1195 (1996) (examining the retrospective and prospective application of decisions in criminal cases); rather this is an application of existing law to a pending case. See State v. Rogers, 93 N.M. 519, 521, 602 P.2d 616, 618 (1979) (cases finalized only when there has been a judgment of conviction, sentence, and exhaustion of rights of appeal). As such, we will apply the existing law, as restated in Yarborough, to this case. A showing of criminal negligence is required for a conviction of involuntary manslaughter, and it was fundamental error for the trial court to have not so instructed the jury. We therefore affirm the Court of Appeals.
9. IT IS SO ORDERED.
BACA, C.J., and MINZNER, J., concur.
NOTES
[1] Another issue in Yarborough, the exclusivity of the specific homicide by vehicle statute, NMSA 1978, § 66-8-101 (Repl.Pamp.1994), was not raised in Kirby.
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50 So.3d 606 (2011)
GRIFFIN
v.
BANK OF COMMERCE.
No. 2D10-5781.
District Court of Appeal of Florida, Second District.
January 6, 2011.
DECISION WITHOUT PUBLISHED OPINION
Appeal dismissed.
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965 So.2d 130 (2007)
ALLEN
v.
STATE.
No. 2D07-3836.
District Court of Appeal of Florida, Second District.
September 19, 2007.
Decision without published opinion. App. dismissed.
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735 F.2d 1366
Romanczukv.V.I.P. Farms, Inc.
83-2171
United States Court of Appeals,Seventh Circuit.
5/10/84
1
N.D.Ill.
REVERSED
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68 F.2d 46 (1933)
AMERICAN EQUITABLE ASSUR. CO. OF NEW YORK
v.
HELVERING, Commissioner of Internal Revenue.
No. 126.
Circuit Court of Appeals, Second Circuit.
December 11, 1933.
Le Roy B. Iserman, of New York City, for petitioner on review.
Sewall Key and Helen R. Carloss, Sp. Assts. to Atty. Gen., for respondent on review.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
CHASE, Circuit Judge.
On May 25, 1926, the petitioner purchased all the assets in this country of the Norwegian Atlas Insurance Company except "its rights to dividends or otherwise on its allowed claims against the Jefferson Insurance Company, the Liberty Marine Insurance Company and the North Atlantic Insurance Company, all in liquidation. * * *" It paid for them in part in cash and in part by assuming certain debts of the Norwegian Company.
The contract bound the petitioner to pay as part of the debts assumed all taxes of the Norwegian Company, federal, state, or otherwise, if and when determined, for all years prior to 1926.
The above-mentioned claims are the basis of the deficiency in income for 1922 on which the taxes involved were assessed. The Norwegian Company had reinsured certain risks in the three insolvent insurance companies named and as a result held provable claims against them for 1922 in the amount of $74,115.41. It kept its books on the accrual basis, and this amount appeared thereon as reinsurance recoverable at the end of 1922. It reported this as income in its return for that year, and deducted an equal amount with the explanation: "Various amounts credited in 1922 as recovered, which were at the same time charged three companies in liquidation. These amounts being as yet uncollected, income is accordingly reduced * * * $74,115.41." The Commissioner disallowed the deduction and made other adjustments, not here involved, in determining a deficiency.
The return of the Norwegian Company was filed July 3, 1923. The notice of deficiency, mailed July 2, 1927, was given one day before the statutory four-year period for such notice would have expired. Within sixty days thereafter this petitioner filed a petition for redetermination with the Board of Tax Appeals, and it was placed upon the docket. On June 11, 1929, this petition was dismissed on motion of the government for lack of jurisdiction *47 because, though filed in the name of the Norwegian Company, it was signed by this petitioner as the successor to the branch of that company in the United States and not by the taxpayer. On March 11, 1928, the Commissioner assessed the deficiency against the Norwegian Company and on March 15, 1929, mailed this petitioner a notice of the assessment of the deficiency against it as transferee. On May 10, 1929, this petitioner filed with the Board of Tax Appeals its petition for a redetermination of the deficiency, and the present petition is to review the decision thereon.
The petitioner argues that sections 277 (a) (2) and 280 (b) (1) of the Revenue Act of 1926, 26 USCA §§ 1057 (a) (2), 1069 (b) (1), bar the collection of these taxes. Under the first-named section the collection of the taxes was barred unless assessed against the Norwegian Atlas within four years after its return was filed; and, under the second section mentioned, the period for assessment against a transferee was limited to one year from the expiration of the period of limitation of assessment against the taxpayer. However, under section 277 (b) of the Revenue Act 1926 (26 USCA § 1057 note), the statute of limitations was tolled during the time the Commissioner was prohibited from making an assessment and for sixty days thereafter. Section 274 (a) of that act (26 USCA § 1048) prohibited him from making an assessment until sixty days after the mailing of a deficiency letter to the taxpayer, and, if a petition was filed with the Board of Tax Appeals, the prohibition against assessment was extended "until the decision of the Board has become final." Its decision did not become final until the petition was dismissed on June 11, 1929, and the time for filing a petition for review had expired. Section 1005 (a) of the Revenue Act 1926, 26 USCA § 1228 (a). In the meantime the Revenue Act of 1928 took effect. By section 504 (a) of that act (26 USCA § 1057 (b), section 277 (b) of the Revenue Act 1926 (26 USCA § 1057 note) was amended to suspend the running of the limitation on assessment until the decision of the Board became final and until sixty days thereafter "if a proceeding in respect of the deficiency is placed on the docket of the Board. * * *" This amendment applied to all cases where the period of limitations had not expired before it took effect. Section 504 (b) of Revenue Act 1928 (26 USCA § 1057 note).
Both section 277 (b) of the Revenue Act 1926 and section 504 (a) (b) of the Revenue Act of 1928 suspended the running of the statute when a proceeding in respect to the deficiency was placed on the docket of the Board. But the petitioner would have us hold that this is not so unless the Board has jurisdiction of the petition filed to initiate the proceeding placed on the docket. Its position is that, as the Board has held that it had no jurisdiction because the petition was not filed by the Norwegian Company, the taxpayer, there was no proceeding placed on the docket in the sense that expression must be construed to have been used in the two last above mentioned sections. If this be so, the government must treat as a nullity, in advance of a decision by the Board of Tax Appeals, every proceeding which is placed on the docket of the Board which has such infirmities that the Board finally dismisses it for lack of jurisdiction, unless it must accept the risk of the bar of the statute arising before it can know what the decision will be, and so is protected only by the chance that a decision will be rendered before the unsuspended period of limitation upon assessment has run. This seems to be the position taken in Gott v. Live Poultry Transit Co., 17 Del. Ch. 288, 153 A. 801. The language used in both the clauses providing for the tolling of the statute seems to us to negative such a view. Congress might make the period of limitation whatever it saw fit, and of course it might make no such provision at all. Having established one, it was free to suspend its running upon the occurrence of such conditions as it thought best. It did, verbally at least, make one such condition the mere placing on the docket of the Board of a proceeding in respect to the deficiency. Even though the Board dismissed this proceeding, as it did in this case, for want of jurisdiction (and we now have nothing to say about the correctness of that decision), the placing of the proceeding upon its docket gave it whatever right to act is involved in determining whether or not the petition was sufficient to give it jurisdiction to decide the matter on the merits. At any rate, a proceeding had been commenced which required the Board of Tax Appeals to make a decision though not necessarily on the merits. Because the effect of the passage of time would be the same whether the Board made its decision on the merits or on some other ground, if the period stated in the statute of limitations meantime expired, it is reasonable to believe that Congress did not intend to have the time a proceeding was pending before the Board counted any more when the decision was a dismissal for want of jurisdiction than when it was not. In other words, the *48 time after such a proceeding was placed on the docket was not to be added to what had gone by since the return had been filed until the Board disposed of the matter in some way and sixty days had passed thereafter in which further action could be taken. Certainly, the words Congress used have this meaning literally, and we are disposed to believe that such is their intended effect.
As we hold that the statute of limitations was suspended by the proceeding placed on the docket of the Board, it becomes necessary to determine whether the taxes were lawfully assessed against the Norwegian Company. They were assessed on March 11, 1928, and, as the Board did not dismiss the petition until June 11, 1929, they were assessed while the proceeding was pending before the Board and during the time the Commissioner was prohibited from making the assessment by section 274 (a) of the 1926 act. However, it should be noted that the deficiency notice had been sent the taxpayer on July 2, 1927, and just one day before the statute of limitations otherwise would have run. The time within which the Commissioner could assess after the time for filing a petition to review the decision of the Board had expired was known to be short. Section 279 (a) of the Revenue Act 1926 (26 USCA § 1051 (a) authorized the Commissioner, whenever he believed the assessment or collection of a deficiency would be jeopardized by delay, to assess such deficiency immediately. The assessment against the taxpayer was therefore good as a jeopardy assessment, and the assessment against the transferee was within the allowed period thereafter.
These taxes were, by the terms of the contract made by the petitioner with the Norwegian Company, to be paid by the petitioner. The government, as the party to whom the Norwegian Company owed the taxes and the real party they intended to be benefited by this agreement, may enforce the provision. Hendrick v. Lindsay, 93 U. S. 143, 23 L. Ed. 855; Seaver v. Ransom, 224 N. Y. 233, 120 N. E. 639, 2 A. L. R. 1187; Pennsylvania Steel Co. v. New York City R. Co. (C. C. A.) 198 F. 721.
The petitioner was a transferee within the meaning of the statute (section 280 of the Revenue Act 1926, 26 USCA § 1069 and note), and the United States may proceed under it to enforce its rights, as a creditor of the taxpayer, against this petitioner [Hatch v. Morosco Holding Co. (C. C. A.) 50 F.(2d) 138], without first making any attempt to collect the taxes of the Norwegian Company whose property in this country has been acquired by the petitioner.
The petitioner has not shown that the deduction claimed should have been allowed. Merely showing that the sums due for reinsurance in 1922 were not paid in that year did not prove that they could not be collected, and the finding of the Board as to that must be upheld. Phillips v. Commissioner, 283 U. S. 589, 51 S. Ct. 608, 75 L. Ed. 1289.
The burden to establish its right to the deduction claimed is on the taxpayer when he seeks a review. Burnet v. Houston, 283 U. S. 223, 51 S. Ct. 413, 75 L. Ed. 991.
Affirmed.
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87 F.3d 1312
Bryantv.Rubalcaba*
NO. 95-50929
United States Court of Appeals,Fifth Circuit.
May 16, 1996
Appeal From: W.D.Tex., No. EP-95-CV-270
1
DISMISSED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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418 F.2d 1243
UNITED STATES of America, Appellee,v.Marco Antonio LOPEZ-HERNANDEZ, Appellant.
No. 23966.
United States Court of Appeals Ninth Circuit.
Nov. 25, 1969.
Fred J. Hermes (argued), San Rafael, Cal., for appellant.
Ann Browen (argued), Asst. U.S. Atty., Richard K. Burke, U.S. Atty., Jo Ann D. Diamos, Asst. U.S. Atty., Tucson, Ariz., for appellee.
Before HAMLEY, ELY, and KILKENNY, Circuit Judges.
PER CURIAM:
1
The appellant was charged with having unlawfully imported a quantity of heroin into the United States, thereby violating 21 U.S.C. 174. His first trial resulted in a judgment of conviction, but we were required to reverse the judgment and remand the cause. Lopez-Hernandez v. United States, 394 F.2d 820 (9th Cir. 1968).
2
Now the appellant, in a second jury trial, has again been found guilty of the offense and appeals from the consequent judgment. His appellate counsel, who did not participate in the proceedings below, ably expounds two interrelated contentions:
3
(1) That the evidence is insufficient to support the conviction, and
4
(2) That the evidence establishes, as a matter of law, that the Government entrapped appellant into the commission of the offense.
5
We have reviewed the record, It corroborates appellant's argument that the credibility of one of the Government's principal witnesses, its informing agent, was questionable. The record also reveals certain inconsistencies in the testimony of the witnesses for the prosecution. Nevertheless, we are required to analyze the testimony in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The application of that principle, coupled with the fact that the credibility of witnesses and the weight to be accorded their testimony were matters for the jury's determination, leads us to reject the appellant's contentions.
6
It should be noted, too, that there was no claim of entrapment in the court below and that the appellant did not request that the jury be given instructions on that issue.
7
Affirmed.
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United States Court of Appeals,
Eleventh Circuit.
No. 94-6845.
Jack COTTRELL, Reverend, as Administrator of the Estate of Leroy
Bush Wilson, Plaintiff-Appellee,
v.
Cynthia D. CALDWELL, individually and in her official capacity as
a City of Montgomery Police Officer; S.E. Wilson, Corporal,
individually and in his official capacity as a City of Montgomery
Police Officer; Eugene S. Kemplin, individually and in his
official capacity as a City of Montgomery Police Officer; Spencer
T. Henderson, II, individually and in his official capacity as a
City of Montgomery Police Officer, Defendants-Appellants,
The City of Montgomery, a municipal corporation; the Chief of
Police, City of Montgomery, in his official capacity, Defendants.
June 3, 1996.
Appeal from the United States District Court for the Middle
District of Alabama. (No. CV-92-A-1584-N), W. Harold Albritton,
III, Judge.
Before TJOFLAT, Chief Judge, and CARNES, Circuit Judge.*
CARNES, Circuit Judge:
This case arises out of the death of Leroy Bush Wilson from
positional asphyxia as he was being transported in the back of a
police car after his arrest. Reverend Jack Cottrell, the
administrator of the decedent's estate, filed suit under 42 U.S.C.
§ 1983 alleging that four police officers who arrested or
transported Wilson, the police department, and the City of
Montgomery had violated his constitutional rights. The district
court denied the defendant police officers' qualified immunity
summary judgment motion, and the officers brought this
*
Senior Circuit Judge Frank M. Johnson heard argument in
this case but did not participate in this decision. This
decision is rendered by quorum. 28 U.S.C. § 46(d).
interlocutory appeal from that denial. We reverse.
I. THE INTERLOCUTORY JURISDICTION ISSUE
In light of Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151,
132 L.Ed.2d 238 (1995), we deem it prudent to examine our
jurisdiction to decide this interlocutory appeal. We begin with
certain general principles involving interlocutory jurisdiction in
qualified immunity cases. In this context, we use the term
"interlocutory jurisdiction" to refer to interlocutory appellate
jurisdiction pursuant to the Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), doctrine, as
applied to qualified immunity cases in Mitchell v. Forsyth, 472
U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). That jurisdiction
exists independently of the final judgment rule exceptions
contained in 28 U.S.C. § 1292 and Fed.R.Civ.P. 54(b).
We have no interlocutory jurisdiction to review the grant of
summary judgment to a defendant on qualified immunity grounds.
Winfrey v. School Bd. of Dade County, Fla., 59 F.3d 155, 158 (11th
Cir.1995). Whether we have interlocutory jurisdiction to review
the denial of summary judgment on qualified immunity grounds
depends on the type of issues involved in the appeal.
One type of issue for these purposes is evidentiary
sufficiency: whether the district court erred in determining that
there was an issue of fact for trial about the defendant's actions
or inactions which, if they occurred, would violate clearly
established law. An example is the situation in Johnson v. Jones,
--- U.S. at ---- - ----, 115 S.Ct. at 2153-54, where the defendant
police officers sought to appeal interlocutorily the district
court's determination that there was sufficient evidence from which
the trier of fact could find that the defendant officers
participated in beating the plaintiff after he was arrested, or
stood by and allowed others to beat him. We know from Johnson v.
Jones that we do not have interlocutory jurisdiction to review the
denial of summary judgment where the only issues appealed are
evidentiary sufficiency issues. --- U.S. at ----, 115 S.Ct. at
2156; see also Dolihite v. Maughon By and Through Videon, 74 F.3d
1027, 1033 n. 3 (11th Cir.1996); Johnson v. Clifton, 74 F.3d 1087,
1091 (11th Cir.1996), petition for cert. filed, 64 U.S.L.W. 3742
(U.S. Apr. 25, 1996) (No. 95-1743).
Legal issues underlying qualified immunity decisions are a
different matter. An example of such an issue is "whether the
legal norms allegedly violated by the defendant were clearly
established at the time of the challenged actions or, ... whether
the law clearly proscribed the actions the defendant claims he
took." Mitchell v. Forsyth, 472 U.S. at 528, 105 S.Ct. at 2816.
In the Mitchell case itself the specific legal issue was whether
the defendant's actions in authorizing, as Attorney General, a
warrantless national security wiretap were proscribed by clearly
established law when those actions occurred in November of 1970.
Id. at 530, 105 S.Ct. at 2817-18. We know from Mitchell, which
Johnson left intact, that we have interlocutory jurisdiction over
legal issues that are the basis for a denial of summary judgment on
qualified immunity grounds. See Dolihite, 74 F.3d at 1034 n. 3;
Clifton, 74 F.3d at 1091; Haney v. City of Cumming, 69 F.3d 1098,
1101 (11th Cir.1995), cert. denied, --- U.S. ----, --- S.Ct. ----,
--- L.Ed.2d ----, 64 U.S.L.W. 3669 (U.S., May 20, 1996) (No. 95-
1527); McElroy v. City of Macon, 68 F.3d 437, 438 n. * (11th
Cir.1995). Recently, this Court has referred to such legal issues
as "core qualified immunity" issues. Clifton, 74 F.3d at 1091;
Dolihite, 74 F.3d at 1034 n. 3.
The Supreme Court's decision in Behrens v. Pelletier, ---
U.S. ----, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), earlier this
year, made it clear that interlocutory appellate jurisdiction over
the legal issues involved in a qualified immunity question exists
even where the district court denied the summary judgment "motion
with the unadorned statement that "[m]aterial issues of fact remain
as to [the defendant] on the [federal question] claim.' " --- U.S.
at ----, 116 S.Ct. at 838 (second and third alterations added).
The Court in Behrens specifically rejected the contention that a
district court's holding that material issues of fact remain bars
interlocutory appellate review of related issues of law, labelling
that contention a misreading of Johnson. Id. at ----, 116 S.Ct. at
842. As the Court explained, " Johnson held, simply, that
determinations of evidentiary sufficiency at summary judgment are
not immediately appealable merely because they happen to arise in
a qualified-immunity case;" but " Johnson reaffirmed that
summary-judgment determinations are appealable when they resolve a
dispute concerning an abstract issue of law relating to qualified
immunity—typically, the issue whether the federal right allegedly
infringed was clearly established." Id. (citations, internal
quotation marks, and brackets omitted). The contrary holdings in
Mastroianni v. Bowers, 74 F.3d 236, 238 (11th Cir.1996), and Babb
v. Lake City Community College, 66 F.3d 270, 272 (11th Cir.1995),
preceded Behrens and cannot be reconciled with it. Where prior
panel precedent conflicts with a subsequent Supreme Court decision,
we follow the Supreme Court decision. E.g., Lufkin v. McCallum,
956 F.2d 1104, 1107 (11th Cir.1992) ("A panel of this Court may
decline to follow a decision of a prior panel if such action is
necessary in order to give full effect to an intervening decision
of the Supreme Court of the United States."), cert. denied, 506
U.S. 917, 113 S.Ct. 326, 121 L.Ed.2d 246 (1992).
Accordingly, under Johnson, we lack interlocutory appellate
jurisdiction over the denial of summary judgment on qualified
immunity grounds where the sole issues on appeal are issues of
evidentiary sufficiency. However, as clarified byBehrens, Johnson
does not affect our interlocutory jurisdiction in qualified
immunity cases where the denial is based even in part on a disputed
issue of law.
In Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789,
1793, 114 L.Ed.2d 277 (1991), the Court explained that "[a]
necessary concomitant to the determination of whether the
constitutional right asserted by a plaintiff is "clearly
established' at the time the defendant acted is the determination
of whether the plaintiff has asserted a violation of a
constitutional right at all." That issue, too, is a legal one and
therefore subject to interlocutory review.1
1
Our discussion of the types of issues for purposes of our
interlocutory jurisdiction is not meant to be exhaustive. For
example, when the claim is that a search and seizure or arrest
violated the Fourth Amendment, qualified immunity depends upon
whether arguable probable cause existed. More specifically, the
The present case involves two legal claims against the
defendant officers arising out of the same facts. The first
alleges that they violated the Fourteenth Amendment due process
right of Leroy Wilson not to be subjected to conditions of custody
and confinement creating an unreasonable danger to his safety and
life. The district court denied the defendant officers' motion for
summary judgment on qualified immunity grounds as to that claim
based upon its application of an " either gross negligence or
deliberate indifference" standard. (Emphasis added.) In reviewing
whether that denial was error, we must of necessity decide whether
the legal standard upon which the denial was based is the correct
one, and that is an issue of law. Accordingly, we have
interlocutory jurisdiction over the appeal from the denial of
summary judgment as to the first claim.
Plaintiff's second claim is that the defendant officers used
excessive force to arrest him, in violation of the Fourth
Amendment. The district court declined to rule on the defendants'
motion for qualified immunity summary judgment as to that claim,
stating only that in view of its rejection of the defense as to the
due process claim "prudence dictates" that it also reject the
defense as to the Fourth Amendment claim. The issue of whether
that is a proper basis for denying summary judgment, and the
qualified immunity issue in such cases is not whether probable
cause existed, but whether a reasonable officer possessing the
information the defendant officer possessed could have believed
it did. E.g., Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct.
534, 537, 116 L.Ed.2d 589 (1991); Anderson v. Creighton, 483
U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987);
Swint v. City of Wadley, Ala., 51 F.3d 988, 996 (11th Cir.1995).
That is a core qualified immunity issue.
related issue of whether summary judgment should have been granted
on qualified immunity grounds based upon the facts of this case are
issues of law. Accordingly, we have interlocutory jurisdiction
over the appeal from the denial of summary judgment as to the
second claim.
II. APPELLATE REVIEW OF EVIDENTIARY ISSUES RELATING TO QUALIFIED
IMMUNITY IN THE POST-JOHNSON ERA
When it decides whether defendants are entitled to summary
judgment, a district court draws the facts from the "pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any," Fed.R.Civ.P. 56(c),
construing the evidence from those sources in the light most
favorable to the plaintiff. See, e.g., Forbus v. Sears Roebuck &
Co., 30 F.3d 1402, 1403 n. 1 (11th Cir.1994), cert. denied, ---
U.S. ----, 115 S.Ct. 906, 130 L.Ed.2d 788 (1995); Akin v. PAFEC
Ltd., 991 F.2d 1550, 1553 n. 1 (11th Cir.1993).
Having done that, the district court in this case set out in
its order denying summary judgment the "facts" upon which that
denial was based. As this Court has noted, what is considered to
be the "facts" at the summary judgment stage may not turn out to be
the actual facts if the case goes to trial, but those are the facts
at this stage of the proceeding for summary judgment purposes.
See, e.g., Swint, 51 F.3d at 992; Rodgers v. Horsley, 39 F.3d 308,
309 (11th Cir.1994); Kelly v. Curtis, 21 F.3d 1544, 1546 (11th
Cir.1994).
A. The Court of Appeals' Role In Regard to the Determination of the
Facts When It Reviews the Denial of a Motion for Summary
Judgment on Qualified Immunity Grounds
When a court of appeals interlocutorily reviews a legal issue
involved in a denial of summary judgment on qualified immunity
grounds, a question that arises in the wake of Johnson v. Jones is
what role, if any, the appellate court has in determining the facts
for summary judgment purposes. In the past, we have reviewed the
district court's evidentiary sufficiency determinations de novo,
undertaking to examine the record and decide for ourselves what the
facts are at this stage. See Rogers v. Miller, 57 F.3d 986, 988
(11th Cir.1995); Swint, 51 F.3d at 992; Rodgers, 39 F.3d at 309.
The Supreme Court's Johnson decision raised some doubt about the
correctness of that approach, but that doubt has been resolved in
recent decisions of this Court. In both Clifton, 74 F.3d at 1091,
and Dolihite, 74 F.3d at 1034-35 n. 3, this Court held that the
Supreme Court's Johnson v. Jones decision did not affect this
Court's authority to decide, in the course of deciding the
interlocutory appeal, those evidentiary sufficiency issues that are
part and parcel of the core qualified immunity issues, i.e., the
legal issues.2 Our Clifton and Dolihite holdings in this respect
are consistent with the Supreme Court's opinion in Behrens, ---
U.S. at ----, 116 S.Ct. at 842.
In exercising our interlocutory review jurisdiction in
qualified immunity cases, we are not required to make our own
determination of the facts for summary judgment purposes; we have
discretion to accept the district court's findings, if they are
2
To the extent, if any, that Heggs v. Grant, 73 F.3d 317
(11th Cir.1996), implies to the contrary, the implication is only
dictum. In that case, the parties were "in full agreement that
the events described" in the opinion "accurately portray what
happened" and, thus, the decision was based upon "undisputed
facts." Id. at 320.
adequate.3 See Johnson v. Jones, --- U.S. at ----, 115 S.Ct. at
2159 ("the court of appeals can simply take, as given, the facts
that the district court assumed when it denied summary judgment");
Dolihite, 74 F.3d at 1035 n. 3. But we are not required to accept
them. In this case, we will accept the district court's
evidentiary sufficiency findings, i.e., its factfindings for
present purposes, as far as they go, supplementing them with
additional evidentiary sufficiency findings of our own from the
record where necessary.
B. The Right of a Defendant Denied Summary Judgment on Qualified
Immunity Grounds to Have the Facts Determined at Trial and
Evidentiary Sufficiency Issues Reviewed on Appeal After Final
Judgment
Before recounting the facts the district court distilled from
the summary judgment record, we think it appropriate to make a few
additional observations about public officials and employees' right
to appellate review of evidentiary sufficiency questions underlying
their qualified immunity defenses. The Supreme Court's Johnson
decision applies only to interlocutory review, not to appellate
review following final judgment. As we have stated previously:
a defendant who does not win summary judgment on qualified
immunity grounds may yet prevail on those grounds at or after
trial on a motion for a judgment as a matter of law. See
Adams v. St. Lucie County Sheriff's Dep't, 962 F.2d 1563, 1579
n. 8 (11th Cir.1992) (Edmondson, J., dissenting) (dictum);
id., at 1567 n. 2 (non-majority opinion of Hatchett, J.)
(dictum), rev'd per curiam on other grounds, 998 F.2d 923, 923
(11th Cir.1993) (en banc). Moreover, a district court can,
"when needed, ... use special verdicts or written
interrogatories to the jury to resolve disputed facts before
the judge rules on the qualified-immunity question." Id.;
3
In determining the facts for summary judgment purposes, we,
like the district court, are required to view the evidence in the
light most favorable to the plaintiff. When that is done, a pure
issue of law is created.
accord Stone v. Peacock, 968 F.2d 1163, 1166 (11th Cir.1992)
(per curiam) (dictum). What we decide in this interlocutory
appeal is only whether the district court should have granted
summary judgment on qualified immunity grounds.
Kelly, 21 F.3d at 1546-47 (footnote omitted); accord Bendiburg v.
Dempsey, 19 F.3d 557, 561 (11th Cir.1994).
In cases where defendants are entitled to qualified immunity,
it is imperative that they receive the benefits of that defense
prior to trial through Fed.R.Civ.P. 12(b)(6), Fed.R.Civ.P. 12(c),
or Fed.R.Civ.P. 56(c). That imperative results from the nature of
the entitlement to qualified immunity. "The entitlement is an
immunity from suit rather than a mere defense to liability; and
like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial." Mitchell v. Forsyth, 472
U.S. at 526, 105 S.Ct. at 2815; accord Behrens, --- U.S. at ----,
116 S.Ct. at 839 ("Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct.
2727, 73 L.Ed.2d 396] [ (1982) ] and Mitchell make clear that the
defense is meant to give government officials a right, not merely
to avoid standing trial, but also to avoid the burdens of such
pretrial matters as discovery...." (internal quotation marks
omitted)); Johnson, --- U.S. at ----, 115 S.Ct. at 2158 (the very
policy militating in favor of immediate appeals from the denial of
qualified immunity motions is to protect public officials from
lawsuits); Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107
S.Ct. 3034, 3042 n. 6, 97 L.Ed.2d 523 (1987) (Because "[o]ne of the
purposes of the Harlow qualified immunity standard is to protect
public officials from the "broad-ranging discovery' that can be
"peculiarly disruptive of effective government'... we have
emphasized that qualified immunity questions should be resolved at
the earliest possible stage of a litigation."); Ansley v.
Heinrich, 925 F.2d 1339, 1346-47 (11th Cir.1991).4
Where the defendant's pretrial motions are denied because
there are genuine issues of fact that are determinative of the
qualified immunity issue, special jury interrogatories may be used
to resolve those factual issues. See Stone v. Peacock, 968 F.2d
1163, 1166 (11th Cir.1992); Bendiburg v. Dempsey, 19 F.3d at 561.
Because a public official who is put to trial is entitled to have
the true facts underlying his qualified immunity defense decided,
a timely request for jury interrogatories directed toward such
factual issues should be granted. Denial of such a request would
be error, because it would deprive the defendant who is forced to
trial of his right to have the factual issues underlying his
defense decided by the jury.
We do not mean to imply, of course, that district courts
should submit the issue of whether a defendant is entitled to
qualified immunity to the jury. Qualified immunity is a legal
issue to be decided by the court, and the jury interrogatories
should not even mention the term. Bendiburg v. Dempsey, 19 F.3d at
561; Stone v. Peacock, 968 F.2d at 1165-66; Ansley v. Heinrich,
925 F.2d at 1348. Instead, the jury interrogatories should be
restricted to the who-what-when-where-why type of historical fact
issues.
4
Not only is a defendant entitled to interlocutorily appeal
the denial of his qualified immunity defense when he asserts it
in a Rule 12(b)(6) motion, or in a Rule 56 motion for summary
judgment, he is entitled to interlocutorily appeal denial of both
such motions even where it results in two pretrial appeal
proceedings in a single lawsuit. Behrens, --- U.S. at ----, 116
S.Ct. at 839.
When a district court has denied the qualified immunity
defense prior to trial based upon its determination that the
defense turns upon a genuine issue of material fact, the court
should revisit that factual issue when, and if, the defendant files
a timely Fed.R.Civ.P. 50(a) or (b) motion. The party who receives
an adverse ruling on such a motion is free to seek appellate review
of that ruling in the usual manner following final judgment. The
effect of Johnson v. Jones on the power of appellate courts to
review pure evidentiary sufficiency rulings relating to qualified
immunity is confined to interlocutory appeals.
III. THE FACTS IN THIS CASE
In this part, we quote from the district court's memorandum
opinion and order denying defendant's motion for summary judgment,
those facts which it found from the summary judgment record and
relied upon to deny the summary judgment on qualified immunity
grounds, as well as on the merits.5
"On December 27, 1990, Caldwell and Wilson were dispatched to
2721 Second Street in Montgomery, Alabama to respond to a call on
the 911 emergency phone number. Upon arriving at that address,
they were met by Ella Ree Cottrell, who advised them that the
decedent, her grandson, had a history of psychological problems;
that he had stopped taking his medication which suppressed those
problems; and that he needed to be taken to a hospital. After an
incident occurred inside the residence, the officers placed the
decedent under arrest. A struggle then ensued and Caldwell and
5
We directly quote the full substantive text of these
factfindings, but omit the district court's record citations.
Wilson called for assistance."
"Shortly thereafter, Kemplin, Henderson and other police
officers arrived. After a struggle of twenty minutes, the decedent
was subdued and placed in handcuffs and leg restraints. The
defendants then placed the decedent in a police car with his feet
on the rear seat and his head in the space between the front and
rear seats. In this position, the decedent was unable to
adequately inhale oxygen and because of the handcuffs and leg
restraints could not reposition himself."
"Thereafter, Caldwell drove the police car back to the police
station and Wilson sat in the rear seat with the decedent. During
this period, the decedent died of "positional asphyxiation.' "
After stating the facts quoted above, the district court
discussed some legal rules and principles of law, and then stated
as follows:
"In the instant case, Cottrell presents two pieces of evidence
from which the court concludes that a genuine issue of material
fact exists as to whether or not the individual officers acted with
either gross negligence or deliberate indifference."
"First, Cottrell offers the affidavit of James J. Fyfe
("Fyfe'), an expert in police practices and procedures. Fyfe
maintains that: (1) "it was well known by police on the day of Mr.
Wilson's death improper restraint of arrested persons, particularly
those on medication and/or who have engaged in strenuous activity,
could quickly cause death by asphyxiation'; (2) "police
administrators throughout the United States have formulated clear
policies and training designed to assure that officers transport
prisoners safely'; (3) "[g]enerally accepted United States police
custom and practice dictates that arrested persons whose hands and
legs have been restrained be transported in police patrol cars only
if they can be seated in normal positions and secured to their
seats by seat belts or lap restraints'; (4) "[i]f [an] arrested
person whose hands and legs have been restrained are too violent or
active to be transported while normally seated in police patrol
cars, generally accepted United States police custom and practice
dictates that they be transported in ambulances or specially
designed vehicles'; (5) "[g]enerally accepted United States police
custom and practice also dictates that, no matter how they may be
restrained, arresting officers constantly monitor the health and
well-being of persons in their custody'; (6) police officers'
training "should include recognition of signs that such persons are
not breathing or suffocating, as well as appropriate response to
such emergencies'; (7) the officers who arrested Mr. Wilson
committed gross violations of the prevailing standards and caused
his unnecessary death; (8) the affidavits of Caldwell, Henderson,
Kemplin, Wilson, and Deputy Chief Mallory indicate that the
officers have not received proper training."
"Next, Cottrell offers copies of the transcripts and reports
of the Alabama Bureau of Investigation's ("ABI') interviews of
Caldwell, Henderson and Ms. Daisy Presley ("Presley').4"
"During her interview, Caldwell recalled statements by the
decedent's grandmother, at the time she arrived on the scene, that
indicated to her and Wilson that the decedent had a mental problem
and was taking medication. Her interview reveals that a
twenty-five minute struggle occurred between the officers and the
decedent and that it took six officers to handcuff him. Caldwell
also stated that during the struggle the decedent struck her and
Wilson and that Wilson struck the decedent. With regards to
transporting the decedent, she stated that she drove the vehicle
and Wilson sat in the back with the decedent; the decedent was in
handcuffs and leg restraints, lying face down on the floorboard;
and that Wilson and the decedent did not communicate between the
time they placed the decedent in the vehicle and the time that they
realized there was a problem.5"
"During his interview, Henderson emphasized that the decedent
was "really strong' and "three grown men couldn't hold this man
down.' He stated that during the struggle the decedent was
"breathing pretty hard.' Henderson also recalled that he kept
asking out loud "what [the decedent] was on or what's wrong with
6
him.' He noted that "I can't stress enough that through my mind
the whole time struggling with him and wrestling with a person you
can get tired real quick and I know we had been out there with him
at least 10 [minutes].' 7"
"4 Presley is a neighbor of the decedent and his
grandmother."
"5 The drive from the decedent's home to the police
station lasted approximately five minutes."
"6 With regards to his questioning the decedent's
condition, Henderson further recalled that "I was pushing his
leg real hard and it didn't phase him one bit, it's like
nobody's doing a thing to him.... They drug him out of the
house cause he wouldn't stand up and he just had a weird look
on his face, I mean he just wouldn't respond to nothing like
a normal person would.' "
"7 Henderson previously stated that the other officers
were with the decedent for at least twenty minutes before he
arrived."
"Finally, the ABI report of Presley's interview indicates that
she stated that: (1) she observed police officers drag the
decedent out of his home; (2) he appeared "limp', and (3) when
officers placed him on the pavement his face went down on the
pavement and he did not attempt to move his face."
IV. ANALYSIS
A. The Mistreatment in Custody Claim
We think that in view of the circumstances of this case, the
proper analytical approach to reviewing the denial of summary
judgment as to the custodial mistreatment claim is the one the
Supreme Court followed in Siegert v. Gilley, 500 U.S. 226, 111
S.Ct. 1789, 114 L.Ed.2d 277 (1991), an interlocutory appeal
decision which held that the district court's denial of the
defendant's motion for summary judgment on qualified immunity
grounds was due to be reversed. The Supreme Court reached that
conclusion by going straight to the merits and holding that the
plaintiff "not only failed to allege the violation of a
constitutional right that was clearly established at the time of
Gilley's actions, but he failed to establish the violation of any
constitutional right at all." 500 U.S. at 233, 111 S.Ct. at 1794.
Where the absence of merit in the plaintiff's case can be readily
determined at the interlocutory appeal stage, the Siegert
analytical approach makes sense, because "[a] necessary concomitant
to the determination of whether the constitutional right is
"clearly established' at the time the defendant acted is the
determination of whether the plaintiff has asserted a violation of
a constitutional right at all." 500 U.S. at 232, 111 S.Ct. at
1793.
Although we have not considered the Siegert approach
mandatory, see Spivey v. Elliott, 41 F.3d 1497, 1498 (11th
Cir.1995), we have followed it on occasion, see, e.g., Wooten v.
Campbell, 49 F.3d 696, 699 (11th Cir.), cert. denied, --- U.S. ----
, 116 S.Ct. 379, 133 L.Ed.2d 302 (1995); Burrell v. Board of
Trustees of Ga. Military College, 970 F.2d 785, 792 (11th
Cir.1992), cert. denied, 507 U.S. 1018, 113 S.Ct. 1814, 123 L.Ed.2d
445 (1993). In Burrell, for example, we reversed a denial of
summary judgment on qualified immunity grounds insofar as it
involved an alleged conspiracy to violate the plaintiff's First
Amendment right to freedom of speech. Id. at 792-93. Our
reasoning was that:
Assuming, without deciding, that Baugh and Goldstein would
have violated a clearly established constitutional right by
conspiring with Baggarly to have Burrell fired for speaking
out against GMC, the record does not contain inferable facts
that could support a finding that either Baugh or Goldstein in
any way conspired with Baggarly to discharge her for her
public criticism of GMC. Without a conspiracy, there
obviously is no constitutional violation. Without a
constitutional violation, there can be no violation of a
clearly established constitutional right. See Oladeinde v.
City of Birmingham, 963 F.2d 1481, 1485 (11th Cir.1992)
(citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789,
1793, 114 L.Ed.2d 277 (1991)).
We will follow the Siegert approach here, just as we did in
Burrell, but instead of examining the record ourselves as we did in
Burrell, we will begin with the facts found by the district court
and supplement them only where necessary to determine if summary
judgment should have been granted after proper application of the
law to the facts.
Claims involving the mistreatment of arrestees or pretrial
detainees in custody are governed by the Fourteenth Amendment's Due
Process Clause instead of the Eighth Amendment's Cruel and Unusual
Punishment Clause, which applies to such claims by convicted
prisoners. E.g., Bell v. Wolfish, 441 U.S. 520, 535 & n. 16, 99
S.Ct. 1861, 1872 & n. 16, 60 L.Ed.2d 447 (1979); Hale v.
Tallapoosa County, 50 F.3d 1579, 1582 n. 4 (11th Cir.1995); Jordan
v. Doe, 38 F.3d 1559, 1564-65 (11th Cir.1994). However, the
applicable standard is the same, so decisional law involving prison
inmates applies equally to cases involving arrestees or pretrial
detainees. E.g., Jordan, 38 F.3d at 1564-65 (citing Hamm v. DeKalb
County, 774 F.2d 1567, 1574 (11th Cir.1985), cert. denied, 475 U.S.
1096, 106 S.Ct. 1492, 89 L.Ed.2d 894 (1986)).
Finding no evidence that the defendant officers intended that
Leroy Wilson, the arrestee, be asphyxiated, the district court read
the due process claim as one alleging deliberate indifference and
proceeded to analyze it on that basis. Actually, the district
court applied to the evidence a standard of " either gross
negligence or deliberate indifference" (emphasis added), a standard
it drew from language in Owens v. City of Atlanta, 780 F.2d 1564,
1567 (11th Cir.1986). The "gross negligence" language in the
Owens
opinion is dictum, because the evidence in that case showed at most
simple negligence, which would have been insufficient to state a
valid due process claim regardless of whether the standard was
deliberate indifference, or was either gross negligence or
deliberate indifference. In any event, the Supreme Court's recent
decision in Farmer v. Brennan, --- U.S. ----, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994), which was released after this case left the
district court, makes it clear that "gross negligence" is not part
of the standard for judging custody mistreatment claims under the
Due Process Clause.
In Farmer, the Court began with the proposition that the
mistreatment standard is " "deliberate indifference' to a
substantial risk of serious harm," id. at ----, 114 S.Ct. at 1974,
and then proceeded to define the standard which has both an
objective component and a subjective component. Id. at ----, 114
S.Ct. at 1977. To satisfy the objective component, the plaintiff
must show a deprivation that is, "objectively, sufficiently
serious," which means that the defendants' actions resulted "in the
denial of the minimal civilized measure of life's necessities."
Id. (internal quotation marks omitted).
Even when that objective component is established, an in
custody mistreatment claim still fails unless the plaintiff
establishes that the defendant had a " "sufficiently culpable state
of mind.' " Id. That requisite "state of mind is one of
deliberate indifference to inmate health or safety." Id. (internal
quotation marks omitted). It is a state of mind "lying somewhere
between the poles of negligence at one end and purpose or knowledge
at the other." Id. at ----, 114 S.Ct. at 1978. It is "the
equivalent of recklessly disregarding" a substantial risk of
serious harm to the inmate. Id. The Court in Farmer squarely
rejected the plaintiff's invitation to adopt a purely objective
test for deliberate indifference, holding instead that there could
be no liability "unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the
inference." Id. at ----, 114 S.Ct. at 1979. There is no liability
for "an official's failure to alleviate a significant risk that he
should have perceived but did not...." Id.
Applying Farmer to the facts found by the district court in
this case, it is apparent that summary judgment should have been
granted on the in custody mistreatment claim. The district court
did not find that either defendant knew of and disregarded an
excessive risk that Leroy Wilson would suffocate after he was
placed in the back seat of the police car and before it arrived at
the station five minutes later; the court did not find that either
defendant drew from the facts known to that defendant the inference
that a substantial risk of harm existed.
Because Farmer was released after the district court issued
its order and findings, we have examined the record carefully to
determine if there is any genuine issue of material fact as to the
subjective intent element prescribed in Farmer. Cf. Johnson, ---
U.S. at ----, 115 S.Ct. at 2159 (where a district court has not
stated the facts upon which its decision to deny summary judgment
is based, a court of appeals may have to review the record to
determine what facts the district court likely assumed). The
record contains no evidence that either defendant officer knew of
and consciously disregarded the risk that Charles Wilson would
suffocate in the back seat of the police car. As the district
court's findings indicate, there is evidence, in the form of an
affidavit from plaintiff's expert, that most police officers around
the country receive training designed to assure safe transportation
of prisoners, and that such training should include recognition of
signs of suffocation. However, the district court found that the
officer defendants in this case had not received such training
("the affidavits ... indicate that the officers have not received
proper training.").
The affidavit of plaintiff's expert also states, in conclusory
terms, that "it was well known by police on the day of Mr. Wilson's
death improper restraint of arrested persons, particularly those on
medication and/or who have engaged in strenuous activity, could
quickly cause death by asphyxiation." Such a conclusory statement
about police in general is not evidence about the mental state of
these defendant officers in particular. The same is true of the
statements in the expert's affidavit that these officers' conduct
violated "[g]enerally accepted United States police custom and
practice" in several ways. Farmer requires a great deal more of
the plaintiff than a showing that the defendants violated generally
accepted customs and practices.
Because there is no evidence in the summary judgment record
sufficient to support a jury finding that the defendant officers
were consciously aware of and disregarded the risk that Mr. Wilson
would suffocate, plaintiff has failed to show a violation of due
process, and it necessarily follows that the defendants are
entitled to summary judgment on qualified immunity grounds. See
Siegert, 500 U.S. at 232, 111 S.Ct. at 1793. We are confident that
the district court would have reached that conclusion, and ruled
differently than it did, if the Farmer decision had been available
to it.
B. The Excessive Force Claim
The district court disposed of the defendants' motion for
summary judgment on the Fourth Amendment excessive force claim in
a footnote, simply stating that because of its decision to deny
summary judgment as to the Due Process claim, "prudence dictates
that it also denied defendants' motion for summary judgment on
[plaintiff's] Fourth Amendment claim. Defendants are given leave
to raise this issue again at the time of trial." When their motion
for summary judgment on qualified immunity grounds is denied,
defendants are not required to have leave of court in order to
raise the defense again at trial. See supra pp. 10-13. To the
extent that the district court's language could be interpreted as
declining to rule on the qualified immunity issue until trial, its
action had the same effect, for our interlocutory jurisdiction
purposes, as a complete denial. See, e.g., Collins v. School Bd.
of Dade County, Fla., 981 F.2d 1203, 1205 (11th Cir.1993). To the
extent that the district court's reasoning is based, as its
language seemingly indicates, upon its decision to deny the motion
for summary judgment as to the due process claim, then it is
erroneous because the court's reasoning on the due process claim is
itself erroneous, for the reasons we have previously discussed.
In any event, the two claims involve different legal
standards. The proper standard for judging Fourth Amendment
excessive force claims is set out in Graham v. Connor, 490 U.S.
386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). That standard is one
of objective reasonableness: "the question is whether the
officers' actions are "objectively reasonable' in light of the
facts and circumstances confronting them, without regard to their
underlying intent or motivation." 490 U.S. at 397, 109 S.Ct. at
1872. The district court's detailed factfindings concerning the
events surrounding the arrest and the force applied make it clear
that there is no genuine issue of material fact concerning
excessive force in this case, and the defendant officers are
entitled to summary judgment as a matter of law. It necessarily
follows that the district court should have granted their motion
for summary judgment on qualified immunity grounds. See Siegert,
500 U.S. at 232, 111 S.Ct. at 1793.
V. CONCLUSION
We REVERSE the district court's denial of the defendants'
motion for summary judgment on qualified immunity grounds as to
both claims and REMAND this case for further proceedings consistent
with this opinion.
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FILED
NOT FOR PUBLICATION JUN 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUSINE MELIK OHANYAN; No. 13-71988
ANDRANIK KALANTARYAN,
Agency Nos. A088-090-049
Petitioners, A088-090-050
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Lusine Melik Ohanyan and Andranik Kalantaryan, natives and citizens of
Armenia, petition for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s decision denying their
applications for asylum, withholding of removal, and protection under the
*
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).
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252. We review for substantial evidence the agency’s factual findings, applying
the standards governing adverse credibility determinations created by the REAL ID
Act, Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010), and we deny the
petition for review.
As an initial matter, the record does not compel the conclusion that
petitioners have established changed or extraordinary circumstances to excuse their
untimely asylum applications. See 8 C.F.R. §§ 1208.4(a)(4), (5); see also Toj-
Culpatan v. Holder, 612 F.3d 1088, 1091 (9th Cir. 2010) (per curiam). Thus, we
deny the petition as to petitioners’ asylum claims.
With regard to Melik Ohanyan’s withholding of removal claim, substantial
evidence supports the BIA’s adverse credibility determination based on
inconsistencies between Melik Ohanyan’s declaration and testimony regarding her
political activities and interactions with her political party members. See Shrestha,
590 F.3d at 1048 (adverse credibility determination was reasonable under the
“totality of circumstances”). Melik Ohanyan’s explanations do not compel a
contrary conclusion. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). In the
absence of credible testimony, Melik Ohanyan’s withholding of removal claim
fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
2 13-71988
Melik Ohanyan’s CAT claim fails because it is based on the same evidence
the BIA found not credible, and she does not point to any other evidence that
compels the conclusion that it is more likely than not she would be tortured by or
with the acquiescence of the government if returned to Armenia. See Shrestha,
590 F.3d at 1048-49.
As to Kalantaryan’s withholding of removal claim, substantial evidence
supports the BIA’s determination that, even if credible, Kalantaryan failed to
establish his experiences in Armenia constituted past persecution. See Hoxha v.
Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003); see also Prasad v. INS, 47 F.3d
336, 340 (9th Cir. 1995) (“Although a reasonable factfinder could have found
[these incidents constituted] past persecution, we do not believe that a factfinder
would be compelled to do so.”) (emphasis in original). Further, the record does not
compel the conclusion that Kalantaryan has a clear probability of future harm. See
Hoxha, 319 F.3d at 1185. Thus, Kalantaryan’s withholding of removal claim fails.
Finally, substantial evidence supports the BIA’s denial of Kalantaryan’s
CAT claim because he failed to establish it is more likely than not he would be
tortured by or with the consent or acquiescence of the government if returned to
Armenia. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
PETITION FOR REVIEW DENIED.
3 13-71988
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Moore v. State
IN THE
TENTH COURT OF APPEALS
No. 10-95-247-CR
CHARLES MOORE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 95-281-C
O P I N I O N
A jury convicted appellant, Charles Moore, of burglary of a building. Tex. Penal Code
Ann. § 30.02(a)(1) (Vernon 1994). The same jury, pursuant to the Texas habitual offender
statute, assessed punishment at 80 years' incarceration in the Institutional Division of the Texas
Department of Criminal Justice. Moore appeals, alleging four points of error: (1) the trial court
erred in denying his request for a hearing on a motion in limine to determine the relevancy and
prejudicial effect of a pocketknife found at the crime scene; (2) the trial court erred in admitting
a picture of the pocketknife into evidence; (3) the trial court erred in denying Moore's motion for
new trial based upon a prejudicial statement made by a witness; and (4) the trial court erred in
allowing Moore to be sentenced under the habitual offender statute.
On December 24, 1994, responding to a report of a burglary in progress, police officers
arrived at Maureen's Antique Shop, which is located on the corner of Columbus Avenue and 26th
Street in Waco. Inside the building, police officers found and arrested appellant, Charles Moore.
Upon further inspection of the premises, police officers found that a front window had been
broken and its screen cut. They also discovered a broken window in the bathroom which itself
was in disarray. Moore was indicted for burglary of a building and was found guilty of the
offense. Moore's punishment was enhanced with two prior felony convictions, both for burglary
of a building.
In his first point of error, Moore contends the trial court erred in denying his request for
a hearing on his motion in limine requesting that a pocketknife found in the burglarized building
be excluded from the evidence. Moore maintains the trial court should have held a hearing to
determine the relevancy of the pocket knife, Tex. R. Crim. Evid. 401, 402, and to determine
whether the prejudicial effect of admitting the pocketknife into evidence substantially outweighed
its probative value. Tex. R. Crim. Evid. 403. Other than these assertions, Moore has provided
no argument or authority in support of his position that the trial court was obligated to hold a
hearing on the admissibility of the pocketknife under Rules 401, 402 and 403 of the Rules of
Criminal Evidence. Tex. R. Crim. Evid. 401, 402, 403. Therefore, we consider this issue
inadequately briefed and as presenting nothing for review. Tex. R. App. P. 74(f); Penry v. State,
903 S.W.2d 715, 760 (Tex. Crim. App.), cert. denied, — U.S. —, 116 S.Ct. 480 (1995);
Robinson v. State, 851 S.W.2d 216, 222 n.4 (Tex. Crim. App. 1991), cert. denied, — U.S. —,
114 S.Ct. 2765 (1994). Moore's first point is overruled.
In his second point of error, Moore contends the trial court erred in admitting a photograph
of the pocketknife into evidence because there had been no evidence introduced to connect the
pocketknife to him. A photograph is relevant if it has "any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence." Penry, 903 S.W.2d at 751 (quoting Tex. R. Crim. Evid. 401).
Determining the admissibility of photographs is left solely to the trial court, and we will not
disturb that ruling absent an abuse of discretion. Id.
To prove that a burglary of a building has been committed, the State must show that a
person, intentionally or knowingly, entered a building without the effective consent of the owner
in order to commit a felony or theft. Tex. Penal Code Ann. § 30.02(a)(1); Davilla v. State, 547
S.W.2d 606, 608 (Tex. Crim. App. 1977). The facts (1) that a window screen had been cut with
a sharp object and the window broken; (2) that an opened pocketknife was found inside the
building; (3) that according to the owners of the building, the pocketknife had not been there when
they left the antique shop that day; and (4) that Moore was arrested inside the building combine
to make the proposition that Moore used the knife in an attempt to burglarize the building more
probable than it would be without the photograph of the knife. We find the trial court did not
abuse its discretion in finding the photograph of the knife relevant and admitting it into evidence.
Moore's second point is overruled.
In Moore's third point of error he alleges the trial court erred in denying his motion for
a mistrial. On appeal, Moore contends that a statement made by Sergeant Dennis Tynes during
his testimony was "highly prejudicial" and "poisoned the minds of the jury." However, we need
not address the merits of Moore's argument.
On appeal, "the point of error must correspond to the objection made at trial." Broxton
v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Webb v. State, 899 S.W.2d 814, 819
(Tex. App.—Waco 1995, no pet.); see also Tex. R. App. P. 52(a). At trial, Moore's objection
to Sergeant Tynes' statement was "nonresponsive." On appeal, Moore contends that the statement
was prejudicial. Because Moore's point of appeal does not comport with his trial objection, we
find that Moore failed to preserve his complaint for review. Broxton, 909 S.W.2d at 918; Webb,
899 S.W.2d at 819.
Furthermore, Moore cited no authority for his contention that Sergeant Tynes' statement
was prejudicial. Because this point of error is inadequately briefed, we find that it presents
nothing for review. Tex. R. App. P. 74(f); Penry, 903 S.W.2d at 760; Robinson, 851 S.W.2d at
222 n.4. Moore's third point is overruled.
In his fourth point of error, Moore argues that the trial court erred in allowing his sentence
to be imposed under the habitual offender statute
instead of the state jail felony statute. Tex.
Penal Code Ann. § 12.35(a) (Vernon 1994). Moore was convicted of burglary of a building,
which is a state jail felony. Tex. Penal Code Ann. § 30.02(c)(1) (Vernon 1994). The Court of
Criminal Appeals has expressly held that state jail felonies cannot be enhanced under section
12.42(d). Mancuso v. State, 919 S.W.2d 86, 89 (Tex. Crim. App. 1996). Therefore, we sustain
Moore's fourth point of error.
Moore's conviction is affirmed but his sentence is reversed and the cause remanded for a
new punishment hearing.
BOBBY L. CUMMINGS
Justice
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Affirmed in part; reversed in part and remanded
Opinion delivered and filed November 6, 1996
Do not publish
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300 F.2d 555
Boyd ADAMS, d/b/a Boyd Adams Livestock Commission Company,and Western Casualty and Surety Company, Appellants,v.Willis GREESON, d/b/a Montgomery County Auction, Appellee.
No. 6784.Boyd ADAMS, d/b/a Boyd Adams Livestock Commission Company,and Western Casualty and Surety Company, Appellants,v.Hiram WALL, d/b/a Hiram Wall Sales Company, Appellee.
No. 6783.
United States Court of Appeals Tenth Circuit.
Feb. 17, 1962.
Robert J. Bell and A. James Gordon, McAlester, Okl., were on the brief for appellants.
Lowell E. Clifton, Oklahoma City, Okl., and Jeptha A. Evans, Booneville, Ark., were on the brief for appellees.
Before BRATTON, LEWIS, and BREITENSTEIN, Circuit Judges.
BRATTON, Circuit Judge.
1
These actions were to recover damages for alleged conversion of liverstock. Willis Greeson instituted one of them against Boyd Adams and Western Casualty and Surety Company, and Hiram Wall instituted the other against the same defendants. The cases were tried to the court without a jury. The evidence was without substantial conflict. It disclosed these facts. Using the trade name Montgomery County Auction, Greeson was engaged in the livestock commission business at Mount Ida, Arkansas; using the trade name Hiram Wall Sales Company, Wall was engaged in a like business at Booneville, Arkansas; and operating under the trade name Boyd Adams Livestock Commission Company, Adams was similarly engaged in business at McAlester, Oklahoma. Adams was licensed and bonded under the provisions of the Packers and Stockyards Act, 42 Stat. 159, 7 U.S.C.A. 181 et seq. Western Casualty and Surety Company executed as surety the bond given by Adams. D. F. Pierce was engaged in the business of buying and selling livestock. Most of his purchases were made at auction sales; and in some if not most instances liverstock which he purchased in that manner was sold through liverstock agencies.
2
On January 22, 1960, Pierce attended Greeson's auction sale and purchased forty six head of cattle. Four days later, he attended Wall's auction sale and purchased twenty eight head of cattle. In payment for such purchases, Pierce gave Greeson and Wall each a check drawn on a bank at Heavener, Oklahoma. Wall gave to Pierce a 'BUYER'S BILL' at the bottom of which it was stated in substance that customers purchasing livestock through the company by check or draft expressly agreed that title did not pass untl the fund was actually received on such check or draft. Pierce caused both lots of cattle to be promptly transported to McAlester and there delivered to Adams sold the cattle and of pierce, adams sold the cattle and accounted to Pierce for the proceeds. After each sale and accounting by Adams, the check given by Pierce for the purchase of the cattle was dishonored.
3
Judgment was entered for plaintiff in each case, and defendants appealed.
4
Jurisdiction of the court to entertain the actions is challenged. The ground of challenge is that there was diversity of citizenship but less than ten thousand dollars involved in each case. The Packers and Stockyards Act, supra, expressly emplowers the Secretary of Agriculture to require reasonable bonds from marketing agencies and dealers to secure the performance of their obligations. 7 U.S.C .A. 204. In the exercise of such power, the Secretary required every market agency and dealer to give such bond. 9 C.F.R. 201.29. And by further regulation, the Secretary required such bond to contain a provision that any person damaged by failure of the principal to comply with the condition clauses contained therein may maintain suit to recover on the bond even though such person is not a party named in such bond. 9 C.F.R. 201.33. The bond executed by the defendants in each of these cases was executed pursuant to such requirement. And it is provided by 28 U.S.C. 1352 that the district courts of the United States shall have original jurisdiction, concurrent with state courts, of any action on a bond executed under any law of the United States. Less than ten thousand dollars was involved in each case, but since the bond upon which recovery was sought was executed pursuant to an authorized regulation promulgated by the Secretary, the court had jurisdiction under 28 U.S.C. 1352 to entertain the actions. Hartford Accident and Indemnity Co. v. Baldwin, 8 Cir., 262 F.2d 202.
5
The Packers and Stockyards Act does not undertake to fix the respective rights of the parties to a transaction in which the owner of livestock delivers possession thereof to a purchaser who gives in payment therefor a worthless check. The act does not have the effect of altering in part or superseding in whole the respective rights of the immediate parties under state law to a transaction of that kind. Sig Ellingson & Co. v. De Vries, 8 Cir., 199 F.2d 677, certiorari denied, 344 U.S. 934, 73 S.Ct. 505, 97 L.Ed. 719; Sig Ellingson& Co. v. Butenbach, 8 Cir., 199 F.2d 679, certiorari denied, 344 U.S. 934, 73 S.Ct. 505, 97 L.Ed . 719. And under the law of Arkansas, one who obtains possession of personal property by giving to the owner thereof a worthless check in payment therefor acquires a defeasible title to such property. Pingleton v. Shepherd, 219 Ark. 473, 242 S.W.2d 971. Pierce acquired a defeasible title to the liverstock which he obtained from Greeson and Wall and his title had not been voided at the time Adams received and sold such livestock. Adams acted without notice that Pierce had obtained possession of the livestock by giving worthless checks and therefore had only a voidable title. And in such circumstances, the law of Arkansas does not vest in Greeson and Wall the right to assert as against Adams ownership of the livestock. In this connection, we do not overlook the rule in Arkansas that where a commission factor receives and sells livestock which has been stolen, he is liable to the owner. Eureka Springs Sales Co. v. Ward, 226 Ark. 424, 290 S.W.2d 434. But it is manifest that no situation of that kind is presented here.
6
Since Adams received and sold the livestock in Oklahoma, the question whether as a result he became liable in damages to Greeson and Wall for conversion must be determined by the law of that state. Pierce had attended many auction sales conducted by Greeson at his place of business, had made many purchases at such sales, and had given checks for previous purchases. He had attended at least one sale at Wall's place of business, and had made at least one purchase . At the time of the transactions now under review, Greeson and Wall knew that he was a dealer on the market and that in all probability the liverstock being delivered to him would be quickly placed in the channels of commerce. Adams also knew that Pierce was a dealer in livestock on the market. In the course of about two years prior to these transactions, he had sold for Pierce many lots of livestock. The ordinary procedure which had been followed in such prior transactions was that Pierce gave to the owner from whom he purchased livestock his personal check or sight draft in payment therefor drawn on the bank at Heavener; as a means of covering such a check or sight draft, he gave the bank at Heavener a sight draft drawn on Adams through a bank in McAlester; the bank in McAlester advised Adams when the draft arrived; Adams directed the bank to pay the draft if the livestock was then in his pens; Adams sold the livestock; and then accounted to Pierce for the proceeds of the sale . No difficulty had arisen in the course of the previous transactions. In the two instances giving rise to this litigation, Adams acted without any notice or suggestion that Pierce had acquired possession of the livestock by giving worthless checks in payment therefor. He acted without any notice or knowledge of any irregularity in the method or means by which Pierce acquired possession of the livestock. He did not know that Greeson or Wall or anyone other than Pierce had any right or interest in the livestock. As a conventional brokerage factor acting in the due course of business, he did not breach any provision of the Packers and Stockyards Act, any provision in an applicable regulation of the Secretary of Agriculture, or any provision in the bond given pursuant to the requirement of the Secretary. And he is not liable under the substantive law of Oklahoma for conversion. Kent v. Wright, 198 Okl. 103, 175 P.2d 802.
7
The judgments are secerally reversed and the causes remanded with directions to enter judgments for the defendants.
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316 F.2d 753
Inez LYONS, Plaintiff-Appellee,v.J. C. PENNEY COMPANY, Defendant-Appellant.
No. 13888.
United States Court of Appeals Seventh Circuit.
April 11, 1963.
Fred P. Bamberger, Evansville, Ind., Bamberger, Foreman, Oswald & Hahn, Evansville, Ind., of counsel, for defendant-appellant.
Gerald G. Fuchs, Evansville, Ind., Fuchs & Knoll, Evansville, Ind., of counsel, Raymond P. Knoll, Evansville, Ind., for plaintiff-appellee.
Before SCHNACKENBERG, KNOCH, and KILEY, Circuit Judges.
KILEY, Circuit Judge.
1
This is a diversity personal injury action1 with a $2,500.00 verdict and judgment for plaintiff. Penney has appealed.
2
Plaintiff was injured in Penney's department store in Evansville, Indiana. She was walking, ahead of her husband, from behind a curtain-cutting counter to a thread counter in the store. When she stepped into the aisle leading to the thread counter, her ankle struck a mannequin platform located in the middle of the aisle. She fell to the floor and was injured.
3
Penney admits plaintiff was its business invitee, that the aisle was primarily for the use and convenience of customers, and that she was injured, generally, in the way she described.
4
Penney contends, however, that the District Court erred in denying its motion for directed verdict and in submitting the case to the jury, because there was no evidence that it breached its duty to plaintiff. We consider, on this issue of law, only the evidence favorable to plaintiff and draw the inferences most strongly in her favor. Ziegler v. Equitable Life Assurance Society, 284 F.2d 661 (7th Cir. 1961).
5
Under Indiana law, although Penney was not insurer of plaintiff's safety while a customer in its store, it had the duty to exercise ordinary care to keep its store in a reasonably safe condition so as not to cause injury to plaintiff, a business invitee. Great Atlantic and Pacific Tea Co. v. Custin, 214 Ind. 54, 13 N.E.2d 542, 14 N.E.2d 538 (1938), J. C. Penney Co. v. Kellermeyer, 107 Ind. App. 253, 19 N.E.2d 882, 22 N.E.2d 899 (1939).
6
There is evidence for plaintiff which, with its favorable inferences, would warrant the jury in finding that Penney should have foreseen, as a reasonably prudent person, that plaintiff, a woman shopper, when directed by Penney from the cutting counter to the thread counter, would be likely when walking around the corner of the cutting counter, to trip over a platform 3' wide, 5' long, and 4½" high, set in the middle of the aisle, hidden by the cutting counter, with its color substantially the same color as the floor; and that in tripping she would probably be injured.
7
We hold, therefore, that the court did not err in denying Penney's motion for directed verdict and in submitting the case to the jury on the question of Penney's negligence.
8
We have considered all of the arguments made by Penney in support of its position that the court erred as a matter of law. Among these are that plaintiff, had she watched where she was going, would have seen the platform; that her husband did not trip; and that the use of the aisle for the mannequin platform was a reasonable use. We are of the opinion that these arguments, and similar ones made, were matters of defense for the jury.
9
We have also read the cases cited by Penney and need distinguish only one, Parker v. Jordan Marsh Co., 310 Mass. 227, 37 N.E.2d 465 (1941). The rule in Massachusetts is similar to the rule in Indiana. The facts in that case distinguish it from the one at bar. There was no evidence there that the platform and floor were substantially the same color. And the plaintiff there had walked by the platform in the "large aisle" before she turned from a counter and tripped over it.
10
For the reasons given, the judgment is affirmed.
Notes:
1
A nuisance count was withdrawn from the jury on Penney's motion
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821 A.2d 1 (2003)
373 Md. 637
Lawrence CAMPBELL
v.
STATE of Maryland.
No. 26, Sept. Term, 2002.
Court of Appeals of Maryland.
April 7, 2003.
*2 Geraldine K. Sweeney, Assistant Public Defender, (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.
Sarah Page Pritzlaff, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.
Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.
HARRELL, Judge.
We granted certiorari in this case to determine whether a trial judge had jurisdiction to consider an out-of-time supplement to a timely filed motion for a new trial in a criminal matter, pursuant to Maryland Rule 4-331(2000), and, if so, whether the trial judge abused his discretion by denying the motion on the supplemental ground on its merits. We find that the trial judge did have authority to consider the pertinent supplement and that he properly denied the motion for a new trial.
I.
This underlying case arose from a shooting incident that occurred outside of a Kentucky Fried Chicken (KFC) restaurant in Prince George's County. One of the State's witnesses, Oscar Veal, a self-confessed "hit man" who pled guilty in a federal court to seven counts of murder in aid of racketeering activities (18 U.S.C. § 1959(a)(1) (1994)), and whose credibility the defendant sought to impeach both at trial and through newly discovered evidence, became the focus of defendant's effort to gain a new trial.
The fatal shooting occurred at approximately 11:15 p.m. on 2 February 1998. Doris Bryant testified at trial that she *3 witnessed the shooting from the parking lot of her apartment building located near the KFC. She stated that a Chevy Suburban was parked in the parking lot of the KFC restaurant on Md. Route 202 in Cheverly, Maryland. She described six principal actors at the scene of the shooting. One tall black man stood in the shadows of the parking lot fence with a "shiny object" in his hand, later confirmed to be a gun; a second black man, described by the witness as "chubby" and later confirmed to be one Walter Fleming, exited the passenger's side of the Chevy truck and walked towards a phone booth; a third man, later alleged to be Campbell, walked from the street towards the passenger's side of the truck; and, a fourth man was walking from the KFC to the driver's side of the truck. Ms. Bryant heard a "pop" sound, followed by a fifth young man, in a crouching position, getting out of the Suburban from the rear passenger's side. The exiting passenger started shooting a gun at the man standing at the phone booth. Campbell, who was standing at the driver's side of the Suburban, was shooting into the car at yet another man seated behind the steering wheel (later identified to be Milton J. Hill). At some point, Ms. Bryant testified, Campbell also began shooting at the man by the phone booth. The man at the phone booth, Fleming, after executing a drop and roll maneuver, got up, and ran into a 7-11 store located in the same parking lot as the KFC. Ms. Bryant reported that Fleming did not appear to have a gun and that the man standing by the fence did not fire his gun. All, save Hill and Fleming, fled the scene of the crime after one of the shooters noticed Ms. Bryant.
Hill was pronounced dead at the scene and Fleming was transported on advanced life support to a hospital. Fleming survived. He told the police officer who arrived first at the scene before he was transported that "Inky shot me.... Inky rolled up and shot me and my boy." "Inky" was later confirmed to be the nom de guerre of Lawrence Campbell, Petitioner.
Campbell was tried by a jury in the Circuit Court for Prince George's County.[1] At trial, the State introduced no physical evidence of criminal agency, relying instead on the testimony of Doris Bryant, Walter Fleming, and Oscar Veal. Fleming gave testimony about his thirteen-year career as a drug dealer handling substantial amounts distributed over a large geographic area.[2] On the day of the shooting, Petitioner had ordered $16,000.00 worth of cocaine from Fleming. Fleming and his friend, Milton J. Hill, met Petitioner at an arranged meeting place to deliver the requested cocaine. They agreed to reconvene fifteen minutes later at the KFC parking lot for delivery of the purchase money. After waiting in the truck in the parking lot for about half an hour, Fleming walked to the pay phone leaving Hill in the truck. As he did so, the shooting began. Fleming claimed that he struggled hand-to-hand with one of the gunmen, but that the person who shot him was not Campbell.
*4 The other witness for the State, Oscar Veal, Jr., was a drug dealer and self-confessed "hit man."[3] Veal testified that, in the summer of 1998, Petitioner told him he had committed a murder at a KFC in Maryland resulting from "drugs and money, and a gentleman was killed because he was with [Fleming]." He also testified that Campbell told him that the man who had been killed "was a guy that was with another gentleman who was a witness." That man clearly was Fleming. During the course of his testimony, Veal admitted to killing seven people within an eighteen-month period. He appeared in court wearing a religious headdress and further intimated that his willingness to testify in Petitioner's trial resulted from a religious rebirth that coincided with his federal conviction and sentencing. On the basis of this evidence, Petitioner was convicted of the attempted first degree murder of Fleming and second degree murder of Hill, as well as conspiracy to murder Hill and conspiracy to murder Fleming.
On 29 December 2000, ten days after the verdict was entered, defense counsel filed a motion for a new trial. Counsel alleged the existence of newly discovered exculpatory evidence that was divulged to defense counsel for the first time three days after the verdict. The motion proffered that a former associate (Naurice Bland) of Fleming's long-time rival, Roy Cobb, was prepared to testify that Cobb had set-up Fleming at the KFC and that Cobb had shot Hill and Fleming. It was alleged also that Bland would assert that Fleming retaliated by murdering Cobb a few months after the KFC shooting.
On 9 January 2001, defense counsel filed a supplement to the original motion for a new trial. The supplement proffered that additional evidence had been newly discovered[4] from Joseph Penny, Fleming's cell-mate at the Arlington County Detention Center. Penny's sworn statement to defense counsel attested that Fleming had told him he was "set up" by Cobb at the KFC. In response to the motion and supplement, the State filed an "Opposition to Defendant's Motion for New Trial" denouncing the credibility of the Penny and Bland statements, arguing that the new evidence was immaterial, and asserting that defense counsel failed to show that the newly discovered evidence from Penny could not have been discovered by due diligence in time to file with the original motion. Petitioner filed a responsive pleading on 20 February 2001, relying on Maryland Rule 4-331(a)[5] and Maryland Rule 4-331(c),[6] to support his proffer of the Bland *5 and Penny evidence, respectively. Additionally, Petitioner proffered additional new evidence that Oscar Veal previously had accused falsely another person of murder in an unrelated case.[7] The State responded to the allegations concerning Veal's credibility by stating,
nowhere in Oscar Veal's statement to the FBI does he say that Derrick Moore was present when Clyburn was killed. Thus, there is no impeachable evidence against Veal. Assuming arguendo that it is, the law is clear that the evidence must be more than merely cumulative or impeaching in order to be considered newly discovered evidence.
The trial court heard the post-trial motion on 23 February 2001, the same day scheduled for Campbell's sentencing. Petitioner elected not to press further that the Bland testimony would support a new trial, thereby abandoning that contention. Instead, Petitioner relied on the statements of Penny and the new evidence concerning Veal's credibility. In assessing the arguments regarding Penny's sworn statement, the judge stated "I have no confidence in that information. And like I say, it could not be offered for any purpose other than for the possibility of impeachment of Mr. Fleming, and I don't think that it would have had any effect on the verdict of the jury." The judge also was unpersuaded by the additional impeachment evidence against Oscar Veal as proffered in the second supplement, noting that "[defense counsel was] able to challenge Mr. Veal on the fact that he had committed a number of murders, and what you've just related would just be one more line of impeachment." Thus, rather than conduct an evidentiary hearing regarding the new evidence as to Veal, as requested by Petitioner, the judge denied the motion for a new trial based on the proffer. The State did not press at oral argument on the new trial motion any contention that the trial judge lacked authority under Rule 4-331 to reach and decide the motion based on either the Penney or Veal newly discovered evidence claims.
Campbell appealed to the Court of Special Appeals. The sole issue raised on appeal was whether "the trial court err[ed] in denying appellant's motion for new trial."
Campbell argued to the Court of Special Appeals that proof of Veal's false accusation of Derrick Moore was a type of impeachment different in kind from the impeachment employed at trial concerning Veal's concessions as having committed seven murders.[8] He contended that because proof of his criminal agency in the *6 present case was so weak that the new evidence may have affected the jury's assessment of Veal's credibility resulting in an acquittal. Campbell asserted that the trial judge abused his discretion by denying the motion for a new trial.
In the intermediate appellate court, the State relied on Isley v. State, 129 Md.App. 611, 743 A.2d 772 (2000), to support its argument that whether a trial court's discretion is exercised in ruling on a motion for a new trial may be an appealable matter, but how a trial court exercised that discretion is not. The State acknowledged that Rule 4-331(c) gives the trial judge discretion to order a new trial on the basis of newly discovered evidence, but contended that such evidence cannot be "merely cumulative or impeaching," but must be material to the issues involved such that there was a "substantial or significant possibility that the verdict of the trier of fact would have been affected." Yorke v. State, 315 Md. 578, 588, 556 A.2d 230, 234 (1989). The State alleged that Campbell failed to meet any of the criteria of Rule 4-331(c). Furthermore, the State contended, inter alia, that Campbell's motion for a new trial based on newly discovered evidence was untimely because the grounds for a new trial urged in the supplements and in the appellate courts were not presented to the trial court in the initial motion.
The Court of Special Appeals, in an unreported opinion, held that the trial court was without authority to decide Petitioner's new trial motion to the extent it relied on the alleged additional impeachment evidence as to Oscar Veal. The court noted that Rule 4-331 demands literal compliance with filing deadlines and "other formal constraints." The court relied on Ware v. State, 3 Md.App. 62, 237 A.2d 526 (1968), to conclude that "[i]t is thus clear that a trial court may not disregard the filing deadline." In that case, Ware filed a timely motion for a new trial pursuant to the precursor to current Md. Rule 4-331. After expiration of the time for filing, Ware filed a second motion for a new trial which raised new grounds that were "not germane to any issue raised in the original motion." Ware, 3 Md.App. at 65, 237 A.2d at 528. Counsel for both parties in Ware stipulated that the trial court should treat the second motion as an amendment to the first. Id. Ware appealed the denial of the second motion and the Court of Special Appeals found that the trial court was without authority to hear the belated motion for a new trial. Id. The court stated in Ware, and reiterated in its opinion in the present case, that a trial court has "no power to grant a new trial under Rule 759 [now 4-331] except pursuant to a timely motion. We think that the parties by stipulation could not give the court power it otherwise would not have had." Ware, 3 Md.App. at 65-66, 237 A.2d at 528. Furthermore, the intermediate appellate court opined that "[n]either do we think a motion for a new trial can be amended in such a manner as to make it an entirely different motion after *7 the time for filing such a motion has expired." Id.
The Court of Special Appeals found that the supplement to the motion addressing the new evidence regarding Veal was "not germane" to any issue raised in the original motion and therefore could not be considered "timely" under Md. Rule 4-331(a). Not only did the court find that the supplement as to Veal was filed too late to satisfy section (a), but the court also found that it was filed too early to satisfy section (c) because the supplement was filed two months after the verdict, but before sentencing. The Court of Special Appeals concluded that because Campbell's motion for a new trial as supplemented by Veal's proffered testimony was filed too early, the trial judge did not err in declining to hear the evidence proffered by Campbell. The court forewarned that, after the mandate issues in the case, Campbell would have one year to file a motion for a new trial based on newly discovered evidence and, in doing so, will have the "daunting challenge of demonstrating that the newly discovered evidence concerning Veal's credibility was not `merely impeaching,'" (citing Love v. State, 95 Md.App. 420, 433, 621 A.2d 910, 917 (1993)), and if available at trial would have created a "substantial or significant possibility that the verdict ... would [be] affected." Id. at 433-34, 621 A.2d 910 (citing Yorke v. State, 315 Md. 578, 588, 556 A.2d 230, 231 (1989)).
Campbell sought review of the judgment of the Court of Special Appeals and we granted certiorari to consider the following questions: (1) Did the trial judge have jurisdiction to consider and decide an untimely-filed supplement to a timely filed motion for a new trial? and, (2) If so, did the trial judge err in denying the motion on the merits? 369 Md. 301, 799 A.2d 1262 (2002).
II.
A.
Petitioner's goal is to demonstrate that the trial judge possessed authority to decide the motion grounded on the second supplement, but erroneously denied the motion on the merits. Petitioner argued that once the trial judge's fundamental authority under the Rule was triggered by the timely filed motion for a new trial under Rule 4-331(a), he also possessed discretion to consider supplements to that motion raising substantive additional and new grounds filed before the court acted on the motion, subject only to the State's entitlement to a meaningful opportunity to respond. Petitioner asks us to read Rule 4-331 as providing that when new evidence is discovered between the time the verdict is rendered and before sentence is imposed, and the defendant already has filed an otherwise timely motion for a new trial within ten days of the verdict, but no hearing has been held on the motion, then the trial judge may exercise his or her discretion to hear the motion and its supplement(s) at the motion hearing.
Petitioner's first contention is that nothing in Md. Rule 4-331 restricts the right of the trial judge to consider "out-of-time" supplements to timely filed motions for a new trial. Claiming that the cases relied upon by the Court of Special Appeals in its opinion were inapposite because they did not involve supplements to timely filed motions, Petitioner instead hails another case, Ware v. State, 348 Md. 19, 702 A.2d 699 (1997), as more analogous to the present matter. The jury in that death penalty case returned a guilty verdict against the defendant. After the verdict was rendered, but before sentence was imposed, the defendant filed a timely motion for a new trial which counsel sought to supplement with newly discovered evidence regarding a violation of defendant's Brady *8 rights.[9] 348 Md. at 34, 702 A.2d at 706. The Circuit Court denied the motion for a new trial after considering both the motion and its supplement. 348 Md. at 35, 702 A.2d at 707. On review in this Court, we considered the merits of the supplement to the motion for a new trial, found error in its denial, and granted the defendant a new trial. 348 Md. at 68, 702 A.2d at 723. Petitioner claims that Ware stands for the proposition that a trial judge may exercise discretion to consider supplements to a timely filed motion for a new trial in deciding the motion and contends that if Ware was decided correctly the judgment of the Court of Special Appeals in this case necessarily must be erroneous.[10]
Next, Petitioner asserts that the organizational structure of Md. Rule 4-331 supports his contention that the trial judge has discretion to consider out-of-time supplements to a timely filed motion for a new trial. This is so, he argues, because Rule 4-331 creates multiple, grounds-driven deadlines for motions for a new trial:
(a) Within ten days of verdict. On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial.
(b) Revisory power. The court has revisory power and control over the judgment to set aside an unjust or improper verdict and grant a new trial:
.... (2) in the circuit courts, on motion filed within 90 days after its imposition of sentence.
(c) Newly discovered evidence. The court may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule:....
Petitioner infers from the creation of multiple deadlines that a failure to include in a motion for a new trial filed within ten days of verdict a later discovered ground does not foreclose forever litigation of that additional basis as a ground for a new trial. In this matter, Petitioner expostulates that had the trial judge, in ruling on the motion, refused to consider the supplemental newly discovered evidence as untimely filed, Petitioner nonetheless could file the content of the relevant supplement as a new motion within one year after sentence or one year after an appellate mandate, pursuant to Rule 4-331(c)(1). Thus, Petitioner argues that the trial judge did not frustrate the purpose of the rule by exercising his discretion to consider the motion and its supplement at a single hearing,[11] and that by receiving the modestly earlier hearing Petitioner had nothing to gain and *9 instead fostered judicial expediency and efficiency.[12]
Petitioner also relied on cases from other jurisdictions to support his reading of the Rule. Although admitting these cases represent a decided minority view nationally, he directed our attention to cases allowing amendment to motions for a new trial after the filing deadline passed.[13] Petitioner also cites to cases from Florida, Georgia, Indiana, Missouri, and Kentucky that confirm the discretionary power of a trial judge to consider out-of-time amendments to otherwise timely motions.[14]
Petitioner's second main contention is that the trial judge abused his discretion by denying the motion for a new trial on the merits. Noting that the trial judge denied the motion on the basis that the proffered evidence "would just be one more line of impeachment," Petitioner contends that the source language in Jones v. State, 16 Md.App. 472, 477, 298 A.2d 483, 486 (1973), relied on by the Court of Special Appeals to conclude that impeaching or cumulative evidence would not justify the grant of a new trial, was dicta and therefore neither binding or persuasive. The Jones court employed the pejorative descriptive language "merely cumulative or impeaching." Petitioner finds an "obvious difference" between "impeaching" and "merely impeaching" and concludes that impeachment evidence may sometimes be important enough that its inclusion "may well have produced a different result." See Love v. State, 95 Md.App. 420, 433, 621 A.2d 910, 917 (1993) (stating that the law suggests a difference between evidence that is "impeaching" and evidence that is "merely impeaching"). Petitioner asserts this is such a case. The testimony that Oscar Veal had accused Moore falsely of murder may have inspired the jury to distrust Veal's statement that Campbell murdered Hill. Petitioner further contended that to argue "he's [Veal] a murderer, but that doesn't mean he is a liar" is a more tenable jury argument than "he's a liar, but that does not mean he's lying about this." To Petitioner, in a trial with such little demonstrative evidence of criminal agency, this difference is the difference between evidence that is "impeaching" and evidence that is "merely impeaching." Petitioner therefore urges us to conclude that the newly discovered evidence as to Veal may well have produced a different result.
Respondent, in turn, argues that the Court of Special Appeals correctly held that the trial court lacked authority to decide an untimely filed supplement that *10 raised a ground not raised in the timely motion for a new trial and, alternatively, that the trial court properly exercised its discretion in denying the motion based on the supplemental grounds. Respondent construes Petitioner's argument as asking us to read additional language into Rule 4-331. In the absence of express language in Rule 4-331, "legislative" history supporting such an interpretation of the Rule,[15] or case law supporting such an interpretation, Respondent contends that Petitioner's thesis that trial courts have discretion to consider untimely-filed supplements to a timely filed motion for a new trial is untenable.
Respondent observes that each section of Rule 4-331 provides a deadline for filing a motion for a new trial keyed to the grounds asserted. Section (a) provides the shortest period in which to file, but the broadest basis upon which relief can be granted ("in the interest of justice"). Section (c) provides the longest time period for filing a motion, but has the narrowest grounds for relief ("newly discovered evidence"). See Love, 95 Md.App. at 428-29, 621 A.2d at 915. Respondent characterizes the Rule 4-331 filing deadlines as jurisdictional in nature. Noting that Maryland Rule 1-204(a) specifies that a court "may not shorten or extend the time for filing... a motion for new trial ....," the State reminds us that "the Maryland rules are not merely `guides' to the practice of law, but are `precise rubrics' to be read and followed." See Parren v. State, 309 Md. 260, 280, 523 A.2d 597, 606 (1987).
The plain language of the Rule, argues Respondent, by providing a timetable for when motions may be filed and what grounds may be considered clearly does not provide for continuing the jurisdiction of a trial court to consider supplements to a motion for a new trial once a particular motion has been filed timely and the time expired for filing that category of motion. Although it finds the language of the rule to be clear and unambiguous, Respondent contends that a statute relating to the same subject matter, former Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 594,[16] may be instructive in interpreting the Rule. Section 594 provided that a hearing on a motion for a new trial shall be heard within ten days of its filing, but it specifically allowed the time for the hearing to be extended by agreement of the parties or by order of court. Respondent contrasts the Legislature explicitly creating the possibility of an extension in section 594 with the lack of explicit language in Rule 4-331 to suggest that the filing deadlines in the Rule cannot be extended for supplements or otherwise.
Respondent commends to us the same cases relied upon by the Court of Special Appeals in its opinion in this case. For example, the State finds sustenance for its views in Ware v. State, 3 Md.App. 62, 237 A.2d 526 (1968), discussed supra at 646-47.
Respondent agrees with Petitioner that it is the minority view in our sister states that a timely filed motion for a new trial may be supplemented with new grounds after the time for filing the original motion has passed. The State enunciates that the "government's legitimate interest in finality" and "carrying out punishment in order to promote respect for the law and its *11 procedures" are policy reasons requiring strict adherence to filing deadlines. Bolstered by these policy bases, Respondent urges that Petitioner's claim that the supplemental grounds may be brought as a motion for a new trial under Rule 4-331(c) is false. The State perceives that the evidence could have been discovered either before or during trial or within ten days of the verdict, commenting that the information that Moore was incarcerated at the time of Clyburn's murder was information obtainable by the defense throughout trial and, therefore, the evidence does not fall within the limited scope of section (c) of the Rule. Respondent conjures the portent that to accept Petitioner's construction of the Rule would eviscerate the Rule by allowing any ground for a new trial to be raised at any time prior to the hearing on the motion. Such an interpretation, the State insists, confers jurisdiction where none exists and renders the deadlines in Rule 4-331 meaningless.[17]
The State also argues that even if the trial court possessed the authority to consider the supplement as part of the motion, its denial was a correct exercise of discretion. Respondent urges us to uphold the determination made by the Court of Special Appeals that such evidence as would impact on the credibility of one of the State's witnesses only would be cumulative impeachment evidence and therefore falls short of the standard for the grant of a new trial. The State claims that the evidence proffered in the relevant supplement to the motion for a new trial does not meet the requirements for the grant of a new trial, that is: (1) the new evidence is material to the issues involved and not merely cumulative or impeaching, and (2) there was "a substantial or significant possibility that the verdict of the trier of fact would have been affected by the new evidence." Yorke, 315 Md. at 588, 556 A.2d at 234-35.
The new evidence regarding Veal, the State says, does not impeach his testimony because the documentation presented by Petitioner failed to show that Veal falsely claimed that Moore was both present at and responsible for Clyburn's death or that the charges were dismissed against Moore because Veal lied. Even if the evidence did impeach Veal, it would be collateral, rather than material, evidence because it only shows that Veal lied about an unrelated matter not bearing directly on the evidence he presented at Campbell's trial. The evidence as to Veal also would be immaterial, according to the State, because it is merely cumulative to the ample impeachment of Veal undertaken at trial. Additionally, Respondent believes that Petitioner failed to demonstrate that the additional evidence created a substantial possibility that the jury's verdict would have been affected. Veal was not a critical witness, according to the State, and Petitioner engages in mischaracterization when he states that there was little evidence of criminal agency in addition to Veal's testimony. The heart of its case, urges the State, lay in the testimony of Fleming and Doris Bryant.
*12 B.
This Court long has recognized that a new trial may be granted by the judge in a criminal case tried to a jury. See In re Petition for Writ of Prohibition, 312 Md. 280, 308, 539 A.2d 664, 677-78 (1988) (chronicling the common law origins of the motion for a new trial). Such a motion is regulated currently by the provisions of Md. Rule 4-331. Maryland Rule 4-331 provides for three distinct situations in which a criminal defendant may file a motion for a new trial. The broader the recognized grounds for a new trial, the stricter are the timeliness filing requirements; as the recognized grounds become narrower, the timeliness filing requirements relax somewhat. Section (a) of the rule allows a trial judge to award a new trial if he or she determines it to be "in the interest of justice" and the motion is filed within ten days after a verdict is rendered. Rule 4-331(b) provides the circuit court with the power to set aside an unjust or improper verdict on motion filed within ninety days after imposition of sentence or in cases of fraud, mistake, or irregularity on motion filed beyond ninety days. The narrowest ground for a new trial is provided in section (c). Section (c) permits the court to grant a new trial on the basis of newly discovered evidence "which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule." Section (c) further stipulates, in pertinent part, that such motion must be filed before the later of one year after sentence was imposed or when the trial court received a mandate issued by one of the appellate courts.[18]
The regulatory scheme does not provide any express guidance regarding untimely filed supplements or amendments to an otherwise timely motion for a new trial. The question presented by Petitioner whether a substantive supplement raising an additional and new ground, filed outside of the allotted time for filing the motion, but before a hearing on the motion, may be considered by the trial judge together with the grounds advanced in the timely filed motion for a new trialhas not yet been addressed by this Court. The Court of Special Appeals, however, has addressed issues similar to this on at least two occasions, in Ware v. State, 3 Md.App. 62, 237 A.2d 526 (1968) and Love v. State, 95 Md.App. 420, 621 A.2d 910 (1993). We discussed Ware somewhat earlier, supra at 646-47.
In its opinion in Ware, the intermediate appellate court relied on Giles v. State, 231 Md. 387, 190 A.2d 627 (1963) and State v. Tull, 240 Md. 49, 212 A.2d 729 (1965). Giles held that a motion for a new trial filed almost one year after conviction was not timely filed pursuant to former Maryland Rule 567 (1963)[19] and, therefore, it was denied properly. 231 Md. at 388, 190 A.2d at 628. Tull presented a similar procedural scenario. In Tull we stated that the trial court had no power to grant a new trial pursuant to former Md. Rule 759(a), but instead we treated the untimely filed motion for a new trial as an application for post-conviction relief and reached the merits in that way. 240 Md. at 52-54, 212 A.2d at 729-31.
The Court of Special Appeals also addressed Rule 4-331 in Love v. State. Love *13 was convicted of armed robbery, among other things, and was sentenced on 4 October 1989. A motion for a new trial was denied by the trial judge on 14 May 1992. The motion for a new trial alleged the discovery of new evidence which would cast "grave doubt on the jury's verdict that [Love] possessed a deadly weapon and that the convictions ... represented a serious miscarriage of justice." 95 Md.App. at 424, 621 A.2d at 913. The court based its holding primarily on it's interpretation of the phrase contained in section (c) requiring the newly discovered evidence to be that "which could not have been discovered by due diligence." 95 Md.App. at 429, 621 A.2d at 915. The court applied the Yorke test for evaluating newly discovered evidence and found that the new evidence proffered by Love was such that the trial judge's finding that there was an absence of due diligence was within his discretion. 95 Md.App. at 435, 621 A.2d at 918. Addressing the timeliness requirement of section (c), the Court of Special Appeals noted that the "rule calls for literal compliance" and "[t]rial judges, moreover, are not empowered to overlook" the filing deadlines prescribed for motions for new trial. 95 Md.App. at 428, 621 A.2d at 914. Although the issue before the court was disposed of based on an analysis of "due diligence" and what constituted discovery of "new evidence," the Court of Special Appeals said that to accept Love's argument, that the technical requirements of the rule should be overlooked in order to prevent a miscarriage of justice, would render nugatory the requirement that a motion be filed within one year after the later of the triggering events contained in section (c). 95 Md.App. at 438, 621 A.2d at 920.
In similar reasoning, the Court of Special Appeals in the present case, agreeing with Respondent's view, concluded that "Maryland Rule 4-331 demands literal compliance," and found that Petitioner's relevant supplement to his motion for a new trial failed to comply with the filing requirements of Rule 4-331(a) or (c). We agree only insofar as concerns late-filed supplements under section (a). A different result obtains, however, if such a supplement, raising newly discovered evidence as its ground, is viewed as having been filed prematurely under section (c) of the Rule.
As noted supra, Maryland Rule 1-204(a) specifically provides that "[t]he court may not shorten or extend the time for filing... a motion for new trial." Maryland law and the rules are silent, however, regarding whether "untimely" filed supplements to timely filed motions are to be treated as permissible supplements to the original motion or as separate and discrete motions having to meet the filing deadlines applicable to the particular ground or grounds of the motion.
A few of our sister states have regulatory provisions expressly allowing exceptions to the prescribed filing time limit for supplements filed beyond the deadline for the motion itself.[20] Jurisdictions lacking such regulatory direction on the issue, not surprisingly, are split in their case law interpretations between those allowing "untimely" amendment and those disallowing such amendment.
A majority of jurisdictions reaching the issue hold that a motion for a new trial filed in due time may not be amended or supplemented after the filing period.[21]
*14 These courts reason that in the absence of a rule or statute allowing such amendment or supplement to a timely filed motion for a new trial there exists no right to supplement a motion and the trial court therefore does not have authority to consider the amendment. See Missouri v. Gray, 24 S.W.3d 204, 208-09 (Mo.Ct.App.2000) (finding that an amendment to a motion for a new trial filed outside the time limit for filing the motion was a procedural nullity and could not form the basis for appellate review); United States v. Kane, 319 F.Supp. 527 (E.D.Pa.1970), aff'd 433 F.2d 337 (3d Cir.1970) (stating that Federal Rule of Civil Procedure 33 was mandatory and the court was without authority to consider untimely filed amendments to a motion for new trial). Amendments must meet the same filing deadlines as the original motion and an "untimely" filed amendment is treated as a nullity and presents nothing to review in these states. Johnson v. Oklahoma, 70 Okla.Crim. 322, 106 P.2d 128 (1940).
The minority view is that a trial court has discretion to permit amendment after the period for filing the motion for a new trial has expired. For example, a Texas appellate court held that the act of holding a hearing on a late filed amended motion constituted leave to file the amended motion, although the trial judge did not expressly give the defendant leave to file late. Sweeten v. State, 686 S.W.2d 680 (Tex.App.1985).[22] The Texas court in Sweeten based its decision on an interpretation of the relevant statute which provided that "[o]ne or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial is overruled...." 686 S.W.2d at 680. The court found that there was "no reason why appellant could not file a late amended motion for new trial with the leave of the court, provided such leave in no way" violated the other relevant provisions of the rule. 686 S.W.2d at 682. Another Texas case stated that whether an amended motion for a new trial should be permitted to be filed after the time allowed by law for filing a motion for a new trial is within the sound discretion of the trial court. Adaire v. State, 130 Tex.Crim. 1, 91 S.W.2d 367 (1936).
Even among those jurisdictions allowing an "untimely" amendment to an otherwise timely motion for a new trial there is disagreement whether the trial court may consider an "untimely" amendment that raises grounds for a new trial distinct from those alleged in the original motion.[23]
*15 The Maryland rule governing motions for a new trial in criminal cases is not intended as a cure-all for every perceived flaw in a trial. It is designed only to allow for correction of certain flaws and is restricted by filing deadlines and other procedural requirements. There is a correlation between the breadth of the grounds that may be discovered and stated for granting a new trial and the length of time permitted for filing motions for a new trial. A defendant has ten days to file a motion for a new trial based on virtually any ground whatsoever pursuant to section (a). The more limited grounds for moving for a new trial, in this case newly discovered evidence, are given a greater time within which to be elucidated. Literal compliance with the time limit established in section (a) is a commensurate and reasonable requirement given the broad basis for moving for a new trial provided in section (a). Likewise, the narrower grounds provided for in sections (b) and (c) are reasonably allowed greater time allowances. The technical requirements of the Rule, however, should not be applied without regard to the purposes driving the Rule.
We conclude that the intermediate appellate court's reasoning in Love, Ware, and in the instant case is persuasive generally as to amendments or supplements to an initial motion filed timely under Rule 4-331(a), but which amendments or supplements themselves were filed beyond ten days after the verdict. That is also the view of a majority of our sister states. Our inquiry, however, does not end here.
Campbell argues in the alternative that the Veal supplement may be viewed on its own as a separate motion for new trial under Rule 4-331(c), albeit one filed prematurely before sentencing.[24] Viewed in this light, a significant basis exists to distinguish the present case from Ware and Love as decided by the Court of Special Appeals. Ware and Love only considered supplements filed after expiration of the applicable filing deadline in the Rule. Similarly, the cases we examined from other jurisdictions addressed late-filed supplements and amendments. All of those courts found that late-filed amendments were nullities because, at the time they were filed, the trial courts no longer possessed authority because final judgments had been rendered and the supplements to the post-judgment motions were filed beyond the time limits allowed by the relevant rules.
*16 In Maryland, a criminal case is complete and disposed of by a trial court when sentence has been pronounced. Lewis v. State, 289 Md. 1, 421 A.2d 974 (1980); Langworthy v. State, 284 Md. 588, 399 A.2d 578 (1979). See Maryland Code (1973, 2002 Repl.Vol.), Courts & Judicial Proceedings Article, § 12-101(f) (defining "final judgment" as "a judgment, decree, sentence, order, determination, decision, or other action by a court, ... from which an appeal, application for leave to appeal, or petition for certiorari may be taken"). We stated in Christian v. State, 309 Md. 114, 120, 522 A.2d 945, 948 (1987), that an order granting or denying a motion for a new trial may be reconsidered by a trial court at anytime prior to sentencing in a criminal case. The trial court in Christian retained jurisdiction over the case because there had been no final judgment entered.
Rule 4-331 was crafted primarily to set content-based outer limits on when motions for new trial may be filed. The tolling of the one year period within which to file a motion for new trial based on newly discovered evidence described in section (c) of the Rule does not begin until sentencing. By establishing sentencing as the starting point for the one year period, however, the Rule does not divest the trial court of its pre-sentencing fundamental jurisdiction over the case; instead, the purpose of establishing the limit is to allow projection of an end to the litigation and establishes a point at which the trial court no longer has authority over a matter. That the language invests the court with authority to consider motions for a new trial within one year after sentencing does not mean the court does not have authority to consider such a motion prior to sentencing when no final judgment has been entered.
When a motion for new trial under section (c) is filed prematurely, it may hasten the end of the litigation more so than if it were "timely" filed. As stated earlier, a new trial is not a cure-all mechanism for every perceived procedural wrong in a trial. The interest in providing justice to the accused must be balanced against the systemic interest in predictability, order, and providing a definite end to criminal proceedings. The sparse "legislative" history of the predecessor to Rule 4-331 indicates that the concern motivating the creation of filing deadlines was that a clear end point be established as to when a criminal defendant may petition the court to consider granting a new trial on the various grounds specified in the Rule. Minutes of the 14-15 March 1975 meeting of the Criminal Rules subcommittee of this Court's Standing Committee on Rules of Practice and Procedure reflect the following considerations pertaining to former Rule 759:
A new trial can be ordered because of newly discovered evidence within 1 year after the imposition of sentence or within 90 days after receipt by the court of a mandate from the Court of Appeals or Court of Special Appeals. Mr. Jones strongly urged that the length of time be extended in order to prevent any innocent person from being convicted. The committee, however, agreed that public policy requires that a case must end some time and approved the Rule as drafted.
(Emphasis added). At the time, Rule 759(a) provided a criminal defendant only three days after verdict to file a motion for new trial based on any error at trial. Section (b) of Rule 759 permitted a criminal defendant to file a motion for new trial predicated upon the discovery of new evidence within the later of one year after the imposition of sentence or within ninety days after receipt by the court of a mandate issued by the Court of Appeals or *17 Court of Special Appeals. The Committee's refusal to adopt Mr. Jones's proposal, implicitly acquiesced in by the Court in adopting Rule 759 as proposed, indicated an interest in establishing clear, outside time limits on new trial motions.
We agree with the reasoning of the courts holding that a supplement to a motion for a new trial that alleges entirely different grounds for relief cognizable elsewhere in the Rule may be treated as a separate motion for new trial. We addressed a similar situation in Myers v. State, 137 Md. 482, 113 A. 87 (1921). In that case, appellants were convicted of receiving stolen property. Two days after the verdict was returned, appellants filed two identical motions, one was named "motion for a new trial" and the other "motion in arrest of judgment." After both motions were denied, appellants sought to appeal the denial of the "motion in arrest of judgment," a right which would not have been available for the motion for a new trial. Rather than elevate form over substance, we held that the "motion in arrest of judgment" was substantively a "motion for a new trial" and therefore properly denied and unappealable, pursuant to the rule then governing motions for a new trial. Myers, 137 Md. at 487-88, 113 A. 87. Similarly, the Tenth Circuit U.S. Court of Appeals held that a motion for leave to supplement a motion for new trial and a motion for a judgment of acquittal, both asserting grounds not broached in the original motion for a new trial, were substantively "an attempt to have the court consider a new motion for new trial that asserted numerous grounds not asserted in the original new trial motion," and disposed of the motions under the strictures of Fed. R. 33. United States v. Haddock, 956 F.2d 1534, 1544 (10th Cir.1992). The Second Circuit U.S. Court of Appeals also has looked to the substance of a self-styled "supplemental motion to a motion for a new trial" to find it substantively to be a motion for a new trial and dispose of it as such. Oddo v. United States, 171 F.2d 854 (2nd Cir.1949).
The Veal supplement/motion in the present case, although technically not filed within the time frame established by Rule 4-331(c), was filed before final judgment was entered and while the trial court retained jurisdiction over the matter. Thus, the trial judge had discretion to consider the newly discovered evidence ground for new trial raised in the supplement/motion.[25] The reasons for imposing strict filing deadlines are not implicated by premature filings. An early motion does not raise questions about the court's jurisdiction because the court clearly has jurisdiction before final judgment. A trial court's jurisdiction over a matter generally continues until a final judgment is rendered by that court; a verdict without a sentence in a criminal case is not a final judgment. See Christian, 309 Md. 114, 522 A.2d 945 (basing our holding, that an order granting or denying a new trial may be reconsidered anytime prior to sentencing in a criminal case, on the premise that a trial court in a criminal case has jurisdiction over the case until final judgment is rendered).
C.
We now consider the second question presented in this case, whether the trial judge properly denied the motion for a new trial on its merits as to the alleged newly discovered evidence regarding Veal.
*18 We find that the trial judge properly exercised his discretion in denying the motion.
Contrary to the State's belief, denials of motions for new trials are reviewable on appeal and rulings on such motions are subject to reversal when there is an abuse of discretion. Mack v. State, 300 Md. 583, 600, 479 A.2d 1344, 1352 (1984); Wernsing v. Gen. Motors Corp., 298 Md. 406, 420, 470 A.2d 802, 809 (1984). We have noted that the discretion afforded a trial judge "is broad but it is not boundless." Nelson v. State, 315 Md. 62, 70, 553 A.2d 667, 671 (1989). The abuse of discretion standard requires a trial judge to use his or her discretion soundly and the record must reflect the exercise of that discretion. Abuse occurs when a trial judge exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law. Ricks v. State, 312 Md. 11, 31, 537 A.2d 612 (1988). As we indicated in Buck v. Cam's Rugs, 328 Md. 51, 612 A.2d 1294 (1992), "a trial judge has virtually no `discretion' to refuse to consider newly discovered evidence that bears directly on the question of whether a new trial should be granted," and a new trial should be granted when newly discovered evidence clearly indicates that the jury has been misled. 328 Md. at 58-59, 612 A.2d at 1298. In the context of the denial of a motion for a new trial in a criminal case, we have noted that "under some circumstances a trial judge's discretion to deny a motion for a new trial is much more limited than under other circumstances." Merritt v. State, 367 Md. 17, 29, 785 A.2d 756, 764 (2001). We stated,
it may be said that the breadth of a trial judge's discretion to grant or deny a new trial is not fixed or immutable; rather, it will expand or contract depending upon the nature of the factors being considered, and the extent to which the exercise of that discretion depends upon the opportunity the trial judge had to feel the pulse of the trial and to rely on his own impressions in determining questions of fairness and justice.
Wernsing, 298 Md. at 420, 470 A.2d at 802.
To determine whether a new trial is warranted in a criminal case based on newly discovered evidence the trial judge should apply the test formulated in Yorke v. State, 315 Md. 578, 556 A.2d 230 (1989). Yorke involved a motion for a new trial filed by a defendant four years after the crimes were committed. 315 Md. at 580-81, 556 A.2d at 231. The motion was based on newly discovered DNA evidence allegedly showing that the defendant was not the criminal agent. Id. The Circuit Court denied the motion and this Court affirmed that ruling. 315 Md. at 581, 556 A.2d at 231. In order for the newly discovered evidence to warrant a new trial, the trial judge must find it to be both material and persuasive such that "[t]he newly discovered evidence may well have produced a different result, that is, there was a substantial or significant possibility that the verdict of the trier of fact would have been affected." 315 Md. at 588, 556 A.2d at 234-35. This Court noted the need for a clear and articulate standard given that "the courts generally play by ear with an ad hoc approach whether the newly discovered evidence calls for a new trial," and formulated the appropriate standard by evaluating the "probability" standard[26] employed by many federal *19 courts and the "might" standard[27] relied upon by the minority of jurisdictions to create a standard falling between the two. 315 Md. at 588, 556 A.2d at 235.
Applying that standard to the facts of Yorke, we concluded that the trial judge did not abuse his discretion in considering the DNA evidence as it "touch[ed] upon evidence that was presented" at trial and was "`material' to some extent to the outcome of the case." 315 Md. at 585, 556 A.2d at 233. Yorke had been convicted of first degree rape, first degree sexual offense, kidnaping, and carrying a weapon openly. 315 Md. at 579, 556 A.2d at 230. At the motions hearing Yorke presented the newly discovered evidence to establish that the DNA fingerprint from the vaginal washing did not match his DNA fingerprint and therefore he could not have raped the victim. 315 Md. at 588, 556 A.2d at 235. Testimony was taken at the hearing, however, that indicated the possibility that the DNA from the vaginal wash may have been the blood of the victim. A blood sample from the victim yielded an inconclusive result though. 315 Md. at 588-89, 556 A.2d at 235. The trial judge considered the newly discovered evidence in light of the evidence that was before the jury at trial and concluded that "all the new evidence shows is that Yorke `could not have been the depositor of the semen.'" 315 Md. at 589-90, 556 A.2d at 235. The evidence presented at trial, however, included the victim's testimony that she was unsure whether her rapist ejaculated and that she had sex with her boyfriend shortly before the rape incident. Id. The trial judge decided that the new evidence, when weighed with the evidence before the jury, would not affect the verdict such that the outcome would be different. We concluded that although the new evidence "may well have produced a different result," there was not a "substantial or significant possibility" that it would do so. Id. We therefore held that the trial judge did not abuse his discretion in denying the motion for a new trial.
Argyrou v. State, 349 Md. 587, 709 A.2d 1194 (1998), also concerned the evaluation of newly discovered evidence advanced in a new trial motion under Rule 4-331(c). Argyrou was convicted for his participation in the theft of various items of construction equipment from a rental store through the use of stolen identification. 349 Md. at 590, 709 A.2d at 1195. He moved for a new trial alleging the discovery of new evidence. The newly discovered evidence consisted of a signed confession, in the form of an affidavit, from another man asserting that the affiant committed the crime for which the defendant was convicted. 349 Md. at 591, 709 A.2d at 1195. Also at the motions hearing, Argyrou presented a handwriting expert who testified that the forged signature involved in the crime was made by the affiant as opposed to the defendant. Id. The trial judge denied the motion for a new trial finding that although the testimony of the affiant might well produce an acquittal upon retrial, the defendant failed to meet his burden of showing that the identity of the affiant and his testimony were unknown to the defendant at the time of trial. 349 Md. at 598, 709 A.2d at 1199.
In Argyrou, we observed that the primary requirements for the grant of a motion for a new trial, pursuant to Rule 4-331(c), are that the newly discovered evidence must not have been discovered, or have been discoverable by the exercise of due diligence, within ten days after the *20 jury has returned a verdict; the motion must have been filed in the circuit court within the later of one year after the imposition of sentence or the issuance of a mandate by the appropriate appellate court; the newly discovered evidence must be material; and, pursuant to Yorke, the trial court must determine that "the newly discovered evidence may well have produced a different result, that is, there was a substantial or significant possibility that the verdict of the trier of fact would have been affected." 349 Md. at 601, 709 A.2d at 1201. Whether the evidence is material and whether the evidence could have been discovered by due diligence are threshold questions that must be resolved before the significance of the evidence may be weighed. 349 Md. at 602, 709 A.2d at 1201. Materiality requires that the evidence be more than "merely cumulative or impeaching." Id. We noted in Argyrou that the concept of "due diligence" has both a time component and a good faith component and thus "contemplates that the defendant act reasonably and in good faith to obtain the evidence, in light of the totality of the circumstances and the facts known to him or her." 349 Md. at 604-05, 709 A.2d at 1202-03. We concluded in Argyrou that there had been no abuse of discretion in denying the motion for a new trial because Argyrou failed to establish that the proffered evidence indeed was newly discovered evidence. 349 Md. at 609, 709 A.2d at 1205.
The trial judge in the present matter denied the motion for a new trial on the basis that "[Defense counsel was] able to challenge Mr. Veal on the fact that he had committed a number of murders, and what you've just related would just be one more line of impeachment." The import of the trial court ruling is that the proffered evidence was viewed as "merely cumulative" to the impeachment evidence presented at trial. Petitioner contends that the trial court abused its discretion by ruling as it did because there was little other evidence of criminal agency presented at trial and the newly discovered evidence may well have produced a different result. He argues that there is an "obvious difference" between evidence that is "impeaching" and evidence that is "merely impeaching," and asserts that the evidence at issue in this matter was impeaching and therefore sufficient grounds for a new trial. The State reasons to the contrary claiming that the Court of Special Appeals correctly stated that the proffered evidence would be cumulative impeachment evidence which is an insufficient predicate for the grant of a new trial. Furthermore, the State alleges that the evidence regarding Veal would not impeach his testimony at trial.
The main issue is whether the new evidence as to Veal is material. To be material the evidence cannot be "merely cumulative or impeaching." The Court of Special Appeals stated in Love v. State that the difference between evidence that is "impeaching" and evidence that is "merely impeaching" is that the latter includes "collateral impeachment and peripheral contradiction." 95 Md.App. at 433, 621 A.2d at 917. That court also stated, however, that whether the testimony presented as a basis for a new trial was impeaching or merely impeaching was ultimately "[not] at all pertinent" to the disposition of the matter and decided the case by concluding that the testimony presented in support of the motion for a new trial was not newly discovered. 95 Md.App. at 433-34, 621 A.2d at 917-18.
The trial judge in the present matter weighed the newly discovered evidence and considered its significance in relation to the evidence already presented at trial. There is no doubt that Petitioner was given ample opportunity to impeach Oscar *21 Veal's testimony at trial. That Veal was a hit-man and drug dealer and that he murdered seven people within an eighteen-month period, standing alone, could be viewed by a reasonable fact-finder as casting serious doubt on his credibility. He also testified that he was paid for committing those murders, sometimes in money and other times in crack cocaine. On cross-examination, Veal also admitted that he lied about his criminal record in order to get into the United States Marine Corps and eventually was discharged when his lies were discovered. The plea agreement entered into between Veal and federal prosecutors was placed in evidence. Veal testified that he sought to avoid the death penalty by cooperating in Campbell's trial and that his sentence in the federal court was "pending [his] cooperation [concerning the seven murders] and a couple other cases." In light of this, the trial judge declared that the newly discovered evidence was cumulative to that already presented and would "just be one more line of impeachment."
Petitioner contends that there is a distinction between the lines of impeachment presented at trial and that suggested by the new evidence, the difference being one between the possibility that Veal's testimony was untrustworthy because he was a killer as opposed to being untrustworthy because he lied on a prior occasion. Surely the presentation of additional evidence would reinforce the shadows cast initially on Oscar Veal's character and motive for testifying, but the new evidence involved a collateral matter and was cumulative to that already presented.
The second threshold determination to be made is whether Petitioner demonstrated that the newly discovered evidence was not discoverable by the exercise of due diligence in time for trial or within ten days after the verdict. Petitioner failed to meet this threshold requirement as well.
We established in Argyrou that the burden falls on the defendant to show due diligence by demonstrating that he or she "act[ed] reasonably and in good faith to obtain the evidence, in light of the totality of the circumstances and the facts known to him or her." 349 Md. at 604-05, 709 A.2d at 1202-03. No further consideration of due diligence need be performed here, however, because Petitioner failed to offer any evidence or make any arguments on this record that met his burden to satisfy this requirement.
Even if the new evidence as to Veal was material and Petitioner was found to have exercised due diligence, the trial judge did not act in an arbitrary or capricious manner by denying the motion for a new trial. Applying the Yorke test to the record below yields the conclusion that there was not a "substantial or significant possibility" that the verdict below would have been affected by the newly discovered evidence. Even if the additional evidence "may" produce a different result at a new trial, there is not a "substantial or significant possibility" that it would do so. Given the ample presentation of impeachment evidence at trial and the collateral nature of the newly discovered evidence, we can not say that the trial judge abused his discretion by deciding that the evidence was cumulative impeachment evidence. The trial judge "felt the pulse of the trial" and was entitled to rely on his own impressions to determine, without exceeding the limits of his discretion, that the new evidence bearing on Oscar Veal's trustworthiness was not substantially likely to tip the balance in favor of Campbell.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.
NOTES
[1] Campbell was indicted by a grand jury for common law murder, two counts of use of a handgun in the commission of a felony, attempted murder, second degree assault, robbery with a deadly weapon, two counts of conspiracy to commit murder, and conspiracy to commit robbery with a deadly weapon.
[2] Fleming had been arrested and convicted of drug distribution charges in federal court in the Eastern District of Virginia. He only offered to testify against Petitioner after entering into a plea agreement with the federal prosecutor that provided his sentence could be reduced if he cooperated with the authorities in the instant case.
[3] Veal testified in the present case pursuant to a plea agreement with the federal government in the United States District Court for the District of Columbia. The agreement provided that the Government would not seek the death penalty for any of the murders Veal pled guilty in exchange for his truthful testimony in various drug-related cases, including the present matter.
[4] It was alleged that "[o]n January 8, 2001, [defense] counsel received information that within the past 3-4 days, a Prince George's County Detention Guard [ ], contacted Lawrence Campbell" regarding what Penney told the Guard.
[5] Maryland Rule 4-331(a) provides: "On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial."
[6] Maryland Rule 4-331(c) provides in relevant part:
Newly discovered evidence. The court may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule:
(1) on motion filed within one year after the date the court imposed sentence or the date it received a mandate issued by the Court of Appeals or the Court of Special Appeals, whichever is later; ...
[7] During Petitioner's trial, Oscar Veal was cross-examined on the subject of his plea agreement with the government. A copy of the agreement and a twenty page "Information" were entered into evidence. Veal admitted in the Information that he and Derrick Moore killed one Ervon Clyburn. Veal claimed that Moore instructed him to kill Clyburn, indicated to Veal where Clyburn could be found, and transported Veal to the scene of the murder. Petitioner proffered in his reply to the State's opposition that Derrick Moore actually had been incarcerated at the time of the murder and therefore Veal must have lied with respect to Moore's involvement in the Clyburn murder. In the Veal supplement to his motion for new trial, Petitioner acknowledged having information, at the time of Petitioner's trial, that Veal had supplied the information about Moore and the murder of Clyburn to the federal authorities. Apparently monitoring Moore's federal charges, Petitioner claimed to have learned initially of Veal's lie regarding Moore from the U.S. Attorney's pleading filed on 6 February 2001 in Moore's federal case. According to that pleading, Moore's counsel had advised the Assistant U.S. Attorney in January 2001 of the fact that Moore was incarcerated at the time of Clyburn's murder.
[8] Campbell did not address the alleged new evidence from Penny in his brief to the Court of Special Appeals. Petitioner later expressly stated in the petition for writ of certiorari to this Court that this case is limited to the newly discovered evidence regarding Oscar Veal. He stated that despite this limitation, the Bland and Penny new evidence would be discussed simply to provide background to the Veal supplement to the motion for new trial. Because the evidence as to Veal is the only ground raised for error in the petition, the Penny and Bland evidence will not figure materially in our analysis. See Maryland Rule 8-131(b) (2000) (stating that "the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserved for review by the Court of Appeals"). See also Gonzales v. State, 322 Md. 62, 64, 585 A.2d 222, 223 (1991).
[9] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that the State has an affirmative duty to disclose exculpatory evidence to the defendant in a criminal trial).
[10] One may not tell from this Court's opinion in Ware: (1) whether the initial motion for new trial was filed within ten days of the verdict, as provided for in Rule 4-331(a); or (2) when the supplement was filed relative to the filing of the original motion for new trial. Moreover, it does not appear that the State challenged in Ware, at any level, the trial court's authority to consider the grounds advanced in the supplement on the same or similar basis as the State now advances in the present case.
[11] The fault, if any, contends Petitioner, lies with the practice of deferring sentencing proceedings until after pre-sentence investigations can be completed and deferring hearings on motions for new trials until the day of sentencing. If sentencing more closely followed the verdict the issue presently before this Court would be moot because motions filed after sentencing would be timely per force of Rule 4-331(c).
[12] Petitioner also draws an analogy between Rule 4-331 and Maryland Rule 4-345 to support the interpretation of Rule 4-331 as permitting consideration of a timely filed motion supplemented out-of-time, but prior to hearing. Md. Rule 4-345(b) gives a trial judge revisory power over a sentence "upon a motion filed within 90 days after ... imposition" of sentence. Petitioner alleges that the practice in many circuit courts is to hold a motion for reduction of sentence and consider it along with supplemental information at hearings after the defendant has served some portion of his sentence and has an institutional record for consideration. Pursuant to Rule 4-345(b), the supplemental information may be considered as long as the motion was timely filed within 90 days after sentencing.
[13] See McCutcheon v. State, 159 Tex.Crim. 61, 261 S.W.2d 329 (1953); Bottom v. State, 105 Tex.Crim. 75, 286 S.W. 1091 (1926); Banks v. State, 79 Tex.Crim. 508, 186 S.W. 840 (1916); Tores v. State, 74 Tex.Crim. 37, 166 S.W. 523 (1914); Kinney v. State, 65 Tex.Crim. 251, 144 S.W. 257 (1912); Carusales v. State, 47 Tex. Crim. 1, 82 S.W. 1038 (1904). Petitioner notes that the Texas cases prompted the Texas legislature to adopt a statute specifying the number of days to amend a motion for a new trial after filing.
[14] See e.g., Smith v. State, 117 Fla. 458, 158 So. 91 (1934); Kirkland v. State, 70 Fla. 584, 70 So. 592 (1915).
[15] Indeed, we could find but scant "legislative" history of any direct relevance regarding Rule 4-331 or its predecessors, despite recourse to the records of this Court and its Standing Committee on Rules of Practice and Procedure.
[16] Now codified in Maryland Code (2002), Maryland Crim. Proc., § 6-105, without substantive change.
[17] The State also finds fault in Petitioner's analogy between Rule 4-331 and Rule 4-345. Respondent's first critique of the analogy is that pursuant to Rule 4-345 it is the timely filing of the motion that vests the court with authority to reconsider the sentence, whereas in Petitioner's case the supplement was not timely filed and therefore the court would not have authority to decide it as such. Second, Respondent argues that Rule 4-345 contemplates the addition of further sentencing considerations, whereas Petitioner urges on this Court the consideration of wholly new ground for a new trial. According to the State, these differences between Rule 4-331 and Rule 4-345 are significant enough to destroy Petitioner's attempted analogy.
[18] If the new evidence would show that the defendant is innocent of a capital crime or if the motion is based on DNA evidence which would prove the defendant's innocence the motion may be filed at any time. Md. Rule 4-331(c)(3).
[19] Rule 567(a) was substantively the same as Rule 4-331(a) with the difference that the former provided three days to file a motion for a new trial while the latter provided for ten days.
[20] See, e.g., Florida Rules of Criminal Procedure, Rule 3.590(a) (2002); Georgia Code Annotated § 5-5-40(b) (2002); Tennessee Rules of Criminal Procedure 33(b) (2002); Texas Rules of Appellate Procedure 21.4 (2002).
[21] See Parris v. Alabama, ___ So.2d ___, 2001 WL 996295, 2002 Ala.Crim.App. LEXIS 252; California v. Long, 7 Cal.App. 27, 93 P. 387 (1907); Hardy v. Colorado, 133 Colo. 201, 292 P.2d 973 (1956); Delaware v. Halko, 193 A.2d 817 (Del.Super.Ct.1963); Territory of Hawaii v. Witt, 27 Haw. 177 (1923); Pitts v. Commonwealth of Kentucky, 227 Ky. 792, 13 S.W.2d 1053 (1929); Maine v. Campbell, 451 A.2d 299 (Me.1982); Missouri v. Gray, 24 S.W.3d 204 (Mo.Ct.App.2000); McCoy v. Nebraska, 110 Neb. 360, 193 N.W. 716 (1923); Johnson v. Oklahoma, 70 Okla.Crim. 322, 106 P.2d 128 (1940); Oregon v. McDaniel, 39 Or. 161, 65 P. 520 (1901); Buckner v. Wisconsin, 56 Wis.2d 539, 202 N.W.2d 406 (1972); Bird v. Wyoming, 34 Wyo. 112, 241 P. 701 (1925).
[22] This case was decided prior to the adoption by the Texas legislature of a rule permitting a party to amend a motion for a new trial "without leave of the court" within 30 days after sentencing. See n. 20, supra. The language "without leave" was determined to contemplate that the trial court may give leave to file an amendment outside of that time frame.
[23] Some courts hold that a criminal defendant who has filed a timely motion for a new trial may file an amended or supplemental motion after the deadline for filing the original motion has passed if the amendment or supplement is predicated on facts discovered after the expiration of the deadline. See Grecu v. Indiana, 233 Ind. 464, 120 N.E.2d 179 (1954) (finding that it is proper to consider a supplemental motion after the filing period has passed based on the theory that such a motion could be construed as a writ of error coram nobis, although not applying that holding to the facts before it); Sharp v. Indiana, 215 Ind. 505, 19 N.E.2d 942 (1939) (explaining that a supplemental motion alleging newly discovered evidence that would warrant the grant of a new trial upon a writ of error coram nobis should be considered by the trial court). Our survey indicates that Indiana is the only jurisdiction explicitly adopting this treatment. A few courts adhering to the minority view have held that "untimely" amendment of a motion for a new trial alleging new evidence not related to the reasons advanced in the original motion for a new trial is impermissible based on the theory that such an amendment is actually a new motion and should be subject otherwise to the filing deadlines established for motions for a new trial. See, e.g., United States v. Haddock, 956 F.2d 1534 (10th Cir.1992); Oddo v. United States, 171 F.2d 854 (2nd Cir.1949).
[24] As noted supra at 643-45, the alleged new evidence as to Veal was included in Petitioner's 20 February 2001 filing in the Circuit Court. The Court entertained oral argument regarding these allegations on the morning of 23 February 2001, the same day scheduled for Campbell's sentencing. Also as noted supra at 643, n. 6, Rule 4-331(c)(1) contemplates, in pertinent part, that a motion for new trial based on newly discovered evidence is to be filed "within one year after the date the court imposed sentence...." (Emphasis added).
[25] By parity of reasoning, the trial judge, in the sound exercise of discretion, could have declined to consider the Veal supplement and directed Campbell to file it anew after sentencing.
[26] The "probability" standard refers generally to evidence that is "so material that it would probably produce a different verdict if a new trial were granted." Berry v. Georgia, 10 Ga. 511, 527 (1851).
[27] The "might" standard has been articulated as evidence creating "more than a faint possibility of a different jury verdict but something less than probable." See United States v. Wallace, 528 F.2d 863, 866 n. 3 (4th Cir.1976).
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320 S.W.3d 740 (2010)
Donna Ann THIELE, Plaintiff/Appellant,
v.
Ronald G. THIELE, Steven D. Thiele, and Dennis Thiele, Defendants/Respondents.
No. ED 93755.
Missouri Court of Appeals, Eastern District, Division Three.
September 21, 2010.
*741 Marcus A. Glass, Bloomfield, MO, for appellant.
R. Howard Dillard, Cape Girardeau, MO, for respondents.
Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
ORDER
PER CURIAM.
The plaintiff, Donna Ann Thiele, appeals the judgment entered by the Circuit Court of Franklin County, dismissing with prejudice her petition against her three brothersRonald, Steven, and Dennis Thiele contesting the will of her mother, Anna Bell Thiele. Finding no error, we affirm.
An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision. The trial court's judgment is affirmed. Rule 84.16(b)(5).
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5056
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
IRVIN JAMAR FERGUSON, a/k/a Irvin Jamar Fergueson, a/k/a
Ervin Shawn Ferguson,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00166-TDS-1)
Submitted: August 18, 2010 Decided: September 9, 2010
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Robert A. J. Lang,
Assistant United States Attorney, Winston-Salem, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Irvin Jamar Ferguson appeals his conviction for
possession of a firearm by a felon in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e) (2006), which arose from a vehicular
stop where Jamie Evans was the driver and Ferguson was her sole
passenger.
I. Ferguson’s Letters to Evans
After his arrest, Ferguson wrote several letters to
Evans that arguably attempted to influence Evans’ upcoming
testimony, and advocated that she attempt to coerce the
vehicle’s owner, Candice Reeves, regarding her testimony. *
Ferguson sent the letters to Evans’ parents’ home, where her
father, who did not like his daughter socializing with Ferguson,
intercepted them, tore them up and threw them away. Evans
salvaged what she could and turned the partial writings over to
the Government.
The district court concluded that because no party was
responsible for destroying the letters, the remaining pieces
could be admitted into evidence. On appeal, Ferguson argues
that Fed. R. Evid. 106 required the district court to exclude
*
Trial testimony established that Reeves gave Evans
permission to borrow her vehicle on the night in question.
2
the letter fragments. Ferguson misapprehends Rule 106, and its
so-called “rule of completeness.”
The government has a duty to preserve evidence that
(1) possesses an apparent exculpatory value, and (2) is of such
a nature that the defendant would be unable to obtain comparable
evidence by other available means. California v. Trombetta,
467 U.S. 479, 489 (1984). In certain cases, Rule 106 may
counsel in favor of exclusion where the Government improperly
preserves evidence, saving only those portions of a writing or
recording that are helpful to its case and destroying
potentially exculpatory portions. Cf. United States v.
Yevakpor, 419 F. Supp. 2d 242, 246-47 (N.D.N.Y. 2006). However,
if evidence is destroyed, the defendant must prove that the
government acted in bad faith. Arizona v. Youngblood, 488 U.S.
51, 58 (1988).
Here, Ferguson does not argue that the Government
failed to properly preserve the evidence that it had, or that it
improperly destroyed evidence that was exculpatory. Nor does he
state how the admitted portions of his letter were taken out of
context, or how the missing portions would help bring them into
focus. Instead, Ferguson takes a literal view of Rule 106, and
argues that because the letters were not available in their
complete and unabridged form to anyone, they should not be
admitted into evidence under any circumstance.
3
We reject Ferguson’s view, as it is not supported by
the law. Because the Government was wholly uninvolved in the
partial destruction of Ferguson’s letters, and did not act in
bad faith, the district court did not abuse its discretion in
admitting the remaining pieces of the letters into evidence.
See United States v. Lancaster, 78 F.3d 888, 896 (4th Cir. 1996)
(“Decisions regarding the admission or exclusion of evidence are
committed to the sound discretion of the district court and will
not be reversed absent an abuse of that discretion.”).
II. Ferguson’s Coram Nobis Petition
After Ferguson’s conviction, but before the time he
was sentenced, the Supreme Court issued its ruling in Arizona v.
Gant, 129 S. Ct. 1710 (2009). In that case, the Court set forth
new rules governing warrantless searches arising out of vehicle
stops. See 129 S. Ct. at 1719 (A search of a vehicle incident
to arrest is justified “only when the arrestee is unsecured and
within reaching distance of the passenger compartment at the
time of the search” or when “it is ‘reasonable to believe
evidence relevant to the crime of arrest might be found in the
vehicle.’”).
Based exclusively on this authority, Ferguson filed a
corum nobis petition in the district court seeking to have the
firearm found in the glove box suppressed and his conviction
4
vacated. The district court denied his motion, finding that he
did not have standing to contest the search because the vehicle
did not belong to him and he had otherwise failed to establish a
reasonable expectation of privacy in it. We conclude that the
district court did not commit reversible error.
A writ of coram nobis may be granted to vacate a
conviction “after the sentence has been served.” See United
States v. Mandel, 862 F.2d 1067, 1075-76 (4th Cir. 1988)
(citations omitted). A court can grant this “extraordinary
remedy” only when an error “of the most fundamental character”
has occurred, and no other remedy is available. Id. at 1076.
Here, it is clear that Ferguson had not finished
serving his sentence, exhausted his direct appeal, or exhausted
his remedies under 28 U.S.C. § 2255 (West Supp. 2010) at the
time he filed his petition. While these facts alone could have
ended the district court’s inquiry, we are also unpersuaded
that challenges to the legality of a search, such as the one
Ferguson made below, involve the sort of fundamental error that
is required for a court to grant coram nobis relief.
Thus, it is clear that coram nobis relief is
inappropriate under these circumstances, and we accordingly need
not evaluate the lower court’s determinations concerning
Ferguson’s standing, or lack thereof. Cf. Carlisle v. United
States, 517 U.S. 416, 429 (1996) (“[I]t is difficult to conceive
5
of a situation in a federal criminal case today where a writ of
coram nobis would be necessary or appropriate.” (internal
quotation marks omitted). Moreover, even if construed as simply
seeking a reversal on direct appeal, Ferguson’s pleadings make
clear that he is not entitled to relief. Ferguson concedes in
his brief that he did not move to suppress the firearm before
trial, as required by Fed. R. Crim. P. 12(b)(3)(C). Therefore,
he is not entitled to relief on this point, regardless of Gant.
See Fed. R. Crim. P. 12(e) (a party “waives any Rule 12(b)(3)
defense, objection, or request not raised by the deadline the
court sets under Rule 12(c) or by any extension the court
provides”); see also United States v. Whorley, 550 F.3d 326, 337
(4th Cir. 2008).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aide the decisional process.
AFFIRMED
6
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977 F.2d 996
Gary KNOP, et al., Plaintiffs-Appellees, Cross-Appellants,v.Perry M. JOHNSON, et al., Defendants-Appellants, Cross-Appellees.Everett HADIX, et al., Plaintiffs-Appellees,v.Perry M. JOHNSON, Individually and as Director of theMichigan Department of Corrections, Defendant-Appellant.
Nos. 88-1563, 88-1634 and 88-1879.
United States Court of Appeals,Sixth Circuit.
Argued Aug. 3, 1992.Decided Oct. 16, 1992.
Patricia A. Streeter, Detroit, Mich., William L. Fette, American Civ. Liberties Fund of Michigan, Kalamazoo, Mich., Elizabeth R. Alexander (argued and briefed), Chief, Staff Counsel, Washington, D.C., for plaintiffs-appellees Gary Knop, John Ford, William Lovett, II, Ramando Valeroso, Gus Jansson, Pat Sommerville, Vernard Cohen, Jon Spytma, Robert Shipp, Butch Davis, Ron Mixon and Kerwin Cook.
Susan Przekop Shaw, Barbara A. Schmidt, Office of Atty. Gen., Corrections Div., Thomas C. Nelson (argued and briefed), Atty. Gen., Office of Atty. Gen., Habeas Div., Lansing, Mich., for defendants-appellants Perry Johnson, Robert Brown, Jr., Dale Foltz, John Jabe, Theodore Koehler, John Prelesnik and Jack Bergman.
Larry Bennett, Lopatin, Miller, Freedman, Bluestone, Erlich & Rosen, Michael Barnhart (argued), Barnhart & Mirer, Patricia A. Streeter (briefed), Detroit, Mich., Thomas M. Loeb, Southfield, Mich., for plaintiffs-appellees Everett Hadix, Richard Mapes, Patrick C. Sommerville, Rossevelt Hudson, Jr., Brent E. Koster, Lee A. McDonald, Darryl Sturges, Robert Flemster, William Lovett, James Covington, Frank Thomas and James Hadix.
Susan A. Harris (argued and briefed), Asst. Atty. Gen., Office of Atty. Gen. of Mich., Detroit, Mich., Susan Przekop Shaw, Office of Atty. Gen., Corrections Div., Lansing, Mich., for defendant-appellant Perry Johnson and defendants Barry Mintzes, individually and as Warden, Charles Anderson, individually and as Past Warden, William F. Grant, individually and as Deputy Warden, Daniel Trudell, individually and as Deputy Warden, Duane Sholes, individually and as Deputy Warden, John Jabe, individually and as Business Manager of State of Mich., James Pogats, individually and as Administrative Asst. to the Warden, Roy Rider, individually and as Classification Director of State Prison, Charles Ustess, individually and as Resident Services Director of State Prison, Don P. Leduc, individually and as Chairman of Corrections Com'n, Robert Brown, Jr., Deputy Director, Graham Allen, Elton Scott, Pam Withrow, Frank E. Elo, Marjorie Van Ochten and John Prelesnik.
Arthur J. Tarnow, Detroit, Mich., Sandra Girard (argued and briefed), Prison Legal Services of Michigan, Inc., Jackson, Mich., for amicus curiae Prison Legal Services of Michigan, Inc.
Before: NELSON and BOGGS, Circuit Judges, and WILHOIT, District Judge.*
DAVID A. NELSON, Circuit Judge.
1
These are consolidated appeals in two class actions brought against the Director of the Michigan Department of Corrections by inmates of the Michigan prison system who challenge the constitutionality of certain conditions of their confinement. Both cases involve the State Prison of Southern Michigan at Jackson, and Knop involves three other Michigan prisons as well.
2
An issue common to the appeals in both Knop and Hadix is whether the district courts erred in finding, as both did, that Michigan prisoners have been denied their right of access to the courts. On the records before us, and finding no clear error in the facts as determined by the district courts (Enslen and Feikens, JJ.) in their thorough and well-crafted opinions, we are satisfied that there are at least some Michigan prisoners who have been denied the type of access to the courts required under current Supreme Court doctrine.
3
Although it is well established that the federal constitution requires states affirmatively to assist state prisoners in obtaining access to the courts for presentation of constitutional claims related to their confinement, see Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), there has been some uncertainty as to the breadth of the class of claims covered by this requirement and as to how far the states must go in affirmatively facilitating the prisoners' access to the courts. Our recent decision in John L. v. Adams, 969 F.2d 228 (6th Cir.1992), which involved incarcerated juveniles, teaches that affirmative assistance need not be provided for litigation that is not related to the inmate's incarceration. The same limiting principle applies, we believe, with respect to adult prisoners. The principle was correctly applied in Knop, but not in Hadix; the remedial order in the latter case should have been limited, as was the order in Knop, to assistance for prisoners in making collateral attacks on their convictions and in challenging the constitutionality of the conditions of their confinement.
4
Meaningful access to the courts cannot be assured for juveniles, as both sides agreed in John L., absent access to an attorney. For adult prisoners, however, access to the courts need not entail access to an attorney; access to an adequate law library, or to paralegal personnel with access to such a library, is sufficient. The Hadix court directed the Department of Corrections to provide both a constitutionally sufficient law library and a staff of attorneys; in this, as in certain other respects, we conclude that the court abused its discretion.
5
The Knop court did not require that a staff of attorneys be maintained, but it ordered the Department to procure paralegal services by contract with a non-profit corporation. The court rejected a plan under which paralegal assistance would have been provided directly by the Department. Here too, we believe, the remedy went too far; both cases must be remanded for the development of less intrusive remedies. In the interest of insuring uniformity in the reshaping of the remedies, we shall remand both cases to a single court.
6
The appeal in the Hadix case is limited to the access to courts issue, but Knop presents several other issues as well. Except as indicated below, we shall affirm the judgment of the district court as to each of the remaining issues presented in Knop.
7
* The plaintiff class that was certified in Knop consists of prisoners at the State Prison of Southern Michigan at Jackson,1 the Marquette Branch Prison, the Michigan Reformatory at Ionia, and the Riverside Correctional Facility, also located in Ionia. Knop v. Johnson, 667 F.Supp. 467, 469 (W.D.Mich.1987). With the exception of the prisoners at Riverside and the Central Complex at Jackson, the Knop class evidently corresponds to that certified in Walker v. Johnson, 544 F.Supp. 345 (E.D.Mich.1982), aff'd in part and rev'd in part sub nom. Walker v. Mintzes, 771 F.2d 920 (6th Cir.1985).
8
One of the claims advanced in Walker was that the Michigan authorities had "violated plaintiffs' equal protection clause right to meaningful access to the courts as established in the Supreme Court case of Bounds v. Smith." 544 F.Supp. at 361. The district court acknowledged in Walker that Michigan's prison law library facilities were adequate, but found that a cutback in library hours following a series of prison riots had unlawfully restricted access to the libraries. Id. The district court ordered that library hours be increased.
9
On appeal, this court observed that there had been no showing that any prisoner had actually been denied access to the courts or had actually been prejudiced in a lawsuit. 771 F.2d at 932. We reversed the order in which the district court had specified hours of operation for prison libraries, and we directed the court to consider, on remand, "whether adequate access to court has been denied any prisoner." Id.
10
Although the Walker case was remanded to the Eastern District of Michigan, access to courts was one of the issues litigated in a 35-day bench trial conducted by Judge Enslen, of the Western District of Michigan, in Knop. The parties did not inform Judge Enslen that the access to courts issue had been remanded to another court, and it was only in preparing his opinion that he focused on this. See 667 F.Supp. at 484-85.2 Acknowledging that "[i]t may be regrettable that there have been two federal court proceedings involving the same issue and the same class of inmates," Judge Enslen concluded that it was simply too late in the game for him not to decide the plaintiffs' access to courts claim. Id. at 485. We have no quarrel with this conclusion.
11
Judge Enslen discussed the merits of the plaintiffs' access claim at pages 486 through 496. After describing the library system in detail and identifying its perceived defects, Judge Enslen found that although some inmates were able to use the system to prepare effective complaints, a greater number (particularly inmates confined in segregation, the illiterate, and inmates with intellectual handicaps) were unable to use the system to gain meaningful access to judicial forums. Such access, as the court correctly noted, entails not only the drafting of complaints and petitions for relief but also the drafting of responses to motions to dismiss and the drafting of objections to magistrates' reports and recommendations.
12
After the submission of proposed remedial plans and comments thereon, Judge Enslen conducted further hearings in March of 1988. He subsequently issued a final opinion and order, reported as Knop v. Johnson, 685 F.Supp. 636 (W.D.Mich.1988), directing the Michigan Department of Corrections to contract with a non-profit corporation for providing paralegal assistance to prisoners; requiring the hiring of an attorney to function as a program director; and establishing staffing requirements that included specified numbers of civilians with two-year paralegal degrees, prisoner paralegals, and/or inmate law clerks. The order further provided that the corporation's board of directors, only a minority of whom were to be chosen by the Department, should develop standards for providing general research assistance to any prisoner using a law library, plus drafting assistance to illiterate prisoners and those unable to express themselves in English. Portions of the order were stayed by this court pending appeal.
13
Shortly after entry of the remedial order in Knop, an opinion and order were filed in Hadix. See Hadix v. Johnson, 694 F.Supp. 259 (E.D.Mich.1988) (Feikens, J.). A class consisting of all prisoners confined in Jackson's Central Complex had been certified in Hadix some years earlier. Most of the issues raised in the case were settled under a comprehensive consent decree entered early in 1985. Section VI of the consent decree, captioned "Access To Courts," contained detailed provisions on how much time various categories of prisoners should be permitted to spend in prison libraries, what books should be included in the libraries, how prisoners facing court deadlines could get additional library time, and related matters. (A copy of Section VI, with its "Appendix B," is set forth as an appendix to this opinion.) Two questions relating to court access were not settled in the consent decree, however, and the decree provided for the submission of these questions to the court for resolution after a hearing on the merits. The decree framed the questions thus:
14
"(1) Whether and to what extent Defendants are constitutionally required to provide attorneys to assist prisoners with legal matters.
15
(2) If attorneys must be provided, whether and to what extent these attorneys must be independent."
16
The opinion and order issued by Judge Feikens in 1988 broadened the issue as follows:
17
"whether, and to what extent, the defendants are constitutionally required to provide access to the courts for inmates in the Central Complex through the provision of additional attorneys, paralegals (civilian or inmate), and other means to assist inmates with civil actions (including habeas corpus proceedings) and related matters (i.e., grievances)." 694 F.Supp. at 262-63.
18
In 1979 Judge Feikens had remarked on "the existence of experienced writ writers at [Jackson] and other institutions who are able to frame an inmate's complaint in constitutional terms well enough for presentation to a state or federal court." Glover v. Johnson, 478 F.Supp. 1075, 1097 (E.D.Mich.1979). By 1988, however Judge Feikens had become persuaded, as had Judge Enslen, that the pool of competent inmate writ-writers, or "jailhouse lawyers," was not adequate to meet constitutional norms.3
19
Judge Feikens concluded that the Department of Corrections was constitutionally required to establish a program of legal assistance for Central Complex inmates substantially more comprehensive than the program ordered in Knop for inmates housed elsewhere. Under the Hadix order, for example, requests for legal assistance were to be entertained not only in connection with the drafting of habeas corpus petitions and civil rights claims (including, but not limited to, those challenging conditions of confinement) but also in connection with "[o]ther civil claims involving matters such as domestic relations, personal injury, deportation, workers' compensation, social security, detainer, wills and estates, and taxation." 694 F.Supp. at 295. The Hadix court further found that representation should be provided "in civil matters where an inmate (1) is a defendant; (2) did not initiate the action; and (3) where an inmate's rights will expire absent timely initiation of suit...." Id. at 294. To provide non-judicial relief for prisoners with administrative concerns, moreover, the Hadix court ordered the Department of Corrections to adopt an elaborate grievance program conforming to criteria spelled out by the court. Id. at 296-98. And to provide the legal representation thought to be necessary for Central Complex prisoners, the Department of Corrections was ordered to enter into a five-year renewable contract with Prison Legal Services of Michigan, Inc. That entity, under the court's order, was to maintain staffing levels consisting, at a minimum, of a program director, four staff attorneys, six certified paralegals, and necessary auxiliary staff. Id. at 295.
20
The Director of the Department of Corrections has appealed from the orders in both Hadix and Knop. The Knop plaintiffs have appealed from the denial of certain racial discrimination claims.
II
21
In Part A of this section we discuss the constitutional underpinnings and scope of the right to affirmative assistance in obtaining access to courts. In Part B we discuss the types of legal matters to which the state's duty of providing affirmative assistance extends.
22
* Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), represents the Supreme Court's most far reaching description of the "right of access" first recognized in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941).4 The Court's opinion in Bounds is silent as to the source of this right, but on other occasions the Supreme Court has said variously that it is founded in the Due Process Clause of the Fourteenth Amendment, Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974); Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974), or the Equal Protection Clause, Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987); Murray v. Giarratano, 492 U.S. 1, 7, 109 S.Ct. 2765, 2768, 106 L.Ed.2d 1 and see id. at 11 n. 6, 109 S.Ct. at 2771 n. 6 (1989) (plurality opinion of Rehnquist, C.J.), or the First Amendment right to petition for a redress of grievances, Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987) (citing Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969)); Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984) (same). Lower courts have also implicated the Privileges and Immunities Clause of Article IV. Nordgren v. Milliken, 762 F.2d 851, 853 (10th Cir.), cert. denied, 474 U.S. 1032, 106 S.Ct. 593, 88 L.Ed.2d 573 (1985); Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.1990). See generally John L. v. Adams, 969 F.2d 228, 231-32 (6th Cir.1992).
23
One Court of Appeals has suggested, with respect to principles developed under the "right of access" rubric, that "because their textual footing in the Constitution is not clear, these principles suffer for lack of internal definition and prove far easier to state than to apply." Morrow v. Harwell, 768 F.2d 619, 623 (5th Cir.1985). Judge Enslen, similarly, has spoken of the "vagueness" of the decision in Bounds. Knop, 667 F.Supp. at 493. But while the constitutional underpinnings of today's right of access doctrine may be thought to lack intellectual coherence, we believe that the parameters of the doctrine are relatively clear.
24
The Supreme Court did not hold, in Bounds, that prison authorities are constitutionally required to provide attorneys-at-law to assist prisoners in the preparation of habeas corpus petitions and the like. The Bounds inmates asserted, before the district court, that a library facility plan proposed by North Carolina prison officials as a means of assuring access to the courts could not pass constitutional muster unless supplemented by a legal defenders' program under which prisoners could receive the assistance of independent attorneys. See Smith v. Bounds, 538 F.2d 541, 542 (4th Cir.1975). The district court refused to require the state to establish an independent attorneys' office, and this decision was affirmed by the Court of Appeals for the Fourth Circuit: "the District Court correctly ruled that the State is under no constitutional duty to offer the inmates of its penal institutions both adequate legal research facilities and an independent attorneys' office, however helpful the dual service might be." Id. at 544 (footnote omitted). The Supreme Court likewise affirmed, holding that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." 430 U.S. at 828, 97 S.Ct. at 1498 (footnote omitted, emphasis supplied). As the Eleventh Circuit has observed, "it is noteworthy that Bounds refers to law libraries or other forms of legal assistance, in the disjunctive, no fewer than five times." Hooks v. Wainwright, 775 F.2d 1433, 1435 (11th Cir.1985), cert. denied, 479 U.S. 913, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986).5
25
Although the Bounds Court noted that many states provide some degree of professional or quasi-professional legal assistance to prisoners under programs that "may have a number of advantages over libraries alone," 430 U.S. at 830-31, 97 S.Ct. at 1499, the Court specifically stated that "a legal access program need not include any particular element" of this kind. Id. at 832, 97 S.Ct. at 1500. Inmates must be assured access to courts that is "adequate, effective, and meaningful," id. at 822, 97 S.Ct. at 1495, but the touchstone is access to courts, not access to lawyers.
26
As the Supreme Court held in Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), prisoners have no constitutional right to be represented by state-paid counsel when mounting collateral attacks upon their convictions. Even where inmates on death row are concerned (and there are no such inmates in Michigan, that state having no death penalty), Bounds teaches that "[t]he requirement of meaningful access can be satisfied in various ways," and "state legislatures and prison administrators must be given 'wide discretion' to select appropriate solutions." Murray v. Giarratano, 492 U.S. 1, 14, 109 S.Ct. 2765, 2773, 106 L.Ed.2d 1 (1989) (concurring opinion of Kennedy, J., quoting Bounds, 430 U.S. at 833, 97 S.Ct. at 1500).
27
The prison library plan that was approved in Bounds contemplated the establishment of approximately seven core libraries to serve a prison population of about 10,000 people. 538 F.2d at 542-43. It was stipulated that "each library [would] make use of one or two inmates as typists to prepare court petitions and ... supervise the day-to-day use of the library. * * * Those inmates who work in the libraries ... [would] be trained to the best extent possible in researching legal questions and assisting inmates in their research. They [would] also be permitted to help illiterate and semi-literate inmates." Id. at 543, n. 1. If North Carolina had implemented this plan, the Bounds litigation would presumably have been at an end.
28
North Carolina did not properly implement the plan, as it turned out. Almost a decade after the plan was approved as satisfying the state's constitutional obligation, the state still had no workable program for training inmate paralegals to assist other prisoners in the use of the libraries. See Harrington v. Holshouser, 741 F.2d 66, 69 (4th Cir.1984). Notwithstanding the inadequacy of the state's efforts in this area--described by the Court of Appeals as "a chronology of failure," id.--the court initially rejected the thesis that "the only way that the State constitutionally can afford library access to its inmates is by employing the services of a legal services plan...." Id. at 70.
29
On remand, after the state had repeatedly failed to respond to orders directing it to show that it was in compliance with its plan, the district court finally concluded that the only way to ensure that inmates received meaningful access to the courts would be to require the assistance of licensed counsel. Smith v. Bounds, 610 F.Supp. 597, 605-06 (E.D.N.C.1985). The plan adopted by the district court provided for ten attorneys (one for every 1,000 prisoners), who were to be made available under a contract with Legal Services of North Carolina, Inc. Smith v. Bounds, 657 F.Supp. 1327 (E.D.N.C.1986).
30
A Fourth Circuit panel affirmed the district court's decision. It was uncontested, the panel said, that, among other things, "the state had not demonstrated [even after the passage of ten years] that it had provided for the training and placement of any inmate paralegals." Smith v. Bounds, 813 F.2d 1299, 1302 (4th Cir.1987) (emphasis supplied). The panel went on to make the following observations:
31
"The district court did not conclude, as the defendants contend, that prisoners have a constitutional right to access to an attorney. The district court ordered a remedy of attorney assistance because the state's program of law libraries had failed to meet the defendants' constitutional obligation of providing meaningful access to the courts." Id.
32
The panel opinion was approved by the court en banc in a brief per curiam opinion that stressed the defendants' long history of failing to respond to the district court's orders and concluded that the record showed "North Carolina was unable or unwilling to implement its library plan consistent with minimum constitutional requirements." Smith v. Bounds, 841 F.2d 77, 78 (4th Cir.) (en banc ), cert. denied, 488 U.S. 869, 109 S.Ct. 176, 102 L.Ed.2d 146 (1988).
33
The Director of the Michigan Department of Corrections has not engaged in the sort of contumacious conduct attributed to the North Carolina authorities in the Bounds litigation. Absent such conduct, we see no justification for the federal courts to require the authorities in Michigan to use taxpayer dollars to hire attorneys-at-law for the preparation of prisoner lawsuits.6
34
It may well be a good idea for Michigan to provide lawyers for prisoners who want to bring lawsuits of their own. Federal judges, however, should be ever mindful of the obvious fact that not all good ideas are mandated by the Constitution. Hooks v. Wainwright, 775 F.2d 1433, 1438 (11th Cir.1985), cert. denied, 479 U.S. 913, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986). As Justice O'Connor succinctly put it in her concurring opinion in Murray v. Giarratano, 492 U.S. 1, 13, 109 S.Ct. 2765, 2772, 106 L.Ed.2d 1 (1989), "[b]eyond the requirements of Bounds, the matter is one of legislative choice based on difficult policy considerations and the allocation of scarce legal resources." (Emphasis supplied.)7
35
In our constitutional democracy, as we understand it, legislative choices are to be made by legislators who are subject to removal by the people, and not by judges who enjoy office for life. See San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 31, 93 S.Ct. 1278, 1295, 36 L.Ed.2d 16 (1973) (courts lack both authority and competence to assume a legislative role); cf. Kelley v. Metropolitan Co. Bd. of Educ., 836 F.2d 986, 996 (6th Cir.1987), cert. denied, 487 U.S. 1206, 108 S.Ct. 2848, 101 L.Ed.2d 885 (1988). A " 'mother knows best' approach should play no part in traditional constitutional adjudication." Murray v. Giarratano, 492 U.S. 1, 11, 109 S.Ct. 2765, 2771, 106 L.Ed.2d 1 (1989) (plurality opinion of Rehnquist, C.J.).8
36
But the conclusion that Michigan need not provide attorneys to prepare prisoner lawsuits does not end our inquiry. Standing alone, law libraries that are adequate for prisoners who know how to use them and who have reasonable physical access to their collections are not adequate for prisoners who cannot read and write English, or who lack the intelligence necessary to prepare coherent pleadings, or who, because of protracted confinement in administrative or punitive segregation or protective custody, may not be able to identify the books they need.
37
Under the library plan that was considered by the Supreme Court in Bounds, as we have seen, the libraries would not have stood alone; it was contemplated that trained inmates would be made available for helping the illiterate and semi-literate, for performing or helping in the performance of legal research, and for typing court petitions. It does not appear that comparable assistance has been provided, to the extent required, in the Michigan prisons. Judge Enslen found, for example, that librarians at Jackson's North and South Complexes were not competent to perform legal research; that inmates hired there as law clerks were not allowed to assist other inmates in their legal research; and that "the often-fabled jailhouse lawyers or writ-writers are, at least in the Michigan system, too few and often too uninformed to provide adequate assistance to the inmates." Knop, 667 F.Supp. at 488. As far as Jackson's Central Complex is concerned, similarly, Judge Feikens found that neither the librarians nor the inmate library clerks were sources of legal assistance; that the assistance available from jailhouse lawyers and inmate paralegals was "unreliable" and "restricted by financial, security, and other constraints;" and that outside attorneys were not available with any certainty, particularly for the substantial percentage of inmates (between 20% and 50%) who are unable to explain their grievances in writing. Hadix, 694 F.Supp. at 284-85.9 The records contain evidence of a number of specific instances where unassisted inmates suffered individualized harm because of inability to use library resources properly.
38
We do not disagree with the conclusion, reached by both of the district courts, that something more was required in the way of paralegal assistance. It is fundamental that a prisoner who claims to be confined unconstitutionally must be allowed to state his case to a court. Some such prisoners, given law books and simplified pleading forms of the sort furnished by the courts, can handle the task adequately themselves. Others, for reasons fully explained in the opinions of both district courts, cannot. For prisoners of the latter sort, as a practical matter, there can be no meaningful access to the judicial system unless some literate person is available to reduce their stories to intelligible written pleadings.
39
To the extent that inmate writ-writers, or jailhouse lawyers, are not adequately filling the needs of prisoners who claim they are being held unconstitutionally, the state must furnish, at a minimum, the functional equivalent of jailhouse lawyers who are up to the job. This means paralegals--not necessarily individuals who have completed two-year training courses designed for document-managers at large corporate law firms, but intelligent laypeople who can write coherent English and who have had some modicum of exposure to legal research and to the rudiments of prisoner-rights law. "Although legal training need not be extensive, Bounds does require that inmates be provided the legal assistance of persons with at least some training in the law." Gluth v. Kangas, 951 F.2d 1504, 1511 (9th Cir.1991) (citations omitted).
40
The order of the district court in Hadix contemplates that Prison Legal Services will "represent" inmates in a variety of civil matters. The court's verb choice is significant, and it reflects, we think, a misunderstanding of what the Supreme Court has said the Constitution requires. Inmates who have signified a desire to go to court to present civil rights claims or claims for post-conviction relief are not ipso facto entitled to legal representation. They are entitled, rather, to "access"--which means getting the courthouse door opened in such a way that it will not automatically be slammed shut on them. Once access has been attained, whether through a complaint that is entirely homemade or through one prepared by or with the help of a writ-writer or paralegal, the court can decide whether the case presented is one that calls for the appointment of a lawyer to represent the plaintiff.
41
Under 28 U.S.C. § 1915(d), the court may request an attorney to represent any indigent prisoner litigant--but "[a]ppointment of counsel pursuant to 28 U.S.C. § 1915(d) is not appropriate when a pro se litigant's claims are frivolous ... or when the chances of success are extremely slim." Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir.1987), quoting Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir.1985). If the court does not choose to see that the litigant receives legal representation, the state obviously has no independent duty to provide such representation. And the state, as Judge Enslen correctly noted, "is not obligated to do anything more than assist inmates at the pleading stage." Knop, 667 F.Supp. at 494. The required assistance, as we have seen, falls considerably short of legal "representation."
42
Although the Knop court acknowledged that "a district court must impose the least intrusive remedy available," 685 F.Supp. at 637 (internal quotes omitted), and must allow the defendants to choose their preferred method of providing at least minimally adequate access to the courts, id. at 641, we believe that the final order in Knop was more intrusive than necessary. The defendants submitted a plan for providing assistance for certain prisoners through paralegals employed and supervised by the state. The court rejected this approach because (1) it failed to assure that prisoner-paralegal communications would receive the kind of confidentiality that attaches to lawyer-client communications, (2) it required prisoners to waive any right to sue the paralegals for malpractice, and (3) it created an unacceptable degree of conflict of interest, the paralegals not being independent of the state. Id. In place of the state's plan, the court ordered the Department of Corrections to obtain paralegal services from a non-profit corporation controlled by a board of directors on which both the prisoners and the department would have representation. Id. at 647. The program of legal services furnished by the corporation was to be operated under detailed bylaws developed by the board and approved by the court. Id. Other than appointing a minority of the corporation's board of directors and paying all the bills, the state was evidently to have little to do in seeing to the provision of paralegal assistance.
43
It is far from self-evident that access to courts cannot be assured without having paralegals hired by a legal services corporation that has been created to insulate the paralegals from supervision, direct or indirect, by those whom the electorate have chosen to govern. We note that under the laws of the Commonwealth of Virginia, for example, "unit attorneys" are appointed directly by the state government to serve as legal advisors, or "talking lawbooks," for inmates wishing to bring incarceration-related litigation. See Murray v. Giarratano, 492 U.S. 1, 5, 109 S.Ct. 2765, 2767, 106 L.Ed.2d 1 (1989); cf. Giarratano v. Murray, 668 F.Supp. 511, 514 (E.D.Va.1986). Even as to prisoners on death row, five of the current justices of the United States Supreme Court concluded, in Giarratano, that Virginia's scheme does not violate the Constitution. And the dissenting opinion of Justice Stevens, joined by the remaining three justices (two of whom are no longer members of the Court), did not assert that the Virginia plan would be constitutionally inadequate for prisoners who have not been sentenced to death.
44
Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), is also instructive in this connection. Because Tennessee provided no meaningful alternative for prisoners who wished to seek post-conviction relief, the United States Supreme Court held that Tennessee could not impose a blanket prohibition against inmates setting themselves up as writ-writers for other inmates. "Jails and penitentiaries," said the Court, "include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited." Id. at 487, 89 S.Ct. at 750. Such persons are not automatically entitled to appointed counsel when they indicate they wish to seek post-conviction relief, the Court declared, which is why the state must at least let them consult with prisoner writ-writers--and must do so notwithstanding that such writ-writers "are sometimes a menace to prison discipline and that their petitions are often so unskillful as to be a burden on the courts which receive them." Id. at 488, 89 S.Ct. at 750.
45
The Johnson Court noted with apparent approval that "[a]t least one State employs senior law students to interview and advise inmates," while other states have public defenders, paid from public funds, available to consult with prisoners on habeas corpus matters. Id. at 489, 89 S.Ct. at 750. Without expressing any judgment concerning such plans, the Court noted that they demonstrate the availability of "techniques ... to provide alternatives if the State elects to prohibit mutual assistance among inmates." Id. at 489-90, 89 S.Ct. at 751.
46
Neither a system involving the direct employment of legal personnel by a state nor a system of mutual assistance among inmates could guarantee avoidance of the type of potential conflict of interest by which the Knop court was troubled. Neither system, similarly, could assure a prisoner whom the system had failed that he would have a reasonable chance of obtaining a collectable judgment for malpractice. And where unregulated inmate writ-writers are concerned, at least, it seems doubtful that the confidentiality of inmate communications could be assured. Such considerations simply did not seem to trouble the Johnson court--one reason, in all probability, being that the Court obviously did not think of writ-writers as providing legal representation.
47
In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), finally, the Supreme Court declared that illiterate inmates involved in prison disciplinary proceedings "should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff." Id. at 570, 94 S.Ct. at 2982 (emphasis supplied). Here again, the Supreme Court seems to have been far less concerned than was the Knop court about reliance on assistance provided by employees of the state.
48
Perhaps the advantages of placing all prisoner paralegals on the payroll of a non-profit corporation would outweigh the disadvantages of doing so. We do not believe, however, that the courts may appropriately tell the Department of Corrections how to strike this balance. "Injunctive relief against a state agency or official must be no broader than necessary to remedy the constitutional violation." Toussaint v. McCarthy, 801 F.2d 1080, 1086 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). Fundamental precepts of comity and federalism admit of no other rule--and such precepts "are perhaps nowhere more compelling than in actions seeking relief against unconstitutional practices ... in state penal institutions." Kendrick v. Bland, 740 F.2d 432, 437 (6th Cir.1984), citing, among other cases, Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439 (1973); Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); Rhodes v. Chapman, 452 U.S. 337, 349 n. 14, 101 S.Ct. 2392, 2400 n. 14, 69 L.Ed.2d 59 (1981); and Bell v. Wolfish, 441 U.S. 520, 548, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). See also Turner v. Safley, 482 U.S. 78, 88-89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987); Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 1878, 104 L.Ed.2d 459 (1989); and Rufo v. Inmates of Suffolk County Jail, --- U.S. ----, ----, 112 S.Ct. 748, 753, 116 L.Ed.2d 867 (1992). If the State of Michigan wishes to facilitate its prisoners' access to the courts by furnishing assistance through paralegals hired and supervised by the state itself, we think it should be permitted to do so.
B
49
We turn next to the question of the types of legal matters to which the state's obligation of affirmative assistance extends. The Knop order requires only that the prisoners be furnished paralegal assistance for making collateral attacks upon their convictions and for challenging the conditions of their confinement; the Hadix order, as we have seen, requires legal assistance for a variety of additional purposes, including the handling of a broad spectrum of civil matters in which inmates have been named as defendants, as well as matters in which an inmate must commence suit in a timely manner or suffer his claim to be barred by laches or a statute of limitations.
50
Other courts of appeals have declined to extend the Bounds rule beyond assistance in initiating habeas corpus proceedings (the type of lawsuit addressed in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718) and civil rights actions involving constitutional claims (a form of action which the Supreme Court has held cannot reasonably be distinguished from the habeas action. Wolff v. McDonnell, 418 U.S. 539, 577-80, 94 S.Ct. 2963, 2985-86, 41 L.Ed.2d 935 (1974)). See, e.g., Nordgren v. Milliken, 762 F.2d 851, 855 (10th Cir.), cert. denied, 474 U.S. 1032, 106 S.Ct. 593, 88 L.Ed.2d 573 (1985); Morrow v. Harwell, 768 F.2d 619, 623 (5th Cir.1985) (semble ). Our own court, similarly, has read Bounds as requiring affirmative assistance for incarcerated juveniles only in "the preparation of legal papers in cases involving constitutional rights and other civil rights actions related to their incarceration." John L. v. Adams, 969 F.2d 228, 235 (6th Cir.1992). As to other types of civil actions, although "states may not erect barriers that impede the right of access of incarcerated persons," we held that a requirement of affirmative assistance would be "an unwarranted extension of the right of access." Id. at 235-36. If such a requirement is unwarranted for incarcerated juveniles, it is unwarranted for incarcerated adults.
51
It might be a good idea for the taxpayers of Michigan to provide legal assistance for prisoners in all civil matters as to which a need can be demonstrated, just as it might be a good idea for the taxpayers to provide such assistance for the populace at large. Again, however, we return to the obvious truth that not every good idea is mandated by the Constitution. And if the ordinary law-abiding Michigander has no constitutional right of access to the public purse for legal assistance on claims involving such things as domestic relations, personal injury, deportation, workers compensation, social security, detainer, wills and estates, and taxation, it does not seem to us that such a constitutional right springs into existence by virtue of the needy person's having been convicted of a crime and sentenced to prison.
III
52
In the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. §§ 1997 et seq., Congress provided for the granting of continuances in prisoner civil rights actions "in order to require exhaustion of such plain, speedy, and effective administrative remedies as are available." 42 U.S.C. § 1997e(a)(1). In this connection, Congress directed the United States Attorney General to "promulgate minimum standards for the development and implementation of a plain, speedy and effective system for the resolution of [state prisoners'] grievances...." 42 U.S.C. § 1997e(b)(1). Such grievance resolution systems as may be "voluntarily submitted" by individual states are to be reviewed by the Attorney General and may be certified by him as being in compliance with the minimum standards. 42 U.S.C. § 1997e(c)(1). The failure of a state to adopt an administrative grievance procedure meeting the prescribed standards cannot constitute the basis of an action by the Attorney General, however, notwithstanding the Attorney General's power, under § 1997a, to sue states that are believed to be depriving prisoners of their civil rights. 42 U.S.C. § 1997e(d).
53
Although adoption of a prisoner grievance system designed to meet federal standards is not mandatory under the act passed by Congress, it has been made mandatory for the Central Complex at Jackson under the order issued by the court in Hadix. Agreeing with the findings of "two court-appointed experts ... that the current grievance program is ineffective and unresponsive to the needs of both the inmates and the Central Complex administration," 694 F.Supp. at 296, the district court ordered the Department of Corrections to draft policy directives to meet standards promulgated by the Attorney General for grievance programs. Id. at 297. The court went on to specify in some detail how this would be done with respect to such matters as inmate review of the grievance program, representation of the entire Central Complex inmate population in the review process, and employee participation in an advisory role. Id. The court further ordered that the grievance process should incorporate a series of discrete steps specified by the court; that the Department of Corrections should "implement personnel changes as recommended by Professor Wolfson [one of the court-appointed experts] in his study," including the hiring of qualified persons to serve as grievance investigators, members of grievance panels, grievance coordinators, and "other personnel as necessary for the objectives;" that certain of the newly hired persons ("grievance coordinators independent of the Department of Corrections, [hired] to oversee the work of the grievance investigators and the grievance panels") should provide yearly reports evaluating the performance of the grievance system; that persons involved in the grievance process should be provided training in investigation and mediation techniques; and that "the Department of Corrections shall commission a periodic review of the grievance system at the Central Complex by an outside body." Id. at 297-98. The district court felt that a restructured grievance program would reduce the workload of the courts by encouraging administrative resolution of disputes that currently wind up in court. The modifications that the Department of Corrections was directed to make in the existing grievance system were said to be "minimal but necessary." Id. at 298.
54
Desirable though many of these provisions may be, they do not strike us as "minimal." Neither do they appear to come within the ambit of the issues reserved by the consent decree for resolution by the court. And be that as it may, they certainly do not represent the least intrusive remedy that can be justified as necessary to vindicate inmates' constitutional right of access to the courts. If prisoners currently exercise their right of access to the courts on a broader scale than the courts would like, that hardly justifies judicial intervention in the state's administrative system under the guise of protecting the right of access to, of all things, the courts! "Federal courts may not order States or local governments, over their objection, to undertake a course of conduct not tailored to curing a constitutional violation that has been adjudicated." Rufo v. Inmates of Suffolk County Jail, --- U.S. ----, ----, 112 S.Ct. 748, 762, 116 L.Ed.2d 867 (1992). This part of the Hadix order looks to us like judicial legislation run wild.
IV
55
Subsequent to issuance of the order in Hadix, the defendant moved for a new trial on the strength of what appeared to be ex parte communications between the court and a key witness for the plaintiffs. The motion was denied in an order (docket item 505) wherein the court set forth the pertinent facts in considerable detail. The defendant contends on appeal that the Hadix court committed reversible error in failing either to recuse itself or to grant a new trial.
56
The communications in question followed a request that Judge Feikens made in open court during testimony presented by Sandra Girard, the Director of Prison Legal Services, Inc. The court asked Ms. Girard if she would prepare a written memorandum describing the impact on Prison Legal Services of frequent prisoner transfers necessitated by overcrowding. Ms. Girard said she would, agreeing, at the court's request, to send copies to counsel. No objection was made by the defendant.
57
In response to the court's request, Prison Legal Services prepared a nine-page memorandum dated March 11, 1988. Copies were sent to the court and to counsel.
58
A few days later Judge Feikens sent Sandra Girard a letter asking further questions. Although defense counsel initially disclaimed receipt of a copy of this letter, which is not part of the official court record, it is now conceded that copies were sent to counsel. Ms. Girard responded to the court's request by furnishing a survey and related materials describing legal services programs in other states. It is undisputed that defense counsel were provided copies.
59
Following his review of the new materials, Judge Feikens had his law clerk telephone Ms. Girard to ask about the availability of further background materials. Pursuant to this inquiry, Ms. Girard sent the court a letter, with a copy to counsel, offering to provide, among other things, certain questionnaires dealing with legal services programs in other states. Judge Feikens then had his law clerk telephone Ms. Girard again and request copies of the materials referred to in her letter. A third package of documents was submitted to the court in response to this request, with copies of the transmittal letter going to counsel. This led to the filing of written objections by the defendant and, ultimately, to the motion for new trial.
60
This court has made it clear that it is "impermissible for a trial judge to deliberately set about gathering facts outside the record." Price Bros. Co. v. Philadelphia Gear Corp., 629 F.2d 444, 447 (6th Cir.1980). Moreover, "a judge may not direct his law clerk to do that which is prohibited to the judge." Id. Ex parte communications from a judge's chambers to one side in a contested lawsuit are "clearly at odds with our adversary system of justice." Price Bros. Co. v. Philadelphia Gear Corp., 649 F.2d 416, 425 (6th Cir.1981) (Merritt, J., concurring). In view of these principles, Judge Feikens' requests for additional information should have been placed on the record, and the one-on-one telephone calls from the court's law clerk to the plaintiffs' key witness should not have been made.
61
In context, however, these lapses appear relatively harmless. Because Ms. Girard was consistently scrupulous about sending counsel copies of her letters--as the court doubtless expected her to be--the court was furnished nothing that counsel did not know about. Judge Feikens has expressly stated, moreover, that "[n]one of the documents included in the three packages of materials submitted by Girard in response to inquiries made by the Court formed any basis for my findings of fact or my conclusions of law in my Memorandum Opinion and Order filed July 1, 1988." Doc. entry 505. We have no reason to question this, and we find no error in the denial of the defendant's motion.
62
The only remaining issue raised on appeal in Hadix is whether the Hadix court erred in taking judicial notice of proofs in Knop without notice to the defendant. Our disposition of the appeals makes it unnecessary to address this question.
V
63
The access to courts claim that was tried in Knop contained a sub-issue not presented in Hadix: the constitutionality of the prison officials' system of handling mail sent to inmates by courts and by counsel. Concluding that there were problems in this area, the court ordered implementation of a system-wide policy insuring that legal mail will be opened only in the presence of the addressee if that is the addressee's wish.
64
The Knop court also heard evidence on three additional claims: (1) that prisoners had been subjected to cruel and unusual punishment by reason of the Department's alleged failure to provide proper winter clothing; (2) that the lack of toilets and washbasins in certain locked cells constituted cruel and unusual punishment; and (3) that inmates were denied equal protection of the law by a variety of practices claimed to reflect racial discrimination.
65
The district court granted a measure of relief on each of these claims. Taking judicial notice of the severity of Michigan's winters, the court ordered that inmates who were required to go outside in the wintertime be provided adequate clothing, including hats and gloves or mittens and, where appropriate, boots. The installation of in-cell flush-toilets was ordered in certain units at the Riverside facility. And with regard to racial discrimination, the Department of Corrections was ordered to forward all prisoner grievances on the subject to the Legislative Ombudsman's Office. Both sides have appealed from the district court's order on the racial discrimination question, and the defendants have appealed on the other issues.
66
* Under Michigan's established policy, privileged mail is to be opened only in the presence of the addressee prisoner if the prisoner has opted to request such treatment. During their orientation to the prison system, inmates receive a handbook that is supposed to explain the privileged mail policy, along with a variety of other matters. The policy is explained orally as well.
67
In practice, the policy varies from institution to institution. The handbooks used at some facilities do not explain the policy clearly or do not discuss it at all. At Jackson and Marquette, mail from any attorney is treated as privileged after an inmate notifies the mailroom that he has an attorney. At the Reformatory, only mail from attorneys specified by the inmate receives such treatment.
68
The district court found no constitutional infirmity in the opt-in system as such, but did find that the authorities' method of implementing the system, particularly at the Reformatory, permitted needless infringement of the inmates' right to confidentiality in their communications with counsel. The court observed that it is not uncommon for a prisoner to receive mail from a court-appointed attorney before the inmate knows the attorney's identity. The court therefore ordered implementation of a uniform policy at all facilities, with inmates being asked at intake whether they wish to invoke their privilege of being present at the opening of legal mail. Where the response is affirmative, all incoming mail from attorneys and from the courts is to be treated as privileged mail.
69
A prisoner's right to receive mail is protected by the First Amendment. See Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974); Parrish v. Johnson, 800 F.2d 600, 603 (6th Cir.1986). In criminal settings, the Sixth Amendment protects the attorney-client relationship from unwarranted intrusion. Wolff v. McDonnell, 418 U.S. 539, 576, 94 S.Ct. 2963, 2984, 41 L.Ed.2d 935 (1974). Prison officials may, of course, impose restrictions that are "reasonably related" to the prison's security needs or other "legitimate penological objectives." Turner v. Safley, 482 U.S. 78, 87, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). Our court has said that prison officials must "put forth legitimate reasons for interfering with a prisoner's incoming mail." Parrish, 800 F.2d at 604.
70
We agree with the conclusion of the district court that prisoners may not be required to designate particular attorneys in order to activate privileged treatment of their legal mail. The district court acted properly in requiring that each prisoner receive written notice of the legal mail policy upon intake and in eliminating any requirement that requests for special treatment of legal mail be renewed upon transfer from one facility to another.
B
71
The district court found that the defendants were failing to provide inmates with adequate winter clothing. This finding was not clearly erroneous. We cannot agree with the defendants' argument that the district court wrongly substituted its judgment for that of prison authorities. The Eighth Amendment prohibits punishment that "involve[s] the unnecessary and wanton infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (plurality opinion)). Exposure to Michigan winters without adequate clothing can obviously inflict pain. No legitimate government interest is served by withholding adequate clothing, and the district court was justified in ordering the remedy it did.
C
72
Certain cells at Riverside lack flush-toilets and wash basins with running water. Inmates in these cells use central lavatory facilities as permitted by prison officers. There are occasions when access to the central toilets is not permitted, necessitating the use of nonflushable receptacles in the inmates' cells. The court found the Riverside facilities to be generally clean, with the exception of areas where urine may have been spilled on the floor.
73
Access to toilets varies among four population groups at Riverside. One hundred thirty cells in the Riverside reception and guidance center lack toilets and wash basins. Inmates in the center are locked in their cells approximately 18 hours per day, being out of the cell three times a day for meals and once for recreation. Inmates receive portable urinals on their arrival, and some inmates use these to throw urine and feces into the courtyard. The court found that the defendants failed to provide inmates in the reception area with regular access to bathroom facilities, forcing them to relieve themselves in their cells. The court concluded that this was a violation of the Eighth Amendment.
74
Ninety-six cells in the protective custody unit lack toilets and basins. Protective custody inmates are locked in their cells each night from about 10 or 11 p.m. to 6 or 6:30 a.m. During the day they are generally out of their cells. Officers frequently let inmates out during the night to use the toilet facilities. Nonetheless, the court found that inmates faced a substantial risk of not being allowed to use the toilet facilities upon request and were frequently forced to urinate or defecate in their cells. In the court's view this was unconstitutional.
75
Approximately 20 inmates are housed in the administrative segregation unit. These inmates are confined to their cells except for a daily recreation period of one hour and during toilet trips. Officers make regular bathroom runs four or five times a day and make rounds every 30 minutes, at which time inmates can request to use the toilet. These requests are not always granted, however, particularly during the late night and early morning. The court found this to be unconstitutional.
76
We do not agree that it violates the Eighth Amendment to require prisoners to use nonflushable toilets on occasion. The drafters of the Eighth Amendment used them, after all, and countless millions of modern Americans have done so too. The district court "specifically f[ound] that the [Riverside Correctional Facility] and the [Riverside Psychiatric Center] generally are clean facilities, that defendants maintain clean hallways, and, with the exception of areas where urine may be spilled on the floor, that the cells are clean." 667 F.Supp. at 480 (citations omitted). The "[d]efendants established ... that correctional officers frequently let inmates out during the night to use the toilet facilities." Id. at 481. In light of these findings, we do not believe a constitutional violation can be shown on the basis of additional findings that inmates "do use their urinals in their cells, and on occasion even are forced to defecate in their cells," or that inmates regularly throw urine and feces into the courtyard. Id.
D
77
The district court found that black inmates are not intentionally discriminated against on a classwide basis in terms of their placement in protective custody; that there is no intentional racial discrimination with respect to eating areas, food serving lines, or servers; and that racial disparities in job assignments do not represent a widespread or general pattern of discrimination. The court found further that although prison officials do not condone incidents of racially discriminatory punishment of inmates, they have condoned racial slurs. This form of racial harassment was found to represent a policy, practice, or custom of the Department of Corrections, and the court ordered the defendants to submit a remedial plan.
78
Because the plan ultimately submitted was considered inadequate, the court took the (in its words) "somewhat drastic step of mandating particular disciplinary actions." Knop, 685 F.Supp. 636, 640. The order prescribed a detailed grievance system to be operated under the supervision of the Legislative Ombudsman's Office. Pursuant to the procedure described in First National Bank of Salem v. Hirsch, 535 F.2d 343 (6th Cir.1976), the court subsequently indicated that it was prepared to modify this portion of the order to reflect the fact that the court had no jurisdiction over the Ombudsman's Office. Instead of telling the Ombudsman's Office what to do, the court proposed to order the defendants to contract with that office, or with a similar independent agency, to implement the grievance and disciplinary procedure outlined in the court's order.
79
We have recognized that racial harassment by government employees can violate rights protected by the Equal Protection Clause. Poe v. Haydon, 853 F.2d 418, 429 (6th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989). Supervisory officials, however, are not liable for harassment by their subordinates absent "a showing that the supervisor encouraged the ... misconduct or in some other way directly participated in it." Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93 (1984). The defendants' failure adequately to investigate claims of racial harassment in this case did not, in our view, rise to the level of "encouragement." The detailed grievance procedure set forth in the district court's order, moreover, intrudes unnecessarily in the state's operation of its prisons. Part III of the order, set forth at 685 F.Supp. at 644-46, will therefore be vacated.
80
Shortly before trial, the plaintiffs altered their discrimination-in-employment claim to assert that the defendants' anti-discrimination policy was unconstitutional because it set a limit on minority employment. The district court correctly recognized that the altered claim pitted members of the class against each other, and it decertified the class with respect to the claim. The plaintiffs do not challenge the partial decertification, but they contend that the court erred in failing to decide the individual claims of the named plaintiffs. As the defendants point out, however, the court was not asked to do so.
VI
81
The district court imposed sanctions against the defendants and their counsel under Rule 11, Fed.R.Civ.P., for the filing of four pretrial motions for summary judgment. The court determined that the motions were legally untenable and had been filed for an improper purpose. Finding that the district court did not "base[ ] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence," and thus did not abuse its discretion, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990), we uphold the imposition of the sanctions.
82
The judgments of the district courts are AFFIRMED in part and REVERSED in part. The remedial order entered by the district court in Hadix is VACATED, Parts I, III and IV A of the remedial order entered by the district court in Knop are VACATED, and both cases are REMANDED to the United States District Court for the Western District of Michigan for further proceedings not inconsistent with this opinion.
APPENDIX
SECTION VI OF CONSENT DECREE
VI. Access to Courts
83
1. Each General Population inmate may use the law library at least six hours per week in two-hour segments. To accommodate this use, the law library shall remain open at least 55 hours per week, with at least one-third of those hours during evenings after 5:00 p.m. and weekends. The law library will remain open additional hours as staff becomes available. Prisoners who have pending court cases requiring additional law library time in excess of the six-hour guarantee will be allowed the additional access necessary.
84
2. Within 30 days after the entry of the Judgment in this matter, the Department will initiate procedures to order for the main law library, to the extent not currently provided, each of the publications listed in Appendix B, "Minimum Collection for Main Law Libraries," with the addition of a complete edition of Michigan Compiled Laws Annotated. For each required publication, the Department shall have a subscription for revised additions, pocket parts, or advance sheets which shall be made available for prisoner use forthwith upon delivery to the institution. Periodically, at six-month intervals, Defendant shall survey each collection to identify missing or mutilated volumes. All missing or mutilated volumes, however discovered to be missing or mutilated, will be replaced or restored promptly.
85
3. Inmates in Administrative Segregation or Protective Custody shall be guaranteed two hours per week direct personal access to a limited law library collection as indicated in Appendix B, "Minimum Collection for Administrative Segregation Law Libraries." In addition, on three days each week, such inmates may request five volumes brought to them from the main law library collection unless the particular volumes are loaned to another inmate. These volumes shall be delivered to the inmate in segregation on the day following the day on which requests are collected. The book(s) may be collected after 24 hours.
86
4. Law library facilities shall be maintained with adequate ventilation and lighting with sufficient space to accommodate the reasonable needs of the inmates.
87
5. The allotted time per prisoner for law library use shall not include the time necessary to travel to and from the library, but will include only the amount of time actually spent in the library.
88
6. The detail system by which inmates in general population presently gain access to the law library shall be continued in order to assure prisoner access to the law library.
89
7. Special and additional library time shall be allowed on a call out system to an individual prisoner as needed, provided that he can demonstrate a bona fide need as determined by the supervisor of the law library. Such a bona fide need shall include, but not be limited to, situations such as a deadline for filing briefs, pleadings, responses to a pleading, or other such documents with a court.
90
8. Inmate staff working in the law library shall not have the authority to deny other prisoners access to the law library. Inmate staff shall be supervised by a professional librarian and staff clerk.
91
9. The Department of Corrections shall provide notarial services as necessary. Pursuant to the request of plaintiffs, the Department of Corrections shall post a notice at the prison law library indicating that in many cases declarations under penalty of perjury, in lieu of formal affidavits, are allowed.
92
10. The Department shall enforce its policy for treatment of privileged legal mail, including mail from Federal, State and local courts, governmental agencies, and attorneys, which provides that such mail will not be read, that upon the inmate's written demand, such mail will not be opened except in the presence of the inmate to whom the mail is addressed, and that such mail may be opened to search for contraband. The Department further shall provide that inmates shall seal all outgoing legal mail which prison officials shall then cause to be posted unopened in the U.S. mail.
93
11. Paralegal training will be instituted at the State Prison of Southern Michigan as a regular educational program under the auspices of Jackson Community College.
94
12. Electric typewriters shall be permitted.
95
13. Any property limitation imposed on prisoners shall not apply to legal papers and law books except that if the quantity thereof conflicts with important institutional goals such as security or fire safety, a limitation may be sought through the administrative hearing process. The standard for imposition of a limitation shall be whether the material in question is reasonably necessary to assist the prisoner with respect to his pending litigation.
96
14. Each visiting attorney shall be afforded a table and chair in a space providing suitable privacy.
APPENDIX B
MINIMUM COLLECTION FOR MAIN LAW LIBRARIES
MICHIGAN MATERIALS
97
1. Michigan Compiled Laws Annotated (Vol. 1-2, 38-39, 40-41)
OR
98
Michigan Statutes Annotated (Vol. 1, 24, 24A, 25, 25A)
2. Michigan Digest (West) (all)
OR
Michigan Digest (Callaghan) (all)
99
3. Michigan Supreme Court Reports (Vol. 358 (1960) to the present plus subscription to advance sheets)
100
4. Michigan Appeals Reports (Vol. 1 to the present plus subscription to advance sheets)
5. Shepard's Michigan Citations (all)
101
6. Gillespie--Michigan Criminal Law and Procedure (all)
102
7. Honigman and Hawkins--Michigan Court Rules Annotated (all)
103
8. Michigan Criminal Jury Instructions (all)
9. Hensel--Appeals in the Michigan Courts
FEDERAL MATERIALS
104
1. United States Code Annotated (Constitution volumes, Titles 18, 28, 42)
105
2. Supreme Court Reporter (From Vol. 80 (1959) to the present plus subscription to advance sheets)
OR
106
United States Supreme Court Reports, Lawyers' Edition, 2nd Series (From Vol. 4 (1959) to the present plus subscription to advance sheets)
107
3. Federal Reporter, 2nd Series (From Vol. 300 (1962) to the present plus subscription to advance sheets)
108
4. Federal Supplement (From Vol. 200 (1961) to the present plus subscription to advance sheets)
5. Federal Practice Digest, 2d (all)
6. Shepard's United States Citations (all)
7. Shepard's Federal Citations (all)
109
8. Wright--Federal Practice and Procedures (Vols. 1, 2 and 3) (Criminal)
110
9. Sokol--Federal Habeas Corpus (latest edition)
GENERAL MATERIALS
111
1. Corpus Juris Secundum (22, 22A, 23, 23A, 24, 24A, 24B (Vols. covering Criminal Law))
112
2. Black--Black's Law Dictionary, Revised 4th Ed. (1968)
OR
113
Ballentine--Ballentine's Law Dictionary, 3rd Ed. (1969)
114
3. Cohen, M.--Legal Research in a Nutshell (latest edition)
OR
115
Elias--Legal Research: How to Find and Understand the Law
116
4. Bailey and Rothblatt--Complete Manual of Criminal Forms, 2nd Ed. (2 volumes)
117
5. Israel and LaFave--Criminal Procedure in a Nutshell, 2nd Ed. (1975)
6. Criminal Law Reporter
118
7. Rubin--Law of Criminal Correction, 2nd Ed. (1973)
119
8. Werner--Manual for Prison Law Libraries (1976)9. Dorsen, N.--The Rights of Prisoners (1973)
OR
120
Rudovsky, D.--The Rights of Prisoners (1973)
OR
121
Palmer, J.W.--Constitutional Rights of Prisoners (1977)
122
10. LaFave, W.R.--Principles of Criminal Law (1978)
OR
123
LaFave and Scott, Handbook in Criminal Law (1972)
OR
124
Loewy, A.R.--Criminal Law in a Nutshell, 2nd Ed. (1972)
Additional Volumes
125
A complete edition of MCLA for SPSM Main Law Library.
126
MINIMUM COLLECTION FOR ADMINISTRATIVE SEGREGATION LAW LIBRARIES
127
1. Michigan Compiled Laws Annotated (Vol. 1-2, 38-39, 40-41)
OR
128
Michigan Statutes Annotated (Vol. 1, 24, 24A, 25, 25A)
129
2. A treatise on Michigan criminal law and procedure
130
3. Superseded "advance sheets" of Shepard's Citations (United States, Federal, and Michigan)
131
4. A treatise (e.g., Nutshell series) on prisoners' rights
5. A treatise on habeas corpus
132
6. A general treatise on criminal law and on criminal procedure
7. A legal dictionary
133
8. Federal rules of civil and criminal procedure
134
9. A Michigan Department of Corrections Resident Guidebook and
135
10. A list of the main law library holdings as periodically updated.
*
The Honorable Henry R. Wilhoit, Jr., United States District Judge for the Eastern District of Kentucky, sitting by designation
1
The Jackson facility contains several "complexes," one of which--the Central Complex, housing about 2,400 prisoners--is the subject of the order in Hadix. Central Complex prisoners have been excluded from the Knop class as far as the access to courts issue is concerned
2
In an opinion filed 18 months earlier in connection with a motion for partial dismissal on res judicata grounds, however, the Knop court did say that it had examined Walker carefully, and it did note that the Sixth Circuit had remanded the case "for the district court to consider whether adequate access to court has been denied any prisoner." Slip Op. of 3/20/86, docket item 466, at p. 7, quoting Walker, 771 F.2d at 932. Given the extraordinary amount of written material connected with this litigation, and given the fact that none of the litigants questioned the appropriateness of the Western District as a forum for litigation over the access to courts issue, we do not find it surprising that the district court should have failed to raise this question at the outset on its own motion
3
The Department of Corrections has also had its problems with jailhouse lawyers. In the proceedings held before Judge Enslen with respect to a remedy, the Department proposed abolition of the jailhouse lawyer system altogether. See 685 F.Supp. at 641
4
In Hull, a prisoner--who was incarcerated at Jackson, as it happens--had repeatedly tried to send a petition for habeas corpus, supported by exhibits, to the Clerk of the United States Supreme Court. Michigan prison officials kept confiscating these materials, but with help from his father the prisoner finally succeeded in getting them to the Court. To justify the institution's attempts to prevent the prisoner from filing his papers, the prison warden cited a regulation requiring all petitions to be reviewed and approved by state officials before they could be filed. The Supreme Court held the regulation invalid:
"The considerations that prompted its formulation are not without merit, but the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus." 312 U.S. at 549, 61 S.Ct. at 642.
The prohibition against abridging or impairing a prisoner's right to apply for habeas corpus relief subsequently spawned a requirement for affirmatively aiding and abetting such applications. The seminal case is Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), a two-sentence per curiam opinion affirming the decision of a three-judge district court in Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970) (California Department of Corrections ordered either to expand its prison libraries or "devis[e] another system whereby indigent prisoners are given adequate means of obtaining the legal expertise necessary to obtain judicial consideration of alleged grievances cognizable by the courts." Id. at 112). The only authority that the Supreme Court cited on the merits in Younger v. Gilmore was Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), which held simply that in the absence of alternative legal resources a state may not constitutionally prohibit prison inmates from assisting other inmates in the preparation of petitions for post-conviction relief.
5
Our own court, like other courts of appeals, has always understood the Supreme Court to have meant what it said in holding that prisoners must be provided adequate law libraries "or" adequate assistance from persons with legal training. In Holt v. Pitts, 702 F.2d 639, 640 (6th Cir.1983), we explicitly endorsed "the proposition that a prisoner's constitutionally-guaranteed right of access to the courts has been protected when a state provides that prisoner with either the legal tools necessary to defend himself, e.g., a state-provided law library, or the assistance of legally-trained personnel." (Emphasis supplied.) We went on to observe, in Pitts, that
"The alternative avenues open to state authorities to protect a prisoner's right of access to the courts are precisely that--alternatives. The choice between alternatives lies with the state." Id.
Cf. Penland v. Warren County Jail, 759 F.2d 524, 531 n. 7 (6th Cir.1985) (en banc ) ("Prisoners may not dictate to the state the method by which access to the courts will be assured."). Accord, Cepulonis v. Fair, 732 F.2d 1, 6 (1st Cir.1984) ("Bounds requires only 'adequate law libraries or adequate assistance from persons trained in the law,' not both"); Ward v. Kort, 762 F.2d 856, 860 (10th Cir.1985) ("Under Bounds, the State is free to make a choice...."); Hooks v. Wainwright, 775 F.2d 1433, 1435 (11th Cir.1985), cert. denied, 479 U.S. 913, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986) (reversing a district court holding that "no plan contemplating libraries alone could be sufficient due to inmate illiteracy;" the Bounds Court necessarily contemplated reliance on inmate writ-writers or nonlawyer law clerks, see Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969)); Kelsey v. Minnesota, 622 F.2d 956, 958 (8th Cir.1980) ("government need not provide inmates with every possible means of access to the courts").
Where female prisoners lack their male counterparts' history of "self-help" in the law, however, equal protection considerations may require that library facilities be supplemented by assistance from a lawyer. Canterino v. Wilson, 546 F.Supp. 174, 216 (W.D.Ky.1982), aff'd. No. 86-6067, 1989 WL 40131, 1989 U.S.App. LEXIS 4789 (6th Cir. April 10, 1989) [875 F.2d 862 (table) ] (unpublished), cert. denied, 493 U.S. 991, 110 S.Ct. 539, 107 L.Ed.2d 536 (1989). Cf. Smith v. Bounds, 538 F.2d 541, 545 (4th Cir.1975) (women prisoners may not be afforded less access to legal research facilities than male prisoners). See also Glover v. Johnson, 478 F.Supp. 1075, 1094-97, 1103 (E.D.Mich.1979) (the fact that a women's prison library was much smaller than the men's library at Jackson did not constitute illegal discrimination, but the state was ordered to continue offering the assistance of Prison Legal Services because the women had no experienced inmate writ-writers and lacked any history of self-help in the legal field).
6
In many cases, it should be remembered, the taxpayers will already have paid for attorneys to represent the prisoners in their criminal trials and in their direct appeals. Approximately 20 attorneys on the staff of the State Appellate Defenders Office, for example, represent indigent Michigan prisoners in appeals as of right. Hadix, 694 F.Supp. at 275. That kind of legal aid is, of course, a horse of a different color; we are concerned here with civil actions in which the prisoner is the plaintiff, not criminal actions in which the prisoner is the defendant
7
"Prison administration is, moreover, a task that has been committed to the responsibility of [the legislative and executive branches of government], and separation of powers concerns counsel a policy of judicial restraint." Turner v. Safley, 482 U.S. 78, 85, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987)
8
For a somewhat different view, see Feikens, "Federal Courts are Governing Society Today: Should They?" 1991 Det.L.Rev. 1363
9
Inmates who are reasonably articulate, on the other hand, and who have legitimate constitutional claims cognizable under 42 U.S.C. § 1983, are often able to retain outside counsel. The bar is not unaware that 42 U.S.C. § 1988 authorizes the award of reasonable attorney fees to plaintiffs who prevail in § 1983 actions, and such awards are sometimes substantial. See, for example, Roland v. Johnson, No. 91-1460, 1992 WL 214441, 1992 U.S.App. LEXIS 22047 (6th Cir., September 4, 1992) [974 F.2d 1339 (table) ] (unpublished), where the lawyers for a Michigan prisoner who prevailed in a § 1983 action are receiving a fee of almost $150,000
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594 F.3d 69 (2010)
Katharine RICHARDSON, Plaintiff, Appellant,
v.
FRIENDLY ICE CREAM CORPORATION, Defendant, Appellee.
No. 08-2423.
United States Court of Appeals, First Circuit.
Heard June 4, 2009.
Decided February 5, 2010.
*71 Julie D. Farr, with whom Charles E. Gilbert was on brief, for appellant.
Christopher T. Vrountas, for appellee.
Before LYNCH, Chief Judge, EBEL[*] and LIPEZ, Circuit Judges.
*72 LIPEZ, Circuit Judge.
Appellant Katharine Richardson alleges that her former employer, appellee Friendly Ice Cream Corporation ("Friendly's"), discriminated against her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, and the Maine Human Rights Act ("MHRA"), 5 Me.Rev.Stat. §§ 4551-4634, by failing to accommodate her disability and by terminating her employment because of that disability. The district court entered summary judgment for Friendly's, holding that Richardson is not covered by the ADA or the MHRA because she is not capable of performing the essential functions of her position, with or without a reasonable accommodation, and hence is not a "qualified individual." We affirm.
I.
Friendly's, a Massachusetts-based restaurant chain, hired Richardson as an assistant manager of its Ellsworth, Maine store in 2000. Richardson worked alongside one other assistant manager during the period of her employment. Both assistant managers reported to Tina Emery, the general manager of the Ellsworth restaurant, who in turn reported to Todd Mosher, the district manager. Between 2000 and 2006, Richardson performed both administrative and manual tasks as part of her job. Among other duties, she regularly interacted with customers, supervised other employees and inspected their work, carried plates to customers, ordered new supplies, unloaded new supplies as they were delivered, operated the grill and the deep-frying machine, and cleaned the restaurant. Because the general manager and the other assistant manager preferred to work the opening and closing shifts, Richardson typically worked the mid-day shift, which was the least physically demanding of the three shifts.
In January 2006, Richardson began to experience severe pain in her right shoulder. She claims, and Friendly's does not dispute, that the pain was caused by the manual tasks that she had been performing at work, such as working at the grill and scooping ice cream. When she reported her injury to Friendly's that same month, the company sent her to see a physician at Mednow Clinic in Ellsworth. The physician diagnosed Richardson's pain as shoulder impingement syndrome, prescribed an anti-inflammatory medication, and recommended that Richardson discontinue all grill work and other tasks that involved lifting objects heavier than ten pounds with her right arm.
Between January 2006 and September 2006, Richardson continued to work at Friendly's without missing any days. Although the pain in her shoulder impeded the full use of her right arm, she claims that she was able to modify her work behavior during that period to enable her to perform most of the tasks that she had previously performed. For example, when cooking French fries in the deep-frying machine, she would cook small quantities at a time and would remove the cooked product with tongs rather than by lifting the entire basket as she formerly did. She admits that she was unable to perform certain tasks such as mopping the floor and lifting heavy bags of trash, but she says that there were typically other employees on duty who were able to perform those tasks. She adds that she had been reprimanded before her injury for failing to delegate manual tasks to other restaurant employees.
In September 2006, Richardson took a leave of absence to undergo shoulder surgery. Following the surgery, Richardson continued to experience intense pain in her shoulder and was unable to return to work immediately. At that point, Friendly's *73 workers' compensation administrator retained a nurse case manager, Debra Dwyer, to facilitate Richardson's recovery and return to work. Dwyer was in regular contact with Emery, the general manager, during the period after Richardson's surgery. Emery testified at her deposition that she and Dwyer discussed Richardson's anticipated return date, Richardson's anticipated medical restrictions, and certain accommodations and transitional job duties that might have enabled Richardson to work within her medical restrictions.
Based on Richardson's post-operative medical evaluations, Emery and Dwyer initially assumed that Richardson would be able to return to work near the end of October 2006. Richardson did not improve as expected, however. Her surgeon concluded that she had "no work capacity," and Richardson remained on leave throughout October and November. On December 7, the surgeon estimated that Richardson would be able to return to work on January 8, 2007. Dwyer gave that projected return date to Emery, who then conveyed the information to district manager Mosher.
Three days later, Mosher sent the following e-mail to Theresa Marino, a human resources manager at Friendly's corporate headquarters:
Theresa
I'm sorrybut I need your help. Can you give us some guidance on Kathy Richardson? As you know she is the Manager from Ellsworth # 1241 that has been out with a shoulder injury from lifting French fry baskets.
She is supposed to be released the first week of Jan. after a second opinion last week revealed the opposite of what the original physician said.
I would prefer to not bring her back if at all possible (as she is just going to do the same thing in '07).
Can you help guide us on this?
P.S. Please don't cc the restaurant on any of thisas Tina Emery (GM) is on vacation.
Thanks!
Diana Beach, a representative from Friendly's compensation and benefits department, responded that same day:
She has reached the end of her FML [family and medical leave] with Friendly as of 12/3/06 which means that our obligation of leaving her job open has ended. Due to the fact that she is out on WC [workers' compensation], you may want to check with the legal department to see if you have to bring her back. I will be sending her out COBRA for her medical/dental insurance.
There is some dispute about the sequence of events that followed this exchange of e-mails. Friendly's claims that it decided to terminate Richardson's employment on December 14, 2006 because she had remained on leave beyond the time reserved for her by the Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654. Diana Beach sent Richardson a letter that day notifying Richardson of her right to continue her group insurance coverage. Richardson acknowledges receiving the letter but says that she did not interpret it to be a notice of termination. When she questioned Emery and Beach about the letter, neither explained that she had been terminated. Dwyer also told Richardson that she and Emery continued to correspond about Richardson's condition after that date, giving Richardson the impression that she was still expected to return to work.
In any case, Richardson's physician finally signed a work release on January 4, 2007. Although he permitted her to return to Friendly's, he prohibited her from performing repetitive activity with her *74 right arm and from lifting objects weighing more than five pounds. Richardson delivered the release to the Ellsworth restaurant that same day. Four days later, on January 8, Mosher telephoned Richardson to notify her that she had been terminated. According to Richardson, Mosher said: "Because you are still disabled and you have gone over your thirteen weeks of family medical leave, we choose to terminate you."
On January 17, Richardson filed a charge of discrimination with the Maine Human Rights Commission ("MHRC") and the Equal Employment Opportunity Commission ("EEOC"). She alleged in her charge that Friendly's reliance on the Family and Medical Leave Act was pretextual and that Friendly's discharged her solely because of her disability. The MHRC issued a right-to-sue letter, and on October 31, 2007 Richardson filed a complaint in Maine Superior Court asserting claims against Friendly's and its workers' compensation administrator for violation of the ADA and the MHRA and for tortious interference with contract. The defendants then removed the action to federal court.
Friendly's moved for summary judgment after the close of discovery, claiming that (1) Richardson was not eligible for relief under the ADA or MHRA because she had not shown that she was qualified for her position at the time of her discharge, and (2)she was terminated in accordance with Friendly's generally applicable leave policy rather than on the basis of disability. The motion was referred to a magistrate judge, who recommended that summary judgment be granted on the first ground. In a brief order, the district judge approved the magistrate judge's reasoning and granted Friendly's motion. Judgment was entered that same day,[1] and this appeal followed.
II.
Summary judgment is proper where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the district court's grant of summary judgment de novo, drawing all reasonable inferences in Richardson's favor. Franklin Memorial Hosp. v. Harvey, 575 F.3d 121, 125 (1st Cir.2009).
Title I of the ADA prohibits covered entities from "discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).[2] Richardson alleges that Friendly's discriminated against her on the basis of disability when it discharged her. In order to prevail on that claim at trial, she must show: (1) that she was disabled within the meaning of the ADA; (2) that she was qualified for her position; and (3)that Friendly's discharged her because of her disability. García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st Cir.2000) (citing Criado v. IBM Corp., 145 F.3d 437, 441 (1st Cir. 1998)).
Friendly's has not disputed Richardson's disability status. It moved for summary *75 judgment on the grounds that Richardson was not qualified for her position as an assistant manager and that Friendly's did not discharge her because of her disability. The district court granted the motion on the first ground and found it unnecessary to address the second. Richardson argues on appeal that there is a genuine issue of material fact as to both issues. Because we agree with the district court that no reasonable jury could conclude that Richardson was qualified for her position, we do not address her second argument about Friendly's motive for terminating her.
To establish that she was qualified, Richardson must demonstrate, first, that she had the necessary "skill, experience, education, and other job-related requirements" for the assistant manager position and, second, that she was able to perform the "essential functions" of the position "with or without reasonable accommodation." Mulloy v. Acushnet Co., 460 F.3d 141, 147 (1st Cir.2006) (quoting García-Ayala, 212 F.3d at 646). Friendly's does not suggest that Richardson lacks the basic skill, experience, and education for the assistant manager position. We therefore turn to the second requirement, and our assessment of whether Richardson could perform the essential functions of the assistant manager position with or without reasonable accommodation.
A. The Essential Functions of Richardson's Position
To determine whether Richardson was able to perform the essential functions of her position, it is necessary to identify those functions. Precision is critical, as the level of generality at which the essential functions are defined can be outcome determinative. See, e.g., Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 27-28 (1st Cir.2002); Skerski v. Time Warner Cable Co., 257 F.3d 273, 280-81 (3d Cir. 2001).
1. Legal Framework
An essential function is, at its most basic level, one that is "fundamental" to a position rather than "marginal." Kvorjak v. Maine, 259 F.3d 48, 55 (1st Cir.2001). The ADA's implementing regulations elaborate on this idea, listing three nonexclusive reasons why a job function may be considered essential: (1) the position exists for the purpose of performing the function; (2) there are a limited number of employees among whom responsibility for the function can be distributed; and/or (3)the function is highly specialized and the incumbent was hired for his or her expertise or ability to perform it. 29 C.F.R. § 1630.2(n)(2); see also EEOC Interpretive Guidance on Title I of the ADA, 29 C.F.R. pt. 1630, app., § 1630.2(n) [hereinafter EEOC Interpretive Guidance] (illustrating the three reasons).[3]
Within these contours, "the complex question of what constitutes an essential job function involves fact-sensitive considerations and must be determined on a case-by-case basis." Gillen, 283 F.3d at 25. Among the types of evidence bearing on the analysis are:
[1] The employer's judgment as to which functions are essential;
*76 [2] Written job descriptions prepared before advertising or interviewing applicants for the job;
[3] The amount of time spent on the job performing the function;
[4] The consequences of not requiring the incumbent to perform the function;
[5] The terms of a collective bargaining agreement;
[6] The work experience of past incumbents in the job; and/or
[7] The current work experience of incumbents in similar jobs.
29 C.F.R. § 1630.2(n)(3). It is the employer's burden "to come forward with some evidence" that a particular function is essential, Tobin v. Liberty Mut. Ins. Co. ("Tobin I"), 433 F.3d 100, 107 (1st Cir. 2005), but the plaintiff always has the ultimate burden of proving that she is a qualified individual, Laurin v. Providence Hosp., 150 F.3d 52, 59 (1st Cir.1998).
"The purpose of these provisions is not to enable courts to second-guess legitimate business judgments, but, rather, to ensure that an employer's asserted requirements are solidly anchored in the realities of the workplace, not constructed out of whole cloth." Gillen, 283 F.3d at 25. The ADA expressly provides that "consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. § 12111(8). Consistent with that directive, "we generally give substantial weight to the employer's view of job requirements." Mulloy, 460 F.3d at 147 (quoting Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 34 (1st Cir.2000)). We have made it equally clear, however, that "the employer's good-faith view of what a job entails, though important, is not dispositive." Gillen, 283 F.3d at 25.
2. Analysis
Richardson argues that her sole essential function was to "oversee the operation of the restaurant and ensure that it ran smoothly." Friendly's disagrees, relying heavily on a written job description for the assistant manager position as proof that it was essential for Richardson to be able to perform a number of predominantly manual tasks as well.
The six-page job description is divided into multiple sections.[4] The first substantive section, labeled "Primary Task," provides:
The primary function of this position is to assist the General Manager with assigned administrative and operational shift duties, provide guidance and direction to restaurant personnel, oversee, direct and assist in kitchen, dining and take-out operations, facilitate production and customer service, ensure safety regulations and quality standards are maintained and that customer satisfaction is achieved.
The following section, labeled "Essential Functions," lists thirteen general categories of job duties. Among other things, it reiterates that an assistant manager must "[r]un shifts, oversee, direct and assist in kitchen, dining and take-out operations to *77 facilitate production and customer service." The remaining sections of the job description are significantly more detailed, listing specific tasks and physical movements that the assistant manager may be asked to perform.
Without addressing whether each individual task listed in the written job description is an essential function of the assistant manager position, we conclude that it was essential for an assistant manager to "assist in kitchen, dining and take-out operations to facilitate production and customer service." We further conclude, on the basis of the overwhelming weight of the summary judgment evidence, that an assistant manager had to be capable of performing a broad range of manual tasks in order to perform that function.
It is undisputed that Richardson was often required to assist her subordinates in performing their jobs and to fill in for them as necessary. Richardson admitted as much in her deposition testimony:
Q: And part of your job was, basically, to be able to do any of those jobs in the restaurant that you were trained to do?
A: Yes. I think. Ideally, I'm notif I'm a manager, I am not going to be in the grill area trying to run the floor and take care of a customer.... I needed to be able to do everything so that I could train ... and that I could effectively take care of the restaurant.
Q: Right. And also to fill in when needed
A: Yes.
Q: if you needed [to] fill in, right? So if you needed to fill in at the grill, you'd fill in at the grill.
A: Yes.
Q: And if you needed to fill in to help in the dining room
A: Yes.
Richardson described in detail the duties she was often required to perform, which included cooking, cleaning, serving food, and unloading delivery trucks. Richardson's husband and physician confirmed in their testimony that her job had a substantial physical component. Indeed, the very premise of Richardson's workers' compensation claim was that her injury was caused by the heavy, repetitive manual tasks that she performed at Friendly's on a daily basis. All of this evidence indicates that Richardson spent a substantial amount of time on the job performing manual tasks around the restaurant. See 29 C.F.R. § 1630.2(n)(3)(iii) ("Evidence that a particular function is essential includes... [t]he amount of time spent on the job performing the function....").
The written job description also indicates that it was essential for an assistant manager to physically assist in restaurant operations. See 29 C.F.R. § 1630.2(n)(3)(i)-(ii) ("Evidence that a particular function is essential includes ... [t]he employer's judgment as to which functions are essential [and w]ritten job descriptions prepared before advertising or interviewing applicants for the job...."). As we have noted, that function is listed as both a "Primary Task" and an "Essential Function." Other manual tasks are listed in the "Essential Functions" section as well: "[r]eceive deliveries, unload products from the trailers with conveyor, hand-truck or by hand as required"; "[t]ransport stock items to the appropriate storage area cooler, freezer or dry storage area as required"; and "clean and secure facility and all equipment." When Richardson was asked at her deposition whether the "Essential Functions" section of the job description accurately described her responsibilities as an assistant manager, she replied, "I guess so."
*78 The "Task Analysis" section of the job description lists other duties that the assistant managers were expected to perform: "physically assist and/or perform kitchen, dining and take-out operations"; "cook food items on the grill, in the Fry-o-lator and [in the] microwave oven"; "deliver prepared meals, beverages, and dessert items to customers"; "clean and reset tables"; "bus dishware and utensils to the dishwashing area"; "load and operate the dishwasher"; "perform general housekeeping duties"; and "clean and secure facility, the grounds and all equipment." Again, Richardson admitted at her deposition that this list accurately described her operational duties.
In an attempt to rebut this evidence, Richardson argues that she "was an assistant manager and thus her primary function was not to do each job itselfthe restaurant specifically employed cooks, wait staff, dishwashers, and other employees to do those jobs. Rather, her primary function was to oversee the operation of the restaurant and ensure that it ran smoothly." To the extent that Richardson means to suggest that the designation of her position as "assistant manager" implies that her essential functions were limited to managing other employees, we reject that argument. It is not uncommon for "managers" of small restaurants and retail stores to spend little of their time managing others. See, e.g., Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1272-73 (11th Cir.2008) (noting, in action under the Fair Labor Standards Act, that "store managers" spent "80 to 90% of the time performing manual labor").
Even assuming it is true that Richardson's "primary function" was to oversee restaurant operations, the point does not advance Richardson's case. The essential functions of a position are not limited to the "primary" function of the position. For example, we concluded in Kvorjak v. Maine, 259 F.3d at 56, 58, that it was essential for a claims adjudicator to be able to provide advice to other employees notwithstanding our recognition that the "core function" of the position was adjudicating claims. Similarly, the Tenth Circuit determined in Frazier v. Simmons, 254 F.3d 1247, 1259-61 (10th Cir.2001), that it was essential for a criminal investigator to be capable of physically restraining violent individuals even though the primary functions of the investigator position (investigation and desk work) did not require physical exertion.
Richardson points out that some of her physical duties were reduced or shifted to other employees after she was injured in 2006. That evidence has minimal value, however. "[A] court must evaluate the essential functions of the job without considering the effect of [any] special arrangements." Phelps v. Optima Health, Inc., 251 F.3d 21, 25 (1st Cir.2001); see also Laurin, 150 F.3d at 60-61 ("An employer does not concede that a job function is `non-essential' simply by voluntarily assuming the limited burden associated with a temporary accommodation...."). The voluntary accommodations that Friendly's made following Richardson's injury do not alter our assessment of the essential functions of the assistant manager position.[5]
Importantly, the evidence shows that there were a limited number of employees among whom the performance of the manual tasks at the Ellsworth restaurant could be distributed. See 29 C.F.R. § 1630.2(n)(2)(ii) ("[A]function may be essential because of the limited number of employees available among whom the performance *79 of that job function can be distributed."). Tina Emery testified that during the slowest times of the year, eight to ten employees would be on duty over the course of an entire day. Richardson echoed this testimony, adding that only one of the three managers would be on duty at the beginning and end of each day. Richardson also testified that in the early mornings an assistant manager and a server would typically be the only employees on duty. At those times, the assistant manager would be responsible for preparing all of the food and the server would be responsible for interacting with the customers. This evidence supports a finding that manual duties were essential to Richardson's position. See Hirschhorn v. Sizzler Restaurants Int'l, Inc., 913 F.Supp. 1393, 1399 (D.Nev.1995) ("[F]unctions that might not be considered essential if there were a larger staff may become essential because the staff size is small compared to the volume of work that has to be done."); EEOC Interpretive Guidance, § 1630.2(n) ("[I]f an employer has a relatively small number of available employees for the volume of work to be performed, it may be necessary that each employee perform a multitude of different functions. Therefore, the performance of those functions by each employee becomes more critical and the options for reorganizing the work become more limited.").[6]
We conclude that any reasonable jury presented with the summary judgment record here would find that it was essential for Richardson to "assist in kitchen, dining and take-out operations,"[7] and that she had to be capable of performing a broad range of manual tasks in order to carry out that function. Especially during periods of light staffing, an assistant manager whose disability prevented her from performing a substantial number of the manual tasks that were part of the daily operations of the Ellsworth restaurant would not be able to fulfill one of her fundamental job duties.
B. Richardson's Ability to Perform the Essential Functions of her Position without a Reasonable Accommodation
Having identified the relevant essential function, we now turn to whether Richardson was able to perform that function without a reasonable accommodation. We must ask whether the summary judgment evidence would permit a jury to conclude that Richardson was capable of performing a sufficiently broad range of manual tasks to effectively "assist in kitchen, dining and take-out operations." See Miller v. Ill. Dep't of Corr., 107 F.3d 483, 485 (7th Cir. 1997) ("[I]f an employer has a legitimate reason for specifying multiple duties for a particular job classification ..., a disabled employee will not be qualified for the position unless he can perform enough of these duties to enable a judgment that he can perform its essential duties.") (emphasis altered).
In attempting to show that she was able to perform a sufficiently wide *80 range of manual tasks, Richardson focuses on the time period between her January 6, 2006 injury and her September 6, 2006 surgery. The premise of her argument is that her physical abilities as of her January 8, 2007 termination were roughly equivalent to her abilities during the presurgery period.[8]Cf. Land v. Washington County, Minn., 243 F.3d 1093, 1096 (8th Cir.2001) ("An ADA plaintiff may not rely on past performance to establish that he is a qualified individual without accommodation when there is undisputed evidence of diminished or deteriorated abilities."). Although it is not clear that Richardson had in fact recovered to her pre-surgery level by that date, we will assume for the purposes of this appeal that she had. Even so, we conclude that she has not shown that there is a genuine issue of fact regarding her ability to perform the necessary range of manual tasks.
It is undisputed that Richardson was not able to lift more than five pounds or engage in repetitive manual activity. She contends that she overcame these limitations by altering the manner in which she performed certain tasks. For example, she testified that she was able to cook French fries by cooking small quantities at a time and then removing cooked product with tongs rather than by lifting an entire basket. She also testified that she was able to perform some manual tasks using only her left arm.
Richardson admits, however, that even with those modifications she remained unable to perform a number of tasks, including mopping the floor, lifting heavy bags of trash, scooping ice cream, and unloading supplies from delivery trucks. She testified that "cooking was very hard for [her] to do with [her] arm" and that "[t]here was a lot of times when [she] would ask David [Carter, a cook,] for help with assisting [her] in anything to do with lifting." For example, she "would have him help [her] bring out the product so [she] could prep it, if it was too heavy. And he'd also end up having to put it back on the shelf." She also suggested that she was unable to clean the Fry-o-lator thoroughly and that she was not able to carry bus buckets full of dirty dishes. Richardson's supervisor, Tina Emery, made similar observations: "[Richardson] couldn't take out the trash. She couldn't unload a truck. She couldn't refill our milk machine. She couldn't cook because she couldn't flip Fry-o-lator baskets."
Richardson also admitted in more general terms that her disability left her unable to perform a substantial number of manual restaurant tasks. When asked whether there were any unmentioned tasks for which she had to seek help, she replied, "I can't think of any right now, but I'm sure there was plenty. It's a restaurant." She reiterated the point in a colloquy with Friendly's attorney:
Q: There's a lot of tasks you can do, but there's a lot of tasks you cannot do; is that correct?
A: Well
Q: Right?
A: I guess so.
*81 Q: Well you just told me a number you couldn't do; right?
A: Right
Q: And in a restaurant, there's a lot of those tasks that you cannot do with an arm that you shouldn't work overhead with, shouldn't be using repetitively, and shouldn't be lifting more than five pounds?
A: Yes.
Finally, she stated in her affidavit: "There were times that I felt that I was being required to do work beyond my work restrictions, typically in performing closing duties, only because I was scheduled with another individual, Angela Antonelli, who also was on light duty because she had restrictions related to bilateral wrist problems."
Richardson does not contest any of the foregoing evidence. Instead, she argues that the portions of her affidavit describing the manual tasks that she was able to perform raise a genuine issue of material fact as to her qualifications. We disagree. The number of tasks that Richardson was unable to perform was simply too great for her to be able to effectively perform her essential operational duties as assistant manager of a small restaurant like the Ellsworth Friendly's. We conclude that, on the facts of this case, no reasonable jury could find that Richardson was capable of performing her essential function of "assist[ing] in kitchen, dining and take-out operations to facilitate production and customer service."
C. Richardson's Ability to Perform the Essential Functions of her Position with a Reasonable Accommodation
Richardson bears the burden of proving that a "proposed accommodation would enable her to perform the essential functions of her job" and that, "at least on the face of things, [the accommodation] is feasible for the employer under the circumstances." Tobin v. Liberty Mut. Ins. Co. ("Tobin II"), 553 F.3d 121, 136 (1st Cir.2009). Richardson argues that the only accommodation she needed was the ability to perform certain manual tasks in a modified manner. As we have already explained, it would be unreasonable for a jury to conclude that Richardson was able to perform her essential function of physically assisting with the restaurant's operations even when the modifications are taken into account.
Richardson also argues that, as a manager, it was reasonable for her to delegate certain manual tasks to other restaurant employees. That argument does not take her far. "[T]he law does not require an employer to accommodate a disability by foregoing an essential function of the position or by reallocating essential functions to make other workers' jobs more onerous." Mulloy, 460 F.3d at 153 (internal quotation marks and citations omitted). On the facts of this case, it would be unreasonable for Richardson to delegate so many tasks that she would no longer be performing her essential function of physically assisting with the restaurant's operations. Richardson must be able to perform a sufficient number of manual tasks on her own. As explained above, she has not shown that there is a genuine issue of material fact as to whether she can do that.
D. Conclusion
Because Richardson has failed to present sufficient evidence for a reasonable jury to find that she is a "qualified individual" within the meaning of the ADA, her discriminatory discharge claim must fail. See Phelps, 251 F.3d at 28. We therefore have no reason to consider her argument that Friendly's reliance on the Family and *82 Medical Leave Act as a reason for terminating her was pretextual.
III.
In addition to pressing the discriminatory discharge claim, Richardson has argued that Friendly's violated the ADA by refusing to engage in an interactive process to determine whether any reasonable accommodations were available. See 29 C.F.R. § 1630.2(o)(3); Tobin I, 433 F.3d at 108. An interactive process claim cannot succeed unless the interaction could have led to the discovery of a reasonable accommodation that would have enabled the plaintiff to perform the essential functions of her position. See Kvorjak, 259 F.3d at 53; Soto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 19 (1st Cir.1998). As we have already explained, Richardson has not identified any such accommodation in her briefs. The two accommodations she has identified performing tasks in a modified manner and delegating tasks to other employees are, respectively, on this record, inadequate to enable her to perform a sufficiently broad range of manual tasks and unreasonable as a matter of law. Summary judgment was therefore properly granted on her interactive process claim.
AFFIRMED.
NOTES
[*] Of the Tenth Circuit, sitting by designation.
[1] Richardson voluntarily dismissed her claims against the workers' compensation administrator, including the claim for tortious interference with contract.
[2] The parties assume that the Maine Human Rights Act is coextensive with the ADA in all material respects. We do not question that assumption here.
[3] The EEOC Interpretive Guidance was published as an appendix to the regulations implementing Title I of the ADA. See Equal Employment Opportunity for Individuals With Disabilities, 56 Fed.Reg. 35,726, 35,739 (July 26, 1991) (codified at 29 C.F.R. pt. 1630, app.). We have often looked to it in construing the ADA. See, e.g., Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 104 (1st Cir.2007); Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 672 (1st Cir.1995).
[4] Richardson has objected to the job description as inadmissible hearsay. The district court overruled her objection on the ground that the job description was properly authenticated as a business record. See Fed.R.Evid. 803(6). We agree that the affidavit submitted by Friendly's is adequate for that purpose. The district court did not err in admitting the job description.
[5] We address in more detail below Richardson's contention that it was permissible for her to delegate manual tasks to other restaurant employees. See infra.
[6] Of course, it does not follow that an otherwise essential job function may be deemed non-essential simply because there are a large number of employees available to perform it. A job function "may be considered essential for any of [the] reasons" listed in 29 C.F.R. § 1630.2(n)(2); however, none of those reasons, standing alone, is necessary to support a finding that a job function is essential.
[7] The question whether a particular job function is essential is for the jury when there is sufficient evidence. See, e.g., Tobin v. Liberty Mut. Ins. Co. ("Tobin II"), 553 F.3d 121, 136 (1st Cir.2009); Hamlin v. Charter Twp. of Flint, 165 F.3d 426, 430-31 (6th Cir.1999); 3C Fed. Jury Practice & Instructions § 172.33 (5th ed. 2001 & Supp.2009).
[8] In most cases, the relevant date for determining whether an individual is qualified for her position is the date of the adverse employment decision. See EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 379 (4th Cir.2000); EEOC Interpretive Guidance, § 1630.2(m). But cf. McKnight v. General Motors Corp., 550 F.3d 519, 522-28 (6th Cir.2008) (discussing a circuit split over the relevant date for cases involving discrimination against a retired employee). The parties have presented conflicting evidence regarding the date of Richardson's termination. We use Richardson's proposed date, January 8, 2007, because it is supported in the record and is more favorable to her as the non-moving party below.
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309 F.2d 677
John REGAN, Administrator, Plaintiff, Appellant,v.Donald MARSHALL, d/b/a Marshall's Mobilgas Station, Defendant, Appellee.
No. 6039.
United States Court of Appeals First Circuit.
November 15, 1962.
James M. Winston, Manchester, N. H., for appellant.
Shane Devine, Manchester, N. H., with whom Devine, Millimet, McDonough, Stahl & Branch, Manchester, N. H., were on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
1
This is an action brought in the District Court for the District of New Hampshire to recover $10,000 for the death of plaintiff's intestate in New Hampshire under N.H.Rev.Stat. Ch. 556 § 13 (Supp.1961), plus interest at 6 per cent by virtue of Ch. 524 § 1-b (Supp. 1961).1 The court dismissed for lack of the jurisdictional amount. 28 U.S.C.A. § 1332(a). This was correct. When the statute requires that the amount in controversy "exceeds the sum * * * of $10,000, exclusive of interest and costs * * *" it makes no difference whether the interest which is sought accumulated upon the principal obligation sued upon because of contract, or by common law, or by statute, or whether the interest be termed a penalty or damages, so long as it is an incident arising solely by virtue of a delay in payment.2 Merrigan v. Metropolitan Life Ins. Co., D.C.E.D.La. 1942, 43 F.Supp. 209; Reynolds v. Reynolds, D.C.W.D.Ark., 1946, 65 F.Supp. 916; see City of Pawhuska, Okl. ex rel. Graham v. Midland Valley R. Co., 8 Cir., 1929, 33 F.2d 487. This is not a case where the principal claim itself, at the time it arose, was made up in part of interest. Cf. Brown v. Webster, 1895, 156 U.S. 328, 15 S.Ct. 377, 39 L.Ed. 440. By the same token plaintiff's cases of suits upon judgments a component of which may have been interest on the original claim are not in point. In such cases the judgment itself constitutes a new and single cause of action. See Richie v. Richie, D.C.E.D.N.Y., 1960, 186 F.Supp. 592, 594; Restatement, Judgments § 47 (1942).
2
The case at bar is additionally lacking in merit because under the New Hampshire statute interest accrues only from the date of the commencement of suit. Hence under no possible theory could it be thought that the amount in controversy exceeded the principal sum.
3
Judgment will be entered affirming the dismissal of the complaint for lack of jurisdiction.
Notes:
1
"In any action in which a verdict is rendered or a finding made for pecuniary damages for personal injuries to the plaintiff, or for wrongful death or for consequential damages, or for damage to property, there shall be added by the clerk of court to the amount of damages interest thereon from the date of the writ, even though such interest brings the amount of the verdict or findings beyond the maximum liability imposed by law."
2
We need not decide whether statutory exactions for delay in amounts larger than normal interest rates are an exception. Cf. Cahill v. Hovenden, 10 Cir., 1942. 132 F.2d 422
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 22, 2016
Elisabeth A. Shumaker
Clerk of Court
DELBERT C. STEELE,
Plaintiff-Appellant,
v. No. 16-1091
(D.C. No. 1:15-CV-02690-LTB)
ANGLO GOLD ASHANTI/ (D. Colo.)
CRIPPLE CREEK & VICTOR
GOLD MINE,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
The district court dismissed the action without prejudice based on a
lack of subject-matter jurisdiction. Mr. Steele agrees with the district
court’s ruling. Thus, we dismiss the appeal and grant Mr. Steele’s
*
We do not believe oral argument would be helpful. As a result, we
are deciding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
application for leave to proceed in forma pauperis.
Entered for the Court
Robert E. Bacharach
Circuit Judge
2
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511 So.2d 1152 (1987)
STATE of Louisiana
v.
William E. BRACKEN, III.
No. 87-K-1134.
Supreme Court of Louisiana.
September 4, 1987.
Denied.
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141 Ga. App. 429 (1977)
233 S.E.2d 504
McEVER
v.
THE STATE.
53470.
Court of Appeals of Georgia.
Submitted February 4, 1977.
Decided February 25, 1977.
Ben Lancaster, for appellant.
Charles Crawford, District Attorney, for appellee.
QUILLIAN, Presiding Judge.
The instant appeal which was filed by defendant's counsel on November 15, 1976, was taken from a judgment entered on October 8, 1976. No extension was applied for or granted. It was therefore not timely. Code Ann. § 6-803 (Ga. L. 1965, pp. 18, 21; 1966, pp. 493, 496; 1968, pp. 1072, 1077).
There is no constitutional contention here made of incompetent counsel and since the appellant failed to comply with jurisdictional requirements, it is proper to dismiss the appeal. Pittman v. State, 229 Ga. 656, 657 (193 SE2d 820); Brown v. State, 236 Ga. 333, 334 (223 SE2d 642).
Appeal dismissed. Stolz and Shulman, JJ., concur.
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477 F.2d 595
*Norrisv.Estelle
72-3702
UNITED STATES COURT OF APPEALS Fifth Circuit
June 5, 1973
1
N.D.Tex.
2
---------------
* Summary Calendar cases; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of
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Case: 11-70027 Document: 00511889058 Page: 1 Date Filed: 06/15/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 15, 2012
No. 11-70027 Lyle W. Cayce
Clerk
EDGARDO RAFAEL CUBAS,
Petitioner - Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee
Appeal from the United States District Court
for the Southern District of Texas
No: 4:10-CV-604
Before STEWART, CLEMENT, and PRADO, Circuit Judges.
EDITH BROWN CLEMENT:*
Edgardo Rafael Cubas, a Texas death row inmate, was convicted of murder
committed during a sexual assault. The Texas judge presiding over his trial was
a former prosecutor and defense attorney who Cubas claims was not impartial.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-70027 Document: 00511889058 Page: 2 Date Filed: 06/15/2012
No. 11-70027
Cubas seeks a Certificate of Appealability (“COA”) due to the alleged
impartiality. Because Cubas has not shown entitlement to habeas relief, we
DENY his request for a COA.
FACTS AND PROCEEDINGS
Cubas was sentenced to death in 2004 for murdering a fifteen-year-old girl.
The facts of his crime are not before this court.1 Judge Jan Krocker, presiding
judge of the 184th District Court for Harris County, Texas, presided over Cubas’
trial. Judge Krocker was a former assistant district attorney with the Harris
County District Attorney’s Office. While an assistant district attorney, Judge
Krocker prosecuted a capital murder case against Martin Allen Draughon in
1987. It is not alleged that Draughon has any relationship with Cubas, nor that
their crimes are in any way related. In 1995, Judge Krocker took the bench.
During Cubas’ trial, Draughon was in the midst of seeking federal habeas corpus
1
The United States District Court has previously summarized the underlying facts:
On January 22, 2002, an individual found the partially nude body of
fifteen-year-old Esmeralda Alvarado in a secluded area of Harris County. Four
days earlier, Ms. Alvarado disappeared after leaving her boyfriend’s house to
use a pay phone. Police investigation showed that Ms. Alvarado died from a
single gunshot to the head. Her body bore signs of sexual trauma.
Several months passed without any leads. Finally, Cubas’ co-defendant
Walter Sorto (“Sorto”) incriminated him in the duo’s nine-month crime spree,
of which Ms. Alvarado’s murder was only one incident. On August 21, 2002, the
police arrested Cubas. Cubas gave the police five videotaped statements over a
two-day period. Cubas’ statements chronicle several robberies, rapes, and
murders he committed with Sorto. With regard to Ms. Alvarado’s murder,
Cubas explained that he and Sorto were driving around when they saw her
talking on a pay phone. Intending to rob her, Sorto forced Ms. [Alvarado] into
the vehicle. After unsuccessfully searching her for money, Cubas began raping
Ms. [Alvarado]. The two men drove to various locations and took turns sexually
assaulting her. Finally after traveling to a secluded area, Sorto told Cubas that
they would have to kill Ms. [Alvarado] so that she could not identify them.
Cubas originally told the police that Sorto fired the killing shot. In Cubas’ final
statement given to Houston Police Department Officer Xavier Avila, he
admitted that he shot Ms. [Alvarado].
Cubas v. Thaler, No. H-10-604 2011 WL 4373196 at *1 (S.D. Tex. Sept. 16, 2011).
2
Case: 11-70027 Document: 00511889058 Page: 3 Date Filed: 06/15/2012
No. 11-70027
relief. Judge Krocker sought to file an affidavit in Draughon’s case to show that
she had not committed prosecutorial misconduct before the state trial court.
Cubas’ trial counsel was unaware of Judge Krocker’s participation in Droughon’s
federal habeas case.
On state habeas review, Cubas argued that the alignment of interests in
the Draughon case made Judge Krocker biased against him. Cubas argued that
Judge Krocker’s actions made her effectively a member of the prosecutor’s office,
with her concern for the integrity of Draughon’s conviction and sentence spilling
over into his case. He asserted that Judge Krocker’s interest in keeping
Draughon on death row somehow translated into seeing Cubas receive a similar
fate.
The state habeas court denied relief on procedural and
substantive grounds. As a procedural matter, the state habeas court
applied Texas’ contemporaneous objection rule because trial counsel
had not complained about bias at trial. Substantively, the state
habeas court provided several reasons for finding that Judge
Krocker was not biased against Cubas. The state habeas court first
emphasized that the two proceedings were unrelated: “no aspect of
the [Cubas’] case had any relation to the trial or subsequent
appeals, including habeas appeals, of defendant Martin Allen
Draughon.” Importantly, “Judge Krocker had no role in the
preparation, investigation, or prosecution of the instant capital
murder case.” The state court observed that any alleged bias could
not have been pervasive; trial counsel did not know about her
actions in Draughon and were not sure they would have objected
had they known. Also, the state habeas court found that Judge
Krocker’s rulings did not hint of any prejudice against him. In
conclusion, the state habeas court found that Cubas “was provided
an impartial and disinterested tribunal with respect to the instant
capital murder trial and [his] allegations of bias regarding Judge
Krocker are speculative, unpersuasive, and not supported by the
record.”
Cubas, 2011 WL 4373196 at *7 (internal citations omitted).
3
Case: 11-70027 Document: 00511889058 Page: 4 Date Filed: 06/15/2012
No. 11-70027
The state habeas court found that Texas’ contemporaneous objection rule
which requires “a party to preserve an issue for appellate review” by making “a
timely objection with specific grounds for the desired ruling,” Livingston v.
Johnson, 107 F.3d 297, 311 (5th Cir. 1997), prevented habeas review of Cubas’
claims of bias. Cubas appealed this ruling and raised thirty-five grounds for
habeas corpus relief before the district court. The district court examined each
ground and found that Cubas did not show an entitlement to habeas relief either
on procedural grounds or on the merits. Cubas seeks a COA on his claim the
trial judge was not impartial.
STANDARD OF REVIEW
A COA is a jurisdictional requirement for our consideration of an appeal
on the merits. “[U]ntil a COA has been issued federal courts of appeals lack
jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003). A COA will be granted only if the
petitioner makes “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating
that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at
327 (citation omitted). “The question is the debatability of the underlying
constitutional claim, not the resolution of that debate.” Id. at 342. “Indeed, a
claim can be debatable even though every jurist of reason might agree, after the
COA has been granted and the case has received full consideration, that
petitioner will not prevail.” Id. at 338. “While the nature of a capital case is not
of itself sufficient to warrant the issuance of a COA, in a death penalty case any
doubts as to whether a COA should issue must be resolved in the petitioner’s
favor.” Johnson v. Quarterman, 483 F.3d 278, 285 (5th Cir. 2007) (quoting
Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005)).
4
Case: 11-70027 Document: 00511889058 Page: 5 Date Filed: 06/15/2012
No. 11-70027
DISCUSSION
Cubas alleges that Judge Krocker was both actually and presumptively
biased against him due to her involvement in Draughon. See Buntion v.
Quarterman, 524 F.3d 664, 672 (5th Cir. 2008). Courts “presume that public
officials have ‘properly discharged their official duties,’” Bracy v. Gramley, 520
U.S. 899, 909 (1997) (quoting United States v. Armstrong, 517 U.S. 456, 464
(1996)), therefore “bias by an adjudicator is not lightly established.” Valley v.
Rapides Parish Sch. Bd., 118 F.3d 1047, 1052 (5th Cir. 1997). The question
before us is whether Cubas can overcome this high bar and demonstrate a valid
constitutional claim of either actual or presumptive judicial bias. Because Cubas
cannot make a substantial showing of a denial of a constitutional right, we deny
his application for a COA.
A. Actual Bias
Cubas alleges actual bias by citing eight actions which he claims
demonstrated animus against him, such as Judge Krocker giving prospective
jurors an incorrect definition of “intentional” when discussing the legal
requirements for murder prior to seating the jury. The specific examples were
rejected by the district court as both independent bases for relief and as proof of
bias. None of these alleged errors demonstrate prejudice. While they might
have served as grounds for objection at trial, Cubas cites no case indicating such
objectionable actions have ever been found to show substantial bias. As the
district court noted, “taken cumulatively, [the specific allegations of error
demonstrating bias] do not display a pervasively obvious actual bias against
Cubas.” Cubas, 2011 WL 4373196 at *10. These alleged errors at trial are
insufficient to demonstrate a denial of a constitutional right. Because Cubas can
point to no compelling evidence of actual bias by Judge Krocker at trial, we deny
his request for a COA based on actual bias.
5
Case: 11-70027 Document: 00511889058 Page: 6 Date Filed: 06/15/2012
No. 11-70027
B. Presumptive Bias
Cubas next alleges that Judge Krocker’s involvement in the completely
unrelated federal habeas proceedings for Draughon gave the appearance of bias
and thus the presumption of bias overshadows this case. Cubas claims that
Judge Krocker’s intervention in Draughon caused her to be biased against him
because she was acting simultaneously as judge and prosecutor.
“[T]he United States Supreme Court has consistently enforced the
basic right to due process and found that decision makers are
constitutionally unacceptable when: (1) the decision maker has a
direct personal, substantial, and pecuniary interest in the outcome
of the case; (2) an adjudicator has been the target of personal abuse
or criticism from the party before him; and (3) a judicial or quasi
judicial decision maker has the dual role of investigating and
adjudicating disputes and complaints.
Bigby v. Dretke, 402 F.3d 551, 558-59 (5th Cir. 2005). To show a constitutional
violation, Cubas must show that Judge Krocker’s intervention in Draughon ran
afoul of one of these three categories.
The facts of this case are not even close to those cases in which the
Supreme Court has found presumptive bias. Judge Krocker’s affidavit in
Draughon was completely unrelated to the proceedings in Cubas’ trial. Cubas
cites no portion of her affidavit or any other evidence to indicate a relationship
between his prosecution and Draughon’s and there is no evidence to show Judge
Krocker had any personal interest in the outcome of Cubas’ trial. Cubas does
not allege he abused or criticized Judge Krocker prior to the trial. Cubas does
not show bias under the first two prongs to form the basis for us to find
substantial evidence of a constitutional violation.
We have never held that the third prong is violated when the two parties
in question are unrelated and decline to do so here. Judge Krocker’s activity in
Draughon was in no way related to Cubas’ case. She filed an affidavit which
6
Case: 11-70027 Document: 00511889058 Page: 7 Date Filed: 06/15/2012
No. 11-70027
does not make any mention of Cubas or discuss the Cubas case. Regardless of
Judge Krocker’s motivation for involving herself in Draughon, and regardless of
the prudence in doing so, she was not simultaneously sitting in judgment over
Cubas and prosecuting Cubas or anyone related to Cubas. As the district court
found “Whatever actions she may have taken in Draughon, Judge Krocker’s
temperament, comportment, and rulings in Cubas’ trial do not hint of
impermissible bias or prejudgment.” Cubas, 2011 WL 4373196 at *11. While
Cubas argues Judge Krocker was certainly not unbiased in Draughon, he fails
to make the necessary link between her desire to maintain the outcome she had
previously obtained while prosecuting Draughon with her desire for a particular
outcome in the Cubas trial. Barring this link, we do not find presumptive bias
and therefore hold that Cubas has failed to make a substantial showing of a
denial of his constitutional rights.
CONCLUSION
For the foregoing reasons, we DENY Cubas’ application for a COA.
7
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82 F.3d 434
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.John P. DELLERA, Petitioner,v.DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent,andMerit Systems Protection Board, Intervenor.
Nos. 95-3304, 95-3421.
United States Court of Appeals, Federal Circuit.
March 19, 1996.
Before RICH, MAYER and LOURIE, Circuit Judges.
JUDGMENT
PER CURIAM.
1
AFFIRMED. See Fed.Cir.R. 36.
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AETNA CASUALTY & SURETY
COMPANY,
Plaintiff-Appellant,
No. 97-1347
v.
IND-COM ELECTRIC COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, District Judge.
(CA-96-241-3-P)
Argued: October 27, 1997
Decided: March 23, 1998
Before RUSSELL,* MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by published per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Michael Andrew Pollard, BAKER & MCKENZIE, Chi-
cago, Illinois, for Appellant. Robert Harper Heckman, ADAMS,
_________________________________________________________________
*This opinion was prepared by Circuit Judge Donald S. Russell, who
died before it was filed. The remaining members of the panel continue
to concur in what Judge Russell wrote. The opinion is accordingly filed
by a quorum of the panel pursuant to 28 U.S.C. § 46(d).
KLEEMEIER, HAGAN, HANNAH & FOUTS, Greensboro, North
Carolina, for Appellee. ON BRIEF: Charles B. Lewis, Jeffrey L.
Hamera, BAKER & MCKENZIE, Chicago, Illinois; William E. Free-
man, Kevin M. Capalbo, MOORE & VAN ALLEN, Durham, North
Carolina, for Appellant. Thomas S. Thornton, ADAMS, KLEEM-
EIER, HAGAN, HANNAH & FOUTS, Greensboro, North Carolina,
for Appellee.
_________________________________________________________________
OPINION
PER CURIAM:
This appeal requires us to consider a question that the Supreme
Court expressly declined to answer in Wilton v. Seven Falls Co.,1
namely, what are the bounds of a district court's discretion to dismiss
a declaratory judgment action in the absence of a parallel state court
proceeding. Because we refuse to fashion a per se rule requiring a dis-
trict court to entertain a declaratory judgment action when no state
court proceeding is pending, and because we are further satisfied that
the demands and policies of our case law support the district court's
determination, we hold that the district court did not abuse its discre-
tion in dismissing this action.
I.
This case arises from the construction of the James H. Barnhardt
Student Activity Center at the University of North Carolina at Char-
lotte (the "Project"). Because the Project was state-owned, Chapter
143 of the North Carolina General Statutes ("N.C.G.S.") required that
the State of North Carolina (the "State") enter into four different con-
struction contracts. On November 13, 1993, the State awarded Lott
Constructors, Inc. ("Lott") the contract for general construction work,
Ind-Com Electric Company ("Ind-Com") the contract for electrical
work, Mechanical Industries, Inc. ("Mechanical") the contract for
mechanical work, and Alpha Mechanical, Inc. ("Alpha") the contract
for plumbing work. The parties referred to these contractors as "co-
_________________________________________________________________
1 515 U.S. 277 (1995).
2
primes," as they all were properly regarded as prime contractors for
their specific work.
Pursuant to North Carolina law, the State, as the"Contracting
Body" for the Project, required each co-prime to submit payment and
performance bonds for its contract along with its bid. Aetna Casualty
& Surety Company ("Aetna")2 was the surety for the payment and
performance bonds furnished by Lott.
Lott encountered financial difficulties which caused considerable
delay and costs to the various co-primes. Lott's difficulties eventually
became so severe that it was unable to perform its contractual obliga-
tions. As a result, Lott notified Aetna of its failure to perform, and
pursuant to Aetna's obligations under the performance bond, Aetna
entered into a contract with Roger Builders, Inc. to complete Lott's
portion of the contract.
On March 5, 1996, Ind-Com submitted a formal request for an
equitable adjustment in the amount of $867,888 to Aetna, Lott, the
State, and the project architect, Odell Associates, Inc. ("Odell"). The
request, based upon alleged damages caused by Lott's inability to per-
form, sought payment from Aetna's performance and payment bonds.
On June 6, 1996, Aetna denied Ind-Com's claim. Less than two
weeks later, Aetna instituted this declaratory judgment action in the
United States District Court for the Western District of North Carolina,3
seeking a declaration of the rights and liabilities of Aetna and Ind-
Com under the payment and performance bonds.4 The district court
_________________________________________________________________
2 Traveler's Property Casualty Corp. has since purchased Aetna.
3 The district court had diversity jurisdiction under 28 U.S.C. § 1332 to
entertain Aetna's declaratory judgment action.
4 On or about the same date, Aetna filed identical declaratory judgment
suits in the same court against the two other co-primes, Alpha and
Mechanical. In each action, Aetna sought a declaration that none of the
co-primes had a claim against the performance and payment bonds.
Aetna subsequently dismissed its suit against Mechanical pursuant to
an agreement whereby Mechanical would be bound by the outcome of
Aetna's actions against Ind-Com and Alpha. Aetna's action against Ind-
Com is the one we address in this appeal. Alpha answered and counter-
claimed against Aetna. Alpha also filed suit against Lott in state court,
a case in which Aetna later intervened.
3
declined to exercise jurisdiction over the matter and dismissed the
case. Aetna appeals, claiming that the district court erred in dismiss-
ing the case because there was no pending parallel state court pro-
ceeding.
II.
Aetna filed this action pursuant to the Declaratory Judgment Act
(the "Act"),5 which states in relevant part that:
In a case of actual controversy within its jurisdiction, . . .
any court of the United States, upon the filing of an appro-
priate pleading, may declare the rights and other legal rela-
tions of any interested party seeking such declaration,
whether or not further relief is or could be sought. Any such
declaration shall have the force and effect of a final judg-
ment or decree and shall be reviewable as such. 6
The Act does not impose a mandatory obligation upon the federal
courts to make such declarations of rights.7 Rather, a district court's
decision to entertain a claim for declaratory relief is discretionary and,
as such, reviewed for abuse of discretion.8
This circuit has long recognized the discretion afforded to district
courts in determining whether to render declaratory relief. As early as
Aetna Casualty & Surety Co. v. Quarles, 9 we stated that the decision
to grant or deny a petition for declaratory relief"is a matter resting
in the sound discretion of the trial court." 10
_________________________________________________________________
5 28 U.S.C. § 2201 (1994).
6 Id.
7 See Nautilus Ins. Co. v. Winchester Homes, 15 F.3d 371, 375 (4th Cir.
1994).
8 See Wilton v. Seven Falls Co. , 515 U.S. 277, 290 (1995).
9 92 F.2d 321 (4th Cir. 1937).
10 Aetna Casualty & Surety Co. v. Quarles, 92 F.2d 321, 325 (4th Cir.
1937).
4
While we have held that district courts have great latitude in deter-
mining whether to assert jurisdiction over declaratory judgment
actions, we have nonetheless enumerated several factors to guide dis-
trict courts in their exercise of this discretion. However, unlike the
present case, these factors have been formulated in cases where there
were parallel state court proceedings. Thus, we must address a ques-
tion of first impression in this circuit, and one which the Supreme
Court declined to resolve. In short, we must "delineate the outer
boundaries of [the district court's] discretion in . . . cases in which
there are no parallel state proceedings."11
III.
The factors which we have articulated to guide a district court in
determining whether to exercise jurisdiction over a declaratory judg-
ment action have their origin in Quarles. In that case, we noted that
such an action should not be used "to try a controversy by piecemeal,
or to try particular issues without settling the entire controversy, or to
interfere with an action which has already been instituted."12 Based on
this reasoning, we thus held that a district court should normally
entertain a declaratory judgment action when it finds that the declara-
tory relief sought: (1) "will serve a useful purpose in clarifying and
settling the legal relations in issue," and (2)"will terminate and afford
relief from the uncertainty, insecurity, and controversy giving rise to
the proceeding."13
In Mitcheson v. Harris,14 we built upon the general principles set
forth in Quarles. In Mitcheson, we addressed a situation in which an
insurer came to federal court seeking a declaratory judgment on cov-
erage issues while the underlying litigation against its insured was
pending in state court. In that case, we indicated that the district
court's discretion must be guided not only by the criteria outlined in
Quarles, but by such considerations as federalism, efficiency, and
_________________________________________________________________
11 Wilton, 515 U.S. at 290.
12 Quarles, 92 F.2d at 325.
13 Id. (quoting Edwin M. Borchard, Declaratory Judgments 107-09
(1934)).
14 955 F.2d 235 (4th Cir. 1992).
5
comity.15 We suggested that those additional concerns might require
the court to consider:
(i) the strength of the state's interest in having the issues
raised in the federal declaratory judgment action decided in
the state courts; (ii) whether the issues raised in the federal
action can more efficiently be resolved in the court in which
the state action is pending; and (iii) whether permitting the
federal action to go forward would result in unnecessary
"entanglement" between the federal and state court systems,
because of the presence of "overlapping issues of fact
or law."16
Finally, in Nautilus Insurance Co. v. Winchester Homes, Inc.,17 we
added another related factor which "should figure into the discretion-
ary balance."18 District courts should consider "whether the declara-
tory judgment action is being used merely as a device for `procedural
fencing' -- that is, `to provide another forum in a race for res judi-
cata' or `to achiev[e] a federal hearing in a case otherwise not
removable.'"19
IV.
Aetna contends that the absence of a pending parallel state court
proceeding is "crucial, if not dispositive, to a District Court's decision
of whether to exercise jurisdiction."20 It argues that when, as here,
there is no parallel state court action, the considerations of federalism,
efficiency, and comity are less significant, and that instead, the
court's decision should be guided by the two original factors outlined
in Quarles -- whether the declaratory relief sought: (1) "will serve a
_________________________________________________________________
15 See Mitcheson v. Harris, 955 F.2d 235, 237-40 (4th Cir. 1992).
16 Id. (as cited in Nautilus, 15 F.3d at 377).
17 15 F.3d 371 (4th Cir. 1994).
18 Continental Casualty Co. v. Fuscardo, 35 F.3d 963, 966 (4th Cir.
1994).
19 Nautilus, 15 F.3d at 377 (quoting 6A J. Moore, B. Ward & J. Lucas,
Moore's Federal Practice, ¶57.08[5] (2d ed. 1993)).
20 Reply Br. at 6.
6
useful purpose in clarifying and settling the legal relations in issue,"
and (2) "will terminate and afford relief from the uncertainty, insecu-
rity, and controversy giving rise to the proceeding."21 We disagree.
There is no requirement that a parallel proceeding be pending in
state court before a federal court should decline to exercise jurisdic-
tion over a declaratory judgment action.22 Rather, as the district court
stated, "[t]he existence or nonexistence of a state court action is sim-
ply one consideration relevant to whether to grant declaratory relief."23
To hold otherwise would in effect create a per se rule requiring a dis-
trict court to entertain a declaratory judgment action when no state
court proceeding is pending. Such a rule would be inconsistent with
our long-standing belief that district courts should be afforded great
latitude in determining whether to grant or deny declaratory relief.
Of course, we do not seek to diminish the importance of a parallel
state court proceeding in a district court's decision. Clearly, the exis-
tence of such a proceeding should be a significant factor in the district
court's determination. But it is not dispositive. Rather, even in the
absence of a state court proceeding, the criteria outlined in Quarles,
as well as the considerations of federalism, efficiency, comity, and
procedural "fencing," continue to be factors which the district court
should balance when determining whether to assert jurisdiction over
a declaratory judgment action. A district court does not exceed the
bounds of its discretion when an appraisal of these factors weighs in
favor of denying declaratory relief.
This is particularly true, when, as here, there are bona fide reasons
for the lack of any pending state court action. The district court
accepted Ind-Com's representation that the state of North Carolina
will be an inevitable party to any claim it asserts. However, because
_________________________________________________________________
21 Quarles, 92 F.2d at 325 (quoting Edwin M. Borchard, Declaratory
Judgments 107-09 (1934)).
22 See Golden Eagle Ins. Co. v. Travelers Co.'s, 103 F.3d 750, 754 (9th
Cir. 1996) (stating that "the absence of a parallel state proceeding is not
necessarily dispositive; the potential for such a proceeding may suffice.")
(citation omitted); accord Budget Rent-A-Car v. Crawford, 108 F.3d
1075, 1080 (9th Cir. 1997).
23 J.A. at 108.
7
the Project is public, Ind-Com's claim resolution process is governed
by N.C.G.S. § 143-135.3, which does not allow a contractor to insti-
tute a civil action against the State until it has exhausted certain
administrative remedies.24 Absent some type of settlement, the district
court found it inevitable that Ind-Com would eventually file a state
action not only against Aetna, but also against Lott, the State, and
Odell.25
V.
Applying the foregoing principles to the present case, we cannot
find that the district court "overstepped the bounds of its discretion"26
in dismissing Aetna's declaratory judgment action. To the contrary,
our review of the record indicates that the district court carefully con-
sidered the requisite factors in concluding that: (1) this case raises
important issues of unclear state law in which the state of North Caro-
lina has an important interest; (2) deciding this case would do little
to clarify the legal relations between the parties or afford relief from
_________________________________________________________________
24 See N.C.G.S. § 143-135.3 (1996). This section does not allow an
action to proceed against the State until the civil contractor has: (1) com-
pleted its contract; (2) received a final denial from the project architect
of the additional compensation it seeks; (3) submitted a verified written
claim to the director of the Office of State Construction of the Depart-
ment of Administration; and (4) received a written statement of the direc-
tor's decision on its claim.
25 We note that the district court's prediction has come to pass since we
heard oral argument in this case. By letter dated February 6, 1998, Ind-
Com advised this court that it had exhausted its administrative remedies,
and had thus filed a state court action. Included in this action are the
same claims that Aetna asserted in seeking a declaratory judgment.
While this development confirms the inevitability of the state court
proceeding, it does not affect our analysis here,"for we review the dis-
trict court's decision to dismiss this action on the basis of the situation
that confronted it at the time it made that decision. . . without regard to
any later developments -- unless, of course, those developments are suf-
ficient to render this entire action moot." Nautilus, 15 F.3d at 379 (cita-
tion omitted). Ind-Com's filing of a parallel state court proceeding has
not rendered this dispute moot.
26 Nautilus, 15 F.3d at 378.
8
uncertainty; (3) allowing this case to go forward would produce
piecemeal litigation; and (4) Aetna was using the declaratory relief
mechanism to engage in procedural fencing and forum shopping.
"[F]acts bearing on the usefulness of the declaratory judgment rem-
edy, and the fitness of the case for resolution, are particularly within
[the district court's] grasp."27 Consequently, we will not second-guess
the district court's balancing of the determinative considerations.
VI.
To summarize, we hold that a district court does not per se overstep
the bounds of its discretion when it dismisses a declaratory judgment
action in the absence of a pending parallel state court proceeding.
Rather, such a dismissal is within the district court's discretion, and
that discretion is not abused so long as the factors which we have enu-
merated to guide district courts in this determination weigh in favor
of denying declaratory relief. As we hold that the district court cor-
rectly determined that those factors weighed in favor of dismissal, we
affirm the district court's determination declining to exercise jurisdic-
tion over Aetna's declaratory judgment action.
AFFIRMED
_________________________________________________________________
27 Wilton, 515 U.S. at 289 (citation omitted).
9
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868 F.2d 1275
Marshallv.Western Grain Company**
NO. 88-7506
United States Court of Appeals,Eleventh Circuit.
FEB 03, 1989
1
Appeal From: N.D.Ala.
2
AFFIRMED.
**
Local Rule 36 case
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 18-3118
_________________
MELISSA CHINERY,
Appellant
v.
AMERICAN AIRLINES
_________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-16-cv-02697)
District Judge: Hon. Eduardo C. Robreno
_________________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 11, 2019
Before: SHWARTZ, KRAUSE, FUENTES, Circuit Judges.
(Filed: July 25, 2019)
_________________
OPINION **
_________________
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge.
Melissa Chinery, a flight attendant for American Airlines, alleged that several
fellow flight attendants posted offensive remarks about her on Facebook, and that
American failed to adequately investigate those claims. Chinery brought claims under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and under the
Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. § 951–963. The District Court
granted American’s motion for summary judgment on all claims, and Chinery appealed the
dismissal of her hostile work environment claim. 1 For the following reasons, we will
affirm the judgment of the District Court.
I. Background
Chinery worked as a flight attendant for American based out of Philadelphia. Like
all American flight attendants, she is represented by the Association of Professional Flight
Attendants union (“the Union”). In November 2014, she ran for presidency of the Union’s
Philadelphia local chapter based on her opposition to the Union’s collective bargaining
1
Chinery’s complaint raised these under both state and federal law. The District Court
dismissed Chinery’s state law claim since she failed to file a complaint with the
Pennsylvania Human Relations Commission before filing in federal court. See Chinery v.
Am. Airlines, No. 16-2697, 2018 WL 4055308, at *3 n.3 (E.D. Pa. Aug. 27, 2018); see
Mandel v. M & Q Packaging Corp., 706 F.3d 157, 164 (3d Cir. 2013) (citing Pennsylvania
Human Relations Act) (concluding that a plaintiff’s claim under the Pennsylvania Human
Relations Act was time-barred because an administrative complaint was not filed with the
Pennsylvania Human Relations Commission within 180 days). Even if the Court
considered her state law claims, the outcome would be unchanged because “[c]laims under
the [Pennsylvania Human Relations Act] are interpreted coextensively with Title VII
claims.” Atkinson v. LaFayette Coll., 460 F.3d 447, 454 n.6 (3d Cir. 2006). Finally,
Chinery did not address her state law claim, her Title VII disparate treatment claim, or her
retaliation claim on appeal. Any arguments relating to those claims are therefore waived.
See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
2
agreement with American. She ultimately lost that election to the incumbent chapter
president, who supported the agreement.
Chinery claims that a large group of American flight attendants, and four specific
flight attendants, harassed her during and after the election campaign through posts they
made to several Facebook groups, including a group called Wingnuts. Wingnuts’s
membership is composed primarily of American flight attendants based out of Philadelphia
who use the page to communicate about work-related issues such as scheduling, layovers,
and flight operations. American did not create the Wingnuts Facebook group and does not
monitor it. Chinery was initially a member of Wingnuts, but she left the group shortly after
starting her campaign, allegedly due to the harassment, which included:
• One flight attendant, who made negative comments towards those opposed to
the Union contract, posted a picture of a broken record on Wingnuts. Chinery
believed that the picture was an immediate reaction to something she posted on
Facebook and was in response to the complaints she made to American’s human
resources department about him.
• During the campaign, a second flight attendant posted, “[T]his is war. [The
incumbent union leaders] are my friends. If you f**k with my friends you f**
with me and I don’t like being f**ked with :(.” (asterisks in original). 2 Chinery
interpreted this post as a personal threat since it referenced her campaign.
• A third flight attendant made multiple harassing posts: (1) in response to a post
about the campaign, he wrote “it’s your cunstitutional [sic] right to vote NO [to
the Union challengers]”; 3 (2) he mocked her use of flashcards to study the Union
contract and then wrote “[t]old ya I can’t cunt [sic] to potato,” which Chinery
contends was an offensive reference to her gender; 4 (3) he wrote posts calling
those opposed to the collective bargaining agreement “cavalier harpies” and
“shrews of misinformation,” adding “[h]ave any of them LOOKED in a mirror?
Tuck your shirt in fat ass . . . Fix your hair . . . How bout [sic] a tie? A little
2
A. 46; see also A. 54.
3
Id.
4
A. 47, see also A. 54–55.
3
lipstick?”; 5 (4) he posted a picture of a “bedazzled” vagina, which Chinery
believed was directed at her friend for defending Chinery on Facebook; 6 (5)
according to Chinery, he posted a picture of the Wicked Witch of the West with
the caption “I don’t have time for basic bitches,” which she argues was about
her. 7
• About nine months after the election ended, Chinery was ordered to attend a
disciplinary meeting based on allegations that she had taken a video of one of
American’s vendors without permission. 8 The meeting was rescheduled, and
after a fourth flight attendant learned about the delay, he wrote on his personal
Facebook page, “HOLY SHIT! I knew it!! Flipper has NOT had her meeting
yet!” 9 Chinery claims that “Flipper” is a derogatory term and that the comment
was about her.
Chinery complained about these posts to American’s human resources department.
Although there was an investigation, it was ultimately closed after the investigator
determined that her claims were meritless. 10 Chinery claims that the investigator failed to
adequately address her concerns and that American could have enforced its social media
policy against the flight attendants at issue but chose not to.
Based on these alleged failures, Chinery filed a complaint before the District Court,
raising disparate treatment, hostile work environment, and retaliation claims under federal
and state law. American moved for summary judgment, and the District Court granted the
motion on all of Chinery’s claims. With respect to her hostile work environment claim,
5
A. 142.
6
A. 98.
7
A. 54. The District Court, however, could not locate evidence of this image in the
record. Chinery, 2018 WL 4055308, at *2 n.1.
8
Ultimately, Chinery was cleared of wrongdoing and was not disciplined.
9
A. 49; see also A. 57.
10
Before American closed its investigation, Chinery filed a complaint with the Equal
Employment Opportunity Commission, which was also “unable to conclude that the
information obtained establishes violations of the statutes,” and determined that American
was required to take “[n]o action.” S.A. 17, 19.
4
the Court concluded that no reasonable trier of fact could find that the Facebook posts were
“so objectively severe or pervasive that [they] would unreasonably interfere with an
employee’s work performance.” 11 Chinery timely appealed.
II. Standard of Review 12
We review the District Court’s grant of summary judgment de novo, making all
reasonable inferences in favor of the nonmoving party. 13 Summary judgment is
appropriate only if there is no genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law, 14 and we may affirm the grant of summary
judgment on any basis supported by the record. 15
III. Discussion
A prima facie case of hostile work environment under Title VII contains the
following elements: (1) intentional discrimination based on sex; (2) severe or pervasive
conduct; (3) a detrimental effect on the plaintiff; (4) a detrimental effect on a reasonable
person in similar circumstances; and (5) the existence of respondeat superior liability. 16 A
court must analyze the alleged harassment by “‘looking at all the circumstances,’ including
the ‘frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
11
Chinery, 2018 WL 4055308, at *5.
12
The District Court had federal question jurisdiction over Chinery’s Title VII claims under
28 U.S.C. § 1331, and supplemental jurisdiction over her state claims under 28 U.S.C. §
1367. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
13
Montone v. City of Jersey City, 709 F.3d 181, 189 (3d Cir. 2013).
14
Fed. R. Civ. P. 56(a).
15
See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
16
Mandel, 706 F.3d at 167.
5
interferes with an employee’s work performance.’” 17 The discriminatory “conduct must
be extreme [enough] to amount to a change in the terms and conditions of employment.” 18
Unless extremely serious, offhand comments and isolated incidents are insufficient to
sustain a hostile work environment claim. 19
Under this standard, Chinery makes three attempts to support her claim that the
complained-of conduct constituted severe or pervasive harassment. 20 None are availing.
First, Chinery argues that Facebook comments are inherently pervasive because
social media posts “are public and endure.” 21 But she does not cite to any legal authority
suggesting that permanence alone is enough for a reasonable trier of fact to conclude that
the posts were so extreme as to amount to a change in the terms and conditions of
employment. 22 We therefore find no support for such a proposition.
Second, Chinery claims that the posts constituted severe harassment because they
were threatening, inappropriate, and/or derogatory. We disagree. The conduct at issue
17
Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998) (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 23 (1993)).
18
Id. at 788; see also Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (reiterating
that for an atmosphere of harassment to be actionable, the conduct must be sufficiently
severe or pervasive that it “alter[s] the conditions of the victim’s employment” and creates
an “abusive working environment”).
19
Caver, 420 F.3d at 262–63; see also Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir.
2017) (noting that “an extreme isolated act of discrimination” may create a hostile work
environment).
20
Because we agree with the District Court that the severe or pervasive element is not met,
we need not address the additional questions raised by Chinery’s claims—including
whether the alleged harassment was due to her gender or occurred in her work environment.
21
Appellant’s Br. at 25.
22
Further, in at least one instance, the allegedly harassing Facebook post was deleted within
minutes.
6
here included posts containing insulting photographs, posts referring to Chinery and her
supporters by using derogatory language, and a post warning that the author believed he
was being “f**ked with” by those campaigning against the Union incumbents. 23 Chinery
relies on out-of-circuit cases to support her claim that sporadic instances of harassment can
constitute severe or pervasive conduct; in each case, though, the conduct was objectively
more serious in kind than the Facebook posts at issue here. 24 Although some posts are
offensive, they constitute only “offhand comments[] and isolated incidents” that are
insufficiently extreme to amount to an objective change in the terms and conditions of
employment. 25
Finally, Chinery claims that American’s investigation into her claims was not
adequate and that American failed to enforce its social media policy, and this made the
conduct severe. While these alleged failures might have some bearing on the question of
whether respondeat superior liability may be attributed to American, they do not in
themselves constitute severe or pervasive conduct. Put simply, Chinery does not show how
American’s shortcomings caused a material change in the terms and conditions of her
23
A. 46, 54.
24
See, e.g., Crowley v. L.L. Bean, Inc., 303 F.3d 387, 398–401 (1st Cir. 2002) (holding
plaintiff provided sufficient evidence of severe or pervasive harassment where plaintiff’s
co-worker followed her home, broke into her house, lurked about her windows, and
massaged her foot at a work pool party); Parrish v. Sollecito, 249 F. Supp. 2d 342, 347–50
(S.D.N.Y. 2003) (denying defendants’ motion for summary judgment where plaintiff’s co-
worker groped her multiple times at a funeral reception); Espinoza v. Cty. of Orange, No.
G043067, 2012 WL 420149, at *3–4, *7 (Cal. Ct. App. Feb. 9, 2012) (affirming a finding
of severe or pervasive harassment where coworkers engaged in in-person mocking at work,
keyed plaintiff’s car, and sabotaged his work equipment).
25
Faragher, 524 U.S. at 788.
7
employment. 26 Rather, any failure to investigate or discipline the flight attendants merely
“preserved the very circumstances that were the subject of the complaint.” 27
Therefore, we agree with the District Court that Chinery failed to show that the
alleged conduct, viewed objectively, was severe or pervasive. As a result, there can be no
genuine issue of material fact, and American is entitled to summary judgment.
IV. Conclusion
For the foregoing reasons, we will affirm the District Court’s grant of summary
judgment to American Airlines.
26
See id. at 788; see also Maldonado-Cátala v. Municipality of Naranjito, 876 F.3d 1, 11
(1st Cir. 2017) (“[The plaintiff] does not explain how her daily work life was impacted by
her superiors’ failure to investigate the Facebook posts . . . . [W]ithout more, a jury could
not reasonably view the lack of follow-through as on-the-job harassment that altered her
working conditions.”); Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 724 (2d
Cir. 2010) (holding that the failure to investigate an employee’s complaint does not
contribute to nor constitute a hostile work environment).
27
Fincher, 604 F.3d at 724.
8
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735 F.Supp. 148 (1989)
Guiseppe SCIAROTTA, Plaintiff,
v.
Hon. Otis R. BOWEN, etc., Defendant.
Civ. No. 85-2507 (AET).
United States District Court, D. New Jersey.
August 9, 1989.
Pellettieri, Rabstein & Altman, Trenton, N.J., for plaintiff.
*149 Stephanie Ebers, Asst. U.S. Atty., Newark, N.J., and Peter O'Malley (on appeal), for defendant.
OPINION
ANNE E. THOMPSON, District Judge.
This matter comes before the court on remand from the United States Court of Appeals for the Third Circuit. Sciarotta v. Bowen, 837 F.2d 135 (3d Cir.1988). Pursuant to the opinion of the Third Circuit, the sole issue before the court is to determine "... whether the Social Security Administration's ["SSA"] method of converting plaintiff's lump sum workers' compensation settlement to a stream of periodic payments, based on the assumption that the settlement represented the maximum allowable monthly payment, was rational." Id. at 136.
Factual and Procedural Background
Mr. Sciarotta, a 49-year old machine operator, suffered a permanently disabling heart attack at work on July 19, 1979. At that time his gross weekly wages were $270.40, as stated in his petition for New Jersey workers' compensation. The SSA awarded him social security disability insurance benefits as of the date of his disability heart attack, pursuant to 42 U.S.C. § 423. Sciarotta also filed a claim for New Jersey state workers' compensation benefits under N.J.S.A. §§ 34:15-1 et seq., which he settled on October 15, 1981, for a lump sum of $40,000. $5,000 of this award was deducted for attorney's fees, leaving Sciarotta a net lump sum award of $35,000. This settlement, by its terms, had "the effect of a dismissal with prejudice" of his claim, and constituted a "complete and absolute surrender and release of all [his] rights arising out of this/these [workers' compensation] claim(s)." New Jersey had applied a reduction to the amount it was willing to pay when the parties settled on the $40,000 figure because Sciarotta was receiving federal social security disability benefits.
After being advised of this settlement, the SSA determined that Sciarotta's social security disability benefits were subject to offset because Sciarotta's benefits remained above 80% of his pre-disability salary, despite the reduction in benefits implemented by New Jersey. Prior to reduction by SSA, Sciarotta had received $627.20 per month in social security disability benefits. After the offset against the workers' compensation lump sum settlement had been calculated, claimant's social security disability income was reduced to $396 per month, a reduction of $231.20.
To accomplish the offset, SSA converted Sciarotta's lump sum settlement into a theoretical stream of periodic workers' compensation benefits. In converting the lump sum to determine the offset, the SSA followed instructions issued by the Secretary of Health and Human Services ("Secretary") in the SSA's Program Operation Manual System ("POMS"), at § D1 11501.235C (July, 1986). The instructions set forth a three-step procedure for prorating a state lump sum award "at an established weekly rate." The three steps are to be applied in priority order as follows (quoting from POMS, supra):
1. The rate specified in the lump-sum award. If the award specifies a rate based on life expectancy list the case under code 557.
2. The periodic rate paid prior to the lump-sum (if no rate is specified in the lump-sum award).
3. If WC [Workers' Compensation], the State's WC maximum in effect in the year of injury. This figure can be used if no rate is specified in the award or there was no preceding periodic benefit. It can also be used pending post-adjucative development of the rates specified in 1 or 2.
The SSA correctly determined that steps 1 and 2 do not apply to Mr. Sciarotta's situation, and used step 3 to determine the offset amount. Accordingly, the SSA divided claimant's net lump sum workers' compensation award of $35,000 by the maximum weekly benefit allowable under New Jersey law in 1979, $156 per week. Had Sciarotta successfully litigated his claim, he would have received $156 per week for at least 450 weeks, or $70,200. N.J.S.A. *150 34:15-12(a) and (b) (West, 1979). The $156 represents 75% of the statewide average weekly wages in New Jersey in 1979, as computed, determined, and promulgated by the New Jersey Commissioner of Labor and Industry, in accordance with statute. Id.
Dividing $35,000 by $156, the SSA determined that Sciarotta's compensation settlement theoretically represented a stream of New Jersey workers' compensation payments of $156 per week for 224 weeks, or approximately 4.3 years. Combining this theoretical amount with claimant's social security disability insurance benefits, the SSA determined that his total government benefits impermissibly exceeded 80% of his pre-disability earnings, and therefore reduced his federal disability payments by $231.20 per month, the "overpayment," for 224 weeks.
Sciarotta appealed the reduction of social security payments decision administratively. The Appeals Council, the final level of administrative review, denied claimant's request for review on March 27, 1985, thus rendering the decision of the Secretary final. Claimant then sought judicial review of this decision in the United States District Court for the District of New Jersey. On November 14, 1986, Judge Cowen, applying the literal words of the statutory provision authorizing such reductions, 42 U.S.C. § 424a, held that where a state imposes a reduction on workers' compensation payments because of the receipt of federal disability benefits, as here, the SSA may not in turn reduce the federal disability benefits because of the receipt of the state workers' compensation benefits. Sciarotta v. Secretary of Health and Human Services, 647 F.Supp. 132 (D.N.J.1986).
The Secretary appealed the district court decision to the United States Court of Appeals for the Third Circuit. On January 19, 1988, the Circuit Court reversed the district court's order, and upheld the SSA's right to reduce disability benefits to offset state workers' compensation benefits in those cases where the state offset does not reduce total government benefits to less than 80% of pre-disability earnings. Sciarotta v. Bowen, 837 F.2d 135 (3d Cir.1988). The Third Circuit also considered and remanded to this court an issue raised earlier by the claimant but not reached in the district court's consideration of this matter: whether the SSA's proration method was rational and appropriate.
Discussion
The only issue this court is to consider on remand is whether Step 3 of the Secretary's proration method is "rational." The Social Security Act states that when benefits other than Social Security disability are payable on other than a monthly basis, as in the instant case, the proration offset implemented by SSA "shall be made at such time or times and in such amounts as the Secretary finds will approximate as nearly as practicable the reduction" outlined in detail for benefits payable on a monthly basis. 42 U.S.C. § 424a(b).
The proration device is not contained in regulations promulgated by the Secretary, but is stated in an internal departmental operating manual. As such, the provision in question is an "interpretive rule" designed by an agency to give guidance to its staff and affected parties as to how the agency intends to administer a statute or regulations. State of New Jersey v. Dept. of Health and Human Services, 670 F.2d 1262, 1281-82 (3d Cir.1981). The provision cannot be said to be a formal legislative rule because it was not formulated through the standard rule-making procedures, such as the holding of hearings, publication in the Federal Register, and formal adoption in the Code of Federal Regulations. The court notes that although the APA sets forth formal rule-making procedures, these provisions do not apply to the promulgation of interpretive rules. State of New Jersey, supra at 1281.
The standard of review that should be applied by a court in evaluating an interpretative rule is a settled question in the Third Circuit. Such rules are "not controlling upon the courts." See United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 674, 93 S.Ct. 1804, 1816, 36 L.Ed.2d 567 (1973) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 *151 S.Ct. 161, 164, 89 L.Ed. 124 (1944); see also, St. James Hospital v. Harris, 535 F.Supp. 751, 763 (N.D.Ill.1981), rev'd on other grounds, 698 F.2d 1337 (7th Cir. 1983), cert. denied, 464 U.S. 830, 104 S.Ct. 107, 78 L.Ed.2d 110 (1983) (courts will accord less deference to an interpretative rule than to a legislative one). Courts remain free to substitute their judgment for that of the agency in determining how the statute or regulation is to be implemented. State of New Jersey, supra at 1282. As an interpretative rule is simply the agency's opinion of the meaning of a statute, it does not bind a reviewing court, which must examine the interpretation just as it would approach any other question of law; however, to the extent "the Administrator's interpretation represents a reasonable accommodation of manifestly competing interests," it is "entitled to deference." Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
Interpretative regulations, such as step 3 of the proration instructions at issue here, are merely advisory, and, if regulations are interpretative, a reviewing court may use its own judgment as to what the authorizing statute requires, when the validity of an agency action is questioned. National Association of Pharmaceutical Mfrs. v. Department of Health and Human Services, 586 F.Supp. 740, 743 n. 1 (S.D.N.Y. 1984). The only question with which this court is concerned is whether the Interpretive Rule is rational. See Sciarotta, supra, 837 F.2d 135. The practical application of this rule, as seen in Mr. Sciarotta's case, results in the settlement lump sum payment's being divided by the maximum allowable weekly payment under SSA; from that calculation the SSA determined that Mr. Sciarotta's lump sum payment of $35,000 was the equivalent of receiving $156 per week for 224 weeks, or 4.3 years. Adding the $156 to Mr. Sciarotta's social security benefits, the SSA determined that his total benefits exceeded 80% of his predisability earnings by approximately $231 per month; SSA then reduced Mr. Sciarotta's federal benefits by $231 per month for 4.3 years. Therefore, this court must consider whether dividing the lump sum payment by the maximum weekly benefit, as provided in Step 3 of the Interpretive Rule, is a rational means by which SSA calculates the amount by which it reduces the claimant's federal benefits.
In evaluating this question the court must be guided by the statutory language, the relevant legislative history, the opinion of the Third Circuit in this case, and other relevant case law.
The primary objective of the disability provisions of the social security system is to provide workers and their families with basic protection against hardships created by loss of earnings due to illness or old age. Mathews v. DeCastro, 429 U.S. 181, 185-86, 97 S.Ct. 431, 434-35, 50 L.Ed.2d 389 (1976). The disability insurance program, like the other insurance aspects of the Social Security Act, is contributory in nature, and is designed to prevent public dependency by protecting workers and their families against common economic hazards, wholly without regard to the need of the recipient. Id. at 186, 97 S.Ct. at 434-35, interpreting H.R.Rep. No. 615, 74th Cong., 1st Sess., 1 (1935).
In 1950, the basic Social Security Act of 1935 was amended to provide, for the first time, federal grants-in-aid to the states so that assistance could be furnished "to needy individuals eighteen years of age or older who are permanently and totally disabled." Social Security Act Amendments of 1950 § 351, 64 Stat. 555. In 1956, Congress created a program for disability insurance benefits. Social Security Amendments of 1956, § 103(a), 70 Stat. 815. Again, the insurance program, unlike the public assistance provisions, was designed to protect against the specific economic hardships created by involuntary, premature retirement. Mathews, supra at 186, 97 S.Ct. at 434-35, interpreting H.R.Rep. No. 1300, 81st Cong., 1st Sess., 27-28, 53-54 (1949); Recommendations for Social Security Legislation, Reports of the Advisory Council on Social Security, Senate Doc. No. 208, 80th Cong., 2d Sess., 69-70, 95-97 (1949); S.Rep. No. 2133, 84th Cong., 2d *152 Sess., 3-4 (1956). H.R.Rep. No. 1189, 84th Cong., 1st Sess., 3-6 (1955).
Thus, the underlying purpose of the basic social security disability insurance program is to prevent public dependency by protecting disabled workers and their families against economic hazards and hardships by paying sufficient insurance benefits to those who are qualified, so that disabled persons and their families will not be forced into eventual poverty and onto public assistance. The disability insurance program is a contributory insurance program clearly designed to prevent need, even though it is not need-based.
There is tension between this underlying intent and purpose of the basic disability insurance act and the subsequent amendments that allow for offsets and reductions; but, the basic act as codified at 42 U.S.C. § 423, must be read in pari materia with the later amendments. Guarino v. Celebrezze, 222 F.Supp. 345, 348 (E.D. Pa.1963), aff'd 336 F.2d 336 (3d Cir.1964). Statutes dealing with the same subject matter, as §§ 423 and 424a do, are to be read together and harmonized when possible. Matter of Johnson, 787 F.2d 1179, 1181 (7th Cir.1986).
The legislative history of the federal offset provisions indicates that Congress enacted 42 U.S.C. § 424a because it was concerned that the concurrent receipt by disabled workers of both federal disability and state workers' compensation benefits would lead to overpayments and/or duplication of benefits to the extent that a disabled worker might collect benefits that would exceed her or his former salary. S.Rep. No. 404, 89th Cong., 1st Sess., reprinted in 1965 U.S.Code & Admin.News 1943, 2040-2042. At the same time, Congress intended to minimize inequities for the disabled worker and to prevent erosion in the earnings replacement value of disability benefits. Id. at 2040.
The legislative histories reviewed by the court reveal that Congress intended to balance society's and the disabled workers' interests in being protected against financial harm resulting from disability with society's interest in preventing a disabled worker from collecting excessive combined benefits. Thus, Congress provided that the total government-funded benefits that a disabled worker may collect if she or he is collecting federal social security disability insurance benefits may not exceed 80% of the claimant's "average current earnings" at the time of disability. Id. at 2041; 42 U.S.C. § 424a. Congress also clearly delegated to the Secretary authority to implement its expressed legislative purposes in the form of regulations and interpretive rules. While step 3 of the proration calculation method, described above, fulfills the purposes of reduction of benefits provisions expressed in the 1965 amendment to the Act, codified at 42 U.S.C. 424a, and subsequent modifying amendments, the method is not necessarily consistent with the underlying purposes of the Social Security Disability Insurance Act itself, 42 U.S.C. § 423.
An examination of the relevant case law reveals no cases directly on point; however, certain decisions may inform the court's analysis. In Altobella v. Bowen, 668 F.Supp. 1134 (N.D.Ill.1987), the District Court held that the Secretary properly prorated the claimant's worker's compensation lump sum payment on the basis of the weekly sum to which he would have been entitled for the 45% loss which the lump sum payment represented, rather than prorating the lump sum over the claimant's period of life expectancy or over the course of the claimant's disability. Id.
Altobella is distinct from Sciarotta. First, the claimant in Altobella was only partially, though permanently, disabled. As noted in the Secretary's brief, in enacting the offset provisions, Congress was concerned that if workers received benefits in excess of their pre-disability pay, they would have a reduced incentive to return to work, thus impeding the rehabilitative efforts of the state programs. Richardson v. Belcher, 404 U.S. 78, 83-84, 92 S.Ct. 254, 258-59, 30 L.Ed.2d 231 (1971). (Defendant's Brief, p. 21). That principle would clearly apply to someone like Mr. Altobella, a partially disabled worker perhaps subject to rehabilitation and a consequent return to *153 work. It would not, however, apply to someone in the position of Mr. Sciarotta for whom rehabilitation and return to work seem not to be relevant concerns. Second, in Mr. Altobella's case, a representative from his employer's worker's compensation insurance carrier informed the Secretary that the lump sum represented a settlement at $140 per week for 225 weeks; three years later, the representative re-affirmed these facts. Id. at 1136. No such information has been provided in Mr. Sciarotta's case. Finally, the court notes that it is not bound by the holding of an Illinois district court. It appears as if no other federal court has grappled with the issue squarely before us today.[1]
The court next will examine the arguments of the parties. Mr. Sciarotta asserts that because the lump sum payment is the only worker's compensation benefit he will receive for the remainder of his life, it is irrational to prorate the award over only 4.3 years. He further contends that it is irrational for SSA to assume that his award represents the maximum allowable benefit when, in reality, it represents a compromised claim in which each entity opted to reduce its demands to avoid the risks attendant with going to trial. Sciarotta argues instead that the lump sum award should be prorated over his remaining life expectancy, which at the time of the award of Social Security disability was 23.91 years. Calculating the lump sum along these lines, Sciarotta states that he is receiving only $28 per week, rather than the $156 per week that SSA had calculated. Using the figure of $28 per week, Sciarotta contends that his total benefits do not exceed 80% of his pre-disability earnings and that, as a result, no federal offset should be imposed.
The Secretary contends that the proration rule applied to Mr. Sciarotta's case is rational and must be upheld unless it is "arbitrary" or "capricious." Wheeler v. Heckler, 787 F.2d 101, 104 (3d Cir.1986). The Secretary raises a number of points to support his argument that the rule is rational. First, the Secretary asserts that application of the maximum weekly rate is appropriate because Mr. Sciarotta would have received this amount had he elected to receive periodic benefits rather than a lump sum payment. However, as noted by the Third Circuit, the Secretary does not explain how he concluded that Sciarotta's settlement represented the maximum allowable under New Jersey law. Sciarotta, supra, 837 F.2d at 141. Further, as Mr. Sciarotta notes, because he settled the case, he opted not to receive the full benefit to which he might otherwise have been entitled, and therefore it is inappropriate to treat the worker's compensation award as being the "maximum allowable."
The Secretary further argues that this method of proration is the most efficient and accurate method, it quickly eliminates the period during which the offset must occur, and other courts have upheld this method (citing Altobella, supra). However, none of these arguments support the rationality of the rule. First, an equally efficient and accurate method of calculating the offset is, in cases of permanent and complete disability, to allocate the benefits over the claimant's remaining life expectancy. Second, it is irrelevant that the offset period is eliminated quickly. Third, as indicated above, no other court has ruled on the specific issue presently before the court.
The Secretary raises three additional arguments. First, he asserts that it is Congress' function to change the rule if it is unfair. This, however, is inaccurate, as Mr. Sciarotta is challenging an interpretive rule, not the statute itself. Also, it is this court's duty to strike down a rule it finds to be arbitrary and capricious. Second, the Secretary argues, alternative methods, such as those proposed by the Third Circuit, are unworkable and would be an administrative burden. As noted above, this *154 is not necessarily so; further, merely because a policy is straightforward in its application does not make it rational. Finally, the Secretary contends that the duration of a potential worker's compensation award is unknown if a worker chooses to settle; therefore, it is reasonable to use the periodic rate (i.e., maximum weekly benefit) to which the worker would be entitled to calculate the offset. This statement, however, does nothing but prove itself; as this court previously noted, there is an absence of logic in applying the maximum weekly benefit rate when all sides acknowledge that a settlement implicitly means that neither side is obtaining the "maximum" it sought originally. Furthermore, when a claimant is completely and permanently disabled, the Secretary's argument becomes irrelevant because the duration of a potential worker's compensation award is the life expectancy of the claimant, or the 450-week initial maximum on disability awards. The court finds it hard to accept the Secretary's contention that it is problematic to make such determinations, as Step 1 of the Interpretive Rule in question considers questions of life expectancy; further, even if such calculations are difficult, the Secretary could use the maximum payment period, which currently is 450 weeks and is set by state statute. See N.J.S.A. 34:15-12(b). Finally, the court notes that in making each of these arguments, the Secretary merely has set forth his conclusory allegations; he has supplied no evidence to support his assertions.
The court now turns to the guidance provided by the Third Circuit. The Third Circuit noted that it found Mr. Sciarotta's arguments to be "extremely forceful." Sciarotta, supra, 837 F.2d at 141. Although the Circuit found it was "more appropriate for the district court" to consider whether the SSA's calculation is irrational, it noted "that if Sciarotta's allegations ... prove true, and if the Secretary provides no further explanation, we can see no rational basis for the proration method used by the SSA." Id. The court finds that the Secretary has failed to provide sufficient "further explanation" than the "effort [he made] to defend or explain the SSA's calculations," id., to the Third Circuit.
In addition to the reasons already set forth by the court indicating the inadequacy of the Secretary's presentation, the court also notes that applying the current proration methodology to state workers' compensation lump sum settlements operates as a virtual penalty on those disabled workers who wish to avoid the expense and stress of litigation by deciding to settle their state workers' compensation claims. The proration method used in step 3 effectively penalizes disabled workers for accepting lump sum settlements of their state worker's compensation claims by assuming that such settlements represent the maximum allowable benefit for the shortest period of time, and thus guaranteeing, in most cases, the application of the federal offset and subsequent reduction of federal benefits. This proration method does not fulfill the intent of Congress in enacting the original basic disability insurance program, which is to provide adequate federal disability insurance benefits. In maximizing the facilitation of the 80% limit on government benefits envisioned by Congress in enacting § 424a, the Secretary may have lost sight of the underlying intent of § 423.
The Third Circuit has ruled that prorating is an acceptable practice; the holding of this court accepts that principle, yet for the reasons set forth above, this court finds the Secretary's method of implementation of step 3 as applied to Mr. Sciarotta is arbitrary. This court finds that it is irrational for the SSA to prorate Mr. Sciarotta's lifetime worker's compensation settlement in such a way as to minimize the time period over which SSA deems it to apply and further finds that the application of step 3 of the proration rule to Mr. Sciarotta is inconsistent with the express purpose of the Social Security Act.
ORDER
This court having considered this matter on remand from the Third Circuit, and for good cause having been shown;
It is on this 8th day of August 1989,
*155 ORDERED that, consistent with the Third Circuit opinion in this matter, the application of Step 3 of Interpretive Rule § D1 11501.235 C to plaintiff's case be and hereby is found to be irrational and inconsistent with the express purpose of the Social Security Act and therefore cannot be used to prorate his lump sum worker's compensation.
NOTES
[1] In Mann v. Heckler, 1A Unempl.Ins.Rep. (CCH) ¶ 16,952 (D.Me. Mar. 17, 1986), aff'd 802 F.2d 440 (1st Cir.1986), reprinted in Social Security Ruling 87-21C, which the Secretary cites in support of his proration method, the SSA's application of step 2 of the POMS proration method is upheld. (Defendant's Brief, p. 15). However, it is solely the rationality of step 3, and not step 2, of that method which is being challenged by Mr. Sciarotta.
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822 So.2d 411 (2001)
James Shannon DICKINSON and Water Pollution Control, Inc.
v.
CITY OF HUNTSVILLE.
1001271.
Supreme Court of Alabama.
November 21, 2001.
*413 Fulton S. Hamilton of Hamilton & Gardner, Huntsville, for appellants.
L. Tennent Lee III of Wilmer, Lee, Rowe, Cates, Fohrell & Kelley, P.A., Huntsville, for appellee.
SEE, Justice.
In May 2000, James Shannon Dickinson, an employee of the City of Huntsville, and Water Pollution Control, Inc., a company of which Dickinson is an officer and in which he is a shareholder, sued Metro Investigations, Inc., Jay Kennedy, an employee *414 of Metro Investigations, and Loretta Spencer, mayor of the City of Huntsville, alleging that Spencer had improperly hired Kennedy and Metro Investigations to investigate his outside business activities and seeking compensatory and punitive damages.[1] Dickinson claimed that Spencer's failure to properly supervise and review the actions of Kennedy and Metro Investigations "caused [him] to suffer personal humiliation, public embarrassment, [and] financial expense."
Dickinson amended his complaint to allege, among other things, fraud, fraudulent misrepresentation, negligence, and wantonness. Spencer moved the trial court to substitute the City of Huntsville in her place, claiming that "based on the doctrine of governmental function[,] ... suits brought against governmental officials in their official capacity ... are, in fact, suits against the governmental agency themselves." The trial court granted Spencer's motion and substituted the City of Huntsville for Spencer.
The City moved for a summary judgment, arguing (1) that Dickinson's claims were barred by the statute of limitations; (2) that Dickinson's fraud claim failed to state a claim upon which relief could be granted; (3) that the testimony given at Dickinson's personnel hearing was privileged and could not be used as a basis for any claim; (4) that Dickinson's claims actually allege malicious prosecution and malicious-prosecution claims may not lie against a municipality; (5) that there is no recognized claim against a municipality for the negligent hiring or supervision of an independent contractor; and (6) that Dickinson cannot recover punitive damages against the City. The trial court granted the City's motion for a summary judgment, finding that Metro Investigations and Kennedy were independent contractors and that, therefore, the City could not be held liable based on a theory of respondeat superior. Dickinson appeals from the trial court's partial summary judgment in favor of the City made final by a certification pursuant to Rule 54(b), Ala. R. Civ. P. Dickinson raises the following issues: (1) whether the trial court erred in substituting the City of Huntsville for Mayor Spencer; (2) whether Metro Investigations was an independent contractor hired by the City of Huntsville; (3) whether a city's surveillance of a city employee was a nondelegable duty; and (4) whether the trial court erred in entering a summary judgment on the issue of damages.
"In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact," Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was "entitled to a judgment as a matter of law." Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the *415 fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).
Dickinson argues that the trial court erred in substituting the City for the named defendant, Mayor Spencer. He argues that he sued the mayor in her official capacity because, he says, she, as the chief executive officer of the City, is statutorily charged with the supervision and control of the City and its employees. Dickinson relies on Smitherman v. Marshall County Commission, 746 So.2d 1001 (Ala.1999), for his argument that Spencer, in her official capacity as the mayor, is a distinct legal entity from the City. In Smitherman, Jamie Smitherman, by and through her mother, sued, among others, Marshall County, the Marshall County Commission, and the county engineer, individually and in their official capacities, alleging that they had acted negligently and wantonly in designing and maintaining a county road in Marshall County. Smitherman claimed that their negligence or wantonness had caused a motor-vehicle accident in which she suffered injuries. The trial court entered a summary judgment for all defendants except the County. The trial court, relying on Calvert v. Cullman County Commission, 669 So.2d 119 (Ala.1995), held that "`suing the county commissioners, in their official capacities, the county engineer, in his official capacity, and the Marshall County Commission is only another way of pleading a claim against the entity, Marshall County.'" 746 So.2d at 1004. This Court reversed the trial court's summary judgment as to the claims against the Marshall County Commission, the commissioners, and the county engineer, holding that there is a legal distinction between a county and its employees acting in their official capacities. 746 So.2d at 1005. This Court also overruled Calvert to the extent that it implied otherwise. Id.
Dickinson urges this Court to adopt the Smitherman rationale and hold that there is a legal distinction between a City and its mayor. Dickinson cites no caselaw to support this argument, and this Court's independent research can find no support for this argument. Smitherman is distinguishable from the present case because of the nature of the parties involved. In Smitherman, this Court quoted Justice Maddox's special writing in Calvert and stated that a county commission "`is the governing body of the county, and not the county itself.'" Smitherman, 746 So.2d at 1005. This Court likened a county commission to a city council, because both are governing bodies. Id. The office of mayor, however, is not a governing body in the way a county commission is. The mayor, as Dickinson notes, is the chief executive officer of the City. See § 11-43D-14, Ala. Code 1975. That is to say, she is, in her official capacity, within the line and scope of her office, the agent of the City, through whom the City acts. Thus, to sue the mayor in her official capacity is simply another way of suing the City. Therefore, the trial court did not err in substituting the City for Mayor Spencer, the original defendant.
Dickinson argues that the trial court erred in granting the City's motion for a summary judgment because, he says, Metro Investigations and Kennedy were agents of the City. The City, however, argues that Metro Investigations and Kennedy were not agents of the City, but were instead independent contractors, and we agree.
*416 "`The test for agency is whether the alleged principal has retained a right of control over the actions of the alleged agent.'" Ex parte Wild Wild West Social Club, Inc., 806 So.2d 1235, 1241 (Ala.2001) (quoting Gist v. Vulcan Oil Co., 640 So.2d 940, 942 (Ala.1994)). In determining whether a person is an independent contractor, we use the "right-of-control" test, and we consider four factors: (1) direct evidence of the right or exercise of control; (2) the method of payment used; (3) whether the alleged principal had the right to terminate employment; and (4) the right to control another's time. Hooker Constr., Inc. v. Walker, [Ms. 2000479, Sept. 21, 2001] ___ So.2d ___, ___ (Ala. Civ.App.2001) (citing Williams v. Tennessee River Pulp & Paper Co., 442 So.2d 20 (Ala.1983)). The party asserting the existence of an agency relationship has the burden of presenting sufficient evidence to prove the existence of that relationship. See Ex parte Wild Wild West Social Club, 806 So.2d at 1242 (citing Mardis v. Ford Motor Credit Co., 642 So.2d 701, 704 (Ala. 1994)). Agency may not be presumed. Ex parte Wild Wild West Social Club, 806 So.2d at 1242 (citing Carlton v. Alabama Dairy Queen, Inc., 529 So.2d 921 (Ala. 1988)). The plaintiff must present substantial evidence of an agency relationship. Id.
Dickinson failed to present any evidence of an agency relationship. In his response to the City's motion for a summary judgment, Dickinson presented no evidence of agency. To this Court, Dickinson argues that "[n]o evidence was before the trial court from which the trial court could make a factual or legal determination on the employment relations between the City of Huntsville and Metro Investigations, Inc." (Dickinson's brief, at 11.)
Agency cannot be presumed, and Dickinson bears the burden of proving that an agency relationship existed. See Hooker Construction, ___ So.2d at ___. Because Dickinson failed to present substantial evidence indicating the existence of an agency relationship, we cannot say that the trial court erred in finding that Metro Investigations was an independent contractor of the City.
Dickinson argues that the employment of a private investigative agency, Metro Investigations, to conduct surveillance on a city employee was improper, because by doing so it sought to discharge a nondelegable duty. Therefore, Dickinson argues, the City is liable for the negligence of the independent contractor, Metro Investigations. Section 11-47-190, Ala. Code 1975, provides:
"No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his or her duty...."
(Emphasis added).
Because Metro Investigations was not an agent of the City, the City cannot be held liable under § 11-47-190 for its acts. Moreover, a municipality generally is not liable for the negligence of an independent contractor. Robertson v. City of Tuscaloosa, 413 So.2d 1064, 1066 (Ala. 1982). However, "[a] municipality may be liable for the negligent acts or omissions of its independent contractor if the contractor is performing a nondelegable duty."[2]Robertson, 413 So.2d at 1066. "A nondelegable *417 duty is usually a specific duty imposed on the municipality by statute." Id. Dickinson argues that §§ 11-43D-14 and 11-43-83, Ala.Code 1975, imposed on Spencer certain nondelegable duties. Section 11-43D-14, provides:
"The mayor shall be the chief executive officer, and shall have general supervision and control of all other officers, employees and affairs of the city, which shall include the management of the public utilities, either owned and operated by the city or operated by private corporations under contracts with the city. The general law applicable to mayor-council municipalities notwithstanding, the mayor shall have the power to appoint all officers and employees of the city subject to the rules and regulations of any civil service or merit system that may be applicable to said city. The mayor may remove any person appointed by him subject to the rules and regulations of any civil service or merit system that may be applicable to said city."
Section 11-43-83 provides:
"The mayor shall see that all contracts with the town or city are faithfully kept or performed. [She] shall execute all deeds and contracts and bonds required in judicial proceedings for and on behalf of the city or town and no sureties shall be required on such bond. [She] shall perform such other executive duties, in addition to those prescribed in this article, as may be required of [her] by the council."
Sections 11-43D-14 and 11-43-83 do not impose a specific duty on the municipality, and, therefore, they do not create a nondelegable duty. "A nondelegable duty is usually a specific duty imposed on the municipality by statute." Robertson, 413 So.2d at 1066. "[G]overnmental entities are not ordinarily liable for *418 the tortious conduct of ... independent contractors." Baccari v. De Santi, 70 A.D.2d 198, 203, 431 N.Y.S.2d 829, 832 (1979) (citing O'Brien v. City of Syracuse, 54 A.D.2d 186, 188, 388 N.Y.S.2d 866, 869 (1976); 1A Chester James Antieau, Municipal Corporation Law § 11:04). An exception to the general rule provides that "[w]hen a specific duty has been imposed upon a person or governmental entity by statute, responsibility for misfeasance cannot be avoided by delegating the performance of the duty to an independent contractor." 70 A.D.2d at 203, 431 N.Y.S.2d at 833. Accord Robertson, 413 So.2d at 1066.
Sections 11-43D-14 and 11-43-83 reserve certain general, executive powers to the mayor; those powers allow the mayor to conduct the business of the city. That is, these statutes broadly confer on the mayor the authority to make contracts, to hire employees, and to manage the city's day-to-day operations. These statutes do not, as Dickinson argues, create a specific, nondelegable duty.
Finally, Dickinson argues that the trial court erred in entering a summary judgment on the issue of damages. Dickinson argues that the City, through the mayor, was liable for Kennedy's presentation of inaccurate information at the personnel board hearing. Specifically, Dickinson states, "The trial court included as part of its summary judgment order the conclusion that any claim against the City arising from Dickinson's personnel hearing could only be one for malicious prosecution which would not lie against a municipality." (Dickinson's brief at 15.)
Dickinson misreads the trial court's order. The trial court did not address the issue of damages, because the trial court never reached' that issue. Instead, the trial court stated several alternative theories for granting the City's motion for a summary judgment. The trial court specifically stated that "[a]lthough not necessary to this decision the court further finds that any claim against the city for the bringing of the personnel [action] could only be considered as a claim for malicious prosecution."
This Court has repeatedly held that "a municipality is not responsible for the acts of its officers, agents, or servants in making false arrests or for instituting a malicious prosecution." Neighbors v. City of Birmingham, 384 So.2d 113, 113 (Ala. 1980); Ott v. Everett, 420 So.2d 258, 260 (Ala.1982). As we have already held, Metro Investigations and Kennedy were independent contractors hired by the City. If a municipality cannot be responsible for the acts of its agents in a malicious-prosecution action, then certainly a city cannot be liable for the acts of its independent contractors in such an action. We hold that the trial court properly granted the City's motion for a summary judgment. Therefore, we affirm the trial court's summary judgment in favor of the City.
AFFIRMED.
MOORE, C.J., and BROWN, HARWOOD, and STUART, JJ., concur.
NOTES
[1] Kennedy conducted surveillance on Dickinson from August 1996 until January 1998. Based on the information provided to the City by Kennedy and Metro Investigations, the City filed disciplinary charges against Dickinson. Dickinson was suspended from his job with the City, pending an administrative hearing. The administrative hearing officer held in favor of Dickinson. Dickinson alleges that the City provided false information at the administrative hearing.
[2] A municipality may also be liable for the negligent acts or omissions of its independent contractor if the independent contractor is performing an activity that is inherently dangerous or ultrahazardous. Robertson, 413 So.2d at 1066. An inherently dangerous activity is
"one which inheres in the performance of the contract and results directly from the work to be done, not from the collateral negligence of the contractor, and important factors to be understood and considered are the contemplated conditions under which the work is to be done and the known circumstances attending it."
Boroughs v. Joiner, 337 So.2d 340, 342 (Ala. 1976).
The employment of a private investigator is not, however, an inherently dangerous or ultrahazardous activity. In Harper v. Regency Development Co., 399 So.2d 248, 253 (Ala. 1981), this Court, citing the Restatement (Second) of Torts § 520 (1977), set forth the following factors to be considered in determining whether an activity is abnormally dangerous:
"(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
"(b) likelihood that the harm that results from it will be great;
"(c) inability to eliminate the risk by the exercise of reasonable care;
"(d) extent to which the activity is not a matter of common usage;
"(e) inappropriateness of the activity to the place where it is carried on; and
"(f) extent to which its value to the community is outweighed by its dangerous attributes."
This Court has stated that "liability for an abnormally dangerous activity arises out of the intrinsic danger of the ultrahazardous activity itself and the risk of harm it creates to those in the vicinity." Id. Thus, this Court concluded, "The basis for liability is that one who for his own purposes creates an abnormal risk of harm to his neighbors must be responsible for relieving that harm when in fact it does occur." Id. A private investigation, such as that undertaken by Metro Investigations at the direction of the City, is not an activity that carries an inherently high degree of risk. See, e.g., Harper v. Regency Dev. Co., supra (use of high explosives near a populated area is an ultrahazardous activity because reasonable care cannot eliminate the danger inherent in the activity); Boroughs v. Joiner, supra (the aerial application of insecticides and pesticides is intrinsically or inherently dangerous).
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6986
KENNETH SYNCERE RIVERA, a/k/a Kenneth Rivera, a/k/a Kenneth
D. Rivera,
Plaintiff - Appellant,
v.
BRYAN P. STIRLING, Director; TRACY WEBB, Policy Development
Office; MR. MCFADDEN, Warden; MS. MEGGET-WRIGHT, Corporal,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. J. Michelle Childs, District
Judge. (8:15-cv-02995-JMC)
Submitted: November 22, 2016 Decided: November 28, 2016
Before DIAZ and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Kenneth Syncere Rivera, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Syncere Rivera appeals the district court’s order
accepting the recommendation of the magistrate judge and denying
relief on his 42 U.S.C. § 1983 (2012) complaint. We have
reviewed the record and find no reversible error. Accordingly,
we affirm for the reasons stated by the district court. Rivera
v. Stirling, No. 8:15-cv-02995-JMC (D.S.C. June 30, 2016). We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
2
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253 Ga. 322 (1984)
320 S.E.2d 170
RASH
v.
TOCCOA CLINIC MEDICAL ASSOCIATES.
41046.
Supreme Court of Georgia.
Decided September 26, 1984.
Drew, Eckl & Farnham, W. Wray Eckl, Theodore E. G. Pound, *328 for appellant.
Whelchel, Dunlap & Gignilliat, Weymon H. Forrester, James E. Brim III, for appellee.
MARSHALL, Presiding Justice.
The appellant, Dr. James R. Rash, is a former member of the appellee partnership for medical practice in Toccoa, Georgia. Article X, Par. II of the articles of partnership, signed by Dr. Rash when he became a member in 1979, provides: "As part of the consideration for *323 this agreement, the partners hereto agree that if a partner leaves the partnership for any reason he binds himself not to engage in the practice of medicine or surgery within a radius of twenty-five (25) miles of the City of Toccoa, Georgia, for a period of three years, unless this provision be waived by the seventy-five per cent vote in writing of all of the partners. All partners further agree that this restrictive covenant is a material part of these Articles of Partnership and is reasonable as to time and place since the particular practice of the partnership is such that any of the partners as representatives of the partnership may be required to and do travel to adjoining counties in order to utilize certain special medical and surgical skills which they possess. Therefore, the partnership is doing business in an area within a twenty-five (25) mile radius of the City of Toccoa and if a former partner were to practice medicine or surgery within a twenty-five (25) mile radius and within a three (3) year period from his separation from the partnership, it would work harm to the remaining partners." (Emphases supplied.)
When the appellant gave the partnership the required written notice of his resignation from the partnership effective November 1, 1983, he expressed his intention to open a practice of obstetrics and gynecology in Demorest, Georgia (which is within 25 miles of Toccoa) in January of 1984, and to treat any patients who seek his services, including patients he has treated at the Toccoa clinic. The appellee partnership obtained an injunction which enjoined the appellant from violating the provisions of the articles of partnership quoted hereinabove, from which judgment Dr. Rash appeals.
1. Contracts which are against the policy of the law cannot be enforced, and contracts in general restraint of trade come within such classification. 1983 Ga. Const., Art. III, Sec. VI, Par. V; OCGA § 13-8-2. In determining whether covenants not to compete are such contracts in general restraint of trade, hence unenforceable, the appellate courts of Georgia have consistently held that neither the constitutional nor the statutory provisions pertinent to this subject impose an absolute bar against every kind of restrictive agreement. Howard Schultz & Assoc. v. Broniec, 239 Ga. 181 (1) (236 SE2d 265) (1977). Some covenants have been upheld and some deemed to be unenforceable. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Stidham, 658 F2d 1098 (5th Cir. 1981). In general, however, such covenants are scrutinized to determine if they are sufficiently limited in time and territorial effect and are otherwise reasonable, considering the interests to be protected and the effects on both parties to the contract.
There is a line of cases in this state beginning with Rakestraw v. Lanier, 104 Ga. 188 (30 SE 735) (1898), which define the bounds of reasonableness in covenants used in contracts involving medical practitioners. In Rakestraw, the court struck a covenant in a medical partnership *324 agreement because it was unlimited as to time. McMurray v. Bateman, 221 Ga. 240 (144 SE2d 345) (1965), involved an employment contract in which one physician employed another. The employee agreed "not to engage in the practice of medicine or surgery within a radius of 50 miles of Forest Park, Georgia for a period of three years ..." This court upheld the granting of an injunction, holding that the territorial limitation was not overly broad in that the territory included was that throughout which the plaintiff generally practiced or over which he had reasonable prospects of extending his practice, and that the three-year time limitation was valid, as much less restrictive than that earlier approved in Burdine v. Brooks, 206 Ga. 12 (55 SE2d 605) (1949).
Then, in Raiford v. Kramer, 231 Ga. 757 (204 SE2d 171) (1974), this court considered a lower court's denial of an injunction. The covenant there prohibited the employee from practicing ophthalmology in the counties of Fulton, Clayton, Cobb, DeKalb and Gwinnett for a period of two years. After holding that the question of whether the restraints imposed by such a contract are reasonable is a question of law for determination by the court, the determination was made that these restraints were reasonable as to time and territory and, therefore, the trial court erred in denying the injunction sought.
In Carroll v. Harris, 243 Ga. 34 (252 SE2d 461) (1979), this court dealt with an employment contract wherein a chiropractor employed another chiropractor with a covenant which forbade the employee to establish a practice of chiropractic within a 20-mile radius of Harris Chiropractic Center, within two years of the termination of employment. While this court refused to enforce this contract because of the breach of the employer, it did hold that the restrictions of the agreement "were not larger than necessary to protect the appellee, and were reasonable as to time and territory." Id. p. 35.
2. Counsel for the defendant-appellant seeks to distinguish the aforesaid cases by saying, among other things, that they are outdated in light of a trend toward more strict interpretation in cases (none of which deals with medical partnership agreements) such as Singer v. Habif, Arogeti & Wynne, P.C., 250 Ga. 376 (297 SE2d 473) (1982). This is not, however, an accurate appraisal of the status of the law in this area.
First, Singer did not contain a strict territorial limitation, in that the covenant there prohibited the employee (an accountant) from accepting employment or remuneration of any kind from, by, for, or in behalf of any clients of HAW (the employer) "within the territorial limitations of the Atlanta metropolitan area or any other county (in or out of the state) in which clients of HAW are located." (Emphasis supplied.) The enforcement of this covenant would restrict the former employee from a certain amount of practice anywhere in the country, *325 and would prevent a certain class of persons from seeking his services. On the other hand, the covenant in the present case does not preclude the defendant-appellant from treating any patient, including former clinic patients, so long as the treatment occurs outside the 25-mile limit. The covenant here, therefore, contains the absolute territorial restriction which is essential, and which was lacking in Singer, supra, and in Orkin Exterminating Co. v. Pelfrey, 237 Ga. 284 (1) (227 SE2d 251) (1976). "The Supreme Court of Georgia has injected a bright-line test into this area by requiring an express geographical description of the territory covered, without reference to the overall reasonableness of the limitation in light of the nature of the profession or trade involved." Merrill Lynch, 658 F2d 1098, supra, p. 1101 (emphasis in original). Moreover, there are other factors which distinguish the case at bar from Singer, Orkin, etc.
We are dealing here not with an employment contract but with a partnership agreement. Although it does not appear that the appellate courts of this state have had occasion to clearly distinguish between the two types of agreements, there are obvious differences. In a partnership agreement such as the one here, as opposed to an employment agreement, the consideration flows equally among the contracting parties. For example, when an employee agrees to subject himself to possible future restrictions, he does so in exchange for the opportunity to have the job. He really gets nothing other than the opportunity to work in exchange for giving up this aspect of his freedom. On the other hand, here a partner has not only restricted himself, but he has also exacted from each of the other contracting parties a like restriction. When Dr. Rash signed this partnership agreement, eighteen other physicians made the same concession and gave the same assurance to him as he was giving them. Had Dr. Rash decided to stay, and had one of these other doctors who had gained popularity and a good professional reputation while working at the clinic been dissuaded from going into competition with the clinic and taking paying patients with him, Dr. Rash would have been benefited. In a similar case, the Supreme Court of Oregon upheld such a covenant, calling attention to the mutual benefits and burdens involved in such an agreement. McCallum v. Asbury, 393 P2d 774, 776-7 (Ore. 1964).
The next distinction between employment agreements and partnership agreements is that it is generally true in the employer/employee relationship that the employee goes into a transaction such as this at a great bargaining disadvantage. Such would not be expected to be the case in a professional partnership arrangement, and it certainly was not the case here. See Stern, "Enforceability of Restrictive Covenants in Employment Contracts," Ga. State Bar Journal, Vol. 17, No. 3. Medical doctors are in demand. Medical doctors in the field of *326 obstetrics and gynecology are certainly in demand. This is best evidenced by the fact that Toccoa Clinic Medical Associates paid a "finders fee" in excess of $4,000 in connection with the location of Dr. Rash.
Since the employee who agrees to the covenant may have done so from an inferior bargaining position, and since the covenant may seriously impair his ability to earn a living, the courts have traditionally given greater scrutiny to restrictive covenants within employment contracts, as opposed to such covenants contained in business sales agreements. In the present case, however, neither unequal bargaining status nor impaired ability to earn a living is present. Seen in this context, the covenant does not appear to be unreasonable.
Significantly, certain of our sister states except restrictive covenants contained within partnership agreements from statutes which preclude such covenant in connection with employment agreements. See McCray v. Blackburn, 236 S2d 859 (La. 1970); Akey v. Murphy, 238 S2d 94 (Fla. 1970); Odess v. Taylor, 211 S2d 805 (Ala. 1968). That inequality of bargaining power is a determining factor in judging the reasonableness of a restrictive covenant, is illustrated by our recent decision in White v. Fletcher/Mayo/Assoc., 251 Ga. 203 (303 SE2d 746) (1983), in which we stated that "[i]f it appears that [the covenantor's] bargaining capacity was not significantly greater than that of a mere employee, then the covenant should be treated like a covenant ancillary to an employment contract, and `(a)s such, it should be enforced as written or not at all.'" Id. p. 208.
3. If it be argued that the enforcement of this restrictive covenant would be contrary to public policy because it would limit the right of potential patients in the Demorest and Habersham County area to avail themselves of Dr. Rash's services, it can be argued with at least equal conviction that this would afford countless other people in other areas, both in and outside of the state, the opportunity to have a physician in their areas. There is no reason to conclude that the obstetrical and gynecological needs of persons within a 25-mile radius of Toccoa are any greater than in many other areas of this and other states, nor is there any reason to conclude that the need for the appellant's services, in the context of this case, is sufficient to outweigh the law's interest in upholding and protecting freedom to contract and to enforce contractual rights and obligations. See, e.g., Willman v. Beheler, 499 SW2d 770 (Mo. 1973). Moreover, it should be noted in the case at bar that the appellant, in executing the covenant in question, expressly agreed that the covenant was "reasonable" and that breach of the covenant "would work harm" to the partnership. It is the policy of this state to uphold and protect valid contractual rights and obligations.
4. One of the appellant's contentions is that the covenant is unreasonable *327 in that it restricts his activities in a manner broader than necessary for the protection of the partnership. More specifically, it is contended that to restrict the "practice of medicine and surgery," which was done in this agreement, would prevent his practicing in other fields of medicine which would not necessarily be competitive with the practice of other physicians in the clinic. In McMurray v. Bateman, 221 Ga. 240, supra, we rejected a similar argument, citing the statutory definition of the practice of medicine and holding that the activity proscribed ("the practice of medicine or surgery") was "necessary to the promisee's protection," and no broader than language approved in similar prior cases. Therefore, we reject this contention.
5. The appellant contends that even if the restrictive covenant is valid, it should not be enforced against him, because the partnership breached the contract first. The breach is said to have resulted from certain recriminations, acts of professional jealousy, and allegations of incompetence toward Dr. Rash by certain partners, which made his resignation from the partnership a matter about which he had no choice, hence "involuntary." However, the evidence does not authorize a conclusion that the appellee partnership breached the agreement. Moreover, the evidence showed a spirit on the part of the partnership to resolve the disputes and disagreements among certain of the members of the obstetrics and gynecology section. Also, the partnership agreement provided a vehicle for expelling partners for cause, and the appellant did not avail himself of any right to pursue either this avenue of relief or a dissolution of the partnership. He not only submitted a letter of resignation, but also thereafter accepted all monetary benefits which the contract afforded. He cannot enjoy the benefits afforded by the contract and at the same time claim that the agreement was breached as to him.
6. With respect to the remedy, the plaintiff-appellee takes the position that it has no adequate remedy at law, and thus it has appealed to a court of equity for an injunction. We agree. Damages would be difficult to calculate, and even the awarding of same would not properly vindicate the plaintiff's rights. Injunctive relief has repeatedly been found appropriate in cases where covenants such as this have been found to be enforceable.
The trial court did not err in its judgment granting the injunction.
Judgment affirmed. All the Justices concur, except Smith and Bell, JJ., who dissent.
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486 F.2d 1097
Michael T. EARLES, Appellee,v.UNION BARGE LINE CORPORATION, Appellant,Billy Leroy McNAMER, Appellee,v.UNION BARGE LINE CORPORATION, Appellant.
Nos. 72-1313, 72-1314.
United States Court of Appeals,Third Circuit.
Submitted Feb. 12, 1973.Decided May 23, 1973.As Amended Aug. 9, 1973.
1
Harry Alan Sherman, Pittsburgh, Pa., for appellees.
2
Bruce R. Martin, Pittsburgh, Pa., for appellant.
3
Before VAN DUSEN and ADAMS, Circuit Judges, and BRODERICK, District Judge:
OPINION OF THE COURT
4
BRODERICK, District Judge.
5
This is an appeal from a judgment entered on May 4, 1971 in the United States District Court for the Western District of Pennsylvania after a jury returned a verdict based on unseaworthiness in favor of the plaintiffs.
6
The pertinent facts are that the plaintiffs, Michael T. Earles and Billy Leroy McNamer, were citizens of Kentucky and were employed on May 8, 1967, the date of their injuries, by the Walker Boat Yard, Inc. (hereinafter referred to as Walker) located in Paducah, Kentucky. Walker, among other things, serviced, stored and cleaned barges for companies which did business along the Ohio River. Plaintiff Earles had been employed full time by Walker for approximately one month prior to May 8, 1967 as a maintenance man to perform miscellaneous harbor work, such as moving and cleaning barges. His job requirements consisted in knowing how to push a broom or to use a hose, and his duties involved mainly work aboard either grain or salt barges which were either open or had roll-type covers on them. Plaintiff McNamer had worked for Walker for approximately eight months prior to the incident of May 8, 1967, and his duties included helping to clean open and roll-type barges containing salt and other freight, helping to stack covers, and helping as a deck hand aboard one of Walker's boats. Neither Earles' nor McNamer's duties prior to May 8, 1967 had included working inside of a chemical barge. Prior to May 8, 1967, the records of UBL (Union Barge Line) 903 show that this barge had been loaded with toluene1 at Houston on April 5, 1967, had been discharged of that chemical on April 28, 1967, and was delivered empty to Walker on the morning of May 6, 1967.2 Walker had been engaged by the defendant Union Barge Line Corporation (hereinafter referred to as Union Barge), a citizen of Pennsylvania, to perform a "contract to strip the barge of old cargo, cold water wash it, and and [sic] pump it clean."3 For this purpose, UBL-903 was in the possession and control of Walker from May 6 to May 10, 1967. In the course of their duties on May 8, 1967, plaintiffs were instructed to go over and clean up a barge. Plaintiffs, and another Walker employee named Jimmy Woodford, were supplied with a flat, two pumps, some dip buckets and a fire hose and nozzle. The three men were taken by Walker's harbor boat, which towed a crane barge and the flat, out to Owens Island where UBL-903 was tied up. Owens Island is situated approximately a mile and a half from Walker's at the junction of the Ohio and Tennessee Rivers. Walker had a fleet of barges tied off Owens Island, and first two other barges had to be repositioned in order to gain access to UBL-903. The plaintiffs and Mr. Woodford then tied their flat to UBL-903 and boarded it with their equipment. UBL-903 was approximately 195 feet long, 35 feet wide and 11 feet deep and contained six chemical tanks, three tanks along each side. All of the hatch covers to these tanks were open when the three men arrived at the barge; there was no sign of any kind on the barge. The method of cleaning the tanks of old cargo consisted of having one man enter a tank through the hatch, descend a metal ladder approximately eleven feet long which was attached to the side of the tank, hose the sides and floor of the tank with water pumped from the Ohio, pump back out the wash water, dip the balance of the wash water out with a bucket after the pump had lost its prime, and then exit the tank. After the three men had taken turns in entering some of the tanks and doing the cleaning, their foreman Everett Livingston returned, looked in the tanks and told them to "[r]inse it down and then go down and dip the sump wells in the bottom, and we will be back to get you." One man would be in a tank for a total time of approximately twenty minutes, and there was a delay of approximately twenty minutes from the time one tank was finished being cleaned and the time they began to clean the next tank, which time was used to reposition the flat and equipment. After cleaning several tanks in this fashion, plaintiff Earles entered a tank to do the hosing, and Jimmy Woodford followed into the tank behind Earles to feed him the fire hose. Immediately after Earles and Woodford went into the tank, they breathed the poisonous fumes from the old cargo in that tank. Within twenty to thirty seconds after entering, they were overcome by the fumes, lost conciousness and fell on the floor of the tank with Earles' body lying in a puddle of the old chemical cargo. Plaintiff McNamer entered the tank to find out why the men were acting strangely, tried to rescue them and breathed the poisonous fumes. McNamer, however, was able to reach the ladder, climb out of the tank and flag down a passing boat before he, too, was overcome. Plaintiffs were treated for toluene exposure at a local hospital. They subsequently filed separate suits for their personal injuries, which suits were consolidated for the purposes of trial. Following a jury trial based upon diversity of citizenship on the issue of unseaworthiness of the vessel, verdicts were awarded each plaintiff and judgments entered in the amounts of $7,000.00 for plaintiff Earles and $5,500.00 for plaintiff McNamer. Union Barge now presents this appeal claiming that, as a matter of law, the evidence in the case does not support a finding of unseaworthiness on the ground that a shipowner's warranty of seaworthiness does not include the obligation to furnish a reasonably safe place for a seaman to perform his chores.
7
In maritime law, the locality of the tort traditionally governs the scope of maritime jurisdiction. While state law governs torts occurring on land,4 and piers and docks are extensions of this land,5 the gang plank serves generally as the dividing mark with maritime law being applied to those torts which occur on navigable waters,6 when the wrong bears a significant relationship to traditional maritime activity,7 or which occur on land but are caused by a ship on navigable water.8 Navigable waters are those waters in the United States which afford a channel for useful commerce.9 The Ohio River, used daily for the transportation to market of various products of this country, is a navigable water, and, therefore, maritime law governs a tort which occurs on the Ohio River. Maritime law, additionally, reaches "[e]very species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters. . . ."10 In the instant case, not only were plaintiffs injured upon navigable waters, they were injured while aboard a barge resting on a navigable water. A vessel has been defined to include "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water."11 A barge, although without motive power, has been held to be a vessel within admiralty jurisdiction12 and within the meaning of the Longshoremen's and Harbor Workers' Compensation Act13 since it is a means of transportation by water.14 Therefore, maritime law governs the accident which plaintiffs suffered while aboard the barge on the Ohio River.
8
The defendant barge owner takes the position that the barge was not unseaworthy15 and that this Court should so determine this as a matter of law. Defendant contends that the poisonous gas in the tank of the barge is a concomitant of chemical cargoes and that the very purpose of this tank barge was to carry such chemical cargoes.
9
A review of the history of the present day doctrine of the warranty of seaworthiness owed by a vessel or its owner to a seaman, or other person doing work on board the vessel of a type which traditionally was performed by a seaman, has been adequately set forth in other opinions.16 In brief, early cases in the maritime law were concerned with the concept of unseaworthiness only as it concerned the right of a mariner to sue for his wages or as it related to the rules covering maritime insurance and the carriage of goods by sea. Under shipping articles, the law implied that the captain would furnish the mariner at the commencement of a voyage with a seaworthy ship, one which was "furnished with all the necessary and customary requisites for navigation."17 Therefore, if a ship proved unseaworthy when she entered upon the voyage, the seamen were not bound by their contract, could refuse to continue the voyage, and could compel the master to return the ship to port.18 The test of seaworthiness in the late nineteenth century was thus stated to be "whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport."19 In this respect, the warranty was said to be absolute and non-dependent upon either the knowledge of its owner or the diligence in providing a seaworthy vessel. The fact that a vessel was staunch and fit did not matter; the character of a ship in determining unseaworthiness was measured by reference to the particular cargo to be transported.20 In the early twentieth century, The Osceola21 extended the concept of unseaworthiness to apply to personal injuries sustained by a mariner on board the vessel. From that time forward until today, the case law in regard to the unseaworthiness of a vessel has blossomed from hundreds of suits into certain accepted principles of law. First of all, unseaworthiness in maritime law is a condition22 of the vessel which proximately causes injuries to a seaman or one performing a seaman's duties. Since the liability for unseaworthiness is predicated without regard to fault or the use of due care,23 it is irrelevant to the shipowner's liability how that condition came into being,24 whether there was complete control over the instrumentality causing the injury,25 or whether the shipowner had actual or constructive knowledge of the condition.26 Unseaworthiness has been found when consumable supplies caused the injury27 and when the ship's crew28 or gear29 were unfit. It applies whether the condition is temporary30 or permanent. But, where there is no defective condition of the equipment, appurtenances, crew, cargo or gear of the ship, then no liability for unseaworthiness can exist.31 The doctrine of the warranty of seaworthiness, in essence, means that "things about a ship, whether the hull, the decks, the machinery, the tools furnished, the stowage, or the cargo containers, must be reasonably fit for the purpose for which they are to be used."32
10
Since this Court is being asked by the appellant to determine as a matter of law that UBL-903 was not unseaworthy under the evidence presented in the court below, we have considered Albanese v. N. V. Nederl. Amerik Stoomv. Maats,33 Jones v. Den Norske Amerikalinje A/S,34 and Grigsby v. Coastal Marine Service of Texas, Inc.35 Albanese concerned the injuries incurred by a longshoreman while he was working in the hold of defendant's vessel which contained poisonous carbon monoxide fumes. In the part of the case dealing with the claim between the longshoreman and the shipowner, which claim was unaffected by the subsequent history of the case, the Second Circuit stated that:
11
The jury had been instructed that the owner would be liable, with or without knowledge if the ship had become unseaworthy because of a dangerous condition created by noxious fumes in the hold. This was correct. . . .36
12
This Circuit sustained Albanese's theory of unseaworthiness in Jones, wherein a longshoreman brought suit against a vessel owner for damages because of injuries sustained when he breathed carbon monoxide fumes while working in the hold.37 Additionally, the Fifth Circuit in Grigsby affirmed a finding that a barge was unseaworthy where the plaintiff entered a tank of the barge without knowledge that the tank contained poisonous carbon monoxide fumes. It, therefore, becomes apparent, after an examination of Albanese, Jones and Grigsby and after an examination of the facts presented at the trial of this case, this Court cannot hold as a matter of law38 that the UBL-903 was not unseaworthy.
13
In the instant case the evidence introduced at trial showed that the barge in question had carried toluene prior to its delivery to Walker, that plaintiffs were overcome after breathing poisonous fumes in a tank on the barge, and that they were subsequently treated medically for exposure to those fumes. Plaintiffs testified that they had been told only that they were to go over to Owens Island and clean up a barge. There were no signs on the barge to indicate what chemical the barge had been carrying, and the hatch covers to the tanks were lying open when the men arrived at the barge. Had it appeared at the trial that Walker knew it was being hired to remove poisonous fumes and that this knowledge was communicated to the plaintiffs who were employees of Walker, then plaintiffs might not have been entitled to rely upon a warranty of seaworthiness of the vessel as to that defect which they were being paid to remove.39 As was stated by the Grigsby court, "[T]here is no warranty that the vessel is seaworthy with respect to the unseaworthy condition which is directly responsible for bringing aboard the persons claiming the benefit of the warranty."40 There was no evidence presented, however, that Walker knew it was being hired to remove poisonous fumes from a tank on UBL-903; and plaintiffs had neither knowledge of the prior contents of the tank nor knowledge that the tank contained any poisonous fumes.
14
Accordingly, there is no error in the Orders of the district court which denied defendant's motions for summary judgment and for a directed verdict.
15
Generally, the question of unseaworthiness of a vessel is a question of fact to be determined by a jury.41 Had the jury been correctly charged on the law of unseaworthiness in the court below, we would not disturb the verdict in favor of the plaintiffs. The trial judge charged the jury that:
16
A ship owner's warranty of seaworthiness includes furnishing a reasonably safe place for a seaman or one working aboard the barge to perform his chores (emphasis added).42
17
In essence, the jury was told that the shipowner owed the duty to plaintiffs to provide a reasonably safe place to work or to perform their chores, and, therefore, if they found the tank aboard UBL-903 to be an unsafe place to work or to perform chores, the barge owner would be liable to plaintiffs for breach of the warranty of seaworthiness.
18
The duty of the vessel owner to furnish a reasonably safe place for a seaman or one working aboard the barge to perform his chores is clearly a duty of care, the breach of which results in liability for negligence when the breach proximately causes injury to a foreseeable person. The breach of the duty to use reasonable care to provide a safe place to work, without more, does not necessarily result in liability for unseaworthiness. The language used by the Supreme Court in cases which discuss the negligence of the vessel owner or the stevedore-employer are illustrative of the fact that the duty to use reasonable care to provide a safe place to work is found in the law of negligence and not in the law of the warranty of seaworthiness. For instance, in The M/V "Tungus" v. Skovgaard,43 the Court commented upon a negligence claim where "the law imposes upon [the ship and its owners] a duty of exercising ordinary care to provide [an employee of the company hired to discharge the ship's cargo] with a reasonably safe place to carry on his work of repairing the pump;44 in Michalic v. Cleveland Tankers, Inc.45 the Court speaks about a Jones Act claim of "negligent failure to provide [a crew member] with a safe place to work";46 in West v. United States,47 the Court said "[o]f course, one aspect of the shipowner's duty to refrain from negligent conduct is embodied in his duty to exercise reasonable care to furnish a safe place to work;"48 and, finally we see that in Atlantic Transport Co. v. Imbrovek49 a stevedore received a verdict in negligence for the failure of his employer to see that he had a safe place in which to work.
19
The United States Supreme Court has clearly and repeatedly stated that "the duty to provide a seaworthy ship depends not at all upon the negligence of the shipowner or his agents,"50 the shipowner's "duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care,"51 and that "liability based upon unseaworthiness is wholly distinct from liability based upon negligence."52 We interpret these statements to mean that the Supreme Court has not incorporated or included within the law of unseaworthiness those duties of care which a shipowner owes to persons working aboard the vessel, the breach of which, when the breach proximately causes injuries, would result in liability to the shipowner for negligence. The Court has not melded the duty to provide a seaworthy vessel with the duty to provide a safe place to work, but has repeatedly stated that the two concepts of seaworthiness and negligence should remain separate and distinct.
20
A good explanation as to why the concepts of negligence cannot be incorporated into the law of unseaworthiness was set forth by the Fifth Circuit in Cox v. Esso Shipping Company53 as follows:
21
In view of another trial, we think it appropriate to point out that where, as is now so common, the seaman's case is for unseaworthiness and negligence under the Jones Act, the standards of each must be clearly distinguished.
22
One is an absolute duty, the other is due care. Where, as this charge did, the ultimate issue of seaworthiness of the gear was in terms of "reasonably suitable" for the work intended, and other issues, such as defendant's negligence and plaintiff's contributory negligence and the distinctly unnautical form of "unavoidable accident" speak in terms of due care, i. e., what a reasonably prudent person would do, there is a great hazard that the jury will get the impression that all is to be tested by one gauge. Of course, that is not so. The owner has an absolute duty to furnish reasonably suitable appliances. If he does not, then no amount of due care or prudence excuses him, whether he knew or could have known, of its deficiency at the outset or after use. In contrast, under the negligence concept, there is only a duty to use due care, i. e., reasonable prudence, to select and keep in order reasonably suitable appliances. Defects which would not have been known to a reasonably prudent person at the outset, or arose after use, and which a reasonably prudent person ought not to have discovered would impose no liability.54
23
We have been unable to locate any opinion by either the United States Supreme Court or by this circuit which has stated that the separate liabilities for unseaworthiness and negligence are to be considered a single doctrine with the respective duties of care found in the law of negligence being incorporated into the duty of the shipowner to provide a seaworthy vessel. Indeed, the duty to provide a seaworthy vessel, for which the shipowner may be liable in unseaworthiness, differs considerably from the duty of care owed by the shipowner to others working on or around the vessel.55 The former involves the duty of the shipowner to provide things about the ship which are in a condition reasonably fit for the purpose for which they are to be used, while the latter involves the breach of a duty of care which results in liability in negligence. This separation of concepts remains even though it is conceivable that both duties may have been breached by the same occurrence.
24
We consider it crucial that the concepts of unseaworthiness and negligence should not be merged in a case such as this where the vessel owner was out of possession and control of the barge when the injuries occurred, where the sole issue presented to the jury was whether the vessel was unseaworthy, and where there was no claim of negligence. As was stated in West v. United States:56
25
Of course, one aspect of the shipowner's duty to refrain from negligent conduct is embodied in his duty to exercise reasonable care to furnish a safe place to work. But we do not believe that such a duty was owed under the circumstances of this case. Petitioner overlooks that here the respondent had no control over the vessels, or power either to supervise or to control the repair work in which petitioner was engaged. We believe this to be decisive against both aspects of plaintiffs' dual theory. . . . It appears manifestly unfair to apply the requirement of a safe place to work to the shipowner when he has no control over the ship or the repairs, and the work of repair in effect creates the danger which makes the place unsafe.57
26
The duty of care of the vessel owner may vary in regard to the employees of the independent contractor depending upon the jury findings as to when the defective condition arose and the knowledge, if any, which the owner had of the defective condition. There was no evidence presented at the trial of this case as to whether the barge owner or Walker knew of the existence of fumes in the tank of UBL-903. This circuit adopted the reasoning of West in Bryant v. National Transport Corp.58 where recovery based upon negligent failure of a shipowner to provide an employee of a shipyard with a safe place to work was denied where the cause of the accident was either the defective condition of the independent contractor's shipyard's equipment or its careless use by the contractor's employees and where the shipowner was not in possession or control of the area or the activity in which the accident occurred.
27
The trial court in this matter appears to have relied upon Venable v. A/S Det Forenede Dampskibsselskab59 for its charge that the shipowner's warranty of seaworthiness included the duty to provide a reasonably safe place for a seaman to perform his chores. Venable was a case tried on the issues of both negligence and unseaworthiness, and the Fourth Circuit discussed both concepts in its opinion. While the Venable court did state that "operational negligence has been subsumed under the doctrine of unseaworthiness, and a trial court's instructions should no longer attempt to distinguish between the two,"60 the United States Supreme Court in Usner61 has since then reiterated that operational negligence has not been subsumed under the doctrine of unseaworthiness. We, therefore, today decide that under the facts of this case the warranty of seaworthiness does not include the duty to provide a reasonably safe place for a seaman to perform his chores, and it was reversible error to use the above-quoted language in the charge (page 1104, supra). The general maritime law's doctrine of seaworthiness of the vessel is separate and distinct from the general law of negligence, and the two should not have been combined by the trial court in this case. Whether the barge was unseaworthy depends solely upon whether it was or was not reasonably fit for the purpose for which it was to be used, and this was the sole issue before the jury. We, therefore, conclude that under the facts of this case an instruction to the jury that the warranty of seaworthiness "includes" furnishing a reasonably safe place for a seaman or one working aboard the barge to perform his chores, was not appropriate. We, therefore, reverse the judgment and remand for a new trial62 on the issue of liability only in accordance with this opinion.63 The trial judge may make the determination to include in such new trial the issue of damages unless "such action appears to the court inconsistent with substantial justice." F.R.Civ.P. 61.
1
"Toluene is a vital or 'critical' material in wartime, because TNT, trinitrotoluene . . . is undoubtedly the principal explosive in modern warfare. Toluene is used extensively as a solvent in the rubber, lacquer, and munition industries. It is poisonous when inhaled." A. Lowy & B. Harrow, An Introduction to Organic Chemistry, 242-43 (7th Ed. 1954)
2
Defendant's Exhibit A, an extract from the barge record of Union Barge Line (UBL)-903, provides in pertinent part that:
UBL-903 departed Shell Oil at Houston loaded with toluene via DIXI Carriers on 4/5/67 at 2305 and was delivered to Baton Rouge 4/13/67 at 1530.
Picked up by Towboat MARINER at Baton Rouge on 4/16/67 at 1000 and elivered [sic] to Walkers fleet, Paducah, Kentucky, via tug THUNDERBIRD on 4/21/67 at 0910.
Picked up at Walkers by Igert, Inc. on 4/23/67 at 0945 and delivered to TYNER for discharge on 4/28/67 at 1345.
Empty Barge UBL-903 picked up at Tyner by Igert, Inc. on 5/2/67 at 2300 and delivered to Walkers, Paducah on 5/6/67 AM.
Barge was to be stripped and cold water washed.
Picked up by Igert, Inc. on 5/10/67 PM and delivered to Calvert City 5/10/67 at 1900.
N.T. 118-19.
3
N.T. 116-17. The trial transcript does not reveal any evidence as to the knowledge of either Walker or Union Barge concerning the presence of poisonous fumes in the tanks of UBL-903
4
State Industrial Comm'n. v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933 (1922)
5
Nacirema Operating Co. v. Johnson, 396 U.S. 212, 214-215, 90 S.Ct. 347, 349-350, 24 L.Ed.2d 371 (1969)
6
Victory Carriers, Inc. v. Law, 404 U.S. 202, 205 & n. 92 S.Ct. 418, 421 & n. 2, 30 L.Ed.2d 383 (1971)
7
Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) (Absent legislation to the contrary, there is no federal admiralty jurisdiction over aviation tort claims arising from flights on land-based aircraft between points within the continental United States even though an airplane crashed into the navigable waters of Lake Erie, since the wrong bears no relationship to traditional forms of maritime commerce and navigation
8
The Extension of Admiralty Jurisdiction Act, 46 U.S.C. Sec. 740 provides that:
The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.
This Act was applied by the United States Supreme Court in Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963).
9
The Montello, 87 U.S. 430, 20 Wall. 430, 22 L.Ed. 391 (1874)
10
Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 60, 34 S.Ct. 733, 734, 58 L.Ed. 1208 (1914)
11
1 U.S.C. Sec. 3
12
The Dick Keys, 7 Fed.Cas. p. 678 (No. 3,898) (C.C.S.D.Ohio 1863)
13
33 U.S.C.A. Sec. 901 et seq. The Longshoremen's Act is the Congressional provision for industrial accident coverage applicable to maritime employees who could not, under Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), be covered by State Workmen's compensation statutes. The Act applies to all injuries and deaths "occurring upon the navigable waters of the United States, (including any dry dock)." 33 U.S.C.A. Sec. 903(a)
14
Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931 (1944)
15
Union Barge has not argued, either in the Court below or in this appeal, that appellees were not performing the traditional work of seamen when they fell victims to the poisonous fumes. In Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), the United States Supreme Court extended the warranty of seaworthiness of the vessel to a stevedore employee of an independent contractor who was injured while working aboard the ship. The Court again applied the doctrine of unseaworthiness in Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953), when recovery againt the shipowner was permitted by a person who was injured while doing carpentry work on the grainloading equipment aboard the ship. Since Sierecki and Hawn, the warranty of seaworthiness of a vessel has been held to encompass other harbor workers such as repairmen, Lawlor v. Socony-Vacuum Oil Co., 275 F.2d 599 (2nd Cir. 1960), cert. denied, 363 U.S. 844, 80 S.Ct. 1614, 4 L.Ed.2d 1728 (1960), and Shipcleaners, Christiansen v. United States, 192 F.2d 199 (1st Cir. 1951). "Most-perhaps all-harbor workers are seamen and thus entitled to the maritime remedies formerly restricted to the ship's company-or at least to the recovery of damages for unseaworthiness", G. Gilmore & C. Black, Jr., The Law of Admiralty, Sec. 6-53, at 358 (1957), as long as they are performing a "service absolutely necessary to enable the ship to discharge its maritime duty." Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 62, 34 S.Ct. 733, 735, 58 L.Ed. 1208 (1914). If a person injured aboard a vessel was not performing the type of work traditionally done by the ship's crew, however, he may not recover from the shipowner for unseaworthiness of the vessel. United New York and New Jersey Sandy Hook Pilots Association v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959); Bryant v. National Transport Corp., 467 F.2d 139 (3d Cir. 1972)
16
See e. g., Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944)
17
Dixon v. The Cyrus, 7 Fed.Cas. pp. 755, 757 (No. 3,930) (D.C.D.Pa.1789)
18
The Moslem, 17 Fed.Cas. p. 894 (No. 9,875) (D.C.S.D.N.Y.1846)
19
The Silvia, 171 U.S. 462, 464, 19 S.Ct. 7, 8, 43 L.Ed. 241 (1898)
20
The Southwark, 191 U.S. 1, 24 S.Ct. 1, 48 L.Ed. 65 (1903)
21
189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903). In The Osceola, the United States Supreme Court stated as the second proposition of law:
2
That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply in order the proper appliances appurtenant to the ship
Id. at 175, 23 S.Ct. at 487.
22
Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S.Ct. 514, 517, 27 L.Ed.2d 562 (1971). The condition of unseaworthiness must necessarily be a relative one, dependent in each instance upon the circumstances surrounding "the things about the ship" and the purpose for which they are to be used. Walker v. Sinclair Refining Co., 320 F.2d 302, 304 (3d Cir. 1963)
23
Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927 (1922)
24
Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S.Ct. 514, 517, 27 L.Ed.2d 562 (1971)
25
Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954), aff'g 205 F.2d 478 (9th Cir. 1953)
26
Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960)
27
Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927 (1922)
28
Boudoin v. Lykes Brothers S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955)
29
Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944)
30
Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960)
31
Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971). Usner stands for the proposition that a shipowner cannot be held liable for injuries to a longshoreman, which injuries were not caused by any defective condition of the ship or its gear, but, instead, were proximately caused by a fellow-longshoreman's single, instantaneous and unforeseeable act of negligence. In Radovich v. Cunard Steamship Co., 364 F.2d 149 (2nd Cir. 1966), the court spoke of the act-condition or operational negligence-unseaworthiness dichotomy
32
Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 213, 83 S.Ct. 1185, 1190, 10 L.Ed.2d 297 (1963)
33
346 F.2d 481 (2d Cir. 1965), rev'd on other grounds, 382 U.S. 283, 86 S.Ct. 429, 15 L.Ed.2d 327 (1965)
34
451 F.2d 985 (3d Cir. 1971)
35
412 F.2d 1011 (5th Cir. 1969), cert. dismissed, 396 U.S. 1033, 90 S.Ct. 612, 24 L.Ed.2d 531 (1970)
36
346 F.2d 481, 483 (2d Cir. 1965)
37
See Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970 (1st Cir. 1972). See also Friend v. Tropis Co., 382 F.2d 633 (4th Cir. 1967), cert. denied 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 872 (1968) (implies that had static electricity in the hold emanated from the ship, the vessel would be unseaworthy, however, when the static electricity did not emanate from the ship but was caused by entry into the ship of an isolated unforeseeable causative agent from without the ship [as in Morales v. City of Galveston, 370 U.S. 165, 82 S.Ct. 1226, 8 L.Ed.2d 412 (1962)], there was no warranty of seaworthiness which had been breached by the shipowner)
38
It is not contended in the instant case that the status of the barge, the pattern of repairs or the extensive nature of the work to be done, West v. United States, 361 U.S. 118, 122, 80 S.Ct. 189, 192, 4 L.Ed.2d 161 (1959), were such that the warranty of seaworthiness should be held as a matter of law not to apply to Earles and McNamer. A person injured aboard a vessel, however, may not recover for unseaworthiness if the ship was undergoing major repairs and was not in navigation. See West, supra; Bryant v. National Transport Corp., 467 F.2d 139 (3d Cir. 1972); McDonald v. United States, 321 F.2d 437 (3d Cir. 1963)
39
Bruszewski v. Isthmian S.S. Co., 163 F.2d 720 (3d Cir. 1947), cert. denied, 333 U.S. 828, 68 S.Ct. 451, 92 L.Ed. 1113 (1948). In Gindville v. American-Hawaiian S.S. Co., 224 F.2d 746 (3d Cir. 1955), we explained that Bruszewski meant "no more than if a carpenter is called in to repair a hole in a roof he cannot complain that a roof with a hole in it is an unsafe place to work." Id. at 747
40
Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011, 1030 (5th Cir. 1969)
41
Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944); Siderewicz v. Enso-Gutzeit O/Y, 453 F.2d 1094 (2nd Cir. 1972)
42
N.T. 144. Substantially the same language is used in the district court's opinion denying defendant's motion for summary judgment. Earles v. Union Barge Line Corp., 321 F.Supp. 1329, 1330 (W.D.Pa.1970). The case cited in support of this proposition is Venable v. A/S Det Forenede Dampskibsselskab, 399 F.2d 347, 353 (4th Cir. 1968)
43
358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959)
44
Id. at 594, 79 S.Ct. at 508
45
364 U.S. 325, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960)
46
Id. at 331, 81 S.Ct. at 11
47
361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959)
48
Id. at 123, 80 S.Ct. at 193
49
234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208 (1914)
50
Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 544, 80 S.Ct. 926, 930, 4 L.Ed.2d 941 (1960)
51
Id. at 549, 80 S.Ct. at 932
52
Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S.Ct. 514, 517, 27 L.Ed.2d 562 (1971)
53
247 F.2d 629 (5th Cir. 1957)
54
Id. at 637
55
See, e. g., Bryant v. National Transport Corp., 467 F.2d 139 (3d Cir. 1972); Ward v. Union Barge Line Corp., 443 F.2d 565 (3d Cir. 1971); Knox v. United States Lines Company, 294 F.2d 354 (3d Cir. 1961)
56
361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959)
57
Id. at 123, 80 S.Ct. at 193
58
467 F.2d 139 (1972). See generally Mesle v. Kea S.S. Corp., 260 F.2d 747 (3d Cir. 1958), cert. denied, 359 U.S. 966, 79 S.Ct. 875, 3 L.Ed.2d 834 (1959) (shipowner's duty of care is to exercise reasonable care to maintain the vessel in a safe condition for a business invitee, with due regard for the purpose of the presence of the business invitee)
59
399 F.2d 347 (4th Cir. 1968)
60
Id. at 351
61
400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971). Prior to Usner, the Fifth Circuit had rejected the idea of "instant unseaworthiness," holding that operational negligence of an independent contractor's employee which occurred at the moment of injury to a co-worker did not render the vessel unseaworthy. Antoine v. Lake Charles Stevedores, Inc., 376 F.2d 443 (5th Cir.), cert. denied, 389 U.S. 869, 88 S.Ct. 145, 19 L.Ed.2d 146 (1967) (cause of accident was concurrent negligence of plaintiff and co-worker). Accord, Robichaux v. Kerr McGee Oil Indus. Inc., 376 F.2d 447 (5th Cir. 1967). Although Mascuilli v. United States, 387 U.S. 237, 87 S.Ct. 1705, 18 L.Ed.2d 743 (1967) created confusion in some courts such as the Fourth Circuit in Venable v. A/S Det Forenede Dampskibsselskab, 399 F.2d 347 (4th Cir. 1968) as to whether the defense of operational negligence was now no longer valid so that the shipowner could be held liable for "instant unseaworthiness" resulting from the single and instantaneous isolated act of negligence which proximately caused personal injuries, the Fifth Circuit in Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011, 1033 (5th Cir. 1969) continued to reject any idea that "the very finding of operational negligence is a simultaneous finding of unseaworthiness." And, in Luckenbach Overseas Corp. v. Usner, 413 F.2d 984, 985 (5th Cir. 1969), aff'd 400 U.S. 494, 91 S.Ct. 514 (1971), the Fifth Circuit relied upon its decision in Grigsby when it decided in the negative the issue of "whether a ship is rendered unseaworthy as a result of the instantaneous negligence of stevedores, this negligence resulting in the injury of another stevedore, when all the equipment and appurtenances aboard the ship are admittedly in a seaworthy condition."
62
Even though Union Barge has withdrawn its motion for a new trial, we can properly grant a new trial. See Slaughter v. Philadelphia National Bank, 417 F.2d 21, 33 at n. 22 (3d Cir. 1969); 28 U.S.C. Sec. 2106
63
The other issue raised by the appeal as to whether the barge owner has the status to ascertain the amount of the liens for Longshoremen's Act payments and benefits and to have the judgment altered or amended to protect the lien need not be decided
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551 F.3d 942 (2008)
Julius Recardo YOUNG, Petitioner-Appellant,
v.
Marty SIRMONS, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
No. 07-5130.
United States Court of Appeals, Tenth Circuit.
December 16, 2008.
*944 Steven M. Presson of Presson Law Office, Norman, OK, for Petitioner-Appellant.
Seth S. Branham, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, with him on the brief), Oklahoma City, OK, for Respondent-Appellee.
Before HENRY, Chief Judge, BRISCOE, and LUCERO, Circuit Judges.
BRISCOE, Circuit Judge.
In 1995, Julius Recardo Young was convicted in Oklahoma state court of two counts of first degree murder for beating to death a six-year old child and the child's mother. Young was sentenced to death for these murders. He appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I.
Factual background
The relevant underlying facts of this case were outlined in detail by the Oklahoma Court of Criminal Appeals (OCCA) in addressing Young's direct appeal:
Julius Recardo Young was convicted of murdering his girlfriend's daughter and six year old grandson. The murders occurred two days after his girlfriend, Joyslon Edwards, advised him she wanted to cool their relationship, and he would not get a key to her new apartment. She was not giving him a key, because she wanted her daughter and grandson to "feel safe" when they visited her. They did not like Young. Young had a key to the apartment Edwards had been sharing with her daughter, Joyland Morgan, and her grandson, *945 Kewan Morgan. The day before the murders Edwards demanded the key from Young, but he did not return it.
Joyland and Kewan Morgan were beaten to death in their Tulsa apartment on October 1, 1993. Their wounds indicated the murder weapon was a blunt instrument similar to a baseball bat, but the murder weapon was never found. Ms. Morgan sustained defensive wounds to her hands and arms, and at least thirteen blows to her face and head. These blows broke her jaw, tore open her scalp, and fractured her skull. She was found slumped against a living room wall. Kewan Morgan died in his bed. He sustained massive head fractures caused by two separate blows.
Every night before she went to bed Joyland Morgan secured her front door with two locks and a security chain. The intruder opened both locks with a key and pushed through the security chain, breaking it. A piece of the broken chain was missing from the apartment.
No eye-witnesses were found. However, a downstairs neighbor was awakened at 3:40 a.m. by a single loud bump from Morgan's apartment. Joyslon Edwards testified she saw a baseball bat in Young's trunk the night before the murders, but the next day it was gone.
Young always drove Edwards to work and the day of the murders he arrived at 4:15 a.m., earlier than usual. Edwards asked him for change so she could use the vending machines at work. When Young pulled out the contents of his pocket, Edwards saw a piece of security chain similar to the one she had installed on her daughter's door. Later that day when Edwards learned of the murders, she reported this evidence to the police.
Young lived with his mother at the time, and the police obtained a warrant to search the mother's home. Edwards told them what Young had worn the previous evening. The police recovered the shoes described by Edwards and these bore a visible spot of blood. Young accompanied the police during the search. He volunteered the drop was fish blood. DNA testing revealed the drop was human blood consistent with that of Joyland and Kewan Morgan. The police also recovered a freshly laundered shirt which tested positive for blood when it was exposed to luminal [sic].
Young v. State, 992 P.2d 332, 336-37 (Okla. Crim.App.1998) (Young I) (internal paragraph numbers omitted).
State court proceedings
On February 22, 1994, Young was charged by information in the District Court of Tulsa County, Oklahoma, with two counts of first degree murder (under alternative theories of malice aforethought and felony murder) and one count of first degree burglary. On May 5, 1994, the State filed a bill of particulars asserting that Young should be punished by death for the murder offenses "due to and as a result of" four aggravating circumstances: (1) "The defendant knowingly created a great risk of death to more than one person"; (2) "The murder was especially heinous, atrocious, or cruel"; (3) "The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution"; and (4) "The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."[1] State Court ROA, Vol. I at 41.
*946 On June 17, 1994, Young's counsel presented to the state trial court, during a motions hearing, a pleading entitled "Application for Psychological Evaluation and Permission to Interview Defendant."[2]Id. at 70; Tr. of Jun. 17, 1994 Motion Hearing at 14. The pleading sought authorization from the state trial court to allow two licensed professional counselors[3] to interview Young and conduct a psychological evaluation. As a basis for the request, the pleading stated that "[i]t [wa]s necessary, due to the very nature of this case, that the Defendant be evaluated prior to the time of trial." State Court ROA, Vol. I at 70. When asked by the state trial court during the hearing what the purpose of the requested evaluation was, Young's counsel stated that it was not for purposes of developing an insanity defense, but rather "to make certain that the defendant is psychologically and mentally stable at this point in time of the proceedings and at some point in time it may be necessary even for mitigation or defense in the fact that he didn't fit the personality to do the same." Tr. of Jun. 17, 1994 Motion Hearing at 15. The state trial court denied the motion "as being premature...." Id.
On September 21, 1994, Young filed a "Notice of Mitigation in the Event of Conviction" that listed nine witnesses who would testify in mitigation in the event Young was convicted of one or both murders. State Court ROA, Vol. I at 83. The notice further stated that, "in the event of a conviction," "[e]vidence w[ould] be introduced as a matter of law to generalities and specifics of the good person that Julius Young ha[d] been." Id. at 84. On September 30, 1994, Young filed a "Supplement to Notice of Mitigation in the Event of Conviction" stating that, of the nine witnesses listed in the original notice, the first seven would "testify substantially as to generally the good things that [Young] ha[d] done and their belief concerning that he [wa]s not a future danger to the community, along with past good deeds." Id. at 85. The Supplement further indicated that the eighth and ninth witnesses listed in the original "Notice," i.e. the two licensed professional counselors that were originally listed in Young's application for psychological evaluation, would testify regarding the results of psychological testing on Young. Id. According to the state court record, however, Young's counsel never renewed their application for psychological evaluation. Thus, the two licensed professional counselors listed as witnesses in the Supplement to Notice of Mitigation never interviewed or evaluated Young.
The case proceeded to trial on September 5, 1995. At the conclusion of the first-stage proceedings, the jury found Young guilty of two counts of first degree malice aforethought murder (Counts I and II of the information) and one count of first degree burglary (Count III). At that time, the prosecution filed a notice of intent to offer evidence in rebuttal of any mitigating evidence that Young might present. State Court ROA, Vol. III at 435.
*947 The second-stage proceedings occurred the following day, September 21, 1995. During the second-stage proceedings, the prosecution incorporated by reference all of the first-stage evidence. In addition, the prosecution presented victim impact testimony from a relative of the two victims. Young elected not to testify in his own behalf or present any mitigation witnesses. In light of Young's decision in this regard, Young's counsel entered into a stipulation with the prosecution, which was read to the jury, that Young was "42 years of age and ... ha[d] been a life-long resident of Tulsa," "ha[d] family, relatives that love[d] him," "ha[d] been a minister in a church for 11 years," and was "a veteran, having served in the U.S. Army and was honorably discharged." ROA, Tr. Vol. III at 918-19. At the conclusion of the second-stage proceedings, the jury found the existence of three aggravating circumstances (that Young knowingly created a great risk of death to more than one person; the murder was especially heinous, atrocious or cruel[4]; and the existence of a probability that Young would commit criminal acts of violence that would constitute a continuing threat to society) and fixed Young's punishment at death for the two murder convictions. As for the burglary conviction, the jury fixed Young's punishment at fifty years' imprisonment.
The state district court conducted sentencing proceedings on September 28 and October 4, 1995. During the September 28th proceeding, Young's counsel asked the state district court to sentence Young to life imprisonment without the possibility of parole. In support of this request, Young's lead counsel, Jim Fransein, asserted that he had planned to introduce witnesses and evidence in mitigation during the second-stage proceedings, but that the mitigation witnesses "had been advised without [his] permission, [his] request or [his] recommendation not to appear," and that Young likewise had determined not to take the stand in his own defense. ROA, Tr., Vol. III at 937. In response to this request, the prosecution noted that it had agreed, after Young's counsel learned that Young would not be testifying or presenting any mitigation witnesses, to stipulate regarding certain mitigating evidence. Young himself addressed the state district court and asserted his factual innocence of the crimes. Young did not, however, offer any explanation for his decision to forego mitigation testimony. During the October 4th proceeding, the state district court imposed the sentences fixed by the jury.
Young's direct appeal and state post-conviction proceedings
Young filed a direct appeal challenging his convictions and sentences. On November 6, 1998, the OCCA affirmed Young's convictions and sentences. Young I, 992 P.2d at 336, 348. Young filed a petition for rehearing asserting that the OCCA failed to consider his request for an evidentiary hearing on his claim of ineffective assistance of trial counsel. On February 19, 1999, the OCCA granted Young's petition for rehearing and, on the merits, denied his request for an evidentiary hearing. Young filed a petition for writ of certiorari with the United States Supreme Court. That petition was denied by the Supreme Court on October 4, 1999. Young v. Oklahoma, *948 528 U.S. 837, 120 S.Ct. 100, 145 L.Ed.2d 84 (1999).
While his direct appeal was still pending before the OCCA, Young, in accordance with Oklahoma procedural rules, filed an application for post-conviction relief with the OCCA. Young's application alleged, in pertinent part, that he was denied the effective assistance of trial counsel. In support of that claim, Young submitted "the affidavits of a mitigation expert, Dr. Wanda Draper, ... and a mental health expert, Dr. Philip J. Murphy." App. for Post-Conviction Relief at 14. The OCCA denied the application for post-conviction relief on April 28, 1999, in an unpublished opinion. Young v. State, No. PC-97-884 (Okla.Crim.App. Apr. 28, 1999) (Young II).
Young's federal habeas proceedings
On April 17, 2000, Young initiated this federal habeas action by filing a pro se motion to proceed in forma pauperis and a motion for appointment of counsel. Young's motion for appointment of counsel was granted and, on October 3, 2000, Young filed a preliminary petition for writ of habeas corpus asserting eighteen tentative grounds for relief. On December 4, 2000, Young filed an amended petition asserting only seven grounds for relief.
On September 23, 2005, the district court issued an opinion and order denying Young's petition. The district court subsequently granted a certificate of appealability (COA) with respect to four issues: (1) ineffective assistance of trial counsel for failing to adequately investigate and present mitigation evidence during the second-stage proceedings; (2) improper victim impact evidence; (3) improper admission of Young's "fish blood" statement; and (4) cumulative error. On appeal, Young has abandoned his challenge to the admission of his "fish blood" statement, but continues to pursue the remaining three issues.
II.
Our review of Young's appeal is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007). Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts. Id.
If a claim was addressed on the merits by the state courts, we may not grant federal habeas relief on the basis of that claim unless the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). "When reviewing a state court's application of federal law, we are precluded from issuing the writ simply because we conclude in our independent judgment that the state court applied the law erroneously or incorrectly." McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.2003). "Rather, we must be convinced that the application was also objectively unreasonable." Id. "This standard does not require our abject deference, ... but nonetheless prohibits us from substituting our own judgment for that of the state court." Snow, 474 F.3d at 696 (internal citation and quotation marks omitted).
If a claim was not resolved by the state courts on the merits and is not otherwise procedurally barred, our standard of review is more searching. That is, because § 2254(d)'s deferential standards of *949 review do not apply in such circumstances, we review the district court's legal conclusions de novo and its factual findings, if any, for clear error. McLuckie, 337 F.3d at 1197.
III.
Introduction of victim-impact evidence
Young contends that the introduction of victim impact evidence during the second-stage proceedings violated his rights under the Eighth and Fourteenth Amendments. This evidence came in the form of testimony from Catherine Morgan, the maternal aunt of Joyland. Morgan testified that she was selected by members of the victims' family to prepare a victim impact statement for the trial court. ROA, Tr., Vol. III at 913. At the request of the prosecution, Morgan read her statement into the record:
The tragic [sic] of Joyland and Kewan's death affected more than 55 members. The effect on the family was devastating, shocking, hurt and anger as to why this happened.
Each family member was affected by this differently. Some were very emotionally upset, some had to be strong for others and for Lavada Grant, the aunt of Joyland and Kewan, she had a heart attack and died the night of the murders.
James Ella, Joyland and Kewan's grandmother, had some health problems with her nerves, sleepless nights, crying and worrying. She did the best to be strong for other family members, but of her closeness with Joyland and Kewan, this was very difficult at the time.
Joyland and James Ella were very close. Joyland would come into James Ella's room and lay across the foot of her bed and share her thoughts and feelings about things.
They would talk about Joyland's goal for her life. James Ella would offer Joyland advice as grandmothers and granddaughters would do. James Ella now misses those sharing times.
Kewan was James Ella's little boy. He spent a great deal of time with her. Kewan would look forward to Friday evenings to go spend with grandma. He would pack his little blue overnight case and stand in the doorway for her to pick him up. He would say, `I wait on maw-maw'.
They would start the weekend singing, playing and laughing. Kewan was always ready to go to church with grandma so he could sing and clap his hands with the choir.
Joyslon Edwards, the mother of Joyland and the grandmother of Kewan, was affected by hurt, guilt, anger and shock. The first year after Joyland and Kewan's death, Joyslon was unable to work at the daycare center where Kewan once attended.
Caring for the kids was a constant reminder of things her and Kewan [did] in the day care. Additionally, Joyland helped to decorate her class room at the center. Joyslon would think of things and begin to cry and the children wanted to know what's wrong with Miss Joy and asked questions about Kewan so for the best interest of the children she took a leave of absence.
Joyslon wasn't able to sleep at night, she would always see their little faces as she closed her eyes. Stress and depression caused various illnesses such as headaches. Because of her illness and her emotional state, she had to stay with James Ella, her mother.
Joyslon and Joyland were building an even closer relationship. They had become more like sisters and best friends instead of a mother-daughter relationship. *950 They shared feelings, laughter, smiles, thoughts, problems, did a lot of girl talk both bad and good.
Kewan was Joyslon[']s little baby boy. He will be missed very much for his laughter, singing with him and teaching him new songs that he loved to do.
Kewan would walk around singing "Jesus Love Me", "I'm climbing up on the Rough Side of the Mountain", and "That Holy Spirit".
You would think, okay, he will be a singer some day, but because of his slow learning disability and understanding words, he never had the opportunity to express what he wanted to be when he grows up.
I believe what we miss most is how Joyland also kept you laughing. There was never a dull moment. She would say funny things or do something not trying to be funny which would be [sic] a smile to your face.
Joyland was a good mother to be as young as she was. She was always there to help you. She was willing to share what she felt or had with those that she loved and trusted.
If she didn't know you she would try and say something nice. Joyland was setting some goals in her life to go back to school to enhance her knowledge with Kewan's learning disability.
She wanted to prepare Kewan for the public school system while making a better life for her and Kewan. Kewan will be missed for his singing that everyone which I feel he hadis how he expressed himself.
We miss his little feet running through the house and his laughter. We miss Kewan when he spent the weekend with James Ella. Kewan would always race her to bed and try to beat her by getting in bed first.
We miss hearing his laughter when he one [sic]. Joyslon and Kewan had a song they would sing together. Joyslon would lead and Kewan would be the background singer. Kewan would be singing "That Holy Spirit All In My Feet". He would touch different items in the apartment and say "that holy spirit in this chair" as an example.
Each family member will all have very special memories of Joyland and Kewan that will never be forgotten.
Id. at 913-17.
Young argues that this victim impact testimony "was not properly restricted to financial, emotional, psychological, and physical effects on the surviving family members." Aplt. Br. at 49. Instead, he notes, it included "[r]eferences to conversations, hyms [sic] sung by the victim [Kewan], and the victim's future goals," none of which "were ... authorized by statute or constitutionally admissible." Id. Young argues that these references were "designed to elicit, and likely did elicit, a strong emotional reaction in the jury and introduced the spectra [sic] of arbitrariness" in the jury's second-stage verdict. Id. Young also complains about the references to Lavada Grant having a heart attack and dying shortly after learning of the murders. Young argues that this "[e]vidence [suggesting] that [he] caused a third death could be viewed as nothing but aggravation, particularly in the absence of any instructional guidance...." Id. at 50.
a) Clearly established federal law
Young identifies Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), as providing the "clearly established federal law" applicable to this claim. See Aplt. Br. at 49. In Payne, the Supreme Court clarified the scope of admissible victim impact evidence during the sentencing phase of a capital *951 trial. More specifically, the Supreme Court overruled its prior precedent and held that it was constitutionally permissible for a state to "conclude that for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant," including evidence of how "the victim [wa]s an individual whose death represent[ed] a unique loss to society and in particular to his family." 501 U.S. at 825, 111 S.Ct. 2597 (internal quotation marks omitted). In other words, the Court held, "[a] State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed." Id. at 827, 111 S.Ct. 2597; see also id. at 830, 111 S.Ct. 2597 ("A State may decide... that the jury should see a quick glimpse of the life petitioner chose to extinguish,... to remind the jury that the person whose life was taken was a unique human being.") (internal citation and quotation marks omitted) (O'Connor, J., concurring). "In the majority of cases," the Court held, "victim impact evidence [thus] serves entirely legitimate purposes." Id. at 825, 111 S.Ct. 2597. Notwithstanding this holding, however, the Court acknowledged the possibility that victim impact evidence could be "so unduly prejudicial that it renders the trial fundamentally unfair...." Id. In such instances, the Court held, "the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." Id.
b) OCCA's rejection of Young's Payne-based arguments
Young argued in his direct appeal, citing Payne, that the prosecution's use of Morgan's victim impact statement violated his rights under the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. Young Direct Appeal Br. at 77. The OCCA rejected Young's arguments, stating as follows:
Trial counsel objected to the introduction of the statement on the grounds it was unconstitutional, more prejudicial than probative and a denial of due process....
Title 21 O.S. Supp.1995, § 701.10(C) provides the State may present evidence "about the victim and about the impact of the murder on the family of the victim." This evidence is subject to the limitations imposed by the Oklahoma Evidence Code as well as the state and federal constitutions. [citation omitted]. Young argues the statement in his case went beyond these parameters. We have examined the victim impact statement delivered at Young's trial and find it to be squarely within the confines articulated by this Court and the Oklahoma Legislature. The statement explained succinctly the relationships enjoyed by family members with the victims. The statement focused on the effect of the murders on the family of the victims. This is permissible under § 701.10(C).
Young objects to that part of the statement which included the fact an aunt of the deceased, upon hearing of the murders, suffered a heart attack and died. He argues a causal connection was not proven. This argument is appropriate for trial, not appeal. The presenter of a victim impact statement is subject to cross-examination, and this issue properly could have been plumbed at trial. [citation omitted].
Young I, 992 P.2d at 341-42 (internal paragraph numbers omitted).
c) Applying the AEDPA standards to the OCCA's analysis
In this federal habeas appeal, Young does not challenge the OCCA's analysis in *952 terms of the AEDPA standards of review. Indeed, he makes no mention at all of the OCCA's analysis. Instead, he simply repeats, in summary fashion, the arguments he made on direct appeal. Out of an abundance of caution, we will assume that Young is implying by his arguments that the OCCA unreasonably applied Payne in rejecting his constitutional challenge to the admission of the victim impact statement.
After carefully examining the record on appeal, we conclude that the OCCA's rejection of Young's constitutional challenge to the victim impact statement was neither contrary to, nor an unreasonable application of, Payne. To be sure, the OCCA did not cite directly to Payne. It did, however, cite its own decision in Toles v. State, 947 P.2d 180, 189 (Okla. Crim.App.1997), which in turn acknowledged and applied Payne. As for the specific components of the victim impact statement challenged by Young, the references to conversations that Joyland had with her mother, her future goals, and Kewan's love of singing hymns simply provided a "quick glimpse" into the lives of the two people that Young murdered, and thus did not violate Young's due process rights. Payne, 501 U.S. at 830, 111 S.Ct. 2597 (O'Connor, J., concurring). The only other specific part of the statement challenged by Young, i.e., the portion that referred to Lavada Grant, an aunt of the two victims, having a heart attack and dying after she learned about the murders, fell within the scope of Payne's holding allowing the admission of evidence "about the impact of the murder[s] on the victim[s'] family...." Id. at 827, 111 S.Ct. 2597. Although Young complains that this portion of the statement implied he was responsible for a third death, we note, as did the OCCA, that his trial counsel made no attempt to cross-examine Morgan on this point. More importantly, having reviewed the entirety of the trial transcript, we are not persuaded that, even in the absence of such cross-examination, this challenged evidence was "so unduly prejudicial that it render[ed] the trial fundamentally unfair...." Id. at 825, 111 S.Ct. 2597.
In sum, we conclude Young has failed to establish his entitlement to federal habeas relief on the basis of the admission of the victim impact statement.
Ineffective assistance of trial counsel
Young next contends that his trial counsel was constitutionally ineffective for failing to adequately investigate available mitigating evidence and present that evidence during the second-stage proceedings. In support of this contention, Young notes that "[n]o social history investigation was performed; no psychiatric or psychological testing was done; no medical examinations were conducted; [and] almost no argument was made to the jury to spare [his] life." Aplt. Br. at 18. He further notes that "[f]amily members and known friends were not interviewed and prepared to testify by explaining the need and importance of their testimony." Id. at 18-19. He argues that defense counsel's failure prejudiced him "by ensuring that the jury had no evidence to weigh against the aggravating factors or to use to show mercy." Id. at 19.
a) Clearly established federal law
The "clearly established federal law" applicable to this claim is the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court held that "[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components." 466 U.S. at 687, 104 S.Ct. 2052. *953 "First," the Court noted, "the defendant must show that counsel's performance was deficient." Id. "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. "Second," the Court noted, "the defendant must show that the deficient performance prejudiced the defense." Id. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. "Unless a defendant makes both showings," the Court held, "it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id.
b) OCCA's rejection of Young's claim
Young first raised the issue of ineffective assistance of trial counsel on direct appeal. The OCCA summarily rejected Young's claim:
As his fourth allegation of ineffective assistance of counsel, Young argues trial counsel failed to investigate mitigating evidence. This issue is not supported by the record. The record indicates counsel was prepared to call seven witnesses in mitigation.
Young I, 992 P.2d at 347 (internal paragraph number omitted). The OCCA also summarily rejected Young's related factual assertion that he waived the presentation of mitigation evidence[5]:
Young did not waive mitigation, but opted to introduce it through stipulation. As the State cogently argues, the State had given notice of damaging rebuttal evidence, and Young's stipulation strategically avoided this risk as well as the risk of cross-examination.
Id. at 341 (internal paragraph number omitted).
After the OCCA denied his direct appeal, Young filed a petition for rehearing asserting that the OCCA failed to consider his request for an evidentiary hearing in connection with his ineffective assistance claim. The OCCA granted Young's petition for rehearing and, on the merits, denied his request for an evidentiary hearing:
In support of his application for a[n] [evidentiary] hearing, Young offers several affidavits and a transcription of an interview with trial counsel. Some of the affidavits are from family members and friends who stated that they were willing to testify at trial, but were never contacted to testify. Other affidavits are from purported experts in the field of human behavior, capital murder cases and mitigating evidence [Linda Palmer, the licensed professional counselor who Young's counsel originally sought permission from the state trial court to evaluate Young, and Dr. Ann Taylor, a psychologist who had functioned as an expert mitigation witness in other death penalty cases]. The mitigating evidence contained in the affidavits show that witnesses would have testified that Young was a loving father and a nice person; that Young was discharged from the Army because he was determined to be mentally unfit; that Young had lost a brother and son to sickle cell anemia; and that Young still lived with his domineering mother. The interview with trial counsel shows that both Young and his mother indicated that they did not want family and friends called to present mitigating evidence.
*954 The trial record revealed that trial counsel negotiated a stipulation regarding mitigation. Therefore, Young did not waive mitigation. (citation omitted). This stipulation contained a statement that Young's family and relatives love him; Young has been a minister for eleven years; and that Young is a[n] honorably discharged veteran of the Army. In our Opinion we concluded that this stipulation strategically avoided the risk of damaging rebuttal evidence and the risk of cross-examination. (citation omitted).
Upon review of the application and the supporting affidavits and evidence, we find [Young] has shown this Court that trial counsel could well have utilized this evidence and that it may have been prudent for him to do so. However, Young has not shown by clear and convincing evidence a strong possibility that defense counsel was ineffective for failing to utilize or identify this evidence. Accordingly, we decline to grant [Young]'s application for an evidentiary hearing. (citation omitted).
Young v. State, No. F 95-1142 at 2-4 (Okla.Crim.App. Feb. 19, 1999) (Order Granting Rehearing and Denying Relief).
Young reurged his ineffective assistance of trial counsel claim in his application for state post-conviction relief, but argued for the first time that his trial counsel should have investigated and presented testimony from "mitigation expert" Dr. Wanda Draper and psychologist Dr. Philip Murphy. The OCCA rejected the claim as procedurally barred:
Young argues he was denied effective assistance of trial ... counsel regarding the issue of the presentation of mitigation evidence. After reviewing the record, we find Young's ineffective assistance of trial counsel claims do not turn on facts or information unavailable at the time of his direct appeal. Consequently, Young has not met the prerequisites for review of this claim on the merits. This claim is barred.
Young II at 3 (internal citations omitted).
c) The district court's analysis
In reviewing Young's ineffective assistance claim in the federal habeas context, the district court rejected respondent's argument that Young had procedurally defaulted the portions of his ineffective assistance claim that were raised for the first time in his application for post-conviction relief. Although the district court conceded "that the OCCA's procedural bar based on [Young]'s failure to raise the claim in a direct appeal [wa]s an `independent' state ground," ROA, Doc. 58 at 18, it concluded "that the procedural bar imposed by the OCCA ... was not adequate to preclude federal habeas review." Id. at 19. More specifically, the district court noted "that the resolution of [Young]'s allegations concerning trial counsel's failure to investigate psychological evidence and present expert mitigation witnesses [Draper and Murphy] [wa]s not apparent from the trial record," and thus could not have been raised by Young on direct appeal. Id. at 20.
As for the OCCA's rejection of Young's claim on direct appeal, the district court concluded that the OCCA failed to properly apply the second prong of the Strickland test. Id. at 17. In particular, the district court concluded that the OCCA erroneously "required [Young] to show by `clear and convincing evidence' that he was prejudiced by [trial] counsel's failure to utilize available mitigation evidence." Id.
The district court then proceeded to conduct its own de novo review of Young's ineffective assistance claim. In analyzing the first prong of the Strickland test, the district court concluded "there [wa]s little *955 doubt that [Young]'s trial attorney stopped short of making a reasonable investigation for purposes of uncovering relevant mitigating evidence that could have been useful in (1) fully informing [Young] of all available mitigating evidence and his opinion of its potential effectiveness; and (2) persuading the jury that [Young]'s moral culpability was not sufficient to warrant the death penalty." Id. at 22. In other words, the district court concluded that trial counsel's "failure to adequately investigate mitigation evidence and present it to the jury constituted deficient performance under the first prong of the Strickland test." Id. at 23.
Turning to the second prong of the Strickland test, the district court concluded, after considering the strength of the prosecution's case, the number of aggravating circumstances found by the jury to exist, the mitigating evidence actually presented by Young's trial counsel, and the available mitigating evidence cited by Young in support of his habeas petition, that Young was not prejudiced by trial counsel's failure. Id. at 28. In reaching this conclusion, the district court acknowledged that the mitigation evidence cited by Young "would have shown favorable aspects of [his] character and provided insight into his upbringing and grief related to deaths in his family...." Id. at 27. However, the district court concluded there was not a "reasonable probability that its introduction would have caused the jury to decline to impose the death penalty." Id. In particular, the district court concluded that the fact that Young's mitigation witnesses "considered [him] to be a good person would not have supported the notion that the murder of Joyland Morgan was not committed in a heinous, atrocious or cruel manner" or "negated or affected in any way the fact that [he] knowingly created a great risk of death to more than one person." Id. at 27-28. Lastly, the district court concluded that "the opinions offered by Dr. Draper" would not have caused the jury to "spare[] Young the death penalty had [Draper] been allowed to testify." Id. at 28.
d) Standard of review on appeal
Before turning to the specific arguments raised by Young in his appeal, we note our agreement with the district court that we must apply de novo review in evaluating Young's ineffective assistance claim. To be sure, the OCCA purported to address Young's ineffective assistance claim on the merits when it affirmed his convictions and sentences on direct appeal. But it is clear from the record on appeal that it did so on the basis of a limited factual record; in particular, the OCCA did not consider the available mitigating evidence cited by Young in support of his request for an evidentiary hearing on his ineffective assistance claim. When Young subsequently petitioned the OCCA for a rehearing, the OCCA proceeded to examine the mitigating evidence cited by Young, but it viewed that evidence solely in terms of whether Young had satisfied the standard outlined in OCCA Rule 3.11(B)(3)(b)(i), i.e., whether Young had presented "clear and convincing evidence" establishing "there [wa]s a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence."[6] Okla. Stat. tit. 22, ch. 18, App. *956 Rule 3.11(B)(3)(b)(i). As a result, "we cannot conclude" that the OCCA "necessarily decided that," "the [Strickland] standard was not satisfied" when the OCCA considered the mitigating evidence cited by Young with his request for an evidentiary hearing and denied Young's request for an evidentiary hearing.[7]Wilson v. Sirmons, 536 F.3d 1064, 1081 (10th Cir.2008).
We also note that the OCCA refused to consider the affidavits from Drs. Draper and Murphy that were obtained and submitted by Young in connection with his application for post-conviction relief. In doing so, the OCCA concluded that Young's ineffective assistance claim "d[id] not turn on facts or information unavailable at the time of his direct appeal," and was therefore procedurally barred. Young II at 3. We have, however, repeatedly questioned whether this Oklahoma procedural rule, requiring ineffective assistance of counsel claims to generally be brought on direct appeal, "can be deemed adequate and independent to bar habeas review." Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th Cir.2007) (internal quotation marks omitted). We have thus, in turn, "held that th[is] Oklahoma procedural bar will apply [only] in those limited cases meeting the following two conditions: trial and appellate counsel differ; and the ineffectiveness claim can be resolved upon the trial record alone." Id. (internal quotation marks omitted). "All other ineffective assistance claims, we have held, are procedurally barred only if Oklahoma's special appellate remand rule for ineffectiveness claims is adequately and evenhandedly applied." Id. (internal quotation marks omitted).
Young's case does not fall within the limited subset of cases subject to procedural bar because, even though his trial and appellate counsel differed, his ineffectiveness claim was clearly incapable of being resolved on direct appeal based upon the trial record alone. Nor, we note, would the granting of an evidentiary hearing by the OCCA on direct appeal have produced the evidence now proffered from Drs. Draper and Murphy. Lastly, we are not persuaded that, as of the time Young's direct appeal was decided, Oklahoma's special appellate remand rule for ineffectiveness assistance claims was adequately and evenhandedly applied. See id. (noting that "Oklahoma rarely, if ever, remands cases for such a hearing") (internal quotation marks omitted).
e) Young's arguments on appeal
In his federal habeas appeal, Young argues that the district court was correct in concluding "that trial counsel's performance was ... constitutionally deficient," but erred in concluding that "Young had not demonstrated prejudice." Aplt. Br. at 22. For the reasons outlined below, however, we conclude the district court was correct in its analysis of both prongs of the Strickland test.
1. Trial counsel's deficient performance
"In assessing [defense] counsel's investigation" of available mitigating evidence in a capital case, a federal habeas court "must conduct an objective review of [defense counsel's] performance, measured *957 for `reasonableness under prevailing professional norms....'" Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Those prevailing professional norms, according to the Supreme Court, include the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (ABA Guidelines). Id. at 524, 123 S.Ct. 2527. Under the ABA Guidelines, "investigations into mitigating evidence `should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'" Id. (quoting 1989 version of ABA Guidelines). Among the topics defense counsel should investigate and consider presenting include medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experiences, and religious and cultural influences. Id. (citing 1989 version of ABA Guidelines).
In this case, Young submitted, in connection with his direct appeal and request for evidentiary hearing, a transcript of a tape-recorded interview that his appellate counsel conducted with his lead trial counsel, Jim Fransein. In that interview, Fransein stated that he had "briefly" "talked with a couple" of the proposed second-stage mitigation witnesses prior to trial, but that his plan had been to interview each of the mitigation witnesses in somewhat greater depth immediately prior to the start of the second-stage proceedings. ROA, Vol. II, Doc. 23, Exh. 3 at 12. Fransein stated that his plan was derailed, however, when he was informed by Young's mother on the morning of the start of the second-stage proceedings that she had sent all of the mitigation witnesses home. When asked about the possibility of presenting expert psychological witnesses during the second-stage proceedings, Fransein counsel stated that he had considered obtaining such testimony, but that Young's family was either unable or unwilling to pay for such services, and he believed the trial judge "probably would [have] denied" an application for funding for such services. Id. at 5. Fransein further stated that he had not ordered or obtained any relevant records regarding Young. Lastly, Fransein stated that he and Young had not talked about mitigation evidence or strategy because, "quite frankly," Young was convinced "there was no way that [the jury was] going to find [him] guilty" during the first-stage proceedings. Id. at 12.
We conclude, as did the OCCA and the district court, that the investigatory efforts of Young's trial counsel fell far short of the prevailing standards for capital defense work outlined by the Supreme Court in Wiggins. As the interview transcript makes clear, Young's trial counsel engaged in almost no efforts to investigate and develop mitigating evidence. At best, the transcript indicates that trial counsel spoke briefly with a few unnamed individuals who were presumably Young's friends or family members. As a result, Young's trial counsel completed the first-stage proceedings and began the second-stage proceedings generally unfamiliar with nearly all of the potential sources of mitigating evidence from Young's background. In turn, it is not surprising that trial counsel's second-stage "strategy" focused simplistically on highlighting "the good things that [Young] ha[d] done" in the past and the "belief[s]" of Young's friends and family members "that he [wa]s not a future danger to the community...." State Court ROA, Vol. I at 85. In short, Young's trial counsel did not "fulfill [his] obligation to conduct a thorough investigation of [Young]'s background." Williams v. Taylor, *958 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
2. Prejudice
That leads us to the second prong of the Strickland test, i.e., whether Young was prejudiced by his trial counsel's constitutionally deficient investigatory efforts. In conducting our second prong analysis, we must first address the effect, if any, of Young's decision at trial to forego presenting the mitigation witnesses his trial counsel had subpoenaed and instead rely on a written stipulation of mitigation. More specifically, we must determine whether Young's decision in this regard forecloses the possibility of him establishing prejudice.
As to this question, respondent argues that the Supreme Court's recent decision in Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), is controlling. In Schriro, the defendant "refused to allow his counsel to present the testimony of his ex-wife and birth mother as mitigating evidence at his sentencing hearing for a felony-murder conviction." Id. at 1934. The defendant "also interrupted as [his] counsel tried to proffer other [mitigating] evidence, and he told the Arizona trial judge he did not wish to present any mitigating evidence and to `bring on' the death penalty." Id. The defendant was subsequently sentenced to death. In a state post-conviction proceeding, the defendant argued that his trial counsel "was ineffective for failing to conduct further investigation into mitigating circumstances." Id. The Arizona state courts denied that claim, "finding that he had instructed counsel at sentencing not to present any mitigating evidence at all." Id. The defendant then filed a federal habeas petition, reurging his ineffective assistance claim. Although the district court denied relief, the Ninth Circuit reversed, holding that the defendant was entitled to an evidentiary hearing "because he raised a `colorable claim' that his counsel's performance" was constitutionally deficient. Id. at 1939. In particular, the Ninth Circuit found that defense counsel "did little to prepare for the sentencing aspect of the case," "and that investigation would have revealed a wealth of mitigating evidence, including the family's history of drug and alcohol abuse and propensity for violence." Id. (internal quotation marks omitted). The Ninth Circuit also concluded, citing Wiggins, that the defendant's "apparently last-minute decision" to forego mitigating evidence could not "excuse his counsel's failure to conduct an adequate investigation prior to the sentencing." Id. at 1942 (internal quotation marks omitted).
The Supreme Court granted certiorari and reversed the Ninth Circuit's decision. In doing so, the Court noted that "[n]either Wiggins nor Strickland addresse[d] a situation in which a client interfere[d] with counsel's efforts to present mitigating evidence to a sentencing court," and that, "[i]ndeed, [it] ha[d] never addressed a situation like th[at]" before. Id. Thus, the Court held, "at the time of the Arizona post-conviction court's decision, it was not objectively unreasonable for that court to conclude that a defendant who refused to allow the presentation of any mitigating evidence could not establish Strickland prejudice based on his counsel's failure to investigate further possible mitigating evidence." Id. Continuing, the Court also emphasized that it "ha[d] never imposed an `informed and knowing' requirement upon a defendant's decision not to introduce evidence." Id. Nor, the Court noted, had it ever "required a specific colloquy to ensure that a defendant knowingly and intelligently refused to present mitigating evidence." Id. at 1943. Lastly, the Court held that, "[e]ven assuming the truth of all the facts [the defendant] sought to prove *959 at the evidentiary hearing, he still could not be granted federal habeas relief because the state courts' factual determination that [he] would not have allowed counsel to present any mitigating evidence at sentencing [wa]s not an unreasonable determination of the facts under § 2254(d)(2) and the mitigating evidence he s[ought] to introduce would not have changed the result." Id. at 1944.
Respondent argues that, like the defendant in Schriro, Young "cannot demonstrate prejudice from trial counsel's failure to investigate, develop and present all of the mitigation evidence he now embraces" because "[i]t is clear [Young] would not have allowed that evidence to be presented under any circumstances." Aplee. Br. at 30. Rather, respondent argues, Young "demanded that the case in mitigation be limited to the stipulation actually presented to the jury." Id.
We reject respondent's arguments and conclude that Young's case is distinguishable from Schriro. Unlike the defendant in Schriro, who waived his right to present mitigating evidence, thereafter refused to allow his counsel to present any type of mitigating evidence on his behalf, and all but asked the trial court to sentence him to death, Young simply chose to forego the presentation of testimony from the handful of friends and family members that his trial counsel had lined up to testify. Further, as the OCCA expressly found, "Young did not waive mitigation, but [rather] opted to introduce it through stipulation." Young I, 992 P.2d at 341. In light of these circumstances, we find it impossible to predict with any degree of certainty what Young would have done had his trial counsel investigated and prepared to present all of the available mitigating evidence that Young now points to. In particular, we do not believe that Young's decision to forego the live testimony of his friends and family members allows us to accurately predict what he would have done had his trial counsel planned to present mitigating testimony from Drs. Draper and Murphy. Thus, we conclude that Young's decision to forego live mitigation witnesses and rely on the written stipulation of mitigating evidence does not prevent him, in the context of these federal habeas proceedings, from establishing prejudice under the second prong of the Strickland test.
Turning directly to the issue of prejudice, Young argues initially "that the inadequacies of his counsel [we]re so severe as to dispense with the need to show prejudice under Strickland." Aplt. Br. at 33. In support of this argument, Young cites to a single case, Rickman v. Bell, 131 F.3d 1150 (6th Cir.1997). As outlined in greater detail below, however, a review of Rickman reveals that it is factually inapposite.
The state habeas petitioner in Rickman, Ronald Rickman, was charged in Tennessee state court with first-degree murder for his participation in a murder-for-hire scheme that resulted in the rape, abduction, and death of a female victim. Attorney Robert Livingston was appointed by the state trial court to represent Rickman. Livingston conducted an initial interview with Rickman, during which he confirmed that a statement given by Rickman to authorities was true (it is unclear from the Rickman opinion what the nature of the statement was; presumably, it was an admission of guilt). From that point forward, "Livingston assumed that there was no defense to the charge of first-degree murder and failed to conduct any investigation." 131 F.3d at 1157. In particular, "Livingston did not interview any witnesses, conduct any legal research, or obtain and review any records, including those regarding Rickman's employment, education, mental health, social services *960 contacts, military service, or prison experience." Id. "By Livingston's account, he spent a total of sixteen hours preparing for Rickman's trial." Id.
At trial, "Livingston was not content with mere nonfeasance," and instead "embarked on a course of attempting to persuade the jury that his client, although judged legally competent to stand trial, [was], in fact, abnormal and should not be judged as a normal person." Id. (internal quotations marks omitted). In doing so, Livingston "convey[ed] to the jurors an unmistakable personal antagonism toward Rickman, characterized both by attacks on Rickman and by repeatedly eliciting information detrimental to Rickman's interests." Id. at 1158. According to the Sixth Circuit, "Livingston's attacks on Rickman took the form of portraying him as crazed and dangerous." Id.
The Sixth Circuit ultimately concluded, relying primarily on United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ("if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable"), that not only was Livingston's performance constitutionally deficient, but that it was "so egregious as to amount to the virtual or constructive denial of the assistance of counsel, and thus implicate [a] presumption of prejudice...." Id. at 1156. More specifically, the Sixth Circuit concluded that because "Livingston succeeded in presenting a terrifying image of Rickman, and thereby aligned himself with the prosecution against his own client," the prejudice to Rickman was "patently inherent" and thus it could "dispense[] with the necessity of a separate showing of prejudice...."[8]Id. at 1159.
Although Young's counsel was obviously neglectful in his investigation of potential second-stage mitigating evidence, his conduct at trial was substantially different than that of Rickman's counsel. Most notably, a review of the trial transcript confirms that Young's counsel vigorously challenged the prosecution's evidence, particularly during the first-stage proceedings, and in no way "acted with reckless disregard for [Young]'s best interests" or "with the intention to weaken [Young]'s case." United States v. Collins, 430 F.3d 1260, 1265 (10th Cir.2005). Even during the second-stage proceedings, Young's counsel attempted to present some type of mitigating evidence (in the form of a stipulation) after learning that Young's mother had sent all of the planned mitigation witnesses home and, during closing arguments, pleaded for the jury to spare Young's life. In sum, a review of the trial transcript confirms that Young was not subjected to a constructive denial of counsel. Thus, we conclude Young is not entitled to a presumption of prejudice.
Alternatively, Young asserts that he "was indeed prejudiced by his counsels' deficiencies." Aplt. Br. at 34. "In assessing prejudice" in the context presented here, we must "reweigh the evidence in aggravation against the totality of available mitigating evidence." Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. To establish prejudice, Young must demonstrate there is "a reasonable probability that, absent [counsel's] errors, the sentencerincluding *961 an appellate court, to the extent it independently reweighs the evidence would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.
In his effort to establish prejudice, Young points to proposed testimony from family members, friends, and expert witnesses that his trial counsel failed to discover and present. The proposed testimony from each of these witnesses was outlined in affidavits that were originally submitted in connection with Young's application for state post-conviction relief. The following is a summary of each of those affidavits:
Reverend William Hamilton: Hamilton "did not know [Young] personally," but rather "was acquainted with him because he had preached at [Hamilton's] church on occasion. . . ." ROA, Vol. II, Doc. 23, Exh. 4 at 1. If he had been called as a witness, he "would have been willing to testify that [Young] always seemed like a nice man." Id.
T.B. Lockridge: Lockridge "was acquainted with [Young] because he had served as a resident pastor at [Lockridge's] church, preaching on the first and third Sundays of the month." Id., Exh. 5 at 1. If he had been called as a witness, he "would have been willing to testify that . . . there were no problems with [Young] during his time of ministry with [Lockridge's] church." Id.
Cornelius Young II: Cornelius Young II was "the father of Julius Young. . . ." Id., Exh. 6 at 1. He "would have been willing to testify and assist in the investigation of [his] son's life had [he] been asked to." Id. Further, he "would have cooperated fully in order to and persuade jurors to assess a sentence less than death for [his] son Julius." Id. at 2.
Alene Young: Alene Young was "the mother of Julius Young. . . ." Id., Exh. 7 at 1. She "would have testified in [her] son's behalf and would have assisted in any investigation into his life in order to present evidence so that [her] son would not be sentenced to death." Id. She alleges she "had no understanding of mitigation and the ability to present evidence which would move a jury to extend mercy to [her] son." Id. at 2.
Gertrude Deadmon: Deadmon knew Young "when he was a Youth Guidance Specialist . . . for a year or two," and "she remembered him as a person who spoke very intelligently and very well." Id., Exh. 8 at 1. She "was willing to testify that [Young] was an impeccable dresser, was well-mannered, and articulated well." Id.
Dr. Mozelle Lewis: Lewis is "a long-time friend of [Young]'s family and ha[s] known [Young] since he was a child." Id., Exh. 9 at 1. If called as a witness, Lewis "would have been willing to testify that [Young] had a very mild personality, was rather withdrawn, but was a very courteous child who was willing to do what was asked of him." Id. Further, Lewis would have been willing to testify she "always knew [Young] to be a nice gentleman." Id.
Cornelius Young III: Cornelius Young III is "the older brother of Julius . . . Young." Id., Ex. 10 at 1. If called as a witness, he would have testified that he and his brother "suffered and grieved together when [their] younger brother Terry died of sickle cell anemia," id., and that "Terry's death . . . had a devastating effect on [their] family." Id. at 2. He would have further testified that Julius also "lost his young son . . . to sickle *962 cell anemia," which resulted in "another devastating loss to [their] family and particularly for Julius." Id. In addition, he would have testified that "Julius was a good father to his sons," and "took care of [his] mom and dad by doing the lawn work and acting as a handy-man around the[ir] house." Id. Lastly, he would have testified about his childhood memories and how he and Julius "depended on each other and . . . always helped each other out when there was a difficulty." Id.
Derrick Young: Derrick is one of Julius Young's sons. Id., Exh. 11 at 1. If called as a witness, he would have testified that his "mother and father got divorced when [he] was about four or five years old," but that his father remained "an active participant in [his] life. . . especially during the years between the second and eighth grade[s]." Id. at 2. In particular, Derrick would have testified that his "father coached [his] T-Ball team and actively supported [his] interest in sports," but "never pressured [him] in any sport in which [he] participated." Id. Further, Derrick would have testified that his father "was very strict" and "had high expectations about school work and insisted that [they] do good in school." Id. Derrick also would have testified "[t]hat it was [his] Dad who would take [him] out on country roads to teach [him] how to drive and but for that time [he] would not have had the confidence to take [his] driving test to get [his] driver's license." Id. In Derrick's view, his paternal grandmother "made a lot of the decisions in [her] family," and his "Dad usually went along with [those] decisions." Id. at 3. It was also Derrick's view "that [his] Dad's family did not always see the reality of their lives," and attempted to portray themselves as "perfect people always successful which was simply not true." Id. According to Derrick, "[t]wo of the most hurtful times in [their] family that particularly affected [his] Dad were when [his] younger brother Dominque died of sickle cell anemia and [when his] Uncle Terry" also died of the same disease. Id. He remembers his "Dad crying hysterically and screaming at Dominque's funeral," and "grabbing the casket." Id. He "know[s][his] Dad was [also] crushed over Terry's death." Id. Derrick "believe[s] the person [his] Dad most admired in his life was [his] great, great Grandfather the Reverend McDaniels," and that his "Dad became a minister hoping it would straighten out his life." Id. Lastly, he "believe[s][his] Dad's life has worth and would have liked to share [his] Dad's humanity with the jury so that they could see the value his [Dad's] life holds for [him]." Id. at 4.
Julius Young, Jr.: Julius Young, Jr. is the second-oldest son of Julius Young. Id., Exh. 12 at 1. If called as a witness, he would have testified that his father "was an active and vital participant in [his] life as [he] was growing up," id., serving as a "cub scout leader in the troop to which [his] brother and [he] belonged," and as coach of the "T-ball team on which [his] brother and [he] played." Id. at 2. According to Julius Jr., he "knew [he] could always go to [his] father to discuss problems and that [his father] would listen carefully and help [him] decide the best course of action." Id. He would have testified that he "share[d] holidays with [his] dad and grandparents in which [they] ate lots of good food and visited with each other," that his "dad would help [him] whenever [he] was in trouble," and "[t]hat [his] Dad would do nice things like get [him] gifts for [his] birthday." Id. He also would have testified that *963 "[w]henever [he] got out of line [his] Dad did not hesitate to discipline [him] and [he] understood it was because [his Dad] cared." Id. According to Julius Jr., "the best times [he] had with [his] Dad were when [they] were fishing," something they did together "on the weekends." Id. He would have testified that "one of [his] most poignant and painful memories . . . is when [his] little brother Dominque died of sickle cell anemia when he was about two years old," and that "[a]t the funeral [his] Dad tried to pick up Dominque's casket and run away with it." Id. at 3. He would also have testified that his "Uncle Terry Young, [his] father's brother, . . . died of sickle cell anemia about two years before [his] father was charged with" the murders in this case. Id. Julius Jr. "feel[s] if [he] had been allowed to testify [he] could have helped the jury to see [his] Dad through [his] eyes as a caring father who tried to do his best for [him], as someone who had suffered terrible losses in his own life, and as a man who became a minister so that he could help other people through their hurts." Id. Finally, Julius Jr. "would have testified that [his] father had never been violent with [him]," "[t]hat his [Dad's] life has worth" and "if [his Dad] were allowed to live he would still be a supportive father," and "[t]hat [his] Dad's life has value." Id.
Lorean Laws: Laws is Young's maternal aunt. Id., Exh. 13 at 1. If called as a witness, Laws would have testified that she "ha[d] known [Young] all of his life and that he ha[d] always been a very gentle person with a good upbringing from a supportive family." Id. She would have further testified that she "had frequent contact with [Young] in the past and kn[e]w him very well," and that she "was shocked with evidence presented at trial of any anger or violence on [his] part because that is not the person [she] kn[e]w." Id. Additionally, she would have testified that Young "ha[d] always had a loving relationship with both of his parents," was "particularly close to his mother," and had "suffered significant losses in his life, including the death of his young son and his brother, Terry, both of whom died of Sickle Cell Anemia." Id. at 2. Lastly, she would have testified that Young "had a strong desire to be successful in life," and "had a zest for life which was best expressed through music." Id.
Richard McDaniel: McDaniel is Young's uncle and has "known [Young] since he was a child." Id., Ex. 14 at 1. Had he been called as a witness, McDaniel "would have been willing to testify that [Young] was a very mild young man, was never a violent person, and . . . helped out his mother by doing chores like driving and handiwork around the house." Id. He "would have also testified that [he] did not believe [Young] committed the crime in question." Id.
Linda Palmer: Palmer is "a licensed professional counselor with a Master's Degree in Psychology and [was] pending certification as both a Criminal Justice Specialist and Master Addiction Counselor." Id., Ex. 15 at 1. According to Palmer, "during the pendency of . . . Young's capital trial," she "was contacted by defense counsel . . . about doing a psychological on . . . Young." Id. She allegedly "took initial steps and met with. . . Young's family," but was later advised by defense counsel "that the family did not have the funds to pay for [her] services." Id. Had she "been retained [she] was prepared to conduct psychological testing, do a clinical interview with . . . Young, as well as gather a relevant social history in order to present *964 evidence in mitigation of the death penalty and to rebut the aggravating circumstances alleged by the State based upon [her] findings." Id. at 2.
Wanda Draper, Ph.D.: Draper is "a developmental epistemologist" who "hold[s] the position of Clinical Professor, Emeritus, in the Department of Psychiatry and Behavioral Sciences in the College of Medicine at the University of Oklahoma Health Sciences Center." Id., Exh. 17 at 1. Her "work in the field of child development is interdisciplinary, covering psychology, sociology, anthropology, medical psychiatry, and related cultural and behavioral disciplines." Id. Draper "performed a study of the family and personal background of . . . Young at the request of" his post-conviction counsel. Id. at 2. Of note in her study was that "Young was recognized by his family and community as a well-behaved, responsible, and caring individual who made many contributions to the well-being of others." Id. at 5. In particular, "[h]e served as a minister for eleven years prior to his arrest," and "was active in providing help such as replacing roofs and making renovations on church buildings." Id. at 6. In 1990, while he was "employed as a houseman at the Holiday Dome in Tulsa," Young "rescued a mother and her child from the swimming pool where he was cleaning at the time," and then refused to accept a "monetary reward" offered to him by the mother. Id. The study further indicates that "Young suffered cumulative emotional trauma as a result of the loss of four close family members [maternal grandmother and grandfather, brother, and son] during a seven year period in his adulthood" which, in Draper's opinion, caused him "to experience a breakdown of his compulsively ordered life." Id. at 10. More specifically, Draper opined that "[t]he emotional impact of these losses produced a severe stress and trauma psychologically," and "his thought processes obscured reality and he suppressed his deepest feelings of loss." Id. According to Draper, "[w]hen . . . Young was threatened with another loss, that of rejection by his girlfriend, one could expect that he would experience severe emotional trauma as he began to, again, lose control." Id. That is, "[w]hen he faced losing his most recent emotional connection to his love, Joyslon, it was beyond the scope of his ability to adapt." Id. at 12-13. Thus, Draper opined, "it is conceivable that he acted in concert with a deep subconscious need to protect his ego and thereby move outside the realm of his conscious awareness of moral justice." Id. at 13. "From a neurological perspective, it is [Draper's] opinion that on a conscious level, he would not be aware of what he had done." Id. In Draper's opinion, the murders "could have been the result of distortion in his rational thinking" "set into action by the combination of severe emotional trauma and use of alcohol which dulled the inhibitions." Id. In other words, she "believe[s] it was an act committed by a person under severe emotional stress, most likely unable to fully comprehend the nature of his actions or the consequences of what was taking place." Id. at 13-14.
Philip Murphy, Ph.D.[9]: Murphy is a licensed clinical psychologist in the *965 State of Oklahoma. App. for Post-Conviction Relief, Exh. 6 at 1. Murphy "performed a comprehensive psychological evaluation upon . . . Young . . . on the premises of the Oklahoma State Penitentiary on 5/6/97 during a 4 hour full-contact visit." Id. at 2. Murphy's "[i]ntellectual estimates show that [Young] operates at the low end of normal range of intellectual functioning." Id. According to Murphy, "[t]he most remarkable finding from [Young's] cognitive testing was the difference between his memory of previous events of an emotionally neutral nature and memories of an emotional nature." Id. at 3. "Within the same testing modality, after a two hour delay, [Young] could remember 90% of a 23 item emotionally neutral passage, but zero % of the same length emotionally laden passage." Id. In Murphy's opinion, "[t]he effect is most probably due to the use of extreme repressive defense mechanisms. . . ." Id. With respect to Young's personality, Murphy opined that Young "likely had his emotional needs well-met and well-challenged during his childhood formative years, but a more recent event or condition has produced the need for his personality to engage in defensive operations via withdrawal within himself and histrionic devices of a repressive nature." Id. at 4. "Psychological diagnostic trait testing suggests that [Young] suffers from no Axis I psychiatric condition of either a severe or milder type." Id. Young likely does have a "Compulsive Personality Disorder. . . ." Id. at 6. Notably, however, "[t]his type of psychiatric disorder is not typically associated with the commission of homicide." Id. "Other factors found some mild impulsiveness and possible low frustration tolerance but none connected with aggressive intentions." Id. Young "has no significant substance abuse history or sign of it from th[e] evaluation." Id. at 7. In Murphy's opinion, Young "likely would not aggress against any man in any situation," and "[t]herefore a case could have been made that [Young] does not serve a continuing thereat [sic] to society and much more strongly in an all male prison society." Id.
In addition to the mitigation evidence that Young's trial counsel failed to discover and present, the record on appeal establishes that Young's trial counsel actually presented the following stipulation of mitigating evidence to the jury during the second-stage proceedings:
That [Young] is 42 years of age and he has been a life-long resident of Tulsa;
[Young] has family, relatives that love him;
[Young] has been a minister in a church for 11 years;
[Young] is a veteran, having served in the U.S. Army and was honorably discharged.
ROA, Tr., Vol. III at 919.
Having recounted all of the available mitigating evidence, we next consider the evidence in aggravation presented by the prosecution. During the second-stage proceedings, the prosecution was permitted to incorporate by reference all of the first-stage evidence. This included testimony from various police witnesses describing the crime scene, as well as testimony from the Oklahoma State Medical Examiner describing the injuries suffered by Joyland and Kewan and the manner of their deaths. In addition to the incorporated *966 first-stage evidence, the prosecution presented the testimony of Catherine Morgan, who, as we have discussed, read into the record a victim impact statement she had prepared. Lastly, the state court records indicate that at the conclusion of the first-stage proceedings, the prosecution filed a notice of intent stating that, in the event Young offered mitigating evidence, it intended to offer testimony from the following witnesses in rebuttal of Young's mitigating evidence:
Joyslon Edwards: The prosecution's notice stated that Edwards would testify "that during March or April of 1993 . . . Young . . . attempted to force his way into Apartment # 5, 115 East 16th St., Tulsa, OK after previously being denied entry and after being informed that she did not wish to speak with him." State Court ROA, Vol. III at 435.
Dedra Morgan, Joyslon Edwards, or Jerry Griggs: According to the prosecution's notice, these witnesses[10] would "testify to statements made by Joyland Morgan prior to her death regarding the nature of her relationship with [Young]." Id. at 435-36. In particular, the prosecution's notice stated that these witnesses would "testify to allegations made by Joyland Morgan regarding sexual contact between [Young] and Joyland Morgan." Id. at 436.
Pam Floyd: The prosecution's notice stated that Floyd "w[ould] testify to an attack by [Young] in 1981 on her automobile after she refused to have sex with him. The existence, location, and specific information to be provided by this witness was not discovered until after the [first stage proceedings had] commenced." Id.
Before proceeding to "reweigh the evidence in aggravation against the totality of available mitigating evidence," Wiggins, 539 U.S. at 534, 123 S.Ct. 2527, we pause briefly to highlight the jury's second-stage findings and the OCCA's subsequent treatment of those findings. The jury, at the conclusion of the second-stage proceedings, found the existence of three aggravating circumstances: (1) that Young knowingly created a great risk of death to more than one person; (2) the murder was especially heinous, atrocious or cruel; and (3) the existence of a probability that Young would commit criminal acts of violence that would constitute a continuing threat to society. On direct appeal, the OCCA concluded that the jury's verdict form "[wa]s subject to only one reasonable interpretation: the jury found these three aggravating circumstances for each murder Count." Young I, 992 P.2d at 343. The OCCA further concluded that this constituted plain error because the prosecution "was permitted to charge and present evidence to support the `heinous, atrocious or cruel' aggravating circumstance as to Count II [the murder of Kewan], even though no notice had been given to the defense." Id. at 344. "To remedy this error," the OCCA struck "the `heinous, atrocious or cruel' aggravating circumstance from Count II" and "reweigh[ed] the aggravating and mitigating evidence as to this Count. . . ." Id. The OCCA also concluded that the evidence presented at trial was insufficient to support the continuing threat aggravating circumstance. Id. Citing one of its prior decisions holding "that in order to prove continuing threat the State must present evidence concerning prior convictions or unadjudicated crimes to show a pattern of criminal conduct that will likely continue in the future," *967 the OCCA noted that "the only evidence introduced of [Young's] past bad acts was five counts of uttering a forged instrument, and the fact Young became `snappy' and had an `attitude' when he drank." Id. The OCCA therefore struck the continuing threat aggravator as "invalid." Id. Finally, conducting its own reweighing of the valid aggravating factors and the mitigating evidence, the OCCA found "beyond a reasonable doubt" that, "[h]ad the jury considered only the valid aggravators," it "would have sentenced Young to death in both Counts."[11]Id. at 345.
We now turn directly to the process of reweighing the evidence. In doing so, we readily conclude that none of the available mitigating evidence would have prevented the jury from finding that Young knowingly created a great risk of death to more than one person, or from finding that Joyland's murder was especially heinous, atrocious or cruel. Those aggravating circumstances were clearly established by the prosecution's first-stage evidence, which was incorporated by reference into the second-stage proceedings, and nothing in the available mitigating evidence remotely touches on these two circumstances.
We further conclude that, had all of the available evidence been presented to the jury, not only would the jury have found the existence of the continuing threat aggravator, the OCCA would not have stricken it on direct appeal. To be sure, Dr. Philip Murphy opined in his affidavit that Young was unlikely to commit future violent acts, particularly in an all male prison setting. Thus, Murphy's testimony could arguably have operated to rebut the evidence cited by the prosecution in support of the continuing threat aggravator. That said, however, the state court record indicates that, had Young presented mitigating evidence, including the testimony of Dr. Murphy, the prosecution would have presented rebuttal testimony from three additional witnesses that would have provided additional support for the continuing threat aggravator. That evidence would have indicated that Young attempted to forcibly enter Joyslon Edwards' apartment in the spring of 1993, made sexual advances towards Joyland Morgan prior to her death, and attacked a woman in 1981 after she refused to have sex with him. Based upon this evidence, the jury could reasonably have found the existence of the continuing threat aggravator and, given the prosecution's proposed rebuttal evidence establishing Young's commission of two prior violent acts, the OCCA would not have stricken the continuing threat aggravator on direct appeal. Moreover, had the jury heard this additional rebuttal evidence, we are persuaded it would have viewed Young in a more negative light than it already did having heard only the evidence of Young's involvement in the two murders. That is, we are persuaded the state's rebuttal evidence would have reduced, if not eliminated, the possibility of the jury concluding that Young's killing of Joyland and Kewan was a one-time event resulting from extreme stress, and would, in turn, have increased the likelihood of the jury concluding that the murders were part of a pattern of violent conduct by Young towards women who rejected his sexual advances.[12]
*968 In sum, we conclude that, even if Young's trial counsel had presented all of the available mitigating evidence now cited by Young, the jury would still have found the existence of at least two, and perhaps three, aggravating circumstances, and in turn would have been required to weigh those aggravating circumstances against any mitigating circumstances it may have found.
That leads to the question of whether the presentation of the available mitigating evidence would have caused the jury to find the existence of one or more mitigating circumstances.[13] Had Young's trial counsel presented all of the mitigating evidence now cited by Young, it is likely that the jury would have found some mitigating circumstances. To begin with, the testimony from Young's family members could have, as argued by Young, "painted a picture of [him] that was [at least somewhat] sympathetic. . . ." Aplt. Br. at 34. In particular, the jury could reasonably have found that Young had a family, including parents, brothers, and sons, that loved and cared for him, and that, in turn, Young loved and cared for his family. Further, the jury could reasonably have found that Young had performed good deeds in his life, both inside and outside his ministry. In addition, the jury could reasonably have found that Young, as an adult, suffered from, and was negatively impacted by, the loss of both his brother and a son to sickle cell anemia. Finally, the jury could also have found that Young attempted to deal with his emotional distress from these losses by self-medicating with alcohol.
Importantly, however, we conclude that none of these potential mitigating circumstances substantially reduce Young's "moral culpability" for the two murders. Williams, 529 U.S. at 398, 120 S.Ct. 1495. Indeed, none of these mitigating circumstances are so unusual as to place Young outside the realm of the average person. Relatedly, unlike many capital defendants, Young's childhood appears to have been generally normal and happy (aside from, according to Dr. Draper, the controlling nature of Young's mother), and thus could not reasonably serve to reduce Young's moral culpability. As for Dr. Draper's opinions regarding Young's psychological and emotional attributes, none of those were particularly insightful or persuasive. For example, Dr. Draper opined that the murders were "an act committed by a person under severe emotional distress [presumably from the losses in his life, combined with the possible rejection from Joyslon Edwards]," and Young was "most likely unable to fully comprehend the nature of his actions or the consequences of what was taking place." ROA, Vol. II, Doc. 23, Exh. 17 at 13-14. While this may well be true, the causes of Young's emotional distress were not substantially out of the ordinary. Moreover, Young's reaction to his emotional distress could have been viewed by the jury as a negative factor, i.e., it could have been considered by the jury as making Young a particularly dangerous person, capable of extreme violence in reaction to relatively common life events.
Similarly, nothing in Dr. Murphy's affidavit provides a compelling or sympathetic *969 explanation for Young's violent behavior. Indeed, Murphy concluded that Young's "emotional needs [were] well-met and well-challenged during his childhood formative years," and his psychological testing of Young revealed "no Axis I psychiatric condition of either a severe or milder type." App. for Post-Conviction Relief, Exh. 6 at 4. Although Murphy did conclude that Young likely suffers from a "Compulsive Personality Disorder," he noted that "[t]his type of psychiatric disorder is not typically associated with the commission of homicide." Id. at 6.
In sum, we are not persuaded, weighing all of these factors together, that there is a reasonable likelihood that the jury would have reached a different second-stage outcome had it heard all of the available mitigating evidence now cited by Young. Thus, we conclude Young has failed to establish he was prejudiced by his trial counsel's deficient performance, and in turn we conclude he is not entitled to federal habeas relief in the form of a new second-stage proceeding.
f) The dissenting opinion
The dissenting opinion in this case suggests that, because "neither the jury, a state court, nor the federal district court ever heard the mitigating evidence that Mr. Young seeks to present," Dissent at 973, we should "remand the case to the district court for an evidentiary hearing on the prejudice component of Mr. Young's ineffective assistance of counsel claim," id. at 977. As we outline below, this suggestion has neither procedural nor substantive support.
Young asserted, in Ground Seven of his amended federal habeas petition, that he was entitled to a federal court evidentiary hearing in connection with his ineffective assistance claim. He did not otherwise indicate, however, whether his purpose in seeking such a hearing was to focus on the first Strickland prong, the second Strickland prong, or both. The district court, in its Opinion and Order denying relief, rejected Ground Seven on the merits, stating:
In his request for relief (Dkt. # 22 at 78-80), Petitioner asks for an evidentiary hearing on his ineffective assistance of counsel proposition. As the disposition of Petitioner's habeas corpus petition does not require reference to any materials beyond those that are available and currently before the Court, this Court finds that there is no need for an evidentiary hearing in this case. There are no disputed factual questions remaining that could possibly entitle Petitioner to habeas corpus relief. Petitioner has failed to demonstrate the need for an evidentiary hearing under either 28 U.S.C. 2254(e)(2) or any other governing principle of law. Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Accordingly, Petitioner's request for an evidentiary hearing is denied.
ROA, Vol. I, Doc. 58 at 48.
After filing his notice of appeal, Young filed an application for COA with the district court. The application asked the district court to issue a COA "on Grounds One [ineffective assistance], a portion of Ground Two [victim impact statement], Ground Five [admission of Young's "fish blood" statement] and Ground Six [cumulative error]." Id., Doc. 63 at 8. Notably, the application did not seek a COA with respect to Ground Seven of the amended habeas petition.
In his appellate brief, Young makes two fleeting references to his request for an evidentiary hearing. First, in outlining the procedural history of his case, Young notes that the district court denied his request for an evidentiary hearing. Aplt. *970 Br. at 6 ("Although Mr. Young had requested an evidentiary hearing on his ineffective assistance of counsel claim, none was granted."). Second, in the "SUMMARY OF THE ARGUMENT" section of his brief, Young states: "An evidentiary hearing, if held, would have conclusively demonstrated that trial counsel failed in all respects to follow ABA guidelines for capital defense work and would have revealed powerful evidence that Mr. Young could have used to convince a jury that the state had not met its burden to show that aggravating circumstances outweighed mitigating circumstances, or in the alternative, to show mercy despite its verdict on the weighing decision." Id. at 19. The remainder of Young's brief is silent with respect to the evidentiary hearing issue. In particular, Young offers no reasons why, in his view, the district court abused its discretion in rejecting his request for an evidentiary hearing, nor does he expressly request a COA with respect to the issue.
Thus, from a procedural standpoint, the issue of whether the district court abused its discretion in denying Young's request for an evidentiary hearing in connection with his ineffective assistance claim is not properly before us. No COA has been requested or granted on this issue.
Even if we were, as the dissent essentially proposes, to ignore Young's failure to be granted, or to even request, a COA, there are a host of reasons why the dissent's proposal for an evidentiary hearing should not be adopted. To begin with, the dissent mistakenly asserts "that the proper standard for assessing Mr. Young's claims of prejudice is whether `his allegations, if true and not contravened by the existing factual record, would entitle him to habeas relief.'" Dissent at 974 (quoting Bland v. Sirmons, 459 F.3d 999, 1033 (10th Cir.2006)). The problem with this assertion is that it conflates the pre-AEDPA standard that we apply "when `a habeas petitioner has diligently sought to develop the factual basis underlying his habeas petition, but a state court has prevented him from doing so,'" Bland, 459 F.3d at 1033 (quoting Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir.1998)), with the clearly established Strickland prejudice inquiry. Young is entitled to an evidentiary hearing if "his allegations, if true and not contravened by the existing factual record, would entitle him to habeas relief." Id. at 1033. But he is only entitled to habeas relief if his allegations establish "a reasonable probability that, absent [counsel's] errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Thus, the Bland and Strickland standards work in conjunction with each other. Here, as we have shown, Young's allegations, even assuming them to be true, are insufficient to demonstrate prejudice under Strickland. Therefore the district court was not required to hold a hearing. See Schriro, 127 S.Ct. at 1940.
Relatedly, the dissent is mistaken in suggesting that "the flaw in" the majority's prejudice analysis is our reliance "on information that was never presented from the witness stand," including not only the prosecution's proposed rebuttal testimony, but also the testimony of Drs. Draper and Murphy. Dissent at 974. By necessity, a claim that counsel was ineffective for failing to investigate and present available mitigating evidence focuses on information that was never presented to or heard by the jury. Nothing in controlling Supreme Court precedent, however, requires presentation of that evidence to a factfinder before the Strickland prejudice inquiry is resolved. To the contrary, the Court in Strickland emphasized that "[i]neffectiveness is not a question of `basic, primary, or *971 historical fac[t],'" but rather "is a mixed question of law and fact." 466 U.S. at 698, 104 S.Ct. 2052 (quoting Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)). In turn, the Court in Strickland, consistent with its characterization of the issue as a mixed question of law and fact, conducted its own prejudice analysis, as we have done here, by accepting the proffered evidence at face value. See id. at 675, 104 S.Ct. 2052 (noting that, in his state collateral proceedings, Strickland "submitted 14 affidavits from friends, neighbors, and relatives," as well as "one psychiatric report and one psychological report"), at 678, 104 S.Ct. 2052 (noting that the federal district court "held an evidentiary hearing to inquire into trial counsel's efforts," at which Strickland "offered the affidavits and reports he had submitted in the state collateral proceedings," and "also called his trial counsel to testify"), at 699-700, 104 S.Ct. 2052 (concluding that "[t]he evidence that [Strickland] says his trial counsel should have offered at the sentencing hearing would barely have altered the sentencing profile presented to the sentencing judge").
The dissent is also mistaken in implying that our prejudice analysis is dependent in large degree on the "potential testimony of the prosecution's three rebuttal witnesses." Dissent at 973-74. The fact is that the outcome of our prejudice analysis would be the same even if, in reweighing the evidence, we were to consider only the aggravating evidence that was actually relied on by the prosecution at trial, i.e., all of the first-stage evidence that detailed the brutal and callous nature of the two murders that Young committed. That first-stage evidence, standing alone, was clearly sufficient to establish the aggravating factors found by the jury and affirmed by the OCCA (i.e., the knowing creation of great risk of death to more than one person, and that Joyland Morgan's murder was committed in a heinous, atrocious or cruel manner), and we are not persuaded that there is a reasonable probability that the presentation of testimony from Drs. Draper and Murphy would have caused the jury to conclude "that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. 2052. As for the three rebuttal witnesses proposed by the prosecution, our point in discussing it was simply to highlight the fact that, had Young's trial counsel presented testimony from Drs. Draper and Murphy, the prosecution in turn would have presented additional, highly prejudicial evidence that would likely have supported a finding that Young was a continuing threat.
The limited scope of the dissent's proposed evidentiary hearing is also problematic. According to the dissent, "both Mr. Young and the government" should be allowed "to present evidence regarding the prejudicial effect, if any, of the deficient performance of Mr. Young's trial counsel." Dissent at 973. As we see it, however, that would necessitate allowing the government to put on all of the evidence that was originally presented during the first-stage of Young's trial. More specifically, because such evidence was incorporated by reference during the second-stage proceedings of Young's trial, it was, and remains, relevant to the aggravating factors alleged by the prosecution, and in turn is relevant to the determination of whether Young was prejudiced by his trial counsel's failure to present the mitigating evidence to which he now points. Thus, the proposed evidentiary hearing would, in the end, effectively amount to a new second-stage proceeding, albeit with a judge acting as factfinder, rather than a jury. In other words, in the name of resolving the prejudice component of Young's ineffective assistance claim, we would, in effect, be *972 granting him the exact type of relief that he seeks in these federal habeas proceedings.
It is also apparent that the dissent has failed to carefully consider what its proposed evidentiary hearing would mean for the ultimate resolution of Young's ineffective assistance claim on appeal. Presumably, the dissent would allow the district court to make credibility findings regarding Drs. Draper and Murphy, as well as to the other witnesses presented by Young and the prosecution. In turn, those findings, which would be factual in nature, would presumably be reviewable on appeal only for clear error. In short, the dissent's proposed evidentiary hearing would transform what the Supreme Court has clearly stated is a mixed question of law and fact into a purely factual issue and, in doing so, would improvidently shift to the district court the great weight of the burden of resolving Strickland-based claims such as the one asserted by Young.
Finally, it bears mentioning that if an evidentiary hearing is warranted in this case, then it would presumably be warranted in any habeas proceeding in which a capital defendant asserts his counsel was ineffective for failing to present available mitigating evidence. Nothing in Supreme Court precedent mandates such a result.
Cumulative Error
Lastly, Young argues that "[b]oth of the errors complained of" in this appeal, "and alternatively each of the errors complained of in the district court petition[,] warrant. . . habeas corpus relief in the form of a new sentencing proceeding." Aplt. Br. at 50-51. Young also offers a third cumulative error theory in support of his request for a new sentencing proceeding, asserting that we should "cumulatively assess the impact of the [trial] errors" found by the OCCA on direct appeal "and grant habeas relief accordingly." Id. at 52. In this regard, Young notes that on direct appeal, the OCCA "determined that the trial court failed to remove two venire members for cause, that misleading statements were contained in the affidavit for probable cause supporting the request for a search warrant, the trial court did not provide the jury with a proper form for finding aggravating circumstances as to each murder count, and the trial court failed to give an instruction limiting the jury's use of victim impact evidence." Id. at 51-52.
"`A cumulative-error analysis aggregates all errors found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.'" Brown v. Sirmons, 515 F.3d 1072, 1097 (10th Cir.2008) (quoting United States v. Toles, 297 F.3d 959, 972 (10th Cir.2002)). Notably, in the federal habeas context, cumulative error analysis applies only to cumulative constitutional errors. See Jackson v. Johnson, 194 F.3d 641, 655 n. 59 (5th Cir.1999) ("The cumulative error doctrine provides relief only when the constitutional errors committed in the state court trial so fatally infected the trial that they violated the trial's fundamental fairness.") (emphasis added).
Addressing Young's theories in order, it is clear that cumulative error analysis does not apply to the two substantive issues raised in his federal habeas appeal because only one of those issues, i.e., the ineffective assistance claim, has any merit. Thus, there is "nothing to cumulate." Turner v. Quarterman, 481 F.3d 292, 301 (5th Cir. 2007) (internal quotation marks omitted).
Young's second cumulative error theory is unusual in that it relies not only on the two substantive issues upon which a COA were granted, but also upon all of the *973 other issues raised in his federal habeas petition. Young does not cite to any cases to support this theory, and our own research has not produced any. In the end, we conclude there is no basis for us to consider that theory because the other issues raised in Young's federal habeas petition were rejected by the district court and neither the district court nor we have granted a COA with respect to those issues.
That leaves Young's final theory, which posits that we must consider the cumulative impact of all the errors recognized by the OCCA on direct appeal. That theory is even more problematic than the second in that it relies in part on state law issues that were not, and could not provide, a legitimate basis for federal habeas relief, and were thus never raised in Young's federal habeas petition. We therefore reject this theory without further analysis.
AFFIRMED.
HENRY, Chief Judge, concurring in part and dissenting in part.
I concur fully with the majority's opinion, except for its analysis of the prejudice component of Mr. Young's ineffective assistance of counsel claim. On that claim, my concern is that neither the jury, a state court, nor the federal district court ever heard the mitigating evidence that Mr. Young seeks to present.
In this capital case, we must be mindful of the principle that "sentences of death are `qualitatively different' from prison sentences," and that, as a result, "[the Supreme Court] has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake." Eddings v. Oklahoma, 455 U.S. 104, 117-18, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (O'Connor, J., concurring) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). I would therefore remand the case to the district court for an evidentiary hearing that would allow both Mr. Young and the government to present evidence regarding the prejudicial effect, if any, of the deficient performance of Mr. Young's trial counsel.
In explaining my views, I will begin with my understanding of the majority's analysis and then turn to the standard that I would apply. Finally, I will explain why I believe Mr. Young is entitled to an evidentiary hearing under that standard.
The majority concludes that Mr. Young has failed to establish that his trial counsel's deficient performance prejudiced him. In addition to basing its opinion on "[the] aggravating circumstances . . . clearly established by the prosecution's first-stage evidence," maj. op. at 967, the majority details the impact of the potential testimony of the prosecution's three rebuttal witnesses. The majority concludes that the testimony of these witnesses could have led the jury "reasonably [to] have found the existence of the continuing threat aggravator," which in turn would have been upheld by the OCCA. Maj. op. at 967. Additionally, in the majority's view, this testimony (which was never presented) "would . . . have increased the likelihood of the jury concluding that the murders were part of a pattern of violent conduct by [Mr.] Young towards women who rejected his sexual advances." Id.
Further, the majority concludes that none of the mitigating circumstances invoked by Mr. Young substantially reduce his culpability for the two murders. In the majority's view, these circumstances do not place Mr. Young outside the realm of *974 the average person. Moreover, Dr. Wanda Draper's opinions regarding Mr. Young's psychological and emotional attributes are not "particularly insightful or persuasive." Id. at 968. Additionally, "[Mr.] Young's reaction to his emotional distress could have been viewed by the jury as a negative factor, i.e., it could have been considered by the jury as making [Mr.] Young a particularly dangerous person, capable of extreme violence in reaction to relatively common life events." Id.
In my view, the flaw in this approach is its reliance on information that was never presented from the witness stand. What we know of the prosecution's rebuttal witnesses comes from a pleading filed by the prosecutor that merely summarizes anticipated testimony, while, as to Mr. Young's mitigation witnesses, we have only affidavits. Moreover, the lack of a well-developed factual record cannot be imputed to Mr. Young. Instead, it was Mr. Young's counsel's deficient performance that kept the mitigation evidence from the jury. And in the state post-conviction and federal habeas proceedings, the courts denied Mr. Young's requests for an evidentiary hearing.
As a result, I believe that the proper standard for assessing Mr. Young's claims of prejudice is whether "his allegations, if true and if not contravened by the existing factual record, would entitle him to habeas relief." Bland v. Sirmons, 459 F.3d 999, 1033 (10th Cir.2006) (quoting Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998)). If so, he is entitled to an evidentiary hearing. Id. Importantly, I view "the existing factual record" as the evidence presented at trial, which Mr. Young had an opportunity to contest. See generally Wilson v. Sirmons, 536 F.3d 1064, 1079 (10th Cir.2008) (distinguishing between "non-record evidence" and "the trial record" in discussing the standard of review under AEDPA).
"The existing factual record" does not include the prosecution's summary of rebuttal witnesses' testimony, on which the majority relies here. That limitation is grounded in the Due Process Clause, which ensures that a defendant is provided with an opportunity to test or rebut the prosecution's evidence before it is used against him, Simmons v. South Carolina, 512 U.S. 154, 161, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), as well as the Eighth Amendment, which "imposes a heightened standard for reliability in the determination that death is the appropriate punishment in a specific case." Id. at 172, 114 S.Ct. 2187 (Souter, J., concurring) (collecting cases) (internal quotation marks omitted).[1]
*975 Here, Mr. Young's allegations are not contravened by the existing factual record and, accepted as true, warrant an evidentiary hearing on his claim for ineffective assistance of counsel. There is no dispute that "the investigatory efforts of [Mr.] Young's trial counsel fell far short of the prevailing standards for capital defense work[,]" thereby establishing the first element of the claim. Maj. op. at 957; see generally Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Indeed, the state's counsel commendably acknowledged at oral argument that "I don't think that there's a reviewing court in the land today that would say there's no deficient performance, even though this is not a case where nothing was done."
As to the second elementwhether the deficient performance was prejudicial Mr. Young must demonstrate a "reasonable probability" that counsel's performance prejudiced him, meaning a probability "sufficient to undermine confidence in the outcome." Id. That is less than a preponderance of the evidence, for "a defendant need not show that counsel's deficient performance more likely than not altered the outcome of the trial." Id. at 693, 104 S.Ct. 2052 (emphasis supplied).
Based on Mr. Young's affidavits, the jury could have heard Mr. Young's sons state that their father's life still has value to them and that they would visit him in prison. The failure to present similar testimony has been deemed prejudicial. See, e.g., Williams v. Anderson, 460 F.3d 789, 805 (6th Cir.2006) ("In addition to presenting the jury with mitigating evidence, the testimony of Petitioner's family and friends would have humanized Petitioner. Thus, the evidence listed above creates a reasonable probability that one juror would have voted against death."); Marshall v. Cathel, 428 F.3d 452, 470 (3d Cir. 2005) ("[N]ot only were Marshall's boys willing to testify, but that the sort of things to which they were prepared to testify [that they loved their father and wanted the jury to spare his life] could have served as powerful mitigation evidence."); Warner v. State, 29 P.3d 569, 574-75 & n. 10 (Okla.Crim.App.2001) (finding prejudice where counsel failed to present live testimony from the defendant's mother that "she loves her son very much and that it would be devastating for her if he were sentenced to death"); cf. Coddington v. State, 142 P.3d 437, 459 (Okla. Crim.App.2006) ("The humanizing effect of live testimony in the form of a mother testifying for her son as mitigation evidence in a capital murder trial cannot seriously be disregarded as irrelevant." (collecting cases)).
The jury could also have heard Dr. Wanda Draper explain that emotional trauma due to Mr. Young's overprotective mother, the loss of close relatives due to sickle cell anemia, and the potential loss of his relationship with Joyslon combined with alcohol use affected Mr. Young's mental state, making him less culpable. In Dr. Draper's view, Mr. Young's actions "could have been a result of distortion in his rational thinking by way of severe trauma to the limbic system in the midbrain" due to the severe emotional trauma and use of alcohol. Wanda Draper affidavit at 13. Dr. Draper's opinions suggest that Mr. Young's behavior *976 was not the product of cold-blooded premeditation but a compulsive reaction for which he is less culpable.
Like the testimony of family members, this kind of evidence of mental or emotional instability is strong mitigation evidence in capital cases. The Supreme Court has recognized that evidence tending to diminish moral culpability is relevant to determine prejudice, especially evidence "consistent with the view that [the defendant's] violent behavior was a compulsive reaction rather than the product of cold-blooded premeditation." Williams v. Taylor, 529 U.S. 362, 398, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Smith v. Mullin, 379 F.3d 919, 943-44 (10th Cir.2004) (observing that "[t]he jury . . . never received an explanation for [the defendant's] behavior" and concluding that counsel's deficient performance was prejudicial).
I certainly agree with the majority that Dr. Draper's testimony may be called into question and that there may well be aspects of Mr. Young's past behavior that could have been introduced to support a continuing threat aggravator. I also believe that the majority correctly emphasizes the brutality of the murders. However, without hearing the mitigating evidence, the jury did not know what to weigh against this brutality: we do not know what turned Mr. Young from a minister into a murderer. Cf. Hoffman v. Arave, 236 F.3d 523, 536 (9th Cir.2001) ("Without the benefit of an evidentiary hearing, it is impossible to evaluate the strength of [the petitioner's] defense at trial and sentencing. Therefore, we cannot conclude as a matter of law that there is no reasonable possibility that offering expert testimony and a thorough history of [the petitioner's] educational, medical, and psychological problems at the time of the murder might have reduced the likelihood that the death penalty would have been imposed."). Accordingly, I would commit these questions to the wisdom of the district court, which would have the important opportunity, which we do not, of hearing witnesses testify under oath at an evidentiary hearing, and which would allow both the Mr. Young and the government the chance to respond to their adversaries' evidence. See generally Boumediene v. Bush, ___ U.S. ___, 128 S.Ct. 2229, 2270, 171 L.Ed.2d 41 (2008) (noting that "[f]ederal habeas petitioners long have had the means to supplement the record on review, even in the postconviction habeas setting").
Unlike the majority, I do not think that a remand for an evidentiary hearing would "necessitate [either] allowing the government to put on all the evidence that was originally presented during the first stage of [Mr.] Young's trial" or transform a mixed question of law into a purely factual matter. Maj. op. at 971. In particular, as part of its prejudice inquiry, the district court could review the trial court record (as we have), allow the parties to present additional relevant evidence, and then proceed to make both factual findings and legal determinations. Cf. Smith v. Mullin, 379 F.3d 919, 935-44 (10th Cir.2004) (noting that the district court was not convinced by a diagnosis by one of the petitioner's experts and that "we must defer to this credibility determination" but also reviewing the district court's legal conclusion that the petitioner had not established prejudice under Strickland). The circumstances warranting a hearing hereclear and admitted deficient performance, a failure to present any mental health testimony, an incorrect application of procedural bar, and psychological evaluations from expert witnesses that were funded by the state but never heard by any factfinder will not be present in every case alleging *977 that counsel failed to present mitigating evidence.
In summary, at this stage of the proceedings, I believe that, accepting Mr. Young's allegations as true, "the . . . mitigating evidence, taken as a whole, might well have influenced the jury's appraisal of [Mr. Young's] moral culpability," Wiggins v. Smith, 539 U.S. 510, 538, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (internal quotation marks omitted), and the likelihood of a different result if the evidence had been considered is "sufficient to undermine confidence in the outcome" actually reached at sentencing. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. I would therefore remand the case to the district court for an evidentiary hearing on the prejudice component of Mr. Young's ineffective assistance of counsel claim.
NOTES
[1] The bill of particulars did not identify to which of the two murders the second and third alleged aggravating circumstances were referring. The prosecution subsequently filed a "notice of evidence in aggravation of punishment" that indicated the "heinous, atrocious or cruel" aggravator referred to the murder of Joyland, and that the "avoiding or preventing lawful arrest or prosecution" aggravator referred to the murder of Kewan. State Court ROA, Vol. I at 73-74.
[2] According to the state court record, Young's trial counsel did not formally file the application with the clerk of the court until August 5, 1994.
[3] The two counselors named in the pleading were "Linda Palmer, MS, LPC, LMFT and Sandra Caster, MS, LPC," both of Tulsa, Oklahoma. State Court ROA, Vol. I at 70.
[4] Consistent with the bill of particulars, the jury's verdict form did not specify which of the two murders this aggravating circumstance pertained to. Although the prosecution had filed a "notice of evidence in aggravation of punishment" indicating that this aggravating circumstance related only to the murder of Joyland, "[a]t trial the prosecutor ignored this self-imposed limitation and argued each aggravating circumstance as to each murder count." Young I, 992 P.2d at 343.
[5] Young made this factual assertion in connection with an argument on direct appeal that the state trial court failed to ensure that he intelligently and knowingly waived his constitutional right to present mitigation evidence.
[6] Although the district court concluded that the OCCA erroneously "required [Young] to show by `clear and convincing evidence' that he was prejudiced by counsel's failure to utilize available mitigation evidence," ROA, Doc. 58 at 17, we agree with respondent that the OCCA was instead determining merely whether Young was entitled to an evidentiary hearing pursuant to OCCA Rule 3.11(B)(3)(b) on his ineffective assistance claim. At no point, as far as we can determine, did the OCCA actually apply the Strickland standard in light of the additional mitigation evidence presented by Young in connection with his request for an evidentiary hearing.
[7] Even if we were to assume otherwise, we would still apply a de novo standard of review to Young's Strickland claim due to the OCCA's failure to consider the mitigating evidence presented by Young in his application for post-conviction relief (i.e., the affidavits of Drs. Draper and Murphy).
[8] Rickman filed his application for federal habeas relief on March 5, 1985, more than a decade prior to the implementation of the AEDPA. Thus, the Sixth Circuit, in affirming the grant of Rickman's request for federal habeas relief, was not bound by AEDPA's deferential standards of review. See Rickman, 131 F.3d at 1153-54 (outlining standards of review).
[9] As we have noted, Murphy's affidavit was obtained by Young's state post-conviction counsel and submitted in connection with the application for state post-conviction relief. Curiously, however, Young makes no mention of Murphy's affidavit in his appellate brief, and thus it is unclear if he intended to abandon reliance on it. Out of an abundance of caution, we will consider it in determining whether Young can establish prejudice under the second prong of the Strickland test.
[10] The prosecution's notice erroneously listed Joyslon Edwards as "Joyslon Morgan." State Court ROA, Vol. III at 435.
[11] As we have already noted, the OCCA's independent reweighing of the aggravating and mitigating evidence is not entitled to deference on federal habeas review because the OCCA did not take into account all of the mitigating evidence that Young's counsel failed to discover and present at trial.
[12] In contrast to the situation in Williams, where the evidence indicated that the defendant's "violent behavior was a compulsive reaction rather than the product of cold-blooded premeditation," 529 U.S. at 398, 120 S.Ct. 1495, we note the opposite was true in Young's case. Although the evidence indicates that Young's actions were in reaction to Joyslon's efforts to alter the nature of their relationship (as well as possibly in reaction to Joyland's rejection of his sexual advances), the actual murders were clearly not "a compulsive reaction" occurring in the moment, but rather demonstrated a degree of planning on Young's part, and thus could reasonably be described as "the product of cold-blooded premeditation."
[13] We note that the jury in Young's case was not asked to specify whether it found the existence of any mitigating factors.
[1] I acknowledge that Mr. Young's counsel did not ask for a certificate of appealability (COA) as to the district court's denial of his request for an evidentiary hearing. However, his counsel did ask for COA on the rejection of his ineffective assistance of counsel claim and argued, in his opening brief, that "[a]n evidentiary hearing, if held, . . . would have revealed powerful evidence that Mr. Young could have used to convince a jury that the state had not met its burden to show that aggravating circumstances outweighed mitigating circumstances, or in the alternative, to show mercy despite its verdict on the weighing decision." Aplt's Br. at 19.
Accordingly, I believe that this court has discretion to remand the case for an evidentiary hearing on that claim. See Houston v. Schomig, 533 F.3d 1076, 1083 n. 4 (9th Cir. 2008) ("While the dissent correctly points out that neither party formally requested an evidentiary hearing, Houston raised the need for such a hearing during oral arguments. Moreover, we have previously remanded for an evidentiary hearing sua sponte `to assist the court in making an accurate determination.'") (quoting Butler v. Curry, 528 F.3d 624, 651 (9th Cir.2008) (emphasis supplied)); see also Mancill v. Hall, 545 F.3d 935, 939 (11th Cir. Oct. 17, 2008) (ordering supplemental briefing on the issue of whether the district court erred in denying the petitioner's request for an evidentiary hearing, even though the court had granted a COA only on the issue of "[w]hether the district court erred when it denied appellant's ineffective assistance of counsel claims as unexhausted and procedurally defaulted"); Winfield v. Roper, 460 F.3d 1026, 1040 (8th Cir.2006) (observing that the court has "the discretion to expand the certificate of appealability" and that "we exercise that discretion carefully").
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498 F.Supp. 161 (1980)
Orlin J. LADWIG and Joanne Ladwig, Plaintiffs,
v.
TRUCK INSURANCE EXCHANGE, Garrett Freight Lines, Inc., and David Stasch, Defendants.
Civ. A. No. 80-C-36.
United States District Court, E. D. Wisconsin.
October 17, 1980.
*162 Donald E. Koehn, Sheboygan Falls, Wis., for plaintiffs.
Michael L. Quirk, Milwaukee, Wis., for defendants.
DECISION and ORDER
REYNOLDS, Chief Judge.
This is a diversity action arising out of a highway collision which occurred in Shoshone County, Idaho, on February 1, 1978. The collision involved a truck operated by plaintiff Orlin J. Ladwig, a Wisconsin resident, and a truck operated by defendant David Stasch, an Idaho resident. The truck operated by Stasch was owned by defendant Garrett Freight Lines, Inc. ("Garrett") which is a corporation organized under the laws of Idaho. At the time of the accident, Garrett's trucks were covered by a liability insurance policy issued by defendant Truck Insurance Exchange which is a corporation organized under the laws of California. The policy was issued in Los Angeles, California, *163 and delivered to Garrett's home office in Pocatello, Idaho.
Currently before the court is defendants' motion to dismiss the complaint for lack of personal jurisdiction. Since all parties have submitted affidavits in support of their positions, the motion will be treated as one for summary judgment.
In determining whether the court has personal jurisdiction over an out-of-state defendant, I must apply the long-arm statute of the state in which the court sits. Thill Securities Corp. v. New York Stock Exchange, 283 F.Supp. 239 (E.D.Wis.1968). Thus, reference must be made to § 801.05 of the Wisconsin Statutes.
Plaintiffs concede that the Wisconsin long-arm statute does not confer personal jurisdiction over defendant Stasch, an Idaho resident who has no contacts with the State of Wisconsin. A dispute does remain, however, with respect to defendants Garrett and Truck Insurance Exchange.
Plaintiffs seek to base the court's jurisdiction over Garrett on § 801.05(1)(d) Wis. Stats., which confers personal jurisdiction over any defendant who "[i]s engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise."
According to the affidavits submitted to the court, Garrett is an Idaho corporation which at no time has ever maintained an office in Wisconsin. Garrett is not authorized to do business in Wisconsin and has no assets, property, or employees located in Wisconsin. Garrett does, however, have authority from the Interstate Commerce Commission to transport certain commodities through the State of Wisconsin on an irregular basis. Pursuant to that authority, Garrett trucks have travelled 2,203 miles on Wisconsin roads since 1973. The majority of those miles were travelled in 1976, and no miles have been travelled since 1977.
During the period from 1973, Garrett trucks have travelled a total of 455,620,051 miles nationwide. Thus, the miles travelled on Wisconsin roads represent .00048 of Garrett's total business. In dollar terms, Garrett generated $3,524.80 from its Wisconsin operations, compared to total revenues of $729,103,000.
I find that the infrequent use of Wisconsin roads by Garrett does not constitute the "continuous and systematic" activity necessary to confer jurisdiction under § 801.05(1)(d). Towne Realty, Inc. v. Bishop Enterprises, Inc., 432 F.Supp. 691, 694 (E.D.Wis.1977). Garrett's contacts with Wisconsin are isolated and totally unconnected with the subject matter of this lawsuit. Accordingly, I must hold that the plaintiffs have failed to establish personal jurisdiction over Garrett.
The question with respect to Truck Insurance Exchange is technically not one of personal jurisdiction but rather is a question of whether the company may be sued pursuant to Wisconsin's direct action statute § 901.05(10), Wis.Stats., Utz v. Nationwide Mutual Insurance Co., 619 F.2d 7 (7th Cir., 1980).
The court has been provided with a copy of the relevant insurance policy which contains a "no-action" clause providing that no action may be brought against the insurer unless a judgment is first obtained against the insured. It is well settled that in the absence of certain equitable considerations discussed below a no-action clause will be given effect if the accident occurred outside Wisconsin and the insurance policy was issued or delivered outside the state. Bielke v. Iowa National Mutual Insurance Co., 451 F.Supp. 376 (E.D.Wis.1978); Scribbins v. State Farm Mutual Automobile Insurance Co., 304 F.Supp. 1268 (E.D.Wis. 1969). In this case it is conceded that the accident occurred outside of Wisconsin. In addition, the insurance policy shows on its face that it was issued and delivered outside of the state. Accordingly, Truck Insurance Exchange is not a proper party defendant unless plaintiffs can show that the company should be equitably estopped from raising such a defense.
The estoppel doctrine has its genesis in the case of Kirchen v. Orth, 390 F.Supp. 313 (E.D.Wis.1975). In that case, the Court *164 found that the defendant insurance company through its conduct during extensive and ongoing settlement negotiations with the plaintiff's attorney had consistently misled him into believing that the policy of insurance would be available to the plaintiffs in their suit in Wisconsin. Such conduct was held to estop the company from relying on the no-action clause contained in the insurance policy.
Hoping to bring themselves under the holding of Kirchen, plaintiffs have submitted affidavits from Mr. Ladwig, his attorney Mr. Koehn, and a representative of Mr. Ladwig's workmen's compensation carrier. All that these affidavits establish, however, is that Truck Insurance Exchange regularly requested information on Mr. Ladwig's condition and the extent of his medical bills. There is no indication that the company ever embarked upon settlement negotiations and, more importantly, that it ever led plaintiffs to believe that the company would be amenable to suit in Wisconsin. Accordingly, Kirchen does not apply and the no-action clause must be given effect.
The fact that the court does not have personal jurisdiction over the defendants does not necessarily mean that the action must be dismissed. The Court also has the option of transferring the action to a district where personal jurisdiction over the defendants could be established. 28 U.S.C. § 1406(a); Goldlawr Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962); O'Neal v. Hicks Brokerage Co., 537 F.2d 1266 (4th Cir. 1976); Mayo Clinic v. Kaiser, 383 F.2d 653 (8th Cir. 1967). Since the defendants have voiced no objection to such procedure, and since it appears that if the action is dismissed plaintiffs may be barred from refiling in the Idaho state or federal court by Idaho's two-year statute of limitations, the action will be transferred to the United States District Court for the District of Idaho.
IT IS THEREFORE ORDERED that defendants' motion to dismiss the complaint is hereby denied.
IT IS FURTHER ORDERED that the above-entitled action be and hereby is transferred to the United States District Court for the District of Idaho.
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583 P.2d 89 (1978)
The STATE of Utah, Plaintiff and Respondent,
v.
Michael Paul ADAMS, Defendant and Appellant.
No. 15353.
Supreme Court of Utah.
August 1, 1978.
*90 Robert B. Hansen, Atty. Gen., Craig L. Barlow, Asst. Atty. Gen., R. Paul Van Dam, Salt Lake County Atty., David E. Yocom, Deputy Salt Lake County Atty., Salt Lake City, for defendant and appellant.
Don E. Hammill and Phil L. Hansen of Hansen & Hansen, Salt Lake City, for plaintiff and respondent.
CROCKETT, Justice:
Michael Paul Adams appeals his conviction by a jury of manslaughter, as an included offense in a charge of second degree murder.[1]
His principal claim of error relates to the admission of a self-incriminatory statement: (1) that the court did not conduct a full hearing on the issue of its voluntariness, (2) that the court did not instruct the jury on the credibility of the witness to whom the admission was made, and (3) that the prosecution failed to disclose to the defense that the statement would be used in the trial.
In the evening of June 21, 1976, defendant went to the Crest Club in Murray. While there, he saw and conversed with one Charles Goodman, an acquaintance. During their conversation, a heated exchange broke out between them in which Goodman loudly stated that he had had sex relations with defendant's wife. Defendant then went to a telephone booth within the club to make a phone call. Upon returning, he removed a pistol from his boot and threatened to kill Goodman. He repeated the threat a number of times and proceeded to hit Goodman on the head with the butt of his pistol. The victim of this crime, Gerald Braithwaite, another customer in the tavern attempted to stop the violence. Apparently for the same purpose, Ken Bates, a Deputy Sheriff, who was off-duty and unarmed, threw a glass ashtray at defendant, striking him on the right side of the head and eye. During this affray defendant shot Braithwaite in the neck, killing him; turned and shot twice at Goodman as he fled from the room. The police arrived shortly and arrested the defendant.
Defendant does not deny the basic facts of the situation just described. At the trial he admitted that he pointed his gun at Goodman and that he threatened to kill him. However, he denied that he had any intention of actually killing anyone; and stated that he has no recollection of actually firing his gun. After defendant was arrested and placed in a police car, one of the officers, Joel Reit, gave him what is now known as the "Miranda warning" as to his rights. He then asked the defendant "Would you tell me what happened?" To which defendant responded:
"Well I had to shoot the man. They were coming at me all at once and I can handle *91 one or two at a time, but I can't handle five at once."
Upon some further questioning, the defendant refused to give any more answers until he had an attorney.
The first observation we make about defendant's complaint that the trial court did not conduct a full-dress hearing as to whether his statement above quoted was voluntary is to wonder what difference it could make to his conviction of manslaughter. (Which incidentally does not impress us as an unfavorable result, considering the circumstances shown.) Several witnesses saw him shoot Braithwaite and shoot at Goodman. The statement about which he complains is nothing more than an acknowledgement of that undisputed fact, together with his assertion of justification therefor. Nevertheless, we treat his contention.
It is not to be questioned that the trial court has a duty to exercise care as to the credibility of evidence. And this includes the exclusion of confessions or admissions which may be obtained by force or duress or other improper means. The distinction between confessions and admissions and the method by which their voluntariness or credibility should be inquired into is treated in the case of State v. Crank.[2]
The means by which the trial court discharges its responsibility of seeing that justice is done may vary according to the circumstances of the particular case and rests largely within its discretion.[3] In this instance, there is nothing in the evidence to indicate other than that the defendant, after being advised of his rights, voluntarily answered Officer Reit's question as to what had happened. It also appears that at this juncture of the trial the court excused the jury, and afforded defendant ample opportunity to explore the issue of voluntariness, before admitting the testimony. We perceive nothing about the circumstances of this case from which it could reasonably be concluded that the trial court should have done any more than was done, or that the defendant suffered any prejudice.
Defendant's contention that he was entitled to an instruction concerning the credibility of Officer Reit's testimony is without merit. It seems particularly strange that such an argument is made here when the record shows that his counsel told the trial court that he did not intend to request any such instruction. In addition to the fact that it is not error to fail to give an instruction when none is requested, the more important proposition is that under our law the court does not comment on the evidence nor upon the credibility of testimony; that is left exclusively to the jury.[4]
In regard to defendant's final point: that prejudicial error was committed because the prosecution did not disclose to him that it intended to use the testimony of Officer Reit concerning defendant's admission, this is to be said: we are in agreement with the proposition that the prosecution is under an obligation to treat the defendant fairly; and that it cannot wilfully suppress evidence favorable to him for the purpose of obtaining a conviction.[5] However, as will be seen from what has been said above, there was no abuse of that principle. The defendant and his counsel were aware of what had happened; and there was no suppression of evidence involved.
Affirmed. No costs awarded.
ELLETT, C.J., and MAUGHAN, WILKINS and HALL, JJ., concur.
NOTES
[1] Sec. 76-5-205, U.C.A., 1953.
[2] 105 Utah 332, 142 P.2d 178, 170 A.L.R. 542.
[3] State v. Louden, 15 Utah 2d 64, 387 P.2d 240 (1963), vacated on other grounds, 379 U.S. 1, 85 S.Ct. 87, 13 L.Ed.2d 23 (1964).
[4] See Utah Const., Art. I, Sec. 12; U.C.A., Sec. 77-31-31; State v. Schoenfeld, Utah, 545 P.2d 193; State v. James, 32 Utah 152, 89 P. 460.
[5] U.S. v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1972).
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