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Opinion filed March 12, 2009
Opinion filed March 12,
2009
In The
Eleventh
Court of Appeals
____________
No. 11-07-00025-CV
__________
SUN-KEY OIL CO., INC., Appellant
V.
ERNEST CANNON AND MONCRIEF
MINERALS PARTNERSHIP, L.P., Appellees
On
Appeal from the 266th District Court
Erath
County, Texas
Trial
Court Cause No. 27585
M E
M O R A N D U M O P I N I O N
Ernest
Cannon and Moncrief Minerals Partnership, L.P., owned undivided mineral
interests in a 352-acre tract of land. A 1973 oil and gas lease covered the
352 acres. Sun-Key Oil Co., Inc. operated the 352 acres as an assignee of the
lease. In this cause, Cannon and Moncrief alleged that the 1973 lease had
terminated as a result of a total cessation of production after the primary
term or, alternatively, a cessation of production in paying quantities after
the primary term. Therefore, Cannon and Moncrief each sought a declaratory
judgment terminating the lease. Moncrief moved for partial summary judgment on
its total cessation of production theory. The trial court entered an order
granting Moncrief=s
motion and, based on its ruling on Moncrief=s
motion, entered a final judgment in favor of Cannon and Moncrief declaring that
the lease had terminated. We affirm.
Background
Facts
The
1973 lease covered a total of 6,518 acres, including the Parkey Ranch. The
lease created eleven units within the 6,518 acres and provided that Aeach unit will be
independent of the other units as though covered by a separate lease.@ The lease had a primary
term of five years and a secondary term for Aas
long thereafter as oil or gas is produced therefrom, subject to the conditions
as hereinafter provided.@
The lessee completed the Parkey Well No. 1 on one of the units covered by the
lease. The well produced gas, and the lessee designated the well as the AParkey Ranch Unit No. 1,
Well No. 1@ production
unit covering 352 acres. This 352-acre production unit is the subject of this
case.
Cannon
filed this suit against Sun-Key on December 13, 2004. He alleged that he owned
the surface estate and an undivided one-half mineral interest in the 352
acres. He also alleged that the lease had terminated as a result of a total
cessation of production or a cessation of production in paying quantities from
the Parkey Well No. 1 Abetween
October 1995 and July 1997.@
During that time, D and N Natural Gas Operating Co., Inc. operated the unit as
an assignee of the lease. In 1998, Sun-Key acquired D and N=s interest in the lease and
began operating the unit. Cannon also alleged that there had been a total
cessation of production or a cessation of production in paying quantities
during Sun-Key=s
operation of the unit. Based on the alleged lack of production, Cannon sought
a declaratory judgment that the lease had terminated.
Cannon
had filed an earlier suit against Sun-Key on September 28, 1998. In the
earlier suit, Cannon sought a declaratory judgment that the lease had
terminated based on allegations that were virtually identical to some of his
allegations in this cause. For example, Cannon alleged in the earlier suit
that there had been a total cessation of production or a cessation of
production in paying quantities Abetween
October 1995 and July 1997.@
Cannon=s earlier suit
proceeded to a jury trial. Following the jury trial, on July 3, 2002, the
trial court entered a take-nothing judgment against Cannon on his declaratory
judgment claim. Cannon appealed the trial court=s
judgment to this court, and we affirmed the judgment. Cannon v. Sun-Key Oil
Co., 117 S.W.3d 416 (Tex. App.CEastland
2003, pet. denied).
Sun-Key
raised the affirmative defense of res judicata in this cause based on the trial
court=s judgment in
the earlier suit. Sun-Key moved for summary judgment on the ground that res
judicata barred Cannon=s
claims in this cause. On July 30, 2005, the trial court entered an order
granting summary judgment Ato
the extent that the affirmative defense of res judicata bar[red] all claims and
causes of action of [Cannon] during all periods of time prior to July 3, 2002.@
On
November 21, 2005, Moncrief intervened in this cause. Moncrief alleged that it
owned an undivided 20% mineral interest in the subject 352 acres. Moncrief=s allegations and claims
were identical in many respects to Cannon=s
allegations and claims. Like Cannon, Moncrief alleged that the lease had
terminated as a result of a total cessation of production or a cessation of production
in paying quantities Abetween
October 1995 and July 1997.@
Moncrief sought a declaratory judgment that the lease had terminated.
Sun-Key
answered Moncrief=s
plea in intervention. In its answer, Sun-Key raised affirmative defenses of
res judicata, collateral estoppel, repudiation, and adverse possession under
the three- and five-year statutes.[1]
Moncrief
filed a motion for partial summary judgment on its total cessation of
production theory. In its motion, Moncrief asserted that the lease had
terminated Adue to
total cessation of production for a period of 20 months from November 1995 to
June 1997.@ Sun-Key
did not file a response to Moncrief=s
motion. Instead, Sun-Key filed a motion for partial summary judgment against
Moncrief on its adverse possession claims. Moncrief filed a response to
Sun-Key=s motion.
Sun-Key also filed a no-evidence motion for summary judgment against Cannon.
In the motion, Sun-Key asserted that there was no evidence that a total
cessation of production or that a cessation of production in paying quantities
had occurred on or after July 3, 2002. Cannon filed a response to Sun-Key=s no-evidence motion.
On
August 5, 2006, the trial court entered orders (1) granting Moncrief=s motion for partial
summary judgment, (2) denying Sun-Key=s
motion for partial summary judgment against Moncrief, and (3) denying Sun-Key=s no-evidence motion for
summary judgment against Cannon. On January 18, 2007, the trial court entered
a final judgment. In the judgment, the trial court, among other things,
declared that the 1973 lease and the 1979 Parkey Ranch Unit No. 1, Well No. 1,
Designation of Production Unit Aconstitute[d]
a cloud on the title of [Cannon] and [Moncrief] as to the lands described in
such recorded instruments and that the same ha[d] terminated and [were] void
and of no further force and effect.@
The trial court stated in the judgment that A[t]his
judgment finally disposes of all parties and claims in this cause and is a
Final Judgment.@
Arguments
Presented
Sun-Key
presents three points of error. In its first point, Sun-Key asserts that the
trial court erred in denying its motion for partial summary judgment against
Moncrief based on its affirmative defenses of adverse possession under the
three- and five-year statutes. In its second point, Sun-Key asserts that the
trial court erred in granting partial summary judgment in favor of Moncrief
terminating the lease because res judicata, collateral estoppel, and the three-
and five-year adverse possession statutes barred Moncrief=s claim. In its third
point, Sun-Key asserts that the trial court erred in denying its no-evidence
motion for summary judgment against Cannon.
Moncrief=s Total Cessation of
Production Claim
Moncrief
moved for a traditional summary judgment on its total cessation of production
claim. A trial court must grant a traditional motion for summary judgment if
the moving party establishes that no genuine issue of material fact exists and
that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Lear
Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). If the movant=s summary judgment evidence
facially establishes a right to summary judgment, then the burden shifts to the
nonmovant to raise an issue of fact on one of the elements of the movant=s claim or on each element
of an affirmative defense. Lunsford Consulting Group, Inc. v. Crescent Real
Estate Funding VIII, L.P., 77 S.W.3d 473, 475 (Tex. App.CHouston [1st Dist.] 2002,
no pet.). When reviewing a traditional summary judgment, the appellate court
considers all the evidence and takes as true evidence favorable to the
nonmovant. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.
1997); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.
1985). The appellate court Amust
consider whether reasonable and fair-minded jurors could differ in their
conclusions in light of all of the evidence presented@ and may not ignore Aundisputed evidence in the record that cannot
be disregarded.@ Goodyear
Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755, 757 (Tex. 2007).
To
defeat summary judgment by raising an affirmative defense, the nonmovant must
do more than just plead the affirmative defense. Am. Petrofina, Inc. v.
Allen, 887 S.W.2d 829, 830 (Tex. 1994); Lunsford Consulting, 77
S.W.3d at 475-76. The nonmovant must present summary judgment evidence that
raises a fact issue on each element of the defense. Brownlee v. Brownlee,
665 S.W.2d 111, 112 (Tex. 1984); Lunsford Consulting, 77 S.W.3d at 476.
A
Atotal cessation of
production@ occurs
when a well that has been producing gas ceases to produce any quantity of gas.
Cannon, 117 S.W.3d at 421. Moncrief presented summary judgment evidence
that the Parkey Well No. 1 did not produce gas from November 1995 to June
1997. Moncrief=s
summary judgment evidence facially established its right to summary judgment
that the lease had terminated as a result of a total cessation of production.
The summary judgment burden shifted to Sun-Key to raise an issue of fact on one
of the elements of Moncrief=s
claim or on each element of an affirmative defense. Lunsford Consulting,
77 S.W.3d at 475.
On
appeal, Sun-Key argues that the trial court erred in granting Moncrief=s motion for partial
summary judgment because res judicata, collateral estoppel, and the three- and
five-year adverse possession statutes barred Moncrief=s claim. Sun-Key pleaded these affirmative
defenses in response to Moncrief=s
plea in intervention. However, Sun-Key did not file a response to Moncrief=s motion for partial
summary judgment and, therefore, did not present summary judgment evidence in
support of its affirmative defenses. Sun-Key failed to meet its summary
judgment burden of raising a fact issue on each element of an affirmative
defense.
The
trial court did not err in granting Moncrief=s
motion for partial summary judgment. We overrule Sun-Key=s second point of error.
Because Moncrief met its summary judgment burden of establishing a total
cessation of production, the trial court did not err in entering a declaratory
judgment in favor of Moncrief that the lease had terminated. In the final
judgment, the trial court also entered a declaratory judgment in favor of
Cannon that the lease had terminated. Sun-Key has not raised an appellate
issue attacking the declaratory judgment in favor of Cannon. Therefore, we must
affirm the declaratory judgment in favor of Cannon. Jacobs v. Satterwhite,
65 S.W.3d 653, 655-56 (Tex. 2001).
Sun-Key=s Adverse Possession
Affirmative Defenses
Sun-Key
moved for traditional summary judgment against Moncrief on its adverse
possession affirmative defenses. Sun-Key argues that it acquired title to a
leasehold interest under the three- and five-year adverse possession statutes.
A defendant is entitled to summary judgment if it establishes an affirmative
defense as a matter of law. Am. Tobacco Co., 951 S.W.2d at 425; Sci.
Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
To
acquire title under a statute of limitations, the statute=s requirements must be met.
Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 193 (Tex. 2003).
The three-year statute provides that A[a]
person must bring suit to recover real property held by another in peaceable
and adverse possession under title or color of title not later than three years
after the day the cause of action accrues.@
Section 16.024. The five-year statute provides as follows:
(a)
A person must bring suit not later than five years after the day the cause of
action accrues to recover real property held in peaceable and adverse
possession by another who:
(1)
cultivates, uses, or enjoys the property;
(2)
pays applicable taxes on the property; and
(3)
claims the property under a duly registered deed.
Section
16.025(a). AAdverse
possession@ is defined
as Aan actual and
visible appropriation of real property, commenced and continued under a claim
of right that is inconsistent with and is hostile to the claim of another
person.@ Tex. Civ. Prac. & Rem. Code Ann. ' 16.021(1) (Vernon 2002). APeaceable possession@ is defined as Apossession of real property
that is continuous and is not interrupted by an adverse suit to recover the
property.@ Tex. Civ. Prac. & Rem. Code Ann. ' 16.021(3) (Vernon
2002).
One
seeking to establish title to land by virtue of the statute of limitations has
the burden of establishing all the required elements. Rhodes v. Cahill,
802 S.W.2d 643, 645 (Tex. 1990). The question of adverse possession is
normally a question of fact, so only in rare circumstances is a court justified
in holding that adverse possession has been established as a matter of law. Id.
at 646; Harlow v. Giles, 132 S.W.3d 641, 647 (Tex. App.CEastland 2004, pet.
denied). To establish adverse possession as a matter of law, the claimant must
show by undisputed evidence that it adversely possessed the property
continuously for the statutory period. Bywaters v. Gannon, 686 S.W.2d
593, 595 (Tex. 1985). The claimant must submit undisputed and conclusive
evidence of probative force on each essential element of adverse possession,
and inferences are never indulged in its favor. Id.
Sun-Key
presented an affidavit from L.H. Jones, its president, in support of its motion
for summary judgment. Jones stated in the affidavit (1) that Sun-Key acquired
its interest in the subject lease on July 8, 1998; (2) that he was familiar
with the operations on the Parkey No. 1 Gas Unit; (3) that Sun-Key had
continuously conducted operations on the subject property since acquiring its
interest; (4) that he had conducted or supervised leasehold operations; (5)
that the operations had been conducted Aon
an almost daily basis@;
(6) that no cessation of production had occurred on the Parkey No. 1 Unit after
Sun-Key acquired its interests; (7) that royalties Adue and payable to the Lessors@ had been timely paid or
had been suspended while waiting for particular interest owners to execute
division orders; (8) that Sun-Key, as lease operator, had placed Athe appropriate signs
required by the Railroad Commission of Texas@
on the premises; (9) that Sun-Key=s
operations had been Aopen, notorious, and
exclusive@; and (10)
that no other entity had conducted such operations on the premises. Jones also
stated that Sun-Key had paid the applicable taxes on the property. Jones
attached to his affidavit true and correct copies of payment receipts showing
payment of taxes for the years 1998 through 2005.
Jones=s affidavit provided some
evidence that Sun-Key had conducted some operations on the premises. However,
some of the statements in Jones=s
affidavit were conclusory in nature and were not supported by factual detail.
Sun-Key had the summary judgment burden of establishing Aadverse possession@ as that term is defined in Section 16.021(1)
of the Civil Practice and Remedies Code. Sun-Key=s
summary judgment evidence was insufficient to prove Aan actual and visible appropriation of real
property, commenced and continued under a claim of right that is inconsistent
with and is hostile to the claim of another person@ as a matter of law. In contrast, the supreme
court in Pool held that the evidence presented at trial was sufficient
to establish an open, notorious, and hostile use of the property as a matter of
law. 124 S.W.3d at 197-99. This cause is distinguishable from Pool.
In Pool, the adverse possession claimants presented detailed evidence
establishing the nature of their use of the property and the elements of their
adverse possession claims. The summary judgment record in this cause lacks the
type of evidence that the adverse possession claimants presented in Pool.
Because
Sun-Key failed to prove Aadverse
possession@ under
Section 16.021(1) as a matter of law, the trial court did not err in denying
Sun-Key=s motion for
partial summary judgment against Moncrief. We overrule Sun-Key=s first point. We need not
consider whether Sun-Key established the other elements of its adverse
possession claims. Tex. R. App. P.
47.1.
Sun-Key=s No-Evidence Motion for
Summary Judgment
Sun-Key
moved for summary judgment against Cannon on the ground that there was no
evidence that a total cessation of production or that a cessation of production
in paying quantities had occurred on or after July 3, 2002. In its third
point, Sun-Key asserts that the trial court erred in denying its no-evidence
motion for summary judgment. Sun-Key=s
third point is moot in light of the trial court=s
unchallenged declaratory judgment in favor of Cannon terminating the lease.
Therefore, we need not address Sun-Key=s
third point. Rule 47.1.
This
Court=s Ruling
We
affirm the judgment of the trial court.
TERRY McCALL
JUSTICE
March 12, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]See Tex. Civ. Prac. & Rem. Code Ann. '' 16.024-.025 (Vernon 2002).
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In the
United States Court of Appeals
For the Seventh Circuit
No. 19‐1909
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ORLANDO MEDINA,
Defendant‐Appellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:15‐cr‐00016‐PP‐1 — Pamela Pepper, Chief Judge.
ARGUED FEBRUARY 12, 2020 — DECIDED AUGUST 13, 2020
Before BAUER, KANNE, and BARRETT, Circuit Judges.
BAUER, Circuit Judge. Orlando Medina was convicted of
conspiracy to distribute 500 grams or more of cocaine. At a
bench trial, key evidence included the testimony of police
officers from Puerto Rico, four mail receipts, and the testimony
of co‐conspirator Rodolfo Duenas. Medina argues his convic‐
tion must be reversed because the judge should have found
2 No. 19‐1909
this evidence lacked credibility as a matter of law. He also
argues this evidence constituted false testimony and violated
his due process rights. For the following reasons, we affirm.
I. BACKGROUND
On August 19, 2014, Puerto Rico police received a tip that
Medina was transporting firearms. When officers attempted to
stop Medina’s car, he fired gunshots and fled. Police then
seized Medina’s abandoned car. Upon searching the car, police
found Medina’s birth certificate and four mail receipts. Three
receipts were for packages sent to Puerto Rico by Duenas in
Milwaukee, Wisconsin.
The United States Postal Inspection Service identified
suspicious packages sent from Puerto Rico to Duenas.
Milwaukee‐based police officers intercepted and followed a
package containing cocaine and arrested Duenas once he
accepted delivery. Duenas mentioned the shooting incident
and stated that Medina had repeatedly shipped him cocaine
from Puerto Rico.
Forensic scientists determined that the powdery substance
in the intercepted package contained cocaine and that the forty
small bags amounted to more than one kilogram. A print
analyst found that three of the seven fingerprints inside the
package matched Medina’s fingerprints.
Medina was indicted with one count of conspiring to
distribute 500 grams or more of cocaine. He received a bench
trial, which took place in early 2018. The government’s
witnesses included three officers from Puerto Rico, two
Milwaukee‐based police officers, and Duenas. The government
No. 19‐1909 3
also offered expert testimony identifying Medina’s finger‐
prints. The defense moved for a judgment of acquittal after the
government’s case, but the court denied the motion. The
parties proceeded to closing arguments.
The court found Medina guilty. The defense suggested that
the fourth mail receipt—labeled as being sent from Milwaukee
on August 19, 2014 at 3:25pm—could not have been in Me‐
dina’s car. The judge said the receipt raised a “mystery” but
dismissed the idea that it created a reasonable doubt as to the
Puerto Rico officers’ testimony or the receipts bearing Duenas’
name. The judge stated that Duenas had a “tenuous relation‐
ship with the truth” but nevertheless, after considering the
entirety of the evidence, determined his testimony helped
establish the existence of a conspiracy with Medina.
II. DISCUSSION
We review challenges to the sufficiency of the evidence in
a bench trial under the same deferential standard that applies
to a jury verdict: we reverse “only if we conclude, after
viewing the evidence in the light most favorable to the prose‐
cution, that no rational trier of fact could have found the
defendant guilty beyond a reasonable doubt.” United States v.
Wasson, 679 F.3d 938, 949 (7th Cir. 2012). We do not reweigh
evidence or reassess witness credibility and may uphold a
conviction based on circumstantial evidence. Id.
The government had to prove beyond a reasonable doubt
that Medina conspired to distribute 500 grams or more of
cocaine. 21 U.S.C. § 841; 21 U.S.C. § 846. Medina seeks acquittal
by challenging the credibility of witness testimony, which is
particularly difficult under our deferential standard of review.
4 No. 19‐1909
United States v. Carraway, 612 F.3d 642, 645 (7th Cir. 2010).
Testimony lacks credibility as a matter of law only in situations
where “it would have been physically impossible for the
witness to observe what he described, or it was impossible
under the laws of nature for those events to have occurred at
all.” United States v. Conley, 875 F.3d 391, 400 (7th Cir. 2017)
(citing United States v. Hayes, 236 F.3d 891, 896 (7th Cir. 2001)).
Medina claims that Duenas and the testifying officers from
Puerto Rico lacked credibility as a matter of law. “Credibility
determinations are best handled by the trier of fact, not the
appellate court,” and here the judge found them to be credible
after considering the entirety of the evidence. Carraway, 612
F.3d at 645 (citation omitted). Indeed, the judge recognized the
factual discrepancies that Medina identifies and only relied on
the credible portions of the testimony. Medina’s arguments do
not render the testimony physically impossible or otherwise
unbelievable and thus cannot succeed on appeal.
Given the testimony and the corroborating physical
evidence, a rational trier of fact could have easily found
Medina guilty beyond a reasonable doubt. Medina would have
us view all the testimony as suspicious and therefore unbeliev‐
able, but that betrays our standard of review. In viewing the
evidence in the light most favorable to the prosecution, Me‐
dina’s challenges fail. Medina also asks us to reverse the denial
of his motion for a judgment of acquittal, but this likewise fails
since the standard of review is “in essence the same as a review
of the sufficiency of the evidence.” United States v. Johns, 686
F.3d 438, 446 (7th Cir. 2012).
No. 19‐1909 5
Finally, Medina raises a due process argument that he did
not make to the district court, and so our review is for plain
error. United States v. Coleman, 914 F.3d 508, 511 (7th Cir. 2019).
Specifically, he contends that the government used the false
testimony of Duenas and of the police officer who recovered
the mail receipts. While Medina characterizes Duenas’ testi‐
mony as perjury, the judge found much of it to be credible and
only relied on those portions. Similarly, with regard to the
officer, the judge largely credited his testimony and chose not
to rely on the fourth mail receipt. Moreover, upon reviewing
the record, there is little basis to infer the officer lied about
discovering the receipts. Ultimately, there was no error in
introducing or relying upon this evidence, and there is no
likelihood that any false testimony affected the decision.
III. CONCLUSION
We conclude that there was sufficient evidence to convict
Medina of conspiracy to distribute 500 grams or more of
cocaine. The judgment of the district court is AFFIRMED.
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Digitally signed by
Reporter of Decisions
Reason: I attest to the
Illinois Official Reports accuracy and
integrity of this
document
Appellate Court Date: 2018.01.23
12:33:49 -06'00'
In re Omar F., 2017 IL App (1st) 171073
Appellate Court In re OMAR F., a Minor (The People of the State of Illinois,
Caption Petitioner-Appellee, v. Omar F., Respondent-Appellant).
District & No. First District, Third Division
Docket No. 1-17-1073
Filed October 25, 2017
Rehearing denied November 21, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 16-JD-1740; the
Review Hon. Kristal Royce Rivers, Judge, presiding.
Judgment Affirmed in part; reversed and remanded in part.
Counsel on Michael J. Pelletier, Patricia Mysza, and Jonathan Pilsner, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Annette Collins, and Tyler J. Cox, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court,
with opinion.
Justices Howse and Lavin concurred in the judgment and opinion.
OPINION
¶1 The minor respondent, Omar F., was adjudicated delinquent for armed robbery with a
firearm and, following a dispositional hearing, was sentenced to 36 months’ probation with
various conditions. On appeal, the respondent argues that the State failed to prove him guilty
beyond a reasonable doubt and that several conditions of his probation were unreasonable and,
in the alternative, violated his constitutional rights to due process and freedom of speech and
association. Specifically, the respondent complains of the following conditions: (1) that he
“stay away” from gangs, guns, and drugs, (2) that he remove “those” from his social media
accounts, (3) that he stop associating with or interacting with anyone who is a gang member,
and (4) that he not post or be in any photos posted to Facebook or other social media accounts
with people if they are in gangs. The respondent also contends that section 5-715(2)(s) of the
Juvenile Court Act of 1987 (or Act) (705 ILCS 405/5-715(2)(s) (West 2016)), which permitted
the court to limit his contact, direct or indirect, with all gang members, is unconstitutionally
vague since it fails to define “contact,” does not contain a mens rea requirement, encompasses
a broad range of legally permissible conduct, and encourages arbitrary enforcement. For the
reasons that follow, we affirm in part and reverse and remand in part.
¶2 I. BACKGROUND
¶3 The record before us reveals the following facts and procedural history. On August 3,
2016, the State filed a petition for adjudication of wardship, charging the minor with armed
robbery with a firearm (720 ILCS 5/18-2(a) (West 2014)), aggravated robbery (720 ILCS
5/18-1(b) (West 2014)), and robbery (720 ILCS 5/18-1(a) (West 2014)). The petition alleged
that on August 2, 2016, while armed with a firearm, the minor respondent knowingly took
property (i.e., a cell phone, book bag, and laptop computer) from the person of the victim,
Azeez Soberu, by use of force or threatening the imminent use of force.
¶4 On March 20, 2013, the minor respondent appeared for an adjudicatory hearing together
with his cousin and co-respondent, Tyreese J., also a minor. The State proceeded with a joint
adjudicatory hearing against both minors, at which the following relevant evidence was
adduced.
¶5 The victim, 23-year-old Azeez Soberu, testified that he is originally from Nigeria but that
he has lived in Chicago for the past six years. Soberu stated that on August 2, 2016, he was
headed to a friend’s birthday party, where he was supposed to play music on his laptop. Soberu
averred that to get to the birthday party he took the train but mistakenly got off at the wrong
stop. At about 2:40 p.m., he was near 7939 South Vernon Avenue, when he realized that he
was lost and telephoned his friend. His friend told him that he was in the wrong neighborhood
and texted him the correct address. Soberu stated that he typed the correct address into the GPS
system on his cell phone and then, looking and listening to the GPS instructions on his cell
phone and with headphones in his ears, he proceeded to walk on South Vernon Avenue toward
79th Street to catch a bus back to his friend’s place. At this point, he also had his backpack with
his laptop over his shoulder. Soberu testified that as he was walking, two individuals, one
light-skinned and the other dark-skinned, whom he later identified as the respondent and
co-respondent, approached him from the gangway between the apartments on 7939 South
Vernon Avenue and walked in front of him.
-2-
¶6 According to Soberu, the respondent, who was covering his face with a “white rounded
shirt” so that Soberu could only see his eyes, then pointed a gun and said, “get on the ground.”
Soberu described the gun as a “black pistol.” Soberu stated that he did not get on the ground
but instead gave his cell phone to co-respondent, who took it and ran off into an apartment
building across the street. Soberu noticed that the respondent, who was still holding him at
gunpoint, was distracted by co-respondent’s movements, so he took the opportunity to punch
the respondent on the side of the eye and grab for the gun. The respondent dropped the gun but
continued to fight Soberu in an attempt to retrieve it. On cross-examination, Soberu stated that
throughout the struggle, the respondent continued to yell at him, “give me back the gun.”
Soberu stated that at that point, he wanted to get to the nearest busy street, which was 79th
Street, in the hope that there would be more people there and he could get help. In an effort to
stop Soberu from walking away, the respondent grabbed at Soberu, tearing Soberu’s shirt and
pulling his backpack, which contained the laptop, to the ground. Still holding the gun, Soberu
hit the respondent in the head with it. The respondent, however, refused to let go and continued
to struggle with Soberu even after he was punched and started bleeding.
¶7 Soberu was attempting to run toward 79th Street, when he noticed the co-respondent
returning from the direction of the building he had run off to. Soberu stated that the
co-respondent’s face was not covered at this time and that he was wearing the same clothing
Soberu had seen him in at the beginning of the attack. The co-respondent approached Soberu
and punched him in the left eye. Soberu said he began to bleed and could not see and was afraid
he would lose consciousness. He wanted to make sure his attackers did not have the gun, so he
flung the gun as far away from himself as possible.
¶8 Soberu testified that at this point, both the respondent and co-respondent left, so he ran to
Burger King on the corner of 79th Street to call the police. Soberu stated that the entire attack
lasted no more than five minutes.
¶9 Soberu averred that soon thereafter the police arrived and he informed them about what
had happened. Police officer Arshanette Chambers told Soberu that the police would start
searching the area, and she took Soberu back to Vernon Avenue where the incident took place.
There, they found Soberu’s backpack with the laptop inside, as well as his headphones. Soberu
also found one of his shoes, which had fallen off in the struggle. Soberu testified that after
picking up his belongings, he got into a police car and was driven about a block away. There,
he saw the respondent sitting on the sidewalk with another police officer by him. Soberu
immediately identified the respondent as the individual who attacked him with the gun. When,
a few minutes later, the co-respondent walked out of a nearby building, Soberu immediately
identified him as his other attacker—the one who had taken his cell phone.
¶ 10 At the adjudicatory hearing, Soberu pointed out on a map where the events occurred and
also identified photographs depicting his injuries.
¶ 11 On cross-examination, Soberu explained that he lives on the north side and needed to take
the red line to his friend’s house. He testified that he should have gotten off the train sooner,
near 47th Street, but missed his stop because the address he was initially following on his GPS
had been incorrect. Although there was some confusion in Soberu’s testimony as to what
direction he had been walking in prior to the attack and what public transportation he had taken
to end up on Vernon Avenue, Soberu affirmatively stated that after getting off a train, he
boarded a bus, before telephoning his friend. Soberu was also certain that he was listening to
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the GPS instructions with his headphones and walking toward 79th Street to find transportation
to head back north when he was attacked.
¶ 12 On cross-examination, Soberu stated that before the attack he had never seen or met the
respondent or co-respondent. He acknowledged that when he saw the respondent and
co-respondent approaching him, both attempting to cover their faces with T-shirts, he did not
run immediately. He stated, however, that he did not do so because he did not know what was
about to happen.
¶ 13 On cross-examination, Soberu denied that he was in the neighborhood because he intended
to meet a girl from a dating website. He further denied that he ever harassed, approached, or
grabbed any girl. Instead, Soberu testified that he never saw any girls and that no girls were
involved in the incident. He also denied that he called the police because he thought he was in
trouble for beating a boy. He also denied that there was no gun and that he hit the respondent
with a metal pipe.
¶ 14 Chicago police officer Arshanette Chambers next testified that at about 2:40 p.m. on
August 2, 2016, together with her partner, Officer Joe Buckley, she responded to a call for an
armed robbery victim at the Burger King located on 79th Street. Once there, Officer Chambers
encountered Soberu, who was bleeding from his arms, sweating profusely, had a swollen head,
ripped shirt, and a missing shoe. Because Soberu could not tell the police the exact location of
where he was attacked, she suggested they all go for a ride in the squad car to locate it. At
Vernon Avenue, they stopped and exited the vehicle, looking for the location of the attack.
While walking southbound on Vernon Avenue, somewhere in the middle of the block, they
encountered Soberu’s backpack on the street near a car tire. Near the gangway at 7939 South
Vernon Avenue, they found Soberu’s shoe and a pair of white headphones.
¶ 15 Officer Chambers testified that at this point, the police received a call over the radio
indicating a possible second robbery victim on Eberhart Avenue, which was only one block
away. The officers drove to that location, bringing Soberu along. As soon as the officers turned
the corner on Eberhart Avenue, however, Soberu pointed out the window to the respondent,
who was sitting in front of a multi-flat building, bleeding from his head, and said, “that’s the
guy who robbed me. That’s him right there.” Already on the scene were Sergeant Vargas and
another police unit. According to Officer Chambers, co-respondent then came out of the
building in front of which the respondent was sitting, and Soberu immediately identified him
as his other attacker. Both the respondent and co-respondent were arrested.
¶ 16 On cross-examination, Officer Chambers admitted that although Soberu had told her that
his assailants had tried to cover their faces with their white T-shirts, she never included this
fact in her incident report. Officer Chambers also acknowledged that the police never reviewed
a nearby camera video. She agreed that when she first observed the respondent sitting on the
sidewalk, he had significant injuries to his head. She also noticed that there were a few girls
outside of the building next to where the respondent was sitting, but admitted that she never
interviewed them. Officer Chambers also admitted that her incident report reflected that when
she spoke to Soberu, he told her that the co-respondent “punched him in the head, at which
time [respondent] ordered him to the ground at gunpoint.”
¶ 17 After the State rested, the trial court heard and denied the respondent’s motion for a
directed finding. The defense then called Monique J., the respondent’s cousin and
co-respondent’s sister. Monique testified that on August 2, 2016, she lived with her mother,
sisters, and brothers, including the co-respondent, at 7942 South Eberhart Avenue. At about
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2:40 p.m. that day, Monique and her sister, Erica, were walking back home from a gas station
located at 79th Street and King Drive when a man she had never met before grabbed her left
arm and asked her if she was the girl from MeetMe (a dating website). Monique identified the
man as Soberu. Monique told Soberu that she was not the girl from the website, but he kept
insisting that she was. Monique then started yelling “stop” and “let me go.” At the same time,
Erica yelled for the respondent, and the respondent came out of their home. Monique stated
that the respondent never had a weapon and was not covering his face with anything. The
respondent told Soberu to leave Monique alone, but Soberu refused and told the respondent to
go back into the house.
¶ 18 Monique testified that Soberu eventually let her go but continued to argue with the
respondent. At some point, he became angry and started pushing the respondent, and the
respondent pushed him back. A fight ensued and punches were thrown, but Soberu eventually
ran off, and the respondent chased him toward 79th Street and Vernon Avenue. Monique lost
sight of both of them and went into her house. When, a minute later, the respondent returned,
his head “was busted,” there was blood all over his face, he was “turning colors,” and began
vomiting. She stated that Erica then called for assistance. Instead of an ambulance showing up
first, however, a police sergeant pulled up and asked what was wrong with the respondent.
¶ 19 On cross-examination, Monique admitted that at the time of the incident, there were many
people inside her house, including her four brothers and their friends, but only the respondent
and his friend, Armani, came out when Erica called for help. She denied that co-respondent
ever went outside of the building or even saw Soberu. Monique also admitted that Erica did not
call for police after the respondent fought with and chased Soberu. Instead, Erica called for
help only after the respondent returned injured. Monique also admitted that when the police
sergeant arrived she never told him that she had been attacked or assaulted by Soberu.
¶ 20 After the attorneys were finished questioning Monique, the trial court asked her whether
she ever attempted, in any way, to have the man that grabbed her arrested, detained, or spoken
to by the police, and she stated that she did not. The only explanation Monique offered for
failing to tell the police Soberu grabbed her after her brother and cousin were arrested in
connection with the incident was that “it was not that big of a deal.”
¶ 21 After closing arguments, the trial court found the respondent guilty of all three charged
offenses and adjudicated him delinquent. In doing so, the court found Monique’s testimony not
credible and Soberu’s testimony to be credible, despite the “language barrier.” The trial court
acknowledged that Soberu’s testimony on cross-examination about what buses and trains he
took prior to the incident was confusing, but stated that this confusion only added to his
credibility as it showed that he “had no idea where he was.”
¶ 22 On May 2, 2017, the cause proceeded to a dispositional hearing. Prior to that hearing the
court reviewed the April 27, 2017, social investigation report prepared by the respondent’s
probation officer. Among other things, that report reflected that the respondent had three prior
referrals to the juvenile court. On January 9, 2014, he was charged with armed robbery,
robbery, and theft, but all of the charges were nol-prossed. On April 19, 2014, he was charged
with residential burglary, burglary, knowing damage to property and criminal trespass to
field/motor vehicle, but all charges were again nol-prossed. On September 8, 2015, the
respondent was charged with criminal trespass to vehicles but was found not guilty. In
addition, the social investigation report reflected that the respondent had two informal
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adjustments: (1) on November 29, 2011, for battery and (2) on January 23, 2016, for
“CTA—Unsafe Conditions/Cross Between Cars.”
¶ 23 According to the social investigation report, the respondent resided with his grandmother
and had done so for the majority of his life because his mother suffered from dementia and
lived in a nursing home. The respondent visited with his father, even though he did not have a
room at his father’s house. The respondent reported that he “feels closest to his father and his
older brother.” He also stated that he has a good relationship with his entire family.
¶ 24 The social investigation report further reflected that at the time of the dispositional hearing,
the respondent was not enrolled in any school or GED program, and had not attended school
since 2016, when he attended Excel Academy for two weeks after being expelled from
Perspective High School.
¶ 25 The respondent stated that he had five friends whose ages range from 18 through 20. Three
of these friends have been arrested. According to the respondent, when they spend time
together, they play video games and basketball and smoke marijuana. The respondent admitted
that he started smoking marijuana at the age of 16 and reported that he normally smoked it
every day. He stated that his “friends are gang involved” and belong to the Black Peace Stones
but denied being a gang member himself. The respondent’s father reported that he did not
know the respondent’s friends, and the respondent admitted that he does not bring his friends
around his father.
¶ 26 The respondent stated that he looks up to his older brother and admires him because he has
“been in the system before but has turned his life around.” The respondent stated that he
wanted to obtain employment and that he would like to play basketball or become a mechanic.
He indicated that he was seeking employment at Peacock Warehouse in Carol Stream.
¶ 27 The social investigation report also revealed that the respondent maintained his innocence,
claiming that the victim had lied at trial and that he was only protecting his cousin.
¶ 28 The probation officer concluded that the respondent was a good candidate for probation,
and recommended 36 months’ probation, 35 hours of community service, mandatory
school/general education degree (GED) program or employment, Treatment Alternatives for
Safe Communities (TASC) along with a court ordered urine analysis and “no gang, guns or
drugs.”
¶ 29 At the dispositional hearing, the probation officer made his recommendation. In addition,
he informed the court that the respondent, who was now 18 years old, had obtained
employment with Peacock Warehouse and had been working there for one week.
¶ 30 In closing, the State argued the severity of the offense, and the respondent’s prior history
with the juvenile system, and agreed with the probation officer’s recommendation. The
respondent’s counsel, on the other hand, asked for a lower term of only 24 months’ probation.
Counsel argued that the respondent had no previous adjudications, that he lives in a stable
home, and that he had expressed the desire to obtain employment and had in fact followed
through on that promise. The respondent’s counsel further stated that he had no disagreement
with the community service, TASC, and mandatory GED or employment conditions of the
probation. Counsel made no objection or comment about the probation officer’s
recommendation of “no gangs, guns or drugs.”
¶ 31 After hearing arguments, the trial court vacated the aggravated robbery and robbery counts
and sentenced the respondent only on the armed robbery with a firearm count. The court
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sentenced the respondent to 36 months’ probation and 35 hours’ community service. The court
also ordered the respondent to complete high school or trade school or get his GED, as well as
participate in TASC. The court then ordered:
“You’re to stay away from gangs, guns, and drugs. You need to clear those from
you social media. If you have gang members as friends, you need to stop hanging out
with them.
I don’t want to see any pictures of you and your friends on Facebook or any other
social media if those people are in gangs.
I’m not sure if you’re a gang member or if you’re just an associate of gangs. I see
and hear that there is some contradictory information. I don’t care.
One way or the other—I mean it would be nice if you’re not a gang member—but if
you are now, I can’t change that. But you’re going to need to change who you’re
hanging out with, otherwise you can get in trouble on my probation.”
¶ 32 The written dispositional order, which is a standard form order, contains a checkmark next
to “no gang contact or activity.” The probation order entered on the same date, includes the
following handwritten statement by the trial court, “no gangs, guns or drugs,” and “clear social
media of gangs[,] drugs.” The respondent now appeals.
¶ 33 II. ANALYSIS
¶ 34 A. Sufficiency of Evidence
¶ 35 On appeal, the respondent first contends that the State failed to prove him delinquent
beyond a reasonable doubt where the victim was impeached, testified incredibly, and was
contradicted by the defense witness.
¶ 36 It is well-accepted that no person, adult or juvenile, may be convicted of a crime “except
upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). When a minor respondent
challenges the sufficiency of the evidence to sustain an adjudication of delinquency, the
standard of review is whether, after viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. In re Malcolm H., 373 Ill. App. 3d 891, 893 (2007); see also People v.
Flynn, 2012 IL App (1st) 103687, ¶ 22. The reasonable doubt standard applies in all criminal
cases, regardless of whether the evidence is direct or circumstantial. In re Jonathon C.B., 2011
IL 107750, ¶ 47.
¶ 37 In reviewing an adjudication of delinquency, a reviewing court may not substitute its
judgment for that of the trier of fact on issues of witness credibility, the weight to be given their
testimony, and the reasonable inferences to be drawn from the evidence. In re Jonathon C.B.,
2011 IL 107750, ¶ 59; In re H.G., 322 Ill. App. 3d 727, 737 (2001). The reason is that the trier
of fact, who has the opportunity to hear and see the witnesses testifying, is in a better position
to judge their credibility. In re Jonathon C.B., 2011 IL 107750, ¶ 59. For this same reason, it is
“for the trier of fact to resolve conflicts or inconsistencies in the evidence.” In re Jonathon
C.B., 2011 IL 107750, ¶ 59.
¶ 38 Moreover, in determining the guilt or innocence of the respondent, the trier of fact “need
not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances.” In re
Jonathon C.B., 2011 IL 107750, ¶ 60. Rather, it is “sufficient if all the evidence taken together
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satisfies the trier of fact beyond a reasonable doubt of the accused’s guilt.” In re Jonathon
C.B., 2011 IL 107750, ¶ 60. Moreover, the trier of fact need not disregard inferences, which
flow normally from the evidence before it, nor “search out all possible explanations consistent
with innocence, and raise those explanations to a level of reasonable doubt.” In re Jonathon
C.B., 2011 IL 107750, ¶ 60. A reviewing court will not reverse the respondent’s adjudication
unless the evidence is so “unreasonable, improbable or unsatisfactory” that it creates a
reasonable doubt of the respondent’s guilt. People v. Rowell, 229 Ill. 2d 82, 98 (2008); In re
Jonathon C.B., 2011 IL 107750, ¶ 60.
¶ 39 In the present case, the respondent was found guilty of armed robbery with a firearm. 1 A
person commits armed robbery with a firearm when, while armed with a firearm, he knowingly
takes property from the person or presence of another by the use of force or by threatening the
imminent use of force. 720 ILCS 5/18-1(a), 18-2(a)(2) (West 2014).
¶ 40 Viewing, as we must, the evidence in the light most favorable to the State, for the reasons
that follow, we find that the trial court properly adjudicated the minor respondent guilty of
armed robbery with a firearm. The record reflects that at trial, the victim, Soberu, testified that
he got lost on his way to a friend’s birthday party and ended up in the area of 7939 South
Vernon Avenue. As he was looking to his cell phone’s GPS in an attempt to find his way back
to public transportation that would take him back to his friend’s place, Soberu was approached
by the respondent and co-respondent. The respondent pointed a black pistol at Soberu and
demanded that he get on the ground. The respondent gave his cell phone to co-respondent, who
ran away with it. Soberu noticed that the respondent was distracted by co-respondent and used
the opportunity to punch the respondent and grab for the gun. Soberu and the respondent began
fighting, and Soberu, with pistol in hand, ran toward 79th Street, which was a busier street, in
hope of getting help. On the way, the respondent continued to grab Soberu, pulling his
backpack and tearing his shirt. In an attempt to free himself from the respondent, Soberu hit the
respondent in the head with the gun, and the respondent began to bleed. When in their
continued scuffle, Soberu and the respondent arrived at 79th Street, the co-respondent
reappeared from a nearby building, approached Soberu, and punched him in the eye. Soberu’s
vision was impaired by the blow, and he was afraid he would lose consciousness, so he flung
the pistol as far away as he could and continued to run toward the Burger King on the corner of
79th Street. At that point, the respondent and co-respondent ran away. After the police arrived
at the scene, they drove Soberu around the neighborhood to recover his things. Later, when the
police drove Soberu to a nearby street where they were hoping to speak to an individual whom
they believed was another robbery victim, Soberu saw the respondent and immediately
identified him as the man who had robbed him at gunpoint. Soon thereafter, Soberu also
identified the co-respondent as his second attacker, after co-respondent exited the building in
front of which the respondent was sitting. Under this record, taking as we must the evidence in
the light most favorable to the State, we find nothing manifestly erroneous in the trial court’s
conclusion that the respondent committed armed robbery with a firearm.
1
We note that in his brief, the respondent contends that the State failed to prove him guilty of
“armed robbery, aggravated robbery, or robbery.” However, the record is clear that the trial court
vacated the respondent’s adjudications for aggravated robbery and robbery prior to imposing
disposition. Accordingly, the only adjudication properly on review is for armed robbery with a firearm.
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¶ 41 The respondent, nonetheless, asserts that we should disregard the trial court’s reliance on
Soberu’s testimony because of numerous inconsistencies in his statements at the adjudicatory
hearing and in light of the alternative version of events offered by Monique. We disagree. It is
the province of the trier of fact to determine witness testimony and determine credibility. In re
Jonathon C.B., 2011 IL 107750, ¶ 59. In the present case, the trial court explicitly found
Monique’s testimony unreliable, particularly after she admitted that she never informed, or
attempted to inform, the police about what she claimed Soberu had done to her, even after her
brother and cousin were arrested. On the other hand, the trial court explicitly found Soberu to
be a credible witness.
¶ 42 The respondent’s assertion that Soberu’s testimony is unreliable because he could not
explain how he ended up in the area prior to the attack, but rather gave befuddling and
inconsistent versions as to what led him there, is without merit. The trial court already rejected
this argument at the adjudicatory hearing and explicitly found that any confusion in Soberu’s
explanation of how he ended up at 7939 South Vernon Avenue was not detrimental to his
reliability, but rather added to his credibility, because it explained that he was “incredibly lost”
and “had no idea where he was.” This finding is entirely reasonable in light of Soberu’s
testimony at trial that he moved from Nigeria to Chicago only six years before, lived on the
north side of the city, got off at the wrong stop, and was completely unfamiliar with the area in
which he found himself.
¶ 43 The respondent nonetheless contends that Soberu’s credibility is further weakened by the
circumstances surrounding his identification of the respondent as his attacker. Although the
respondent does not directly challenge Soberu’s identification, he points out while Soberu
claimed that he immediately identified the respondent as his attacker, he testified that at the
beginning of the attack, both attackers had their faces covered with T-shirts. The respondent
also points out that the identification took place from inside the police car, from which Soberu
initially had trouble orienting himself, when attempting to recognize the exact location of the
struggle. Once again, we reiterate that the credibility of Soberu’s testimony was a question for
the trier of fact. In re Jonathon C.B., 2011 IL 107750, ¶ 59. Moreover, from the evidence
presented at trial, it is evident that a rational trier of fact could infer that during the
several-minute-long struggle, in which the respondent continued to grapple for Soberu’s
backpack and clothes in an attempt to retrieve the gun and Soberu, in return, used that gun to
hit the respondent in the face, Soberu would have had sufficient opportunity to observe his
attacker so as to be able to recognize him minutes afterwards. What is more, Soberu described
the clothing worn by his attackers, as well as testified that when he hit the respondent with the
gun, the respondent began to bleed. All of these things would have aided Soberu in identifying
the respondent as his assailant only minutes after the attack.
¶ 44 The respondent further contends that we should reverse the trial court’s findings because
Soberu was impeached on a “key issue,” i.e., the timing of the punch he received from
co-respondent. In that respect, the respondent points out that Soberu testified that
co-respondent punched him only after he had already been engaged in a fight with the
respondent, and co-respondent reappeared after having taken his cell phone. On the other hand,
Officer Chambers admitted on cross-examination, that in her report, she noted that Soberu told
her that co-respondent punched him in the head before the respondent ordered him to the
ground at gunpoint and prior to any struggle. Contrary to the respondent’s position, however,
we are not at liberty to substitute our judgment for that of the trier of fact on this matter. As
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already noted above, it is the province of the trier of fact to resolve any conflicts in evidence, as
well as any inconsistencies in witnesses’ testimony. In re Jonathon C.B., 2011 IL 107750,
¶ 59. Here, the trial court found Soberu’s testimony as to what transpired during the attack
credible. In addition, the trial court noted Soberu’s “language barrier” when testifying at trial.
The transcript itself contains numerous instances in which the court asked Soberu to speak
more slowly so that the court could understand his testimony. Under this record, it would not
have been unreasonable for the trial court to disregard any inconsistency in the police officer’s
report and Soberu’s subsequent testimony as resulting from miscommunication between the
officer and Soberu (a non-native speaker, experiencing stress from the recent attack). This is
particularly true where Officer Chambers admitted on cross-examination that her incident
report failed to note other information relayed to her by Soberu on their initial encounter.
¶ 45 The respondent further argues that even if we choose to defer with the trial court’s
credibility determination, we should nonetheless reverse his adjudication because the State
failed to prove the requisite element of armed robbery with a firearm. The respondent contends
that because the gun was never recovered, Soberu’s testimony was insufficient to establish that
the weapon used in the robbery was a firearm as defined under the statute. We disagree.
¶ 46 In People v. Wright, 2017 IL 119561, ¶ 76, our supreme court recently addressed what type
of evidence regarding a “firearm,” would be sufficient to uphold an armed robbery with a
firearm conviction. Relying on People v. Washington, 2012 IL 107993, ¶ 6, our supreme court
concluded that the testimony of a single eyewitness that a gun or pistol was used in the robbery
can be sufficient to permit a rational trier of fact to conclude that a firearm was used in the
offense, even where the weapon is not recovered from the scene of the crime. See Wright, 2017
IL 119561, ¶ 76 (holding that the testimony of witnesses that “what looked like” a black gun
used in the robbery was sufficient to conclude that a firearm was used during the commission
of the offense).
¶ 47 In the present case, Soberu testified that the gun the respondent used to rob him was a
“black pistol.” In addition, Soberu’s testimony established that he had an opportunity not only
to see the gun pointed at him but also hold the gun after he grabbed it from the respondent in
the struggle. Viewing this evidence in the light most favorable to the State, it was not so
unreasonable, improbable, or unsatisfactory that no rational trier of fact could have found that
the respondent was armed with a firearm during the commission of the robbery. Wright, 2017
IL 119561, ¶ 77.
¶ 48 Accordingly, for all of the aforementioned reasons, we affirm the trial court’s adjudication
of the respondent delinquent for armed robbery with a firearm.
¶ 49 B. Probation Conditions
¶ 50 On appeal, the respondent next contends that the trial court abused its discretion in
imposing certain gang-related conditions on his probation, where his crime, armed robbery
with a firearm, had nothing to do with gangs or gang membership, and therefore the probation
conditions were not reasonably related to his offense. In the alternative, the respondent
contends that the gang-related conditions were unconstitutional as applied to him because they
were overbroad and unreasonable. The respondent specifically challenges the following
conditions of his probation: (1) that he “stay away” and have “no contact” with gangs and (2)
that he clear and not appear in any social media posts with gang members.
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¶ 51 Before addressing the merits of the respondent’s claims, we must first consider the State’s
forfeiture argument. The State contends that the respondent has forfeited these issues for
purposes of appeal by failing to object to the imposition of the gang-related probation
conditions at the time of his dispositional hearing. The respondent admits that he did not object
to these conditions at the trial level but, citing In re W.C., 167 Ill. 2d 307 (1995), contends that
an objection was unnecessary to preserve his claims for review because he is a minor and the
goal of juvenile dispositional hearings is different from that of adult sentencing. In the
alternative, the respondent contends that we should review his claims under the plain error
doctrine.
¶ 52 It is well-accepted that to preserve a sentencing issue for appellate review, an adult
offender must object both at the sentencing hearing and in a subsequent posttrial motion. In re
N.H., 2016 IL App (1st) 152504, ¶ 69. On the contrary, our supreme court has held that, unlike
adults, minors are excused from filing a post-adjudicatory motion to preserve issues for
appellate review. In re Samantha V., 234 Ill. 2d 359, 368 (2009) (citing In re W.C., 167 Ill. 2d
at 327). However, contrary to the respondent’s position, our supreme court has made clear that
to avoid forfeiture minors must nonetheless object to the claimed errors at the trial level. See
In re Samantha V., 234 Ill. 2d at 368 (holding that while minors are not required to file a
post-dispositional motion, they must nevertheless “object at trial to preserve a claimed error
for review” (citing In re W.C., 167 Ill. 2d at 327)). Since the respondent here admits that he
never objected to the imposition of the probation conditions at the dispositional hearing, we
must determine whether he has demonstrated plain error so as to permit our review.
¶ 53 The plain error doctrine “bypasses normal forfeiture principles and allows a reviewing
court to consider unpreserved claims of error in specific circumstances.” People v. Thompson,
238 Ill. 2d 598, 613 (2010) (citing People v. Averett, 237 Ill. 2d 1, 18 (2010)); see also People
v. Fort, 2017 IL 118966, ¶ 18 (citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005)).
Specifically, the plain error doctrine permits “a reviewing court to consider unpreserved error
when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error
alone threatened to tip the scales of justice against the defendant, regardless of the seriousness
of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected
the fairness of the defendant’s trial and challenged the integrity of the judicial process,
regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)
(citing Herron, 215 Ill. 2d at 186-87); see also Thompson, 238 Ill. 2d at 613; see also People v.
Adams, 2012 IL 111168, ¶ 21. In the sentencing context, this means that a defendant must
show either that (1) the evidence at the sentencing hearing was closely balanced or (2) the error
was so egregious as to deny the defendant a fair sentencing hearing. People v. Hillier, 237 Ill.
2d 539, 545 (2010). Under either prong of the plain error doctrine, the burden of persuasion
remains on the defendant. People v. Bowman, 2012 IL App (1st) 102010, ¶ 30 (citing People v.
Lewis, 234 Ill. 2d 32, 43 (2009)).
¶ 54 “The first step of plain-error review is to determine whether any error occurred.” Lewis,
234 Ill. 2d at 43; Thompson, 238 Ill. 2d at 613; see also People v. Wilson, 404 Ill. App. 3d 244,
247 (2010) (“There can be no plain error if there was no error at all ***.”). This requires “a
substantive look” at the issue raised. People v. Johnson, 208 Ill. 2d 53, 64 (2003). We will
therefore first review the respondent’s claims to determine if there was any error before
considering it under plain error.
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¶ 55 Turning to the merits, we begin by noting that trial courts have broad discretion to impose
probation conditions, whether expressly enumerated by statute or not, to achieve the goals of
fostering rehabilitation and protecting the public. In re J.W., 204 Ill. 2d 50, 77 (2003); see also
In re H.G., 322 Ill. App. 3d at 738. However, this wide latitude in setting conditions of
probation is not boundless. In re J.W., 204 Ill. 2d at 77. The court’s discretion is limited by
constitutional safeguards and must be reasonable. In re J.W., 204 Ill. 2d at 77.
¶ 56 In determining whether a trial court’s imposition of a probation condition was proper,
either under an abuse of discretion standard or as impinging on the respondent’s constitutional
rights under a de novo standard of review, our supreme court has made clear that “the
overriding concern is reasonableness.” In re J.W., 204 Ill. 2d at 78.
¶ 57 To be reasonable, a condition of probation must not be overly broad when viewed in the
light of the desired goal or the means to that end. In re J.W., 204 Ill. 2d at 78 (citing In re J.G.,
295 Ill. App. 3d 840, 843 (1998)). In other words, “[w]here a condition of probation requires a
waiver of precious constitutional rights, the condition must be narrowly drawn; to the extent it
is overbroad it is not reasonably related to the compelling state interest in reformation and
rehabilitation and is an unconstitutional restriction on the exercise of fundamental
constitutional rights.” (Internal quotation marks and emphasis omitted.) In re J.W., 204 Ill. 2d
at 78.
¶ 58 Our supreme court has explained that when assessing the reasonableness of a condition of
probation, it is appropriate to consider whether the restriction is related to the nature of the
offense or the rehabilitation of the probationer. In re J.W., 204 Ill. 2d at 79 (citing People v.
Meyer, 176 Ill. 2d 372, 378 (1997), and People v. Pickens, 186 Ill. App. 3d 456, 460 (1989)).
Other considerations are (1) whether the condition of probation reasonably relates to the
rehabilitative purpose of the legislation, (2) whether the value to the public in imposing this
condition of probation manifestly outweighs the impairment to the probationer’s constitutional
rights, and (3) whether there are any alternative means that are less subversive to the
probationer’s constitutional rights but still comport with the purposes of conferring the benefit
of probation. In re J.W., 204 Ill. 2d at 79 (citing Harris, 238 Ill. App. 3d at 582, and In re J.G.,
295 Ill. App. 3d at 843).
¶ 59 A probationary condition is overbroad and therefore unreasonable when there is no valid
purpose for the restriction and there is no means by which the probationer may obtain
exemption from the restriction for legitimate purposes. See In re J.W., 204 Ill. 2d at 80-81.
¶ 60 In the present case, for the reasons that follow, we find that the conditions of probation
ordering the respondent to “stay away” and have “no contact” with gangs and to remove all
social media posts in which he appears with gang members were overbroad and not narrowly
drawn so as to be unreasonable. In re J.W., 204 Ill. 2d at 78 (citing In re J.G., 295 Ill. App. 3d
at 843) (to be reasonable, a condition of probation must not be overly broad when viewed in the
light of the desired goal or the means to that end).
¶ 61 In coming to this decision, we first hold that, contrary to the respondent’s position, the
no-gang contact provision was a valid condition of probation because it was reasonably related
to the respondent’s rehabilitation. See In re J.G., 295 Ill. App. 3d at 843 (“conditions of
juvenile probation must be reasonably related to the juvenile’s rehabilitation”). The Juvenile
Court Act of 1987 explicitly permits the trial court to limit a juvenile respondent’s gang
contact. Section 5-715(2)(s) of the Juvenile Court Act of 1987 provides in relevant part:
“(2) The court may as a condition of probation *** require that the minor:
- 12 -
***
(s) refrain from having any contact, directly or indirectly, with certain specified
persons or particular types of persons, including but not limited to members of
street gangs ***.” 705 ILCS 405/5-715(2)(s) (West 2016).
While the Act does not expressly permit limitations on social media, in the present world,
where communication is routinely made through online social platforms, it is not a stretch of
the imagination to understand “contact” as extending to an individual’s online presence.
¶ 62 In the instant case, at the dispositional hearing the trial court stated that it had reviewed the
social investigation report prepared by the probation officer. That report noted that the
respondent had five friends, three of whom had been arrested, and that the respondent believed
that some of his friends were a negative influence on his life. According to the social
investigation report, the respondent stated that some of his friends were “gang involved” and
that they were members of the Black Peace Stones. The respondent, however, denied being a
gang member and admitted only to being “an associate” of the Black Peace Stones. Under this
record, and keeping in mind that the purpose of the juvenile court is to act as a parens patriae
to the minor in order to see through the minor’s rehabilitation (In re Jonathon C.B., 2011 IL
107750, ¶ 144 (citing In re W.C., 167 Ill. 2d at 325-26)), we find that attempting to limit the
minor respondent’s contact (real or virtual) with gang members was a valid condition of
probation because it was related to his rehabilitation.
¶ 63 Nonetheless, we are compelled to conclude that the probationary conditions as articulated
by the trial court were overbroad and not narrowly tailored so as to be unreasonable. In re J.W.,
204 Ill. 2d at 78. The trial court’s blanket order requiring the respondent to “stay away” from
and have “no contact” with gangs and to clear and not appear in any social media posts with
gang members did not contain a means by which the respondent could obtain an exception
from the restrictions for legitimate purposes. There is no exclusion for people based on
familial, employment, or educational relationships, and no explanation as to what type of
contact (physical or online), no matter how innocuous, will result in a probation violation. This
is particularly troubling where, according to the social investigation report, the respondent
reported that the person he looks up to the most is his brother, who “has been in the system but
has turned his life around.” Accordingly, we find that in the present case, the trial court’s
imposition of the aforementioned gang-related conditions of probation constituted error. See
In re J.W., 204 Ill. 2d 50 (vacating as unconstitutional a condition of juvenile probation
limiting a minor’s freedom of movement because that condition, while valid as reasonably
related to the offense of sexual assault, was overbroad and therefore unreasonable because it
failed to make any provisions that would have permitted the minor respondent to enter the
geographic area for legitimate purposes).
¶ 64 Since we find error, we must next determine whether the error rose to the level of plain
error so as to permit our review. See Fort, 2017 IL 118966, ¶ 18. The plaintiff contends that we
should review his claims under both the first and second prongs of the plain error doctrine.
¶ 65 With respect to the first prong of the plain error doctrine, the plaintiff contends that the
only evidence that he had any connection with gangs came from his social investigation report,
which briefly noted that several of his friends were gang members, and that he was an associate
of the Black Peace Stones but not a gang member. The respondent contends that aside from
this brief statement, there was no evidence anywhere in the record that he was involved with
- 13 -
gangs, that the crime he committed was related to gangs or gang membership, or that his social
media pages had any gang-related content.
¶ 66 In addition, the respondent contends that we should consider his constitutional challenge to
the probation conditions under the second prong of the plain error doctrine because such an
error was so egregious that it denied him a fair dispositional hearing. Fort, 2017 IL 118966,
¶ 18.
¶ 67 We agree with the respondent that under the record before us the evidence of his
involvement, if any, with gangs was at best closely balanced so as to constitute plain error. In
that respect, we note the trial court itself acknowledged the closely balanced nature of such
evidence at the dispositional hearing, stating “there is some contradictory information” as to
this. Accordingly, we may review the respondent’s claims under the plain error doctrine. Fort,
2017 IL 118966, ¶ 18.
¶ 68 Moreover, even if the evidence of the respondent’s gang affiliation at the dispositional
hearing is not closely balanced, for the reasons that follow, we conclude that the respondent
can proceed under the second prong of plain error review because the error is so serious that it
affected the integrity of the judicial process. The judicial process of permitting social
rehabilitation as a condition of probation depends on evidence of the need for such social
rehabilitation but also clear parameters in setting out how the rehabilitation is to proceed.
Given that certain areas of Chicago are gang-infested, a blanket prohibition against contact
with gangs is simply too general and overbroad to provide a juvenile with clear parameters
about how to comply with the conditions of his probation. That is, if the parameters are so
vague, overboard, or general that a juvenile could be inadvertently caught violating probation
in a number of scenarios, including when conducting himself in a constitutionally protected
manner, then the judicial process is not functioning as intended. This breakdown in the judicial
process constitutes second-prong plain error. See, e.g., Lewis, 234 Ill. 2d at 48 (applying the
second-prong plain error analysis to a review of a condition of probation that was imposed in
an arbitrary and unreasonable manner, so as to affect the integrity of the judicial process).
¶ 69 Proceeding with the merits, and for all of the reasons already articulated in detail above, we
conclude that the imposition of the gang-related probation conditions was overly broad and
therefore not exercised in a reasonable manner. We therefore vacate that portion of the trial
court’s order requiring the respondent to “stay away” from and have “no contact” with gangs
and to clear all his social media of postings with gang members. We remand the cause so that
the trial court may consider whether such restrictions are still warranted, and if so, what
appropriate exceptions for familial, employment, and school contacts should be applied.
¶ 70 Since we vacate the respondent’s gang-related probation conditions, we need not address
the remainder of the respondent’s arguments on appeal.
¶ 71 III. CONCLUSION
¶ 72 For the aforementioned reasons, we affirm in part and reverse and remand in part.
¶ 73 Affirmed in part; reversed and remanded in part.
- 14 -
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FILED
NOT FOR PUBLICATION JUL 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ZABIAN R. CROSBY, No. 11-16193
Plaintiff - Appellant, D.C. No. 1:09-cv-01764-GSA
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding
Submitted May 7, 2012 **
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Zabian Crosby appeals pro se a judgment of the district court affirming the
Commissioner of Social Security’s denial of his applications for disability
*
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).
insurance and supplemental security income benefits under Titles II and XVI of the
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
We review de novo a district court’s judgment upholding the denial of social
security benefits. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). We
must affirm the denial of benefits unless it is based on legal error or the findings of
fact are not supported by substantial evidence. Valentine v. Comm’r Soc. Sec.
Admin., 574 F.3d 685, 690 (9th Cir. 2009).
Crosby contends the ALJ improperly discredited his subjective statements
concerning the intensity, persistence, and limiting effects of his impairments. An
ALJ’s credibility determination must be based on specific findings supported by
substantial evidence and clear and convincing reasons. Tommasetti, 533 F.3d at
1039; Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir.
2008).
The ALJ found Crosby’s subjective statements inconsistent with medical
records showing many of his symptoms are controlled by conservative treatment,
with his work history showing that his longstanding conditions did not preclude
work in the past, with previous statements in which Crosby denied health problems
that he now claims are disabling, with the minimal objective findings suggesting
functional limitations, and with Crosby’s unexplained failure to follow
-2-
recommended treatment that would alleviate his symptoms. These are proper
factors for evaluating credibility, the findings are sufficiently specific to show that
the ALJ’s credibility determination was not arbitrary, and the reasoning is clear
and convincing. We uphold the credibility determination.
Crosby contends the ALJ improperly discounted the opinions of treating
physicians Steven Kator, M.D., and Roy Raroque, M.D. The ALJ discounted their
opinions in favor of the opinions of examining physicians and reviewing medical
and psychological experts. An ALJ can reject a treating physician’s opinion in
favor of conflicting medical opinions, if the ALJ makes “findings setting forth
specific, legitimate reasons for doing so that are based on substantial evidence in
the record.” Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) quoting
Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).
The ALJ found Dr. Kator’s opinion unsupported by objective clinical
findings, inconsistent with his own treatment records, and premised significantly
on Crosby’s unreliable subjective statements. The ALJ found Dr. Raroque’s
opinion inconsistent with his own progress notes showing Crosby improved with
treatment, with the findings of other treating sources, and with Crosby’s activities
which showed greater functional capacity than Dr. Raroque suggested. These
findings provide a specific legitimate basis for the ALJ to discount Dr. Kator’s and
-3-
Dr. Raroque’s opinions in favor of other opinions which the ALJ found better
supported by the evidence and more consistent with the record as a whole.
Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
Crosby contends the ALJ failed to give sufficient weight to a rating decision
by the Department of Veterans Affairs which found Crosby 20% disabled due to a
meniscus tear in the knee. An ALJ must give careful consideration to VA findings,
but may reject them for persuasive, valid, specific reasons that are supported by the
record. Valentine, 574 F.3d at 695; McCartey v. Massanari, 298 F.3d 1072, 1076
(9th Cir. 2002). The ALJ discounted the VA rating decision because it was based
significantly on Crosby’s subjective statements and did not address the criteria
used by the Commissioner in determining disability. The ALJ gave greater weight
to the opinions of examining physicians, which addressed the pertinent criteria, viz.
Crosby’s residual functional capacities in specific work-related activities. The ALJ
did not disregard the VA rating decision; he gave it due consideration and
discounted it for persuasive, valid, specific reasons that are supported by the
record.
Crosby raised two issues for the first time on appeal. He contends for the
first time that the ALJ failed to adequately consider whether his medical condition
is equivalent to Listing 12.04 of the regulatory Listing of Impairments at 20 C.F.R.
-4-
Part 404, Subpart P, Appendix 1. He also challenges the vocational expert’s
testimony for the first time, based on her qualifications and her reliance on the
Dictionary of Occupational Titles. The court will not consider issues raised for the
first time on appeal, except to avoid manifest injustice. Greger v. Barnhart, 464
F.3d 968, 973 (9th Cir. 2006); Meanal v. Apfel, 172 F.3d 1111, 1115 (9th Cir.
1999). There is no manifest injustice here.
We have reviewed Crosby’s remaining contentions and determine that they
lack merit.
AFFIRMED.
-5-
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975 P.2d 1065 (1999)
TL, by his guardians and conservators, TL and CL, Appellants (Petitioners),
v.
CS, n/k/a CI, TS and J$R, Appellees (Respondents).
No. C-98-1.
Supreme Court of Wyoming.
April 9, 1999.
*1066 Turner A. Rouse of Buchhammer and Kehl, Cheyenne, Wyoming; John M. Scorsine, Burns, Wyoming. Argument by Mr. Scorsine, for Appellants.
William L. Combs, Evanston, Wyoming, for Appellees.
Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR,[*] JJ.
GOLDEN, Justice.
The primary issue in this establishment-of-paternity case concerns how we shall resolve the apparent conflict between the statutory paternity presumption arising in favor of a man who receives a minor child into his home and openly holds out the child as his natural child, Wyo. Stat. Ann. § 14-2-102(a)(iv) (Michie 1997), and the statutory paternity presumption arising in favor of another man whom genetic testing evidence reveals to be the biological father of the minor child in question, Wyo. Stat. Ann. § 14-2-109 (Michie 1997). We first saw this case in Matter of Paternity of TS, 917 P.2d 183 (Wyo.1996). There, we reversed the district court's order of summary judgment in favor of TL, who received TS into his home and openly held out TS as his natural child, and remanded for trial the issue of paternity. The jury decided that the genetic testing evidence in favor of JI revealing a 99.99 + percent probability of biological paternity did not rebut the statutory presumption arising in favor of TL, and held in TL's favor. The district court overturned the jury's verdict and entered judgment as a matter of law in JI's favor. The court also awarded costs and attorney fees against TL.
We hold that the particular circumstances of this case required TL to prove that the results of the genetic testing were inaccurate or somehow deficient, the district court correctly ruled that he did not present any such evidence, and JI was, therefore, entitled to judgment as a matter of law. We affirm.
ISSUES
Appellant presents these issues for our review:
I. Did the District Court err when it chose to disregard the jury's verdict and entered a judgment as a matter of law?
II. Is the assessment of costs and attorney fees against the Appellant proper?
III. Does the judgment of the Court remove from the Appellant any meaningful opportunity for appeal to this court?
Appellees rephrase the issues as:
I: Whether the District Court erred by entering judgment as a matter of law, notwithstanding the jury verdict regarding paternity.
II: Whether the trial court's award of attorney fees and costs against appellants was proper.
*1067 III: Whether appellants were deprived of meaningful appeal.
FACTS
The mother (CI) of TS lived with TL intermittently from the time of the child's birth in 1991 through 1992. Genetic testing, however, established that a 99.99 + percent probability existed that JI was the biological father of TS. Matter of Paternity of TS, 917 P.2d at 184-85. Our previous decision in the paternity action regarding this child held that there was a genuine issue of material fact as to whether TL could be considered a presumed father under the statute by virtue of having held the child out as his own. Id. at 185. That issue was remanded for trial. Additionally, we remanded to determine whether any clear and convincing evidence rebutted the presumption of paternity created by the genetic testing. Id. at 185-86.
A jury trial was held to determine the paternity of TL, whether TL suffered any damages as a result of the alleged fraudulent actions of CI, and whether TL was entitled to custody and visitation with the child in the event the jury did not find that he was the natural father of the child. The jury concluded that TL was the natural father of the child and that CI did not commit fraud but was guilty of willful and wanton misconduct. CI and JI and the co-guardians ad litem for TS filed a motion for judgment as a matter of law or in the alternative for new trial. The trial court granted judgment as a matter of law, finding that TL did not introduce any evidence which contradicted the genetic testing and, as a matter of law, should not have been found to be the natural father of TS. That order declared JI the natural father of TS, denied TL custody and any right of visitation with the child, and ordered TL to pay the attorney fees of JI and the fees and costs of the co-guardians ad litem. The order also conditionally granted a new trial to the child on the issue of damages incurred by him because of TL's, JI's, and CI's deception regarding the identity of his natural father, and conditionally granted a new trial to TL on his claim for deceit against CI.
DISCUSSION
Standard of Review
On an appeal of the grant of a judgment as a matter of law, we review the record without deference to the views of the trial court to determine whether the evidence is such that without weighing the credibility of the witnesses, or otherwise considering the weight of the evidence, there can be but one conclusion reasonable persons could have reached. Farmers Ins. Exchange v. Shirley, 958 P.2d 1040, 1053 (Wyo.1998); Ames v. Sundance State Bank, 850 P.2d 607, 608-09 (Wyo.1993). We consider the evidence in the light most favorable to the party against whom the motion for judgment as a matter of law is directed, giving all reasonable and legitimate inferences to such evidence. Ames, 850 P.2d at 608-09.
Presumptive Father Determination
TL's contentions on appeal can be summarized as assertions that Wyoming's Parentage Act recognizes that a non-biological father can demonstrate a sufficiently established father-child relationship warranting a jury verdict in his favor and, therefore, the district court erred in overturning the jury verdict. JI contends that these arguments and the evidence presented by TL at trial were a demonstration that declaring TL the natural father was in the best interests of the child, a factor this Court ruled irrelevant in our previous decision in this case. Matter of Paternity of TS, 917 P.2d at 186.
Wyoming has adopted a slightly modified version of the Uniform Parentage Act[1] in order to achieve a basic purpose of protecting the father-child relationship. Matter of Paternity of JRW, 814 P.2d 1256, 1259 (Wyo.1991). Generally, this Court has long recognized the strong state policy in legitimacy to avoid disruption of family relationships. Matter of Paternity of SDM, 882 P.2d 1217, 1225 (Wyo.1994); LC v. TL, 870 *1068 P.2d 374, 380 (Wyo.1994), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). The legislature's intent to insure children born during wedlock will not be considered illegitimate is expressed in the statutory presumption of paternity accorded to a man married to the mother at the time of the child's birth. Matter of Paternity of TS, 917 P.2d at 186. Although TL was never married to CI, the Act recognizes TL's presumptive legal relationship:
§ 14-2-102. Presumption of paternity; rebuttal thereof.
(a) A man is presumed to be the natural father of a child if:
* * * *
(iv) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child.
(b) A presumption under subsection (a) of this section may be rebutted in an appropriate action only by clear and convincing evidence. If two (2) or more presumptions under subsection (a) of this section arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. A presumption under subsection (a) of this section is rebutted by a court decree establishing paternity of the child by another man.
* * * *
Wyo. Stat. Ann. § 14-2-102 (Michie 1997).
JI's presumptive legal relationship can be established as provided by Wyo. Stat. Ann. § 14-2-109(e)(iv) (Michie 1997):
If the experts conclude that the genetic tests show that the alleged parent is not excluded and that the probability of the alleged parent's parentage is ninety-seven percent (97%) or higher, the alleged parent is presumed to be the parent and this evidence shall be admitted. This presumption may be rebutted only by clear and convincing evidence.
Section 14-2-102(b) provides the standard by which conflicting presumptions arising under it are to be resolved. The presumption "founded on the weightier considerations of policy and logic controls." The Act does not, however, establish a standard to resolve conflicting presumptions arising under these two different sections of the paternity act as has occurred in this case. TL's contention that he can be declared the natural father raises the question whether the purpose of the Act is to determine the biological father or whether its purpose is to preserve the presumptive father-child relationship which is in the best interests of the child.
Ordinarily, such a question would require that we apply our statutory interpretation analysis and determine the legislative intent; however, our previous decisions have answered this question. In Matter of SAJ, 781 P.2d 528 (Wyo.1989), we held that the best interests of the child standard was not relevant in an action purely to establish paternity. Id. at 530. In that action, no other presumed father was involved. Id. at 529. In Mak-M and DMM v. SM, 854 P.2d 64 (Wyo.1993), we ruled that the ex-husband was the presumptive father where he and the mother were married soon after the child's birth and lived together for a time, although he was mistakenly named as the child's biological father on the child's birth certificate. Id. at 67. After their divorce, father was granted the care and custody of the child, and mother brought an action to determine the nonexistence of paternity and for custody. Id. at 66. We upheld the lower court's determination that the best interests of the child were served by sustaining the father's presumptive parenthood and held that the best interests of the child are not always served by a paternity determination of his or her biological father. Id. at 67.
In contrast, in the first action in this particular case, we held that a trial was necessary to determine if there is any clear and convincing evidence which rebuts the presumption established by genetic testing, and the best interests of the child analysis was not necessary. Our ruling was essentially a decision that the circumstances required that genetic testing resolve any conflict between statutory presumptions. Matter of Paternity of TS, 917 P.2d at 186. In this particular case, JI alleged that he was the *1069 natural father of TS in January of 1994. The Act permits any man alleging that he is the natural father of a child having a presumed father under Wyo. Stat. Ann. § 14-2-102 to bring the action within six months of the child's birth or on or before December 31, 1994, whichever is later. Wyo. Stat. Ann. § 14-2-104(c) (Michie 1997). In summary, there are circumstances where the best interests of the child is at issue; however, in this particular case, that analysis was unnecessary, primarily because the statute permitted the action, the child was born out-of-wedlock, and the mother and biological father married.
We can foresee circumstances arising where a biological father should not be permitted to allege paternity and disrupt an established, presumptive father-child relationship, and we assume that there are any endless variety of scenarios regarding paternity which can arise and that will have to be carefully considered by a district court before permitting a paternity determination. However, the district court in this case properly interpreted our ruling to mean that the genetic testing was the prevailing presumption and could only be rebutted by clear and convincing evidence attacking the accuracy of the testing results. We affirm the order directing judgment as a matter of law for JI and CI.
Attorney Fees
TL contends the district court sent a letter before trial that it would award attorney fees against TL if CI and JI prevailed at trial. He contends this indicated prejudgment and the award of attorney fees is an abuse of discretion. The Act states:
If a man alleging paternity fails to establish his paternity, the court shall order him to pay all court costs and reasonable attorney fees to the prevailing party.
Wyo. Stat. Ann. § 14-2-104(c) (Michie 1997).
The court may order reasonable fees of counsel, experts and the child's guardian ad litem, and other costs of the action and pretrial proceedings including genetic tests, to be paid by the parties in proportions and at times determined by the court.
Wyo. Stat. Ann. § 14-2-114 (Michie 1997).
This Court's reversal of the summary judgment in favor of TL and its remand for trial to determine if there was any clear and convincing evidence rebutting the results of the genetic testing informed TL that this particular aspect was the only paternity question at issue for trial. TL did not present any evidence on this issue at trial, yet he continued to contest paternity. The trial did address other important issues, but TL continued to allege paternity, he did not prevail, and under the plain wording of the statute, the district court was entitled to order him to pay all of the court costs and reasonable attorney's fees to the prevailing party. Wyo. Stat. Ann. § 14-2-104(c) (Michie 1997).
A denial or award of attorney fees under Wyo. Stat. Ann. § 14-2-114 is reviewed for an abuse of discretion. LC v. TL, 870 P.2d at 381. The district court did not give any reasons for awarding costs to the co-guardians ad litem; however, it could reasonably have concluded that TL should pay these costs for continuing to improperly contest paternity and because he did not prevail on the issues involving paternity, custody, and visitation. TL's broad accusations that the court prejudged the case simply have no bearing on the issue of awarding these kinds of costs and do not persuade us there was an abuse of discretion. Without any other reason advanced as to why this award of costs was an abuse of discretion, we will uphold this portion of the order.
Meaningful Appeal
TL contends that the district court intended to deny him an effective appeal or remedy when it ruled that:
[TS] is hereby granted a new trial on the issue of damages incurred by said minor child on account of [TLs] and Respondents deceiving him as to the identity of his natural father. This cause of action was not pleaded on behalf of [TS]. The grant of a new trial is therefore conditioned on an appeal of the judgment, order for a new trial on appeal and appropriate amendments *1070 to the pleadings; or on the filing of a motion for new trial by [TL]....
[TL] ... shall be granted a new trial on his claim for deceit against Respondent [CI]. The grounds for conditionally granting a new trial to [TL] on this issue are that judgment is being entered against [TL] notwithstanding the jury verdict....
[T]he alternative motion for new trial made by Respondents [JI and CI] is hereby granted. This grant of a new trial is conditioned on vacation or reversal of the paternity ruling on appeal....
His precise concern appears to be with that part of the ruling stating "[t]he grant of a new trial is therefore conditioned on an appeal of the judgment." JI and CI contend that the district court merely complied with W.R.C.P. 50(c)(1) which mandates that it set out any conditions which must occur before a new trial is granted. That rule provides:
(c) Granting renewed motion for judgment as a matter of law; conditional rulings; new trial motion.
(1) If the renewed motion for judgment as a matter of law is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
JI and CI further state that TL has not been affected by the conditions because he did not file a motion for a new trial. We disagree with TL's contention that the order automatically results in a new trial to allow TS to sue TL for damages if TL appeals. We read the order as attempting to anticipate the issues which might be raised if a new trial were to be granted following appeal. Whether or not the district court could properly order a new trial under Rule 50 on the basis of TL's filing an appeal is not an issue before us, and we do not address it. From the record before us, we do not see an intent by the district court to include this wording in the order as a financially punitive measure aimed at discouraging TL from appealing.
We affirm the order granting judgment as a matter of law.
NOTES
[*] retired November 2, 1998
[1] The other states adopting some version of the Uniform Parentage Act are: Alaska, California, Colorado, Delaware, Hawaii, Illinois, Kansas, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Rhode Island, and Washington.
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967 A.2d 142 (2009)
113 Conn.App. 903
Caine COOPER
v.
COMMISSIONER OF CORRECTION.
No. 29392.
Appellate Court of Connecticut.
Argued March 16, 2009.
Decided April 14, 2009.
BISHOP, LAVINE and ROBINSON, Js.
PER CURIAM.
Petitioner's appeal from the Superior Court in the judicial district of Tolland, Swords, J.
The appeal is dismissed.
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323 P.2d 986 (1958)
Ida KEEL, now Castleberry, Ada Keel, now Runnells, William T. Keel, L.D. Keel, Minta Lee Thompson, Nee McAlester, Robert A. Keel, Leo Keel, an incompetent person, by his next friend, L.D. Keel, and L.D. Keel, as administrator of the estate of Lizzie Keel, deceased, Plaintiffs in Error,
v.
Clarence P. MILLER, Defendant in Error.
No. 37664.
Supreme Court of Oklahoma.
February 11, 1958.
Rehearing Denied April 8, 1958.
King & Wadlington, by Carloss Wadlington, Ada, for plaintiffs in error.
Busby, Stanfield, Deaton & West, by W.V. Stanfield, Ada, for defendant in error.
PER CURIAM.
This action, No. 20,052, District Court, Pontotoc County, was initiated by petition *987 filed April 12, 1951, by L.D. Keel, as guardian of Lizzie Keel, a full-blood Chickasaw, his mother, wherein it was alleged that a certain judgment rendered in No. 19,115, District Court, Pontotoc County, on May 6, 1948, recorded May 7, 1948, quieting title to certain property in defendant in error and against Lizzie Keel, should be vacated. After this action was initiated Lizzie Keel died and the action was properly revived by plaintiffs in error. Upon trial, judgment was rendered for defendant in error, and the plaintiffs in error, who are the heirs and the administrator of the estate of Lizzie Keel, appeal.
The judgment sought to be vacated by this action was rendered upon a petition which was filed July 14, 1947, to quiet title to the property involved upon the basis of a resale tax deed issued to defendant in error upon his payment of $1,104.52 delinquent taxes for the years 1935-1946 inclusive. Personal service of process was made on Lizzie Keel in that action and she employed counsel, who filed an answer which set forth her claim of title. Notice of the action was also served on the Superintendent for the Five Civilized Tribes, and the Probate Attorney thereafter filed an election not to remove the case to Federal Court. Because Lizzie Keel was unable to tender the delinquent taxes her attorneys, respected members of the bar, negotiated a compromise by which they were able to salvage some of the value of the property for her. A full written statement of the facts of the quiet title action and the legal position of Lizzie Keel was made by one of her attorneys to the Probate Attorney prior to the consummation of the compromise. The rendition of judgment against her was not thereafter contested.
Many of the reasons advanced for the vacation of this judgment may be disposed of upon the basis of the statute of limitations. The journal entry of judgment was recorded on May 7, 1948, based upon a compromise or settlement to which she was a party, and she and her attorney received their agreed benefits therefrom. This action was not filed until April 12, 1951. Thus, more than two years had passed from the date when Lizzie Keel and her attorney settled the case and agreed to the judgment, and the petition to vacate upon the ground of fraud and unavoidable casualty was barred. Sec. 95(3) and Sec. 1038, 12 O.S. 1951.
In order to avoid the foregoing result, plaintiffs in error also assert that Lizzie Keel was a person of unsound mind, and as a consequence, that the statute of limitations had not barred the action. The bulk of the testimony in the action dealt with this phase of the controversy and, as might be expected, was conflicting. At the time of her death in March, 1952, Lizzie Keel was 84 years of age, and had been afflicted with extremely poor vision and hearing for several years. It was mostly as a result of these infirmities that the heirs and other non-expert witnesses seemed to arrive at their conclusion that she was mentally incompetent. At least these physical infirmities appear most often in the expressed facts from which their conclusion was deduced. It was even testified by two of her children that she had been incompetent since prior to 1940, a conclusion irreconcilable with their conduct, as well as hers, during that period.
The evidence discloses that Lizzie Keel did not believe that any land of an Indian was taxable; that when served by summons in the quiet title action she chose as her attorney to defend the action a member of the bar who had represented her for many years; that she talked about the case with him and, when informed of the necessity of a tender of delinquent taxes in order to attack the tax deed, left his office before returning finally to employ him in the case; that she told him she was not able to tender the delinquent taxes; that she made several trips from her home near Stratford to Pauls Valley to discuss the case with him; that sometime in 1947 she went to Muskogee to talk with the United States Probate Attorney concerning the taxable status of the property; that the probate attorney talked with her alone and felt that "she understood what I said to her" although she *988 was less alert than she had been in 1920 when he had talked with her; that the probate attorney told her the land was taxable; that she maintained a checking account in the bank at Stratford, and that as late as 1951 she negotiated a loan from that bank; that in 1945 and 1946 she had engaged in negotiations with a lease broker, who testified that his impression of her was that she seemed "a little smarter than the average Indian"; that she had lived in her own home near Stratford until only two years prior to her death; that she was not placed under guardianship until April 3, 1951, only nine days before this action was initiated.
That one is aged and infirm does not necessarily render him mentally incompetent. As we have noted, witnesses for the plaintiffs in error testified to their conclusion that Lizzie Keel was not competent to conduct her affairs, but, as all recognize, this conflict in the evidence was a matter to be reconciled by the trial court. It is only where its conclusion is against the clear weight of the evidence that we will reverse the judgment. This record does not present that situation. There inheres in the trial court's judgment a finding of all facts necessary to sustain it, and this includes the finding that Lizzie Keel was not a person of unsound mind, under subdivision 5 of Section 1031, or Section 1038, 12 O.S. 1951, either at the time this action was filed or at the time the judgment was rendered. The foregoing disposes of the petition to vacate on the grounds of sub-divisions 4, 5 and 7 of Section 1031, 12 O.S. 1951.
Plaintiffs in error also argue that the judgment should be vacated for "irregularity in obtaining" the judgment under sub-division 3 of Section 1031. Assuming this particular reason to have been properly presented to the trial court, a fact defendant in error disputes, we are of the opinion that the action of the trial court must be affirmed. It is true that we have held that an attorney is without authority to compromise his client's claim without authorization of his client, and that this is an irregularity justifying vacating a judgment under the third sub-division of Section 1031. National Valve & Mfg. Co. v. Wright, 205 Okl. 571, 240 P.2d 766, 29 A.L.R.2d 448. In this action, however, there was ample testimony, although in conflict with plaintiffs in error's testimony, from which the trial court could conclude that the attorneys were authorized to reach a compromise with the plaintiff in the quiet title action. Her attorney's testimony was that Lizzie came to him and they discussed the action pending against her; that he informed her that a tender of the delinquent taxes would be necessary to defend the action; that she informed him she could not make a tender; that he advised her to attempt to compromise the case; that "Before she left I told her that we might file some kind of an answer and get some kind of comprise and get her something out of it if she couldn't pay her taxes otherwise I think I told her, `you are going to lose your land if you don't pay the taxes' and then she said she was going and she went, but she came back later"; that when she returned she stated to him: "Well, she says `Get me all the damages', she called it, `that you can', and I said I would try to comprise and she said to just go ahead and do the best I could and that is what I did. * * * She just made this statement, `You can get all you can and I will give you half of it'"; that when the compromise was completed he went to her home to deliver the money but did not find her there, whereupon he went to her daughter's home and told the daughter "* * * what I had done and gave Ida a copy * * *"; that he thereupon deposited the money in Lizzie's account. The judgment in this regard is not against the clear weight of the evidence for from this testimony it would appear that the attorneys for Lizzie Keel had been given specific authorization to compromise after a full disclosure to her of her legal position.
Our decision on the foregoing propositions render unnecessary any discussion of the other assignments of error.
Judgment affirmed.
*989 WELCH, C.J., CORN, V.C.J., and DAVISON, HALLEY, JOHNSON, BLACKBIRD, JACKSON and CARLILE, JJ., concur.
The Court acknowledges the aid of the Supreme Court Commission in the preparation of this opinion. After a tentative opinion was written by the Commission the cause was assigned to a Justice of this Court. Thereafter, upon report and consideration in Conference, the foregoing opinion was adopted by the Court.
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81 F.3d 150
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Cathy MILLER, Personal Representative for the Estate ofDavid L. Allison, deceased, Plaintiff-Appellant,v.Roscoe RAMSEY, Jr., MD, Defendant-Appellee,andE.W. Murray, Director, Department of Corrections; E.B.Wright, Chief Warden; P.A. Terrangi, DeputyWarden, Defendants.
No. 95-6759.
United States Court of Appeals, Fourth Circuit.
Submitted Nov. 28, 1995.Decided March 28, 1996.
Cathy Miller, Appellant Pro Se. John Britton Russell, SANDS, ANDERSON, MARKS & MILLER, Richmond, Virginia; Mark Ralph Davis, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
Before HALL and NIEMEYER, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
1
The notice of appeal in this case was received in the district court shortly after expiration of the appeal period. Under Houston v. Lack, 487 U.S. 266 (1988), the notice is considered filed as of the date Appellant delivered it to prison officials for forwarding to the court. The record does not disclose when Appellant delivered the notice of appeal for mailing to the court. Accordingly, we remand the case for the district court to obtain this information from the parties and determine the timeliness of the filing under Houston v. Lack. The record, as supplemented, will then be returned to this court for further consideration.
2
REMANDED.
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Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of FILED
Sep 28 2012, 9:26 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JASON J. PATTISON GREGORY F. ZOELLER
Jenner Auxier & Pattison, LLP Attorney General of Indiana
Madison, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL S. SCROGGINS, II, )
)
Appellant-Defendant, )
)
vs. ) No. 39A01-1203-CR-91
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE JEFFERSON SUPERIOR COURT
The Honorable Sally A. Blankenship, Special Judge
Cause No. 39D01-1008-FC-638
September 28, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Michael S. Scroggins, II (Scroggins), appeals his sentence
following a guilty plea to two Counts of reckless homicide, Class C felonies, Ind. Code §
35-42-1-5, and one Count of criminal recklessness, a Class C felony, I.C. § 35-42-2-
2(c)(3)(B).
We affirm.
ISSUE
Scroggins raises two issues on appeal, which we consolidate and restate as the
following single issue: Whether the trial court properly sentenced Scroggins.
FACTS AND PROCEDURAL HISTORY
On March 2, 2010, Abby Jackson (Jackson) was traveling in the southbound lane
of State Road 7 in Dupont, Indiana, when she observed a green Chevrolet pickup truck
swerving at a high rate of speed behind her. Scroggins and a female passenger were in
the pickup truck. The vehicles had entered a no passing zone, but Jackson moved to the
right side of the road to allow Scroggins to pass. Scroggins drove around her, then
abruptly cut back to the right, causing Jackson to apply her brakes to avoid a collision.
Around the same time, Bonnie Ramey-Low (Ramey-Low), Lois Robinson (Robinson),
and Cindy Speer (Speer) were traveling northbound on S.R. 7 in Ramey-Low’s Jeep
Liberty. As their vehicle crested a small hill, Scroggins’ pickup truck appeared in their
2
lane. Ramey-Low swerved to the left to avoid Scroggins, but their vehicles collided
head-on.
Police arrived at the accident soon thereafter and found Ramey-Low slumped over
the steering wheel. Ramey-Low had died from the accident, but Speer and Robinson
survived and were removed from the Jeep. Robinson later died from her injuries and
Speer suffered multiple fractures and inner ear damage. Scroggins and his passenger
were removed from their vehicle as well, with Scroggins receiving significant injuries to
his arms and the lower half of his body.
On August 11, 2010, the State filed an Information charging Scroggins with
Counts I and II, reckless homicide, Class C felonies, I.C. § 35-42-1-5; Counts III-V,
criminal recklessness, Class C felonies, I.C. § 35-42-2-2(d)(1); Counts VI and VII,
criminal recklessness, Class C felonies, I.C. § 35-42-2-2(c)(3)(B); and Count VIII,
criminal recklessness, a Class D felony, I.C. § 35-42-2-2(c)(2)(B). On December 20,
2011, Scroggins entered into a plea agreement with the State in which he pled guilty to
Counts I, II, and V in exchange for the State’s dismissal of Counts III-IV, VI-VIII. The
State also agreed to forego the filing of five additional Counts as well as a habitual
substance offender allegation. The plea agreement left Scroggins’ sentence to the trial
court’s discretion. On January 10, 2012, the trial court accepted Scroggins’ plea
agreement and scheduled a sentencing hearing.
On January 20, 2012, the trial court conducted the sentencing hearing. In
requesting the maximum sentence for Scroggins, the State argued the following
3
aggravating factors: the harm suffered by the victims was greater than the elements
required to prove the offense; Ramey-Low’s age; Scroggins’ criminal history, including
prior convictions for driving under the influence and other traffic violations; the failure to
deter Scroggins in spite of many opportunities for rehabilitation; and Scroggins’
substance abuse. Scroggins argued that his prior offenses deserved “medium weight”
because they were all misdemeanor convictions. (Sentencing Tr. p. 66). Further,
Scroggins asserted that the State benefitted from his guilty plea since he had intended to
challenge all facets of the case except for the fact that his vehicle was in Ramey-Low’s
lane prior to the collision. He added that his ultimate acceptance of the plea agreement
was due in part to his remorse. Although finding that Scroggins’ guilty plea and his
remorse were mitigating factors, the trial court identified the harm suffered by the victims
and his criminal history as significant aggravating factors. Concluding that the
aggravating factors outweighed the mitigating factors, it sentenced Scroggins to eight
years of incarceration on each Count, with the sentences to be served consecutively, for
an aggregate sentence of twenty-four years.
Scroggins now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Scroggins contends that the trial court abused its discretion when it imposed three
consecutive eight year sentences for his reckless homicide and criminal recklessness
convictions, all Class C felonies. A person who commits a Class C felony shall be
imprisoned for a fixed term of between two and eight years, with the advisory sentence
4
being four years. I.C. § 35-50-2-6(a). Scroggins received the maximum sentence for
each Count.
As long as the sentence is within the statutory range, it is subject to review only
for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified
on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the decision is
clearly against the logic and effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn therefrom. Id. Ways in which
the trial court may abuse its discretion include: wholly failing to issue a sentencing
statement; issuing a sentencing statement that bases a sentence on reasons unsupported by
the record, or that includes reasons that are improper as a matter of law. Phelps v. State,
914 N.E.2d 283, 290 (Ind. Ct. App. 2009).
Because the trial court no longer has any obligation to weigh aggravating and
mitigating factors against each other when imposing a sentence, a trial court cannot now
be said to have abused its discretion by failing to properly weigh such factors.
Anglemyer, 868 N.E.2d at 491. This is so because once the trial court has entered a
sentencing statement, which may or may not include the existence of aggravating and
mitigating factors, it may then impose any sentence that is authorized by statute and
permitted under the Indiana Constitution. Id.
This does not mean that criminal defendants have no recourse in challenging
sentences they believe are excessive. Id. Although a trial court may have acted within its
lawful discretion in determining a sentence, Ind. Appellate Rule 7(B) provides that the
5
appellate court may revise a sentence authorized by statute if it finds that the sentence is
inappropriate in light of the nature of the offense and the character of the offender. Id. It
is on this basis alone that a criminal defendant may now challenge his sentence where the
trial court has entered a sentencing statement that includes a reasonably detailed
recitation of its reasons for imposing the particular sentence that is supported by the
record, and the reasons are not improper as a matter of law. Id.
I. Aggravating and Mitigating Factors
A. Aggravating Factors
Scroggins contends that the record does not support the trial court’s finding of an
aggravating factor and that the trial court improperly considered statutory mitigating
factors as aggravating factors. First, he asserts that the aggravating factor – the harm
caused was greater than that necessary to prove the commission of the offense – was
unsupported since he did not know or intentionally harm his victims and the resulting
harm was no greater than that “associated with the death of a family member or loved one
in an automobile collision.” (Appellant’s Br. p. 12).
The nature and circumstances of a crime can be a valid aggravating factor.
Sharkey v. State, 967 N.E.2d 1074, 1078 (Ind. Ct. App. 2012). However, a trial court
must give more than a generalized reference to the nature and circumstances. Id. The
trial court may assign aggravating weight to the harm, injury, loss or damage suffered by
the victim if such harm was significant and greater than the elements necessary to prove
the commission of the offense. Id. In finding this aggravating factor, the trial court
6
relied on evidence establishing that Speer witnessed the pain and death of fellow
passengers Ramey-Low and Robinson. The trial court also relied on letters from
community members who described its impact on them.
Speer read aloud her letter recounting events immediately after the accident at the
sentencing hearing. She saw that Ramey-Low was “[s]lumped over the steering wheel
which was pinned against her chest,” and Robinson, who later died, “was bleeding from
her chin.” (Sentencing Tr. p. 63). The State submitted a letter from an elementary school
principal retelling how the victims’ families, who were employees and students at the
school, were informed of the tragic accident. The foregoing represents much more than a
generalized reference to the nature and circumstances and we therefore conclude that the
record supports the trial court’s finding of this aggravating factor.
Next, Scroggins contends that the trial court improperly used statutory mitigating
factors as factors to aggravate his sentence. He points to the sentencing order, which
stated that the victims did not induce or facilitate the offense and that Scroggins was
unlikely to respond favorably to short term incarceration. The trial court may consider
these as mitigating circumstances. However, the sentencing statement contains no
pronouncement that the trial court used these to aggravate Scroggins’ sentence; it
indicates that the trial court simply found these were not mitigating factors. Accordingly,
we find no abuse of discretion here.
7
Moreover, we note that the trial court found two other aggravating factors, namely
Ramey-Low’s age1 and Scroggins’ extensive criminal history, which included multiple
traffic offenses and driving under the influence convictions. One of the offenses involved
a crash resulting in an injury. As Scroggins concedes that these are valid aggravating
factors, we therefore conclude that sufficient aggravating factors support the maximum
sentence imposed by the trial court. Accordingly, Scroggins has not shown that the trial
court abused its discretion.
B. Mitigating Factor
Scroggins also argues that the trial court did not give sufficient weight to his guilty
plea and his remorse. Specifically, Scroggins contends that because his guilty plea was a
gesture of remorse and a pragmatic exercise by the State, the trial court abused its
discretion by not according them with significant weight. It is well within the trial
court’s discretion to determine the existence and weight of a mitigating factor. Phelps v.
State, 914 N.E.2d 283, 291 (Ind. Ct. App. 2009).
While the trial court found that Scroggins’ apologies and his guilty plea were
mitigating factors, it recognized that “charges were dismissed or not filed in return for the
plea.” In emphasizing the significance of his guilty plea, Scroggins argues that the only
uncontested matter was that he drove on the wrong side of the road, that a number of
1
Although Scroggins concedes that the age of the victim is a valid statutory aggravating factor, he
nevertheless contends that the trial court improperly relied upon Ramey-Low’s age because he was
unaware of it. However, the defendant’s knowledge of the victim’s age is not necessary for it to qualify
as an aggravating factor. See McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001).
8
Counts filed against him were duplicative and constituted double jeopardy, and that his
passenger’s testimony presented the only basis for the State’s filing of additional charges
and a habitual substance offender allegation. Notably, Scroggins does not contend that
the trial court failed to identify the foregoing as mitigating factors; rather he merely
argues that the trial court did not afford them sufficient weight. However, the relative
weight or value assignable to reasons properly found is not subject to review for abuse.
See Anglemyer, 875 N.E.2d at 221. Consequently, we find no abuse of discretion by the
trial court and affirm its imposition of Scroggins’ sentence.
II. Ind. Appellate Rule 7(B)
App. Rule 7(B) provides that we “may revise a sentence authorized by statute if,
after due consideration of the trial court's decision, [we find] that the sentence is
inappropriate in light of the nature of the offense and the character of the offender.” The
burden is on the defendant to persuade the appellate court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Scroggins has not
met this burden.
With respect to the nature of the offense, we look to the details and circumstances
of the commission of the offense and the defendant’s participation. See Washington v.
State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011). Here, Scroggins was driving
erratically behind Jackson in a no passing zone at a high rate of speed. Instead of
reducing his speed, Scroggins was in the wrong lane and collided head-on with three
women returning home from work. Scroggins’ acts not only resulted in two victims’
9
deaths, but also in their co-worker witnessing the same. In sum, we find that the nature
of the offense supports the sentence imposed by the trial court.
Turning to his character, Scroggins’ history of traffic-related offenses, driver’s
license suspensions, and other crimes cannot be ignored. We agree with the State that
this establishes his recklessness and disregard for the safety of others on the highways.
Scroggins has been afforded several rehabilitative opportunities to correct his behavior,
yet his failure to do so resulted in the tragic loss of two lives and the imposition of life-
altering injuries to another. Under these circumstances, we find that Scroggins’ sentence
is not inappropriate. We affirm the trial court’s imposition of an aggregate sentence of
twenty-four years.
CONCLUSION
Based on the foregoing, we conclude that the trial court did not abuse its discretion
by sentencing Scroggins.
Affirmed.
BAILEY, J. and CRONE, J. concur
10
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666 F.Supp.2d 1169 (2009)
PROVIDENCE HEALTH PLAN, an Oregon nonprofit corporation, Plaintiff,
v.
Linda L. CHARRIERE, Defendant.
No. CV-08-872-HU.
United States District Court, D. Oregon.
October 13, 2009.
*1171 Arden J. Olson, John A. Riherd, Harrang Long Gary Rudnick P.C., Portland, OR, for Plaintiff.
Paul H. Krueger, Paul Krueger Law Firm, PC, Portland, OR, for Defendant Charriere.
OPINION & ORDER
HUBEL, United States Magistrate Judge:
Plaintiff Providence Health Plan brings this ERISA and breach of contract action against defendant Linda Charriere. Both parties move for summary judgment.
The parties have consented to entry of final judgment by a Magistrate Judge in accordance with Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c). I grant each motion in part, and deny each motion in part.
BACKGROUND
Plaintiff is an Oregon non-profit corporation, licensed by the State of Oregon as a health care service contractor under Oregon Revised Statutes Chapter 750.
Defendant was injured in a car accident on July 11, 2007. The operator of the other car, Michael Arthur, was at fault. Defendant was a member of plaintiff at the time of the accident, having obtained coverage with plaintiff through her husband's employer's group plan provided through the Harrison Electrical Workers Trust.
The group health contract provided by plaintiff is an ERISA health and welfare plan. Plaintiff is a fiduciary of the plan as that term is used in ERISA.
Plaintiff has paid $243,863.85 for defendant's medical and hospital expenses associated with this accident. Defendant has recovered $100,000 from State Farm Insurance, representing $50,000 from State Farm in underinsured motorist coverage (UIM) under defendant's policy with State Farm, and $50,000 from State Farm in third party liability coverage insurance because State Farm was Arthur's insurer.
The funds paid to defendant by State Farm have been deposited in trust by defendant's attorney. Defendant has failed to repay plaintiff any amount either directly or from the settlement funds received and deposited with her attorney.
On October 29, 2007, plaintiff, through its representative Kathleen Warren, wrote to State Farm regarding Arthur. Warren Depo. Exh. 101, attached as unnumbered exhibit to Deft's CSF in Sup. of Deft's MSJ. There, Warren notified State Farm that Oregon Revised Statute § (O.R.S.) 742.534 required an authorized motor vehicle liability insurer, whose insured is or would be held legally liable for damages, to reimburse the health insurer directly for the benefits the health insurer has furnished, *1172 if requested to do so by the health insurer. Id.
Warren stated that the letter "will serve as Providence Health Plan's demand under that statute for direct insurer to insurer reimbursement." Id. Warren informed State Farm of the amount of the "lien" at that time, and included an itemized ledger. Id. She noted that if State Farm intended to dispute liability or medical causation, to please advise her as soon as possible. Id. She also requested that she be contacted before State Farm made any final settlement agreement so that she could provide a final summary of any payments made for the injury. Id. Finally, to ensure that plaintiff's interest was protected, Warren requested that State Farm issue a separate draft to plaintiff for the payments plaintiff had made. Id.
On December 31, 2007, State Farm claim representative Lisa McAlpine wrote to defendant regarding Arthur. Exh. A to Deft's Resp. to Pltf's CSF. McAlpine stated that to date, State Farm had not concluded defendant's bodily injury claim, and thus, State Farm was unable to "issue our settlement draft for our insured's liability policy limits of $50,000" because it was waiting for additional information from plaintiff. Id. McAlpine stated that a telephone message was left on December 31, 2007, "for a status on behalf of the lien that has been filed against our insured's Liability Coverage" for Providence Health Plan payments. Id. She then stated that a release was sent to defendant on September 4, 2007, for the limit offer of $50,000. Id. However, the letter continued, until the lien information was concluded, any drafts payable under State Farm's liability policy would also include the medical providers who had filed those liens. Id.
In concluding, McAlpine told defendant that State Farm understood that defendant was waiting for the conclusion of defendant's health carrier's decision on any possible reduction of its lien and thus, State Farm would continue its follow-up with the health carrier for "a status" of the matter. Id.
In a second letter from plaintiff to State Farm dated February 5, 2008, Warren referred to State Farm's insured Linda Charriere, and noted the claim for UIM. Warren Depo. Exh. 104, attached as unnumbered exhibit to Deft's CSF in Sup. of Deft's MSJ. There, Warren stated that the letter served as plaintiff's demand under O.R.S. 742.534 for direct insurer-to-insurer reimbursement for the underinsured claim in the amount of $50,000. Id. She asked that a check be issued to plaintiff for a portion of the $50,000 underinsured claim, in the amount of $44,000. Id. She enclosed a self-addressed stamped envelope and asked that it be sent to Warren's attention. Id. She also asked that a separate $6,000 check be sent directly to defendant. Id. She noted that the two amounts should exhaust the limits of the underinsured claim. Id.
On the same date, February 5, 2008, Warren wrote to defendant to tell her that according to information received from defendant's physicians, defendant's injuries had healed and that the only noted future concern was a possible limit of activity and limit in walking speed. Warren Depo. Exh. 103, attached as unnumbered exhibit to Deft's CSF in Sup. of Deft's MSJ. Warren told defendant that she wanted to provide defendant with details of plaintiff's proposed offer of settlement of its subrogation lien with State Farm. Id. Warren explained that State Farm had $50,000 in a bodily injury policy with insured Arthur, and $50,000 in underinsurance with insured defendant. Warren then told defendant that plaintiff's current medical lien was $242,018.15, which exceeded the $100,000 available under the State Farm policies. Id. She asserted that it was *1173 plaintiff's right to keep the entire $100,000 which would allow plaintiff to recover a portion of its loss, leaving plaintiff with $142,018.15 in losses. Id.
Warren further wrote that plaintiff had no obligation to allow defendant to recover any out of pocket losses. However, plaintiff was going to allow defendant $6,000 to offset certain expenses for gasoline, a ramp, and pharmacy co-payments. Id. Warren informed defendant that because plaintiff's policy "language has an exclusion for future related medical claims[,] an exception will be made to allow for continued care and medical treatment related to injuries sustained from your motor vehicle accident of 7/11/07." Id. Warren then stated that "[w]e are in the process of subrogation settlement with State Farm and will ask them to issue and mail directly to you a separate check in the amount of $6,000." Id.
In her declaration submitted in support of plaintiff's motion for summary judgment, Warren states that defendant asserted a claim against Arthur. Warren Declr. at ¶ 8. There is no information about when that claim was made. There is no evidence in the record that defendant ever notified plaintiff that defendant was making a claim, or instituting a legal action, as a result of the accident.
STANDARDS
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).
"If the moving party meets its initial burden of showing `the absence of a material and triable issue of fact,' `the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'" Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir.1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.
The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31.
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Id.; In re Agricultural Research and Tech. Group, 916 F.2d 528, 534 (9th Cir.1990); California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987).
DISCUSSION
I. Relevant Portions of the Plan
Plaintiff cites to four separate provisions in the plan supporting its right to recover *1174 the monies paid by State Farm to defendant: Sections 8.4, 8.4.1, 8.4.2, and 8.4.3. They provide as follows:
8.4 THIRD-PARTY LIABILITY/SUBROGATION
The following provisions will apply when You have received Services for a condition for which one or more third parties may be responsible. "Third party" means any person other than You (the first party to this Contract), and Providence Health Plan (the second party), and includes any insurance carrier providing liability or other coverage potentially available to You. For example, uninsured or underinsured motorist coverage, whether under Your policy or not, is subject to recovery by Us as a third-party recovery. Failure by You to comply with the terms of this section will be a basis for Us to deny any claims for benefits arising from the condition or to terminate Your coverage under this Group Contract as specified in section 10.2. In addition, You must execute and deliver to Us or other parties any document requested by Us which may be appropriate to secure the rights and obligations of You and Providence Health Plan under these provisions.
8.4.1 Third-Party Liability/Subrogation and How it Affects You
Third party liability refers to claims that are the responsibility of someone besides Providence Health Plan or You. Examples of third-party liability are motor vehicle accidents, workplace accidents, injury or illness, or any other situation involving injury or illness, including wrongful death, in which You or Your heirs, beneficiaries or relatives have a basis to bring a lawsuit or to make a claim for compensation against any person or for which You or Your heirs, beneficiaries or relatives may receive a settlement. Once it has been established that the third party is responsible to pay and is capable of paying for the expenses for the Services caused by that third party, We will not provide benefits for the Services arising from the condition caused by that third party. If We make claim payments on Your behalf for which a third party is responsible, We are entitled to be repaid for those payments out of any recovery from the third party. We will request reimbursement from You or Your heirs, beneficiaries or relatives to the extent the third party does not pay Us directly, and We may request refunds from the medical providers who treated You, in which case those providers will bill You for their Services. "Subrogation" means that We may collect directly from the third party to the extent We have paid on Your behalf for third-party liabilities. Because We have paid for Your injuries, We, rather than You, are entitled to recover those expenses.
. . .
8.4.2 Proceeds of Settlement or Recovery
To the fullest extent permitted by law, We are entitled to the proceeds of any settlement or any judgment that results in a recovery from a third party, whether or not responsibility is accepted or denied by the third-party for the condition. We are entitled up to the full value of the benefits provided by Us for the condition, calculated using Our UCR charges for such Services, less the Member's out of pocket expenses. Prior to accepting any settlement of Your claim against the third party, You must notify Us in writing of any terms or conditions offered in settlement and shall notify the third party of Our interest in the settlement established by this provision.
You must cooperate fully with Us in recovering amounts paid by Us. If You seek damages against the third party for the condition and retain an attorney or *1175 other agent for representation in the matter, You must agree to require Your attorney or agent to reimburse Us directly from the settlement or recovery an amount equal to the total amount of benefits paid.
You must complete Our subrogation trust agreement by which You and/or Your attorney or agent agrees to reimburse Us directly from the funds of the settlement or recovery. We will withhold benefits for Your condition until a signed copy of this agreement is delivered to Us. The agreement must remain in effect and We will withhold payment of benefits if, at any time, Your authorization or the agreement should be revoked. While this document is not necessary for Us to exercise Our rights to subrogation, it serves as a reminder and confirmation of Our rights to each of the parties involved.
To the maximum extent permitted by law, We are subrogated to Your rights against any third party who is responsible for the condition, have the right to sue any such third party in Your name, and have a security interest in and lien upon any recovery to the extent of the amount of benefits paid by Us and for Our expenses in obtaining a recovery. If You should either decline to pursue a claim against a third party that We believe is warranted or refuse to cooperate with Us in any third party claim that you do pursue, We have the right to pursue such claim directly, including commencing a legal action against such third party or intervening in any action that You have commenced.
8.4.3. Suspension of Benefits and Reimbursement
After You have received proceeds of a settlement or recovery from a third party, You are responsible for payment of all medical expenses for the continuing treatment of the illness or injury that Providence Health Plan would otherwise be required to pay under this Group Contract until all proceeds from the settlement or recovery have been exhausted.
If You continue to receive medical treatment for the condition after obtaining a settlement or recovery from one (1) or more third parties, We are not required to provide coverage for continuing treatment until You prove to Our satisfaction that the total cost of the treatment is more than the amount received in settlement or recovered from the third party, after deducting the cost of obtaining the settlement or recovery. We will only cover the amount by which the total cost of benefits that would otherwise be covered under this Group Contract, calculated using Our UCR charges for such Services, exceeds the amount received in settlement or recovery from the third party. We are entitled to reimbursement from any settlement or recovery from any third party even if the total amount of such settlement or recovery does not fully compensate You for other damages, including lost wages or pain and suffering. Any settlement arising out of an injury or illness covered by this Group Contract will be deemed first to compensate You for Your medical expenses, regardless of any allocation of proceeds in any settlement document that We have not approved in advance. In no event shall the amount reimbursed to Us be less than the maximum permitted by law.
Exh. 1 to Compl. at pp. 44-46.
II. ERISA Claim
ERISA authorizes fiduciaries to bring suit in federal court for "appropriate equitable relief" to remedy violations of a plan or to enforce its provisions. 29 U.S.C. § 1132(a)(3)(B). In Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002), *1176 the Supreme Court explained that "equitable relief," as referred to in this portion of the statute, "must mean something less than all relief." Id. at 209, 122 S.Ct. 708 (internal quotation and emphasis omitted). The Court noted that it had previously held that the term "equitable relief" referred to "those categories of relief that were typically available in equity." Id. at 210, 122 S.Ct. 708 (internal quotation and emphasis omitted).
Here, plaintiff seeks the imposition of a constructive trust against defendant. Compl. at ¶¶ 20 (incorporating ¶¶ 1-19), 21. Great-West recognizes this as an allowable claim under section 1132(a)(3)(B):
In contrast, a plaintiff could seek restitution in equity, ordinarily in the form of a constructive trust or an equitable lien, where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant's possession. ... A court of equity could then order a defendant to transfer title (in the case of the constructive trust) or to give a security interest (in the case of an equitable lien) to a plaintiff who was, in the eyes of equity, the true owner.
Id. at 213, 122 S.Ct. 708.
Great-West established four criteria for a proper equitable action for constructive trust under section 1132(a)(3)(B): (1) the defendant must be possession of the disputed funds; (2) the disputed funds must not have been dissipated; (3) the party seeking equitable relief must not be attempting to impose personal liability on the opposing party; and (4) the money or property at issue must be identifiable and must belong in good conscience to the party seeking relief. Id.; see also Sereboff v. Mid Atlantic Med. Servs., Inc., 547 U.S. 356, 362-63, 126 S.Ct. 1869, 164 L.Ed.2d 612 (2006) (discussing the meaning of Great-West and making clear that an ERISA fiduciary may pursue "specifically identifiable" funds that are "within the possession and control" of a plan beneficiary).
Plaintiff here argues that all four Great-West criteria are met in this case. The disputed funds are in possession of defendant (or more precisely, in an identified trust account with her attorney). The disputed funds have not been dissipated. Plaintiff does not attempt to impose personal liability on defendant. And, finally, plaintiff contends that the money belongs to it in good conscience under the terms of the plan.
Only the fourth element merits discussion. Plaintiff noted in its written materials, and stressed again at oral argument, that plaintiff's constructive trust ERISA claim mirrors O.R.S. 742.538. Plaintiff agreed that state statutes regarding insurance are to be considered by the Court in equity in determining the propriety of awarding a constructive trust because, according to plaintiff, under the terms of the plan, plaintiff has the right to recover the disputed funds to the maximum extent permitted by law. See Pltf's Mem. in Sup. of Pltf's MSJ at p. 6 (arguing, in support of ERISA claim, that "[t]here is no question that, under the language of the Plan, Providence has a right to recover the full value of the medical expenses Providence paid for Charriere's treatment, to the maximum extent permitted by law,. ..."). Plaintiff makes clear that in this ERISA claim, it seeks rights consistent with O.R.S. 742.538 and does not seek anything more or less than what that statute allows.
Defendant contends that plaintiff is not entitled to the disputed funds under state insurance statutes and thus, plaintiff cannot successfully argue that in equity, the money belongs to plaintiff in good conscience. For the reasons explained below, I agree with defendant as to the $50,000 in *1177 third-party liability funds paid by State Farm on behalf of Arthur. I disagree with defendant, and agree with plaintiff, as to the $50,000 paid by State Farm in UIM coverage.
A. Relevant State Statutes
The first statute concerns direct reimbursement, or interinsurer reimbursement. It provides:
(1) Except as provided in ORS 742.544 [addressing reimbursement to a provider of personal injury protection benefits and not at issue here], every authorized motor vehicle liability insurer whose insured is or would be held legally liable for damages for injuries sustained in a motor vehicle accident by a person for whom personal injury protection benefits have been furnished by another such insurer, or for whom benefits have been furnished by an authorized health insurer, shall reimburse such other insurer for the benefits it has so furnished if it has requested such reimbursement, has not given notice as provided in ORS 742.536 that it elects recovery by lien in accordance with that section and is entitled to reimbursement under this section by the terms of its policy. Reimbursement under this subsection, together with the amount paid to injured persons by the liability insurer, shall not exceed the limits of the policy issued by the insurer.
(2) In calculating such reimbursement, the amount of benefits so furnished shall be diminished in proportion to the amount of negligence attributable to the person for whom benefits have been so furnished, and the reimbursement shall not exceed the amount of damages legally recoverable by the person.
(3) Disputes between insurers as to such issues of liability and the amount of reimbursement required by this section shall be decided by arbitration.
(4) Findings and awards made in such an arbitration proceeding are not admissible in any action at law or suit in equity.
(5) If an insurer does not request reimbursement under this section for recovery of personal injury protection payments, then the insurer may only recover personal injury protection payments under the provisions of ORS 742.536 or 742.538.
O.R.S. 742.534.
The next statute, O.R.S. 742.536, addresses liens. It is not at issue in the case.
The third statute, O.R.S. 742.538, addresses subrogation:
If a motor vehicle liability insurer has furnished personal injury protection benefits, or a health insurer has furnished benefits, for a person injured in a motor vehicle accident, and the interinsurer reimbursement benefit of ORS 742.534 is not available under the terms of that section, and the insurer has not elected recovery by lien as provided in ORS 742.536, and is entitled by the terms of its policy to the benefit of this section:
(1) The insurer is entitled to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of the injured person against any person legally responsible for the accident, to the extent of such benefits furnished by the insurer less the insurer's share of expenses, costs and attorney fees incurred by the injured person in connection with such recovery.
(2) The injured person shall hold in trust for the benefit of the insurer all such rights of recovery which the injured person has, but only to the extent of such benefits furnished.
*1178 (3) The injured person shall do whatever is proper to secure, and shall do nothing after loss to prejudice, such rights.
(4) If requested in writing by the insurer, the injured person shall take, through any representative not in conflict in interest with the injured person designated by the insurer, such action as may be necessary or appropriate to recover such benefits furnished as damages from such responsible person, such action to be taken in the name of the injured person, but only to the extent of the benefits furnished by the insurer. In the event of a recovery, the insurer shall also be reimbursed out of such recovery for the injured person's share of expenses, costs and attorney fees incurred by the insurer in connection with the recovery.
(5) In calculating respective shares of expenses, costs and attorney fees under this section, the basis of allocation shall be the respective proportions borne to the total recovery by:
(a) Such benefits furnished by the insurer; and
(b) The total recovery less (a).
(6) The injured person shall execute and deliver to the insurer such instruments and papers as may be appropriate to secure the rights and obligations of the insurer and the injured person as established by this section.
(7) Any provisions in a motor vehicle liability insurance policy or health insurance policy giving rights to the insurer relating to subrogation or the subject matter of this section shall be construed and applied in accordance with the provisions of this section.
O.R.S. 742.538.
In State Farm Mutual Automobile Insurance Co. v. Hale, 215 Or.App. 19, 168 P.3d 285 (2007), the Oregon Court of Appeals distilled the required elements of recovery for a health insurer under O.R.S. 742.534 and O.R.S. 742.538. As to O.R.S. 742.534, the court explained that the statute allows an insurer to recover its PIP[1] payments if three conditions were met: (1) the insurer is "`entitled to reimbursement under this section by the terms of its policy'"; (2) the insurer has "`not given notice as provided in ORS 742.536 that it elects recovery by lien in accordance with that section'"; and (3) the insurer "`has requested such reimbursement.'" Hale, 215 Or.App. at 27, 168 P.3d at 290 (quoting O.R.S. 742.534).
As to O.R.S. 742.538, the Hale court explained that reimbursement of health benefits may be recovered under that statute when three conditions are met: (1) the insurer "`is entitled by the terms of its policy' to such benefits"; (2) the insurer "`has not elected recovery by lien as provided in ORS 742.536'"; and (3) "`the interinsurer reimbursement benefit of ORS 742.534 is not available under the terms of that section.'" Id. at 26-27, 168 P.3d at 289 (quoting O.R.S. 742.538) (emphasis added in Hale).
It is clear that the statutes give PIP insurers and insurers who have provided health benefits, three separate ways to recover the sums they have provided to an injured insured. It is also clear that they are ordered such that O.R.S. 742.534 establishes the least costly and burdensome method for the insurer to recover because it requires only a request for interinsurer *1179 reimbursement and then provides for arbitration if there is a dispute. Second is O.R.S. 742.536. While a bit more burdensome than the recovery provided for in O.R.S. 742.534, it is still relatively straightforward because under it, the insurer places a lien on the recovery obtained by the injured insured. Third is the fallback provision of O.R.S. 742.538, which essentially provides the insurer with the subrogation rights it has at common law. Considering the structure and substance of the code provisions, the Legislature has intended O.R.S. 742.538 to be the insurers' last resort.
The Legislature also codified these statutes with liability insurance in mind. That is, the Legislature considered these reimbursement/recovery statutes for PIP and health insurers to recover sums owed by liability insurers. As explained in more detail below, O.R.S. 742.534 does not cover a reimbursement request made to an insurer other than a liability insurer. While O.R.S. 742.538 was similarly not designed to apply to recoveries sought from non-liability insurers, the language used in that statute is broad enough to allow a PIP or health care insurer to seek payment from a UIM insurer for sums paid to an injured insured.
B. Third-Party Bodily Injury Coverage
Plaintiff maintains that it is owed the disputed monies paid to defendant by State Farm under an ERISA equitable constructive trust theory because the plan, consistent with O.R.S. 742.538, entitles it to seek these funds from defendant and thus, the monies, in good conscience, belong to plaintiff. As can be seen from the statutory language, and as explained in Hale, O.R.S. 742.538 allows plaintiff to recover the health benefits paid if it is entitled to reimbursement under its plan, it has not given notice under O.R.S. 742.536 that it elects recovery by lien, and the interinsurer reimbursement provision of O.R.S. 742.534 is not available "under the terms of that section."
Plaintiff's plan provides for the reimbursement plaintiff seeks here, to the maximum allowed by law. See Section 8.4.2 of the Plan (addressing proceeds of settlement or recovery and referring to "the fullest extent permitted by law," and "the maximum extent permitted by law"). Plaintiff has not given notice under O.R.S. 742.536. Thus, the issue here is whether the interinsurer reimbursement provision of O.R.S. 742.534 is available or not available under the terms of that section.
Defendant argues that the Oregon Court of Appeals answered this question in defendant's favor in Mid-Century Insurance Co. v. Turner, 219 Or.App. 44, 182 P.3d 855 (2008). Defendant suggests that under Mid-Century, when an insurer elects to proceed under an interinsurer reimbursement agreement pursuant to O.R.S. 742.534, it is foreclosed from pursuing reimbursement under O.R.S. 742.536 or 742.538.
I agree with plaintiff that the holding of Mid-Century is not as broad as defendant contends, and that it is distinguishable from the instant case for several reasons. First, the plaintiff in Mid-Century was not bringing an ERISA claim, but a breach of contract claim grounded in the novel theory that the defendant's acceptance of a settlement directly from the liability insurer prejudiced the plaintiff's ability to secure interinsurer reimbursement from the liability insurer under O.R.S. 742.534. Id. at 48, 182 P.3d at 858. Second, the court held that the claim was not supported by the applicable policy language. Id. at 57, 182 P.3d at 862. Here, the policy language supports plaintiff's right to reimbursement as long as it is consistent with the law.
Third, the court explained that even if the plan could be interpreted to support an *1180 obligation to reimburse the plaintiff, it was unenforceable as being less favorable to insureds than the form provisions prescribed by the Insurance Code. Id. at 58, 182 P.3d at 863-64 (citing O.R.S. 742.021(1)). As plaintiff here notes, O.R.S. 742.021 does not apply to it as a health insurer. Thus, while the defendant prevailed in Mid-Century, and the plaintiff insurer could not seek reimbursement directly from the defendant after the plaintiff had sought interinsurer reimbursement under O.R.S. 742.534, the holding is limited to the facts in that case. The Mid-Century court made no blanket statement regarding the relationship of the relevant insurer reimbursement statutes in all situations where an insurer has paid its limits to an insured.
Furthermore, Hale left the question raised in this case unresolved. The court there stated that it need not reach the question of whether interinsurer reimbursement under O.R.S. 742.534 remained "available" and thus, prohibited an insurer from proceeding under O.R.S. 742.538, when the other insurer has paid its policy limits directly to an insured. Hale, 215 Or.App. at 24, 168 P.3d at 288; see also Mid-Century, 219 Or.App. at 56 n. 4, 182 P.3d at 862 n. 4 (remarking that the Hale court noted, but did not decide, "question of whether an insurer who has sought interinsurer reimbursement under ORS 742.534 may later seek subrogation under ORS 742.538").
In Hale, the court noted that the settlement documents between the injured insured and the third-party tortfeasor's motor vehicle liability carrier had not been executed when the plaintiff attempted to assert its subrogation rights under O.R.S. 742.538. Thus, at that time, the settlement of the claim by the injured party against the tortfeasor's motor vehicle liability carrier had not occurred. As a result, the court concluded that interinsurance reimbursement remained "available" under O.R.S. 742.534, rendering subrogation under O.R.S. 742.538, unavailable. Hale, 215 Or.App. at 24, 168 P.3d at 288.
The record here shows that plaintiff attempted to invoke its rights under O.R.S. 742.534 to interinsurer reimbursement by writing letters to State Farm expressly referencing the statute and asserting its claim thereunder. Under subsection (1) of the statute, a request by a health insurer to the authorized motor vehicle liability insurer is discretionary, not mandatory. The statute gives the health insurer the option of requesting reimbursement directly from the motor vehicle liability insurer whose insured is or would be held legally liable for damages. See O.R.S. 742.534(1) (the motor vehicle liability insurer shall reimburse the health insurer if the health insurer has requested such reimbursement).
Nothing in the statute or the caselaw indicates that payment by the motor vehicle liability carrier to the insured person makes the arbitration proceeding set forth in O.R.S. 742.534(3), "unavailable." Subsection (3) provides for arbitration of disputes between insurers regarding "the amount of reimbursement required by this section." Because the "reimbursement required by this section" refers to payment from the motor vehicle liability carrier to the health carrier (or to the PIP carrier), the language in subsection (3) regarding "the amount of reimbursement required by this section" clearly includes the question of to whom the motor vehicle liability carrier should pay the amount owed under the bodily injury policy.
Given that plaintiff still has arbitration available to it under O.R.S. 742.534, it cannot rely on O.R.S. 742.538 for reimbursement. Nothing in Hale or Mid-Century suggests otherwise. Because plaintiff elected to pursue reimbursement under *1181 O.R.S. 742.534, the statute's arbitration provision, while perhaps unlikely to produce funds, remains available and plaintiff may not rely on O.R.S. 742.538. As a result, plaintiff is not, in "good conscience" entitled to the $50,000 paid by State Farm to defendant under Arthur's motor vehicle bodily injury policy.
C. UIM Coverage
Notably, the plain language of O.R.S. 742.534 shows that interinsurer reimbursement is not available for UIM coverage paid to the injured insured. The statute requires reimbursement to a health insurer, if requested by the health insurer, from an "authorized motor vehicle liability insurer whose insured is or would be held legally liable for damages for injuries sustained in a motor vehicle accident ...." O.R.S. 742.534(1) (emphasis added). Defendant received UIM benefits as a result of her own insurance policy, not Arthur's. Defendant, not Arthur, was State Farm's insured for UIM payments. Defendant, however, is not an insured who is or would be held legally liable for her own damages sustained in the accident. Defendant is not responsible for her own injuries. Under the plain language of O.R.S. 742.534, the insurer of the insured who is "legally liable for damages for injuries sustained" is the insurer of the third-party tortfeasor under a liability policy.
As a result, although plaintiff attempted to invoke its right to interinsurer reimbursement under O.R.S. 742.534 for the UIM coverage, it could not have succeeded in obtaining such reimbursement because O.R.S. 742.534 does not apply to recovery of payments made as UIM coverage. Accordingly, arbitration of the disputed $50,000 paid as UIM coverage to defendant, is not available under O.R.S. 742.534(3).
Under O.R.S. 742.538, if interinsurer reimbursement under O.R.S. 742.534 is unavailable under the terms of that section, the insurer has not elected recovery under O.R.S. 742.536, and the insurer is entitled, under its plan language, to the benefits of O.R.S. 742.538, then the health insurer is entitled to the proceeds of a settlement that results "from the exercise of any rights of recovery of the injured person against any person legally responsible for the accident. ..." O.R.S. 742.538(1).
The language in subsection (1) of O.R.S. 742.538 regarding "any person legally responsible for the accident" is similar, but not identical, to the "legally liable" language in O.R.S. 742.534(1) discussed above. O.R.S. 742.538(1) uses the broader language of "any person legally responsible" as contrasted to the "insured [who] is or would be held legally liable for damages" in O.R.S. 742.534(1). The broader language in O.R.S. 742.538(1) applies to insurers other than the third-party tortfeasor's carrier.
Here, defendant is the injured person. The language in O.R.S. 742.538 indicates that the proceeds being discussed are based on the exercise of the injured person's rights against another person legally responsible. In order to receive the UIM proceeds under her own policy, defendant must establish that her damages are indeed caused by the fault of another. Boston Mut. Ins. v. Murphree, 242 F.3d 899, 903 (9th Cir.2001) ("UIM coverage is fault-based meaning that insured must establish a third party's liability in tort to trigger coverage.").
Considering the fault-based requirement for UIM in the context of O.R.S. 742.538, it is clear that State Farm takes on the responsibility of "any person legally responsible for the accident" by virtue of it providing UIM to defendant in the situation where the third-party tortfeasor is underinsured. Defendant's exercise of her rights as an injured person as to her UIM *1182 insurer places the UIM insurer in the position of being legally responsible for the third-party tortfeasor's conduct in causing the accident. In essence, when defendant shows that a third-party is legally responsible for the accident and then seeks UIM coverage because that third-party is underinsured, defendant's UIM insurer steps into the shoes of the tortfeasor's insurer.
Because interinsurer reimbursement under O.R.S. 742.534 is unavailable to plaintiff for the $50,000 State Farm paid to defendant in UIM coverage, and because plaintiff's request for this $50,000 is consistent with what is allowed under O.R.S. 742.538, this $50,000 belongs, in "good conscience," to plaintiff and, subject to defendant's "unclean hands" and "waiver" affirmative defenses, and any offset for attorney's fees and costs, plaintiff should be awarded $50,000, paid as UIM benefits, in a constructive trust for its ERISA claim.
III. Unclean Hands and Waiver
In her Answer, defendant raises affirmative defenses of unclean hands and waiver. Deft's Answer at ¶¶ 19-23. Because they are equitable defenses, I consider them only as to the equitable ERISA claim. Del Monte Fresh Produce, N.A., Inc. v. H.J. Heinz Co., No. CV-07-1496-KI, 2008 WL 607415, at *1 (D.Or. Feb. 29, 2008) (defense of unclean hands is an equitable doctrine with no application to a claim at law); Thompson v. Coughlin, 329 Or. 630, 633, 997 P.2d 191, 192 (2000) (noting that affirmative defenses of unclean hands, waiver, and estoppel are equitable defenses); see also California Dep't of Toxic Substances Control v. Neville Chem. Co., 358 F.3d 661, 672-72 (9th Cir.2004) (describing affirmative defenses of waiver and estoppel as equitable defenses).
A. Unclean Hands
To prevail on an unclean hands defense, defendant must show that "the plaintiff's conduct is inequitable and that the conduct relates to the subject matter of its claims." Brother Records, Inc. v. Jardine, 318 F.3d 900, 909 (9th Cir.2003) (internal quotation omitted). In the "clean hands doctrine" "equity requires that those seeking its protection shall have acted fairly and without fraud or deceit as to the controversy in issue." Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1097 (9th Cir.1985).
Defendant maintains that plaintiff unfairly, without justification, and in contravention of the plan, terminated health benefits owed to defendant. As a result, defendant contends, plaintiff has unclean hands, precluding plaintiff from obtaining any relief in its ERISA claim.
Defendant, however, fails to create the necessary, or any, factual record in support of its unclean hands affirmative defense. Defendant argues in her memorandum opposing plaintiff's motion for summary judgment that plaintiff terminated benefits owed to defendant under the plan. Deft's Mem. in Opp. to Pltf's MSJ at pp. 3-4. Defendant asserts that "Warren made the determination to cut off benefits for treatment related to the motor vehicle accident. ... According to Ms. Warren, the only basis for which benefits were terminated was that she had received a settlement." Id. at p.
As support, defendant, in her memorandum, quotes from pages 95 and 96 of Warren's deposition. Id. at p. 4 n. 3 & 4. The problem, however, is that pages 95 and 96 of Warren's deposition appear nowhere in the record. Defendant's assertion that this was Warren's deposition testimony does not make it so. Rather, the authentication of a deposition excerpt is required to create an issue of fact in opposition to a summary judgment motion. See Orr v. Bank of America, NT & SA, 285 F.3d 764, 774 (9th Cir.2002) (explaining that a properly authenticated deposition excerpt identifies *1183 the name of the deponent and the action, and requires, in addition to the excerpt itself, the reporter's certification that the deposition is a true record of the testimony of the deponent).
Because there is no admissible evidence in the record showing what benefits plaintiff paid, did not pay, and the timing of the unpaid benefits, defendant fails to create an issue of fact as to "unclean hands" sufficient to oppose plaintiff's summary judgment motion on the ERISA claim.
B. Waiver
Defendant's waiver argument is that plaintiff elected to limit its recovery to whatever remedies might exist under Oregon state law and thus, waived any rights of equitable recovery existing under federal law. Deft's Answer at ¶¶ 22-23. As I understand it, defendant contends that by virtue of citing O.R.S. 742.534 in its letters to State Farm, plaintiff elected to pursue a recovery of the sums it paid as health benefits on behalf of defendant, only under state law and is thus precluded from asserting other available means of recovery under ERISA.
Defendant cites no law in support of this position. Rather, defendant appears to rely solely on its interpretation of the Oregon statutes as articulated above. According to defendant, once an insurer seeks interinsurer reimbursement under O.R.S. 742.534, that insurer may not pursue reimbursement under O.R.S. 742.536 or O.R.S. 742.538 after a settlement has been paid to the injured party on whose behalf PIP or health benefits have been paid.
There are at least two problems with defendant's position. First, as explained in the analysis above, I reject defendant's legal argument as to the $50,000 paid in UIM coverage because those funds were not subject to recovery by plaintiff under O.R.S. 742.534. Second, even if defendant correctly interpreted the Oregon insurance statutes, nothing in those statutes, other statutes, or caselaw indicates that plaintiff's attempt to recover the sums it paid on defendant's behalf directly from the motor vehicle liability insurer, forfeits plaintiff's right to proceed with any available claim it may have by virtue of being an ERISA fiduciary.
In a somewhat analogous case, Judge Haggerty recently rejected the defendant's argument that ERISA preemption was inappropriate because the plaintiff insurer had initially asserted its right to reimbursement under Oregon statute, particularly O.R.S. 742.536, in a letter. Providence Health Plans of Or. v. Simnitt, No. CV-08-44-HA, 2009 WL 700873, at *4 (D.Or. Mar. 13, 2009). There, analyzing the issue as one of judicial estoppel, Judge Haggerty concluded that mentioning the Oregon statute in a letter sent nearly two years before litigation began, was an insufficient basis for estopping the plaintiff from arguing that the Oregon statutes were preempted by ERISA. Id.
The waiver defense is not an impediment to plaintiff's summary judgment motion on the ERISA claim.
IV. Breach of Contract Claim
Under Providence Health Plan v. McDowell, 385 F.3d 1168, 1172 (9th Cir. 2004), plaintiff may maintain a separate, state law breach of contract claim, not preempted by ERISA. Plaintiff contends that defendant has breached her obligations under the plan to reimburse plaintiff, from the State Farm settlement proceeds, for the health benefits plaintiff provided to defendant as a result of the accident.
In particular, plaintiff relies on Section 8.4 of the plan, quoted above, addressing third-party liability and subrogation. As with the ERISA claim, plaintiff contends that its breach of contract claim is consistent *1184 with state insurance law, particular O.R.S. 742.538. And, as indicated above, section 8.4.2, regarding the proceeds of a settlement or a recovery, specifically gives the plan rights consistent with the law.
Although O.R.S. 742.021, which requires property and casualty insurance policies to carry provisions substantially similar to statutory requirements, and provisions that are not less favorable to the insured, does not apply to plaintiff as a health insurer, O.R.S. 742.538 itself provides that "[a]ny provisions in a ... health insurance policy giving rights to the insurer relating to subrogation or the subject matter of this section shall be construed and applied in accordance with the provisions of this section." O.R.S. 742.538(7).
Given that the breach of contract claim is premised on O.R.S. 742.538, the analysis explained above in regard to the ERISA claim is equally applicable to this claim. Defendant has not breached the plan provisions as to the $50,000 she received from State Farm on behalf of its insured Arthur as liability coverage, because under O.R.S. 742.538, plaintiff cannot seek that $50,000 from defendant as long as interinsurer reimbursement remains available under O.R.S. 742.534. For the reasons explained above, such reimbursement remains available as to the bodily injury coverage of $50,000.
Defendant has, however, breached the plan as to the $50,000 she received from State Farm in UIM coverage. Because interinsurer reimbursement under O.R.S. 742.534 is not available to plaintiff for that money, it may, consistent with O.R.S. 742.538, enforce the plan provisions requiring defendant to reimburse the proceeds of that settlement to plaintiff. I grant summary judgment to plaintiff on the breach of contract claim, in part.
V. Offset for Costs & Fees
Under the plan, defendant is entitled to an offset for "out of pocket expenses" from any recovery of settlement proceeds by plaintiff. Section 8.4.2 ("We are entitled up to the full value of the benefits provided by Us for the condition, calculated using Our UCR charges for such Services, less the Member's out of pocket expenses.") (emphasis omitted). Additionally, O.R.S. 742.538 contemplates that the insured and the insurer share in the "transactional costs of litigation[.]" Mid-Century, 219 Or.App. at 58, 182 P.3d at 864 (citing O.R.S. 742.538(1), (4), (5)).
Consistent with plaintiff's position that its equitable claim mirrors O.R.S. 742.538, the "good conscience" determination that the $50,000 in UIM benefits paid to defendant more appropriately belongs to plaintiff, requires that any attorney's fees or costs defendant incurred in obtaining that $50,000 be deducted from the constructive trust award. Additionally, because the breach of contract claim is based on the plan language, an offset to the damages awarded under that claim is also required.
The problem here is that neither party submits reliable, admissible evidence on this issue. In her declaration in support of plaintiff's summary judgment motion, Warren states that State Farm agreed to pay both the $50,000 bodily injury liability policy and the $50,000 in UIM coverage to defendant before defendant retained an attorney and thus, any attorney fees and expenses defendant incurred were for the purpose of resisting plaintiff's efforts to seek reimbursement from defendant. Warren Declr. at ¶ 11. Plaintiff provides no explanation of how Warren has personal knowledge of when defendant retained counsel or how Warren has personal knowledge of the date on which State Farm agreed to make the payments to defendant. There is also no obvious exhibit *1185 or testimony in the record on which I can evaluate Warren's personal knowledge.
Defendant similarly submits no admissible evidence revealing when she hired counsel and the purpose for which she hired counsel. Defendant states, in a legal memorandum, that her attorney was required to file a lawsuit in the underlying case. Deft's Reply Mem. in Sup. of Deft's MSJ at p. 8. Defendant offers no evidence in support of this assertion, and more importantly, she offers no evidence revealing when she hired counsel. Also, in a responsive fact assertion, defendant maintains that she was forced to hire an attorney to protect her rights of recovery against the at-fault driver and her own insurance company. Deft's Resp. to Pltf's CSF at ¶ 2. Defendant again cites no evidence in support of this assertion and offers no evidence of when her relationship with counsel began.
With this record, I can make no determination regarding the propriety of a setoff for attorney's fees and costs. If the parties are unable to resolve the issue, the trier of fact will resolve it.
CONCLUSION
Plaintiff's motion for summary judgment (#33) is granted in part and denied in part. Defendant's motion for summary judgment (# 32) is granted in part and denied in part.
IT IS SO ORDERED.
NOTES
[1] The insurance issue in Hale concerned PIP payments. Both O.R.S. 742.534 and O.R.S. 742.538 apply equally to payments made by a health insurer.
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Filed 8/26/14 Tazuk v. Bishop CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
BRIAR TAZUK,
Petitioner and Appellant,
A140192
v.
HOLLEY BISHOP, (Napa County
Super. Ct. No. 26-50053)
Respondent.
Briar Tazuk appeals following the trial court’s stay and dismissal of this
proceeding to establish paternity. Respondent Holley Bishop moved for the stay and
dismissal on the basis that New York state is the most convenient forum to consider child
custody and visitation issues. We conclude the trial court did not abuse its discretion in
declining to exercise its jurisdiction as an inconvenient forum, and that Tazuk had no
right to require the trial court to set forth its ruling in a statement of decision. Thus, we
affirm.
BACKGROUND
Tazuk and Bishop became romantically involved in 2005, and, through in vitro
fertilization, had a son in 2007. Except for a few months in 2009, Bishop and her son
have lived in New York City. Tazuk has lived in Napa County since 2009. Prior to that
he lived in San Francisco.
In October 2009, in Napa County, Tazuk filed a petition to establish his parental
relationship with the couple’s son and to determine child custody. Shortly thereafter,
Bishop initiated child custody proceedings in New York. In February 2010, the Napa
1
Superior Court assumed jurisdiction over the issues of child custody and visitation, but
reserved any determination of whether New York would be the more convenient forum
for any later proceedings. This earlier dispute was resolved in a stipulation that awarded
the parties joint legal custody of their son, with sole physical custody to Bishop subject to
specified periods of visitation for Tazuk in 2011 and 2012. The parties were to reach a
further agreement for visits in 2013 and thereafter. Bishop and their son continued to live
in New York.
When it appeared to Bishop that the parties would be unable to reach agreement
concerning child visitation in 2013 and beyond, she filed a motion to dismiss or stay the
Napa proceeding in favor of proceedings in New York on the ground that Napa was no
longer a convenient forum. Tazuk opposed the motion. Following an evidentiary
hearing, the court declined Tazuk’s request for a statement of decision, and determined
that New York was the appropriate forum for consideration of custody and visitation
issues. In a later minute order entitled “Statement of Decision,” the court stayed the
Napa case and directed that it be dismissed upon confirmation that the custody and
visitation issues were pending in a New York court. Tazuk’s objections to the “Statement
of Decision” were overruled and his motion for a new trial was denied. His appeal is
timely.
DISCUSSION
1. California as an Inconvenient Forum
The Uniform Child Custody Jurisdiction and Enforcement Act, provided in Family
Code sections 3400 et seq.,1 is the exclusive means in California to determine jurisdiction
in child custody cases. (Pieri v. Superior Court (1991) 1 Cal.App.4th 114, 118.) Under
the act, a California court may decline to exercise its jurisdiction in child custody matters
when it determines that another state is a more appropriate forum. (§ 3427, subd. (a).) In
making such a determination, the court is to consider all relevant factors, including how
long the child has resided outside California, the location of witnesses and the evidence
1
Unless otherwise designated, further statutory references are to the Family Code.
2
to be presented, the hardship to the parties in litigating in one state rather than the other,
and the ability of each court to decide the issues expeditiously. (§ 3427, subd. (b)(2), (6),
(4) & (7).) Where, as here, a court makes its determination following consideration of
evidence bearing upon the factors identified in section 3427, we review the courts’ ruling
for an abuse of discretion. (Pieri v. Superior Court, supra., at pp. 121–122.) Its
determination will be upheld if based upon reasoned judgment that comports with the
legal principles and policies that pertain to the issues presented for the court’s
consideration. (Ibid.)
There was no abuse of discretion in this case. After considering the evidence
presented in connection with Bishop’s motion, the trial court found: “The minor child in
question, who is six years of age, has continuously resided in New York with his mother
since birth, with the exception of nearly five months when the child was two years old.
The child’s schooling, physical and emotional support system is based almost exclusively
in New York. The mother is required to travel to California with the child for any and all
proceedings in Napa County, thereby requiring a very young child to endure tiresome and
lengthy trips across the United States. The court deems this an undue hardship on
Respondent and minor child.” The factual considerations that motivated the court’s
ruling comport with those matters to be considered under section 3427. The court’s
determination to defer to proceedings in New York is reasoned and supported in the
record.
2. Statement of Decision.
Most of Tazuk’s arguments chide the court for its refusal to issue a statement of
decision upon his request. Alternatively, he says that the court’s minute order bearing the
subtitle “Statement of Decision” is deficient because it does not meet the requirements
governing statements of decision contained in Code of Civil Procedure section 632.
Neither contention has merit.
At the request of a party, a statement of decision is required “upon the trial of a
question of fact by the court.” (Code Civ. Proc. § 632.) But the cases hold there is
generally no obligation for a court to issue a statement of decision in connection with
3
consideration of a motion, even where resolution of the motion involves an extensive
evidentiary hearing. (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 294.) The
exceptions to the general rule are for special proceedings where appellate review may be
affected by the lack of a statement of decision, and where required by statute. (See, In re
Marriage of Fong, supra. 193 Cal.App.4th at pp. 296–297; In re Marriage of Cauley
(2006) 138 Cal.App.4th 1100, 1109.) No such exception applies here. The court was not
required to issue a statement of decision in ruling on the section 3427 motion seeking to
have California declared an inconvenient forum for this dispute. Because the court was
under no obligation to provide one, its description of the minute order as a statement of
decision, even if erroneous, was harmless.
DISPOSITION
The order is affirmed. Bishop is awarded her costs on appeal.
_________________________
Siggins, J.
We concur:
_________________________
Pollak, Acting P.J.
_________________________
Jenkins, J.
4
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664 F.Supp.2d 59 (2009)
Greta FAISON, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.
Civil Action No. 07-1447 (RMC).
United States District Court, District of Columbia.
October 15, 2009.
*62 David A. Branch, Law Office Of David A. Branch, Washington, DC, for Plaintiff.
Eric Sebastian Glover, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.
MEMORANDUM OPINION
ROSEMARY M. COLLYER, District Judge.
Greta Faison, sixty-one years of age, complains that the District of Columbia twice discriminated against her on the basis of her age in violation of the D.C. Human Rights Act ("DCHRA"), D.C.Code § 2-1401 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., when it failed to promote her in January and September of 2005 and awarded the positions to younger women. Ms. Faison's claims under the DCHRA will be dismissed due to her failure to provide notice to the Mayor of the District of Columbia within six months of the alleged discrimination as required by D.C.Code § 12-309. Ms. Faison's claim that her non-selection for a promotion in January 2005 violated the ADEA also will be dismissed because she failed to timely file an EEOC charge. However, the Court finds that Ms. Faison timely filed an EEOC charge with respect to her claim of non-selection in September 2005 and, furthermore, that she has presented sufficient evidence for a jury to find that the District's reasons for her non-selection were a pretext for discrimination. Therefore, for reasons set forth below, Ms. Faison may proceed with her claim of discriminatory non-selection in September 2005.
I. FACTS
Ms. Faison is employed as a Child Support Enforcement Specialist at the DS-11 level in the Child Support Services Division ("CSSD") of the D.C. Office of Attorney General. Am. Compl. [Dkt. #23] ¶ 5. She has held this position since November 1999. Id. She completed college in 1970 and has completed many graduate level courses. Id. Her position was in the Customer Service Unit. See id. ¶ 8.
On December 28, 2004, Ms. Faison applied for two DS-12 level positions in the CSSD: a Supervisory Management Analyst (Intake), CB-05-59, and a Supervisory Management Analyst (Customer Service Unit), CB-05-60. Id. ¶ 6. Roscoe Grant, Jr., the former Deputy Director of Operations of the Division, had written a letter recommending her for a supervisory position, due in part to her "Outstanding" evaluations and service. See Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") [Dkt. # 29] at 3. On January 4, 2005, Ms. Faison was told that she was not selected for either position because she had no directly-related experience and she did not have experience working in the units where the positions were located. Am. Compl. ¶ 7. The Supervisory Management Analyst (Intake) position was awarded to Renee Worley, a woman in her twenties, who did not have a college degree. Id.
Ms. Faison filed a protest with the CSSD concerning her exclusion from the Supervisory Management Analyst (Customer Service Unit), CB-06-60, because she was working in that very unit and had experience in it. Id. ¶ 8. The vacancy announcement was thereafter cancelled and the position continued to be occupied, on the basis of a temporary detail, by Rocelia Johnson. Id. ¶ 6. Ms. Johnson, who was thirty-seven, had been detailed non-competitively to the position in August 2004. Id.
*63 The Supervisory Management Analyst (Customer Service Unit) position was reposted in June 2005 under Vacancy Number 1312. Id. ¶ 10. Both Ms. Faison and Ms. Johnson applied. Id. ¶¶ 11, 12. Each was interviewed by a panel that made a recommendation to the final selecting official. See Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem.") [Dkt. # 27] at 2-3. The panel was composed of Glenna Ellis, Joseph Allen, and Michael Hailey. Ms. Ellis and Mr. Allen work directly for Benidia Rice, the Division Director. Pl.'s Opp'n. at 5. The panel recommended that Ms. Johnson be awarded the position, based in significant part on her year's experience in the job and her superior answers to their questions. See Def.'s Mem. at 9-10; Pl.'s Opp'n at 19-20. Ms. Rice adopted the recommendation and awarded the position to Ms. Johnson in September 2005. Am. Compl. ¶ 12.
Ms. Faison filed a Charge of Discrimination with the Equal Employment Opportunity Commission on December 5, 2005, which was cross-filed with the D.C. Office of Human Rights. She complained of discrimination based on her age, in violation of the ADEA and the DCHRA. The EEOC issued a Right to Sue letter on May 9, 2007, and Ms. Faison filed this suit on August 10, 2007. She seeks a promotion, backpay, compensatory damages, litigation expenses and reasonable attorney fees. At the end of discovery, the District filed a Motion for Judgment on the Pleadings and/or Motion for Summary Judgment [Dkt. # 27] which is now ripe for resolution.
II. LEGAL STANDARDS
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). Moreover, summary judgment is properly granted against a party that "after adequate time for discovery and upon motion... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In addition, *64 the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
Pursuant to the ADEA, it is illegal for an employer to terminate, fail to hire or promote, or otherwise discriminate against any individual "because of" such individual's age. 29 U.S.C. § 623. The Supreme Court recently held that "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the `but-for' cause of the challenged adverse employment action." Gross v. FBL Fin. Servs., ___ U.S. ___, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009). "Unlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor." Id. at 2349. An individual who wishes to challenge an employment practice under the ADEA must first file a charge with the EEOC. 29 U.S.C. § 626(d)(1). In the District of Columbia, where there is a local anti-discrimination agency, this charge must be filed within 300 days of the occurrence of the allegedly unlawful practice. See id. If the employee does not timely file an EEOC charge, she may not challenge the allegedly discriminatory employment practice in court. See Washington v. Wash. Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C.Cir.1998).
The DCHRA makes it unlawful for an employer to discharge or refuse to hire an individual "wholly or partially for a discriminatory reason based upon the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation of any individual." D.C.Code § 2-1402.11(a)(1). An individual who wishes to challenge an employment practice under the DCHRA must file a charge with the D.C. Office of Human Rights within one year after the occurrence of the discriminatory practice. Id. § 2-1403.04(a).
This Circuit applies the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to cases brought pursuant to the ADEA and DCHRA. See Paquin v. Fannie Mae, 119 F.3d 23, 26, 26 n. 1 (D.C.Cir.1997); Mianegaz v. Hyatt Corp., 319 F.Supp.2d 13, 20 (D.D.C.2004) ("[T]he same analytical framework applies to both ADEA and DCHRA claims.").
Under the first step of McDonnell Douglas the complainant must establish a prima facie case of discrimination. In the ADEA context a complainant makes his required prima facie showing if he (i) belongs to the protected age group, (ii) was qualified for the position, (iii) was terminated [or not selected] and (iv) was replaced by a younger person.
Paquin, 119 F.3d at 26. Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for the employer's action. Id.; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. If the defendant meets this burden, then the plaintiff must have the opportunity to prove, by a preponderance of the evidence, that the *65 legitimate reasons offered by the employer were not its true reasons, but were a "pretext" for discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. 1089; McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. However, it is rarely necessary for courts to begin their analysis with a plaintiff's prima facie case:
[W]here an employee has suffered an adverse employment action and an employer has asserted a legitimate, nondiscriminatory reason for the decision, the district court need notand should notdecide whether plaintiff actually made out a prima facie case under McDonnell Douglas.
Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008) (emphasis in original). Rather, the Court should move directly to the third prong of the McDonnell Douglas framework and consider only whether the plaintiff has provided sufficient evidence for a reasonable jury to find that the defendant's stated reasons are a pretext. Id.
III. ANALYSIS
Ms. Faison's allegations arise under both federal and D.C. law which, for immediate purposes, function differently. Under the ADEA, an employee must file an age discrimination charge within 180 days of the event(s) complained of unless she is in a state that has a state human rights agency, in which event the time period for filing is 300 days. See 29 U.S.C. § 626(d)(1). D.C. is treated as a state and it has a human rights agency, which means that an employee in the District must file an age discrimination charge within 300 days of the offending event. The DCHRA is somewhat more generous: charges of age discrimination under that law must be filed within a year of the allegedly discriminating event. See D.C.Code § 2-1403.04(a). Filing a charge with the D.C. Office of Human Rights is not sufficient by itself, however; under local law, a person also must notify the Mayor within six months of the alleged discrimination in order to be able to sue in court. See D.C.Code § 12-309. These provisions affect Ms. Faison's allegations here.
A. Claims Under the ADEA
1. January 2005 Non-Selection
Ms. Faison argues that the District of Columbia violated her rights under the ADEA when it failed to promote her in January 2005. She learned informally in that month that she would not receive either of the two positions for which she had applied because she lacked experience in the relevant unit, an excuse that was clearly not applicable to the supervisory vacancy in the Customer Service Unit where she had been working since 1999 and for which she had a letter of recommendation for her outstanding performance. When Ms. Faison complained that she did have relevant experience, the vacancy announcement was cancelled. This very curious set of circumstances might support an inference of discrimination, but Ms. Faison did not file her charge of age discrimination until December 5, 2005, well over 300 days later. Seeking to avoid the conclusion that her charge is time-barred, she argues that she has not, even yet, received formal notice from the District of her non-selection. This argument must fail.
Procedural provisions of the ADEA often mirror those of Title VII, and to that extent are interpreted the same way by courts. See, e.g., Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979) (finding that because Title VII and the ADEA share the common purpose of eliminating workplace discrimination, similarly worded provisions of the two statutes should be given the same construction); Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1376 *66 (D.C.Cir.2008) (finding that "the Supreme Court has announced `a guiding principle for construing the provisions of Title VII,' which applies with equal force to the ADEA") (internal citations omitted). In construing Title VII, the Supreme Court has held that
discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred.
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Discrete discriminatory acts include, but are not limited to, "termination, failure to promote, denial of transfer, or refusal to hire." Id. at 114, 122 S.Ct. 2061. Thus, the failure to promote Ms. Faison in January 2005 was a "discrete act" which triggered the statutory clock for filing an EEOC charge. This Court has held that the statutory clock in a discrimination case begins to run when a plaintiff knows or should have known of the defendant's discriminatory action. Schrader v. Tomlinson, 311 F.Supp.2d 21, 27 (D.D.C.2004) ("[A] plaintiff may not rely on the continuing violation theory where she was aware of the discriminatory conduct at the time it occurred."); Wiggins v. Powell, Civil Action No. 02-1774, 2005 WL 555417, at *16, 2005 U.S. Dist. LEXIS 3984, at *50 (D.D.C. Mar. 7, 2005) (dismissing plaintiff's claims where "he had reason to know of and had actual knowledge ofthe alleged gender and age-based discrimination against him in November, 2000, and did not initiate contact with an EEO counselor or file the present suit until approximately two years later."); Rendon v. District of Columbia, Civil Action No. 85-3899, 1986 WL 15446, at *5, 1986 U.S. Dist. LEXIS 17463, at *14 (D.D.C. Nov. 19, 1986) (granting summary judgment to defendant with respect to claims plaintiff "knew or should have known arose" more than 180 days prior to the filing of an EEOC charge).
Ms. Faison received notices regarding her non-selection for Supervisory Management Analyst (Intake), CB-05-59, and Supervisory Management Analyst (Customer Service Unit), CB-05-560, on January 4, 2005. Am. Compl ¶ 7. Regardless of whether these notices were "formal," it is clear that from that point forward Ms. Faison knew of her non-selection. Furthermore, by her own admission, Ms. Faison overheard Renee Worley state in January 2005 that she (Ms. Worley) had received one of the promotions, and she also knew at that time that Rocelia Johnson had been "non-competitively" selected for the other. Id. ¶¶ 6 & 9. It follows that Ms. Faison knew or reasonably should have known of the allegedly discriminatory actionshe was not selected for a position for which she was qualified, and a younger, apparently less-qualified individual was selected in her stead. Thus, Ms. Faison's ADEA claim regarding her January 2005 non-selection will be dismissed.
2. September 2005 Non-Selection
Ms. Faison also charges the District of Columbia with age discrimination in violation of the ADEA because she was not selected when she applied again for the same supervisory vacancy in the Customer Service Unit when it was re-posted in June 2005 and a younger woman was awarded the job. As to this instance of non-selection, of which she learned in September 2005, her December 2005 charge is timely.
The Court therefore turns to the merits of this second allegation, for which the Supreme Court's recent decision in Gross v. FBL Financial Services, 129 S.Ct. 2343, provides new instructions for *67 applying the provisions of the ADEA. Closely examining the text of the statute, the Court noted that 29 U.S.C. § 623(a) prohibits an employer from discriminating against an individual "because of such individual's age," 129 S.Ct. at 2350, and then held that the "ordinary meaning" of "because of" an individual's age is that age was the "but-for" cause of the adverse employment action. Id. Thus, under Gross, Ms. Faison bears the burden of showing by a preponderance of the evidence that the District failed to promoted her "because of" her agethat is, that her age was the "but-for" cause of the decision to promote a younger woman.
The District alleges that Ms. Faison and Ms. Johnson were each interviewed by a panel and asked the same questions, after which the panel determined Ms. Johnson "provided better responses" to the interview questions and "had more experience related to the position." Def.'s Mem. at 9-10. Faced with this legitimate non-discriminatory reason for Ms. Johnson's selection, i.e., superior performance during the interview and directly relevant experience, the Court must consider "all relevant evidence" to determine whether a reasonable jury could find that the District's stated reason is a pretext for discrimination. Brady, 520 F.3d at 495; Adeyemi v. District of Columbia, 525 F.3d 1222, 1227 (D.C.Cir.2008). "All relevant evidence" includes, inter alia, evidence of the plaintiff's prima facie case and evidence proving the employer's proffered reasons to be false, see Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir. 1998), as well as the evidence presented by the defendant. See Brady, 520 F.3d at 495; Adeyemi, 525 F.3d at 1227.
Ms. Faison contends that the interviews given the two candidates were not similar. She notes that the younger selectee, Ms. Johnson, was asked by the panel, "Do you have any management experience?" but that Ms. Faison was not. See Pl.'s Opp'n at 5. Panel member Joseph Allen testified that Ms. Johnson's experience holding the position for almost a year on a detail played a key role in her selection. As a result, Ms. Johnson "was able to articulate some of the processes and procedures which the organization entails, utilizes." Id. Ex. E (Deposition of Joseph Allen) at 36. Pressed to explain his statement, Mr. Allen added, "I mean based on what the job description was and what the duties of the job description says, [Ms. Johnson] was able to interpret, now [sic] articulate her experience and relevance of demonstrating some of those duties that was [sic] presented." Id.
Ms. Faison further argues that "[t]here are several problems with the selection" of Ms. Johnson. Pl.'s Opp'n at 18. First, she asserts that Ms. Rice "gave the selectee an illegal advantage" and, in effect, pre-selected her by detailing Ms. Johnson to the position to gain experience because she had had "no experience as a supervisor or in Customer Service." Id. Second, she notes that Ms. Johnson held the position for more than 120 days, contrary to D.C. policy, and no one else from the unit was offered the opportunity to rotate into it. Id. Third, she argues that she was given a false reason for her non-selection in January 2005 and, when she complained, the posting was cancelled rather than award it to her. Id. Fourth, Ms. Johnson was affirmatively asked about her management experience but Ms. Faison was not. Id. at 21. Fifth, contrary to D.C. practices, the interview panel did not rate or rank the candidates. Id. & Ex. G (Excerpts from Appendix A to the Merit Staffing Plan).[1]*68 Finally, it is clear that Ms. Faison was qualified for the position,[2] is in a protected class, and that the selectee was much younger than she.
The Court pauses over only two of these alleged proofs: Ms. Johnson's detail and the false reason given for Ms. Faison's non-selection in January 2005. While neither of these is actionable, each is evidentiary. As to Ms. Johnson, she came from a different unit, had never worked in customer service or as a supervisor, and yet was detailed to the job. And Ms. Faison was told in January 2005 that she was denied the promotion because she had no experience in customer service, which she clearly did, and which had been considered an insufficient basis to bar Ms. Johnson from performing the job on a detail. Most tellingly, the District of Columbia provides no explanation for why Ms. Faison was supplied with a false reason for her non-selection in January and why the posting was then cancelled.
The case may be thin but the Court cannot say that no jury, finding such facts and evaluating the credibility of witnesses, could not find Ms. Faison's age was the reason for her non-selection. The District argues that Ms. Faison has not demonstrated a connection between her age and her non-selection. This is not quite accurate. Ms. Faison has presented a prima facie case and D.C. has failed to explain or even address why it was that the inexperienced younger Ms. Johnson was detailed into the job (after which detailmirabile dictu!she had experience) and the experienced older Ms. Faison was first told her lack of experience caused her not to be selected in January 2005 and then, when she protested, the vacancy notice was cancelled, to be reposted when Ms. Johnson's experience factor had grown. As the nonmovant, Ms. Faison is entitled to have the inferences drawn in her favor. The District's motion for summary judgment on Ms. Faison's ADEA claim concerning her September 2005 non-selection will be denied.
B. Claims Under the DCHRA
In addition to her ADEA claims, Ms. Faison alleges that her non-selection in both January 2005 and September 2005 violated the DCHRA. On December 5, 2005, Ms. Faison filed a charge of discrimination with the EEOC, which was cross-filed with the D.C. Office of Human Rights. Am. Compl. ¶ 12. Thus, both the January 2005 non-selection claim and September 2005 non-selection claim are timely, having been filed within the one year statutory limitation under the DCHRA. However, pursuant to D.C.Code § 12-309, a plaintiff wishing to sue the District of Columbia also must notify the Mayor. "Compliance with the statutory notice requirement is mandatory and a prerequisite to filing a suit against the District of Columbia `because it represents a waiver of sovereign immunity.'" Johnson v. District of Columbia, 572 F.Supp.2d 94, 111 (D.D.C.2008). D.C. argues that Ms. Faison failed to notify the Mayor of her alleged injury within six months of either the January 2005 non-selection or the September 2005 non-selection, and Ms. Faison offers no facts to either rebut this argument or to suggest the notice requirement should be waived. See Brown v. United States, 742 F.2d 1498, 1506 (D.C.Cir.1984) (finding that "if [D.C.Code § 12-309] is not complied with, and there are no grounds for waiver, it bars an action"). *69 Therefore, her claims under the DCHRA must be dismissed.
IV. CONCLUSION
For the foregoing reasons, the District of Columbia's Motion for Summary Judgment [Dkt. #27] will be granted in part and denied in part. Count I, alleging violations of the DCHRA, will be dismissed. Count II, alleging violations of the ADEA, will be dismissed with respect to Plaintiff's non-selection in January 2005 for Supervisory Management Analyst (Intake), CB-05-59, and Supervisory Management Analyst (Customer Service Unit), CB-05-560. Ms. Faison may proceed with Count II with respect to her June 2005 non-selection for Vacancy Number 1312. A memorializing order accompanies this memorandum opinion.
NOTES
[1] Ms. Faison also offers some hearsay declarations to support her case but they are inadmissible and will not be relied upon.
[2] The District argues that Ms. Faison has not made out a prima facie case because she has not demonstrated that she was qualified for the position. The Court concludes that her performance ratings and letter of recommendation from Mr. Grant are sufficient to demonstrate that she was qualified.
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12 Ill. App.2d 153 (1956)
138 N.E.2d 848
Robert A. Pohlman, Appellant,
v.
Universal Mutual Casualty Co., Appellee.
Gen. No. 46,844.
Illinois Appellate Court First District, Second Division.
November 27, 1956.
Released for publication January 8, 1957.
*154 Seymour J. Kurtz, of Chicago, for appellant; John C. Richards, of counsel.
Irvin Tischer, John Narusis, Jr., of Chicago, for appellee.
JUDGE McCORMICK delivered the opinion of the court.
This is an action brought by the plaintiff against the defendant, an insurance company, to recover for personal injuries allegedly received by the plaintiff through the negligence of one Langford, whose vehicle collided with the car of plaintiff in the state of Indiana. Langford had rented a trailer from Arnold Rasmussen, Don Rasmussen and Anton Rasmussen, doing business as Standard Trailer Service, which trailer was covered by a policy of insurance issued by the defendant under and in accord with the Illinois statutes. The defendant made a motion to strike the complaint filed by the plaintiff. The plaintiff was allowed to file an amended complaint instanter. The defendant stood on his motion to strike as the same applied to the amended complaint at law, which motion was sustained, the amended complaint was stricken and the cause was ordered to be dismissed. The plaintiff appealed from this order.
The only question before this court is as to whether the court acted properly in dismissing the complaint and cause of action against the defendant.
The complaint, in one count, alleges two causes of action, one in tort and one in contract. The tort action alleges that the negligence of Langford was the proximate *155 cause of the injuries of plaintiff and the damages resulting therefrom. The contract action is based on the contract of insurance. The plaintiff seeks but one recovery, and that against the defendant insurance company. The liability for recovery against the tortfeasor is predicated upon his wrongdoing. The liability against the insurance company is predicated upon its contractual obligation. No question of joinder is here involved. The only question is as to whether or not the plaintiff can bring this action against the defendant insurance company before there is any determination of the liability of the alleged tortfeasor, the insured.
To support his cause of action in contract the plaintiff sets out the fact that Langford had rented a trailer on April 28, 1953 from Standard Trailer Service, which was in the business of renting trailers to the general public; that under the statute the Standard Trailer Service was obligated to have either a motor vehicle liability policy or a motor vehicle liability bond; that at the time in question there was in full force between Standard Trailer Service and the defendant such an insurance policy. The policy was not attached to the complaint. The statute upon which the plaintiff relies is paragraph 63-1 of chapter 95 1/2 of Illinois Revised Statutes, 1951, which provides:
"It is unlawful for the owner of any motor vehicle to engage in the business, or to hold himself out to the public generally as being engaged in the business of renting out such motor vehicle, to be operated by the customer, unless the owner has given, and there is in full force and effect and on file with the Secretary of State either
"(1) A motor vehicle liability policy in a solvent and responsible company, authorized to do business in the State of Illinois, providing that the insurance carrier will pay any judgment within thirty days after *156 it becomes final, recovered against the customer or against any person operating the motor vehicle with the customer's express or implied consent ... for an injury to, or for the death of any person...."
Since the policy is not before us and the complaint alleges that the policy was in compliance with the statute, we must assume that the language in the statute was the language of the policy. No suit had been brought against Langford (the insured) and no judgment was entered against him. The terms of the policy would make the recovery of a judgment a condition precedent to an action against the insurance company. There is nothing in the statute which provides that the insurance company shall compensate the injured party.
In the complaint the plaintiff also sets out certain portions of the Financial Responsibility Law of Illinois, paragraph 58 (k) (sec. 42-11) of chapter 95 1/2, Ill. Rev. Stat. 1951. All provisions of the Financial Responsibility Law must be disregarded, because it was held in McCann for Use of Osterman v. Continental Cas. Co., 8 Ill.2d 476 (affirming a decision of this court in McCann for Use of Osterman v. Continental Cas. Co., 6 Ill. App.2d 527), that the Illinois Financial Responsibility Law specifically limits the provisions of section 42-11 (par. 58 (k)) to liability policies issued under the provisions of that Act, and that the provisions of the Act are not applicable unless the insured has by his previous conduct brought himself within its purview. There is nothing in the pleadings before us to indicate that such was the fact here.
The plaintiff relies upon the case of Illinois Casualty Co. v. Krol, 324 Ill. App. 478, where the plaintiff insurance company had issued its policy under a compulsory statutory provision. A party was injured through the negligence of a minor driver operating one of the insured defendant's trucks without a chauffeur's *157 license. The insurance company formally disclaimed liability to the insured under the policy on the ground that the provisions of the policy excluded coverage while the truck was being operated, as it was, by a person in violation of the law applicable to age or occupation of the driver. The insurance company, believing it was for the best interest of all parties to settle the claim, received an offer which it transmitted to the insured advising him that unless he settled it within a certain time limit, the company would make the settlement and seek reimbursement from him for any sums paid out by it. In this suit the insurance company sought to recover from the insured the amount paid to the injured party under the settlement agreement. The plaintiff insurance company, in order to sustain its cause of action, insisted that because of the provisions of the policy excluding coverage there was no liability on the part of the insurance company, since the action of the insured in permitting the minor to operate the truck at the time of the accident in violation of the law was a breach of the provisions of the contract of insurance. The court said:
"We think it is a fair construction of the statute to hold that one of the compelling reasons for enacting the Illinois Truck Act was the necessity of more stringent regulations for the protection of the general public in the use of highways; that one of the methods of effecting this purpose, as adopted by the legislature, is to require the operator of trucks to carry a policy of insurance indemnifying him from his liability, as provided in section 16 of the act; that, as urged by plaintiff, such insurance is for the protection of the public, and therefore policy defenses which may be good as against the insured, do not relieve the insurance carrier of its liability to parties injured in their persons or property by reason of the insured's unlawful operation of its trucks."
*158 The court held that under the provisions of the policy the plaintiff was obliged, even in case there was a violation of the contract of insurance by the defendant, to defend or settle the claim of the injured person and to pay any judgment that might be entered against the defendant. The policy also provided that the insured should reimburse the company for any payment made by it on account of any accident, claim or suit which the company would not have been obligated to make under the provisions of the policy. The court held that an ultimate liability rested on the insurance company; that it had the right to make a settlement; that the settlement was fair and made in good faith; that, while by the terms of the policy the insurance company was not divested of its right to make such settlement nor relieved from its ultimate liability to the insured, nevertheless, because of the breach of policy provisions, the insurance company could recover back from the insured the money which it had paid out. This case in no way indicates that either the policy or the statute established a primary liability between the carrier and the injured party. Nor does it support the contention that a suit in the first instance, such as was attempted here, could be brought against the insurance carrier. The case is not applicable to the facts and circumstances in the case before us.
The out of State cases cited by the plaintiff dealing with joinder of an insurance company with the insured are not in point because the statutes in those States differ materially from the Illinois statute. One of the cases cited and relied upon by the plaintiff is Enders v. Longmire, 179 Okla. 633, 67 P.2d 12, which was a joint action brought against the insured and an insurance company which had by virtue and under the fiat of an applicable statute issued an insurance bond. However, in that case the statute provided that the liability insurance policy or bond "shall bind the *159 obligors thereunder to make compensation for injuries to persons and loss of or damage to property resulting from the operation of such motor carrier." (Italics ours.) The court in Temple v. Dugger, 164 Okla. 84, 21 P.2d 482, and in Jacobsen v. Howard, 164 Okla. 88, 23 P.2d 185, had construed the statute and had held that under it a joinder of the insured and the insurance company in an original suit was proper, inasmuch as the provisions of the statute binding the insurance company to make compensation for injuries to persons and for loss of or damage to property created a primary right of action in favor of the party injured. Subsequently the legislature amended the Act, providing "... and after judgment against the carrier for any such damage, the injured party may maintain an action upon such policy or bond to recover the same and shall be a proper party so to do." The court held that since the amendment did not change the portion of the statute upon which the court in the two previous cases had relied as making the insurance company primarily liable to the injured party, it must be assumed that it was not the intent of the legislature to prevent an original joint action against both the carrier and its surety. The decision in that case would have no influence on the case before us.
[1] It is a fundamental rule of law that where the terms of an insurance policy are clear and unambiguous and are not in violation of any applicable statute the court must give effect to the intent of the parties to the contract in accordance with the clear expression of the agreement. Paragraph 1000 of chapter 73, Ill. Rev. Stat. 1951, provides that all policies insuring against loss or damage for which the insured is liable to persons other than the insured shall contain a provision that the insolvency or bankruptcy of the insured shall not release the company from the payment of damages occasioned during the term of the policy, and *160 further provides that in case execution against the insured is returned unsatisfied in an action brought by the injured person, then an action may be maintained by him against the insurance company under the terms of the policy. This section presupposes that a judgment will be recovered against the insured and permits a direct action to be brought against the insurance company in case the execution on the said judgment has been returned unsatisfied, and eliminates from the consideration of the court any defense which might have been urged by the insurance company to the effect that the insured was either insolvent or bankrupt. It does not give the injured party the right to bring a primary action against the insurance company before the liability has been established in a suit brought by him against the insured.
[2] Here, under the assumption that the insurance policy followed the terms of the statute, it provided that the insurance carrier will pay, within thirty days after it has become final, any judgment, for an injury to or for the death of any person, recovered against the insured or any other person operating the motor vehicle with his express or implied consent. As we have pointed out, no such judgment had been recovered against the insured, and this suit was brought in the first instance against the insurance company. The complaint did not state a cause of action against the defendant.
The judgment of the Circuit Court of Cook County is affirmed.
Judgment affirmed.
ROBSON, P.J. and SCHWARTZ, J., concur.
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732 F.2d 140
Ortizv.Secretary of Health & Human Services
83-1697
United States Court of Appeals,First Circuit.
3/14/84
1
D.P.R.
AFFIRMED
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11 F.3d 292
62 USLW 2450
UNITED STATES of America, Appellee,v.Shaun K. O'NEIL, Defendant, Appellant.
No. 93-1325.
United States Court of Appeals,First Circuit.
Heard Sept. 10, 1993.Decided Dec. 15, 1993.
William Maselli, Auburn, ME, for defendant, appellant.
Michael M. DuBose, Asst. U.S. Atty., Portland, ME, with whom Jay P. McCloskey, U.S. Atty., Bangor, ME, was on brief, for appellee.
Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and BARBADORO,* District Judge.
SELYA, Circuit Judge.
1
Concluding, as we do, that several courts of appeals have read the supervised release revocation provision (SRR provision), 18 U.S.C. Sec. 3583(e)(3) (1988 & Supp. III 1991), in too crabbed a manner, we hold today that this statute permits a district court, in resentencing a person who has violated the conditions of his or her original term of supervised release, to impose a new term of supervised release in conjunction with an additional prison term, subject to certain restrictions limned in the statute itself. Because we are staking out a position at variance with the majority view, we write at some length to explain our rationale.
I. BACKGROUND OF THE CASE
2
After having broken into a post office and stolen mail in violation of 18 U.S.C. Secs. 1708, 2115 (1988), defendant-appellant Shaun K. O'Neil pleaded guilty to a class D felony. On November 9, 1990, the district court sentenced him to serve twenty-one months in prison (the top of the applicable guideline sentencing range), followed by three years of supervised release (the maximum allowed by statute). We affirmed the sentence. See United States v. O'Neil, 936 F.2d 599 (1st Cir.1991).
3
Soon after his release from the penitentiary, appellant committed several significant violations of the supervised release conditions, e.g., stealing a firearm while intoxicated. Dubbing appellant a "walking juvenile crime wave" who posed "a serious danger to the public," the district judge revoked the original term of supervised release and sentenced appellant to an additional twenty-four months in prison, to be followed by a new three-year supervised release term. O'Neil appeals, asking that we vacate his sentence and remand for resentencing. His principal allegation is that the reimposition of supervised release exceeds the district court's statutory authority.
II. THE STATUTE
4
Passed as part of the Sentencing Reform Act of 1984, 18 U.S.C. Secs. 3551-3559, 3561-3566, 3571-3574, 3581-3586, & 28 U.S.C. Secs. 991-98 (1988 & Supps.), the supervised release alteration statute, 18 U.S.C. Sec. 3583(e), of which the SRR provision is a part, authorizes a court to alter a term of supervised release in a number of ways. A court may:
5
(1) terminate a term of supervised release and discharge the person released at any time after the expiration of one year of supervised release ...;
6
(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and may modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release ...;
7
(3) revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission, except that a person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison if the offense for which the person was convicted was a Class B felony, or more than 2 years in prison if the offense was a Class C or D felony; or
8
(4) order the person to remain at his place of residence during nonworking hours....
9
18 U.S.C. Sec. 3583(e) (emphasis supplied). The present controversy centers on the third of these four options.
10
The alteration statute empowers a resentencing court, in certain circumstances, to elongate a previously imposed term of supervised release, 18 U.S.C. Sec. 3583(e)(2), or, in other circumstances, to revoke supervision and impose imprisonment in lieu of supervision, id. at Sec. 3583(e)(3). What is unclear, and what has confounded the courts, is whether an intermediate resentencing option exists: Does the statute allow a court to revoke supervision and, in effect, restructure the defendant's sentence by imposing a combination of imprisonment plus further supervision?
11
Although this court has never addressed the question, a minimum of six circuits have read the statute to foreclose the reimposition of a term of supervised release following revocation and imprisonment. See United States v. Truss, 4 F.3d 437, 438 (6th Cir.1993); United States v. McGee, 981 F.2d 271, 274-76 (7th Cir.1992); United States v. Koehler, 973 F.2d 132, 134-36 (2d Cir.1992); United States v. Cooper, 962 F.2d 339, 340-42 (4th Cir.1992); United States v. Holmes, 954 F.2d 270, 271-73 (5th Cir.1992); United States v. Behnezhad, 907 F.2d 896, 898-99 (9th Cir.1990); see also United States v. Gozlon-Peretz, 894 F.2d 1402, 1405 n. 5 (dictum), amended, 910 F.2d 1152 (3d Cir.1990), aff'd on other grounds, 498 U.S. 395, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991). The Tenth Circuit came to the same conclusion belatedly, after reversing its field. See United States v. Rockwell, 984 F.2d 1112, 1117 (10th Cir.) (overruling United States v. Boling, 947 F.2d 1461 (10th Cir.1991)), cert. denied, --- U.S. ----, 113 S.Ct. 2945, 124 L.Ed.2d 693 (1993). The Eleventh Circuit has sent mixed signals. In United States v. Tatum, 998 F.2d 893, 894-95 (11th Cir.1993) (per curiam), the court embraced the majority view. A second panel, two weeks later, bowed to Tatum on stare decisis grounds; but, in a sharp departure from customary practice, all three judges expressed their profound disagreement with Tatum's holding. See United States v. Williams, 2 F.3d 363, 365 (11th Cir.1993). Thus, nine circuits in all read the SRR provision narrowly. On the other side of the ledger, the Eighth Circuit stands as a waif in the wilderness. See United States v. Schrader, 973 F.2d 623, 624-25 (8th Cir.1992) (holding that section 3583(e)(3) permits the reimposition of a term of supervised release following revocation and imprisonment); see also United States v. Levi, 2 F.3d 842, 846 (8th Cir.1993) (reaffirming Schrader).
12
We are called upon today to add our voice to the chorus. We approach this task mindful that, while the decision to revoke a term of supervised release is ordinarily reviewable for abuse of discretion, the quintessentially legal question of whether a post-revocation sentence exceeds statutory limits necessitates plenary review. See Rockwell, 984 F.2d at 1114; see also United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.1992) (holding that interpretive questions under the sentencing guidelines should be reviewed de novo ).
III. THE COMPETING INTERPRETATIONS
13
We start our quest by elucidating the two ways in which the SRR provision may be read as a coherent command.
14
* To achieve the result reached by the majority of courts, the assiduous reader must proceed along the following lines. First, read the word "revoke" restrictively, i.e., in the sense of "cancel" or "annul," so that it does not allow either the recommencing of the previously imposed term of supervision or the commencement of a new term of supervision. Next, suppose that the word "term", when used for the second time in the SRR provision, does not imply that there is a term of supervision in existence, but merely serves to set a temporal limit on the prison sentence that may be imposed following revocation; or, put another way, that the second use of the word "term" is to be read as if it were shorthand for a more verbose phrase like "the time period equivalent to what would have been the term." Only if these interpretive steps are taken does it become clear, under the SRR provision, that a court may absolutely extinguish a term of supervised release and impose a new prison term, subject to certain statutory limitations,1 but, withal, may not impose any other or further supervision term.B
15
The other possible parsing of the SRR provision proceeds in three phases. At the outset, consider the possibility that the word "revoke" means simply to "recall." See, e.g., Black's Law Dictionary 1322 (6th ed. 1990) (defining "revoke" as "[t]o annul or make void by recalling or taking back...."). If "revoke" is read in this way, the SRR provision is not inconsistent with the recommencement of supervised release. Next, from the fact that the SRR provision mentions a "term of supervised release" in that portion of the text following the conferral of the power to revoke, the reader plausibly can infer that the supervision term recommenced upon revocation--else there would be no term then in existence. Finally, having posited that the supervision term is alive and well, notwithstanding the court's order of revocation, the reader can conclude that, in authorizing the court to send a person to prison after revocation for "all or part of the term," the SRR provision contemplates that any remaining part of the original, recalled term will be devoted to supervision. On this reading, the SRR provision allows a court to call back a term of supervised release, recommence the term, convert all or part of it into jail time (up to the statutory limit),2 and retain any remainder as a period of non-detentive monitoring.
16
Before leaving these competing versions, we wish to make two preliminary points. First, we do not regard the initial step in these analyses to be indispensable. See infra Part IV(A). Second, each of the competing versions requires the reader to make a leap of faith beyond the four corners of the SRR provision itself. In this sense, then, the playing field is level.
IV. CHOOSING AN INTERPRETATION
17
We turn to the difficult choice between these meanings, using the full panoply of available aids to the construction of legislative enactments.
18
* In approaching statutory interpretation, "it is axiomatic that the plain words and structure of the statute must be paramount." United States v. Aversa, 984 F.2d 493, 498 (1st Cir.1993) (en banc). Most of the courts that have read section 3583(e) to foreclose the imposition of a post-revocation term of supervised release have done so under the banner of plain meaning. Those courts read the word "revoke" as signifying an extinguishment so uncompromising as to preclude a post-revocation term of supervision. See, e.g., McGee, 981 F.2d at 274; Koehler, 973 F.2d at 134-35; Holmes, 954 F.2d at 272. This inflexible insistence upon a particular version of lexicographic orthodoxy seemingly overlooks that "the plain-meaning doctrine is not a pedagogical absolute." Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 825 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 974, 122 L.Ed.2d 129 (1993). In particular, "[t]erms in an act whose meaning may appear plain outside the scheme of the statute can take on a different meaning when read in their proper context." Id. (citing various Supreme Court precedents).
19
The Williams court found "revoke" plain enough, but read it differently. It suggested that "revoke" could be read in the alternative sense of "call back." Williams, 2 F.3d at 365. This sense is best illustrated by the poet William Cowper, who wrote:
20
How readily we wish time spent revok'd,
21
That we might try the ground again....
22
The Task, Book VI, l. 25 (1784); see also supra p. 295 (quoting Black's Law Dictionary). While we regard this approach as plausible, we do not see why even the most inelastic interpretation of "revoke" would frustrate a reading of the SRR provision that permits imposition of a post-revocation term of supervision. If a term has been called back, it may be reimposed. If a term has been absolutely terminated, a new term still may be imposed--in the same way that, once a license is revoked, a new one may be issued. In the end, the semantic debate over the word "revoke" turns out to be no more than the swapping of heuristics. No matter how the word is defined, the language of the SRR provision is consistent with the possibility that a post-revocation term of supervision lawfully may be imposed.
23
We believe this linguistic intuition is verified by historical precedents. Previous Congresses used the word "revoke" in crafting the statutory forerunners of section 3583(e)(3). See, e.g., 18 U.S.C. Sec. 4214 (1988) (repealed 1984 anent offenses committed after November 1, 1987) (revocation of parole); 21 U.S.C.A. Sec. 841(c) (1981 & Supp.1993) (repealed 1984) (revocation of special parole); 18 U.S.C. Sec. 3653 (1988) (repealed 1984 anent offenses committed after November 1, 1987) (revocation of probation). Notwithstanding Congress's use of the word "revoke," it was widely thought that reimposition of a period of non-detentive monitoring, to commence following post-revocation imprisonment, was permitted under all three of these antecedent statutory provisions. See infra Part IV(D).
B
24
Our structural analysis of the alteration statute and, particularly, of the SRR provision starts with the recognition that the first appellate court to interpret section 3583(e) rested its holding on the notion that the alteration statute is structured as a set of discrete options separated by the word "or." Given the shape of the statute, the court reasoned, a judge may either "extend" the term under subsection (e)(2) or "revoke" it under subsection (e)(3), but not both. See Behnezhad, 907 F.2d at 898-99. Subsequent courts quickly moved beyond this restrictive rationale, realizing that it collapses into the debate over the meaning of the SRR provision and, therefore, proves nothing. See, e.g., McGee, 981 F.2d at 274; Holmes, 954 F.2d at 272.
25
To the extent that the repeated use of the disjunctive in section 3583(e) sheds any light on Congress's intent, we believe that it favors a broad reading of the SRR provision. The first principal option that the alteration statute presents to a district judge is to "terminate" the supervised release term previously imposed under subsection (e)(1). If Congress meant to "revoke" supervised release in the hard sense of the word, it could simply have used the same language twice. Most likely, then, to "revoke" as used in the SRR provision means something other than to "terminate".
C
26
Two general principles of statutory interpretation inform our conclusion that the SRR provision cannot be read grudgingly: the principle that the grant of a greater power necessarily includes the grant of a lesser power, unless the authority to exercise a lesser power is expressly reserved; and the principle that statutes should not be read to produce illogical results.
27
1. The Greater Includes the Lesser. The principle that the grant of a greater power includes the grant of a lesser power is a bit of common sense that has been recognized in virtually every legal code from time immemorial. It has found modern expression primarily in the realm of constitutional law. See, e.g., City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 763, 108 S.Ct. 2138, 2147, 100 L.Ed.2d 771 (1988) (commenting that the power to prohibit speech entirely includes the lesser power to license it at the government's discretion); Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 345, 106 S.Ct. 2968, 2979, 92 L.Ed.2d 266 (1986) (holding that the power to ban casino gambling includes the lesser power to prohibit advertising of casino gambling).
28
While this principle has nested less frequently in the criminal law context, it is fully applicable in that milieu. To illustrate, we use an example that bears a strong family resemblance to the problem at hand. The federal sentencing guidelines originally stated that "an extraordinary physical impairment may be a reason to impose a sentence other than imprisonment." U.S.S.G. Sec. 5H1.4, p.s. (Nov. 1990). Three courts of appeals, including this one, refused to understand this provision to require an all-or-nothing choice between imposing an incarcerative sentence within the guideline range or imposing no prison sentence. The courts reasoned that, despite the unvarnished language of the provision, the greater departure (no incarceration) necessarily included the lesser departure (a prison sentence below the bottom of the guideline sentencing range). See United States v. Slater, 971 F.2d 626, 635 (10th Cir.1992); United States v. Hilton, 946 F.2d 955, 958 (1st Cir.1991); United States v. Ghannam, 899 F.2d 327, 329 (4th Cir.1990).3
29
Similarly, in this case, we are reluctant to posit an all-or-nothing choice between continuing a defendant on supervised release (with no further incarceration) and imprisoning the defendant (with no further supervision). We agree with the Eighth Circuit that if the SRR provision gives a district court the power to sentence an offender to a full term of imprisonment upon revocation, it must necessarily confer upon the court "the power under that subsection to impose a less drastic sanction." Schrader, 973 F.2d at 625.
30
2. Avoiding Illogical Results. It is also an established canon of statutory construction that a legislature's words should never be given a meaning that produces a stunningly counterintuitive result--at least if those words, read without undue straining, will bear another, less jarring meaning. See Kelly v. United States, 924 F.2d 355, 361 (1st Cir.1991); United States v. Meyer, 808 F.2d 912, 919 (1st Cir.1987); Sutherland Stat. Const. Sec. 45.12 (5th ed.). This principle goes back to the early days of the Republic. See M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 355, 4 L.Ed. 579 (1819).
31
In this case, the sentencing rule that emerges from a narrow reading of section 3583(e)(3) is surpassingly difficult to defend from a policy perspective. It is hard to conceive any logical reason why Congress might authorize sentencing an offender to a non-mandatory term of imprisonment, variable in the judge's discretion, upon revocation of a term of supervised release, but would, at the same time, withhold authority to impose a sentence of equivalent duration upon more lenient conditions. See Williams, 2 F.3d at 365; Schrader, 973 F.2d at 625. Although we could jury-rig a legislative justification for so cramped an interpretation of the law, we think it is self-evident that barring judges from reimposing supervision following revocation needlessly inhibits the court's sentencing options while at the same time failing to advance any of the fundamental goals of criminal sentencing.4 As a matter of policy, then, the implications for sentencing inherent in a stingy reading of the SRR provision go a long way toward convincing us that Congress could not have favored (or intended to compel) such a reading.
D
32
As a rule, courts should resort to legislative history and other guides to congressional intent when the words of a statute give rise to ambiguity or when they lead to an unreasonable interpretation. See, e.g., United States v. Charles George Trucking Co., 823 F.2d 685, 688 (1st Cir.1987); Barry v. St. Paul Fire & Marine Ins. Co., 555 F.2d 3, 7 (1st Cir.1977), aff'd, 438 U.S. 531, 98 S.Ct. 2923, 57 L.Ed.2d 932 (1978). Though we believe that a generous reading of section 3583(e)(3) best comports with plain language, statutory structure, logic, and sound policy, we are aware that ambiguity is commonly thought to exist when statutory language is susceptible to differing, but nonetheless plausible, constructions. See United States v. R.L.C., --- U.S. ----, ----, 112 S.Ct. 1329, 1334, 117 L.Ed.2d 559 (1992); cf. Allen v. Adage, Inc., 967 F.2d 695, 700 (1st Cir.1992) (explaining when ambiguity exists in the text of a contract). Here, as the weight of authority unquestionably attests, there is room for disagreement over the meaning of the SRR provision. Therefore, we continue our inquiry.
33
Where ambiguity lurks, the burial ground in which superseded statutes rest sometimes proves a fertile field for assistance in determining the meaning of existing statutes. See Dwight v. Merritt, 140 U.S. 213, 217, 11 S.Ct. 768, 769, 35 L.Ed. 450 (1891); see also Sutherland Stat. Const. Sec. 51.04. We think that superseded statutes are of particular value in construing provisions within the Sentencing Reform Act. We have recognized--and we believe the Sentencing Commission has recognized--the desirability of emulating pre-guidelines practice to the extent that plain meaning does not compel change. Thus, we have repeatedly referred to pre-guidelines precedent as an aid to interpreting the sentencing guidelines. See, e.g., United States v. Emery, 991 F.2d 907, 911 (1st Cir.1993); United States v. Blanco, 888 F.2d 907, 910 (1st Cir.1989); see also U.S.S.G. Ch. 1, Pt. A, intro. comment. 3 (Nov. 1992) (stating policy that "the guidelines represent an approach that begins with, and builds upon," pre-guidelines practice). We believe the same principle applies in construing the Sentencing Reform Act itself.
34
To place the genealogy of supervised release in historical context, one must first recognize that non-detentive monitoring developed along two separate lines: probation and parole. The Sentencing Reform Act, and the guidelines implementing it, swept aside both of these modalities, replacing probation with an entirely new creature bearing the same name and replacing parole (as well as its interim variant, special parole) with supervised release. See Gozlon-Peretz v. United States, 498 U.S. 395, 400, 111 S.Ct. 840, 844, 112 L.Ed.2d 919 (1991) (noting that Congress intended to replace most forms of parole, including special parole, with supervised release).5 We think it is of critical importance that, prior to the sea change instigated by the Sentencing Reform Act, it was widely understood that any of the existing forms of non-detentive monitoring could follow a post-revocation sentence of imprisonment. We survey the field.
35
1. Probation. The debate in which we are embroiled today closely tracks an earlier debate over post-revocation probation. The relevant pre-guidelines statute empowered a court to "revoke probation, and impose any sentence which might originally have been imposed." 18 U.S.C. Sec. 3653 (repealed).6 Under this law, five circuits viewed probation as a kind of "sentence" that could be imposed after revocation of probation. See Banks v. United States, 614 F.2d 95, 99 n. 10 (6th Cir.1980); United States v. Rodgers, 588 F.2d 651, 654 (8th Cir.1978); Nicholas v. United States, 527 F.2d 1160, 1162 (9th Cir.1976); United States v. Lancer, 508 F.2d 719, 730-32 (3d Cir.) (en banc), cert. denied, 421 U.S. 989, 95 S.Ct. 1992, 44 L.Ed.2d 478 (1975); Smith v. United States, 505 F.2d 893, 895 (5th Cir.1974). The Tenth Circuit and a district court in the Fourth Circuit took the opposite view. See United States v. Martin, 786 F.2d 974, 976 (10th Cir.1986) (declining to overrule Fox v. United States, 354 F.2d 752 (10th Cir.1965)); United States v. Buchanan, 340 F.Supp. 1285, 1288-89 (E.D.N.C.1972). When the smoke cleared, "the weight of authority heavily favor[ed] the conclusion that reimposition of probation is permissible upon revocation of probation." United States v. Urdaneta, 771 F.Supp. 28, 32 (E.D.N.Y.1991) (canvassing pre-guidelines case law).
36
Under the new sentencing regime, the statute treating with post-revocation probation deals much more directly with the vexed question of reimposition. It empowers a court to "revoke the sentence of probation and impose any other sentence that was available at the time of the initial sentencing." 18 U.S.C. Sec. 3565(a) (1988) (emphasis supplied). Although the question is not before us, and we, accordingly, do not rule definitively on it, it seems probable that Congress intended to depart from prevailing pre-guidelines practice and forbid reimposition of probation following the revocation of a term of probation.7 We draw this inference from the insertion of the word "other," on the theory that a change in statutory language should be "read, if possible, to have some effect." American Nat'l Red Cross v. S.G., --- U.S. ----, ----, 112 S.Ct. 2465, 2475, 120 L.Ed.2d 201 (1992). It thus appears quite likely that the drafters of section 3565 were aware of the pre-guidelines case law and knew how to design a statute in such a way as to address its impact head-on.
37
2. Parole. There was never any question that non-detentive monitoring could follow a prison sentence imposed in consequence of the revocation of a term of parole or special parole. See, e.g., 28 C.F.R. Sec. 2.52 app. (1993) (setting out United States Parole Commission's policy statement to the effect that "an adequate period of renewed supervision following release from reimprisonment or reinstatement to supervision, must be available"); id. at Sec. 2.57 (making the policy statement applicable to special parole); see also Bentsen v. Ralston, 658 F.2d 639, 640 (8th Cir.1981) (citing cases for the proposition that an erstwhile parolee serving post-revocation prison time may earn good-time credit applicable to a second parole period). In this context, the Senate report that accompanied the Sentencing Reform Act demonstrates Congress's awareness of the pre-guidelines practice:
38
Under [pre-guidelines] law, if a parolee violates a condition of parole that results in a determination to revoke parole, the revocation has the effect of requiring the parolee to serve the remainder of his original term of imprisonment, subject to periodic consideration for re-release as required for any prisoner who is eligible for parole.
39
S.Rep. No. 225, 98th Cong. 2d Sess., reprinted in 1984 U.S.C.C.A.N. 3182, 3306 (emphasis supplied).
40
We find this historical phenomenon to be especially significant in light of the wording of the provision pertaining to the revocation of special parole. The governing statute decreed that "[a] person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment." 21 U.S.C.A. Sec. 841(c) (repealed). Notwithstanding that in section 841(c), as in section 3583(e)(3), there was no explicit authorization to commence a second non-detentive term, the Parole Commission, whose interpretation of a provision it is charged to execute is entitled to considerable weight, see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984), explicitly endorsed the reimposition of special parole.
41
Given the obvious similarities in language, structure, and substance between section 841(c) and section 3583(e)(3), we are fortified in our conclusion that section 3583(e)(3) plausibly may bear a broader interpretation than it heretofore has received. Moreover, it seems highly likely that Congress, in replacing a repealed provision with a new provision of hauntingly similar wording, intended that the pre-guidelines interpretation would continue to apply. Otherwise, Congress would almost certainly have altered the language to clarify its intent--as it did in connection with probation, see supra Part IV(D)(1).
42
For these reasons, the historical development of non-detentive monitoring, in all its permutations, reinforces our intuition that Congress meant to leave undisturbed the widely accepted pre-guidelines practice of allowing district courts discretion to order a period of non-detentive monitoring as a part of the sentence imposed for violation of supervised release conditions.
E
43
Studying what has transpired in Congress subsequent to the passage of the alteration statute produces another possible aid to statutory construction. The focus here is on a bipartisan quartet--comprising four senior members of the Senate Judiciary Committee--thought to have been supremely influential in the passage of the Sentencing Reform Act: Senators Thurmond, Kennedy, Biden, and Hatch. These senators uniformly favor a clarifying amendment that would remove any doubt that section 3583(e)(3) allows reimposition of supervised release. See, e.g., 137 Cong.Rec. S10021 (daily ed. July 15, 1991) (text of S.188, sponsored by Sens. Kennedy, Thurmond, and Biden); 139 Cong.Rec. S2090 (daily ed. February 25, 1993) (S.468, sponsored by Sen. Thurmond, referred to Judiciary Committee); 139 Cong.Rec. S3054 (daily ed. March 17, 1993) (Sen. Hatch added as cosponsor to S.468).8
44
We understand that such thirteenth-hour pronouncements are of uncertain value. Though courts may accord some weight to a subsequent enactment that reflects directly on a statute under scrutiny, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81, 89 S.Ct. 1794, 1801-02, 23 L.Ed.2d 371 (1969), pronouncements made in the legislative history of that subsequent statute frequently are viewed as unreliable, see Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n. 13, 100 S.Ct. 2051, 2061 n. 13, 64 L.Ed.2d 766 (1979), and pronouncements regarding an unpassed bill may be even more problematic, see Chapman v. United States, 500 U.S. 453, ---- n. 4, 111 S.Ct. 1919, 1927 n. 4, 114 L.Ed.2d 524 (1991). Accordingly, we reach our decision today without placing significant weight on post-enactment materials.
45
Nonetheless, courts, including the Supreme Court and this court, have occasionally thought post-enactment declarations of congressional intent possessed some probative value. See, e.g., Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 813, 63 L.Ed.2d 36 (1980), (relying in part on committee report relative to subsequently enacted amendment); United States v. Ven-Fuel, Inc., 758 F.2d 741, 758-59 (1st Cir.1985) (same). We believe that if post-enactment history, short of the actual passage of a new bill, is ever to be given weight, this case is a nearly ideal candidate. The sponsors of the proposed amendments include the same senators who sponsored the enacted statute;9 the amendatory legislation has been characterized by a sponsor as "clarif[ying]" in nature, rather than as revisory or augmentative, see 139 Cong.Rec. S2151 (daily ed. Feb. 25, 1993) (statement of Sen. Thurmond on S.468); 137 Cong.Rec. S8892 (daily ed. June 27, 1991) (statement of Sen. Thurmond on S.188); and, in various incarnations, the clarification has been adopted twice by the House and four times by the Senate (including twice by the Senate in the form of a freestanding bill). See 139 Cong.Rec. at S2150 (citing bills). This history strongly suggests that the amendment remains unpassed only because the vagaries of the parliamentary process are what they are. When, as now, the two houses of Congress, in the wake of a series of judicial decisions going mainly in one direction, have repeatedly signified that an amendment is needed to clarify recently enacted legislation, it seems reasonable to infer that the courts have failed to grasp the enacting Congress's intent. In such circumstances, the case for giving some modest weight to post-enactment history peaks.
F
46
At this point, we have marshalled the available data.10 We have found neither of the contending readings to be obviously correct on the statute's face, and we have deterrated no direct evidence of congressional intent sufficient to capture the flag. In the end, however, three considerations persuade us that a broader interpretation of the SRR provision is more likely what Congress intended. First, a narrow rendering is inharmonious with the statute as a whole. Second, in choosing between two plausible readings, we hesitate to select the alternative that in effect imputes to Congress a policy for which no compelling rationale can be postulated (and that, in the bargain, blindly treats a greater power as if it did not include a lesser power). Third, given a statute of protracted indeterminacy, we are inclined to favor the interpretation that promotes continuity with traditional sentencing practice--all the more so since the preexisting practice was based in significant part upon a similarly worded statute. For these reasons, and despite our abiding respect for the courts that have gone the other way, we hold that the district judge did not err in concluding that he possessed the power to impose both a prison term and a term of supervised release following revocation of appellant's original supervision term.
V. APPLYING THE SRR PROVISION
47
Having determined that the court below correctly grasped the essential meaning of the SRR provision, we find, nonetheless, that it erred in fashioning appellant's sentence. In this case, upon revocation of the original term of supervised release, the SRR provision yields a maximum sentence length of three years. See 18 U.S.C. Sec. 3583(e)(3). No more than two years of that period can be devoted to incarceration.11 See id. The key to these computations is that the combined limit of three years matches the length of the original term of supervision and the secondary limitation--two years in prisonmatches the statutory maximum allowable for revocation of supervised release when the underlying offense is a Class D felony. See id. In light of these benchmarks, it is apparent that the sentence imposed here exceeded the maximum sentence authorized by law. Specifically, upon revocation of supervised release, the imposition of a two-year prison term followed by a fresh three-year supervision term is unlawful.
48
Although O'Neil's sentence must be vacated, at least in part, the contours of the appropriate remedy remain tenebrous. On one hand, the government tells us that we should in effect lop off the last two years of the supervision term, thus bringing the sentence into statutory alignment. On the other hand, appellant urges us to vacate the whole sentence and remand for resentencing, thus permitting the district court, armed with our insights into the workings of the SRR provision, to rethink its options. While there is precedent for each of these alternatives, compare, e.g., United States v. Vasquez, 504 F.2d 555, 556 (5th Cir.1974) (per curiam) (holding that the excessive portion of a sentence may be trimmed and the remainder left intact) with, e.g., United States v. Berkowitz, 429 F.2d 921, 928 (1st Cir.1970) (vacating entire sentence and remanding for resentencing), we believe that the latter option is preferable in this case. We explain briefly.
49
Although subject to constitutional constraints, statutory limitations, and, now, the guidelines, sentencing is, by and large, within the province of the district court. Sentences usually contain a variety of components, e.g., an incarcerative component, a monetary component (say, a fine or cost-of-confinement order), and a non-detentive, non-monetary component (say, supervised release). These components often interrelate. Where an appellate court unties the bundle and decides that one component must be reconfigured, it may often be better practice to enlist the district court to retrofit the package. So it is here. We think that the district court, not this court, is best equipped to gauge what the overall sentence should be. See generally United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.) (en banc) (discussing resentencing in multiple-count case after determination that the Double Jeopardy Clause barred imposition of separate sentence on one of two counts of conviction), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989).
VI. CONCLUSION
50
We need go no further. We hold that the SRR provision, 18 U.S.C. Sec. 3583(e)(3), permits a district court, upon revocation of a term of supervised release, to impose a prison sentence or a sentence combining incarceration with a further term of supervised release, so long as (1) the incarcerative portion of the sentence does not exceed the time limit specified in the SRR provision itself, and (2) the combined length of the new prison sentence cum supervision term does not exceed the duration of the original term of supervised release. Since the district court overstepped these boundaries, we vacate appellant's sentence and remand for resentencing.
51
It is so ordered.
*
Of the District of New Hampshire, sitting by designation
1
On the majority's reading, the statutory limit in a given case is the lesser of (i) the length of the original term of supervision, or (ii) the numerical limit designated by the final clause of the SRR provision vis-a-vis each specified class of offense
2
On this reading of the SRR provision, there are two operative limits in any given case. First, the combined length of all post-revocation impositions (incarcerative and supervisory) may not exceed the length of the original term of supervision. Second, the incarcerative portion of the post-revocation sentence may not exceed the numerical limit designated by the SRR provision's final clause for the class of offense in question. It will be noted that, on this reading, the concluding clause of the SRR provision places an absolute ceiling on the time a person may serve in prison following revocation of a term of supervised release and thereby ensures that the criminal justice system cannot trap an offender in its web forever. This point adequately answers those who assert that construing the SRR provision broadly sets the stage for a never-ending cycle of revocation, resentencing to prison plus supervision, and revocation again, see McGee, 981 F.2d at 275
3
This intuition was vindicated by Congress and the Sentencing Commission when, effective November 1, 1991, the phrase "other than imprisonment" was changed to read "below the applicable guideline range." See U.S.S.G.App. C, Amend. 386 (Nov. 1991)
4
The fundamental goals of the Sentencing Reform Act are commonly thought to include uniformity, honesty, and proportionality. See United States v. Williams, 891 F.2d 962, 963-64 (1st Cir.1989); see also U.S.S.G. Ch. 1, Pt. A, intro. comment., at 2 (Nov. 1992)
5
The transition from special parole to supervised release was grotesquely complicated. Most existing provisions for non-detentive monitoring were repealed in 1984 as part of the Sentencing Reform Act, but the repeal did not take effect until November 1, 1987. However, the special parole provision, 21 U.S.C. Sec. 841(b)(1)(A), was repealed outright. Thus, from October 12, 1984 through October 27, 1986, neither special parole nor any substitute for it was in force. Apparently desiring to eliminate this hiatus, Congress amended the law to insert supervised release in lieu of special parole for the interval from October 27, 1986 to November 1, 1987. Congress accomplished this feat by amending 21 U.S.C. Sec. 841(b) (under which no provision is made for revocation). Subsequent to November 1, 1987, supervised release has been controlled by the provisions of the Sentencing Reform Act. See generally Gozlon-Peretz, 498 U.S. at 395-403, 111 S.Ct. at 844-46 (explicating historical development)
6
We consider it significant that no court, on either side of this debate, suggested that the statute's use of the word "revoke" might require a ban on the reimposition of a non-detentive term in sentencing defendants who had violated probation. Instead, the debate hinged on the word "sentence"--specifically, on whether probation could be conceived as a kind of "sentence."
7
Even if Congress intended to preclude reimposition of probation following revocation of a term of probation, that intention has no implications for supervised release. Under the Sentencing Reform Act, a term of probation may not be imposed when a defendant is sentenced to imprisonment. See 18 U.S.C. Sec. 3553(a)(3). Since a "combined" sentence is prohibited ab initio, it would make little sense to allow a combined form of sentencing upon revocation of probation
8
For what, if any, relevance it may have, the Sentencing Commission also favors a clarifying amendment. See U.S.S.G. Sec. 7B1.3(g)(2) (Nov. 1992) (policy statement reading statute to allow reimposition of supervision); id. at Sec. 7B1.3, comment. (n. 3) (advocating passage of clarifying amendment)
9
Senators Thurmond and Biden introduced the omnibus crime bill containing the provisions that became the Sentencing Reform Act. Senator Kennedy submitted a freestanding sentencing bill, containing nearly identical provisions, at approximately the same time. See Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 Wake Forest L.Rev. 223, 261 (1993)
10
In the process, we have considered--and rejected--the notion that the rule of lenity, a background principle that properly comes into play when, at the end of a thorough inquiry, the meaning of a criminal statute remains obscure, see Chapman, 500 U.S. at ----, 111 S.Ct. at 1926, might be of help here in discerning congressional intent. See, e.g., Koehler, 973 F.2d at 135 (arguing that the rule of lenity cuts in favor of a narrow construction of the SRR provision). The problem lies in determining whose ox may be gored. Depending on the facts of any particular defendant's situation, a generous reading of the SRR provision can produce either a harsher or a more lenient result than a cramped reading will produce. Thus, we regard the interpretive struggle over the SRR provision as lenity-neutral
11
We are aware that the Sentencing Commission's policy statement contemplates that the new term of imprisonment will be "less than" the maximum term of imprisonment imposable upon revocation for each class of offense, U.S.S.G. Sec. 7B1.3(g)(2) p.s., but we use round numbers for simplicity's sake. Moreover, although a policy statement ordinarily "is an authoritative guide to the meaning of the applicable guideline," Williams v. United States, --- U.S. ----, ----, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992), the policy statements of Chapter 7 are unaccompanied by guidelines, and are prefaced by a special discussion making manifest their tentative nature, see U.S.S.G. Ch. 7, Pt. A, intro. comment. Hence, we today join six other circuits in recognizing Chapter 7 policy statements as advisory rather than mandatory. See United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992); United States v. Bermudez, 974 F.2d 12, 14 (2d Cir.1992); United States v. Cohen, 965 F.2d 58, 59-61 (6th Cir.1992); United States v. Lee, 957 F.2d 770, 773 (10th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991); United States v. Oliver, 931 F.2d 463, 465 (8th Cir.1991). On remand, the lower court must consider, but need not necessarily follow, the Sentencing Commission's recommendations regarding post-revocation sentencing
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437 F.3d 902
UNITED STATES of America, Plaintiff-Appellee,v.John Lanny LYNCH, Defendant-Appellant.
No. 02-30216.
United States Court of Appeals, Ninth Circuit.
Submitted February 3, 2005.*
Filed February 10, 2006.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Judy Clarke and Roger J. Peven, Federal Defenders of Eastern Washington and Idaho, Spokane, WA, for the defendant-appellant.
John A. Drennan, Department of Justice, Washington, DC, and Bernard F. Hubley, Assistant United States Attorney, Helena, Montana, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Montana; Donald M. Molloy, District Judge, Presiding. D.C. No. CR-99-18-M-DWM.
Before MARY M. SCHROEDER, Chief Judge, and DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER, ANDREW J. KLEINFELD, SIDNEY R. THOMAS, BARRY G. SILVERMAN, KIM McLANE WARDLAW, W. FLETCHER, RAYMOND C. FISHER, JOHNNIE B. RAWLINSON, and RICHARD R. CLIFTON, Circuit Judges.
PER CURIAM.
1
This appeal arises out of John Lanny Lynch's conviction and twenty-year sentence for violation of the Hobbs Act, 18 U.S.C. § 1951, and his conviction and five-year consecutive sentence for using or carrying a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). In United States v. Lynch, 282 F.3d 1049 (9th Cir. 2002) (Lynch I), we held that crimes directed toward an individual violate the Hobbs Act only if "the acts deplete the assets of an individual who is directly and customarily engaged in interstate commerce; if the acts cause or create the likelihood that the individual will deplete the assets of an entity engaged in interstate commerce; or if the number of individuals victimized or the sum at stake is so large that there will be some cumulative effect on interstate commerce." Id. at 1053 (quoting United States v. Collins, 40 F.3d 95, 100 (5th Cir. 1994)). We remanded with instructions to the district court to apply the Collins test, which it found that the government had met. United States v. Lynch, 207 F.Supp.2d 1133, 1135 (D.Mont. 2002) (Lynch II). When Lynch appealed again, however, we held that the Collins test "is utilized where the defendant's conduct had no direct effect upon interstate commerce, but only an indirect effect." United States v. Lynch, 367 F.3d 1148, 1154 (9th Cir. 2004) (Lynch III). In doing so we drew upon our earlier decision in United States v. Atcheson, 94 F.3d 1237 (9th Cir. 1996), which distinguished between crimes that have direct and indirect effects on interstate commerce. We ordered rehearing en banc to resolve this tension in our law.
2
We conclude that the Collins test is not the exclusive means of establishing Hobbs Act jurisdiction, but that jurisdiction may be shown for a Hobbs Act prosecution of an individual by showing either that the crime had a direct effect or an indirect effect on interstate commerce. Otherwise, we adopt the panel opinion in Lynch III.
I1
3
Lynch, the victim Carreiro, and a third participant, Larry Pizzichiello, were all residents of Las Vegas, Nevada. Carreiro and Pizzichiello were drawing workers' compensation benefits and, while all three claimed to be unemployed, they were in fact deeply involved in illegal drug trafficking: the procurement, distribution, and sale of methamphetamine. Originally, Pizzichiello purchased drugs and gave them to Lynch to sell. Thereafter, Carreiro stepped into the role of the purchaser of drugs given to Lynch to sell. Their business arrangement required purchaser and seller to split the profits from the drug sales. A falling out occurred when Lynch failed to pay Carreiro under this arrangement and at the time of the Montana murder, Lynch was substantially indebted to Carreiro.
4
In 1995, Lynch left Las Vegas, taking with him the firearm subsequently used in Carreiro's murder. After arriving at his father's cabin in northwest Montana, and knowing that Carreiro would shortly be receiving a settlement from his workers' compensation claim, Lynch called Pizzichiello and Carreiro in Las Vegas, Nevada and asked about Carreiro's workers' compensation money. Intending to lure Carreiro to Montana, Lynch asked Pizzichiello and Carreiro to come to Montana from Las Vegas to pick him up after Carreiro received his money and to bring along a pound of methamphetamine. Lynch intended to rob Carreiro of these drugs and his money once Carreiro arrived in Montana.
5
Carreiro took the bait. After receiving his workers' compensation check and depositing a portion of it in the Las Vegas Federal Credit Union, he and Pizzichiello traveled in Carreiro's truck from Las Vegas to Lynch's father's residence in rural Montana, bringing with them a quantity of methamphetamine and marijuana and a pager Carreiro used in the drug business.
6
A prosecution witness at Lynch's trial, Pizzichiello testified that the day after he and Carreiro arrived at Lynch's father's cabin in Montana, Lynch shot and killed Carreiro.2 Lynch took Carreiro's personal effects from his wallet including his debit card from the Las Vegas Federal Credit Union. Lynch also took other personal effects from Carreiro's body including his shoes and the keys to Carreiro's pick-up truck. To cover up the robbery-murder, Lynch proceeded to burn Carreiro's body in a metal barrel.
7
Before leaving Montana, Lynch and Pizzichiello withdrew money from Carreiro's Las Vegas Federal Credit Union account by using Carreiro's debit card at a Montana ATM. The pair then drove Carreiro's truck from Montana back to Las Vegas, traveling from Montana through Wyoming and into Utah. On the trip, Lynch and Pizzichiello used Carreiro's debit card to withdraw money electronically from Carreiro's credit union account. Each of these withdrawals required electronic contact from the place of withdrawals in Montana, Utah, and Nevada with computer servers in Nevada and Kansas through the use of interstate telephone lines. While driving through Utah, Carreiro's truck broke down and Lynch and Pizzichiello rented a vehicle to haul the truck back into Las Vegas. Upon their return, Lynch and Pizzichiello used Carreiro's debit card one last time to withdraw the remaining balance in the credit union account. Lynch then repainted Carreiro's truck, which, at the time of his arrest, was in Lynch's possession.
8
When Carreiro failed to return to Las Vegas, Carreiro's family and friends became concerned and contacted the Las Vegas Police Department. An investigation ensued. The assigned detectives interviewed Lynch and Pizzichiello and determined that their statements about Carreiro were inconsistent. Thereafter, the Las Vegas detectives, through the Clark County District Attorney's office, sought and obtained a court order authorizing the interception of Lynch and Pizzichiello's conversations along with the installation of a pen register and trap and trace device. The wiretaps produced recorded conversations between Lynch and Pizzichiello that established their complicity in the murder and robbery of Carreiro. The detectives also established the use of Carreiro's debit card by Lynch and Pizzichiello in Montana, Utah, and Nevada. In May 1996, the burned remains of Carreiro's body were found near the cabin of Lynch's father in Montana.
9
Lynch and Pizzichiello were charged and separately convicted for Carreiro's murder in a Montana state court. Both defendants were sentenced to life imprisonment. Those convictions were reversed by the Montana Supreme Court in 1999 by reason of a Montana rule that flatly prohibits the use at trial of non-consensual electronic surveillance of oral and wire communications, even if properly authorized by a state such as Nevada that allows such surveillance pursuant to a valid court order. State v. Lynch, 292 Mont. 144, 969 P.2d 920 (1998); State v. Pizzichiello, 294 Mont. 436, 983 P.2d 888 (1999). The Montana court ordered new trials.
10
Rather than retrying the defendants in Montana state court without the suppressed evidence, the Montana authorities apparently referred the matter to the United States Attorney for the District of Montana who, in 1999, obtained indictments of Lynch and Pizzichiello, charging them with (1) violation of the Hobbs Act, 18 U.S.C. § 1951(a), based upon the robbery of Carreiro and (2) the use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). Pizzichiello entered into a plea agreement and pled guilty to the Hobbs Act robbery charge. Sentenced to fifteen years imprisonment, he became a principal witness against Lynch in his trial. Lynch was found guilty after a jury trial of the Hobbs Act offense (Count I) and also of using a firearm in the commission of that offense (Count II). He was sentenced to twenty years on Count I and a consecutive term of five years on Count II.3
11
This is Lynch's second appeal from his federal convictions and sentences. In his first appeal, Lynch raised the same issues. Lynch I did not address those issues, but adopted the test set forth in United States v. Collins, 40 F.3d 95 (5th Cir. 1994), for determining when the Hobbs Act's federal jurisdictional "hook" is satisfied. The Collins/Lynch I test, as discussed in more detail below, is utilized where the defendant's conduct had no direct effect upon interstate commerce, but only an indirect effect. The panel then remanded the matter to the district court for further findings as to the indirect effect of Lynch's activities on interstate commerce. Lynch I did not consider the adequacy of the evidence of the direct effect on interstate commerce of Lynch's activities, nor did it address any of the other issues now before this court. The district court's subsequent findings are found in Lynch II. Lynch appeals again, raising the very same issues that were before, but not decided by, the first panel, as well as a new argument that he should be retried before a jury instructed on the Collins test.
II
12
A. The Sufficiency of the Evidence of Interstate Nexus
13
The Hobbs Act, 18 U.S.C. § 1951(a), states that:
14
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion, or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
15
(Emphasis supplied).
16
In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Supreme Court recognized the very broad scope of the Hobbs Act. "That Act speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery, or physical violence. The Act outlaws such interference `in any way or degree.'" Id. at 215, 80 S.Ct. 270 (internal citations omitted) (emphasis supplied).
17
The Supreme Court further emphasized the broad reach of the "affects commerce" language of the Act in United States v. Culbert, 435 U.S. 371, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978), stating:
18
[T]he statutory language sweeps within it all persons who have "in any way or degree ... affect[ed] commerce ... by robbery or extortion." These words do not lend themselves to restrictive interpretation; as we have recognized, they "manifest ... a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence."
19
Id. at 373, 98 S.Ct. 1112 (internal citations omitted) (second alteration in original).
20
The Court in Culbert also dealt with the suggestion that the Hobbs Act constituted an interference with state's rights in such matters:
21
With regard to the concern about disturbing the federal-state balance, moreover, there is no question that Congress intended to define as a federal crime conduct that it knew was punishable under state law.... Congress apparently believed, however, that the States had not been effectively prosecuting robbery and extortion affecting interstate commerce and that the Federal Government had an obligation to do so.
22
Id. at 379, 98 S.Ct. 1112 (citing to the Congressional Record).
23
The Hobbs Act defines commerce as, inter alia, "all commerce between any point in a State ... and any point outside thereof; [and] all commerce between points within the same State through any place outside such State." 18 U.S.C. § 1951(b)(3). To establish the interstate commerce element of a Hobbs Act charge, the government need only establish that a defendant's acts had a de minimis effect on interstate commerce. United States v. Atcheson, 94 F.3d 1237, 1241 (9th Cir. 1996); United States v. Phillips, 577 F.2d 495, 501 (9th Cir. 1978). The decision of the United States Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), holding unconstitutional the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A) (1994), which outlawed the possession of guns in local school zones, did not require a change in the de minimis standard. Atcheson, 94 F.3d at 1242. The interstate nexus requirement is satisfied "by proof of a probable or potential impact" on interstate commerce. United States v. Huynh, 60 F.3d 1386, 1389 (9th Cir. 1995) (internal quotation marks omitted). The government need not show that a defendant's acts actually affected interstate commerce. Id. at 1389-90.
24
As Atcheson pointed out: "This court has consistently upheld convictions under the Hobbs Act":
25
even where the connection to interstate commerce was slight. See, e.g., [United States v. Pascucci, 943 F.2d 1032, 1035 (9th Cir. 1991)] (defendant threatened to deliver embarrassing audio tapes to his victim's employer, a corporation engaged in interstate commerce); United States v. Hanigan, 681 F.2d 1127, 1130-31 (9th Cir. 1982) (defendant robbed three undocumented alien farm workers, affecting the movement of labor across borders); United States v. Phillips, 577 F.2d 495, 501 (9th Cir. 1978) (defendant's extortion "threatened the depletion of resources from a business engaged in interstate commerce").
26
94 F.3d at 1243 (citing Huynh, 60 F.3d at 1389).
27
Atcheson is quite similar to our facts here. There the defendants traveled from Salt Lake City, Utah, to Pocatello, Idaho, took hostages, stole their credit and ATM cards, and unsuccessfully attempted to obtain money from ATM machines. All of these activities took place in Idaho. In addition, the defendants took jewelry which had been taken from one of the hostages across state lines. Finding these activities affected interstate commerce, the Atcheson court stated:
28
The evidence before the district court establishes that McGrath and Atcheson attempted to obtain, or obtained, out-of-state credit or ATM cards from each of the victims except Deanna Rosen. These acts created a sufficient potential effect on interstate commerce to support their convictions under the Hobbs Act. See United States v. Rushdan, 870 F.2d 1509, 1512 (9th Cir. 1989) (conspiracy to possess out-of-state bank cards illegally, and illicit possession of out-of-state bank cards, are offenses which affect interstate or foreign commerce for purposes of 18 U.S.C. § 1029(a)(3)). McGrath and Atcheson's placement of out-of-state phone calls to determine the victims' account balances and credit card limits created a further connection with interstate commerce. United States v. Lee, 818 F.2d 302, 305-06 (4th Cir. 1987) (interstate telephone call by a bank manager triggered by defendant's attempt to use credit card was sufficient to establish interstate commerce under 18 U.S.C. § 1029).
29
94 F.3d at 1243.
30
As noted above, in the prior appeal, the panel focused on the robbery of an individual and adopted the Fifth Circuit's Collins test. 282 F.3d at 1053. The Collins court, however, and various other circuits which have followed it, have recognized not only the distinction between the robbery of individuals and businesses, but also the distinction between direct and indirect effects on interstate commerce. As Collins stated:
31
Both direct and indirect effects on interstate commerce may violate section 1951(a). The government's "depletion of assets" theory falls into the indirect category. This theory [indirect] relies on a minimal adverse effect upon interstate commerce by a "depletion of the resources of the business which permits the reasonable inference that its operations are obstructed or delayed."
32
40 F.3d at 99 (emphases supplied). The Collins court then concluded that a strictly intrastate robbery "which caused only a speculative indirect effect on a business engaged in interstate commerce," without other direct or indirect effects or relationships with interstate commerce could not fulfill the effect on interstate commerce nexus required for a Hobbs Act conviction. Id. at 101; see also United States v. Hollis, 725 F.2d 377, 379 (6th Cir. 1984) (noting that "the possibility of an indirect effect need not be considered if the extortion had a direct effect on commerce") (emphases supplied).
33
The Eleventh Circuit has also adopted the Collins test where the only evidence is of an indirect effect on interstate commerce. See United States v. Diaz, 248 F.3d 1065, 1085 (11th Cir. 2001). Subsequent to that adoption, the court decided United States v. Carcione, 272 F.3d 1297 (11th Cir. 2001). The relevant issue in Carcione was the sufficiency of the evidence of an interstate nexus where the defendants traveled from Illinois to Florida to rob an elderly, non-business Florida resident, made interstate phone calls, and returned to Illinois with the robbery proceeds. In determining that such evidence was sufficient to establish a direct effect on interstate commerce, and rejecting the application of the Diaz (Collins) indirect tests, the court stated:
34
While this test is an effective barometer for measuring a defendant's action and their effect on interstate commerce, we have repeatedly held that "in determining whether there is a minimal effect on commerce, each case must be decided on its own facts." Likewise, the "words of the Hobbs Act `do not lend themselves to restrictive interpretation.'"
35
Id. at 1301 n. 6 (citations omitted).
36
In United States v. Marrero, 299 F.3d 653, 656 (7th Cir. 2002), cert. denied, 537 U.S. 1145, 123 S.Ct. 951, 154 L.Ed.2d 846 (2003), the court found sufficient interstate nexus where the defendants lured three drug dealers from Detroit to Chicago on the pretext of selling them cocaine and then robbed the drug dealers, even though the defendants did not have the cocaine to sell. Marrero held that the interstate commerce element was established:
37
The dealers' business was "in commerce" not only because it bought its merchandise (cocaine) from out of state but also because conducting the business involved crossing state lines when the dealers came to Chicago to try to buy drugs from the defendants.
38
Id.
39
With the foregoing guidance in mind, we have no hesitation in finding that the evidence in this case, construed as it must be in favor of the government, clearly established that Lynch's actions, accompanied by Pizzichiello, had a direct effect on interstate commerce:
40
1. Lynch, Pizzichiello, and Carreiro jointly participated in the illegal drug trafficking business in Las Vegas, Nevada, and their trip to Montana involved the interstate transportation of illegal drugs. See United States v. Rodriguez, 360 F.3d 949 (9th Cir. 2004).
41
2. Lynch traveled to Montana in a vehicle rented in Nevada.4
42
3. After his arrival in Montana, Lynch used interstate telephone lines to lure Carreiro from Nevada to Montana for the purpose of robbing him of money and drugs. See id. (distinguishing Lynch I because robbery of drug traffickers was akin to robbery of a business engaged in interstate commerce); Atcheson, 94 F.3d at 1243 (defendants' use of interstate telephone calls created connection with interstate commerce); see also Marrero, 299 F.3d at 656 (finding sufficient interstate nexus where defendants lured drug dealers across state lines on pretext).
43
4. Pizzichiello testified that Lynch killed Carreiro in Montana with a firearm that Lynch had transported from Las Vegas to Montana. Lynch returned to Las Vegas from Montana with the firearm.
44
5. After the robbery, Lynch and Pizzichiello used Carreiro's debit card in Montana, Utah, and Nevada to withdraw Carreiro's money from his Las Vegas Credit Union account. See Atcheson, 94 F.3d at 1243 (noting that obtaining and attempting to use out of state credit cards and ATM cards created a sufficient potential effect on interstate commerce).
45
6. The use of the debit card required the use of interstate communications from the source of the use, to Las Vegas, to Kansas, back to Las Vegas, and back to the place of withdrawal. See id.
46
7. Lynch and Pizzichiello traveled from Montana through Utah and back to Nevada in Carreiro's stolen truck.
47
8. On the return trip to Nevada from Montana, Lynch and Pizzichiello rented a U-Haul truck in Utah to transport Carreiro's disabled truck from Utah to Nevada.
48
Based on the foregoing, we conclude that there was sufficient evidence of a direct effect on interstate commerce to satisfy the Hobbs Act. We also determine that this conclusion is not barred by the law of the case doctrine, as the prior panel never reached a conclusion regarding the sufficiency of the evidence question that was presented to it in the prior appeal. See, e.g., United States v. Houser, 804 F.2d 565, 567 (9th Cir. 1986) (noting that law of the case generally precludes reconsideration of legal questions previously decided).5
49
Lynch also contends that since Lynch I adopted the Collins indirect effect on interstate commerce test, a new trial is required with instructions containing the Collins test. However, since we have determined that there was more than adequate evidence of direct effects on interstate commerce, a new trial as to any indirect effect under Collins is not required.
50
B. Constitutionality of 18 U.S.C. § 924(c)(1)(A)
51
In pertinent part, 18 U.S.C. § 924(c)(1)(A) provides that "any person who, during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm" shall be punished by incarceration for a term of five years in addition to the punishment provided for the crime of violence. Lynch was found by the jury to have so used a firearm and was sentenced to a consecutive five-year term.
52
Lynch's argument that § 924(c) is unconstitutional as beyond the scope of the Commerce Clause is, as he recognizes, foreclosed by United States v. Staples, 85 F.3d 461 (9th Cir. 1996), and United States v. Harris, 108 F.3d 1107 (9th Cir. 1997). This issue having been previously decided, a three-judge panel may not overrule a previous decision of this court, unless "the relevant court of last resort [has] undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable." Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc); see also Branch v. Tunnell, 14 F.3d 449, 456 (9th Cir. 1991), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). There has been no Supreme Court case undercutting Staples and Harris. Lynch's challenge is also without merit since the enhanced firearm sentence was imposed based on the Hobbs Act conviction with its interstate commerce finding by the jury.
C. The Nevada Court Wiretap Orders
53
Lynch filed pre-trial motions to suppress the fruits of the wiretaps conducted pursuant to Nevada state court orders. Lynch contended that there was no showing of necessity as required by 18 U.S.C. § 2518(1)(c),6 and there was neither probable cause nor sufficient need for the wiretap orders as required by § 2518(3).7
54
This court's review of a finding of probable cause is deferential. Whether other investigative procedures have been exhausted or why they reasonably appear to be unlikely to succeed if attempted, is reviewed de novo. However, the conclusion that the wiretap was necessary in each situation is reviewed for abuse of discretion. United States v. Brown, 761 F.2d 1272, 1275 (9th Cir. 1985). A district court's denial of a motion to suppress evidence is reviewed de novo and underlying factual issues are reviewed for clear error. United States v. Summers, 268 F.3d 683, 686 (9th Cir. 2001).
55
The district court held a full evidentiary hearing on Lynch's motion to suppress the wiretaps. That hearing and the affidavits submitted in support of the wiretap orders established that both Pizzichiello and Lynch had made false and inconsistent statements to the detectives concerning the disappearance of Carreiro. The affidavits and testimony established that normal investigative procedures and interviews had been employed in good faith and that further investigation or interviews of Pizzichiello and Lynch would not likely succeed in obtaining evidence concerning Carreiro's disappearance. We conclude that the motion to suppress the wiretaps was properly denied. See United States v. Canales Gomez, 358 F.3d 1221, 1226-27 (9th Cir. 2004).
56
D. Evidence Of Prior Pizzichiello Misconduct
57
A district court's ruling precluding testimony is an evidentiary ruling that is reviewed for abuse of discretion. United States v. Ravel, 930 F.2d 721, 726 (9th Cir. 1991). If the ruling precludes the presentation of a defense, review is de novo. United States v. Ross, 206 F.3d 896, 898-99 (9th Cir. 2000).
58
One week prior to the commencement of the trial, the government filed its Fourth Motion in Limine to preclude Lynch from cross-examining Pizzichiello as to his alleged prior acts of violence and threats, citing Federal Rule of Evidence 404(a), which prohibits evidence of a person's character or trait of character for the purpose of proving action in conformity therewith on a subsequent occasion. Lynch responded to that motion contending, inter alia, that evidence of Pizzichiello's prior violent acts or threats of violence was admissible and relevant "(2) to impeach credibility to the extent he is portrayed as a passive follower acting under the influence of John Lynch; and (3) to the extent these acts were known to John Lynch, to establish his lack of intent to rob and to assist in explaining his actions in covering up the crime." (emphases supplied).
59
Federal Rule of Evidence 404(a), concerning character evidence states, in pertinent part, that:
60
Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
61
(1) Character of Accused ...
62
(2) Character of Alleged Victim — Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same ...
63
(3) Character of Witness — Evidence of the character of a witness, as provided in rules 607, 608 and 609.
64
Lynch did not then contend, as he now does, that the testimony of other witnesses should be admitted to corroborate his trial testimony that the reason he accompanied Pizzichiello from Montana back to Nevada and did not go to the police at any time was because he was afraid of Pizzichiello. Nor did Lynch cite to the district court the case he now relies on, United States v. James, 169 F.3d 1210 (9th Cir. 1999) (en banc), a case which we find, infra, is distinguishable from this case.
65
The district court granted the government's motion and precluded evidence "that pertains to specific instances of threats made by any witness, control issues, affiliation with organizations, dangerous character of somebody who's a witness," stating that this ruling was based on Rule 404(a) and (b), 405(b), 607, 608, and 609, which preclude prior acts of misconduct and violence "for the purpose of proving action in conformity therewith on a particular occasion." Fed.R.Evid. 404(a). The district court also performed the balancing analysis provided for under Rule 403. Neither in that ruling nor at trial did the court preclude Lynch from testifying that the reason that he stayed with Pizzichiello after Carreiro's murder and never contacted the police was his fear of Pizzichiello.
66
Lynch was further allowed to testify that Pizzichiello "always carried a gun"; that his fear was enhanced "because I just saw him kill somebody"; that "if anything I would have done would have triggered him to react, he would have shot me, I had no doubt"; and that "Larry wasn't going to let me leave him anyway." The district court did sustain an objection to Lynch's testimony that "if somebody were to come there, they would have got shot," and also sustained an objection to Lynch's testimony that "Larry's a dangerous guy." While those rulings may have been inconsistent and even erroneous, they were not prejudicial in that Lynch was allowed to fully express his fear of Pizzichiello to the jury, including further statements that Pizzichiello was "threatening me and threatening to kill me," and that he went with Pizzichiello after the shooting because he was afraid of him.
67
Lynch primarily relies upon United States v. James, 169 F.3d 1210 (9th Cir. 1999) (en banc), to support his argument that he should have been entitled to introduce evidence of acts of misconduct and violence by Pizzichiello, unknown to Lynch at the time of the murder, that took place prior to the shooting of Carreiro. Lynch suggests that such evidence from other witnesses would have corroborated Lynch's fear of Pizzichiello. However, Lynch's testimony was that his fears arose from Pizzichiello's shooting of Carreiro. None of the alleged corroborating witnesses had knowledge of those events.
68
The defendant in James was charged with aiding and abetting the shooting death of David Ogden by furnishing the gun with which her daughter shot and killed Ogden. Her defense was one of self-defense based upon Ogden's prior violence that she had seen and had visited upon her, as well as atrocious crimes about which Ogden had bragged to her. She offered corroborating evidence that these atrocities had actually occurred, although she was unaware of that corroboration at the time of the murder. Id. at 1214. The trial court rejected the proffered evidence, holding that the only relevant evidence of Ogden's violence was that known to the defendant at the time of Ogden's killing.
69
The Ninth Circuit in James found that the trial court's ruling was too narrow, holding:
70
It was absolutely necessary to her defense for the jury to believe (1) that she wasn't making up the stories and (2) that, when she heard them, she heard them from the man who had actually done these terrible things and who was not just spinning tales. The records proved that he had done them so that the stories of his wild exploits would have had the ring of truth to her, and the records proved that what Ernestine James testified to had actually taken place. The records corroborated her testimony, and the records corroborated her reason to fear.
71
Id. at 1214.
72
Clearly, the character of the victim in James was relevant to the defendant's defense of self-defense, and so was admissible under Rule 404(a)(2) — which pertains only to evidence of the character of the victim. In the instant case, the character of the victim Carreiro was not in issue and Lynch's defense to the Hobbs Act charge was not one of self-defense. Evidence of Lynch's knowledge of Pizzichiello's violence was offered and admitted for the limited purpose of showing why Lynch stayed with him after the killing of Carreiro. Prior acts of violence or alleged "mob" connections by Pizzichiello, unknown to Lynch, only showed possible propensity on the part of Pizzichiello, rather than Lynch, to kill Carreiro. Whether Lynch or Pizzichiello killed Carreiro was not an element of the Hobbs Act charge or a defense thereto.
73
The district court did not err in concluding that the purpose of the proffered testimony was to show a character of violence and a propensity on the part of Pizzichiello to kill another person. Such evidence is precluded under Rule 404. In addition, the district court balanced the probative value of the evidence as opposed to its prejudicial effect under Rule 403.
74
While "it may well be that courts should indulge the accused when the defendant seeks to offer prior crimes evidence of a third person for an issue pertinent to the defense other than propensity," United States v. McCourt, 925 F.2d 1229, 1236 (9th Cir. 1991), and courts should allow full and complete inquiry as to the background of a co-defendant testifying against another defendant, in this case the district court reasonably concluded that the precluded evidence was strictly propensity evidence as to Pizzichiello.
E. The 18 U.S.C. § 924(c) Conviction
75
Lynch contends it was error to permit the jury to convict him of Count II for using or carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) on the theory that he was either a principal or an aider and abettor. He contends that the government proceeded at trial solely on the theory that Lynch acted alone in using the gun, rather than that he aided and abetted Pizzichiello in the murder of Carreiro. Lynch did not challenge the aiding and abetting instruction until his post-trial Rule 29 motion based upon the alleged insufficiency of the evidence. There is sufficient evidence to support a conviction if, 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. Daychild, 357 F.3d 1082, 1096 n. 22 (9th Cir. 2004).
76
In this case, the jury could have reasonably found that it was Lynch who, as a principal, used the firearm in the killing of Carreiro. The jury could have also concluded that Lynch aided and abetted the robbery of Carreiro with the use of a firearm. "[A] defendant can be convicted of aiding and abetting even if a principal is never identified or convicted," so long as the evidence established that the criminal offense was committed by someone. United States v. Powell, 806 F.2d 1421, 1424 (9th Cir. 1986). Clearly, in this case, the evidence was undisputed that either Pizzichiello or Lynch used a firearm in the murder and robbery of Carreiro. Lynch's challenge to the lack of aiding and abetting evidence is without merit.
77
F. Cross Reference To First Degree Murder In Sentencing
78
The district court imposed a twenty-year sentence on Lynch for the Hobbs Act offense (Count I). In a special interrogatory the jury determined that the government had failed to prove beyond a reasonable doubt that Lynch had murdered Carreiro. However, the district court found by clear and convincing evidence that Lynch had participated in the murder and therefore cross-referenced United States Sentencing Guidelines Manual (U.S.S.G.) § 2A1.1, the first-degree murder guideline, as required by U.S.S.G. § 2B3.1(c)(v).
79
The Supreme Court has held that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge. United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). In this case, Lynch was not found innocent of a charge of murdering Carreiro. In response to the special interrogatory, the jury merely found that they did not unanimously agree that the government had established Lynch's murder of Carreiro by proof beyond a reasonable doubt. It was therefore not error for the court to make its own finding in sentencing Lynch.
80
In this circuit, when a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction, the government must prove such a factor by clear and convincing evidence. United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999). Since the use of the enhancement in this case increased the sentencing range by 105 to 203 months, the clear and convincing standard applied. There was sufficient evidence for such a finding by the district court and the defendant does not challenge the sufficiency of that evidence for the clear and convincing finding. There was no error in the court's use of the first degree murder cross reference.
III
81
The government may establish jurisdiction for prosecution under the Hobbs Act for a crime directed toward an individual by showing either that the crime had a direct effect or an indirect effect on interstate commerce. Any statement to the contrary in Lynch I is overruled.
82
The evidence clearly established a direct effect on interstate commerce. As previously determined by this court, 18 U.S.C. § 924(c)(1)(A) is not unconstitutional as being beyond the scope of Congress' power under the Commerce Clause. There was probable cause for and an adequate showing of necessity for the issuance of the Clark County, Nevada wiretaps. A new trial utilizing the indirect analysis as to the effect on interstate commerce is not required since ample evidence of a direct effect existed. The evidentiary rulings of the district court precluding propensity evidence of the character of Pizzichiello were not erroneous. The aiding and abetting instruction on the use or carrying of a firearm was not in error and sufficient evidence supported the defendant's conviction on Count II. The district court properly cross referenced the murder Guideline in determining the defendant's Guideline offense level.
83
AFFIRMED.
Notes:
*
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2)
1
We view the evidence given at Lynch's trial in the light most favorable to the governmentUnited States v. Daychild, 357 F.3d 1082, 1096 (9th Cir. 2004).
2
Lynch took the stand in his own defense and testified that it was Pizzichiello who did the shooting; it was not disputed that both Lynch and Pizzichiello were present when Carreiro was killed
3
A life sentence was not imposed because the jury, as it stated in response to a special interrogatory, was not convinced beyond a reasonable doubt that Lynch was the actual triggerman in Carreiro's murder
4
In Lynch's opening brief, he cites the case ofUnited States v. Geiger, 263 F.3d 1034 (9th Cir. 2001), and states that the holding of that case was that the "fact that truck was subject to an out-of-state lease and insured by an out-of-state insurance company insufficient to establish jurisdiction under 18 U.S.C. § 844(i)." The holding of the Geiger court was the exact opposite. That court held that the out-of-state truck leasing and insurance was sufficient to establish an effect on interstate commerce. 263 F.3d at 1037-38. The Geiger case supports our conclusion that the numerous interstate acts of Lynch and his co-defendant affected interstate commerce.
5
In any event, the application of the law of the case doctrine is discretionary, not mandatoryHouser, 804 F.2d at 567. Although adopting the Collins test with respect to robbery of individuals, we do not read Lynch I to foreclose consideration of other direct evidence of an effect on interstate commerce. If we were to read it in such a way, then, having considered all of the evidence in this case, we would have to conclude that the prior panel clearly erred in so limiting its consideration and that application of the law of the case doctrine would work a manifest injustice. See Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir. 1995) (explaining circumstances in which court will not apply law of the case doctrine).
6
Section 2518(1)(c) requires that any application for a judicial order authorizing a wiretap include, inter alia, "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous."
7
Section 2518(3) allows entry of a wiretap order if the issuing judge determines:
(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in [18 U.S.C. § 2516];
(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(d) except as provided in [§ 2518(11)], there is probable cause for belief that the facilities from which, or the place where, the wire, oral or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.
KLEINFELD, Circuit Judge, concurring:
84
I concur in the result. I would not, however, reach most of the questions the per curiam opinion attempts to resolve because, on the facts of this case, the opinion is merely advisory. This case plainly involves a substantial and direct effect on interstate commerce. A person in Montana engaged in a commercial transaction with a person in Nevada, causing contraband to be brought to Montana. There, the Montana man killed the Nevada man in order to steal the merchandise that had been transported. The doctrine of constitutional avoidance1 counsels that we should not attempt to clarify abstruse and esoteric questions of constitutional law in cases where they will not affect the decision.
85
Our opinion is driven by a desire to resolve the tension between our decisions in Lynch I2 and Lynch III3 as explained in Judge Berzon's concurrence in Lynch III.4 We can wait until the inconsistencies matter, and should. This case is squarely within Congress' power to regulate interstate commerce under any interpretation. Federal courts should not stretch beyond the decisions they need to make in the futile hope of cleaning all of the cobwebs out of constitutional law.
Notes:
1
See, e.g., United States v. Rivera-Guerrero, 377 F.3d 1064, 1069 (9th Cir. 2004).
2
United States v. Lynch, 282 F.3d 1049 (9th Cir. 2002) (Lynch I).
3
United States v. Lynch, 367 F.3d 1148 (9th Cir. 2004) (Lynch III).
4
Lynch III, 367 F.3d at 1163-64.
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280 Kan. 656 (2005)
In the Matter of AMY R. MITCHELL, Respondent.
No. 94,803.
Supreme Court of Kansas.
Opinion filed December 9, 2005.
Frank D. Diehl, assistant disciplinary administrator, argued the cause, and Stanton A. Hazlett, disciplinary administrator, was with him on the formal complaint for petitioner.
John J. Ambrosio, of Topeka, argued the cause for respondent, and Amy R. Mitchell, respondent, argued the cause pro se.
Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Amy R. Mitchell, a Kansas attorney whose last registration address with the Clerk of the Appellate Courts of Kansas is Olathe, Kansas. Mitchell was admitted to the practice of law in the state of Kansas in 1999.
The alleged misconduct arises from four complaints, DA8682, DA8683, DA8699, and DA9047, which regard the respondent's representation of clients Shawn Brown, Kelly Anderson, Daniel Markowitz, and Jan Godfrey, respectively.
On October 9, 2003, the Disciplinary Administrator filed a formal complaint. The respondent answered, denying several of the factual allegations. On June 25, 2004, the Disciplinary Administrator filed a second formal complaint. The respondent again denied several of the factual allegations.
A panel of the Kansas Board for Discipline of Attorneys conducted a formal hearing on September 30, 2004. At the hearing, the respondent stipulated to violations of KRPC 1.1 (2004 Kan. Ct. R. Annot. 342) (competence); KRPC 1.3 (2004 Kan. Ct. R. Annot. 354) (diligence); KRPC 1.4 (2004 Kan. Ct. R. Annot. 367) (communication); KRPC 8.1 (2004 Kan. Ct. R. Annot. 480) (bar admission and disciplinary matters); KRPC 8.4(c) (2004 Kan. Ct. R. Annot. 485) (misconduct); and Kansas Supreme Court Rule *657 207(b) (2004 Kan. Ct. R. Annot. 261) (duty to provide information). The panel later prepared a report containing its findings of fact, conclusions of law, and recommendations for discipline. The respondent filed no exceptions to the hearing panel's report. The underlying facts found by the panel concerning these violations are summarized as follows:
FINDINGS OF FACT
Complaint of Shawn Brown (DA8682)
On approximately November 9, 1999, Shawn Brown retained the respondent to represent him regarding a "slip and fall" accident which occurred at a Hardee's Restaurant on July 28, 1999. On November 29, 1999, Mr. Brown and the respondent entered into a contingent fee contract.
On July 27, 2001, the last day of the statute of limitations, the respondent filed suit on behalf of Mr. Brown. The respondent had not previously handled a "slip and fall" case and did not possess the requisite knowledge necessary to handle such a case.
After the respondent filed suit, she failed to even attempt to achieve service of process on the defendant. She took no action on Mr. Brown's behalf following the filing of the law suit.
On October 7, 2001, the respondent went on maternity leave.
On October 25, 2001, the court reviewed the lawsuit. The respondent did not appear in behalf of Mr. Brown. No one from her firm, Speer, Holliday & Veatch, appeared in behalf of Mr. Brown. The court continued the case to November 19, 2001. At that time, again, no one appeared in behalf of Mr. Brown. Because the respondent failed to achieve service and because no one appeared in behalf of Mr. Brown, on November 19, 2001, the court dismissed Mr. Brown's case.
In November 2001, while on maternity leave, the respondent left the employment of Speer, Holliday & Veatch.
The respondent failed to communicate with Mr. Brown regarding the status of his case. Although Mr. Brown learned on his own that the case had been dismissed, the respondent never informed Mr. Brown of that fact.
*658 According to Mr. Brown, he owed $15,000 in outstanding medical bills due to his injury from his fall at Hardee's.
In September 2002, Mr. Brown filed a complaint with the Disciplinary Administrator's office. Thereafter, on October 22, 2002, the respondent filed a written response to the initial complaint.
Complaint of Kelly Anderson (DA 8683)
On July 20, 2002, Kelly R. Anderson and her husband, Cory S. Anderson, met with the respondent regarding a potential stepparent adoption proceeding regarding Mrs. Anderson's 13-year-old daughter. Thereafter, on August 1, 2002, Mr. and Mrs. Anderson retained the respondent to file a stepparent adoption in behalf of Mr. Anderson. The respondent explained after the petition was filed and notice was published in the newspaper, an adoption hearing would be held. She quoted Mr. and Mrs. Anderson a fee of $750 for an uncontested adoption. Mr. and Mrs. Anderson paid the respondent $750 for attorney fees.
On August 2, 2002, the respondent filed a Petition for Adoption in the District Court of Johnson County, Kansas, and scheduled a hearing for September 12, 2002, at 9:30 a.m.
In anticipation of the adoption hearing, the Anderson family planned an adoption party to celebrate the adoption by Mr. Anderson.
In order to prepare for the adoption hearing, Mrs. Anderson called the respondent's office a number of times. However, the respondent failed to return Mrs. Anderson's calls.
By September 9, 2002, the respondent knew that the adoption hearing could not be held because proper service by publication had not been obtained. However, she did not call Mr. or Mrs. Anderson.
On September 11, 2002, at 5 p.m., the respondent called Mr. Anderson on his cellular telephone and notified him that the hearing would have to be continued to another date because proper service had not been obtained. She told Mr. Anderson that it was best to communicate with the respondent by electronic mail.
On September 13, 2002, Mrs. Anderson sent the respondent an electronic message. The respondent did not respond to Mrs. Anderson's *659 message. After sending the electronic message, Mrs. Anderson called the respondent and left numerous messages. The respondent did not return Mrs. Anderson's calls.
On September 19, 2002, Mrs. Anderson filed a complaint with the Disciplinary Administrator's office. On October 22, 2002, the respondent provided a written response to Mrs. Anderson's complaint.
On October 29, 2002, November 5, 2002, and November 12, 2002, notice of the adoption proceeding was published in The Legal Record. On November 18, 2002, the court held the adoption hearing and entered a Decree of Adoption.
Complaint of Daniel Markowitz (DA8699)
On August 19, 2002, William Humbird retained the respondent to represent him in a child support action and paid the respondent $500 for attorney fees. Mr. Humbird lives in Illinois. A hearing was scheduled for September 17, 2002.
Prior to the September 17, 2002, hearing, the respondent assured Mr. Humbird that she would appear in his behalf and that he did not need to appear. However, she failed to appear in court on September 17, 2002.
Mr. Humbird called the respondent numerous times to determine the outcome of the hearing. The respondent failed to return his calls. However, on September 19, 2002, Mr. Humbird was able to reach the respondent. She falsely told Mr. Humbird that she attended the hearing, that the hearing went well, and that the court took the matter under advisement.
Because no one appeared in behalf of Mr. Humbird, the hearing officer entered a default ruling against Mr. Humbird and recommended that the court increase his child support obligation.
Shortly thereafter, Mr. Humbird contacted the Johnson County Trustee's office and learned that the respondent had not appeared at the hearing, that the matter had not been taken under advisement, that the hearing officer had entered a default ruling against Mr. Humbird, and that the case was forwarded to Judge Leben for entry of an order increasing child support.
*660 On September 25, 2002, Mr. Humbird called Daniel J. Markowitz, an attorney practicing in Overland Park and explained the situation. On that same date, Mr. Markowitz entered his appearance in the child support case. On September 26, 2002, Mr. Markowitz wrote to the respondent, set out Mr. Humbird's accusations in summary form, and demanded that she return Mr. Humbird's retainer. On September 30, 2002, Mr. Markowitz received a letter from the respondent with a certified check in the amount of $500 payable to Mr. Humbird.
On October 9, 2002, the court entered its Journal Entry of Judgment regarding this matter. Thereafter, on October 21, 2002, Mr. Markowitz filed a motion to set aside judgment.
On October 16, 2002, Mr. Markowitz filed a complaint with the Disciplinary Administrator's office regarding the respondent. Thomas J. Bath, Jr. was assigned to investigate the complaint. At the time, Jonathan Becker was representing the respondent regarding the disciplinary complaints and filed a written response on her behalf.
On December 2, 2002, Mr. Bath wrote to the respondent, acknowledged receipt of the response from Mr. Becker, and requested that she provide a written response to the complaint. Additionally, Mr. Bath requested that her response include certain information. The respondent failed to provide a written response to the initial complaint and failed to provide the specific information requested by Mr. Bath. On January 31, 2003, Mr. Bath again wrote to the respondent requesting that she comply with his requests made on December 2, 2002. Again, the respondent failed to respond or comply with Mr. Bath's requests.
Complaint of Jan Godfrey (DA9047)
In December 2002, Jan Godfrey retained the respondent to represent her in an action for divorce. Ms. Godfrey placed a number of telephone calls to the respondent which, for the most part, the respondent failed to return.
On April 18, 2003, the respondent filed the decree of divorce and property settlement agreement in behalf of Ms. Godfrey in the District Court of Johnson County, Kansas.
*661 On May 6, 2003, the respondent forwarded a proposed Qualified Domestic Relations Order (QDRO) to CUNA Mutual Group, the administrator of Mr. Godfrey's IRA account. However, because of a problem, the funds in the IRA account were not distributed.
During the summer of 2003, Ms. Godfrey placed a number of telephone calls to the respondent. The respondent failed to keep Ms. Godfrey informed regarding the status of the QDRO.
Because so much time passed without having the IRA funds distributed and because the respondent failed to keep Ms. Godfrey informed regarding the status of the QDRO, on August 29, 2003, Ms. Godfrey filed a complaint against her with the Disciplinary Administrator's office.
On September 8, 2003, Alexander M. Walczak wrote to the respondent and asked her to provide him with a written response to the complaint within 15 days. She failed to respond to the letter. Accordingly, Mr. Walczak docketed the complaint for investigation. Thereafter, John M. Parisi was appointed to investigate Ms. Godfrey's complaint.
On November 20, 2003, Mr. Parisi wrote to the respondent, reminded her that she had not provided a written response as requested by Mr. Walczak, and requested that she provide a written response within 7 days. She did not comply with Mr. Parisi's request.
On December 2, 2003, Mr. Parisi again wrote to the respondent. He informed her that he must have her written response by December 15, 2003, or he would submit his report without her input. On December 16, 2003, Mr. Parisi received her hand-delivered written response to the initial complaint.
After receiving the respondent's written response, on January 5, 2004, Mr. Parisi wrote to her and asked for additional information. Specifically, he asked her to provide (1) a copy of the facsimile transmission sheet regarding the July 2003 correspondence from CUNA, (2) a copy of any documentation that she scheduled and confirmed an appointment with Ms. Godfrey, (3) a copy of any correspondence or documentation that would confirm that she had contacted Mr. Godfrey requesting a copy of his most recent IRA statement, (4) a copy of any documentation or communications she *662 had with Ms. Godfrey regarding the delay in resolving the QDRO, and (5) a copy of the transmittal letter to CUNA from August 2003 when she forwarded a revised QDRO. The respondent did not respond to Mr. Parisi's January 5, 2004, letter, nor did she provide Mr. Parisi with the requested documentation.
PANEL'S CONCLUSIONS OF LAW
Based upon the findings of fact, the hearing panel concluded, as a matter of law, that the respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 8.1, KRPC 8.4(c), and Kansas Supreme Court Rule 207(b), as detailed below.
KRPC 1.1
Lawyers must provide competent representation to their clients. "Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." KRPC 1.1 (2004 Kan. Ct. R. Annot. 342). The respondent failed to competently represent Mr. Brown when she failed to obtain service of process and prosecute the personal injury case. Accordingly, the hearing panel concluded that the respondent violated KRPC 1.1.
KRPC 1.3
Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the respondent failed to provide diligent representation to Mr. Brown when she failed to obtain service of process on the defendant and failed to prosecute the case. Additionally, the respondent failed to diligently represent Mr. Anderson when she failed to obtain proper service by publication prior to the September 12, 2002, hearing date. The respondent also failed to provide diligent representation to Mr. Humbird when she failed to enter her appearance and appear at the September 17, 2002, hearing. Because the respondent failed to act with reasonable diligence and promptness in representing Mr. Brown, Mr. Anderson, and Mr. Humbird, the hearing panel concluded that the respondent violated KRPC 1.3.
*663 KRPC 1.4
KRPC 1.4(a) provides that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." (2004 Kan Ct. R. Annot. 367.) In this case, the respondent violated KRPC 1.4(a) when she failed to keep Mr. Brown informed regarding the status, including the dismissal of his case. The respondent also violated KRPC 1.4(a) when she failed to return Mrs. Anderson's telephone calls regarding the status of the adoption hearing. Additionally, the respondent failed to provide adequate communication to Mr. Humbird when she failed to return his telephone calls. Finally, the respondent violated KRPC 1.4(a) when she failed to keep Ms. Godfrey informed regarding the status of the QDRO. Accordingly, the hearing panel concluded that the respondent violated KRPC 1.4(a).
KRPC 8.4(c)
"It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation." KRPC 8.4(c). The respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation when she falsely informed Mr. Humbird that she attended the September 17, 2002, hearing and that the court took the matter under advisement. The hearing panel concluded that the respondent violated KRPC 8.4(c).
KRPC 8.1(b) and Supreme Court Rule 207(b)
Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kansas Supreme Court Rule 207(b) provide the requirement in this regard. KRPC 8.1(b) provides: "[A] lawyer in connection with a . . . disciplinary matter, shall not . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority." (2004 Kan. Ct. R. Annot. 480.) Supreme Court Rule 207 (b) provides: "It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters." (2004 Kan. Ct. R. Annot. 261.)
*664 In this case, the respondent failed to cooperate in the investigation of Mr. Markowitz' complaint and Ms. Godfrey's complaint. Because the respondent knowingly failed to properly cooperate in the disciplinary investigations, the hearing panel concluded that the respondent violated KRPC 8.1(b) and Kansas Supreme Court Rule 207(b).
PANEL'S RECOMMENDATION
The hearing panel next considered factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter "Standards"). Pursuant to Standard 3, the factors to be considered are the duties violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors.
On the subjects of Duties Violated and Mental State, the respondent knowingly violated her duty to her clients to provide competent and diligent representation. She also violated her duty to her clients to provide adequate communication and to the legal profession to maintain personal integrity. Finally, the respondent violated her duty to the legal profession to cooperate in disciplinary proceedings.
On the subject of Injury, as a result of the respondent's misconduct, she caused actual and potential harm to her clients and the legal profession.
On the subject of Aggravating Factors, several were present. In regard to Dishonest or Selfish Motive, the respondent lied to Mr. Humbird regarding the September 17, 2002, hearing.
Regarding a Pattern of Misconduct, included in this case are four complaints. Some of the complaints involve similar misconduct. Accordingly, the respondent engaged in a pattern of misconduct.
Regarding Multiple Offenses, the respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 8.1(b), KRPC 8.4(c), and Supreme Court Rule 207(b). As such, the respondent committed multiple offenses.
Several Mitigating circumstances were also present. In regard to the Absence of a Prior Disciplinary Record, the respondent has not previously been disciplined.
*665 On the subject of Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct, after the respondent retained Mr. Ambrosio to represent her in the disciplinary case, he directed the respondent to submit to a psychological evaluation by William Albott, Ph.D., a psychologist. According to Dr. Albott, Ms. Mitchell has experienced severe symptoms of anxiety and depression and the "personality and psychological issues identified . . . seem to have led into behaviors which ultimately brought forth the complaints filed."
Regarding respondent's Inexperience in the Practice of Law, the Kansas Supreme Court admitted the respondent to practice law in 1999. At the time she engaged in misconduct, she had been practicing law for a period of 2 years. Accordingly, the hearing panel concludes that she was inexperienced in the practice of law at the time she engaged in the misconduct.
Regarding Previous Good Character and Reputation in the Community Including any Letter from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney, the respondent is an active and productive member of the bar in Johnson County, Kansas. She enjoys the respect of her peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel.
On the topic of Remorse, at the hearing on the Formal Complaint, the respondent expressed genuine remorse.
In addition to the above-cited factors, the hearing panel thoroughly examined and considered the following Standards:
"Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client." Standard 4.42.
"Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client." Standard 4.43.
"Suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client." Standard 4.52.
*666 "Reprimand is generally appropriate when a lawyer: (a) demonstrates failure to understand relevant legal doctrines or procedures and causes injury or potential injury to a client; or (b) is negligent in determining whether he or she is competent to handle a legal matter and causes injury or potential injury to a client." Standard 4.53.
"Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client." Standard 4.62.
At the hearing, the respondent recommended that she be placed on probation, subject to the terms and conditions contained in her proposed plan of probation. The panel determined that in order to recommend that a respondent be placed on probation, it must make specific findings. In that regard, it acknowledged that Supreme Court Rule 211(g) (2004 Kan. Ct. R. Annot. 277) provides, in pertinent part, as follows:
"(g) Requirements of Probation
"(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent's full compliance with the disciplinary rules and orders of the Supreme Court.
"(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan.
"(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
"(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint;
"(ii) ithe Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
"(iii) at the hearing on the Formal Complaint, the Respondent presents evidence that the case involves unique circumstances (unique circumstances are circumstances from which it could be inferred that the Respondent's misconduct was a one time response to adversity and that it would be highly *667 unlikely that the Respondent would repeat the mistake);
"(iv) the misconduct can be corrected by probation; and
"(v) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas."
In this case, the respondent provided each member of the hearing panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation. The plan contained adequate safeguards designed to protect the public and ensure the respondent's full compliance with the disciplinary rules and orders of the Supreme Court. See Kansas Supreme Court Rule 211(g)(1). The respondent immediately and prior to the hearing on the formal complaint put the plan of probation into effect by complying with the terms and conditions of the plan. See Kansas Supreme Court Rule 211(g)(2).
The respondent presented evidence that the case involves unique circumstances, the misconduct can be corrected by probation, and placing the respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas. See Kansas Supreme Court Rule 211(g)(3).
The hearing panel was impressed with the respondent's testimony regarding the weeks leading up to the hearing on the formal complaint. The respondent testified about the impact that the evaluation has had on her life.
Based upon the testimony of the witnesses, the exhibits admitted into evidence, findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommended that the respondent be suspended from the practice of law in the state of Kansas for a period of 1 year. The hearing panel further recommended that the respondent be placed on probation subject to the following terms and conditions:
"1. Respondent will continue her treatment for depression and anxiety with a Psychologist or Social Worker approved by Dr. William Albott. This treatment shall continue throughout the period of supervised probation unless the treating Doctor and Dr. Albott deem treatment is no longer necessary. The treating mental health worker shall notify the Disciplinary Administrator in the event that Respondent discontinues treatment against the recommendation of the mental health specialist. The Respondent shall provide the treating mental health worker *668 with any appropriate release of information necessary to allow the professional to provide such information to the Disciplinary Administrator.
"2. In the event it becomes necessary for the Respondent to take medication, the Respondent shall have regular contact with a qualified medical professional regarding said medication. The Respondent shall follow the qualified medical professional's recommendation regarding any medications prescribed.
"3. The treating mental health professional shall make periodic reports to the Disciplinary Administrator's Office. Said reports shall update the Disciplinary Administrator on the need for treatment and the current treatment modality.
"4. The Respondent's practice shall consist of criminal defense, domestic relations and any other cases related to criminal defense, i.e., drivers license suspension cases, drug tax cases, etc. Further, the Respondent may continue her practice as prosecutor in City Court. The Respondent shall not engage in the representation of clients in civil matters, including personal injury cases.
"5. The Respondent's practice will be supervised by Nancy Orrick, a licensed attorney in good standing, in Kansas City, Kansas. The Respondent shall allow Ms. Orrick access to her files, calendar, operating account and trust account records. The Respondent shall comply with any request made by the supervising attorney. During the first year of supervision, the Respondent shall meet with the supervising attorney weekly. During the final six months of the probation period, the Respondent shall meet with Ms. Orrick per her direction. Ms. Orrick shall prepare a detailed monthly report to the Disciplinary Administrator regarding Respondent's status on probation.
"6. Ms. Orrick shall conduct an immediate and detailed audit of Respondent's files. Six months after the completion of the first audit, Ms. Orrick shall conduct a second audit. At the completion of the supervised probation, Ms. Orrick shall conduct a third audit. After each audit Ms. Orrick shall make a report regarding same. If Ms. Orrick discovers any violations of the Kansas Rules of Professional Conduct, she shall include such information in her report. Ms. Orrick shall provide the Disciplinary Administrator and the Respondent with a copy of each audit report. The Respondent shall follow all recommendations and correct all deficiencies noted in Ms. Orrick's periodic audit reports.
"7. The Supervisor shall determine if the office procedures and diary procedures for Respondent are appropriate. The Supervising Attorney shall cause Respondent to have a diary or calendaring system, letters for client contact, letters for notices to clients of hearings and scheduled meetings, and a method to track all phone messages and phone contacts from clients and the responses thereto.
"8. Procedures shall be commenced wherein all phone contacts and phone messages are handled on a daily basis, unless a trial schedule prevents phone contacts with clients. No phone message, request or entreaty from a client shall go more than three days without Respondent contacting the client.
"9. Respondent shall, at the weekly meetings with Supervisor, review all new retained and appointed cases. Further, Respondent shall present the Supervisor with diary and calendar information and appropriate fee information. Additionally, *669 at that meeting, Respondent and the Supervisor shall review the following week's schedule in order to assure notice has been sent to the appropriate parties, appropriate preparation has been carried out and all updates to the files have been completed.
"10. The Supervisor shall do a monthly report in regard to the weekly meetings and submit same to the Disciplinary Administrator.
"11. Ms. Nancy Orrick will be acting as an officer and an agent of the Court while supervising the probation and monitoring the legal practice of the Respondent. The supervisor shall be afforded all immunities granted by Supreme Court Rule 223 [2004 Kan. Ct. R. Annot. 323] during the course of her activities pursuant to this Order.
"12. Within ten days of the panel decision, the Respondent shall file with the Disciplinary Administrator written office procedures designed to monitor the status, deadlines and Court appearances of all matters in which she has undertaken representation. The Respondent shall modify that procedure if directed to do so by the Disciplinary Administrator.
"13. The Respondent shall follow all written office procedures.
"14. The Respondent shall continue to cooperate with the Disciplinary Administrator. If the Disciplinary Administrator requires any further information, the Respondent shall timely provide such information.
"15. The Respondent shall continue to maintain professional liability insurance.
"16. The Respondent shall not violate the terms of her probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of her probation or any of the provisions of the Kansas Rules of Professional Conduct during the probationary period, the Respondent shall immediately report such violations to her supervisor and to the Disciplinary Administrator.
"17. Respondent shall follow the dictates of Supreme Court Rule 211(g)."
The hearing panel also favorably noted the impact of the participation of respondent's attorney, John Ambrosio, in the case:
"Mr. Ambrosio submitted new answers to the formal complaints. He directed the Respondent to meet with William Albott, Ph.D. and submit to a thorough psychological evaluation. He developed a substantial, detailed, and workable plan of probation. He located a qualified attorney to supervise the Respondent's practice. And, he assisted the Respondent in putting the plan of probation into effect. The Hearing Panel is certain that its recommendation would have been different had the steps taken by Mr. Ambrosio not been taken."
Additionally, the hearing panel concluded that costs should be assessed against the respondent in an amount to be certified by the office of the Disciplinary Administrator.
*670 DISCUSSION
To warrant a finding of misconduct, the charges must be established by clear and convincing evidence. Supreme Court Rule 211(f) (2004 Kan. Ct. R. Annot. 275); In re Rathbun, 275 Kan. 920, 929, 69 P.3d 537 (2003). A hearing panel's report is deemed admitted under Rule 212(c) and (d) (2004 Kan. Ct. R. Annot. 285) when a respondent fails to file exceptions. In re Boaten, 276 Kan. 656, 663, 78 P.3d 458 (2003).
In the present case, since the respondent filed no exceptions to the panel's report, we conclude that the panel's findings of fact are supported by clear and convincing evidence and that the facts established support the panel's conclusions of law. We therefore adopt the panel's findings and conclusions. The panel recommended a 1-year suspension and supervised probation, but did not specify the term of probation. The Disciplinary Administrator recommends a 2-year period from the date of this court's order. We agree with the Disciplinary Administrator's recommendation.
IT IS THEREFORE ORDERED that Amy R. Mitchell be suspended from the practice of law in the state of Kansas for a period of 1 year effective as of the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2004 Kan. Ct. R. Annot. 237). Her suspension is stayed and she is placed on supervised probation for a period of 2 years effective as of the date of this opinion under the conditions recommended by the hearing panel which are set forth in the opinion. If she complies with each condition throughout the period of probation, she may proceed with discharge from probation in accordance with Supreme Court Rule 211(g) (7) (2004 Kan. Ct. R. Annot. 275).
IT IS FURTHER ORDERED that if Mitchell fails to abide by the conditions set out herein, a show cause order shall issue to Mitchell, and this court shall take whatever disciplinary actions it deems just and proper, without further formal proceedings.
*671 IT IS FURTHER ORDERED that this opinion be published in the official Kansas Reports and that respondent pay the costs of these proceedings.
LOCKETT, J., Retired, assigned.[1]
NOTES
[1] REPORTER'S NOTE: Justice Tyler C. Lockett, Retired, was assigned to hear case No. 94,803 pursuant to the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court resulting from Justice Gernon's death.
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770 F.2d 1082
*/**Int'l Indem.v.Odom
85-8177
United States Court of Appeals,Eleventh Circuit.
8/8/85
1
N.D.Ga.
AFFIRMED
*
Fed.R.App.P. 34(a); 11th Cir. R. 23
**
Local Rule: 25 case
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723 S.W.2d 119 (1986)
Paul MONTCASTLE, et al, Plaintiffs-Appellants,
v.
Lendon BAIRD and Juanita Baird, Defendants-Appellees.
Eleanor Baird EBLEN, et al, Plaintiffs-Appellees,
v.
ELK VALLEY COAL & IRON COMPANY, et al, Defendants-Appellees.
Mrs. Jessie WALLACE, et al, Plaintiffs-Appellees,
v.
Lendon BAIRD, et al, Defendants-Appellees.
Court of Appeals of Tennessee, Eastern Section.
August 19, 1986.
Permission to Appeal Denied November 24, 1986.
*120 Maclin P. Davis, Jr., Waller, Lansden, Dortch & Davis, Nashville, and Joseph G. Coker, Jacksboro, for plaintiffs-appellants.
Keith McCord and Jerome Templeton, Knoxville, for defendant-appellee Lendon Baird.
Norbert Slovis, Lockett, Slovis & Weaver, Knoxville, for plaintiffs-appellees Jessie Wallace, et al. and Eleanor Baird Eblen, et al.
J. Stephen Hurst, Rogers, Hurst & Kruschenski, LaFollette, for appellees-respondents David B. Rogers, Dottie C. Bryant and Robert Baird.
Roy L. Aaron, Hodges, Doughty & Carson, Knoxville, for appellee-receiver.
Permission to Appeal Denied by Supreme Court November 24, 1986.
OPINION
SANDERS, Judge.
The pivotal question on this appeal is whether or not attorneys representing a sub-class of thirteen percent of the outstanding shares of stock of a defunct corporation should be allowed attorneys' fees and expenses out of the total common fund.
This case has its genesis back in 1939, when the charter of Elk Valley Coal and Iron Company [Elk Valley], a former Tennessee corporation, was revoked for nonpayment of taxes. At that time Elk Valley, a family corporation, along with Lendon Baird, Z.D. Baird and Winston Baird, owned several thousand acres of land adjoining each other in Campbell County. The land was leased to various strip and deep coal mining and timber companies.
Lendon Baird became acting director of Elk Valley in 1946 and continued to run the affairs of the company under the corporate name of the defunct corporation. He also managed the affairs of the Z.D. and Winston Baird partnership along with his own properties. He had the most extensive knowledge of the property lines of the respective parties involved and collected and allocated proceeds from timber stumpage, royalties from coal being mined, etc., to each respective property. Over the years he continued to handle the affairs concerning the land usage and to pay monies to the respective parties.
Complications arose in 1976 when deep coal mining was begun beneath contiguous land of the parties. Until the amount of coal mined beneath each respective property was ascertained, no royalties were credited to any account, no tax returns were filed, and no proceeds were paid to any of the parties.
In 1979 Eleanor Baird Eblen, along with thirteen other shareholders of Elk Valley, filed suit seeking an accounting, an injunction compelling Lendon Baird to produce the company's records, damages, and attorneys' fees. [Shareholders suit]. As a result, Mr. Baird's deposition was taken. In it was revealed large amounts of money belonging to Elk Valley were being held in safe deposit boxes and checking accounts in his and his wife's names.
In January 1981 another suit was filed by Mrs. Jessie Wallace and seven other *121 heirs of the Z.D. Baird estate against Lendon and Juanita Baird and the Winston Baird estate seeking an accounting between the two estates. [Estate suit]. The same attorney filed both the shareholders suit and the estate suit and represented holders of approximately forty-seven percent of the outstanding shares of Elk Valley.
In early February a hearing was held to appoint a Special Master in both the estate suit and the shareholders suit. The Special Master was to assume control of all the bank accounts, safe deposit boxes, and monies and records held by Lendon and Juanita Baird and Elk Valley. The Chancellor ordered:
That said special master shall be charged with the responsibility of ascertaining and performing an accounting to ascertain the funds due the plaintiffs and to perform any and all duties and discharge all other responsibilities as set forth by Rule 53.01 53.05 of the Tennessee Rules of Civil Procedure.... That the special master shall perform all tasks and acts necessary to resolve the issues in this cause as reasonably and expeditiously as possible.
On February 18, 1981, a Motion to Intervene in the shareholders suit was filed by the Appellants, Paul Montcastle and Mary Jarnigan Bradley, shareholders in Elk Valley. Subsequently, in the middle of March, two years after the original suit was filed, a complaint was filed by them against Lendon Baird and Juanita Baird, as a class action on behalf of all stockholders of Elk Valley. It sought appointment of a receiver, distribution of the assets of the defunct corporation, and attorneys' fees. [Class action].
In April the shareholders suit was consolidated with the estate suit. In June the class action suit was consolidated with the other two suits. In July Bryon Eblen, who had been appointed special master, and Joel Morton were appointed co-receivers of Elk Valley. At that time, however, the Special Master had marshalled all the assets of Elk Valley and had in his possession in excess of $900,000. The records and monies acquired by the special master were turned over to the co-receivers. By the same Order, the plaintiffs in the class action suit were allowed to maintain their action as a class action as "representatives of the sub-class consisting of all persons who own stock in Elk Valley Coal and Iron Company other than [the plaintiffs and defendants in the shareholders and estate suits]." Members of the class were given the right to be excluded from the sub-class. This sub-class represents holders of about thirteen percent of the outstanding shares of Elk Valley.
Approximately $919,000 was turned over to the co-receivers by the special master, along with records and information the special master had collected concerning assets and shareholders. The additional monies later acquired by the receiver was from interest, IRS refunds, and royalties from previously ascertained leases. There was no new identification of funds after the appointment of the receivers.
The attorneys in the class action suit filed this action seeking payment of their fees and expenses out of the common fund, rather than that portion of the fund allocable to the sub-class representing thirteen percent of the outstanding shares of Elk Valley. After the payment of the debts of the company there is approximately $700,000 available for distribution to the shareholders. All the other attorneys, representing holders of about 87% of the shares involved in these suits, have agreements with their clients concerning their fees. Although the attorneys bringing this appeal have been paid some $45,000 from funds of the sub-class, they now insist they should be paid an additional $200,000 from the common fund.
The Chancellor, in his opinion ordering the payment of Appellants' attorneys' fees to be made only out of the portion of the fund belonging to the holders of thirteen percent of the shares the Appellants represent, said:
This Court cannot discern any valid reason to onerate individuals outside of the *122 sub-class with payment of the fees of Messrs. Davis and Coker. Although these attorneys have represented their clients zealously and with good effect, and although the other parties to the litigation indirectly benefited from their efforts, nevertheless neither Mr. Davis nor Mr. Coker did anything to identify, bring into being, or increase the assets that ultimately will be distributed to the owners of the outstanding stock of the corporation. Although Mr. Davis and Mr. Coker prevailed in their insistance for the appointment of a receiver over the initial objections of the other attorneys, that fact alone would not entitle them to a fee out of the common fund. The asset was already in existence and identified and was merely transferred into the custody of the receiver. In short, the request of Mr. Davis and Mr. Coker that their fee be paid from the common fund is denied.
Permission was granted by the trial court and by this court for Appellants, Paul Montcastle and Mary Jarnigan Bradley, as representatives of the sub-class, to appeal to this court in accordance with Rule 9, T.R.A.P., from the Order denying petition for payment of attorneys' fees and expenses to plaintiffs' attorneys out of the common funds. Although this suit is brought in the name of Carl Montcastle and Mary Jarnigan, the real parties in interest on this appeal are their attorneys, Maclin P. Davis, Jr. and Joseph G. Coker.
All the parties have placed before this court additional issues, other than the one certified by the trial court. To the extent the issues are broader, they cannot be considered.
Appellants aver that as a consequence of their filing the complaint and other pleadings various benefits inured to all shareholders, which included the appointment of a receiver of Elk Valley's assets totalling more than $1,362,000; sustaining of a class action suit in behalf of all stockholders of Elk Valley; a ruling by the court that because Elk Valley's charter had been revoked, it was no longer a legal entity, and its stockholders were vested with title to its property; ordering of a method by which the stockholders could establish their ownership of stock; and the pro rata distribution of the assets. Appellants further aver that none of those aspects of relief was available to Appellees in the estate case and the shareholder case.
The Appellants request a fee of twenty-five percent of the recovery in this case or at least three times their fees and expenses of the attorneys [$62,601.97] on the basis of their customary hourly charges.
In reviewing the Chancellor's Order of July 22, 1981 we note the Chancellor granted permission for Appellants to maintain "their action ... as a class action." He did not convert all three suits to a class action. We also note in reviewing the record the Appellees prayed for general relief or other relief as the court deemed appropriate.
Ordinarily, in Tennessee one who does not employ an attorney is not required to pay the attorney even though benefits may inure to that person. The leading case in this jurisdiction on the issue before us is Travelers Ins. Co. v. Williams, 541 S.W.2d 587, (Tenn. 1976). In that case the Supreme Court, speaking through Justice Brock, said:
There are, of course, many situations in which the work of an attorney proves useful to persons other than his own client. The normal rule in such cases is that he must look only to his client, with whom he has contracted, for his compensation, notwithstanding the acceptance of benefits by others.
Id. at 589.
See also Hill v. Childress, 18 Tenn. 514 (1837); Moses v. Ocoee Bank, 69 Tenn. 398 (1878); Hume v. Commercial Bank, 81 Tenn. 496 (1884); Rogers v. O'Mary, 95 Tenn. 514, 32 S.W. 462 (1895); Southern v. Beeler, 183 Tenn. 272, 195 S.W.2d 857 (1946); State ex rel. Banks v. Taylor, 199 Tenn. 507, 287 S.W.2d 83 (1956); Mayfield v. McKnight, 56 S.W. 42 (Tenn.Ch.App. 1899); Draper v. Draper, 24 Tenn. App. 548, 147 S.W.2d 759 (1941). The Appellants' *123 attorneys may have indirectly contributed benefits to all shareholders, but do not have a contract for payment of fees by them.
There are, of course, exceptions to the general rule. One of which is:
"[W]henever one person, having assumed the risks and expense of litigation, has succeeded in securing, augmenting, or preserving property or a fund of money in which other people are entitled to share in common. In that event, the expenses of the action are borne by each participant according to his interest."
Travelers at 589.
See also Bristol-Goodson Electric Light & Power Co. v. Bristol Gas, Electric Light and Power Co., 99 Tenn. 371, 42 S.W. 19 (1897); City of Bristol v. Bostwick, 146 Tenn. 205, 240 S.W. 774 (1922); Bird v. Collette, 26 Tenn. App. 181, 168 S.W.2d 797 (1942); Carmack v. Fidelity Bankers Trust Co., 180 Tenn. 571, 177 S.W.2d 351 (1944); Pennington v. Divney, 182 Tenn. 207, 185 S.W.2d 514 (1945); Gilpin v. Burrage, 188 Tenn. 80, 216 S.W.2d 732 (1949); Fifth Third Co. v. Mooreland Estates Homeowners Ass'n, 639 S.W.2d 292 (Tenn. App. 1982); Marshall v. Sevier County, 639 S.W.2d 440 (Tenn. App. 1982).
The Appellants argue the theories of the "fund doctrine" and "unjust enrichment" upon which the basis of fees being paid out of the total common fund are laid. The court in Travelers Ins. Co. at 589 found the "`fund doctrine' was invented by courts of equity to prevent passive beneficiaries of the fund from being unjustly enriched. It is, therefore, never applied against persons who have employed counsel on their own account to represent their interests. See Ensley v. Ensley, 105 Tenn. 107, 58 S.W. 288 (1900); City of Bristol v. Bostwick, supra; Cass v. Smith, 146 Tenn. 218, 240 S.W. 778 (1921); Leggett v. Missouri State Ins. Co., 342 S.W.2d 833 (Mo. 1960). Thus, the right to employ counsel of one's own choosing is preserved." In the case at bar, a very large percentage of the parties already had attorneys representing them and zealously working in their behalf. We cannot say they are passive beneficiaries and would be unjustly enriched.
After careful review of the voluminous record in the case at bar, we fail to find the Appellants were instrumental in ascertaining, obtaining, preserving, protecting or increasing the common fund. It was the Appellees who at their own risk and expense brought suit at a time when it was unknown if any, or how much, monies were to be had. They spent substantial amounts of effort, time and money in taking discovery and acquiring the monies.
The Appellees were the ones who petitioned the court to appoint the special master. He was given the authority to take control of the fund and did extensive work in acquiring them. The receiver himself in undisputed testimony admitted he discovered no new funds. The court already had control of the monies and records. The transfer of funds was between the special master and the co-receivers both under the direction of the same court. From the record before us we are unable to find where Appellants' attorneys, even by their own testimony, participated in acquiring the common fund. There was no real increase of those funds subsequently as a result of the Appellants work. They were not instrumental in protecting those funds. Rather we find the Appellants are the ones who benefited from the efforts of Appellee's attorneys. It appears the Appellants by reading the pre trial depositions taken by Appellees' attorney learned of the substantial common fund and then proceeded to file suit. They did succeed in having a receiver appointed to disburse the funds, however, we do not find the estate itself benefited by the action.
For an attorney to be entitled to compensation out of a common fund, his services must have aided in creating, preserving, or protecting the fund; and the fact that the other members of the class were represented by their own counsel has in some cases been treated as a strong or fatal objection to the allowance of counsel fees out of the common *124 fund... . The mere fact that a complainant seeking an allowance of attorneys' fees may have been successful in the proceedings undertaken in behalf of the general class does not entitle him to an allowance, for it does not follow that the estate is benefited.
The rule has been stated that the cases supporting the authority of a court to allow attorney's fees and costs out of a fund being administered by the court all involve the exercise of that authority where the services have added to, preserved, or increased the amount being administered. A court is not empowered, in administering a fund under its control, to allow costs and attorney's fees, payable out of the fund, for services performed by one creditor in establishing that he and all other creditors of a certain class are entitled to share in the distribution of that fund.
20 Am.Jur.2d Costs § 86 (1965).
Appellants rely upon Smith v. Haire, 138 Tenn. 255, 197 S.W. 678 (1917) and Carmack v. Fibelity Bankers and Trust Company, 180 Tenn. 571, 177 S.W.2d 351 (1944), as supportive of their contention. We find their reliance upon these cases to be misplaced.
Though the right to charge counsel fees as costs out of the fund or estate in controversy, in a proper case, is well established, it is recognized that the practice of allowing such fees is subject to great abuse and should be exercised with the most jealous caution in regard to the rights of the litigants to avoid bringing the administration of justice into reproach.
20 Am.Jur.2d Costs § 83 (1965).
In the case at bar, we find it inappropriate in the interests of justice and the equities in this suit to award attorneys' fees to the Appellants' attorneys out of the common fund. It would serve to only decrease the recovery to the parties who originally took the risks and performed the work.
The issues are found in favor of the Appellees. The decree of the Chancellor is affirmed and the cost of this appeal together with the cost in the trial court are taxed to the Appellants. This case is remanded for such further proceedings as the Chancellor deems necessary.
FRANKS, J., and T. MACK BLACKBURN, Special Judge, concur.
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11-2369
Morris v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 19th day of June, two thousand thirteen.
PRESENT:
GUIDO CALABRESI,
JOSÉ A. CABRANES,
BARRINGTON D. PARKER,
Circuit Judges.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
LESLIE MORRIS,
Petitioner-Appellant,
-v.- No. 11-2369
UNITED STATES OF AMERICA,
Respondent-Appellee.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
FOR PETITIONER-APPELLANT: Leslie Morris, pro se, Pine Knot, KY.
FOR RESPONDENT-APPELLEE: Alina P. Reynolds, Robert M. Spector,
Assistant United States Attorneys, for David B.
Fein, United States Attorney, United States
Attorney’s Office for the District of
Connecticut, Bridgeport, CT.
1
Appeal from a May 12, 2011 order of the United States District Court for the District of
Connecticut (Peter C. Dorsey, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the May 12, 2011 order of the District Court be AFFIRMED.
Petitioner-appellant Leslie Morris, proceeding pro se, appeals from an order of the District
Court denying his 28 U.S.C. § 2255 motion. Morris argues that at his original trial the District Court
erred (1) by allowing the jurors to take home copies of the jury charge for one night, and (2) by
responding to the jury note seeking permission do so in the absence of Morris’s counsel. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.1
Pursuant to § 2255, a federal prisoner may collaterally attack his sentence on “the ground
that the sentence was imposed in violation of the Constitution or laws of the United States.” 28
U.S.C. § 2255(a). In considering a denial of a motion for relief under § 2255, we review a district
court’s conclusions of law de novo and its factual findings for clear error. Rivera v. United States, ---
F.3d----, No. 11-5155-pr, 2013 WL 2278408, at *2 (2d Cir. May 24, 2013).
This appeal concerns the District Court’s response to a note submitted by the jury on the
evening of the first day of deliberations. In the note, the jurors asked whether they could take
copies of the jury charge, which at 110 pages was particularly long and complex, home with them to
read. Upon receiving the note, the District Court attempted to find trial counsel, but the attorneys
had already left for the evening. Given the nature of the request, the District Court decided to
permit the jurors to take home copies of the charge (for one night only), but first instructed them
not to consider outside law or to discuss the case with anyone. The next day, upon learning that the
jurors took home copies of the charge, defense counsel objected. Morris now renews that objection
on appeal.
A. Permitting the Jury to Take Home the Charge
First, Morris argues that the District Court erred in permitting the jurors to bring copies of
the jury charge home with them for one night because, in Morris’s view, this decision encouraged
independent, rather than group, deliberation. We recently addressed an analogous situation where a
1 We note that the government argues for the first time on appeal that Morris’s claim is procedurally defaulted
because he did not raise it on direct appeal. “However, because the government failed to raise its procedural default
defense in the district court, it is precluded from doing so now.” United States v. Canady, 126 F.3d 352, 360 (2d Cir. 1994).
Accordingly, we address the merits of Morris’s claim.
2
district court allowed “the members of the jury—after the beginning of jury deliberations and after
receiving various cautionary instructions—to take the indictment home to read on their own time.”
United States v. Esso, 684 F.3d 347, 349 (2d Cir. 2012). We saw “no harm in such private
‘deliberations,’ which may in fact enable jurors to participate more thoughtfully in the collective
process of reaching a verdict.” Id. at 351. We have no reason to reach a contrary conclusion in this
case, where the District Court permitted the jurors to read a particularly lengthy and complicated
charge at home, after instructing them not to consider outside facts or law or to discuss the case
with anyone.
Accordingly, we conclude that Morris’s claim that the court should not have allowed the
jurors to take the jury charge home with them because it may have encouraged “private
deliberations” or invited jurors to conduct independent investigation is without merit.
B. Answering the Note Without Defendant or His Counsel Present
Second, Morris claims that his constitutional rights were violated when the District Court
responded to the jury note without the presence of defense counsel. We have explained that a
defendant has a right, rooted in the Sixth Amendment Confrontation Clause and Fifth Amendment
Due Process Clause, to be present at every stage of a trial. See United States v. Collins, 665 F.3d 454,
459 (2d Cir. 2012); see also Fed. R. Crim. P. 43(a)(2) (requiring the defendant’s presence at “every trial
stage”).2 We have also observed that the right to be present “extend[s] to require that messages
from a jury should be disclosed to counsel and that counsel should be afforded an opportunity to be
heard before the trial judge responds.” Collins, 665 F.3d at 459 (quotation marks omitted). Indeed,
we have set forth the following guidelines for the “proper practice” in handling a jury note: “(1) the
jury inquiry should be in writing; (2) the note should be marked as the court’s exhibit and read into
the record with counsel and defendant present; (3) counsel should have an opportunity to suggest a
response, and the judge should inform counsel of the response to be given; and (4) on the recall of
the jury, the trial judge should read the note into the record, allowing an opportunity to the jury to
correct the inquiry or to elaborate upon it.” United States v. Mejia, 356 F.3d 470, 475 (2d Cir. 2004).
The parties do not dispute that the District Court failed to read the note into record with
defense counsel present and to afford defense counsel an opportunity to suggest a response.
2 In relevant part, Rule 43 provides:
(a) When Required. Unless this rule, Rule 5, or Rule 10 provides otherwise, the defendant must be present at:
(1) the initial appearance, the initial arraignment, and the plea;
(2) every trial stage, including jury impanelment and the return of the verdict; and
(3) sentencing.
Fed. R. Crim. P. 43(a).
3
However, “[n]ot every violation of a defendant’s right to be present will result in reversal[;] [s]uch a
violation only requires reversal if it is not harmless.” Collins, 665 F.3d at 460.
We have noted “[t]here is some conflicting authority regarding the standard of review
applicable to the harmless error analysis” in this context. Id. Indeed, in some cases we have “stated
that a violation of a defendant’s right to be present is not harmless if his ‘absence created any
reasonable possibility of prejudice,’” id. (quoting United States v. Fontanez, 878 F.2d 33, 37 (2d Cir.
1989)), while in others “we have analyzed this type of case under a more deferential standard:
whether the court can say with ‘fair assurance . . . that the judgment was not substantially swayed by
the error.’” Collins, 665 F.3d at 461 (quoting Krische v. Smith, 662 F.2d 177, 179 (2d Cir. 1981)).
Nonetheless, we need not resolve this issue here because under either formulation there is no doubt
that the error was harmless.
Indeed, it is clear from a review of the record that defense counsel’s absence did not create
any reasonable possibility of prejudice. The jury’s note did not involve a substantive question of
law; it merely asked an administrative question, i.e., whether the jurors could use their time at home
to read through the lengthy charge. See United States v. Ballistrea, 101 F.3d 827, 837 (2d Cir. 1996) (no
reversible error where the communication with the jury “largely concerned administrative matters”).
Unlike cases in which we have found prejudice resulting from the absence of defense counsel, the
wording of the District Court’s response in this situation was not significant, cf. United States v.
Ronder, 639 F.2d 931, 934 (2d Cir. 1981), and the note came at the beginning of the jury’s six-day
deliberation, cf. Collins, 665 F.3d at 463-64, and in no way guided the jury’s verdict. In short, we are
confident that, under any standard of review, the District Court’s error in responding to the jury’s
note in the absence of defense counsel was, in these circumstances, harmless.
CONCLUSION
We have reviewed the record and the parties’ arguments on appeal. For the reasons set out
above, we AFFIRM the May 12, 2011 order of the District Court.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
4
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777 F.2d 150
Claude HOLLAND, Appellant,v.ATTORNEY GENERAL OF NEW JERSEY.
No. 84-5895.
United States Court of Appeals,Third Circuit.
Argued Sept. 27, 1985.Decided Nov. 22, 1985.
David A. Ruhnke, West Orange, N.J., for appellant.
George L. Schneider, Essex County Prosecutor, Elizabeth A. Duelly, Asst. Essex County Prosecutor (argued), Newark, N.J., for appellee.
Before GIBBONS, SLOVITER and STAPLETON, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
1
Appellant Claude Holland was convicted of multiple counts including armed robbery and assault with intent to kill in the New Jersey Superior Court. The Appellate Division of the New Jersey Superior Court affirmed the conviction and the New Jersey Supreme Court refused his petition for certification. Having exhausted his state remedies, Holland filed a petition for a writ of habeas corpus in the District Court for the District of New Jersey, where he claimed a violation of the federal constitutional rights due him under the doctrine enunciated in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The district court denied the writ on the ground that the error was harmless. We cannot agree and therefore reverse the judgment of the district court.
I.
Facts and Procedural History
2
Shortly after midnight on May 1, 1974, three masked black men broke into a home in Short Hills, New Jersey, tied up the occupants, threatened them with a shotgun and ice pick, and stole about $10,000 worth of valuables. None of the occupants was able to identify any of the intruders.
3
Police Officer Wade of the Millburn Police Department was on patrol duty near the Short Hills railroad station watching traffic, about three-quarters of a mile from the scene of the robbery. At 1:07 a.m. he noticed a white Volvo with a missing headlight, and followed it. A green Buick in front of it then drove through a red light in making a right turn. Officer Wade pursued and stopped the Buick. Officer Wade noticed two people in the front seat and walked to within four to five feet of the car on the driver's side. As Officer Wade waited for the occupants to respond to his request for license and registration, a third occupant in the back seat, whom he had not seen before, thrust the muzzle of a sawed-off shotgun out the back window, and told Officer Wade to freeze. Officer Wade ducked and ran back toward his squad car. After he heard a shot, he fired two shots at the Buick. The car sped away, and Officer Wade followed. Shortly thereafter he found the car abandoned. Among the items found near or in the Buick were a shotgun, items stolen during the robbery, a wallet containing the driver's license of Clifford English, and various pieces of clothing used in the robbery. No suspects were apprehended at the scene.
4
Later that morning, Officer Wade accompanied New York City police officers to Brooklyn. They located Clifford English, and after Officer Wade identified English as the car's driver, English was taken into custody. Three or four days later, Officer Wade viewed several hundred pictures in the I.D. Bureau in New York City, but made no identification of any other suspect.
5
Two years later, in the summer of 1976, Shirley Payton, who was living in Chicago, called the New York City Police Department and implicated her husband, Richard Payton, in various crimes in the New York and New Jersey area. Payton was arrested by the Chicago police at New York's request, and Payton confessed a number of crimes, including the Short Hills robbery, to Detective John Daly of the New York City Police Department. Payton implicated Claude Holland as well as Clifford English in the Short Hills robbery.
6
In August 1976, Officer Wade went to New York to view a lineup containing suspects of the robbery, but the lineup was not held. Instead, it was arranged to have the New York police send photographs. In October 1976, Officer Wade viewed a four-photograph spread and identified the pictures of Holland and Payton as the front seat and back seat passengers respectively of the green Buick he had stopped on May 1, 1974.
7
Holland and Payton were scheduled to be tried together. Prior to trial, Holland's attorney moved for a severance, and contended that admission against Payton of Payton's confessions to his wife and to Detective Daly which inculpated Holland would contravene the holding in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Supreme Court held that a defendant's Sixth Amendment right to confrontation is violated by the admission of a co-defendant's extra-judicial confession implicating the defendant. The trial judge denied the motion to sever. Before trial, the court held a Bruton hearing, and ruled that references to Holland could be effectively excised.
8
A Bruton error occurred during the trial when Detective Daly, in response to a question by Payton's defense counsel, testified that "[Shirley Payton] had told me that Richard Payton and Claude Holland and ... Clifford English were involved in a house robbery in New Jersey." App. at 954A. Since Shirley Payton's statement was based on Richard Payton's confession to her, and Richard Payton was unavailable for cross-examination because he did not testify, this testimony contravened both the letter and spirit of the Bruton decision.
9
Holland objected immediately. After a brief side bar discussion, the trial court dismissed the jury and held further discussions on the issue that afternoon and the next morning. Thereafter, the trial court denied Holland's motion for a mistrial. The court stated it was satisfied that the testimony by Detective Daly was due to inadvertence and that there was no intention to violate the court's order. The court also stated that it could give an appropriate instruction to the jury to disregard the testimony, and the jury would follow that instruction. It reserved to Holland the right to reapply for a mistrial at the trial's end.
10
After lunch, the jury was recalled and, with consent of counsel, was told that:
11
Now, it appears that Officer Daly was confused about the last question asked him yesterday by Mr. Clancy and as a result there was some confusion concerning Officer Daly's answer to that question.
12
Therefore, I instruct you that you, ladies and gentlemen, are to completely disregard for any purpose whatsoever Officer Daly's confused answer.
13
App. at 1011A-12A. The trial, which had been recessed for 24 hours beginning immediately after Detective Daly's testimony that Shirley Payton had implicated Holland, then resumed.
14
A week later, during the prosecutor's summation, Holland held a note stating, "God is my judge, I've done no wrong", in the direction of the jury. App. at 1351A. The court questioned each juror separately about whether the juror saw the note, whether the note would affect the juror's consideration of the case, and whether the juror would be able to decide the case only upon the evidence heard in the courtroom. The court concluded that the jurors had not been affected by the note and that they would be able to decide the case solely on the evidence before them.
15
The jury convicted both Holland and Payton. Holland's motion for a new trial was denied by the trial judge. The New Jersey Appellate Court affirmed the convictions, holding, inter alia, that the Bruton error was "at most harmless error". In denying the petition for a writ of habeas corpus on the basis of the Bruton error, the district court also ruled that the error was harmless beyond a reasonable doubt because "the independent evidence of petitioner's guilt was in fact overwhelming." App. at 16A.
II.
28 U.S.C. Sec. 2254(d)
16
The district court suggested that there was a "presumption of correctness" under 28 U.S.C. Sec. 2254(d) applicable here. We turn to that issue first.
17
Section 2254(d) requires that a federal court deciding an application for a writ of habeas corpus must accord a presumption of correctness to "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction," 28 U.S.C. Sec. 2254(d) (1982), unless one of the eight exemptions set forth in that section is relevant.
18
The scope of Sec. 2254(d) has been elucidated in a series of recent Supreme Court decisions. The Court has applied the Sec. 2254(d) presumption of correctness to state court factual findings that a prospective juror was properly excluded for cause, Wainwright v. Witt, --- U.S. ----, 105 S.Ct. 844, 853-55, 83 L.Ed.2d 841 (1985); that a juror's ex parte communications with the court did not affect the jury's impartiality, Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983) (per curiam); that an individual juror was impartial, Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 2891-93, 81 L.Ed.2d 847 (1984), and Smith v. Phillips, 455 U.S. 209, 213-14, 218, 102 S.Ct. 940, 944, 946, 71 L.Ed.2d 78 (1982); that a defendant was competent to stand trial, see Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983); that a defendant's plea in an earlier proceeding was knowingly and intelligently made, Marshall v. Lonberger, 459 U.S. 422, 430-37, 103 S.Ct. 843, 849-52, 74 L.Ed.2d 646 (1983); and that witnesses identifying a defendant as participating in a prison murder were not unduly influenced by investigating officers, had an adequate opportunity to view the crime, and proffered accurate descriptions, Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982); see also Sumner v. Mata, 449 U.S. 539, 543, 552, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981).
19
The Court has noted that "[i]t will not always be easy to separate questions of 'fact' from 'mixed questions of law and fact' for Sec. 2254(d) purposes," Wainwright v. Witt, 105 S.Ct. at 855.1 In Patton v. Yount, the Court explained that the question of the partiality of an individual juror
20
is not one of mixed law and fact. Rather it is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed....
21
There are good reasons to apply the statutory presumption of correctness to the trial court's resolution of these questions. First, the determination has been made only after an often extended voir dire proceeding designed specifically to identify biased veniremen. It is fair to assume that the method we have relied on since the beginning ... usually identifies bias. Second, the determination is essentially one of credibility, and therefore largely one of demeanor. As we have said on numerous occasions, the trial court's resolution of such questions is entitled, even on direct appeal, to "special deference." ... The respect paid such findings in a habeas proceeding certainly should be no less....
22
104 S.Ct. at 2891-92 (citations and footnotes omitted).
23
The "findings" to which the district court thought the presumption of correctness applied are not analogous to those at issue in Patton v. Yount or any of the other cases in which the Court applied Sec. 2254(d). The "findings" appear in two contexts.
24
First, at the time that the Bruton error was called to the state trial court's attention by Holland, the court stated:
25
I am satisfied at this time based upon my observations, my communications and my experiences with this jury during the course of this trial that this jury has the ability to follow instructions given to the jury by this Court and that upon an appropriate instruction being given to the jury to disregard for any purposes the testimony in question, the jury will follow that instruction and such testimony will not contribute to any verdict rendered by the jury in this case.
26
App. at 1001A-02A (emphasis added).
27
Second, when the note held by Holland during the summation was called to the court's attention, the court held an individual voir dire of each juror on the issue of the note.2 The summation was then permitted to resume. Thereafter, when Holland renewed his motion for a new trial on, inter alia, the Bruton issue, the court explained again the basis of its prior ruling, stating:
28
At the end of the trial during summations the defendant Claude Holland held up a sign to the view of the jurors telling the jurors that he was innocent or some other words of similar import. As a result I declared a recess and at the request of all counsel I spoke to each of the jurors individually. That experience gave me an opportunity to speak with the jurors nose to nose so to speak and to gain some insight as to how they were reacting to the trial. All counsel were present when I spoke to each of the jurors, all of the jurors I think except two readily admitted not only seeing the sign but discussing it with the other jurors and told me basically what they had talked about. I then asked each of the jurors whether they could disregard what had been done and each of the jurors quite readily assured me they could. I was impressed not so much by what they said but the manner in which they said it, their demeanor at the time that I spoke with them, I detected no anger or hostility or any other ill feelings toward the defendant Holland. I was convinced at that point that these jurors were going to decide this case based on the evidence before them and I became even more certain after that experience that the corrective charge I gave concerned [sic] a Bruton problem was sufficient.
29
Ra at 43-44 (emphasis added).
30
The district court, apparently referring to these two statements by the trial court, stated:
31
Here too, the trial court, and the appellate court after it, found that the jury was, in fact, able to follow a jury instruction promptly given and corrected by proper testimony. The trial court's conclusion, based upon a unique opportunity to question each juror, is supported by the record presented to this court. Nor has petitioner borne his burden of rebutting the presumption of correctness which attends the ruling of a trial court which is in a far better position than is this court to evaluate the jury's processes.
32
App. at 18A.
33
Unlike the district court, we see no finding of historical fact. It is evident that the court's first ruling, that the jury "will follow" its instruction and that such testimony "will not contribute to any verdict", is not a finding of historical fact but is merely a prediction. Although a finding of juror bias or absence of bias is often framed in terms of whether a juror will be able to set aside his or her own opinion and render a verdict based on the evidence, in effect a trial court's determination on the bias of a juror is a determination based on the juror's present state of mind. As the Court stated in Wainwright v. Witt, "whether a venireman is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the venireman's state of mind." 105 S.Ct. at 854. In contrast, the trial court's statement that the jury will follow its instructions reflected merely its opinion.
34
Nor does the trial court's second statement contain any "findings" that fall within Sec. 2254(d). Unlike Patton v. Yount where the voir dire focused on the impact of the pretrial publicity, the subject of the state court's findings, here the only voir dire that was conducted related to the effect of Holland's note. The trial court's determination of credibility and demeanor was not made in the context of any inquiry on the Bruton error. Since the court failed to question the jury on the impact of the Bruton evidence, it could make no Sec. 2254(d) "finding ... based upon [a] determination[ ] ... of credibility." Wainwright v. Witt, 105 S.Ct. at 854. At most, what we have is an expression by the trial court of its confidence in the integrity of the jurors. Although that may have been based on the court's observation, it is not a finding of historical fact to which a federal court must give deference. In light of the absence of any voir dire on the impact of the Bruton error, we need not decide whether that is the type of finding encompassed by Sec. 2254(d).
35
Finally, the trial court relied in large part on the value of its "curative instruction." In Bruton v. United States, the Court held that a trial court's limiting instructions to the jury are insufficient protection because there is a great risk that the jury will not or cannot follow those instructions. 391 U.S. at 135, 88 S.Ct. at 1627. In any event, we conclude that Sec. 2254(d) is inapplicable here because there were no determinations made to which a presumption of correctness must be accorded.III.
The Harmless Error Issue
36
The district court stated, "[p]etitioner claims, and the state does not dispute, that [the testimony of Detective Daly] constituted a Bruton violation." App. at 15A. The district court treated it as such, as did the state trial court and the state Superior Court. It is of some significance, therefore, that the error was not merely one involving the "admission of inadmissible hearsay or other evidence," Bruton v. United States, 391 U.S. at 135, 88 S.Ct. at 1627. Instead, admission of Payton's confession in the joint trial "violated [Holland's] right of cross-examination secured by the Confrontation Clause of the Sixth Amendment," id. at 126, 88 S.Ct. at 1622, in that it negated Holland's " 'opportunity to cross-examine the witnesses against him.' " Id. (quoting Pointer v. Texas, 380 U.S. 400, 406-07, 85 S.Ct. 1065, 1069-70, 13 L.Ed.2d 923 (1965)).
37
Of course, it is now established law that erroneous admission of evidence, even evidence admitted in violation of a constitutional right, is not automatically reversible error. In Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), the Court held that federal constitutional errors which are harmless beyond a reasonable doubt do not require reversal, but that the beneficiary of the error, the state, bears the burden of proving harmlessness. Id. at 23-24, 87 S.Ct. at 827-28. In Chapman, the inquiry into harmlessness was articulated as "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Id. at 23, 87 S.Ct. at 827 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171 (1963)).
38
Whether the alleged constitutional error was harmless is a question of federal law. Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983). This frequently requires that the federal habeas court review the untainted evidence, a review that the district court undertook and that falls equally upon us since the issue is one of law.
39
Excluding Detective Daly's improper testimony about Holland, the evidence against Holland can be summarized as follows:
40
(1) Shirley Payton's testimony established that she had been friends with Holland since about 1960; that Holland had introduced her to Payton, whom she subsequently married; that English and Holland knew each other and that English's girlfriend and Holland's wife were both nurses at the same hospital and also knew each other; that in 1974, Holland was involved with a messenger service business in New Jersey and that Payton had accompanied him on several trips; that on the night of April 30, 1974, Holland and English came to the Payton apartment to pick up Richard Payton; that before they left that night, Richard took some gloves, a hat, and a sawed-off shotgun; that several of the items found in the green Buick either came from Shirley Payton's apartment or had been worn by Richard Payton when he left the apartment on the night of April 30; and that Richard Payton confessed to her on May 1 that he had robbed a house and shot at a police officer who had followed him.
41
(2) Officer Wade identified Holland as the front-seat passenger of the Buick, both at the time Officer Wade reviewed the four-photograph array and at trial. Officer Wade was an experienced police officer with 22 1/2 years of service, and he testified that he stopped the car at a very well lit intersection and his attention was focused on the car's occupants because of the situation.
42
(3) The evidence established that Holland had knowledge of the crime area since he had worked with a package delivery service and his route included Millburn and Short Hills.
43
Referring to the above evidence, the district court stated, "the independent evidence of petitioner's guilt was ... overwhelming." App. at 16A. The court concluded the error was harmless, relying principally on three cases in which the Supreme Court applied the harmless error doctrine to Bruton violations.
44
In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), petitioner, who was white, and his three black co-defendants were convicted of first-degree murder and attempted robbery. Each of the co-defendants confessed and the Bruton error consisted of the admission of references in two of the confessions to the "white guy", which the Court assumed identified Harrington. The Court held that the Bruton violation was harmless error because the illegal evidence was "cumulative", and the remaining evidence against Harrington "was so overwhelming" in showing guilt that the conviction need not be set aside. Id. at 253-54, 89 S.Ct. at 1728-29. Harrington's own testimony put him at the scene of the crime. One of the co-defendants testified and implicated Harrington as did two victims of the attempted robbery. See id. at 256, 89 S.Ct. at 1729 (Brennan, J., dissenting). As the majority noted, "[t]he case against Harrington was not woven from circumstantial evidence." Id. at 254, 89 S.Ct. at 1728.
45
A Bruton error was also found harmless in Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), where the Court stated, "[i]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant's admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error." Id. at 430, 92 S.Ct. at 1059. In Schneble, the overwhelming independent evidence consisted of, inter alia, Schneble's own confession, "minutely detailed and completely consistent with the objective evidence," id. at 430, 92 S.Ct. at 1059, which included Schneble's informing police of the precise location of the body. The Court thus concluded that "the 'minds of an average jury' would not have found the State's case significantly less persuasive had the [improper] testimony ... been excluded." Id. at 432, 92 S.Ct. at 1060.
46
In the third case, Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), a Bruton error occurred in a trial for conspiring to transport and transporting stolen goods. Here again, there was a confession by each petitioner and there were 20 photographs taken of the crime in progress, as well as other incriminating evidence, including the testimony of five witnesses who saw petitioner unloading boxes late at night and carrying them into a store where the stolen merchandise was found. A unanimous Court concluded, "[t]he testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury." Id. at 231, 93 S.Ct. at 1570.
47
The non-tainted evidence in the case before us differs in quantity and quality from that in the three cases before the Supreme Court. Shirley Payton's testimony, which places Holland in the Payton apartment with Payton and English on the evening of the robbery, is clearly damaging. Appellant attempts to lessen its importance by implying that it is unreliable because Shirley Payton had not previously mentioned this gathering at Payton's apartment on April 30 to anyone until her testimony in court. But Shirley Payton had no reason to falsely implicate Holland, and she responded to appellant's cross-examination consistently and gave reasonable responses about her motives in testifying. The record demonstrates that it was reasonable of the jury, who also could observe Shirley Payton on the stand, to find her testimony credible. Even giving it full credibility, it was at most circumstantial, and did not serve to place Holland unmistakably at the scene of the crime.
48
Officer Wade's identification, if fully credited, would tend to do that. Notwithstanding Wade's long and apparently distinguished service as a policeman, some reservations about his identification are inevitable. First, the identification took place almost 2 1/2 years after the incident. Second, Officer Wade admitted he had only 20 seconds to observe the car's occupants, he was standing some five feet from the side of the car and the front seat passenger was thus several feet further from him, and for at least part of that 20 seconds the front seat passenger had leaned toward the glove compartment. Third, Wade's original description of the front seat occupant failed to mention as a distinguishing feature Holland's prominently receding hairline, and referred to the front seat passenger as a "dark skinn[ed]" Negro whereas he was in fact, as Wade conceded in his courtroom identification, a light-skinned Negro. At trial, although Wade stated that he saw the eyes, nose and mouth of the front seat passenger, he stated he couldn't see or didn't notice whether he had a mustache. Further, for unexplained reasons, Wade had not made a composite of the front seat passenger as he had of the rear seat passenger. On the other hand, Wade attributed the error as to skin shade on the mercury lights, described the lighting conditions at 1:00 a.m. as "excellent", App. at 469A, and persisted in his unequivocal identification during cross examination.
49
However, Wade's very persistence elsewhere in his testimony is troubling. He testified that when he pursued the Buick through various turns on the street at 45 or 50 miles an hour, the Buick turned around a corner on Baltusrol Avenue and was out of his view for three seconds. When he next observed it, it had mounted a curb, the right passenger door was open, and it was empty. The nearest hiding place for any occupants was at least 35 feet away. Wade persisted in his implausible testimony that in a three-second period "the green Buick went around the corner, mounted the curb, stopped, the right hand door opened, three men got out of it and ran at least thirty-five feet," App. at 571A.
50
While the jury might, and apparently did, still credit Wade's identification of Holland, we believe that the short period Wade had for observation, the long time that intervened before the identification, the apparent disparity in identifying skin color, and the lack of any corroborating witnesses to the identification distinguish his eyewitness identification from the non-tainted evidence in the harmless error cases decided by the Supreme Court.
51
The final evidence referred to by the district court and emphasized by the state, Holland's knowledge of the crime area, was hardly inculpating in itself, although it could have supported an inference of his participation, since at least one of the robbers must have had some familiarity with the area.
52
Holland concedes that the non-tainted evidence in this case was sufficient for the jury to find him guilty beyond a reasonable doubt. That is not the question before us. As the Supreme Court stated in Fahy v. Connecticut, 375 U.S. at 86, 84 S.Ct. at 230, the question of harmless error is not simply whether there is other legally "sufficient evidence [of guilt] on which the accused could have been convicted without the evidence complained of." A harmless error inquiry into whether evidence of guilt was overwhelming cannot be collapsed into whether it was sufficient.
53
There is little purpose to be served for an extended dissertation on the difficulties of applying the harmless error doctrine. The issue has been the subject of extensive learned comment elsewhere. See, e.g., R. Traynor, The Riddle of Harmless Error (1970); Field, Assessing the Harmlessness of Federal Constitutional Error--A Process in Need of a Rationale, 125 U.Pa.L.Rev. 15 (1976); Saltzburg, The Harm of Harmless Error, 59 Va.L.Rev. 988 (1973). There is some pertinence, however, to Professor Field's suggestion that the Supreme Court has variously formulated the harmless error standard, in some cases inquiring whether the constitutional error might have contributed to a guilty verdict and in others whether the non-tainted evidence was overwhelming to support the jury's verdict. See Field, supra, 125 U.Pa.L.Rev. at 32. In Harrington v. California, the majority vigorously disclaimed that its use of the "overwhelming evidence" test represented a departure from Chapman, 395 U.S. at 254, 89 S.Ct. at 1728. In any event, we believe that in this case both inquiries lead to the same conclusion.
54
Focusing on the non-tainted evidence first, we cannot consider the tainted evidence as merely cumulative. No eyewitness to the robbery placed Holland at the scene and Officer Wade's identification, placing Holland in what we can assume was the get-away car, is not otherwise corroborated by independent evidence. Thus, this case is distinguishable from United States v. DiGilio, 538 F.2d 972 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977), cited by the state, where the improperly admitted Bruton evidence was not "significantly different" from untainted evidence, which was itself corroborated by other testimony. Id. at 983.
55
Nor do we believe that we can appropriately characterize the evidence, albeit sufficient to support a guilty verdict, as overwhelming. We believe this case is akin to Chapman which the Court described as "present[ing] a reasonably strong 'circumstantial web of evidence' against petitioners," but also one "in which, absent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts." 386 U.S. at 25-26, 87 S.Ct. at 828-29. We believe the evidence produced here was not significantly stronger than that this court described as "marginal evidence" in United States v. Reynolds, 715 F.2d 99, 105 (3d Cir.1983), where we held the Bruton error was not harmless.
56
Turning next to the possible effect of the error, we cannot discount the possibility that the evidence complained of contributed to the jury's verdict even though we might also have found Holland guilty had we been the jurors. Payton's implication of Holland supplied the link between Holland's presence at the apartment and his identification by Officer Wade. The jury, albeit later given an instruction to disregard Daly's answer, could not disregard the evident consternation that the answer created. There was an immediate objection by counsel followed by a side bar conference, and the jury was then recessed in steps for some 24 hours. During that period, Daly's testimony that Payton had implicated Holland was the last piece of evidence before the jurors. Under the circumstances, the instruction given to the jury upon resumption of the trial to disregard Daly's answer, which was euphemistically termed "confused" by the court, imposed on the jurors an unrealistic mental gymnastic.
57
The review of any criminal trial to determine if there was harmless error inevitably entails a subjective judgment. Compare United States v. Scarfo, 685 F.2d 842, 846-47 (3d Cir.1982) (Sloviter, J.) with id. at 849-51 (Gibbons, J. dissenting). When the inquiry is made by a federal habeas court reviewing a state criminal trial, there are even more delicate considerations. However, we cannot shirk the responsibility placed upon us when we are convinced that conceded error cannot conclusively be regarded as harmless under any formulation of the harmless error doctrine. This is one such case.
IV.
Conclusion
58
For the reasons set forth above, we will remand the case to the district court with the direction that a writ of habeas corpus shall issue unless within a reasonable time the State of New Jersey shall afford petitioner a new trial.
1
In Wainwright v. Witt, --- U.S. ----, 105 S.Ct. 844, 853-55, 83 L.Ed.2d 841 (1985) and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984), the Court reaffirmed its earlier holding that mixed questions of law and fact are not subject to the Sec. 2254(d) presumption of correctness. Although we stated otherwise in Patterson v. Cuyler, 729 F.2d 925, 930-32 (3d Cir.1984), and Miller v. Fenton, 741 F.2d 1456, 1461-62 (3d Cir.1984), cert. granted, --- U.S. ----, 105 S.Ct. 1863, 85 L.Ed.2d 157 (1985), whether the findings at issue in those cases fall within the Court's expanded definition of "findings of fact" may be clarified this term, since the Supreme Court has granted certiorari in Miller
2
The court's inquiry is illustrated by the following colloquy:
THE COURT: Mrs. Best, it has come to my attention that the defendant Claude Holland held up a note during the course of Mr. Rosenfeld's summation. Did you see that note?
MRS. BEST: Yes, I did.
THE COURT: Were you able to read it?
MRS. BEST: Yes, I was.
THE COURT: Did you discuss that note with any of the other jurors?
MRS. BEST: Yes, I have.
THE COURT: To what extent?
MRS. BEST: We just were saying had we seen it, that's all, had everyone seen it.
THE COURT: That was the extent of the conversation?
MRS. BEST: That was it.
THE COURT: Will that note have any effect on you at all in this case?
MRS. BEST: No.
THE COURT: Will you be able to, Mrs. Best, put that aside and decide this case only upon the evidence you're going to hear in this courtroom?
MRS. BEST: Yes, I will.
THE COURT: All right, thank you.
Please don't discuss with the other jurors what we just talked about.
App. at 1363A-64A.
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ACCEPTED
14-14-01016-cv
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
1/12/2015 2:04:14 PM
CHRISTOPHER PRINE
CLERK
NO. 12-FD-3409
INTHEMATTEROF § IN THE DISTRICT
FILED COURT
IN
THE MARRIAGE OF § 14th COURT OF APPEALS
§ HOUSTON, TEXAS
LARA MARIE CHARPENTIER § 1/12/2015 2:04:14 PM
AND § CHRISTOPHER A. PRINE
306TH JUDICIALClerkDISTRICT
JASON WALTER CHARPENTIER §
§
AND IN THE INTEREST OF §
HAZEL CHARPENTIER, GEORGE §
CHARPENTIER, SAMUEL §
CHARPENTIER AND JAMES §
CHARPENTIER, CHILDREN § GALVESTON COUNTY, TX
NOTICE OF APPEAL
TO THE COURT:
Respondent, Jason Walter Charpentier, hereby give notice of his desire to
appeal the final judgment signed on or about 4 November 2014, by the 306 1h
Judicial District Court of Galveston County, Texas, in cause number 12-FD-3409,
styled In the Matter of the Marriage of Lara Marie Charpentier and Jason Walter
Charpentier and in the Interest of Hazel Charpentier, George Charpentier,
Samuel Charpentier and James Charpentier, Children.
Appeal is hereby taken to either the First or Fourteenth Courts of Appeals
in Harris County, Texas.
This notice is filed by respondent, Jason Walter Charpentier.
DATED: December 20, 2014.
1
2402 Pease St
Houston, TX 77003
713.247.9548
713.583.9523 (fax)
E-mail: [email protected]
ATTORNEY FOR JASON WALTER
CHARPENTIER
Certificate of Service
I hereby certify that, I have served the forgoing document upon the
following attorneys by personal mail, by commercial delivery service, by fax, or
by electronic service:
Bill de Ia Garza
Kimberly D. Levi
17050 El Camino Real
Houston, TX 77058
Date: 17-- 'h.J r 7-0/f
2
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390 F.3d 328
Sandra WHEATLEY; Jane Grogan, Plaintiffs-Appellants,v.WICOMICO COUNTY, MARYLAND, Defendant-Appellee.
No. 03-2406.
United States Court of Appeals, Fourth Circuit.
Argued: September 29, 2004.
Decided: November 22, 2004.
COPYRIGHT MATERIAL OMITTED Francis Joseph Collins, Kahn, Smith & Collins, P.A., Baltimore, Maryland, for Appellants. Shirlie Norris Lake, Eccleston & Wolf, Baltimore, Maryland, for Appellee.
Before WILKINSON and LUTTIG, Circuit Judges, and Henry E. HUDSON, United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge LUTTIG and Judge HUDSON joined.
WILKINSON, Circuit Judge:
1
Sandy Wheatley and Jane Grogan supervise the Wicomico County, Maryland, Emergency Services Department, which includes the 911 call center. In June 2001, they sued the County, alleging violations of the Equal Pay Act and Title VII. Ms. Grogan and Ms. Wheatley claim that male department supervisors are paid significantly more than female department supervisors, despite the fact that all perform substantially equal managerial work. The plaintiffs also accuse the County of sex discrimination.
2
We are unpersuaded that "equal work" under the Equal Pay Act can be established when two employees have similar titles but responsibilities that bear no more than the most general resemblance. We likewise affirm the district court's dismissal of plaintiffs' Title VII claims.
I.
3
Wicomico County employs over 500 people, organized in approximately eleven different departments. The departments vary in size and function. The Emergency Services Department is comprised of approximately 22 people; it operates the 911 call center 24 hours a day, 365 days a year. Since 1986, Sandy Wheatley has served as director of the Emergency Services Department. Jane Grogan has been the deputy director since 1997. Neither woman's job competence has been questioned.
4
Beginning in 1999, Wicomico County commissioned a study to evaluate its compensation schedule for all 500 of its employees. The purpose of the study was to ensure that County employees were being paid equally for equal work, and also to guarantee that they were being paid comparably to persons in the same positions in other jurisdictions. This "Hendricks Study," performed by Charles Hendricks, led Wicomico County to reconfigure its pay schedule.
5
The new plan created 22 separate grades and assigned a numerical grade to all County jobs. Grade assignments were based on seven criteria: education, job complexity, scope and impact, supervision, working relationships, working environments, and physical demands. Mr. Hendricks chose these seven criteria because he found them comparable to the four criteria set forth in the Equal Pay Act.1
6
Once the jobs were assigned a grade, individual salaries were set using a mathematical formula, based in part on pre-study salaries. Within each grade, the Hendricks study recommended a minimum, maximum, and mid-point salary. Ms. Wheatley's job was originally classified as Grade 16, though it was re-classified as Grade 17 after she filed a complaint with the County Administrative Director. Although she received an 18% pay increase as a result of the Hendricks study, her salary was set below the mid-point of her grade. Ms. Grogan's job was classified as a Grade 13 — her pay increased by a similar proportion, but she too received a salary below the mid-point of her grade. Ms. Wheatley now earns $65,808 annually, and Ms. Grogan earns $49,164.
7
The case proceeded to trial on October 20, 2003. Ms. Wheatley and Ms. Grogan offered statistical evidence to demonstrate a pay disparity between male department leaders and female department leaders. Both plaintiffs suggested that they are paid, on average, $25,000 a year less than the male directors and deputy directors in other departments. Additionally, plaintiffs submitted statistics indicating that while they were assigned salaries below the midpoint for their Hendricks grades, all male directors and deputy directors were given salaries above their grade midpoints.
8
Ms. Wheatley and Ms. Grogan also attempted to demonstrate that department managers all perform the same general duties. Ms. Wheatley testified that, like herself, directors of other departments supervise subordinates, conduct staff meetings, prepare budgets, answer to the same County Council, and otherwise manage their departments. She told the jury that, aside from a difference in subject-matter, all department heads bore the same responsibilities.
9
After two and a half days of presenting evidence, plaintiffs rested. Before putting on its case, the County made a motion for judgment as a matter of law. The trial judge heard argument on the motion. It was during this argument that plaintiffs' counsel first articulated a new theory of the case. He argued that plaintiffs perform work substantially equal to the work performed by male employees whose jobs are assigned the same Hendricks Grades. On this new theory of the case, Ms. Wheatley would point not to other department heads but to male employees in Grade 17 as her comparators, and Ms. Grogan would compare herself to males in Grade 13.
10
At this point in the hearing, the district court expressed frustration with the new strategy. He emphasized that "from the outset," the case had been tried "on the theory that the heads of the departments are comparable positions, both for purposes of Title VII and the Equal Pay Act." The court concluded that plaintiffs had failed to establish sufficient comparability with these department leaders. As for a potential comparison to employees in the same Hendricks grade, he concluded that this theory of the case should have been identified earlier. Since it was not announced until after all of plaintiffs' evidence had already been submitted, the trial judge refused to entertain the new argument.
11
The district court granted the County's motion for judgment as a matter of law, and plaintiffs now appeal.
II.
12
The granting of a motion for judgment as a matter of law is reviewed de novo. Corti v. Storage Tech. Corp., 304 F.3d 336, 341 (4th Cir.2002). Such a motion is properly granted "if the nonmoving party failed to make a showing on an essential element of his case with respect to which he had the burden of proof." Singer v. Dungan, 45 F.3d 823, 827 (4th Cir.1995)(internal quotation omitted).
13
Ms. Wheatley and Ms. Grogan allege Wicomico County violated the Equal Pay Act ("EPA") which provides:
14
No employer ... shall discriminate ... between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.
15
29 U.S.C. § 206(d)(1)(2000). To make out a prima facie case under the EPA, the burden falls on the plaintiff to show that the skill, effort and responsibility required in her job performance are equal to those of a higher-paid male employee. Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). In interpreting the EPA," `[e]qual means substantially equal.'" Hodgson v. Fairmont Supply Co., 454 F.2d 490, 493 (4th Cir.1972)(quoting Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir.(1970))).
16
The plaintiffs eventually articulated two separate legal theories, both anchored in the EPA. The district court found their first argument to be deficient, and their second argument to be tardy. For the reasons that follow, we agree.
A.
17
We first address plaintiffs' original theory of the case — the one relied upon at trial. As expressed in their opening statement, Ms. Wheatley and Ms. Grogan's strategy was to compare their jobs to jobs held by male department heads. To support their theory, the women relied on evidence that all managers — regardless of department subject matter — ultimately perform the same supervisory duties. They all, for instance, prepare budgets, monitor employees, and conduct meetings.
18
We decline to accept the argument, however, that employees with the same titles and only the most general similar responsibilities must be considered "equal" under the EPA. In actuality, plaintiffs present a classic example of how one can have the same title and the same general duties as another employee, and still not meet two textual touchstones of the EPA — equal skills and equal responsibility.
19
First, it is simply not the case that all department director positions require equal skills. Both the Director and Deputy Director of Public Works in Wicomico County, for instance, are required to hold graduate degrees in civil engineering. By contrast, Ms. Wheatley and Ms. Grogan perform their jobs well without possessing any advanced degrees at all. While it is certainly true that plaintiffs provide valuable services to the County, it would be disingenuous to argue that their jobs require skills substantially equal to the jobs which require engineers to direct the Department of Public Works. Indeed, to accept plaintiffs' position would mean that although market demand for different skills may vary greatly, the salaries that employers pay for such skills must be the same.
20
The case law reveals a helpful analogy. In Soble v. University of Maryland, 778 F.2d 164 (4th Cir.1985), a female Assistant Professor sought to compare herself, for purposes of the EPA, to other assistant professors in a dental school. Professor Soble, who taught in the field of community dentistry, held degrees in sociology and social work. Id. at 167. The vast majority of her colleagues, however, held degrees in dentistry. We found that merely possessing the same title of "assistant professor" was not enough to satisfy the EPA requirement of "equal skills." Id. Because the professorships in other departments were "highly specialized and require[d] distinct skills" we foreclosed Professor Soble from making an EPA comparison to them. See also Strag v. Bd. of Trustees, 55 F.3d 943, 950 (4th Cir.1995)(employing similar analysis for the EPA claim of a female math instructor). Similarly, pointing to the mere appellation of "department head" does not suffice to carry plaintiffs' burden under the skills prong of the EPA.
21
In addition to their failure to show equal skills, Ms. Wheatley and Ms. Grogan also fall short of satisfying a second major EPA requirement. They fail to establish that their jobs and the jobs of other department heads carry substantially equal responsibilities. We have explained that jobs do not automatically involve equal effort or responsibility even if they "entail most of the same routine duties." Hodgson, 454 F.2d at 493. Jobs are considered unequal — despite having the same general core responsibilities — "if the more highly paid job involves additional tasks which (1) require extra effort ... (2) consume a significant amount of the time ... and (3) are of an economic value commensurate with the pay differential." Id. (internal quotation omitted).
22
Despite plaintiffs' arguments to the contrary, it is significant that different Wicomico County departments perform completely different functions. The Director of Recreation, Parks & Tourism is, among other things, responsible for park maintenance; the Director of Public Works is responsible for coordinating the dredging of waterways; and the Director of Emergency Services is responsible for coordinating resources in the event of a disaster. Granted, at a high level of abstraction these positions all require directors to do the same thing — supervise, coordinate, and organize. But, the EPA demands more than a comparison of job functions from a bird's eye view.
23
In enacting the EPA, Congress chose the word "equal" over the word "comparable" in order "to show that the jobs involved should be virtually identical, that is ... very much alike or closely related to each other." Brennan v. City Stores, Inc., 479 F.2d 235, 238 (5th Cir.1973)(internal quotation omitted). See also Waters v. Turner, Wood & Smith Ins. Agency, Inc., 874 F.2d 797, 799 (11th Cir.1989); EEOC v. Madison Community Unit School Dist., 818 F.2d 577, 582 (7th Cir.1987). Here, we have employees whose jobs demand the performance of quite different functions. Ms. Wheatley and Ms. Grogan do not deny that the various County departments differ in subject-matter. In fact, although Ms. Wheatley testified that all directors bear the same type of job responsibilities, she admitted that on a day-to-day basis, they work in "different world[s]."
24
It may well be true that all Wicomico County department directors prepare budgets and work schedules. It is certainly not true, however, that all departments have budgets and workforces of equal size. If there is a director or deputy director whose job involves the same responsibilities as does Ms. Wheatley's or Ms. Grogan's, and if any extra tasks performed by this director are indeed inconsequential, plaintiffs certainly failed to identify him.
25
We do not suggest that Ms. Wheatley and Ms. Grogan's action faltered because it failed to identify one specific individual who constitutes a perfect male comparator. The text of the EPA may not be brushed with such a demanding gloss. However, in choosing a proper comparator position, plaintiffs cannot indiscriminately aim at all department supervisors collectively, and then expect to meet the EPA standard of "substantial equality [in] skill, effort [and] responsibility." Kovacevich v. Kent State University, 224 F.3d 806, 826 (6th Cir.2000). See also Hodgson, 454 F.2d at 493 (same). The inquiry must be more specific. The comparison to the male employee has to be made "factor by factor" and cannot be made to "a hypothetical male with a composite average of a group's skill, effort, and responsibility." Houck v. Virginia Polytechnic Inst., 10 F.3d 204, 206 (4th Cir.1993). It is here that plaintiffs fall short.
26
Accepting the EPA argument relied on by plaintiffs at trial would be unfaithful to the statutory text. In essence, plaintiffs ask us to convert the EPA equality standard into a similarity test. We decline to hold that having a similar title plus similar generalized responsibilities is equivalent to having equal skills and equal responsibilities. Were we to adopt that position, we would deprive compensation structures of all flexibility and deny employers the chance to create pay differentiations that reflect differing tasks and talents. In passing the EPA, Congress embraced "the principle of equal pay for equal work regardless of sex." Corning Glass 417 U.S. at 190, 94 S.Ct. 2223. Congress did not authorize the courts "to engage in wholesale reevaluation of any employer's pay structure in order to enforce their own conceptions of economic worth." Prince William Hosp. Corp., 503 F.2d at 285. There is no question that Ms. Wheatley and Ms. Grogan are valuable assets to Wicomico County. But it is not the job of the courts to discard Congress' studied use of the term "equality" and set the price for their services.
27
For the above reasons, we agree with the district court that plaintiffs' original EPA argument lacks merit.
B.
28
Plaintiffs also ask us to consider a second EPA argument, which was unveiled moments before the district judge granted judgment for the defendant. Rather than comparing themselves to other County directors and deputy directors, Ms. Wheatley and Ms. Grogan switched course and asked to be compared to male employees assigned their same Hendricks grade (Grade 17 and 13 respectively). We need not address the merits of this argument, however, for we agree with the lower court that this theory came too late in the day for the case to be fairly tried on it.
29
Issues raised for the first time on appeal "are generally not considered absent exceptional circumstances." Williams v. Prof. Transp. Inc., 294 F.3d 607, 614 (4th Cir.2002). See also Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). The policies behind the rule are obvious: "respect for the lower court, [an avoidance of] unfair surprise to the other party, and the need for finality in litigation and conservation of judicial resources." Tele-Communications, Inc. v. Commissioner, 12 F.3d 1005, 1007 (10th Cir.1993)(internal quotation omitted).
30
Although the plaintiffs technically voiced their second EPA argument to the lower court, those policy concerns are still implicated. Plaintiffs raised their new theory at the eleventh hour — once they sensed that their original theory was doomed. The new argument did not appear in the complaint, nor was it mentioned to the jury in opening statements. And the switch caught the trial judge and opposing counsel completely by surprise. With some frustration, the trial court addressed plaintiffs' counsel:
31
I don't want to be impatient with you ... [but] you're telling me that you can now go to the jury on a whole different theory than was presented in opening statement, [and] was presented in your client's testimony....
32
....
33
... [Plaintiffs] are the ones who should have identified [their theory] early, not leaving it up, just throwing it all up and say, well, we'll decide that later, Judge, you decide it as the case gets narrowed down. That's just not the way trials work.
34
The adversary system cannot function properly if lawyers are allowed to dump arguments on a district court at the last minute, without developing them during the course of litigation. Certainly, litigants are permitted to make alternative arguments as part of their case-in-chief. But there is a thin line between an alternative argument and a last-minute switch in strategy which risks severely prejudicing an opponent and surprising the district court. This situation is an example of the latter.
35
Despite plaintiffs' contention to the contrary, it is insufficient that the evidentiary basis for their second argument may exist somewhere in the record. An appellate court "cannot assume the functions of a special master and roam at large over the record, ... any attempt on its part to do so would probably do a great deal more harm than good." Hutchinson v. Fidelity Inv. Ass'n, 106 F.2d 431, 436 (4th Cir.1939). Lawyers have a duty not just to submit evidence, but to provide some focus to their argument. This was not done here.
III.
36
We thus decline to address the merits of plaintiff's second EPA argument, and we affirm the district court's holding on their first.2 The judgment of the district court is
37
AFFIRMED.
Notes:
1
The EPA mandates equal pay for the performance of jobs which require (1) equal skill, (2) equal effort, (3) equal responsibility, and which are performed under (4) equal working conditions. 29 U.S.C. § 206(d)(1)(2000)
2
Plaintiffs additionally contend that the district court erred by awarding judgment to defendant on their Title VII claims. "Although the evidentiary burdens shift back and forth under theMcDonnell Douglas framework, `the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir.2004), (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The trial judge noted that "perhaps one could make a policy decision that the head of Emergency Services should be paid the same as the head of Public Works." But to say that Title VII requires such an outcome is a different matter altogether. The county contended throughout that any pay differentials reflected nothing more than the fact that employees were performing different jobs. The evidence provides no basis for concluding that this explanation serves as a pretext for the practice of intentional sex discrimination.
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989 F.2d 484
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.Thomas P. BUDNICK, Plaintiff, Appellant,v.BARNSTABLE COUNTY BAR ADVOCATES, INC., Defendant, Appellee.
No. 92-1933.
United States Court of Appeals,First Circuit.
March 30, 1993
Appeal from the United States District Court for the District of Massachusetts
Thomas P. Budnick on brief pro se.
Edward B. McGrath, Thomas B. Farrey, III, and Burns & Farrey on brief for appellees Town of Harwich, Barry M. Mitchell, Estate of Norman A. Fennell, Jonathan Mitchell, and Harwich Police Department.
Scott Harshbarger, Attorney General, and Stephen Dick, Assistant Attorney General, on Memorandum of Law for appellees Massachusetts Department of Public Safety and Sidney Callis, M.D.
D.Mass.
AFFIRMED IN PART, AND VACATED AND REMANDED, IN PART.
Before Breyer, Chief Judge, Selya and Cyr, Circuit Judges.
Per Curiam.
1
The district court disposed of the complaint of plaintiff/appellant, Thomas Budnick, by the following order:
2
This Court has thoroughly reviewed the plaintiff's Complaint. It is rife with bizarre factual and legal allegations rendering it virtually incomprehensible. This Court has concluded that the plaintiff's Complaint fails to state a claim upon which relief can be granted. Therefore, this Court, acting sua sponte, ORDERS that the above-entitled action be DISMISSED WITH PREJUDICE.
3
SO ORDERED.
4
Budnick appeals the dismissal of his complaint with prejudice and the denial of his subsequent motions seeking to vacate the dismissal, to vacate the "with prejudice" designation, and to amend his complaint. While we disagree with the district court's characterization of the complaint as virtually incomprehensible,1 we agree that it fails to state a claim upon which relief can be granted. Further, we conclude that any amendment would be futile. With respect to the pendent state law claims, however, we believe that they should have been dismissed without prejudice for lack of jurisdiction. We vacate and remand to the district court for entry of a judgment reflecting that conclusion. In all other respects, we affirm the district court's order.
I. The Legal Standards
5
The district court did not spell out the statutory or other available basis for its sua sponte dismissal. The order's language "the plaintiff's Complaint fails to state a claim upon which relief can be granted" suggests the dismissal was pursuant to Fed. R. Civ. P. 12(b)(6). We proceed, therefore, on that basis.2
6
The standard for a Rule 12(b)(6) dismissal is a familiar and oft-repeated one. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). We review such a dismissal de novo. Kale v. Combined Ins. Co. of Am., 924 F.2d 1161, 1165 (1st Cir.), cert. denied, 112 S. Ct. 69 (1991); Gonzalez-Bernal v. United States, 907 F.2d 246, 248 (1st Cir. 1990).
7
The Supreme Court, as yet, has had "no occasion to pass judgment, however, on the permissible scope, if any, of sua sponte dismissals under Rule 12(b)(6)." Neitzke v. Williams, 490 U.S. 319, 329 n.8 (1989). The Court has pointed out that "[u]nder Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motion is ruled upon." Id. at 329. A sua sponte dismissal preempts that notice and opportunity to amend before dismissal.
8
We have suggested, in dictum, that a sua sponte dismissal on the ground that a complaint is inadequate, without notice of the proposed dismissal and an opportunity to address the issue, might require reversal. Literature, Inc. v. Quinn, 482 F.2d 372, 374 (1st Cir. 1973).3 Even if the district court erred in failing to provide Budnick with pre-dismissal notice and opportunity to respond in this case, however, we decline to remand because it is evident that (1) Budnick could not prevail based on the facts alleged in the complaint, see Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991) (holding that the failure to give notice and an opportunity to respond prior to dismissal is not per se reversible error when it is "patently obvious" the plaintiff could not prevail based on the facts alleged in the complaint); Baker v. Director, U.S. Parole Comm'n, 916 F.2d 725, 726 (D.C. Cir. 1990) (same), and (2) amendment would be futile, see Shockley v. Jones, 823 F.2d 1068, 1072-73 (7th Cir. 1987) (holding that a sua sponte dismissal without notice or the opportunity to be heard is improper but reversal is not mandated when amendment would be futile); Tyler v. Mmes. Pasqua & Toloso, 748 F.2d 283, 287 (5th Cir. 1984) (similar), overruled on other grounds by, Victorian v. Miller, 813 F.2d 718 (5th Cir. 1987).4
II. The Complaint
9
Budnick's complaint is written in a narrative, and somewhat dramatic, form. It contains much extraneous and disjointed information. But construing this inartful pleading by a pro se litigant in a liberal fashion, as we must, Haines v. Kerner, 404 U.S. 519, 520 (1972), and accepting as true the factual allegations pled, Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991), we can distill from the complaint that Budnick's claims stem from what he alleges was an unlawful arrest. The complaint alleges the following:
10
On September 23, 1990, Budnick resided at his parents' home on Division Street in Harwich, Massachusetts. That house apparently is in very close proximity to the boundary between Harwich, and Dennis, Massachusetts. Budnick alleges that, on that date, he began to cut down a pine tree on the property, which had been damaged in a storm. After making two cuts in the tree, his mother called the Harwich Police Department. Officer Jonathan Mitchell responded.
11
Budnick left the scene, putting away his chain saw and taking his car out for a ride, he says, to get the oil hot for an oil change. He returned in an hour and started to change the oil. He was, at that time, he alleges, 35 feet into Dennis. A Dennis police officer arrived, following which Harwich Police Officer Barry Mitchell arrived. Officer Barry Mitchell spent a very short time in Budnick's house, looking at what Budnick says was a leaking washing machine pipe. Budnick had purchased a new washing machine the day before and was going to replace the old machine. Officer Barry Mitchell then came out and arrested Budnick for malicious destruction of property over $250 [apparently the tree and perhaps the pipe], Mass. Gen. L. ch. 266, § 127, and disorderly conduct, Mass. Gen. L. ch. 272, § 53. Budnick, at the time, was standing in Dennis. Budnick's mother protested that she had only wanted the officer to talk to her son.
12
Budnick spent the night at the Harwich police station. The next day, he was taken to court, where he was examined by Dr. Sidney Callis, a court-appointed psychiatrist. Budnick claims that Dr. Callis deliberately misinterpreted Budnick's statements to him. The court committed Budnick to Bridgewater State Hospital for psychological testing. On October 1, 1990, Budnick was transferred to Cape Cod and the Islands Community Mental Health Center.
13
On October 12, 1990, Budnick returned to court. He was represented by court-appointed counsel, Attorney Steven Loesch. Trial was set for November 6, 1990. In the meantime, according to Budnick, Loesch made no effort to conduct discovery.
14
On November 6th, the malicious destruction of property charges were dismissed. The disorderly conduct charge was continued without a finding for 30 days, whereupon that charge also was dismissed.
15
Budnick filed a twenty-one page, eleven count complaint seeking damages against nine defendants (1) the Town of Harwich, (2) the Harwich Police Department, (3) the estate of Norman Fennell, the former Harwich Police Chief, (4) Officer Jonathan Mitchell, (5) Officer Barry Mitchell, (6) the Massachusetts Department of Public Safety, alleged to be the employer of Dr. Callis, (7) Dr. Callis, (8) the Barnstable County Bar Advocates, Inc., alleged to be the employer of Attorney Loesch, and (9) Attorney Loesch. The complaint alleged claims of false arrest, false imprisonment, conspiracy, intentional infliction of emotional distress, malicious prosecution, abuse of process, and negligence. It alleged various bases for jurisdiction, including 42 U.S.C. § 1983 and the Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. § 1961 et seq., and pendent jurisdiction over the state tort claims.
III. Discussion
16
Because all of Budnick's claims stem from what he alleges was an unlawful warrantless arrest, we begin there. To state a cause of action under 42 U.S.C. § 1983, Budnick must show that, in arresting him, Officer Barry Mitchell (1) acted under color of state law; and (2) deprived Budnick of a right secured by the Constitution or federal law. Parratt v. Taylor, 451 U.S. 527, 535 (1981). There is no dispute that Officer Mitchell was acting under color of state law in arresting Budnick. Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir.), cert. denied, 112 S. Ct. 226 (1991). As to the second element of a cause of action under § 1983, the federal Constitution permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing an offense. Michigan v. DeFillippo, 443 U.S. 31, 36 (1979).
17
Budnick says that his mother called the Harwich police after he started to cut down a tree on his parents' property. Officer Jonathan Mitchell responded and Budnick left the scene. When he returned, Officer Barry Mitchell arrived, entered Budnick's parents' home for a brief time, where he apparently spoke to Budnick's mother, exited and arrested him for malicious destruction of property and disorderly conduct. These facts show that, at the moment of Budnick's arrest, "the facts and circumstances within [Officer Barry Mitchell's] knowledge and of which [he] had reasonably trustworthy information [was] sufficient to warrant a prudent man in believing that [Budnick] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964).5
18
Budnick's allegation of unlawful arrest merely recites a lack of probable cause and, in fact, seems more focused on another aspect of his arrest. Budnick repeatedly points out that Officer Mitchell, a Harwich police officer, arrested him, not in Harwich, but in Dennis. He says that Officer Mitchell, a Harwich police officer, arrested him outside of the officer's jurisdiction, in Dennis, on felony charges (2 counts of malicious destruction of property over $250) and a misdemeanor charge (disorderly conduct) without a warrant and not in "hot pursuit." But to proceed with a § 1983 action, Budnick must show that this extraterritorial arrest violates a right secured by federal law, Constitutional or statutory.
19
"Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law." Michigan v. DeFillippo, 443 U.S. at 36. And in this case the arrest does not even appear to be unlawful under state law. It is true that, under Massachusetts law, a police officer has no power to make a warrantless arrest outside the boundaries of the governmental unit by which he was appointed except for a fresh pursuit arrest for any arrestable offense, whether it be a felony or misdemeanor, initially committed in the arresting officer's presence and within his jurisdiction. Commonwealth v. LeBlanc, 407 Mass. 70, 72 (1990). But, "a police officer, while unable to act as an officer in an adjoining jurisdiction, does not cease to be a citizen in that jurisdiction ... and may lawfully conduct a citizen's arrest there if he has probable cause to believe that a felony has been committed and that the person arrested has committed it." Commonwealth v. Dise, 31 Mass. App. Ct. 701, 704 (1991), further appellate review denied, 412 Mass. 1102 (1992) (footnote omitted).6 And, if there was authority and probable cause to arrest for the felony of malicious destruction of property over $250, the arrest was lawful, regardless of whether there was authority or probable cause also to arrest for the misdemeanor. See Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990) (an arrest is a single "seizure"; if there is probable cause to arrest for one crime, the seizure is not unconstitutional even if probable cause is lacking for the second crime.).7
20
In short, the allegations in Budnick's complaint suggest a valid arrest under state law and nothing in that complaint, or reasonably inferred from that complaint, suggests that such an arrest, nonetheless, violates federal law so as to support the exercise of federal jurisdiction. Further, even a liberal reading of the complaint fails to reveal the seeds of a viable claim which would indicate that any amendment might be fruitful. Budnick described the circumstances of his arrest in detail. The facts pled show probable cause and lawful authority to arrest consistent with federal law. We fail to see how any additional facts (and he has not provided any, either in his motion to amend, filed in the district court, or even in his appellate brief) could be compatible with those already pled and also negate that showing.
21
The arrest being lawful, those claims which, as described in Budnick's complaint, are necessarily premised upon an unlawful arrest that is, his claims against the Town of Harwich, its police department and police chief, for failure properly to investigate, for failure to train, discipline, and/or supervise, and for negligent training, discipline and/or supervision fail as well. Pittsley v. Warish, 927 F.2d at 9 n.4 ("In order to have a viable § 1983 claim against a municipality, a state actor must first commit an underlying constitutional violation.").
22
Budnick's claim that Dr. Callis, the court-appointed psychiatrist, misinterpreted his statements and, as a result, Budnick was committed to a state hospital for a week for psychological testing and then to a community mental health center for further testing fares no better.8 We pass the question whether Dr. Callis is acting under color of state law for purposes of § 1983 in these circumstances. Compare Watterson v. Page, No. 92-1224, 1993 WL 23908, at * 5 (1st Cir. Feb. 9, 1993) (assuming, without deciding, that a state court order referring child for counseling to private psychologists provided a sufficient basis for the psychologists to be acting under color of state law) with Hall v. Quillen, 631 F.2d 1154 (4th Cir. 1980) (holding that a court-appointed physician examining a plaintiff in connection with a court-ordered involuntary commitment to a state hospital is not acting under color of state law for purposes of § 1983 liability), cert. denied, 454 U.S. 1141 (1982). At best,the allegations state a claim of negligence, which is an insufficient basis for a claim under § 1983. Watterson v. Page, No. 92-1224, 1993 WL 23908, at * 6. Budnick's allegation that Dr. Callis' misinterpretation was deliberate does not save this claim from dismissal. As a witness at a judicial proceeding, Dr. Callis has absolute immunity from § 1983 damages liability even were his testimony false. Id. at If false testimony is cloaked in immunity, certainly a deliberate misinterpretation is, as well.9
23
The claim against Attorney Loesch based on Budnick's dissatisfaction with his representation also was properly dismissed. A court-appointed attorney when representing a defendant in a state criminal proceeding does not act under color of state law within the meaning of § 1983. Polk County v. Dodson, 454 U.S. 312 (1981); id. at 333 n.4 (Blackmun, J., dissenting); Jackson v. Salon, 614 F.2d 15, 16-17 (1st Cir. 1980).10
24
There being no deprivation of a federal right, Budnick's conclusory claim of conspiracy among the various defendants evaporates. Brennan v. Hendrigan, 888 F.2d 189, 195 (1st Cir. 1989) (to be actionable under § 1983, a plaintiff has to show not only an agreement, but a deprivation of a constitutionally secured right). Finally, there being no allegations which would support the exercise of federal jurisdiction,11 those pendent claims alleging violations of the state Tort Claims Act, Mass. Gen. L. ch. 258, or which otherwise arise under state tort law false imprisonment, intentional infliction of emotional distress, malicious prosecution,12 abuse of process, negligence were properly dismissed. Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966). Rather than dismiss with prejudice, however, we think the preferable course is to dismiss these claims without prejudice for lack of jurisdiction. Figueroa Ruiz v. Alegria, 896 F.2d 645, 650 (1st Cir. 1990). We, therefore, vacate the order of the district court with respect to the state law claims and direct that these be dismissed without prejudice for lack of jurisdiction.
25
In so doing, of course, we express no opinion as to their viability.
IV. Miscellaneous Motions
26
Contemporaneously with the denial of Budnick's motions to vacate the dismissal of the complaint, to vacate the "with prejudice" designation, and to amend the complaint, the district court judge also denied a simultaneously filed motion to disqualify himself. The motion to disqualify alleged that Budnick intended to file a judicial misconduct complaint against the judge. Budnick claims the district court erred in ruling on his motions after being notified of his intent to file a complaint. There was no error. The mere issuance of unfavorable rulings cannot form the basis of a disqualification or misconduct claim. Joseph E. Bennett Co. v. Trio Indus., Inc., 306 F.2d 546, 549 (1st Cir. 1962).
27
Lastly, we dispose of several pending motions filed in this court: (1) In view of the disposition of this appeal, the motion of the Massachusetts Department of Public Safety and Dr. Callis for summary disposition is denied as moot. Their motion to accept their memorandum in support of that motion as their appellees' brief is granted. (2) Budnick's motions for default judgments against Attorney Loesch and the Barnstable County Bar Advocates, Inc. are denied. (3) Budnick's "motion to add clear color photographs for previously submitted black and white photos" is denied. The record on appeal is composed of the original papers and exhibits filed in the district court. Fed. R. App. P. 10(a). (4) Budnick's "motion to add recently revealed defendants-appellees admission of Judge Harrington's error" is denied. In any event, appellant misunderstands the statement to which he points. It was not a concession.
V. Conclusion
28
For the reasons discussed in this opinion, the order of the district court is affirmed, in part, and vacated and remanded, in part.
1
To be sure, Budnick's complaint contains references which understandably may be characterized as bizarre. Budnick is a self-proclaimed space prospector, who believes that the United States ought to continue its "manifest destiny" by claiming mineral rights on heavenly bodies, on its own behalf, rather than allowing space exploration to be pursued on behalf of "common mankind." Using various resources, he has mapped out mining claims to plots on several planets, asteroids, and the moon, which he believes are rich in diamonds, gold, platinum, and other strategic metals. He sought to file his mining claims in numerous county courts of numerous states, but was rebuffed. Since 1981, however, the Sabine County Court, in rural East Texas, has accepted for filing more than 60 of his mining claims because, according to the court clerk's office, the county needed the money from the filing fees. Budnick says that he does not expect to gain any financial renumeration; he has filed his claims in the names of the heirs of, among others, Sam Houston, Moses, and Martin Luther
Fragmentary references to this hobby (and to field assay work which he has done here on Earth) were scattered throughout his complaint. A somewhat clearer frame of reference emergedwhen Budnick filed his opposition to Attorney Loesch's motion to dismiss, see footnote 4, infra, and he submitted copies of several newspaper accounts which outlined this story.
Although these factual allegations are odd, they suggest that Budnick may be eccentric, but do not support an inference that he is delusional. And, while these factual allegations arguably may seem bizarre, they were not the basis for any bizarre legal allegations. The complaint, as described infra at 7-8, alleged that Budnick was unlawfully arrested for attempting to cut down a tree on his parents' property and then held involuntarily for mental evaluation. At first blush, it is puzzling why these references to his hobby were included at all. A closer reading suggests, however, that Budnick proceeded on the assumption that he must present his entire case when filing his complaint, including resulting harm. And, in his view, his reputation has been damaged by his confinement for mental evaluation following his arrest. Budnick concedes that he has been scoffed at by many, but, he says, people dismissed this country's purchases of the Louisiana Territory and Alaska. His credibility can only be further weakened, he says, when those who disagree with his support for a continuing "manifest destiny" discover his involuntary commitment for psychiatric evaluation. Damage to reputation alone, of course, does not constitute a viable claim under § 1983. Paul v. Davis, 424 U.S. 693, 713 (1976); Watterson v. Page, No. 92-1224, 1993 WL 23908, at * 6 n.4 (1st Cir. Feb. 9, 1993). But Budnick did not allege damage to his reputation as the basis for his cause of action. He asked that the court consider that harm in assessing damages resulting from what he alleged was an unlawful arrest and involuntary commitment for mental evaluation.
Construing this inartful pro se complaint in a liberal fashion, as we must, Haines v. Kerner, 404 U.S. 519, 520 (1972), we disagree that it is "virtually incomprehensible."
2
In any event, we rule out as a possible basis 28 U.S.C. § 1915(d), as that statute applies only to in forma pauperis actions, Street v. Fair, 918 F.2d 269, 272 (1st Cir. 1990), which this was not. Budnick paid the required filing fee
3
Some courts have reversed in such circumstances. See, e.g., Morrison v. Tomano, 755 F.2d 515 (6th Cir. 1985) (holding that a district court should not dismiss a complaint for failure to state a claim without affording plaintiffs notice and an opportunity to address the perceived shortcomings); Jefferson Fourteenth Assoc. v. Wometco de Puerto Rico, 695 F.2d 524 (11th Cir. 1983) (holding that a sua sponte dismissal without notice and an opportunity to respond violated a plaintiff's due process rights); see also Lewis v. N.Y., 547 F.2d 4, 6 n.4 (2d Cir. 1976) ("Failure to afford plaintiffs an opportunity to address the court's sua sponte motion to dismiss is, by itself, grounds for reversal.")
4
Although the order of dismissal stated that the district court was acting sua sponte, one of the defendants, Attorney Steven Loesch, had filed a motion to dismiss, pursuant to Rule 12(b)(6), for failure to state a claim, and Budnick had filed an opposition. The grounds raised in Attorney Loesch's motion, however, would not have provided Budnick with notice of any potential defects in his complaint as to any of the other eight defendants, excepting perhaps the defendant Barnstable County Bar Advocates, Inc., which Budnick alleged was Loesch's employer. We treat the district court's dismissal, therefore, as it, itself, characterized it that is, as a sua sponte dismissal. Our conclusion-that the failure to provide Budnick with pre-dismissal notice and opportunity to respond does not warrant reversal because it is evident that his complaint failed to state a claim and that no amendment could remedy it-necessarily encompasses a conclusion that there was no error in dismissing Budnick's claim against Loesch, the deficiency of which Budnick, in fact, had notice and to which he had the opportunity to respond
We are also aware that the sua sponte dismissal in this case deprived Budnick of his right, under Fed. R. Civ. P. 15(a), to amend his complaint "once as a matter of course at any time before a responsive pleading is served." Fed. R. Civ. P. 15(a); Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 59 n.8 (1st Cir. 1990) (a Rule 12(b)(6) motion to dismiss is not a responsive pleading for purposes of Rule 15(a)). Inasmuch as we have determined that amendment would be futile, error, if it be such, would not warrant remand. Correa-Martinez v. Arrillaga-Belendez, 903 F.2d at 59.
5
The mere fact that Budnick's mother had not wished his arrest and/or that the charges were later dismissed or continued without a finding, of course, is irrelevant to the validity of the arrest. See Michigan v. DeFillippo, 443 U.S. at 36 (stating that "the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest"); Baker v. McCollan, 443 U.S. 137, 145 (1979) (stating that "[t]he Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted indeed, for every suspect released.")
6
Cf. United States v. Foster, 566 F. Supp. 1403, 1411-12 & n.9 (D.D.C. 1983) (finding a seizure violated the Fourth Amendment where a Metro Transit police officer's Terry stop of defendant for an offense occurring on a city street exceeded the limits of the officer's authority to stop for offenses originating on or in a Metro station and since the offense was a misdemeanor, the officer's action could not be justified as a citizen's arrest)
7
We assume, without deciding, that a police officer, although making a citizen's arrest, would nonetheless be acting under color of state law in making the arrest. See Street v. Surdyka, 492 F.2d 368, 374 (4th Cir. 1974). The opposite assumption, of course, dooms the § 1983 claim, in any event
Moreover, while state law might prohibit a warrantless arrest for a misdemeanor not committed in the officer's presence, such a prohibition is not grounded in the Fourth Amendment. Barry v. Fowler, 902 F.2d at 772; Street v. Surdyka, 492 F.2d at 370-73; 2 Wayne R. LaFave, Search andSeizure § 5.1(b), at 403-04 (2d ed. 1987).
8
We assume here that Budnick was suing Dr. Callis in his individual capacity
9
The only allegation raised against defendant Massachusetts Department of Public Safety is Budnick's contention that that entity is the employer of Dr. Callis. No viable § 1983 claim having been raised against Callis, any claim against the Massachusetts Department of Public Safety, Callis' alleged employer, also fails. See Watterson v. Page, No. 92-1224, 1993 WL 23908 at * 7. In any event, suit against the department (and against Callis, in his official capacity) is barred by the Eleventh Amendment as a suit against the state. Will v. Michigan Dep't of State Police, 491 U.S. 58, 66, 71 (1989)
10
Consequently, Budnick's claim against the Barnstable County Bar Advocates, Inc., alleged to be Attorney Loesch's employer, was properly dismissed as well. Pittsley v. Warish, 927 F.2d at 9 n.4; see also Polk County v. Dodson, 454 U.S. at 325 (§ 1983 will not support a claim based on a respondeat superior theory of liability)
11
Budnick's allegation of a cause of action pursuant to the RICO statute, 18 U.S.C. § 1961 et seq., is patently meritless and warrants no discussion. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985) (listing elements required to state a claim)
12
To the extent that Budnick may have alleged malicious prosecution as itself a constitutional violation actionable under § 1983, we note that malicious prosecution does not per se abridge rights secured by the Constitution. Morales v. Ramirez, 906 F.2d 784, 788 (1st Cir. 1990). In addition to showing that defendants instituted criminal proceedings against an innocent person without probable cause for an improper purpose, Torres v. Superintendent of Police of Puerto Rico, 893 F.2d 404, 409 (1st Cir. 1990), "a federal constitutional claim under § 1983 based on malicious prosecution requires conduct so egregious and conscience shocking that it violates the plaintiff's due process rights." Ayala-Martinez v. Anglero, 982 F.2d 26, 27 (1st Cir. 1992). The conduct in the present case does not, by any measure, rise to this level
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221 So.2d 235 (1969)
Horace AVIS, Appellant,
v.
STATE of Florida, Appellee.
Norris EPPS, Appellant,
v.
STATE of Florida, Appellee.
Eugene WOMMOCK, Appellant,
v.
STATE of Florida, Appellee.
Nos. J-483, K-16, K-14.
District Court of Appeal of Florida. First District.
April 10, 1969.
*236 Robert E. Pierce, Public Defender, and Landis V. Curry, Jr., Asst. Public Defender, for appellants.
Earl Faircloth, Atty. Gen., Wallace E. Allbritton and George R. Georgieff, Asst. Attys. Gen., for appellee.
SPECTOR, Judge.
Appellants were convicted by a jury on charges of armed robbery. The three cases were consolidated for trial and on this appeal.
Appellants raise four questions on which they rely for reversal. First, whether the trial court correctly permitted the jury to consider testimony regarding in-court identification of the appellants where said appellants had previously been viewed in a lineup. Second, whether the tangible evidence seized from the automobile owned by the appellant, Wommock, was admissible in evidence where the seizure occurred without a search warrant or the automobile owner's consent. Third, whether the trial court erred in admitting evidence that appellants committed separate similar crimes. And lastly, appellants raise the question of the sufficiency of the evidence going to the identity of appellant Epps to sustain his conviction on the robbery charged herein.
After conviction, appellants Avis and Wommock were sentenced to life imprisonment and the third appellant, Epps, was sentenced to a term of ten years. All of the appellants were represented at trial by the public defender. The testimony adduced at the trial revealed that in the early morning hours, approximately 3:00 A.M., of July 25, 1967, the appellants drove into a gasoline service station adjacent to one of the exits from interstate highway 75 in Marion County and robbed the attendant at gunpoint. They were apprehended shortly after the robbery, taken to the county jail in Ocala, placed in a lineup *237 and were there identified by the service station attendant. The lineup identification occurred some 45 minutes after the robbery, so it can be seen that all of the evidentiary facts here being considered occurred in a relatively short time.
The appellants, Avis and Wommock, took the stand and testified at the trial. Appellant Epps did not testify. During their testimony, Avis and Wommock admitted that they along with the third appellant, Epps, were present during the commission of the robbery, but it was their testimony that they were not in any way responsible for or connected with the robbery. Instead they claimed that as they were driving toward Gainesville from Webster, a nearby community, along interstate 75, they picked up two hitchhikers, one of whom was carrying a one-gallon gasoline can. The two hitchhikers apparently had run out of gas. The appellants, Wommock driving, permitted the two hitchhikers to get into the two-door, bucket-seated car, one in front and one in back, and proceeded to the service station where the robbery occurred. Appellants' version of the incident was that the two hitchhikers committed the robbery and appellants watched as it occurred. The hitchhikers then got in the car with appellants and ordered them to drive off. A few minutes later while the alleged unwilling getaway car was speeding from the scene, they were passed by a sheriff's car coming from the opposite direction. The sheriff's car turned and came after them with lights and sirens going full blast. Upon noting that their capture was imminent, appellants' version continued, the hitchhikers ordered them to slow down. Appellants followed the given instructions and the two hitchhikers jumped out of Wommock's car while it was still moving and thus made their escape only a short distance from where appellants were apprehended. Appellants' explanation for the gun and the money bag that were found in the car is that those items were left behind by the hitchhikers in their haste to make their departure.
In contrast to the appellants' version of what had occurred, Kenneth Eugene Oliver, the service station attendant and victim, stated that only three men were in the car; two in front, one in back. The two in front, apparently Wommock and Avis, initiated the robbery with Wommock attracting Oliver's attention by feigning a question about a road map he held in his hand while the other, Avis, came out of the front passenger seat and stuck a gun in his ribs. One of this duo announced in typical fashion, "Give me your money and don't try nothing or I'll shoot you." They then took the attendant into the office where, under the continuing threats of mayhem, Oliver finally found the keys to one safe, opened it, handed the money bag and some coins to his captors. Not being content with that, they insisted that Oliver open the bottom safe, but he could not because the manager had the key to that. In Oliver's words, "I was kneeling down on my knees and I just kept pleading with them that I didn't have the keys." Being disappointed at Oliver's failure to have the key to the bottom safe, Wommock told Avis and Epps, who had by then, Oliver testified, left the car and joined his two companions in their venture, to take Oliver in the back and shoot him so that they could leave. Oliver was taken into the oil room, thrown to the floor, and one of them whom Oliver identified as Epps kicked him in the mouth. There ensued a discussion among the appellants during which they deliberated about shooting their victim as he listened in justified fear. Appellants then left the scene and shortly thereafter Oliver called the sheriff's department.
The principal point raised by appellants is aimed at the legality of the in-court identification given by Oliver because the latter had viewed these appellants in a lineup at the jail shortly after they were apprehended. This contention is grounded on the United States Supreme Court's decisions in United States v. Wade and Gilbert v. California, reported in 388 U.S. 218, *238 87 S.Ct. 1926, 18 L.Ed.2d 1149 and 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, respectively. The substance of these cases hold that an in-court identification is impermissible in criminal trials if the identification was induced by a lineup or similar procedure which violated the accused's constitutional rights. We do not construe Gilbert and Wade to hold that an in-court identification is automatically tainted where there has been a previous lineup identification of the defendant without the presence of defendant's counsel. The United States Court of Appeals for the Fifth Circuit in Wade v. United States, 358 F.2d 557, held that the holding of a lineup in the absence of the accused's counsel, vel non, violated his Sixth Amendment right to counsel. However, that holding was reversed by the United States Supreme Court in United States v. Wade, supra, where the court though acknowledging that the defendant is entitled to the presence of defense counsel at the lineup held that even though evidence of the lineup identification might if standing by itself be inadmissible, a courtroom identification would not be excluded if it were based directly on an observation occurring at some other time. We think the victim Oliver's courtroom identification of these appellants is admissible in the case at bar because the basis for such courtroom identification is not limited to the questioned lineup identification. Rather, Oliver's testimony shows that his identification is based on his observation of the appellants at the scene of the crime during the commission of the crime. In other words, had the victim testified that he did not know whether the defendants were the people who robbed him but that he was sure that they were the people in the lineup, then obviously such courtroom identification would come within the proscriptions enunciated by Wade and Gilbert. In Wade, the United States Supreme Court remanded the case for a determination of whether the in-court identifications had an origin independent from the lineup. In the case at bar, there is no necessity for such a course to be followed for the record before us of the victim Oliver's testimony demonstrates that the in-court identifications of these appellants had an origin independent from the lineup. Accordingly, we hold that appellants have failed to demonstrate the commission of any error arising from their in-court identification which falls within the proscriptions of Wade and Gilbert, supra.
The next point raised by appellants is that evidence seized from appellant Wommock's vehicle was seized pursuant to an unlawful search and seizure in violation of appellants' Fourth Amendment rights. Specifically, the item of evidence to which appellants objected at the trial was a radio taken from Wommock's car which was identified by a witness as belonging to him and as having come from the office of the service station that was robbed. Appellants' objection to the admission of the radio in evidence is based on a deputy sheriff's testimony to the effect that he had taken the radio from Wommock's car without a search warrant at the sheriff's office after appellants had already been brought in and confined at the jail. Appellants rely on the United States Supreme Court's decision in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, as authority for the proposition that a search warrant should have been obtained by the officers before they searched the car. While conceding that a lawful search might have been conducted at the scene of the apprehension as being incident to the arrest of appellants, they contend that the fault here lay in the fact that the radio was not seized at the scene of the arrest and therefore incident to it. Rather, they point out, this seizure occurred after the car had been brought in to the sheriff's office and after the apprehension and arrest of appellants had been completed, they by then having been securely confined within the jail. Appellants *239 misconceived the legal effect of the facts testified to by the officer connected with the radio. His testimony respecting this exhibit was that he retrieved it from the front seat of the car, after having been told by one of the arresting officers that he, the arresting officer, had observed the radio lying openly in the front seat of the car out at the scene of the arrest. Obviously, the arresting officer himself could have seized the radio at the time of the arrest for then it would have been nearly contemporaneous with the arrest and certainly incident to it. Since it was openly visible to him, no search was necessary to discover it. Indeed, Officer Stevens conducted no search of the car at the sheriff's office. He simply was sent to the car to retrieve an item that had already been discovered lying openly about the car by the arresting officer. These facts seem to be controlled by the decision in Garcia v. State, 196 So.2d 761 (Fla.App.). In any event, even were we to consider the retrieval of this evidence as being pursuant to a search, said search at worst was only a second search not so remote in time or place with respect to the arrest and thus permissible under the decision of the court in Dolan v. State, 185 So.2d 185 (Fla. App.3d 1966). Accordingly, we hold that the alleged error assigned under this point has not been made to appear.
The third question raised for our consideration is the legality of testimony adduced at the trial over appellants' objection which fingered them as the perpetrators of several other service station robberies occurring at about the same time at locations connected by the same interstate highway ranging from Valdosta, Georgia; Micanopy, Florida; and 19 miles from Belleview. This testimony of similar crimes was given by the attendants of service stations who testified that they were attendants at service stations robbed by appellants. We perceive no defect in the reception of this testimony since we deem it to be admissible as similar fact evidence tending to show pattern, motive and intent within the principles announced by the Supreme Court in Williams v. State, 110 So.2d 654, and more recently in Hawkins v. State, 206 So.2d 5 (Fla. 1968). In the latter case, as in the case at bar, the evidence of other crimes which was permitted to be introduced against Hawkins related to other service station robberies and murders perpetrated along this same interstate highway.
The last question raised for our consideration is the sufficiency of the evidence as to the identity of appellant Epps to sustain his conviction in this case. Appellant Epps relies on the attendant Oliver's uncertainty that Epps was the third person in the back of the car at the time it drove up. However, there seems to be no question that Epps was positively identified by Oliver as the person who kicked him in the face in the back of the station as the three appellants were deliberating on whether to shoot their victim prior to departing. Moreover, the other two appellants themselves testified that Epps was present at the scene of the robbery with them. Accordingly, the jury had ample evidence upon which it could find that Epps was present. Thus, the only question left up in the air was that of Epps' participation in the robbery. As to this, Oliver's testimony was sufficient.
The only question presented by this entire record as to the sufficiency of the evidence is whether Oliver's version of the robbery implicating these appellants should have been believed by the jury or whether the appellants' version of the robbery, putting it off on the escaped hitchhikers, should have been believed. Obviously, the jury could have believed the latter version. But, it did not.
Affirmed.
WIGGINTON, C.J., and CARROLL, DONALD K., J., concur.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MARKET TAMPA INVESTMENTS, LLC, )
)
Appellant, )
)
v. ) Case No. 2D15-5683
)
DEUTSCHE BANK NATIONAL TRUST )
COMPANY, as trustee for Novastar )
Mortgage Funding Trust, Series 2007-I )
Novastar Home Equity Loan Asset-Backed )
Certificates, Series 2007-I; ENGELIQUE D. )
DUPREE-FERGUSON; CHARLES B. )
FERGUSON; COUNTRY HILLS )
HOMEOWNERS ASSOCIATION, INC.; )
UNKNOWN TENANT #1; UNKNOWN )
TENANT #2, )
)
Appellees. )
___________________________________ )
Opinion filed May 5, 2017.
Appeal from the Circuit Court for
Hillsborough County; Mark D. Kiser, Judge.
Heather S. DeGrave of Walters Levine,
P.A., Tampa (withdrew after briefing); Lee
Segal of Florida Foreclosure & Credit
Defense Firm, P.L., Clearwater, for
Appellant.
Zina Gabsi and Adwoa Ghartey-Tagoe
Seymour of Bryan Cave, LLP, Miami; and
W. Bard Brockman and Christian J.
Bromley of Bryan Cave, LLP, Atlanta,
Georgia (substituted as counsels of record),
for Appellee Deutsche Bank National Trust
Company, as trustee for Novastar
Mortgage Funding Trust, Series 2007-I
Novastar Home Equity Loan Asset-Backed
Certificates, Series 2007-I.
No appearance for remaining Appellees.
KHOUZAM, Judge.
Market Tampa Investments, LLC, appeals the final foreclosure judgment
entered in favor of Deutsche Bank National Trust Company, as trustee. On Deutsche
Bank's concession of error, we reverse the attorney's fee award in the foreclosure
judgment without remand because the award is not supported by competent, substantial
evidence. See Michel v. Bank of N.Y. Mellon, 191 So. 3d 981, 984 (Fla. 2d DCA 2016)
("Because the bank did not present any evidence of attorney's fees at trial, we reverse
the fee award without remand on that issue."). We otherwise affirm the foreclosure
judgment without comment.
Affirmed in part; reversed in part.
CASANUEVA and WALLACE, JJ., Concur.
-2-
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243 P.3d 144 (2010)
239 Or. App. 83
In the Matter of F.C., Alleged to be a Mentally Ill Person.
STATE of Oregon, Respondent,
v.
F.C., Appellant.
300902088; A141405.
Court of Appeals of Oregon.
Argued and Submitted February 18, 2010.
Decided November 24, 2010.
*145 Ann B. Kneeland, Eugene, argued the cause and filed the brief for appellant.
Vanessa A. Nordyke, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Linda Wicks, Assistant Attorney General.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.
ARMSTRONG, J.
Appellant seeks reversal of a judgment committing her to the custody of the Mental Health Division, ORS 426.130(1)(b)(C), based on a finding that, because of a mental disorder, she was dangerous to herself, ORS 426.005(1)(e)(A).[1] Appellant contends on appeal that the state failed to establish by clear and convincing evidence that she presented a danger to herself. We agree and, accordingly, reverse.
We review the facts de novo. State v. O'Neill, 274 Or. 59, 61, 545 P.2d 97 (1976).[2] Appellant suffers from psychosis and paranoia. In the two months before her commitment hearing, she underwent three psychiatric hospitalizations and had four emergency room visits. As a consequence of the last hospitalization, appellant was recommended for civil commitment, and the state initiated a commitment proceeding against her.
At the conclusion of the commitment hearing, the court found that appellant was
"dangerous to self[,] not in an intentional method[,] but [because of] her inability to care for herself. I'm really concerned. We've had probably two weeks of every night being [below] freezing temperature.
"I see [appellant is] refusing to do anything that's good for her recently. * * * She walks out of here against medical advice into weather that's not conducive to being homeless.
"I do not find that she's dangerous to others. Under the appellate criteria, I find that she is able to provide for her basic personal needs. That's a little bit in conflict with [the] dangerous to self [finding,] but the appellate criteria requires immediate death."
Therefore, the court ordered her commitment to the custody of the Mental Health Division for a period not to exceed 180 days.
On appeal, appellant contends that the state did not present clear and convincing evidence that she was a danger to herself. In particular, she argues that the likelihood of any harm she might suffer due to an inability to find shelter is speculative. In response, the state contends that the evidence established that appellant was unable to care for herself and placed herself in dangerous situations, thus proving that she was a danger to herself. Basically, the state argues that the evidence shows that appellant's mental disorder would cause her to be unable to find shelter in the freezing weather occurring at the time of the hearing and, hence, to be subject to a risk of hypothermia, which, because of her disorder, she would be unlikely to seek appropriate help to treat. For the following reasons, we agree with appellant.
The state bears the burden of proving by clear and convincing evidence that appellant has a mental disorder that makes her dangerous to herself, ORS 426.005(1)(e)(A); ORS 426.130(1)(b), a standard intended to recognize the importance of preserving personal liberties in civil commitment proceedings. Accordingly, that standard requires evidence that establishes the truth of the asserted facts to be highly probable. State v. Jayne, 174 Or.App. 74, 77-78, 23 P.3d 990, rev. den., 332 Or. 316, 28 P.3d *146 1176 (2001). To prove that appellant is dangerous to herself, the state must show that appellant has suffered or is at risk of suffering physical harm in the near future as a result of her mental disorder. State v. Hambleton, 202 Or.App. 526, 534, 123 P.3d 370 (2005). Further, the court cannot rely on mere conjecture or speculation as proof of the need to commit a person. See State v. Ayala, 164 Or.App. 399, 404, 991 P.2d 1100 (1999) ("Apprehensions, speculations and conjecture are not sufficient to prove a need for mental commitment.").
Here, the evidence that appellant would be unable to obtain shelter were she discharged is too speculative to satisfy the clear and convincing standard of proof. Sanchez, a psychiatrist and the state's only witness at the commitment hearing, testified that appellant could not take care of herself with respect to her ability to find safe housing. But, in a commitment proceeding, an examiner's conclusions must be supported by facts. State v. Allen, 209 Or.App. 647, 653, 149 P.3d 289 (2006). To support his opinion, Sanchez testified that appellant had refused to stay at the crisis management center to which she had been taken before her hospitalization, thus showing that she was unable to make appropriate housing decisions, and that he did not think that appellant could afford housing, although he admitted that he had no information on which to base his opinion about that. Contrary to Sanchez's conclusion, the record shows that appellant was staying in a hotel before her hospitalization, a practice that she claimed to have been following for about a month; that she did not want to remain at the crisis management center because she thought that it was a homeless shelter; and that she was being supported financially through various government programs. Basically, there is little, if any, evidence that supports a conclusion that appellant could not obtain housing if she were released, including, most importantly, no evidence that she had spent any recent time living on the street. Therefore, Sanchez's speculative conclusion that appellant would be unable to obtain shelter if she were discharged is not sufficient to meet the state's clear and convincing evidence burden and significantly undermines the state's theory that appellant was at risk of hypothermia.
Beyond that inadequately supported conclusion and the consequential undermining of appellant's inferred risk of hypothermia, the court's conclusion that appellant would not seek appropriate treatment for hypothermia because of her mental disorder is also speculative. Appellant had been treated for hypothermia just before the hearing, after she had been exposed to freezing rain from lying on the ground for a lengthy period.[3] Although her mental disorder may have led to her exposure to the elements, she had sought assistance at a nearby business for the effects of that exposure, and a person at the business had called for an ambulance. That recent incident shows that appellant appreciated the need for treatment for the effects of her exposure to freezing weather and had acted on that need despite her mental disorder. In sum, other than some very general testimony about the deterioration of appellant's mental condition over time, the record does not support the court's conjecture that appellant would be unable to care for herself in freezing temperatures.
In summary, we are not persuaded on de novo review that appellant's mental disorder would prevent her from finding shelter or, even if it would, that she would be subjected to a substantial risk of hypothermia for which she would not seek appropriate treatment. We also reject, for the same reasons, the state's argument that the court's judgment should be affirmed on the alternate ground that appellant was unable to provide for her basic personal needs.
Reversed.
NOTES
[1] Although ORS 426.005 and ORS 426.130 were amended in 2009, Or. Laws 2009, ch. 595, §§ 381, 393; Or. Laws 2009, ch. 828, § 23, those amendments do not affect our analysis.
[2] Mental commitment cases have been classified as equitable proceedings, O'Neill, 274 Or. at 61 n. 3, 545 P.2d 97, which we review de novo under ORS 19.415. ORS 19.415 was amended in 2009. Or. Laws 2009, ch. 231, § 2. The amendments apply to appeals in which the notice of appeal was filed on or after June 4, 2009. Or. Laws 2009, ch. 231, § 3. Because the notice of appeal in this case was filed before that date, we apply the 2007 version of ORS 19.415 and the applicable case law.
[3] Notably, the record does not indicate the degree of hypothermia for which appellant was treated.
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539 F.Supp. 1088 (1982)
David KAUFMAN, et al., Plaintiffs,
v.
Thomas H. MAGID, et al., Defendants.
Civ. A. No. 81-142-T.
United States District Court, D. Massachusetts.
May 19, 1982.
*1089 *1090 *1091 Camille F. Sarrouf, John B. Flemming, Sarrouf, Murray & Daly, Boston, Mass., for plaintiffs.
John L. Keefe, King, Kellogg & Gardner, Wellesley, Mass., Daniel T. Cronk, Richard N. Weiner, W. Jeffery Garson, Rawle & Henderson, Philadelphia, Pa., for Toll.
William F. Weld, Hill & Barlow, Boston, Mass., and E. Michael Bradley, Brown, Wood, Ivey, Mitchell & Petty, New York City, for Magid, Hall, and Merrill, Lynch.
OPINION
TAURO, District Judge.
This action seeks the recovery of damages allegedly arising from mismanagement of and misrepresentations about securities investments made by the plaintiffs, David and Joan Kaufman. Named as defendants are: Merrill, Lynch, Pierce, Fenner and Smith, Inc. ("Merrill Lynch"); Thomas H. Magid ("Magid"), an agent of Merrill Lynch; William Hall ("Hall"), a Merrill Lynch account executive and vice president of the Jenkintown, Pennsylvania regional office of Merrill Lynch; and Arthur Toll ("Toll"), who allegedly acted as an investment advisor to the plaintiffs. Plaintiffs allege violations by the defendants of a number of federal and state law regulating securities investments.[1] All four defendants have moved to dismiss the complaint for failure to comply with Rules 8 and 9(b) of the Federal Rules of Civil Procedure[2] and for failure to state a claim for which relief may be granted.[3]
I
According to the allegations in the complaint, the following series of events transpired. Sometime before January 17, 1979, defendant Toll, representing that he was competent to do so, offered investment advisement services to the plaintiffs. Relying on these representations, the plaintiffs executed a power of attorney on July 17, 1979, authorizing Toll to deal for them in securities options. The power of attorney provided that Toll would receive twenty-five percent of the resulting profits.
Toll referred the plaintiffs to defendant Magid, a Merrill Lynch account executive, for the purpose of inducing them to open an account at defendant Merrill Lynch's Jenkintown, Pennsylvania branch office. In *1092 February 1979, relying on the representations made by Toll and Magid, plaintiff David Kaufman opened an account at the Merrill Lynch office in Jenkintown, and executed a power of attorney authorizing Toll to place stock option orders in his (Kaufman's) name. Kaufman then transferred assets allegedly worth $475,000 into that Merrill Lynch account.
Plaintiff Joan Kaufman, allegedly relying on what Toll and Magid had told her, similarly opened an account and executed a power of attorney. She transferred assets worth approximately $125,000 into the account. Defendant Hall, employed by Merrill Lynch as a Registered Options Principal and vice-president of the Jenkintown branch office, "approved and authorized" options trading in the accounts of both plaintiffs.
During May 1979, the plaintiffs, allegedly relying on representations made by Toll and Magid, opened joint accounts at the same Merrill Lynch office. They executed a power of attorney authorizing defendant Toll to place orders for stock options transactions in their names. Defendant Hall approved and authorized options trading in the joint account.
Plaintiff David Kaufman allegedly made "numerous and repeated inquiries" of Magid regarding the status of the accounts. He was "repeatedly assured" that they were "satisfactory," that Toll was an "expert in securities options transactions," and that Magid was "closely monitoring the activity" in the accounts. Complaint, p. 4. In addition, Toll allegedly made "numerous misstatements and misrepresentations" to David Kaufman about the results of the transactions he had completed for the plaintiffs' accounts. Id.
Between January 1979 and March 1980, defendants Toll and Magid allegedly effected in excess of one hundred stock options transactions in the accounts, at a total cost of approximately $3,788,000. These transactions generated in excess of $80,000 in commissions and $37,000 in marginal interest "for defendants' benefit." Complaint, p. 4. As a result, the plaintiffs allegedly lost approximately $510,000 in their accounts. In February 1980, defendant Magid for the first time informed the plaintiffs that their accounts had suffered severe losses.
II
Defendants' Motions Under Rule 8 and 9(b)
Defendants have moved to dismiss the complaint for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. Rule 8(a) requires that pleadings be "short" and "plain", and Rule 8(e) requires each averment to be "simple, concise and direct." In applying Rule 8 on a motion to dismiss, the court must take account of the "nature of the action, the relief sought, and the respective positions of the parties in terms of the availability of information and a number of other pragmatic matters." City of Gainesville v. Florida Power and Light Company, 488 F.Supp. 1258, 1263 (S.D.Fla.1980) (quoting C. Wright and A. Miller, 5 Federal Practice and Procedure, sec. 1217 at 127).
The plaintiffs in this action are alleging the violation of numerous provisions in the federal securities laws, which are complex in their application. This makes "concise" pleading difficult. Further, the plaintiffs are alleging violations by four different defendants, each performing functions distinct in some measure from the rest. The allegations are asserted in an organized if not concise fashion. Each count asserts a separate violation by a single defendant. What verbosity and repetition appears in the complaint does not, standing alone, justify dismissal under Rule 8.
The defendants also challenge the pleadings on the grounds that the plaintiffs have failed to plead fraud with sufficient detail and specificity, as required by Rule 9(b) of the Federal Rules of Civil Procedure. Rule 9(b) requires that "in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." A chief purpose of Rule 9(b) *1093 is to ensure that pleadings give defendants fair notice of the plaintiffs' claims and grounds therefore, so that they can frame their answers and defenses. See, e.g., Gross v. Diversified Mortgage Investors, 431 F.Supp. 1080, 1087 (S.D.N.Y.1977), aff'd without opinion, 636 F.2d 1201 (2nd Cir. 1980); Lerman v. ITB Management Corporation, 58 F.R.D. 153, 155-56 (D.Mass.1973) ("Lerman"). Where the defendant is sufficiently informed of the misconduct of which he is charged, dismissal on grounds of technical non-compliance is inappropriate. See, e.g., In Re Commonwealth Oil/Tesora Petroleum Corporation Securities Litigation, 467 F.Supp. 227, 251 (W.D.Tex.1979). The Federal Rules of Civil Procedure provide a safeguard to defendants in Rule 12(e), which permits a party to move for a more definite statement.
The complaint here alleges fraudulent non-disclosure and non-investigation, as well as fraudulent misrepresentation. The complaint, significantly, does identify the particular defendants who dealt with the plaintiffs, and the general time period involved. But the allegations are general, referring only to continuous assurances given the plaintiffs that their investments were under proper supervision. The complaint does not specify the times, places or details of the alleged misrepresentations.
In reviewing the complaint, the court finds that the allegations of fraudulent non-disclosure and non-investigation are sufficient to satisfy the requirements of Rule 9(b). These contentions, if true, allege continuing failures to act concerning which pleading detail as to time, place and manner is difficult, if not impossible. The court finds that the allegations of misrepresentation by the defendants are insufficiently detailed to provide the defendants a reasonable opportunity to frame meaningful responses. See, e.g., Palace v. Merrill Lynch, Pierce, Fenner and Smith, Inc., CA 80-1831-T (D.Mass. Aug. 3, 1981).
Accordingly, the defendants' motions to dismiss are hereby allowed, subject to the plaintiffs filing a properly amended complaint within thirty days, with respect to the following: Count I, par. 24; Count II, par. 29; Count VIII, par. 52; Count IX (all); and, only insofar as each alleges misrepresentations by defendant Toll, Counts XII and XIII.[4]
III
1934 Securities Exchange Act, Section 10(b) and Rule 10b-5:
The complaint alleges primary violations of Section 10(b), 15 U.S.C. Sec. 78j(b), and S.E.C. Rule 10b-5, 17 C.F.R. Sec. 240.10(b)-5, by defendants Toll (Count XII), Magid (Count II) and Hall (Count XVII). The substance of the allegations is as follows:
Toll
procured power of attorney without disclosing inherent risks of options trading
non-disclosure of transactions Toll consummated in plaintiffs' behalf
misrepresentation and non-disclosure of results of transactions
fraudulent investment scheme to maximize own profits
Hall
non-investigation of plaintiffs' financial background and investment objectives
negligent failure to supervise options trading
non-disclosure of substantial losses
aiding and abetting Toll's fraudulent scheme
Magid
non-disclosure of material facts in options trading
misrepresentation of nature and effects of certain transactions
reassuring plaintiffs of Toll's competence and qualifications in the options field
*1094 non-disclosure of substantial losses
aiding and abetting Toll's fraudulent scheme separately alleged as Rule 10b-5 violations:
inadequate inquiry into plaintiffs' financial status and investment objectives
"churning"
The defendants assert, as a fatal deficiency in the Section 10(b) and Rule 10b-5 allegations, the plaintiffs' failure to allege "scienter." The Supreme Court has not defined the term precisely, other than to hold that mere negligence is not sufficient. See Ernst and Ernst v. Hochfelder, 425 U.S. 185, 199, 96 S.Ct. 1375, 1384, 47 L.Ed.2d 668 (1975).
Lower courts have found recklessness sufficient. In Stewart v. Bennett, 362 F.Supp. 605, 607-08 (D.Mass.1973) ("Stewart II") (supplementing Stewart v. Bennett, 359 F.Supp. 878 (D.Mass.1973) ("Stewart I")) (pre-Hochfelder), this court construed recklessness as satisfying the "knowing or intentional" requirement for Rule 10b-5 "scienter". Although the First Circuit has not addressed the issue,[5] a majority of courts have adopted the "recklessness" standard. See, e.g., Rolf v. Blyth, Eastman, Dillon and Company, 570 F.2d 38 (2nd Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978).
In assessing the claims asserted under section 10(b) and Rule 10b-5, the court must take into account the Supreme Court's holding that the mere failure to disclose the unfairness of a particular transaction or some breach of fiduciary duty is insufficient for liability under Rule 10b-5 absent some affirmative showing of manipulation, deception, misrepresentation, or non-disclosure of material facts. See Sante Fe Industries, Inc. v. Green, 430 U.S. 462, 473-74, 97 S.Ct. 1292, 1300-01, 51 L.Ed.2d 480 (1977) (involving alleged misconduct in initiating a short-form merger).
Here, the plaintiffs allege that each of three defendants failed to disclose the substantial losses incurred in options trading over the period of almost one year. In addition, the plaintiffs allege that defendant Toll failed to disclose the transactions themselves, and that defendant Magid reassured the plaintiffs of Toll's qualifications and competence in the options trading field. These allegations of non-disclosure and misrepresentation, if true, may suffice to bring Toll and Magid within the statutory proscriptions against misrepresentation and non-disclosure of material facts. Inasmuch as the trading allegedly occurred continuously and actively over a long period of time, the defendants must be presumed, for purposes of the dismissal motions, to have actually known about, or to have had reasonable notice of, the occurrence of severe losses. Considering the magnitude of the plaintiffs' alleged losses, all three defendants may be viewed as having acted in an allegedly reckless manner. Assessing these allegations against the "recklessness" standard, this court finds that they are sufficient to state claims under Section 10(b) and Rule 10b-5.[6]See Stewart II, supra, at 607-08.
*1095 Sufficiency of the Section 10(b) and Rule 10b-5 allegations under the "recklessness" standard for "scienter" precludes the court's dismissal in toto of Counts I, II, XII and XVII against defendants Magid, Toll and Hall, respectively. These counts include particular allegations, however, that merit further consideration by the court.
A. "Churning" by Magid:
The complaint states in general fashion that "Magid ... violated the provisions of Rule 10b-5 by churning the plaintiffs' accounts for the purpose of generating commissions on the transactions rather than serving the best interests of plaintiffs' investment objectives." Complaint, p. 5. Defendants challenge the "churning" allegation on the grounds that the plaintiffs failed to plead the two elements necessary for "churning" that this court articulated in Kravitz v. Pressman, Frolich and Frost, Inc., 447 F.Supp. 203, 211 (D.Mass.1978) ("Kravitz"). In Kravitz, this court held that liability for "churning" requires demonstration of (1) control over plaintiffs' account(s), and (2) excessive trading. Id. See also Petrites v. J. C. Bradford and Company, 646 F.2d 1033, 1035 (5th Cir. 1981) (citing Kravitz).
Defendants' objection must fail for several reasons. First, allegations throughout the complaint suggest that Magid exercised the requisite control over the plaintiffs' accounts. There is no evidence from which the court can conclude that the plaintiffs had sufficient business and investment experience to supervise the trading competently, or that they exercised any meaningful control over the specific transactions. See, e.g., Kravitz, supra, at 211.
Second, the plaintiffs have alleged a turnover rate sufficient to constitute possible excessive trading. More than one hundred stock option transactions for their accounts allegedly occurred within one year, for a total dollar amount of $3,788,000 more than six times the value of the original $600,000 investment. See, e.g., Mihara v. Dean Witter and Company, 619 F.2d 814, 821 (9th Cir. 1980) ("While there is no clear line of demarcation, courts and commentators have suggested that an annual turnover rate of six reflects excessive trading.") (citing authority).
Third, the plaintiffs have alleged that the transactions were motivated by the defendants' desires to generate commissions. If proved, such disregard for the plaintiffs' interests would clearly satisfy the "recklessness" standard for "scienter" that the court finds applicable for ascertaining sufficiency of the allegations of Section 10(b) and Rule 10b-5 violations in the complaint. See, e.g., Id.; Rolf v. Blyth, Eastman, Dillon and Company, 424 F.Supp. 1021, 1039-40 (S.D. N.Y.1977), aff'd, 570 F.2d 38 (2nd Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978).
Finally, the plaintiffs' allegations of "churning," although pleaded generally and without specific detail, track the language that courts have used to succinctly describe it. See, e.g., Petrites v. J. C. Bradford and Company, supra, at 1035 ("[c]hurning occurs when a securities broker enters into transactions and manages a client's account for the purpose of generating commissions and in disregard of his client's interests") (quoting Miley v. Oppenheimer and Company, 637 F.2d 318, 324 (5th Cir. 1981)).
For these reasons, the defendants' motions to dismiss the particular allegations of "churning" in the Section 10(b) and Rule 10b-5 Counts of the complaint are denied.
B. Fraudulent Investment "Scheme":
The complaint alleges that defendant Toll implemented a fraudulent investment "scheme," and that defendants Hall and Magid aided and abetted such scheme, *1096 all in violation of Section 10(b) and Rule 10b-5. These allegations of fraud are subject to Rule 9's requirement of pleading with particularity. The allegations suggesting "reckless" conduct that support the validity of other Section 10(b) and Rule 10b-5 violations alleged in the complaint do not suffice to support the claims of a fraudulent investment "scheme" on Toll's part, and the aiding and abetting of such scheme by Hall and Magid. To assert these claims properly, the plaintiffs must plead more detail regarding the time, place and manner of the allegedly fraudulent actions constituting the "scheme". See, e.g., Lerman, supra, at 155-56.
Accordingly, those parts of the Section 10(b) and Rule 10b-5 counts that allege a fraudulent scheme by defendant Toll (Count XII, par. 70), and the aiding and abetting of such scheme by defendants Magid and Hall (Count I, par. 25; Count II, par. 31; Count XVII, par. 91), are hereby dismissed with leave to amend within thirty days.
Section 12(2) of the 1933 Securities Act:
The plaintiffs allege violations of Section 12 of the 1933 Securities Act, 15 U.S.C. Sec. 77l, by Magid (Count III) and Toll (Count XIII). Responding to the defendants' contention that they never "sold" any securities to the plaintiffs, as required for liability under Section 12(2), plaintiffs allege that the customer contracts themselves were investment contracts that constituted "securities" within the meaning of the Securities Acts.
The Supreme Court has stated that an "investment contract" is a "security" when it involves the investment of money in a common enterprise, with profits to be derived "solely" from the efforts of others. Securities Exchange Commission v. W. J. Howey Company, 328 U.S. 293, 298-99, 66 S.Ct. 1100, 1102-03, 90 L.Ed. 1244 (1946). See, e.g., Swank Federal Credit Union v. C. H. Wagner and Company, 405 F.Supp. 385, 388-89 (D.Mass.1975). There is no question here that the plaintiffs invested money, but it is less clear whether the arrangements constituted a "common enterprise," with profits to be derived solely from the defendants' efforts.
The defendants argue that, in transactions effecting the plaintiffs' account, Merrill Lynch and Magid acted on instructions from Toll, whom the plaintiffs allegedly had appointed as their agent under a power of attorney. Asserting that they acted solely as the plaintiffs' agents, they contend that liability cannot attach under Section 12(2).
Courts have declined to recognize Section 12(2) claims where transactions in issue were executed pursuant to an agency relationship. See, e.g., Rindner v. Stockcross, Inc., [1981 Transfer Binder] Fed.Sec.L.Rep. (CCH) par. 97, 885 at 90, 479 (D.Mass.1981). Whether agency relationships in fact existed here is not entirely clear. In this context, some cases have suggested that an agency relationship may exist even where an investor grants complete control over specific trades in accounts, retaining authority only to terminate the relationship entirely. See, e.g., O'Brien v. Continental Illinois National Bank and Trust Company, 593 F.2d 54, 60 (7th Cir. 1979).
Here it is not clear that plaintiffs had retained meaningful control over the specific, ongoing transactions. For that reason, defendants' motion to dismiss the Section 12(2) claims on the theory of agency will not lie. Compare Kravitz, supra, at 206-11 (upholding claims under Rule 10b-5).
But even assuming for purposes of assessing the Section 12(2) claims that the plaintiffs did not retain any meaningful control over the accounts, and that the profits were to be derived solely from the defendants' efforts, it remains unclear whether the investments themselves constituted a "common enterprise." Courts have split on what constitutes "commonality." Most require "horizontal commonality," the pooling of the investor's funds with those of other investors. See, e.g., Curran v. Merrill, Lynch, Pierce, Fenner and Smith, Inc., 622 F.2d 216, 222-25 (6th Cir. 1980), aff'd (on unrelated issue), 453 U.S. 925, 102 S.Ct. 884, 69 L.Ed.2d 1020 (1982); Hirk v. Agri-Research *1097 Council, Inc., 561 F.2d 96 (7th Cir. 1977); Wasnowic v. Chicago Board of Trade, 352 F.Supp. 1066, 1068-69 (M.D.Pa. 1972), aff'd without opinion, 491 F.2d 752 (3rd Cir. 1973), cert. denied, 416 U.S. 994, 94 S.Ct. 2407, 40 L.Ed.2d 773 (1974). There is no allegation that such pooling occurred here. Others, however, have required only "vertical commonality," such as an interdependence between the fortunes of the investor and the profits of the broker. See, e.g., Securities and Exchange Commission v. Continental Commodities Corporation, 497 F.2d 516, 521-22 (5th Cir. 1974); Miller v. Central Chinchilla Group, Inc., 494 F.2d 414, 416-17 (8th Cir. 1974); Securities and Exchange Commission v. Glen W. Turner Enterprises, 474 F.2d 476, 482 n.7 (9th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973). The First Circuit has not addressed the issue.
Even under the "vertical commonality" approach, however, the plaintiffs' complaint does not adequately allege that the fortunes of the plaintiffs and defendant Magid were "interdependent." This court adopts the view that a commission arrangement alone is not enough. See, e.g. Brodt v. Bache and Company, 595 F.2d 459, 461-62 (9th Cir. 1979). Because there is no other basis here for recognizing commonality between the plaintiffs and Magid, the Section 12(2) claims against Magid (Count III) are hereby dismissed.
With respect to defendant Toll, the complaint alleges that the plaintiffs entered "into a fee arrangement ... whereby defendant's compensation would be a percentage of the profits made...." Complaint, par. 66. The plaintiffs asserted at the hearing and in the complaint itself that the agreed percentage was twenty-five. Courts have held that a percentage-of-profits arrangement is sufficient to reflect interdependence indicative of "vertical commonality." See, e.g., Savino v. E. F. Hutton and Company, 507 F.Supp. 1225 at 1239, 1243 [1981 Transfer Binder] Fed.Sec.L.Rep. (CCH) par. 97,850 at 90,242, 90,253 (S.D.N. Y.1981). Section 12(2) liability, further, has been recognized where a broker, though an agent for the buyer, was also at the same time an agent for the seller. See Cady v. Murphy, 113 F.2d 988, 990-91 (1st Cir.), cert. denied, 311 U.S. 705, 61 S.Ct. 175, 85 L.Ed. 458 (1940).
Thus, the allegations in the complaint are sufficient to sustain the Section 12(2) claim against Toll.[7] Defendant Toll's motion to dismiss the Section 12(2) claim (Count XIII), accordingly, is denied.
Section 17(a) of the 1933 Securities Act:
The complaint alleges violations of Section 17(a) of the 1933 Securities Act, 15 U.S.C. Sec. 77q, arising from non-investigation, non-disclosure, misrepresentation and an investment "scheme" by defendant Toll (Count XIV), and the "aiding and abetting" of Toll's investment "scheme" by defendant Magid (Count IV). Courts are split on whether Section 17(a) provides an implied private right of action for damages. Neither the Supreme Court nor the First Circuit has addressed the issue. District courts in this Circuit, however, have adopted the view that Section 17(a) does not provide a *1098 private right of action for damages. See, e.g. Dyer v. Eastern Trust and Banking Company, 336 F.Supp. 890, 903, 910-11 (D.Me.1971); Manchester Bank v. Connecticut Bank and Trust Company, 497 F.Supp. 1304, 1313-14 (D.N.H.1980) (citing Dyer). See also Rindner v. Stockcross, Inc., [1981 Transfer Binder] Fed.Sec.L.Rep. (CCH) par. 97,885 at 90,479, 90,481 (D.Mass.1981) ("[I]t is unlikely that Congress intended such a private right of action to exist") (citing Dyer).
The court finds no reason to depart from the reasoning that these courts have espoused in declining to imply a private right of action under Section 17(a). This position, moreover, accords with Supreme Court decisions adopting a restrictive approach concerning judicial implication of private remedies under the federal securities laws in general. See, e.g., Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981); California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981); Universities Research Association v. Coutu, 450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981); Trans-America Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Touche Ross and Company v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (discussed infra).[8] Accordingly, Counts IV and XIV of the complaint, alleging Section 17(a) violations by defendants Magid and Toll, are hereby dismissed.
Investment Advisors Act:
Count XI of the complaint alleges a violation by defendant Toll for his failure to register as an investment advisor, pursuant to 15 U.S.C. sections 80b-3(a), 80b-5(1) and 80b-6 (1970), and S.E.C. Rule 206(4)-2 (17 C.F.R. 275.206(4)-2). Defendant Toll's arguments for dismissing Count XI rely in large measure on his filed affidavit. Accordingly, the court shall give the plaintiffs the opportunity to respond with counter-affidavits, then treat Toll's motion to dismiss under Fed.R.Civ.P. 12(b)(6) as a motion for summary judgment under Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(b).
Securities Exchange Rules:
The complaint alleges the violation of various stock exchange rules[9] by defendants Magid (Counts V and VI), Hall (Count XVIII) and Merrill Lynch (Count XXI). The defendants have moved to dismiss these counts on the grounds that there are no implied private rights of action for damages from these alleged violations.
The Supreme Court has emphasized clear limitations on the judicial inference of private rights of action for alleged violations of federal securities laws and regulations promulgated thereunder. See, e.g., Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 23-25, 100 S.Ct. 242, 249-50, 62 L.Ed.2d 146 (1979); Touche Ross and Company v. Redington, 442 U.S. 560, 568-79, 99 S.Ct. 2479, 2485-90, 61 L.Ed.2d 82 (1979). Applying these decisions, courts have denied the existence of private rights of action for damages for alleged violations of stock exchange rules. See, e.g., Jablon v. Dean Witter and Company, 614 F.2d 677, 679-81 (9th Cir. 1980); Klitzman v. Bache, Halsey, Stuart, Shields, Inc., 499 F.Supp. 255, 258-59 (S.D.N.Y.1980) (citing Jablon); Greene v. Loeb Partners, 532 F.Supp. 747, 748-49 [current] Fed.Sec.L.Rep. (CCH) par. 98,463 at 92.710-12 (S.D.Fla.1982); Liskey v. Oppenheimer and Company, [current] Fed.Sec.L.Rep. (CCH) par. 98,419 at 92,507 *1099 (N.D.Okl.1982); Hoover v. E. F. Hutton and Company [1980 Transfer Binder] Fed.Sec.L. Rep. (CCH) par. 97,654 at 98,484-86 (E.D. Pa.1980). There is no contrary case law in this Circuit.
In view of the foregoing, and absent any demonstration of legislative intent to create private damage remedies for the alleged violations of exchange rules cited in the plaintiffs' complaint, the court declines to recognize implied rights of action for damages for the exchange rule violations alleged in Counts V, VI, XVIII and XXI. Accordingly, these counts are dismissed.
Massachusetts Blue Sky Law:
Counts VII and XXIV of the complaint allege violations of the Massachusetts Blue Sky Law, Mass.Gen.Laws ch. 110A ("Chapter 110A"). All defendants except Toll have moved to dismiss these counts on two grounds. First, they argue that the complaint fails to refer to section 410(a) of Chapter 110A, which provides express authorization for a private right of action under the statute. This objection alone would justify allowing dismissal, but with leave to amend. Second, however, they contend that the plaintiffs have failed to allege that any of the defendants transacted business as a broker in Massachusetts. Indeed, both Counts lack allegations that the execution of customer agreements ever occurred in Massachusetts, or that the disputed stock transactions took place in Massachusetts. Finding that the allegations in Count VII and Count XXIV (alleging secondary liability of Merrill Lynch under Chapter 110A) fail to state a claim, the court hereby dismisses Counts VII and XXIV.
Count XV of the complaint alleges a separate claim against defendant Toll under Chapter 110A, section 102. Toll responds that Chapter 110A provides no private right of action for damages for advisory activities proscribed by section 102. The court agrees. Count XV, accordingly, is hereby dismissed.
Common Law/Negligence Claims:
The complaint alleges various common law violations by defendants Magid (Counts IX and X), Toll (Count XVI) and Merrill Lynch (Counts XXII and XXIII). These state law claims are based on the same factual allegations as the claims asserted under the federal securities laws. Inasmuch as the court is denying dismissal of certain federal claims, there is no compelling reason for the court in its discretion to dismiss the pendent state claims at this time. See, e.g., Klitzman v. Bache, Halsey, Stuart, Shields, Inc., supra, at 258. See generally United Mine Workers of America v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 1138-39, 16 L.Ed.2d 218 (1966). Accordingly, the defendants' motions to dismiss Counts X, XVI, XXII and XXIII are denied.[10]
Secondary Liability Claims:
The complaint alleges that defendant Merrill Lynch is secondarily liable as a "controlling person" of defendant Magid. Violations for negligent supervision of Magid's activities as account executive for the plaintiffs' accounts are alleged under Section 15 of the 1933 Securities Act, 15 U.S.C. Sec. 77o (Count XX) and Section 20 of the 1934 Securities Exchange Act, 15 U.S.C. Sec. 78t (Count XIX). Merrill Lynch seeks dismissal of these counts on the grounds that the allegations of primary violations must be dismissed. Because the court is not dismissing all of the allegations of primary violations, however, dismissal of Counts XIX and XX is hereby denied.
III
In view of the foregoing, the court hereby allows in part the four defendants' motions to dismiss the complaint, as follows: Counts III-VII, XIV-XV, XVIII, XXI and XXIV are dismissed. Count I (pars. 24 and 25), Count II (pars. 29 and 31), Count VIII (par. 52), Count IX (all), Count XVII (par. 91) and, insofar as each alleges fraudulent misrepresentation by defendant Toll, *1100 Counts XII and XIII, are dismissed with leave to amend within thirty days. The motions to dismiss Count XI shall be considered as motions for summary judgment, after the plaintiffs have had the opportunity to submit counter-affidavits within thirty days.
In all other respects, the four defendants' motions to dismiss are denied.
An order will issue.
NOTES
[1] Violations are alleged under the Securities Act of 1933, 15 U.S.C. Secs. 77a et seq.; The Securities Exchange Act of 1934, 15 U.S.C. Secs. 78a et seq.; the Investment Advisors Act, 15 U.S.C. Sec. 80b-1 et seq.; Rules of the Chicago Board of Options Exchange and New York Stock Exchange; the Massachusetts Blue Sky Law, Mass.Gen.Laws Ch. 110A; and common law theories of deceit, negligence, and intentional and negligent misrepresentation.
[2] Fed.R.Civ.P. 8, 9(b).
[3] See Fed.R.Civ.P. 12(b)(6).
[4] The court addresses further the applicability of Rule 9(b) to the plaintiffs' complaint in its consideration of the allegations of Section 10(b) and Rule 10b-5 violations, infra. Meanwhile, the court finds it unnecessary, in view of discussions, infra, to address the issue of Rule 9(b)'s possible applicability to Counts III and IV.
[5] In Hoffman v. Estabrook and Company, Inc., 587 F.2d 509, 516 (1st Cir. 1978), the First Circuit assumed, but did not decide, that "recklessness" is sufficient. See First Commodity Corporation of Boston v. Commodity Futures Trading Association, 676 F.2d 1, 6-7 (1st Cir. 1982).
[6] At the hearing, the defendants asserted as an additional ground for dismissal of these counts the fact that the alleged misconduct was not "in connection with the purchase or sale" of any security. The defendants drew the court's attention to O'Brien v. Continental Illinois National Bank and Trust Company, 593 F.2d 54 (7th Cir. 1979), where the court in dismissing Rule 10b-5 claims found that the alleged misconduct did not directly affect any actual "purchase or sale" of securities by the plaintiffs. Id. at 58-63 (citing Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975)).
In O'Brien, however, the plaintiffs' only means of control over the defendant's trading activity was their power to terminate entirely the trust and agency agreements that empowered the defendant to trade in the plaintiffs' behalf. Those agreements, as construed by the court, "made the decision [to purchase and sell securities] solely [the defendant's] and the plaintiffs had no voice in it." Id. at 60 (emphasis added).
Here, despite the practical difficulties the plaintiffs may have faced in monitoring effectively the defendants' trading, there is no indication that the plaintiffs entirely lacked the authority to affect specific transactions. Accordingly, the court views O'Brien as distinguishable on its facts from the present case. For purposes of the motions to dismiss, the court finds that the "purchases and sales" at issue here were not too remote to satisfy the "in connection with" standing requirement for stating a claim under Rule 10b-5.
[7] Defendants also object to the Section 12(2) counts on grounds that the plaintiffs failed to plead affirmatively that they complied with the applicable one year statute of limitations contained in Section 13 of the 1933 Act ("Section 13"). Section 13, however, requires that the action under Section 12(2) be brought "within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence...."
Paragraph 21 of the complaint alleges that the plaintiffs were first informed of the facts concerning severe losses to their accounts in February 1980. Each count of the complaint expressly incorporates paragraph 21 by reference. For purposes of the pending motions, the court construes February 1980 as the time when plaintiffs "discovered" the alleged omissions that are the basis for their claims under Section 12(2). The court, further, finds it inappropriate to assume that discovery "should have been made by the exercise of reasonable diligence" earlier. The complaint was filed on January 20, 1981, less than a year after the defendants' alleged disclosures. Thus, the court finds the objections to the Section 12(2) claims on statute of limitations grounds to be without merit.
[8] The Supreme Court's "strict approach," requiring judicial scrutiny of legislative intent, remains the applicable standard for inferring private remedies, notwithstanding the Court's recent holding that implied remedies exist under the Commodities Exchange Act, 7 U.S.C. Secs. 1 et seq. (CEA). See Merrill, Lynch, Pierce, Fenner and Smith, Inc. v. Curran, ___ U.S. ___, ___-___, 102 S.Ct. 1825, 1839-48, 71 L.Ed.2d 182 (1982) (finding private remedies under CEA upon review of "contemporary legal context" that surrounded Congress's enactment of amending legislation).
[9] Violations are alleged under Rules 9.7, 9.8 and 9.15 of the Chicago Board of Options Exchange, and New York Stock Exchange Rule 405.
[10] The court's aforementioned dismissal, with leave to amend, of Count IX is based solely on the failure of the allegations therein to comply with Fed.R.Civ.P. 9(b).
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Siegel v Albertus Magnus High Sch. (2017 NY Slip Op 05991)
Siegel v Albertus Magnus High Sch.
2017 NY Slip Op 05991
Decided on August 2, 2017
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on August 2, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
SANDRA L. SGROI
JEFFREY A. COHEN
COLLEEN D. DUFFY, JJ.
2015-07376
(Index No. 36040/13)
[*1]Andrew Siegel, appellant-respondent,
vAlbertus Magnus High School, et al., defendants third-party plaintiffs-respondents-appellants; New City Baseball Association, Ltd., doing business as New City Generals, third-party defendant-respondent.
Barr, Post & Associates, PLLC, Spring Valley, NY (Craig A. Post of counsel), for appellant-respondent.
Harrington, Ocko & Monk, LLP, White Plains, NY (Dawn M. Foster of counsel), for defendants third-party plaintiffs-respondents-appellants.
Lynch Schwab & Gasparini PLLC, White Plains, NY (Louis U. Gasparini of counsel), for third-party defendant-respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Garvey, J.), dated August 4, 2015, as granted those branches of the respective motions of the defendants third-party plaintiffs and the third-party defendant which were for summary judgment dismissing the complaint, and the defendants third-party plaintiffs cross-appeal from so much of the same order as granted that branch of the motion of the third-party defendant which was for summary judgment dismissing the third-party cause of action for contractual indemnification against it and, in effect, denied, as academic, that branch of their motion which was for summary judgment on their third-party cause of action for contractual indemnification against the third-party defendant.
ORDERED that the order is affirmed insofar as appealed from; and it is further,
ORDERED that the order is reversed insofar as cross-appealed from, on the law, that branch of the motion of the third-party defendant which was for summary judgment dismissing the third-party cause of action for contractual indemnification is denied, and that branch of the motion of the defendants third-party plaintiffs which was for summary judgment on their third-party cause of action for contractual indemnification is granted; and it is further,
ORDERED that one bill of costs is awarded to the defendants third-party plaintiffs payable by the plaintiff.
The plaintiff alleges that he was injured in August 2013 when he slipped and fell on a white or cream color "cushiony" tile that was covering a metal drainage grate in the grass in a field on the grounds of Albertus Magnus High School (hereinafter Albertus Magnus) in Rockland County. At the time of the incident, the plaintiff, as a volunteer, was assisting the coaching staff of his son's baseball team, the third-party defendant, New City Baseball Association, Ltd., doing business as New City Generals (hereinafter the Generals), during baseball practice. The plaintiff alleged he was [*2]injured while running from third base into foul territory to retrieve a ball that he had failed to catch when he slipped and fell on the tile.
The plaintiff commenced this action against Albertus Magnus, the operator of the school on whose grounds the baseball field lay, and Dominican Convent of Our Lady of the Rosary, the property owner (hereinafter Dominican; together with Albertus Magnus, the school defendants), to recover damages for the injuries he contends he sustained from that fall. The school defendants then commenced a third-party action against the Generals for, inter alia, contractual indemnification. After discovery, the school defendants and the Generals separately moved for summary judgment dismissing the complaint. The school defendants also moved for summary judgment on their third-party cause of action for contractual indemnification against the Generals, and the Generals moved for summary judgment dismissing the third-party complaint. In an order dated August 4, 2015, the Supreme Court granted those branches of the respective motions of the school defendants and the Generals which were for summary judgment dismissing the complaint, granted that branch of the motion of the Generals which was for summary judgment dismissing the third-party complaint, and denied, as academic, that branch of the motion of the school defendants which was for summary judgment on their third-party cause of action for contractual indemnification against the Generals.
The plaintiff appeals from so much of the order as granted those branches of the respective motions of the school defendants and the Generals which were for summary judgment dismissing the complaint. The school defendants cross-appeal from so much of the order as granted that branch of the motion of the Generals which was for summary judgment dismissing their third-party cause of action for contractual indemnification against the Generals and, in effect, denied, as academic, that branch of their motion which was for summary judgment on their third-party cause of action for contractual indemnification against the Generals.
The Supreme Court properly granted those branches of the respective motions of the school defendants and the Generals which were for summary judgment dismissing the complaint. According to the doctrine of primary assumption of the risk, "when an individual voluntarily participates in a sport or recreational activity, he or she consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from participation therein" (Welch v Board of Educ. of City of N.Y., 272 AD2d 469, 469; see Morgan v State of New York, 90 NY2d 471, 484; Perez v New York City Dept. of Educ., 115 AD3d 921, 921). "This encompasses risks associated with the construction of the playing field, and any open and obvious conditions on it" (Perez v New York City Dept. of Educ., 115 AD3d at 921; see Safon v Bellmore-Merrick Cent. High Sch. Dist., 134 AD3d 1008, 1009). "If the risks are known by or perfectly obvious to the participant, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be" (Perez v New York City Dept. of Educ., 115 AD3d at 921; see Turcotte v Fell, 68 NY2d 432, 439). " It is not necessary . . . that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results'" (Ferrari v Bob's Canoe Rental, Inc., 143 AD3d 937, 938, quoting Maddox v City of New York, 66 NY2d 270, 278). Moreover, "[t]he participant's awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff" (Ferrari v Bob's Canoe Rental, Inc., 143 AD3d at 938, quoting Maddox v City of New York, 66 NY2d at 278 [internal quotation marks omitted]; see Morgan v State of New York, 90 NY2d at 486).
Here, the school defendants and the Generals both established their prima facie entitlement to judgment as a matter of law. The plaintiff's deposition testimony established that, on the date of his accident, he volunteered to assist the coaching staff at his son's baseball practice. Not only had he visited this particular baseball field at least three prior times, he had also sat along the third-base foul line, which was close to the area where his accident occurred. The plaintiff had also served as an assistant baseball coach for his son's baseball teams for five or six years. Although the plaintiff testified at his deposition that he had never observed the tile before slipping on it, the photographs that he took the day following his accident, which he contended accurately depicted the tile and the field the way they had looked on the day at issue, demonstrate that the approximately 12-inch by 12-inch white or creamish color tile, which contrasted starkly with the color of the grass, was an open and obvious condition. There was no evidence that the tile was defective (see Sykes v County of Erie, 94 NY2d 912, 913). The school defendants and the Generals established that the [*3]plaintiff had assumed the obvious and inherent risk of slipping on the grass or on the tile by electing to play baseball on that field (see Safon v Bellmore-Merrick Cent. High Sch. Dist., 134 AD3d at 1010; Perez v New York City Dept. of Educ., 115 AD3d at 921-922; Mattas v Town of Hempstead, 106 AD3d 884, 885; Shatzkin v Village of Croton-on-Hudson, 51 AD3d 903, 903). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562-563).
The Supreme Court erred in granting that branch of the motion of the Generals which was for summary judgment dismissing the third-party cause of action for contractual indemnification against it and denying, as academic, that branch of the motion of the school defendants which was for summary judgment on that third-party cause of action. The school defendants established their prima facie entitlement to judgment as a matter of law on that cause of action. "When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" (Hooper Assoc. v AGS Computers, 74 NY2d 487, 491). "The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances" (id. at 491-492).
Here, the agreement required the Generals to indemnify Albertus Magnus "for any and all liability and injuries which occur or arise out of [the General's] use of the fields during the course of organizational games, practices and events . . . including reasonable attorneys fees." Although the agreement only granted the Generals a license to use the girls' softball field at specified times, it is undisputed that in March 2013 the Generals asked for, and received, permission to use the boys' baseball field, including the diamond, for their teams' activities. Additionally, the girls' softball field and boys' baseball field were part of the same contiguous field, were not separated by a fence, and the Generals' players would sometimes utilize the area of the field that constituted the boys' outfield even prior to receiving the permission of Albertus Magnus in March 2013 to use the boys' baseball diamond. As such, the school defendants established that the plaintiff's injury, which occurred on the warning track area of the boys' baseball field during practice, triggered the indemnification clause of the agreement with the Generals (see Hooper Assoc. v AGS Computers, 74 NY2d at 494; see also Ezzard v One E. Riv. Place Realty Co., LLC, 137 AD3d 648, 649).
In opposition, the Generals failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d at 562-563). The Generals' contentions that the indemnification clause was void pursuant to General Obligations Law §§ 5-321 and 5-322.1 are without merit. The agreement constitutes a license and not a lease, and, therefore, General Obligations Law § 5-321 is inapplicable (see Karp v Federated Dept. Stores, 301 AD2d 574, 575). Moreover, the indemnification clause also does not violate General Obligations Law § 5-322.1 because the subject agreement is not a construction or maintenance contract (see Westport Ins. Co v Altertec Energy Conservation, LLC, 82 AD3d 1207, 1210-1211).
The plaintiff's remaining contentions are without merit.
BALKIN, J.P., SGROI, COHEN and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4371
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADONTE YOUNG,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:12-cr-00228-FDW-4)
Submitted: January 23, 2015 Decided: January 29, 2015
Before MOTZ and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Adonte Young appeals his conviction and the 120-month
sentence imposed following his guilty plea, pursuant to a
written plea agreement, to discharging a firearm during a crime
of violence and aiding and abetting, in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii) (2012). Young’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal but questioning
whether Young’s guilty plea was supported by an adequate factual
basis. After careful review of the record, we affirm.
Prior to accepting a guilty plea, the plea court must
conduct a colloquy in which it informs the defendant of, and
determines he understands, the nature of the charge to which he
is pleading guilty, any mandatory minimum penalty, the maximum
possible penalty he faces, and the various rights he is
relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1);
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
The district court also must ensure that the defendant’s plea is
voluntary; did not result from force, threats, or promises not
contained in the plea agreement; and is supported by an
independent factual basis. Fed. R. Crim. P. 11(b)(2), (b)(3);
DeFusco, 949 F.2d at 119-20. Because Young did not move to
withdraw his guilty plea in the district court or otherwise
preserve any allegation of Rule 11 error, the plea colloquy is
2
reviewed for plain error. United States v. General, 278 F.3d
389, 393 (4th Cir. 2002).
The magistrate judge conducted a thorough plea
colloquy, satisfying the requirements of Rule 11 and ensuring
that Young’s plea was knowingly and voluntary. See DeFusco, 949
F.2d at 116. Counsel questions, however, whether Young’s guilty
plea was supported by an adequate and independent factual basis.
The court possesses wide discretion in determining the factual
basis and may rely on anything appearing in the record. United
States v. Ketchum, 550 F.3d 363, 366-67 (4th Cir. 2008). The
court need only be “subjectively satisfied” that the factual
basis is sufficient to establish each element of the offense.
Id. at 366. “The district court must assure itself simply that
the conduct to which the defendant admits is in fact an offense
under the statutory provision under which he is pleading
guilty.” United States v. Carr, 271 F.3d 172, 178-79 n.6 (4th
Cir. 2001) (internal quotation marks omitted).
We have reviewed the record in accordance with Anders
and discern no plain error. To establish the aiding and
abetting of a § 924(c) violation, the Government “makes its case
by proving that the defendant actively participated in the
underlying . . . violent crime with advance knowledge that a
confederate would use or carry a gun during the crime’s
commission.” Rosemund v. United States, 134 S. Ct. 1240, 1243
3
(2014); see also United States v. Newman, 755 F.3d 543, 546 (7th
Cir. 2014) (“[A] person aids or abets a firearms crime when he
participates in joint criminal activity, seeks to promote its
objective, and knows that a confederate has a gun, in time to do
something with that knowledge — most notably, opt to walk away.”
(internal quotation marks and alteration omitted)). Here, Young
and a codefendant entered a bank, demanded money from a teller
at gunpoint, received almost $10,000 in cash, and fired two
rounds as they departed. Although he denied firing the shots,
Young admitted he gave the codefendant the gun. Additionally,
Young’s DNA was found on the firearm when it was recovered
following the robbery. The district court thus did not err in
finding a factual basis for the offense.
In accordance with Anders, we have reviewed the
presentence report and the sentencing transcript and have found
no potentially meritorious issues. Accordingly, we affirm the
district court’s judgment. This court requires that counsel
inform Young, in writing, of the right to petition the Supreme
Court of the United States for further review. If Young
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Young.
4
We dispense with oral argument because the facts and
legal contentions are adequately presented in the material
before this court and argument will not aid the decisional
process.
AFFIRMED
5
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737 P.2d 154 (1987)
UTAH FARM PRODUCTION CREDIT ASSOCIATION, Plaintiff and Appellant,
v.
Milo W. WATTS, Cleown W. Watts, Buford L. Gregory, Elizabeth A. Gregory, Agricultural Stabilization and Conservation Service, Commodity Credit Corporation, an agency of the United States Dept. of Agriculture, Scott Stevenson and Burns Pump Service, and Paul Farthing, dba Paul Farthing Grading Contractor, Defendants and Respondents.
No. 19380.
Supreme Court of Utah.
March 23, 1987.
*155 James R. Brown, Kevin E. Anderson, Salt Lake City, for Utah Farm Production Credit Ass'n.
Robert C. Cummings, Salt Lake City for Watts.
Christopher A. Johnson, for Gregory.
LeRay G. Jackson, Delta, for Farthing.
Steven R. Jackson, Delta, for Stevenson and Burns.
HALL, Chief Justice:
In April 1980, Utah Farm Production Credit Association (PCA) sued Milo W. Watts and Cleown W. Watts (Wattses) and Buford L. Gregory and Elizabeth A. Gregory (Gregorys) for payment of three promissory notes signed by the Wattses and the Gregorys and to foreclose a mortgage securing repayment of the notes. The other defendants have claims against a portion of the mortgaged property. PCA also sought payment of an unsecured promissory note executed only by the Gregorys and to foreclose an alleged security interest in crops and equipment. The Wattses in turn sued the Gregorys to enforce a uniform real estate contract. In June 1983, the trial court ruled on PCA's and the Wattses' cross-motions for summary judgment. The court ruled in favor of the Wattses. We reverse.
*156 I
PCA is a lending institution that finances its owners' agricultural ventures. In 1947, the Wattses began borrowing PCA funds. The Wattses' loans have been secured by mortgages in favor of PCA covering several parcels of land that now collectively constitute the Wattses' 1,366-acre ranch (ranch) in Kanosh, Utah. The last recorded mortgage on the ranch in favor of PCA was filed in August 1974 and includes a future advances clause.
In August 1978, the Wattses sold Buford Gregory a 481-acre hay and grain farm (farm) and related equipment on a uniform real estate contract for $369,000. The farm is part of the 1,366 acres the Wattses mortgaged to PCA. The contract provided in part that the Gregorys were to assume the Wattses' $74,343.65 outstanding loan balance with PCA.
At about the time of the sale, PCA apparently loaned the Wattses $20,000 to operate the farm. The loan application and other evidence indicate that the funds were to benefit the Gregorys to some extent. This $20,000, together with the Wattses' existing obligation ($74,343.65) and interest, was written into a new obligation due in January 1979. Although the application indicated that both the Gregorys and the Wattses were to execute the necessary promissory note, the note was signed only by the Wattses.
In January 1979, the PCA debt, which now amounted to $104,884, came due. Another loan application was executed. A loan officer recommended on the application that financing be continued. The recommendation further suggested that the Wattses continue to be liable on the loan and that their property continue to be used as collateral.[1] On January 8, 1979, a letter was sent to the Gregorys advising that a $198,519 loan had been approved. This loan, in part, included $82,700 for the farm's 1979 operating budget, the prior obligation that had become due, and interest. Both the Wattses and the Gregorys signed the promissory note for this loan.
In March 1979, the Gregorys were in need of a building loan. The loan was made by PCA, and a promissory note in the amount of $20,000 was signed by the Wattses and the Gregorys. In June 1979, the Gregorys again obtained funds from PCA after signing an installment note for $38,890 and assigning their equity in the farm to PCA. In August 1979, the Gregorys needed additional funds to provide interim financing for the farm and living expenses. A promissory note in the amount of $48,890 was signed by the Gregorys and the Wattses.
In 1980, the Gregorys abandoned the farm. The Wattses operated the farm in the summer of 1980 under an agreement with PCA. In April 1980, PCA brought an action on the notes to foreclose upon the mortgage and a purported security interest. In August 1980, PCA sought summary judgment, which was denied. In July 1981, PCA entered into a release agreement with the Gregorys for satisfaction of the Gregory note, the Gregory/Watts notes, and any deficiency after foreclosure. This agreement also preserved the right of PCA to either take a deed in lieu of foreclosure of the Gregorys' interest in the farm or continue the foreclosure proceedings and have a stipulated judgment of foreclosure on the Gregorys' interest in the farm.
Discovery continued by the parties, and in October 1981, PCA filed a second motion for summary judgment which was partially granted in a minute entry but was never signed by the court. On December 7, 1981, the Wattses filed their motion for summary judgment as against PCA. PCA filed its cross-motion for summary judgment on December 9, 1981. In May 1983, the Wattses also sought summary judgment against the Gregorys. After argument, additional memoranda and discovery were filed with the court. The trial judge denied PCA's motion and granted summary judgment in *157 favor of the Wattses, both as to PCA and as against the Gregorys on the cross-claim. The trial court ruled that the Wattses were accommodation makers and were discharged by PCA's release of the Gregorys.
II
PCA's first point is that a genuine issue of material fact exists as to whether the Wattses were "accommodation makers" and that therefore the trial court erred in granting the Wattses' motion for summary judgment. PCA contends that its evidentiary exhibits submitted in opposition to the Wattses' motion demonstrate that such an issue of fact exists.
In its brief, PCA claims that as far as it is concerned, the Wattses "never just lent" their credit to the Gregorys. PCA states that it believed the Wattses to be the members, the makers, and the owners of the security and therefore the primary borrowers in the transaction before us. PCA argues that this intent is well established by the affidavits it submitted below. In particular, PCA relies upon the affidavits of three former PCA employees, Wood, Naylor, and Mills. A review of the affidavits supports this contention.
However, the Wattses' brief correctly points out that they filed a motion to have these and other affidavits stricken. Inasmuch as the trial court granted the Wattses' motion for summary judgment, which must be considered improper if the motions to strike were not granted, the judgment presumably granted the Wattses' motions to strike.[2]
To determine the validity of PCA's affidavits, we examine the Wattses' objections raised in their motions to strike.[3] The primary objection made in the Wattses' motions to strike was to the various affiants' alleged lack of personal knowledge concerning the sworn matters. We have repeatedly held that an opposing affidavit under Utah Rule of Civil Procedure 56(e) (Repl. Vol. 9B, 1977 ed.) must be made on personal knowledge of the affiant and must set forth facts that would be admissible in evidence and facts showing that the affiant is competent to testify to the matters stated therein.[4]
When reviewing the validity of an affidavit made on behalf of a corporation (plaintiff is a federally chartered corporation), a distinction is made between those affidavits made by mere corporate agents and those made by agents who are also corporate officers. Where an affidavit is made by an officer, it is generally considered to be the affidavit of the corporation itself.[5] "An officer must, of course, be possessed of the requisite knowledge, but such knowledge on his part is presumed."[6] However, the requisites are more stringent for judging the sufficiency of affidavits executed on behalf of a corporation by an agent of the corporation who is not a corporate officer. For example, the personal knowledge of such an agent regarding the facts to which he has sworn will generally not be presumed, and therefore, the specific "means and sources" of his information should be shown.[7]
Affiant Richard Wood stated that he acted as a loan officer during the 1979-80 period, during which time he examined, analyzed, and recommended approval of the *158 January 8, 1979, Watts/Gregory loan. He went on to state that PCA believed that the loan was made primarily to the Wattses because his examination revealed that the Gregorys were unknown to PCA. The Wood affidavit sufficiently sets forth the means and sources of the information upon which Wood's conclusion concerning the January 1979 loan was based. Wood's summary statement concerning the other two loans for which the Wattses signed does not satisfy the "means and source" requirement noted above.
Affiant Vaughn Mills, president of PCA from late 1976 through July 1981, stated that the $48,890 loan would not have been made without the Wattses' appearing as co-makers on the loan and that he, in his capacity as a member of the loan committee, deemed the Wattses co-makers based upon their strength as co-makers.
Affiant Gerald Naylor, Salt Lake City PCA branch manager from early 1977 through June 1980, stated that based upon his participation in PCA's loan committee which approved the Watts/Gregory loans, and based upon discussions concerning the security for the same, "said loans would not have been made without said security and as Milo W. Watts and his wife as co-makers distinguished from a guarantor or an accommodation party."
Although the trial court may have been justified in striking other portions of Naylor's affidavit and part of Wood's affidavit and in ignoring Mills' affidavit since Mills' statements therein do not speak to the accommodation status of the Wattses, portions of Naylor's and Wood's affidavits are valid and relevant. Therefore, the trial court erred in not considering these exhibits. When the affidavits are considered, a conflict exists as to whether the Wattses signed as accommodation parties. When the evidence is conflicting as to whether a person signed commercial paper as an accommodation party, a question of fact is presented which is to be determined by the trier of fact.[8]
The Wattses respond that the intent of the creditor or holder is irrelevant to the issue of whether a party to an instrument signs as an accommodation party. Under this theory, PCA's belief concerning whether or not the Wattses signed the note as accommodation parties is irrelevant, and therefore, since the Wattses claimed below that they signed as accommodation parties, there is no genuine issue of fact that should preclude summary judgment.
Whether a person is an accommodation party is a question of intent. In other words, it is a question of the intention of the person claimed to be an accommodation party, the person who would be the accommodated party, and the person who was the holder of the paper when the alleged accommodation party signed.[9]
In this case, PCA was the holder of the notes when the Wattses signed as co-makers. In accordance with the rule above set forth, PCA's intent is relevant to the issue of whether the Wattses signed as accommodation parties. Since, as discussed above, the evidence submitted by PCA places the Wattses' status in issue, the trial court erred in granting summary judgment in favor of the Wattses. Therefore, the case is reversed and remanded.
When it is necessary to remand a case for further proceedings, it is the duty of the reviewing court to address matters which will necessarily arise at trial.[10] Since the parties disagree upon what is and what is not relevant to prove an accommodation relationship, we offer the following guidance on the issue. A maker on a note proclaiming that he is an accommodation party and is therefore entitled to the privileges accorded accommodation parties under the law has the burden of proving his *159 accommodation character when it is at issue.[11] In some situations, the note itself may reflect that a particular party signed as an accommodation party. The fact that a party signs a note as a "maker" as opposed to an "accommodation maker" or a "cosigner" does not mean the party did not sign as a surety; it merely means that the alleged status may not be reflected on the face of the note. The fact that one party signs above another or to the left of another, without some serious indicia that the locus of the signature is to have any significance, is irrelevant.
When an alleged accommodation party's status cannot be gleaned from the note itself, as is often the case, the only other method available to establish the status is through parol evidence. Because this dispute turns upon PCA's intent and thus its notice of the Wattses' alleged accommodation status, parol evidence is admissible in this case pursuant to subsection 3-415(3).[12] The relevant parol evidence in this case is that evidence establishing the facts and circumstances at the time the notes were signed.[13]
Subsection 3-415(1) focuses upon the purpose for which an alleged accommodation party signed. Application of the "purpose test" to determine whether or not a party signed as an accommodation party, as indicated above,[14] turns upon the intent of the parties. In its brief, PCA contends that there is a secondary test to determine whether or not a party signs as an accommodation party: "Whoever received the proceeds of the loan is the `principal obligor.'" Other courts and commentators denote this approach as the "benefit" or "proceeds" test.[15] Although some jurisdictions view the intent of the parties as only one factor to consider in determining whether a party is to be afforded the status of an accommodation party,[16] we believe a more accurate statement of the law is that whether or not a party to an instrument receives a benefit directly or indirectly, and if so to what extent, is one of several factors to be considered in determining the parties' intent. Since an accommodation party can receive a benefit under the code without undermining his status as a surety,[17] such evidence may only raise a permissible inference that a party is not an accommodation party.
Another factor which may be indicative of an accommodation status is whether the signature of the person claiming to be an accommodation party was necessary for the other party to receive the consideration given in exchange for the note.[18]
Finally, PCA correctly points out that a party cannot be an accommodation maker on a note given for his or her own debt.[19] The issue then is whether the January 1979 Watts/Gregory loan represented a new obligation delivered in satisfaction of the Wattses' previous debt. The following authority may be helpful:
It is generally held that the mere execution of a renewal note evidences the same debt by a new promise and does not constitute a payment or discharge of the original note but operates only as an extension of time for payment. It is true that one note may be accepted in payment *160 of another, but a new note given without any new consideration to the same person for the same sum as the old one is not generally deemed a satisfaction thereof, unless so received and accepted.[20]
III
The Wattses contend that they were released by section 3-606 when PCA discharged the Gregorys. Section 3-606 of the code provides, in pertinent part:
(1) The holder discharges any party to the instrument to the extent that without such party's consent the holder
(a) without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person ...; or
(b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.
(2) By express reservation of rights against a party with a right of recourse the holder preserves
(a) all of his rights against such party as of the time when the instrument was originally due; and
(b) the right of the party to pay the instrument as of that time; and
(c) all rights of such party to recourse against others.
A division of authority exists concerning the scope of the reference to "any party" in subsection 3-606(1).[21] We believe that the defense of discharge found in that provision is properly characterized as a "suretyship defense."[22] Thus, it would appear that subsection 3-606(1), while including accommodation parties and other parties to an instrument in the position of sureties, does not apply to makers binding themselves only as principals.[23]
The crux of the Wattses' case is that they were released because PCA failed to reserve its rights against the Wattses when PCA released the Gregorys. A maker claiming to be an accommodation party and thus entitled to the defenses of subsection 3-606(1) has the burden of proving discharge under that subsection.[24]
Section 3-606 does not by its terms create any formal requirements for a reservation of rights to be effective except that it be "express." An express reservation is one that is clear, definite, explicit, plain, direct, and unmistakable, as opposed to a reservation that is inferred or implied.[25] PCA asserts that a careful reading of the settlement agreement between itself and the Gregorys discloses an express reservation of rights as against the Wattses since the agreement refers to PCA's foreclosure action.[26] In relevant part, the PCA/Gregory release agreement provides:
*161 (B) To secure repayment of the Gregory/Watts Notes, Watts have previously given PCA a certain mortgage. .. . Said mortgage covers a four hundred eighty-one (481) acre piece of property (the "Gregory Farm") and other properties owned by Watts including his home (collectively the "Home Farm")... .
... .
(E) Gregorys and PCA desire to settle the differences among them and to resolve the Lawsuit insofar as it affects their interrelationships and to work together to conclude the litigation between them and the Watts.
... .
(6) Release of Gregorys. From and after the execution hereof and the execution and delivery of the documents and cash described in paragraphs 1 through 5, PCA will and does hereby release and discharge Gregorys and each of them from any and all liability which they may have to PCA under the Gregory/Watts Notes, under the Gregory Note, under the Mortgage, under any security agreements, under the Assignment of Equity and under any other documents of security given to PCA by Gregorys... . From and after execution hereof, PCA's sole remedy for recovery of the sums due it from Gregorys under the Gregory/Watts Notes shall be through foreclosure sale of the Gregory Farm and/or the Home Farm....
(Emphasis added.) PCA correctly points out that under this agreement its sole remedy for recovery of the sums due it from the Gregorys under the Watts/Gregory notes shall be by foreclosure sale upon the farm and ranch. However, merely reserving a right of foreclosure against property owned by the Wattses is not an express reservation of rights against the Wattses on the instrument, as is required by section 3-606. The law of commercial paper establishes an obligation independent of the underlying debt.[27] By reserving its rights to foreclosure upon the Wattses' property, PCA did not reserve its rights against the Wattses on their obligation on the note as makers. PCA also relies on its language that the Gregorys and PCA agreed to "conclude" the litigation as between them and the Wattses. PCA would have us imply that this was an express reservation of rights with regard to PCA's claims on the notes. Inasmuch as PCA obviously intended to pursue its foreclosure action and the Gregorys were not released from the Wattses' cross-claim because of the release agreement, this language does not support PCA's claim.
The parties to this action have extensively briefed the issues of whether the express reservation must be in writing and the applicability of U.C.A., 1953, §§ 15-4-1 to -7 (Repl. Vol. 2A, 1986 ed.). We need not reach these issues.
Although it is generally accepted that a surety (accommodation party) need not be given notice of the reservation of rights,[28] the primary obligor in such a case, it seems, must be given such information as part of a release agreement. Moreover, a reservation of rights implicitly deals with the subject matter of a release, and such reservation must be made prior to or contemporaneously with the point in time when a release agreement takes effect.
The PCA/Gregory release agreement contains an integration clause among its provisions. Since, as just noted, a reservation of rights is part of the subject matter of a release, and because such reservation may not be made subsequent to such release, parol evidence is inadmissible in this case to establish a reservation of rights. Because the release does not by its terms preserve PCA's rights on the notes as against the Wattses, we hold that no reservation of rights was made in this case.
IV
PCA contends that, assuming the Wattses are accommodation parties, the Wattses cannot be released from any obligation other than any deficiency. PCA relies upon *162 the following authority to support its proposition:
Any discharge under subsection (1) of Section 3-606 is available only "to the extent" that the conduct affects the accommodation party's obligation. This can be fairly readily determined where the conduct affects collateral. The question is, what was the value of the collateral of which the accommodation party was deprived or as to which his rights were otherwise diminished?[29]
PCA claims that the "extent" to which the Gregorys were released on the mortgage notes was only for any deficiency claim.
First, PCA's authority is directed not to the situation in this case, but to the situation when the holder unjustifiably impairs collateral under subsection 3-606(1)(b).[30] The only case we have found which cites the above-quoted authority is Beneficial Finance Co. v. Lawrence.[31] In that case, a defendant accommodation maker was claiming discharge under 3-606 due to the holder's failure to perfect its security interest which allegedly resulted in impairment to collateral pledged by the principal obligors.[32] The court there held that no release occurred since had the holder perfected the security interest in the collateral, its priority would be subordinate to other secured parties.[33] Indeed, all of the cases cited in support of the quoted proposition involve releases of collateral by the holder which was pledged by the primary obligor or a comaker.[34] The case at bar does not involve a release of collateral pledged by the principal obligors.
Second, as far as the Wattses are concerned, the Gregorys were not merely released from any deficiency which could have arisen upon foreclosure. PCA's release of the Gregorys in effect makes the Wattses and the Wattses' property liable for the entire debt. The release states that the Gregorys were released from "all liability which they may have to PCA under the Gregory/Watts notes." Section 3-606 provides in relevant part that the holder discharges any party to the instrument to the extent that the holder releases or agrees not to sue any party against whom the party has a right of recourse. Accordingly, when the person against whom a right of recourse exists is partially discharged, others who are also sureties are also discharged, but only to the extent that the rights have been impaired.[35] Since PCA failed to reserve its rights against the Wattses, the discharge was complete if the Wattses are accommodation parties.
V
PCA's final point is that the only remaining issue is the amount due under the notes. PCA relies on the trial court's having previously granted PCA's partial summary judgment. Since the prepared order was never signed by the court and the ruling only appears as an unsigned minute entry, we have no jurisdiction to rule on this issue.[36]
The case is reversed and remanded. No costs awarded.
*163 STEWART, Associate C.J., and DURHAM and ZIMMERMAN, JJ., concur.
HOWE, Justice, concurring:
I concur in reversing the summary judgment but express no opinion on other matters treated in the Court's opinion.
NOTES
[1] Since the farm was being sold to the Gregorys on a contract, legal title was in the Wattses' names.
[2] Compare Bailey v. Sound Lab, Inc., 694 P.2d 1043, 1044 (Utah 1984) (post-judgment motion filed but not ruled upon, dismissed, or withdrawn is still pending where record did not support the view that appellants abandoned their motion), with Zions First Nat. Bank v. C'Est Bon Venture, 613 P.2d 515, 517 (Utah 1980) (respondent's oral motion, which had not been ruled upon prior to judgment, deemed implicitly denied by judgment which did not give effect to motion).
[3] See Great Barrington Sav. Bank v. Gens, 8 Mass. App. Ct. 942, 942-43, 397 N.E.2d 1130, 1131 (1979) (court upheld trial court's granting of summary judgment where defendant's affidavits failed for sufficiency and thus accommodation status was no longer in issue).
[4] E.g., Treloggan v. Treloggan, 699 P.2d 747, 748 (Utah 1985) (per curiam); see Murray City v. Hall, 663 P.2d 1314, 1320 (Utah 1983); Utah R.Civ.P. 56(e) (Repl.Vol. 9B, 1977 ed.).
[5] 3 Am.Jur.2d Affidavits § 5 (1986).
[6] Id. (footnotes omitted).
[7] Id. at § 6.
[8] 6 R. Anderson, Anderson on the Uniform Commercial Code § 3-415:13 (3d ed. 1984) [hereinafter cited as Anderson].
[9] Anderson, supra note 8, § 3-415:16, at 351.
[10] Salt Lake County v. Salt Lake City, 570 P.2d 119, 121 n. 10 (Utah 1977) (citing Utah R.Civ.P. 76(a) (Repl. Vol. 9B, 1977 ed.) (repealed 1985)); Utah R.App.P. 30 (Repl. Vol. 9B, 1977 ed., Supp. 1986) (substantially identical to former Utah R.Civ.P. 76(a)).
[11] E.g., Lyons v. Citizens Commercial Bank, 443 So.2d 229, 232 (Fla. Dist. Ct. App. 1983).
[12] Unless otherwise indicated, all references are to the Utah Uniform Commercial Code contained in title 70A (Repl. Vol. 7B, 1980 ed.).
[13] See Lasky v. Berger, 536 P.2d 1157, 1159-60 (Colo.Ct.App. 1975) (not selected for official publication) (certiorari denied by the Colorado Supreme Court on July 14, 1975).
[14] See supra note 9 and accompanying text.
[15] See, e.g., Farmers State Bank v. Cooper, 227 Kan. 547, 553, 608 P.2d 929, 934 (1980); Commerce Union Bank v. Davis, 581 S.W.2d 142, 144 (Tenn. Ct. App. 1978).
[16] E.g., Lyons, 443 So.2d at 231.
[17] Such a construction is supported by comment 2 to section 3-415 of the official Uniform Commercial Code; see also Leroy v. Marquette Nat. Bank, 277 N.W.2d 351, 355 (Minn. 1979).
[18] E.g., Farmers State Bank, 227 Kan. at 553, 608 P.2d at 934; Annot., 90 A.L.R.3d 342 (1979 & Supp. 1986).
[19] E.g., Kopff v. Miller, 501 S.W.2d 532, 537 (Mo. Ct. App. 1973).
[20] Farmers Union Oil Co. v. Fladeland, 287 Minn. 315, 319, 178 N.W.2d 254, 257 (1970) (citations omitted); See also Peoples Nat. Bank v. Boyer, 354 N.W.2d 559, 560 (Minn. Ct. App. 1984).
[21] Compare Lyons, 443 So.2d at 231, with Southwest Florida Production Credit Ass'n v. Schirow, 388 So.2d 338, 339 (Fla. Dist. Ct. App. 1980).
[22] See First Nat. Bank v. Egbert, 663 P.2d 85, 86-87 (Utah 1983); Wohlhuter v. St. Charles Lumber & Fuel Co., 62 Ill.2d 16, 20, 338 N.E.2d 179, 182 (1975).
[23] E.g., United States v. Unum, Inc., 658 F.2d 300, 304 (5th Cir.1981); see Egbert, 663 P.2d 85, 86-87; Wohlhuter, 62 Ill.2d at 20, 338 N.E.2d at 182.
[24] Anderson, supra note 8, § 3-606:12 at 568-69.
[25] See Black's Law Dictionary 521 (Rev. 5th ed. 1979).
[26] The transcript from the hearing on the parties' motion for summary judgment includes the following excerpt:
THE COURT: Mr. Reporter, put that on the record to the effect that counsel for the plaintiff believes that the interpretation of the release instrument lends itself to a legal interpretation by the Court as to the extent of the release and is not subject to a factual determination of taking evidence as to what was meant by the provisions of the agreement which the Court would find somewhat vague, on the other hand subject to a legal interpretation. All right.
[27] See, e.g., U.C.A., 1953, § 70A-3-413(1) (Repl. Vol. 7B, 1980 ed.).
[28] E.g., Hallowell v. Turner, 95 Idaho 392, 394, 509 P.2d 1313, 1315 (1973).
[29] 2A F. Hart & W. Willer, Commercial Paper Under the Uniform Commercial Code § 13.24[4], at 13-110 (1987) (footnotes omitted).
[30] See id. § 13.24, at 13-63.
[31] 301 N.W.2d 114, 118 (N.D. 1980).
[32] Id. at 115-17.
[33] Id. at 118.
[34] The authors of PCA's authority cite Langeveld v. L.R.Z.H. Corp., 130 N.J. Super. 486, 492, 327 A.2d 683, 686 (N.J.Ch. 1974) (no discharge where delay in recording occasioned no loss of priority), aff'd, 137 N.J. Super. 557, 350 A.2d 76 (Ct. App.Div. 1975), rev'd, 74 N.J. 45, 376 A.2d 931 (1977); Christensen v. McAtee, 256 Or. 333, 335, 473 P.2d 659, 660 (1970) (en banc) (co-maker not entitled to discharge where he failed to prove value of released collateral); Lyons v. Citizens Commercial Bank, 443 So.2d 229, 232-33 (Fla. Dist. Ct. App. 1983) (assuming co-maker had standing to claim a release under 3-606 for release of collateral pledged by co-maker, no impairment shown by release where record failed to disclose value of collateral).
[35] First Arlington Nat. Bank v. Stathis, 115 Ill. App.3d 403, 414, 71 Ill.Dec. 145, 153, 450 N.E.2d 833, 841 (1983).
[36] Utah State Tax Comm'n v. Erekson, 714 P.2d 1151, 1152 & n. 1 (Utah 1986).
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483 So.2d 440 (1985)
BANKERS INSURANCE COMPANY, Appellant,
v.
John J. VASQUEZ, Keith Crowell, et al., Appellees.
Nos. 84-1942, 84-2168 and 85-267.
District Court of Appeal of Florida, Fourth District.
December 31, 1985.
Rehearing and Rehearing Denied March 11, 1986.
David F. Crow and Rosemary Cooney of Paxton Crow & Bragg, P.A., West Palm Beach, for appellant.
J. Mark Maynor of Beverly & Freeman, West Palm Beach, for appellee-Vasquez.
Rehearing and Rehearing En banc Denied March 11, 1986.
LETTS, Judge.
Once again we are asked to decide whether a signed rejection of uninsured motorist coverage (UM) is a "knowing" one, when the uninsured testifies that she was distracted, did not realize what she was signing, and was not sophisticated in insurance matters. The trial court denied the insurance company's motion for a directed verdict and the jury found that the insured had not made a knowing rejection. We conclude the motion for a directed verdict should have been granted and reverse.
In 1979 the Third District decided Alejano v. Hartford Accident and Indemnity Co., 378 So.2d 104 (Fla. 3d DCA 1979), holding that one who signs his name to an instrument rejecting uninsured motorist coverage cannot escape the consequences of his signature by alleging he did not understand or read the form, unless he shows facts indicating that he was prevented from reading it. See also Lopez v. Midwest Mutual Ins. Co., 223 So.2d 550 (Fla. 3d DCA 1969). There is no suggestion in the case at bar that the accused was prevented from reading the form. She claims only that she was distracted because of simultaneous consideration of the purchase of a helmet in the Honda motorcycle store where she filled out the application.
The above holdings from the Third District appear to us to be correct; however, subsequent cases have cast doubt on this issue and we cannot fault the trial judge for doing as he did in the case now before us. Perhaps the most important case on the question of UM rejection is Kimbrell v. Great American Ins. Co., 420 So.2d 1086, *441 1088 (Fla. 1982), in which our Supreme Court held that "the question of whether an insured has knowingly rejected uninsured motorist coverage ... is an issue to be decided by the trier of the fact." Kimbrell, as it specifically noted, did not involve a written rejection and we deem that to be an important distinction.
This question has been considered in several other instances. Notably, in Zisook v. State Farm Mutual Automobile Insurance Co., 440 So.2d 452 (Fla. 3d DCA 1983), the Third District appeared to recede from Alejano and Lopez holding that an "informed" rejection of UM coverage cannot, without extrinsic evidence, be implied from the insured's signature on an application. Most recently this court issued a per curiam affirmed, on the authority of, decision which, from a reading of the dissent, would appear to run contra to that which we now hold. See Sentry Insurance Company v. Ellison, 474 So.2d 2 (Fla. 4th DCA 1985). However, upon reflection it would appear the Sentry result was in error and we now recede from it and certify the issue to the Supreme Court.
To best describe the application in this case we reproduce it in toto from the record as follows:
*442 It should be noted that this particular application does not merely involve selection of UM in a lesser amount. Reference to paragraph 5, as reproduced above, shows that no UM was desired, nor was the minimum $100 premium paid and the dollar amount required to get such coverage was specifically lined out. It is not so much paragraph 5 of the application which compels us to this decision, it is paragraph numbered 8. This latter paragraph, set forth throughout in bold type, carries with it the requirement of a second signature in addition to the signature and verification provided for in paragraph 6.
The language of this final paragraph, following its underlined premise, is unmistakable and unequivocal and it requires the insured's separate signature. It is a plainly worded rejection of UM coverage. If such a written rejection is not valid upon signature, one is left helpless to suggest how else an insurer can protect itself from providing coverage, for which it receives no premiums, unless the signature were to be sworn to acknowledging that the paragraph had been read and understood. In the case before us, the insured does not deny her signature, but explains that her rejection was not knowingly made because she was distracted by the simultaneous purchase of a motorcycle helmet, did not pay much attention, and is not sophisticated in insurance matters. None of these reasons appear to us to be supportable; otherwise, as a practical matter, every written rejection would be worthless in that it would be obviated by convenient oral testimony to fit the circumstances and the case law.
We must look to the purpose of the statute to find the answer. As the court in Kimbrell remarked, Section 627.727, Florida Statutes (1983), embodies a public policy for the protection of insureds so that UM coverage will be available under all automobile insurance policies unless rejected by the insured. 420 So.2d at 1088. It is obviously not intended that the insured is to always have UM coverage without paying for it, otherwise there would be no point in having a statutory provision outlining how to reject it. As the Kimbrell court also pointed out, that rejection is not mandated in any particular fashion and need not even be in writing. However, it must be knowing. Common sense dictates that the best and most common method of preventing a contracting party from excusing herself from being bound by claiming she did not know that she was rejecting UM coverage is to have her sign a clearly worded statement that she did reject it. It is axiomatic that absent unusual circumstances, not present under the facts of the case now before us, one cannot claim ignorance of the contents of a written instrument which one signs. Stonebraker v. Reliance Life Ins. Co. of Pittsburgh, 123 Fla. 244, 166 So. 583 (1936) and John Deere Industrial Equipment Co. v. Roberts, 362 So.2d 65 (Fla. 1st DCA 1978).
Our conclusion as to legislative intent is bolstered by a recent amendment to the statute in which the pertinent portion of Section 627.727(1) was amended to provide that the rejection of UM is to be made on a form "approved by the insurance commissioner." See Ch. 85-62, § 16, Laws of Fla. True, the language in the amended statute is not quite the same as the language of the rejection paragraph in the matter at bar.[1] However, it is equally as clear. We note under the amendment that the insured's signature "conclusively presume[s] there was an informed knowing rejection." *443 Indeed we agree it should and we are cognizant of the revisor's comment to this statutory amendment which makes it clear no change in the law was intended when it was said:
Revisor's note Amended to improve clarity and facilitate correct interpretation.
Notwithstanding, we acknowledge conflict and confusion. Particularly we are perturbed by the language employed towards the end of Kimbrell whereat the court noted: "The fact that the insurer maintains in its files evidence of an offer and a selection is relevant but not crucial to a finding that a knowing selection was made." 420 So.2d at 1089.
Accordingly, deeming the matter to be of great public importance, we hereby certify the following question to our Supreme Court:
DOES A SECOND SIGNATURE ON AN INSURANCE APPLICATION AFFIXED BELOW A SEPARATE PARAGRAPH REJECTING UM COVERAGE WRITTEN IN BOLD PRINT AND IN PLAIN AND UNAMBIGUOUS LANGUAGE, CONCLUSIVELY DEMONSTRATE A KNOWING REJECTION ABSENT EXTRAORDINARY CIRCUMSTANCES NOT DEEMED TO BE PRESENT IN THE CASE AT BAR?
REVERSED AND REMANDED IN ACCORDANCE HEREWITH.
HERSEY, C.J., and DOWNEY, ANSTEAD, GLICKSTEIN, HURLEY, DELL and WALDEN, JJ., concur.
NOTES
[1] We note the amendment calls for the rejection form to be in 12 point bold type. Whether the instant rejection satisfies this technicality is not considered to be controlling in the case at bar which is governed by the law prior to the amendment.
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Court of Appeals
of the State of Georgia
ATLANTA, October 07, 2016
The Court of Appeals hereby passes the following order
A17D0081. TIRSO PAISANO v. US BANK NATIONAL ASSOCIATION .
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be
hereby DENIED.
LC NUMBERS:
1614843
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, October 07, 2016.
I certify that the above is a true extract from the minutes
of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk.
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No. 3-02-0874
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2003
ARLA ABRELL,
Plaintiff-Appellant,
v.
EMPLOYERS INSURANCE OF WAUSAU, a Mutual Company
Defendant-Appellee
)
)
)
)
)
)
)
)
)
)
Appeal from the Circuit Court
of the 10th Judicial Circuit Peoria County, Illinois
No. 01-MR-118
Honorable
John A. Barra
Judge, Presiding
_________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________
Arla Abrell filed a complaint against Employers Insurance of Wausau ("Wausau") seeking a declaration that she was covered under a Wausau commercial automobile insurance policy for an accident in which she was injured. After a bench trial, the trial judge ruled that Abrell was not covered under the terms of the policy because she was not "occupying" the motor vehicle at the time of the accident. We reverse and remand.
Abrell was employed as a manager of a seasonal Hickory Farms store opened in a mall for the holiday season. As part of her job, Abrell was in charge of a manager's "kiosk box" that contained paperwork regarding the store's operation. When the season ended, Hickory Farms prepared to move the equipment from the mall, and Abrell was instructed to bring her kiosk box to the mall for the move. Abrell brought the box to her supervisor to be placed into a moving van. After the box was placed in the rear of the van, Abrell and her supervisor began checking some of the paperwork. They stood at the back of the van for ten to fifteen minutes, retrieving various papers from the box, laying the papers out in the bed of the van and reviewing them. While Abrell and her supervisor were working on the back of the van, a car hit the van from behind, struck Abrell and pinned her knee between the car and the moving van's bumper.
At the time of the accident, Hickory Farms had an insurance policy with Wausau that covered the moving van. The policy provided coverage to anyone "occupying" a covered vehicle, and defined "occupying" as "in, upon, getting in, on, out or off." Abrell filed a declaratory judgment action seeking a declaration that she was covered under the policy.
Following a bench trial, the trial judge found that Abrell was not "occupying" the vehicle at the time of the accident. He held that, although Abrell had physical contact with the van, she was not using the vehicle as a means of transportation. Therefore, he granted judgment to Wausau.
In construing the provisions of an insurance policy, we must examine the terms used to ascertain the intentions of the parties.
Mathey v. Country Mutual Insurance Company
, 321 Ill. App. 3d 805, 809 (2001). If the terms of the policy are clear and unambiguous, we must give them their plain and ordinary meaning, and they must be applied as written unless they contravene public policy.
Mathey
, 321 Ill. App. 3d at 809.
If the facts of the case are undisputed, the question of whether the injured party falls within the coverage provided by the insurance policy is a matter of interpretation and is strictly a question of law for us to decide.
Indiana Insurance Company v. Liaskos
, 297 Ill. App. 3d 569, 574 (1998). Here, Abrell only challenges the trial court's construction of the policy, without taking issue with its factual findings. Thus, we are presented with a question of law that is subject to
de
novo
review.
Indiana Insurance
, 297 Ill. App. 3d at 574.
In
Mathey
, the court examined the language of an insurance policy with the same definition of "occupying" a vehicle. The court found that "in, upon, getting in, on, out or off" are everyday words defining broad factual situations (
Mathey
, 321 Ill. App. 3d at 312) and are clear and unambiguous. The court ruled that the only elements necessary to impose liability on the insurer under this broad definition are 1) some nexus or relationship between the injured party and the covered automobile, and 2) actual or virtual physical contact between the injured party and the insured vehicle.
Mathey
, 321 Ill. App. 3d at 811.
Abrell has proved both of these elements. First, as the trial court correctly noted, the issue of "physical contact" was conceded here; undoubtedly, Abrell was in contact with the moving van at the time of the accident. Second, there was a nexus or relationship between her and the vehicle. Abrell was working with her manager, using the rear of the vehicle as a makeshift desk, leaning into the van to retrieve more papers and working with those papers on the van's bed. Thus, under the broad interpretation of the policy language adopted by the courts of this state, she was "occupying" the vehicle.
Although the trial court found that "transportation" of the injured party in the vehicle was a condition of having a nexus or relationship with a vehicle, the cases do not require it. In fact, it had never been considered a deciding factor. See
Mathey
, 321 Ill. App. 3d 805 (students who had been riding in a bus but were lined up several feet away from it at the time of the accident were "occupying" the bus);
Lumbermen's Mutual Casualty Company v. Norris
, 15 Ill. App. 3d 95 (1973) (girl who had ridden in a car, but was merely sitting on the fender at the time of the accident, was "occupying" the vehicle);
Wolf v. American Casualty Company
, 2 Ill. App. 2d 124 (1954) (plaintiff, returning to his car after an accident, was struck six feet from vehicle, but was close enough to be "entering into" the car). On the contrary, the
Mathey
court specifically held that use of the vehicle for transportation is not necessary for the injured party to be "occupying" the vehicle.
Mathey
, 321 Ill. App. 3d at 812-14.
The decisions in the above-cited cases are compelling. It is not difficult to envision situations in which a person may be injured while "in" or "upon" a vehicle without ever intending to use the vehicle for transportation. For instance, a person could be sitting inside a vehicle looking for something in the glove compartment; a party could be injured while standing inside the bed of a truck, or while sitting on the hood of a car. Certainly those parties would be considered "in" or "upon" the respective vehicles.
The language of the policy was not restricted to those in or upon the vehicle solely for the purpose of transportation. The policy provides inclusive coverage without limitation; we will not carve out an exception to the clear and unambiguous language of this contract. Abrell must be granted coverage under the Wausau policy.
The judgment of the circuit court of Peoria County is reversed, and the case is remanded for further proceedings.
Reversed and remanded.
BARRY and HOLDRIDGE, JJ., concur.
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 11, 2016
Plaintiff-Appellee,
v No. 324269
Wayne Circuit Court
AIMEE CHERRY, LC No. 14-004181-FC
Defendant-Appellant.
Before: CAVANAGH, P.J., and RIORDAN and GADOLA, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order sentencing her to 40 months to 15
years’ imprisonment for voluntary manslaughter, MCL 750.321.1 On appeal, defendant only
raises a sentencing issue concerning the evidentiary support for the scoring of offense variable
(OV) 5. We affirm the trial court’s assessment of 15 points under OV 5, but order a Crosby2
remand pursuant to People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015).
On October 26, 2013, defendant shot and killed her boyfriend after he allegedly raped
her. Following a six-day trial, a jury convicted defendant of voluntary manslaughter,
MCL 750.321, and felony-firearm, MCL 750.227b. At defendant’s sentencing hearing, the court
heard testimony from two of the victim’s family members and concluded that serious
psychological injury to the victim’s family was shown by a preponderance of the evidence. Over
defendant’s objection, the court assessed 15 points under OV 5, which provides that 15 points
may be assessed if a victim’s family endured “[s]erious psychological injury requiring
professional treatment.” MCL 777.35(1)(a). As a result, defendant’s OV score increased from
65 to 80 points, which increased her statutory minimum sentence range from 19 to 38 months to
29 to 57 months for her Class C felony conviction. See MCL 777.64. The trial court then
sentenced defendant to 40 months to 15 years’ imprisonment for the manslaughter conviction.
1
Defendant was also sentenced to two years’ consecutive imprisonment for possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. That sentence is
not at issue in this appeal.
2
United States v Crosby, 397 F3d 103 (CA 2, 2005).
-1-
On appeal, defendant argues that the trial court erred by finding that the victim’s family
suffered serious psychological injury, and therefore erred by assessing 15 points under OV 5.
“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for
clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). Whether the facts are sufficient to satisfy the scoring
conditions prescribed by statute is an issue of statutory interpretation, which appellate courts
review de novo. Id.
OV 5 addresses psychological injury to a victim’s family, and provides that 15 points
should be assessed “if the serious psychological injury to the victim’s family may require
professional treatment.” MCL 777.35(2). At defendant’s sentencing hearing, the victim’s
daughter testified that she was “distraught and devastat[ed]” by the victim’s death and described
her loss as “like living with an amputation.” She explained that her brother would wake her
mother up at night “crying because he misses his dad.” The victim’s niece also testified that one
of the victim’s sons was “extremely numb,” and the whole family was struggling to deal with the
victim’s death. Although neither of the witnesses testified that they or other family members had
sought psychological treatment, whether a family member actually sought treatment is not
determinative. People v Portellos, 298 Mich App 431, 449; 827 NW2d 735 (2012). Considering
the above testimony, we conclude that the evidence was sufficient to allow the trial court to
assign 15 points under OV 5.
Although defendant did not raise this next issue in her appellate brief, we believe the
circumstances of the case necessarily trigger a consideration of our Supreme Court’s recent
opinion in Lockridge because the trial court relied on testimony presented after the close of trial
to assess points under OV 5. On July 29, 2015, the Michigan Supreme Court held that
Michigan’s sentencing guidelines were constitutionally deficient under Alleyne v United States,
570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013) and Apprendi v New Jersey, 530 US 466;
120 S Ct 2348; 147 L Ed 2d 435 (2000). Lockridge, 498 Mich at 364. Specifically, the Court
concluded that Michigan’s sentencing guidelines violated the Sixth Amendment to “the extent to
which the guidelines require judicial fact-finding beyond facts admitted by the defendant or
found by the jury to score [OVs] that mandatorily increase the floor of the guidelines minimum
sentence range.” Id. The Court severed the requirement in MCL 769.34(2)3 to the extent that it
compelled courts to impose a sentence on the basis of facts not admitted by the defendant or
found by a jury beyond a reasonable doubt. Id. As a result, trial courts must still score the
sentencing guidelines and consider the score when sentencing a defendant, but the guidelines are
advisory only. Id. at 365.
Appellate courts review constitutional questions de novo. Lockridge, 498 Mich at 373.
Defendant did not object to the scoring of the OVs at sentencing on Apprendi/Alleyne grounds,
3
MCL 769.34(2) provides that “the minimum sentence imposed by a court of this state for a
felony enumerated in part 2 of chapter XVII committed on or after January 1, 1999 shall be
within the appropriate sentence range under the version of those sentencing guidelines in effect
on the date the crime was committed.” (Emphasis added.)
-2-
so our review is limited to plain error affecting substantial rights. Id. at 392. To satisfy the
plain-error standard, a defendant must show that “an error occurred, that the error was plain, i.e.,
clear or obvious, and that the plain error affected substantial rights.” Id. at 393. Further, reversal
is only warranted if the error “resulted in the conviction of an actually innocent defendant or
seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Id.
In this case, the trial court assessed 15 points under OV 5 for serious psychological injury
to the victim’s family on the basis of testimony taken after the jury was dismissed. Accordingly,
the court assessed the points on the basis of facts that were not admitted by defendant or found
by the jury. Defendant had a prior record variable (PRV) score of 0, placing her in PRV level A
(0 points), and an OV score of 80, placing her in OV level VI (more than 75 points).
MCL 777.64. Deducting 15 OV points would reduce defendant’s OV score from 80 to 65 and
“change the applicable guidelines minimum sentence range,” Lockridge, 498 Mich at 399, from
29 to 57 months to 19 to 38 months (OV level V—50 to 74 points).
In Lockridge, 498 Mich at 395, citing Crosby, 397 F3d 117-118, our Supreme Court held
that all defendants “(1) who can demonstrate that their guidelines minimum sentence range was
actually constrained by the violation of the Sixth Amendment and (2) whose sentences were not
subject to an upward departure” are entitled to a remand to determine whether the trial court
committed plain error. Therefore, defendant is entitled to a Crosby remand pursuant to
Lockridge. On remand, the trial court should first give defendant the opportunity to decline
resentencing. Lockridge, 498 Mich at 398.
We affirm the scoring of OV 5, but order a Crosby remand pursuant to Lockridge
regarding defendant’s sentence. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Michael J. Riordan
/s/ Michael F. Gadola
-3-
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437 So.2d 1252 (1983)
Donnie HILBURN
v.
Hubert SHIRLEY.
82-604.
Supreme Court of Alabama.
September 2, 1983.
*1253 R. Blake Lazenby of Wooten, Boyett, Thornton, Carpenter & O'Brien, Talladega, for appellant.
William C. Roedder and T. Bruce McGowin of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
SHORES, Justice.
This is an appeal by the plaintiff from a summary judgment granted in favor of the defendant in a case growing out of a collision between a tractor-trailer truck driven by the plaintiff and a Chevrolet Vega driven by the defendant, who concedes in brief that "the manner in which it occurred is disputed between the parties." We reverse and remand.
The plaintiff was driving a tractor-trailer rig loaded with pipe, weighing overall about 84,000 pounds, north on Water Street, a six-lane street, early on the morning of October 14, 1980. He was en route to the State Docks facility and maintained that he had successfully completed a lane change to the middle lane when the defendant "darted" in front of his truck, causing the accident. Defendant, on the other hand, contends that the plaintiff merged his truck into the traffic lane already occupied by the defendant, thereby causing the accident. The plaintiff vehemently denies this and says that the defendant came from the right lane into the middle lane directly in front of the truck, the front bumper of which collided with the driver's side of the Vega, just behind the front door.
The plaintiff by deposition said that he did not see the defendant's car before the collision. As soon as he got his rig stopped, he put on the air lock brakes and "jumped out of the truck." It is about six feet to the ground, and he did not use the steps because: "I was in a hurry to get him [the defendant] out of that car. I didn't know how bad he was hurt. I didn't know if his car was on fire. I didn't know."
The jump from the truck caused injury to the plaintiff's lower back, ultimately resulting in surgery.
The single issue is whether under these facts, as a matter of law, it must be said that the proximate cause of the plaintiff's injury was not the collision, but instead, a separate, independent intervening event which could not reasonably have been foreseen.
*1254 As we have said so often since the adoption of Rule 56, A.R.Civ.P., because of the nature of negligence actions, almost always issues of fact are involved so that summary judgment is rarely appropriate in such cases. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976).
Proximate cause has been defined as "the primary moving cause without which [the injury] would not have been inflicted, but which, in the natural and probable sequence of events, and without the intervention of any new or independent cause, produces the injury." Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 224, 130 So.2d 388, 394 (1961). The defendant concedes that the manner in which the accident occurred is disputed. Taking the facts most favorably, as we must, to the non-moving party on motion for summary judgment, they would support a finding of negligence on the defendant's part in causing the initial collision. However, he argues that the plaintiff's act of jumping from his truck to see if the defendant was hurt was the superseding cause of his injury, absolving the defendant of liability for his original negligent act. We cannot agree that this is so as a matter of law. "An intervening cause which is set in operation by an original negligent act, or which is a normal response to the stimulus of a situation created by such act, generally will not relieve the original wrongdoer of liability." Stated differently, "[a]n intervening act does not become a superseding cause if it is a normal response to the stimulus of a situation created by the negligence of another, and the manner in which it is done is not extraordinarily negligent." 65 C.J.S. Negligence § 111(5) (1966). Restatement (Second) of Torts § 443 (1965).
We think a jury issue is made on the question of whether the plaintiff's jumping out of his vehicle immediately following the collision was a natural and normal response flowing from the defendant's alleged negligence. At least one court has addressed the precise issue and observed:
"[I]t has long been settled that the chain of causation is not broken by an intervening act which is a normal reaction to the stimulus of a situation created by negligence, and such normal reaction has been held to include the instinct toward self-preservation, Scott v. Shepard, 2 W.Bl. 892 (the lighted squib case), and the equally natural impulse to rush to others' assistance in emergency...."
New York Cent. R. Co. v. Brown, 63 F.2d 657, 658 (6th Cir.1933).
In Vines v. Plantation Motor Lodge, 336 So.2d 1338 (Ala.1976), we stated:
"This court has held many times that a person, who by some act or omission sets in motion a series of events, is not responsible for the consequences of intervention of another agency, unless at the time of his original act or omission, the act of the intervening agency could reasonably have been foreseen. If so, the causal chain is not broken."
336 So.2d at 1339.
We are unwilling to hold as a matter of law that it was or was not reasonably foreseeable that the driver of a vehicle involved in a collision might suddenly jump from it and injure himself in an effort to render assistance to another driver whose acts may have caused the accident. This is a matter peculiarly within the province of a jury.
Because the trial court erred in granting summary judgment, its order is reversed, and the cause is remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.
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398 F.Supp.2d 543 (2005)
Joe ALVAREZ, Plaintiff,
v.
UNITED PARCEL SERVICE CO., d/b/a UPSCO United Parcel Service Co., Defendant.
No. Civ.A. 304CV2173G.
United States District Court, N.D. Texas, Dallas Division.
October 26, 2005.
*544 *545 Raul H. Loya, Matthew B. Abraham, Loya & Associates, Dallas, TX, for Plaintiff.
John V. Jansonius, Akin Gump Strauss Hauer & Feld, Dallas, TX, Clay A. Hartmann, Akin Gump Strauss Hauer & Feld, Houston, TX, for Defendant.
MEMORANDUM OPINION AND ORDER
FISH, Chief Judge.
Before the court is the motion of defendant United Parcel Service Co. ("UPS") *546 for summary judgment on all of the plaintiff's claims. For the reasons stated below, UPS's motion is granted.
I. BACKGROUND
This is an employment discrimination case brought by Joe Alvarez ("Alvarez") against his former employer, UPS, an international package delivery company. Declaration of Steve Huffman ("Huffman") ¶ 2, located in Appendix in Support of Defendant's Motion for Summary Judgment and Supporting Brief ("Appendix") at 55.[1]
Alvarez is a Hispanic male and a resident of Texas. Plaintiff's Original Petition ("Petition") ¶¶ 1, 9, attached to Notice of Removal. On May 15, 1985, UPS hired Alvarez for the package cars department in Austin, Texas. Petition ¶ 9. But see Oral Deposition of Joe Alvarez ("Alvarez Dep.") at 26, located in Appendix at 8 (stating that Alvarez was hired by UPS in 1984). Alvarez worked there until 1996, when he joined the feeder department. Petition ¶ 9. He continued in that position until his transfer to the Dallas/Fort Worth Airport ("DFW") on September 30, 2001. Id.
Local 767 of the International Brotherhood of Teamsters ("IBT") represents all UPS drivers in north Texas, including Alvarez. Defendant's Motion for Summary Judgment and Supporting Brief ("Defendant's Motion") at 3; Huffman ¶ 3. As an IBT member, Alvarez's terms of employment were governed by a collective bargaining agreement known as the National Master United Parcel Service Agreement and Southern Regional Area Supplemental Agreement (collectively, the "CBA"). Huffman ¶ 3. The CBA contained the following provision governing discipline and discharge:
ARTICLE 52 DISCHARGE OR SUSPENSION
(A) The Employer shall not discharge nor suspend any employee without just cause, but in respect to discharge or suspension shall give at least one (1) warning notice of a complaint against such employee to the employee, in writing, ... except that no warning notice need be given to an employee before discharge if the cause of such discharge is dishonesty....
Appendix at 44B ("Article 52").
Article 51 of the CBA outlines the mandatory grievance and arbitration procedures applicable to a UPS employee. Defendant's Motion at 3. If an employee feels he has been disciplined improperly, he may file a grievance. Huffman ¶ 5. The first step is for the employee's union steward and supervisor to meet within five days of the grievance filing to attempt to resolve it. Id. ¶ 6. The next step is the local hearing. Here, the local union business agent meets with UPS's district labor manager to attempt resolution. Id. If the grievance is not resolved at the local level, the matter is submitted to the Southern Region Area Parcel Grievance Committee ("SRAPGC"), a committee comprised of IBT and UPS representatives. Id. If the SRAPGC is deadlocked, the grievance is submitted to the Southern Region Deadlock Committee. If that panel is deadlocked, the grievance is submitted to a National UPS/Teamsters Panel. Finally, if there is still no resolution, the matter is sent to arbitration. Id.
Documents proffered by UPS reflect that UPS, as an interstate carrier operating large commercial vehicles on public *547 roadways, must comply with Department of Transportation ("DOT") regulations. Huffman ¶ 7. Such compliance requires that UPS drivers accurately log their driving time for DOT purposes via a database system ("IVIS"). Id. ¶¶ 7, 11. In addition, drivers must accurately record their time for compensation purposes and to comply with provisions of the CBA governing breaks. Id. ¶ 8. Failure to accurately record driving time for DOT regulations or break time for compensation or CBA purposes ("stealing time") are violations constituting grounds for immediate discharge for dishonesty under Article 52. Id. ¶ 8.
Due to the time-sensitive nature of UPS's delivery business, feeder drivers are expected to make their runs each day within a prescribed amount of time. Id. ¶ 9. When drivers do not make their run within the time allotted, they are considered "overallowed." Id. While being "overallowed" is permissible from time to time, UPS will take corrective and/or disciplinary action if it occurs on an excessive basis. Id. ¶ 10.
In January 2002, Phil Russell ("Russell") became supervisor of the DFW feeder department. Petition ¶ 10. It was at this time that Alvarez felt he was being harassed about his race, but pretextually about his job performance. Id. In particular, Alvarez felt his co-workers received preferential treatment, Alvarez Dep. at 68-78; Petition ¶ 10; that Russell had an "aggressive" attitude towards Alvarez, Alvarez Dep. at 90; Defendant's Motion at 11; and that Russell referred to another employee as a "fucking Mexican." Alvarez Dep. at 92-95. In late 2002, Russell and Alvarez had an altercation regarding unpaid wages, in which Alvarez threatened to file a grievance against Russell. Petition ¶ 11; Defendant's Motion at 14-15 (citing Alvarez Dep. at 144-45).
In the regular course of monitoring feeder driver performance, management noticed that Alvarez was consistently overallowed for January 2003. Defendant's Motion at 5. This prompted an audit of his IVIS records, which revealed Alvarez making regular stops exceeding his allowed break time. Declaration of Steve Walton ("Walton") ¶¶ 3-5, located in Appendix at 66-68. In addition, UPS discovered that Alvarez had a pattern of parking his rig while DOT records showed him driving. Id. ¶ 5.
To confirm the discrepancies and overallowances, Steve Walton ("Walton") and Rick Blakey ("Blakey"), feeder supervisors at UPS's DFW hub, followed Alvarez on his route for three days in late January of 2003. Petition ¶ 12; Walton ¶ 6. Besides not logging out non-driving time as breaks or properly recording breaks for DOT purposes, Alvarez charged UPS for over four hours of "unworked time" in the three days he was observed. Defendant's Motion at 6-7 (citing Alvarez Dep., Huffman, and Walton). Subsequent to this surveillance, Alvarez was terminated from his position at UPS under Article 52 for "stealing time" and falsifying DOT logs. Id. at 7; Walton ¶ 11; Huffman ¶ 13. Alvarez filed a grievance challenging this termination. Alvarez Dep. at 150; Appendix at 39, 53. This grievance was heard on February 18, 2003, before a panel of UPS and IBT representatives, and was ultimately denied. Defendant's Motion at 8 (citing Alvarez Dep. at 70-71, 152).
Alvarez filed charges of racial discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC") and received notice of right to sue. Petition ¶¶ 24, 32; EEOC Dismissal and Notice of Rights, attached to Petition as Exhibit A. On September 2, 2004, Alvarez filed a civil action against UPS in the 160th Judicial District Court of Dallas *548 County, Texas. Notice of Removal ¶ 2; Petition. The case was removed to this court on October 6, 2004, on the basis of federal question jurisdiction. Notice of Removal. In his petition, Alvarez asserted claims of racial discrimination, in violation of the Texas Commission on Human Rights Act, TEX. LAB.CODE § 21.051 (the "TCHRA"); retaliation, in violation of the TCHRA; violations of 42 U.S.C. § 1981 and Title VII;[2] intentional infliction of emotional distress; and negligent supervision of UPS's employees. See generally Petition. On August 26, 2005, UPS filed this motion for summary judgment. Docket Sheet; Defendant's Motion. Alvarez did not respond to the motion.
II. ANALYSIS
A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists 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).[3] "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movant makes such a showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c).
Once the movant makes this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548. To carry this burden, the "opponent must do more than simply show ... some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The nonmovant cannot survive a motion for summary judgment by merely resting on the allegations in his pleadings. Isquith for and on Behalf of Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988); see also Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
Although the court may not enter a default summary judgment by virtue of Alvarez's failure to respond, it may accept as undisputed the facts described in support *549 of UPS's motion. Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir.1988). Summary judgment is proper if, after adequate time for discovery, the affidavits, depositions, answers, and admissions on file fail to establish the existence of an element essential to Alvarez's case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-323, 106 S.Ct. 2548.
B. Alvarez's Discrimination and Retaliation Claims
"[T]he law governing claims under the TCHRA and Title VII is identical." Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403 n. 2 (5th Cir.1999). In addition, in cases involving race discrimination, the same analysis applies to claims arising under 42 U.S.C. § 1981. See LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir.1996). Therefore, to avoid unnecessary repetition, the court will analyze all claims utilizing the case law construing Title VII. See Shackelford, 190 F.3d at 403 n. 2.
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., prohibits discrimination on the basis of race, color, religion, sex, or national origin in federal and private employment. Fitzgerald v. Secretary, United States Department of Veterans Affairs, 121 F.3d 203, 206 (5th Cir.1997). Title VII also prohibits retaliation against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a).
1. Discrimination
Prior to the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), courts analyzed discrimination cases using a shifting burden framework as articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and developed in subsequent cases. Proof of discrimination was available in two ways direct evidence or by an indirect or inferential method of proof which resulted in different methodologies. Discrimination could be shown indirectly by following the "pretext" method set out in McDonnell Douglas, but if the plaintiff produced direct evidence of discrimination, and the employer asserted that the same adverse employment decision would have been made regardless of discrimination, the mixed-motive analysis set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), applied.
In Desert Palace, the Supreme Court unanimously held that in the context of Title VII, as amended by Congress in 1991, "direct evidence of discrimination is not required in mixed-motive cases...." 539 U.S. at 101-102, 123 S.Ct. 2148. See also Stegall v. Citadel Broadcasting Company, 350 F.3d 1061, 1066-67 (9th Cir.2003) (applying Desert Palace after summary judgment was granted on the plaintiff's Title VII and state law discrimination claims, and analyzing the plaintiff's case under both mixed-motive and single-motive (pretext) theories). As the court in Louis v. East Baton Rouge Parish School Board, 303 F.Supp.2d 799 (M.D.La.2003), observed, "[b]ecause the direct evidence requirement has been removed from mixed-motive[s] cases, it is now harder to draw a distinction between McDonnell Douglas and mixed-motive[s] cases." 303 F.Supp.2d at 803-04.
The Fifth Circuit has adopted use of a "modified McDonnell Douglas approach" in cases where the mixed-motive analysis may apply. Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 (5th Cir.2005) (citing Rachid v. Jack in the Box, *550 Inc., 376 F.3d 305, 312 (5th Cir.2004)) (emphasis added). Under this framework,
the plaintiff must still demonstrate a prima facie case of discrimination; the defendant then must articulate a legitimate, non-discriminatory reason for its decision to terminate the plaintiff; and, if the defendant meets its burden of production, "the plaintiff must then offer sufficient evidence to create a genuine issue of material fact `either (1) that the defendant's reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant's reason, while true, is only one of the reasons for its conduct, and another "motivating factor" is the plaintiff's protected characteristic (mixed-motive[s] alternative).'"
Rachid, 376 F.3d at 312 (quoting Rishel v. Nationwide Mutual Insurance Company, 297 F.Supp.2d 854, 865 (M.D.N.C.2003)).
Therefore, the first step for either pretext or mixed motive analysis requires that the plaintiff establish a prima facie case of discrimination. Id.; Keelan, 407 F.3d at 341. If the plaintiff presents a prima facie case, a presumption of discrimination arises. Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir.1993). This prima facie case requires a showing that the plaintiff (1) was a member of a protected group, Hispanic; (2) was qualified for his position; (3) was dismissed or suffered an adverse employment action; and (4) the defendant sought to replace him with a similarly qualified white employee. See, e.g., Ward v. Bechtel Corporation, 102 F.3d 199, 202 (5th Cir.1997). That is, Alvarez must prove that "an employee outside of his protected class received better treatment on circumstances nearly identical to his." Bowers v. Principi, 70 Fed. Appx. 157, 2003 WL 21554567, at *1 (5th Cir. July 3, 2003) (per curiam) (citation omitted); see also Bryan v. McKinsey & Company, Inc., 375 F.3d 358, 360 (5th Cir.2004) (rephrasing the fourth factor to be whether plaintiff "was replaced by someone outside the protected class, or, in the case of disparate treatment, shows that other similarly situated employees were treated more favorably").
Alvarez has not sustained this burden. Specifically, he has produced no evidence that similarly situated non-Hispanic co-workers received better treatment in nearly identical circumstances. In his deposition, Alvarez identified three co-workers who he claimed received more favorable treatment in nearly identical circumstances. Alvarez Dep. at 68-78. However, the evidence in the record indicates that the circumstances of these other employees were not similar. Defendant's Motion at 9-10. How Kiv ("Kiv"), an Asian employee, was terminated under Article 52, but for involvement in an unreported accident, not dishonesty. Alvarez Dep. at 69-70. In contrast to Alvarez, Kiv successfully challenged his termination via grievance procedures prescribed by the CBA. Alvarez claimed that a white employee, Jeffrey Bellieu ("Bellieu"), drove too slowly in an effort to increase the time he was paid while driving for UPS. Id. at 77-78. Bellieu's behavior, however, is not identical to Alvarez's, for there is no indication in the record that Bellieu falsified DOT documentation. Finally, Alvarez claimed that Merik Kolinko ("Kolinko"), a white co-worker, took breaks while on duty. Id. at 76. Alvarez has submitted no evidence in support of this allegation, however, and UPS management had no information that Kolinko was dishonest. Huffman ¶ 15. In addition to clarifying the behavior of the comparators cited by Alvarez, UPS has identified several white feeder drivers who were terminated upon discovery of conduct identical to Alvarez's. Id. ¶ 14 (listing five individuals). Given *551 this evidence, Alvarez has not established a prima facie case to make out a Title VII claim of racial discrimination. Summary judgment will therefore be entered in favor of UPS on Alvarez's claim of racial discrimination.
2. Retaliation
A charge of retaliation follows a burden-shifting analysis similar to racial discrimination. See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir.1998); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir.1996). To establish a prima facie case of unlawful retaliation under Title VII, Alvarez must demonstrate that (1) he engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link existed between participation in the protected activity and the adverse employment action. See Webb v. Cardiothoracic Surgery Associates of North Texas, P.A., 139 F.3d 532, 540 (5th Cir.1998); Sherrod, 132 F.3d at 1122 n. 8; Long, 88 F.3d at 304; Collins v. Baptist Memorial Geriatric Center, 937 F.2d 190, 193 (5th Cir.1991), cert. denied, 502 U.S. 1072, 112 S.Ct. 968, 117 L.Ed.2d 133 (1992).
Once the plaintiff establishes his prima facie case, the defendant has the burden of production to articulate a legitimate nondiscriminatory reason for the adverse employment action. Winter v. Bank of America, N.A., No. 3:02-CV-1591-L, 2003 WL 23200278, at *10 (N.D.Tex. Dec.12, 2003). If the defendant meets this burden, the ultimate question becomes whether "`but for' the protected activity, the [adverse employment action] would not have occurred, notwithstanding the other reasons advanced by the defendant." Vadie v. Mississippi State University, 218 F.3d 365, 374 (5th Cir.2000) (quoting McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir.1983), cert. denied, 531 U.S. 1113, 121 S.Ct. 859, 148 L.Ed.2d 772 (2001)); see also Long, 88 F.3d at 305 n. 4 ("even if a plaintiff's protected conduct is a substantial element in a defendant's [adverse employment] decision ..., no liability for unlawful retaliation arises if the [same decision would have been made] even in the absence of the protected conduct"). The requirement of showing "but for" causation is more stringent than the minimal causation required to make the plaintiff's prima facie case. Hall v. Pitney Bowes, Inc., No. 3:02-CV-2756-B, 2004 WL 389093, at *10 (N.D.Tex. Feb.27, 2004).[4]
Alvarez has, for reasons similar to the analysis above on the claim of racial discrimination, failed to establish a prima facie case of retaliation. Alvarez bases his claim of retaliation on his discharge following an altercation between himself and his supervisor, Russell. Defendant's Motion at 14; Petition ¶ 30. However, Alvarez admits that at no point during this altercation did he allege discrimination based on *552 race or any other protected classification. Defendant's Motion at 14-15; Alvarez Dep. at 144-45. But see Petition ¶ 30 ("Defendants illegally retaliated against Plaintiff by ... firing Plaintiff solely because he had confronted Russell about the racial harassment of himself and other minority employees."). Instead, this disagreement resulted from the fact that Russell refused to pay Alvarez for a half hour of work that Alvarez was allegedly owed. Alvarez Dep. at 141-42. Alvarez stated that he would file a grievance against Russell for harassment due to this nonpayment, not because he was being harassed for being Hispanic. Defendant's Motion at 14-15 (quoting Alvarez Dep. at 144-45). This does not constitute protected activity, thereby preventing the establishment of a prima facie case of retaliation. See, e.g., Moore v. United Parcel Service, Inc., No. 04-11403, 2005 WL 2436922, at *4 (5th Cir. Oct.4, 2005) (per curiam) (filing grievance that UPS violated agreement with union did not constitute protected activity under Title VII because employee did not oppose/protest racial discrimination or any unlawful employment practice); Watts v. Kroger Company, 170 F.3d 505, 511 (5th Cir.1999) (complaint to superior in which plaintiff merely mentioned comments about her "personal life" and did not make reference to sexual harassment did not constitute protected activity under Title VII); Callahan v. Bancorpsouth Insurance Services of Mississippi, Inc., 244 F.Supp.2d 678, 683-84 (S.D.Miss.2002) (finding that an employee's complaints about wages did not constitute protected activity because her statements did not "sufficiently convey the employee's reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner"), aff'd, 61 Fed.Appx. 121 (5th Cir.2003). Accordingly, UPS is entitled to summary judgment in its favor on Alvarez's retaliation claim.
C. Alvarez's Remaining State Law Claims
UPS contends that Alvarez's intentional infliction of emotional distress and negligent supervision claims are preempted by § 301 of the Labor Management Relations Act ("LMRA"). Section 301 provides:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a).
Congress passed § 301 to allow "federal courts to fashion a body of federal law for the enforcement of ... collective bargaining agreements." Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 451, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). The Supreme Court has thus determined that if a state law cause of action arising out of contract or tort is inextricably intertwined with interpretation of the terms of the collective bargaining agreement, the state law claim is preempted by § 301. United Steelworkers of America, AFL-CIO-CLC v. Rawson, 495 U.S. 362, 369, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990); Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988); Allis-Chalmers Corporation v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); see also Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 97 (5th Cir.1996) (citing Thomas v. LTV Corporation, 39 F.3d 611, 616 (5th Cir.1994); Jones v. Roadway Express, Inc., 931 F.2d 1086, 1089 (5th Cir.1991); Baker v. Farmers Electric, 34 F.3d *553 274 (5th Cir.1994)). In those cases where resolution of the state law claim does not require an interpretation of the collective bargaining agreement, the claim is deemed "independent," and is not preempted. See Roadway Express, 931 F.2d at 1089; see also Lingle, 486 U.S. at 410, 108 S.Ct. 1877 ("as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is `independent' of the agreement for § 301 pre-emption purposes"). But see Medrano v. Excel Corporation, 985 F.2d 230, 233 (5th Cir.) (holding that "[u]nlike the plaintiff's claim in Roadway Express ..., [plaintiff]'s claim is indeed inextricably intertwined with a consideration of the terms of the CBA"), cert. denied, 510 U.S. 822, 114 S.Ct. 79, 126 L.Ed.2d 47 (1993).
1. Intentional Infliction of Emotional Distress
A plaintiff pursuing a claim against his employer for intentional infliction of emotional distress has the burden of proving wrongful conduct by that employer. See Dancy v. Fina Oil & Chemical Company, 921 F.Supp. 1532, 1536 (E.D.Tex.1996) (citing Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633 (5th Cir.1994)). "The plaintiff must establish not that the defendant's conduct was wrongful in some abstract sense, but wrongful under the circumstances." Id. "[T]he collective bargaining agreement is a crucial component of these circumstances." Id. Because emotional distress claims normally require an analysis of an extant CBA, in this circuit the LMRA has been held to preempt state law emotional distress claims that are related to employment discrimination. See Barrow v. New Orleans Steamship Association, 10 F.3d 292, 300 (5th Cir.1994); Thomas, 39 F.3d at 619; Reece v. Houston Lighting & Power Company, 79 F.3d 485, 487 (5th Cir.), cert. denied, 519 U.S. 864, 117 S.Ct. 171, 136 L.Ed.2d 112 (1996); Stafford v. True Temper Sports, 123 F.3d 291, 296 (5th Cir.1997).
The conduct of which Alvarez complains and upon which he bases his claim for emotional distress undoubtedly relates to employment discrimination. See Alvarez Dep. at 156-57 (discussion of facts giving rise to emotional distress claim as a result of alleged discriminatory discharge). Here, as in Stafford, "[t]he emotional distress claim is clearly part of the same matter as the employment discrimination claim, and would likely never have come into existence but for the original dispute... and is far from peripheral to the central employment issue." Stafford, 123 F.3d at 296. Accordingly, the LMRA preempts Alvarez's state law claim for intentional infliction of emotional distress.
2. Negligent Supervision
Alvarez's final claim is that UPS was negligent in supervising and controlling Russell and other supervisors or employees who engaged in the allegedly discriminatory conduct. Petition ¶¶ 50-61. To prevail on this claim, Alvarez must show that UPS hired and retained these individuals who were incompetent or unfit for the job "as a result of a failure to make a reasonable inquiry into the individual's competence and qualifications." Sanders v. Casa View Baptist Church, 898 F.Supp. 1169, 1179 (N.D.Tex.1995), aff'd, 134 F.3d 331 (5th Cir.), cert. denied sub nom. Baucum v. Sanders, 525 U.S. 868, 119 S.Ct. 161, 142 L.Ed.2d 132 (1998).
Any duty to effectively supervise employees, or breach of such duty, is inextricably intertwined with the issue of discipline. Todd v. Safeway, Inc., No. 3:98-CV-02369, 1998 WL 556577 at *5-6 (N.D.Cal. Aug.28, 1998). Here, the CBA does specifically address the issue of discipline *554 and related procedures. See generally Article 52. Thus, in determining whether UPS had a duty and/or breached any duty of proper supervision, it would be necessary to consider the disciplinary provisions of the CBA. Consequently, the claim is preempted by § 301 of the LMRA. See also Busey v. P.W. Supermarkets, Inc., 368 F.Supp.2d 1045, 1053 (N.D.Cal.2005) (finding that § 301 preempted a negligent supervision claim based upon the defendant's failure to train its employees "to adhere to `company principles with respect to reviewing and/or disciplining employees and communicating professionally with other company personnel'").
3. Disposition of Claims
Based on the summary judgment record, Alvarez's state law claims are not independent of conduct covered by the collective bargaining agreement, i.e., UPS's disciplinary procedures and Alvarez's discharge under Article 52. The state law claims of intentional infliction of emotional distress and negligent supervision require a determination under the collective bargaining agreement of whether the termination was wrongful and whether UPS adhered to its disciplinary procedures.
Therefore, the court finds that Alvarez's claims for intentional infliction of emotional distress and negligent supervision are preempted by § 301. UPS is entitled to summary judgment on these claims.
D. Attorney's Fees
UPS seeks to recover its attorney's fees and costs in defending Alvarez's claims. Defendant's Motion at 20. In Title VII and TCHRA claims, a prevailing defendant is entitled to recover attorney's fees only if it is shown that the plaintiff's claim is frivolous, unreasonable or without foundation. Harris v. Plastics Manufacturing Company, 617 F.2d 438, 440 (5th Cir.1980). The court finds that Alvarez's claims, while insufficient to survive summary judgment, were not frivolous, unreasonable, or without foundation. Therefore, the court denies UPS's request for attorney's fees and costs.
III. CONCLUSION
For the reasons set forth above, UPS's motion for summary judgment is GRANTED. Judgment will be entered that Alvarez take nothing from UPS on his claims in this case.
SO ORDERED.
NOTES
[1] Alvarez originally filed this case against UPS and Phil Russell, his supervisor. However, the claims against Russell were dismissed by the court after Alvarez failed to show cause for his failure to effect service on Russell. Order, February 22, 2005.
[2] Title VII is not mentioned in the petition. Attached to the petition, however is a notice of right to sue, issued by the EEOC, granting Alvarez the right to bring this private suit under Title VII. EEOC Dismissal and Notice of Rights, attached to Petition as Exhibit A. UPS addresses Alvarez's claims as falling under Title VII, Section 1981, and the TCHRA. Defendant's Motion at 8 n. 8. Therefore, in an abundance of caution, the court will analyze Alvarez's claims as seeking relief under all three statutes.
[3] The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir.1986).
[4] The Fifth Circuit has explicitly reserved the question whether the mixed-motive analysis, as explicated in Rachid, applies to retaliation claims. See Septimus v. University of Houston, 399 F.3d 601, 607 n. 7 (5th Cir.2005). While some district courts have found the analysis inapplicable, Funai v. Brownlee, 369 F.Supp.2d 1222, 1227-28, 1234 (D.Haw.2004), other courts have chosen to utilize it. Calmat Company v. U.S. Department of Labor, 364 F.3d 1117, 1123 n. 4 (9th Cir.2004); Warren v. Terex Corporation, 328 F.Supp.2d 641, 646 (N.D.Miss.2004); Bergen v. Continental Casualty Company, 368 F.Supp.2d 567, 572-73 (N.D.Tex.2005) (Sanders, J.); Cones v. Duke Energy Corporation, 367 F.Supp.2d 1092, 1100 (S.D.Tex.2005); Knighten v. State Fair of Louisiana, No. 5:03-CV-01930, 2005 WL 1629933, at *4 (W.D.La. July 1, 2005). Because this case can be decided on other grounds, the court refrains from making any determination whether the modified McDonnell Douglas analysis applies to retaliation claims.
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591 F.2d 101
U. S.v.Turner***
No. 78-5563
United States Court of Appeals, Fifth Circuit
2/23/79
1
M.D.Fla.
AFFIRMED
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409
**
Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966
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44 So.3d 689 (2010)
Michael M. FLOYD
v.
EAST BANK CONSOLIDATED FIRE PROTECTION DISTRICT FOR THE PARISH OF JEFFERSON, and Jefferson Parish.
No. 2010-C-1094.
Supreme Court of Louisiana.
September 3, 2010.
Denied.
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149 F.3d 722
47 U.S.P.Q.2d 1587
PLATINUM HOME MORTGAGE CORPORATION, Plaintiff-Appellant,v.PLATINUM FINANCIAL GROUP, INCORPORATED, Defendant-Appellee.
No. 97-3336.
United States Court of Appeals,Seventh Circuit.
Argued April 13, 1998.Decided July 24, 1998.Rehearing Denied Aug. 18, 1998.
Richard M. LaBarge (argued), Madeline Henricks Devereux, Marshall, O'Toole, Gerstein, Murray & Borun, Chicago, IL, for Plaintiff-Appellant.
James E. Mahoney, Ronald A. Rascia (argued), Griffith & Jacobson, Chicago, IL, for Defendant-Appellee.
Before BAUER, FLAUM, and DIANE P. WOOD, Circuit Judges.
BAUER, Circuit Judge.
1
Platinum Home Mortgage Corporation ("Platinum Mortgage") filed suit against Platinum Financial Group, Incorporated ("Platinum Financial") for unfair competition under Section 43 of the Lanham Act, 15 U.S.C. §§ 1125(a)(1)(A) and (B), for common law trademark infringement, and for deceptive trade practices under the Uniform Deceptive Trade Practices Act, 815 ILCS 510/1-7 (1996). Platinum Mortgage filed a motion for preliminary injunctive relief, requesting the district court to enjoin Platinum Financial from using the term "platinum" in its name. The district court denied the motion, and Platinum Mortgage now appeals. For the reason set forth below, we affirm.
BACKGROUND
2
In January of 1994, Platinum Mortgage began to offer home mortgage services, including certain government-sponsored mortgage loans, and it currently maintains offices throughout Illinois in Aurora, Chicago, Libertyville, River Grove, Rolling Meadows, and also in the State of Colorado. In January of 1997, Platinum Financial began to offer various financial services, including limited mortgage services for the purpose of developing long-term strategies in financial planning, and currently its office is located in Lake Forest, Illinois. Platinum Financial does not provide, nor does it intend to provide the government-sponsored loans offered by Platinum Mortgage. Both firms have submitted that they have incurred various advertising costs and promotional expenses to publicize their businesses; of course, these advertisements and promotions use the word "platinum" to identify each company's services.
3
William Giambrone, the Chief Financial Officer for Platinum Mortgage, first became aware of Platinum Financial when he noticed an advertisement for its mortgage services in the Chicago Tribune. Giambrone objected to Platinum Financial's use of "platinum" and was concerned that consumers interested in obtaining a mortgage would be confused by the similarity of their names. Platinum Mortgage filed this suit against Platinum Financial on July 15, 1997 for unfair competition, common law trademark infringement, and deceptive trade practices, objecting to Platinum Financial's use of "platinum" in its name. Then, on August 1, 1997, Platinum Mortgage filed a motion for preliminary injunctive relief.
4
In a memorandum opinion and order issued on September 4, 1997, the district court refused to grant the preliminary injunction, finding that Platinum Mortgage does not have more than a negligible chance of success on the merits of its trademark infringement claim. First, the court determined that its trade name is merely descriptive, and second that it is quite unlikely Platinum Mortgage could show its name has acquired secondary meaning. Accordingly, the district court concluded that Platinum Mortgage would not be entitled to trademark protection for its trade name under the Lanham Act and, therefore, denied its motion for preliminary injunctive relief.
5
Platinum Mortgage filed a timely notice of appeal and now argues that the district court erroneously found that "platinum," as a trademark, is only descriptive when used in connection with its mortgage services. Again, Platinum Mortgage contends that its mark is suggestive and entitled to protection without evidence of secondary meaning. Alternatively, Platinum Mortgage argues that even if evidence of secondary meaning is required, it nonetheless submitted substantial evidence of actual confusion that demonstrates "platinum" has acquired secondary meaning. With these facts as background, we now turn to the issues presented for review.1
ANALYSIS
6
In reviewing the grant or denial of a preliminary injunction, we review a district court's findings of fact for clear error, its balancing of the factors of a preliminary injunction for an abuse of discretion, and its legal conclusions de novo. Meridian Mut. Ins. Co. v. Meridian Ins. Group, Inc., 128 F.3d 1111, 1114 (7th Cir.1997). The purpose of preliminary injunctive relief is "to minimize the hardship to the parties pending the ultimate resolution of the lawsuit." Faheem-El v. Klincar, 841 F.2d 712, 717 (7th Cir.1988). When evaluating the merits of a motion for preliminary injunctive relief, a district court must determine whether the party seeking the preliminary injunction has demonstrated that: (1) it has a reasonable likelihood of success on the merits of its claim; (2) no adequate remedy at law exists; (3) it will suffer irreparable harm if preliminary injunctive relief is denied; (4) the irreparable harm it will suffer without preliminary injunctive relief outweighs the irreparable harm the nonmoving party will suffer if the preliminary injunction is granted; and (5) the preliminary injunction will not harm the public interest. Rust Environment & Infrastructure, Inc. v. Teunissen, 131 F.3d 1210, 1213 (7th Cir.1997). The threshold consideration in a motion for a preliminary injunction is the moving party's likelihood of success on the merits of the underlying claim. Id.
7
"Trademark law aims to aid consumers in identifying the source of goods by allowing producers the exclusive right to particular identifying words or symbols which they may attach to their products as a designator of source." Thomas & Betts Corp. v. Panduit Corp., 65 F.3d 654, 657 (7th Cir.1995). Accordingly, the protection afforded to a trademark attempts to prevent consumer deception and confusion. However, that trademark protection should not interfere with the traditional policies of a competitive market, and courts have generally recognized that the public substantially benefits from competition. August Storck K.G. v. Nabisco, Inc., 59 F.3d 616, 619 (7th Cir.1995). In the context of a motion for a preliminary injunction in a trademark infringement claim, a likelihood of success exists if the party seeking the preliminary injunctive relief demonstrates that it has a "better than negligible" chance of succeeding on the merits of the underlying infringement claim. Curtis v. Thompson, 840 F.2d 1291, 1296 (7th Cir.1988).
8
In a trademark infringement claim, the plaintiff must demonstrate: (1) the validity of its trademark; and (2) the infringement of that mark. Echo Travel, Inc. v. Travel Associates, Inc., 870 F.2d 1264, 1266 (7th Cir.1989). The validity of a mark pertains to whether a "word, term, name, symbol or device," 15 U.S.C. § 1125(a)(1), is entitled to protection under trademark law by focusing on whether that mark specifically identifies and distinguishes one company's goods or services from those of its competitors. The infringement of a mark concerns whether the actions of a subsequent user of a substantially similar or identical mark causes a likelihood of confusion among consumers as to the source of those specific goods or services. Echo Travel, Inc., 870 F.2d at 1266. When the identifying "word, term, name, symbol or device" claimed as a trade name or mark is not registered with the United States Patent and Trademark Office, the burden is on the claimant, Platinum Mortgage in the instant case, to establish that it is entitled to protection under § 43(a) of the Lanham Act. Mil-Mar Shoe Co., Inc. v. Shonac Corp., 75 F.3d 1153, 1156 (7th Cir.1996).
9
We initially recognize that there are various categories of terms and words that are entitled to trademark protection when consumers rely on those marks to identify and distinguish one company's goods or services from those of its competitors. Marks are classified into five categories of increasing distinctiveness: (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, and (5) fanciful. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 767-68, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). In general, the level of trademark protection available corresponds to the distinctiveness of the mark. Id. A generic term is one that is commonly used and does not identify any particular source and, therefore, is not entitled to any trademark protection. Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 936 (7th Cir.1986). A descriptive mark is one that "describes the ingredients, qualities, or characteristics of an article of trade or a service" and, generally, it is not protected as a trademark because a merely descriptive mark is a " 'poor means of distinguishing one source of services from another.' " Id. (quoting M.B.H. Enters. v. WOKY, Inc., 633 F.2d 50, 54 (7th Cir.1980)). However, a descriptive mark may receive trademark protection if it acquires secondary meaning "in the collective consciousness of the relevant community." Mil-Mar Shoe, 75 F.3d at 1157 (citing Gimix, Inc. v. JS & A Group, Inc., 699 F.2d 901, 907 (7th Cir.1983)). Finally, terms that are either suggestive, arbitrary, or fanciful are automatically entitled to trademark protection because they are inherently distinctive. Two Pesos, 505 U.S. at 767-68, 112 S.Ct. 2753.
10
Platinum Mortgage first asserts that the district court clearly erred in finding that "platinum" is only descriptive of its services, arguing instead that the mark is suggestive and therefore entitled to full trademark protection. A district court's determination that a trademark is either descriptive or suggestive is a finding of fact that is reviewed for clear error. Meridian Mut. Ins. Co., 128 F.3d at 1114. A finding of fact is clearly erroneous only if, based on the entire record, we are "left with the definite and firm conviction that a mistake has been committed." Rust Environment, 131 F.3d at 1216 (citations omitted). Accordingly, " '[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.' " Id. (quoting Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1429 (7th Cir.1985) (citation omitted)).
11
The district court first considered various uses of the word: (1) the general use and definition of "platinum" to indicate either a precious metal or quality and excellence; (2) the plaintiff's use of "platinum" as an alleged trade name or mark of its services; and (3) other businesses' use of "platinum" as a component in their trade names, both within the scope of the mortgage industry and beyond that profession to businesses not related to or connected with mortgage services. To identify the difference between descriptive and suggestive words and to appreciate the inherent distinctiveness of a suggestive mark as compared to one that is merely descriptive, the district court applied the "degree of imagination test" as articulated by this court in Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947 (7th Cir.1992):
12
[I]f a mark imparts information directly it is descriptive. If it stands for an idea which requires some operation of the imagination to connect it with the goods, it is suggestive.
13
978 F.2d at 952. Ultimately, the district court concluded that "platinum" is only descriptive of Platinum Mortgage's services, finding that "the mental leap ... is nearly instantaneous" and that it requires little imagination to associate "platinum" with superiority and quality service. Platinum Home Mortgage, Corp. v. Platinum Financial Group, Inc., No. 97 C 5293, 1997 WL 567909, at * 3-4 (N.D.Ill. Sept. 4, 1997).
14
We agree with the district court's conclusion that "platinum" is a "self-laudatory term" and that Platinum Mortgage is merely a descriptive trade name, id. at * 4, and we find that the court's "account of the evidence is plausible in light of the record viewed in its entirety." Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). In this instance, "platinum" describes the quality of plaintiff's mortgage services and suggests that it provides a superior service, but the word does not identify one particular source or designate the specific origin of those services without proof of secondary meaning. See In re Omaha Nat'l Corp., 819 F.2d 1117 (Fed.Cir.1987). The record clearly supports the district court's finding that "platinum" is a weak mark and that "not much imagination is required to associate the term with any business." Platinum Home Mortgage, 1997 WL 567909, at * 4. As such, the district court's determination is not clearly erroneous.
15
In following course with its first argument that "platinum" is suggestive, on appeal Platinum Mortgage next argues that the district court clearly erred by requiring it to prove secondary meaning. Platinum Mortgage contends that the mark is protectable regardless of whether it acquires secondary meaning. However, this argument necessarily fails because, as discussed above, we agree with the district court's preliminary finding that "platinum" is only a descriptive term. Id. To be entitled to protection under trademark law, a claimant must demonstrate that its descriptive trade name has acquired secondary meaning that identifies the inherent distinctiveness of its mark. Mil-Mar Shoe, 75 F.3d at 1157. Secondary meaning refers to the manner in which a consumer identifies a specific business or a business's reputation by a particular trademark. Vaughan Mfg. Co. v. Brikam Int'l, Inc., 814 F.2d 346, 348 (7th Cir.1987).
16
To establish secondary meaning, a court may consider several factors to decide whether secondary meaning has been acquired or established:
17
(1) the amount and manner of advertising; (2) the sales volume; (3) the length and manner of use; (4) consumer testimony; and (5) consumer surveys. Int'l Kennel Club of Chicago, Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1085 (7th Cir.1988). A mark acquires secondary meaning when it has been used so long and so exclusively by one company in association with its products or services in that particular industry that the "word, term, name, symbol, or device" has come to mean that those products or services are the company's trademark. Gimix, Inc., 699 F.2d at 907. Accordingly, Platinum Mortgage alternatively argues that the district court erroneously concluded that it is unlikely Platinum Mortgage could establish it has acquired secondary meaning. Specifically, Platinum Mortgage asserts that consumers associate "platinum" with its reputation and the mortgage services it offers and, therefore, has acquired secondary meaning. The district court's determination of secondary meaning is a finding of fact that is reviewed for clear error. Meridian Mut. Ins. Co., 128 F.3d at 1114.
18
The district court first noted that Platinum Mortgage did not submit any consumer testimony or consumer surveys to support its assertion that it has acquired secondary meaning. While not fatal to its request, the absence of that evidence weighs against Platinum Mortgage. Then, the court discussed Platinum Mortgage's advertising efforts and its public recognition, in addition to the length and manner of its use of the mark. The district court initially recognized that Platinum Mortgage has used its name for only three years, and then emphasized that a majority of the evidence indicates that most of its advertising and publicity did not begin until 1996. Although length of time by itself is not a determinative factor, see Echo Travel, 870 F.2d at 1264, the district court determined, after examining the evidence in its totality, that it is unlikely Platinum Mortgage could demonstrate that it has acquired secondary meaning and ultimately concluded that "there is no indication ... that the public has come to associate plaintiff's name with its business or reputation." Platinum Home Mortgage, 1997 WL 567909, at * 5.
19
We agree with the district court's conclusion that Platinum Mortgage's evidence of sales, advertising, and promotions, in the context of the minimal length of time involved, fails to indicate it could establish that it has acquired secondary meaning. Evidence of advertising and sales is entirely circumstantial, and that evidence does not necessarily indicate that consumers associate a mark with a particular source, particularly when the advertisements and promotions do not specifically emphasize the mark. First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1383 (9th Cir.1987). Accordingly, courts have found that this type of evidence may be insufficient to establish that a descriptive mark has acquired secondary meaning. Spraying Systems Co. v. Delavan, Inc., 975 F.2d 387, 393 (7th Cir.1992). The record clearly illustrates that the district court considered sufficient, relevant factors to conclude that it is unlikely Platinum Mortgage could demonstrate it has acquired secondary meaning, and Platinum Mortgage does not persuade us that a mistake has been committed.
20
Platinum Mortgage then argues that even if it was not clear error for the district court to require evidence of secondary meaning, it nevertheless submitted compelling evidence of actual consumer confusion, and the district court erred as a matter of law by failing to consider that evidence. We recognize that the district court did not specifically analyze the evidence offered to show actual confusion. However, in accordance with the district court's conclusion, we also agree that consumer confusion does not exist within the scope of an infringement claim when the mark is not entitled to trademark protection. Platinum Home Mortgage, 1997 WL 567909, at * 6. Nonetheless, we consider Platinum Mortgage's argument that the court erred by not examining its evidence of actual confusion.
21
As an initial matter, de minimus evidence of actual confusion does not necessarily establish a likelihood of consumer confusion. Universal Money Centers v. Am. Tel. & Tel. Co., 22 F.3d 1527, 1535 (10th Cir.1994). The evidence may indicate that consumers have a general knowledge that Platinum Mortgage provides mortgage services, but it fails to show that consumers identify "platinum" as the designator of a specific source. Also, evidence of actual confusion must refer to the confusion of reasonable and prudent consumers, and not confusion among sophisticated members of the mortgage service industry. See, e.g., Estee Lauder, Inc. v. The Gap, Inc., 108 F.3d 1503 (2d Cir.1997); Int'l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819 (9th Cir.1993). At this stage in the proceedings, we hesitate to conclude that Platinum Mortgage has sufficiently established it could demonstrate "platinum" has acquired secondary meaning. The record clearly demonstrates that the district court examined sufficient evidence to reasonably conclude that "platinum" has not acquired secondary meaning and therefore is not entitled to trademark protection, notwithstanding the evidence of actual confusion.
22
Finally, Platinum Mortgage argues that the district court failed to consider the additional factors required for the issuance of a preliminary injunction, and therefore, its denial of preliminary injunctive relief should be reversed. We review a district court's consideration of the elements of a preliminary injunction and its balancing of those elements for an abuse of discretion. Meridian Mut. Ins. Co., 128 F.3d at 1114. Under an abuse of discretion standard, we will not second guess the decision of a district court judge that is " 'in conformity with established legal principles and, in terms of the court's application of those principals to the facts of the case, is within the range of options' " from which a reasonable trial judge would select. Am. Nat'l Bank & Trust Co. of Chicago v. Reg'l Transp. Auth., 125 F.3d 420, 431 (7th Cir.1997) (quoting United States v. Hamilton, 19 F.3d 350, 354 n. 3 (7th Cir.1994)).
23
In its memorandum opinion, the district court explained, albeit in a footnote, that in general, several of the elements a plaintiff must demonstrate to obtain preliminary injunctive relief are easily decided in the context of unfair competition and trademark infringement. Platinum Home Mortgage, 1997 WL 567909, at * 2 n. 1. In fact, Judge Zagel specifically identified a court hearing when he discussed with the parties some of those issues involved in Platinum Mortgage's request for a preliminary injunction. The district court cited Seventh Circuit cases that discuss, in the context of a preliminary injunction, (1) the lack of adequate remedies at law, (2) the inevitable harm that either party suffers by an adverse decision, and (3) the fundamental interest of the public, to support its conclusion that the grant or denial of preliminary injunctive relief ultimately pertains to Platinum Mortgage's likelihood of success in the underlying trademark infringement claim. Id.; see also Int'l Kennel Club, 846 F.2d at 1092; August Storck, 59 F.3d at 619. When the district court concluded that it was unlikely Platinum Mortgage could demonstrate it has acquired secondary meaning at this stage, the court denied the motion for preliminary injunctive relief. Without proof that "platinum" has acquired secondary meaning, Platinum Mortgage has failed to demonstrate the validity of its right to use Platinum Home Mortgage Corporation as a trade name.
24
With the present record, we agree with the district court's conclusion that Platinum Mortgage did not have more than a negligible chance to prevail on the merits of its claim. This conclusion does not suggest an abuse of discretion; instead, it obviated the need for the district court to continue further with its analysis. In the preliminary injunction context, where time is often of the essence, this court has emphasized that it is advisable for district courts to examine, if only briefly, all four preliminary injunction considerations. Meridian Mut. Ins. Co., 128 F.3d at 1121. Such a practice expedites this court's review of the grant or denial of a preliminary injunction and protects the interests of the parties. Id. However, in accordance with our decision in Ping v. Nat'l Educ. Ass'n, 870 F.2d 1369 (7th Cir.1989), we also have recognized that a district court may decline to address the remaining elements of a preliminary injunction if a plaintiff fails to demonstrate a reasonable likelihood of prevailing on the merits of the underlying claim. 870 F.2d at 1371.
25
Accordingly, we find that the district court's examination of the necessary elements for a preliminary injunction, within the scope of an infringement claim and its application of the principals of trademark law, are reasonable and fall within the range of a district court's discretion and the available options from which a reasonable trial judge may select in the adjudication and ultimate resolution of those issues. Am. Nat'l Bank & Trust Co. of Chicago, 125 F.3d at 431. At this point in the case, the district court properly denied Platinum Mortgage's motion for a preliminary injunction. It may be that after a full trial seeking a permanent injunction, the record will support Platinum Mortgage's claim; the current record does not.
CONCLUSION
26
We A FFIRM the district court's decision to deny the plaintiff's request for preliminary injunctive relief and REMAND to the district court with a recommendation that, to the extent practicable, the district court should expedite the proceedings in this matter.
27
DIANE P. WOOD, Circuit Judge, dissenting.
28
By the time Platinum Financial entered the Illinois home mortgage market, in January 1997, Platinum Mortgage had grown to be the third largest purveyor of government-backed home mortgages in the state, and had a thriving conventional mortgage practice as well. Armed not only with the commonsense notion that consumers might be confused by a new entrant sharing the distinctive term in its name but also with detailed evidence of that confusion in action, Platinum Mortgage brought suit to enjoin Platinum Financial's alleged infringement. I cannot agree with my colleagues' conclusion that Platinum Mortgage had no more than a negligible chance of establishing rights to its mark. See Majority Op. at 730; Meridian Mut. Ins. Co. v. Meridian Ins. Group, Inc., 128 F.3d 1111, 1114 (7th Cir.1997). My disagreement stems from a different view of the protectibility of trade names under the law; this view in turn leads me to conclude that the district court abused its discretion in not issuing a preliminary injunction.
29
I agree with the majority that the term "Platinum" by itself could not be protected as suggestive; self-laudatory terms are a classic example of descriptive marks. E.g., In re Bush Bros. & Co., 884 F.2d 569, 571-72 (Fed.Cir.1989) ("Deluxe"); Murphy v. Provident Mut. Life Ins. Co., 923 F.2d 923, 927 (2d Cir.1990) ("Hot"); France Milling Co. v. Washburn-Crosby Co., 7 F.2d 304, 306 (2d Cir.1925) ("Gold Medal"); 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 11:17 (4th ed.1997) (hereinafter cited as "McCarthy"). While "Platinum" is not as obviously a description of the quality of a good (or here a company) as, say, "Deluxe," Bush Bros., or "Plus," Plus Products v. Plus Discount Foods, Inc., 722 F.2d 999, 1005 (2d Cir.1983), Judge Zagel quite rightly pointed out that what counts as merely an indication of quality can change over time, and the recent rash of credit cards designated "Platinum" underscores his finding.
30
As Judge Zagel held and the majority agrees, however, descriptive marks are protectable upon a showing that the mark had, by the relevant time, acquired a secondary meaning in the eyes of the appropriate audience. Bush Bros., 884 F.2d at 570; France Milling, 7 F.2d at 306 (allowing protection of mark "Gold Medal" in pancake mix marketplace); Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153, 1156 (7th Cir.1996). Underlying the majority's belief that Platinum Mortgage failed to show more than a negligible likelihood of succeeding on the merits is its view that Platinum Mortgage had been in the mortgage business for too brief a time to permit its name to acquire secondary meaning. E.g., Majority Op. at 728 (referring to the "minimal length of time involved"). But generalized statements of the necessary length of time are merely predictions about the world, predictions which can be nothing more than the worst sort of legal fiction. See 2 McCarthy § 15:55 (rules of thumb as to time necessary for secondary meaning to develop are "useless" and can be "dangerously misleading"). "With the advent of massive advertising campaigns on television and in national news magazines, a new trademark may achieve wide usage and 'secondary meaning' within a matter of days or weeks, compared to the many years required in the days of more leisurely advertising." 2 McCarthy § 15:56. Secondary meaning is a question of fact, Meridian, 128 F.3d at 1114, and notably absent from the majority's opinion are any facts which would support a finding that Platinum Mortgage could not possibly prove secondary meaning.
31
The record reflects that by the spring of 1997 Platinum Mortgage was the third largest offeror of government-backed mortgages in the state of Illinois and also a major issuer of conventional loans. It now has six offices, five in the Chicago metropolitan region. Since entering the business in 1994, Platinum Mortgage has closed more than 5900 mortgages totaling approximately $700,000,000. It focuses on mortgages for low- to moderate-income borrowers; one of its premier products is evidently the "Dream Loan," a residential housing mortgage under which the mortgagee need make no payments for a certain period of time after closing.
32
Between January 1994 and the commencement of this litigation, Platinum Mortgage incurred approximately $649,000 in promotional expenditures. Its main expense has been the construction and maintenance of a large constantly illuminated billboard on a major highway west of Chicago. This billboard was erected in mid-1995, not, as the district court mistakenly thought, 1996. The billboard cost over $150,000 to construct, and it costs over $2,000 per month to maintain and operate. Platinum Mortgage also advertises throughout the Chicago region, has a web site, and appears at trade shows. It stresses that it never advertises specific mortgage rates, because it believes that doing so is problematic and potentially misleading to consumers given the volatility of the modern mortgage market.
33
Platinum Financial commenced operations in January 1997. It aims primarily at a different clientele than Platinum Mortgage--middle- to upper-middle income clients. According to its president, it provides only "conventional first mortgage services to its clients," and does not originate governmentbacked loans. Platinum Financial does advertise specific rates, among other places in the Chicago Tribune; the record does not include its total advertising budget, but it spends in excess of $5,000 per month on advertising. By August 1997, Platinum Financial had closed 29 loans totaling just under $6,000,000, 19 of which were for previous clients of Platinum Financial's president or personal referrals. Platinum Financial learned of Platinum Mortgage's existence in December 1996, before it (that is, Platinum Financial) commenced operations, and acknowledges it never consulted a lawyer to discern whether it had the right to use the term "Platinum" in its name.
34
It is Platinum Financial's advertisements which most directly show that the similarity between the names of Platinum Mortgage and Platinum Financial caused confusion. By the time Judge Zagel held the preliminary injunction hearing in this case, 25 different people had called Platinum Mortgage, inquiring about the rates advertised by Platinum Financial, despite the fact that those advertisements included Platinum Financial's telephone number. But that is not the only evidence of confusion in the record. Platinum Financial acknowledged receiving at least five telephone calls derived from people seeing Platinum Mortgage's large billboard. Finally, real estate professionals have also confused the two companies, on at least three occasions either sending checks and bills to or telephoning the wrong firm.
35
Factors we commonly look to in order to show that a term has acquired secondary meaning "include the amount and manner of advertising, volume of sales, the length and manner of use, direct consumer testimony, and consumer surveys." International Kennel Club v. Mighty Star, Inc., 846 F.2d 1079, 1085 (7th Cir.1988). With the exception of direct consumer testimony, these are all indirect routes towards the real question--whether, in the mind of the relevant customer base (which here may be the public, real estate professionals, or both, cf. Centaur Communications, Ltd. v. A/S/M Communications, Inc., 830 F.2d 1217, 1221-22 (2d Cir.1987); Lon Tai Shing Co. v. Koch + Lowy, 19 U.S.P.Q.2d 1081, 1087 (S.D.N.Y.1990)), the word "Platinum" has come to be associated, in the mortgage industry, with Platinum Mortgage. See International Kennel Club, 846 F.2d at 1085-86.
36
No one disputes that secondary meaning in the trade name context is governed by the same legal standards as in the trademark arena. E.g., 1 McCarthy § 9:2; Accuride Int'l, Inc. v. Accuride Corp., 871 F.2d 1531, 1534 (9th Cir.1989) (primary distinction between trade names and trademarks is that trademarks are registrable); Country Floors Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1064 n. 2 (3d Cir.1991). The standard must be framed slightly differently in the trade name context, however. Descriptive trademarks are commonly said to have developed secondary meaning when an association has developed "in the mind of the consumer between the trade dress or name of a product and a particular producer." International Kennel Club, 846 F.2d at 1085; Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 163, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995) (" '[S]econdary meaning' is acquired when 'in the minds of the public, the primary significance of a product feature ... is to identify the source of the product rather than the product itself.' "), quoting Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851 n. 11, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (omission in Qualitex). Absent hypothetical situations involving the interrelation of linked corporations, when a trade name develops secondary meaning, it is not identifying the corporation with a particular product or entity. Rather, when one says a descriptive trade name has acquired secondary meaning one means that the relevant consumer pool knows of that corporation and has come to understand that, for example, "Pizza Hut," is not the name of just any pizza restaurant but rather a specific purveyor of pizza. (Pizza Hut may not be a trade name given its corporate ownership, but works well as an example nonetheless.) See Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902 (9th Cir.1995) ("A trademark represents the mark holder on 'the vendible commodity to which it is affixed,' while a trade name symbolizes 'a business and its goodwill.' "), quoting American Steel Foundries v. Robertson, 269 U.S. 372, 380, 46 S.Ct. 160, 70 L.Ed. 317 (1926). "In the case of a trade name, secondary meaning is 'the power of a name ... to symbolize a particular business.' " Perini Corp. v. Perini Construction, Inc., 915 F.2d 121, 125 (4th Cir.1990), quoting Ideal Toy Corp. v. Kenner Products Div'n of General Mills Fun Group, Inc., 443 F.Supp. 291, 305 n. 14 (S.D.N.Y.1977). The existence of other entities using a similar name in unrelated industries is only marginally relevant to the determination of whether a trade name has developed secondary meaning, although it may affect the strength of the mark, likelihood of confusion, or scope of relief. Cf. National Cable Television Ass'n v. American Cinema Editors, Inc., 937 F.2d 1572, 1579 (Fed.Cir.1991); France Milling, 7 F.2d at 306 ("[O]ne who takes a phrase which is the commonplace of self-praise like 'Blue Ribbon' or 'Gold Medal' must be content with that special field which he labels with so undistinctive a name.") (allowing protection of "Gold Medal" pancake mix, but limiting protection to the pancake mix industry); 2 McCarthy § 15:27.
37
In finding that Platinum Mortgage had no more than a negligible chance of showing that the term "Platinum" had developed a secondary meaning--that is, that consumers had come to understand that the name "Platinum" referred to "Platinum Home Mortgage Corporation" within at least the local mortgage industry--the district court acknowledged that the lack of consumer surveys or testimony was not fatal, and acknowledged evidence of Platinum Mortgage's advertising and sales volume (though it understated both because of its mistaken belief that Platinum Mortgage's billboard was erected in 1996 and its impression that Platinum Mortgage had earned only "several hundred million dollars" in closings, as opposed to the $700,000,000 the record showed). It found fatal to Platinum Mortgage's claim the fact that its trade name was too new, and refused to consider Platinum Mortgage's evidence of actual confusion, believing this irrelevant to the existence of a protectable trademark.
38
Actual confusion logically must be an indication of at least some amount of secondary meaning. See Adray v. Adray-Mart, Inc., 76 F.3d 984, 987 (9th Cir.1995); 2 McCarthy § 15:11; Perini, 915 F.2d at 125. "[I]f buyers are confused, then this also means that they must have recognized plaintiff's word as a trademark and associated it only with the plaintiff." 2 McCarthy § 15:11. The majority's statement that "consumer confusion does not exist within the scope of an infringement claim when the mark is not entitled to trademark protection," Majority Op. at 729, is circular. While it is true that if no secondary meaning exists (and thus there is no "mark entitled to trademark protection") consumer confusion cannot follow, Sno-Wizard Mfg., Inc. v. Eisemann Products Co., 791 F.2d 423, 427 n. 5 (5th Cir.1986) (quoting McCarthy), the converse is not true: consumer confusion is direct evidence of the existence of a protectable mark. Adray, 76 F.3d at 987, citing American Scientific Chem. v. American Hosp. Supply, 690 F.2d 791, 793 (9th Cir.1982).
39
In the trade name and trademark context we consistently have held that a plaintiff has a "reasonable likelihood for success on the merits," for purposes of a motion for preliminary injunctive relief if she has a " 'better than negligible' chance of succeeding on the merits." Meridian, 128 F.3d at 1114, quoting International Kennel Club, 846 F.2d at 1084. I believe the district court clearly erred in finding that Platinum Mortgage had no better than a negligible chance of success on the merits. Given the ignored evidence of actual confusion, the excessive weight placed on the length of time Platinum Mortgage has been in business, and the understatements regarding advertising expenditures and sales, I am left with a "definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer, 470 U.S. 564, 565, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).
40
The majority correctly holds that given the district court's decision on likelihood of success its succinct discussion of the remaining factors to consider for injunctive relief was not inherently an abuse of discretion. Majority Op. at 730, citing Ping v. National Educ. Ass'n, 870 F.2d 1369, 1371 (7th Cir.1989) . Given my disagreement on the plaintiff's likelihood of demonstrating that it has a valid mark, I note that, while Platinum Mortgage articulated to this court reasons why the remaining considerations relevant to injunctive relief favored the granting of its requested injunction, Platinum Financial did not address these factors and thus it has waived at this stage any argument that those other factors support the district judge even if he erred on the likelihood of success. Thomas & Betts Corp. v. Panduit Corp., 138 F.3d 277, 300 n. 9 (7th Cir.1998). In my view, it is likely that Platinum Mortgage's name has been infringed given the similarity in name and business and the evidence of actual customer confusion, see Meridian, 128 F.3d at 1115 (listing factors relevant to infringement). The district court itself stated that it believed Platinum Mortgage lacked an adequate remedy at law and that the balance of harms favored it.
41
The district court thought that the public interest favored the defendant here because denying protection to Platinum Mortgage's trade name would somehow "preserve competition." But this reveals a fundamental misunderstanding of the way intellectual property rights like trademarks and trade names help the competitive process. There is nothing inherently anticompetitive about intellectual property rights, as courts and commentators alike have come to recognize. E.g., Qualitex, 514 U.S. at 163-64, 115 S.Ct. 1300; William M. Landes & Richard A. Posner, Trademark Law: An Economic Perspective, 30 J.L. & Econ. 265 (1987); United States Dept. of Justice & Federal Trade Commission, Antitrust Guidelines for the Licensing of Intellectual Property (Apr. 6, 1995). Companies need a way to capture their investments in good will and reputation, and one important way they do so is to develop a trade name. Free riding by a newcomer on the first company's name, and hence investment, does not help competition any more than competition is helped when free riders disrupt a manufacturer's distribution strategy. Finally, as we have recognized in the past, "in trademark infringement cases ... the relevant consideration in determining whether the public interest will be disserved by the grant of an injunction is the consumer's interest in not being deceived about the products they purchased." International Kennel Club, 846 F.2d at 1092 n. 8.
42
For these reasons, I believe that the district court's refusal to grant Platinum Mortgage its preliminary injunction was an abuse of discretion. I therefore respectfully dissent.
1
At this point in the opinion, we will reiterate a point emphasized by the district court. Although plaintiff has consistently described this action throughout its pleadings and briefs as one for trademark infringement, the actual subject of this dispute is the trade name of each party. The term "trademark" can be used in a broad and generic sense to denote the entire field of trademarks, service marks, trade names, and trade dress. Section 45 of the Lanham Act, 15 U.S.C. § 1127, defines "trade name" as "any name used by a person to identify his or her business or vocation."
Although trade names and trademarks are distinct names and symbols, analogous actions for trade name and trademark infringement are properly asserted under § 43(a) of the Lanham Act. Accuride Int'l, Inc. v. Accuride Corp., 871 F.2d 1531 (9th Cir.1989). In this opinion, we use "trade name" and "mark" interchangeably to refer to the subject in dispute.
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
THE STATE OF TEXAS, No. 08-10-00076-CR
§
Appellant, Appeal from
§
v. 168th District Court
§
RODOLFO RANGEL, of El Paso County, Texas
§
Appellee. (TC # 20090D01614)
§
OPINION
The State of Texas appeals from an order suppressing Rodolfo Rangel’s written statement.
For the reasons that follow, we reverse.
FACTUAL SUMMARY
A grand jury indicted Rangel for unlawful possession of more than fifty pounds but less than
2,000 pounds of marihuana. Rangel filed a motion to suppress his written statement alleging, among
other things, that the statement did not comply with Article 38.22, § 2 because the warnings were
not set forth in the body of the written statement. Rangel argued at the suppression hearing that the
warnings could not be contained in a separate document or card.
The two-page statement consists of two paragraphs and Rangel’s initials, “R.R.”, are found
at the beginning and end of each paragraph as well as at the bottom of the first page. The statement
reflects on its face that it was begun at 5:40 p.m. on March 5, 2009 and Rangel signed it at 7:05 p.m.
The first paragraph of the written statement states:
My name is Rodolfo Rangel. I am 17 years old and I am at the Pebble Hills Regional
Command Center speaking with Officer C. McBain about an incident that happened
today (03/05/2009). I am in an office with my right hand cuffed to a chair so I am
able to write with my left hand. I am comfortable and have been offered water and
the bathroom, I only need a drink of water at this time. I am in the 11th grade and I
read and write in the English language. I attend Tejas School of Choice at this time.
I have been read my Miranda rights and have read them over and initialled, signed,
dated, and put the time of 5:40 p.m. on the Miranda card. I fully understand my
rights and want to give Officer McBain a statement about what happened today. I
have not been promised anything in return for this statement.
The parties agree that a card containing the Article 38.22, § 2 warnings was paper-clipped to the
written statement. The card, which is entitled “WARNINGS TO BE GIVEN BEFORE
QUESTIONS” reads as follows:
1. You have the right to remain silent and not make any statement at all and any
statement you make may be used against you at trial;
2. Any statement you make may be used as evidence against you in court;
3. You have the right to have a lawyer present to advise you prior to and during any
questions;
4. If you are unable to employ a lawyer, you have the right to have a lawyer
appointed to advise you prior to and during any questions;
5. You have the right to terminate the interview at any time;
6. If you are not a United States citizen, you have the right to contact your Consulate.
I understand my rights and I hereby knowingly, intelligently, and voluntarily waive
these rights.
Appellant’s initials are found to the left of each of the six warnings and his signature is located at
the bottom of the card along with the hand-written notation “3/5/09 5:40 p.m.” which coincides with
the date and time reflected at the beginning of the written statement and with Appellant’s recitation
in the body of the statement that he had read the warnings, initialed, signed, dated, and put the time
of 5:40 p.m. on the Miranda card. The trial court granted Rangel’s motion to suppress his written
statement without making written findings of fact or conclusions of law. The State appeals.
COMPLIANCE WITH ARTICLE 38.22
In its sole issue, the State contends that the trial erred by concluding that the written
statement did not comply with Article 38.22, § 2. We review a trial court’s ruling on a motion to
suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673
(Tex.Crim.App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We give almost
total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact
questions that turn on an evaluation of credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221
S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005). In this case, we will
engage in a de novo review because the facts are undisputed. See State v. Sheppard, 271 S.W.3d
281, 286 (Tex.Crim.App. 2008).
Article 38.22, § 2 of the Code of Criminal Procedure provides that:
No written statement made by an accused as a result of custodial interrogation is
admissible as evidence against him in any criminal proceeding unless it is shown on
the face of the statement that:
(a) the accused, prior to making the statement, either received from a magistrate the
warning provided in Article 15.17 of this code or received from the person to whom
the statement is made a warning that:
(1) he has the right to remain silent and not make any statement at all
and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in
court;
(3) he has the right to have a lawyer present to advise him prior to
and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a
lawyer appointed to advise him prior to and during any questioning;
and
(5) he has the right to terminate the interview at any time; and
(b) the accused, prior to and during the making of the statement, knowingly,
intelligently, and voluntarily waived the rights set out in the warning prescribed by
Subsection (a) of this section.
TEX .CODE CRIM .PROC.ANN . art. 38.22, § 2 (West 2005).
The State argues that the warnings card and written statement constitute a single instrument
admitted into evidence as State’s Exhibit 1, and therefore, the written statement reflects on its face
that the required warnings were received by Rangel and waived before he made the statement in
compliance with Article 38.22, § 2. The San Antonio Court of Appeals has held that the written
warnings need not be included in the body of the written statement where the warnings were attached
and the evidence showed that the warnings had been given to the defendant prior to making the
written statement. See Morales v. State, No. 04-98-00616-CR, 1999 WL 792418 at *2 (Tex.App.--
San Antonio Oct. 6, 1999, pet. ref’d)(not designated for publication); Sorola v. State, 674 S.W.2d
809, 811 (Tex.App.--San Antonio 1984), aff’d on other grounds, 693 S.W.2d 417 (Tex.Crim.App.
1985). Similarly, the Dallas Court of Appeals held in Seitz v. State that the written statement
complied with Article 38.22, § 2 where the written statutory warnings were attached to the written
statement. Seitz v. State, No. 05-92-01951-CR, 1997 WL 644080 at *13 (Tex.App.--Dallas Oct. 20,
1997, pet. ref’d)(not designated for publication). Finally, in Laca v. State, this Court held that the
State established compliance with Article 38.22, § 2 where a Miranda card signed by the defendant
was attached to his written statement and the written statement recited that the defendant had
received the warnings. Laca v. State, 893 S.W.2d 171, 179 (Tex.App.--El Paso 1995, pet. ref’d).
Rangel seeks to distinguish the authorities relied on by the State on the ground that the
Miranda card was not attached to the written statement. The record of the suppression hearing
reflects that the State offered into evidence State’s Exhibit 1 which consisted of the written statement
and the warnings card attached to it by a paper clip. Rangel did not object to admission of State’s
Exhibit 1 but he pointed out that the warnings card was “not really attached” because it was not
stapled to the statement. He agreed, however, that the warnings card was clipped to the written
statement. Rangel’s sole argument at the hearing was that Article 38.22, § 2 requires that the
warnings be set forth in the body of the written statement.
Regardless of whether a staple or paper clip was used, the record reflects that the warnings
card was attached to the written statement and the document was admitted at the hearing as a single
exhibit. In the written statement, Rangel expressly references the warnings card and states that he
had read his rights and understood them, he had placed his initials next to each right, and he had
signed the warnings card at 5:40 p.m. which coincides with the time written on the face of the card
next to Rangel’s signature. Under these circumstances, we find that the State established compliance
with Article 38.22, § 2. We sustain the sole issue presented on appeal and reverse the trial court’s
order granting Rangel’s motion to suppress the written statement.
May 4, 2011
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Rivera, JJ.
(Do Not Publish)
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36 So.3d 688 (2010)
HICKEY
v.
STATE.
No. 5D10-63.
District Court of Appeal of Florida, Fifth District.
June 10, 2010.
Decision Without Published Opinion Affirmed.
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229 F.Supp. 659 (1964)
Franz O. WILLENBUCHER, Plaintiff,
v.
Thomas C. McCORMICK, Defendant.
Civ. A. No. 8503.
United States District Court D. Colorado.
May 19, 1964.
Hindry, Erickson & Meyer, C. Henry Roath, Denver, Colo., for plaintiff.
Murray, Baker & Wendelken, J. Hartley Murray, Colorado Springs, Colo., for defendant.
DOYLE, District Judge.
Captain Franz O. Willenbucher, USN (Ret.), the Executive Vice-President and legal counsel of the Retired Officers Association, a resident of Maryland, is the plaintiff in this libel action. The defendant is Colonel Thomas C. McCormick, USA (Ret.), a member of the Retired Officers Association and a Delegate to the 1962 National Convention of that Association. From the record it would appear that the Association is currently embroiled in internal controversy, some members and Chapters regarding themselves as part of the "Loyal Opposition" which "group" appears to be dissatisfied with the performance of the current national leadership, of which Captain Willenbucher is a part.
The allegedly defamatory statements published by Colonel McCormick are contained in two documents. The first of these, which appears in full in the file, *660 is a circular, an eight page account containing Colonel McCormick's impressions of the 1962 National Convention and of various contemporary incidents which reflect the tension existing within the Association. This document was apparently distributed exclusively to members of the Association, primarily those residing in Colorado. The language used throughout this document is somewhat intemperate, but we must be mindful that it was addressed to men who have been professional soldiers. In essence, it charges that Captain Willenbucher's administration of the Association has been characterized by arrogance, ineffectiveness, extravagance and favoritism. The second document is a letter written by Colonel McCormick to General Joseph H. Harper, USA (Ret.), a resident of the District of Columbia, in response to General Harper's circular letter inviting Colonel McCormick to join a related organization, the Military Order of World Wars. The most extreme language used by Colonel McCormick in this letter is as follows:
"Undoubtedly you have not seen the report of the Convention as I wrote it up, and copies of which were sent to all Directors of the Association, in addition to its wide distribution to chapters all over the United States, with primary distribution to all members in the State of Colorado.
"In this report I mentioned Major General Harper in three separate paragraphs, in a not too complimentary way. I referred also to your two close friends, Murphy and Willenbucher, who, in my opinion and that of many others, have downgraded the Association to a depth from which I doubt it will ever recover. It is surprising to me, that a General officer with your background ever gave your apparent cooperation to the seeming machinations they, particularly Willenbucher, have resorted to for securing the nomination and election of a set of directors who will support them and their policies as well as their method of operations, in perpetuating them in office at salaries which have not been disclosed.
"After reading the Admiral Heffernan charges against them, and which he appears to have substantiated to a high degree my opinion of them is that of two confidence men, who should be following carnivals and medicine shows, instead of being in the executive positions they hold in the Association."
The plaintiff alleges that the language used in the last quoted paragraph imputes specific criminal conduct to the plaintiff; conduct in violation of C.R.S. '53, 40-10-5, which is quoted in plaintiff's brief. It must be doubted whether such is the case. In context it seems clear that the term "confidence men" is being used merely as a derogatory epithet of general nature, and in no sense as an accusation that the plaintiff had committed a specific criminal act which might, in certain jurisdictions, bear the appellation "confidence game."
There are several legal problems raised by the motion and while it is not possible to dispose of all of these here now, some threshold comments may serve to "clear the air" somewhat.
I.
WHAT LAW GOVERNS
As a preliminary matter it is necessary to determine which state's substantive law of libel applies to this action. The first claim for relief, alleging multi-state publication of the eight page report, is said by both plaintiff and defendant to arise under Colorado law inasmuch as the defendant composed and mailed the report in Colorado, primarily but not exclusively to Colorado members of the Association. The defendant contends that the second claim for relief, alleging publication of the letter to General Harper by delivery thereof to his home address in the District of Columbia, arises under the law of the District of Columbia. The plaintiff urges that both claims for relief be deemed to be governed by Colorado law in view of the *661 facts that the forum court is in Colorado, that the defendant is a resident of Colorado who wrote and mailed the letter in question in Colorado, and that the letter complained of is integrally related to the report which was distributed primarily in Colorado. The plaintiff further urges that if the first claim for relief be deemed to be governed by the law of Colorado, the second claim, being related thereto, should also be deemed to be governed by the law of Colorado. Defendant relies on the case of Interstate Transit Lines v. Crane, 100 F.2d 857 (10th Cir. 1938) for the proposition that the Colorado choice-of-law rule is that the law of the place of injury controls in actions for libel.
As to the first claim for relief, the defendant urges the place of injury was Colorado, where primary distribution of the report was made but it appears that wide distribution of the report was made in many, if not in all, states to all Directors of the Association, and to chapters of the Association "all over the United States."
As to the second claim for relief, defendant maintains the place of injury was the District of Columbia, where General Harper, the recipient of the letter, has his residence. It seems that Captain Willenbucher is known to members of the Association in all states, and that conceivably there could be impact in all states.
In the case of a defamation published in many states the oft-repeated (but recently criticized) choice-of-law rule in torts cases that the governing law is the law of the place of injury breaks down entirely. As critical commentators and a growing number of courts have recently recognized, a different rule is needed in torts cases generally. See Pearson v. Northeast Airlines, 309 F.2d 553, 92 A.L.R.2d 1162 (2nd Cir. 1962); Kilberg v. Northeast Airlines, 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (N.Y.Ct.App.1961); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (N.Y.Ct.App.1963); Ehrenzweig, Conflict of Laws, §§ 211-216 (1962); Currie, The Constitution and the Choice of Law: Governmental Interests and the Judicial Function, 26 U. Chi.L.Rev. 9 (1958). As Ehrenzweig summarizes his recommendation with respect to wrongful death actions:
"Nothing less will do, I submit, than to cast aside the remnants of obsolete [vested rights] doctrine which have forced the New York court into its ambiguous ruling [in Kilberg v. Northeast Airlines]. There is no reason, and there never has been a reason, for compelling the forum to apply the lex loci. Once this relic of vested rights dogma has been finally abandoned and this the New York Court of Appeals has not yet done explicitly the way is open to an analysis which will discriminate between heterogeneous fact situations.
"(1) Here, as elsewhere, the law of the forum is the starting point (§ 106 [Conflict of Laws (1962)]). This law will be displaced only if there is a compelling reason for doing so.
"(2) Such a reason exists where in an automobile or private airplane accident the wrongful death occurred in an operation participated in by both parties both of whom were domiciliaries of the same state. In that case the law of that state will be applied as that whose impact both parties could have reasonably foreseen (§ 226 [Conflict of Laws (1962)]).
"(3) In all other cases the lex fori remains applicable unless either the plaintiff or the defendant has been forced into a forum devoid of any such contact as would justify application of its own law." Conflict of Laws, § 213 at 555 (1962)
Commenting specifically on the results which courts have actually reached in determining what law applies in the case of an interstate defamation, Ehrenzweig notes:
"Not a single international conflicts case has been found in which *662 a foreign law was actually applied, although there were strong foreign contacts in some of them. And even in those very few interstate cases in which a true conflict was squarely faced, the decision was in effect reached under the lex fori." Conflict of Laws, § 216 at 566 (1962)
The decision in the case of Interstate Transit Lines v. Crane, supra, is no exception to this generalization. Therein there was no express holding on rehearing as to which state's substantive law governed the merits. Counsel for both parties merely assumed, during oral argument, that, under the weight of authority at that time (which accepted without reservation the "vested rights" theory), the law of Missouri, the state wherein allegedly libelous data was finally supplied to a surety company, would govern. It was specifically observed, however, that Missouri law did not differ from the law of the forum state, Colorado. The original decision, affirmed on rehearing, did apply the law of Colorado, the state where the defamatory statement was prepared and mailed.
Under the circumstances of this case we are of the opinion that the substantive law of libel which governs both claims here presented is the law of Colorado, the forum state, wherein defendant resides, and wherein defendant composed and mailed the allegedly libelous report and letter. No convincing reason for displacing the law of the forum appears here. Since the crucial question with respect to both claims has to do with the state of mind of Colonel McCormick while acting in Colorado, it is unreasonable to apply a different substantive law of libel to the two claims.
II.
WHETHER THE WORDS ARE DEFAMATORY
As suggested above, the words are not unquestionably defamatory. The long discussion which is set forth in Count I of the complaint does not charge the violation of a criminal law, but this is in essence a libel case. Decisions relied upon by counsel for the defendant are slander cases and the law applicable to defamation per se in a slander case is wholly different from that which applies to libel per se. Libel per se is broadly defined in some of the Colorado cases. See, for example, Morley v. Post Printing and Publishing Company, 84 Colo. 41, 268 P. 540, and see also Knapp v. Post Printing & Publishing Co., 111 Colo. 492, 144 P.2d 981. The definition contained in the Knapp case is as follows:
"A definition of libel which has received general acceptance and approbation is to be found in 33 American Jurisprudence, page 38, section 3. It reads: `A libel is a malicious publication, expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule.' See, also, 36 C.J. p. 1143, § 3. Criminal libel in Colorado is defined in section 199, chapter 48, '35 C.S.A., in almost identical words, as follows: `A libel is a malicious defamation expressed either by printing, or by signs, or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby to expose him or her to public hatred, contempt or ridicule."
It is thus clear that defendant's contention that some crime must be charged in order to constitute defamation per se is incorrect. Nevertheless, from a fair reading of the statement which is the basis of Count I of the complaint, it cannot be readily concluded that the publication in question is a malicious one tending to impeach the honesty, integrity, virtue or reputation of the plaintiff, thereby exposing him to public hatred, contempt or ridicule. Moreover, it is questionable whether the words in dispute can be regarded as words actionable per quod since they leave little *663 room for the introduction of extrinsic explanations. In other words, they are either actionable on their face or not at all. This question can, however, be left open until a pre-trial conference at which time it should be argued specifically and fully.
Turning now to the words "confidence men" which were contained in the letter written to General Harper, we note that the plaintiff relies on the criminal definition of this term as establishing its defamation per se character. It is true that the Colorado statute contains such a definition as part of the crime of confidence game. There is some question in the Court's mind, however, as to whether the term was employed in the manner alleged by plaintiff. But even if the words were not used in this sense, it does not follow that they are not actionable per se since, as has been noted, a violation of the criminal laws is not essential if the words satisfy the definition approved in the cases.
III.
THE QUESTION OF PRIVILEGE
The existence of a qualified privilege effectively shifts the burden of proof with respect to the element of malice to the plaintiff. There is a presumption of malice where words actionable per se are published; if, however, the occasion is a privileged one, the plaintiff must prove that the words were maliciously published. See Ling v. Whittemore, 140 Colo. 247, 343 P.2d 1048. The question whether the words were published maliciously is generally for the jury. See Ling, supra.
It seems plain that the occasions involved in the instant publications were privileged in that the information was distributed to members of a group and the publisher was apparently advancing group interest in each instance.
The definitive Colorado decision on group privilege is Bereman v. Power Publishing Co., 93 Colo. 581, 27 P.2d 749, 92 A.L.R. 1024. In rendering its decision that the statements in Bereman were qualifiedly privileged, although published in a union newspaper circulated to persons other than the members of the Laundry Drivers Union, the Court said:
"The law on this branch of the case is settled in this state. * * * A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains incriminatory matter, which, without this privilege, would be slanderous and actionable; and this, though the duty be not a legal one, but only a moral or social duty of imperfect application [obligation]." [Brackets in original] 27 P.2d at 751.
The communications in that case were held to be privileged, and the action of the lower court in dismissing the action was sustained even though the allegedly defamatory language was so virulent as to characterize the plaintiff as one of the "most despicable characters known to organized labor and any other fair minded persons call them what you will, the worst is none too bad," and to label him as a spy and a traitor who had "sold [his] manhood, if [he] ever possessed any, for a paltry few dollars."
The allegedly defamatory statements in the instant case were less widely circulated, apparently going only to the directors of the Retired Officers Association and to other members of the Association; the allegedly defamatory language is hardly more virulent. We could, in the instant case, agree with the observation made by the Court in the Bereman case, that:
"Some of the words in the article in question are in bad taste, no doubt. Less offensive words might have been selected. But we must not overlook the fact that disloyalty to a union is fraught with such possibilities of disaster to the union cause that loyal union members may *664 be excused for referring to it in strong terms of condemnation. The conduct of the plaintiff not unnaturally suggested to the minds of union members such words as `traitor,' `spies,' and `despicable.' Instances are not wanting where disloyalty to secret societies and other organizations, both political and nonpolitical, has been condemned in language not less forceful.
* * * * * *
"In view of all the circumstances, we do not believe that the qualifiedly privileged character of the article in question was lost by reason of the language used." 27 P.2d at 752.
As a matter of law, then, communications between members of a fraternal, social, professional, religious or labor organization concerning the conduct of other members or officers in their capacity as such are qualifiedly privileged. Cf. Anno. 63 A.L.R. 649, 92 A. L.R. 1029. The language used in the instant case is, in context, hardly more virulent than that used in Bereman; it was less widely circulated, apparently only to members of the organization by letter rather than to all veterans or veterans organizations by means of a published article; and it very clearly related to matters of concern to the Retired Officers Association and its members. The statements made in the instant case, we are constrained to hold, are no less privileged as a matter of law.
In spite of the fact that the allegedly libelous communications made in the instant case are qualifiedly privileged, it would be improper at this stage to dismiss the complaint. In Bereman the plaintiff was nonsuited, and the action dismissed but, apparently, only after plaintiff had presented his evidence, which evidence, in the view of the court, showed only the use of words such as must have been used honestly and in good faith by the defendant, permitting withdrawal of the cause from the jury.
The proper rule was, however, stated in the decision in Bereman:
"The communication being qualifiedly privileged, no right of action arose unless the publishers were actuated by express malice, and the burden of proving express malice was on the plaintiff. The presumption is that the communication was made in good faith and without malice. * * * Assuming that the statements in the article were false, such falsity, of itself, is not sufficient to raise the inference that they were maliciously inspired. * * * There was no evidence of express malice, nor was there evidence of facts from which express malice might be inferred." 27 P.2d at 751.
In the instant case the plaintiff has not yet presented his evidence. Dismissal of the complaint is therefore not warranted, because the plaintiff has not yet been given the opportunity to prove, as he must if he is to recover, that the derogatory statements made by Colonel McCormick exceeded the limits of his qualified privilege in that they were actuated by express malice toward Captain Willenbucher personally rather than by a bona fide desire to protest against mismanagement of the Association in which he and his communicatees were members. The rule which delineates between the function of judge and jury in such defamation cases as are similar to the one at bar was stated by the Colorado Supreme Court in Ling v. Whittemore, supra, to be:
"* * * Denver Public Warehouse Co. v. Holloway, 34 Colo. 432, 83 P. 131, 3 L.R.A.,N.S., 696; Melcher v. Beeler, 48 Colo. 233, 110 P. 181; Bereman v. Power Publishing Co., 93 Colo. 581, 27 P.2d 749, 92 A.L.R. 1024 and Hoover v. Jordan, 27 Colo.App. 515, 150 P. 333 all recognize that, depending upon the circumstances, one has a privilege to communicate in good faith printed or written matter to another notwithstanding that it is defamatory where the publisher is promoting a legitimate individual, group or public interest. In the Denver Public *665 Warehouse Co. case [34 Colo. 432, 83 P. 132], quoting from Newell on Slander and Libel, the Court said:
"`* * * "A privileged communication is an exception to the rule that every defamatory publication implies malice. A qualified privilege is extended to a communication made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty either legal, moral or social, if made to a person having a corresponding interest or duty, and the burden of proving the existence of malice is cast upon the person claiming to have been defamed. * * * `The theory of privilege in connection with the law of defamation involves a variety of conditions of some nicety, and also a doctrine not always of easy application to a set of facts, and, such being the case in any trial, whether civil or criminal, while the questions of libel or no libel, malice or no malice are matters of fact for the jury, the question of privilege or no privilege is entirely one of law for the judge. That is to say, it is exclusively for the judge to determine whether the occasion on which the alleged defamatory statement was made was such as to render the communication a privileged one. The jury, however, will be the proper tribunal to determine the question of express malice, where evidence of ill will is forthcoming; but if, taken in connection with admitted facts, the words complained of are such as must have been used honestly and in good faith by the defendant, the judge may withdraw the cause from a jury and direct a verdict for the defendant.'"'" 343 P.2d at 1049-1050
Because it can not now be determined whether Colonel McCormick was actuated by express malice of the sort which would defeat the conditional privilege to communicate otherwise defamatory statements concerning Captain Willenbucher's acts in his capacity as an officer of the Association to other members and officers of the Retired Officers Association the defendant's motion for dismissal of the complaint must be denied. It is, therefore,
Ordered that the motion praying dismissal of the complaint should be, and hereby is, denied.
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823 S.W.2d 217 (1991)
STATE of Tennessee, Appellee,
v.
Lloyd Wayne DAVIS, Appellant.
Court of Criminal Appeals of Tennessee, at Nashville.
June 28, 1991.
Dan R. Alexander, Nashville, for appellant.
Charles W. Burson, Atty. Gen. and Reporter, John M. Roberts Asst. Atty. Gen., Victor S. Johnson III, Dist. Atty. Gen., 20th Judicial Dist., James F. Walsh, Asst. Dist. Atty. Gen., Nashville, for appellee.
No Permission to Appeal Applied for to the Supreme Court.
OPINION
SUMMERS, Judge.
This is an appeal from a conviction of driving under the influence of an intoxicant, first offense, in violation of T.C.A. § 55-10-401. The sole issue is whether the trial court erred in refusing to allow the *218 appellant, Lloyd Wayne Davis, to withdraw his guilty plea. The state, as the appellee in this case, submitted a responsive brief, but has made no recommendation as to the appropriate disposition.
The facts giving rise to this appeal are short, succinct, and undisputed. After being stopped by a Nashville Metropolitan Police officer for suspicion of DUI, appellant registered .16 on an intoxilizer breath test administered by the officer. Appellant was later indicted for this offense. Appellant filed a request for discovery pursuant to Rule 16, Tenn.R.Crim.P. and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The state answered the discovery request and specifically responded that there was no exculpatory evidence available; but if any later arose, such evidence would be furnished. On July 11, 1990, appellant pled guilty to the charge in the Davidson County Probate Court.
Shortly thereafter, the same court heard a different DUI case wherein there was a disclosure of certain memoranda from the Metropolitan Police Department revealing knowledge of incorrect readings, malfunctions and possible tampering with the intoxilizer machines operated by the Department.
That case and consequently the memoranda (hereinafter "Department memos") became highly publicized. Copies of the Department memos are part of the record in this case. Appellant learned of the problems with the intoxilizers used by the Department after his sentence had been entered but before the judgment was final.
On July 31, 1990, appellant filed a motion in the Probate Court pursuant to Rule 32(f), Tenn.R.Crim.P. seeking to withdraw his guilty plea. The court denied the motion. The rationale for this denial was that appellant would have had to commit perjury to change his plea, and the court was "not going to be a part of perjury." The court pointed out that there was a substantial factual basis to support the guilty plea. The court held, "[d]efendants are not going to come up here and say those facts are true and then come back and say they're not. Motion denied."
The way we view appellant's position is that the state violated legal principles requiring the divulgence of exculpatory evidence, i.e., the Department memos. As a result, the argument continues, the trial court should have allowed the guilty plea to be withdrawn in order to protect a manifest injustice. Rule 32(f), Tenn.R.Crim.P. We will address these contentions in the order presented.
The state's suppression of evidence favorable to an accused upon the accused's request violates due process where the evidence is material either to guilt or punishment. Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1196; Strouth v. State, 755 S.W.2d 819 (Tenn. Crim. App. 1986). Impeachment evidence, as well as exculpatory evidence, "falls within the Brady rule." United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). "Such evidence is `evidence favorable to an accused' [Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1196], so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." United States v. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. Accordingly, the prosecution is not required to reveal its entire file on a particular case, but is required to disclose evidence favorable to the defendant that, if suppressed, would deprive the accused of a fair trial. Id. at 675-678, 105 S.Ct. at 3379-82; United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
It is apparent from this record that there were two items of evidence tending to incriminate appellant. First, there was the observation made by the arresting officer or officers on the night in question. Second, there was the intoxilizer test report stating that appellant registered .16. Appellant was facing the inference that could be drawn from the test that he was under the influence of an intoxicant and that his ability to drive was impaired thereby. See T.C.A. § 55-10-408.
A major portion of the state's case was called into question upon the presentation of the Department memos. Appellant's attorney *219 argued below that appellant would not have pled guilty if he had been aware of the correspondence at issue. We believe that the Department memos certainly comprised evidence which was material to the issue of guilt. Furthermore, had the case gone to trial and the intoxilizer results been entered into evidence, the Department memos contained information which would have been helpful for purposes of impeachment. The memos addressed experiments and examinations of the intoxilizer which revealed substantial malfunctions. One commentator has noted that "scientific tests are frequently conducted with negative results (e.g., fingerprints). In such cases the fact that such a test was performed should be disclosed since the absence of such evidence may be very material to the defense." Raybin, Tennessee Criminal Practice and Procedure § 13.35 (1984).
The state makes the following statement in its brief:
[T]he now well-known malfunction of the Metro Police Department's intoximeter was apparently known by officers in the Department, prior to the entry of defendant's guilty plea, and this knowledge was not furnished to defendant in response to his discovery motion pursuant to R. 16, Tenn.R.Crim.P. While there is every reason to believe this oversight was unintentional it was known by officers of the state.
As the state points out, the record shows that members of the police department were aware of the malfunction or tampering of a selection of the machines. The memoranda in question were circulated in October 1989 and April 1990. Appellant did not enter his guilty plea until July 1990. The state was under a continuing duty to disclose the requested discovery. Although members of the police department were clearly aware of the memos, the record does not reveal whether the district attorney general or anyone in his office was aware of the memos. We have recognized that "suppression by police will be imputed to the prosecution...." Cason v. State, 503 S.W.2d 206, 208 (Tenn. Crim. App. 1973). With regard to discovery under Rule 16, Tenn.R.Crim.P., there is authority to support the proposition that material in the possession of the police and not in the possession of the district attorney's office is discoverable because the "request is to the State of Tennessee and not only to the files of the prosecuting attorney." Raybin, Tennessee Criminal Practice and Procedure § 13.12 (1984); State v. Fears, 659 S.W.2d 370, 379 (Tenn. Crim. App. 1983).
As noted above, it is asserted that "there is every reason to believe" that the state's failure to provide the exculpatory evidence was unintentional. We do not disagree. But, the failure to provide Brady material is a violation of due process irrespective of the good or bad faith of the state. Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1196. "If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor." United States v. Agurs, 427 U.S. at 110, 96 S.Ct. at 2401.
We hold that the state violated the dictates of Brady and its progeny by failing to reveal the Department memos. On appeal, the state essentially concedes such. The issue it believes is dispositive in this case is whether the failure to disclose is a proper ground for withdrawing a guilty plea after sentencing but before final judgment. It is this question that the state submits to our discretion without recommendation.
Rule 32, Tenn.R.Crim.P. provides:
(f) Withdrawal of plea of guilty. A motion to withdraw a plea of guilty may be made upon a showing by the defendant of any fair and just reason only before sentence is imposed; but to correct manifest injustice, the court after sentence, but before the judgment becomes final, may set aside the judgment of conviction and permit the defendant to withdraw his plea. (Emphasis added).
Appellant's attempt to withdraw his guilty plea came after sentencing, but prior to the judgment of conviction becoming final. Thus, such a motion was appropriate under Rule 32 but could be meritorious only "to *220 correct manifest injustice." The question of whether the state's failure to comply with the discovery requirements of Brady v. Maryland, supra, results in a manifest injustice as contemplated by Rule 32(f), has apparently not been addressed in any published opinion of the Tennessee courts.
Where there is a voluntary guilty plea, one has no unilateral right to have it withdrawn. Generally, a plea entered into with the full awareness of the direct consequences must stand, unless tainted by the inducement of threat, misrepresentation or impermissible conduct by state agents. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); State v. Anderson, 645 S.W.2d 251 (Tenn. Crim. App. 1982). The plea will not be set aside, however, merely because the defendant experiences a change of heart. Ray v. State, 224 Tenn. 164, 451 S.W.2d 854 (1970). We do not have before us a disgruntled appellant, merely dissatisfied with his sentence, but one who sincerely contends that his guilty plea was induced by the state's misrepresentation that it possessed no evidence favorable to his position. The United States Supreme Court has recognized that the decision to plead guilty is often heavily influenced by the defendant's appraisal of the prosecution's case against him. Brady v. United States, supra. Although a later apprehension that this appraisal was incorrect does not alone give rise to the right to withdraw a plea, we believe that if the defendant's apprehension at the time of the plea was influenced by a violation of due process, the defendant may very well have such a right.
The Tennessee rule requiring a defendant to exhibit a manifest injustice in order to withdraw a plea was adopted from the similar federal standard which existed prior to a 1983 amendment. See Raybin, Tennessee Criminal Practice and Procedure § 22.123 (1984) and Wright, Federal Practice and Procedure §§ 537-539 (1982 and 1991 Supp.). Analyzing the federal rule, the Third Circuit held that "[w]here there is a denial of due process, there is a `manifest injustice' as a matter of law." United States v. Crusco, 536 F.2d 21, 26 (3rd Cir.1976). As we have already noted, a violation of the requirements found in Brady v. Maryland, supra, is a due process violation. 373 U.S. at 87, 83 S.Ct. at 1196.
It has long been held that the trial court's decision not to allow a guilty plea to be withdrawn, will be upheld on appeal absent an abuse of discretion. Henning v. State, 184 Tenn. 508, 201 S.W.2d 669 (1947); State v. Haynes, 696 S.W.2d 26 (Tenn. Crim. App. 1985). However, we agree with the federal cases which state that when a constitutional violation is shown, the trial court's discretion under Rule 32 is "strictly curtailed." United States v. Read, 778 F.2d 1437, 1441 (9th Cir.1985); United States v. Crusco, 536 F.2d at 26. We respectfully believe that the trial court below was overly concerned about the inconsistency which is created when one pleads guilty in open court and then later seeks to withdraw the plea. From our trial experiences, this panel of the Court fully appreciates the judge's concern. Certainly an inconsistency results, but the rules governing the procedure in criminal cases recognize the propriety of guilty plea withdrawals under certain circumstances.
In conclusion, we hold that appellant should be permitted to withdraw his previous plea and proceed to a trial on the merits on the charge against him. Appellant's conviction is reversed, and the case is remanded for further proceedings consistent with this opinion.
WADE and PEAY, JJ., concur.
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545 F.2d 652
WIDING TRANSPORTATION, INC., Petitioner-Appellant,Bigge Drayage Company, and Mojave Transportation Co.,Intervening Petitioners-Appellants,v.INTERSTATE COMMERCE COMMISSION and United States of America,Respondents-Appellees,C & H Freightways et al., Intervening Respondents-Appellees.
No. 75-1849.
United States Court of Appeals,Ninth Circuit.
Nov. 1, 1976.
Earle V. White (argued), of White & Southwell, Portland, Ore., for petitioner.
Peter A. Fitzpatrick, Atty. (argued), ICC, Washington, D.C., for respondent.
John Paul Fischer (argued), of Silver, Rosen, Fischer & Stecher, San Francisco, Cal., for intervenor, Mojave Transp. Co.
Ann M. Pougiales (argued), of Loughran & Hegarty, San Francisco, Cal., for intervenor, Bigge Drayage Co.
J. M. Doherty (argued), of Doherty, Robertson & Maxwell, Austin, Tex., for intervenor, J. H. Rose Truck Line, Inc. & Sammons Trucking.
1
Russell M. Allen (argued), of White, Sutherland, Parks & Allen, Portland, Ore., for intervenor, Mitchell Bros. Truck Line & Wilhelm Trucking Co.
2
Before TRASK and GOODWIN, Circuit Judges, and JAMESON,* District Judge.
JAMESON, District Judge:
3
Petitioner, Widing Transportation, Inc. (Widing), and intervening petitioners, Bigge Drayage Company (Bigge) and Mojave Transportation Co. (Mojave), seek judicial review of an order of the Interstate Commerce Commission denying their respective applications for certain irregular route motor carrier authority. Their applications were considered in a consolidated proceeding with those of five other motor carriers seeking similar authority. The administrative law judge recommended that the applications of three other applicants be granted and that the remaining applications, including those of petitioners, be denied. The Commission adopted, with slight modifications, the findings, conclusions, and recommended order of the judge. This appeal followed. We affirm.
Background
4
On June 14, 1971, Mitchell Bros. Truck Lines filed an application with the Commission pursuant to section 207 of the Interstate Commerce Act, 49 U.S.C. § 307,1 seeking a certificate of public convenience and necessity to operate as a heavy hauler motor carrier2 between points in California and other points in Oregon, Washington, Idaho, Utah, Nevada, Wyoming, Colorado, and Arizona. Applications were thereafter filed by Widing, Bigge, Mojave, Ashworth Transfer, Inc., Reliance Truck Company, West Coast Truck Lines, Inc., and Salt Lake Transfer Company. These applications sought commodity authority similar to that sought by Mitchell, but over differing geographic territories.3
5
All applicants held authority allowing joint-line4 heavy hauling service in some of the areas covered by the applications. By their applications they were seeking authority for a single-line5 service to and from points in California and surrounding states.
6
The applications were consolidated into one proceeding6 and assigned to an administrative law judge, who held extensive hearings on the application in five western cities. Each applicant was afforded an opportunity to present evidence supporting its application and to challenge evidence presented by other applicants. Numerous motor carriers, including three of the applicants, opposed one or more of the applications. The transcript consists of more than 3,000 pages, including the testimony of 289 public or shipper witnesses who testified in support of one or more of the applications. Over 300 exhibits were also received in evidence. Much of the evidence was directed toward showing a public need for the expanded single-line service and the extent of past operations of each carrier over portions of the authority sought in its application.
7
On July 20, 1973, the judge issued his initial decision, which recommended that the applications, as amended, of Mitchell, Reliance, and West Coast be granted and that the remaining applications be denied. Those applicants whose applications had been denied thereafter filed joint exceptions to the initial decision. Following consideration of these exceptions, the Commission, Division 1, adopted the findings and conclusions of the judge by final decision and order on February 13, 1975.
8
On April 16, 1975, Widing filed this petition for review of the Commission's action. Applicants Mojave and Bigge intervened as petitioners pursuant to F.R.App.P. 15(d) and 28 U.S.C. § 2323. West Coast and Mitchell, as well as several other carriers,7 intervened in support of respondents. Bigge seeks to set aside the Commission's order in its entirety. Widing and Mojave seek to set aside those portions of the order which denied their own applications, with instructions to the Commission that their applications be granted.
Administrative Law Judge's Decision
9
The administrative law judge issued an extensive initial decision reviewing the evidence of the operating authority and contentions of each applicant,8 and setting forth his findings, conclusions and recommended order. The decision itself, consisting of 32 pages, was supplemented by appendices detailing the authority sought by each applicant (3 pages), summarizing the testimony of the shipper witnesses (137 pages), and summarizing the evidence of 22 protestants (37 pages).
10
The judge found that there was a public need for single-line service in portions of the ten-state area9 covered by the applications and that each applicant was "fit and able, financially and otherwise", to conduct the operations proposed in their applications. Facing the difficult task of choosing which of the applications should be granted, the judge noted that each applicant had attempted "to rely principally upon past interline operations and their competitive presence as justification for the grant of new single- line authority". He concluded that it was therefore necessary to define the actual service provided by each applicant "independent" of the others, particularly where the applicants had engaged in interlining, since "it would not be in the public interest to grant each of the interlining carriers single line authority" unless a need for the additional service was clearly established.
11
The judge found that Widing, Bigge, Mojave, Salt Lake, and Ashworth had each "submitted evidence of existing interline service and past joint line operations," but that "a very substantial part of the evidence" was "duplicated in one or more of the other presentations".10 Each of these carriers "provides facilities essentially limited on a regional basis".11 The decision continued: "However, more to the point, each of the five applicants (Mojave, Bigge, SLT, Ashworth and Widing) failed to present documentary evidence that would permit the judge to determine which one, or how many, of these applicants actually provided any physical service, and which merely provided the required operating authority as a bridge carrier or as a passive recipient of a percentage of the revenue".12 The judge concluded that "on this record there is no practical method to determine whether any one or more of these services are actually required on a single line basis".
12
The court found, however, that the "record clearly establishes the existence of two non-duplicating services between California on the one hand, and, on the other, points in the Pacific Northwest". These carriers were Mitchell and West Coast, whose services were found to be "well defined on this record within the described areas".13 Since no other applicant was involved in providing the services of these carriers, the judge found that "no additional and destructively surplus services would result in a grant of authority to permit these carriers to continue a beneficial competitive service in this territory". The operations of Reliance between California and Arizona were found to be of a similar character.
13
The judge concluded that "authorization of these three services on a single line basis will not create unnecessary duplicating service, but rather will permit these carriers to provide the exact same service now provided, more efficiently and economically, all to the public benefit". Accordingly the judge recommended that the applications of West Coast, Mitchell, and Reliance, as amended,14 be granted, giving them substantially the commodity authority sought (see note 2) over the following territory:
14
"(1) in No. MC-54567 (Sub-No. 11) (Reliance) between points in California, on the one hand, and, on the other, points in Arizona, and;
15
"(2) in No. MC-32882 (Sub-No. 60) (Mitchell) and MC-112989 (Sub-No. 20) (West Coast) between points in California, on the one hand, and, on the other, points in Oregon, Washington, and Idaho, and No. MC-112989 (Sub-No. 20) is further restricted against the transportation of construction materials from Santa Clara, Alameda and Contra Costa Counties, Calif., to points in Oregon and Washington . . .."
Contentions on Appeal
16
In essence all of the petitioners contend that (1) the denial of their applications was arbitrary, capricious, and an abuse of discretion; (2) the administrative law judge overlooked and failed to accord proper weight to substantial evidence which required the granting of their applications; and (3) erroneous and discriminatory standards of law were applied to various parties similarly situated. Widing does not question the grant of authority to Mitchell, but contends that its application should have been granted either in addition to, or instead of, those granted.
Scope of Review
17
The parties agree that the scope of review of orders of the Interstate Commerce Commission is narrow. 5 U.S.C. § 706 provides in pertinent part:
18
"To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall
19
(2) hold unlawful and set aside agency action, findings, and conclusions found to be
20
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
21
(D) without observance of procedure required by law;
22
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; . . .."
23
The Supreme Court held in United States v. Pierce Auto Lines, Inc., 327 U.S. 515, 535-536, 66 S.Ct. 687, 698, 90 L.Ed. 821 (1946) that the Commission and not the reviewing court is the arbiter of "the paramount public interest" and the function of the reviewing court
24
". . . is limited to ascertaining whether there is warrant in the law and the facts for what the Commission has done. Unless in some specific respect there has been prejudicial departure from requirements of the law or abuse of the Commission's discretion, the reviewing court is without authority to intervene. It cannot substitute its own view concerning what should be done, whether with reference to competitive considerations or others, for the Commission's judgment upon matters committed to its determination, if that has support in the record and the applicable law."
25
The test is "whether the action of the Commission is supported by 'substantial evidence' on the record viewed as a whole". The substantial evidence test is satisfied when the record is "enough to justify, if the trial were to a jury, a refusal to direct a verdict". Illinois C. R. Co. v. Norfolk & W. R. Co., 385 U.S. 57, 66, 87 S.Ct. 255, 260, 17 L.Ed.2d 162 (1966). The "possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence". This standard "frees the reviewing court of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute". Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1027, 16 L.Ed.2d 131 (1966).
Rationality and Lawfulness of Decision
26
Congress has conferred broad and exclusive discretion upon the Commission to determine when the public convenience and necessity requires additional services.15 In multiple application proceedings the Commission is concerned with avoiding the proliferation of operating authorities not actually needed by the public. Accordingly, the Commission has formulated standards to assist it in making this determination. Those standards require consideration of: (1) the existing authorities and operations of applicants; (2) location of terminals and facilities; (3) equipment operated by applicants; (4) which applicant presented evidence supporting the finding of public need; and (5) priority of filing the applications.16 See, e. g., Willis Shaw Frozen Exp., Inc., Ext. --- Springdale, Ark., 96 M.C.C. 225, 230 (1964). No single factor is controlling, and all must be considered, each accorded such significance as the circumstances warrant. See, e. g., Chemical Leaman Tank Lines, Inc., Ext. --- Avisum Plant, 95 M.C.C. 394, 400 (1964).
27
The administrative law judge considered these factors. Since five interlining carriers sought single-line authority over duplicating routes, and the judge found insufficient public need to justify the approval of all applications, he placed controlling significance upon the actual operations of each interlining carrier. This was a rational basis for choosing among eight motor carriers, each qualified to conduct expanded service. See, e. g., Willis Shaw, supra at 233, where, as here, the Commission relied primarily on evidence of existing operations. The five interlining applicants failed to present clear evidence of their past operations, although they had the opportunity and ability to do so. Having failed in meeting their evidentiary burden, the Commission was justified in denying their applications.
28
Mojave contends that denial on that basis was "utter nonsense". It argues that the Commission thereby formulated a rule allowing a grant of authority to an applicant based on past interline service, but only if the other interlining carriers "are not applicants for the same authority in the same proceeding".
29
Mojave misconstrues the basis and effect of the Commission's decision. The interlining carriers were denied their requested authority not because they were interliners per se, but because either through refusal or neglect, they failed to present clear and substantial evidence of their independent operations. The rule, if any, established here is not that stated by Mojave, but rather that interlining carriers seeking similar authority in the same proceeding may not present evidence as a group, hoping that all their applications will be granted, but rather each must independently present evidence of its own capacity and operations sufficient to satisfy a proven public need.
30
Widing argues that it, unlike the other unsuccessful applicants, did not focuson its past operations, but sought instead to base its application on a strong showing of shipper support. Widing contends that the administrative law judge and the Commission erroneously ignored this evidence, instead of giving it controlling significance. Although this evidence is important to show public need for a particular service, it is not the property of the individual carrier presenting the evidence. Willis Shaw, supra at 230. As noted previously, production of shipper support is not a controlling factor and indeed is unimportant unless other factors are equal. Here the judge found substantial differences in the evidence of the past operations of each carrier, so that consideration of which carrier presented the greatest quantity or quality of shipper support was unnecessary. Placing non-controlling importance upon the shipper evidence was a rational decision, clearly within the discretion of the Commission.
31
Petitioners contend further that the administrative law judge erred in ruling that shipper witnesses should not identify, at the hearing, the applicant in whose support they appeared. We reject this contention for two reasons. First, no timely objection was made by Widing at the hearings, thereby precluding it from raising the issue here for the first time. United States v. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952). Second, Widing appears to have suffered no prejudice in any case, since each witness filed a Certificate of Support specifying the applicant whom he supported, which was made part of the record.
32
We conclude that the Commission's decision was not arbitrary, capricious or unlawful, was in accord with the Commission's standards, and was founded on a rational basis.
Substantiality of Evidence
33
Widing and Mojave do not attack the substantiality of the evidence in support of the successful applicants, but rather focus on the sufficiency of the evidence to justify granting their own applications. Widing presents an extensive review of the evidence supporting its application, concluding that "the agency could and should have found for Widing". Mojave likewise does not take issue with the "Commission's findings of fact as such" but with "its failure to make certain findings notwithstanding the overwhelming evidence presented in support" namely, that Mojave's application should have been granted.
34
Petitioners' argument misconstrues the function of this court in reviewing an administrative decision. As previously discussed, the narrow scope of appellate review does not permit the court to weigh the evidence and make factual findings of its own. This is the exclusive province of the Commission. Merchants Warehouse Co. v. United States, 283 U.S. 501, 508, 51 S.Ct. 505, 75 L.Ed. 1227 (1931). We are limited to a determination of whether there is substantial evidence to support the decision of the Commission. Even though we might conclude that the evidence was sufficient to justify granting petitioners' applications, we may not substitute our judgment for that of the Commission.
35
We conclude that the decision of the Commission is supported by substantial evidence. The evidence submitted by the five interlining applicants was duplicative and failed to clearly establish the individual operations of each carrier, precluding the administrative law judge from making a rational choice among the applicants. The successful applicants, Mitchell, West Coast, and Reliance, on the other hand, presented clear evidence of their individual operations, thereby revealing the need for their services and their competitive presence. These facts, when considered with the other evidence before the Commission and in light of the standards of the Commission in multiple applicant cases, provided substantial support for its decision.
36
We conclude further that the findings of fact were sufficient to reveal the basis of, and to provide support for, the decision of the Commission, in compliance with the Administrative Procedure Act, 5 U.S.C. § 557, and the Interstate Commerce Act, 49 U.S.C. § 14(1). See, e. g., Alabama G. & R. Co. v. United States, 340 U.S. 216, 227-228, 71 S.Ct. 264, 95 L.Ed. 225 (1951).
Conclusion
37
While petitioner and petitioners-intervenors present strong arguments to support their contention that their applications should have been granted, our decision is limited by the scope of appellate review permissible in a case involving administrative action. We are not to decide whether the Commission made the "right" choice among the applicants, but only whether it made a rational, supportable choice. While this court is not to act as a " rubber stamp" for agency actions, neither is it to decide their wisdom. These questions are better left to the expertise and Congressionally-delegated discretion of the agency. We find this case a proper one for deference to the judgment of the Commission, whose decision was rational and supported by substantial evidence.17
38
Accordingly the order of the Commission is affirmed and the petition and petitions in intervention are dismissed.
*
Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation
1
49 U.S.C. § 307(a) provides in pertinent part:
"Subject to section 310 of this title, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules, and regulations of the commission thereunder, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity. . . ."
2
The commodity authority sought included:
"(1) commodities which, by reason of size or weight, require special handling or the use of special equipment and commodities which do not require special handling or the use of special equipment when moving in the same shipment on the same bill of lading as commodities which by reason of size or weight require special handling or use of special equipment; (2) self-propelled articles, transported on trailers, and related machinery, tools, parts and supplies moving in connection therewith; (3) iron and steel articles as described in Appendix V to the Commission's report in Descriptions in Motor Carrier Certificates, ex parte, MC 45, 61 M.C.C. 209 and 766; (4) pipe, other than iron and steel, together with fittings; and (5) construction materials . . . restricted against the transportation, (1) commodities in bulk and (2) and (sic) new passenger automobiles in truck-away service." Opinion of administrative law judge, pp. 2-3.
3
The various geographic territories sought in these applications included portions of the states of California, Arizona, Nevada, Colorado, Wyoming, Utah, Montana, Idaho, Washington, and Oregon
4
"Joint-line service" is a transportation word-of-art used interchangeably with the terms "interline" and "interchange". Joint-line service is a procedure whereby two or more motor carriers combine their authority to provide a through service between points when none of the carriers individually is authorized to provide service over the entire route. For example, carrier A may have hauling authority from point X to point Y, while carrier B has authority from point Y to point Z. A and B can combine their authority and thereby provide service from X to Z
Depending on the terms of the agreement, the goods being transported may or may not be transferred from the equipment of carrier A to the equipment of carrier B at the point where their respective authorities meet. Thus, one carrier may provide authority for part of the route, but allow the other carrier to use his equipment and drivers over the entire route.
5
Single-line service is direct route service by a single carrier having authority over the entire route
6
The consolidated proceeding was entitled "Ashworth Transfer Inc. Extension California Points", No. MC-1872 (Sub-No. 77)
7
These carriers hold previously-granted single-line authority in various parts of the west. They include J. H. Rose Truck Line, Inc.; Sammons Trucking; C & H Transportation Co., Inc.; C & H Freightways; F-B Truck Line Co.; Harry L. Young & Sons, Inc.; and Dealers Transit, Inc
8
The operating authorities were summarized as follows:
Widing essentially holds irregular route motor carrier authority for "size and weight" (shipments which require special equipment for their loading, unloading, or over-the-road transport) and other specifically enumerated commodities between all points in Idaho, Oregon, and Washington. It also holds intrastate authority in the three former states and in California. It conducts interstate hauling operations into California on an interline or jointline basis with Bigge, Mojave, and Ashworth.
Bigge holds "size and weight" authority within California, except for six southern counties. It also possesses some specific commodity authority between points in California, Nevada, Oregon and Idaho. It interlines principally with Widing, Ashworth and Mojave.
Mojave operates its motor carrier service wholly within California, depending, for its interstate traffic, upon interline agreements with Widing, Ashworth, Bigge, and Salt Lake.
Of the successful applicants, Mitchell holds authority for "size and weight" commodities and building materials between points in the northern two-thirds of California and points in Washington, Oregon, and Idaho.
West Coast holds "size and weight" and construction equipment authority between California and nine counties in Oregon, as well as lumber and lumber products authority between points in California and Oregon.
Reliance holds "size and weight" authority between specified portions of Arizona and California.
9
The judge did not find sufficient public need to justify an award of authority to all the applicants, nor to justify awards encompassing the entire ten-state area
10
The primary duplication occurred in traffic studies submitted by Bigge, Mojave, and Ashworth, listing the truck loads of various commodities which had been handled by each carrier in a previous period. Many of the shipments appeared on the traffic studies of all three carriers
11
The judge said further: "Mojave and Bigge have physical facilities only in California and function, insofar as this record discloses, in either a two or three carrier interline service with each other and Ashworth, SLT and Widing. On the other hand, neither Ashworth or SLT had, at the time of interline services here involved, any terminal or other facilities in California. While Widing had terminals in California, the record fairly discloses that these facilities were intended to serve the needs of shippers of bulk chemicals and similar specialized products."
12
In fact, several of the carriers claimed credit for physically handling the same loads. For example, Mojave estimated the percentage of shipments it physically handled at 90 percent, while Widing claimed to have handled 75 percent for the same joint-line service
13
In contrast to the evidence presented by the other five applicants the judge found that West Coast, Mitchell, and Reliance "provided specific evidence of the scope and character of their service commitment to shippers" which was "distinct and severable from the other applicants"
14
Following the hearings, the three carriers reduced the territorial scope of their applications to the extent that a need had been shown for their services
15
The term "public convenience and necessity" is not defined in the Interstate Commerce Act. As the Court noted in Interstate Commerce Commission v. Parker, 326 U.S. 60, 65, 65 S.Ct. 1490, 1493, 9 L.Ed. 2051 (1945): "The purpose of Congress was to leave to the Commission authoritatively to decide whether additional motor service would serve public convenience and necessity. This, of course, gives administrative discretion to the Commission to draw its conclusion from the infinite variety of circumstances which may occur in specific instances." (Citations omitted.)
16
The latter two factors are relatively unimportant and are looked to only where the other factors are equal
17
In view of this conclusion, it is unnecessary to consider other questions raised by the respective parties
| {
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} |
230 F.Supp.2d 739 (2002)
John DOE # 1, John Doe # 2, and John Doe # 3, for and on behalf of themselves and a class of others similarly situated; the Texas Farm Bureau; and the American Farm Bureau Federation, Plaintiffs,
v.
Ann M. VENEMAN, in her official capacity as Secretary of the United States Department of Agriculture; Wildlife Services; Animal and Plant Health Inspection Service; and the United States Department of Agriculture, Defendants, and
Animal Protection Institute, Intervenor-Defendant.
No. CIV.A.W-99-CA-335.
United States District Court, W.D. Texas, Waco Division.
September 30, 2002.
*740 *741 Charles Stephen Kelley, Mayer, Brown, Rowe & Maw, Houston, TX, Mark R. Ter Molen, Richard F. Bulger, Mayer, Brown & Platt, Chicago, IL, for Plaintiffs.
Daniel M. Castillo, Asst. U.S. Atty., Austin, TX, for Defendants.
Virginia Brannon, James Tutchton, University of Denver, Forbes House, Denver, CO, for Intervenor-Defendant.
MEMORANDUM OPINION AND ORDER
WALTER S. SMITH, Jr., District Judge.
Plaintiffs seek relief under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq., the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act of 1974 ("Privacy Act"), 5 U.S.C. § 552a. The Federal Defendants have moved to dismiss Plaintiffs' claims, and both Defendants and Plaintiffs have moved for summary judgment. The Intervenor has been provided the opportunity to submit its own briefing in response to the parties' dispositive motions. Having reviewed the motions, the Court is persuaded the Plaintiffs' request for relief is appropriate and that a permanent injunction should issue.
I. PARTIES
The John Doe Plaintiffs ("Individual Plaintiffs") are ranchers and farmers who have requested or entered into what are known as Cooperative Agreements with the Government through the United States Department of Agriculture's ("USDA") Wildlife Services ("WS") and/or Animal and Plant Health Inspection Service ("APHIS"). The Individual Plaintiffs sought assistance from the Government in controlling damage to livestock from dangerous predators through participation in a program using livestock protection collars ("LPC's"). Plaintiffs Texas Farm Bureau and American Farm Bureau Federation (collectively "Farm Bureau") are not-for-profit general farm organizations which represent the interests of their members.
The USDA is the primary federal agency charged with implementing programs that affect ranchers and farmers, including programs related to the protection of livestock from wildlife damage. APHIS is an entity within the USDA, which is responsible for controlling wildlife damage and helping to protect endangered species. WS is a cooperative program within APHIS that provides assistance to both public and private entities in dealing with wildlife management.
Intervenor Animal Protection Institute ("API") is a nonprofit animal advocacy organization headquartered in Sacramento, California. Its stated purpose is to educate and encourage the public to treat animals humanely, including advocating non-lethal methods to manage conflicts with wildlife.
Forest Guardian ("FG"), although not a party to this action, is involved because an injunction previously entered by this Court was expanded to include a suit filed by the organization in New Mexico. FG is also a nonprofit animal rights group, with a stated mission to protect and restore the native biological diversity and watersheds of the American Southwest and Northern Mexico.
*742 II. PROCEDURAL BACKGROUND
In a separate action filed in the District of Columbia, API filed a FOIA suit seeking identifying information regarding participants in the LPC program. The Plaintiffs initiated the present suit after they learned that the Government intended to release the identifying information in the D.C. lawsuit on a voluntary basis as part of a settlement agreement with API.
After this suit was filed and Plaintiffs requested a temporary restraining order, the parties agreed to the entry of a preliminary injunction which precluded the Government from releasing the identifying information until the Court had ruled on the merits of Plaintiffs' claims. The Government then filed motions to stay proceedings and to transfer venue to D.C., both of which were denied. The Plaintiffs' subsequent motion to expand the preliminary injunction was granted, and the Government's motion to remand the proceedings to the administrative agency was denied. The Court further granted the Plaintiffs' motion to certify this as a class action and denied API's motion to intervene. API appealed, and the Fifth Circuit reversed. As previously noted, all parties, including API, have had an opportunity to file dispositive motions or to respond to the motions filed by others.
III. CLAIMS
Plaintiffs' First Amended Complaint includes the following grounds for relief: (1) the release of personal information would be an arbitrary and capricious exercise of Government authority and an unlawful abuse of agency discretion because the information is exempt from disclosure under Exemption 6 of FOIA (Plaintiffs seeks relief as to both the API and FG suits); (2) the release of personal information would be an arbitrary and capricious exercise of Government authority and an unlawful abuse of agency discretion because the information is exempt from disclosure under exemption 4 of FOIA; (3) the release of personal information would constitute an arbitrary and capricious exercise of Government authority and an unlawful abuse of agency discretion because the information is exempt from disclosure under exemption 3 of FOIA; (4) the release of personal information would constitute an arbitrary and capricious. exercise of Government authority and an unlawful abuse of agency discretion because disclosure of such information is prohibited by the Privacy Act (Plaintiffs seek relief as to both the API and FG suits).
IV. FACTUAL BACKGROUND
The background facts are not in dispute:
As previously noted, WS provides assistance to both public and private entities in dealing with wildlife management. Pursuant to the Animal Damage Control Act ("ADC Act"), 7 U.S.C. §§ 426 and 426b, WS has the authority to assist in solving problems that are created when wildlife causes damage to agricultural, urban, or natural resources. In the western states, WS has primarily provided assistance in helping to control predation of livestock by coyotes, bears, bobcats and mountain lions. Most WS activities are conducted on private land in response to specific requests for assistance, but WS also provides assistance in resolving some wildlife damage problems on federal and state managed lands as well. As an example, more than 99% of WS's work in Texas is performed on private property.
The WS program is cooperative in the sense that WS works together with private parties, state governments and other federal agencies to address wildlife damage problems. The entities WS works with are known as "Cooperators" and share in the costs of WS activities. Many Cooperators pay the entire bill for WS services. WS defines any individual or entity who *743 seeks its help to resolve a wildlife problem a Cooperator.
Cooperators document their consent to WS's entry on their property in a written agreement entitled "Agreement for Control of Animal Damage on Private Property" ("Cooperative Agreement"). A separate Cooperative Agreement exists for landowners adjacent to the property of a person who has requested assistance. WS has over 85,000 Cooperative Agreements throughout the United States.
A Cooperative Agreement contains personal information about Cooperators, including, but not limited to, names, addresses, telephone numbers, ranch or farm name, property owner name, property owner address, land class and size, and the number of the Cooperative Agreement. A Cooperative Agreement also contains other information, such as the species of wildlife to be managed, the methods that will be used to do so, and an identification of the type of pesticide to be applied on the property.
WS maintains both paper and computerized records containing information from the Cooperative Agreements. The computer database is referred to as the Management Information System ("MIS"). It identifies all of a WS specialist's activities in a particular week. It is a major management tool for the organization. The MIS "captures" or incorporates the information contained in Cooperative Agreements, including Cooperator names and addresses and other identifying information, such as the county in which a Cooperator is located, the acreage of the Cooperator's property, telephone numbers, agreement numbers and agreement types. Because it is computerized, information may be retrieved from the MIS by Cooperator name or other personal identifiers. While the information in those records is shared with other agencies and organizations, WS does not generally release personal information about Cooperators to the general public.
In some cases, WS uses or recommends lethal techniques to eradicate predators. These may involve the use of products which have been classified as "restricted use pesticides" under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"). A "restricted use pesticide" is a hazardous product that requires special storage and use. WS uses approximately 40 restricted use pesticides at various Cooperator locations.
One of the lethal damage control devices provided by WS is the livestock protection collar ("LPC"). The LPC is used to protect sheep and goats in fenced pastures from predators, such as coyotes. The LPC consists of a bladder filled with a 1% solution of Compound 1080 (sodium fluoroacetate) attached to a VelcroTM neck strap, which is then attached to the neck of a sheep or goat. When attacking livestock, coyotes frequently bite the throat where the toxicant-filled rubber bladder is positioned. One advantage of the LPC is that only the predator actually attacking the sheep or goat is killed; others that may not be killing livestock are unaffected. Compound 1080 is a restricted-use pesticide, and WS personnel who use LPC's must be certified through the State pesticide regulatory agency. LPC applicators must follow all label directions and use restrictions set forth by the EPA. LPC's are not used on public land. WS specialists document their application of Compound 1080 on a LPC form termed an Application Data Report.
Another method of lethal predator control is through use of the M-44 sodium cyanide ejector mechanism ("the M-44"). This device works by ejecting sodium cyanide powder into the mouth of a predator when the animal pulls on the baited M-44 unit. The sodium cyanide powder reacts *744 with the moisture in the animal's mouth, releasing hydrogen cyanide gas. M-44's are placed along game trails, livestock trails, ridges, near seldom-used ranch roads and along fence lines. The devices are used mostly in the winter and spring, but are used year round in some locations. Sodium cyanide is also a restricted use pesticide.
Historically, WS has suffered opposition from animal rights groups, which has escalated over time. WS equipment, offices and vehicles have been vandalized, burglarized, bombed, set on fire and shot at. WS employees have been subjected to physical assaults, bomb threats and death threats. Two WS dogs have been poisoned. Plaintiffs' X10, 11, 12. These acts have occurred in practically every state. In order to protect its employees, WS does not publicize or physically identify its offices. WS employees are concerned that the same acts could be inflicted upon Cooperators if their names and addresses become known.
APHIS has a centralized FOIA and Privacy Act office which responds to requests for information about programs under APHIS's umbrella, including WS. USDA regulations concerning the processing of FOIA requests are codified at 7 C.F.R. Part 1. USDA rules are fully applicable to APHIS and provide the following procedures when a FOIA or Privacy Act request is received:
The request is assigned a case number and referred to the program area involved so that responsive records can be retrieved. If responsive records are found, they are turned over to a FOIA specialist who reviews the record to identify and redact information which is exempt from disclosure. A response is then sent to the requester with the exempt material redacted. If the requester is dissatisfied, s/he may file an appeal. The FOIA office will reconsider its earlier determination. If APHIS recommends that any part of an appeal be denied, the FOIA office then prepares an appeal package that it forwards to the USDA's Office of General Counsel ("OGC") for review. The OGC determines whether the FOIA office's decision should be upheld or reversed. The OGC then instructs the FOIA office how to proceed, and the final determination is sent to the requester. For FOIA lawsuits, APHIS is represented by the Department of Justice.
Requests for Cooperator information have been received by APHIS since the early 1990's. Since that time, the number of requests has increased drastically. The agency's policies regarding disclosure have been somewhat erratic. Prior to the spring of 1998, APHIS withheld personal information about Cooperators under Exemption 6. Identifying information was released only when it was clear from the face of a Cooperative Agreement that it pertained directly to a business organization, such as when the Cooperator or ranch name was modified with an "Inc." or "Co." If no such modification was present, the information would be withheld even in those cases where it was unclear whether an identifier referred to a business organization or an individual, such as when a Cooperator was identified as "John Doe Ranch."
In 1998, a new policy was distributed to USDA agency heads by Kenneth E. Cohen, Assistant General Counsel in the General Law Division of the OGC. Cohen indicated that the USDA's general approach to responding to requests for lists of names and addresses needed to be refined because of unpublished opinions issued by federal district courts in Idaho (State of Idaho v. United States Forest Service, Civ. Action No. 97-0230-S-BLW) and California (Maples v. USDA, Civil Action No. F 97-5663 SWI DLB). Cohen directed that *745 names and addresses should be released when they reflected a business capacity, even when the business address is also the home address of the individual concerned. The memo further directed that "business capacity" would include farming, ranching, outfitting and similar activities of a commercial nature.
As a result of the Cohen Memo, APHIS changed the way it responded to FOIA requests seeking personal Cooperator information. Rather than presuming that such information was protected, it was now presumed that any Cooperator was a business entity not afforded a right to privacy. APHIS and WS discussed with OGC the difficulty they had determining from the face of a Cooperative Agreement whether a Cooperator was a business or not. OGC advised APHIS to "make the call" based on the amount of resources (e.g., livestock) to be protected.
WS strongly objected to this interpretation, and the OGC changed its interpretation. It then determined that there is a valid basis to withhold personal Cooperator information under Exemption 6, which policy has apparently not been retracted. Plaintiff's X 7e; X 3, p. 38; X 2, p. 94; X 1, p. 146. Since that time, APHIS seems to have been consistent in withholding personal Cooperator information pursuant to Exemption 6.
In November 1997, API requested Application Data Reports regarding the use of LPC's in every state where the LPC is or has been used. APHIS provided responsive documents to API for California, Utah, Virginia, and West Virginia, but redacted any personal information including ranch names and home addresses pursuant to Exemption 6.
In April 1999, API requested that APHIS perform a second search for LPC documents in Texas and New Mexico. APHIS then provided API with 622 pages of LPC Application Data Reports, from which personal information had again been redacted pursuant to Exemption 6. The information provided by APHIS discloses the following: the date an LPC was applied; the date the LPC was removed; the number of animals collared; the number of livestock losses prior to application of the LPC; the number of coyotes suspected to have been killed by the LPC; the number of coyotes found dead; the date the LPC's were inspected; the number of non-target species found dead or suspected killed; whether collars were missing; whether an accidental release of Compound 1080 occurred; and whether anything unusual occurred, such as harm to humans or domestic animals. Unsatisfied with this information, API filed an administrative appeal of the APHIS decision to redact identifying information. No appeal package was disclosed to the Plaintiffs.
On August 31, 1999, API filed suit in the United States District Court for the District of Columbia, alleging that APHIS had violated FOIA by withholding the identifying information. On behalf of USDA, an attorney with the OGC, Ruth Ann Azeredo, reviewed the record and instructed that the requested information be released to API. The basis for her determination was that the Cooperators were in business, and the service provided by WS was related to their business. She based her decision on the Cohen memo, even though that policy had been withdrawn at the time of her review. Plaintiff's X 17h; X 17g.
After learning of the pending settlement in the D.C. lawsuit, Plaintiffs contacted the government's attorney handling the case who stated that the private information would be released. After no consent to delay release was communicated, Plaintiffs filed the present lawsuit on November 1, 1999. In January 2000, Plaintiffs amended their complaint to add another FOIA request/lawsuit that had been filed in New *746 Mexico by FG. FG's FOIA request sought "the [WS] management information system database used as the basis for all Wildlife Services annual reports for the states of Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Texas, Utah, Washington, and Wyoming." Apparently without exhausting administrative procedures, FG filed suit in the U.S. District Court for the District of New Mexico to compel APHIS to disclose the requested information. As with the D.C. suit, APHIS agreed to settle, and released partial records from the MIS. However, APHIS did withhold personal information pursuant to Exemption 6. After entry of the TRO in this case, APHIS disclosed certain records at the instruction of the OGC which did not have personal information redacted.[1] The records released in New Mexico lacked even a single indicator that a business organization was involved, such as "Inc.," "Co.," "Ltd.," or even a generic ranch name. Rather, the records pertained directly to individuals, and included their names, addresses, telephone numbers, property acreage and agreement numbers. Plaintiffs' X 18e; X 5, pp. 53-55. APHIS simultaneously released another 45 pages of records which identified Cooperators by "Ranch Common Name" and Cooperative Agreement number. Plaintiffs' X 18e.
FG and the government agreed to settle the New Mexico suit, with FG agreeing to delete from its request MIS records from non-LPC states and the government agreeing that Exemption 6 would not be used to withhold Personal Information. Plaintiffs' X 5, p. 59, X 18f. After Plaintiffs broadened their complaint to include the FG lawsuit, further action in that suit was stayed.
V. DISCUSSION
A. Federal Defendants' Motion to Dismiss. The government moves to dismiss Plaintiffs' claims related to "other pending FOIA requests." The government argues that the Court lacks jurisdiction over these claims because they are not ripe, they are non-final administrative actions, and they do not constitute a Constitutional violation. Having reviewed the parties' briefs in this regard, the Court is persuaded the motion is meritorious and should be granted. Plaintiffs' request for relief in this regard is too broad for the Court to effectively review because such requests are numerous, request a variety of information, and are still pending with administrative agencies. Additionally, it is impossible for the Court to ascertain whether each and every pending request is within the parameters of the claims raised this suit. Suffice it to say, if the USDA, APHIS, WS or any related agency releases personal information in circumstances covered by this Court's Judgment, both the government and any party to whom such information was released would be subject to sanctions by this Court. Finally, as Plaintiffs note in their summary judgment submissions and statement of facts, APHIS has returned to its pre-Cohen policy of withholding personal Cooperator information under Exemption 6. Accordingly, it is
ORDERED that the Government's Motion to Dismiss is GRANTED as to any FOIA requests not specifically identified in Plaintiffs' First Amended Complaint, which consists of Identification Numbers 98-116 (and any expanded or related requests, including the D.C. lawsuit), and 99-115 (and any expanded or related requests, including the New Mexico lawsuit), and as to all additional claims except for those under FOIA and the Privacy Act.
*747 B. Standard of Review. While Plaintiffs have raised a number of claims, the heart of their complaint is the inappropriateness of the government's proposed release of information under FOIA. Because the Plaintiffs are seeking to halt a proposed release of information under FOIA, the present suit is classified as a "reverse FOIA" action. Such cases are not brought under FOIA, but are cognizable under the Administrative Procedures Act ("APA"). 5 U.S.C. §§ 701-706. See Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979). See also, Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1184 (8th Cir.2000) ("FOIA, as solely a disclosure statute, only provides a cause of action to compel disclosure, but not an action to prohibit disclosure"). Therefore, to prevail in a reverse FOIA suit, the Plaintiff must prove that the agency's decision to disclose was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Merely establishing that the information may fall within a FOIA exemption is insufficient, because the exemptions "are no more than their description implies." Family Farms, 200 F.3d at 1185. In other words, if information falls within an exemption, no party can require disclosure. However, if information falls within an exemption, the agency is not prohibited from making a disclosure. Id. "Normally, then, an agency has discretion to disclose information within a FOIA exemption, unless something independent of FOIA prohibits disclosure." Id. The USDA has promulgated regulations regarding discretionary release:
Except where disclosure is specifically prohibited by Executive Order, statute, or applicable regulations, an agency [of USDA] may release records exempt from mandatory disclosure under 5 U.S.C. § 552(b) whenever it determines that such disclosure would be in the public interest. Such a record is considered to be in the public interest if the benefit to the public in releasing the document outweighs any harm likely to result from disclosure.
Family Farms, 200 F.3d at 1185, citing 7 C.F.R. § 1.17(b).[2] The Court, therefore, must review the administrative record to determine whether the agency's decision "was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Family Farms, 200 F.3d at 1187, citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
C. FOIA. "The Freedom of Information Act was enacted to facilitate public access to Government documents." U.S. Dept. of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991).
The statute was designed "`to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'" Consistently with this purpose, as well as the plain language of the Act, the strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents. That burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document as well *748 as when it seeks to withhold an entire document.
The redaction procedure is, however, expressly authorized by FOIA. Congress thus recognized that the policy of informing the public about the operation of its Government can be adequately served in some cases without unnecessarily compromising individual interests in privacy.
Ray, 502 U.S. at 173-74, 112 S.Ct. 541. While disclosure rather than secrecy is the primary objective of FOIA, there are a number of exemptions which excuse an agency from its requirements. U.S. Dept. of Defense v. Fed. Labor Relations Authority, 510 U.S. 487, 494, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). One such is Exemption 6, "which provides that FOIA's disclosure requirements do not apply to `personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.'" Id. at 494-95, 114 S.Ct. 1006, citing 5 U.S.C. § 552(b)(6). Unless the invasion of privacy is "clearly unwarranted," "the public interest in disclosure must prevail." Ray, 502 U.S. at 177, 112 S.Ct. 541. The threshold inquiry in a case involving Exemption 6 is whether the requested information includes "files," which the Supreme Court has interpreted broadly "to include any `information which applies to a particular individual.'" Sherman v. U.S. Dept. of the Army, 244 F.3d 357, 361 (5th Cir.2001).
When evaluating the propriety of disclosure, the reviewing official cannot base its decision on the reasons behind the request for information. Dept. of Defense, 510 U.S. at 496, 114 S.Ct. 1006. The identity of the requesting party and his motives have no bearing on the request because "Congress `clearly intended' the FOIA `to give any member of the public as much right to disclosure as one with a special interest.'" Id.
In evaluating whether an exemption is applicable, the Court must balance public interest in disclosure against whatever interest Congress intended for the exemption to protect. Dept. of Defense, 510 U.S. at 495, 114 S.Ct. 1006. The only relevant public interest in disclosure "is the extent to which disclosure would serve the `core purpose of the FOIA,' which is `contribut[ing] significantly to public understanding of the operations or activities of the government.'" Id. at 495, 114 S.Ct. 1006, citing U.S. Dept. of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). The focus should be on whether the information sought would "`she[d] light on an agency's performance of its statutory duties' or otherwise let citizens know `what their government is up to.'" Bibles v. Oregon Natural Desert Assn., 519 U.S. 355, 356, 117 S.Ct. 795, 136 L.Ed.2d 825 (1997). However, that purpose "is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct." Id., citing Reporters Comm., 489 U.S. at 773, 109 S.Ct. 1468. "FOIA's central purpose is to ensure that the Government's activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed." Reporters Comm., 489 U.S. at 774, 109 S.Ct. 1468.
The Supreme Court has consistently recognized the high weight to be placed on the potential disclosure of personal information of private citizens. Bibles, 519 U.S. 355, 117 S.Ct. 795, 136 L.Ed.2d 825 (protecting names of addresses of individuals receiving Bureau of Land Management newsletter); Dept. of Defense, 510 U.S. 487, 114 S.Ct. 1006, 127 L.Ed.2d 325(protecting home addresses of agency *749 employees represented by unions); Ray, 502 U.S. 164, 112 S.Ct. 541, 116 L.Ed.2d 526 (protecting statements from deportees which included identifying information); Reporters Comm., 489 U.S. at 774-775, 109 S.Ct. 1468 ("Thus, it should come as no surprise that in none of our cases construing the FOIA have we found it appropriate to order a Government agency to honor a FOIA request for information about a particular private citizen") (protecting criminal records). The Court has been understandably reluctant to "disparage the privacy of the home, which is accorded special consideration in our Constitution, laws, and traditions." Dept. of Defense, 510 U.S. at 501, 114 S.Ct. 1006. "An individual's interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form." Id., at 500, 114 S.Ct. 1006.
There is no question but that the information contained in the records sought by API and FG would constitute personally identifying data that would not be disclosable if it were obtained from an individual. In the present case, it appears that the government determined that Exemption 6 was not applicable because the Cooperators were "businesses" and had submitted the identifying information to WS in their "business" capacity. As such, disclosure of identifying information would not interfere with the privacy rights of an "individual." This determination was clearly not warranted by the information contained in the records reviewed by the OGC and is, therefore, an abuse of discretion. As the Eighth Circuit noted, "An overly technical distinction between individuals acting in a purely private capacity and those acting in an entrepreneurial capacity fails to serve the exemption's purpose of protecting the privacy of individuals." Campaign for Family Farms, 200 F.3d at 1189.
The government's position appears to arise out of the Cohen memo.[3] This position is untenable because it is based upon information that is not even contained on the documents and forms completed in reference to a Cooperative Agreement. WS does not require that a Cooperator indicate, on a Cooperative Agreement or otherwise, whether it is requesting assistance as a business entity or as a private individual. Nor does the fact that an entry on a Cooperative Agreement identifies a ranch name or farm name mean that activities being conducted at the property are done by a business or to reap financial profit. The property could very well be owned by an individual as a private residence or for recreational pursuits. Also, the name that someone attaches to a farm or ranch can be arbitrary and does not necessarily have any bearing on whether the property is used for a business. Additionally, although many Cooperators live on the property where they ranch or farm, it is impossible to tell with certainty merely by looking at a Cooperative Agreement whether the address listed is a residence or not. In those cases where a Cooperator does reside on a farm or ranch property, WS may be conducting activities on that property which are unrelated to farm or ranch work, such as protecting family members, their private property, or perhaps their garden. Finally, in some cases, a Cooperator may not even be the person whose resources are threatened by wildlife. For example, coyotes living on a neighbor's property may be killing a landowner's cattle or sheep. In order the address the landowner's problem, WS must access the neighbor's property.
*750 One other distinction suggested by the OGC, as previously noted, was that APHIS "make the call" on whether a ranch is a business or not based on the amount of resources (livestock) to be protected. OGC instructed that, for example, if there are 100 head of cattle to be protected, people were not maintaining the cattle as pets. The cattle were, therefore, a business resource and such Cooperators should be identified as a business. Plaintiff's X 2, pp. 65-66.[4] This interpretation has no factual or legal basis and has been used by the agency only with the present suit and the New Mexico FG suit.
The Court will assume for the purposes of argument that USDA regulations define "business" as something other than a business entity (such as a corporation, partnership, joint venture, etc.) recognized at law.[5] The government has not, however, pointed to any USDA regulation which defines a "business" in regard to the size of its inventory or which creates a presumption that one who owns more than 100 head of livestock is a "business." It is also specious to assume that because a Cooperator's ranch has been given a name it somehow becomes a business. It surely will come as a surprise to a number of suburban home owners that their homestead has magically turned into a "business" because they happened to give it a name. Obviously the government's definition of "business" for these purposes is something that has been created out of thin air and has no factual or rational basis. The decision maker completely ignored the previous policy of the USDA in regard to non-disclosure of this information and the subsequent readoption of that earlier policy. Therefore, the USDA's decision that the Cooperators were not entitled to individual privacy rights under Exemption 6 was arbitrary, capricious, an abuse of discretion, and not in accordance with law.
As the government did not recognize an individual right under Exemption 6, it obviously did not attempt to balance the Cooperators' right to privacy and the public's right to the information requested. In this regard, the "motives" identified for discovery of the information by both the Plaintiffs and the animal rights groups are irrelevant the focus is on whether the public is entitled to the information, not whether the requester has an evil or noble purpose. The question is, Does the requested information shed any greater light on the operations of the USDA, APHIS or the WS? The answer is, No. Information regarding the particulars of the LPC program have been provided. The Intervenor's argument that the public has a right to know where LPC collars are located so they don't inadvertently encounter them is insufficient. The LPC collars are not placed on public land, and a member of the public would encounter one only if s/he were trespassing on private property.[6]
*751 The information that is provided by WS sheds sufficient light on the agency's workings, including the following: WS directives; WS factsheets; annual highlight reports; annual highlight tables which include expenditures, the number of WS employees, animals taken, animals freed, pesticides used, pesticides sold, equipment loaned, endangered species work performed and loss data; the number of Cooperators by state; and WS office directories. WS additionally provides a website with links to WS publications and a viewable public service announcement. No personally identifying information related to the Cooperators could shed any further light on the workings of the WS.
Finally, there is no basis for an argument that the agency still had the discretion to release the information under FOIA. As previously noted, 7 C.F.R. § 1.17(b) prohibited the agency from releasing otherwise exempt material except when disclosure would be in the public interest. This balancing test is almost exactly the same as the Exemption 6 test. Family Farms, 200 F.3d at 1185. The agency did not perform a balancing test under either regulation. Accordingly, the Plaintiffs' Motion for Partial Summary Judgment as to its claim under Exemption 6 will be granted.
D. Exemption 3. Plaintiffs additionally assert that Exemption 3 of FOIA precludes disclosure of the Cooperators' personal identifying information. 5 U.S.C. § 552(b)(3). Exemption 3 exempts from disclosure information specifically protected by another federal statute, provided that the statute (1) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (2) establishes particular criteria for withholding or refers to particular types of matters to be withheld. The statute identified by Plaintiffs as prohibiting disclosure is the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136i-1(b). Section 136i mandates that the Secretary of the USDA require certified applicators of restricted use pesticides to maintain certain application records. 7 U.S.C. § 136i-1(a)(1). Such records are available to other agencies dealing with pesticide use, but the statute provides that "in no case may a government agency release data, including the location from which the data was derived, that would directly or indirectly reveal the identity of individual producers." Id.; 7C.F.R. § 110.3(g). That this statute is meant to protect farmers is clear from the Congressional record. One proposed amendment which would have protected only the "name and address of the individual maintaining the records[,]" was rejected because it did not adequately protect the privacy of farmers. 136 Cong. Rec. S10902-03, *S10933, 1990 WL 148272 (July 20, 1990) (statement of Sen. Grassley). Allowing access to such records by persons other than Federal and State officials would have "left farmers open to attacks, harassment, frivolous litigation, and overall mischief by activist groups." Id.
As previously noted, the pesticides contained in the LPC's and M-44's are classified as restricted use pesticides, and the application of such pesticides by WS personnel triggers the recordkeeping requirements. USDA personnel have noted that WS personnel who apply restricted use pesticides on Cooperator property are subject to recordkeeping requirements made applicable for FIFRA and USDA regulations, codified at 7 C.F.R. Part 110. Plaintiffs' Exhibit 23. As a result, the release of the information sought by API *752 and FG in this case would be in violation of FIFRA and would fall under Exemption 3.
E. The Privacy Act. The Privacy Act generally precludes disclosure of personal information and provides, in pertinent part:
No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be ... (2) required under section 552 of this title [FOIA].
Dept. of Defense, 510 U.S. at 494, 114 S.Ct. 1006, citing 5 U.S.C. § 552a(b)(2). Disclosure is prohibited unless FOIA requires release. As already noted, FOIA does not require release of the information sought by API and FG. Additionally, none of the Cooperators whose records are at issue have given consent for those records to be released.
The purpose of the statute is to protect individuals against invasions of their personal privacy by preventing the potential misuse of personally identifiable information stored in computers. Johnson v. Dept. of Treasury, 700 F.2d 971, 976 (5th Cir.1983); S.Rep. No. 1183, 93d Cong., 2d Sess. 1-2 (1974). Thus, where there is evidence that an agency maintains records from which there have been "even a few" retrievals of information keyed to individuals' personal identifiers, a system of records exists. See e.g., Alexander v. F.B.I., 193 F.R.D. 1, 6-7 (D.D.C. March 29, 2000) (Lamberth, J.), quoting Henke v. U.S. Dept. of Commerce, 83 F.3d 1453, 1461 (D.C.Cir.1996); Bettersworth v. FDIC, 248 F.3d 386, 392 (5th Cir. April 12, 2001) (records are in system of records if they are retrievable by an identifying particular assigned to an individual); Smiertka v. U.S. Dept. of Treasury, 447 F.Supp. 221, 228 (D.D.C.1978) (records avoid classification as within system of records only if they are "never" retrieved except by personal identifier), rem. other grounds, 604 F.2d 698 (D.C.Cir.1979).
The argument that the Government offers in this regard is that the records in this case are not maintained in such a manner that information may be retrieved by personal identifiers such as a Cooperator's name, address or other identifying bits of information. The record in this case reflects that the files at issue in this case can be retrieved by use of personally identifying information. Defendant's X 11 and X 12. Personal Cooperator information is entered into the MIS from Cooperative Agreements, and personal information can be retrieved by personal identifiers. The MIS is the single data repository from which more than 200 different types of report are generated. Blaney Decl. No report is kept separately and independently. All reports are generated from the same source; namely, the raw data entered into the MIS. Reports vary only in that selective bits of information are combined differently for different reports. As such, the Cooperator Information sought by API and FG fall within the ambit of the Privacy Act. In light of the foregoing, it is
ORDERED that the Federal Defendants' Motion to Dismiss is GRANTED as Plaintiffs' claims in this regard seek relief beyond the jurisdiction of this Court. It is further
ORDERED that Plaintiffs' Motion for Partial Summary Judgment is partially GRANTED, except as to their substantive due process claim which has been dismissed. It is further
ORDERED that the Federal Defendants' Motion for Summary Judgment is DENIED. As all claims have been resolved, the Court will issue a Judgment that declares that the Defendants' actions *753 in attempting to release personal identifying information is a violation of FOIA and the Privacy Act and that any further attempt to release such information is enjoined. The parties' shall submit a proposed Judgment within ten (10) days from entry of this Memorandum Opinion and Order which outlines the proper parameters for such declaratory and injunctive relief not inconsistent with this Order.
NOTES
[1] The disclosure of that information was the subject of a previous motion for sanctions.
[2] Since the filing of this suit, § 1.17(b) was amended, effective July 28, 2000. The amended regulation is found at 7 C.F.R. § 1.19, which provides as follows:
(a) All agency records, except those specifically exempted from mandatory disclosure by one or more provisions of 5 U.S.C. 552(b), shall be made promptly available to any person submitting a request under this subpart.
(b) Agencies are authorized, in their sole discretion, to make discretionary releases when such release is not otherwise specifically prohibited by Executive Order, statute, or regulation.
[3] The cases relied upon in the Cohen memo do not support his interpretation and are readily distinguishable.
[4] The government has submitted affidavits that identify several other bases for its determination. However, the Court's analysis under the APA, which the government advocates, is limited to the administrative record. The government's after-the-fact attempt to bolster its decision is irrelevant.
[5] The cases cited by the government do not support their position. Both Sims v. C.I.A., 642 F.2d 562, 572 n. 47 (C.A.D.C.1980) and National Parks & Conservation Ass'n v. Kleppe, 547 F.2d 673, 685 n. 44 (D.C.Cir. 1976), indicate only that institutions, corporations and other formal business organizations lack personal privacy rights. That is because a business organization is a person only by legal fiction. It is not an individual with Constitutionally protected rights. See United States v. Morton Salt Co., 338 U.S. 632, 651-652, 70 S.Ct. 357, 94 L.Ed. 401 (1950).
[6] The converse of API's argument could be made, particularly in light of September 11. Pinpointing the geographic location of such dangerous chemicals could provide terrorists with another tool to use against innocent citizens.
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In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1616
United States of America,
Plaintiff-Appellee,
v.
David Vera,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 98 CR 515--Robert W. Gettleman, Judge.
Argued January 9, 2002--Decided January 22, 2002
Before Flaum, Chief Judge, and Harlington
Wood, Jr., and Easterbrook, Circuit Judges.
Easterbrook, Circuit Judge. Only one
issue in this criminal appeal justifies
treatment in a published opinion: Whether
the holding of Apprendi v. New Jersey,
530 U.S. 466 (2000), requires matters
relevant to criminal forfeiture to be
established beyond a reasonable doubt.
Like the other circuits that have
considered this question, we hold that
Apprendi does not disturb the rule that
forfeiture is constitutional when
supported by the preponderance of the
evidence. See United States v. Cabeza,
258 F.3d 1256, 1257 (11th Cir. 2001);
United States v. Corrado, 227 F.3d 543,
550-51 (6th Cir. 2000).
Following his conviction of drug-related
offenses, David Vera was sentenced to
life imprisonment and ordered to forfeit
$600,000 in cash plus three parcels of
real estate. See 21 U.S.C. sec.853(a)
(providing forfeitures for drug
offenses). In special verdicts, the jury
determined that forfeiture is warranted
and specified the cash and property to be
forfeited. The judge told the jury to
make these decisions according to the
preponderance of the evidence. Vera
contends that this violated the
Constitution, in light of Apprendi. But
what the Supreme Court held is not that
everything bearing on a sentence must be
found beyond a reasonable doubt. It held,
rather, that "[o]ther than the fact of a
prior conviction, any fact that increases
the penalty for a crime beyond the
prescribed statutory maximum must be
submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490.
Judges (and less commonly juries)
traditionally have selected sentences
within a statutory range; increasing the
maximum penalty, Apprendi held, is enough
like convicting of a different and more
serious crime that the increase must be
justified beyond a reasonable doubt.
Determining the forfeitable proceeds of
an offense does not come within
Apprendi’s rule, because there is
no"prescribed statutory maximum" and no
risk that the defendant has been
convicted de facto of a more serious
offense. Section 853(a) is open-ended;
all property representing the proceeds of
drug offenses is forfeitable. Forfeiture
has long been a civil remedy as well as
a criminal sanction, handled by a
preponderance standard in either event--
and usually by the judge rather than the
jury. See Fed. R. Crim. P. 32.2.
Restitution, another open-ended component
of both criminal and civil judgments, is
not affected by Apprendi because there is
no "statutory maximum." See United States
v. Behrman, 235 F.3d 1049 (7th Cir.
2000). Forfeiture is governed by the same
principle and thus may be decided by the
judge on a preponderance standard. See
Edwards v. United States, 523 U.S. 511
(1998).
Vera’s other arguments are addressed in
an unpublished order issued
contemporaneously with this opinion.
Affirmed
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190 S.E.2d 417 (1972)
15 N.C. App. 456
John H. MARLOWE et al.
v.
RELIANCE INSURANCE COMPANY.
No. 7228DC392.
Court of Appeals of North Carolina.
August 2, 1972.
Certiorari Denied October 3, 1972.
*418 Joseph C. Reynolds, Asheville, for plaintiff appellants.
Clarence N. Gilbert, Asheville, for defendant appellee.
Certiorari Denied by Supreme Court October 3, 1972.
CAMPBELL, Judge.
To say the least, the procedure in this case was unusual. After the parties had stipulated that the judge try the case without a jury, they then proceeded with a jury trial. A judgment was entered wherein the trial judge found facts and made conclusions of law as though there had been no jury trial and then allowed a motion for a directed verdict and dismissed the three actions. Thus, a combination trial was conducted, which is novel.
Despite the novel procedure, we do not find any error in the result obtained.
The stipulated facts and the uncontradicted evidence show:
1. Jackie Lee Weaver and Betty Farmer Weaver were married October 11, 1963 and on July 27, 1968 had three children.
2. Some two months before July 27, 1968, Betty Farmer Weaver and Jackie Lee Weaver separated and Betty Farmer *419 Weaver moved into a two-bedroom trailer located on Edward Street in Black Mountain, North Carolina, with her three children. Jackie Lee Weaver paid the rent on the house trailer the first week but had not paid anything thereafter and on 27 July 1968 was not paying the rent or supplying any other support for his wife and children. Jackie Lee Weaver never lived with his wife in the trailer and was living in a different household. They did become reconciled and resumed living together in April 1971.
3. Betty Farmer Weaver owned a 1957 Chevrolet automobile which she had purchased in Hickory, North Carolina, shortly before moving to Black Mountain. The record title to the Chevrolet automobile recorded with the Commissioner of Motor Vehicles of the State of North Carolina was in the name of Betty Farmer Weaver. It was this vehicle which the defendant insurance company had insured under an assigned risk policy, and Betty Farmer Weaver was the named insured in the policy.
4. The insurance policy issued by the defendant insurance company to Betty Farmer Weaver defined an insured, "[w]ith respect to the insurance for bodily injury liability and for property damage liability for unqualified word `Insured' includes the named Insured and, if the named Insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named Insured or such spouse or with the permission of either."
5. During the two months prior to July 27, 1968, that Betty Farmer Weaver was living in the trailer in Black Mountain, she did not know where her husband Jackie Lee Weaver was living, and he was not a member of her household. He did not drive the automobile during that time and had never driven it as he had no driver's license, and Betty Farmer Weaver had told him he could not drive it.
6. On 27 July 1968 Jackie Lee Weaver went to the trailer where Betty Farmer Weaver was living, and while Betty Farmer Weaver was in one of the bedrooms, he took the keys to the automobile which were lying on a table in the living room. After taking the automobile keys he went out to the automobile which was on the street and drove off despite Betty Farmer Weaver's hollering at him not to take it. Betty Farmer Weaver went to her mother's home where there was a telephone and telephoned the North Carolina State Highway Patrol and reported the taking of her automobile. Jackie Lee Weaver thereafter was involved in an automobile wreck in which the three plaintiffs sustained their respective damages. At the time of the accident Jackie Lee Weaver had another woman in the automobile with him.
The trial judge found as a fact that on 27 July 1968 Jackie Lee Weaver and Betty Farmer Weaver were married, but on that date had been living separate and apart for about two months in different households; that on 27 July 1968 Jackie Lee Weaver took the 1957 Chevrolet automobile from the street near his wife, Betty Farmer Weaver's residence without the owner's permission expressed or implied, contrary to the specific orders of the owner, and at the time of the accident with plaintiffs, Jackie Lee Weaver was not in lawful possession of said Chevrolet automobile.
The plaintiffs in their respective complaints alleged that Jackie Lee Weaver was an insured under the provisions of the policy issued by the defendant insurance company. This allegation was denied by the defendant.
"In an action to recover under an insurance policy, the burden is on the plaintiff to allege and prove coverage.. . ." Brevard v. State Farm Mutual Automobile Insurance Co., 262 N.C. 458, 137 S.E.2d 837 (1964).
*420 In the instant case the plaintiffs' allegations were all right, but their proof was lacking.
There was no evidence at all that Jackie Lee Weaver was driving the automobile with any permission of Betty Farmer Weaver. On the contrary he took the car and was driving it against her express orders not to do so.
Neither was there any evidence that Jackie Lee Weaver was a resident of the same household with Betty Farmer Weaver. "Resident" is a word with varying shades of meaning as pointed out in Jamestown Mutual Insurance Co. v. Nationwide Mutual Insurance Co., 266 N.C. 430, 146 S.E.2d 410 (1966). In every case, however, it requires some kind of abode. In the instant case Jackie Lee Weaver had no abode whatsoever with Betty Farmer Weaver in the trailer home where she was living and had been living for at least two months before the accident in question.
The plaintiffs failed to prove that Jackie Lee Weaver was an insured and had coverage under the terms of the insurance policy issued by the defendant.
The evidence supported the findings of fact made by the trial judge, and those findings of fact supported the conclusions of law, and the judgment dismissing the causes of action brought by the plaintiffs. The stipulated facts and the evidence, when viewed in the light most favorable to the plaintiffs did not present sufficient evidence to be submitted to the jury to sustain the plaintiffs' position; and, therefore, a directed verdict in favor of the defendant was appropriate.
We have reviewed the various assignments of error presented by the plaintiffs and do not find any merit in any of them.
Affirmed.
MALLARD, C. J., and BRITT, J., concur.
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United States Court of Appeals for the Federal Circuit
2009-5090
MARY DARIN WILKERSON, as mother of her son,
OTTO WILKERSON,
Petitioner-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellee.
Kevin P. Conway, Conway, Homer & Chin-Caplan, P.C., of Boston,
Massachusetts, argued for petitioner-appellant. On the brief was Ronald C. Homer.
Traci R. Patton, Trial Attorney, Torts Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for respondent-appellee. With her
on the brief were Tony West, Assistant Attorney General, Timothy P. Garren, Director,
Mark W. Rogers, Deputy Director, and Gabrielle M. Fielding, Assistant Director.
Appealed from: United States Court of Federal Claims
Senior Judge Robert H. Hodges, Jr.
United States Court of Appeals for the Federal Circuit
2009-5090
MARY DARIN WILKERSON, as mother of her son,
OTTO WILKERSON,
Petitioner-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellee.
Appeal from a judgment of the United States Court of Federal Claims in Case No. 05-
VV-232, Senior Judge Robert H. Hodges, Jr.
______________________________
DECIDED: January 27, 2010
______________________________
Before MAYER, FRIEDMAN, and GAJARSA, Circuit Judges.
FRIEDMAN, Circuit Judge.
This appeal challenges the decision of the Court of Federal Claims that affirmed
its Special Master’s rejection of a petition for compensation under the National
Childhood Vaccine Injury Act (“Vaccine Act”) as untimely. We affirm.
I
Otto Wilkerson, the son of the appellant Mary Darin Wilkerson, was born on May
30, 1997. He received his first vaccination on that date and by September 1998 had
had multiple vaccinations.
By the end of 1999, Wilkerson had begun receiving complaints about Otto’s
misbehavior and his relationships with other people, including children. Otto reportedly
had difficulty playing well with other children, disturbed class and hurt classmates.
When Otto attended preschool in 2001, he reportedly disturbed class, refused to
respond to or obey his teachers’ instructions, sit still or listen.
By 2003, a physician treating Otto suspected that he may have Attention Deficit
Hyperactivity Disorder (“ADHD”) and referred him to a clinic for testing. A licensed
clinical social worker there concluded that he “clearly” met the diagnostic criteria for the
disorder. A pediatrician corroborated this diagnosis in January 2004.
On February 10, 2005, Wilkerson filed in the Court of Federal Claims a petition
for compensation under the Vaccine Act. She alleged that Otto suffered mercury
toxicity and ADHD as a result of the vaccinations he had received during his first six
months. The trial under a petition for compensation for vaccine-related injuries is held
before a Special Master of the Court of Federal Claims. 42 U.S.C. § 300aa-12(d). The
Secretary of Health and Human Services (“the Secretary”), who is the respondent in
such cases, § 300aa-12(b)(1), moved to dismiss the petition as untimely under the
statute, which bars such a petition if filed “after the expiration of 36 months after the
date of the occurrence of the first symptom or manifestation of onset” of a vaccine-
related injury. § 300aa-16(a)(2).
Each party submitted a physician’s expert report addressing the date of onset of
Otto’s ADHD symptoms. Both medical experts agreed that, more probably than not,
those symptoms first appeared on or before November 3, 2001. The Chief Special
Master dismissed the petition as untimely, because it was filed on February 17, 2005,
2009-5090 2
more than thirty-six months after the occurrence of the first symptom or manifestation of
onset of Otto’s ADHD.
The Court of Federal Claims upheld the Chief Special Master’s ruling. The court
held that, in Markovich v. Secretary of Health and Human Services, 477 F.3d 1353
(Fed. Cir. 2005), this court ruled that “the event that triggers the running of the statute of
limitations is either a symptom or manifestation of onset, whichever occurs first.” The
court’s “CONCLUSION” was: “The parties agreed that November 3, 2001 was the date
on which petitioner’s symptoms first appeared. Given petitioner’s concession, the Chief
Special Master had no choice, in light of Markovich, to rule that he lacked jurisdiction to
consider the case on the merits.” Wilkerson v. Sec’y of Health and Human Servs., 2009
WL 1583527, at *2 (Ct. Fed. Cl. Apr. 2, 2009).
II
A. We agree with the Court of Federal Claims and the Chief Special Master that
Markovich controls this case and that under it the Chief Special Master correctly
dismissed the petition as untimely.
The governing statutory time limit in this case states:
[I]f a vaccine-related injury occurred as the result of the
administration of such vaccine, no petition may be filed for
compensation under the Program for such injury after the
expiration of 36 months after the date of the occurrence of
the first symptom or manifestation of onset . . . of such injury.
§ 300aa-16(a)(2).
In other words, for the Chief Special Master to have had jurisdiction in this case,
the petition for compensation must have been filed within thirty-six months of “the date
2009-5090 3
of the occurrence of the first symptom or manifestation of onset” of “a vaccine-related
injury.”
In Markovich, the petitioner argued that the standard for determining when the
limitations period begins to run “should be a subjective one, focusing on the particular
view of a specific parent.” 477 F.3d at 1356. This court rejected that theory and instead
adopted “an objective standard that focuses on the recognized standards of the medical
profession at large,” which “treats petitioners equally, without regard to their individual
degree of medical awareness.” Id. We stated that “[u]nder the plain language of the
Vaccine Act, the ‘first symptom or manifestation of onset’ of injury means that either a
‘symptom’ or a ‘manifestation of onset’ can trigger the running of the statute, whichever
is first.” Id. at 1357. The court “[h]eld that ‘the first symptom or manifestation of onset,’
for the purposes of § 300aa-16(a)(2), is the first event objectively recognizable as a sign
of a vaccine injury by the medical profession at large.” Id. at 1360.
Under these standards, the Court of Federal Claims and the Chief Special
Master correctly held that Wilkerson’s petition for Vaccine Act injury compensation was
untimely because it was filed more than thirty-six months after “the date of the
occurrence of the first symptom . . . of such injury.” The parties’ medical experts agreed
that the first symptom of Otto’s ADHD occurred on or before November 3, 2001. The
petition for compensation was not filed until February 17, 2005, more than thirty-nine
months after that first symptom had occurred. On its face, the filing was untimely.
B. The grounds upon which Wilkerson seeks to distinguish or avoid Markovich
are unpersuasive.
2009-5090 4
Wilkerson contends that Otto’s “condition, ADHD, is a condition that requires a
‘manifestation of onset’ event to trigger the statute of limitations” and that its first
symptom is not sufficient. The argument is refuted by the ruling in Markovich that “the
‘first symptom or manifestation of onset’ of injury means that either a ‘symptom’ or a
‘manifestation of onset’ can trigger the running of the statute, whichever is first.” Id. at
1357. We discern nothing in the Vaccine Act that supports such a limitation on the Act’s
clear and broad language that “either” the occurrence of the first symptom “or”
manifestation of onset is sufficient.
Wilkerson repeats the argument by urging us to follow the ruling of the Court of
Federal Claims in Setnes v. United States, 57 Fed. Cl. 175, 179 (2003), that “where
there is no clear start to the injury . . . prudence mandates that a court addressing the
statute of limitations not hinge its decision on the occurrence of the first symptom.”
Markovich, however, discussed at length and rejected that Setnes ruling because:
it effectively reads the Vaccine Act as if the statute of
limitations were not triggered until there was appreciable
evidence showing a symptom and manifestation of the
injury. However, the Vaccine Act states that the statute of
limitations is triggered by the “first symptom or manifestation
of onset.” 42 U.S.C. § 300aa-16(a)(2) (emphasis added).
The use of the words “first” and “or” require that the statute
of limitations commence with whichever event (i.e., symptom
or manifestation of onset) occurs first.
477 F.3d at 1358.
Wilkerson also argues that the reference in Markovich to “the first event
objectively recognizable as a sign of a vaccine injury by the medical profession at large”
requires that such recognition be contemporaneous with the “first event” itself, and that
hindsight recognition is impermissible. That statement in Markovich, however, was
2009-5090 5
made to explain the court’s rejection of a subjective standard for determining when the
limitations period began to run based on the parent’s perception of when that occurred,
and adopting instead an objective standard based on the medical profession’s
recognition of when that occurred. We do not read Markovich as requiring in each case
a showing of the date on which the medical profession at large had such a recognition.
Since both medical experts in the present case agreed on the date on which Otto’s
ADHD symptoms appeared, it was reasonable to conclude that that date reflected the
consensus of the medical profession at large about when those symptoms first were
recognizable. The fact that such recognition may have occurred some time after the
symptoms first occurred does not undermine the medical judgment upon which the
decision in this case was based. Moreover, the Act’s time for filing runs from “the date
of the occurrence of the first symptom or manifestation of onset,” not the date of its
recognition.
Finally, Wilkerson argues that the legislative history showing the underlying
policy objectives of the Vaccine Act support her position. Those considerations,
however, do not negate the clear statutory language that Markovich applied as written.
Wilkerson’s argument also ignores the court’s recognition in Markovich that “the
Vaccine Act’s statute of limitations must be strictly and narrowly construed because it is
‘a condition on the waiver of sovereign immunity by the United States, and courts
should be careful not to interpret [a waiver] in a manner that would extend the wavier
beyond that which Congress intended.’” Id. at 1360 (citation omitted).
In sum, Markovich means exactly what it said: “the first symptom or manifestation
of onset . . . is the first event objectively recognizable as a sign of a vaccine injury by the
2009-5090 6
medical profession at large.” Id. Markovich compels the conclusion that Wilkerson’s
petition under the Vaccine Act was untimely because it was filed more than thirty-six
months after the occurrence of the first symptom of Otto’s injury.
CONCLUSION
The judgment of the Court of Federal Claims sustaining the dismissal of the
petition as untimely is
AFFIRMED.
2009-5090 7
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6581
BRIAN WILLIAM PATTON,
Petitioner - Appellant,
v.
HAROLD W. CLARKE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:11-cv-00027-JRS)
Submitted: July 26, 2012 Decided: August 2, 2012
Before MOTZ, DAVIS, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Brian William Patton, Appellant Pro Se. Craig Stallard,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian William Patton seeks to appeal the district
court’s order denying relief on his 28 U.S.C. § 2254 (2006)
petition. The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(A) (2006). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Patton has not made the requisite showing. Accordingly, we
deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal. Patton’s motion for
handwriting analysis is denied. We dispense with oral argument
because the facts and legal contentions are adequately presented
2
in the materials before the court and argument would not aid the
decisional process.
DISMISSED
3
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 97-4006
WILBERT H. LAWRENCE, SR.,
Defendant-Appellee.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 97-4007
JAMES EDWARD JONES,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-96-103)
Argued: August 14, 1997
Decided: September 11, 1997
Before RUSSELL and HALL, Circuit Judges, and MICHAEL,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Alan Mark Salsbury, Assistant United States Attorney,
Norfolk, Virginia, for Appellant. Patrick Hugh O'Donnell, KAUF-
MAN & CANOLES, Norfolk, Virginia, for Appellee Lawrence; Rob-
ert Bruce Rae, RAE, FORBES & HALL, P.C., Virginia Beach,
Virginia, for Appellee Jones. ON BRIEF: Helen F. Fahey, United
States Attorney, Norfolk, Virginia; William G. Otis, Senior Litigation
Counsel, UNITED STATES ATTORNEY'S OFFICE, Alexandria,
Virginia, for Appellant.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
The United States appeals the sentences imposed on Wilbert Law-
rence and James Jones following their convictions for conspiracy to
defraud the United States and making false declarations before a fed-
eral grand jury, in violation of 18 U.S.C. #8E8E # 371 and 1623. Because
we conclude that the district court's decisions to depart downward
from the applicable guidelines range were an abuse of discretion, we
vacate the sentences and remand for resentencing.
I.
Defendant Wilbert Lawrence runs a business, Lawrence Landscap-
ing and Maintenance Service, Inc., which employs about 80 persons.
In February 1995, Lawrence Landscaping was preparing to bid on a
janitorial services contract for a Navy compound in Norfolk, Virginia.
The Navy's existing contract was with Alrod Enterprises; it was set
to expire in May 1995.
Lea Ann Fipps was the finance manager of Alrod Enterprises, and
defendant James E. Jones was its director of marketing for schools
2
and colleges. Fipps and Jones had apparently grown disenchanted at
Alrod, so they hatched a plot to make sure that Lawrence Landscap-
ing obtained the Navy contract and to then take jobs with Lawrence
Landscaping.
On March 18, 1995, Jose Madry, a Lawrence Landscaping
employee, met with Fipps and Jones at Lawrence Landscaping's
office in Portsmouth. Wilbert Lawrence was present. Fipps gave
Madry a folder with copies of Alrod's actual contract expenditure
sheets for several preceding months. This information was confiden-
tial and proprietary to Alrod, and Fipps had no authority to disclose
it. Fipps had placed a Post-ItTM Note on the folder to Madry stating
that the papers "are budget sheets for CINCLANT[the Navy contract]
and will show you actual expenditures. . . . Please keep these sheets
confidential for me! I ask that you get rid of them when we're fin-
ished! Thanks!"
Lawrence told Madry to consult with Fipps in preparing Lawrence
Landscaping's bid. Over the next week, Madry worked closely with
Fipps, both over the telephone and in person, to finish the paperwork.
Lawrence was present when Fipps and Madry met in person.
On April 3, 1995, Lawrence submitted Lawrence Landscaping's
bid. There were four other bidders, including Alrod Enterprises. Law-
rence Landscaping's bid was the lowest, at approximately $1.35 mil-
lion. The next highest was just a few thousand more; Alrod's was
much higher, at almost $1.8 million.
Fipps resigned from Alrod that same day. As the conspirators
expected, the Navy contract was awarded to Lawrence Landscaping.
Jones quit Alrod on May 1, and both he and Fipps were hired by Law-
rence Landscaping.
These events apparently aroused the government's suspicion, and
a grand jury investigation began. Lawrence, Fipps, and Jones lied to
the grand jury: Lawrence stated that neither he nor any of his employ-
ees had received the Alrod cost information, Jones denied being pres-
ent when Fipps gave the information to Madry, and Fipps denied
giving the information at all.
3
Lawrence, Jones, and Fipps were charged with making false decla-
rations to the grand jury and conspiracy to defraud the United States.
Following a jury trial, they were convicted.
The guidelines range for their crimes was 10-16 months.1 Though
Fipps received an active prison sentence, the district court departed
downward for Lawrence and Jones. They were sentenced to probation
and six months' home confinement.
The government appeals the sentences of Lawrence and Jones. We
have jurisdiction under 18 U.S.C. § 3742(b).
II.
A sentencing court may depart from the guidelines only if the case
features an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing
Commission, and the circumstance is one for which a departure
"should result." United States v. Hummer , 916 F.2d 186, 192 (4th Cir.
1990), cert. denied, 499 U.S. 970 (1991). We review the district
court's decision to depart under an abuse of discretion standard. Koon
v. United States, 116 S.Ct. 2035, 2046-2048 (1996). Each guideline
carves out a "heartland" of typical cases; consequently, if a circum-
stance is typical for the offense, it provides no basis for a departure.
Id. at 2043. Moreover, reliance on an erroneous legal ground for
departure is always an abuse of discretion, id. at 2045, and departures
on grounds not mentioned in the guidelines should be"highly infre-
quent." Id. at 2047. With these principles in mind, we turn to the pres-
ent case.
Why did the district court depart? First, the court was impressed by
the defendants' exemplary lives. Both were 52 years old, had no crim-
inal records, had served in the military, and had superb reputations in
the community. Both had risen from humble beginnings to success in
legitimate business. In the context of these industrious, law-abiding
lives, the court found that the offense conduct was aberrational.
_________________________________________________________________
1 Criminal History Category I and Offense Level 12 yield this range.
4
As to Lawrence, the court also took into account that his 80
employees would likely lose their jobs if he were jailed and that his
business would suffer significant collateral consequences (like debar-
ment from government contracts and civil liability) that mitigated the
need for imprisonment.
These circumstances cannot justify a departure. The age of the
defendant is not ordinarily relevant unless he is elderly and infirm.
U.S.S.G. § 5H1.1. The district court suggested that there is a differ-
ence between a 22-year-old with no record and a 52-year-old, and the
older man should receive credit for obeying the law longer. This anal-
ysis assigns direct relevance to age per se, which is precisely what
§ 5H1.1 forbids. In addition, we note that the defendants' ages are
typical of those charged with similar crimes.
A crime-free life simply places one in Criminal History Category
I. The guidelines recognize no gradations among previously law-
abiding defendants. One could argue that there is a great variety of
morality among the non-criminal element of our society, and a sen-
tencing court ought to be able to take a defendant's prior good deeds
into account. The Sentencing Commission fully considered this
option and chose not to adopt it. U.S.S.G. § 5H1.11 (past good deeds,
military service, etc., "not ordinarily relevant"). Though § 5H1.11
leaves the door ever so slightly ajar for a defendant of truly extraordi-
nary past virtue, our precedent establishes that neither Lawrence nor
Jones can open it. See United States v. Rybicki , 96 F.3d 754 (4th Cir.
1996) (defendant was a highly-decorated Vietnam veteran, had saved
an innocent civilian during the My Lai massacre, and had served in
the Secret Service; these good deeds did not warrant a departure);
United States v. McHan, 920 F.2d 244, 247 (4th Cir. 1990) (defen-
dant's work history, family ties and responsibilities, and extensive
contributions to town's economic well-being could not justify down-
ward departure).
The guidelines do countenance downward departure for a "single
act[ ] of aberrant behavior." U.S.S.G., Ch.1, Pt. A, Introduction, ¶
4(d) (emphasis added). "Aberrant" means something more than a per-
son's first offense -- else Criminal History Category I is meaningless
-- and the requirement of a "single" act excludes any scheme involv-
ing planning or conduct over a period of time.
5
A single act of aberrant behavior suggests "a spontaneous
and seemingly thoughtless act rather than one which was the
result of substantial planning because an act which occurs
suddenly and is not the result of a continued reflective pro-
cess is one for which the defendant may be arguably less
accountable."
United States v. Glick, 946 F.2d 335, 338 (4th Cir. 1991) (quoting
United States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990)). The fraud
took a good deal of planning, and it was followed by false grand jury
testimony many months later. This conduct cannot constitute a "single
act of aberrant behavior."
The "collateral consequences" to Lawrence Landscaping are not at
all atypical in a government contractor fraud case. Indeed, they define
the paradigm: one would expect the government to refuse to contract
with those who have defrauded it. Because these consequences are
typical of the offense, they offer no basis for departure.
Lastly, the court was concerned that Lawrence Landscaping's 80
employees, many of them downtrodden folk who could not easily find
jobs elsewhere, might lose their jobs if Lawrence were in jail. The
government again points out that fraud by government contractors
almost always involves a business, often a small one like Lawrence
Landscaping, and jailing the boss puts the business at peril. There is
nothing atypical here.2 In addition, the government notes that the
guidelines expressly discourage departures on account of the needs of
a defendant's family,3 and asks rhetorically whether we should be
more sympathetic to the displaced worker in the unemployment office
or the displaced child in the orphanage. As for all good rhetorical
questions, the answer is self-evident.
_________________________________________________________________
2 The Third and Sixth Circuits have reached similar conclusions.
United States v. Sharapan, 13 F.3d 781, 784-786 (3rd Cir. 1994); United
States v. Rutana, 932 F.2d 1155, 1158 (6th Cir.), cert. denied, 502 U.S.
907 (1991). But see United States v. Milikowsky , 65 F.3d 4 (2nd Cir.
1995).
3 U.S.S.G. § 5H1.6; see United States v. Weddle, 30 F.3d 532, 540-541
(4th Cir. 1994) (defendant's status as a single parent was "unfortunate"
but not atypical).
6
The sentences are vacated, and the cases are remanded with
instructions to resentence the defendants within the prescribed 10-16
months range.
VACATED AND REMANDED
7
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77 F.3d 486
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Evelyn HOLLIMAN, as Administratrix of the Estate of ChesterRay Holliman, the deceased and on her own behalf, Appellant,v.CITY of Marked Tree, Arkansas, a Municipal entity; JackRichardson, Marked Tree, Arkansas Police Officer;Rick Crum, Jailer of the Marked Tree,Arkansas City Jail, Appellees.
No. 95-2271.
United States Court of Appeals, Eighth Circuit.
Submitted: February 16, 1996.Filed: February 22, 1996.
Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
PER CURIAM.
1
Evelyn Holliman appeals the district court's1 order granting summary judgment to defendants in her 42 U.S.C. § 1983 action. We affirm.
2
Evelyn Holliman filed this complaint as the administratrix of the estate of her deceased husband, Chester Holliman, and also on her own behalf as Chester's widow. Defendants moved for summary judgment. After Holliman did not respond, the district court filed an order directing her to do so within seven days; the court noted that if Holliman failed to respond, the court "[would] grant defendants' motion, if appropriate." Eight days later, Holliman telefaxed to the court a motion for an extension of time to respond to defendants' motion. She attached a supporting affidavit by one of her attorneys, State Senator Roy C. Lewellen, who attested, among other things, that he had been in legislative session; that his co-counsel had been unable to assist in Holliman's case because of scheduling conflicts; and that he needed to complete discovery in order to fully respond to defendants' summary judgment motion.
3
After defendants responded, the district court denied Holliman's motion for an extension of time, and proceeded to the merits of defendants' summary judgment motion. Concluding that Holliman had failed to go beyond her pleadings and controvert the information in defendants' affidavits, the court granted summary judgment for defendants on Holliman's federal claims, and dismissed without prejudice Holliman's pendent state law claims. Holliman then filed a motion for reconsideration, which the court denied, and this appeal followed.
4
Holliman argues the court erred in granting summary judgment prior to the completion of discovery. We disagree. Although Federal Rule of Civil Procedure 56 does not require district courts to allow parties to conduct discovery before entering summary judgment, a "party defending a summary judgment motion before discovery is adequate may request the court to postpone ruling on the motion until the discovery can be conducted." Humphreys v. Roche Biomedical Lab., Inc., 990 F.2d 1078, 1081 (8th Cir.1993) (citing Rule 56(f)). The party must do so, however, by affirmatively showing why the party cannot respond to the movant's affidavits, and how postponement of a ruling will enable the party to rebut the movant's showing of the absence of a genuine issue of fact. Id.
5
The district court here warned Holliman of its intent to rule on the summary judgment motion if she did not respond within seven days; when Holliman responded eight days later with her request for additional time, she merely relied on her attorneys' schedules and conclusory statements that completion of discovery was necessary to fully respond to defendants. We conclude that the district court did not abuse its discretion in denying Holliman's motion for an extension of time. See id.
6
Holliman also argues that the district court erred in refusing to stay proceedings, as required by Arkansas law, based on Lewellen's status as a state legislator. Holliman first raised this "legislative-immunity" claim in a single statement in an affidavit attached to her motion for reconsideration. We note that the Arkansas statute addressing legislative immunity--Ark. Code Ann. § 16-63-406 (Michie 1987)--by its terms, properly limits its stay-of-proceedings mandate to "courts of this state." We also note that Holliman was represented by two other attorneys in addition to Lewellen. See McConnell v. State, 302 S.W.2d 805, 807 (Ark.1957). We conclude the district court did not abuse its discretion in denying Holliman's motion for reconsideration. See Twin City Constr. Co. v. Turtle Mountain Band of Chippewa Indians, 911 F.2d 137, 139 (8th Cir.1990); Sanders v. Clemco Indus., 862 F.2d 161, 169 (8th Cir.1988).
7
Accordingly, we affirm.
1
The HONORABLE STEPHEN M. REASONER, Chief Judge, United States District Court for the Eastern District of Arkansas
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Opinion filed August 7, 2014
In The
Eleventh Court of Appeals
__________
No. 11-12-00326-CR
__________
AMMIE LUCILLE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Midland County, Texas
Trial Court Cause No. CR137834
MEMORANDUM OPINION
Ammie Lucille Smith appeals her jury conviction of the misdemeanor
offense of false report to a peace officer.1 The trial court assessed Appellant’s
punishment at 180 days in jail, probated for a term of one year, and a fine of
$1,500. We affirm.
1
See TEX. PENAL CODE ANN. § 37.08 (West Supp. 2013).
I. Background
Prior to trial, Appellant filed an affidavit regarding indigence, in which she
stated that she had a monthly income of almost $2,000. Based on the affidavit, the
trial court assigned Appellant court-appointed counsel.
After the jury found Appellant guilty of the offense of false report to a peace
officer, the trial court ordered Appellant to reimburse Midland County for the cost
of her court-appointed attorney. Appellant’s attorney then filed a notice of appeal
and a motion to withdraw. In the motion to withdraw, counsel informed the trial
court that Appellant had requested that he withdraw. The trial court granted the
motion.
When this court first notified Appellant that her brief was due, we received a
pro se response in which Appellant stated that she needed more time to find an
attorney. We then abated this appeal, notified Appellant of the abatement, and
remanded the case to the trial court so that it could conduct a hearing to determine
the following: whether Appellant was indigent and, if so, whether she desired to
have counsel appointed for appeal; whether Appellant had retained counsel; and
whether Appellant wished to continue this appeal.
Upon remand, the trial court set this case for a hearing. Although the county
clerk duly notified Appellant of the hearing, Appellant failed to appear.
Consequently, the trial court was unable to make any of our requested
determinations.
This court then once again notified Appellant that her brief was due for
filing. In response, Appellant filed pro se correspondence that we assume is meant
to serve as her brief.
II. Analysis
We find that Appellant’s brief is insufficient to meet the requirements
imposed by TEX. R. APP. P. 38.1. See McDuff v. State, 939 S.W.2d 607, 613 (Tex.
2
Crim. App. 1997) (holding that an insufficiently briefed point of error presents
nothing for review). Although we give a pro se appellant some latitude in
complying with the Rules of Appellate Procedure, Appellant’s brief fails to meet
almost all of the requirements.2 See Perez v. State, 261 S.W.3d 760, 763 n.2 (Tex.
App.—Houston [14th Dist.] 2008, pet. ref’d) (holding that a pro se litigant is held
to the same standards as a licensed attorney and must comply with applicable laws
and rules of procedure).
Appellant’s brief does not identify the parties involved in this case and
contains no statement of the case and no prayer. See TEX. R. APP. P. 38.1(a), (d),
(j). Appellant’s brief also fails to allege specific points of error and contains no
legal authority or argument. See TEX. R. APP. P. 38.1(f), (i). Although Appellant
provides a recitation of the facts, she does not identify where those facts can be
found within the appellate record. See TEX. R. APP. P. 38.1(g); Narvaiz v. State,
840 S.W.2d 415, 430 (Tex. Crim. App. 1992) (holding that appellant waived any
error by failing to identify where in the record the alleged error occurred).
It is apparent from the tenor of Appellant's brief that she is dissatisfied with
her conviction; however, dissatisfaction alone is not enough to sustain an appeal.
See Payne v. State, No. 14-93-00509-CR, 1995 WL 321181, at *1 (Tex. App.—
Houston [14th Dist.] May 25, 1995, pet. ref’d) (not designated for publication).
We also note that Appellant is not entitled to special consideration solely because
she is pro se. See Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988).
There is nothing but the record presented for our review. We have reviewed
the record and have concluded that no fundamental error occurred in this case. See
2
In her brief, Appellant states that she is unable to afford an attorney. This court is not the proper
place to address such a claim. Appellant was given an opportunity to present her claim of indigence to
the trial court, and she failed to appear. Without any reference in the record to her retention of counsel or
any appointment of counsel, we are constrained to assume that Appellant chose to appear and proceed pro
se in this appeal.
3
Ashcraft v. State, 802 S.W.2d 905, 906 (Tex. App.—Fort Worth 1991, no pet.);
Meza v. State, 742 S.W.2d 708, 709 (Tex. App.—Corpus Christi 1987, no pet.);
see also TEX. R. APP. P. 38.8(b)(4).
III. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
August 7, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
4
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869 F.2d 1493
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.Matthew TAYLOR, Plaintiff-Appellant,v.The COMMONWEALTH OF KENTUCKY; United States of America,Defendants-Appellees.
No. 88-5691.
United States Court of Appeals, Sixth Circuit.
Feb. 1, 1989.
Before KENNEDY and DAVID A. NELSON, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.
ORDER
1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Plaintiff filed this complaint alleging various defendants violated several of plaintiff's civil rights. Included in the complaint were claims of improper congressional representation, defamation, stolen property, and false imprisonment. The district court sua sponte dismissed the complaint as frivolous under 28 U.S.C. Sec. 1915(d) and this appeal followed. The parties have briefed the issues, plaintiff proceeding pro se.
3
Upon consideration, we find the district court correctly dismissed the instant complaint. Vague, conclusory allegations of improper conduct will not operate to state a claim for relief. Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir.1987).
4
Accordingly, the district court's judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.
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433 N.E.2d 54 (1982)
In re the MARRIAGE OF Jane Ellen BRADLEY, Petitioner-Appellant, and
Michael E. Bradley, Respondent-Appellee.
No. 1-1081A292.
Court of Appeals of Indiana, First District.
March 29, 1982.
Duge Butler, Jr., Butler, Brown, Hahn & Little, P.C., Indianapolis, for petitioner-appellant.
James L. Brand, Free, Brank, Tosick & Allen, Greenfield, for respondent-appellee.
ROBERTSON, Judge.
Jane Ellen Bradley appeals a judgment entered by the Hancock Circuit Court on June 14, 1981 in favor of her former husband, Michael E. Bradley. Jane Bradley petitioned the court for appointment of a real estate commissioner to sell the property she and Michael Bradley owned as tenants in common. The trial court denied the motion.
We affirm.
The marriage of Jane Ellen Bradley and Michael E. Bradley was dissolved on September 7, 1979. The marital home was awarded to them as tenants in common and then was to be sold whenever the earliest of the three following possible occurances arose:
a. At the end of ten (10) years from the date of the dissolution of this marriage; or
*55 b. Upon the husband's remarriage; or
c. In the event that the wife became disabled and was unable to work for a continuous period of 180 days due to her disability.
On or about January 30, 1981, the husband began cohabiting with another woman. Mrs. Bradley sought appointment of a commissioner to sell the home pursuant to the terms of the property settlement agreement on the theory that for all intents and purposes, Mr. Bradley was remarried.
Mrs. Bradley contends that the trial court erred in denying appointment of a commissioner. She points out that Mr. Bradley is enjoying all the benefits of marriage without incurring the legal consequences. She claims his conduct defrauds her of her right to have the property sold.
Mr. Bradley maintains that the property settlement agreement speaks for itself because its provisions are clearly set forth. He asserts that since he has not in fact remarried, Mrs. Bradley has no right to force a sale of the property.
The law in Indiana has consistently encouraged parties to reach agreements upon dissolution of marriage. This is what Mr. and Mrs. Bradley did. On September 7, 1979, both parties signed a property settlement agreement which was incorporated into the divorce decree. The term "remarriage" was bargained for and decided upon as an express condition which would terminate Mr. Bradley's right to live in and have possession of the real estate.
Indiana courts have long held that they are not at liberty to make contracts for individuals. See Automobile Underwriters v. Camp, (1940) 217 Ind. 328, 27 N.E.2d 370; Workman v. Douglas, (1981) Ind. App., 419 N.E.2d 1340. The intent of the parties to a contract should be determined by the language employed in the document. It is only where the terms are ambiguous that an exception to this rule applies. Albert Johann & Sons Co. v. Echols, (1968) 143 Ind. App. 122, 238 N.E.2d 685.
In the present case, the terms of the agreement are clearly stated. None of the conditions decided upon have been met. Therefore, there is no right to have the property sold. For this reason, we uphold the decision of the trial court.
Judgment affirmed.
RATLIFF, P.J., and NEAL, J., concur.
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53 Ill. App.2d 172 (1964)
203 N.E.2d 20
John Sander, Inc., Plaintiff-Appellant,
v.
Robert R. Donnelly, Director of Labor of the State of Illinois, Defendant-Appellee.
Gen. No. 49,544.
Illinois Appellate Court First District, Third Division.
October 8, 1964.
*173 Phillip S. Makin, of Chicago (John C. Gekas, of counsel), for appellant.
William G. Clark, Attorney General of the State of Illinois, of Chicago (William C. Wines, Raymond S. Sarnow and A. Zola Groves, Assistant Attorneys General, of counsel), for appellee.
MR. JUSTICE DEMPSEY delivered the opinion of the court.
This appeal is from a judgment of the Circuit Court affirming the decision of the Director of Labor of the State of Illinois, that the appellant, John Sander, Inc., fell within certain liability provisions of the Unemployment Compensation Act. The principal issue is whether the court erred in upholding the determination of the Director that the appellant carried on its business as a corporation rather than as a partnership, and that three persons who worked for *174 the appellant were not partners but were employees of the corporation.
John Sander, Inc., an Illinois corporation, is engaged in the wholesale meat business. Originally it was a family business owned and operated by John Sander. In 1924 the concern was incorporated by the founder's son, Ernest J. Sander, in order to continue the business in his father's name and to retain customer good will. Ernest Sander was the president and sole stockholder of the company and was in complete charge of its operations. In 1957, Sander, who wanted to retire from active participation in the business, made an oral agreement with two employees, Frank M. Casper, Jr., and Kurt Juettner, whereby they were to operate the business together. Casper and Juettner were to devote their full time to the operation and management of the company and each was to receive base pay of $100 per week and a one-third share in the net profits at the end of each fiscal year. Ernest Sander was to continue as president and was to receive the same base pay and the remaining one-third share in all business profits. This agreement was reduced to writing in January of 1958; the parties to the agreement were John Sander, Inc., party of the first part, and Casper and Juettner, parties of the second part. Ernest Sander was not a party to the agreement, although in one place the agreement stated that it "may be revocable in the event of the death of first party by his Executor or the Trustee under his will...."
In 1957, Sander devoted his time to the business; among other things he trained Casper, who was at the time a minor without experience, in the wholesale meat field. Subsequently, Sander left the business in the hands of Casper and Juettner but returned occasionally to check on them and on the condition of the company. From 1957 until May, 1960, *175 Casper and Juettner devoted their entire efforts to running John Sander, Inc. In May of 1960 they quit the company after giving a week's notice of their intention to do so. Neither man was paid anything upon the dissolution of the agreement and neither received any share in the business.
During the period 1957 through 1960, John Sander, Inc., filed corporate income tax returns, signed by Ernest Sander, which listed John Sander, Inc., as taxpayer, Ernest Sander as president-treasurer, Casper as vice-president and Juettner as a director. The returns stated the compensation paid to each officer. During the same period and for the first quarter of 1960 social security returns were also filed by the same taxpayer. The returns listed Sander, Casper and Juettner among the firm's employees and gave the amount of wages paid them.
In 1961, the Director of Labor sent to John Sander, Inc., notice of assessment against it of $2,321.71, alleged to be due as the corporation's contribution under the Unemployment Compensation Act, Ill Rev Stats 1961, c 48. The Act provides that any "Employing Unit" employing more than four persons is required to make such a contribution. John Sander, Inc., served notice that it protested the assessment and requested a hearing.
At the hearing the parties stipulated that if Sander, Casper and Juettner were employees of John Sander, Inc., then the company did have four or more individuals in its employment and it was liable for the assessment made against it; that if, on the other hand, they were not employees, the company was not liable within the meaning of the statute.
[1] Ernest Sander, who was the only witness at the hearing, testified that the business had never been conducted as a corporate entity and that from 1957 on it had operated as a partnership between *176 himself, Casper and Juettner, and that the profits had been divided equally among the three of them. He stated that the corporate income tax returns filed by him were based on an internal revenue instruction for the preparation of such returns which provided that a partnership was entitled to be taxed as a domestic corporation if it so elected, and that he had withheld income taxes on the compensation paid to Casper and Juettner only at their request. He stated that he was neither an attorney nor an accountant and that listing the compensation paid to the officers of the corporation in the income tax returns and listing them as employees in the social security returns were technical errors.
The Unemployment Compensation Act provides:
"At any hearing held as herein provided, the determination and assessment that has been made by the Director shall be prima facie correct and the burden shall be upon the protesting employing unit or person to prove that it is incorrect." Ill Rev Stats 1961, c 48, § 680.
The Act further provides:
"At any hearing ... and in all judicial proceedings involving the review ... of any decision, order, ruling, determination and assessment, statement of benefit wages, or rate determination made by the Director, the finding or decision ... of the Director, sought to be reviewed, shall be prima facie correct, and the burden shall be upon the person seeking such review to establish the contrary." Chapter 48, section 703.
Findings of the Director of Labor on questions of fact will not be disturbed by a reviewing court unless they are against the manifest weight of the evidence and are not supported by evidence in the record. *177 Buchholz v. Cummins, 6 Ill.2d 382, 128 NE2d 900; Robert S. Abbot Pub. Co. v. Annunzio, 414 Ill. 559, 112 NE2d 101; Local No. 658, Boot & Shoe Workers Union v. Brown Shoe Co., 403 Ill. 484, 87 NE2d 625.
[2, 3] The policy governing review of administrative decisions in general is controlled by the Administrative Review Act. It provides: "The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct." Ill Rev Stats 1963, c 110, § 274. The determinations of an administrative agency will not be interfered with by a court of review unless the decision is against the manifest weight of the evidence. River Forest State Bank & Trust Co. v. Zoning Board of Appeals of Maywood, 34 Ill. App.2d 412, 181 NE 2d 1; Lesniak v. Department of Registration & Education of State, 24 Ill. App.2d 153, 164 NE2d 256.
[7] There was evidence supporting the theory that Sander, Casper and Juettner were working for themselves under a partnership arrangement and there was evidence supporting the theory that they were working for the corporation. The partnership theory was supported by the testimony of Sander, by the fact that he had been the sole owner of the business and considered Casper and Juettner his partners and by the oral and written agreements made with them which called for a sharing of the profits between the parties. This latter feature, the sharing of the profits of the enterprise was (in the absence of countervailing evidence that such profits were received in the payment of wages) prima facie evidence of the existence of the partnership. Ill Rev Stats 1961, c 106 1/2, § 7(4) (b). However, the evidence of a partnership was rebutted by contrary evidence. The employment theory was supported by various facts in evidence: the corporation was a party to the agreement; its income and social security tax returns *178 indicated that it was functioning as a corporation with salaried officers; the agreement said nothing about Casper and Juettner sharing in the losses of the business, in fact they left it because it was losing money; they were not co-owners of the business and did not regard themselves as such; they were subject to discharge for mismanagement; there was no distribution of partnership assets upon its dissolution; and upon their leaving the corporation functioned as before, others took their places and the corporation continued to file the same type of tax returns, listing the new personnel and the remuneration paid to them as employees.
[5] The Director of Labor was called upon to interpret the evidence as well as to weigh it. This he did and came to a reasonable conclusion which was supported by substantial evidence. His finding that John Sander, Inc., was operating as a corporation and not as a partnership and that the so-called partnership agreement was in reality an employment contract between the corporation and Casper and Juettner, was not against the manifest weight of the evidence. Under such circumstances this court will not interfere with his determination.
The judgment of the Circuit Court is affirmed.
Affirmed.
SCHWARTZ, P.J. and SULLIVAN, J., concur.
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906 F.2d 783
285 U.S.App.D.C. 89, 64 Ed. Law Rep. 349
Unpublished DispositionNOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.Stephen KOZUP, et al., Appellants and Cross-Appellees,v.GEORGETOWN UNIVERSITY, Appellee and Cross-Appellant.
Nos. 89-7124, 89-7125.
United States Court of Appeals, District of Columbia Circuit.
July 3, 1990.
Before WALD, Chief Judge, and MIKVA and CLARENCE THOMAS, Circuit Judges.
JUDGMENT
PER CURIAM.
1
These appeals were considered on the record from the United States District Court for the District of Columbia and on the briefs and arguments of counsel. The court has determined that the issues presented occasion no need for a published opinion. See D.C.Cir.R. 14(c). It is
2
ORDERED and ADJUDGED that the judgment from which these appeals have been taken, including the denial of costs to Cross-Appellant Georgetown University, be affirmed for the reasons stated in the attached memorandum.
3
The Clerk is directed to withhold issuance of the mandate until seven days after disposition of any timely petition for rehearing. See D.C.Cir.R. 15(b)(2).
MEMORANDUM
4
Matthew Kozup was born at Georgetown University Medical Center on January 10, 1983. In the days following his premature birth, Matthew suffered from hypovolemia (low blood volume) and, at one point, a pneumothorax (a collapsed lung). Doctors at Georgetown treated Matthew by giving him blood transfusions. Tragically, three of the transfusions were contaminated with the virus now known to cause AIDS. In mid-1986, Matthew died from AIDS-related infections. See Kozup v. Georgetown Univ., 663 F.Supp. 1048, 1050-53 (D.D.C.1987) (more fully reporting the facts), aff'd in part and vacated in part, 851 F.2d 437 (D.C.Cir.1988).
5
Matthew's parents, Stephen and Susan Kozup, sued Georgetown and the American Red Cross on several common-law and statutory tort theories. The district court granted both defendants' motions for summary judgment. Kozup, 663 F.Supp. at 1061. On appeal, this court affirmed the judgment in favor of the Red Cross; it affirmed the judgment in favor of Georgetown in most respects, but vacated the judgment on the Kozups' claim that Georgetown committed a battery by giving Matthew transfusions without first obtaining his parents' informed consent. Kozup, 851 F.2d at 440. On remand, the district court held a jury trial on the Kozups' battery claim. Georgetown prevailed. The Kozups now challenge various jury instructions given and evidentiary rulings made by the district court. In its cross-appeal, Georgetown complains that the court wrongly refused to award it its costs. We affirm the district court's judgment in all respects.
I. The Kozups' Allegations of Error
6
A. Instructions on Implied and Apparent Consent
7
The Kozups raise several challenges to the district court's jury instructions on the defenses of implied consent and apparent consent, J.A. at 851-54. Their objections rely largely on Canterbury v. Spence, 464 F.2d 772, 783 (D.C.Cir.), cert. denied, 409 U.S. 1064 (1972), which states that a medical patient's or his guardian's consent to treatment cannot shield a defendant from liability for battery unless the defendant, before obtaining consent, discloses the material risks of and alternatives to the proposed treatment.
8
The Kozups first assert that "the defenses of implied or apparent consent have no place in the context of consent to medical treatment in the 1980's," Brief for Appellants at 16, because these defenses sidestep Canterbury 's requirement of explicit disclosure. We disagree. Although Canterbury, 464 F.2d at 783, does say that to constitute a defense in a battery case, a patient's consent must be informed consent, the statement is dictum. See id. at 793 (holding that battery claim was barred by statute of limitations). We believe that when this issue squarely arises in the District of Columbia courts, those courts will adopt the majority rule: a doctor may defend against a battery claim by proving the patient's consent to treatment, even if the consent is not fully informed. See, e.g., Cobbs v. Grant, 8 Cal.3d 229, 240, 502 P.2d 1, 7-8, 104 Cal.Rptr. 505, 512 (1972) (in bank); Largey v. Rothman, 110 N.J. 204, ----, 540 A.2d 504, 506 (1988) (per curiam); Oates v. New York Hosp., 131 A.D.2d 368, ----, 517 N.Y.S.2d 6, 7 (1987); Kohoutek v. Hafner, 383 N.W.2d 295, 298-99 (Minn.1986). The Kozups argue that when a doctor has failed to disclose relevant information, a patient's implied or apparent consent provides no defense. That would be true in a negligence action, but it is not true in this action for battery. See Kozup, 851 F.2d at 440 ("Georgetown's problem with the battery claim is not that there was a failure to inform before obtaining consent, but that there was no consent at all."); see also id. at 439 (affirming summary judgment against Kozups on negligence claim).
9
The Kozups' next argument, that the district court erred by instructing the jury on implied and apparent consent rather than instructing on express consent alone, reflects a misreading of Canterbury. Canterbury discusses whether a patient's consent must be informed. It does not say that such consent must be express. These issues are not related. The district court properly instructed that consent to treatment can be express, implied, or apparent; a contrary rule, requiring doctors to withhold treatment until a patient or guardian says or writes "I consent," would do some patients great harm.
10
The Kozups also claim that the district court erred by giving them the burden of showing that they did not consent to Matthew's blood transfusions. See J.A. at 850-52 (jury instructions). Because District of Columbia law makes "unpermitted" contact an element of a battery plaintiff's prima facie case, such a plaintiff must indeed prove absence of consent. Marshall v. District of Columbia, 391 A.2d 1374, 1380 (D.C.1978); see also Restatement (Second) of Torts Sec. 10 comment c (1965) (discussing "consent to invasions of the interests of personality, in which the burden is on the plaintiff to prove absence of consent"). Thus, we find no fault with the court's instructions on consent.
B. Instructions on Necessity and Emergency
11
The Kozups next argue that the district court erred by failing to instruct the jury that necessity--the Georgetown doctors' belief that Matthew would die without blood transfusions--is no defense to battery. Although the Restatement (Second) makes clear that necessity cannot shield a battery defendant from liability, see Restatement (Second) of Torts Sec. 13 comment c, we cannot say that the court erred when it refused to caution the jury regarding this inapposite defense. The Kozups stress that at trial, "Georgetown played up its belief that, if Matthew did not receive the blood transfusions when they were administered, he would have died...." Brief for Appellant at 36. In our view, the relevant testimony, J.A. at 531-625, did not suggest a necessity defense so strongly that the lack of an anti-necessity-defense instruction substantially prejudiced the Kozups.
12
In addition, the district court's observation that the Kozups' proposed instruction on necessity would "undercut[ ] instructions on emergency and would confuse the jury," J.A. at 825, was well-founded. Much of the testimony that allegedly suggested a necessity defense actually pertained to the question whether the Georgetown doctors gave Matthew transfusions in response to "sudden, urgent, unexpected or unforeseen serious happening[s] demanding immediate action." J.A. at 850 (jury instructions' definition of emergency). The Kozups do not deny that the evidence tending to show necessity (which would provide no defense, see Restatement (Second) of Torts Sec. 13 comment c) overlapped with the evidence tending to show an emergency (which would remove the need for consent, see Kozup, 851 F.2d at 439). Instead, they assert that "[t]he premise of this Court's [earlier] opinion was that the medical treatment at issue was not an emergency.... 851 F.2d at 440...." Brief for Appellant at 35 n. 18.
13
This court's earlier opinion, in explaining the need for a remand, did imply that Georgetown had not yet established an emergency defense. See Kozup, 851 F.2d at 439 (listing "bona fide medical emergency" and implied consent among defenses to battery, then analyzing only implied consent); id. at 440 (noting that Georgetown had cited no cases in which a battery defendant who had not proved express consent had secured "a directed verdict or a summary judgment in a non-emergency circumstance"). The court did not, however, hold that an emergency was lacking as a matter of law, and it did not direct the district court to grant the Kozups summary judgment on the emergency issue. This court's oblique comments on the emergency issue, therefore, did not preclude the district court from instructing the jury on that issue. The Georgetown doctors' testimony at trial, moreover, gave a sufficient basis for an emergency instruction.1 For these reasons, we conclude that the court properly instructed the jury on emergency and properly refused to instruct on necessity.
C. Instructions on Alternatives
14
The Kozups contend that the district court erred by requiring them to prove that had Georgetown sought their express consent to the blood transfusions, Matthew's treatment would have taken a different course. They also argue that the court erroneously excluded their rebuttal to Georgetown's evidence that it had no choice but to give Matthew immediate transfusions. We agree, as do both parties, that evidence on alternatives only concerned how much marginal harm any battery caused--a damages issue that was irrelevant in the liability phase of this bifurcated trial. Since, however, any evidence tending to show a lack of alternatives was also relevant on the issue of emergency, the court's rulings on alternatives constituted harmless error. See Fed.R.Civ.P. 61.
D. Other Allegations of Error
15
None of the remaining assertions of error by the Kozups justifies reversing the judgment.
II. Georgetown's Motion for Costs
16
Although the district court did not state its reasons for denying Georgetown its costs, see J.A. at 321, the record convinces us that the court did so in recognition of how this case has emotionally and financially burdened the Kozups. The court did not abuse its discretion by relying on these considerations.
1
In their reply brief, the Kozups argue that Matthew's condition did not, as a matter of law, involve any "sudden, urgent, unexpected or unforeseen serious happening[s] demanding immediate attention." J.A. at 850 (emphasis added); see Reply Brief for Appellants at 5-8. In our view, the district court properly left this determination to the jury. Although the most sudden complication, the pneumothorax, did not arise until after Matthew had received one contaminated transfusion, see id. at 6-8, the jury was entitled to consider Matthew's hypovolemia an unexpected complication, or at least an urgent one
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49 F.2d 1046 (1931)
WEYENBERG SHOE MFG. CO.
v.
HOOD RUBBER CO.
Patent Appeal No. 2756.
Court of Customs and Patent Appeals.
May 27, 1931.
*1047 Casanave Young, of Milwaukee, Wis. (George W. Wright, of Washington, D. C., of counsel), for appellant.
Charles C. Gammons, of Boston, Mass., for appellee.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
GARRETT, Associate Judge.
This is a trade-mark opposition proceeding in which appellee, Hood Rubber Company opposes the registration by appellant, Weyenberg Shoe Manufacturing Company, of a mark comprising the words "Red Arrow" imposed upon a representation of an arrow, which representation has in the feathered portion thereof two concentric circles, within the smaller of which is placed the letter "W."
The mark sought to be registered is stated to have been used by appellant for leather shoes continuously since August, 1923. The application was filed March 29, 1928.
Appellee, in opposing, relies upon certain registrations by it of marks for use on rubber boots and shoes, rubber overshoes, and rubber sole canvas shoes, which marks have been placed in evidence. The first of these, which bears the registration date of January 29, 1907, is for two arrows crossed diagonally; the second is for the symbol of a single arrow, registered February 12, 1907; a third is for a double-headed arrow having the word "Hood" inserted between the heads, the word being crossed by the figure of an arrow. This was registered March 23, 1926, the word "Hood" being disclaimed "except in the particular connection and association in which it appears. * * * "The fourth registration, under date of July 6, 1926, is for the word "Arrow," unaccompanied by any symbol, the letters being perpendicularly arranged.
Use of these marks by appellee on the goods described is shown by the proof to have covered a long period, antedating any use by appellant of its mark.
The Examiner of Interferences held the goods of the respective parties to be of the same descriptive properties, citing Boston Rubber Shoe Co. v. Abramowitz, 47 App. D. C. 199, and also held that the resemblances of the marks "predominate over the differences." Registration was refused, and, upon affirmation of his decision by the Commissioner of the United States Patent Office, the appeal was taken to this court.
We think there was no error in the decision appealed from.
While in the Abramowitz Case, supra, the Court of Appeals of the District of Columbia did not specifically hold "rubber boots and shoes" to be of the same descriptive properties as "leather shoes," deciding the issue rather upon the identity of the marks, it did say:
"* * * We are disposed to hold that they [the marks] are used upon goods of the same descriptive qualities within the provisions of the trademark law."
Attention may properly be directed to decisions of this court rendered in other cases since the decisions of the tribunals of the Patent Office in the instant case.
In Goodrich Co. v. Hockmeyer et al., 40 F.(2d) 99, 17 C. C. P. A. 1068, we held men's, women's, and children's knickerbockers and other articles of wearing apparel enumerated in Hockmeyer's registration to be of the same descriptive properties as boots and overshoes of rubber and fabric, and directed the cancellation of a mark "Zip-On" on account of its resemblance to the mark "Zipper."
In the recent case of Cluett, Peabody & Co., Inc., v. Wright, 46 F.(2d) 711, 18 C. C. P. A. ___, it was held that leather belts were of the same descriptive properties as belts made of fabric and used largely as bathing belts. It was also there held that the mark "Air-O" so closely resembled "Arrow" as to render the former subject to cancellation under proceedings begun by the owners of the latter.
*1048 In both of the foregoing decisions authorities are cited.
It may be true, as argued in the very good brief of learned counsel for appellant, that the goods here involved are not of the same species. That depends upon the meaning given to the word "species," which, it may be said, is not found in section 5 of the Trade-Mark Registration Act of February 20, 1905 (15 USCA § 85). It can hardly be successfully maintained, however, that the goods are not of the same class, under the construction given that word by the courts, and, being of the same class, under our decision in Cheek-Neal Coffee Company, etc., v. Hal Dick Manufacturing Co., 40 F.(2d) 106, 17 C. C. P. A. 1103, 1104, and numerous other cases, they are of the same descriptive properties.
Appellant's words are "Red Arrow" placed upon a symbol of an arrow. It is stated in its application that the symbol is not limited to any particular color. It is familiar law that in trade-mark procedure a symbol must be given the same meaning as the word which tells what the symbol is.
The issue here, therefore, is between "Arrow" and "Red Arrow" to be applied to goods of the same descriptive properties.
Attention has been directed here, as in many other cases coming before us, to the alleged fact that there have been numerous registrations to other parties of the words and symbols at issue, some of them apparently for use on goods of the very character here involved. We have not traced this matter, because that fact, even when shown, is not of aid to one seeking a registration. American Fruit Growers, Inc., v. Michigan Fruit Growers, Inc., 38 F.(2d) 696, 17 C. C. P. A. 906.
The soundness of the rule there stated must be obvious to all upon full consideration when it is remembered that one purpose of the Trade-Mark Registration Act is to aid legitimate commerce by preventing confusion of goods either as to origin or in their sale. If a confused situation already exists, that should not be held to justify an act which would confuse still further. Whatever the rule in cases in equity involving unfair competition, multiplicity of registrations cannot properly be of weight in the statutory proceeding relating to registration. American Fruit Growers, Inc., v. Michigan Fruit Growers, Inc., 38 F.(2d) 696, 17 C. C. P. A. 906.
We agree with the holdings of the tribunals of the Patent Office that, by reason of the close resemblance of the marks, confusion would likely result from their application to goods of the same descriptive properties.
The decision of the Commissioner of Patents is affirmed.
Affirmed.
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539 F.2d 710
Campbellv.Gadsden County District School Board
No. 75-1998
United States Court of Appeals, Fifth Circuit
9/17/76
N.D.Fla., 534 F.2d 650
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802 F.2d 470
Greenfieldv.D.O.T., F.A.A.
85-1721
United States Court of Appeals,Federal Circuit.
8/1/86
MSPB
Affirmed
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7237
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MOSES KING,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:05-cr-00218-DCN-3; 2:08-cv-70068-DCN)
Submitted: March 29, 2012 Decided: May 2, 2012
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Moses King, Appellant Pro Se. Matthew J. Modica, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Moses King seeks to appeal the district court’s order
denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2011)
motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (2006). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the motion states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
We have independently reviewed the record and conclude
that King has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal
2
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
3
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42 Cal.App.3d 515 (1974)
116 Cal. Rptr. 57
DONALD P. STEINMEYER et al., Plaintiffs and Respondents,
v.
WARNER CONSOLIDATED CORPORATION et al., Defendants and Appellants.
Docket No. 33771.
Court of Appeals of California, First District, Division Four.
October 16, 1974.
*517 COUNSEL
Collette & Ziegler, John M. Collette and John V. Erickson for Defendants and Appellants.
Miller, Starr & Regalia, Edmund L. Regalia and Leslie A. Johnson for Plaintiffs and Respondents.
OPINION
CHRISTIAN, J.
Defendants Warner Consolidated Corporation and Warner National Corporation (hereinafter "Warner") appeal from a preliminary injunction restraining presentation of documents necessary to obtain payment under a bank letter of credit. The instrument had been procured by respondent Donald P. Steinmeyer (hereinafter "Steinmeyer") to assure payment of sums owing upon the purchase by him, from Warner, of the entire capital stock of Tahoe Sierra Development Corporation.
Steinmeyer executed and delivered to Warner several promissory notes, one of which entitled Steinmeyer to offset "The amount of any loss, liability or damage suffered by or in connection with the provisions of this agreement." Steinmeyer also caused to be delivered to Warner letters of credit issued by the Bank of America to guarantee payment of the promissory notes. The letter of credit here in question called for payment by the bank upon presentation of the letter of credit, the promissory note and a statement by at least one of Warner's officers that Steinmeyer had defaulted in paying the note.
Before the letter of credit had been presented for payment. Steinmeyer notified Warner and the bank that he was exercising the offset rights provided in the note, claiming that Warner had failed to disclose several substantial liabilities of Tahoe Sierra which affected the value of the stock. Steinmeyer declared in the notice that after setting off the undisclosed liabilities he would pay Warner only $45,041 of the $252,000 which had been promised in the note.
*518 Steinmeyer then sued Warner and the bank, praying for relief including injunctions against Warner from demanding payment on the letter of credit and against the bank from making payment thereon. The only preliminary relief granted by the trial court was an injunction against Warner, prohibiting presentation to the bank of one of the documents needed to authorize payment of the letter of credit.
The parties have argued at length the question whether it would be contrary to the provisions of Commercial Code section 5114 for the court to enjoin the bank from honoring the letter of credit. We do not reach that issue in the present appeal. The trial court did not enjoin payment by the bank; the preliminary injunction only enjoined Warner from presenting to the bank a statement that Steinmeyer had not performed in accordance with the terms of the promissory note. The issue on appeal is whether injunctive relief is available to Steinmeyer.
(1a) Warner contends the letter of credit should be given effect without regard to Steinmeyer's claimed right of setoff. The letter of credit calls for payment upon presentation with a statement from Warner that Steinmeyer had defaulted on the promissory note. But as between Steinmeyer and Warner the letter of credit cannot be construed in isolation from the underlying agreement and the promissory note. The letter of credit was contemporaneous with the agreement and the note; it was one part of a complex arrangement for the sale of the Tahoe Sierra stock. The several instruments must therefore be construed together. (Civ. Code, § 1642; Mayers v. Loew's, Inc. (1950) 35 Cal.2d 822, 827 [221 P.2d 26]; Goodman v. Severin (1969) 274 Cal. App.2d 885, 895 [79 Cal. Rptr. 555]; 1 Witkin, Summary of Cal. Law (8th ed. 1973) Contracts, § 525, pp. 447-448; 12 Cal.Jur.2d, Contracts, § 123, pp. 333-335.)
The agreement contained an undertaking by Warner to indemnify Steinmeyer against any undisclosed liabilities of Tahoe Sierra and authorized Steinmeyer to set off against the note "The amount of any loss, liability or damage suffered by or in connection with the provisions of this agreement...."
A right of offset is also provided in the promissory note. (2) An "offset" may be defined as a claim that serves to counterbalance or to compensate for another claim. (See Webster's [unabr.] New Internat. Dict. (3d ed. 1967) p. 1567; Lalime v. Desbiens (1947) 115 Vt. 165, 168 [55 A.2d 121, 123]; Leonard v. Charter Oak Life Ins. Co. (1895) 65 Conn. 529, 537 [33 A. 511, 513].) (1b) The promissory note permits Steinmeyer to offset "The amount of any loss, liability or damage suffered by or in connection with the provisions of [the] agreement...." The claims *519 asserted by Steinmeyer consist of several liabilities, affecting the value of the stock, which were allegedly not disclosed on Tahoe Sierra's financial statement. If proved, these claims may indeed fall within one of the grounds for indemnification specified in the stock purchase agreement. They may thus give rise to a right of offset against sums due under the promissory note.
The letter of credit called for payment upon presentation of, among other things, "A statement executed by a duly qualified officer or officers of Warner Consolidated Corporation, its successors or assigns, that Donald P. Steinmeyer did not perform in accordance with the terms and conditions of the above-mentioned promissory note and that the amount of the draft is therefore due and owing." Warner would construe the quoted passage as vesting in it the sole, unrestricted power to determine whether Steinmeyer had complied with the terms of the note. This construction, however, would be incongruous with other aspects of the transaction. Both the stock purchase agreement and the promissory note expressly reserve to Steinmeyer the right to offset specified claims against sums due under the note. It would be anomalous to empower Warner to circumvent Steinmeyer's rights of offset simply by seeking payment of the letter of credit. (3) "In every contract there is an implied covenant of good faith and fair dealing that neither party will do anything which injures the right of the other to receive the benefits of the agreement." (Brown v. Superior Court (1949) 34 Cal.2d 559, 564 [212 P.2d 878]; see also Crail v. Blakely (1973) 8 Cal.3d 744, 749-750 [106 Cal. Rptr. 187, 505 P.2d 1027].) "This covenant not only imposes upon each contracting party the duty to refrain from doing anything which would render performance of the contract impossible by any act of his own, but also the duty to do everything that the contract presupposes that he will do to accomplish its purpose." (Harm v. Frasher (1960) 181 Cal. App.2d 405, 417 [5 Cal. Rptr. 367]; accord Bewick v. Mecham (1945) 26 Cal.2d 92, 99 [156 P.2d 757, 157 A.L.R. 1277].) We conclude that Warner has no right to deny Steinmeyer the benefits of his offset rights.
(4) Warner contends that the granting of an injunction against presentation of the letter of credit was nevertheless improper. An injunction cannot be granted to prevent breach of a contract which is not specifically enforceable. (Code Civ. Proc., § 526, 2d subd. 5.) It has been held repeatedly, however, that an agreement to transfer stock of peculiar value may be specifically enforceable. (Gilfallan v. Gilfallan (1914) 168 Cal. 23, 26 [141 P. 623]; Kaneko v. Okuda (1961) 195 Cal. App.2d 217, 234 [15 Cal. Rptr. 792]; Glascock v. Sukumlyn (1955) 131 Cal. App.2d 587, 593 [281 P.2d 90]; Korabek v. Weaver Aircraft Corp. (1944) 65 Cal. App.2d *520 32, 39 [149 P.2d 876].) The Tahoe Sierra stock was apparently wholly owned by Warner and not readily obtainable on the open market. The trial court could reasonably have concluded that the stock had a peculiar value as to render the agreement specifically enforceable. Therefore, Code of Civil Procedure section 526 does not preclude the injunction.
(1c) Steinmeyer had alleged that Warner and affiliated parties were foreign corporations with few assets in this state and that as a consequence any judgment against them might be satisfied only through litigation elsewhere. Warner contends that these allegations, even if true, do not establish grounds for injunctive relief. But the trial court has broad power to grant a preliminary injunction where it appears that a party is threatening to commit an act which would render the court's ultimate judgment ineffectual or require a multiplicity of suits. (Code Civ. Proc., § 526.)
It was within the trial court's discretionary power to determine whether Steinmeyer should be given injunctive relief. (See Weingand v. Atlantic Sav. & Loan Assn. (1970) 1 Cal.3d 806, 819-820 [83 Cal. Rptr. 650, 464 P.2d 106]; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527-528 [67 Cal. Rptr. 761, 439 P.2d 889].) No abuse of discretion appears.
Finally, Warner contends that a preliminary injunction should not have been granted because the allegations of the complaint were not verified nor supported by affidavit. This contention is contrary to the facts; although the verification of the complaint was omitted from the clerk's transcript, reference to the trial court's file has established that the complaint was verified by an officer of one of the plaintiff corporations.
Affirmed.
Rattigan, Acting P.J., and Emerson, J.,[*] concurred.
NOTES
[*] Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.
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912 S.W.2d 860 (1995)
Russell HARRIS, Appellant,
v.
Dennis J. MOORE d/b/a Moore's Trucking, Appellee.
No. 03-95-00146-CV.
Court of Appeals of Texas, Austin.
December 20, 1995.
*861 David L. Cunningham, John M. Killian & Associates, San Antonio, for Appellant.
Darrell D. Gest, Hearne & Eppright, Austin, for Appellee.
Before CARROLL, JONES and B.A. SMITH, JJ.
PER CURIAM.
Russell Harris appeals from the dismissal of his bill of review. He complains that the court dismissed his claim without following the proper procedure and standard of review. We will reverse the judgment and remand this cause for further proceedings.
BACKGROUND
Harris's bill of review challenged a judgment favoring Dennis J. Moore d/b/a Moore's Trucking. In that underlying suit, Moore sued Harris, Harris's partners, their partnership, and their corporation to collect payment for construction work Moore did on their ranch. Moore served the petition on an attorney with a cover letter expressing his understanding that the attorney had agreed to accept service for all defendants. Another attorney from the same law firm filed an answer on behalf of all the defendants. That attorney also filed a counterclaim and a motion for partial summary judgment on behalf of the individual defendants, including Harris. In support of that motion, Harris signed an affidavit as a defendant/cross-plaintiff; the affidavit contained the full style of the case showing Harris as a defendant individually and as part of the companies. The attorney wrote to the trial-court staff a letter which included Harris in a list of addressees to receive a copy of the letter. The attorney's motion to withdraw as counsel indicated that it went to Harris at the same address. The appellees later used certified mail at the same address to successfully serve Harris (his wife signed the returned receipt) with notice of the trial setting in the underlying case.
None of the defendants appeared at the trial. Moore presented evidence to the court and obtained a judgment for $32,993.48 plus interest, attorney's fees, and costs.
Harris filed his bill of review claiming lack of service. He claimed he never authorized the attorney to receive service or represent him individually. He alleged that one of his codefendants had hired the attorney without his knowledge. He claimed he could not share counsel with some of his codefendants because he had legal claims pending against them. He claimed not to have received any of the correspondence or motions filed by the attorney purporting to represent him. He claimed that he signed the affidavit believing that it was in defense of a case against the partnership, not him individually. He asserted four defenses as meritorious: that he was liable only as a limited partner, that he did not receive or accept any benefit from Moore's work or materials; and that he did not agree to enter any contract with Moore. Harris requested a temporary restraining order and an injunction to prevent Moore from executing on the judgment.
The trial court held a hearing that began as a hearing on temporary injunction on the bill of review. Harris, Moore, and one of the codefendants in the underlying suit testified. The court also admitted documentary evidence.
At the close of the hearing, the court not only denied the injunction but also dismissed the case, prompted in part by Moore's oral motion for dismissal in his closing argument. The court made several fact-findings regarding lack of merit of Harris's bill of review. The court denied Harris's motions for reconsideration and new trial after a hearing.
*862 DISCUSSION
Harris complains by his first two points of error that the court failed to follow the proper procedure in dismissing his bill of review. He complains that the court erred by dismissing his case based upon pleading defects and without proper notice and opportunity to be heard.
A petition for bill of review triggers certain procedures and requirements. A petitioner for bill of review must allege several facts with particularity. State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464 (Tex.1989). The petition must allege that the prior judgment was rendered as a result of fraud, accident, or wrongful act of the opposite party or official mistake unmixed with the petitioner's negligence. Id. It must further allege sworn facts sufficient to constitute a meritorious defense. Id. Defects in bill-of-review petitions normally must be challenged by special exceptions before dismissal or summary judgment for failure to state a claim is proper; trial courts err by denying petitioners the opportunity to amend their pleadings to cure defects. Clemons v. State, 737 S.W.2d 431, 432 (Tex.App.Eastland 1987, no writ); Edgin v. Blasi, 706 S.W.2d 353, 355 (Tex.App.Fort Worth 1986, no writ).[1] The petitioner could get a temporary injunction by showing a probable right to recovery, imminent irreparable harm absent the injunction, and no adequate remedy at law. Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968).
The petitioner must next, at a pretrial hearing, present prima facie proof of a meritorious defense in order to obtain a fullblown trial on the merits of the bill. 1985 Chevrolet, 778 S.W.2d at 464. A petitioner makes out a prima facie case by showing that the asserted defense is not barred as a matter of law and would win judgment on retrial absent contrary evidence. Baker v. Goldsmith, 582 S.W.2d 404, 408-09 (Tex.1979). The court may dismiss the case if the petitioner fails to make out a prima facie case at the pretrial hearing. Id. at 409. Id.
The trial court erred to the extent it dismissed for pleading defects. Moore undisputedly made no special exceptions. At the hearing, after the court suddenly dismissed the cause with prejudice, Harris requested orally that he have a chance to modify his pleadings. The court reiterated that the case was dismissed, barring any chance to modify the pleadings. Moore contends that any error in dismissing the case without giving a chance to replead was harmless. He does not contend that the dismissal was harmless because the pleading was fatally defective under Chambers; instead, he contends that it was harmless because Harris failed to prove his case at the hearing. This raises the more pressing problem of the disputed nature of the hearing.
Harris preserved his complaint regarding the nature of the hearing by complaining at the hearing that he did not expect a decision on the merits, that the court's choice to make that decision prevented him from calling a witness, and that the witness's testimony would help him prove his case. A party must preserve error by objecting, moving, or requesting relief upon discovering that the court is conducting a more substantive bill-of-review inquiry than the party expected. Lemons v. EMW Mfg. Co., 747 S.W.2d 372 (Tex.1988). In that case, the supreme court reinstated a trial court's decision on the merits of a bill of review. Id. at 373. The court of appeals had reversed the trial court, finding that, prior to the bench trial, the petitioner's attorney had thought that the proceeding was to be the prima facie hearing; the court of appeals remanded the case for trial, holding that the proceeding was the pretrial hearing and that the petitioner had established a prima facie case. EMW Mfg. Co. v. Lemons, 741 S.W.2d 212 (Tex.App.Fort Worth 1987). The supreme court reversed, holding that EMW's attorney's subjective impression that the proceeding was the pretrial hearing was unimportant because he failed to preserve error by moving for a continuance or objecting once he discovered that the trial court was conducting *863 a full-blown trial. Lemons, 747 S.W.2d at 373.
Our facts resemble the supreme court's model in Lemons, exceeding the facts of Lemons itself. Similar to Lemons, the record shows that the trial court opened the hearing by announcing, "This is called for hearing on Temporary Injunction." The trial court then proceeded accordingly, making findings and denying the injunction. The court next observed:
Now, this being only the case where there is a temporary injunction sought, I'm not sure of the posture that that puts the Court in rendering a decision since there's no motion for summary judgment or any other pleadings that I am aware of that would permit me to render anything [except]... [j]ust denying the injunction. That's all I can see that I can do since that's all we're hearing on the issue we have here. I can make the findings but I don't know [t]hat based on those I can do anything else.
Nevertheless, moments later, the court dismissed the case because Harris had failed to make the prima facie showing required at the pretrial hearing. The court noted that the proof that Harris adduced at the injunction hearing would also go to the merits of the bill; the court apparently decided that the same evidence would be similarly unpersuasive at the pretrial hearing. Apparently unlike the Lemons petitioner, however, Harris protested at the hearing that the court was not supposed to decide the merits at the injunction hearing and that he wanted the opportunity to replead and to present an additional witness at the pretrial hearing. The court responded, "Counsel, what he might tell and wouldn't tell is not relevant here right now."
The court's dismissal of the case, while perhaps intended to be judicially efficient, was procedurally incorrect. The court gave no notice that the scope of the hearing had broadened until after ruling on the stated issue of the hearing, then squelched Harris's attempts to respond to the change. Though the proof requirements for temporary injunctions resemble and in some ways exceed the standards for the bill-of-review pretrial hearing, the stakes are markedly different. No rule requires that movants for injunction bring forward all of their proof pertaining to the merits at the injunction hearing. The similarities in proof requirements did not justify denying all relief simply because Harris failed to show himself deserving of temporary injunctive relief. The dismissal was akin to a track-meet official barring a sprinter from a race for running a slow warmup lap. We will reverse the dismissal of the cause of action.
We will not disturb the court's denial of the temporary injunction. Ordinarily, the dismissal of the entire action renders the denial of the temporary injunction moot. See Bryant v. Barnes, 438 S.W.2d 435, 435 (Tex. Civ.App.Waco 1968, no writ); Conway v. Irick, 429 S.W.2d 648, 650 (Tex.Civ.App. Fort Worth 1968, writ ref'd). To the extent that our reversal of the dismissal revives our ability to conduct an interlocutory review, we affirm the trial-court's denial because we see no clear abuse of discretion. See Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex.1978). Rather, the court acted well within its discretion in denying temporary relief.
CONCLUSION
We hold that the trial court erred by dismissing this case after the temporary injunction hearing without providing notice that the merits were at stake. We sustain points one and two. We need not consider the remaining points of error.
We reverse the judgment of dismissal and remand the cause for further proceedings.
NOTES
[1] Presumably, bills of review utterly failing to plead a viable cause of action would be susceptible to summary judgment on that basis just like similarly deficient petitions. See Chambers v. Huggins, 709 S.W.2d 219, 224 (Tex.App.Houston [14th Dist.] 1986, no writ).
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Case: 16-15081 Date Filed: 04/11/2017 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15081
Non-Argument Calendar
________________________
D.C. Docket No. 0:13-cv-62448-BB
ERIC WATKINS,
Plaintiff-Appellant,
versus
ONE UNKNOWN U.S. POST OFFICE EMPLOYEE, et al.,
Defendants,
IVAN J. RAMIREZ,
One United States Postal Inspector,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 11, 2017)
Before HULL, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Case: 16-15081 Date Filed: 04/11/2017 Page: 2 of 4
Eric Watkins, proceeding pro se, appeals the district court’s June 17, 2016
paperless order, which denied his June 8, 2016 second motion to file an out-of-time
appeal from the March 22, 2016 order (which had denied his March 15, 2016 first
motion for leave to file an out-of-time appeal of the August 31, 2015 order
dismissing his amended complaint, pursuant to Fed. R. App. P. 4(a)(6)). On July
15, 2016, Watkins filed a timely notice of appeal of the district court’s June 17,
2016 order.
On appeal, Watkins argues that he did not receive notice of the district
court’s order, entered March 22, 2016, denying his March 15, 2016 first motion for
an extension of time to file a notice of appeal from the district court’s August 31,
2015 order dismissing his amended complaint, and that the district court therefore
abused its discretion when it denied his June 8, 2016 motion to file an out-of-time
notice of appeal from that March 22, 2016 order. Upon review of the record and
consideration of the parties’ briefs, we affirm.
We review the district court’s denial of a motion to reopen under Rule
4(a)(6) for an abuse of discretion. McDaniel v. Moore, 292 F.3d 1304, 1305 (11th
Cir. 2002). We will not reverse a decision of the district court unless it at least
determines that the district court made a clear error in judgment or applied an
incorrect legal standard. Weatherly v. Ala. State Univ., 728 F.3d 1263, 1270 (11th
Cir. 2013).
2
Case: 16-15081 Date Filed: 04/11/2017 Page: 3 of 4
To be timely, the notice of appeal in a civil case against a party who is a
United States officer employee sued in an official capacity must be filed within 60
days after entry of the judgment or order appealed from. Fed. R. App. P.
4(a)(1)(B)(iii). The district court may reopen the time to file an appeal for a period
of 14 days where the court finds that (1) the moving party did not receive notice of
the entry of the judgment or order appealed within 21 days after entry; (2) the
motion is filed within 180 days after the judgment or order is entered or within 14
days after the moving party receives notice of the entry, whichever is earlier; and
(3) no party would be prejudiced. Fed. R. App. P. 4(a)(6). We have indicated that,
where a pro se litigant alleges that he did not receive notice of the entry of the
judgment or order from which he seeks appeal, the request should be construed as
a motion under the “more lenient rule” for a litigant in such a position, Rule
4(a)(6). See Sanders v. United States, 113 F.3d 184, 186–87 (11th Cir. 1997)
(holding, in the context of a motion to reconsider a dismissal for lack of
jurisdiction, that when a pro se appellant alleges he did not receive notice of the
judgment or order appealed from, we will treat the notice of appeal as a Rule
4(a)(6) motion).
Here, because Watkins’s June 8, 2016 motion relied solely on his contention
that he never received notice of the district court’s March 22, 2016 order, we
construe that motion as a Rule 4(a)(6) motion to reopen. Even assuming that
3
Case: 16-15081 Date Filed: 04/11/2017 Page: 4 of 4
Watkins met all the preconditions under Rule 4(a)(6), this would not mean that he
was entitled to an extension of time to file his appeal. The preconditions—if
satisfied—merely authorize the court to exercise its discretion; they do not require
that the court do so. Although the district court denied Watkins’s motion in a
paperless order and therefore did not detail its reasoning, this does not necessarily
mean that it abused its discretion. Its subsequent July 19, 2016 order, denying
Watkins’s unnecessary July 15, 2016 motion to file an out-of-time appeal from the
district court’s June 17, 2016 order, provided sufficient indicia that it had
considered Watkins’s motion on the merits. That July 19, 2016 order further
indicated that the district court declined to exercise its discretion because Watkins
failed to show that he had not actually received notice of the court’s March 22,
2016 order and because allowing him to file an out-of-time appeal would prejudice
the government and be contrary to the interest of judicial efficiency. This
reasoning shows that the district court did not abuse its discretion. Weatherly, 728
F.3d at 1270. Accordingly, we affirm the district court’s June 17, 2016 denial of
Watkins’s June 8, 2016 motion for leave to file an out-of-time appeal from its
March 22, 2016 order.
AFFIRMED.
4
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 30, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40992
Summary Calendar
BRUCE LEE WILLIS,
Plaintiff-Appellant,
versus
DIRECTOR TEXAS DEPARTMENT OF CRIMINAL JUSTICE INSTITUTIONAL
DIVISION; WARDEN, TELFORD UNIT; UNKNOWN TAYLOR, Lieutenant;
UNKNOWN BURGESS, Sergeant; UNKNOWN SMITH, Sergeant,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:03-CV-65
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Bruce Lee Willis, Texas prisoner #717354, appeals the district
court’s dismissal without prejudice of his 42 U.S.C. § 1983
complaint for failure to exhaust administrative remedies. Willis
argues that the district court abused its discretion in dismissing
his complaint and that its judgment should be reversed and his case
remanded for further proceedings.
*
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.
The district court dismissed Willis’ complaint pursuant to 42
U.S.C. § 1997e because he failed to provide documentation verifying
his allegations that he had exhausted his administrative remedies.
As set forth in our decision in Underwood v. Wilson, 151 F.3d 292,
296 (5th Cir. 1998), however, “[d]ismissal under § 1997e is made on
pleadings without proof,” and when “the plaintiff has alleged
exhaustion with sufficient specificity, lack of admissible evidence
in the record does not form the basis for dismissal.”
Here, although Willis was unable to produce a copy of his
Step 2 grievance form, he specifically alleged that he exhausted
both steps of the grievance procedure. In explaining why he was
unable to submit a copy of the form, Willis never denied that he
filed a Step 2 grievance form and offered an explanation regarding
why he was unable to produce a copy of the form. Because Willis
alleged exhaustion with sufficient specificity, Underwood requires
that the district court’s judgment be VACATED and the case REMANDED
for further proceedings. The district court is not precluded from
revisiting the exhaustion issue “based upon a response by the
defendants.” Days v. Johnson, 322 F.3d 863, 868 (5th Cir. 2003).
VACATED AND REMANDED.
G:\opin-sc\03-40992.opn.wpd 2
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603 S.W.2d 276 (1980)
Gene Paul BARCELO, Appellant,
v.
Verna Joann BARCELO, Appellee.
No. A2424.
Court of Civil Appeals of Texas, Houston (14th Dist.).
July 9, 1980.
Rehearing Denied July 30, 1980.
Rachel Johnson, Smith & Johnson, Pasadena, for appellant.
Ray B. Pitchford, Houston, for appellee.
Before BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.
MILLER, Justice.
In this appeal we affirm the trial court's decision that a husband who had undergone a vasectomy is the legitimate father of a child born during his marriage. Because of the state of the record, however, the case is not a fair test of the question of whether the presumption of legitimacy of a child born during marriage may be overcome by showing of a prior successful vasectomy, a question which apparently has not to this time been decided in Texas.
Appellant, Gene Paul Barcelo, and appellee Verna Joann Barcelo, were married March 23, 1976. A child was born to appellee November 5, 1977 and was therefore conceived during the prior February. Appellant *277 alleges that the couple separated in November, 1976 while appellee claims that they cohabited until April, 1977.
Dr. Paul Darden testified that he had performed a vasectomy on the appellant in January, 1967, that he had thereafter taken four sperm counts, viz. February 27, 1967, March 18, 1967, December 3, 1970, and August 21, 1979. He did not testify as to the results of the two earlier counts, but as to the latter two reported that no sperm were seen. He further stated that between December 3, 1970 and August 21, 1979: "It's my professional opinion that [appellant] was [sterile], but it's not absolute. It's my professional opinion that he was."
Appellant, in a previous marriage, was the father of three children born prior to the vasectomy. In addition, his then wife gave birth to three children after the vasectomy. As to each of these children there was evidence that he was listed as the father on birth certificates; in addition, he signed the death certificate as father of one that died within a day of birth. At least one of them lived with him and his former wife and all carried the Barcelo name. Concerning these, and by way of explanation, he testified that he was not the father, that his wife "would run off and get pregnant and there wasn't a problem as to taking her back because there were three kids."
The trial court awarded the divorce, declared the child to be legitimate, ordered child support by the appellant of $150.00 per month, awarded the appellant the tangible properties of the parties including his pension plan, and gave appellee judgment of $3,000.00 against appellant plus attorney's fees. Appellant here challenges the child support payments because of his claim that the child is not his, and the $3,000.00 judgment on the basis that he was awarded some non-existent property.
No findings of facts and conclusions of law having been furnished us, we must presume that every fact issue was found favorably to the appellee, and affirm if there is any legal theory which upholds the judgment and has support in the evidence. Quinn v. Dupree, 303 S.W.2d 769 (Tex.Sup. 1957).
While we have found no Texas cases that have treated with the issue of whether evidence of a successful vasectomy is sufficient to rebut the presumption of legitimacy, there are a number of cases in other jurisdictions that have considered the question.
Among those that have ruled that the presumption is rebutted are Hughes v. Hughes, 125 Cal.App.2d 781, 271 P.2d 172 (1954); S___ v. S___, 520 S.W.2d 652 (Mo. App.1975); In re Stroope's Adoption, 232 Cal.App.2d 581, 43 Cal.Rptr. 40 (1954); and In re Kessler's Estate, 76 S.D. 158, 74 N.W.2d 599 (1956). Of these only S___ v. S___, involved a divorce case in which the wife was alleging legitimacy.
Those cases which have decided that the presumption was not rebutted include L. v. M., 134 N.J.Super. 69, 338 A.2d 227 (1975); Whitman v. Whitman, 140 Ind.App. 289, 215 N.E.2d 689 (1966); Tosh v. Tosh, 214 Cal. App.2d 483, 29 Cal.Rptr. 613 (1963); and Pyeatte v. Pyeatte, 21 Ariz.App. 448, 520 P.2d 542 (1974).
In remanding Cochran v. Cochran, 2 Wash.App. 514, 468 P.2d 729 (1970), for further findings, the court held that only if the trial court disbelieved the testimony of the physician could the decision that the child was legitimate be affirmed.
We note that only in the latter case, Cochran v. Cochran, which was not definitively decided, has any appellate court reversed a trial court holding of paternity despite an apparently successful vasectomy.
It is our opinion that where a successful vasectomy has been proved by clear and convincing evidence the presumption of legitimacy will be rebutted. Such is not true in the instant case: the physician testified that his conclusion was not absolute; he did not even define a vasectomy, let alone describe the surgical techniques used to interrupt the flow of sperm in the ejaculate; no proof was offered of the security of the tests indeed no effort was made to demonstrate that the ejaculate tested was *278 in fact that of the appellant; and there was not the slightest evidence of the wife's adultery. Under this state of the record we must overrule appellant's point of error, and hold that the child is legitimate.
Appellant further complains of the granting of a judgment of $3,000.00 to appellee, and urges that such judgment was based on the awarding of a tract of land to appellee, a tract which had been repossessed prior to the trial. In the absence of findings and conclusions we must assume that the trial court did not abuse its discretion in the division of the community, and that, even if ownership of the particular tract was not in the community, other community property was available out of which appellant could pay the judgment. This property could include two automobiles, the pension plan, and an income tax refund as to which the appellee testified her share was over $2,000.00.
Appellant's second point of error is overruled, and the judgment is affirmed.
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Case: 10-60573 Document: 00511616338 Page: 1 Date Filed: 09/28/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 28, 2011
No. 10-60573
Summary Calendar Lyle W. Cayce
Clerk
MICAH RUDISILL,
Petitioner-Appellant
v.
BRUCE PEARSON, Warden, Federal Correctional Center Yazoo City,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:08-CV-272
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
In 1998, Micah Rudisill, federal prisoner # 48233-019, was convicted by a
jury of, inter alia, money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(I),
and conspiracy to commit money laundering, in violation of § 1956(h). In 2008,
Rudisill filed a petition under 28 U.S.C. § 2241 arguing that his money
laundering convictions should be invalidated in light of the Supreme Court’s
then-recent decision in United States v. Santos, 553 U.S. 507 (2008). The district
court dismissed the § 2241 petition concluding that Rudisill did not meet the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 10-60573 Document: 00511616338 Page: 2 Date Filed: 09/28/2011
No. 10-60573
requirements for proceeding under the savings clause of 28 U.S.C. § 2255 as set
forth in Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). In
reviewing the denial of habeas relief, the district court’s findings of fact are
reviewed for clear error and issues of law are reviewed de novo. Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
In this case, the district court limited the application of Santos to cases of
illegal gambling. The district court did not have the benefit of this court’s
contrary reasoning in Garland v. Roy, 615 F.3d 391, 402-04 (5th Cir. 2010), when
it reached this conclusion. Accordingly, the judgment of dismissal of Rudisill’s
§ 2241 petition is VACATED, and the matter is REMANDED to determine
whether, consistent with Garland, his claim falls within the savings clause of
§ 2255.
2
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401 F.Supp.2d 203 (2005)
Corinne A. COX, Plaintiff,
v.
QUICK & REILLY, INC.; and Fleet Boston Financial Corporation, Defendants.
No. 1:03 CV 1036.
United States District Court, N.D. New York.
October 6, 2005.
*204 *205 *206 *207 Walter Thayer & Mishler, PC, (Mark S. Mishler, Esq., of Counsel), Albany, NY, for Plaintiff.
Edwards, Angell Law Firm â RI Office, (George P. Kostakos, Esq., Gina DeSantis Wodarski, Esq., of Counsel), Providence, RI, for Defendants.
MEMORANDUM-DECISION and ORDER
HURD, District Judge.
I. INTRODUCTION
Plaintiff Corrine Cox ("Cox") brings suit against her former employers, defendants Quick & Reilly, Inc. ("Q & R"), a brokerage *208 and investment firm, and FleetBoston Financial Corporation ("Fleet"), its parent company. She asserts four causes of action against the defendants: (1) Violation of the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d); (2) Discrimination on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e; (3) Discrimination on the basis of sex, in violation of the New York State Human Rights Law ("NYSHRL"), New York Executive Law § 296(1)(a); and (4) Unlawful retaliation, in violation of the NYSHRL, New York Executive Law § 296(7).
Pursuant to Fed.R.Civ.P. 56, the defendants, Q & R and Fleet, move for summary judgment on all claims against them. Plaintiff opposes. Oral argument was heard on July 8, 2005, in Utica, New York. Decision was reserved.
II. FACTS
Cox was employed in various capacities by Q & R or their predecessors for approximately 19 years, until her resignation on June 14, 2002. (Docket No. 1, Compl. ś 4) ("Compl.ś ____"). From 1992-95, she served as an Assistant Branch Manager of Fleet's downtown Albany branch office, and from 1995-2000, served as the Branch Manager of that office. Id. at ś 5; see also Docket No. 21, Pl.'s Resp. to Defs.' Rule 7.1(a)(3) Statement ś 1 ("Pl.'s Resp. to Defs.' Rule 7.1(a)(3) Statement ś ____").
In 1998, Fleet acquired Q & R, though Q & R remained in existence after the merger. (Docket No. 18, Defs.' Statement of Material Facts in Support of their Mot. for Summ. J. ś 2) ("DSMF ś ____"). At that time, Cox was the Branch Manager of Fleet's downtown Albany office. (Compl.ś 5). Plaintiff contends, though defendants dispute, that she continued as the Branch Manager of the downtown Albany branch. (See Pl.'s Resp. to Defs.' Rule 7.1(a)(3) Statement ś 7; DSMF ś 7).[1] When the companies merged, Q & R also had an Albany office, located on Wolf Road, managed by Jeffrey Sheehan ("Sheehan"). (DSMF śś 4-6). Sheehan founded the Wolf Road branch of Q & R in 1980, and served as the Branch Manager since its inception. Id. at ś 17. After the merger, Q & R viewed the Wolf Road branch managed by Sheehan as the primary Albany office, and the downtown Albany branch as the "satellite" office. Id. *209 at ś 6. Plaintiff maintains, though defendants dispute, that she did not report directly to Sheehan at this time. (Pl.'s Resp. to Defs.' Rule 7.1(a)(3) Statement ś 7; DSMF ś 7).
In the fall of 2000, Fleet/Q & R underwent a corporate reorganization and changed its business model (DSMF ś 8); as a result, Q & R made Paul Sciortino ("Sciortino") the Branch Manager of the downtown Albany office and demoted Cox to the position of Operations Manager, reporting to Sciortino. (Compl.śś 10, 9). Plaintiff was not given the opportunity to apply or compete for this the Branch Manager position. (Pl.'s Resp. to Defs.' Rule 7.1(a)(3) Statement ś 9). Additionally, Q & R changed its compensation structure, resulting in a dramatic decrease of her salary. Before the compensation change, she received about $40,000 in base salary, and $120,000 in bonuses. Id. at ś 12; see also DSMF ś 12. After the change, as Operations Manager, she received $60,000 base and $30,000 in bonuses. (DSMF ś 14). Sheehan remained the Branch Manager of the Wolf Road offices, but was considered a "Non-Producing Branch Manager," earning a base salary of $75,000 and a guaranteed bonus of $50,000. Id. at ś 18.
Q & R decided to merge the downtown Albany branch into the Wolf Road branch in February 2001. Id. at ś 19. The merger was not complete until July 2001; at that time, the downtown Albany branch officially closed, and Cox moved to the Wolf Road branch. Id. As part of the consolidation, Q & R placed Sciortino in the position of Branch Manager, and made both Cox and Sheehan Operations Managers; both reported directly to Sciortino. Id. at ś 20. Although Sheehan was demoted from a Branch Manager to an Operations Manager, he was still paid his Branch Manager salary of $75,000 base with a $50,000 guaranteed bonus. Id. at ś 21. Plaintiff, also an Operations Manager, continued to receive $60,000 in base salary, with a $30,000 guaranteed bonus. Id.
At some time in 2001, Q & R determined that it did not need two Operations Managers in the Wolf Road office, so it decided to eliminate one of the positions. Id. at ś 24. Cox claims, though defendants deny, that she was informed that her position was targeted for elimination. (Compl. ś 29; DSMF ś 27). However, in early 2002, Sheehan's position was eliminated, effective April 2002. (DSMF ś 26). Sheehan was allegedly "`asked to leave' as a result of the [Wolf Road branch] having failed an audit conducted in December 2001 for a period during which Jeffrey Sheehan had responsibility." (Pl.'s Resp. to Defs.' Rule 7.1(a)(3) Statement ś 26). The audit rated the branch as "unsatisfactory" and an "unacceptable risk to the firm and its affiliates." (Docket No. 20, Cox Aff., Pl.Ex. I at 2) ("Cox Aff. ____").
Q & R offered Cox the position of Operations Manager at the Wolf Road branch. (DSMF ś 26). She was told, but defendants dispute, that she would receive the same salary and benefits that Sheehan had received as the Operations Manager of the Wolf Road branch. (Compl. ś 33; DSMF ś 26). Plaintiff accepted the offer, but Q & R refused to pay her the higher salary; she remained at the $60,000 base and $30,000 guaranteed bonus schedule. (Compl. ś 35; see also Pl.'s Resp. to Defs.' Rule 7.1(a)(3) Statement ś 26).
Cox filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC") on or about April 29, 2002, alleging that the defendants paid her less than a male counterpart in violation of the EPA, Title VII, and the NYSHRL. (Compl. ś 37; DSMF ś 30). Sciortino was notified of the EEOC complaint on or about May 13, 2002, and he immediately called plaintiff at her home. *210 (Compl.ś 40). Sciortino complained to Cox first, because she had not come to him first about her grievances; and second, because she had not given him "a heads up" that she had filed a complaint with the EEOC. (DSMF ś 31). Immediately after plaintiff filed the complaint, she was "shunned" by her co-workers at Q & R, and was "effectively treated as an outcast." (Compl.ś 44). She was also informed that Sciortino had allegedly commented, "why would she [file the EEOC complaint], doesn't she realize her career with Fleet is over," and said that she had "shot herself in the foot." (Compl.śś 41-42).
Cox resigned from defendants Q & R and Fleet on June 14, 2002. (Compl.ś 48). The EEOC issued a "right to sue" letter in regard to her April 29, 2002, complaint, and this litigation was timely commenced.
III. DISCUSSION
A. Jurisdiction
Jurisdiction over this matter is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331, 29 U.S.C. § 206(d), and 42 U.S.C. § 2000e. Supplemental jurisdiction is pursuant to 28 U.S.C. § 1367 regarding plaintiff's claims under New York Executive Law § 296.
B. Summary Judgment Standard
When considering a motion for summary judgment, the Court views the evidence presented in the light most favorable to the non-moving party and draws all real inferences in her favor. Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir.2002). It is well settled that the Court may grant summary judgment only when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Richardson v. New York State Dep't of Corr. Service, 180 F.3d 426, 436 (2d Cir.1999). An issue is "genuine" if the relevant evidence is such that a reasonable jury could return a verdict for the non-moving party. Liberty Lobby, 477 U.S. at 248-49, 106 S.Ct. 2505.
A party seeking summary judgment bears the initial burden of demonstrating to the Court the absence of a genuine issue of material fact, as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the party opposing the motion for summary judgment must produce specific evidence establishing the existence of a genuine factual dispute that a reasonable jury could find in its favor. Fed.R.Civ.P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; it cannot rest upon "mere allegations or denials" asserted in its pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994).
To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could resolve the issue in favor of the nonmovant. Liberty Lobby, 477 U.S. at 248-49, 106 S.Ct. 2505; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.
C. EPA Claim (Second Cause of Action)
Cox claims that the defendants violated the EPA by paying her less than they paid a male employee, Sheehan, when both employees were performing equal work requiring equal skill, effort, and responsibility under similar working conditions from *211 the time of the Fall 2000 reorganization of the Q & R offices to the time plaintiff resigned from Q & R on June 14, 2002. Defendants move for summary judgment on two grounds: First, defendants argue that plaintiff's allegations of a gender-based wage disparity prior to August 20, 2001, are time-barred by the EPA's two-year statute of limitations. Second, defendants argue that during the time period of August 20, 2001, through June 14, 2002, they had legitimate reasons, based on factors other than sex, for compensating plaintiff less than they had compensated Sheehan.
The EPA "prohibits employers from discriminating among employees on the basis of sex by paying higher wages to employees of the opposite sex for `equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions.'" Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir.1999) (quoting 29 U.S.C. § 206(d)(1)). To establish an equal pay claim under the EPA, the plaintiff must first make out a prima facie case of discrimination by showing: "(i) the employer pays different wages to employees of the opposite sex; (ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility;[2] and (iii) the jobs are performed under similar working conditions." Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir.1995); see also Belfi, 191 F.3d at 135.
Should the plaintiff successfully establish a prima facie case, the burden of persuasion shifts to the defendant employers to prove that the wage disparity is justified and results from "(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex."[3] 29 U.S.C. § 206(d)(1); Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 524 (2d Cir.1992). The statutory exemptions are to be "narrowly construed." Ryduchowski v. Port Auth., 203 F.3d 135, 143 (2d Cir.2000) (quoting EEOC v. Aetna Ins. Co., 616 F.2d 719, 724 (4th Cir.1980)). Thus, "[t]he burden of establishing one of the four affirmative defenses . . . `a heavy one.'" Id. (quoting Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 843 (6th Cir.1997)).
The plaintiff may counter any such assertions of justification by the defendant by offering evidence that the reasons advanced by the defendant are simply a pretext for sex discrimination. Aldrich, 963 F.2d at 526; see also Belfi, 191 F.3d at 136. "`The appropriate inquiry to determine if the factor put forward is a pretext, is whether the employer has use[d] the factor reasonably in light of the employer's stated purpose as well as its other practices.'" Aldrich, 963 F.2d at 526 (quoting Maxwell v. City of Tucson, 803 F.2d 444, 446 (9th Cir.1986)).
*212 Cox has established a prima facie case on her equal pay claims. From August 2001 to April 2002, after the downtown Albany branch was consolidated into the Wolf Road branch, plaintiff and Sheehan were both working in the same titled position as Operations Managers. However, while plaintiff was earning a $60,000 base salary, with $30,000 in guaranteed bonuses, Sheehan, a male, was earning $75,000 base, with $50,000 in guaranteed bonuses. The defendants do not dispute that (1) Q & R paid different wages to Cox and Sheehan, (2) when they were both working as Operations Managers, (3) at the Wolf Road branch of Q & R. As such, plaintiff has established a prima facie case of discrimination in violation of the EPA.
1. Statute of Limitations
An action alleging a violation of the EPA must be filed within two years of the date when the cause of action accrued, or in cases where the employer is alleged to have engaged in a "willful" violation, within three years of accrual. 29 U.S.C. § 255(a) (1998). An employer's violation of the EPA is " `willful' or reckless within the meaning of § 255(a) if `the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.'" Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 119 (2d Cir.1997) (quoting Reich v. Waldbaum, Inc., 52 F.3d 35, 39 (2d Cir.1995)).[4] Under the EPA, the plaintiff is not required to show that the employer's discrimination was intentional, or was done in bad faith. Id. (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126 n. 19, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)).
"A claim of discriminatory pay . . . involves a series of discrete, individual wrongs." Id. Each act that is part of the discriminatory violation that injures the plaintiff is a separate cause of action that starts the statutory period over again. Id.; see also Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134 (2d Cir.2003) (citing Bazemore v. Friday, 478 U.S. 385, 395, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986)). An employee may be awarded back pay for violations of the EPA, but only for the damages sustained within the limitations period. Pollis, 132 F.3d at 118-19.[5]
Defendants assert that all of plaintiff's EPA allegations prior to August 20, 2001, are time-barred, and as such, they are entitled to summary judgment on this issue. Defendants, however, have incorrectly construed the statute of limitations governing the EPA. Plaintiff's claim is timely, and defendants' motion for summary judgment on the grounds that the claim is time-barred will be denied.
There is no doubt that Cox's complaint was filed within the statute of limitations governing EPA claims. Each paycheck that compensated her less than Sheehan for doing the same work as Operations Managers constituted a separate cause of action under the EPA; each paycheck *213 started a new statute of limitations for that claim. Plaintiff resigned from Q & R on June 14, 2002 â she therefore had two years from the date of the issuance of her final Q & R paycheck to file an EPA claim for the alleged discriminatory action. Because plaintiff filed her complaint on August 20, 2003, she is well within her statutory limitations period, and defendants' motion for summary judgment as to the timeliness of plaintiff's EPA claim must be denied.
Additionally, plaintiff will be given the opportunity to present evidence to the jury that defendants' violation of the EPA was willful. The question of "willfulness," as it bears on the application of a statute of limitations, is a question of fact for the jury. See Zacholl v. Fear & Fear, Inc., No. 5:01-CV-1953FJSDEP, 2004 WL 725964, at *3 (N.D.N.Y. April 5, 2004); Fowler v. Land Mgmt. Groupe, Inc., 978 F.2d 158, 163 (4th Cir.1992); Melendez-Arroyo v. Cutler-Hammer de P.R. Co., 273 F.3d 30, 38 (1st Cir.2001). Thus, should plaintiff be awarded damages in the form of back pay, the jury shall determine whether the applicable limitations period is two or three years.
2. Affirmative Defenses
Defendants also contend that they are entitled to summary judgment on this EPA claim because they have lawful, gender-neutral affirmative defenses for compensating Sheehan at a higher rate than plaintiff. Defendants allege that Sheehan's increased experience and seniority in comparison with plaintiff, coupled with defendants' desire to not penalize Sheehan by lowering his pay after the branch consolidation, are gender-neutral reasons that rebut plaintiff's prima facie case of discrimination under the EPA. Plaintiff challenges defendants' proffered justifications for the wage disparities, claiming that the above explanations are pretexts for sexual discrimination. Because there are genuine issues of material fact as to whether defendants' justifications for the compensation differential were pretextual, defendants' motion for summary judgment as to plaintiff's EPA claim will be denied.
Defendants first argue that Sheehan was entitled to greater compensation than plaintiff because he had more Branch Manager experience, he headed a larger branch, and he was a more senior Q & R employee. Sheehan began his career with Q & R in 1980, when he founded the Wolf Road Branch, and until the branch consolidation in 2001, held the position of Branch Manager. Defendants' submit that under Sheehan, the Wolf Road branch did "up to three times the volume of transactions as the downtown Albany branch" did under plaintiff's management. (DSMF ś 5). Additionally, defendants maintain that they were entitled to make a corporate business decision to retain Sheehan's higher salary when he was demoted to Operations Manager because they "were unwilling to penalize him by lowering his pay." Id. at 15.
While defendants are correct that various courts have held that experience,[6] seniority,[7] and salary-retention policies[8]*214 can sometimes be legitimate, gender-neutral justifications sufficient to rebut a prima facie showing of discrimination in violation of the EPA, the plaintiff may combat these justifications by showing that they are simply a pretext for discrimination. See, e.g., Aldrich, 963 F.2d at 526. Here, the plaintiff has set forth evidence which creates a genuine issue of material fact as to whether defendants' affirmative defenses as to the wage disparity are a pretext for discrimination.
Plaintiff has produced evidence showing a long and successful career in the finance/securities industry, including tenure with defendants or their predecessors for almost 20 years. (Docket No. 19, Pl. Mem. Opp. Summ. J. at 4). While defendants maintain that post-merger, she was the "Registered Representative In Charge" of the downtown Albany branch (DSMF ś 7), she has set forth evidence that she served as the Branch Manager of that office from 1995-2000. (See Cox Aff. śś 23, 37; Pl.Ex. C; Pl.Ex. D). Further, plaintiff has provided evidence that although the downtown Albany office did do less transactional volume than the Wolf Road office, she actually had more managerial responsibility as a Branch Manager at the downtown Albany office than Sheehan did at Wolf Road. (Cox Aff. śś 55-57). This evidence raises questions as to whether and to what extent Sheehan was more experienced or more senior to plaintiff, and whether the wage disparity between plaintiff and Sheehan was truly justified by the alleged experience and seniority. These questions, as well as the question of the gender-neutrality of the wage-retention affirmative defense offered by the defendants, will be best answered by a jury.
Read in the light most favorable to the plaintiff, as the non-moving party, the evidence supports an inference that the defendants' proffered justifications for the disparity in compensation between plaintiff and Sheehan are pretexts for gender discrimination. The defendants' have not proven their affirmative defenses such that no rational jury could find for plaintiff. Accordingly, defendants' motion for summary judgment as to plaintiff's EPA claim must be denied.
D. Title VII and NYSHRL Discrimination Claims (First and Third Causes of Action)
Plaintiff claims that she received unequal pay for equal work on the basis of her sex in violation of both Title VII[9] and the NYSHRL.[10] NYSHRL discrimination claims "are evaluated using the same analytical framework used in Title VII actions." Burniche v. General Elec. Automation Servs., Inc., 306 F.Supp.2d 233, 238-39 (N.D.N.Y.2004) (quoting Farias v. Instructional Sys., 259 F.3d 91, 98 (2d Cir.2001)). Equal pay claims under the EPA, Title VII, and the NYSHRL are generally analyzed under the same standards; "however, claims pursuant to Title VII or the NY[S]HRL require a plaintiff to prove that the pay differential was motivated by a discriminatory animus." Heap v. County of Schenectady, 214 F.Supp.2d 263, 271 (N.D.N.Y.2002) (internal citations *215 omitted); Belfi v. Prendergast, 191 F.3d 129, 139 (2d Cir.1999).
To establish an equal pay claim under Title VII or the NYSHRL, a plaintiff must first demonstrate a prima facie case of gender discrimination. Burniche, 306 F.Supp.2d at 239 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). If the plaintiff satisfies this burden, "a rebuttable presumption of discrimination arises and the burden of production shifts to the defendant `to articulate some legitimate, nondiscriminatory reason'" for the difference in compensation. Id. (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). Should the defendant fulfill this obligation, the presumption of discrimination disappears, and the burden again shifts to the plaintiff to prove that the explanations offered by the defendant are merely pretexts for discrimination, Id. (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817); i.e., "not only was the reason offered false, but that the real reason was discrimination," Belfi, 191 F.3d at 140 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).
To determine whether a plaintiff has demonstrated a discriminatory animus, a court will examine the entire record to determine "whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir.2000); see also Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir.2000). Allegations of pretext alone are not enough â there must be evidence that decisions made in regard to plaintiff's compensation were made because of plaintiff's sex. See e.g., Belfi, 191 F.3d at 140; Burniche, 306 F.Supp.2d at 243.
As discussed above, plaintiff has established a prima facie case of unequal pay based on gender discrimination and has created a triable issue of fact as to whether the affirmative defenses set forth by the defendants were pretextual. However, plaintiff has presented no compelling evidence which would create a genuine issue of material fact with respect to discriminatory intent. Plaintiff provided no evidence, other than the fact that Sheehan's compensation was higher than hers, to support her contention that she was paid less because she was a woman. In her deposition, plaintiff could not cite to any statements, documentary evidence, or other examples of this discriminatory practice occurring at Q & R in support of her contention of gender discrimination.[11]*216 (DSMF, Defs.' Ex. 1, Cox Dep. at 157). Without evidence that defendants intentionally paid plaintiff less than Sheehan because she was a woman, no rational jury could find discriminatory intent.
Plaintiff has clearly failed to present enough evidence of discriminatory intent to survive summary judgment. Accordingly, defendants' motion for summary judgment as to plaintiff's claims of discrimination on the basis of sex in violation of Title VII and NYSHRL will be granted.
E. Retaliation Claim (Fourth Cause of Action )
Plaintiff's final claim is that she was subjected to unlawful retaliation after filing her EEOC complaint, in violation of the NYSHRL, New York Executive Law § 296(7).[12] Under the Human Rights law, "it is unlawful to retaliate against an employee for opposing discriminatory practices." Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312, 786 N.Y.S.2d 382, 819 N.E.2d 998 (2004) (citing Exec. Law § 296(7)). To make out a prima facie case of retaliation under NYSHRL, a plaintiff must demonstrate that: "(1) she has engaged in protected activity; (2) her employer was aware that she participated in such activity; (3) she suffered an adverse employment action based upon her activity; and (4) there is a causal connection between the protected activity and the adverse action." Id. at 313, 786 N.Y.S.2d 382, 819 N.E.2d 998. The "burden of proof that must be met to permit a . . . plaintiff to survive a summary judgment motion at the prima facie stage has been characterized as `minimal' and `de minimis.'" Jute v. Hamilton Sundstrand Corp., No. 04-CV-3927, 420 F.3d 166, 173 (2d *217 Cir.2005) (quoting Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir.2005)).
Should the plaintiff establish a prima facie case of retaliation, a presumption of retaliation appears, and the employer must articulate a "legitimate, non-retaliatory reason for the adverse employment action." Id. (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir.1998)). If an employer can offer proof, the presumption disappears, and "the employee must show that retaliation was a substantial reason for the adverse employment action." Id. (citing Fields v. New York State Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 120-21 (2d Cir.1997)).
Defendants move for summary judgment on the grounds that plaintiff cannot demonstrate the adverse employment action necessary to establish a prima facie case of retaliation. It is undisputed that plaintiff has met the first two prongs of her initial burden of establishing a prima facie case of retaliation. Plaintiff (1) participated in a protected activity â she filed a complaint with the EEOC in April of 2002;[13] and (2) defendants were aware of the protected activity â Sciortino admits to receiving notice of plaintiff's EEOC complaint later that month. (DSMF ś 31; see also DSMF, Defs.' Ex. 3, Sciortino Dep. at 86). It is the third prong of the test â that plaintiff suffered an adverse employment action as a result of the filing of her EEOC complaint â that is the focus of this particular dispute.
An adverse employment action is a "`materially adverse change' in the terms and conditions of employment.'" Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir.2004) (quoting Richardson v. New York State Dep't of Corr. Service, 180 F.3d 426, 446 (2d Cir.1999)). It must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000). Adverse employment action is defined broadly, and includes "discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand," as well as lesser actions, such as "negative evaluation letters . . . [and] express accusations of lying." Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir.2001). Further, the Supreme Court has recently held that constructive discharge qualifies as adverse employment action, for purposes of Title VII analysis.[14]Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).
Construed in the light most favorable to plaintiff, as the non-moving party, reasonable jurors could find that plaintiff suffered an adverse employment action. Immediately upon his receipt of the EEOC notice of complaint, Sciortino called plaintiff at her home to complain that plaintiff should have given him a "heads up" before filing the charge. Later, he allegedly told Sheehan that plaintiff had "shot herself in the foot" by filing the EEOC complaint, and that plaintiff should realize that her career with defendants was over. Additionally, plaintiff maintains that immediately after she filed the complaint, she was "shunned" by her co-workers, who "treated *218 [ plaintiff] as an outcast." (Compl.ś 44). She states that soon after she filed the complaint, she felt a "coldness" from her co-workers that she had not felt before. (DSMF, Defs.' Ex. 1, Cox Dep. at 190).
Furthermore, plaintiff argues in the alternative that while the above facts are sufficient to establish a genuine issue of material fact as to whether plaintiff suffered adverse employment action, reasonable factfinders could also find that she was constructively discharged by defendants, which would also constitute an adverse employment action. "[A]n employee is constructively discharged when [her] employer, rather than discharging [her] directly, intentionally creates a work atmosphere so intolerable that [she] is forced to quit involuntarily." Petrosino v. Bell Atlantic, 385 F.3d 210, 229 (2d Cir.2004) (quoting Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir.2003)). Plaintiffs must show either specific intent or "that the employer's actions were `deliberate' and not merely `negligen[t] or ineffective [].'" Id. (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 74 (2d Cir.2000)). Additionally, plaintiffs must objectively demonstrate that the working conditions had become intolerable, or "so difficult and unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Terry, 336 F.3d at 152 (quoting Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir.1996)).
While plaintiff cannot provide specific intent on defendants' part to establish an intolerable work environment, she has provided sufficient evidence to raise questions of fact as to whether defendants deliberately created intolerable working conditions. Reasonable people could find that Sciortino's calling plaintiff at home to complain about her filing of an EEOC complaint, as well as his alleged comments to Sheehan concerning plaintiff's future with defendants was "deliberate." Further, it is possible that reasonable people may find that after filing the EEOC complaint, plaintiff's working conditions were intolerable. After hearing Sciortino's alleged statements, plaintiff may have felt that it was inevitable that she would be fired by defendants, and that working in constant apprehension was intolerable. She also had little support from her co-workers, as they began to shun her immediately after she filed the complaint. In a small office, this coldness could have made it next to impossible for plaintiff to do her job, let alone do it well. Therefore, as reasonable people could also find that plaintiff was constructively discharged, plaintiff has satisfied her burden on the third prong of the retaliation test.
Plaintiff has also presented sufficient evidence to show the causal connection between her protected activity and the adverse employment action. There is not a "bright line" test to define the "temporal relationship . . . [that would] establish a causal relationship." Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir.2001). Instead, "the causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action." Lovejoy-Wilson, 263 F.3d at 224 (quoting Cifra v. GE, 252 F.3d 205, 216 (2d Cir.2001)).
Here, Sciortino called plaintiff the same day that he received notification from the EEOC that plaintiff had filed a complaint. Plaintiff has testified that her co-workers began shunning her and treating her coldly immediately after Sciortino received notice of the complaint. Finally, plaintiff was told of the statements Sciortino allegedly made to Sheehan, regarding plaintiff having "shot herself in the foot" by filing *219 the complaint, sometime in May, just one month after she filed the complaint. This time span is short enough to permit a jury to infer a causal connection.[15]
Plaintiff has thus met her "minimal" burden of establishing a prima facie case of retaliation by defendants. As defendants have not offered a "legitimate, non-retaliatory reason for the adverse employment action," Jute, 420 F.3d 166, 173 (citing Quinn, 159 F.3d at 768), the presumption of retaliation remains, and plaintiff's claim must survive summary judgment. Accordingly, defendants' motion as to plaintiff's retaliation claim must be denied.
IV. CONCLUSION
While plaintiff has established that reasonable jurors could find that defendants violated the EPA by paying plaintiff less than they paid her male counterpart, she has failed to show that defendants had the discriminatory intent necessary to demonstrate a Title VII and/or NYSHRL violation of unequal compensation. However, plaintiff has set forth sufficient evidence to show that there are genuine issues of material fact such that reasonable people could find defendants engaged in unlawful retaliation after plaintiff filed her EEOC complaint, in violation of NYSHRL.
Therefore, it is
ORDERED that
1. Defendants' motions for summary judgment as to plaintiff's Equal Pay Act claim (Second cause of action) is DENIED;
2. Defendants' motion for summary judgment as to plaintiff's Title VII and New York State Human Rights Law claims (First and Third causes of action) of discrimination on the basis of sex are GRANTED; and those causes of action are DISMISSED; and
3. Defendants' motion for summary judgment as to plaintiff's New York State Human Rights Law retaliation claim (Fourth cause of action) is DENIED.
IT IS SO ORDERED.
NOTES
[1] In their Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment, defendants moved to strike Plaintiff's Response to Defendants' Statement of Material Facts, Statement of Material Facts in Dispute, Plaintiff's Memorandum of Law in Opposition to Summary Judgment, and Affidavit of Corrine A. Cox in Opposition to Summary Judgment, because the aforementioned documents relied on Cox's Affidavit, which defendants maintain is inadmissible. (Docket No. 23, Defs.' Reply to Pl.'s Opp. to Defs.' Mot. for Summ. J at 4).
The Federal Rules of Civil procedure provide that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). However, affidavits â especially those in opposition of summary judgment motions â often contain statements that are argumentative, legal conclusions, based on information and belief, or opinions. As such, "a court may strike portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements." Gwynn v. Clubine, 302 F.Supp.2d 151, 159 (W.D.N.Y.2004) (citing United States v. Private Sanitation Indus. Ass'n of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir.1995)). In this case, it is not necessary to strike the entire affidavit.
For purposes of this decision, the Cox Affidavit and Plaintiff's papers that rely upon it will be considered only for the facts that were based upon Cox's personal knowledge, such as her employment experience, job title, and wages.
[2] When proving the second element of discrimination under the EPA, it is insufficient for the plaintiff to illustrate that the two positions in question are "merely comparable." Tomka, 66 F.3d at 1310. While "[a] plaintiff need not demonstrate that her job is identical to a higher paying position," Lavin-McEleney v. Marist College, 239 F.3d 476, 480 (2d Cir.2001), she must meet a high standard and show that the two positions are "substantially equal" in terms of skill, effort, and responsibility, Tomka, 66 F.3d at 1310; see also Heap v. County of Schenectady, 214 F.Supp.2d 263, 271 (N.D.N.Y.2002).
[3] "[T]he `factor other than sex' defense does not include literally any other factor, but a factor that, at a minimum, was adopted for a legitimate business reason." Belfi, 191 F.3d at 136 (quoting EEOC v. J.C. Penney Co., 843 F.2d 249, 253 (6th Cir.1988)).
[4] In Pollis, the plaintiff complained multiple times to her employer about salary discrepancies between herself and her male counterparts, yet her employers continued to pay her less than comparable males at in her position. 132 F.3d at 120. The Second Circuit found that the employer's actions â knowing that the plaintiff was paid less than male counterparts, yet doing nothing to rectify the situation â was "sufficient to support the jury's finding of reckless or willful violation" of the EPA. Id.
[5] Cf. Gandy v. Sullivan County, 24 F.3d 861, 865 (6th Cir.1994) (holding that a plaintiff complaining of a willful violation of the EPA over a ten-year employment period is not barred from filing suit, but "should not be allowed to collect for damages outside the three-year limitations period").
[6] See Shieldkret v. Park Place Entm't Corp., 01 Civ. 5471(HB), 2002 WL 91621, at *3 (S.D.N.Y. Jan. 23, 2002); Hutchins v. Int'l Bhd. of Teamsters, 177 F.3d 1076, 1081 (8th Cir.1999); Irby v. Bittick, 44 F.3d 949, 956 (11th Cir.1995).
[7] See, e.g., 29 U.S.C. § 206(d)(1) (1998); see generally Ryduchowski, 203 F.3d at 142.
[8] Taylor v. White, 321 F.3d 710, 720 (8th Cir.2003) (holding that affirmative defenses relying on prior salary and/or salary-retention policies should be analyzed on a case-by-case basis, "with careful attention to alleged gender-based practices"); but see Balmer v. HCA, Inc., 423 F.3d 606, 611-612 (6th Cir.2005) (holding that employers cannot rely solely on prior salary in an attempt to justify a disparity in compensation).
[9] See 42 U.S.C. § 2000e-2(a)(1) ("It shall be an unlawful employment practice for an employer to . . . discriminate against any individual with respect to his compensation, . . . because of such individual's . . . sex").
[10] See N.Y. Exec. Law § 296(1)(a) ("It shall be an unlawful discriminatory practice [f]or an employer . . ., because of the . . . sex . . . of any individual, . . . to discriminate against such individual in compensation or in terms, conditions, or privileges of employment").
[11] In her Memorandum in Opposition to Summary Judgment, in support of her allegation that defendants possessed the requisite discriminatory intent to demonstrate a violation of Title VII and NYSHRL, plaintiff, for the first time, alleges that she was subjected to a hostile work environment. Plaintiff cannot amend her complaint to add an additional claim simply by raising new facts and allegations in her Opposition Papers. See Kearney v. County of Rockland, 373 F.Supp.2d 434, 441 (S.D.N.Y.2005); Hillaire v. Delta Funding Corp., No. 98-7188, 2002 WL 31123860, at *3 (E.D.N.Y. Sept. 26, 2002); Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 170 F.R.D. 111, 119 (S.D.N.Y.1997) (finding that "it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment"). Accordingly, because nothing in either the EEOC charge or complaint put defendants on notice of this new claim, plaintiff's hostile work environment claim will not be considered.
Moreover, even if the plaintiff's hostile work environment claim were to be considered, plaintiff does not allege sufficient facts to support that cause of action. A plaintiff claiming a hostile working environment must establish that the "workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). "To survive a motion for summary judgment [on a claim of sex-based hostile work environment], a plaintiff . . . must [establish two elements:] (1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir.2003) (quoting Richardson v. New York State Dep't of Corr. Service, 180 F.3d 426, 436 (2d Cir.1999)) (internal quotation marks omitted). The first prong relates to the work environment itself and the effect on the plaintiff, while the second prong "relates to the employer's response to a complaint about the environment." Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir.2000).
Even if the plaintiff could establish the first prong, plaintiff could not establish the second prong. Plaintiff never complained to any superior about an alleged hostile work environment; she did nothing to report Sciortino's alleged conduct to the defendants, so they were precluded from any sort of response, let alone one to remedy the situation. Therefore, even if the plaintiff's hostile work environment claim was considered, because plaintiff does not allege sufficient facts in support of this claim, it would be dismissed.
[12] Claims of retaliation under NYSHRL and Title VII are essentially identical, as the New York courts require the same standard of proof for claims brought under the NYSHRL as those brought under Title VII. See Tomka v. Seiler, 66 F.3d 1295, 1304 n. 4 (2d Cir.1995) (citing Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 498 N.Y.S.2d 776, 489 N.E.2d 745 (1985)); see also Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir.1993) (plaintiff's claim under NYSHRL "is governed by the same standards as his federal claim").
Plaintiff acknowledges that she cannot also bring a Title VII claim for retaliation because the 180-day statutory limitations period on her action passed without her filing a federal action. (Docket No. 19 at 23). See 42 U.S.C. § 2000-e-5(1) (2003) ("A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment . . ."). As such, inquiry will be limited to the retaliation claim under NYSHRL.
[13] See, e.g., Simpson v. New York State Dep't of Civil Service, No. 02-CV-1216, 2005 WL 545349, at *20 (N.D.N.Y. Mar. 1, 2005) ("Plainly the filing of an EEOC complaint is a protected activity") (citing Gregory v. Daly, 243 F.3d 687, 701 (2d Cir.2001)); see also Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir.2001).
[14] This holding also applies to analysis of NYSHRL claims, because as previously discussed, these claims are essentially identical.
[15] See Lovejoy-Wilson, 263 F.3d at 224 (finding that an employee suspension within the same month the complaint was received by the employer demonstrated a causal connection); Richardson v. New York State Dep't of Corr. Service, 180 F.3d 426, 446-47 (2d Cir.1999) (holding that abusive acts within one month of receipt of deposition notices may be retaliation for initiation of lawsuit more than one year earlier); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998) (holding discharge less than two months after plaintiff filed a sexual harassment complaint with management and ten days after filing a complaint with the state human rights office provided evidence of a causal connection between the protected activity and adverse employment action).
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95 F.3d 1036
112 Ed. Law Rep. 90
Cassandra JENKINS, a minor, by her mother and next friend,Sandra HALL; Onieka McKenzie, a minor, by hermother and next friend, ElizabethMcKenzie, Plaintiffs-Appellants,v.TALLADEGA CITY BOARD OF EDUCATION; Susannah Herring,individually and in her capacity as a teacher of GrahamElementary School; Melba Sirmon, individually and in hercapacity as counselor at Graham Elementary School,Defendants-Appellees,Charles Kurley, in his official capacity as Superintendentof the Talladega City School District, et al., Defendants.
No. 95-6243.
United States Court of Appeals,Eleventh Circuit.
Sept. 23, 1996.Order Granting Rehearing En Banc and Vacating Panel OpinionOct. 16, 1996.
Devarieste Curry, Beveridge & Diamond, Washington, DC, for appellants.
Donald B. Sweeney, Jr., Valerie Theresa Kisor, Rives & Peterson, Birmingham, AL, for appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER*, Senior District Judge.
KRAVITCH, Circuit Judge:
1
This action was brought on behalf of two elementary school students who allegedly were strip searched by a teacher and guidance counselor after having been accused of stealing money from a classmate. The district court concluded that defendants were entitled to summary judgment on all claims. In particular, the court granted the individual defendants summary judgment on plaintiffs' § 1983 Fourth Amendment claims. We affirm all of the district court's summary judgment orders, except for the grant of qualified immunity to defendants on the Fourth Amendment claims, which we reverse.
I.
2
In 1992, Cassandra Jenkins and Onieka McKenzie were eight-year-old second graders at Graham Elementary School in Talladega, Alabama. On the afternoon of May 1, one of Cassandra's and Onieka's classmates told their teacher, Hilda Fannin, that $7 was missing from her purse. Another classmate told Fannin that Cassandra had taken the money and stashed it in Onieka's backpack. After searching the backpack and finding no money, Fannin questioned Cassandra and Onieka in the hallway outside the classroom. The girls accused each other, as well as a male classmate, Anthony Jemison, of the theft.
3
As Fannin's questioning of Cassandra, Onieka, and Anthony continued in the hallway, the school music teacher, Susannah Herring, approached. Upon being informed of the theft accusation, Herring took charge of the investigation. First, she instructed the three students to take off their shoes and socks. No money was revealed. Herring then summoned Melba Sirmon, a guidance counselor whose office was nearby. Herring and Sirmon took Cassandra and Onieka to the girls' restroom.
4
Inside the restroom, Herring told Cassandra and Onieka to "check" their clothes for the money. According to Cassandra, Herring ordered them to go inside the stalls and come back out with their underpants down to their ankles.1 As Cassandra and Onieka entered separate stalls and locked the doors, Sirmon left the restroom to check on Anthony, who was waiting outside. Shortly after she returned, according to Cassandra, Cassandra and Onieka emerged from the stalls with their underpants pulled down to their ankles. Herring asked them if they had found the money, and they replied that they had not. Sirmon allowed them to return to their stalls and pull their underpants back up.2
5
Herring and Sirmon then escorted Cassandra, Onieka, and Anthony to the office of the school principal, Crawford Nelson. After hearing Herring's account of what had happened,3 Nelson interrogated the three children about the location of the stolen cash. Anthony claimed that the money was hidden behind a file cabinet and then, when nothing was found there, that it was stashed in a locker. Nelson concluded that Anthony had no idea where the money was and dismissed him.
6
From Nelson's office, Herring and Sirmon took Cassandra and Onieka back to the restroom.4 Inside, Herring ordered the two girls to take off their dresses, which they did. Cassandra was wearing a slip; Onieka was wearing only underpants. Herring then instructed them to shake their dresses, and she shook the slip Cassandra was wearing. After nothing was found, Cassandra and Onieka were allowed to put their dresses back on. This account was corroborated by a witness. Joyce Merritt Shears, the parent of another student, was walking in the hallway past the girls' restroom while Cassandra and Onieka were being searched. Shears heard children crying and an adult say either "remove your slip" or "hold up your slip." Entering the restroom to investigate, Shears saw Cassandra and Onieka, "one in their panties and the other one in their slip."
7
The Talladega City Board of Education ("Board") conducted an investigation of the strip search. After a hearing, the Board concluded that Herring had committed a "gross error in judgment" regarding the manner in which she investigated the alleged theft; that Sirmon had erred in her judgment by assisting Herring, failing to notify the principal immediately, and not calling Cassandra's and Onieka's parents; and that Nelson had erred in his judgment by not calling the girls' parents and failing to establish a uniform policy for dealing with theft in the school. Despite the superintendent's recommendation that Herring be fired, the Board did not impose any serious sanctions.
8
Plaintiffs, on behalf of Cassandra and Onieka, filed a complaint against the Board and nine individual defendants (including Nelson, Herring, and Sirmon) in 1994, alleging, pursuant to 42 U.S.C. § 1983, that they had been strip searched in violation of the Fourth Amendment, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972,5 and also alleging violations of Alabama tort law. The district court initially dismissed all claims for money damages against all defendants, except for those against Herring and Sirmon in their individual capacities and those against the Board. Then, on its own initiative, the court entered an order stating that it was reconsidering whether Herring and Sirmon were entitled to qualified immunity for the allegedly unconstitutional search in light of recent Eleventh Circuit decisions. The court proceeded to grant summary judgment on the basis of qualified immunity in favor of the individual defendants on the Fourth Amendment claim. In addition, the court granted summary judgment for all defendants on the Title VI and Title IX claims, finding no substantial evidence of discrimination based on race or gender; for the Board on the § 1983 Fourth Amendment claim, finding no basis for municipal liability; for all defendants on the claims for injunctive and declaratory relief, finding that the plaintiffs lacked standing to bring these claims; and for individual defendants on the state law claims, finding that the defendants were entitled to qualified immunity under Article I, § 14 of the Alabama Constitution. Plaintiffs now appeal.
II.
9
We affirm the grant of summary judgment for all defendants on the Title VI and Title IX claims, for the Board on the Fourth Amendment § 1983 claim, for all defendants on the claims for injunctive and declaratory relief, and for the individual defendants on the state law claims.6 This leaves the issue of § 1983 qualified immunity for the individual defendants on plaintiffs' Fourth Amendment claims.
10
The district court granted Herring and Sirmon qualified immunity, concluding that Fourth Amendment law was not "clearly established" as applied to their conduct.7 We reverse the district court's decision because Fourth Amendment law was sufficiently clear in 1992 that there could be no doubt that Herring's and Sirmon's actions (construing the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiffs at the summary judgment stage) were unconstitutional.
III.
11
Before reaching the merits, we wish to clarify some general qualified immunity issues that seem to have confused the district court and defendants in this case.
12
The Supreme Court's qualified immunity doctrine attempts to strike a balance between two competing concerns: the necessity for constitutional damages actions against public officials because such actions "may offer the only realistic avenue for vindication of constitutional guarantees" and the need to limit the costs to individuals and society created by litigation against public officials--including diversion of official energies from pressing public issues, deterrence of able citizens from acceptance of public office, and "the danger that fear of being sued will 'dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.' " Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982) (quoting Gregoire v. Biddle, 177 F.2d 579, 582 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950)).
13
In its effort to strike the optimal balance, the Supreme Court in Harlow v. Fitzgerald established an objective test for qualified immunity: government officials performing discretionary functions are immune from § 1983 liability for monetary damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S. 800, 817-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In Anderson v. Creighton, the Court explained when a right is "clearly established":
14
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.
15
483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citations omitted).
16
These standards allow us to filter out the most culpable or least competent public officials and make them liable for damages, thereby striking the balance sought in Harlow by permitting the vast majority of government to operate free from panoptic judicial oversight or constitutional job descriptions while still retaining a viable avenue for vindication of constitutional guarantees.
17
Since Anderson, this court has devoted much effort to staking out an operational standard somewhere between the Anderson Court's polar extremes: "in light of pre-existing law the unlawfulness must be apparent," but "the very action in question [need not have] previously been held unlawful." Over-emphasizing either of the Anderson poles flouts the Supreme Court's efforts to construct a meaningful doctrine of qualified immunity. To treat each set of facts as unique and legally indeterminate would make qualified immunity absolute by denying that any unlawful conduct violates rights that were "clearly established." At the other extreme, relying on abstract, highly general formulations of rights would effectively abrogate immunity by declaring every violated right "clearly established." After Anderson, then, this court has sought a stable equilibrium between these opposing pressures.
18
Although there is no doubt that qualified immunity law in this circuit has evolved in its application to some extent in the direction of more protection for government officials, this has simply been the result of implementing the Anderson Court's clarification of the appropriate level of generality at which a right must be "clearly established" for purposes of qualified immunity. See Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1150 (11th Cir.1994) (en banc) ("The most common error we encounter ... occurs on this point: courts must not permit plaintiffs to discharge their burden by referring to general rules and to the violation of abstract 'rights.' ") (citing Anderson, 483 U.S. at 637-41, 107 S.Ct. at 3038-39).
19
Some of our efforts, however, have been misinterpreted as a sea change in qualified immunity. For instance, the district court in this case originally concluded that Sirmon's and Herring's actions did violate clearly established Fourth Amendment law, but it felt obligated to reconsider sua sponte based on its reading of some recent Eleventh Circuit qualified immunity cases. See, e.g., Lassiter, 28 F.3d 1146.8
20
Notwithstanding Lassiter 's admonition that the court was announcing no "[n]ew rules," but merely "for emphasis ... restat[ing] principles which do govern qualified immunity cases," 28 F.3d at 1149, that opinion has been misconstrued as announcing a sweeping change. For instance, the statement in Lassiter that "[f]or qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances," Lassiter, 28 F.3d at 1150, has been read by some to indicate that qualified immunity is due every official unless this court has addressed essentially identical facts in a previous case. But Lassiter merely rephrases the Anderson standard, "in the light of pre-existing law the unlawfulness must be apparent." Lassiter does not abrogate Anderson 's recognition that "the very action in question [need not have] previously been held unlawful" nor could it have.
21
Likewise, other cases have been misconstrued. We can all agree that "[i]f case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant," Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993), modified, 14 F.3d 583 (11th Cir.1994). This is another restatement of the Anderson requirement that the law must be apparent, but it does not answer the question "how bright?" or define the set of cases gestured towards by "almost." In other words, these recent cases have not eviscerated Anderson 's recognition that "the very action in question [need not have] previously been held unlawful." Thus, the basic principles of qualified immunity doctrine remain unchanged.
22
The confusion over qualified immunity is exemplified by defendants' apparent assumption that relevant law can be "clearly established" only when there exist cases with facts materially similar to those of the case at hand, as evidenced by their insistence that qualified immunity is due here because this court has never addressed a factually similar case. This argument is false in at least two circumstances: those in which the official misconduct is more egregious than conduct of the same general type that has been deemed illegal in other cases9 and those rare cases in which application of the legal standard would necessarily lead reasonable officials in the defendant's situation to but one inevitable conclusion. It is the latter we are most interested in here.
23
Lassiter explicitly left "open the possibility that occasionally the words of a federal statute or federal constitutional provision will be specific enough to establish the law applicable to particular circumstances clearly and to overcome qualified immunity even in the absence of case law." Lassiter, 28 F.3d at 1150 n. 4. It, of course, follows that if a federal statute or federal constitutional provision can clearly establish the law in the absence of case law, the Supreme Court's pronouncement of a constitutional test could also be specific enough to do so.
24
That the law can be clearly established where the application of a constitutional standard leads to an inevitable conclusion that the acts are unconstitutional should be obvious given the purposes of qualified immunity. If a government official with even the most rudimentary, not to say reasonable, understanding of relevant law would have no doubt that his conduct was unconstitutional or otherwise illegal, then it would be perverse to immunize him from liability simply because his behavior was more egregious than any on record or because this court never before faced a similar set of facts.
25
Our circuit recently applied this very reasoning. In McMillian v. Johnson, 88 F.3d 1554 (11th Cir.1996), the plaintiff contended that, by placing him on deathrow while he awaited trial, local officials had violated his due process right to be free from punishment as a pretrial detainee. The lack of cases with materially similar facts did not preclude the McMillian court from denying summary judgment to the defendants on qualified immunity grounds. The court found that the Supreme Court's constitutional directive as set forth in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)--that officials cannot impose conditions on pretrial detainees with an intent to punish--would have put any reasonable official on notice that the acts alleged in McMillian violated clearly established law:
26
[F]or the law to be clearly established, a court need not have found the very action in question unlawful; what is essential is that the action's unlawfulness be apparent in light of pre-existing law. Jordan [v. Doe ], 38 F.3d [1559,] 1566 [ (11th Cir.1994) ]. ]. We do not view the absence of a case factually similar to the extraordinary allegations in this case as an indication that the law was not clearly established that confining a pretrial detainee on death row to punish him is unconstitutional. Bell's prohibition on any pretrial punishment, defined to include conditions imposed with an intent to punish, should have made it obvious to all reasonable officials in [defendants'] place that holding [plaintiff] on death row to punish him before he was tried violated [his] due process rights.
27
McMillian, 88 F.3d at 1565 (emphasis added). Thus, McMillian held that, at least for purposes of the case before it, the Bell rule clearly established the law.
28
Defendants next argue that even if a constitutional standard might clearly establish the law in some circumstances, the relevant law can virtually never be clearly established by cases that employ balancing tests. (New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), the case governing application of the Fourth Amendment to school searches, uses a balancing test.) The premise appears to be that balancing tests, by their nature, do not stake out a bright enough line to put public officials on notice of when their conduct violates a constitutional right.
29
The defendants' premise is flawed. It is indisputable that cases applying the balancing test may well make its application to allegedly unconstitutional conduct entirely determinate.10 Thus, there never has been any doubt that public officials can be stripped of qualified immunity when, for instance, they conduct a warrantless search that could not reasonably be thought supported by probable cause or exigent circumstances.11 And, although it is true that the mere statement of a balancing test (or other flexible legal standard) will usually be insufficient to determine whether particular conduct is clearly illegal, such a test, like other legal standards or statutes, may be sufficient to clearly establish the law in some, albeit rare, circumstances. See Oladeinde v. City of Birmingham, 963 F.2d 1481, 1487 (11th Cir.1992) (concluding, without citing a materially similar case, that application of the balancing test in that case would lead to the "inevitable conclusion" that defendants violated the Constitution) (Edmondson, J.), cert. denied, 507 U.S. 987, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993).
30
It is, therefore, misleading to speak of a separate category of cases in which there is no "bright-line" rule that "puts the reasonable public [official] on notice of a constitutional violation," but in which the official is nonetheless not entitled to qualified immunity when application of a balancing test "would lead to the inevitable conclusion" that the official's conduct was unconstitutional. Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989) (acknowledging a balancing test will lead to the inevitable conclusion that a defendant's conduct violated clearly established law in some cases). If the facts of other cases applying the balancing test or the test itself leads to such an "inevitable conclusion," then the "bright-line" has been drawn.
IV.
31
The qualified immunity question presented by this case is whether Fourth Amendment law "clearly established" that the search of Cassandra and Onieka conducted by Herring and Sirmon was unconstitutional.12 The application of the Fourth Amendment to searches of public school students is13 governed by New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). T.L.O., a 14-year-old high school student, was spotted by a teacher smoking in the bathroom. When questioned by a school administrator, T.L.O. denied smoking in the bathroom and claimed that she did not smoke at all. The administrator demanded and opened T.L.O.'s purse, discovering a pack of cigarettes. Reaching into the purse for the cigarettes, the administrator noticed a package of rolling papers. The administrator, suspecting that further evidence of drug use might be found, proceeded to search the purse thoroughly, revealing marijuana and various implements of dealing the drug. 469 U.S. at 325-36, 105 S.Ct. at 735-36.
32
After deciding that the Fourth Amendment applies to searches of public school students, the Court held that the search of T.L.O.'s purse was not unreasonable. Balancing "the child's interest in privacy" against "the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds," id. at 338-39, 105 S.Ct. at 741, the Court concluded that the reasonableness of a school search was determined by a two-part inquiry--whether it was (1) justified at its inception and (2) permissible in scope--with no requirement of probable cause. Id. at 339-43, 105 S.Ct. at 742-43. In particular, the Court specified the following standards:
33
Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
34
Id. at 341-42, 105 S.Ct. at 743.
35
We apply these precepts to the case at hand. In doing so, we note that this circuit, before May 1, 1992, had not had the opportunity to apply T.L.O.'s standards in factually similar circumstances. The lack of Eleventh Circuit case law does not, however, preclude us from determining whether the Supreme Court's directive itself would have led reasonable school officials to the inevitable conclusion that their behavior violated the Constitution.
36
We will assume that the searches of Cassandra and Onieka in this case comprised a single, step-by-step search that was justified at its inception.14 For the purposes of this case, we will assume that their classmate's accusation may have provided "reasonable grounds" for searching Onieka's backpack and, perhaps, even for requiring the children to remove their shoes and socks. We will also assume that these first stages of the overall search were reasonable in scope. It is the following stages, the restroom searches, and their expansion in scope that create the glaring problem.
37
Under T.L.O., the two restroom searches in which Cassandra and Onieka were required to undress were unconstitutional unless they were " 'reasonably related in scope to the circumstances which justified the interference in the first place.' " T.L.O., 469 U.S. at 341, 105 S.Ct. at 743 (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)). More specifically, in order for the scope of these searches to be permissible, "the measures adopted" must have been "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Id. at 342, 105 S.Ct. at 743.
38
Thus, T.L.O. requires us to consider several factors in determining whether the scope was permissible: whether there was a reasonable relationship between the scope of the search (the measures adopted) and the objectives of the search; the intrusiveness of the search in light of the age and sex of the student; and the intrusiveness of the search in light of the nature of the infraction.
39
To determine whether the scope of a search is reasonably related to its objectives, we must examine the measures adopted here. Strip searches are among the most intrusive of searches.15 This fact is self-evident. As this court, in the course of its most thorough consideration of the constitutionality of strip searching minors, has recognized: "It is axiomatic that a strip search represents a serious intrusion upon personal rights. In Mary Beth G. [v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir.1983) ], the court referred to strip searches as 'demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.' " Justice v. City of Peachtree City, 961 F.2d 188, 192 (11th Cir.1992).16 Moreover, the perceived invasiveness and physical intimidation intrinsic to strip searches may be exacerbated for children. See Justice, 961 F.2d at 192 ("[c]hildren are especially susceptible to possible traumas from strip searches") (internal quotation marks omitted). Consequently, for the extreme invasion of privacy inflicted by a strip search to be "reasonably related to the objectives of the search," these objectives must carry tremendous weight.17
40
We next look at the objectives of the search and whether they were reasonably related to the methods chosen, i.e., whether the search was " 'reasonably related in scope to the circumstances which justified the interference in the first place.' " T.L.O., 469 U.S. at 341, 105 S.Ct. at 743 (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)).18 In applying this rule in Terry, the Court determined whether the search was "confined in scope to an intrusion reasonably designed to discover" the items sought and "confined ... strictly to what was minimally necessary" to locate those items. Terry, 392 U.S. at 29-30, 88 S.Ct. at 1884-85.
41
We must decide, therefore, whether the extreme intrusiveness involved in the strip searches here was "reasonably related" to the objective of discovering the allegedly stolen cash. Because the possibility of finding the cash in the two restroom searches was slight (at best), we conclude that the extreme measures adopted here were not reasonably related to the objectives of the search.
42
A second-grader reported $7 missing. Her teacher never asked her whether she might have lost the money or forgotten that she spent it. Fannin simply asked another student whether she knew anything about the missing money. That student reported that Cassandra had taken the money and put it in Onieka's backpack. Fannin never asked that student how she knew, whether she had seen the event, or, if not, who told her about it. And there is no evidence that Onieka or Cassandra had stolen anything before. The failure to locate the money in Onieka's backpack, where it was reportedly stashed, casts further doubt on the reliability of the informant's story and, thus, the justification for the investigation. Furthermore, Fannin did not check Cassandra's bag or any other area of the room before handing the investigation over to Herring.
43
When Herring accepted responsibility for the investigation, she did not ask Fannin about any of the details, including who had originally accused the girls or how the accuser knew the girls had taken the money. All she knew was that the girls had been accused of taking $7 and that they, in turn, accused each other and Anthony Jemison of stealing the cash. With only this evidence in hand and without seeking any specifics from the children about the theft, she made the girls and Anthony remove their shoes and socks.19 When the money was not found there, she proceeded, with Sirmon, to take the girls to the restroom to search them even though no one had reported that either of the girls had hidden the money in her underclothing and there was no evidence that the girls had ever hidden money or contraband in their clothing before. The entire restroom search was apparently premised on the fact that one of the girls had been to the restroom before the money was reported missing. If this were the reason for concluding the money was hidden in one of the girl's underclothing, Sirmon and Herring might have had arguable, albeit slight, grounds for believing that a first search of that girl's underclothing would lead to evidence of the theft. There were no grounds, however, for taking both girls to the restroom.
44
After finding nothing in the girls' underpants during the first search, Sirmon and Herring took them to the restroom a second time. If the method chosen in the first restroom search was highly unlikely to lead to evidence, then requiring the girls to undress a second time was completely unlikely to end in discovery of the cash. Having looked in the girls' underpants, the probability that the money could have been hidden anywhere else on the children's persons (especially after a walk to and from the principal's office) was almost nil. Thus, even at this stage of the inquiry it is difficult to believe that any reasonable school official could surmise that it was constitutionally permissible to conduct these two highly intrusive searches where there was such a negligible possibility that any evidence of the infraction would be found. T.L.O., however, gives us further guidance.
45
Under T.L.O., the nature of the infraction is another factor to be weighed in determining the permissible intrusiveness or scope of a search. One can imagine the range of possible school-place infractions as a spectrum with the most serious infractions falling at one end. While reasonable school officials would disagree about exactly where the infraction at issue here might fall along the spectrum, the following generalizations are certain. It is obvious that an infraction that presents an imminent threat of serious harm--for example, possession of weapons or other dangerous contraband--would be the most serious infractions in the school context.20 Thus, these offenses would exist at one end of the spectrum. Thefts of valuable items or large sums of money would fall a little more toward the center of the spectrum. Thefts of small sums of money or less valuable items and possession of minor, nondangerous contraband would fall toward the opposite extreme of the spectrum. Such infractions would seldom, and probably never, justify the most intrusive searches. It follows that the infraction at issue here, the theft of $7, while perhaps not a trespass to be taken lightly, is, nonetheless, an offense which would not justify a highly intrusive search, and certainly not where the likelihood of finding evidence of the offense was as weak as it was here.
46
T.L.O. also requires us to take the student's age into consideration. The students in this case were extremely young, only second graders. The Supreme Court did not elaborate on how we should consider age. See, e.g., Cornfield, 991 F.2d at 1321 (discussing issue). Nevertheless, regardless of a student's age, T.L.O. forbids school officials from undertaking the most intrusive of searches where the infraction is relatively minor and presents no threat of imminent danger and where it is highly unlikely that the search will turn up evidence of the infraction. To conclude otherwise would be to read T.L.O. such that it does not protect elementary school students at all.
47
Considered together, the factors identified in T.L.O.--the glaring disproportion between the objectives of the searches and the measures adopted and the trivial nature of the infraction--point unequivocally to the unreasonableness of the two restroom searches at issue here. Even if the T.L.O. reasonableness standard is indeterminate for a broad category of school searches, it indisputably prohibits strip searches of students in this situation.21 Sirmon and Herring, therefore, are not entitled to qualified immunity, because the T.L.O. standard would have led any reasonable school official in their circumstances to the inevitable conclusion that the conduct charged here violated the Constitution.
48
The line drawn in T.L.O. may not be bright enough to dictate the results of cases closer to the line, for example, cases in which there is a reasonable suspicion that a student has hidden on his or her person drugs or weapons.22 The facts presented at the summary judgment stage in the case now before us, however, are clearly far to the unconstitutional side of that line. Cassandra and Onieka were eight-year-old elementary school students. They were accused of stealing $7 that may or may not have been missing, solely on the basis of the accusation of a second-grade classmate; there was no evidence that they had ever before stolen money or hidden anything in their clothing. Even if the girls had possessed the cash (which they apparently did not), their infraction would have threatened no imminent or serious harm. Nevertheless, even after investigations of Onieka's backpack and both girls' shoes and socks had revealed no money and without making any further inquiries into the matter, Herring and Sirmon twice forced Cassandra and Onieka to undress and submit to inspection. Reasonable teachers or school officials in their positions could not have believed that the Fourth Amendment, in light of T.L.O., would allow such a search. We conclude, based on the facts presented at the summary judgment stage, that Herring and Sirmon acted in blatant disregard of the Fourth Amendment. Consequently, they are not entitled to qualified immunity.
V.
49
The district court's orders granting summary judgment for defendants Herring and Sirmon on the basis of qualified immunity from plaintiffs' § 1983 Fourth Amendment claims are REVERSED. The district court's other summary judgment orders in this case are AFFIRMED.
BIRCH, Circuit Judge, dissenting:
50
I respectfully dissent. Although I am outraged by the conduct of the schoolteachers in this case and am convinced that they left their better judgment at home on May 1, 1992, I cannot conclude that these individuals understood or should have understood that the strip searches that they conducted were violative of the clearly established Fourth Amendment rights of these second-grade students. While it is easy to second-guess school personnel in a courthouse far removed from the tumult and tumble of the work-a-day world of the schoolhouse with the aid of twenty-twenty hindsight, the majority does a grave disservice to our law and to public servants in determining that these individuals violated the exceedingly limited constitutional rights of schoolchildren.1 See C.B. ex rel. Breeding v. Driscoll, 82 F.3d 383, 385 (11th Cir.1996). Furthermore, no policy had been formulated by the Talladega City Board of Education or the Graham Elementary School regarding student searches during the 1991-1992 school year. Stolen money previously had been recovered through searches of students' attire at Graham Elementary School.2 Moreover, as the district judge ascertained, there was no binding, clearly established law that these schoolteachers violated in conducting the challenged strip searches.
51
"For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant's place, that 'what he is doing' violates federal law."3 Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1149 (11th Cir.1994) (en banc) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)) (emphasis added). The Lassiter court admonished that the facts of cases relied upon as precedent must be "materially similar"; "[p]ublic officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases." Id. at 1150 (quoting Adams v. St. Lucie County Sheriff's Dept., 962 F.2d 1563, 1575 (11th Cir.1992) (Edmondson, J., dissenting), adopted en banc, 998 F.2d 923 (11th Cir.1993) (per curiam)) (alteration in original). If the standard for qualified immunity were whether preexisting law had established that the strip searches by the schoolteachers in this case, when they occurred, might have been unlawful under federal law, then the majority opinion might be correct. That standard, however--the "it might be unlawful" standard--according to the Supreme Court and repeated decisions of this court is not the proper standard. See Muhammad v. Wainwright, 839 F.2d 1422, 1425 (11th Cir.1987) ("[A]t the relevant time, defendants, at best, had only some reason to suspect that their actions might be unlawful. Such a suspicion is inconsistent with the 'clearly established' standard enunciated by Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ] and its progeny."); see also Davis v. Scherer, 468 U.S. 183, 196, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984) ("[O]fficials should not err always on the side of caution."); accord Lassiter, 28 F.3d at 1149; Lenz v. Winburn, 51 F.3d 1540, 1551 (11th Cir.1995).
52
Indeterminacies, speculations, and predictions have no place in our qualified immunity law. Elementary schoolteachers, nonlawyers whose primary responsibilities are education and the daily administration of their classrooms, cannot be required to foresee how the Eleventh Circuit would apply Supreme Court precedent and decide this particular factual situation if presented. That would be not only an unprecedented but also an unreasonable standard. Accordingly, the majority's reliance on New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), involving the purse search of a high school student and the discovery of contraband, is misplaced because T.L.O. is not factually similar to the strip searches that we review and cannot be clearly established law to resolve this case, much less dicta in T.L.O.
53
Because of its "practical application," qualified immunity is judged by the conduct of government personnel at the time that they acted, "not by hindsight, based on later events." Lassiter, 28 F.3d at 1150; see Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (per curiam) ("[T]he court should ask whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed five years after the fact." (emphasis added)). On May 1, 1992, the date of the strip searches at issue in this case, there was no clearly established law regarding the unconstitutionality of strip searches of schoolchildren from the Supreme Court, the Eleventh Circuit, or the Alabama Supreme Court.4 See Courson v. McMillian, 939 F.2d 1479, 1498 n. 32 (11th Cir.1991) (holding that "clearly established" law for deciding qualified immunity in this circuit consists of effective decisions at the time of the challenged conduct by the United States Supreme Court, the Eleventh Circuit Court of Appeals, or the highest state court in the state where the case originated); accord Hamilton ex rel. Hamilton v. Cannon, 80 F.3d 1525, 1532 n. 7 (11th Cir.1996); Haygood v. Johnson, 70 F.3d 92, 95 (11th Cir.1995) (per curiam); D'Aguanno v. Gallagher, 50 F.3d 877, 881 n. 6 (11th Cir.1995).
54
Whatever bolstering of its decision the majority seeks to accomplish by the repetition of dicta in Justice v. City of Peachtree City, 961 F.2d 188 (11th Cir.1992), decided on May 14, 1992, is inappropriate. See Majority at 1044, 1046-47 n. 20. Not only did that case involve the lawful, custodial strip search of a female high school student upon reasonable suspicion that she possessed contraband, but also Justice could not have been clearly established law for the subject strip searches of these second-graders that occurred thirteen days earlier. Equally inapplicable under our circuit definition of clearly established law as to the date of the questioned conduct is nonbinding case law of other federal circuit and district courts. Cf. id. at 1043 ("If the facts of other cases applying the balancing test or the test itself leads to such an 'inevitable conclusion,' then the 'bright-line' has been drawn."); see id. at 1047 & n. 21.
55
I agree that, for preexisting law to establish that a particular act is unlawful, it is not essential that the facts of the earlier case be identical to the facts surrounding the conduct that is being challenged as unlawful. For example, if a precedent holds that, under certain circumstances, it is unlawfully cruel to cut off two fingers, that precedent clearly would establish that it would be unlawful to cut off three fingers under the same circumstances. This case, however, has nothing to do with that kind of case law.5 In this case, no precedent is factually close enough to have given much guidance to these schoolteachers under the circumstances. Sitting en banc, we have said--over Judge Kravitch's dissents--that public officials need not be able to draw analogies from earlier cases to avoid personal liability for damages. Lassiter, 28 F.3d at 1150; Adams, 998 F.2d at 923. For elementary schoolteachers to be competent in their jobs, it is not yet required that they think like a constitutional lawyer, much less like an activist one. Moreover, we have said repeatedly en banc--again in the face of Judge Kravitch's dissents--that the cases serving as precedent, those that supposedly established the law applicable to the circumstances in which a defendant public official found himself, must be materially similar factually to the circumstances confronting the defendant public official if that earlier case law is to guide public officials sufficiently to place them in jeopardy of losing immunity. See Lassiter, 28 F.3d at 1149-51; Adams, 998 F.2d at 923.
56
No decision cited by the majority provides adequate precedent as clearly established law to guide the conduct of the schoolteachers in this case. Unlike many cases cited by the majority to support its decision, this case does not involve police officers or law enforcement personnel. This case is about schools. Significantly, it concerns a specific type of school, an elementary school.
57
A high school and an elementary school are materially different places. The children in an elementary school are considerably younger and less mature, including less physically mature, than high school students. In elementary schools, the relationship between the teacher and students, who are young children, is much closer to that of parent and child than in high schools, where the students are approaching adulthood. In the first two or three grades in elementary school, the notion of in loco parentis, where teachers stand in the place of parents, has real meaning and a long and venerable tradition.6 For example, many a young schoolchild properly has been helped to change clothes, consisting of putting on or taking off clothes, by a schoolteacher.
58
The Supreme Court's T.L.O. decision involved a teenage high school student, obvious violation of the established school rule against smoking, and a consequent purse search revealing contraband. These facts materially distinguish T.L.O. from this case. The Supreme Court's opinion in T.L.O. was written against the background of the facts before it. While T.L.O. contains some general language to guide trial courts faced with searches by school employees, that standard is a broadly composed one: basically, it is a reasonableness test. The "reasonableness, under all the circumstances" rule in T.L.O. gives little practical guidance to teachers facing facts unlike those in T.L.O. T.L.O., 469 U.S. at 341, 105 S.Ct. at 742. As we explained en banc in Lassiter, an abstract standard is insufficient guidance until trial courts have demonstrated its application in various factual situations. Lassiter, 28 F.3d at 1150.
59
The facts of T.L.O. are too different from this case to have dictated to reasonable elementary schoolteachers that the searches conducted already had been clearly established as unlawful. This conclusion, that is, that preexisting law did not dictate to reasonable teachers that their conduct in this case was unconstitutional, seems particularly strong upon consideration that the Supreme Court, aside from college and university cases, has never held any search based on individualized suspicions of a student by schoolteachers, including the T.L.O. search, to be unlawful under federal law, and neither have we or the former Fifth Circuit. Consequently, no bright lines had been delineated to help the teachers in this case to know what to do.7
60
While I agree that, for preexisting law to dictate a result in a particular case, the facts need not be exactly the same, they must be considerably closer than the analogies that the majority uses. Clearly established, preexisting law is a pragmatic concept, which the Supreme Court has stressed repeatedly. In my judgment, clearly established law means what it says, and our circuit cases teach that it means more than the majority of this panel seems to think that it means.
61
In conducting the challenged searches in this case, the schoolteachers might not have exercised good judgment or done what was right, but that is a very different concept from concluding that they violated clearly established federal law. The schoolteachers' searches at issue in this case even may have violated the Fourth Amendment, but that conclusion is not unquestionably clear to me under our present circuit law.8 It does seem plain to me, given T.L.O.'s sliding scale of reasonableness in view of all of the circumstances and the specific situation confronting the school personnel in this case, that by no means was it already clearly established when the school personnel acted that their conduct was unlawful. To say otherwise, I respectfully submit, is to demote a common sense safeguard--clearly established law--to a legal fiction.
62
While explaining its decision, the majority has written many statements that conflict with the law of this circuit, as I understand it. I am not going to bicker, however. Whatever our precedents say, they speak for themselves. Looking chiefly at Lassiter, the district judge believed that the law of this circuit required him to grant qualified immunity. I think that the judge was right, and I would affirm the district court's judgment.
63
Before HATCHETT, Chief Judge, and TJOFLAT, KRAVITCH, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges.
Oct. 16, 1996
BY THE COURT:
64
A member of this court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges of this court in active service having voted in favor of granting a rehearing en banc,
65
IT IS ORDERED that the above cause shall be reheard by this court en banc. The previous panel's opinion is hereby VACATED.
*
Honorable William W. Schwarzer, Senior U.S. District Judge for the Northern District of California, sitting by designation
1
Herring claims that she merely told Cassandra and Onieka to "check" their clothes, not to remove them
2
Onieka testified that she and Cassandra pulled their underpants down and back up while inside the locked stalls and that neither came out of the stalls with her underpants down
3
Although Herring apparently did not inform Nelson that Cassandra and Onieka had removed their clothes in the restroom, Nelson testified that he expressed disapproval of her forcing the girls to remove their shoes and socks
4
Herring and Sirmon assert that they only took Cassandra and Onieka to the restroom once, before they met with Nelson; thus, they dispute the girls' description of the second restroom incident in its entirety. There is no evidence that Nelson authorized or was aware of a second restroom trip
5
Cassandra and Onieka, who are black, claim that the searches conducted by Herring and Sirmon, who are white, were discriminatory based on race and gender. With respect to gender, plaintiffs observe that Anthony Jemison was not strip searched despite also being accused of the theft. With respect to race, they point to other searches in Talladega schools that, they allege, demonstrate a correlation between the intrusiveness of the searches and the race of the students searched. After carefully reviewing the record, we agree with the district court that the plaintiffs have failed to present sufficient evidence of discrimination based on gender or race to survive the summary judgment motion
6
Although we do not adopt the district court's thorough memorandum opinions on these issues as part of the opinion of this court, we generally find the court's analysis cogent and persuasive. Plaintiffs' contentions on appeal regarding these issues lack merit
7
The district court also granted qualified immunity to Nelson. On appeal, plaintiffs seem to argue that Nelson should be stripped of immunity because he violated clearly established law by failing to train teachers in proper search methods. This argument confuses individual liability for a constitutional violation with municipal liability under § 1983. Plaintiffs do not appear to claim that Nelson's alleged failure to train teachers amounts to an independent constitutional violation for which he could potentially be held liable in his individual capacity. Thus, the issue of qualified immunity should not even arise with respect to Nelson. We affirm the district court's grant of summary judgment in favor of Nelson
8
In addition to Lassiter, the district court cited Spivey v. Elliott, 41 F.3d 1497 (11th Cir.1995); Belcher v. City of Foley, 30 F.3d 1390 (11th Cir.1994); and Post v. City of Ft. Lauderdale, 7 F.3d 1552 (11th Cir.1993), modified, 14 F.3d 583 (11th Cir.1994)
9
See Dolihite v. Maughon, 74 F.3d 1027, 1048 (11th Cir.1996) (examining the facts to determine whether or not the act alleged in that case was "as egregious as [previous] cases, or more so"). In other words, if cases make clear that conduct x is constitutionally or statutorily forbidden, then the law is certainly "clearly established" with respect to conduct y if y is worse than x relative to the reason x is unconstitutional or otherwise illegal. And this is so even if--or especially if--the facts of y differ considerably from the facts of x:
It begins to seem as if to survive a motion to dismiss a suit on grounds of immunity the plaintiff must be able to point to a previous case that differs only trivially from his case. But this cannot be right. The easiest cases don't even arise. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances.
K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir.1990).
10
As Lassiter reiterated:
"If case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant." Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993), modified, 14 F.3d 583 (11th Cir.1994); accord Kelly v. Curtis, 21 F.3d 1544, 1554 (11th Cir.1994). "The line is not to be found in abstractions--to act reasonably, to act with probable cause, and so forth--but in studying how these abstractions have been applied in concrete circumstances." Barts [v. Joyner ], 865 F.2d [1187,] 1194 [ (11th Cir.1989), cert. denied, 493 U.S. 831, 110 S.Ct. 101, 107 L.Ed.2d 65 (1989) ].
Lassiter, 28 F.3d at 1150.
11
See, e.g., Anderson, 483 U.S. at 635, 107 S.Ct. at 3034 (assuming this to be true while emphasizing that the converse is also true); Williamson v. Mills, 65 F.3d 155, 157-58 (11th Cir.1995) (no qualified immunity for police officer on Fourth Amendment false arrest claim where "pre-existing law compels the conclusion" that officer lacked "even arguable probable cause"); Hartsfield v. Lemacks, 50 F.3d 950, 955 (11th Cir.1995) (no qualified immunity for police officer who failed to make reasonable effort to identify residence to be searched where "all reasonable police officers should have known" that this violated the law); Swint v. City of Wadley, 51 F.3d 988, 996-1000 (11th Cir.1995) (no qualified immunity for police officers who conducted warrantless searches and seizures without, in light of the facts of analogous Fourth Amendment cases, "even arguable probable cause"); Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir.1990) ("[A]pplying the qualified immunity test in the context of Plaintiff's alleged unlawful arrest, we must determine whether reasonable officers in the same circumstances and possessing the same knowledge as the Defendants could have believed that probable cause existed to arrest Plaintiff....")
12
Harlow requires that the defendant official prove that "he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred," before the burden of proof shifts to the plaintiff to demonstrate that the defendant violated clearly established law. Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983). Plaintiffs in this case concede that Herring and Sirmon were acting within the scope of their discretionary authority at the time of the search
13
Although we use the present tense here, our analysis of the relevant law is historical: we are interested in the state of the law at the time of the alleged unconstitutional conduct, May 1, 1992
14
Alternatively, we could conceptualize what occurred as a series of separate searches, each requiring independent justification at its inception. Cf. T.L.O., 469 U.S. at 341-49, 105 S.Ct. at 743-46 (Court treated the initial investigation of T.L.O.'s purse for cigarettes and the continued investigation after rolling papers were spotted as separate searches, concluding that each was justified at its inception). As indicated by our discussion later in the text where we address whether the search was reasonable in scope, the two restroom searches probably were not justified at their inceptions. We choose not to rest our holding on this inquiry, however, because the more blatant injustice in this case is the ultimate scope of the search conducted by Herring and Sirmon
15
We recognize that some types of strip searches, such as body cavity searches, are even more intrusive than the search conducted in this case. We also note that a strip search performed by someone of a different gender from the person searched will be considered significantly more intrusive than a same-sex search
16
Justice was decided a few days after the events at issue here and, therefore, does not clearly establish the law in this case for qualified immunity purposes. We cite the case not as an illustration of clearly established law but as evidence that the point at issue here--that strip searches are inherently among the most intrusive of searches--is self-evident, as the Justice court itself concluded
17
See Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1321 (7th Cir.1993) ("[A]s the intrusiveness of the search of a student intensifies, so too does the standard of Fourth Amendment reasonableness. What may constitute reasonable suspicion for a search of a locker or even a pocket or pocketbook may fall well short of reasonableness for a nude search.")
T.L.O.'s sliding scale for reasonableness determinations is an inherent part of Fourth Amendment jurisprudence in those cases, like T.L.O., where, although probable cause is not required, a "reasonableness" standard still applies. T.L.O., 469 U.S. at 341, 105 S.Ct. at 742-43, cites Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Terry teaches that "[t]he scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible." 392 U.S. at 19, 88 S.Ct. at 1878 (citations and internal quotation marks omitted). See also, e.g., United States v. McMurray, 747 F.2d 1417, 1420 (11th Cir.1984) (requiring, in the customs context, that as intrusiveness increases, the amount of suspicion necessary to justify the search must correspondingly increase).
18
This standard also suggests that we look to the seriousness of the offense or the danger the search seeks to prevent to determine whether the methods were reasonably related to the objectives of the search. For clarity's sake, we have confined these considerations to that part of our opinion discussing T.L.O.'s requirement that the search not be "excessively intrusive in light of the ... nature of the infraction." 469 U.S. at 342, 105 S.Ct. at 743. See discussion infra and note 20
19
It is at least questionable whether Herring had reasonable grounds for requiring Cassandra and Onieka to remove their shoes and socks
20
In fact, strip searches are probably only permissible in the school setting, if permissible at all, where there is a threat of imminent, serious harm. Writing separately in T.L.O., Justice Stevens made clear that the point of the majority's Fourth Amendment standard was to avoid litigation over the routine, limited searches necessary to maintain school discipline, while "prohibit[ing] obviously unreasonable intrusions of young adults' privacy." 469 U.S. at 381, 105 S.Ct. at 764. To illustrate the type of egregious school search that would noncontroversially violate the Fourth Amendment, Justice Stevens gave this example:
One thing is clear under any standard--the shocking strip searches that are described in some cases have no place in the schoolhouse. See Doe v. Renfrow, 631 F.2d 91, 92-93 (CA7 1980) ("It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude"), cert. denied, 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981); Bellnier v. Lund, 438 F.Supp. 47 (NDNY 1977); People v. D., 34 N.Y.2d 483, 358 N.Y.S.2d 403, 315 N.E.2d 466 (1974); M.J. v. State, 399 So.2d 996 (Fla.App.1981). To the extent that deeply intrusive searches are ever reasonable outside the custodial context, it surely must only be to prevent imminent, and serious harm.
Id. at 382 n. 25, 105 S.Ct. at 764 n. 25 (Stevens, J., concurring in part and dissenting in part).
Eleventh Circuit caselaw confirms Justice Stevens's understanding of the T.L.O. standard. Although no case involving a student strip search had been presented to this court before the incidents in this case occurred, less than two weeks after this case was decided, we took the opportunity to express our view of such searches. In Justice, this court held that law enforcement officials may subject a juvenile who is lawfully in custody to a limited strip search based upon reasonable suspicion that he or she is concealing a weapon or drugs. 961 F.2d at 193. In reaching this conclusion, however, the Justice court was careful to emphasize the limited scope of its holding and to distinguish other situations in which a strip search would be unconstitutional. Because the strip search in Justice was performed by law enforcement officers on a person lawfully in custody, the court considered itself bound by Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), which had held that the unique security concerns of detention facilities could justify strip searches of pretrial detainees. Justice, 961 F.2d at 193. On the other hand, in stressing the intrusiveness of strip searches, the Justice court pointed to a context in which a strip search would certainly violate the Fourth Amendment: when it is inflicted on a student in a situation that presents no danger of imminent and serious harm.
Picking up where Justice Stevens in T.L.O. left off, the Justice court favorably cited and discussed Doe v. Renfrow, 631 F.2d 91 (7th Cir.1980), cert. denied, 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981). 961 F.2d at 193. The Seventh Circuit in Doe held that a strip search of a thirteen-year-old student by school officials without reasonable suspicion to believe she possessed drugs clearly violated the Fourth Amendment, foreclosing qualified immunity for the school officials. Justice reaffirms and embraces this conclusion as obvious:
[Doe held that] the strip search of a thirteen-year-old female without "reasonable cause" to believe she possessed contraband on her person constituted an "invasion of constitutional rights of some magnitude." Doe, 631 F.2d at 93. The Seventh Circuit then stated[,] "More than that: it is a violation of any known principle of human decency.... [T]he conduct herein described exceeded the 'bounds of reason' by two and a half country miles." Doe, 631 F.2d at 93.
Id. (bracketed alterations added).
Although these cases strongly support our position, we do not rely on them in reaching our holding in this case.
Even courts determining the constitutionality of strip searches of post-arrest detainees have looked to the probability that the detainee possesses dangerous contraband. See, e.g., Masters v. Crouch, 872 F.2d 1248, 1253-55 (6th Cir.) (strip search of person arrested for traffic violation or other minor offense not associated with violence unreasonable absent individualized reasonable suspicion that arrestee is carrying a weapon or contraband), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985) (strip search of person arrested for refusing to sign summons regarding leash law violation unreasonable); Stewart v. Lubbock County, 767 F.2d 153 (5th Cir.1985) (strip searches of minor offenders awaiting bond unreasonable absent reasonable suspicion that they possess weapons or contraband), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Mary Beth G. v. Chicago, 723 F.2d 1263, 1268-73, 1273 (7th Cir.1983) ("[E]nsuring the security needs of the City by strip searching ... was unreasonable without a reasonable suspicion by the authorities that either of the twin dangers of concealing weapons or contraband existed."); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981) (strip search of arrested drunk driver unreasonable given that offense not associated with possession of weapons or contraband and no cause to believe that individual arrestee possessed either), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982).
21
Although we do not depend on the case law of other circuits in reaching this holding, we note that other courts have reached the same conclusion. See Tarter v. Raybuck, 742 F.2d 977, 982 (6th Cir.1984) ("Thus, for example, the authority of the school official [to maintain school discipline and order] would not justify a degrading body cavity search of a youth in order to determine whether a student was in possession of contraband in violation of school rules."), cert. denied, 470 U.S. 1051, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985); Oliver v. McClung, 919 F.Supp. 1206, 1216-19 (N.D.Ind.1995) (in light of Doe v. Renfrow and T.L.O., law clearly established that strip search of seventh-grade girls seeking missing $4.50 violates Fourth Amendment); Bellnier v. Lund, 438 F.Supp. 47, 52-54, 54 (N.D.N.Y.1977) (strip searches of students in fifth grade class seeking missing $3 unreasonable "in view of the relatively slight danger of the conduct involved (as opposed to drug possession, for example), the extent of the search, and the age of the students involved")
22
See Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1320-23, 1320 (7th Cir.1993) (holding strip search of high school student based on reasonable suspicion that he possessed drugs does not violate Fourth Amendment, while making clear that a "a highly intrusive search in response to a minor infraction" would be unconstitutional under T.L.O.); Williams v. Ellington, 936 F.2d 881 (6th Cir.1991) (granting qualified immunity to school officials who strip searched two high school students for drugs on at least reasonable suspicion)
1
The "special characteristics of elementary and secondary schools ... make it unnecessary to afford students the same constitutional protections granted adults and juveniles in a nonschool setting." New Jersey v. T.L.O., 469 U.S. 325, 348, 105 S.Ct. 733, 746, 83 L.Ed.2d 720 (1985) (Powell, J., concurring). Because of their close association with each other and the necessary familiarity of teachers with students and authority over them, such schoolchildren "have a lesser expectation of privacy than members of the population generally." Id. The Supreme Court has stated that the T.L.O. decision determined that the "State's power over schoolchildren is formally no more than the delegated power of their parents, ... but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults." Vernonia School Dist. 47J v. Acton, --- U.S. ----, ----, 115 S.Ct. 2386, 2392, 132 L.Ed.2d 564 (1995) (upholding urinalysis drug testing for grade and high school students participating in athletic programs, including reasoning that public school children are required to have vaccinations and physical examinations)
2
The record reveals at least two incidents at Graham Elementary School prior to the searches challenged in this case where students, suspected of stealing money, were required to remove their shoes and socks with the result that the money was found. One involved a black, male student accused of stealing $5; the principal had him remove his shoes and socks and located the money. Another instance concerned a white, male student accused of stealing $.50; the missing change was discovered when the student was asked to remove his shoes and socks. The record also includes evidence of a search for a missing calculator where a number of students, both black and white, were instructed to remove their jackets so that their pockets could be searched. Additionally, there were incidents of students removing shoes and socks, untucking and shaking their shirts, unzipping their pants, and one student stripping entirely in the presence of school officials, a police officer, and his mother to search for contraband. Given this background of previously locating stolen money in students' attire pursuant to varying degrees of supervised undress and, particularly, the location of stolen money after having suspected students remove their shoes and socks, the challenged searches conducted by the schoolteachers in this case were not totally unprecedented, as the majority suggests. Majority at 1045 n. 19; see Driscoll, 82 F.3d at 388 (finding that T.L.O. held that "school officials need only 'reasonable grounds for suspecting' that a search will turn up evidence that the student has violated either the law or school rules" (quoting T.L.O., 469 U.S. at 342, 105 S.Ct. at 743)); Alabama Student Party v. Student Gov't Ass'n of the Univ. of Alabama, 867 F.2d 1344, 1346 (11th Cir.1989) (acknowledging that T.L.O. requires easing of the restrictions generally applicable to the Fourth Amendment in a school context); see also Lenz v. Winburn, 51 F.3d 1540, 1551 (11th Cir.1995) (recognizing that the reasonableness or unreasonableness of a search under the Fourth Amendment is determined on a case-by-case basis (citing T.L.O., 469 U.S. at 337, 105 S.Ct. at 740))
3
"The qualified immunity standard 'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.' " Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S.Ct. 1092, 1096, 1097, 89 L.Ed.2d 271 (1986))
4
The majority appears to be "interested in the state of the law at the time of the alleged unconstitutional conduct, May 1, 1992." Majority at 1043 n. 13. Yet, the majority concedes that "this circuit, before May 1, 1992, had not had the opportunity to apply T.L.O. 's standards in factually similar circumstances," id. at 1043, and that "no case involving a student strip search had been presented to this court before the incidents in this case occurred," id. at 1046-47 n. 20
5
The majority observes that some conduct is so egregious that no case needs to have recognized previously that such conduct violates federal law. Majority at 1041 n. 9. Accepting this idea in principle, I am comfortable in saying that I think we face in this case no great act of pure evil (such as, to use the majority's example, slavery), that might trigger this rare and narrow exception to the extremely broad rule
6
The Court has recognized that "school authorities act[ ] in loco parentis." Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 684, 106 S.Ct. 3159, 3165, 92 L.Ed.2d 549 (1986)
Whether it should or should not do so, the American community calls upon its schools to, in substance, stand in loco parentis to its children for many hours of each school week.
Citizens expect and demand that their children be physically safe in the schools to whose supervision they are consigned, and the citizenry is outraged if the schools are less than safe and orderly.
Ferrell v. Dallas Indep. School Dist., 392 F.2d 697, 704 (5th Cir.) (Godbold, J., concurring), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968).
7
Clearly, the facts and law in this case do not support the majority's conclusion that the elementary schoolteachers were not entitled to qualified immunity because their challenged searches were "in blatant disregard of the Fourth Amendment." Majority at 1048
8
Theft of money is hardly a trivial matter, and there was cause for suspicion in this case. Nevertheless, the schoolteachers and the students were female, and the search was done in a relatively private place, the girls' restroom. I hasten to emphasize that conduct that may be constitutional also may be repugnant, ill-advised, and even outrageous. The strip searches in this case may have been offensive, but they did not violate clearly established constitutional law, when they occurred
The thrust of the majority's opinion seems to be an effort to diminish the importance of this court's en banc decision in Lassiter. I cannot agree with this construction of a guiding circuit precedent. Inherently, en banc decisions are extremely important. This court does not go en banc casually. We do so "(1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance." Fed.R.App.P. 35(a). I believe that Lassiter went en banc on both grounds.
The majority stresses that Lassiter represented no "sea change" in the law of qualified immunity. Majority at 1040. That statement is absolutely correct because the great majority of the judges of this circuit regularly were applying the principles set forth in Lassiter before Lassiter was published. See Lassiter, 28 F.3d at 1149 ("No new rules need to be announced to decide this case. But, for emphasis, we restate principles which do govern qualified immunity cases."). A few judges of this court, however, were taking a significantly different approach to qualified immunity, an approach which was manifestly more hostile to public official defendants. In this sense, Lassiter marks a substantial change for those judges who thought that, and acted as if, the law was something different from the law that Lassiter reiterates.
Lassiter seems particularly important when one realizes that this court had made a previous en banc effort to declare the law of the circuit not long before. Adams, 998 F.2d at 923. Informed observers refer to Lassiter as Adams II. When Adams proved ineffective to secure uniformity, the court promptly went en banc again and rendered Lassiter with its stronger and more definitive statements. In my view, Lassiter is the law.
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556 S.W.2d 463 (1977)
In re the MARRIAGE OF Raymond A. PRENAVO, Respondent and Cross-Appellant,
v.
Ann Lee PRENAVO, Petitioner and Appellant.
Nos. 38123, 38223.
Missouri Court of Appeals, St. Louis District, Division Four.
September 13, 1977.
William E. Brand, Jr., St. Louis, for petitioner and appellant.
George D. Johnson, St. Louis, for respondent and cross-appellant.
ALDEN A. STOCKARD, Special Judge.
Both parties have appealed in this dissolution of marriage proceeding, but neither challenges that part of the decree granting dissolution. The wife contends that the trial court abused its discretion (a) in its division of marital property, (b) in awarding only $200 a month for child support, and (c) in making an inadequate award for attorney's fees. The husband contends that the *464 trial court erred in awarding any maintenance to the wife. We affirm.
The parties were married on May 3, 1952. Two children were born of the marriage; a girl who was age 18 and a boy who was age 12 at the time of the trial. Custody of the boy was awarded to the wife and she was awarded $200 a month for child support. The decree did not include an award of custody and child support for the girl, apparently on the theory she was emancipated. Both parties testified the marriage was irretrievably broken, and the court so found. All the property owned by the parties was accumulated during the marriage.
The court awarded to the husband the following marital property: A lot and cabin at Lake Ozark and a boat and trailer, the interest in a pension fund, some miscellaneous shares of stock, the surrender value of life insurance, a debt due from Jenkins Optical Co., the husband's share in a special rent account, and three bank accounts. According to the figures in the wife's brief the net value of this award totaled $32,346.04. The husband's brief does not specifically set forth the value.
The court awarded to the wife the family home (she lists the net value at $26,500; he lists it in his brief at $17,200 but in a "Financial Statement" filed with the trial court he listed the net value at $25,610.01), household furnishings (she lists the value at $2,500; he lists it at $1,390), an automobile which both valued at $1,500, and the husband's interest in a lot and building known as 18 Kirkham Industrial Drive in which is located the office of Jenkins Optical Company (she lists the net value at $22,032.27; he lists it at $10,657.58) with the right of the husband to re-purchase this last item of property within 6 years for $35,000, and providing that the rental from this property be applied "to the deed of trust" and "taxes and insurance on said property."[1] In addition, the court awarded the wife cash in the amount of $3,000. According to the wife's figures the property awarded to her had a net value of $55,532.27, but according to the husband's figures the net value was $33,747.58 or $41,857.59 depending on the net value of the home.
The remaining item of marital property consists of the corporate stock of the Jenkins Optical Company (hereafter Jenkins). In 1962 Mr. Prenavo and Robert Mueller each advanced the sum of $10,000 and purchased all the corporate stock of that company. At the time of trial the only stockholders were Mr. Mueller and Mr. Prenavo, each owning 40 shares. Joseph M. Erger, the bookkeeper and accountant for Jenkins Optical Company testified that the "shareholder's equity" or the "net book value" as of June 1974, not including the real estate and building, was $232,019.20. However, both the husband and wife testified that the value of the stock in Jenkins owned by Mr. Prenavo was $104,644.74.
After the hearing, but before entry of the decree, the trial court directed that further evidence be taken "with respect to changed financial condition of the parties." It was developed that on April 2, 1975, an agreement was entered into between Mr. Prenavo, Mr. Mueller and Jenkins which, among other things, resulted in the following:
a) Mr. Mueller sold to the corporation for $180,000 his 40 shares of stock in Jenkins, $30,000 being paid in cash, and the balance being represented by a promissory note, secured by the pledge of the said 40 shares of stock, to be paid by the corporation over a period of five years with interest on the unpaid balance at 8%.
b) Jenkins bought for $20,000 cash all interest of Mr. Mueller in the building and the land known as 18 Kirkham Industrial Drive.
c) Mr. Prenavo agreed to pay the promissory note given by Jenkins to Mr. Mueller in the event Jenkins did not, and he pledged his 40 shares of stock as security.
*465 d) Until the promissory note is paid Mr. Prenavo is not to receive compensation of more than $25,000 a year from Jenkins, and no additional management personnel may be hired or salaries increased without the permission of Mr. Mueller.
The result of this transaction is that the 40 shares of stock previously owned by Mr. Mueller is to become treasury stock, and Mr. Prenavo will own all the outstanding shares of stock of Jenkins, but it is pledged to secure the payment of the note to Mr. Mueller. Also, Jenkins is now the owner of one-half interest in the building and lot of which the wife was awarded the other one-half interest. Neither party offered any evidence as to how this transaction would affect the value of Mr. Prenavo's interest in Jenkins. It could not have increased the value of his interest. Jenkins obtained the right to receive as treasury stock the 40 shares previously owned by Mr. Mueller, which the parties agreed had a value of $104,644.74 prior to the transaction, and in turn it paid or obligated itself to pay $180,000. Without further explanation, this indicates a reduction of $75,355.26 in the total net book value.
We are not concerned with whether this was or was not a wise transaction from the standpoint of Mr. Prenavo. It is understandable that he might have been willing to pay or have the corporation pay, a premium price for Mr. Mueller's interest in Jenkins and in the lot and building in order to be the sole owner of Jenkins. Also the wife in no way challenges this transaction.
The trial court decreed that the wife should receive "$30,000 cash in lieu of [Mr. Prenavo's] marital interest in Jenkins Optical Company stock; this sum to be payable $10,000.00 on July 1, 1981, July 1, 1982 and July 1, 1983, with interest at the rate of 7% per annum, payable quarterly on unpaid balance, first quarterly interest payment to be paid on May 1, 1976." The record discloses good reasons why the trial court could have deemed it advisable not to award the wife shares of stock in Jenkins.
We review this case upon both the law and the evidence as in suits of an equitable nature giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(3). This has been construed to mean that the decree of the trial court "will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
No finding of fact or conclusions of law were requested and none were made. In Stark v. Stark, 539 S.W.2d 779 (Mo.App. 1976), the court said the requirement of § 452.330, RSMo Supp.1974, that the court consider all relevant factors in making its allocation of marital property did not require a statement of the reason for its adjudication, but in some cases such a statement, whether requested or not, would be helpful to a reviewing court, and this is such a case. However, all fact issues are deemed found in accord with the result reached. Smith v. Smith, 552 S.W.2d 321 (Mo.App.1977).
The evidence of the value of the items of marital property varies substantially, but the figures submitted by the wife in her brief to this court indicate that the marital property awarded to her, other than cash in lieu of stock in Jenkins, had a value of $32,346.04 more than that awarded to the husband. Figures submitted by the husband indicate it could have been substantially less. On the record before us we cannot arrive at a precise determination of value, and we do not know upon what estimates of value the trial court relied. When we consider separately the value of the interest of the husband in Jenkins as affected by the transaction by which Jenkins is to acquire as treasury stock the 40 shares owned by Mr. Mueller, we find that the transaction resulted in a substantial decrease in the "net book value" of Mr. Prenavo's interest, but we do not know exactly how much. Assuming that it was one-half of the excess of the price over the agreed value, the reduction would be more than *466 $37,500, and would reduce the value of Mr. Prenavo's interest by that amount. When we consider that the division of the marital property other than the stock in Jenkins resulted in the wife receiving substantially more than the husband, and the possible realization of $35,000 from the building and lot as compared to the $22,000 value placed on it by the wife, and the $30,000 to be received with interest in lieu of the Jenkins stock, the division of marital property, while not precisely equal, does not appear to be unreasonably disproportionate. Section 452.330 does not require an equal division but only that it be a just division. Seiner v. Seiner, 552 S.W.2d 54 (Mo.App. 1977). We cannot say as a matter of law the division of marital property was unjust, or that it is without support in the evidence, or that it is against the weight of the evidence. Nor can we say as a matter of law, as contended by the wife, that the trial court abused its discretion.
The wife next asserts that the trial court abused its discretion in awarding only $200 a month for the support of her son who was age 12 at the time of trial, and in awarding attorney's fees only in the amount of $3,500.
The determination of the proper amount to be paid by a father to fulfill his obligation to support his children requires a balancing between the needs of the child and the ability of the father to pay. In re Marriage of Englehardt, 552 S.W.2d 356 (Mo.App.1977). The trial court had before it the evidence of the temporary limitation on the salary of the father, and the obligation on his part to pay to the wife maintenance in the amount of $600 a month and interest on the $30,000 cash allowance in the amount of $175 a month. Under all of the circumstances, and within the scope of our review, we cannot say that as a matter of law the trial court abused its discretion in awarding child support in the amount it did. Of course, upon application a judgment for child support can be modified upon proof of a change of conditions In re Marriage of Cook, 532 S.W.2d 833 (Mo.App. 1975).
The trial court decreed that Mr. Prenavo was "to pay [the wife's] attorneys * * * $3,500 additional, * * *." This clearly implies to us that some previous award for attorney fees was made, but neither party refers to any such award in the argument under this point. Our gratuitous perusal of a certified copy of the file of the Circuit Court, which is not a part of the transcript but which has been deposited with this court, confirms our suspicion as to the reason for the use of the word "additional" in the judgment. On September 10, 1974 the trial court made an award to the wife of "$350.00 as and for attorney's fees on account." We do not know how many other awards, if any, were made.
It would be inappropriate, and we decline, to attempt to rule on whether the trial court abused its discretion in making a partial award for attorney fees when we do not know the total amount awarded.
We turn now to the contention of the husband that the trial court erred in awarding any maintenance to the wife because (a) she was awarded sufficient marital assets to enable her to be self-supporting, and (b) she not only failed to prove that she was not able to support herself by appropriate employment, but she refused to seek employment.
The authority to award maintenance is set forth in § 452.335, where it provided that "The court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance
(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home."
We note that the husband does not challenge the amount of the maintenance order in the event that an order for some maintenance was authorized, and although he has a limit on his income from Jenkins he does *467 not contend he is financially unable to pay the amount of maintenance decreed by the trial court.
He itemizes the marital property awarded to the wife, presumably to demonstrate that she does not lack sufficient property to provide for her reasonable needs. He lists the family house and furniture and shows a net value of $18,590, but the deed of trust on the house is in excess of $10,000, and the wife is obligated to make the payments. The house is not income producing property. The wife has a mortgage expense to pay in addition to maintenance, insurance and taxes. He also lists the building and lot known as 18 Kirkham Industrial Drive and shows an equity of $10,657.58. The wife has only a one-half interest in the property, and until a substantial deed of trust is retired she receives little or no income from this property. In addition, for six years it is encumbered with the right of the husband to repurchase it and is not subject to sale by her. The next item listed is a 1971 Ford automobile. It constitutes an expense; it does not produce income. The last item is "cash award, plus interest at 7% per annum, payable quarterly $30,000." It is only the interest, not the principal, that is payable quarterly. No part of the $30,000 is to be paid until 1981.
It thus appears that from the property awarded to the wife she has practically no income except the item of interest. There is no contention that she has any other income. It is true that she received $3,000 cash award but her testimony would justify the conclusion that accrued obligations used all or most of that award.
We need not itemize the expenses testified to by the wife for herself and the children, but they totaled over $1,200 a month. Therefore, a finding that the wife does not have sufficient property to provide for her needs is not without support in the evidence, nor is it against the weight of the evidence.
The husband next relies on certain testimony of the wife concerning her attempt to obtain employment as demonstrating that she "refuses to work." The trial court did not draw that conclusion from the testimony and neither do we. In substance she testified that her previous employment was bookkeeping and that she would need to go back to school to "brush up," but at the time she could not afford to do so. She also stated that she was limited in possible work because her son was 12 years old and she preferred to be home when he returned from school rather than have him running the streets.
We find nothing unreasonable or arbitrary on the part of the wife in placing the welfare of her son above the possible financial burden on the boy's father to provide maintenance. Also it is not reasonable to expect a woman who has not worked outside the home for over fifteen years to be able to step into employment without some preparation. The husband relies primarily on In re the Marriage of Neubern, 535 S.W.2d 499 (Mo.App.1976). We find that case not to be comparable on its facts, and not to support the husband's claim.
There was evidence to support the trial court's conclusion on each of the issues here raised, including the issue of attorney fees which we decline to review. Our review of the evidence produces "no firm belief that the decree or judgment is wrong." Murphy v. Carron, supra, 536 S.W.2d at page 32.
The judgment is affirmed.
SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.
NOTES
[1] The husband owned only a one-half interest in this lot. The bookkeeper of Jenkins Optical Company testified that the "cost" of the building exclusive of the lot was $40,099.43 and that the balance due on the "loan for the building" was $21,857.49. In view of these figures and the right of the husband to repurchase the one-half interest within six years for $35,000, we question whether the value submitted by either party is correct.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00048-CR
Joe Frank Delacruz III § From the 372nd District Court of
§ Tarrant County (1121915D)
v. § April 10, 2014
§ Per Curiam
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM
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2015 IL App (1st) 140344
SIXTH DIVISION
June 26, 2015
No. 1-14-0344
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
TAISHEKA R. IGENE, ) Cook County.
)
Petitioner-Appellee, )
)
and ) No. 12 D 530916
)
COURAGE IGENE, ) Honorable
) Patrick T. Murphy,
Respondent-Appellant. ) Judge Presiding.
JUSTICE HALL delivered the judgment of the court, with opinion.
Presiding Justice Hoffman and Justice Rochford concurred in the judgment and opinion.
OPINION
¶1 Respondent Courage Igene appeals a circuit court judgment granting petitioner Taisheka
R. Igene's petition declaring her marriage to him invalid (annulled) pursuant to section 301(1) of
the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/301(1) (West
2012)). Respondent argues the circuit court erred in invalidating the parties' marriage. He
requests that we reverse the judgment declaring the marriage invalid and remand for further
proceedings on his counterpetition for dissolution of marriage. For the reasons that follow, we
grant respondent's requests.
¶2 BACKGROUND
¶3 Respondent and petitioner met at a church convention in Houston, Texas, in July 2006.
Respondent presented himself to petitioner as "Pastor Joshua." At the time of their meeting,
respondent was living in Texas and was married to a woman named Alissa Willis. 1 Petitioner
was single and living in Atlanta, Georgia. According to petitioner, respondent never disclosed
he was married. Upon petitioner's return to Georgia, she and respondent developed a romantic
relationship through their telephone conversations.
¶4 On April 21, 2007, in Atlanta, Georgia, respondent and petitioner participated in a
religious marriage ceremony, held without a marriage license. According to petitioner, she and
respondent were unable to obtain a marriage license prior to the wedding because three days
before the wedding, respondent claimed he left his identification documents in Dallas, Texas.
Respondent is an immigrant to the United States from the Republic of Nigeria, Africa. Petitioner
alleged she agreed to go forward with the wedding ceremony after respondent's assurances that
they would obtain a marriage license in Texas. Petitioner allegedly presumed the marriage
1
Attached documents in the record show that respondent entered into a bigamous marriage with
Alissa Willis on August 8, 2005; at the time respondent married Alissa Willis he was married to
a woman named Sonya Gibson, whom he married on May 2, 2005. In turn, respondent's
marriage to Sonya Gibson was a bigamous marriage because at the time he married her, he was
married to a woman named Ramona Carter, whom he married on March 4, 2005.
Respondent's marriage to Ramona Carter was dissolved on July 27, 2005, while he was
still married to Sonya Gibson. His marriage to Sonya Gibson was dissolved on January 1, 2006,
while he remained married to Alissa Willis. His marriage to Alissa Willis was dissolved on July
5, 2007. No children were born of these marriages.
ceremony in Atlanta resulted in a valid marriage. Petitioner maintained she was not aware that
respondent was married to another woman at the time she participated in the marriage ceremony.
¶5 After the honeymoon, the parties returned to Atlanta and then left for Dallas. Petitioner
alleged that unbeknownst to her, respondent's marriage to Alissa Willis was dissolved on July 5,
2007. The parties obtained their marriage license in Dallas on July 19, 2007, and were married
there in a civil ceremony by a justice of peace on July 23, 2007.
¶6 Petitioner alleged she became suspicious of respondent's marital history when she
attended an immigration interview with him and an officer with the Department of Homeland
Security asked respondent if he had disclosed all of his previous marriages to her. According to
petitioner, respondent told her he was a victim of identity theft and that someone was using his
name and was involved in a marriage.
¶7 Ultimately unsatisfied with respondent's explanations, petitioner eventually moved out of
the marital home in September 2011. Petitioner alleged it was not until she moved to Illinois and
retained counsel in November 2012 that she discovered respondent was previously married to a
number of different women and that he was married to Alissa Willis at the time she and
respondent participated in the marriage ceremony in Atlanta.
¶8 On December 10, 2012, petitioner filed the petition at issue in this appeal requesting the
circuit court to declare her marriage to respondent invalid. Respondent filed a counterpetition
for dissolution of marriage on March 14, 2013. After extensive motion practice, the circuit court
held a hearing on the two petitions, hearing argument from both parties as well as their
respective witnesses.
¶9 On September 13, 2013, the circuit court entered an order invalidating the parties'
marriage of July 23, 2007. Three days later, the court issued a memorandum order explaining
the reasons for its decision. The court also denied respondent's counterpetition for dissolution of
marriage. The court subsequently denied respondent's motion for reconsideration on December
30, 2013. This appeal followed.
¶ 10 ANALYSIS
¶ 11 Petitioner initially contends the respondent failed to provide an adequate record for our
review and therefore we should resolve the appeal against him. Petitioner maintains we cannot
review the instant appeal because respondent failed to provide a transcript of the court
proceedings regarding the testimony of the parties and their respective witnesses. We must
reject petitioner's contentions.
¶ 12 The record contains relevant pleadings detailing the parties' respective positions
regarding the petitioner's petition. The record also includes the circuit court's memorandum
order issued on September 16, 2013, containing analysis and a summary of testimony the court
relied upon in reaching its decision to invalidate the parties' marriage of July 23, 2007.
¶ 13 Moreover, the absence of a transcript of court proceedings does not bar review of an
appeal when the issue on appeal is solely a question of law and does not involve evidentiary
matters. Metropolitan Condominium Ass'n v. Crescent Heights, 368 Ill. App. 3d 995, 1002
(2006). In this appeal, we must determine whether the circuit court erred as a matter of law in
finding sufficient evidence of fraud to annul the parties' marriage. The relevant facts are
undisputed. Accordingly, we find the record on appeal is adequate to review the merits of
respondent's appeal.
¶ 14 Turning to the merits, respondent argues the circuit court erred in declaring the parties'
marriage of July 23, 2007, invalid pursuant to section 301(1) of the Marriage Act. This section
of the Marriage Act provides in relevant part that a court shall declare a marriage invalid
(annulled) if the party was induced to enter into the marriage "by fraud involving the essentials
of marriage." 750 ILCS 5/301(1) (West 2012). Our courts have held that what is essential to the
relationship of a marriage differs from one marriage to the next and therefore a determination of
whether a fraud goes to the essentials of a particular marriage must be decided on a case-by-case
basis. Wolfe v. Wolfe, 76 Ill. 2d 92, 96 (1979).
¶ 15 In this case, the parties' religious marriage ceremony held in Atlanta on April 21, 2007,
did not result in a valid marriage because it was conducted without a marriage license and
respondent was still married to Alissa Willis. When respondent's marriage to Alissa Willis was
dissolved on July 5, 2007, the impediment to the marriage between the parties was removed and
an arguably valid marriage came into existence when the parties obtained a marriage license and
were married in a civil ceremony by a justice of peace on July 23, 2007.
¶ 16 The circuit court invalidated the parties' marriage of July 23 pursuant to section 301(1) of
the Marriage Act on the ground that at the time of the marriage, respondent fraudulently
concealed the fact that he was previously married to three different women. We reverse the
circuit court because under the circumstances in this case we do not believe the respondent's
concealment of his previous marriages amounted to fraud going to the essentials of the parties'
marriage contract.
¶ 17 An annulment of a marriage is a judicial determination that no valid marriage ever
existed. Long v. Long, 15 Ill. App. 2d 276, 285 (1957). The fraud necessary to warrant annulling
a marriage must be such as to go to the very essence of the marriage contract. Louis v. Louis, 124
Ill. App. 2d 325, 328 (1970); Hill v. Hill, 79 Ill. App. 3d 809, 814 (1979); Wolfe, 76 Ill. 2d at 96.
"It must be shown that the fraud was of such a nature as to vitiate the actual consent of the
defrauded party." Wolfe v. Wolfe, 62 Ill. App. 3d 498, 501 (1978). "The fraudulent
representations for which a marriage may be annulled must be of something essential to the
marriage relation, of something making impossible the performance of the duties and obligations
of that relation of rendering its assumption and continuance dangerous to health or life." Louis,
124 Ill. App. 2d at 328. "False representations as to fortune, character and social standing are not
essential elements of the marriage, and it is contrary to public policy to annul a marriage for
fraud or misrepresentations as to personal qualities." Bielby v. Bielby, 333 Ill. 478, 484 (1929).
¶ 18 A trial court's decision to grant an annulment of marriage will not be disturbed on appeal
unless it is against the manifest weight of the evidence. Hill, 79 Ill. App. 3d at 814. A decision is
against the manifest weight of the evidence if the opposite conclusion is clearly evident or if the
decision is unreasonable, arbitrary, or not based on the evidence. In re Marriage of Nord, 402 Ill.
App. 3d 288, 294 (2010).
¶ 19 Courts in most jurisdictions have determined that the concealment of a prior marriage
which has been dissolved by the death of, or divorce from, a spouse does not amount to fraud
going to the essentials of the marriage contract, even where there have been multiple divorces.
See, e.g., Sanderson v. Sanderson, 186 S.E.2d 84, 85 (Va. 1972) (wife's false representations
prior to marriage that she was previously married and divorced only once when she was actually
married and divorced five times did not constitute ground for annulment of marriage); Sackman
v. Sackman, 203 A.2d 903, 904 (Md. 1964) ("concealment of a former marriage and divorce is
not such fraud as would vitiate a marriage"); see generally J. Evans, Annotation, Concealment of
or Misrepresentation as to Prior Marital Status as Ground for Annulment of Marriage, 15
A.L.R.3d 759, 765 (1967) ("The general rule in American jurisdictions is that misrepresentation
or concealment of prior marital status is not ground for annulment of marriage.").
¶ 20 To the extent some courts have held to the contrary, those cases are factually
distinguishable from the instant case in that they involve situations where the party that
fraudulently concealed a prior marriage made false representations. See Mayo v. Mayo, 617
S.E.2d 672, 675 (N.C. Ct. App. 2005) (wife's false representations concealing five of seven
previous marriages constituted fraud sufficient to annul marriage where application for marriage
license required parties to disclose, under oath, the number of previous marriages); Leax v. Leax,
305 S.W.3d 22, 30-31 (Tex. App. 2009) (wife's false representations concealing five of eight
previous marriages constituted fraud sufficient to annul marriage).
¶ 21 In this case, unlike in Mayo and Leaux, respondent made no representations regarding the
number of his previous marriages. There were no representations made by respondent on which
petitioner could rely. Under these circumstances we find the circuit court erred in invalidating
the parties' marriage of July 23, 2007.
¶ 22 For the foregoing reasons, we reverse the circuit court's judgment declaring the parties'
marriage of July 23, 2007 invalid and remand for further proceedings on respondent's
counterpetition for dissolution of marriage.
¶ 23 Reversed and remanded for further proceedings.
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679 F.2d 884
Medical Development Systemsv.Unimed Convalescent, Inc.
81-1973
UNITED STATES COURT OF APPEALS Fourth Circuit
5/11/82
1
M.D.N.C.
AFFIRMED
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3613
___________
City of Clarkson Valley, a Missouri *
Municipal Corporation; Scott *
Douglass, in his official capacity as *
Mayor of Clarkson Valley, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Norman Y. Mineta, in his official *
capacity as Secretary of Transportation *
of the United States; Peter Rahn,1 in his *
official capacity as Director of the *
Missouri Department of Transportation *
for the State of Missouri, *
*
Appellees. *
___________
Submitted: April 12, 2007
Filed: July 19, 2007
___________
Before WOLLMAN, BEAM, and COLLOTON, Circuit Judges.
___________
BEAM, Circuit Judge.
1
Peter Rahn, Director of the Missouri Department of Transportation (MoDOT)
replaced Dave Snider, the Interim Director of MoDOT.
The City of Clarkson Valley and Scott Douglass, in his official capacity as
Mayor of Clarkson Valley (collectively "the City"), appeal the district court's grant of
summary judgment in favor of defendants Mineta and Rahn (collectively "the United
States"). Because the district court did not properly analyze the City's standing to sue
the United States, we remand the case for such consideration.
I. BACKGROUND
In the mid-1980's the Missouri Department of Transportation (MoDOT)
decided to widen a portion of Clarkson Road to handle the higher volumes of then-
existing and forecasted traffic.2 As part of this process, the Missouri Highway and
Transportation Department submitted a Final Environmental Assessment (FEA) to the
Federal Highway Administration (FHWA) in 1986. The FHWA reviewed this
document and accepted it as a FONSI, meaning "a document by a Federal agency
briefly presenting the reasons why an action . . . will not have a significant effect on
the human environment and for which an environmental impact statement therefore
will not be prepared." 40 C.F.R. § 1508.13.
The 1986 FEA determined that noise levels along Clarkson Road would
increase and that a noise study should be performed. Though the study was not done,
the widening began in the mid-1990's and was completed in 2000. Toward the end
of the project, MoDOT personnel, realizing that the 1986 FEA called for a noise study
which had not been done, requested a study. The study revealed that many locations
along Clarkson Road met the criteria for noise abatement measures, including sound
walls.
2
The facts we recite are adopted from the district court's summary judgment
order.
-2-
II. PROCEDURAL HISTORY
Attempting to prevent the sound wall construction, the City filed suit under the
Administrative Procedures Act (APA) and 28 U.S.C. § 1331, alleging that the United
States insufficiently considered the economic and environmental impact of the
construction of the sound wall by failing to comply with the procedural requirements
of the National Environmental Policy Act (NEPA). Subsequently, in 2005, the United
States issued the Final Supplemental Environmental Assessment (FSEA) and a new
FONSI. By stipulation, the City's complaint was then amended to make this 2005
FSEA the final agency decision on review before the district court. The City
maintained that despite the 2005 FSEA, the United States still had not complied with
NEPA. The City sought an order requiring the preparation of an Environmental
Impact Statement (EIS).
The United States filed a motion to dismiss, alleging that the City lacked
constitutional standing because there was no case or controversy; that there was
insufficient injury to invoke procedural review under the APA, and that the City did
not fall within the class of persons protected by NEPA. The district court "den[ied]
the motion as premature" and noted that "[t]he parties will be allowed to develop the
record" and that the court would "decide the issue of standing when the facts of this
case are properly before" the court.
The United States subsequently filed a motion for summary judgment, arguing
that it had complied with NEPA by, among other actions, issuing a FONSI, which
(arguably) obviated the need for the preparation of an EIS. In its memorandum of
support, the United States reminded the court of the need to determine whether it had
jurisdiction before addressing the merits of the motion. Further, the defendants
reminded the court that they "contend that Plaintiffs lack standing, and therefore
renew their [prior] motion and incorporate that motion and the memorandum in
support herein by reference."
-3-
In its summary judgment order, the district court included the following
footnote:
The United States previously filed a motion to dismiss under Rule 12 for
lack of standing. I denied that motion because the factual record was
insufficient to determine whether Clarkson Valley met the requirements
for Constitutional [sic] standing. The United States states in its
memorandum in support of its motion for summary judgment that it
renews its motion to dismiss for lack of standing. The memorandum,
however, does not contain any citations to the record in support of its
argument that Clarkson Valley lacks standing.
The district court proceeded to grant summary judgment in favor of the United States,
which the City appeals.
III. DISCUSSION
It is well established that standing is a jurisdictional prerequisite that must be
resolved before reaching the merits of a suit. See, e.g., McCarney v. Ford Motor Co.,
657 F.2d 230, 233 (8th Cir. 1981). We have stated numerous times that "standing is
a 'threshold inquiry' that 'eschews evaluation on the merits.'" Id. (quoting Coal. for the
Env't v. Volpe, 504 F.2d 156, 168 (8th Cir. 1974)).
This "threshold inquiry" normally requires an evaluation of (1) injury, (2)
causation, and (3) redressability. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). However, in cases where, as here, the plaintiffs assert a
procedural injury, they "can assert that right without meeting all the normal standards
for redressability and immediacy," id. at 572 n.7, "so long as the procedures in
question are designed to protect some threatened concrete interest of [theirs] that is
the ultimate basis of [their] standing." Id. at 573 n.8. When standing–and thus a
court's jurisdiction–is challenged, "[t]he party invoking federal jurisdiction bears the
-4-
burden of establishing these elements." Id. at 561. Because the requirements of
standing "are not mere pleading requirements but rather an indispensable part of the
plaintiff's case, each element must be supported in the same way as any other matter
on which the plaintiff bears the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the litigation." Id. Thus, in response to
a motion to dismiss, "general factual allegations of injury resulting from the
defendant's conduct may suffice, for . . . we 'presum[e] that general allegations
embrace those specific facts that are necessary to support the claim.'" Id. (quoting
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990)) (alteration in original). In
response to a motion for summary judgment, "the plaintiff[s] can no longer rest on
such mere allegations, but must set forth by affidavit or other evidence specific facts,
which for purposes of the summary judgment motion will be taken to be true." Id.
(quotations omitted).
Here, when the United States filed its motion to dismiss, the district court
refrained from ruling on the motion, believing that the motion was premature because
the facts were not yet properly before the court. As Defenders of Wildlife explains,
however, when a motion to dismiss is made on standing grounds the standing inquiry
must, as a prerequisite, be done in light of the factual allegations of the pleadings. Id.
While the district court did not initially rule on the motion to dismiss for lack
of jurisdiction, it did suggest that it would reconsider the matter at a later date.
However, when the United States renewed and incorporated its motion to dismiss
along with its summary judgment motion, the district court again declined to
determine whether it had jurisdiction. The court refused to rule because, according
to the court, the United States' "memorandum . . . does not contain any citations to the
record in support of its argument that Clarkson Valley lacks standing." Again,
Defenders of Wildlife dictates that it is the party invoking federal jurisdiction–in this
case, the City–that bears the burden of proving the elements of standing as "an
indispensable part of the plaintiff's case." Id.
-5-
Because the district court never decided whether it had jurisdiction to proceed,
we remand this case for a proper standing analysis. The court will have to determine
whether the United States' discussion of standing in its memorandum of support for
summary judgment was a "renew[ed]" motion to dismiss or whether that rationale was
"incorporate[d]" into the motion for summary judgment, because this will determine
at which "successive stage[] of the litigation" the motion was made and thus "the
manner and degree of evidence required." Id. Once that determination is made, the
burden is placed on the City, as the party invoking federal jurisdiction, to prove it has
standing to bring the suit. As part of its proof, the City, suing under the APA, must
not only show the injury required in Defenders of Wildlife, see id. at 573 n.8, but
"must also show [that] the injury complained of falls within the zone of interests
sought to be protected by the statutory provision[s]" of NEPA. Rosebud Sioux Tribe
v. McDivitt, 286 F.3d 1031, 1036 (8th Cir. 2002).
IV. CONCLUSION
We remand the case to the district court to decide whether the City has standing.
Should the City lack standing, the case must be dismissed for lack of jurisdiction. If
the district court determines that the City carried its burden, then the court's previous
determination on the merits may be reentered.
______________________________
-6-
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572 N.W.2d 163 (1997)
STATE of Iowa, Appellee,
v.
Jerry Joe NICHOLS, Appellant.
No. 96-0788.
Court of Appeals of Iowa.
September 24, 1997.
Linda Del Gallo, State Appellate Defender, and Christopher Cooklin, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Kevin Parker, County Attorney, and Douglas D. Hammerand, Assistant County Attorney, for appellee.
Considered by SACKETT, P.J., and HUITINK and STREIT, JJ.
HUITINK, Judge.
Jerry Nichols appeals from judgment and sentence entered, following a jury trial, for first-degree burglary. He argues there was insufficient evidence to support the entry element of the crime of burglary. We affirm.
I. Background Facts and Proceedings.
Nichols was charged with burglary and related offenses after he shot his son, Greg, at a Hy-Vee store in Indianola. At the time of the shooting, Greg was working in a food preparation room that was closed to the public. This room was separated from a public hallway by swinging doors. At trial, Nichols denied he entered this room and claimed he shot at Greg from the hallway.
The jury rejected Nichols' version and found him guilty of the "entry" alternative of first-degree burglary. The sole issue he raises on appeal is the sufficiency of the evidence supporting the jury's finding he entered the food preparation room where Greg was shot.
II. Scope of Review.
Our scope of review is on assigned error only. Iowa R.App. P. 4 The standard of review in challenging the sufficiency of the evidence is well established. State v. Lampman, 342 N.W.2d 77, 81 (Iowa App.1983). We will uphold a verdict where there is substantial evidence in the record tending to *164 support the charge. State v. Aldape, 307 N.W.2d 32, 39 (Iowa 1981).
When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the state, including legitimate inferences and presumptions that fairly and reasonably may be deduced from the evidence in the record. State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984); State v. Hall, 371 N.W.2d 187, 188 (Iowa App.1985). Direct and circumstantial evidence are equally probative so long as the evidence raises "a fair inference of guilt and [does] more than create speculation, suspicion, or conjecture." State v. Hamilton, 309 N.W.2d 471, 479 (Iowa 1981). It is necessary to consider all the evidence in the record, not just the evidence supporting the verdict, to determine whether there is substantial evidence to support the charge. Bass, 349 N.W.2d at 500; Hall, 371 N.W.2d at 188. Substantial evidence means evidence which would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. LeGear, 346 N.W.2d 21, 23 (Iowa 1984); Hall, 371 N.W.2d at 188.
III. Sufficiency of Evidence of Entry.
Professor Yeager has observed:
Neither the Iowa cases nor the Uniform Jury Instructions have concerned themselves with the word, entering, the meaning of which has apparently been considered obvious. It is generally thought that the entry can be physical entry by the person or the burglar or by any part of his body or can be merely the entry of some instrument controlled by the burglar.
4 John L. Yeager & Ronald L. Carlson, Iowa Practice: Criminal Law and Procedure § 292, at 76 (1979). The Uniform Jury Instructions now define entry in these terms: "to enter" means entering a structure with any part of the body, or with an instrument intended to be used to commit a felony. Vol. II, Iowa Crim. Jury Instructions 1300.12 (1993). This definition is consistent with the significance afforded the word entry in the law of burglary. 13 Am.Jur.2d Burglary at 327 (1964) (entry is not confined to the intrusion of the whole body but may consist of the insertion of any part for purposes of committing a felony). It also conforms to the ordinary meaning of the word entry. See Webster's New World Dictionary of the American Language 466 (2d ed.1974). We hold that Iowa Criminal Jury Instruction 1300.12 correctly expresses the meaning of the word entry for purposes of the statutory definition of burglary. See Iowa Code section 713.1.
At trial, several witnesses testified Nichols was not in the food preparation room, but in the doorway when he shot Greg. Nichols' wife, who witnessed the shooting, testified Nichols was in the hallway and Greg was passing through the door when the shooting occurred. Greg's testimony on this issue was inconsistent. At one point, he said Nichols did not enter the room. The jury heard Greg's deposition testimony where he testified Nichols was backing out of the room when he fired the gun at him. At trial, he testified Nichols' toes were in the room.
Another witness testified he found spent shotgun shells inside the room. He also testified he was certain the shells were not pushed into the room by the swinging doors when this witness entered the room. An investigator testified two waddings from the shotgun shells were found inside the room.
Although evidence of Nichols' location at the time of the shooting is conflicting, it nevertheless provides sufficient evidentiary support for the jury's implicit finding that a part of Nichols body entered the room or the shotgun was extended into the food preparation room when Greg was shot. The jury was free to accept direct and circumstantial evidence indicating Nichols was in the food preparation room when he shot Greg and reject all evidence to the contrary. We find no error and affirm the district court.
AFFIRMED.
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06/01/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
CHARLES BLACKSTOCK v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hamilton County
No. 230316, 230317, 230318 Barry A. Steelman, Judge
___________________________________
No. E2019-01446-CCA-R3-ECN
___________________________________
The pro se Petitioner, Charles Blackstock, appeals as of right from the Hamilton County
Criminal Court’s order summarily denying his petition for a writ of error coram nobis or,
alternatively, petition for a writ of habeas corpus. The State has filed a motion to affirm
the trial court’s judgment pursuant to Rule 20 of the Rules of the Tennessee Court of
Criminal Appeals. Following our review, we conclude that the State’s motion is well-
taken and affirm the judgment of the trial court.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals.
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE, and ROBERT H. MONTGOMERY, JR., JJ., joined.
Charles Blackstock, Pro Se, Only, Tennessee.
Herbert H. Slatery III, Attorney General and Reporter; and Benjamin A. Ball, Senior
Assistant Attorney General, for the appellee, State of Tennessee.
MEMORANDUM OPINION
Factual Background
The Petitioner pleaded guilty to one count of especially aggravated kidnapping
and two counts of rape of a child concerning the July 18, 1999 offenses wherein the
Petitioner abducted the nine-year-old victim as she rode her bicycle, placed her in the
trunk of his car, and then anally and orally raped her before her escape. Pursuant to the
plea agreement, the length and manner of service of the sentences were determined by the
trial court. At sentencing, the trial court imposed twenty-five-year sentences for each
offense to be served consecutively, for a total effective sentence of seventy-five years’
incarceration. On direct appeal, this court modified the sentences for the rape of child
convictions to twenty-three years each but otherwise affirmed the judgments of the trial
court, resulting in a total effective sentence of seventy-one years’ incarceration. State v.
Charles R. Blackstock, No. E2000-01546-CCA-R3-CD, 2001 WL 969036, at *1 (Tenn.
Crim. App. Aug. 27, 2001) (no perm. app. filed). The Petitioner unsuccessfully pursued
habeas corpus relief, the denial of which was affirmed by this court on appeal. Charles
Blackstock v. State, No. E2013-01173-CCA-R3-HC, 2014 WL 1092812 (Tenn. Crim.
App. Mar. 19, 2014) (no perm. app. filed). The Petitioner then unsuccessfully pursued a
petition for post-conviction relief, the summary denial of which was affirmed by this
court on appeal. Charles R. Blackstock v. State, E2015-01384-CCA-R3-PC, 2016 WL
1276300 (Tenn. Crim. App. Mar. 31, 2016), perm. app. denied (Tenn. Aug. 18, 2016).
On May 7, 2019, the Petitioner filed a pro se petition for a writ of error coram
nobis or, alternatively, petition for a writ of habeas corpus alleging that newly discovered
evidence concerning his sexual abuse victimization as a child explained his committing
these offenses and would change the sentencing determination by the trial court. On July
22, 2019, the trial court summarily denied relief as to both modes of relief. The trial
court concluded that the Petitioner could not claim coram nobis relief from guilty-pleaded
convictions and that the Petitioner had failed to raise a cognizable habeas corpus claim.
The Petitioner filed a timely notice of appeal with this court. Following the Petitioner’s
filing of the brief, the State filed a motion asking this court to affirm the trial court’s
judgment by memorandum opinion pursuant to Tennessee Court of Criminal Appeals
Rule 20. The Petitioner has not filed a response to the State’s motion.
Analysis
Error Coram Nobis
“[T]he statute setting forth the remedy of error coram nobis in criminal matters
does not encompass its application to guilty pleas.” Frazier v. State, 495 S.W.3d 246,
247 (Tenn. 2016). Therefore, the trial court did not err in summarily denying coram
nobis relief to the Petitioner’s challenge of his guilty-pleaded convictions.
Habeas Corpus
Under Tennessee law, the “grounds upon which habeas corpus relief may be
granted are very narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ
will issue only where the petitioner has established: (1) a lack of jurisdiction for the order
of confinement on the face of the judgment or in the record on which the judgment was
rendered; or (2) that he is otherwise entitled to immediate release because of the
-2-
expiration of his sentence. See State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000);
Archer, 851 S.W.2d at 164.
The purpose of the habeas corpus petition is to contest a void, not merely a
voidable, judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn.
1968). A void, as opposed to a voidable, judgment is “one that is facially invalid because
the court did not have the statutory authority to render such judgment.” See Summers v.
State, 212 S.W.3d 251, 256 (Tenn. 2007). In contrast, “[a] voidable conviction or
sentence is one which is facially valid and requires the introduction of proof beyond the
face of the record or judgment to establish its invalidity.” Taylor, 995 S.W.2d at 83.
A petitioner bears the burden of establishing a void judgment or illegal
confinement by a preponderance of the evidence. See Wyatt v. State, 24 S.W.3d 319,
322 (Tenn. 2000). We note that the determination of whether to grant habeas corpus
relief is a matter of law; therefore, we will review the habeas corpus court’s finding de
novo without a presumption of correctness. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn.
2001).
Our supreme court has held, “A habeas corpus court may properly choose to
dismiss a petition for failing to comply with the statutory procedural requirements;
however, dismissal is not required. The habeas corpus court may . . . choose to
adjudicate the petition on its merits.” Hickman v. State, 153 S.W.3d 16, 21 (Tenn. 2004)
(footnote omitted) (citing Tenn. Code Ann. § 29-21-109). While procedural default is not
required, we observe that neither the trial court nor the parties made any mention of the
procedural requirements for filing a habeas corpus petition.
This is the Petitioner’s second petition for a writ of habeas corpus. The Petitioner
was convicted in Hamilton County and is incarcerated in Hickman County. Tennessee
Code Annotated section 29-21-105 states that an application for habeas corpus relief
should be filed with “the court or judge most convenient in point of distance to the
applicant, unless a sufficient reason be given in the petition for not applying to such court
or judge.” The Petitioner provides no reason for filing in Hamilton County. Moreover,
the Petitioner failed to attach a copy of the judgments under attack or the prior habeas
corpus petition to the instant petition. The procedural requirements for habeas corpus
relief are “mandatory and must be followed scrupulously.” Archer v. State, 851 S.W.2d
157, 165 (Tenn.1993). The Petitioner’s alternative pleading form does not absolve him
of the mandatory pleading requirements of the habeas corpus statute. The trial court
could have summarily dismissed the petition without addressing the merits of the
allegations.
-3-
That said, we agree that the Petitioner failed to state a cognizable claim for
habeas corpus relief. Challenges to the consideration of mitigating evidence related to
sentencing are not cognizable grounds of habeas corpus relief. Bobby Joe Strader v.
David Osborne, Warden, No. E2011-02510-CCA-MR3-HC, 2012 WL 3548510, at *3
(Tenn. Crim. App. Aug. 17, 2012) (“Any alleged error in the setting of the sentence
length within the applicable range would be an ‘appealable error’ that would not be
cognizable in a habeas corpus proceeding”). The Petitioner’s claim that the State violated
Brady v. Maryland in failing to disclose evidence of his victimization and its relationship
to his offending as an adult is also not cognizable in a habeas corpus proceeding. George
T. Haynie, Jr. v. Ricky Bell, Warden, et al., No. M2006-02752-CCA-R3-CV, 2007 WL
1792534, at *7 (Tenn. Crim. App. June 27, 2007). Likewise, the Petitioner’s allegations
of ineffective assistance of counsel are not cognizable claims for habeas corpus relief.
Thomas Ernest Young v. State, No. M2016-02333-CCA-R3-HC, 2018 WL 444202, at *4
(Tenn. Crim. App. Jan 17, 2018). We conclude that the Petitioner is not entitled to relief.
Conclusion
When an opinion would have no precedential value, this court may affirm the
judgment or action of the trial court by memorandum opinion when the judgment is
rendered or the action taken in a proceeding without a jury and such judgment or action is
not a determination of guilt and the evidence does not preponderate against the findings
of the trial court. See Tenn. R. Ct. Crim. App. 20. We conclude that this case satisfies
the criteria of Rule 20. Accordingly, the State’s motion to affirm by memorandum
opinion the judgment of the trial court denying error coram nobis and habeas corpus
relief is GRANTED. Upon consideration of the foregoing and the record as a whole, we
affirm the judgment of the Hamilton County Criminal Court pursuant to Rule 20 of the
Rules of the Tennessee Court of Criminal Appeals.
______________________________________
D. KELLY THOMAS, JR., JUDGE
-4-
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881 F.2d 1076
McGinnis (H. Coleman)v.McWherter (Ned)
NO. 88-5155
United States Court of Appeals,
Sixth Circuit.
AUG 11, 1989
1
Appeal From: M.D.Tenn.
2
VACATED AND REMANDED.
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220 N.W.2d 874 (1974)
Robert Durwood THOMAS, Appellant,
v.
STATE of Iowa, BOARD OF PAROLE and Lou V. Brewer, Warden, Iowa State Penitentiary, Appellees.
No. 2-56914.
Supreme Court of Iowa.
July 31, 1974.
*875 Frank M. Krohn, Newton, for appellant.
Richard C. Turner, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., and Bruce Nuzum, Jasper County Atty., for appellees.
Heard before REYNOLDSON, Acting C. J., and MASON, RAWLINGS, REES and UHLENHOPP, JJ.
UHLENHOPP, Justice.
This appeal involves the validity of a parole revocation.
A court sentenced petitioner Robert Durwood Thomas to serve not exceeding seven years in the Iowa State Penitentiary. After Thomas served about a year, the Iowa Board of Parole paroled him on specified conditions. About four months later, on September 13, 1972, a parole officer arrested petitioner in Johnson County, Iowa, for violating the parole. The officer gave him written notice of a hearing to be held before a hearing officer on October 24, 1972. The notice set forth the alleged parole violations. The officer also furnished defendant a detailed written report of the claimed violations. Some of the violations listed were associating with a person having a criminal record (one Funeberg, also a parolee), not keeping reasonable hours, *876 visiting taverns and places of questionable reputation, participating in a scheme to defraud, attempting to take another person's Cadillac car from a garage in the middle of the night, and contributing to the delinquency of a minor (of which petitioner had been convicted after the charge was reduced from lascivious acts with a child).
A hearing officer held the hearing as scheduled. Two attorneys represented petitioner. Witnesses including petitioner testified. Petitioner told about his conduct which brought about his arrest. The written report furnished petitioner and presented to the hearing officer contained statements by two women concerning the alleged scheme to defraud and attempted car theft. Petitioner did not request that these women be produced in person, and they were not produced. In making his order, the hearing officer considered the written statements of the two women.
Based upon petitioner's admissions, the other testimony, and the written statements of the two women, the hearing officer ordered petitioner held for a hearing before the board of parole on whether the parole should be revoked.
An officer gave petitioner written notice of a hearing to be held before the board on December 4, 1972. At that hearing, petitioner complained about the procedure at the previous hearing but offered no evidence on the merits as to whether his parole should be revoked. The record contains no indication he requested that any person be called or that he objected to the material considered by the board. From the original written report, petitioner knew who the witnesses would be and the substance of their testimony. The board considered the testimony and the written report containing the statements of the two womenwho were not present in person. After the hearing, the board revoked the parole.
On December 6, 1972, under chapter 663A of the Code, petitioner filed in Jasper County the instant application for postconviction relief. The county attorney did not answer within 30 days, and on January 9, 1973, petitioner filed a motion asking the court to grant the relief prayed. On January 17, 1973, the Jasper County Attorney filed resistance to the motion and a request for extension of time to answer. He alleged in his request that the previous county attorney had just left office and the papers had become lost in the process. He further alleged that petitioner's arrest for parole violation occurred in Johnson County, so that extra time had been necessary to ascertain the facts. On the same day, January 17, the district court granted the extension by ex parte order. Also that day, the county attorney filed answer.
The parties filed various other documents, and on June 27, 1973, petitioner filed an amended and substituted application for postconviction relief. On August 30, 1973, after thoroughly reviewing the case in written findings, the district court entered an order of its intention to dismiss the application under § 663A.6 of the Code, and gave petitioner an opportunity to reply. Petitioner replied, alleging (a) the district court erroneously extended the time for the county attorney to answer petitioner's original application for postconviction relief, (b) the board of parole did not hold the revocation hearing within a reasonable time, and (c) the board deprived petitioner of his right to confrontation of witnesses. After considering the entire record and petitioner's reply, the trial court dismissed petitioner's application on September 28, 1973.
Petitioner appealed. In this court, petitioner presents the three questions he raised in his reply in district court.
I. Extension of Time. The first paragraph of § 663A.6 of the Code provides:
Within thirty days after the docketing of the application [for postconviction relief], or within any further time the court may fix, the state shall respond by answer or by motion which may be supported by affidavits. At any time prior *877 to entry of judgment the court may grant leave to withdraw the application. The court may make appropriate orders for amendment of the application or any pleading or motion, for pleading over, for filing further pleadings or motions, or for extending the time of the filing of any pleading. In considering the application the court shall take account of substance regardless of defects of form. If the application is not accompanied by the record of the proceedings challenged therein, the respondent shall file with its answer the record or portions thereof that are material to the questions raised in the application. (Italics added.)
At the time the district court extended the time for the county attorney to file answer to petitioner's application for postconviction relief, more than 30 days had expired from the docketing of petitioner's application, but the proceeding had not yet gone to judgment. The intent of § 663A.6 appears to be to get at the merits of the controversy, and after the county attorney obtained the extension, he forthwith filed answer. In view of the portions of § 663A.6 which we have italicized, we think the court acted within its discretion in extending the time for filing the answer under the circumstances of this case. Furgison v. State, 217 N.W.2d 613 (Iowa). Moreover, even if the county attorney had never filed answer, the trial court would not necessarily have granted petitioner's application. The trial court would have disposed of the application on its merits. The situation is not akin to a private suit on a note in which the plaintiff is entitled to his judgment if the defendant defaults.
We do not indicate approbation of tardy responses to applications for postconviction relief. Since the statute specifies 30 days, respondents should ordinarily move or answer within that time. If they are unable to do so, they should, within that time, seek an extension on notice. But we find no abuse of discretion regarding this extension.
II. Revocation Hearing In Reasonable Time. The constitutional requirements for parole revocations were laid down in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. The Court mandated a two-step procedure: an initial hearing, followed by the revocation hearing itself if the parolee desires one. If the initial hearing results in a finding that the parolee should be held, he will usually be kept in custody pending the revocation hearing. Hence a tender of a revocation hearing should not be unduly delayed.
In Morrissey, the Court spoke of this time element in two places:
There is typically a substantial time lag between the arrest and the eventual determination by the parole board whether parole should be revoked. 408 U.S. at 485, 92 S.Ct. at 2602, 33 L.Ed.2d at 496;
and:
The revocation hearing must be tendered within a reasonable time after the parolee is taken into custody. A lapse of two months, as the State suggests occurs in some cases, would not appear to be unreasonable. 408 U.S. at 488, 92 S.Ct. at 2603-2604, 33 L.Ed.2d at 498.
Depending upon the circumstances of the case and of the nature of the alleged parole violations, the time lapse from arrest to revocation hearing may in some cases be less than two months while in other cases it may not be reasonably practical to have the hearing precisely within two months. We cannot fix a specific number of days for all cases. The board should act with reasonable celerity. The time lapse must not be unreasonable. Each case depends upon its own facts. Under the facts of this case, we cannot say the time lapse was unreasonable.
III. Confrontation and Cross-Examination. When we speak of the right of confrontation we include the attendant opportunity to cross-examine. Petitioner contends that at the two hearings he was *878 deprived of the right to be confronted with the two women whose statements related to the alleged fraud scheme and attempted car theft. Both the hearing officer, initially, and the board, subsequently, did consider the written report containing the statements of the two women, and the State did not produce the women in person. The record does not show that petitioner asked prior to the hearings to have the women produced or that he objected at the hearings to the introduction of the report. From the written material furnished petitioner prior to the hearings, he knew that the authorities relied on information given by the women.
As to the initial hearings before hearing officers, the Court held in Morrissey that persons who have given information on which revocation is to be based must be made available for questioning in the parolee's presence at his request (unless the hearing officer determines that such persons would be subjected to risk of harm if their identity is disclosed). 408 U.S. at 487, 92 S.Ct at 2603, 33 L.Ed.2d at 497-498. With reference to the subsequent parole-board hearings, which result in actual revocation or continuation of parole, the Court addressed the confrontation question again. The Court endeavored to make such hearings both fair and practical, stating in 408 U.S. at 488-489, 92 S.Ct. at 2604, 33 L.Ed.2d at 498-499:
We cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds. Our task is limited to deciding the minimum requirements of due process. They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of the evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial. (Italics added.)
This quotation contains a seeming contradiction in the area in which we are now involved; it grants the right of confrontation, while it allows consideration of letters, affidavits, and other material which would not be admissible in a criminal trial. How can both be true?
The confrontation situation arises in hearings before parole hearing officers and the parole board when (1) the State offers in evidence material which is hearsay (that is, the State offers the material to prove the truth of statements in the material), (2) the material does not come within a recognized exception to the hearsay rule, (3) the parolee has not at some previous stage of the proceedings already been confronted with the declarant of the statements, (4) the State does not produce the declarant at the hearing, and (5) the parolee objects at the hearing to the offered material on the ground that he is deprived of confrontation as to named declarants. See In re Delaney, 185 N.W.2d 726 (Iowa). If one or more of these elements is not present, the hearing officer or board does not have a confrontation problem. But we must devise proper procedure for the hearing-officer or board hearing in which all of these elements are presentprocedure which is both due process and expeditious.
*879 We believe we can obtain guidance for such procedure from our law on use of documentary material in juvenile proceedings. In re Delaney, 185 N.W.2d 726 (Iowa). While the juvenile proceeding is not perfectly analogous, it is similar. One of the due-process requirements under Morrissey is "disclosure to the parolee of the evidence against him". We think this requirement applies as to both the hearing-officer and the board stages. The parolee thus knows in advance the identity of the individuals whose statements or reports the authorities rely on for revocation. We hold that to exercise his right of confrontation, a parolee must, prior to the hearing-officer or board hearing, as the case may be, request production in person at the hearing of such of those individuals as he desires present for confrontation. If the parolee makes such a request, then the hearing officer or board cannot receive material in evidence as to statements or reports of those individuals if the five enumerated elements of a confrontation situation exist. If the parolee does not make such a request, then the material is not inadmissible for non-confrontation notwithstanding that the five elements exist.
In the present attack on the hearing-officer and board hearings, petitioner must fail for two reasons: he did not, prior to the respective hearings, request production of the two women, and he did not object, at the hearings, to reception of the material containing their statements.
This case does not involve the exception stated in Morrissey regarding good cause for nonproduction of a person. We give no consideration in this case to that exception.
We do not find merit in petitioner's three-pronged attack on the trial court's denial of the application for postconviction relief.
Affirmed.
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59 F.3d 659
Tommie J. SMITH, Petitioner-Appellant,v.Robert A. FARLEY, Superintendent, Indiana State Prison,Respondent-Appellee.
No. 94-3818.
United States Court of Appeals,Seventh Circuit.
Argued May 24, 1995.Decided July 5, 1995.
F. Thomas Schornhorst (argued), Indiana University School of Law, Bloomington, IN, Michael P. Rehak, South Bend, IN, for petitioner-appellant.
Arend J. Abel (argued), Office of Atty. Gen., Indianapolis, IN, for respondent-appellee.
Before POSNER, Chief Judge, and BAUER and FLAUM, Circuit Judges.
POSNER, Chief Judge.
1
Tommie Smith is under sentence of death in Indiana for murdering a police officer. The district court denied his petition for habeas corpus, and Smith appeals. Three years ago we affirmed the denial of habeas corpus to Smith's codefendant, Gregory Resnover, who has since been executed. Resnover v. Pearson, 965 F.2d 1453 (7th Cir.1992). To the extent that Smith presents grounds for reversal that are identical to those we resolved against Resnover, we reject them on the authority of our previous decision, for nothing has happened in the interim to warrant a reexamination of any of our rulings. We confine discussion to issues not presented in that case.
2
Smith, Resnover, and Resnover's brother Earl were a band of robbers. Resnover (Gregory, unless otherwise indicated) and Smith were wanted by the police for two recent armed robberies. In one, another brother of Resnover had been killed, and in the other a Brinks guard had been killed. The investigation was led by detective sergeant Jack Ohrberg of the Indianapolis police. The band may have known that Ohrberg was after them, for after the killing Ohrberg's business card, with his wife's name and his home telephone scrawled on the back, were found on Earl Resnover's person.
3
With the police closing in, the band decided to fight it out. Equipping themselves with an arsenal that included two assault rifles (both AR-15's), they holed up in a house and barricaded the front door with furniture. Before dawn, on a December day in 1980, Ohrberg and four other police officers appeared at the house to serve warrants for the arrest of the members of the band. Ohrberg knocked on the front door, shouting "police." A neighbor heard a male voice inside the house shout, "It's the motherfuckin' police." Ohrberg forced the front door open with his shoulder, and as the door opened he was fired upon by Smith and Resnover from the front room of the house. He was hit, and collapsed on the porch. The other officers ducked for cover. Smith and Resnover fired at them. Smith went out on the porch and fired several times at Ohrberg's motionless body. He then went back inside and, seriously wounded himself, collapsed, unconscious. Resnover then surrendered. Earl Resnover had remained in a back room throughout the melee. Ohrberg had been shot three times, and was dead. One of the bullets came from the AR-15 that was found lying next to the unconscious Smith; the other two could not be identified.
4
It makes no difference to Smith's or Resnover's guilt of murder and conspiracy to murder which of them fired the bullet or bullets that actually killed Ohrberg. To be guilty of conspiracy to murder they had only to agree to murder, and commit an overt act in furtherance of the conspiracy, Ind. Code Sec. 35-41-5-2; Sawyer v. State, 583 N.E.2d 795, 798-99 (Ind.App.1991), while to be guilty of murder it was enough that they jointly engaged in conduct that was intended or highly likely to result in death and that death did result. Harris v. State, 617 N.E.2d 912, 915 (Ind.1993); Murphy v. State, 518 N.E.2d 1079, 1082 (Ind.1988); Smith v. State, 465 N.E.2d 1105, 1125 (Ind.1984) ("under these circumstances there need be no actual proof as to which of these participants actually caused the death of Sgt. Ohrberg"); Smith v. State, 516 N.E.2d 1055, 1062 (Ind.1987). Obviously it is not necessary to show that each participant fired the (or a) lethal shot, as that would make it impossible in most cases to convict more than one person of the same murder even if the murder was the result of a scheme in which more than one person participated, as it was here. And there is no constitutional bar to executing a participant who did not personally inflict the fatal wound. Tison v. Arizona, 481 U.S. 137, 157, 107 S.Ct. 1676, 1688, 95 L.Ed.2d 127 (1987); Resnover v. Pearson, supra, 965 F.2d at 1464.
5
Smith and Resnover were tried together, in 1981, and the jury convicted both of them of murder and of conspiracy to murder. The jury reconvened the next day for the death-penalty hearing and recommended the death penalty for both defendants. Under Indiana law, the judge makes the final decision. Ind. Code Sec. 35-50-2-9(e); Roark v. State, 644 N.E.2d 565, 571 (Ind.1994). She sentenced both defendants to death for murder and to fifty years in prison for conspiracy to murder. The Indiana Supreme Court affirmed Smith's convictions and sentences and, later, the denials of his petitions for state postconviction relief. Smith v. State, 465 N.E.2d 1105 (1984), 516 N.E.2d 1055 (1987), 613 N.E.2d 412 (Ind.1993).
6
We begin with the challenge to the conviction. Smith does not argue that the evidence that he committed murder was insufficient; the evidence was overwhelming. He complains about errors in the rulings at trial. Shortly after Resnover and Smith were arrested, Resnover told a newspaper reporter that he had "picked up a gun and fired some shots toward the front of the house" after Smith, already wounded, had said to him, "They're on the porch, get 'em off the porch." The reporter testified to this statement at trial. Smith claims that its admission without deletion of Smith's name violated the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which forbids the admission of a codefendant's statement that inculpates the defendant. The claim fails because the statement did not inculpate Smith. His defense was not that he hadn't shot at the police. That would have been incredible. His defense was that he didn't know they were police. He thought that they were housebreakers, and he and Resnover were trying to defend themselves. Resnover's statement to the reporter was consistent with that defense.
7
Smith's principal challenge to his conviction is based on remarks by the prosecutor in closing argument. Two of the remarks had racial overtones. This is especially troubling because the defendants were black, while the victim of the murder, the judge, the prosecutor, and the entire jury were white. The prosecutor referred to a reluctant prosecution witness, a black woman, as "shucking and jiving" on the stand, by which he meant she was lying. And he referred to Smith's conduct during the melee as Smith's acting like "super-fly." There is no place in a criminal prosecution for gratuitous references to race, especially when a defendant's life hangs in the balance. Elementary concepts of equal protection and due process alike forbid a prosecutor to seek to procure a verdict on the basis of racial animosity. United States v. Doe, 903 F.2d 16, 24-25 (D.C.Cir.1990). But reversals on this ground are rare; Doe is the only reported appellate case in the last fifteen years.
8
Race occupies a special place in the modern law of constitutional criminal procedure; and whether rightly or wrongly is not for us to say. The normal rule of harmless error is relaxed in two areas--the use of peremptory challenges, and the composition of the grand jury--when the error involves racial prejudice. Tyson v. Trigg, 50 F.3d 436, 442 (7th Cir.1995), citing cases. This approach has not been generalized across the entire landscape of procedural errors involving racial prejudice, however, or extended to racial references more aptly described as insensitive than as bigoted. The cost in judicial and prosecutorial resources that would be consumed in retrials designed to vindicate an abstract principle rather than to prevent the conviction of a possibly innocent defendant has been thought too high. The cases hold that one or two isolated references to race or ethnicity, wholly unlikely to sway a jury, do not compel a new trial on federal constitutional grounds when the defendant's guilt is established by overwhelming evidence. United States v. Hernandez, 865 F.2d 925, 927-28 (7th Cir.1989); Russell v. Collins, 944 F.2d 202, 204 n. 1 (5th Cir.1991) (per curiam); Willis v. Kemp, 838 F.2d 1510, 1522-23 (11th Cir.1988).
9
It is not even certain, turning to the specifics of the present case, that the reference to the witness's "shucking and jiving" was racial in character. Cf. United States v. Weiss, 930 F.2d 185, 196 (2d Cir.1991); United States v. Lively, 817 F.Supp. 453, 463-64 (D.Del.), aff'd without opinion, 14 F.3d 50 (3d Cir.1993). The phrase is Negro dialect, A New Dictionary of American Slang 388 (Robert L. Chapman ed. 1986); Geneva Smitherman, Black Talk: Words and Phrases From the Hood to the Amen Corner 205 (1994), but numerous words and phrases of that dialect, just like Yiddishisms such as schnorrer and chutzpah, have become absorbed into standard English and are now applied to members of all racial and ethnic groups. Examples from Smitherman's book include "badmouth," "boss" (as an honorific), and "Saturday night special." But we do not know whether "shucking and jiving" is one of these "crossover" terms, and while it was his own witness that the prosecutor was disparaging (for having withdrawn a pretrial statement that had incriminated the defendants), she was a hostile witness and if the jury totally disbelieved her the prosecution would be harmed less than the defense.
10
The racial character of "super-fly" (more properly "Superfly") is unmistakable. The reference is to the eponymous hero of a 1972 movie (and its 1973 and 1990 sequels, but of course the last came too late to have possibly affected the jury), a black dealer in cocaine who seeks to neutralize the police by hiring the Mafia to kill the police commissioner's "faggot son and fat-legged daughter" should the need arise, and who succeeds in getting away with his crimes. There is no doubt that the prosecutor was referring to this "Superfly," but through all the long years of Smith's postconviction proceedings his lawyers have made no effort to establish the likely meaning of the term to the members of the jury or to persons demographically similar to them. The movie was intended for and marketed to black audiences. No doubt some white people in Indianapolis saw it, and more heard about it. But no effort has been made to establish what the term "Superfly" is likely to have meant to these people. (The dictionaries define it positively: "superior; wonderful," A New Dictionary of American Slang, supra, at 423; "exceptionally upscale; ultra exciting and with-it," Smitherman, supra, at 218.) The race of the defendant was not a secret. It is merely conjecture that the use of the term "super-fly" had any impact on the jury's consideration of the case.
11
We pass over the comments of the prosecutor that we discussed in our opinion in Resnover's case and arrive at his statement that "another section of our people who are our policemen are watching you." Smith takes this to be an intimidating reference to the fact that the audience section of the courtroom was packed with policemen. The text itself is ambiguous, for it follows by a few sentences the remark, "The community watches," which is probably not a reference to the audience in the courtroom. But Smith's lawyer, during his closing argument, remarked without objection that "we've had a packed courtroom full of police officers." So "our policemen are watching you" could indeed refer to the police in the audience.
12
Of course if you kill a policemen and are put on trial for the crime, you must expect the courtroom audience to include policemen; and Smith does not argue that they should have been excluded. Cf. Willis v. Kemp, supra, 838 F.2d at 1523. But he is right to be concerned if the prosecutor refers to the presence of the police in the audience in a way that makes the jurors uneasy about the consequences of their voting to acquit the defendant. Efforts by spectators at a trial to intimidate judge, jury, or witnesses violate the most elementary principles of a fair trial. Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923) (Holmes, J.); Woods v. Dugger, 923 F.2d 1454, 1456-60 (11th Cir.1991); Norris v. Risley, 918 F.2d 828, 832-33 (9th Cir.1990). But we cannot say that this single, ambiguous sentence in a long closing argument created an atmosphere of intimidation merely because of the presence of some policemen in the courtroom as spectators. No effort has been made to show how many there were, or even whether they were in uniform (remember that Ohrberg was a detective, not a uniformed policeman); and there is no suggestion of intimidating circumstances other than the presence of this unknown number of policemen in the courtroom and the single sentence that we quoted. These are not enough to warrant a conclusion that Smith was denied a fair trial. Cf. Holbrook v. Flynn, 475 U.S. 560, 570-71, 106 S.Ct. 1340, 1346-47, 89 L.Ed.2d 525 (1986).
13
Smith challenges the quality of his representation at trial and on direct appeal. A full evidentiary hearing on the issue was conducted in a state postconviction proceeding. There Smith's trial lawyer testified at length about the reasons for the tactics he had employed at the trial. The judge found his testimony more credible than that of Smith, who accused the lawyer of having failed to communicate with him or pursue promising lines of defense, such as that the arsenal found by the police was intended for hunting and the bullet-proof vest to protect a child from being shot accidentally on the hunting expedition. We have no basis for disturbing the finding concerning which of the two, the lawyer or Smith, was telling the truth.
14
What is also true however is that the lawyer--a different lawyer--who handled Smith's direct appeal to the Indiana Supreme Court did an atrocious job. He filed a brief that was 796 pages long, most of them taken up by discussion of waived, hopeless, or irrelevant grounds of appeal. Yet the only colorable ground waived by the brief was ineffective assistance of counsel in the trial court, and despite the waiver that ground was, as we have seen, explored at length and rejected on the merits in the state postconviction proceedings. With a few exceptions, every other colorable ground was fully ventilated by competent counsel in subsequent proceedings, and the Indiana Supreme Court issued two subsequent opinions. The remedy for ineffective assistance of counsel is a fresh appeal with competent counsel. Smith got that appeal--twice. The few issues that the Indiana Supreme Court refused to consider on the ground that they had been raised and decided in Smith's direct appeal are ones that the court determined had been adequately presented there despite the verbosity of the brief. Smith v. State, supra, 516 N.E.2d at 1060, 1062; see also id. at 1066. No doubt the issues would have been more perspicuous if not smothered in lard; but provided that the court considers fully the grounds that are raised, the fact that appellate counsel may not have presented them in a competent manner will usually not be prejudicial. It was not prejudicial here, just as it was not prejudicial in Heath v. Jones, 941 F.2d 1126, 1131-32 (11th Cir.1991), where the lawyer committed the opposite error of filing briefs that were too short (the argument sections of his two briefs were only one and six pages in length, respectively).
15
Judges are not umpires, calling balls and strikes; or judges of a moot court, awarding victory to the side that argues better; least of all is that their disposition in a death case. Appellate courts do rely on counsel to present the grounds for reversal, but in this country, unlike the practice in England, where the judges have no law clerks, they do not depend on counsel to find all the cases and all the reasons in support of the appeal. In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1299 (7th Cir.1995). The better lawyers resent this, feeling that it is "unfair" for judges to do the work of the weaker lawyers. But that is the way it is, and consequently, except in highly unusual cases that we cannot at present envision, it is only when counsel fails to perfect his client's appeal or waives potentially meritorious grounds for reversal that his substandard performance will be deemed sufficiently prejudicial to warrant giving his client a new appeal. See, e.g., Claudio v. Scully, 982 F.2d 798, 801, 803-05 (2d Cir.1992); Lofton v. Whitley, 905 F.2d 885 (5th Cir.1990). We add that the issues that the Indiana Supreme Court did not allow to be rebriefed, as it were, have no apparent merit.
16
We turn to whether error of constitutional dimensions was committed in the hearing on the death penalty. For purposes of evaluating this question we agree with Smith that the closing argument of the prosecutor at the trial of the issue of guilt can be considered along with the closing argument of the prosecutor at the penalty hearing, even though they were different prosecutors; for the penalty hearing followed immediately upon the completion of the trial. This potential carryover effect has been assumed in previous cases, Darden v. Wainwright, 477 U.S. 168, 183 n. 15, 106 S.Ct. 2464, 2472 n. 15, 91 L.Ed.2d 144 (1986); Willis v. Kemp, supra, 838 F.2d at 1519 n. 17, but we think it important to emphasize the point, as it would be entirely unrealistic to suppose that the same jury that had decided guilt would approach the sentencing phase with a tabula rasa. But as there was no reference to race in the sentencing hearing, or to the police watching, the force of these questionable comments at the trial on guilt was, at least, diluted.
17
Smith argues that the jury was misinstructed at the penalty hearing. To bring back a recommendation of capital punishment the jury had to find at least one aggravating circumstance of the murder, and the only one suggested was that Smith had murdered a policeman in the line of duty knowing his victim to be a policeman. Ind. Code Sec. 35-50-2-9(b)(6); Castor v. State, 587 N.E.2d 1281, 1290 (Ind.1992). (The requirement of knowledge is not explicit in the statute, but is assumed in the cases.) Ordinarily, of course, an error in instructions on a matter of state law does not raise a constitutional issue, Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Eaglin v. Welborn, 57 F.3d 496, 501 (7th Cir.1995) (en banc), but it can when the effect is to withdraw from the jury an issue on which the Constitution requires proof, such as guilt--or in a death case whether there is at least one aggravating circumstance, for without it a death sentence is unconstitutional. Tuilaepa v. California, --- U.S. ----, ---- - ----, 114 S.Ct. 2630, 2634-35, 129 L.Ed.2d 750 (1994).
18
But the jury was instructed that it had to find that Smith knew his victim was a policeman. So the instruction was adequate; and in any event an error in the instruction could not have mattered. The jury--the same jury--had just found Smith guilty beyond a reasonable doubt of conspiracy to murder a policeman because the police were getting too hot on the trail of the gang. Implicit in that finding was the further finding that the defendants knew that the man who knocked and cried "police" and shoved his way through the barricaded doorway was indeed a policeman. The sentencing hearing is not an occasion for reexamining the issue of the defendant's guilt. Franklin v. Lynaugh, 487 U.S. 164, 174, 108 S.Ct. 2320, 2327, 101 L.Ed.2d 155 (1988) (plurality opinion); id. at 187-88, 108 S.Ct. at 2334-35 (concurring opinion); Smith v. Black, 904 F.2d 950, 968-69 (5th Cir.1990); Allen v. State, 406 N.E.2d 976, 981 (Ind.App.1980).
19
Smith argues that by misleading paraphrase of the Supreme Court's opinion in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the prosecutor made the jury think that the Supreme Court wanted the jury to recommend capital punishment for Smith--which might indeed be misconduct on the prosecutor's part sufficiently serious to warrant a new hearing, as it might make the jury feel that it had no real discretion to recommend lenity. Wilson v. Kemp, supra, 777 F.2d at 627. The prosecutor told the jury that the Court had said in Gregg that "the reason for the death penalty is retribution" and that "when a people begin to believe an organized society is unable or unwilling to impose on the criminal offenders the punishment they deserve, then are sown the seeds of anarchy, of self-help, vigilante justice and lynch law." And on in that vein. But as it happens the prosecutor was paraphrasing the plurality opinion of Justice Stewart in the Gregg case accurately. See 428 U.S. at 183-84, 96 S.Ct. at 2930. The opinion had said that if society does not visit upon criminal offenders the punishment they deserve, the citizenry will take the law into their own hands. The opinion did not say, and the prosecutor did not say, that therefore murderers should be executed. All that either the opinion or the prosecutor said or implied was that the punishment should fit the crime and that if the crime is heinous enough capital punishment is appropriate, not that it is mandatory. That is the basis upon which Justice Stewart thought capital punishment constitutional. And he was a moderate on the question of the constitutionality of capital punishment, having voted a few years earlier to strike down all existing capital-punishment laws. Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 2760, 33 L.Ed.2d 346 (1972) (concurring opinion). The "average" opinion of the Justices who voted for capital punishment in Gregg would have been more emphatic about the social benefits of the practice.
20
Smith's principal ground for asking for a new penalty hearing is that his counsel at that hearing was incompetent. This tactic is utterly unavailing because it is plain that counsel could have done nothing for him. The first reason is that Smith boycotted the penalty hearing. The second is that to this day he has not suggested that there were any mitigating factors that his counsel might have brought out in his absence and that might have swayed the jury. We are not surprised, given the statement that he made to the judge before the judge imposed sentence. (Smith boycotted only the jury phase of the sentencing hearing.) He said that he would do what he did over again, because he had thought Ohrberg was an intruder, not a policeman. That was his defense at trial. The jury did not believe it. It would not have believed it had his lawyer presented affidavits of good character from Smith's mother and other relatives, as his present counsel urges should have been done though without particulars as to what the affidavits would have said.
21
Smith also complains that his lawyer at the sentencing hearing failed to present evidence that Smith could not have shot Ohrberg when he went out on the porch, because of the path of the bullets in Ohrberg's body in relation to the posture in which the body was found. The evidence was contestable and peripheral. There was little doubt, given the testimony of the police and Smith's own admission, that Smith had gone out on the porch during the shoot-out; that he hadn't been motivated by innocent curiosity; that he had been shot after Ohrberg was down (for a bullet from Smith's gun was found in Ohrberg's body and Smith was wounded when a bullet fired by the police shattered his gun); that he was trying to kill policemen; and that Ohrberg, lying on the porch, was nearest to hand. The fact that Smith may have missed when firing at Ohrberg at point-blank range is not the miracle that Smith's counsel depicts it as, for it was still dark and Smith was being shot at and was no doubt in a state of some agitation.
22
Smith also faults his counsel at the penalty hearing for having failed to bring out the fact that Ohrberg had violated Indiana law by failing to announce his business when he knocked and the further fact that the search of the house that followed the shoot-out was made without a warrant and was, Smith contends, unlawful. We doubt that it was an unlawful search, since it was a protective sweep following an arrest pursuant to a valid warrant for Smith's arrest. Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); cf. Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980); United States v. Pallais, 921 F.2d 684 (7th Cir.1990). And we doubt that in the circumstances Ohrberg was required, either by Indiana law or by the U.S. Supreme Court's recent decision constitutionalizing the duty of the police to announce their business before forcibly entering a house, Wilson v. Arkansas, --- U.S. ----, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), which has a broad exception for exigent circumstances, id. at ---- - ----, 115 S.Ct. at 1918-19, to delay his entry into a den of armed robbers while he explained patiently what he was there for--which they knew. But these are details. These alleged violations of state or federal law had nothing to do with the appropriateness of condemning Smith to death. No doubt if Ohrberg had paused to state his business this would have weakened still further Smith's defense of self-defense. But the fact, if it is a fact, which probably it is not, that Ohrberg may have been required by law to state his business has no bearing on the question of self-defense, which was fully ventilated in the trial on guilt.
23
The whole is sometimes greater than the sum of the parts, but having considered all the alleged errors at the penalty hearing, including those discussed previously in our opinion in Resnover's case, those that may have been committed during the guilt phase of the criminal proceeding and carried over to the jury's consideration of the sentence, and a few trivial ones that we have not bothered to discuss at all, we are unpersuaded that Smith was deprived of any of his rights under the U.S. Constitution. The judgment for the respondent is therefore
24
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
Filed 12/3/15
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S120583
v. )
)
MICKY RAY CAGE, )
) Riverside County
Defendant and Appellant. ) Super. Ct. No. RIF 083394
____________________________________)
A jury convicted defendant Micky Ray Cage of the 1998 first degree
murders of Brunilda Montanez and David Burgos (Pen. Code, § 187),1 and of
being a felon in possession of a firearm (former § 12021, subd. (a)(1)). The jury
found true the allegation that as to each murder defendant personally and
intentionally discharged a firearm and proximately caused great bodily injury or
death to another person within the meaning of section 12022.53, subdivision (d)
and section 1192.7, subdivision (c)(8). It also found true the alleged special
circumstances of lying in wait (§ 190.2, subd. (a)(15)) and multiple murder
(§ 190.2, subd. (a)(3)). The jury returned a penalty verdict of death for the two
murders.
The trial court denied defendant‟s motion for a new trial and his automatic
request to reduce the penalty. The court sentenced defendant to death. It imposed
1 All further statutory references are to the Penal Code unless otherwise
indicated.
1
but stayed two 25-years-to-life indeterminate sentences for the enhancements
under sections 12022.53, subdivision (d) and 1192.7, subdivision (c)(8). The court
also imposed but stayed a three-year sentence on defendant‟s conviction of being a
felon in possession of a firearm. This appeal is automatic. (§ 1239, subd. (b).)
We affirm the judgment in its entirety.
I. FACTS
A. Guilt Phase Evidence
1. Overview
Defendant physically and emotionally abused his wife Claribel Burgos
(Clari),2 his daughter Vallerie Cage (Vallerie), and members of his wife‟s family
for years. His abuse included threats to kill his wife and her family. In October
1998, Clari left defendant with the help of her mother Brunilda Montanez (Bruni).
Clari took both of her and defendant‟s children, Vallerie and Micky Cage, Jr.
(Micky Jr.), and secretly traveled to Puerto Rico where they stayed with extended
family. Defendant was upset with Clari, wanted Micky Jr. back, and told friends
that he felt like doing something to Bruni in order to get his son back. Defendant
said he should “bust a cap in [Bruni‟s] ass” and that he “should just put a gun to
[Bruni‟s] head and tell her to call [Clari].” At other times, defendant said he
wanted to “fuck up” Bruni.
On the night of November 9, 1998, defendant hid a shotgun in a laundry
basket of clothes and went to Bruni‟s house. When Bruni opened the front door,
defendant fatally shot her in the shoulder, chest and face. The shot to Bruni‟s face
was a contact wound that almost completely destroyed her head. Defendant then
2 Because defendant, his wife and his wife‟s family share surnames, we will
use their first names, by which they were commonly referred to at trial, for clarity
and convenience.
2
walked upstairs to the bedroom of Clari‟s 16-year-old brother David Burgos
(David), where he fatally shot David in the chest at close range.
2. Prior incidents of domestic violence
Defendant and Clari met when they were both 14 years old. A few months
later, defendant moved in with Clari‟s family, which included Clari‟s mother
Bruni, Clari‟s younger brother David, and Clari‟s older, mildly intellectually
disabled brother, Richard Montanez (Ritchie). Throughout their relationship,
defendant and Clari intermittently lived with Clari‟s family. In December 1985,
defendant and Clari had their first child, Vallerie.
In 1987, while defendant, Clari and Vallerie were living in the City of
Bellflower with Clari‟s family, defendant asked Clari, who was sleeping, to get
him some water. When Clari told defendant to get the water himself, defendant
pulled Clari out of bed, dragged her down the stairs by her hair, and began
choking her. After he forced Clari to get him a glass of water, defendant choked
her again until she blacked out.
On another occasion when they were living with Clari‟s family in
Bellflower, David, who was five or six years old at the time, began crying because
Bruni had left to go to the store. Defendant told David he was a “momma‟s boy”
and proceeded to punch and kick him. At one point, defendant stomped on
David‟s head with his steel-toed boots. When Clari tried to intervene, defendant
turned his attention to Vallerie. Defendant pulled Vallerie‟s legs over her head
and compressed them into her body until her face turned blue.
In January 1991, when defendant, Clari, and Vallerie were living in Signal
Hill, defendant and Clari had an argument. Defendant pushed Clari into the
bathroom, choked her, and yelled at her not to follow him around. She denied that
she had been doing so, but defendant smashed her mouth against the bathtub,
3
cracking her tooth. Defendant told Clari, “If you want to play, then we‟ll play.”
Clari understood this to mean that if she “messed with him,” he would “teach her.”
In August 1991, during an argument about money, defendant choked Clari,
pulled her hair, and pushed her face down onto the living room couch, trying to
smother her. He then dragged her into the kitchen and grabbed a knife. He
pushed Clari to the floor and put the knife to her throat. Vallerie was present in
the living room and kitchen, witnessing these events. Defendant dragged Clari
into the bedroom, where he beat and choked her on and off for the rest of the
night. Defendant told Clari, “You think I‟m playing with you but I‟m not, I‟ll kill
you.” The next morning, defendant, seeing the injured Clari, told her, “You look
fucked up, I fucked you up didn‟t I?” He threatened Clari that if she called the
police to report him, he would kill Vallerie.
In December 1994, defendant and Clari had their second child, Micky Jr.
At this time, Clari was living in Perris with Vallerie, her mother, and her brothers.
Defendant did not live with them at this time, but was still in daily contact with
Clari. Clari had a new car that she bought for her commute to work. In January
1995, defendant came over one day and asked to use the car. Clari told him no.
Defendant responded by starting to beat her. Clari ran outside, but slipped and fell
in the grass. Defendant grabbed a brick and quickly jumped on top of her, hitting
her in the face with the brick. Clari blacked out, and when she revived, there was
a lot of blood in her eyes. She heard defendant say that he knew she would call
the police. He told her that he was not going back to jail. Vallerie and David were
outside during the incident. Defendant forced them, along with Clari and Micky
Jr., into Clari‟s car. Dizzy and hurt, Clari begged defendant to take her to the
hospital. Defendant said he would, but instead he drove around for hours. Clari
saw in the visor mirror that her forehead was “flapping” and looked “like ground
beef.” She used a diaper to mop up the blood; when the diaper was saturated, she
4
used her shirt. More than seven hours later, defendant finally drove to a hospital
and let Clari go inside, after coaching her on what to say. He threatened that if she
said anything to get him arrested, he would kill their children. Fearful of
defendant, Clari claimed at the hospital that she had hurt herself by slipping at a
store.
Clari needed numerous stitches to close the wound to her forehead, the scar
of which was visible at defendant‟s trial in 2003. Clari also lost her front teeth and
had to visit an oral surgeon to attempt to realign her jaw. At the time of trial,
Clari‟s mouth still did not close properly. It took six months to receive dentures to
replace her teeth. On numerous occasions thereafter, defendant would throw her
dentures away or hide them so that she would have to go to work humiliated.
Twice, Vallerie had to go to the dumpster to retrieve Clari‟s dentures for her.
After Bruni purchased a house in Moreno Valley, Clari and her children
moved back in with defendant at an apartment a few miles from Bruni‟s house.
One day, when Vallerie was 10 or 11 years old, she returned from school early and
saw another woman sitting on their couch. Defendant “dared” Vallerie to tell
Clari about the woman. When defendant found out that Vallerie had done so,
defendant dragged Vallerie into the bathroom. Using clippers, he cut off all of her
long hair, and made her go to school bald. When Clari bought a wig for Vallerie
to wear, defendant took it from Vallerie and would not let her wear it again.
Clari decided to leave defendant for good after he beat her with the brick.
She began to secretly give money to her Aunt Lydia to hold for her, and she
started to look for a new job and new apartment. Because her job hours were
flexible, she was able to go to interviews either before work or during her lunch
break. At first, she would change clothes at home, but defendant became
suspicious that she was seeing somebody else. She started hiding the clothes she
needed for her interviews. Defendant remained suspicious. He insisted on driving
5
to work with her. He became more and more aggressive. He would do things
such as put sugar in her gas tank, shift the car into park while Clari was driving on
the freeway, and tear up her paycheck and flush it down the toilet. He would not
leave her alone with their children. He would not let her sleep, but would keep her
up all night arguing. He told her that if she ever left him, he would first take
Micky Jr. and then kill her, Vallerie, and her other family members, including her
mother, Bruni.
On the morning of October 15, 1998, a day Clari had a job interview
scheduled, defendant again insisted upon driving to work with her. During the
drive, Clari told defendant that there was not enough gas in the car for him to drop
her off and pick her back up. Defendant grabbed Clari‟s purse to look for money;
finding none, he threw her purse out of the car window and onto the freeway.
Clari drove back and retrieved her purse. As soon as she had the purse, however,
defendant again threw it out the window. When defendant asked if she was going
to get it, she responded “no” and continued to drive to work. Clari decided at that
point that she would take her children and leave defendant that day.
Clari called Bruni, telling her she could not take it anymore, and was
leaving defendant. She asked Bruni to pick up Vallerie and Micky Jr. and bring
them to work. Clari then called Vallerie, told her they were leaving, and asked her
to put clothes for the three of them in a trash bag. Clari told her boss she was
leaving her job. Bruni picked Clari up from work with the children. Bruni
arranged for her and the children to stay with a friend of hers until they could fly
to Puerto Rico, where they could stay with relatives. Clari and the children left for
Puerto Rico a few days later.
Clari subsequently called her mother and her brother David from Puerto
Rico. Both reported that defendant had been calling them. Defendant, who had
obtained Bruni‟s work information, called Bruni at work several times. He also
6
drove through Bruni‟s neighborhood at least once a week during the weeks Clari
and the children were gone.
3. The prosecution’s evidence of the homicides
In October and November 1998, Kevin Neal and Jason Tipton lived in an
apartment below defendant‟s unit. The three men often spent weekends together
having barbeques, drinking, smoking, and playing dominoes. After Clari left with
the children, defendant told Tipton how upset and angry he was that Clari had
taken his son and that he did not know where they were.3 Defendant told Tipton
that he wanted to go to his mother-in-law and put a gun to her head to find out
where Clari had taken his son. Tipton heard defendant say that he should “bust a
cap in [Bruni‟s] ass” and that he “should just put a gun to her head and tell her to
call my wife.” He said that he felt like “doing something to Clari‟s mom to get
[his] son back.” At other times, he said he wanted to “fuck up” Clari‟s mother.
Defendant showed Tipton the shotgun that he owned and the ammunition inside it.
Defendant also told Neal how upset he was that his wife had taken his son
away. Defendant called Bruni a “bitch” and was angry because she would not tell
him where his wife and children were. Neal heard defendant say he wanted to
confront Bruni to find out where his family was. Like Tipton, Neal had seen
defendant‟s shotgun at defendant‟s apartment.
On the evening of November 9, 1998, defendant, Tipton and Neal were
playing dominoes and watching football. They were all drinking and smoking
marijuana. Defendant seemed a little high, but not very drunk. After the football
game ended, defendant, wearing a long dark Raider‟s jacket, left Tipton‟s
apartment with a friend. The friend drove defendant to Bruni‟s house.
3 Tipton died in an accident before defendant‟s trial began. The trial court
permitted his preliminary hearing testimony to be read to the jury.
7
Sarah Phipps, who lived with her parents and brother Steve next door to
Bruni, recalled hearing Bruni‟s dog barking around 10:30 or 10:45 p.m. on
November 9, 1998. The dog barked only a couple of times, stopping relatively
quickly, as it usually did if it knew the person who came to the door. She
estimated that it was between two and five minutes from when the dog stopped
barking to when she heard three loud bangs in quick succession, followed by
another loud bang.
Another neighbor of Bruni‟s, Adrian Valdez, also heard two sets of loud
banging noises around the same time that night. He went outside to investigate
and saw a man wearing a long coat standing across the street at Bruni‟s house.
The man started walking toward Valdez‟s house, noticed Valdez, waved and then
mumbled something to him. The man continued to cross the street, went up onto
the sidewalk and walked away from Valdez. When an alarm sounded from the
direction of Bruni‟s house, the man started to run. The coat he was wearing flared
and Valdez noticed that the man was carrying an object that looked like a rifle.
Bruni‟s son Ritchie had gone out with Steve Phipps that night to watch the
televised football game at a bar. After the game, Ritchie called Bruni to ask her to
come pick him up. Bruni agreed to do so, but never arrived. Ritchie called home
several times; one time defendant answered the phone. Ritchie and Steve ended
up taking a taxi to Ritchie‟s home.
When they arrived at the house around 11:00 p.m., the front door to Bruni‟s
home was open about an inch and there were some clothes in the driveway. While
Steve went to get some money at his house to pay the cab driver, Ritchie opened
the door to his home and saw his mother lying on the floor “with her face blown
off.” He hugged her. Then he ran upstairs where he saw his brother David lying
dead. Ritchie screamed, hugged his brother, and managed to call 911.
8
The police arrived soon after Ritchie‟s call to 911. The first officer to
arrive saw that Ritchie was hysterical and covered in blood and fleshy matter.
Several officers tried to calm Ritchie down. Inside Bruni‟s house, the police
encountered a “gruesome” homicide scene; blood, brain matter, and tissue were on
the floor, ceiling, and walls. Bruni and David were shot dead. Several shell
casings were found by Bruni‟s feet. Two shotgun slugs were found upstairs in
David‟s room, which was also bloody. The door to David‟s bedroom showed
damage consistent with it having been kicked. A pair of burgundy pants found in
the driveway matched a burgundy top found in a laundry basket located inside the
entryway. Clari later recognized the clothes in the laundry basket as belonging to
her and defendant. She recognized the basket as one that defendant had previously
used to conceal two guns that he brought into their apartment.
Dr. Daniel Garber, the forensic pathologist who performed the autopsies of
Bruni and David, testified that Bruni suffered three gunshot wounds; one to her
right shoulder, one to her chest, and one to her head. The shot to her head was
consistent with the shotgun being placed in or close to her mouth. The shots were
fired in rapid succession, but the head wound was probably the final shot as it
resulted in the massive destruction of Bruni‟s head, leaving only her chin and jaw.
One of Bruni‟s thumbs was severed and her other thumb was almost severed.
These wounds were consistent with Bruni putting up her hands to protect herself.
The cause of Bruni‟s death was multiple gunshot wounds.
Dr. Garber testified that David suffered two different shotgun wounds, one
to the chest and one to his left arm. The shotgun barrel would have been within a
foot of David when it was fired and the wounds were consistent with David raising
his arm to defend himself. The gunshot wound to David‟s chest was the cause of
his death.
9
Police located a shotgun with a live round in the magazine and some shell
casings in a bush along a trail that defendant was known to use as a shortcut
between his apartment and Bruni‟s house. The expended shotgun shells recovered
from inside the house came from the shotgun that was found and the recovered
slugs probably came from that gun. In the same area, police found cigarette butts
and packs consistent with the brand defendant smoked. Police also found several
boot prints. According to a criminalist, the left boot recovered from defendant‟s
apartment “probably” made one of the impressions and the right boot recovered
“could have” made one of the other impressions.
After defendant was arrested, police collected the clothing he had been
wearing the night Bruni and David were killed. A tracking dog was allowed to
sniff the shorts that defendant had been wearing. The dog traced defendant‟s scent
up to the front door of Bruni‟s house, then along a route matching that of the man
Valdez had seen that night, and onto the trail that defendant used as a shortcut.
The dog stopped several times in locations where evidence had been found,
including the bush under which the shotgun had been found.
Defendant‟s pants, shorts, and swabs taken from his leg and the recovered
shotgun tested positive for human blood. A prosecution DNA expert testified that
Bruni‟s DNA profile was an included source for the bloodstains found on
defendant‟s pants, with defendant and David excluded as possible sources.
Another criminalist, using a more current DNA testing method, testified that the
stains on defendant‟s pants matched Bruni‟s DNA.
4. The defense case
Defendant did not present any evidence at the guilt phase of trial. In
closing argument, defendant‟s counsel argued that the DNA evidence was not
certain and the circumstantial evidence linking defendant to the killings was not
10
sufficient proof for the jury to find him guilty of first degree murder beyond a
reasonable doubt.
B. Penalty Phase Evidence
1. The prosecution’s case
The prosecution introduced evidence of defendant‟s prior criminal activities
involving the use or attempted use of force or violence or the express or implied
threat to use force or violence (§ 190.3, factor (b)), as follows:
In July 1986, defendant and another man were arrested for possession of
deadly or dangerous weapons. Defendant told the arresting officer that his
companion planned to beat up a person who owed him money and defendant was
along to help if necessary.
In January 1987, defendant stole from Nancy Icenogle, a friend of Clari, the
German Luger nine-millimeter handgun that her grandfather had brought home as
a memento from World War II. When confronted, defendant refused to return the
gun and told Icenogle that it was her word against his.
In April 1987, defendant viciously beat 16-year-old William Hinton, who
he believed had taken some money from him. As defendant was hitting Hinton
with a piece of wood with a screw or nail sticking out of it, he yelled that Hinton
needed to die. When Icenogle screamed for defendant to stop, defendant hit her
too. Bruni intervened and made defendant stop. Icenogle spoke with the police
when they arrived. A few days later, defendant accused Icenogle of “ratting him
out,” and threatened to kill her.
In connection with the 1988 incident in which defendant beat and kicked
then five- or six-year-old David, evidence was presented that David suffered
permanent injury, including repeated severe headaches every couple of weeks.
11
In April 1990, defendant hit, kicked, choked, and slammed into a wall Mary
Roosevelt, the mother of his other daughter, Felisha Cage.
In connection with the August 1991 incident in which defendant beat Clari
and held a knife to her throat, evidence was presented that defendant subsequently
resisted arrest. It required three officers to subdue him.
In December 1992, defendant held Vallerie up by one arm with her feet
dangling off the ground and hit her with a belt. When Clari tried to intervene,
defendant pushed her out of the way. He told Clari that Vallerie was his child and
he would “hit her any way [he] want[ed],” with as much force as he wanted.
Vallerie testified that defendant had been beating her that day with a belt buckle
and that she called the police. She regretted doing so because she got in worse
trouble and was sent to the closet for long periods of time. Vallerie sometimes
spent entire days in the closet, including once on her birthday.
Vallerie also testified regarding an incident sometime in 1994 when
defendant picked a fight with Ritchie and beat him badly. Ritchie suffered severe
bruising and had to seek treatment at a hospital.
In June 1994, 15-year-old David Olson went to Bruni‟s house for tutoring
despite his fear of defendant, who was angry with him for refusing to loan
defendant a set of free weights. When defendant arrived at Bruni‟s home, he
confronted Olson, picked him up and threw him into some bushes outside.
Defendant told Olson‟s mother that if she called the police he would kill her and
her son and burn their house down. Defendant then exposed himself to Olson‟s
mother. Police were called and arrested defendant after a violent struggle.
Defendant broke out the rear window of the patrol car and had to be subdued with
pepper spray. Defendant threatened to kill Olson and Olson‟s father. Defendant
said that if he didn‟t kill Olson, he would “get 18th Street after him,” which Olson
understood as a reference to a Los Angeles street gang.
12
Defendant‟s sister-in-law, Traci Thompson, testified regarding an incident
involving Vallerie refusing to eat her vegetables. In response, defendant took her
into her room where he hit her and slammed her into the wall. When Vallerie
came out of her room, she was crying and shaking, and her nose was bleeding.
The parties stipulated that defendant had previously been convicted of two
felonies. Specifically, he was convicted in 1988 of selling cocaine, for which he
was sentenced to three years in prison, and he was convicted in 1991 of spousal
abuse of Clari, for which he was sentenced to two years in prison. (§ 190.3,
factor (c).)
As additional evidence of the circumstances of the crime (§ 190.3,
factor (a)), the prosecution presented the testimony of Dr. Alan Waxman, a
physician with Cedars-Sinai Imaging Center and director of the nuclear medicine
and imaging program there, regarding defendant‟s October 2002 positron emission
tomography (PET) scan. In Dr. Waxman‟s opinion, defendant‟s scan reflected a
normal brain. He questioned the methodology used by defense expert Dr. Wu to
conclude otherwise and suggested Dr. Wu‟s methods would produce
“abnormalities” in almost every PET scan.4 Dr. Waxman also testified that there
are inherent weaknesses in the use of a PET scan as a diagnostic measure for brain
injury or abnormality.
Evidence was also presented that defendant pretended to be physically ill
and to have mental difficulties when police were trying to interview him after his
arrest for the killing of Bruni and David.
4 Dr. Waxman testified after defendant‟s expert, Dr. Joseph Wu, who was
allowed to testify out of order during the prosecution‟s case in aggravation to
accommodate his schedule.
13
The prosecution presented victim impact testimony from Clari, Vallerie,
Bruni‟s mother Celena Rodriguez, and Bruni‟s sister Lupe Quiles.
2. The defense case
Dr. Joseph Chong-Sang Wu, an associate professor at the University of
California, Irvine School of Medicine, and clinical director for the university‟s
brain imaging center, testified regarding the PET scan he performed on defendant
in October 2002. According to Dr. Wu, defendant‟s scan was consistent with his
having suffered a brain injury and with a diagnosis of schizophrenia. The
possibility of schizophrenia was confirmed, in Dr. Wu‟s opinion, by medical
records indicating defendant was taking large doses of antipsychotic medications
and a Social Security disability benefits report indicating defendant had classic
symptoms of schizophrenia. According to Dr. Wu, antipsychotic medication taken
by a person with schizophrenia would result in a reduction of hallucinations and
other symptoms, but a person without schizophrenia would be “knocked flat” by
the dosage of medication prescribed for defendant: that defendant could take and
tolerate the medication would validate a diagnosis of schizophrenia. Dr. Wu also
reviewed records indicating defendant had suffered head trauma.
Dr. Boniface Dy, a psychiatrist with Riverside County detention mental
health services, testified that he had seen defendant since June 2000 every 25 to 30
days to review his medications, which included several antipsychotic medications.
Defendant‟s daughter Felisha testified that she saw defendant about once a
month before he was incarcerated and that he had never been violent toward her.
Defendant‟s mother, Emily Farmer, testified that defendant‟s behavior
changed as a child once he was diagnosed with diabetes. Defendant‟s grades had
always been poor, but after his diabetes diagnosis he became an even slower
learner. According to Farmer, when defendant was about 15 years old, he ran into
14
a light pole while playing football and had to have his jaw wired for about eight
months. Farmer told the jury that the last time she saw defendant before the
murders was in late October 1998. At that time he seemed dirty, unkempt and
distant. A week after the murders, she saw him in jail. He was trembling and
shaking. He did not seem to recognize her.
3. The prosecution’s rebuttal case
The prosecution re-called Vallerie and Clari to testify as rebuttal witnesses.
Vallerie described accompanying defendant to the medical evaluation
necessary to qualify him for Social Security benefits. According to Vallerie,
defendant enlisted her participation to help him appear “crazy.” At the Social
Security office, defendant talked about being abducted by aliens, made strange
faces, and laughed out of context. Vallerie testified that defendant was in fact
fully rational and understood what was happening around him. She said that he
also “faked out” the jail doctors.
Clari testified that defendant faked his mental illness and lied on his Social
Security application in order to receive monthly disability benefits. According to
Clari, defendant would often brag about cheating the Social Security agency and
fooling doctors. He took the prescribed medications only when his case was up
for reevaluation because he knew the doctors would check his blood. When he
took the antipsychotic medication, he would sleep most of the day.
II. DISCUSSION
A. Guilt Phase Issues
1. Admission of the evidence of defendant’s past crimes and bad acts
against his family
Prior to trial, the prosecutor sought a ruling allowing the admission of
defendant‟s 13 separate prior acts of abuse of Clari, one prior act of abuse of
David, three acts of abuse of Vallerie, and general evidence of the repeated abuse
15
of Ritchie. The prosecutor argued defendant‟s past crimes and bad acts against his
wife and family were relevant and admissible pursuant to Evidence Code section
1101, subdivision (b) (hereafter Evidence Code section 1101(b)), principally as
evidence of motive, but also to establish identity and intent. Defendant objected
and sought to exclude the evidence, arguing it was irrelevant because there was no
evidence of defendant‟s ever previously behaving in a violent or aggressive
manner toward Bruni, who was the family matriarch. Defendant also claimed the
evidence was too remote and was simply propensity evidence that would unfairly
appeal to the jury‟s emotions. He contended that admission of the evidence would
violate his federal due process rights.
Expressly finding that the probative value of the evidence outweighed the
prejudicial effect for purposes of Evidence Code section 352, the trial court ruled
that eight of the prosecutor‟s identified incidents of defendant‟s past abuse of
Clari, plus the incidents of defendant‟s abuse of David and Vallerie, were
admissible under Evidence Code section 1101(b). The trial court determined that
the evidence of defendant “constantly beat[ing] up” Ritchie would be excessive
under section 352 and ruled such evidence inadmissible.
Defendant contends on appeal that the trial court erred in allowing
introduction of his past incidents of abuse of Clari, David and Vallerie, claiming
that the evidence was irrelevant, cumulative, and inflammatory and was used for
the impermissible purpose of showing his propensity for violence.
The rules governing the admissibility of evidence under Evidence Code
section 1101(b) are well settled. Evidence of defendant‟s commission of other
crimes, civil wrongs or bad acts is not admissible to show bad character or
predisposition to criminality, but may be admitted to prove some material fact at
issue such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident. (Evid. Code, § 1101; People v. Jones (2013) 57
16
Cal.4th 899, 930; People v. Hovarter (2008) 44 Cal.4th 983, 1002.) Because
evidence of a defendant‟s commission of other crimes, wrongs, or bad acts “ „may
be highly inflammatory, its admissibility should be scrutinized with great care.‟ ”
(People v. Medina (1995) 11 Cal.4th 694, 748.)
“ „In cases in which the prosecution seeks to prove the defendant‟s identity
as the perpetrator of the charged offense by evidence he had committed uncharged
offenses, admissibility “depends upon proof that the charged and uncharged
offenses share distinctive common marks sufficient to raise an inference of
identity.” ‟ [Citation.] A somewhat lesser degree of similarity is required to show
a common plan or scheme and still less similarity is required to show intent.
(People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)” (People v. Roldan (2005) 35
Cal.4th 646, 705.) Where other crimes or bad conduct evidence is admitted to
show motive, “ „an intermediate fact which may be probative of such ultimate
issues as intent [citation], identity [citation], or commission of the criminal act
itself ‟ ” (People v. Lewis (2001) 26 Cal.4th 334, 370), the other crimes or conduct
evidence may be dissimilar to the charged offenses provided there is a direct
relationship or nexus between it and the current alleged crimes. (People v.
Demetrulias (2006) 39 Cal.4th 1, 15; People v. Daniels (1991) 52 Cal.3d 815, 857;
People v. Thompson (1980) 27 Cal.3d 303, 319, fn. 23.)
We review the trial court‟s ruling for abuse of discretion. (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405; People v. Jones, supra, 57
Cal.4th at p. 930.)
Here the prosecutor argued, and the trial court found, that the prior
incidents of abuse were important evidence of defendant‟s motive. We agree.
Motive, though it was not an ultimate fact put at issue by the charges or the
defense in this case, was probative of the material issues of identity and intent, as
well as premeditation and deliberation. (See People v. Demetrulias, supra, 39
17
Cal.4th 1, 14-15; People v. Roldan, supra, 35 Cal.4th at p. 707; People v. Pertsoni
(1985) 172 Cal.App.3d 369, 374-375.) The proffered evidence, if believed by the
jury, reflected that defendant demanded Clari comply with his requests and reacted
with anger, hostility, and punishment when she did not promptly meet his
demands. Indeed, the evidence showed that over the course of many years,
defendant sought to exert power and control over Clari, Vallerie, and David by
both threatening and committing violent, demeaning, and abusive acts against
them. His threats included expressions of his intent to harm other family members
in order to enforce his will. Defendant specifically sought to prevent Clari from
leaving him by aggressively interfering with her normal activities and threatening
to kill her and her family, including Bruni. The evidence reflected that defendant
retaliated when thwarted. A logical inference from the evidence of the prior
assaultive incidents would be that defendant carried out his threats by committing
the charged crimes, intending them as retribution for Clari‟s leaving him and
taking his son. A direct relationship or nexus, thus, existed between the prior
incidents and the charged crimes. (People v. Daniels, supra, 52 Cal.3d at p. 857.)
Under the circumstances, there was no abuse of discretion by the trial court
under Evidence Code section 352 in allowing the introduction of the prior abuse
evidence. The probative value of the evidence to explain defendant‟s motive to
commit the charged crimes was significant and not merely cumulative and
unnecessary, as defendant claims. Contrary to defendant‟s argument, the evidence
of motive was specific and not so general as to be meaningless. The evidence of
motive, found in the evidence of his prior behavior, also corroborated the
testimony of defendant‟s apartment neighbors Tipton and Neal that defendant
threatened to harm Bruni after Clari took his son away from him. It further
supported the evidence of defendant‟s identity as the killer, provided a fuller
explanation for the killings, and supplied important indirect evidence of
18
defendant‟s intent, which the jury also reasonably could have considered on the
issue of premeditation and deliberation. Moreover, the evidence was not unduly
prejudicial. (Evid. Code, § 352, subd. (b).) As we have repeatedly explained:
“ „In applying section 352, “prejudicial” is not synonymous with “damaging.” ‟ ”
(People v. Bolin (1998) 18 Cal.4th 297, 320.) “ „ “[A]ll evidence which tends to
prove guilt is prejudicial or damaging to the defendant‟s case.” ‟ ” (People v.
Gionis (1995) 9 Cal.4th 1196, 1214.) The “prejudice” which section 352 seeks to
avoid is that which “ „ “uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on the issues.” ‟ ”
(People v. Gionis, supra, at p. 1214.) Finally, we note that the jury was given a
limiting instruction regarding its consideration of the evidence (CALJIC No.
2.50), which was emphasized by the prosecutor during her closing argument. We
presume the jury followed the instruction.
2. Sufficiency of the evidence of premeditation and deliberation
Defendant contends the evidence of premeditation and deliberation was
insufficient to support his convictions of first degree murder of Bruni and David.
He argues that the first degree murder verdicts must, therefore, be reversed to
preserve his constitutional rights to due process, to present a defense, and to a fair
and reliable guilt and penalty determination. (U.S. Const., 5th, 6th, 8th & 14th
Amends.; Cal. Const., art. I, §§ 7, 15, 16 & 17.)
Reviewing the entire record in the light most favorable to the judgment, we
conclude that substantial evidence, that is, evidence which is reasonable, credible,
and of solid value from which a rational trier of fact could find defendant guilty
beyond a reasonable doubt, supports defendant‟s conviction of first degree murder
of Bruni and David based on a theory of premeditation and deliberation. (People
v. Mendoza (2011) 52 Cal.4th 1056, 1068-1069.)
19
“A verdict of deliberate and premeditated first degree murder requires more
than a showing of intent to kill. (§ 189 [„willful, deliberate and premeditated
killing‟ as first degree murder].) „Deliberation‟ refers to careful weighing of
considerations in forming a course of action; „premeditation‟ means thought over
in advance. [Citations.] „The process of premeditation and deliberation does not
require any extended period of time. “The true test is not the duration of time as
much as it is the extent of the reflection. Thoughts may follow each other with
great rapidity and cold, calculated judgment may be arrived at quickly. . . .” ‟ ”
(People v. Koontz (2002) 27 Cal.4th 1041, 1080.) In People v. Anderson (1968)
70 Cal.2d 15, 26-27 (Anderson), “we „identified three categories of evidence
relevant to resolving the issue of premeditation and deliberation: planning
activity, motive, and manner of killing.‟ [Citation.] „However, these factors are
not exclusive, nor are they invariably determinative.‟ [Citation.] „ “Anderson was
simply intended to guide an appellate court‟s assessment whether the evidence
supports an inference that the killing occurred as the result of preexisting
reflection rather than unconsidered or rash impulse.” ‟ ” (People v. Streeter
(2012) 54 Cal.4th 205, 242.)
Addressing the Anderson factors, defendant contends that the evidence
reflects he only planned a nonlethal confrontation with Bruni in an effort to
discover where Clari had taken his son. He complains that if bringing a gun along
were to demonstrate the required planning activity, every gun killing in California
would qualify as premeditated and deliberate first degree murder. In defendant‟s
view, his actions when he arrived at Bruni‟s house were consistent with a sudden
and random “explosion” of violence rather than calm, calculated thought. He
emphasizes that on the evening of the murders, he was drinking heavily and using
drugs. Repeating some of his previous argument regarding the allegedly improper
introduction of the prior abuse evidence, defendant contends that there was, in any
20
event, no evidence in his prior abuse of his wife and daughter that he had a motive
to kill Bruni.
Defendant‟s view of the record is not the only possible, or even most likely,
view of the evidence. To the contrary, the prosecution‟s evidence showed
significant evidence of considered planning on the part of defendant, who
repeatedly told his downstairs neighbors about his desire not only to confront
Bruni after he could not locate Clari and his son, but to “fuck [her] up.” On the
night of the killings, he put on a dark jacket, hid a loaded shotgun in a laundry
basket containing his and Clari‟s clothes, and got a ride over to Bruni‟s house. He
took the laundry basket with the concealed gun up to the front door with him.
Combined with his earlier statements, defendant‟s conduct reflects more than
incidental possession of the gun. And, although defendant had been drinking and
smoking marijuana earlier that night, defendant‟s apartment neighbor Neal
testified that defendant seemed a little high, but not very drunk.
We also note our previous conclusion that the evidence of prior abuse was
properly admitted by the trial court to show, in part, defendant‟s motive in killing
Bruni and David. Such evidence revealed a pattern of hostile, abusive conduct by
defendant against Clari, Vallerie, and David. Defendant‟s threats of retaliation if
his will was crossed included expressions of intent to harm and kill other family
members, specifically including Bruni. Thus, a rational jury could find defendant
went to Bruni‟s house with the intent to exact retribution or revenge after Clari
defied him by leaving with the children. (People v. Streeter, supra, 54 Cal.4th at
pp. 242-243.)
The jury reasonably could have inferred premeditation and deliberation
from the manner of killing. The evidence showed that defendant entered Bruni‟s
house and shot her three times in rapid succession. The shot to her head was
consistent with defendant placing the shotgun in or close to her mouth. “[A]
21
close-range gunshot to the face is arguably sufficiently „particular and exacting‟ to
permit an inference that defendant was acting according to a preconceived
design.” (People v. Caro (1988) 46 Cal.3d 1035, 1050; accord, People v.
Thompson (2010) 49 Cal.4th 79, 114-115 [a close-range shooting without any
provocation or evidence of struggle reasonably supports an inference of
premeditation and deliberation].) And, instead of then leaving the home,
defendant stepped over or around Bruni‟s bloody body and proceeded up the stairs
to David‟s room. Defendant, thus, had time to reflect on his brutal killing of Bruni
before he kicked in David‟s bedroom door and fatally shot David. Defendant fired
twice again at close range, one of the shots being to David‟s chest.
Finally, a jury could have inferred from the evidence of defendant‟s actions
in and outside the house after the shootings that he was not possessed by a sudden
rage, but was acting in the course of premeditated killings. Specifically, there was
evidence from Ritchie that defendant answered one of his phone calls to the house
at a time when the evidence suggested that the killings had just occurred. And
there was evidence from Bruni‟s neighbor, Valdez, that when he went outside to
investigate the source of loud banging noises, he saw a man (defendant) wearing a
long coat standing outside Bruni‟s house. Defendant then walked toward Valdez‟s
house, noticed Valdez, waved, mumbled something, and continued walking.
Defendant began to run only when an alarm sounded. These actions hardly seem
to reflect a person who had been overcome by sudden anger and acted as the result
of rash impulse.
The evidence is more than sufficient to support a conclusion that defendant
premeditated and deliberated the murders of Bruni and David.
22
3. Sufficiency of the evidence of lying in wait
Defendant contends insufficient evidence was presented to support his
convictions of first degree murder on a lying-in-wait theory and the jury‟s true
finding on the special circumstance of lying in wait. He argues that as a result he
was denied his constitutional rights to due process and a fair trial. (U.S. Const.,
5th, 6th, 14th Amends.; Cal. Const., art. I, §§ 5, 15 & 16.) We reject the claim.
At the time of the murder of Bruni and David, “ „the requirements of the
lying-in-wait special circumstance were slightly different from, and more stringent
than, the requirements for lying-in-wait first degree murder. [Citation.] Whereas
lying-in-wait first degree murder required only that the murder be perpetrated “by
means of” lying in wait (§ 189), the lying-in-wait special circumstance applied to
murder committed “while lying in wait” (§ 190.2, former subd. (a)(15), italics
added).‟ [Citation.] Further, the lying-in-wait special circumstance requires intent
to kill, while lying-in-wait murder requires only a wanton and reckless intent to
inflict injury likely to cause death.” (People v. Streeter, supra, 54 Cal.4th at
p. 246; see id., fn. 7.) Where the evidence supports the special circumstance, it
necessarily supports the theory of first degree murder. (People v. Moon (2005) 37
Cal.4th 1, 22.)
“The lying-in-wait special circumstance requires „an intentional murder,
committed under circumstances which include (1) a concealment of purpose, (2) a
substantial period of watching and waiting for an opportune time to act, and
(3) immediately thereafter, a surprise attack on an unsuspecting victim from a
position of advantage . . . .‟ ” (People v. Carpenter (1997) 15 Cal.4th 312, 388;
accord, People v. Mendoza, supra, 52 Cal.4th at p. 1073.)
“We have explained the elements of the lying-in-wait special circumstance
as follows. „ “ „The element of concealment is satisfied by a showing “ „that a
defendant‟s true intent and purpose were concealed by his actions or conduct. It is
23
not required that he be literally concealed from view before he attacks the
victim.‟ ” ‟ [Citation.]” ‟ [Citation.] As for the watching and waiting element, the
purpose of this requirement „is to distinguish those cases in which a defendant acts
insidiously from those in which he acts out of rash impulse. [Citation.] This
period need not continue for any particular length “ „of time provided that its
duration is such as to show a state of mind equivalent to premeditation or
deliberation.‟ ” [Citation.]‟ [Citation.] „The factors of concealing murderous
intent, and striking from a position of advantage and surprise, “are the hallmark of
a murder by lying in wait.” ‟ ” (People v. Mendoza, supra, 52 Cal.4th at p. 1073,
fn. omitted.)
Here, there was evidence that defendant concealed his true intent and
purpose even though he did not conceal his presence at Bruni‟s door. Defendant
hid his shotgun in a laundry basket containing his and Clari‟s clothes and took the
laundry basket with him up to Bruni‟s door. A jury could rationally deduce from
these facts that defendant planned and undertook a deliberate subterfuge aimed at
making his presence appear to be an innocuous offer to return Clari‟s clothes or
request to do laundry so that Bruni would open the door and admit him. The ruse
disguised his intent to kill.
Defendant claims, however, that even if his use of the laundry basket could
be considered a planned concealment, there is insufficient evidence of the second
requirement — a substantial period of watching and waiting for an opportune time
to act. However, “we have never placed a fixed time limit on this requirement.
Indeed, the opposite is true, for we have previously explained that „[t]he precise
period of time is also not critical.‟ ” (People v. Moon, supra, 37 Cal.4th at p. 23.)
The lying in wait need not continue for any particular period of time provided that
its duration is substantial in the sense that it shows a state of mind equivalent to
premeditation or deliberation. (People v. Mendoza, supra, 52 Cal.4th at p. 1073 &
24
fn. 6.) In this case, the evidence did not establish the specific length of time that
defendant waited for Bruni to open the front door, but nothing in the trial record
suggests it happened instantaneously upon defendant‟s arrival at the house.5 A
rational jury could infer that there was some period of watching and waiting at the
door. Similarly, although the record does not establish the precise amount of time
after Bruni opened the door that defendant spent interacting with her before he
pulled out the shotgun and shot her, Sarah Phipps, one of Bruni‟s neighbors,
testified Bruni‟s dog barked briefly around 10:30 or 10:45 p.m. and that shots
were fired several minutes later. Such testimony could support an inference that
defendant conversed with Bruni for a few minutes before removing the gun from
the basket and shooting her. During such time defendant could have reflected on
his intentions, such that his subsequent actions in taking the shotgun out of its
hiding place and shooting Bruni and then proceeding upstairs to David‟s room
were not the product of a rash impulse. (People v. Russell (2010) 50 Cal.4th 1228,
1245 [“Even a short period of time is sufficient to overcome an inference that a
defendant acted rashly.”].)
It is also apparent from the record that defendant‟s surprise attack on Bruni
and David followed in a continuous flow of events upon defendant‟s successful
use of his ruse to persuade Bruni to open her front door. The jury could
reasonably determine that defendant‟s actions met the requirement of an
5 In his opening brief, defendant discusses purported evidence regarding his
actions when he arrived at Bruni‟s house, having received a ride from his friend
J.D. Sovel. The citations given for this evidence are to the transcript of the
testimony of Investigator Gutierrez at defendant‟s preliminary hearing.
Investigator Gutierrez was not called as a witness at defendant‟s trial, nor was
defendant‟s friend J.D. Sovel. Thus, this “evidence” was not before the jury and is
not considered by the court.
25
immediate surprise attack on unsuspecting victims from a position of advantage.
(People v. Carpenter, supra, 15 Cal.4th at p. 388.)
Contrary to defendant‟s argument, this case is not similar to People v.
Lewis (2008) 43 Cal.4th 415, 507-509, in which we vacated a lying-in-wait special
circumstance for insufficient evidence of watching and waiting. We did so there
because we concluded that the statements of a codefendant should not have been
admitted against the defendant and that such statements “supplied the only
evidence of a plan and agreement to find someone driving a nice car, bump the car
so the driver would stop, steal the car and any valuables therein, and shoot the
driver if he or she did not cooperate. It also supplied the only evidence that [the
victim] was purposefully trailed for any period of time before [another
codefendant‟s] car collided with his truck.” (Id., at p. 509.) No such deficiencies
in the evidence are present here.
Although the evidence of watching and waiting in this case is not
overwhelming, it is sufficient to support the jury‟s first degree murder verdict and
true finding on the special circumstance allegation.
4. Defendant’s challenges to the lying-in-wait murder and lying-in-
wait special circumstance instructions
Defendant‟s jury was instructed with CALJIC No. 8.25 regarding the
elements of lying-in-wait first degree murder and with CALJIC No. 8.81.15
concerning the requirements of the lying-in-wait special circumstance. Although
defendant did not object to the instructions at the time of trial, he now claims on
appeal that CALJIC No. 8.81.15 was lengthy, confusing, and internally
inconsistent. He asserts that the instruction also conflicted with other instructions
defining premeditation and deliberation. And, according to defendant, the use of
identical language in CALJIC No. 8.81.15 and CALJIC No. 8.25 regarding the
temporal elements of lying in wait left the jury with no meaningful way to separate
26
lying-in-wait murder from the lying-in-wait special circumstance. Defendant
argues that giving these two instructions violated his constitutional rights to due
process, to a fundamentally fair trial, and to a reliable verdict and penalty
determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7
& 15.) Defendant‟s claims are reviewable to the extent they affect his substantial
rights (§ 1259), but we have rejected such claims on the merits before and do so
again.
CALJIC No. 8.81.15 is not by its length or terms “ „impossible to
understand and apply.‟ ” (People v. Cruz (2008) 44 Cal.4th 636, 678.) It is not
internally inconsistent in its treatment of the temporal element of lying in wait,
which properly references the concepts of premeditation and deliberation. (People
v. Bonilla (2007) 41 Cal.4th 313, 332-333.) Therefore, there was no conflict with
other instructions. And, the use of the same language in both CALJIC No. 8.81.15
and CALJIC No. 8.25 concerning the period of time necessary for lying in wait is
appropriate. The difference between lying-in-wait murder and the lying-in-wait
special circumstance does “not touch on th[is] durational element of lying in
wait.” (People v. Stevens (2007) 41 Cal.4th 182, 202, fn. 11; accord, People v.
Carpenter, supra, 15 Cal.4th 312, 390-391.) The difference lies in the required
mental states (People v. Stevens, supra, at pp. 202-203) and, at the time of
defendant‟s crimes, in the requirement of the special circumstance that the
defendant intentionally killed the victim “while” lying in wait. (§ 190.2, former
subd. (a)(15), as amended by Stats. 1995, ch. 478, § 2, p. 3564; People v. Ceja
(1993) 4 Cal.4th 1134, 1140, fn. 2.) As we have held before, the special
circumstance of lying in wait instruction is constitutional. (People v. Stevens,
supra, at pp. 203-204.)
27
5. Constitutionality of the lying-in-wait special circumstance
Defendant argues that section 190.2, subdivision (a)(15), the lying-in-wait
special circumstance, unconstitutionally fails to perform the narrowing function
required by the Eighth Amendment to the federal Constitution. This issue has
been raised before and our cases have said that the lying-in-wait special
circumstance, as we have interpreted it, has clear and specific requirements that
sufficiently distinguish a murder committed while the perpetrator is lying in wait
from other murders, so as to justify the classification of that type of case as one
warranting imposition of the death penalty. (People v. Carasi (2008) 44 Cal.4th
1263, 1310; People v. Cruz, supra, 44 Cal.4th at p. 678, and cases cited.)
Defendant fails to persuade us to reconsider our prior precedent.
6. The admission of purported victim impact testimony at the guilt
phase
During the guilt phase, Clari testified concerning her receipt in Puerto Rico
of the news of the deaths of her mother and brother. She also described her shock
after she returned to their home and observed the bloody crime scene, including
the laundry basket of her clothes. Ritchie testified regarding his return to his
house on the night of the killings and his observations of the bodies of his mother
and brother. The testimony of neighbors Sarah and Steve Phipps, cab driver
Wilhousen, Officer Heim, and Investigator Amicone touched on Ritchie‟s very
emotional reaction to the crime scene.
Defendant does not challenge the admission of the testimony of Ritchie as a
percipient witness, but he argues that the admission of the other testimony was
improper victim impact testimony, irrelevant to the guilt phase of trial. He
contends that any marginal relevance was vastly outweighed by its inflammatory
effect, making its admission an abuse of the trial court‟s discretion. According to
defendant, its introduction deprived him of his constitutional rights to due process,
28
a fundamentally fair trial, and a reliable determination of the penalty. (U.S.
Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15 & 17.)
Defendant forfeited his claims by failing to object to any of the testimony
on the grounds he now raises. (Evid. Code, § 353, subd. (a); People v. Fuiava
(2012) 53 Cal.4th 622, 687; People v. Zamudio (2008) 43 Cal.4th 327, 354.) He
does not persuade us that an objection would have been futile. The record does
not reflect, as defendant claims, that the trial court disregarded his objections
throughout trial. We see nothing improper about the trial court‟s occasional
suggestion that counsel for both sides first try to work out their evidentiary
disputes before it would rule on them. And, contrary to defendant‟s argument,
nothing suggests that a timely admonition, if one had been requested and given,
would not have cured any potential harm.
Moreover, even were we to consider defendant‟s contention, we would find
no prejudicial error. The testimony of witnesses describing Ritchie‟s screams
upon finding the bodies, as well as his subsequent crying and hysteria, was
relevant to explain the inconsistencies between Ritchie‟s trial testimony and his
initial interview with investigating officers at the scene. The testimony of Clari
regarding her family‟s receipt of the telephone call regarding the deaths of Bruni
and David and their breaking the news to Clari helped provide context and was
part of the timeline of events from Clari‟s leaving defendant to her return to her
mother‟s home after the murders. (People v. Tully (2012) 54 Cal.4th 952, 1013.)
The evidence overwhelmingly established defendant was the individual who shot
Bruni and David. The facts of the shootings were largely undisputed. And the
jurors reasonably would expect that immediate family members would experience
horror and distress in seeing and hearing about the killings.
29
7. Admission of crime scene and autopsy photographs
Defendant contends the trial court abused its discretion by admitting, over
his objection, a number of gruesome crime scene and autopsy photographs. He
claims that the photographs were irrelevant and substantially more prejudicial than
probative. (Evid. Code, §§ 210, 350, 352.) Their admission, he argues, violated
his state and federal constitutional rights to due process, a fair trial, and reliable
adjudications at both phases of his capital trial. (U.S. Const., 5th, 8th & 14th
Amends.; Cal. Const., art. I, §§ 7, 15 & 17.) We have rejected such arguments in
the past, and do so again here.
As we have previously observed, “ „ “[t]he admission of photographs of a
victim lies within the broad discretion of the trial court when a claim is made that
they are unduly gruesome or inflammatory. [Citations.] The court‟s exercise of
that discretion will not be disturbed on appeal unless the probative value of the
photographs clearly is outweighed by their prejudicial effect. [Citations.]”
[Citation.] “[A] court may admit even „gruesome‟ photographs if the evidence is
highly relevant to the issues raised by the facts, or if the photographs would clarify
the testimony of a medical examiner.” [Citation.] “We have consistently upheld
the introduction of autopsy photographs disclosing the manner in which a victim
was wounded as relevant not only to the question of deliberation and
premeditation but also aggravation of the crime and the appropriate penalty, all of
which were at issue here. [Citations.]” ‟ ” (People v. Gonzales (2012) 54 Cal.4th
1234, 1272.) “Finally, prosecutors, it must be remembered, are not obliged to
prove their case with evidence solely from live witnesses” (People v. Gurule
(2002) 28 Cal.4th 557, 624) and do not have to forgo use of photographic evidence
“merely because the defendant agrees with a witness or stipulates to a fact. . . .
[T]he jury [is] entitled to see the physical details of the crime scene and the
30
injuries defendant inflicted on his victims.” (People v. Weaver (2001) 26 Cal.4th
876, 933.)
Here, the parties sought at the start of the trial to resolve the issue of which
photographs of the death scenes of Bruni and David, as well as which autopsy
photographs, would be admitted into evidence. Counsel were able to stipulate to
the use of some photographs over others, but there remained a number of
photographs that the prosecution sought to introduce and to which defendant
objected. The trial court carefully considered the possible relevance of each such
photograph and whether a different, less disturbing photograph could suffice. The
court noted that each of the proffered photographs showed something different
that had probative value to the testimony of the pathologist, the cause of death and
the extent of injuries. In ruling the photographs admissible, the court expressly
found that their probative value outweighed their prejudicial effect. (Evid. Code,
§ 352.)
We have reviewed the photographs and agree with the trial court that they
were highly relevant to the circumstances of the crime and the prosecution‟s
theories of lying in wait and premeditated and deliberate murder. (People v.
Sattiewhite (2014) 59 Cal.4th 446, 471 [crime scene photographs are relevant to
establish the killer‟s mental state]; People v. Hajek and Vo, supra, 58 Cal.4th at
pp. 1215-1216 [crime scene and autopsy photographs were relevant to
prosecution‟s theory of murder and special circumstance].) They were relevant to
assist the jury in understanding the testimony of the pathologist. (People v.
Gonzales, supra, 54 Cal.4th at p. 1272.) They also helped explain the stress
Ritchie was under after he encountered the scene and why he may have provided
inconsistent statements to investigating officers. (People v. Scheid (1997) 16
Cal.4th 1, 15.) “The photographs were disturbing, but they were not unnecessarily
so. They „simply showed what had been done to the victim[s]; the revulsion they
31
induce is attributable to the acts done, not to the photographs.‟ ” (People v. Hajek
and Vo, supra, at pp. 1215-1216.)
We conclude the admission of the photographs fell well within the trial
court‟s broad discretion. And because the trial court did not abuse its discretion in
admitting them, there was no violation of defendant‟s constitutional rights.
(People v. Sattiewhite, supra, 59 Cal.4th at p. 472.)
8. Instructing the jury on motive with CALJIC No. 2.51
Without objection, defendant‟s jury was instructed with CALJIC No. 2.51,
on motive, as follows: “Motive is not an element of any of the crimes charged and
need not be shown. However, you may consider motive or lack of motive as a
circumstance in this case. Presence of motive may tend to establish the defendant
is guilty. Absence of motive may tend to show the defendant is not guilty.”
Defendant now contends that the jury was erroneously instructed, thereby
violating his constitutional rights to a fundamentally fair trial, due process and a
reliable verdict and penalty determination. (U.S. Const., 5th, 6th, 8th & 14th
Amends.; Cal. Const., art. I, §§ 7 & 15.) Defendant‟s claims are reviewable to the
extent they affect his substantial rights (§ 1259), but as he recognizes, we have
rejected similar claims on the merits before. We do so again here.
CALJIC No. 2.51 did not improperly allow the jury to determine guilt
based on motive alone. (People v. Livingston (2012) 53 Cal.4th 1145, 1168;
People v. Snow (2003) 30 Cal.4th 43, 97-98.) The instruction did not improperly
shift the burden of proof to defendant to show absence of motive to establish his
innocence. (People v. Sattiewhite, supra, 59 Cal.4th at p. 474.) The juxtaposition
of CALJIC No. 2.51 and CALJIC No. 2.52, the latter of which expressly
instructed the jury that evidence of flight is not by itself sufficient to establish
guilt, would not have caused the jury to believe motive by itself was sufficient.
32
(People v. Livingston, supra, at pp. 1168-1169.) The instruction did not
impermissibly reduce the prosecution‟s burden of proof and violate defendant‟s
constitutional rights. (People v. McKinzie (2012) 54 Cal.4th 1302, 1357; People v.
Mendoza, supra, 52 Cal.4th at pp. 1094-1095.)
9. Instructing the jury on flight with CALJIC No. 2.52
Without objection, defendant‟s jury was instructed with CALJIC No. 2.52,
regarding flight as reflective of consciousness of guilt, as follows: “The flight of a
person immediately after the commission of a crime is not sufficient in itself to
establish his guilt but is a fact which, if proved, may be considered by you in light
of all other proved facts in deciding whether a defendant is guilty or not guilty.
The weight to which this circumstance is entitled is a matter for you to decide.”
Defendant now contends on appeal that CALJIC No. 2.52 was erroneously given
and violated his constitutional rights. (U.S. Const. 5th, 6th, 8th & 14th Amends.;
Cal. Const., art. I, §§ 7, 15, 16 & 17.) Again, defendant‟s claims are reviewable to
the extent they affect his substantial rights (§ 1259), but we conclude they are
meritless.
“In general, a flight instruction „is proper where the evidence shows that the
defendant departed the crime scene under circumstances suggesting that his
movement was motivated by a consciousness of guilt.‟ [Citations.] „ “[F]light
requires neither the physical act of running nor the reaching of a far-away haven.
[Citation.] Flight manifestly does require, however, a purpose to avoid being
observed or arrested.” ‟ [Citation.] „Mere return to familiar environs from the
scene of an alleged crime does not warrant an inference of consciousness of guilt
[citations], but the circumstances of departure from the crime scene may
sometimes do so.‟ ” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Even
though defendant returned to his apartment after the killings, where he was
33
arrested the next morning, he was observed by a neighbor to start running from the
scene of the crimes only when an alarm sounded. Contrary to defendant‟s
argument, the “circumstances” of his departure from the scene provided sufficient
evidence of flight to warrant the flight instruction.
With respect to defendant‟s remaining claims concerning the instruction,
we have recently explained: “Contrary to defendant‟s assertion, the flight
instruction is not duplicative of general instructions as to the definition and
sufficiency of circumstantial evidence. (See CALJIC Nos. 2.00, 2.01, and 2.02.)
Indeed, instruction in language substantially similar to that given here is statutorily
required when the prosecution relies upon evidence of flight „as tending to show
guilt.‟ (§ 1127c.) The flight instruction properly allows „ “the jury to determine to
which offenses, if any, the inference [of consciousness of guilt] should apply” ‟
[citation] and „does not address the defendant‟s specific mental state at the time of
the offenses‟ [citation]. Nor is the flight instruction unfairly partisan and
argumentative, or similar to the proposed defense instruction disapproved of in
People v. Mincey (1992) 2 Cal.4th 408, 437, which „invited the jury to “infer the
existence of [the defendant‟s] version of the facts, rather than his theory of
defense.” ‟ [Citation.] Finally, the instruction does not „create an unconstitutional
permissive inference or lessen the prosecutor‟s burden of proof.‟ ” (People v.
Carrasco (2014) 59 Cal.4th 924, 967-968.)
10. Instructions assertedly undermining the burden of proof
Defendant contends the trial court gave several standard jury instructions
that individually and collectively undermined and impermissibly lessened the
requirement of proof beyond a reasonable doubt: CALJIC Nos. 1.00 (Respective
Duties of Judge and Jury), 2.01 (Sufficiency of Circumstantial Evidence —
Generally), 2.21.1 (Discrepancies in Testimony), 2.21.2 (Witness Willfully False),
34
2.22 (Weighing Conflicting Testimony), 2.27 (Sufficiency of Testimony of One
Witness), 2.51 (Motive), 2.52 (Flight After Crime), and 8.83 (Special
Circumstances — Sufficiency of Circumstantial Evidence — Generally). We
have repeatedly rejected the contention that these instructions compel or allow the
jury to find a defendant guilty using a standard lower than proof beyond a
reasonable doubt. (People v. Hajek and Vo, supra, 58 Cal.4th at p. 1226, and
cases cited; People v. Livingston, supra, 53 Cal.4th at p. 1153, and cases cited.)
We continue to do so.
In his heading for this claim, defendant also references CALJIC No. 8.83.2
(Special Circumstances — Jury Must Not Consider Penalty), but makes no
argument specific to that instruction. Although the Attorney General speculates
that defendant‟s reference to CALJIC No. 8.83.2 was meant to be a reference to
CALJIC No. 8.83.1 (Special Circumstances — Sufficiency of Circumstantial
Evidence to Prove Required Mental State), defendant does not concede such to be
the case in his reply brief. Therefore, we assume defendant meant what he wrote.
We see no reason to reach a different conclusion with respect to CALJIC
No. 8.83.2.
We have also repeatedly rejected the contention that CALJIC Nos. 2.01 and
8.83 created an impermissible mandatory presumption that required the jury to
accept any reasonable inculpatory interpretation of the circumstantial evidence
unless defendant rebutted the presumption by producing a reasonably exculpatory
interpretation. (People v. Parson (2008) 44 Cal.4th 332, 358 and cases cited.) We
decline defendant‟s invitation to reconsider our prior conclusion in this regard.
35
B. Penalty Phase Issues
1. Admission of victim impact evidence
As part of the prosecution‟s penalty phase case, Bruni‟s mother Celena
Rodriguez, Bruni‟s sister Lupe Quiles, Clari and Vallerie provided testimony
regarding the impact that the deaths of Bruni and David had on them and their
families.
Rodriguez briefly described her large family, Bruni‟s childhood in Puerto
Rico, the circumstances under which she learned of Bruni‟s death, and its impact
on her. Quiles testified about her close relationship with Bruni and Bruni‟s
children. She described her emotional reaction to the news of Bruni‟s death, her
travel to California from Florida the day after the murders, and her visit to the
scene of the murders. Quiles also described cleaning the blood, brain matter, and
remnants of bone from Bruni‟s home. She disclosed that she secretly kept one
piece of bone, which she believed to be Bruni‟s nose, as a memorial. Quiles
described the continuing impact of the loss of Bruni and David on her, her family,
and particularly on Ritchie, who was at the time of trial being cared for in a mental
hospital. Clari testified about her closeness to David, who was like a son to her.
She also testified regarding the guilt and emotional struggles that she suffered as a
result of the deaths of her mother and brother. She noted that Ritchie had become
aggressive toward her when she tried to care for him after the crimes and that he
blamed her for the murders. Vallerie described David as being like a brother to
her because of their closeness in age. They essentially grew up together, sharing
experiences, thoughts and feelings. She also testified regarding her emotions after
the death of Bruni and David and the effect of the loss on her and her family.
Conceding that the quantity of victim impact evidence here was not
unusually large, defendant contends that the testimony was nevertheless highly
prejudicial and rendered his trial fundamentally unfair. Defendant argues that the
36
admission of the testimony was erroneous under state statutes (Evid. Code,
§§ 350, 352) and violated his state and federal constitutional rights. (U.S. Const.,
5th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 17 & 24.) Defendant
forfeited his claims by his failure to object to the admission of the testimony on
the grounds he now asserts. (Evid. Code, § 353; People v. Weaver (2012) 53
Cal.4th 1056, 1082; People v. Kelly (2007) 42 Cal.4th 763, 793.) And, in any
event, were we to reach defendant‟s claims of prejudicial error, we would find
they lack merit.
Victim impact evidence is permissible at the penalty phase of a capital trial
under the Eighth Amendment to the United States Constitution (Payne v.
Tennessee (1991) 501 U.S. 808) and we have repeatedly held such evidence
admissible as a circumstance of the offense under section 190.3, factor (a) so long
as it does not invite a purely irrational response from the jury. (People v. Kopatz
(2015) 61 Cal.4th 62, 90; People v. Brady (2010) 50 Cal.4th 547, 574; People v.
Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057.) “Victim impact evidence is
„designed to show . . . each victim‟s “uniqueness as an individual human
being.” ‟ ” (People v. Vines (2011) 51 Cal.4th 830, 887.) Defendant does not
persuade us to revisit our position.
We would also reject defendant‟s contention that the testimony in this case
exceeded statutory and constitutionally permissible bounds.
Defendant first points to Clari‟s testimony when she responded, “How
would you feel if you brought the devil to your mom‟s house and he did it to her?”
Defendant contends that Clari‟s description of him as “the devil” constituted
improper victim impact testimony because it fell within the prohibition of victim
opinion testimony concerning the crime, the defendant, or the appropriate
sentence. (See Payne v. Tennessee, supra, 501 U.S. at p. 830, fn. 2; see also Booth
v. Maryland (1987) 482 U.S. 496, 502-503, 508-509.) We reaffirm the principle
37
that it is improper for family members to characterize, or offer their opinion about,
the crime, the defendant, or the proper verdict (Payne v. Tennessee, supra, at
p. 830, fn. 2; People v. Collins (2010) 49 Cal.4th 175, 229), but conclude Clari‟s
statement did not violate such principle when it is placed in its proper context.
Clari‟s rhetorical question was her response to the prosecutor‟s query regarding
whether the deaths of her mother and brother would have affected her differently
if they had died in a different manner. The prosecutor immediately followed up
by asking Clari whether she was telling the jury that she felt responsible for their
deaths. Clari agreed, stating that she was “old enough to know I‟m not
responsible, . . . but I still feel some guilt because I brought him to the house. I
introduced him to the family.” Thus, in context and as clarified by the prosecutor,
Clari‟s single reference to defendant as “the devil” was little more than a way of
expressing her feelings of guilt. Her testimony was simply a colorful means of
explaining the impact of the crimes on her, and nothing in the record suggests that
the jury would have understood Clari‟s statement literally. But even were we to
view Clari‟s description as crossing the line between proper victim impact
testimony and improper opinion, we also believe that there is no reasonable
possibility that the jury would have returned a different sentence but for Clari‟s
brief reference given the evidence of the callousness of the murders, defendant‟s
prior convictions, his numerous prior incidents of violent domestic abuse and other
criminal conduct, and the prosecutor‟s rebuttal of defendant‟s evidence of his
impaired mental condition. (People v. Johnson (1992) 3 Cal.4th 1183, 1246 [any
error in admitting victim‟s family member‟s opinion could have had no
appreciable effect on jury‟s determination]; see People v. Jones (2003) 29 Cal.4th
1229, 1264, fn. 11 [state law error occurring during the penalty phase is prejudicial
when there is a reasonable possibility such error affected the verdict; the
38
reasonable possibility standard is the same, in substance and effect, as the
harmless beyond a reasonable doubt standard for constitutional error].)
We also reject defendant‟s related claim that it was error for the prosecutor
to ask Clari, Rodriguez, and Quiles how the deaths of Bruni and David impacted
them differently than if the victims had died under different circumstances because
the questions allegedly called for irrelevant speculation. The testimony of
Rodriquez and Quiles was not speculative. Both compared their feelings
regarding the death of Bruni to the actual feelings they felt when another
immediate family member died of natural causes. Their testimony was relevant to
the impact of the crimes on them. Moreover, we have previously found no error in
the admission of such testimony, even when not tied to the specific death of
another person. (People v. Montes (2014) 58 Cal.4th 809, 884.)
Nor was it improper for Rodriguez to testify concerning Bruni as a baby
and as a young girl growing up in Puerto Rico, referencing some of Bruni‟s family
photographs, or for Clari and Vallerie to provide similar evidence of David‟s
family life. (People v. Kopatz, supra, 61 Cal.4th at p. 91.)
The testimony of Clari and Vallerie regarding the continuing adverse effect
on Ritchie of his finding the bodies of his mother and brother, and the residual
effect on him of the murders in general, was permissible even though Ritchie did
not testify at the penalty phase. (People v. Chism (2014) 58 Cal.4th 1266, 1327.)
“There is no requirement that family members confine their testimony about the
impact of the victim‟s death to themselves, omitting mention of other family
members.” (People v. Panah (2005) 35 Cal.4th 395, 495.) Clari and Vallerie did
not need to be experts to testify concerning their observations of Ritchie‟s words,
conduct, living circumstances or the general impact of the crimes on him. (See
People v. DeHoyos (2013) 57 Cal.4th 79, 130-131.) Nor are we are persuaded that
admission of such testimony was unduly prejudicial, as defendant argues, because
39
the court failed to sua sponte instruct the jury that it could consider only such harm
as was directly caused by defendant‟s act. Here, the evidence given by close
family members who were intimately familiar with the particular impact of the
crimes on Ritchie, who was intellectually disabled, supplied probative information
regarding the gravity of defendant‟s offenses, which the jury was entitled to
consider under the standard instruction given. (CALJIC No. 8.85.)
Last, we reject defendant‟s argument that Quiles‟s emotional testimony,
including her description of cleaning up the bloody scene at Bruni‟s house and
retaining of a piece of bone as a memorial, was cumulative, inflammatory and
unduly prejudicial. Quiles‟s testimony provided a fuller description of the
aftermath of defendant‟s crimes. It was not necessarily inflammatory just because
it was emotional. (People v. Verdugo (2010) 50 Cal.4th 263, 299; People v.
Jurado (2006) 38 Cal.4th 72, 133.) Nor was the testimony gratuitously graphic.
Rather, it described part of the impact of the crimes on the witness. That she kept
a piece of bone, which she believed to be Bruni‟s nose, might be viewed as
somewhat macabre, but in light of the fact that many people retain the ashes of
deceased loved ones, we do not view such testimony as inescapably inviting a
purely irrational response from the jury in their penalty deliberations. Moreover,
to the extent any of Quiles‟s testimony exceeded the scope of permissible victim
impact testimony, we would find it harmless for the same reasons stated earlier.
2. The trial court’s denial of defendant’s requests to modify CALJIC
No. 8.88
At trial, defendant requested three modifications to CALJIC No. 8.88, the
standard penalty phase concluding instruction regarding the weighing of
aggravation and mitigation and selection of the appropriate penalty. First,
defendant asked that the following language be added: “In weighing the
40
aggravating and mitigating factors, you are not merely to count numbers on either
side. You are instructed, rather, to weigh and consider the factors. You may
return a verdict of life imprisonment without possibility of parole even though you
should find the presence of one or more aggravating factors.” Second, he
requested that the term “totality” be removed from the part of the standard
instruction telling the jury that “[i]n weighing the various circumstances you
determine under the relevant evidence which penalty is justified and appropriate
by considering the totality of the aggravating circumstances with the totality of the
mitigating circumstances.” And finally, he asked that the jury also be informed
that “[o]ne mitigating circumstance may be sufficient for you to return a verdict of
life imprisonment without possibility of parole.”
The trial court denied defendant‟s first request on the ground that it was
already covered by CALJIC No. 8.88 and the standard instruction was much
clearer than the language proposed by defendant. The court denied defendant‟s
second request because CALJIC No. 8.88‟s use of the word “totality” is not
inappropriate when considered in the context of other language in CALJIC
No. 8.88, which informed the jury that “[t]he weighing of aggravating and
mitigating circumstances does not mean a mere mechanical counting of factors on
each side of an imaginary scale, or the arbitrary assignment of weights to any of
them. You are free to assign whatever moral or sympathetic value you deem
appropriate to each and all of the various factors you are permitted to consider.”
The court denied defendant‟s third request, finding that the language of CALJIC.
No. 8.88 adequately conveyed the point.
Defendant contends the trial court‟s refusal of his requested modifications
resulted in a violation of due process and failure to provide the specific and
detailed guidance necessary to meet Eighth Amendment standards. We disagree.
41
“[T]he standard version of CALJIC No. 8.88, read as a whole, accurately
describes the individualized, normative nature of the sentencing determination,
and properly guides the jury‟s discretion in this regard.” (People v. Contreras
(2013) 58 Cal.4th 123, 170.) Indeed, we have held repeatedly that it is adequate to
instruct the jury regarding its weighing of aggravation and mitigation and selection
of the appropriate penalty using the standard version of CALJIC No. 8.88. (E.g.,
People v. Lopez (2013) 56 Cal.4th 1028, 1083; People v. Howard (2010) 51
Cal.4th 15, 39; People v. Burney (2009) 47 Cal.4th 203, 263-264, and cases cited.)
A trial court may properly refuse to give requested instructions that are duplicative
(People v. Gurule, supra, 28 Cal.4th at p. 659; People v. Turner (1994) 8 Cal.4th
137, 203) as was defendant‟s first requested modification.
The trial court also correctly refused defendant‟s second modification of
CALJIC No. 8.88. The inclusion of the word “totality” in CALJIC No. 8.88 did
not improperly suggest a quantitative judgment. “The instruction explained that
„[t]he weighing of aggravating and mitigating circumstances does not mean a mere
mechanical counting of factors on each side of an imaginary scale, or the arbitrary
assignment of weights to any of them. You are free to assign whatever moral or
sympathetic value you deem appropriate to each and all of the various factors you
are permitted to consider.‟ Thus, „CALJIC No. 8.88 properly describes the
weighing process as “ „merely a metaphor for the juror‟s personal determination
that death is the appropriate penalty under all of the circumstances.‟ ” [Citation.]‟
[Citation.]” (People v. Lewis (2009) 46 Cal.4th 1255, 1316.)
Finally, as our cases have previously concluded, the trial court did not err in
denying defendant‟s request to instruct the jury that one mitigating circumstance
may be sufficient for a verdict of life imprisonment without possibility of parole.
(People v. Jones (2012) 54 Cal.4th 1, 79-80; People v. Salcido (2008) 44 Cal.4th
93, 162-163.) “In addition, we have held such an instruction „was misleading,
42
because it wrongly implied that at least one mitigating factor was needed to justify
a sentence of life imprisonment without parole.‟ ” (Salcido, supra, at p. 163,
quoting People v. Cook (2007) 40 Cal.4th 1334, 1364.)
3. The constitutional adequacy of CALJIC No. 8.88
Defendant also raises a number of challenges to CALJIC No. 8.88 itself,
claiming its use violated his federal constitutional rights under the Fifth, Sixth,
Eighth and Fourteenth Amendment and corresponding sections of the California
Constitution. As defendant concedes, we have previously considered and rejected
these arguments. We do so again because defendant fails to persuade us that our
prior decisions were erroneous.
We repeat that CALJIC No. 8.88 is not inconsistent with section 190.3 nor
is it unconstitutional for failing to inform the jury that if mitigating circumstances
outweigh those in aggravation, it “shall” return a sentence of life without the
possibility of parole. (People v. Jones, supra, 54 Cal.4th at p. 78; People v. Lomas
(2010) 49 Cal.4th 530, 595.) “We once again reject the argument that our decision
in People v. Duncan (1991) 53 Cal.3d 955, 978, erroneously concluded such an
instruction was unnecessary.” (People v. Linton (2013) 56 Cal.4th 1146, 1211.)
“CALJIC No. 8.88: (1) is not unconstitutionally vague and does not
impermissibly reduce the burden of proof necessary to impose the death penalty
by using the „so substantial‟ standard for comparing mitigating and aggravating
circumstances [citations]; (2) properly explains the weighing process that a jury is
required to perform [citation]; (3) properly cautions against a „ “ „mere mechanical
counting of factors‟ ” ‟ [citation]; (4) is not defectively „death-oriented‟ because it
fails to define or describe the penalty of life without the possibility of parole
[citation]; (5) is not unconstitutional because it fails to instruct the jury that a
single mitigating factor could outweigh multiple aggravating factors and by itself
43
could justify a verdict of life imprisonment without the possibility of parole
[citation]; and (6) adequately defines mitigation [citation].” (People v. D’Arcy
(2010) 48 Cal.4th 257, 303-304.) Finally, as we explained earlier, the use of the
word “totality” in the instruction does not make the instruction constitutionally
defective. (People v. Lewis, supra, 46 Cal.4th at p. 1316.)
4. Symmetry in penalty phase instructions concerning jury unanimity
Defendant contends his right to a fair and reliable penalty determination
under the Eighth Amendment was violated by the lack of symmetry between
CALJIC No. 8.85 and CALJIC No. 8.87. Specifically, he complains that the
jurors were instructed with a modified form of CALJIC No. 8.87, which informed
them that they were not required to unanimously find the section 190.3, factor (b),
other crimes evidence proved beyond a reasonable doubt, but they were not
instructed in CALJIC No. 8.85 that they need not be unanimous in finding proof of
any mitigating factors. Conceding that the instructions given conformed to
existing law, defendant nevertheless argues that the trial court should either have
sua sponte deleted the language that “it is not necessary for all jurors to agree”
from CALJIC No. 8.87 or inserted the same language in CALJIC No. 8.85.
First, defendant forfeited this claim by failing to raise it at trial. (People v.
Moore (2011) 51 Cal.4th 1104, 1139-1140.) Second, the claim is meritless, as we
explained in Moore: “There is no right to parity of jury instructions . . . ; both
parties simply have the right to instructions that properly explain the law. The
nonunanimity instruction the trial court gave helped to avoid possible confusion
regarding the sentencing factor that had a burden of proof, by telling the jury that,
unlike at the guilt phase and despite the same beyond a reasonable doubt standard,
unanimity was not required. (See also People v. Jennings (1988) 46 Cal.3d 963,
988 [trial court did not err by instructing the jury that unanimity was not required
44
for factor (b) evidence].) That we concluded the trial court‟s refusal to give a
similar instruction regarding mitigating evidence was not error in People v. Breaux
(1991) 1 Cal.4th 281, 314-315, does not mean the prosecution has
unconstitutionally received preferential treatment.” (People v. Moore, supra, at
p. 1140.) Moreover, as in Moore, “there is no reasonable likelihood the jury in
this case misunderstood the court‟s instruction to mean that the jury was required
to be unanimous regarding mitigating factors. Therefore, the absence of a
nonunanimity instruction regarding mitigating evidence did not undermine
defendant‟s constitutional rights.” (Ibid.)
5. Failure to instruct the jury that there is a presumption of life
We have repeatedly held that “ „[t]he trial court‟s failure to [instruct] the
jury that there is a presumption of life does not violate a defendant‟s constitutional
rights to due process, to be free from cruel and unusual punishment, to a reliable
determination of his sentence, and to equal protection of the law under the Fifth,
Eighth and Fourteenth Amendments to the federal Constitution.‟ ” (People v.
Adams (2014) 60 Cal.4th 541, 581; accord, People v. Suff (2014) 58 Cal.4th 1013,
1078; People v. McKinnon (2011) 52 Cal.4th 610, 698.) Defendant fails to
persuade us there is reason to reconsider our settled view.
6. Asserted cumulative error
Defendant contends that the cumulative effect of the guilt and penalty phase
errors requires reversal of the judgment. We have concluded that defendant
forfeited many of his claims of error. In any event, we have either rejected the
merits of defendant‟s claims or found that any error, assumed solely for purposes
of argument, was harmless. We now conclude there is no cumulative effect of
error requiring reversal of the judgment. (People v. Panah, supra, 35 Cal.4th at
pp. 479-480.)
45
7. Intracase proportionality
Intercase proportionality review is not required by the due process, equal
protection, fair trial, or cruel and unusual punishment clauses of the federal
Constitution, but a defendant is entitled to intracase proportionality review under
the California Constitution upon request. (People v. Whalen (2013) 56 Cal.4th 1,
91; People v. Lenart (2004) 32 Cal.4th 1107, 1130 [art. I, § 17 of the Cal. Const.
entitles a requesting defendant to intracase proportionality review].) “ „ “ „To
determine whether a sentence is cruel or unusual as applied to a particular
defendant, a reviewing court must examine the circumstances of the offense,
including its motive, the extent of the defendant‟s involvement in the crime, the
manner in which the crime was committed, and the consequences of the
defendant‟s acts. The court must also consider the personal characteristics of the
defendant, including age, prior criminality, and mental capabilities. [Citation.] If
the court concludes that the penalty imposed is “grossly disproportionate to the
defendant‟s individual culpability” [citation], or, stated another way, that the
punishment “ „ “shocks the conscience and offends fundamental notions of human
dignity” ‟ ” [citation], the court must invalidate the sentence as unconstitutional.‟
[Citation.]” ‟ ” (People v. Jackson (2014) 58 Cal.4th 724, 771.)
Defendant contends that his death sentence is disproportionate punishment
for his crimes because he was not a calculating killer, but merely reacted on the
night of the crimes in an impulsive rage after he had been drinking and using
drugs. He emphasizes (1) that he had little education, left home before he was 15
years old, and was poorly prepared to function as a husband and father as a
teenager, (2) that he had severe neuropsychological impairments, and (3) that he is
also still a member of the family, who will have to live with the consequences of
his actions for the remainder of his life. We are unconvinced.
46
The record reflects that defendant lived with Bruni and her family on and
off since he was a young teenager. To say he consistently abused Bruni‟s
hospitality is an understatement. The record is replete with evidence that over the
course of many years, he subjected his wife Clari, her brothers, and his daughter to
violent assault and various kinds of mistreatment at Bruni‟s home, as well as
elsewhere. He threatened and followed through with retaliation when he did not
get his way. When Clari finally left him and took their children with her, the
record reflects that defendant was angry and vengeful. He sought to harm Clari‟s
family, including Bruni. On the night of the crimes, the record indicates defendant
was not very drunk and only a little high. It also reflects that defendant planned
and committed the murders through the use of a deliberate subterfuge. Defendant
was solely responsible for the brutal killings of his mother-in-law and brother-in-
law. He was 30 years old at the time and had a prior criminal record. The jury
could have reasonably rejected defendant‟s evidence of mental impairments based
on the rebuttal evidence that defendant had deliberately feigned his mental illness.
These circumstances do not demonstrate that defendant‟s death sentence is grossly
disproportionate to his personal culpability; it does not shock the conscience nor
offend fundamental notions of human dignity.
8. Defendant’s challenges to California’s death penalty scheme
Defendant raises a number of challenges to the constitutionality of
California‟s death penalty scheme in order to urge reconsideration by this court of
our previous rejection of them and to preserve the claims for federal review.
Defendant fails to persuade us that reconsideration is required and we continue to
reject the claims as follows. (People v. Schmeck (2005) 37 Cal.4th 240, 303-304.)
“Section 190.2 is not impermissibly overbroad in violation of the Fifth,
Sixth, Eighth, and Fourteenth Amendments of the United States Constitution.
47
Specifically, the various special circumstances are not so numerous as to fail to
perform the constitutionally required narrowing function, and the special
circumstances are not unduly expansive, either on their face or as interpreted by
this court.” (People v. Jennings (2010) 50 Cal.4th 616, 688; accord, People v.
Linton, supra, 56 Cal.4th at p. 1214.)
“Section 190.3, factor (a), which allows the jury to consider the
circumstances of the capital crime in aggravation, is not impermissibly overbroad
and does not lead to arbitrary or capricious imposition of the death penalty.”
(People v. Mai (2013) 57 Cal.4th 986, 1057; accord, People v. DeHoyos, supra,
57 Cal.4th 79, 149.)
“The use of the words „ “extreme” ‟ in section 190.3, factors (d) and (g),
and „ “substantial” ‟ in factor (g), does not act as a barrier to the consideration of
mitigating evidence in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments.” (People v. Linton, supra, 56 Cal.4th at p. 1216.)
“ „[T]he statutory instruction to the jury to consider “whether or not”
certain mitigating factors were present did not impermissibly invite the jury to
aggravate the sentence upon the basis of nonexistent or irrational aggravating
factors.‟ ” ‟ ” (People v. Edwards (2013) 57 Cal.4th 658, 766; accord, People v.
Linton, supra, 56 Cal.4th at p. 1216.) “There is no constitutional requirement that
the jury be instructed regarding which of the statutory factors in section 190.3 are
aggravating, which are mitigating, and which could be either aggravating or
mitigating.” (People v. Merriman (2014) 60 Cal.4th 1, 106-107.)
California‟s death penalty law is not unconstitutional for failing to require
proof beyond a reasonable doubt that aggravating factors exist, outweigh the
mitigating factors, and render death the appropriate punishment. (People v. Boyce
(2014) 59 Cal.4th 672, 723-724; People v. DeHoyos, supra, 57 Cal.4th at pp. 149-
150.) The high court‟s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466,
48
Ring v. Arizona (2002) 536 U.S. 584, and Cunningham v. California (2007) 549
U.S. 270 do not change this result. (People v. Boyce, supra, at p. 724; People v.
Loker (2008) 44 Cal.4th 691, 755.)
The absence of written or other specific findings by the jury regarding
aggravating factors did not violate defendant‟s rights under the Sixth, Eighth, and
Fourteenth Amendment to meaningful appellate review, equal protection of the
laws or right to jury trial. (People v. DeHoyos, supra, 57 Cal.4th at p. 150; People
v. Linton, supra, 56 Cal.4th at p. 1216.)
“The federal Constitution is not violated by the failure to require a penalty
phase jury to reach unanimity on the presence of aggravating factors.” (People v.
DeHoyos, supra, 57 Cal.4th at p. 150.)
The court was not required to instruct that the prosecution bears the burden
of persuasion to establish that aggravating factors exist, that they outweigh
mitigating factors, and that the death penalty is appropriate. (People v. Boyce,
supra, 59 Cal.4th at p. 724; People v. Clark (2011) 52 Cal.4th 856, 1007-1008.)
“Nor was the court required to articulate the converse, that there is no burden of
proof at the penalty phase.” (People v. Boyce, supra, at p. 724.) Defendant was
not entitled to an instruction informing the jury that there is a presumption in favor
of a sentence of life without parole. (Ibid.; People v. Streeter, supra, 54 Cal.4th at
p. 268.)
California‟s death penalty law does not violate international law and norms
or evolving standards of decency. (People v. Kopatz, supra, 61 Cal.4th at p. 96;
People v. Suff, supra, 58 Cal.4th at p. 1079.)
49
III. CONCLUSION
The judgment is affirmed.
CANTIL-SAKAUYE, C. J.
WE CONCUR:
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
50
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Cage
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S120583
Date Filed: December 3, 2015
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: Dennis A. McConaghy
__________________________________________________________________________________
Counsel:
Susan K. Massey, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Holly D. Wilkens and Theodore M. Cropley, Deputy Attorneys General, for
Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Susan K. Massey
9462 Winston Drive
Brentwood, TN 37027
(615) 661-0661
Theodore M. Cropley
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2286
2
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 15, 2009
No. 09-20148
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL WAYNE SWEED,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CR-239-1
Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Michael Wayne Sweed has moved for
leave to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967). Sweed has not filed a response. Our independent review
of the record and counsel’s brief discloses no nonfrivolous issue for appeal.
Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5 TH C IR. R. 42.2.
*
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.
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Case: 16-30152 Document: 00513997696 Page: 1 Date Filed: 05/18/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30152 FILED
Summary Calendar May 18, 2017
Lyle W. Cayce
Clerk
DAVID PATTERSON,
Petitioner-Appellant
v.
DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CV-1397
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
In 1984, a jury convicted David Patterson, Louisiana prisoner # 105235,
of second degree murder, and he was sentenced to life imprisonment without
benefit of probation, parole, or suspension of sentence. Prior to the enactment
of the Antiterrorism and Effective Death Penalty Act (AEDPA), Patterson filed
two 28 U.S.C. § 2254 applications. Patterson’s first § 2254 application was
rejected on the merits, and his second was dismissed as an abuse of the writ.
* 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: 16-30152 Document: 00513997696 Page: 2 Date Filed: 05/18/2017
No. 16-30152
Following the enactment of the AEDPA, Patterson filed three § 2254
applications that the district court construed as unauthorized successive
§ 2254 applications and transferred to this court. We denied Patterson
authorization to file successive § 2254 applications. Patterson has also filed
with this court two motions for authorization, which were also denied.
Patterson subsequently filed in the district court two Federal Rule of Civil
Procedure 60(b) motions challenging the denials of his § 2254 applications filed
between 1994 and 2007. The district court construed the motions, in part, as
an unauthorized successive § 2254 application and transferred it to this court.
Patterson appeals the district court’s transfer order.
Patterson contends that, because State v. Cordero, 993 So. 2d 203, 204
(La. 2008), invalidated the state court judgments underlying his prior § 2254
applications, the judgments denying those § 2254 applications should be set
aside under Rule 60(b)(5). He argues that, because his motions attacked a
procedural defect in the district court’s handling of his prior habeas
proceedings rather than a merits determination, they were true Rule 60(b)
motions. He therefore argues that the district court erred by construing his
motions as an unauthorized successive § 2254 application.
The district court’s transfer order is an appealable collateral order over
which this court has jurisdiction. See In re Bradford, 660 F.3d 226, 228-29 (5th
Cir. 2011); see also United States v. Fulton, 780 F.3d 683, 688 (5th Cir. 2015).
When postjudgment motions are filed concerning the denial of a § 2254
application, a court must determine whether the movant is seeking to file a
second or successive § 2254 application. Gonzalez v. Crosby, 545 U.S. 524, 529-
30 (2005). A Rule 60(b) motion that raises new substantive claims or attacks
the district court’s merits-based resolution of prior § 2254 claims should be
construed as a successive § 2254 application. Id. at 532 & n.4. If a Rule 60(b)
2
Case: 16-30152 Document: 00513997696 Page: 3 Date Filed: 05/18/2017
No. 16-30152
motion is truly a successive § 2254 application, a district court lacks
jurisdiction to consider it absent authorization from this court. See
In re Sepulvado, 707 F.3d 550, 556 (5th Cir. 2013).
Here, the district court implicitly construed Patterson’s motions, in part,
as true Rule 60(b) motions and denied them on the merits. The district court’s
implicit consideration of Patterson’s motions as true Rule 60(b) motions
undermines his arguments on appeal. Patterson offers no meaningful
argument against the district court’s basis for determining that the motions
were, in part, successive. Accordingly, the district court’s ruling is
AFFIRMED.
3
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818 F.2d 31
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.Glynda Kay MCDONALD, Plaintiff-Appellant,v.DEKALB FEDERAL SAVINGS AND LOAN, Billy P. Wofford,Defendants-Appellees.
No. 86-2081.
United States Court of Appeals, Sixth Circuit.
May 13, 1987.
Before KEITH, KENNEDY and NORRIS, Circuit Judges.
ORDER
1
The Plaintiff petitions for appellate review and Moves for a stay and for counsel on appeal from the district court's order in this diversity tort case. This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the plaintiff's brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
2
At the time she filed her complaint, the plaintiff was a resident of Michigan. The defendants are a savings and loan and a sheriff from the state of Georgia. The complaint alleges that the defendants subjected the plaintiff to false arrest, false imprisonment, and malicious prosecution. The savings and loan filed a motion for a more definite Statement which was granted by the district court. When the plaintiff failed to file an amended complaint within 30 days, the district court dismissed her case Without prejudice.
3
Approximately four months later, the plaintiff applied for entry of default judgment against the defendants. She also filed a motion for counsel. The district court denied the application for default judgment, and the plaintiff appealed.
4
The plaintiff's application for a default judgment before the district court is like a Rule 60(b), Federal Rules of Civil Procedure motion for relief from judgment. This court can reverse the denial of such a motion only for an abuse of discretion. In re Salem Mortgage Co., 791 F.2d 456, 459 (6th Cir. 1986).
5
An examination of the record shows that the savings and loan's motion for a more definite statement was late. However, the entry of default is the first procedural step necessary in obtaining a default judgment. Rule 55(a), Federal Rules of Civil Procedure; Shepard Claims Service, Inc. v. William Darrah & Associates, 796 F.2d 190, 193 (6th Cir. 1986). The plaintiff never filed an affidavit requesting the entry of default in this case. So the district court correctly held that she was not entitled to a default judgment. There was no abuse of discretion when the court denied the plaintiff's application.
6
The plaintiff also argues that it was improper for the district court to fail to decide her motion for counsel. Ray v. Robinson, 640 F.2d 474, 477-78 (3d Cir. 1981). Because the case had already been dismissed, there was no abuse of discretion when the district court did not explicitly rule on the motion.
7
The petition for appellate review and the motions for a stay and for counsel are denied. The order of the district court is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.
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67 F.3d 303
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.UNITED STATES of America, Appellee,v.Russell J. MILLER, Appellant.
No. 95-1696.
United States Court of Appeals,Eighth Circuit.
Submitted: Sept. 6, 1995.Filed: Sept. 26, 1995.
Before FAGG, MAGILL, and BEAM, Circuit Judges.
PER CURIAM.
1
Russell J. Miller appeals the 75-month sentence imposed by the district court1 after he pleaded guilty to distributing a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. Sec. 841(a),(b). We affirm.
2
For reversal, Miller argues that the 100-to-1 ratio between the penalties for cocaine base and powder cocaine has no basis in scientific reality. He contends the penalty scheme is void for vagueness, violates the rule of lenity, and violates his equal protection rights. We have repeatedly rejected constitutional challenges to the 100-to-1 sentencing ratio. See United States v. Clary, 34 F.3d 709, 712-14 (8th Cir.1994) (no equal protection violation), cert. denied, 115 S. Ct. 1172 (1995); United States v. House, 939 F.2d 659, 664 (8th Cir.1991) (concluding term "cocaine base" not void for vagueness and provides adequate notice of prohibited conduct). We also conclude the record has not been sufficiently developed below to permit consideration of Miller's remaining arguments.
3
Accordingly, the judgment of the district court is affirmed.
1
The Honorable George F. Gunn, Jr., United States District Judge for the Eastern District of Missouri
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12 Kan. App. 2d 328 (1987)
743 P.2d 559
In the Matter of the Appeal of NEWS PUBLISHING COMPANY, INC., from an assessment of additional sales tax.
No. 60,391
Court of Appeals of Kansas.
Opinion filed October 1, 1987.
Mark Burghart and Nancy E. Freund, of Kansas Department of Revenue, of Topeka, for the appellant.
W.Y. Chalfant, of Branine, Chalfant & Hill, of Hutchinson, for the appellee.
Before BRISCOE, P.J., ROBERT L. GERNON, District Judge, assigned, and THOMAS W. REGAN, District Judge, assigned.
BRISCOE, J.:
The Kansas Department of Revenue appeals from an order of the Board of Tax Appeals (BOTA) abating a sales tax assessment against News Publishing Company, Inc., (News Publishing) the publishers of The Hays Daily News. At issue is whether News Publishing is liable for the sales tax which was collected or should have been collected by its newspaper carriers when the carriers sold the newspapers to their customers.
The majority of the newspapers published by News Publishing are distributed by independent newspaper carriers who are mainly young people under the age of 16. News Publishing contracts with the carriers, selling the newspapers to the carriers at wholesale price, and, while indicating a suggested retail price, the individual carriers are allowed to establish their own prices. News Publishing provides no insurance for the carriers and they are not covered by workers' compensation.
When a carrier enters into a contract with News Publishing, the circulation manager informs the carrier of the obligation to collect sales tax from customers, explaining that the tax should be remitted by the carrier to News Publishing, who in turn transmits the money to the Department of Revenue. News Publishing provides each carrier with a monthly sheet to aid the carrier in computing the sales tax. If the carrier fails to remit sales tax, a written reminder is sent and, if there is no response, the circulation manager calls the carrier to remind the carrier of his or her obligation. In extreme cases, the circulation manager personally visits the carrier. If all of these actions fail, News Publishing does nothing further to sanction the carrier or otherwise collect sales tax.
*330 In September 1983, the Department of Revenue issued to News Publishing a "Notice of Assessment of Additional Sales Tax" based on a field audit for the period from August 1, 1980, through July 31, 1983. The assessment was based on unreported taxable sales of newspapers distributed by newspaper carriers. The unreported amount of Kansas sales taxes for this period as determined by the Department of Revenue was $6,332, plus statutory penalty in the amount of $633 and interest computed through October 31, 1983, in the amount of $1,917.
News Publishing appealed the assessment to the Director of Revenue, who held News Publishing was liable for the sales tax not remitted by its carriers. The Director determined the carriers were employees or agents of News Publishing, and News Publishing was the actual retailer who was responsible for collecting and remitting the sales tax. The Director also based her decision on what appears to be an estoppel theory after finding News Publishing "undertook the obligation of collecting and remitting the sales tax to the Department of Revenue." News Publishing appealed from the Director's order to the BOTA.
The BOTA held the carriers were not employees or agents of News Publishing, but were instead independent contractors. The BOTA also held News Publishing was a wholesaler to the carriers, who were the retailers. The BOTA concluded News Publishing can only become liable for the sales tax if the provisions of K.S.A. 79-3604 are satisfied. K.S.A. 79-3604 requires the payment of sales tax by the consumer and collection by the retailer, but contains the following exception, which shifts the duty to collect and remit the sales tax from the retailer to the wholesaler (vendor):
"Whenever the director of taxation shall determine that in the retail sale of any tangible personal property or services because of the nature of the operation of the business including the turnover of independent contractors, the lack of a place of business in which to display a registration certificate or keep records, the lack of adequate records or because such retailers are minors or transients there is a likelihood that the state will lose tax funds due to the difficulty of policing such business operations, the director shall refuse to issue a registration certificate to such person and it shall be the duty of the vendor to such person to collect the full amount of the tax imposed by this act and to make a return and payment of said tax to the director of taxation in like manner as that provided for the making of returns and the payment of taxes by retailers under the provisions of this act. *331 Whenever the director shall determine that it is necessary to refuse to issue a registration certificate to any retailer under the provisions of this section, he or she shall immediately notify the vendor or vendors to such retailer of such refusal and the resulting duty to collect and make a return and payment of said tax." Emphasis added.
The BOTA relied upon 79-3604 to conclude that, because the Department of Revenue had failed to notify News Publishing of its obligation to collect the sales tax, the Department of Revenue could not assess that liability against News Publishing. The Department of Revenue filed a motion for rehearing, which was denied. The Department of Revenue then appealed directly to this court pursuant to K.S.A. 1986 Supp. 74-2426.
While the Department of Revenue raised several issues before the BOTA, in its appeal to this court it focuses upon the interpretation of 79-3604, more specifically its notice provisions. In its appeal to this court, the Department of Revenue does not assert that the carriers are employees or agents of News Publishing, or that News Publishing instead of the carriers is the actual retailer. The Department of Revenue argues 79-3604 is inapplicable to the facts of this case because the Department of Revenue had no duty to notify News Publishing of its liability until a carrier applied for a sales tax registration certification and the application was denied. The Department of Revenue points out the BOTA found that no News Publishing carrier had ever applied for or been denied a certificate of registration. News Publishing counters, and the BOTA found, that pursuant to 79-3604, its duty to collect and remit the sales tax was not triggered until the Department of Revenue notified News Publishing it had the duty to collect and remit the tax.
In reviewing the action of the BOTA, this court is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily, or capriciously; (2) the administrative order was substantially supported by evidence; and (3) the action was within the scope of its authority. However, while matters of assessment and taxation are administrative in character and the judiciary may not substitute its judgment for that of the administrative agency, construction of statutory language is a proper judicial function. In re Order of Board of Tax Appeals, 236 Kan. 406, 409-10, 691 P.2d 394 (1984).
*332 The legislative history of 79-3604 confirms the fact that the statute was amended in contemplation of the type of carrier-publisher situation presented in the present case. The minutes of the Assessment and Taxation Committee for the period of late January to early February 1970 reflect representatives of the newspaper industry testified before the committee and indicated that, while they opposed taxation on newspapers, if the legislation were passed, the industry wanted some method for the collection of the tax set forth in the statute.
This legislative history is important in that it establishes the 1970 amendment to 79-3604 was promulgated to answer the concerns of the newspaper industry should the legislature decide to no longer exempt the sale of newspapers from Kansas sales tax. The legislative history does not, however, answer the questions which we must decide Is the statute applicable to the parties in this case; and, if applicable, did the Department of Revenue comply with the requirements of the statute when it attempted to impose the sales tax liability on News Publishing?
The entire matter of taxation is legislative and does not exist apart from statute. The legislature is empowered to provide the means and agencies for carrying out its responsibilities in matters of taxation. Joseph v. McNeive, 215 Kan. 270, 271, 524 P.2d 765 (1974). Where a statute is clear and unambiguous, the court must give effect to the legislative intent therein expressed rather than make a determination of what the law should or should not be. Capital Electric Line Builders, Inc. v. Lennen, 232 Kan. 379, 383, 654 P.2d 464 (1982); Randall v. Seemann, 228 Kan. 395, 397, 613 P.2d 1376 (1980). Sales tax statutes are penal in nature and must be strictly construed in favor of the taxpayer. J.G. Masonry, Inc. v. Department of Revenue, 235 Kan. 497, 500, 680 P.2d 291 (1984). When there is reasonable doubt as to the meaning of a taxation statute, the statute will be construed in a manner most favorable to the taxpayer. See Fleming Company v. McDonald, 212 Kan. 11, 16, 509 P.2d 1162 (1973); Equitable Life Assurance Society v. Hobbs, 154 Kan. 1, 13, 114 P.2d 871 (1941).
The statute at issue here is clear and unambiguous. K.S.A. 79-3604 on its face requires retailers to collect the tax and subscribers (as consumers) to pay the sales tax. Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 661, 562 P.2d 65 *333 (1977). In addition, K.S.A. 79-3608 makes it unlawful "for any person to engage in the business of selling tangible personal property at retail ... without a registration certificate from the director of taxation."
The Department of Revenue argues that, if the carriers/retailers never make application and are thereby never denied registration, the Department's duty to give notice to the vendor/wholesaler never arises and the Department must look to the vendor to collect and remit the sales tax. This construction of 79-3604 distorts the clear language of the statute. Under 79-3604, the duty of a wholesaler (here, News Publishing) to collect sales tax does not arise until the director of taxation has refused the retailer's application for a registration certificate and has notified "the vendor or vendors to such retailer of such refusal and the resulting duty to collect and make a return and payment of said tax."
We next address the factual issue of whether the Department of Revenue complied with the notice provision of 79-3604. In support of its argument that News Publishing had notice of its duty to collect sales tax, the Department of Revenue relies on copies of newspaper articles which appeared in The Hays Daily News when 79-3604 was amended in 1970. Since these articles appear only in the appendix of the Department of Revenue's brief and were not admitted before the BOTA, they are not properly before this court and cannot be considered. Supreme Court Rule 6.02(f), 235 Kan. lxviii. The Department of Revenue also relies on notices sent to the Kansas Press Association regarding the requirements of 79-3604. These notices were introduced before the BOTA and are included in the record on appeal. There is no evidence, however, that the Department of Revenue ever notified News Publishing directly of its obligation to collect the tax. In addition, notices sent to the Press Association, upon which the Department of Revenue relies so heavily, contain the following question and answer:
"Is it the responsibility of the Director of Revenue to notify the newspaper publisher in line with K.S.A. 79-3604 effective July 1, 1970, that the issuance of a sales tax registration certificate to an independent carrier or any retailer of newspapers has been denied and that it is the duty of the newspaper publisher to remit the sales tax?
*334 "Answer: Yes. The following procedure will be followed in this instance. The Department of Revenue will mail a procedural outline to the newspaper publishers on June 1, 1970, instructing them to remit the retail sales tax on their sale of all papers to consumers and to independent carriers who sell to the ultimate consumer. In the event an independent carrier is not a minor or transient, and has a place of business in which to display a sales tax registration certificate or to keep records, the newspaper publisher should refer the name and address of the independent carrier to the Sales Tax Division, State Office Building, Topeka, Kansas, for review by the Director of Revenue as to the issuance of a retail sales tax certificate to the carrier. The independent carrier will be contacted by a representative of the Department of Revenue and if the sales tax application of the independent carrier is accepted, the newspaper publisher will be notified."
There is no indication in the record that this procedural outline was ever provided to News Publishing.
The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when it can be ascertained from the statute. State v. Wood, 231 Kan. 699, 701, 647 P.2d 1327 (1982). Given the clear language of K.S.A. 79-3604, we must conclude News Publishing was under no duty to collect the tax until it was notified that the carrier had been refused a certificate of registration and instructed regarding its duty to collect the tax. Since there was no evidence that News Publishing was so notified and instructed, the BOTA had substantial evidence to support its order that any sales tax owed is owed by the carriers and not by News Publishing.
As a final matter, News Publishing raises an issue regarding the constitutionality of the imposition of a duty upon the publisher to collect sales tax on behalf of the carriers. News Publishing also raised this issue before the BOTA which held that, as a quasi-judicial agency, it had to assume the statutes were constitutional, and refused to address the issue. Since administrative boards and agencies may not rule on constitutional questions, the issue of constitutionality must be raised when the case is on appeal before a court of law. In re Residency Application of Bybee, 236 Kan. 443, 449, 691 P.2d 37 (1984). In this case, the issue of constitutionality would have to be raised by News Publishing in this court. However, News Publishing filed no notice of cross-appeal to preserve the issue of constitutionality for decision by this court. Absent the filing of a cross-appeal, the issue of whether the statute is constitutional is not properly *335 before us. Douglas v. Lombardino, 236 Kan. 471, 490, 693 P.2d 1138 (1985).
Affirmed.
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821 S.W.2d 839 (1991)
Hope MAGEE, Appellant,
v.
BLUE RIDGE PROFESSIONAL BUILDING CO., INC., Lawrence D. Mock, Henry and Jacqueline Houser, d/b/a Westwood Ornamental Iron Company, Respondents.
No. 73282.
Supreme Court of Missouri, En Banc.
December 17, 1991.
*841 William H. Pickett and David T. Greis, Kansas City, for appellant.
Paul D. Cowing, Amy L. Peck, and Therese M. Schuele, Kansas City, for respondents.
HOLSTEIN, Judge.
The trial court dismissed Count II of plaintiff Hope Magee's petition in which she alleged that defendant, Lawrence D. Mock, negligently designed and constructed a stairway. She claims to have fallen and sustained injury on the stairway due to the negligent design and construction. The dismissal was based on § 516.097.[1] Among other arguments, plaintiff attacks the constitutionality of that statute. This Court has jurisdiction of the appeal. Mo. Const. art. V, § 3. Affirmed.
The Blue Ridge Professional Building was constructed in 1964 and 1965. Included in the construction was a stairway. At the time, Mock owned shares and was an officer of the corporation that constructed the building. Mock sold all interest in the corporation in 1968.
On January 28, 1985, plaintiff allegedly fell on the stairway in the building, sustaining injury. She filed suit March 13, 1987, naming only the Blue Ridge Professional Building Company as defendant. Thereafter, on April 21, 1989, an amended petition was filed. In it, Mock, Henry Houser and Jacqueline Houser were named as additional defendants. The amended petition alleged that the steps deviated from accepted standards for height of riser and width of tread, and that the steps were not finished or coated with anti-skid materials. The petition alleged that Mock was "primarily responsible for the design and construction" of the building and the stairs.
Mock filed an answer and a motion to dismiss on June 16, 1989. Thereafter, on August 3, 1989, Mock filed an amended answer and an amended motion to dismiss, titled "Amended Suggestions in Support of Motion to Dismiss." These pleadings alleged that plaintiff's claim was barred by the statute of limitations found in § 516.097. On August 18, 1989, a hearing was held on the amended motion to dismiss. Plaintiff argued that § 516.097 violated the open courts provision of the Missouri Constitution and the due process and equal protection provisions of the state and federal constitutions. These claims were articulated primarily in the oral argument of the motion to dismiss before the trial court. On August 28, 1989, the trial court, without stating the basis for its decision, granted Mock's motion to dismiss.
On May 21, 1990, plaintiff voluntarily dismissed her claims against all remaining defendants without prejudice. She then appealed from the trial court's dismissal of her claim against Mock. The appeal was initially lodged in the Missouri Court of Appeals, Western District. Due to the constitutional attack on § 516.097, the cause was transferred to this Court.
*842 I.
At the outset plaintiff recognizes the questionable appealability of the order of dismissal. The leading case on the question of whether an appeal lies based on the record presented in this case is Bolin v. Farmers Alliance Mutual Ins. Co., 549 S.W.2d 886 (Mo. banc 1977). In that case the plaintiff had sued two defendants. A summary judgment in favor of one defendant was entered on March 21, 1975. A separate order dismissing the claim against the second defendant, without prejudice, was entered on March 25, 1975. Plaintiffs sought to appeal the summary judgment of March 21, 1975. The Court noted that with some exceptions, an aggrieved party may appeal "from any final judgment in the case." Bolin, 549 S.W.2d at 889, quoting § 512.020. The Court stated that a judgment is final if it disposes of all parties and all issues, but that the March 25, 1975, order did not dispose of all parties and all issues. The only method to determine that no issues or parties remained required looking at both the March 21 and March 25 orders. The Court concluded that an appellate court should not be required to search the record to determine if various orders entered at different times amounted collectively to a final judgment and thus, no final judgment had been entered in that case. Bolin, 549 S.W.2d at 891.
The problem with Bolin is that any reasonable reading of the facts in that case leads to the inescapable conclusion that the summary judgment, coupled with the dismissal without prejudice, concluded the case, leaving nothing for the trial court to decide. The sole basis for denial of appellate jurisdiction was the inconvenience of having to look at more than one document to determine if the judgment was final.
Judicial inconvenience is not the proper measure for determining if appellate jurisdiction exists. Inconvenience to judges must give way to the just, speedy and inexpensive disposition of cases on their merits. See Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 1513, 8 L.Ed.2d 510 (1962). The rule, well founded in reason and law, is that a judgment is final that disposes of all issues as to all parties, leaving nothing for future determination. Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, 379 (Mo. banc 1956); State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487, 489 (Mo. banc 1947); Quiktrip Corp. v. City of St. Louis, 801 S.W.2d 706, 711 (Mo.App.1990). In this case, when plaintiff dismissed her action as to the remaining defendants, the order of dismissal for failure to state a cause of action against Mock became a final judgment. To the extent that Bolin is in conflict, it is overruled.[2]
II.
Plaintiff's brief on appeal raises a number of issues regarding the construction and constitutionality of § 516.097. In each of the points addressing these issues, plaintiff asserts that the trial court erred in granting "summary judgment." The record does not reflect any summary judgment. The record only reflects a dismissal of plaintiff's petition. The difference between summary judgment and dismissal of the claim is significant because the standard of appellate review is different. When reviewing the grant of a motion to dismiss a petition, all facts alleged in the petition are deemed true and the plaintiff is given the benefit of every reasonable intendment. Lowrey v. Horvath, 689 S.W.2d 625, 626 (Mo. banc 1985). When reviewing a summary judgment, the appellate court looks not just to the petition but to all the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits to determine if there is any material fact issue and that the moving party was entitled to judgment as a matter of law. Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 243-44 (Mo. banc 1984); Rule 74.04(c).
*843 In this case the plaintiff's amended petition asserted an injury in 1985 due to negligent design and construction. The petition is silent as to the date of design and construction. Generally, a statute of limitations is an affirmative defense. Rule 55.08. Nevertheless, plaintiff admits facts establishing that defense. Here the defendant alleged in the trial court that the building was complete in 1965 and the claim was barred by § 516.097. Plaintiff's response was to file suggestions which included portions of Mock's deposition establishing that the construction occurred in 1964 and 1965. Plaintiff's brief also admits, in the fact statement, that the Blue Ridge Professional Building was constructed in 1964 and 1965. The brief further states that Mock disposed of all interest relating to the building in 1968. Where the plaintiff's brief on appeal admits facts omitted from the petition that if true will defeat plaintiff's cause of action, the appellate court will treat the petition as amended to include the omitted facts in determining if plaintiff stated a cause of action. Nastasio v. Cinnamon, 295 S.W.2d 117, 119 (Mo. 1956). The purpose of this rule is to avoid the useless and time consuming remand of the case when the plaintiff agrees the omitted facts are true and those facts are dispositive of the case. Id. The points relied on will be treated as claiming the trial court erred in sustaining the motion to dismiss as to Mock.
Plaintiff's brief argues that even if § 516.097 is constitutional, the claim against Mock is not barred. First, plaintiff argues that the statute applies only to those persons whose "sole connection with the improvement is performing or furnishing... the design, planning or construction, including architectural, engineering or construction services ..." § 516.097.2. Plaintiff claims that since Mock was an owner of the building in addition to his status as designer-contractor, then his connection to the building was not solely as architect, engineer or builder, and the statute is inapplicable to him.
The petition does not allege that Mock was the owner of the building or that he had some other possessory interest giving rise to a duty toward plaintiff at the time of her injury. The only allegation in the petition is that Mock designed and constructed the stairway. Documents filed with the plaintiff's suggestions in opposition to Mock's amended motion to dismiss disclose that Mock was a former officer and shareholder of the corporation that built and now owns the building. In an application for a building permit dated September 15, 1964, Mock's name appears in the block next to the word "owner." However, Mock terminated all association with the building and the corporation in 1968.
Even assuming that the plaintiff's petition has been amended to include these allegations, Mock is not shown to have any connection to the allegedly unsafe condition of the stairway that would give rise to liability separate from his connection as designer and builder. The purpose of § 516.097 is to protect those providing architectural, engineering and construction services from indeterminate liability. See Lamb v. Wedgewood South Corp., 302 S.E.2d 868, 873 (N.C.1983). As with other statutes of limitation, this statute protects those within its ambit "from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise." United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979). The primary role of courts in construing the statutes is to ascertain the intent of the legislature from the language used and, if possible, give effect to that intent. Abrams v. Ohio Pacific Express, 819 S.W.2d 338, 340 (Mo. banc 1991). Section 516.097.1 limits the time for bringing actions for personal injury "arising out of a defective or unsafe condition of any improvement to real property." Section 516.097.2 refers to "the improvement" described in the preceding subsection. Thus, in the context of § 516.097.2, "sole connection with the improvement" means a connection to a defective or unsafe condition of an improvement on real estate giving rise to liability. To construe the words as *844 suggested by plaintiff would mean any connection with the building, however distant and unrelated to the unsafe condition of the improvement or potential liability, would defeat the protective intent of the statute. Under plaintiff's interpretation, a designer, planner or builder who is also a former tenant, shareholder, employee or client of the owner, would be excluded from the protection of § 516.097. That would defeat the statutory purpose and lead to an absurd and unreasonable result. Such results are not favored. State ex rel. McNary v. Hais, 670 S.W.2d 494, 495 (Mo. banc 1984). This Court concludes that plaintiff's pleadings are insufficient to show any connection of defendant with the unsafe or defective condition of the building other than as a designer and builder of the stairs.
Plaintiff's second argument is that the statute is not applicable because Blue Ridge Professional Building is not "complete." This argument is premised on the statement in plaintiff's brief on appeal that the stairs in the building did not comply with the building codes on the date that construction ceased and, as a result, the lack of compliance rendered the construction incomplete. The applicable building codes do not appear in the record below and are not referred to in any of the pleadings. Portions of the depositions attached to the suggestions in opposition to the motion to dismiss indicate that construction on the building ceased in 1965. There is no evidence or allegation that any improvements were made subsequently. At the time of plaintiff's accident, the building was occupied as a dental office. Clearly, the building was complete upon the termination of construction and its occupancy. Plaintiff's second argument is without merit.
Plaintiff's third argument is that the subtle variations in the height and width of the individual steps amounted to concealed defects. The statute does not apply if a person conceals the defect in design, planning or construction. § 516.097.4(2). The flaw in the plaintiff's argument is that it equates a concealed defect to a latent defect. The use of the word "conceals" in the statute indicates an affirmative act, something actually done directly intended to prevent discovery or to thwart investigation. See Siler v. Kessinger, 149 S.W.2d 890, 893 (Mo.App.1941). The pleadings and record are silent regarding any concealment of the width and height of the steps. Plaintiff's brief admits the steps are clearly visible. The complex rationale by which plaintiff concludes that visible steps are concealed is unpersuasive. Plaintiff's third claim that the statute is not applicable is denied.
III.
An issue also arises as to whether the plaintiff has preserved the constitutional challenges to § 516.097. The challenges made here are that the statute violates the open courts provision of article I, § 14 of the Missouri Constitution, and the Fourteenth Amendment due process and equal protection clauses of the United States Constitution, as well as their counterparts in article I, §§ 2 and 10 of the Constitution of Missouri.
Ordinarily, a constitutional question must be raised at the first opportunity by specifically designating the provision claimed to be violated, identifying facts showing such violation, and the question must be preserved at each stage of review. Kelch v. Kelch, 450 S.W.2d 202, 206 (Mo. 1970). The reason for this requirement is to prevent surprise to the opposing party and to permit the trial court an opportunity to fairly identify and rule on the issues. Land Clearance for Redevelopment Authority of Kansas City v. Kansas University Endowment Assn., 805 S.W.2d 173, 175 (Mo. banc 1991).
In this case Mock raised the bar of § 516.097 in an amended motion to dismiss and an amended answer filed August 3, 1989. A hearing was held on August 18, 1989. On that day plaintiff filed suggestions in opposition to Mock's amended motion to dismiss, stating that the statute would deny her "her day in court." Counsel for plaintiff specifically made reference to article I, § 14 of the Missouri Constitution *845 in oral argument during the hearing on Mock's motion to dismiss. In addition, the defendant argued that § 516.097 violated her equal protection and due process rights "in that [the statute] protects one class of professionals, architects and designers, from torts after a certain time period, whereas other professionals don't have that protection, and it divides victims into two classes, those that were injured by architects and design defects and those that were not." While the trial court did not state the basis for sustaining the motion to dismiss, it is clear that the ruling was based upon § 516.097. Given the record in this case, it is clear that the trial court considered plaintiff's arguments concerning the constitutionality of the statute and rejected those arguments. The constitutional questions are preserved.
IV.
Plaintiff's constitutional challenges to the statute are all premised on the theory that § 516.097 denies her access to court because it cuts off her cause of action before it accrues. As a result, the statute treats her differently than other classes of plaintiffs and defendant differently than other classes of defendants.
Construction terminated in 1965. Occupancy began thereafter. As previously stated, that constituted the completion of the building. "The statute of limitation for buildings completed on August 13, 1976, shall begin to run on August 13, 1976, and shall be for the time period specified herein." § 516.097.5. Plaintiff's injury is alleged to have occurred on January 28, 1985. The ten year period for bringing actions under the statute terminated on August 13, 1986, eighteen months after plaintiff's cause of action arose. Her suit was filed March 13, 1987, and Mock was not joined as defendant until April of 1989. In this case plaintiff could have brought her cause of action before the statute expired. As applied in this case, § 516.097 was both a statute of limitation and a statute of repose.[3]
There is no question that the legislature has the authority to enact statutes of limitation, and inherent in that power is the power to fix the date on which the statute begins to run. Laughlin v. Forgrave, 432 S.W.2d 308, 314 (Mo. banc 1968). Statutes of limitation will not be held to violate due process unless the time allowed for commencement of the action and date fixed when the statute begins to run are clearly and plainly unreasonable. Ross v. Kansas City General Hospital & Medical Center, 608 S.W.2d 397, 400 (Mo. banc 1980). "Statutes of limitation ... represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified time and that the `right to be free of stale claims in time comes to prevail over the right to prosecute them.'" United States v. Kubrick, 100 S.Ct. at 356-57 (quoting Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944)). The facts of this case illustrate the propriety and reasonableness of statutes of limitation. Plaintiff, by her suit against Mock, seeks to impose liability on a person who admittedly has not been associated with either the defendant corporation or the building itself since 1968. It is not just or equitable to expect Mock to be liable ad infinitum for his participation in the design and construction of the building. To use the above quoted language, Mock has "the right to be free of stale claims." Plaintiff had an opportunity to assert a timely claim against Mock. Plaintiff has failed to demonstrate that as a statute of limitation, § 516.097 is plainly and clearly unreasonable as applied in her case.
To the extent that plaintiff's claim asserts that her constitutional rights have been denied because § 516.097 is a statute of repose, those issues are resolved by this *846 Court's ruling in Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822 (Mo. banc 1991), also decided this date. For the reasons stated in that opinion, plaintiff's constitutional claims are denied.
The dismissal of plaintiff's claim against Mock is affirmed.
ROBERTSON, C.J., and RENDLEN, COVINGTON, BENTON and THOMAS, JJ., concur.
BLACKMAR, J., concurs in separate opinion filed.
BLACKMAR, Judge, concurring.
I wholly concur in Judge Holstein's opinion and write additionally only to suggest that attorneys who find themselves in the procedural situation described in Part 1 of the opinion may foreclose all questions of appealability by presenting a form of order to the trial court stating that the case has been disposed of as to all parties and all claims. The appellant could have done this at the time the remaining claims were voluntarily dismissed, or the defendant could have sought the order to assure the client that the case was at an end. The order does not necessarily have to state that the judgment is final for purposes of appeal. That is the consequence of an order which disposes of all remaining parties and claims.
Although it would be desirable to have an order of this kind in the record, the consequences of requiring such an order as a condition of finality and appealability are unacceptable. In the present case, if the order dismissing the case as to the respondent did not become appealable immediately when plaintiff voluntarily dismissed the remaining defendants the case might pend for years without a final judgment. If the judgment is not final, the time for appeal does not run. Thus cases long considered dead might be resurrected.
If all remaining parties and issues are disposed by action of the court, the judgment, whether prepared by the court or counsel, could contain an appropriate recital. But counsel cannot depend on the court and its attaches to reflect the state of the record, especially with regard to the dismissal of parties, which may be effected simply by the filing of papers and need not be brought to the judge's attention. See State ex rel. Fisher v. McKenzie, 754 S.W.2d 557 (Mo. banc 1988).
I agree that Bolin v. Farmers Alliance Mutual Insurance Company, 549 S.W.2d 886 (Mo. banc 1977), must be overruled.
NOTES
[1] All references to statutes will be to RSMo. 1986 unless otherwise noted.
[2] Bolin has been relied on in a number of cases similar to this case. Those cases include Shurtz v. Jost, 674 S.W.2d 244 (Mo.App.1984); Warmann v. Ebeling, 669 S.W.2d 577 (Mo.App.1984); and Eschelbach v. General Motors Corp., 661 S.W.2d 821 (Mo.App.1983). To the extent those cases rely on Bolin, they also are overruled.
[3] A statute of limitation precludes suit after the passage of a legislatively imposed number of years following the accrual of a cause of action, while a statute of repose bars suit for a specified number of years after the occurrence of a particular event without regard to the date of the accrual of a cause of action. Sun Valley Water Beds of Utah, Inc. v. Herm Hughes & Son, Inc., 782 P.2d 188, 189 (Utah 1989).
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767 F.Supp. 157 (1990)
FEDERAL INSURANCE COMPANY, A Corporation, Plaintiff,
v.
Frank J. PARELLO, Virgil B. Onate, George Laivinieks, John P. Curtin, Dr. Martin Bruce Farkas, Dr. Arnold Kallen, Lester Barnes and Arnold Harris, Defendants.
Civ. No. 90 C 4669.
United States District Court, N.D. Illinois, E.D.
August 10, 1990.
*158 Donald L. Mrozek, Peter D. Sullivan, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, Ill., and Daniel M. Purdom, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Lisle, Ill., for plaintiff.
William A. Barnett, Durkin, Foster, Robert & Barnett, Gerald Clay Risner, Jerome Rotenberg, Rosenfeld, Rotenberg, Schwartzman, Hafron & Shapiro, Daniel Eli Radakovich, George B. Collins, Collins *159 & Bargione, Donald C. Clark, Jr., Clark & DeGrand, Chicago, Ill., for defendants.
MEMORANDUM OPINION
BRIAN BARNETT DUFF, District Judge.
The defendant, Frank J. Parello, moves to dismiss all 4 counts of the plaintiff's, Federal Insurance Company, ("Federal"), complaint. Count I of the complaint alleges a breach of fiduciary duty, count II alleges fraud, and counts III and IV allege violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). See 18 U.S.C §§ 1961 et seq., 1962(c) and (d).
Instead of a well thought out surgical strike, the defendant has launched a blitzkrieg attack arguing that the complaint should be dismissed for a variety of reasons. According to the defendant, the complaint suffers from the following deficiencies. Count I fails to state a cause of action, is not pled with particularity under federal rule 9(b), and is not justiciable because the plaintiff lacks standing and this court lacks subject matter jurisdiction. Count II suffers from the same defects as count I except that it apparently does state a cause of action. Count III is in even worse shape. Like count I, it is not pled with particularity and the plaintiff lacks standing to pursue the action. In addition, count III is barred by the statute of limitations, fails to allege a pattern of racketeering, and fails to adequately allege an enterprise. Count IV, which relatively speaking is a model of health, is barred by the statute of limitations, is not pled with particularity under federal rule 9(b), and the plaintiff lacks standing to bring the action. Before addressing the merits of the defendant's motion, which if accurate would make this complaint pound for pound the most defective one filed in this court in years, the court will review the salient facts of this dispute.
Facts
Around January of 1983, Federal issued a fidelity bond to Lincoln National Corporation ("Lincoln") and American States Insurance ("American") to cover them from losses sustained due to fraudulent or dishonest acts of their employees. According to the complaint, the defendants perpetrated a scheme whereby fraudulent claims were submitted to either Lincoln or American. These claims, which ran in the millions of dollars, were ultimately paid by the insurance companies. Under the terms of the fidelity bond, Federal was required to reimburse those companies for their losses. Federal as assignee and subrogee of Lincoln and American brings this action against the defendants.
The key figures in this scheme were defendants Parello and Onate who worked as claim adjustors for American. With the aid of defendants Laivinieks, Curtin, Farkas, Kallen, Barnes, and Harris they orchestrated a scheme to collect on fraudulent insurance claims. Their usual tactics were either to stage a fictitious automobile accident or cause one. In staged accidents, the defendants would recruit "accident victims" who would claim they were struck by a hit and run driver. To inflate the claims, the recruits would receive unnecessary medical treatment from crooked doctors involved in the fraud. In addition to staging accidents, the defendants would intentionally cause them. In a typical case, the perpetrator would maneuver his car a short distance ahead of another vehicle. The perpetrator would then slam on his brakes causing an innocent driver to collide with the rear portion of his vehicle. Oftentimes, the perpetrator would disconnect his brake lights making it impossible for the innocent driver to stop in time.
To collect on these claims, wrongfully issued claim checks as well as fraudulent claim forms were sent through the mails. These allegations add up to the following causes of action: breach of fiduciary duty, fraud, and violations of 18 U.S.C §§ 1961 et seq., 1962(c) and (d).
Failure To State A Cause Of Action: Count I
The defendant's first attack on Federal's complaint is that count I does not state a cause of action for breach of fiduciary *160 duty. In Illinois, a fiduciary relationship exists "where there is a special confidence reposed on one side and a resulting superior knowledge or influence on the other." A.T. Kearney Inc. v. INCA International Inc., 132 Ill.App.3d 655, 661, 87 Ill. Dec. 798, 477 N.E.2d 1326 (1st Dist.1985). As a matter of law, a fiduciary relationship exists between a principal and an agent. Id. Defendant claims that the plaintiff does not allege any connection between himself and Lincoln. In addition, the defendant contends that the complaint fails to allege that Lincoln or American reposed trust in the defendant, that the defendant accepted the trust thereby putting him in a superior position, and that he took advantage of that superior position.
The complaint establishes that Parello was employed by American. Therefore, as a matter of law, a fiduciary relationship exists. Id. In addition, there is no question that the complaint alleges that American reposed trust in the defendant and that he took advantage of that trust. The defendant had authority to cause American to make payments on its outstanding claims. He used his position to authorize payments that he knew were fraudulent in order to illegally profit. It is hard to imagine a better example of a fiduciary relationship than the one here.
The next question before the court is whether a fiduciary relationship existed between the defendant and Lincoln. The complaint avers that American is the wholly owned subsidiary of Lincoln, and that the defendant was employed by American. Although the defendant claims that a fiduciary duty does not exist between an agent of a wholly owned subsidiary and that subsidiary's parent, he has neither cited any case law nor made any argument supporting his position.
It is manifest that a subsidiary and its parent are separate and distinct entities. The law is replete with cases holding that absent improper conduct, a parent cannot be held liable for the actions of its subsidiary. See e.g. Brown v. Syntex Laboratories 755 F.2d 668 (8th Cir.1985). In addition, it is well settled that an owner of a corporation has no standing to sue in his own right for an injury to the corporation on the ground that the injury has diminished the value of his stock. 13 W. Fletcher, Cyclopedia of Corporations §§ 5911-13 (1990). A far less discussed issue, yet nonetheless analogous, is whether a parent has standing to sue a tort-feasor for injuries sustained by its subsidiary. The courts and commentators found to have addressed this issue have uniformly held the parent does not have standing to pursue such a suit.
In Picture Lake Campground v. Holiday Inns, Inc., 497 F.Supp. 858 (E.D.Va 1980) the defendant, Holiday Inns, executed a written license agreement with Picture Lake. When the defendant breached the license agreement with Picture Lake, its parent sued the defendant for tortious conduct committed against its subsidiary. Relying on the fact that a parent and a subsidiary are separate entities, the court held that Picture Lake's parent had no standing to sue the defendant. Id. at 863. See also 1 Fletcher Cyclopedia Corporations § 36 (1990) ("Nor does a corporation have standing to sue for injuries done to its sister corporation, despite the fact that their businesses are intertwined and the success of one is dependant on that of the other.").
Because all of the authority found to have addressed this issue supports the contention that a parent cannot sue for injuries suffered by its subsidiary, and the plaintiff has not alleged any facts that would indicate that the corporations were not separate entities, this court holds that defendant does not owe Lincoln a fiduciary duty.
Subject Matter Jurisdiction: Counts I And II
Defendant next attacks the power of this court to entertain counts I and II of this dispute. According to the defendant, the complaint fails to allege that the defendants are citizens of a different state than the plaintiff. The defendant wins this battle but loses the war. Although the complaint does not allege the citizenship of the *161 defendants, this court has subject matter jurisdiction over counts I and II because they are pendant state claims. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Jurisdiction in this case is not dependent on the existence of diversity of citizenship and therefore allegations of citizenship are superfluous.
Pleading Fraud With Particularity: Counts I-IV
The defendant claims that the entire complaint should be dismissed because fraud is not pled with particularity. Rule 9(b), Fed.R.Civ.P. provides:
In all averments of fraud or mistake the circumstances constituting the fraud or mistake shall be stated with particularity. Malice, intent, knowledge and other conditions of mind of a person may be averred generally.
Rule 9(b) governs all of the plaintiff's claims. Moss v. Morgan Stanley, Inc., 719 F.2d 5, 19 (2nd Cir.1983) (Rule 9(b) applies to fraud allegations in civil RICO complaints); Onesti v. Thomson McKinnon Securities, Inc., 619 F.Supp. 1262, 1265 (N.D.Ill.1985) (Rule 9(b) applies to common law fraud claims). As this court stated in Basil v. Leidesdorf, 713 F.Supp. 1194 (N.D. Ill.1989), "a complaint of fraud is sufficient under rule 9(b) when it sets forth the time, place, and manner of false representations, identities of parties, and the consequences of misrepresentations." Id. at 1198.
In reviewing the sufficiency of a complaint, the court may consider exhibits attached thereto. Beam v. Ipco Corp., 838 F.2d 242, 244 (7th Cir.1988). The plaintiff has attached exhibits A through G to his complaint which exhaustively recites many of the fraudulent actions undertaken by the defendant. According to the complaint, the defendant employed a variety of fraudulent schemes to inflate the amount of the claims. For example, the complaint avers that the defendant would report fictitious accidents in which the alleged accident victims would receive unnecessary medical treatment. In other cases, the defendants would plan staged accidents by causing an innocent driver to rear end a co-conspirator in the scheme.
In order to carry out this scheme, Parello enlisted scores of people who would stage phony accidents or send in medical bills for treatment that was not performed. For instance, around November of 1985 Dr. Arnold Kallen submitted fictitious medical bills for services rendered to John Kiley knowing that Kiley was not injured nor was treatment rendered. The plaintiff in exhibit C lists every fraudulent claim by claim number, the name of the claimant and its amount. In addition, exhibit D recounts, in detail, the facts underlying many other fraudulent claims.
There is no question that fraud is pled with particularity. The plaintiff has compiled, in exhaustive detail, the time, place, and manner of the false representations. In addition, the plaintiff has adequately identified the culpable parties by providing detailed lists of the participants and their role in the fraud. Finally, the complaint leaves no question as to the consequences of the defendant's actions.
Statute Of Limitations: Counts III And IV
The defendant, in rather conclusory fashion, states "it is clear from the complaint that all claims alleged in counts III and IV accrued more than four years prior to the filing of the instant complaint." The plaintiff counters that its claims accrued on August 11, 1990, when American discovered that the defendants were perpetrating this fraud.
In Agency Holding Corp. v. Malley Duff & Assoc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987), the Supreme Court held that the statute of limitations for civil RICO claims is four years. The Court, however, expressed no opinion on when such claims accrue. Id. at 157, 107 S.Ct. at 2767. This court has held that a RICO claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of his cause of action. United Airlines, Inc. v. CEI Industries, Inc., 654 F.Supp. 1209, 1211 (N.D.Ill.1987).
*162 The complaint avers that the plaintiff did not discover the illegal conduct until August 11, 1986 when the FBI informed Fred Bazley, a vice-president at American, that it suspected that the defendants were involved in a fraudulent scheme. Therefore, for purposes of the statute of limitations, this action accrued on August 11, 1986. Because the complaint was filed on August 10, 1990, within four years of the discovery of the fraud, it is timely.
Pattern Of Racketeering: Count III
The defendant argues that because the complaint has only alleged one scheme it fails to adequately plead a pattern. In order to amount to a pattern of racketeering activity, "the predicate acts must be ongoing over an identified period of time so that they can be viewed as constituting separate transactions, i.e. transactions somewhat separated in time and space." Morgan v. Bank of Waukegan, 804 F.2d 970, 975 (7th Cir.1986). Here the alleged improprieties spanned a five year period in which the defendant participated in more than 180 fraudulent automobile accident claims. The acts of fraud were clearly separated both in time and space.[1]
Standing
Having lost almost every battle to this point, the defendant launches his final assault armed with an Illinois appellate court case from 1909. Babcock v. Farwell, 146 Ill.App. 307 (1st Dist.1909). The defendant asserts that Babcock prohibits the plaintiff from bringing counts I and II as the assignee and subrogee of American and Lincoln. The plaintiff counters that more recent case law permits subrogation, even when that right is not based upon a contractual agreement.[2] See Schultz v. Gotlund, 185 Ill.App.3d 943, 134 Ill.Dec. 53, 542 N.E.2d 53 (1st Dist.1989).
In Schultz, the plaintiffs, Michael and Joyce Schultz, filed suit to recover for personal injuries sustained when the defendant, Timothy Gotlund, struck their automobile. Loretto Hospital, which had paid over $60,000 for Michael's medical expenses under an employee group health insurance policy, filed a petition to intervene. Because the insurance policy did not contain an express subrogation provision, the hospital relied on the common law right of subrogation. Holding that the hospital had a right to intervene, the court stated, "if an insurer pays a loss which is due to the wrongful act of another, it is subrogated to the rights of the insured ... This is a rule independent of contract." Id. at 949, 134 Ill.Dec. 53, 542 N.E.2d 53
Schultz supports the plaintiff's position. Unfortunately for the plaintiff, Schultz was reversed on September 26, 1990 by the Illinois supreme court. See Schultz v. Gotlund, 138 Ill.2d 171, 149 Ill.Dec. 282, 561 N.E.2d 652 (1990). The supreme court held that insurance companies do not have an equitable right of subrogation in the area of personal injury insurance, which includes policies for medical expenses and *163 accidents. Id. at 175, 149 Ill.Dec. 282, 561 N.E.2d 652.
Although this case does not involve personal injury insurance, both parties have failed to cite any relevant case law. The question still remains whether this claim can be assigned and whether the plaintiff has the right of equitable subrogation. Therefore, the court orders the parties submit additional briefs limited to the issue of whether the plaintiff has standing to recover on counts I and II.
The defendant's final contention is that the RICO counts, III and IV, cannot be assigned to the plaintiff. The court will recount the defendant's entire argument verbatim.
Similarly, with respect to Counts III and IV, 18 U.S.C. Sec. 1964(c) vests a civil RICO cause of action in any person injured in his business or property by reason of a violation of section 1962. We submit that the language of the statute, as well as public policy considerations, do not allow assignment of civil RICO claims.
The assignability of RICO claims is not a question of first impression. In In re National Mortgage Equity Corporation Mortgage Pool Certificate Securities Litigation, 636 F.Supp. 1138 (C.D.Cal. 1986), the court held that RICO claims are assignable. Id. at 1156. In reaching this decision, the National Mortgage Equity court analogized the RICO statute to the Antitrust statutes. Because it is well established that antitrust damages claims are assignable, see In re Fine Paper Litigation, 632 F.2d 1081 (3rd Cir.1980); D'Ippolito v. Cities Serv. Co., 374 F.2d 643, 647 (2nd Cir.1967) and that the goals of the two statutes are similar, deterring interference with free competition, the court concluded that RICO claims are assignable. National Mortgage Equity, 636 F.Supp. at 1153. See also S. 2048, 90th Cong. 1st Sess. (1967) (Originally, RICO was proposed as an amendment to the Sherman Act.) This court agrees with the reasoning of the District Court of California. There is very little room to argue that Congress would intend to allow the assignment of antitrust claims and would prohibit the assignment of RICO claims. Therefore, the defendant's motion to dismiss counts III and IV based on the plaintiff's lack of standing is denied.
With the exception of the defendant's arguments that counts III and IV are barred by the statute of limitations, that the court does not have subject matter jurisdiction over counts I and II, that RICO claims are not assignable, and that the defendant does not owe a fiduciary duty to Lincoln, this motion to dismiss has no support in the law and consequently is frivolous. The defendant supported most of his arguments with irrelevant case law. Therefore, under Rule 11, this court will enter sanctions against the defendant. The plaintiff, by citing an appellate court case that was reversed, has also come very close to sanctions. See Schultz v. Gotlund, 138 Ill.2d 171, 149 Ill.Dec. 282, 561 N.E.2d 652 (1990). Because Schultz was reversed just one month prior to the plaintiff's response, this court will not enter sanctions against it.
With the exception of the defendant's argument that he does not owe a fiduciary duty to Lincoln, his motion to dismiss is denied. The court, under Rule 11, will enter sanctions against the defendant. The parties may file additional briefs, not to exceed 8 pages, on the issue of whether the plaintiff has standing to pursue counts I and II. The clerk will set an appropriate briefing schedule.
NOTES
[1] The defendant also asserts that count III fails to allege an enterprise. The defendant states, "since the `enterprise' (American States) was acting through the `person' (Parello and Onate) they were not separate and distinct as required under the statute." The defendant cites no relevant authority to support his argument. In fact, there is authority from the seventh circuit that belies this very contention. In Haroco Inc. v. American National Bank and Trust Co., 747 F.2d 384 (7th Cir.1984), the seventh circuit stated, "we focus our attention on the language in section 1962(c) requiring that the liable person be employed by or associated with any enterprise which affects interstate commerce." Id. at 400.
[2] Not only is Babcock over 90 years old, it is irrelevant. Babcock owned 20,000 shares of stock in the Capital Freehold Land and Investment Company. Upon his death, the stock was transferred to his wife. She brought a lawsuit seeking to declare certain contracts between the corporation and a third party void. These contracts had been consummated prior to her acquisition of the stock. The court held that Mrs. Babcock did not have standing to pursue this action because Mr. Babcock's contractual rights were personal and unassignable, and the contracts between the corporation and third parties were consummated prior to her acquisition of the stock. Babcock does not address the issue of subrogation or the rights of an insurance company to take a claim by assignment from an insured.
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595 So.2d 871 (1992)
Ex parte Henry H. TILL, et al.
(In re Henry H. TILL, et al. v. STATE of Alabama).
1910446.
Supreme Court of Alabama.
March 13, 1992.
*872 David P. Shepherd, Fairhope, for appellants.
James H. Evans, Atty. Gen., and Ronald C. Forehand and Carol Jean Smith, Asst. Attys. Gen., for appellee.
MADDOX, Justice.
The issue presented by this petition for a writ of mandamus is whether a defendant, by answering a complaint and failing to object therein to the venue of an action, thereby waives the objection and is subsequently barred from raising the question when the plaintiff amends the complaint in a manner that would not affect venue.
The subject action involves a dispute between the plaintiffs and the State of Alabama over certain land located in Baldwin County that was conveyed to the State of Alabama in 1955, to be used by the State as a public park or for a historical monument. The deed conveying the land contained a reversionary provision stating that if the State "did not commence development of the said land for a public park or historical monument within 10 years from the date of this deed, or in the event the grantee ceases to use the property as a public park or historical monument, the title to the said land shall revert to and vest in the grantors, or their heirs."
The heirs of the grantors sued the State and sought to have the court declare that a reversion had occurred because the contemplated development of the land had not commenced as intended by the grantors.
The State answered the complaint, without questioning whether venue was appropriate in Baldwin County. Subsequently, the plaintiffs amended their complaint to add an additional tract of land located in Baldwin County to the description of the land set out in the original complaint. Several days later, the State filed a motion styled as a motion for change of venue or a Rule 12(b)(3), Ala.R.Civ.P., motion. The trial court granted the State's motion and transferred the action to Montgomery County. The plaintiffs seek a writ of mandamus ordering Judge Thomas B. Norton, Jr., to set aside his order transferring the action to Montgomery County.
The plaintiffs argue that the trial court was incorrect. They contend that the State, by answering the original complaint without raising the defense of improper venue, thereby waived its objection. We agree with them.
Rule 12(b) provides, in part:
"(b) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto, if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (3) improper venue.... A motion making any of these defenses shall be made before pleading if a further pleading is permitted."
Rule 12(b), therefore, requires that a claim of "improper venue" be made in the responsive pleading or in a motion filed before the responsive pleading. A "responsive pleading" in regard to a complaint is an answer. See Rule 7. If a party fails to raise a Rule 12(b)(3) objection in the first responsive pleading or in a motion filed before that first responsive pleading, the objection is waived. There is an exception to that general rule, of course; a party can waive only an objection "`then available to him.'" See Jerome A. Hoffman and Sandra Guin, Alabama Civil Procedure, § 4.82 p. 256 (1990). The exception provides that an objection to the venue of an action may be raised after an amended complaint is filed, if the impropriety of venue appears for the first time in the complaint as amended. Id. The exception to the general rule is not applicable here, because the facts giving rise to the defendant's venue objection did not arise for the first time upon the filing of the amendment. Consequently, the State did not timely file the motion for a change of venue, and the plaintiff's objection should have been sustained.
*873 The State also argues that this Court cannot grant a writ of mandamus ordering the circuit judge in Baldwin County to set aside the transfer order, arguing that the Baldwin Circuit Court no longer has jurisdiction of the case, in view of the fact that the case has already been transferred to Montgomery County. Again, we disagree. See Ex parte City of Huntsville Hospital Bd., 366 So.2d 684 (Ala.1978).
The trial judge improperly transferred the action to Montgomery County. The plaintiffs' petition must be granted.
WRIT GRANTED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
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178 Cal.App.2d 923 (1960)
FRED KNIGHT, Appellant,
v.
PACIFIC GAS AND ELECTRIC COMPANY (a Corporation) et al., Respondents.
Civ. No. 6008.
California Court of Appeals. Fourth Dist.
Mar. 17, 1960.
P. M. Barceloux, Burton J. Goldstein and Goldstein, Barceloux & Goldstein for Appellants. *926
Robert H. Gerdes, John J. Briare and Mack, Bianco, King & Eyherabide, D. Bianco and Henry C. Mack for Respondents.
COUGHLIN, J.
This is an appeal from a judgment of dismissal for want of prosecution made pursuant to section 583 of the Code of Civil Procedure.
The above entitled actions were consolidated for trial. The complaint in the Knight case, i.e., Fred Knight, Plaintiff v. Pacific Gas and Electric Company (a Corporation), Defendant, was filed on December 8, 1954, and the complaints in the other cases were filed shortly thereafter. Recovery of damages was sought on account of serious injuries and death resulting from an accident which occurred about a year previously, i.e., December 21, 1953, when the mast of well pulling equipment, which was being used as a hoist, came in contact with an electric power line of the defendant corporation. The plaintiffs alleged that the defendant negligently maintained the power line at an improper height without adequate warning.
The record contains only the complaint in the Knight case. It was signed by Burton J. Goldstein on behalf of Goldstein, Barceloux and Goldstein, as attorneys for the plaintiff. The letter of transmittal requesting filing was signed by Burton J. Goldstein.
The defendant's answer to this complaint was filed on January 13, 1955. The record substantiates the assumption that its answers to the other complaints were filed contemporaneously. Shortly thereafter Burton J. Goldstein, by letter, asked the county clerk to advise how soon after the filing of a memorandum to set a jury case would be set. In reply, the county clerk advised that if a memorandum to set were filed forthwith the case would be heard in July. The memorandum was filed; the case was set for May 31, 1955; and plaintiffs' attorneys were advised of this fact by letter dated March 10, 1955. Thereupon J. Oscar Goldstein, father of Burton J. Goldstein, and another member of the firm, wrote the clerk that the May 31st date was wholly unsatisfactory and asked for a setting in October. As a consequence this trial date was vacated and the case was set for October 3, 1955.
On May 25, 1955, the defendant noticed a motion to consolidate all of the cases. The hearing thereon was set for April 4th. Contemporaneously defendant noticed the taking of depositions of the plaintiffs. Thereafter, at the request of the attorneys for plaintiffs, by written stipulation, the hearing on *927 this motion and the taking of these depositions was continued, in turn, to May 16, to June 27, to July 25, to September 19. The stipulation of continuance to the latter date provided, "... this is the last extension of time to be granted and the hearing on the motion and the taking of the depositions will proceed on September 19, 1955 in the absence of plaintiffs' attorneys if they are not present at the time and place agreed upon." Burton J. Goldstein signed this stipulation on behalf of the attorneys for plaintiffs. The motion to consolidate was heard and granted on September 19, 1955. Burton J. Goldstein appeared on behalf of the plaintiffs contesting the motion.
The trial date of October 3, 1955, had been vacated on July 19, 1955 and the cases dropped to the foot of the civil active list.
On September 19, 1956, the county clerk advised plaintiffs' attorneys by letter that the cases had been set for trial on November 13, 1956. Forthwith Burton J. Goldstein replied, expressing his surprise and stating his understanding that the cases would simply await the filing of a memorandum to set which he proposed to do shortly, so that they might come to trial "next winter or spring, after our calendar has cleared somewhat," and advising that he would be unable to try the cases on the date set because of an extremely crowded trial calendar. Thereupon the parties executed a stipulation that the November 13th trial date be vacated and the cases "dropped to the foot of the calendar, to take their course thereon for further setting," to be "reset by the Court ... when said cases have again reached their turn on the trial calendar."
Nothing further appears to have been done until April 23, 1957, when the cases were set for a pretrial conference on May 24th of that year. Upon the representation that Burton J. Goldstein was engaged in a trial, and with the consent of the attorneys for defendant, this pretrial date was vacated. Thereafter another pretrial conference was set for November 8th of the same year, but at the request of Burton J. Goldstein, with the consent of the attorneys for defendant, it did not take place. On November 12, 1957, the clerk set a third pretrial conference for January 15, 1958. Again, at the request of Burton J. Goldstein, with the consent of the attorneys for the defendant, this date was vacated. On that date, however, the court made its order that the causes would be dropped from the civil active list to be reset for pretrial upon the filing of a new memorandum to set. *928
By letter dated February 17, 1958, one of the attorneys for defendant wrote his cocounsel suggesting that Mr. Goldstein be given until March 1, 1958, to "take some action to restore these cases to the calendar" otherwise to proceed with a proposed motion to dismiss. A copy of this letter was mailed to Mr. Goldstein who replied with a telephone conversation, but took no action as suggested. Thereupon, defendants moved to dismiss for want of prosecution. At the request of the attorneys for plaintiffs the hearing on this motion was continued from march 17 to March 24, to April 21, to May 5, at which time the matter was heard and taken under submission. Two days later, by letter dated May 7, 1958, Mr. Goldstein requested the filing of an enclosed memorandum to set. On June 27, 1958, after the filing of additional affidavits and briefs by both parties, the court made its order granting the motion to dismiss the actions.
The time elapsing between filing of the Knight complaint and the notice of motion to dismiss was three years, two months and twenty-four days, and between the date of the accident and such motion was four years, two months and eleven days.
The attorneys for plaintiffs offered as an excuse for this delay the press of firm business, the need for extensive investigation, the death of J. Oscar Goldstein on December 12, 1955, and the illness of Burton J. Goldstein, attributed to a duodenal ulcer, during the period May 24, 1957, to March 4, 1958. The attorneys for defendant countered with the claim that there were other members of the plaintiffs' firm of attorneys; that J. Oscar Goldstein was not in charge of these cases; and that Burton J. Goldstein had tried other cases during his illness. The affidavits before the court would support inferences pro and con upon these respective contentions. [1] On "appeal from an order granted on a motion based on affidavits and which involves the determination of a question of fact, if there is any conflict therein, those facts favoring the respondents are accepted by the reviewing court as true, and since all intendments are in favor of the ruling of the lower court, the affidavits in behalf of the successful party are deemed not only to establish the facts directly stated therein, but all facts reasonably to be inferred from those stated." (Ruby v. Wellington, 162 Cal.App.2d 132, 135 [327 P.2d 586]; Alvak Enterprises v. Phillips, 167 Cal.App.2d 69, 77 [334 P.2d 148, 338 P.2d 582]; Griffith Co. v. San *929 Diego College for Women, 45 Cal.2d 501, 507 [289 P.2d 476, 47 A.L.R.2d 1349].)
Section 583 of the Code of Civil Procedure authorizes the court, in its discretion, to dismiss an action for want of prosecution when the plaintiff has failed to bring such action to trial within two years after it has been filed. [2] The discretion in question is the discretion of the trial court; not of the appellate court; "and will be disturbed only in cases of manifest abuse." (Hayashi v. Lorenz, 42 Cal.2d 848, 851 [271 P.2d 18]; Gunner v. Van Ness Garage, 150 Cal.App.2d 345, 347 [310 P.2d 32].) [3] On the other hand, the exercise of the discretion vested in a trial court is subject to review in the light of well established principles; it is a legal discretion, not a capricious or arbitrary one, but a discretion "to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice." (Bailey v. Taaffe, 29 Cal. 422, 424.) This rule has been adopted and applied in proceedings which involve the dismissal of an action for want of prosecution. (Ferris v. Wood, 144 Cal. 426, 428 [77 P. 1037]; Raggio v. Southern Pacific Co., 181 Cal. 472, 475 [185 P. 171]; Jepsen v. Sherry, 99 Cal.App.2d 119, 121 [220 P.2d 819, 822].)
There are other well established rules which assist an appellate court in arriving at a decision on such a review. [4] It has been stated frequently that "the duty rests upon a plaintiff at every stage of the proceeding to use due diligence to expedite his case to a final determination." (Raggio v. Southern Pacific Co., 181 Cal. 472, 475 [185 P. 171]; St. Clair v. Brix, 89 Cal.App. 94, 99 [264 P. 307]; Simonini v. Jay Dee Leather Products Co., 85 Cal.App.2d 265, 269 [193 P.2d 53]), "and no affirmative duty to do more than meet the plaintiff step by step is cast on the defendant." (Gunner v. Van Ness Garage, 150 Cal.App.2d 345, 347 [310 P.2d 32].) [5] The statutory period having elapsed without trial, and no justifiable excuse for failure to prosecute being present, a court acts within its discretion in dismissing the action. (Sawyer v. Palmer, 121 Cal.App.2d 370 [263 P.2d 475].) [6] A defendant is not required to support a motion to dismiss under the statute with an affirmative showing of prejudice. Prejudice from unreasonable delay is presumed. (Welden v. Davis Auto Exchange, 153 Cal.App.2d 515, 521 [315 P.2d 33]; Lieb v. Lager, 9 Cal.App.2d 324, 326 [49 P.2d 886]; Gray v. Times-Mirror Co., 11 Cal.App. *930 155, 163 [104 P. 481].) "Each case must be decided on its own peculiar features and facts." (Jepsen v. Sherry, 99 Cal.App.2d 119, 121 [220 P.2d 819, 822]; First National Bank v. Nason, 115 Cal. 626, 628 [47 P. 595].)
[7] Applying the foregoing principles to the case at bar it may not be said, as a matter of law, that the trial court abused its discretion in determining that the excuses offered by the plaintiffs for their delay were justified. Orders directing a dismissal have been sustained on appeal in cases where the claimed excuses for delay were the pressure of business, sickness, or death of counsel or of the parties. (Goldman v. Palmtag, 169 Cal. 170 [146 P. 429]; Smith v. Wiget, 75 Cal.App.2d 591, 594 [171 P.2d 563]; Elmhurst Packers v. Superior Court, 46 Cal.App.2d 648, 651 [116 P.2d 487]; Barry v. Learner, 113 Cal.App. 651, 655 [299 P. 82].) On the other hand, these factors have been considered as a part of an overall situation establishing excusable cause for the delay and requiring reversal of an order of dismissal. (Ordway v. Arata, 150 Cal.App.2d 71 [309 P.2d 919].) It must be concluded that the existence of these factors alone is not determinative of the issue.
In the case at bar the court may have concluded that the death of J. Oscar Goldstein was not an excusing factor because his participation in the prosecution was incidental; that the illness of Burton J. Goldstein was not a justifiable excuse because, as the affidavits showed, he was engaged in other trials at the time of this alleged impediment; and that the pressure of business from the extent of the investigation required by these cases, and the handling of other cases in the office could have been alleviated by a distribution of the work among other members of the firm, the record showing that, at one time, there appeared to be six such members.
[8a] The plaintiffs claim that the defendant is estopped to contend that the delay in question was prejudicial to it, or to cause a dismissal of the action on account thereof, because the attorneys for defendant stipulated to the many continuances heretofore noted. [9] A stipulation continuing a case for trial to a specified date precludes a defendant from obtaining a dismissal prior to that date (City of Los Angeles v. Superior Court, 185 Cal. 405, 408 [197 P. 79]), but does not require the court to conclude, as a matter of law, that the defendant thereby waived or was estopped to assert a right to obtain a dismissal thereafter. (Miller & Lux Inc. v. Superior Court, 192 Cal. 333 [219 P. 1006]; City of Los Angeles *931 v. Superior Court, 185 Cal. 405, 408 [197 P. 79]; Barry v. Learner, 113 Cal.App. 651, 655 [299 P. 82].) The reasonableness of this rule is well illustrated by the court in City of Los Angeles v. Superior Court, 185 Cal. 405, 410 [197 P. 79], in observing that "no one would think of construing a stipulation extending the time of a party to plead or serve notice, or to perform any other act, as a waiver of the right to its enforcement beyond the time expressly stipulated." [8b] Nevertheless plaintiffs claim that they were lulled into a false sense of security by these stipulations; that their attorney was led to believe it would not be necessary to assign the cases to other counsel; and that, in substance, there was a representation that the defendant would not seek a dismissal for want of prosecution. The findings implied in the trial court's order controvert these contentions. The stipulations extending the time for hearing the motion to consolidate and for the taking of depositions, even though assented to by the defendant, were requested by the plaintiffs. The most that these stipulations accomplished was to relieve the plaintiffs from appearing in court on the hearings in question or from taking the depositions at the times set. Except for them the defendant's attorney would have proceeded even though plaintiffs' attorneys did not appear. The last of such stipulations expressly told the plaintiffs that if they did not appear on the date then agreed upon the defendant would proceed without them. If the plaintiffs were requesting more than a continuance of such hearing or the taking of depositions, in all fairness to the defendant, their proposed stipulation should have indicated such. If the stipulation was intended to include a waiver of their lack of diligence this intention should have been indicated. The written stipulation of October 10, 1956, agreeing that the trial date of November 13, 1956, might be vacated and that the cases should be dropped to the foot of the calendar to be reset when they "have again reached their turn on the trial calendar," did not constitute a representation that the defendant would not hold the plaintiffs to a diligent prosecution of these cases. Again, this stipulation was requested by the plaintiffs' attorneys who, in a letter to the county clerk, had expressed surprise that the cases were set without the filing of a memorandum requesting the same. The subsequent stipulations, each requested by the plaintiffs, continuing the pretrial hearings of May 24, 1957, November 8, 1957, and January 15, 1958, the trial court could have concluded, constituted no more *932 than a waiver by defendant's attorney of its right to proceed in the absence of plaintiffs' attorneys. It is noteworthy that, after the last pretrial conference did not take place as scheduled, the court, on its own motion, made an order setting the cases off calendar. All of the continuances were motivated by the plaintiffs; there was no expressed representation that the defendant would not invoke the demand of the law that these cases be diligently prosecuted; and the trial court acted within its authority in concluding that there was no implied representation to this effect. The delay in these cases could not be attributed to any overreaching, inducement, request or benefit of the defendant.
Plaintiffs rely on Rio Vista Min. Co. v. Superior Court, 187 Cal. 1 [200 P. 616], Smith v. Bear Valley etc. Co., 26 Cal.2d 590 [160 P.2d 1], and Woley v. Turkus, 51 Cal.2d 402 [334 P.2d 12], in support of their position. The factual situations or the principles set forth therein are neither analogous nor applicable to the facts in the case at bar.
[10] The plaintiffs claim that substantial justice was not effected by the order of dismissal and for this reason it should be reversed. Great reliance is placed on the cases of Jepsen v. Sherry, 99 Cal.App.2d 119 [220 P.2d 819, 822], and Ordway v. Arata, 150 Cal.App.2d 71 [309 P.2d 919]. It is argued that the death and serious injury resulting from the accident described in the complaints together with the extensive amount of damages claimed, when considered in connection with the lack of an affirmative showing of prejudice to the defendant attributable to the delay, establish that substantial justice was defeated rather than subserved. Both of the cited cases reiterate the principle that, in reviewing the action of a trial court upon a motion to dismiss for want of prosecution no hard and fast rule can be laid down as to what constitutes an abuse of discretion, and each case must be judged upon its own facts. Adherence to this principle disperses the controlling effect of these cases. In both of the cited cases influencing factors included an apparent admission of the obligation sued upon, the relationship between the parties, and attempts at settlement or compromise, as well as disruptions resulting from a variety of circumstances. The issue of liability in the case at bar was highly controversial. It may not be said, as a matter of law, that this dismissal proceeding was used to defeat payment of an acknowledged obligation rather than to promote the speedy disposition of litigation respecting a controversial obligation. *933
[11] The "enactment to prevent unlimited postponement of trials is to an extent one of public policy as well as of private concern to the litigants." (City of Los Angeles v. Superior Court, 185 Cal. 405, 410 [197 P. 97]; St. Clair v. Brix, 89 Cal.App. 94, 100 [264 P. 307].) [12] Plaintiffs' right to substantial justice must be measured in the light of the right of all litigants and the orderly procedure prescribed for the benefit of all. The trial court was entitled to conclude that they were dilatory and that they lost their right to present their case on the merits because of their own conduct. The law imposed upon them the duty to proceed with diligence, whereas, the record supports the conclusion that they delayed a year after the accident before filing their complaints; that the defendant answered forthwith; that their requests for continuances respecting the hearing upon the motion to consolidate and to take depositions caused further delay; that subsequent neglect resulted in additional delay; that by requesting continuances of the trial date in November, 1956, and for continuances respecting the pretrial hearings they caused more delay; that they did not heed the defendant's declared intention to move for a dismissal if some action was not taken "to restore these cases to the calendar," which would have required only the filing of a memorandum to set, but instead offered telephonic excuses for delay; and that no such memorandum to set was filed until almost three months later and after the hearing on the motion to dismiss, which had been postponed on three occasions at their request. Judged by this course of conduct it was not unreasonable for the trial court to conclude that the plaintiffs' proffered excuses were neither justifiable nor the cause of their delay. We conclude that the order of dismissal was not the result of an abuse of discretion.
Judgment affirmed.
Shepard, J., concurred.
Griffin, P. J., deeming himself disqualified, did not participate in this decision.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0405-12
RICHARD W. JONES, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
HARRIS COUNTY
Per curiam. Keasler and Hervey, JJ., dissent.
ORDER
The petition for discretionary review violates Rule of Appellate Procedure 68.4(i)
& 9.3(b), because it does not contain a copy of the opinion of the court of appeals and the
original petition is not accompanied by 11 copies.
The petition is struck. See Rule of Appellate Procedure 68.6.
The petitioner may redraw the petition. The redrawn petition and copies must be
filed in the Court of Criminal Appeals within thirty days after the date of this order.
Filed: June 6, 2012
Do Not Publish
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917 F.Supp. 1208 (1995)
PAUL E. VOLPP TRACTOR PARTS, INC. d/b/a CEM Supply Company, Plaintiff,
v.
CATERPILLAR, INC., Defendant.
No. 86-2871-TUA.
United States District Court, W.D. Tennessee, Western Division.
August 3, 1995.
*1209 *1210 *1211 H. Kenneth Kudon, Washington, DC, for plaintiff.
Gregory I. Baker, Washington, DC, for defendant.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
TURNER, District Judge.
Plaintiff Paul E. Volpp Tractor Parts, Inc. ("Volpp") d/b/a CEM Supply Company ("CEM"), filed this action alleging federal and state antitrust violations as well as several state common law claims against defendant Caterpillar, Inc. ("Caterpillar"). Volpp subsequently filed an amended complaint. The essence of the claim is that Caterpillar entered into unlawful arrangements with authorized Caterpillar dealers in which Caterpillar conditioned the sale of its machines upon dealers' agreements to purchase genuine Caterpillar parts, to the near exclusion of parts offered for sale by CEM and other competitors. The specific claims alleged in the amended complaint are as follows:
(1) Action pursuant to Sections 4 and 15 of the Clayton Act, 15 U.S.C. §§ 15 & 26, for treble damages, injunctive relief, and costs, including reasonable attorneys' fees, for injuries suffered as a result of unlawful "tying" arrangements, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 3 of the Clayton Act, 15 U.S.C. § 14;
(2) Unlawful combination and conspiracy, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1;
(3) Unlawful agreements made with a view to lessen full and free competition in importation of parts, in violation of Tenn.Code Ann. § 47-25-101; and
(4) Intentional interference with prospective business relations.
Caterpillar answered and counter-claimed, alleging false representation as to the quality and performance of its parts in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Both parties seek damages and injunctive relief.
Caterpillar filed a motion for summary judgment on each claim alleged by Volpp. On Volpp's tie-in claim (Count 1), Caterpillar argues: (a) that there is no evidence that it "tied" the sale of machines to the sale of replacement parts, (b) that there is no evidence *1212 of coercion, (c) that there is no evidence of antitrust injury, and (d) that Volpp cannot show antitrust damages. On Volpp's conspiracy claim (Count 2), Caterpillar argues that the claim merely duplicates the tie-in claim and that there is no evidence of a conspiracy. On Volpp's Tennessee antitrust claim (Count 3), Caterpillar maintains that (a) Volpp may not seek damages under the Tennessee Antitrust Statute, (b) that there is no evidence of an unlawful combination, and (c) that Volpp cannot show an anticompetitive intent or effect. Finally, on Volpp's claim for interference with prospective business relations (Count 4), Caterpillar argues that Tennessee law does not recognize the tort and that the claim should accordingly be dismissed.
The parties have filed extensive memoranda and several volumes of exhibits in support of their respective filings. The court heard oral argument on the motion for summary judgment on June 1, 1994.
I. FACTS
In considering the defendant's motion for summary judgment, the court will believe the evidence of the plaintiff and draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); accord Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
1. Caterpillar, Inc.
Caterpillar is engaged in the business of designing, manufacturing and marketing earth-moving, construction, agricultural and materials-handling equipment, engines and replacement parts. Caterpillar sells its products and services through a world-wide network of independent dealerships. Each dealership enters into a contractual "Sales and Service Agreement" with Caterpillar, a portion of which provides as follows:
2. Primary Purpose and [Caterpillar's] Reliance on Principals
(a) Both Dealer's and [Caterpillar's] primary purpose in entering into this agreement is to develop and promote the sale of products and to provide a high standard of parts availability and mechanical service to insure satisfaction by users of products. Within the service territory described in Exhibit A, Dealer shall be primarily responsible for fully and adequately developing and promoting the sale to customers and prospective customers located within such territory and for the servicing of all of the products specified in Exhibit A.
(b) [Caterpillar] and Dealer agree that Dealer's effectiveness and ability in achieving such purpose could be adversely affected by Dealer's affiliation with another organization which is a substantial operator of products. Dealer agrees that during the life of this agreement it will avoid any such affiliation whether by way of capital investment, source of capital, common management, common ownership, or otherwise, except to the extent that [Caterpillar] may otherwise agree in writing.[1]
The agreement may be terminated with or without cause on ninety days written notice.[2]
2. Paul E. Volpp Tractor Parts, Inc.
Volpp manufactures, assembles and distributes components and parts for off-road heavy construction, mining and logging equipment. These parts, commonly referred to as "non-genuine," "will-fit" or "gypo" are usually less expensive than genuine parts. Volpp distributes its products through two sales divisions, CEM and Heavy Equipment Parts. Through CEM, Volpp sells parts primarily to dealers for original equipment manufacturers ("OEMs"), including Caterpillar. The parts distributed by CEM for use in Caterpillar equipment include seals, gaskets and "O" rings. Volpp successfully cultivated several Caterpillar dealerships as its principal clients for its Caterpillar-compatible parts. According to Caterpillar, between *1213 January 1982 and July 1986, over ninety percent of CEM's aggregate sales of Caterpillar-compatible parts were made to fifteen Caterpillar dealers.[3]
3. Caterpillar's Goal To Regain Lost Parts Sales
Following Caterpillar's first three years of losses in its history, the Caterpillar Product Support Department announced plans to move all programs that contribute to short term profitable sales to "top priority."[4] One such program was the sale of genuine Caterpillar parts to Caterpillar dealers.[5] All district managers, sales managers, and parts and service sales representatives were instructed to "do all those things that we know will work to sell parts."[6] Specifically, Caterpillar aggressively sought to recapture parts sales business which it lost to competitors when dealers sold "will-fit" parts instead of Caterpillar parts.[7]
4. The "Pilot Exercises"
Caterpillar developed a mathematical formula for the purpose of identifying dealers who were selling competitive parts.[8] Caterpillar then conducted a "pilot exercise" focused on three dealers: (1) Mustang Tractor & Equipment Co. in Houston, Texas; (2) Taylor Machinery Co. in Memphis, Tennessee; and (3) Pape' Brothers, Inc. in Eugene, Oregon.[9] This exercise confirmed the accuracy of Caterpillar's formula. Caterpillar "confronted" those dealers and sought to aggressively persuade them to purchase their parts almost exclusively from Caterpillar.[10] Eventually, these dealers were persuaded to source almost exclusively from Caterpillar.[11]
5. Spreading The Word
Caterpillar's pilot exercise had an effect beyond the three dealers directly involved. *1214 Word spread throughout the dealer network that Caterpillar was "getting serious" about the practice of selling non-genuine parts.[12] Caterpillar welcomed and encouraged this effect. Tom Headington at Caterpillar recommended that Caterpillar "take an official position strongly discouraging dealer sourcing non-genuine parts where a genuine Caterpillar part is available to the dealer from Caterpillar."[13]
The issue of non-genuine parts sales was addressed at a Caterpillar "Worldwide Marketing Management Meeting" in October of 1985 in Galesburg, Illinois. It was determined that dealers who "outsource" would be "personally contacted by district/region managers and reminded of their obligations to CTCo."[14] It was further determined that if the personal contact produced no reaction from the dealer, "one or more persuasive measures [could] be employed: suspension of parts returns; 100 percent inspection of warranty parts; [and] a dealer requirement to identify non-genuine parts on customer invoices."[15] Also at the Galesburg meeting, Caterpillar initiated a challenge to increase incremental parts sales worldwide by $200 million.[16] The emphasis on "dealer sourcing loyalty" was expected to account for $40-$50 million toward this total.[17] Caterpillar made the decision that local representatives would have a "`Woodshed' talk" with dealers "who are into nongenuine parts" and send out a "sourcing loyalty letter."[18]
Caterpillar's official position on the issue of non-genuine parts sales went out on May 12, 1986, in the form of a letter from Dave Lewis to all dealers, region managers and district managers. The position statement was as follows:
The basis of our agreements with dealers is our expectation that they will adequately represent the Caterpillar products designated in those agreements to our satisfaction. The use of genuine Caterpillar parts is essential to the performance of our dealers' obligation to support Caterpillar prime products and the fulfillment of their obligation to adequately represent the entire Caterpillar product line including parts.[19]
The letter further informs the dealers that:
District Managers will be discussing this subject with you as appropriate. I encourage those of you affected by this position to review your current sourcing and sales practices and do what is necessary to ensure your practices are consistent with the *1215 effective representation of Caterpillar and our common interests.[20]
6. Caterpillar's Instructions To District Managers On Approaching Dealers Who Sell Non-Genuine Parts
Caterpillar sent copies of this letter to all district managers in advance of its distribution to dealers. In addition to the letter, district managers were given several documents for use in communicating with dealers who sell non-genuine parts. One such document attempts to answer the question, "What do you say to the dealer who buys from competitors and says, `why shouldn't I buy this part from your competitor? It seems like good quality and it's 25% less than your price?'"[21] The suggested response is as follows:
[Y]ou can buy from whomever you choose we have no control over that. But, I would ask you a similar question. Why shouldn't we sell tractors or parts to your competitor perhaps the local Komatsu dealer? They may be happy to buy many items from us at good prices our sales and profits could increase.[22]
The document goes on to emphasize the importance of Caterpillar and its dealers "helping each other" in their "mutual interest." It concludes with "[o]ne last question our agreement implies that you will totally represent Caterpillar if you do not represent us for specific items in your service territory, who should we look to be the Caterpillar representative in your territory for these items?"[23]
Caterpillar sent another "dealer sourcing" letter to district managers, with "support materials" attached, as a follow-up to the May 12, 1986 "position statement."[24] These materials were "designed to assist [district managers] in [their] understanding of this issue, as well as future dealer discussions."[25] The first "support material" attachment is the May 12, 1986 letter from Dave Lewis itself. The second attachment is a "position statement" which states, inter alia, as follows:
Today dealers consider and/or actively source for resale nongenuine parts. This practice displaces the sale of new/remanufactured genuine Caterpillar parts. It is estimated to cost NACD between $50-$100 M annually in parts sales revenue.
....
Dealer sourcing of nongenuine parts which displace the sale of genuine Caterpillar parts for the purpose of improved gross profit is unacceptable.
....
Districts should advise dealers that Caterpillar is committed to providing competitive prices which generate a reasonable (aggregate) return to the dealer. We realize (and so do most dealers) that there will be situations where an individual transaction may not provide this return. Nevertheless, we expect dealers to pursue the total opportunity.[26]
The third attachment is a definition of a genuine Caterpillar part: "A genuine Cat part is a part manufactured by or for Caterpillar which is sold under a Caterpillar trademark."[27]
The final "support material" attachment to Mr. Meadows' July 18, 1986 Memo includes two documents. The first is a sample copy of a "district action letter" which district managers *1216 could send to dealers.[28] The second is a summary of a "successful attempt at encouraging one dealer to source only genuine CAT parts."[29] The sample "district action letter" states as follows:
Under our dealership agreement, you have an obligation to adequately represent Caterpillar products including parts. Representation of directly competitive parts adversely affects that obligation. If you choose to stock non-genuine parts, we expect it to be only as an accommodation to customers who insist upon purchasing such parts. We would expect you to not promote such products where we provide genuine Caterpillar parts.
....
In failing to adequately represent us, you create some serious problems which inhibit our ability to do business with ______ ....
....
______ is our only dealer in _______. You have elected to eliminate your representation of certain Caterpillar products. Will the list be ever growing? If so, we may be forced to consider who will represent us in ______ for such items and whether we wish to have more than one dealer in the area.[30]
The "summary" in the final "support material" attachment to Mr. Meadows' Memo describes the manner in which Caterpillar successfully convinced one of the "pilot" dealerships to purchase all of its parts requirements from Caterpillar sources. The summary states that "[i]t is hoped that this document will be beneficial for other districts with similar problems."[31] The summary explains how Caterpillar representatives prepared for the "showdown" by gathering data indicating a "significant reduction in purchases of certain CAT parts commodities."[32] It then details the discussions with dealer principals who were called into the district office and presented with the findings. The discussion included emphasis on all of the reasons why Caterpillar felt that its parts were superior to those of its competitors. The discussion concluded with one last question to the dealer: "our agreement implies that you will totally represent Caterpillar if you do not represent us for specific items in your service territory, who should we look to to be the Caterpillar representative in your territory for these items?"[33] The summary states that "[a]t the conclusion of the meeting, it was made clear that the dealer was free to represent any product (or parts) line they wished. However, if they chose not to completely represent our lines, we would have to seek that representation in some other fashion."[34] Caterpillar then gave the dealer one week to give notice of *1217 which course of action they would be taking. The summary concludes by stating that the dealer decided "to completely represent CAT parts" and that the dealership continues to be "clean."[35]
7. Caterpillar's Response To An Anonymous Tip
In late 1986, Caterpillar received a letter from an anonymous "concerned but loyal Caterpillar dealer" who informed the company that certain dealers were selling non-genuine parts through their used parts departments.[36] A handwritten note on that letter indicates that a Caterpillar representative "will address it in [his] NACD remarks ... to the extent agreeable by legal."[37] Mr. D.V. Fites then had this to say at the September 1986 NACD Dealer Meeting:
And speaking of winning the battle and losing the war, let me raise one further point in the strongest terms possible. We have recently received a report indicating that several dealers are involved in the nongenuine parts business through their used parts operations. We are currently in the process of investigating this report. Let me just say that I urge all of you to examine your used parts activities. If you are in the nongenuine parts business, I urge you to get out. If you're not in it, don't get in. I can think of nothing more injurious to our mutual long-term future than assisting competitive parts manufacturers to gain a stronger market position through our own distribution organization.[38]
8. The Success Of Caterpillar's Campaign
Caterpillar's efforts to reduce sales of non-genuine parts by Caterpillar dealers proved quite successful. Sales of Caterpillar parts increased as dealers dropped or decreased their sales of non-genuine parts in favor of genuine Caterpillar parts. Similarly, CEM lost sales to Caterpillar dealers, while their sales in other markets continued to grow.[39] At issue in the instant litigation is whether Caterpillar's attempts to increase parts sales, in the manner in which it did, were improper.
9. Caterpillar's Proof
Caterpillar submitted, inter alia, seventy-eight affidavits from employees (usually presidents, vice-presidents, chairmen of the board, or other executive positions) at various Caterpillar dealerships throughout the United States. The affidavits detail the policies and practices at dealerships with respect to purchasing parts from sources other than Caterpillar. The affidavits also describe the reasons behind such policies and practices. A common theme in almost every affidavit is either (1) assurances that Caterpillar has not threatened, pressured or coerced the dealership on the issue of purchasing non-genuine parts, or (2) assurances that policy decisions at the dealership are not based on threats, pressure or coercion.[40] Caterpillar submitted additional evidence challenging Volpp's substantive claims[41] as well as Volpp's damage theory.[42]
10. Volpp's Proof
In addition to the proof discussed supra, Volpp has submitted volumes of anecdotal *1218 evidence pertaining to Caterpillar's communications with various specific dealerships.[43] Much of this evidence is inadmissible hearsay, particularly the evidence contained in "Sales Call Reports" and "Unfair Competition Reports" prepared by CEM to describe conversations with employees at several Caterpillar dealerships.[44] However, much of the evidence, described infra, is admissible.
As noted, one tactic used by Caterpillar to increase parts sales was to inform dealers identified as sellers of non-genuine parts that Caterpillar would take certain protective measures. Among them were: (1) requiring inspections of all warranty claims submitted by the dealer, and (2) suspension or auditing of all year-end parts returns.[45] Volpp has conceded that these measures are reasonable when employed in order to protect the integrity of Caterpillar's warranty and parts return programs.[46] However, Volpp has submitted evidence to indicate that Caterpillar may have intended these measures not to further these reasonable goals but in order to "punish" or "sanction" dealers for selling non-genuine parts.[47] In addition, Volpp has submitted evidence to suggest that Caterpillar was acting with an intent to flex its *1219 muscle over dealers in attempting to increase sales of genuine Caterpillar parts.[48] Some evidence suggests that this intention was communicated directly to dealers.[49] Ultimately, Caterpillar's only power over dealers is cancellation of the dealership.[50] However, to this court's knowledge of the record, Caterpillar has never terminated a dealership on the basis of non-genuine parts sales.
On some occasions in communicating with dealers, Caterpillar characterized the practice of selling non-genuine parts in such a way that a reasonable dealer could conclude that Caterpillar regarded the practice as a violation of the dealer's contractual obligations under the Sales and Service Agreement.[51] Caterpillar did this by describing the practice of selling non-genuine parts and then stating that this may be occurring despite the dealer's intention to "totally represent Caterpillar, as the agreement requires."[52]
(a) Boyce Machinery
Volpp has submitted evidence that a Caterpillar representative named Tom Neely made an arguably threatening statement to an employee at Boyce Machinery Co. Boyce had been involved in purchasing non-genuine parts, including CEM parts, beginning in the early 1980s. When Mr. Neeley began making telephone inquiries, Boyce employees took actions to hide their purchases of non-genuine parts because they felt Mr. Neeley would "disapprove."[53] On at least one occasion, Mr. Neeley did disapprove.[54] At a later time, in reference to the purchase of non-genuine parts at other dealerships, Mr. Neeley indicated to Paul Hubert, Inventory Control Manager at Boyce, that "somebody could lose their contract over it somebody could lose their dealership over it."[55] Boyce "slowed down" their outside purchases for *1220 two or three months because such purchases made Caterpillar "unhappy."[56]
(b) Carlton Co.
Volpp has submitted evidence that Carlton Co. attempted to prevent Caterpillar from discovering its purchases of CEM parts.[57] Carlton would split its orders for seals and gaskets between Caterpillar parts and CEM parts in order to hide the CEM purchases.[58]
(c) Mustang Tractor Co.
As noted, Mustang Tractor Co. was one of three dealerships selected by Caterpillar in its "pilot exercise."[59] Caterpillar representatives had discussions with Mustang about its practice of selling non-genuine parts. The result of those discussions was that Mustang was to "develop an action plan to return to sourcing from Cat."[60] Caterpillar "directed" Mustang to "[s]electively disengage from most [of its]" alternatively sourced parts business by the end of November 1985.[61] Mustang was permitted to continue dealing with CEM "for now."[62] Mustang later agreed to "stop doing business with CEM ... in exchange for [Caterpillar's] assistance on hydraulic and turbocharger repair option development."[63]
(d) Rozier Machinery Co.
Caterpillar learned about Rozier's practice of buying from alternative sources. Caterpillar representatives asked "about the quality of the parts, [stated] the fact that they were unhappy with the fact that [Rozier was] doing it, and [stated] that there was an agreement between Caterpillar and the dealers that parts would be purchased, replacement parts would be purchased from Caterpillar."[64] Caterpillar pressed this in terms of an obligation.[65]
The district manager of the Jacksonville District at Caterpillar, Mr. R.F. Noonan, sent a letter to Dabo Dabasinskas, the General Manager at Rozier, on February 26, 1986. That letter stated as follows:
Under our dealership agreement you have an obligation to adequately represent Caterpillar products including parts. Representation of directly competitive parts adversely affects that obligation. If you choose to stock non-genuine parts, we expect it to be only as an accommodation to customers who insist upon purchasing such parts. We would expect you to not promote such products where we provide genuine Caterpillar parts.
....
In failing to adequately represent us, you create some serious problems which inhibit our ability to do business with Rozier....
....
Rozier is our only dealer in central Florida. You have elected to eliminate your representation of certain Caterpillar products. Will the list be ever growing? If so, we may be forced to consider who will represent us in central Florida for such items and whether we wish to have more than one dealer in the area.[66]
The letter from Mr. Noonan prompted an angry response from the dealer principal at Rozier, Mr. Robert Blanchard. Mr. Blanchard *1221 wrote to Mr. Noonan and objected to "the threatening nature of the letter."[67]
In early 1986, Rozier decided to stop buying outside parts "because Caterpillar was unhappy and [Caterpillar was] telling [Rozier] they were very unhappy about it."[68] Chuck Bacon at Rozier notified CEM by letter that it would no longer be purchasing CEM products.[69] Mr. Bacon expressed "regret" at "having to write this letter."[70]
(e) Taylor Machinery Co.
As noted, Taylor Machinery Co. was one of three dealerships selected by Caterpillar in its "pilot exercise."[71] Caterpillar representatives had discussions with Taylor about their practice of selling non-genuine parts. The district management took a "strong posture" and "fully expect[ed] the practice to stop."[72] Mr. J.G. Evans from Caterpillar "confronted" Jon Thompson and Ed Newton at Taylor with "overwhelming evidence" of Taylor's involvement in competitive parts.[73] Mr. Thompson eventually "confessed," and Mr. Evans asked them to "consider the consequences of their actions."[74] Mr. Evans met later with Mr. Thompson on August 13, 1985, making himself clear that Taylor was free to purchase from whomever it chose. Mr. Evans then stated that "if [Taylor] chose not to completely represent [Caterpillar's] lines, [Caterpillar] would have to seek that representation in some other fashion."[75]
Taylor made the decision to purchase parts only from Caterpillar in order to "clear their bad name" and have all "sanctions" against them removed.[76] Taylor apparently stood by this decision and "cleaned up their act," dealing solely with genuine Caterpillar parts.[77]
(f) West Texas Equipment Co.
Volpp has submitted evidence that Mr. Burdett at Caterpillar approached Mr. Bill Caudy at West Texas Equipment Co. (West Texas was involved in selling parts from CEM and S.K. Wellman) and "[i]n a heavy handed manner and tone," asked why and where Caudy was buying these non-genuine parts.[78] Mr. Burdett then told Mr. Caudy "in an accusatory tone" that West Texas Equipment was the only dealership in the territory that was buying competitive parts.[79] Shortly after this confrontation, Mr. Burdett's boss, Mr. Stephenson, instructed Mr. Burdett to stop all outside purchasing.[80]
(g) Whayne Supply Co.
In late 1984, Mr. Dan Walsh at Caterpillar sent a letter to Mr. Omer Lamkin at Whayne Supply Co. That letter stated, in pertinent part, as follows:
This letter expresses our concern over Whayne's current practice of sourcing non-genuine parts and reiterates some of our *1222 opinions as to "why you should buy from us". At the advent, let me say we are acutely aware Whayne Supply Company is an independent business and as such has the right to sell any product, to any customers in any area. We, as a supplier to Whayne, have an obligation to provide you with quality, high-value products which you can merchandise at a profit. You and I both know the Caterpillar/dealer enterprise has grown far above that simple definition and I propose its success is due largely to that increased commitment. We also haven't lost track of the success you have had with the Caterpillar products you do represent.
Omer, no doubt due to the difficult economy, some current suppliers and numerous other companies have increased their efforts to secure a portion of your parts orders. While we all may be surprised to the extent this happens in the Caterpillar family, we suspect it isn't management's intention, but rather the action of some well-intentioned employee. What results is dealers that fully intend to represent CAT (as the agreement requires) find themselves offering competitive parts....[81]
The letter goes on to detail many of the advantages of Caterpillar parts, including product quality, distribution, price and other concerns. It concludes as follows:
.... That Whayne has chosen to use non-genuine parts is very disturbing. Situations such as these severely limit your Caterpillar contacts' motivation to "fight" for your special requests (i.e. re-instating the GET Specialist or increasing our participation in u/c merchandising)....
....
We are committed to merchandising our parts only through a strong Caterpillar dealer organization. We ask you to make a similar commitment in return.[82]
Mr. Lamkin responded to Mr. Walsh by defending Whayne's practice of purchasing a "limited" quantity of non-genuine parts.[83] Mr. Walsh then notified Mr. Lamkin that Caterpillar would "monitor all transmission warranty claims until source of the parts and cause of failure can be verified."[84] Mr. Walsh also notified Mr. Lamkin that "similar limitations" would be required on Whayne's surplus parts returns.[85] Mr. Walsh informed Mr. Lamkin that these were protective measures to be put in place "[u]ntil [Caterpillar] can respond to [Whayne's] concerns and regain [Whayne's] business."[86]
Whayne Supply Co. thereafter changed its policy and ceased the practice of buying competitive parts for stock.[87] Whayne's new policy permitted the purchase of non-genuine parts only in repairing downed machines and only where unacceptable delays in delivery prevented the use of authorized parts.[88] Whayne's new policy absolutely prohibited the purchase of competitive parts where the part was "such that its failure would lead to potential warranty claims against the manufacturer if it should fail."[89] This was viewed as a "positive action" by Caterpillar.[90]
II. DISCUSSION
1. Summary Judgment Standards
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that *1223 the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) mandates the entry of summary judgment, "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim, but does require a showing of an absence of evidence supporting the non-moving party's case. U.S. v. Currency $267,961.07, 916 F.2d 1104, 1108 (6th Cir.1990) (citing Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53).
The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir.1994) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. at 2512). No genuine issue for trial exists "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all justifiable inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Id. at 255, 106 S.Ct. at 2513-14.
Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; Pierce, 40 F.3d at 800. The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; Pierce, 40 F.3d at 800. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512.
The Supreme Court has affirmed the appropriateness of summary judgment in antitrust cases. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 468, 112 S.Ct. 2072, 2083, 119 L.Ed.2d 265 (1992) ("If plaintiff's theory is economically senseless, no reasonable jury could find in its favor, and summary judgment should be granted); Matsushita, 475 U.S. 574, 106 S.Ct. 1348 (antitrust conspiracy claim dismissed because of plaintiffs' failure, after several years of detailed discovery, to put forward significant probative evidence of the alleged conspiracy); First Nat'l Bank of Arizona, etc. v. Cities Serv. Co., 391 U.S. 253, 284-90, 88 S.Ct. 1575, 1590-93, 20 L.Ed.2d 569 (1968); White Motor Co. v. United States, 372 U.S. 253, 259, 83 S.Ct. 696, 699-700, 9 L.Ed.2d 738 (1963). Here, both parties have engaged in significant discovery, and in the absence of any material factual dispute, summary judgment is an appropriate procedural tool for this case.
The Sixth Circuit has also recognized the propriety of summary judgment in antitrust *1224 cases. See, e.g., Bouldis v. Suzuki Motor Corp., 711 F.2d 1319, 1324-25 (6th Cir.1983); Smith M.D. v. Northern Michigan Hosp., Inc., 703 F.2d 942, 947-48 (6th Cir.1983). Therefore, the court agrees with defendant's assertion that if it demonstrates that no factual dispute is present and that it should prevail as a matter of law, summary judgment should be rendered in its favor.
2. Volpp's Federal Antitrust Claims (Counts I and II)
Volpp has alleged two federal antitrust claims in its complaint (Counts I and II). Count I alleges unlawful "tying" arrangements under both Section 1 of the Sherman Act[91] and Section 3 of the Clayton Act.[92] Count II alleges unlawful combination and conspiracy under Section 1 of the Sherman Act. Volpp has standing to bring this action for injunctive relief, treble damages, and costs, including a reasonable attorney's fee, pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15,[93] and Section 16 of the Clayton Act, 15 U.S.C. § 26.[94]
The Supreme Court has explained the purpose of the Sherman Act as follows:
The Sherman Act was designed to be a comprehensive charter of economic liberty *1225 aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions. But even were that premise open to question, the policy unequivocally laid down by the Act is competition.
Northern Pac. R.R. Co. v. United States, 356 U.S. 1, 4, 78 S.Ct. 514, 517, 2 L.Ed.2d 545 (1958). The Court has consistently held that Section 1 of the Sherman Act only proscribes unreasonable restraints of trade. See Business Elec. Corp. v. Sharp Elec. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 1518-19, 99 L.Ed.2d 808 (1988) (citing those cases).
Section 3 of the Clayton Act was intended "to complement the Sherman Act and to facilitate achievement of its purposes by reaching, in their incipiency, acts and practices that promise, in their full growth, to impair competition in interstate commerce." Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 201, 95 S.Ct. 392, 401, 42 L.Ed.2d 378 (1974). Specifically, Section 3 of the Clayton Act intended to declare illegal "contracts of sale made upon the agreement or understanding that the purchaser shall not deal in the goods of a competitor or competitors of the seller, which may `substantially lessen competition or tend to create a monopoly.'" Standard Co. v. Magrane-Houston Co., 258 U.S. 346, 356, 42 S.Ct. 360, 362, 66 L.Ed. 653 (1922).
(a) Volpp's Tying Arrangement Claim (Count I)
i. Elements of a Tying Claim
A tying arrangement is "an agreement by a party to sell one product [the tying product] but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier." Northern Pacific, 356 U.S. at 5-6, 78 S.Ct. at 518 (emphasis added). A tying arrangement may violate either Section 3 of the Clayton Act or Section 1 of the Sherman Act. Davis v. Marathon Oil Co., 528 F.2d 395, 398 (6th Cir.1975), cert. denied, 429 U.S. 823, 97 S.Ct. 75, 50 L.Ed.2d 85 (1976).
The Clayton Act makes it "unlawful for a person engaged in commerce" to "make a sale or contract for sale of goods" on the "condition, agreement or understanding that the ... purchaser thereof shall not use or deal in the goods ... of a competitor or competitors of the lessee or seller, where the effect of such ... sale[] or contract for sale or such condition, agreement or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce." 15 U.S.C. § 14. Although the language of the Clayton Act does not specifically address tying claims, concern regarding the "anticompetitive character of tying arrangements" was expressed during the enactment of § 3. Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 10, 104 S.Ct. 1551, 1557, 80 L.Ed.2d 2 (1984); See H.R.Rep. No. 627, 63d Cong., 2d Sess., 101-3 (1914); S.Rep. No. 698 63d Cong., 2d Sess., 6-9 (1914). Thus, the language of the Clayton Act coupled with its legislative history provided an impetus for the courts' subsequent development of tying arrangement theory.
A tying arrangement may violate Section 1 of the Sherman Act "if the seller has `appreciable economic power' in the tying product market and if the arrangement affects a substantial volume of commerce in the tied market." Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 462, 112 S.Ct. 2072, 2079, 119 L.Ed.2d 265 (1992) (quoting Fortner Enters., Inc. v. United *1226 States Steel Corp., 394 U.S. 495, 503, 89 S.Ct. 1252, 1258-59, 22 L.Ed.2d 495 (1969)). Many tying arrangements have long been considered unreasonable restraints of trade under the Sherman Act. See Int'l Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947); Fortner Enters., Inc., 394 U.S. 495, 89 S.Ct. 1252. Tying claims may violate Section 3 of the Clayton Act pursuant to the same test as the Sherman Act if the tie-in involves goods, wares, merchandise or other commodities. Jefferson Parish, 466 U.S. at 23-24, n. 39, 104 S.Ct. at 1564-1565, n. 39 (same substantive standards used by Sherman and Clayton Acts); Bouldis, 711 F.2d at 1330; Marathon Oil Co., 528 F.2d at 398 ("The standard of illegality under the two statutes [Sherman and Clayton Acts] are similar.").
The Supreme Court has set forth two distinct methods of proving an unlawful tying arrangement pursuant to Section 3 of the Clayton Act and Section 1 of the Sherman Act.
The first employs a presumption that an agreement is an antitrust violation, thus invoking a per se illegality rule to classify the agreement; the second, called "rule of reason" analysis, "requires the factfinder to decide whether under all the circumstances of the case the restrictive practice imposes an unreasonable restraint on competition."
Lie v. St. Joseph Hosp., 964 F.2d 567, 569 (6th Cir.1992) (quoting Arizona v. Maricopa County Medical Soc'y, 457 U.S. 332, 102 S.Ct. 2466, 73 L.Ed.2d 48 (1982)). Therefore, the two acknowledged methods of proving the existence of a tying arrangement are the per se and "rule of reason" approaches. In determining which analysis the court should apply, it must first decide whether the specific factual context of this case warrants per se treatment. See Business Electronics, 485 U.S. at 726, 108 S.Ct. at 1520-21 (there is a "presumption in favor of the rule-of-reason standard, [and] departure from that standard must be justified by demonstrable economic effect"); Smith Mach. Co. Inc. v. Hesston Corp., 878 F.2d 1290, 1296 (10th Cir.1989), cert. denied, 493 U.S. 1073, 110 S.Ct. 1119, 107 L.Ed.2d 1026 (1990) (per se rules appropriate only for "conduct that is manifestly anticompetitive," ... [and] "ordinarily rule of reason analysis should be employed to determine whether a practice violates the Sherman Act") (citing Business Electronics, 485 U.S. at 723-24, 108 S.Ct. at 1518-20).
ii. Vertical Non-Price Restraints: Line Forcing v. Tying Arrangements
The facts of this case resemble a line forcing situation where "a manufacturer agrees to license or grant a franchise to a dealer to sell its products only if the dealer sells a full or representative line of those products." David Pester, Antitrust Law: Removing the Confusion in Tying Arrangement Jurisprudence, 1990 Ann.Surv.Am.L. 699, 737 (1992). Line-forcing is, to a great extent, a type of tying arrangement. Id. at 741. The plaintiff in this case alleges that Caterpillar is "forcing" its dealers to fully stock Caterpillar parts. However, in the typical line-forcing arrangement competitors of the defendant manufacturer are not foreclosed from selling to the dealer; the dealer is simply forced to carry a full line of the manufacturer's products (including some products the dealer may not have wanted, or may have chosen to buy elsewhere). See Smith Machinery, 878 F.2d at 1296 (In most line-forcing situations the manufacturer does not prohibit the dealer from carrying competing lines). In the instant case, Volpp claims that not only is Caterpillar requiring that its dealers fully stock genuine parts, but that Caterpillar is also foreclosing competitors, such as itself, from selling non-genuine parts to its dealers. Therefore, although this case has some characteristics generally associated with a line-forcing arrangement, it is not wholly representative of a pure line-forcing situation. Instead, this case most closely resembles a line-forcing exclusive dealing arrangement because the manufacturer is forcing the dealer to buy its full line, to the exclusion of all other competitors. See Roy B. Taylor Sales, Inc. v. Hollymatic Corp., 28 F.3d 1379 (5th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 779, 130 L.Ed.2d 673 (1995) (involving an exclusive dealing line-forcing arrangement).
*1227 Plaintiff alleges that Caterpillar unlawfully tied sales of its equipment to sales of Caterpillar replacement parts, thereby excluding Caterpillar's competitors in the parts market from access to Caterpillar dealerships. Plaintiff contends that Caterpillar sales of machinery represent the tying product, while replacement parts are the tied product. For the purposes of this portion of the analysis, the court will accept those allegations of plaintiff's as true and will assume the presence of a tie. With this assumption, the court will focus its inquiry on whether or not that tie is illegal. See Jefferson Parish, 466 U.S. at 11, 104 S.Ct. at 1558 (finding that not all tying arrangements, or refusals to sell two products separately, necessarily restrain competition).
The distinction between line-forcing and traditional tying arrangements is significant because several courts have treated them differently when deciding whether a particular scenario violates the antitrust laws. Pester, Removing the Confusion at 737; see Smith Machinery, 878 F.2d 1290; Parts & Electric I v. Sterling Electric, Inc., 826 F.2d 712 (7th Cir.1987), aff'd, Parts & Electric II v. Sterling Electric, Inc., 866 F.2d 228 (7th Cir.1988), cert. denied, 493 U.S. 847, 110 S.Ct. 141, 107 L.Ed.2d 100 (1989). Most importantly, some courts have held that per se treatment is inappropriate for line-forcing situations and that in such cases rule of reason analysis should be applied. Id. Because the court finds persuasive the position that the circumstances underlying line-forcing are different from standard tie-in arrangements, the court adopts the analysis of those courts that have recognized the distinction. Thus, in considering that the facts of this case fall somewhere between pure line-forcing and a tie, the question before the court becomes whether or not per se analysis is appropriate here. While reconciling these competing principles, the court remains mindful of the admonition of the Jefferson Parish Court that "[t]he legality of [the challenged] conduct depends on its competitive consequences, not on whether it can be labeled `tying.'" 466 U.S. at 21 n. 34, 104 S.Ct. at 1563 n. 34. Therefore, because the facts of this case do not fall clearly within any pre-delineated scenario, the court abandons the myriad of confusing labels in favor of following the basic principles underlying antitrust law. See Eastman Kodak, 504 U.S. at 466, 112 S.Ct. at 2082 ("Legal presumptions that rest on formalistic distinctions rather than actual market realities are generally disfavored in antitrust law.").
iii. Smith Machinery & Roy B. Taylor Sales
Most significant to the court's analysis are the Tenth Circuit's decision in Smith Mach. Co. v. Hesston Corp., 878 F.2d 1290 (10th Cir.1989), cert. denied, 493 U.S. 1073, 110 S.Ct. 1119, 107 L.Ed.2d 1026 (1990), and the Fifth Circuit's decision in Roy B. Taylor Sales, Inc. v. Hollymatic Corp., 28 F.3d 1379 (5th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 779, 130 L.Ed.2d 673 (1995). In Smith Machinery, the plaintiff alleged that the defendant, a manufacturer of farm machinery, had unlawfully tied the sale of its tractors to other farm machinery products. In affirming the district court's grant of summary judgment for the defendant, the court noted that line forcing is a vertical non-price restraint. Id. 878 F.2d at 1295. A vertical non-price restraint is "an agreement between entities at different levels of distribution that does not purport to affect prices or price levels charged for the goods." Id.
Relying on the Supreme Court's decision in Business Electronics, 485 U.S. 717, 108 S.Ct. 1515, which held that vertical non-price restraints are not per se illegal, the Tenth Circuit concluded that line forcing arrangements, because they are vertical non-price restraints, should likewise be exempt from per se treatment. See id. ("We concluded [in Continental Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977)] that vertical nonprice restraints had not been shown to have such a `pernicious effect on competition' and to be so `lacking in redeeming value' as to justify per se illegality.").
Tying arrangements between manufacturers and dealers are also a form of vertical restraint and under certain circumstances should only be subject to rule of reason analysis. See Jean Wegman Burns, The New Role of Coercion in Antitrust, 60 Fordham *1228 L.Rev. 379, 435 n. 3 (1991) ("Vertical restraints (in the form of vertical pricing, territory, and customer restrictions) and tying arrangements are both vertical restraints in the sense that both affect (and usually limit) the freedom of choice of a party on another level of the distribution chain."); Jefferson Parish, 466 U.S. at 35, n. 2, 104 S.Ct. at 1570, n. 2 (O'Connor, J. concurring) ("Exclusive contracts, that, like tie-ins, require the buyer to purchase a product from one seller, are subject only to the rule of reason."); Business Electronics, 485 U.S. at 717, 108 S.Ct. at 1516 ("Although vertical agreements on resale prices are illegal per se, extension of that treatment to other vertical restraints must be based on demonstrable economic effect rather than upon formalistic line-drawing.").[95]
In Taylor, the Fifth Circuit reversed the jury's finding of an unlawful tie and instead held in favor of the defendant manufacturer. 28 F.3d 1379. Hollymatic was a manufacturer of hamburger patty products and sold hamburger patty machines and paper products to its dealer (plaintiff). Id. at 1381. Hollymatic and Taylor had a contractual agreement that Taylor would use its "best efforts" to sell and service the full line of Hollymatic products. Id. Implicit in that agreement was that Taylor would not purchase patty paper from any of Hollymatic's competitors. Id. After selling only Hollymatic patty paper for several years, Taylor began to purchase a substitute. Id. Hollymatic confronted Taylor about its purchases from Hollymatic's competitors, and the parties attempted to forge a new agreement. Id. When they could not come to terms over the amount of patty paper that Taylor would be required to purchase each month, Hollymatic severed its relationship with Taylor. Id. Taylor then brought suit against Hollymatic alleging that it unlawfully tied the sale of hamburger patty machines to patty paper.
While assuming the presence of a tie, the Taylor court found that the tie between patty machines and paper did not violate the antitrust laws because it had no anticompetitive effect on the market. The court based its decision on the fact that the tie did not limit the ultimate choices available to consumers because customers purchasing patty machines from Taylor were free to purchase their patty paper elsewhere. See Taylor, 28 F.3d at 1383 ("Where, however, only dealers are subject to a tie, competitors do not lose a segment of the tied market if there are genuine alternative paths to consumers.") (emphasis in original). Relying on the cardinal antitrust principle that "the antitrust laws protect competition, not competitors," (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 1521, 8 L.Ed.2d 510 (1962)), the Taylor court decided that the absence of any anticompetitive harm to the consumer prevented the court from allowing the jury verdict to stand. The court further explained that not all tying arrangements, or refusals to sell two products separately, necessarily restrain competition. Taylor, 28 F.3d at 1382 (citing Jefferson Parish, 466 U.S. at 11, 104 S.Ct. at 1558). Because the alleged tie in the Taylor case was also a vertical nonprice restraint, the court was further convinced that it should not be subject to per se analysis. Id. at 1383. The court reasoned that "there must be proof `as a threshold matter of a substantial potential for impact on competition in order to justify per se condemnation.'" Id. at 1382 (quoting Jefferson Parish, 466 U.S. at 16, 104 S.Ct. at 1560).
The instant case involves a vertical restraint because Caterpillar and its dealers are "at different levels of distribution" and the alleged restraint has not resulted in Caterpillar charging significantly higher prices for its parts as is normally associated with *1229 monopolist activity.[96] In Business Electronics, 485 U.S. at 735, 108 S.Ct. at 1525, the Court held that "[e]conomic analysis supports the view, and no precedent opposes it, that a vertical restraint is not illegal per se unless it includes some agreement on price or price levels." Therefore, although the facts of this case amount to a hybrid between line-forcing and tying, they are most definitely characteristic of a vertical non-price restraint. Because vertical non-price restraints are generally not subject to per se analysis, the per se test should not be applied in this case.[97]See Int'l Logistics Group, Ltd. v. Chrysler Corp., 884 F.2d 904, 906 (6th Cir.1989) ("[vertical restraints] must be judged by the criteria of a `rule of reason' analysis rather than the rubric of `per se' illegality."); Business Electronics, 485 U.S. at 717, 108 S.Ct. at 1516-17 (vertical non-price restraints, such as exclusive territory agreements, are not illegal per se).
iv. Effect on the Consumer
Most significant to the courts' decisions in Smith Machinery and Taylor, and extremely relevant to this case, is the courts' reliance on the fact that in most line-forcing situations, even those that involve exclusive-dealing arrangements like Taylor,[98] the ultimate consumer is not harmed by the arrangement. See Taylor, 28 F.3d at 1378-79 ("Such an arrangement [exclusive-dealing line-forcing/tie] is not the sort that would always or almost always tend to restrict competition and decrease output. It does not threaten competition to the same extent as tying arrangements that bind ultimate consumers."). Focusing on ultimate consumers is encouraged by the antitrust laws themselves. See e.g., Smith Machinery, 878 F.2d at 1296 ("The primary objective of the Sherman Act is to benefit consumers by promoting efficient and beneficial competition"); ("[We have always] considered alleged antitrust violations in light of their effect on consumers, not on competitors.") (citing Westman Commission Company v. Hobart International, Inc., 796 F.2d 1216, 1220 (10th Cir.1986)). The Supreme Court has also focused on the alleged antitrust violation's effect on the consumer to determine whether an illegal tying arrangement exists. See e.g., Jefferson Parish, 466 U.S. at 18, 104 S.Ct. at 1561 ("[O]ur analysis of the tying issue must focus on the hospital's sale of services to its patients, rather than its contractual arrangements with the providers of anesthesiological services."). Because consumers are not hurt by vertical non-price restraints between manufacturers and dealers, the type of line-forcing/exclusive arrangement found in this case should not be subject to the same per se treatment as traditional tying arrangements.[99] It is true *1230 that competitors such as Volpp may be harmed by line-forcing situations that limit their opportunities with particular outlets; however, the antitrust laws were "designed to protect competition, not competitors." Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 1521, 8 L.Ed.2d 510 (1962).
The consumers in this case still have significant choice as well as a guarantee of price competition in the replacement parts market, both of which the antitrust laws protect. The only negative consequence for a consumer of an exclusive line-forcing arrangement, like the one here, is the potential loss of convenience. It is true that the affected consumers in this case may not be able to purchase everything they want in the same place (i.e. machinery, service and parts). However, the Taylor court held that "[t]he fact that consumers might buy goods because of convenience created by a tie does not suffice as evidence of an unreasonable restraint on competition." Taylor, 28 F.3d at 1385. What the plaintiff in the instant case must demonstrate is that the tie "as it actually operated in the marketplace" harmed competition. Breaux Brothers Farms, Inc. v. Teche Sugar Co., Inc., 21 F.3d 83, 86 (5th Cir.1994) (quoting Jefferson Parish, 466 U.S. at 31, 104 S.Ct. at 1568). Plaintiff has not produced such evidence.
Although consumers of Caterpillar machinery may not be able to buy non-genuine parts at Caterpillar dealerships, they may still purchase non-genuine parts on the open market. Volpp has alternative paths to consumers through its HEP marketing arm and its related chain of distribution. The HEP marketing arm sells its parts to repair shops, tractor parts operations, seal houses, OEM attachment manufacturers and to exporters. See Martin Tr. at 61-62, 75-76, 106-08; Request for Admission Nos. 242, 252, 253, 255, 294-305 and plaintiff's responses Ex. 91-93 (DX 180-82). Plaintiff can also still sell to other OEM dealers besides Caterpillar. See supra p. 1212. Further, although Plaintiff may have lost sales to Caterpillar dealers, their sales in other markets have continued to grow. Decl. of Larry Gray, p. 41, Ex. # 1.0 to Volpp's Response (Vol. 1). These facts demonstrate that the only exclusion that plaintiff has experienced as a result of the alleged tie is its "exclusion" from free-riding on defendant's own dealer distribution system.
The only drawback for Caterpillar consumers, with whom the antitrust laws are most concerned, is that they may[100] be prevented from purchasing a non-genuine part at a Caterpillar dealer. For Caterpillar equipment owners that prefer to have their equipment serviced at Caterpillar dealers and also prefer to use non-genuine parts, Caterpillar's line-forcing will likely cause inconvenience. However, the antitrust laws were not designed to protect convenience, but were enacted to safeguard competition. Caterpillar equipment owners can service their equipment at places other than Caterpillar dealerships where non-genuine parts are stocked and sold. There is no guarantee implicit in the antitrust laws that manufacturers will always have unrestricted access to any and all outlets through which they desire to sell their products. This is particularly true where a competitor, such as Caterpillar, has exerted tremendous effort to set up a dealer distribution chain for its own products. Plaintiff has no federally protected right to access the Caterpillar dealership market there is no free-rider guarantee in the antitrust laws. Accordingly, plaintiff has failed to produce evidence that the alleged tie in this case, as it actually operated in the market, harmed competition or created a substantial potential for impacting competition negatively. Therefore, in paying heed to the venerable principles of antitrust law, the court finds that per se analysis is inappropriate *1231 here and will accordingly review this case under rule of reason principles.
v. Rule of Reason Analysis
The "rule of reason" approach requires that the party challenging the alleged unlawful tie set forth the tying arrangement itself and that the arrangement is "an unreasonable restraint on competition." Arizona v. Maricopa County Medical Soc'y, 457 U.S. 332, 343, 102 S.Ct. 2466, 2472, 73 L.Ed.2d 48 (1982); Beard v. Parkview Hosp., 912 F.2d 138, 140 (6th Cir.1990). As the Supreme Court held in Nat'l Soc'y of Professional Eng'rs v. United States, 435 U.S. 679, 691, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978), "the inquiry mandated by the Rule of Reason is whether the challenged agreement is one that promotes competition or one that suppresses competition." See also Taylor, 28 F.3d at 1386 ("To establish an unreasonable restraint of trade, Taylor's proof must have included evidence from which the jury could have found that Hollymatic's actions had a substantially adverse impact on competition.") (citations omitted). Volpp bears the burden of demonstrating that Caterpillar's actions had such an "actual adverse effect on competition."
"Assessing such an impact requires an inquiry into the conditions of the relevant market." Smith Machinery, 878 F.2d at 1296. Under certain circumstances, tying arrangements may actually promote competition. See IX Phillip E. Areeda, Antitrust Law P 1703g, at 50 (1991) ("suggesting that [t]ying sometimes benefits society by protecting quality, lowering costs or increasing value, increasing price competition, aiding entry, or rewarding a valuable patent."). Thus, "to the extent that a manufacturer's distribution practices enhance competition in the consumer market, they should be encouraged despite their effect on suppliers in an intermediate distribution market." Smith Machinery, 878 F.2d at 1296.
Even considering the facts in the light most favorable to the non-moving party, Volpp has not set forth any evidence that competition in the marketplace for replacement parts has been suppressed or is likely to be suppressed. Rather, the evidence in the record suggests that Caterpillar's aggressive promotion of its own products may have actually stimulated competition and resulted in Caterpillar becoming more price and service conscious when urging their products on their own dealers. See e.g., supra p. 1215 and n. 26 ("Districts should advise dealers that Caterpillar is committed to providing competitive prices which generate a reasonable (aggregate) return to the dealer"); supra p. 1220 and n. 63 (Caterpillar and Mustang reaching an agreement whereby Mustang was to disengage from sourcing alternative parts by a certain date in exchange for Caterpillar's assistance on hydraulic and turbocharger repair option development). For Volpp to prevail under the facts and circumstances of this case, "it would have to show that [Caterpillar's] line requirement so restricted the marketing of Volpp products that it impeded competition in the consumer market." Smith Machinery at 1296. As has already been discussed in the preceding section, the consumer is not hurt by Caterpillar's alleged actions in this case. Accordingly, under the rule of reason analysis, plaintiff's claim must fail.
vi. Per Se Analysis
As set forth above, the court believes that a rule of reason analysis is most appropriate in the instant case. However, even if the court were to apply the per se test, plaintiff's claim would still fail.
To set forth a per se violation, a plaintiff must show that:
1) There is a tying arrangement between two distinct products or services;
2) The seller has sufficient economic power in the tying market to restrain appreciably competition in the tied product market; and
3) The amount of commerce affected is not insubstantial.
Virtual Maintenance v. Prime Computer, Inc., 11 F.3d 660, 664, n. 6 (6th Cir.1993) (citations and internal quotations omitted), cert. dismissed sub nom. Virtual Maintenance v. Computervision Corp., ___ U.S. ___, 114 S.Ct. 2700, 129 L.Ed.2d 829 (1994). Establishing a tying claim where the plaintiff *1232 has concrete proof of a tie, such as a contract that has been reduced to writing, is fairly simple. See Bell v. Cherokee Aviation Corp., 660 F.2d 1123, 1126 (6th Cir.1981). However, in the absence of such an express tying arrangement, a plaintiff can also demonstrate that an unlawful tie exists by showing that a seller forced the tied product on an unwilling buyer. Jefferson Parish, 466 U.S. at 15, 104 S.Ct. at 1559-60; Breaux Brothers, 21 F.3d at 86; Unijax, Inc. v. Champion Int'l Inc., 683 F.2d 678, 685 (2d Cir.1982) ("Actual coercion by the seller that in fact forces the buyer to purchase the tied product is an indispensable element of a tying violation"); Ogden Food Serv. v. Mitchell, 614 F.2d 1001, 1002 (5th Cir.1980) (coercion is an element of an illegal tie-in); but see Cherokee Aviation Corp., 660 F.2d 1123 (coercion is not an element of an illegal tie-in). Here, no express agreement exists.[101] Therefore, to prove a tying claim plaintiff must rely on evidence of coercion.
In the post-Jefferson Parish era, the modern per se rule abandons the former strict per se treatment in favor of a modified approach.[102] This quasi per se test is really "a hybrid between per se and rule of reason analysis because of the threshold examination of market power." Timothy S. Cragin, Antitrust and Trade Regulation Law, 42 La.B.J. 386, 387 (1994); Lazaroff, Reflections of Eastman Kodak at 115 ("[The Jefferson Parish Court] endorsed a method of analysis that does not entail all the elements of a fullblown rule of reason approach, but also does not label a tie-in illegal without some threshold demonstration of market power in the tying product."). Pure per se treatment would automatically invalidate a tying arrangement without inquiring into market power. However, quasi per se condemnation is only appropriate "if the existence of forcing is probable." Id.
Therefore, the presence of coercion is a critical factor in the determination of whether the particular circumstances of a case give rise to an illegal tying arrangement. See Unijax, 683 F.2d at 686 ("[A] finding of the actual exercise of economic muscle [is] an indispensable element for proving a tying violation."). As the Supreme Court held in Jefferson Parish:
Our cases have concluded that the essential characteristic of an invalid tying arrangement lies in the seller's exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms. When such forcing is present, competition on the merits in the market for the tied item is restrained and the Sherman Act is violated.
Jefferson Parish, 466 U.S. at 12, 104 S.Ct. at 1558 (emphasis added). The burden of proving coercion rests with the plaintiff. Ogden Food Serv., 614 F.2d at 1002; Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 377 (5th Cir.1977). *1233 Even when the facts are considered in the light most favorable to the non-moving party, plaintiff cannot sustain its burden of demonstrating that, in the context of a distributor-dealer relationship, Caterpillar dealers were forced to purchase Caterpillar parts in violation of the antitrust laws.
In deciding these types of cases, courts must be wary of the difference between forcing that amounts to an illegal tie under the antitrust laws, and aggressive salesmanship that is encouraged by those same antitrust laws. As the Fifth Circuit noted in Unijax:
A manufacturer's use of "strong persuasion, encouragement, or cajolery to the point of obnoxiousness to induce [its] retailer to buy its full line of products" does not, however, amount to actual coercion.
683 F.2d at 685 (quoting Bob Maxfield Inc. v. Am. Motors Corp., 637 F.2d 1033, 1037 (5th Cir.1981)); see also Ungar v. Dunkin' Donuts of Am., Inc., 531 F.2d 1211, 1225 (3d Cir.1976) ("The purpose of the antitrust laws is to stimulate economic competition, the essence of which is the presence of many competing sellers; salesmanship the art of persuasion and influence is inherent in competition among sellers."). Here, defendant's representatives did use "strong persuasion" and hard-line tactics to lure dealers into sourcing almost exclusively genuine parts. However, as the Unijax court found (even though the manufacturers in that case actually terminated plaintiff's distribution outlets in two states), such cajolery is not the sort of coercion proscribed by the antitrust laws. See also Marathon Oil, 528 F.2d 395 (rejecting a tie-in claim even though defendant's sales representative told plaintiff that his lease might be cancelled unless he purchased more of defendant's products and plaintiff's lease was ultimately cancelled).
Plaintiff has set forth numerous examples of alleged coercion, all of which essentially highlight the aggressive direction that Caterpillar undertook in order to increase revenue from genuine parts sales. The majority of these examples are contained in the fact section of this order. See supra pp. 1211-1223. The court will analyze those typical instances of Caterpillar's general behavior.[103] When Caterpillar committed itself to the task of regaining the replacement part sales it had lost to non-genuine parts manufacturers, managers were instructed to "do all those things that we know will work to sell parts." See supra p. 1213. Such a company statement embodies the very principles that the antitrust laws were designed to protect competitive initiative. Caterpillar recognized that non-genuine parts sales were increasing and cutting into genuine parts sales profits. It is antithetical to American corporate culture, grounded in capitalist principles, to expect Caterpillar to ignore a potential profit center and decline to aggressively compete.
One example of Caterpillar's alleged "forcing" is the Caterpillar "Worldwide Marketing Management Meeting" where it was determined that dealers who outsource would be personally contacted by district/region managers and reminded of their obligations to Caterpillar. See supra p. 1214 and n. 14. In that meeting, the various measures for dealing with those situations were outlined. Those measures were: suspension of parts returns, one hundred percent inspection of warranty parts, and a dealer requirement that all non-genuine parts be identified on customer invoices. See supra p. 1214. None of those responses amount to termination of a dealership or rise to the level of unlawful coercion within the context of a tying arrangement. Since its inception in 1925, Caterpillar has established itself as a leader in the heavy equipment machinery market, and as such is certainly entitled to ensure that it is not covering the cost for warranties on parts not manufactured by Caterpillar by paying for non-genuine parts on return. Non-genuine parts manufacturers, such as the plaintiff, do not have a right to free-ride on Caterpillar's distribution system. If Caterpillar did not attempt to safeguard its investment in its own distribution system and its warranty and return parts programs, it would be declining to aggressively compete. *1234 This kind of monitoring should simply be expected in a dealer-distributor relationship and does not rise to the level of coercion necessary to establish a tying arrangement.
After this meeting, Caterpillar decided that local representatives would have a "Woodshed talk" with dealers "who are into nongenuine parts" and send out a "sourcing loyalty letter." See supra p. 1214 and n. 18. The sourcing loyalty letter provided in relevant part:
The basis of our agreements with dealers is our expectation that they will adequately represent the Caterpillar products designated in those agreements to our satisfaction. The use of genuine Caterpillar parts is essential to the performance of our dealers' obligation to support Caterpillar prime products and the fulfillment of their obligation to adequately represent the entire Caterpillar product line including parts.
See supra p. 1214 and n. 19. This letter does not contain unlawful coercion when viewed within the context of a distributor-dealer relationship. Caterpillar may be attempting to use its influence to cajole its dealers into sourcing almost exclusively from Caterpillar but such conduct does not rise to the level of the forcing required for a tying claim. Further, Caterpillar has submitted proof that the author of this sourcing letter believes that dealers "certainly ... have no contractual obligations to source entirely genuine Caterpillar parts." Confidential Testimony of David Lewis, Ex. # 84 to Caterpillar's Motion (Vol. III).
As a follow-up to the loyalty sourcing letter, Caterpillar also suggested that district managers respond to dealers who sell non-genuine parts with the following statement:
[Y]ou can buy from whomever you choose we have no control over that. But, I would ask you a similar question. Why shouldn't we sell tractors or parts to your competitor perhaps the local Komatsu dealer? They may be happy to buy many items from us at good prices our sales and profits could increase.
See supra p. 1215 and n. 22. The very first statement of the response, "you can buy from whomever you choose," clearly indicates that Caterpillar understood that it could not implement a strict requirement that dealers only stock genuine parts. However, there is a distinction between an absolute requirement and the sort of procompetitive focused persuasion found here.
A second dealer-sourcing letter, designed to assist district managers in their understanding of the parts issue, was sent as a follow-up to "suggested responses" such as the one quoted above. This letter strongly discouraged sourcing non-genuine parts by calling such conduct "unacceptable." Most significantly, however, the letter also contained a position statement that included the following declaration:
Districts should advise dealers that Caterpillar is committed to providing competitive prices which generate a reasonable (aggregate) return to the dealer. We realize (and so do most dealers) that there will be situations where an individual transaction may not provide this return. Nevertheless, we expect dealers to pursue the total opportunity.
See supra p. 1215 and n. 26. This statement demonstrates that Caterpillar recognized it must compete and potentially lower its prices in order to guarantee sourcing loyalty from its dealers. It is true that Caterpillar may be able to leverage its influence as a distributor to more successfully persuade its dealers to source only genuine parts; however, such power is inherent in a distributor-dealer relationship and does not constitute unlawful forcing when considered in that context.
Other materials comprised within Caterpillar's campaign to sway its dealers to return to purchasing more genuine parts include a "district action letter" and a summary of a "successful attempt at encouraging one dealer to source only genuine CAT parts." The district action letter provides in relevant part:
Under our dealership agreement, you have an obligation to adequately represent Caterpillar products including parts. Representation of directly competitive parts adversely affects that obligation. If you choose to stock non-genuine parts, we expect it to be only as an accommodation to customers who insist upon purchasing such *1235 parts. We would expect you to not promote such products where we provide genuine Caterpillar parts.
See supra p. 1216 and n. 30. This statement indicates that Caterpillar recognizes that dealers will continue to stock non-genuine parts; however, Caterpillar's position as a distributor gives it some "extra muscle" to promote its best interests. Nevertheless, such muscle is a probable consequence of its relationship with its dealers and should be expected within that economic mini-system. Further, the summary of the successful attempt at encouraging one dealer to source only genuine Caterpillar parts indicates, by definition, that there are "unsuccessful attempts" and that Caterpillar does not assume it has the power to force dealers to obey its requests under any and all circumstances.
At a Caterpillar dealer meeting a Caterpillar representative explained Caterpillar's disapproval of the selling of non-genuine parts by stating that:
I can think of nothing more injurious to our mutual long-term future than assisting competitive parts manufacturers to gain a stronger market position through our own distribution organization.
See supra p. 1217 and n. 38. As mentioned previously, Caterpillar is right to be concerned about the network it has painstakingly constructed over the years to profitably market its own products, and in a competitive system it should be protective of its own goodwill. Therefore, even strong measures to ensure that its own distribution system inures to the benefit of Caterpillar machinery and products, and not Caterpillar's and its dealers' competitors, are not coercive. Such measures are sound and expected competition.[104]
The contract between the individual dealers in this case and Caterpillar calls for the dealers to represent Caterpillar's full line, in return for which the dealers get an exclusive territory to sell Caterpillar products. By granting its dealers exclusive territories, Caterpillar essentially selected one individual dealer in each area to whom it could look to promote its sales in that area. If any individual dealer did not live up to its agreement, then Caterpillar would not make any sales in that "exclusive territory." And if Caterpillar did not make any sales in its territory, competition would diminish because then only the plaintiff would have an outlet to sell its products in that area. Therefore, Caterpillar's aggressive promotion of its genuine parts, which may have risen to the level of extreme persistence and cajolery, do not, in the context of the relationships between the parties in this case, rise to the level of coercion necessary to satisfy a tying arrangement. Accordingly, plaintiff has failed to submit sufficient evidence for a reasonable jury to return a verdict in Volpp's favor on its per se tying claim.
If plaintiff cannot establish a per se tying arrangement, then plaintiff bears the burden of showing that the alleged illegal conduct "unreasonably restrained competition." See Jefferson Parish, 466 U.S. at 29, 104 S.Ct. at 1567 ("In order to prevail in the absence of per se liability, respondent has the burden of proving that the Roux contract [alleged tie] violated the Sherman Act because it restrained competition."). The court has already applied the rule of reason analysis to the facts of this case and explained why the alleged antitrust violation in this case does not unreasonably restrain competition. See supra pp. 1230-1232.
vii. Conclusion: Tying Arrangement Claim
The court concludes that even if it were to accept all of plaintiff's allegations as true, the antitrust claim asserted simply makes no economic sense. See Eastman Kodak, 504 U.S. at 468, 112 S.Ct. at 2083 (Finding that if plaintiff's theory is "economically senseless" no reasonable jury could find in its favor and summary judgment should be granted). Aggressive salesmanship is protected and encouraged by the antitrust laws and therefore cannot, in the context of distributors who award exclusive territories to dealers, form *1236 the coercion necessary to prove a tie-in claim. To trigger federal protection under the antitrust laws, a violation must have an actual anticompetitive effect it must hinder the machinations of the free market system. See Jefferson Parish, 466 U.S. at 31, 104 S.Ct. at 1568 ("Without a showing of actual adverse effect on competition, respondent cannot make out a case under the antitrust laws, and no such showing has been made."). Nothing in this case has such an impact on the market, particularly the consumer for whom the antitrust laws were created. Therefore, even considering all the facts in the light most favorable to plaintiff, Volpp's claim must fail because it has not set forth any evidence of a tying claim that has an adverse effect on the consumer marketplace (rule of reason analysis). Nor has it established the presence of coercion necessary to justify per se treatment on a tying claim (per se analysis). Accordingly, and for the reasons discussed above, the court grants defendant's motion for summary judgment on the tying claim and on the issue of coercion.[105]
(b) Volpp's Conspiracy Claim (Count II)
Caterpillar claims that it is entitled to judgment as a matter of law on Volpp's conspiracy claim (Count II) because it merely duplicates the tie-in claim (Count I) and also because there is no evidence of a conspiracy. Because Caterpillar is entitled to judgment as a matter of law on the tie-in claim, its argument for summary judgment on the conspiracy claim is well taken. Without an underlying unlawful tie or antitrust violation, there is no illegal conduct on which to base a conspiracy. Therefore, the court grants summary judgment on plaintiff's conspiracy claim.
3. Volpp's State Antitrust Claim (Count III)
In Count III of its amended complaint, Volpp has alleged state antitrust violations under Tenn.Code Ann. § 47-25-101[106] and seeks compensatory and punitive damages as well as injunctive relief. Caterpillar contends, inter alia, that the damages section of the statute, § 47-25-106,[107] provides only a consumer remedy and that no remedy at all is available to a competitor such as Volpp.
Caterpillar notes that the exclusive remedy of the statute is that the person injured "may sue for and recover ... the full consideration or sum paid by him" for any goods sold in violation of the statute. As a competitor, Volpp never paid any consideration or sum for any product sold in violation of the statute. Caterpillar argues that as a consequence, Volpp may recover nothing. At oral argument, Volpp conceded that a competitor such as itself has no remedy under the Tennessee antitrust statute. The court agrees. Viewing all evidence in the light most favorable to Volpp, Caterpillar is entitled to judgment as a matter of law on Count III. The court will accordingly grant Caterpillar's motion for summary judgment on Count III.
4. Volpp's Claim for Intentional Interference with Prospective Business Relations (Count IV)
Count IV of Volpp's complaint alleges that Caterpillar "intentional[ly] interfere[d] with *1237 [plaintiff's] on-going and prospective business relations with authorized Caterpillar dealers." Amended Compl. at ¶ 21. On its face, Count IV appears to be a claim for interference with an existing contractual relationship as well as an action for interference with prospective business relations.
Caterpillar contends that it is entitled to judgment as a matter of law on this claim because: (1) Volpp has failed to establish certain elements of the tort of interference with on-going business relations, and (2) Tennessee law does not recognize the tort of interference with prospective business relations. Specifically, as to the claim for interference with on-going business relations, Caterpillar cites cases applying Tennessee law to argue: (1) that Caterpillar cannot be held liable for interfering with Volpp's at-will business relationship with Caterpillar dealers; (2) that there is no evidence that Caterpillar was motivated by malice; and (3) that there is no evidence to show that but for Caterpillar's actions, Volpp would have entered into a business relationship with any Caterpillar dealer. As to the claim for interference with prospective business relations, Caterpillar argues Tennessee law does not recognize the tort and that the claim should accordingly be dismissed.
An assumption underlying Caterpillar's arguments is that Tennessee law should be applied to Count IV. This assumption is stated explicitly with respect to Caterpillar's argument on the claim for interference with prospective business relations. Caterpillar argues that Tennessee law applies to that claim, relying on the old choice of law principle of lex loci delecti. See Restatement of Conflict of Laws § 377 (1934) ("First Restatement"); see also Winters v. Maxey, 481 S.W.2d 755 (Tenn.1972), overruled by Hataway v. McKinley, 830 S.W.2d 53 (Tenn.1992). Caterpillar makes no choice of law argument on the claim for interference with on-going business relations but relies on cases applying Tennessee law in arguing that it is entitled to judgment as a matter of law on that claim.
When a federal court is called upon to apply state substantive law to a claim, the conflicts law of the forum determines which state's law to apply. Telecommunications, Eng'g Sales & Serv. Co. v. Southern Tel. Supply Co., 518 F.2d 392, 394 (6th Cir.1975). Caterpillar is thus correct in looking to choice of law principles of Tennessee to determine the applicable substantive law. However, after the briefs on the instant motion were filed, the Tennessee Supreme Court rendered its decision in Hataway v. McKinley, 830 S.W.2d 53 (Tenn.1992). In Hataway, the court abandoned the lex loci delecti choice of law doctrine embodied within the First Restatement, adopting instead the "most significant relationship" approach of the Restatement (Second) of Conflict of Laws ("Second Restatement"). 830 S.W.2d at 57, 59. Under this approach, "the law of the state where the injury occurred will be applied unless some other state has a more significant relationship to the litigation." The court adopted the following provision of the Second Restatement:
§ 145. The General Principle
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state, which with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties,
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
Hataway, 830 S.W.2d at 59. The Tennessee Supreme Court also adopted Section 6 of the Second Restatement, referenced in Section 145 (quoted above), as follows:
*1238 § 6. Choice-of-Law Principles
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability, and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Id.
Caterpillar has not addressed the prevailing choice of law principles in Tennessee and therefore at this point has failed to show that Tennessee substantive law applies to Volpp's claim(s) for either on-going or prospective business relations. In the absence of such a showing, Caterpillar's attempt to demonstrate that it is entitled to judgment as a matter of Tennessee substantive law on Count IV must fail. The court will accordingly deny Caterpillar's motion for summary judgment on Count IV.[108]
CONCLUSION
Caterpillar's motion for summary judgment on all of Volpp's federal claims is granted and accordingly the federal claims are dismissed with prejudice. The court also grants Caterpillar's motion for summary judgment on Volpp's state antitrust claim. The court denies Caterpillar's motion for summary judgment on Volpp's state claim for intentional interference with prospective economic advantage.
IT IS SO ORDERED.
NOTES
[1] "Sales and Service Agreement" § 2, Ex. # 82 to Caterpillar Inc.'s Mem. in Supp. of its Mot. for Summ.J. ("Caterpillar's Motion") (Vol. III); Ex. # 1.15 to Pl.'s Statement of Material Facts in Dispute Responsive to Caterpillar's Mot. to [sic] Summ.J. ("Volpp's Response") (Vol. 1).
[2] Id. § 29.
[3] Mem. in Supp. of Def.'s Mot. for Summ.J. at 10.
[4] See Memo from MD Meadows to District Managers, Sales Representatives, and Parts and Service Sales Representatives (Oct. 12, 1984), Ex. # 3.4 to Volpp's Response (Vol. 1).
[5] Id.
[6] Id.
[7] This effort actually had its origin prior to 1984. At a 1983 meeting of Caterpillar dealer principals, a Caterpillar representative gave the following statement:
Before closing, there is one additional area I'd like to discuss. (Pause)
No doubt due to the recessionary economy, some suppliers and numerous other companies have increased their efforts to secure a portion of your parts orders. Some Caterpillar dealers are utilizing, to varying degrees, these alternative sources.
You may be thinking, "this doesn't apply to us." You might be surprised. Some well-intentioned employee may have found what appears to be a cheaper source for a few parts such as seals, hardware, electrical components, or friction material. This employee probably feels it's the same as Caterpillar supplies, but costs less. Perhaps your company is one of the Caterpillar dealers who has taken on a line of filters to supplement our line. You may find that in certain cases, the other line gets substituted for Caterpillar because "that's what the customer wants." These examples and others are starting to happen all too frequently, even though you may fully intend to totally represent Caterpillar, as your agreement requires.
"1983 Dealer Principal Meetings," p. 9, Ex. # 3.0 to Volpp's Response (Vol. 1) (emphasis added). Although the speaker is not identified within the text itself, the immediately preceding document identifies the speaker as Dean Moore. See Memo from RD Murphy to Parts & Service Sales Representatives (June 6, 1983), Ex. # 3.0 to Volpp's Response (Vol. 1) ("Attached are two references concerning dealers' use of competitive parts. The first is a copy of the talk Dean Moore gave to dealer principals at the meeting in Colorado Springs").
[8] See Memo from BJ Hansotia to Steve Larson (Oct. 4, 1984), Ex. # 3.5 to Volpp's Response (Vol. 1).
[9] See Memo from TE Headington to JD Keenan (Aug. 15, 1985), Ex. # 3.15 to Volpp's Response (Vol. 1).
[10] See "Dealer Parts Sourcing Loyalty," Ex. # 3.23 to Volpp's Response (Vol. 1) ("Three dealers confronted and changed"); "Dealer Sourcing Loyalty," Ex. # 3.26 to Volpp's Response (Vol. 1) ("several dealers confronted and converted"); "Dealer Sourcing Loyalty," Ex. # 3.41 to Volpp's Response (Vol. 2) ("several dealers confronted and converted").
[11] "Dealer Sourcing Loyalty," Ex. # 3.26 to Volpp's Response (Vol. 1) ("several dealers confronted and converted"); "Dealer Sourcing Loyalty," Ex. # 3.41 to Volpp's Response (Vol. 2) ("several dealers confronted and converted").
[12] Memo from JG Evans to RP Bonati (Aug. 22, 1985), Ex. # 3.16 to Volpp's Response (Vol. 1) ("word is on the streets that Caterpillar is finally serious about their dealers' involvement in competitive parts."); Memo from MD Meadows to Region Managers, BR Clough, LS Goettsch, DA Lewis, & JM Tedford (Aug. 28, 1985), Ex. # 5 to Volpp's Supp. Resp. ("from comments we've received, word is apparently spreading throughout the dealer organization that we are at last, getting serious about the practice of not using Caterpillar as the source for parts needs.").
[13] Memo from TE Headington to JD Keenan (Aug. 15, 1985), Ex. # 3.27 to Volpp's Response (Vol. 2).
[14] Synopsized Minutes of Oct. 27-31 Worldwide Marketing Management Meeting in Galesburg, attached to Memo from RJ Gutierrez to DV Fites (Nov. 7, 1985), Ex. # 3.24 to Volpp's Response (Vol. 1). See also Memo from BR Clough to RJ Gutierrez (Nov. 5, 1985), Ex. # 3.24 to Volpp's Response (Vol. 1).
[15] Id.
[16] See Memo from MD Meadows to RP Bonati, SB Brush, DE Moore, RD Nitto, and RR Schild (Nov. 8, 1985), Ex. # 3.24 to Volpp's Response (Vol. 1); Memo from JD Keenan to RC Brown, FP Cholat, PR Dalton, DW Lahti, MD Meadows, H Neilson, and BM Smith (Nov. 5, 1985), Ex. # 3.26 to Volpp's Response (Vol. 1); Memo from JD Keenan to DV Fites (April 3, 1986), Ex. # 3.24 to Volpp's Response (Vol. 1); Memo from DA Lewis to SB Brush, RP Bonati, DE Moore, RD Nitto, RR Schild (May 16, 1986), Ex. # 3.24 to Volpp's Response (Vol. 1).
[17] "Dealer Sourcing Loyalty," attached to Memo from BR Clough to RC Brown, FP Cholat, RJ Jacobson, DW Lahti, JT McCabe and HC Neilson (Feb. 7, 1986), Ex. # 3.26 to Volpp's Response (Vol. 1).
[18] Id.
[19] Letter from DA Lewis to Dealer Principals, Region Managers, and District Managers (May 12, 1986), Ex. # 3.35 to Volpp's Response (Vol. 2); Ex. # 85 to Caterpillar's Motion (Vol III). Caterpillar has submitted proof that the author of this letter believes that dealers "certainly ... have no contractual obligations to source entirely genuine Caterpillar parts." Confidential Testimony of David Lewis, Ex. # 84 to Caterpillar's Motion (Vol. III).
[20] Id.
[21] "`Loyalty' It's Not a One Way Street," attached to Memo from MD Meadows to District Managers (April 2, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2).
[22] Id.
[23] Id.
[24] Memo from MD Meadows to District Managers (July 18, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2).
[25] Id.
[26] "Position Statement," Attachment II to Memo from MD Meadows to District Managers (July 18, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2) (emphasis added).
[27] Attachment III to Memo from MD Meadows to District Managers (July 18, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2).
[28] Sample Letter, Attachment IV to Memo from MD Meadows to District Managers (July 18, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2).
[29] "Summary ... [of] successful attempt at encouraging one dealer to source only genuine CAT parts" (June 11, 1986), Attachment IV to Memo from MD Meadows to District Managers (July 18, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2).
[30] Sample Letter, Attachment IV to Memo from MD Meadows to District Managers (July 18, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2) (emphasis in original).
This form letter appears to have been derived from a letter sent to Rozier Machinery Co. from the Jacksonville District Manager. See infra note 66, and accompanying text; Letter from RF Noonan to Dabo Dabasinskas, Rozier Machinery Co. (Feb. 20, 1986), Ex. # 3.28c to Volpp's Response (Vol. 2). That dealer responded by objecting to "the threatening nature of the letter." Letter from G. Robert Blanchard to RF Noonan (March 13, 1986), Ex. # 3.28d to Volpp's Response (Vol. 2); but see Aff. of G. Robert Blanchard, Ex. # 73 to Caterpillar's Motion (Vol. II) ("In retrospect, my language [about the `threatening nature' of Mr. Noonan's letter] was poorly chosen. I knew Mr. Noonan was not threatening me or the dealership in a literal sense."). The dealership subsequently terminated purchases of all non-genuine parts. See Letter from Chuck Bacon to Bob McCreary (March 4, 1986), Ex. # 3.28d to Volpp's Response (Vol. 2); see also Letter from RF Noonan to Dabo Dabasinskas (May 2, 1986), Ex. # 3.28e to Volpp's Response (Vol. 2).
[31] "Summary ... [of] successful attempt at encouraging one dealer to source only genuine CAT parts" (June 11, 1986), Attachment IV to Memo from MD Meadows to District Managers (July 18, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2).
[32] Id.
[33] Id. (emphasis added).
[34] Id. (emphasis added).
[35] Id.
[36] See Letter from "A concerned but loyal Caterpillar dealer" to Mr. George Schaefer (Aug. 15, 1986), Ex. # 3.40 to Volpp's Response (Vol. 2).
[37] Id.
[38] D.V. Fites Comments at September 1986 NACD Meeting, Ex. # 3.40 to Volpp's Response (Vol. 2) (emphasis added).
[39] Decl. of Larry Gray, Ex. # 1.0 to Volpp's Response (Vol. 1).
[40] Only two of Caterpillar's seventy-eight affidavits lack such a statement. See Aff. of Gregory Poole, Jr., Ex. # 26 to Caterpillar's Motion (Vol. I); Aff. of John R. Traynham, Ex. # 76 to Caterpillar's Motion (Vol. II).
[41] See, e.g., Pl.'s Second Resp. to Caterpillar's First Request for Admissions, Ex. # 80 to Caterpillar's Motion (Vol. III); Confidential Testimony of Donald V. Fites, Ex. # 83 to Caterpillar's Motion (Vol. III); Confidential Testimony of David Lewis, Ex. # 84 to Caterpillar's Motion (Vol. III).
[42] See Dep. of Craig Walter Kugler, Ex. # 89 to Caterpillar's Motion (Vol. III).
[43] Some of Volpp's evidence indicates that in communicating with dealers Caterpillar emphasized that dealers were free to make their own business decisions. See Letter from DP Walsh to Omer Lamkin (Nov. 19, 1984), Ex. # 3.8 to Volpp's Response (Vol. 1) ("we are acutely aware Whayne Supply Company is an independent business and as such has the right to sell any product, to any customers in any area") ("We have no desire to `force' our dealers into buying genuine parts solely as a method of extending our profitability"); Memo from JG Evans to RP Bonati (July 31, 1985), Ex. # 3.16 to Volpp's Response (Vol. 1) ("I made myself clear that Taylor Machinery Company could sell to whomever they chose"); Memo from JG Evans to RP Bonati (Aug. 22, 1985), Ex. # 3.16 to Volpp's Response (Vol. 1) ("I made myself clear that Taylor Machinery Company could represent any product (or parts) line they wished"); "`Loyalty' It's Not a One Way Street," attached to Memo from MD Meadows to District Managers (April 2, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2) ("We have no control over dealers' decisions to sell or not sell competitive parts"); "Summary ... [of] successful attempt at encouraging one dealer to source only genuine CAT parts" (June 11, 1986), Attachment IV to Memo from MD Meadows to District Managers (July 18, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2) ("At the conclusion of the meeting, it was made clear that the dealer was free to represent any product (or parts) line they wished").
[44] Volpp has submitted a motion to strike affidavits and Caterpillar has submitted a motion in limine which it wishes to have considered together with the instant motion for summary judgment. At issue in both motions is the admissibility of certain dealer affidavits, unfair competition reports and sales call reports submitted in connection with the instant motion for summary judgment.
The parties have stipulated and agreed that "it would be onerous for the Court to make individual rulings on the admissibility of all or part of each such dealer affidavit, unfair competition report or sales call report proffered by the parties." Stipulation and Order at 2 (filed June 16, 1994). Thus, for purposes of the instant motion for summary judgment, the parties have agreed "to relinquish any right that they may have to such individual rulings." Id. But, should either party find a need for specific individual rulings, a motion to that effect may be filed.
[45] See, e.g., Memo from RJ Gutierrez (Nov. 7, 1985), Ex. # 3.24 to Volpp's Response (Vol. 1); Memo from BR Clough (Nov. 5, 1985), Ex. # 3.24 to Volpp's Response (Vol. 1); Letter from DP Walsh to Omer Lamkin, Whayne Supply Co. (Dec. 14, 1984), Ex. # 3.8a to Volpp's Response (Vol. 1); Dep. of J. William Pullen, Ex. to Pl.'s Supp.Mem. to Caterpillar Inc.'s Mot. for Summ.J. ("Volpp's Supp. Response").
[46] In response to requests for admissions, Volpp has admitted that "[i]t is reasonable for Caterpillar to protect the integrity of its warranty system by refusing to honor claims that do not involve the failure of genuine Caterpillar parts." Pl.'s Second Resp. to Caterpillar's First Request for Admissions ¶ 423, Ex. # 80 to Caterpillar's Motion (Vol. III). Volpp has also admitted that "[i]t is reasonable for Caterpillar to protect the integrity of its annual parts return program by refusing to accept the return of non-genuine parts." Pl.'s Second Resp. to Caterpillar's First Request for Admissions ¶ 425, Ex. # 80 to Caterpillar's Motion (Vol. III).
[47] See, e.g., Memo from JM DeLuca to JG Evans (Nov. 26, 1985), Ex. # 3.16 to Volpp's Response (Vol. 1) & Ex. # 3.18 to Volpp's Response (Vol. 1) ("sanctions"); Synopsized minutes of Oct. 27-31 Worldwide Marketing Management Meeting in Galesburg, attached to Memo from RJ Gutierrez to DV Fites (Nov. 7, 1985), Ex. # 3.24 to Volpp's Response (Vol. 1) ("persuasive measures"); Memo from BR Clough to RJ Gutierrez (Nov. 5, 1985), Ex. # 3.24 to Volpp's Response ("persuasive measures"); Memo from BR Clough to RC Brown, FP Cholat, RJ Jacobson, DW Lahti, JT McCabe, & HC Neilson (Feb. 7, 1986), Ex. # 3.26 to Volpp's Response (Vol. 1) ("punitive measures").
[48] See, e.g., Memo from DE Moore to District Managers (Dec. 11, 1984), Ex. # 3.9 to Volpp's Response (Vol. 1) ("We expect dealers to purchase their parts and remanufactured components from Caterpillar sources") (emphasis added); Memo from TE Headington to JD Keenan (Aug. 15, 1985), Ex. # 3.15 to Volpp's Response (Vol. 1) ("CTCo. should take an official position strongly discouraging dealer sourcing non-genuine parts where a genuine Caterpillar part is available to the dealer from Caterpillar") (emphasis added); Memo from JM DeLuca to JG Evans (July 24, 1985), Ex. # 3.16 to Volpp's Response (Vol. 1) ("we should demand Taylor [Machinery Co.] remove all non-genuine parts from their main and branch stores within five working days") (emphasis added).
See also Memo from JD Keenan to RC Brown, FP Cholat, PR Dalton, DW Lahti, MD Meadows, H Neilson and BM Smith (Nov. 5, 1985), Ex. # 3.26 to Volpp's Response (Vol. 1). This memo requests input on several items, including ideas for increasing incremental sales. Those ideas are attached to the memo on a sheet styled, "Some Additional Potential Incremental Sales Possibilities." One idea listed on the sheet is "Regain dealer sourcing loyalty." An unknown individual has crossed through the word "Regain" and has written the following below: "Not regain, but demand should not even be open to discussion" (emphasis added).
[49] See, e.g., Memo from TE Headington to JD Keenan (Aug. 15, 1985), Ex. # 3.15 to Volpp's Response (Vol. 1) ("District is taking a strong posture [with Taylor Machinery Co.] and fully expects the dealer's commitment to stop.") (emphasis added); Memo from JG Evans to RP Bonati (Aug. 9, 1985), Ex. # 3.16 to Volpp's Response (Vol. 1) ("Jon Thompson and Ed Newton ... were confronted regarding their involvement in selling competitive parts and their active pursuit of parts, service, and machine sales outside their service territory. Although he initially denied participation in this activity, Jon later confessed his intent ... when confronted with overwhelming evidence") (emphasis added).
[50] See, e.g., Memo from RD Page to BR Clough (Oct. 22, 1985), Ex. # 3.27 to Volpp's Response (Vol. 2) ("Ultimately there is still no identified basis for enforcement short of threat of cancellation.").
[51] See "1983 Dealer Principal Meetings," p. 9, Ex. # 3.0 to Volpp's Response (Vol. 1); see also "`Loyalty' It's Not a One Way Street," attached to Memo from MD Meadows to District Managers (April 2, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2); Sample Letter, Attachment IV to Memo from MD Meadows to District Managers (July 18, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2); "Summary ... [of] successful attempt at encouraging one dealer to source only genuine CAT parts" (June 11, 1986), Attachment IV to Memo from MD Meadows to District Managers (July 18, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2).
[52] Id.
[53] Hubert Dep., pp. 37-43; Trosclair Dep., pp. 15-16, 71-73, 78.
[54] Hubert Dep. at 37-43.
[55] Hubert Dep. at 44.
[56] Hubert Dep., pp. 53-55.
[57] Dep. of William Gerald Grimsley, Jr., Ex. # 3.39 to Volpp's Response (Vol. 2).
[58] Id.
[59] See supra notes 7-10, and accompanying text.
[60] Memo from TE Headington to JD Keenan (Aug. 15, 1985), Ex. # 3.15 to Volpp's Response (Vol. 1).
[61] Memo from Jeff Alt to John Chalmers (September 9, 1985), Ex. # 5 to Dep. of John C. Chalmers, Volpp's Supp. Response.
[62] Id.
[63] Id.
[64] Dep. of James T. Badger, Ex. # 3.28b to Volpp's Response (Vol. 2).
[65] Id.
[66] Letter from RF Noonan to Dabo Dabasinskas (Feb. 20, 1986), Ex. # 3.28c to Volpp's Response (Vol. 2) (emphasis in original). As noted, this letter appears to be the source for a "sample letter" sent to all district managers as a model for addressing the problem of alternatively sourced parts with dealers. See supra note 30, and accompanying text; Sample Letter, Attachment IV to Memo from MD Meadows to District Managers (July 18, 1986), Ex. # 3.36 to Volpp's Response (Vol. 2).
[67] Letter from G. Robert Blanchard to R.F. Noonan (March 8, 1986), Ex. # 3.28d to Volpp's Response (Vol. 2). See supra note 29. Mr. Blanchard subsequently recanted his objection to Mr. Noonan's letter. Aff. of G. Robert Blanchard, Ex. # 73 to Caterpillar's Motion (Vol. II) ("In retrospect, my language [about the `threatening nature' of Mr. Noonan's letter] was poorly chosen. I knew Mr. Noonan was not threatening me or the dealership in a literal sense").
[68] Dep. of James T. Badger, Ex. # 3.28b to Volpp's Response (Vol. 2).
[69] Letter from Chuck Bacon to Bob McCreary (March 4, 1986), Ex. # 3.28d to Volpp's Response (Vol. 2).
[70] Id.
[71] See supra notes 8-11, and accompanying text.
[72] Memo from TE Headington to JD Keenan (Aug. 15, 1985), Ex. # 3.15 to Volpp's Response (Vol. 1).
[73] Memo from JG Evans to RP Bonati (Aug. 9, 1985), Ex. # 3.16 to Volpp's Response (Vol. 1).
[74] Id.
[75] Memo from JG Evans to RP Bonati (July 31, 1985), Ex. # 3.16 to Volpp's Response (Vol. 1) (emphasis added); see also Memo from JG Evans to RP Bonati (Aug. 22, 1985), Ex. # 3.16 to Volpp's Response (Vol. 1).
[76] Memo from JM DeLuca to JG Evans (Nov. 26, 1985), Ex. # 3.16 to Volpp's Response (Vol. 1) and Ex. # 3.18 to Volpp's Response (Vol. 1).
[77] Memo from JG Evans to MD Meadows (Dec. 12, 1985), Ex. # 3.18 to Volpp's Response (Vol. 1).
[78] Decl. of Bill Caudy (filed March 9, 1992).
[79] Id.
[80] Id.
[81] Letter from DP Walsh to Omer Lamkin (Nov. 19, 1984), Ex. # 3.8 to Volpp's Response (Vol. 1).
[82] Id.
[83] Letter from Omer Lamkin to Dan Walsh (Dec. 14, 1984), Ex. # 3.8a to Volpp's Response (Vol. 1).
[84] Letter from DP Walsh to Omer Lamkin (Feb. 14, 1985), Ex. # 3.8a to Volpp's Response (Vol. 1).
[85] Id.
[86] Id.
[87] Memo from Frank Applegate to Byrl Bell (July 31, 1985), Ex. # 3.8b to Volpp's Response (Vol. 1).
[88] Id.
[89] Id.
[90] Memo from D Waddilove to MD Meadows (Aug. 7, 1985), Ex. # 3.8b to Volpp's Response (Vol. 1).
[91] Section 1 of the Sherman Act provides as follows:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and on conviction thereof, shall be punished by fine not exceeding one million dollars if a corporation, or if any other person, one hundred thousand dollars, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.
15 U.S.C. § 1 (1985). The punishments provided for in this provision were increased by amendment in 1990. See Antitrust Amendments Act of 1990, Pub.L. No. 101-588, § 4(a), 104 Stat. 2879, 2880 (1990) (now codified at 15 U.S.C. § 1). The amended provisions are not applicable to the instant complaint.
[92] Section 3 of the Clayton Act provides as follows:
It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies or other commodities ... or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale or such condition, agreement or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.
15 U.S.C. § 14 (1985).
[93] Section 4 of the Clayton Act provides, in pertinent part, as follows:
(a) Amount of recovery; prejudgment interest.... [A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor ... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee. The court may award under this section, pursuant to a motion by such person promptly made, simple interest on actual damages for the period beginning on the date of service of such person's pleading setting forth a claim under the antitrust laws and ending on the date of judgment, or for any shorter period therein, if the court finds that the award of such interest for such period is just in the circumstances. In determining whether an award is just in the circumstances, the court shall consider only
(1) whether such person or the opposing party, or either party's representative, made motions or asserted claims or defenses so lacking in merit as to show that such party or representative acted intentionally for delay, or otherwise acted in bad faith;
(2) whether, in the course of the action involved, such person or the opposing party, or either party's representative, violated any applicable rule, statute, or court order providing for sanctions for dilatory behavior or otherwise providing for expeditious proceedings; and
(3) whether such person or the opposing party, or either party's representative, engaged in conduct primarily for the purpose of delaying the litigation or increasing the cost thereof.
15 U.S.C. § 15 (1985).
[94] Section 16 of the Clayton Act provides, in pertinent part, as follows:
Injunctive relief for private parties; exception; costs. Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, ... when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue.... In any action under this section in which the plaintiff substantially prevails, the court shall award the cost of suit, including a reasonable attorney's fee, to such plaintiff.
15 U.S.C. § 26 (1985).
[95] See also Business Electronics, 485 U.S. at 723, 108 S.Ct. at 1518-19 ("[P]er se rules are appropriate only for conduct that is manifestly anticompetitive"); Lie, 964 F.2d at 569 ("[A per se violation involves an] agreement[] whose nature and necessary effect [is] so plainly anticompetitive, no elaborate study of the industry is needed to establish its illegality"); National Soc'y of Professional Eng'rs v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365-66, 55 L.Ed.2d 637 (1978); National Collegiate Athletic Ass'n v. Bd. of Regents of Univ. of Oklahoma, 468 U.S. 85, 103-104, 104 S.Ct. 2948, 2961-2962, 82 L.Ed.2d 70 (1984) ("Per se rules are invoked when surrounding circumstances make the likelihood of anticompetitive conduct so great as to render unjustified further examination of the challenged conduct.").
[96] Even if the prices have been increased to some degree, this fact only aids the plaintiff's competitive position with consumers. The higher the prices that Caterpillar charges for its parts, the more likely the consumer will shop elsewhere (i.e., look to Caterpillar's competitors).
[97] The Smith Machinery scenario is not the typical vertical restraint because competitors can still sell their products to the dealer, while they arguably cannot in the instant case. See Smith Machinery, 878 F.2d at 1295 n. 5 ("In this particular case, the alleged line forcing might better be termed a vertical `arrangement' rather than `restraint' since Smith was not prohibited from carrying the product lines of competitors as it would be under an exclusive dealing arrangement, the classic `vertical restraint.'"). Nevertheless, the Tenth Circuit's analysis is still relevant here, and its relevance is demonstrated by the applicability of the Smith Machinery analysis to the Taylor case which is very similar to this case. In Taylor, the dealer was prohibited from buying patty paper from Hollymatic's competitors like the dealers in this case; a typical vertical non-price restraint. Yet, despite that difference between Smith Machinery and Taylor, Taylor was still decided on the same basis and consistent with the same principles as Smith Machinery. Therefore, the fact that this case is distinguishable from Smith Machinery in that all competitors were allegedly foreclosed from selling parts to Caterpillar dealers does not undermine the relevancy of the Smith Machinery analysis to this case.
[98] See Taylor, 28 F.3d at 1384 ("It [the agreement between Taylor and Hollymatic] was in effect an exclusive-dealing agreement in which Hollymatic required Taylor to sell Hollymatic, and only Hollymatic, patty paper.").
[99] This court is not convinced that even typical tying arrangements should be subject to per se analysis and would likely agree with Justice O'Connor's concurring opinion in Jefferson Parish. See Jefferson Parish, 466 U.S. at 34-35, 104 S.Ct. at 1569-1570 (O'Connor, J. concurring) (arguing in favor of abandoning per se test for tying arrangements and applying rule of reason analysis instead). However, the law in its current form retains quasi-per se treatment for some tying claims. See id at 18-19, 104 S.Ct. at 1561-1562.
[100] Caterpillar dealers have not completely stopped purchasing non-genuine parts. Many dealers still use such parts in emergency situations and others still use them on occasion. See e.g., Blake Quinn Aff. (Dealer principal of Quinn Co., a California Caterpillar dealership) (noting dealership's policy of using non-genuine parts on occasion if the part is unavailable from Caterpillar, if a customer requests a non-genuine part on a particular job, or due to price considerations). It is notable that Volpp has not been completely cut out of the Caterpillar dealership "mini-market," and Caterpillar has never terminated a dealership for stocking non-genuine parts.
[101] The Sales and Service Agreement between Caterpillar and its dealers contains no provision that expressly requires the purchase of replacement parts in order to also buy Caterpillar equipment. Plaintiff alleges, however, that the contract's mandate to "adequately promote the sale of Caterpillar products" and its provision that dealer affiliation with other organizations that are "substantial operator[s] of products" would adversely affect that obligation to promote Caterpillar products, amounts to the express conditioning necessary to set out a tying arrangement. Such strong language, although indicative of Caterpillar's serious commitment to regaining lost sales of replacement parts, is not an express tie. There is nothing in the language of the agreement that absolutely requires Caterpillar dealers to stock only genuine parts. For that reason, plaintiff cannot prove that an express tying agreement between Caterpillar and its dealers exists.
[102] Commentators have recognized that Jefferson Parish limited the scope of the per se rule. See e.g., Daniel E. Lazaroff, Reflections of Eastman Kodak Co. v. Image Technical Services, Inc.: Continued Confusion Regarding Tying Arrangements and Antitrust Jurisprudence, 69 Wash. L.Rev. 101, 114 (1994) ("The shift in the Supreme Court's general attitude regarding tying arrangements became strikingly evident in Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984). In Hyde, four justices concurred with a five justice majority and specifically called for a repudiation of any per se approach to tie-ins. These four justices were, in essence, calling for rule of reason treatment of tie-ins as just another non-price vertical restraint. Even the majority, which did not wish to repudiate the per se approach, severely limited its applicability.").
[103] The court will not discuss each individual act of alleged "coercion," but the typical instances reflect the type of conduct alleged and suffice to explain the court's conclusion.
[104] The court notes that plaintiff has not provided any testimony from the more than 70 dealer principals that plaintiff claims were coerced. Instead, plaintiff focused its discovery on low-level employees in dealer parts departments even though plaintiff's expert conceded the relevance of dealer testimony on the issue of coercion. Kyler Tr. 463, Ex. 89.
[105] Because the court has already held that no unlawful tying arrangement exists in this case, it need not reach the antitrust injury or damages issues.
[106] Tenn.Code Ann. § 47-25-101 provides as follows: All arrangements, contracts, agreements, trusts, or combinations between persons or corporations made with a view to lessen, or which tend to lessen, full and free competition in the importation or sale of articles imported into this state, or in the manufacture or sale of articles of domestic growth or of domestic raw material, and all arrangements, contracts, agreements, trusts, or combinations between persons or corporations designed, or which tend to advance, reduce, or control the price or the cost to the producer or the consumer of any such product or article, are declared to be against public policy, unlawful and void.
[107] Tenn.Code Ann. § 47-25-106 provides as follows:
Any person who is injured or damaged by any such arrangement, contract agreement, trust, or combination, described in this part may sue for and recover, in any court of competent jurisdiction, of any person operating such trust or combination, the full consideration or sum paid by him for any goods, wares, merchandise, or articles, the sale of which is controlled by such combination or trust.
[108] The court further notes that even if Tennessee law applied, plaintiff's claim for intentional interference with prospective economic advantage would fail because that tort has never been recognized by the Tennessee courts. See Chilton Air Cooled Engines, Inc. v. Omark Indus., Inc., 721 F.Supp. 151, 156 (M.D.Tenn.1988) (finding that Tennessee has not developed any case law concerning interference with prospective business relations). Although the Tennessee courts have never expressly rejected such a cause of action, Quality Auto Parts v. Bluff City Buick, 876 S.W.2d 818, 823-24 (Tenn.1994) ("We conclude that the question of whether Tennessee law recognizes the tort of intentional interference with prospective economic advantage should be postponed to another day"), this court declined to create a cause of action for interference with economic advantage in Valley Prods. Co., Inc. v. Landmark, 877 F.Supp. 1087 (W.D.Tenn.1994). Because such a claim does not presently exist under Tennessee law, this court would once again decline to create a cause of action that has never before been recognized. See Chilton Air, 721 F.Supp. at 156 (dismissing claim because "Tennessee has not recognized tort of interference with prospective business relations.").
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438 F.2d 248
WASHINGTON GAS LIGHT COMPANY, Appellee,v.VIRGINIA ELECTRIC AND POWER COMPANY, Appellant.
No. 14605.
United States Court of Appeals, Fourth Circuit.
Argued November 9, 1970.
Decided February 12, 1971.
Milton Handler, New York City (Michael D. Blechman, and Kaye, Scholer, Fierman, Hays & Handler, New York City, George D. Gibson, Lewis T. Booker, Michael W. Maupin, and Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on brief), for appellant.
Herbert A. Bergson, Washington, D. C. (Howard Adler, Jr., Norman G. Knopf, Bergson, Borkland, Margolis & Adler, John J. Wilson, and Whiteford, Hart, Carmody & Wilson, Washington, D. C., James H. Simmonds, and Simmonds, Coleburn, Towner & Carman, Arlington, Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, MURRAH, Senior Circuit Judge,* and CRAVEN, Circuit Judge.
CRAVEN, Circuit Judge:
1
This is an appeal from a decision of the district court holding certain practices of the Virginia Electric and Power Company (VEPCO) to be per se violations of Section I of the Sherman Act, 15 U.S.C. § 1, and also violations of Section 3 of the Clayton Act, 15 U.S.C. § 14. Two issues are presented to us either of which may be decisive of the appeal. One is whether the complained of practices by VEPCO are "state action" and therefore exempt from the purview of federal antitrust legislation. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L. Ed. 315 (1943). The other is whether VEPCO sold only one product, electricity, so as to take the case out of the tiein doctrine of Fortner Enterprises, Inc. v. United States Steel Corporation, 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969). We decide both issues in favor of VEPCO and reverse.
I.
2
VEPCO is a state regulated utility supplying electricity to areas of Virginia also served by the plaintiff gas utility, Washington Gas Light Company. Prior to 1960, practically all residences served by VEPCO obtained electrical power through overhead distribution lines. These lines were relatively inexpensive to install and were provided by VEPCO at no charge to new home builders. Early in the 1960's installation of underground service lines became increasingly popular. Until 1963, VEPCO agreed to install "underground residential distribution" (URD) lines instead of the common overhead variety if the builder agreed to pay the additional expenses involved, usually amounting to a sum around $280.
3
In 1963 VEPCO began the first in a series of all-electric house plans designed to make it more attractive for the builder to install electric appliances in their new homes to the exclusion of the competing utility — natural gas. Washington Gas Light Company complains that these programs violated the Sherman and Clayton Acts. The district court's findings reveal that the first plans offered URD installation free of charge if the builder went "all electric," or at a substantially reduced rate if he went all electric except for heating and provided his own trenching and backfilling.
4
The state legislature in 1966 by statutory amendment specifically required Virginia's utility regulatory body, the State Corporation Commission (SCC), to investigate the "promotional allowances and practices of public utilities and [to] * * * take such action as such investigation may indicate to be in the public interest."1 After the Commission's subsequent disapproval of the earlier VEPCO plans, new programs were instituted giving credit on URD installation based on anticipated electrical usage. The anticipated consumption was computed through tables listing annual kilowatt hours used by various home appliances. The larger the estimated usage, the larger the credit against URD installation charges. The practical effect of going all electric under the new plan was the same as under the old — the credit given for residences going "all electric" was usually sufficient to cover the entire cost of URD installation. Subsequently, VEPCO's base installation charges were considerably reduced and remained in effect until March of 1970 when the lower court's prohibition became effective.2
5
The result of VEPCO's installation campaign was that significant inroads were made into areas previously dominated by the use of natural gas — home heating, water heating, and cooking.
6
The district court found the VEPCO plans per se violations of Section I of the Sherman Act as illegal "tying arrangements" and also violations of Section 3 of the Clayton Act as exclusive dealing arrangements without consideration of the Parker, supra, exemption. It is urged upon us that since the district court did not consider the application of Parker, neither should we. Desert Palace, Inc. v. Salisbury, 401 F. 2d 320, 323-324 (7th Cir. 1968). We think the rigid application of such a rule of procedure is inappropriate where the record provides an adequate basis for consideration on the merits. As the Supreme Court stated in Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941):
7
Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.
8
Accord, Dudley v. Inland Mutual Insurance Co., 299 F.2d 637 (4th Cir. 1962). Indeed, if deemed necessary to reach the correct result, an appellate court may sua sponte consider points not presented to the district court and not even raised on appeal by any party. See, e. g., United States v. Continental Can Co., 378 U. S. 441, 457, 470, 84 S.Ct. 1738, 12 L.Ed. 2d 953 (1964). In Parker the Court held a 1940 California raisin marketing program conducted by a state commission permissible even assuming the action would have been violative of the antitrust laws had the same plan been adopted by private individuals operating outside the state's direction.
9
We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. * * * [I]t is the state, acting through the Commission, which adopts the program and which enforces it with penal sanctions, in the execution of a governmental policy.
10
317 U.S. at 350-352, 63 S.Ct. at 313-314.
11
To find shelter under Parker, the acts complained of must be the result of state action, either by state officials or by private individuals "under the active supervision" of the state, Allstate Insurance Company v. Lanier, 361 F.2d 870, 872 (4th Cir. 1966),3 although proposals may originate privately if their execution depends on state regulation or actual state implementation. Parker, supra, 317 U.S. at 352, 63 S.Ct. at 307.
12
The teaching of Parker v. Brown is that the antitrust laws are directed against individual and not state action. When a state has a public policy against free competition in an industry important to it, the state may regulate that industry in order to control or, in a proper case, to eliminate competition therein. It may even permit persons subject to such control to participate in the regulation, provided their activities are adequately supervised by independent state officials.
13
Asheville Tobacco Board of Trade, Inc. v. FTC, 263 F.2d 502, 509 (4th Cir. 1959).
14
If the exemption is to be applied to a regulated industry, such as a state utility, then it can extend only to those activities which fall under state supervision. See Wainwright v. National Dairy Products, Corp., 304 F.Supp. 567, 574-575 (N.D.Ga.1969). The regulatory agency must be a creature of the state and not one whose activities are governed by private agreement without any real state control. Sun Valley Disposal Co. v. Silver State Disposal Co., 420 F.2d 341, 342 (9th Cir. 1969); E. W. Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52, 55 (1st Cir. 1966); Allstate Insurance Co. v. Lanier, supra.
15
The Virginia State Corporation Commission is without question a proper state agency to qualify under Parker. Section 155 of the Virginia State Constitution makes explicit provision for the SCC giving it the power, among other things, to prescribe utility rates and, subject to the authority of the state legislature, to regulate other non-specified corporate utility activities. Sections of the Virginia Code provide a detailed system of regulatory powers and procedures whereby administrative action may be taken and reviewed with respect to "rates, tolls, charges, schedules," etc.4
16
There can be no doubt, and in fact Washington Gas Light does not argue to the contrary, that the SCC is a regulatory arm of the state, possessing both the authority and powers necessary to qualify under Parker. Instead, the gas company argues that even though the SCC was aware of VEPCO's URD activities before 1966, it made no investigations and gave no affirmative approval (or disapproval) of the VEPCO plans, and that VEPCO's conduct was therefore "individual" and not "state" action. The argument is not without merit but the conclusion is not inevitable unless one equates administrative silence with abandonment of administrative duty. It is just as sensible to infer that silence means consent, i. e., approval. Indeed, the latter inference seems the more likely one when we remember that even the gas company concedes that the SCC possessed adequate regulatory powers to stop VEPCO if it chose to do so, and that eventually SCC spoke affirmatively and first modified and finally ended the promotional practices upon which the suit was based. The antitrust laws are a poor substitute, we think, for plaintiff's failure to promptly protest to the SCC and to seek the administrative remedy ultimately shown to have been available and effective. We think VEPCO's promotional practices were at all times within the ambit of regulation and under the control of SCC, and we hold these practices exempt from the application of the laws of antitrust under the Parker doctrine.
II.
17
"There is, at the outset of every tie-in case, including the familiar cases involving physical goods, the problem of determining whether two separate products are in fact involved." Fortner Enterprises v. United States Steel Corporation, 394 U.S. 495, 507, 89 S.Ct. 1252, 1260, 22 L.Ed.2d 495 (1969).
18
Alternatively, we rest our decision upon the very difficult determination of this ultimate question of fact. In Fortner five members of the Supreme Court concluded that the extension of credit on favorable terms for the purchase of real property in an amount totaling over two million dollars by a wholly owned subsidiary of the United States Steel Corporation was a separate tying product resulting in compulsion to buy prefabricated buildings (to be erected on the purchased property) from United States Steel. Although the Court did not lay down any general test for finding two products in a given case, it did discuss various factors which may have entered into the decision, including these:
19
1. The credit offered and the prefabricated buildings were each supplied by a separate corporation.5
20
2. The tied product (prefabricated buildings) were sold at an artificially high price — some $400 more than a competitive product of similar quality.
21
3. The credit obtained was in excess of that needed to purchase the desired real property, and included enough to finance the artificially inflated cost of prefabricated houses.
22
4. The loans totaling over two million dollars could not be obtained on any terms unless the prefabricated homes were bought exclusively from United States Steel Corporation.
23
5. The price of the tied product, prefabricated buildings, was not a regulated price, and United States Steel was as free to further its market penetration by price reduction as by offering uniquely advantageous credit.
24
It seems to us that VEPCO sold only one product — electricity. The delivery of that product has always been an ancillary and necessary part of the business of producing and selling electrical power. This was simply a new method of delivery but paid for in the old way, i. e., "free" to the customer. There was no separate market for the installation of underground wiring as there was a separate market for credit in Fortner. That there are not dual markets strongly suggests there are not separate products. See Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 614, 73 S.Ct. 872, 97 L.Ed. 1277 (1953).
25
Even in Fortner, four members of the Court thought that United States Steel was selling one product, namely prefabricated buildings, and that the provision of credit on a large scale to finance the purchase of land (not just the buildings) was simply an ancillary service in connection with making the sale. The dissenters noted that
26
[a]lmost all modern selling involves providing some ancillary services in connection with making the sale — delivery, installation, supplying fixtures, servicing, * * *. Customarily — indeed almost invariably — the seller offers these ancillary services only in connection with the sale of his own products, and they are often offered without cost or at bargain rates.
27
394 U.S. at 525, 89 S.Ct. at 1270. (Emphasis added.)
28
Unlike United States Steel's inflated price of the tied product (prefabricated homes) VEPCO's rates for home heating and consumption of electricity, although higher than the rates for gas which would do the same job, were not arbitrarily inflated but had been approved by the Corporation Commission. There was nothing "artificial" about the price of electricity as there was with respect to the price of the prefabricated homes.
29
Finally, the ultimate effect of the Fortner type monopoly was to sell the tied prefabricated homes at an artificial inflated price in a market where the same identical prefabricated houses of similar quality could have been obtained by the consumer at a cost $400 cheaper. Washington Gas' competing product is not identical or even necessarily of the same quality in the subjective sense. Some consumers may prefer electricity despite the greater heating efficiency of gas. Some may not want to be bothered with two monthly bills from two different companies and two problems of maintenance and repair of two different systems. Electricity is simply different from gas and may be subjectively preferred by a consumer despite its higher cost and the latter's greater efficiency. Whether such a preference, if it exists, is a permissible one in our economy can better be determined by the expertise of a regulatory agency than random application of antitrust laws.
30
In Gas Light Co. of Columbus v. Georgia Power Co., 313 F.Supp. 860, 869 (M.D.Ga.1970), Judge Elliott considered and discussed the decision below in this case:
31
The curious thing about the opinion is the Court's assumption that underground residential distribution and electricity are two separate products, so that one can be tied to the other as computer cards were tied to IBM machines in International Business Machines Corp. v. United States, 298 U.S. 131, 56 S.Ct. 701, 80 L.Ed. 1085 (1936). To my mind, Underground Residential Distribution is merely a method by which a product — electricity — is delivered to the consumer. It might be compared to a department store's delivery of merchandise bought by a customer living fifteen miles out in the country — if that customer bought a single necktie it is doubtful the store would treat the delivery the same way it would if the customer bought a wardrobe. Underground Residential Distribution is ancillary to both the seller and buyer of the product, in much the same way as a free meal given to an airline passenger is ancillary to the sale of an airline ticket. Therefore, it is difficult to see how there could be a separate tying product in the commercial sense, or how such a case could be fit within the tying clause concept.
32
With the greatest respect for the decision of the district judge, we nevertheless think that his ultimate finding of fact that there were two separate products was clearly erroneous and mistaken.
33
We suggest that the rationale and underlying purpose of both the Sherman and Clayton Acts is to prevent monopoly where it is not in the public interest. It has long since been established that both gas and electricity can best be produced and distributed (and the public benefited) by monopoly under state regulation. The problem here is not one of preventing monopoly as in Fortner, but of making lawful monopoly work best in the public interest. Doubtless, we think, SCC can do a better job than private piecemeal application of laws aimed against monopoly.
34
Reversed.
Notes:
*
Of the Tenth Circuit, sitting by designation
1
Va.Code Ann. § 56-247 (1969)
2
In April of 1970 the SCC issued an order prohibiting all promotional allowances of utilities, but allowed commitments made under prior plans to be fulfilled. Thus our decision is of no great consequence for the future. Presumably VEPCO has discontinued the practices which are the basis for this suit
3
See also Woods Exploration & Production Company v. Aluminum Company of America, 284 F.Supp. 582, 588-589 (S.D. Tex.1968)
4
§ 56-235. When Commission may fix rates, schedules, etc. — If upon investigation the rates, tolls, charges, schedules, or joint rates of any public utility operating in this State shall be found to be unjust, unreasonable, insufficient or unjustly discriminatory or to be preferential or otherwise in violation of any of the provisions of law, the State Corporation Commission shall have power to fix and order substituted therefor such rate or rates, tolls, charges or schedules as shall be just and reasonable. (Code 1919, § 4071.)
§ 56-236. Public utilities required to file, etc., schedules of rates and charges; rules and regulations. — Every public utility shall be required to file with the Commission and to keep open to public inspection schedules showing rates and charges, either for itself, or joint rates and charges between itself and any other public utility. Every public utility shall file with, and as a part of, such schedules, copies of all rules and regulations that in any manner affect the rates charged or to be charged. (Code 1919, § 4066; 1918, p. 674; 1924, p. 538; 1927, p. 123.)
§ 56-238. Suspension of proposed rates, etc.; investigation; fixing reasonable rates, etc. — The Commission, either upon complaint or on its own motion, may suspend the enforcement of any or all of the proposed rates, tolls, charges, rules or regulations, for a period not exceeding sixty days, during which time it shall investigate the reasonableness or justice of the proposed rates, tolls, charges, rules and regulations and thereupon fix and order substituted therefor such rates, tolls, charges, rules and regulations as shall be just and reasonable. * * * (Emphasis added) (Code 1919, § 4066; 1918, p. 674; 1924, p. 539; 1927, p. 123.)
§ 56-239. Appeal from action of Commission. — The public utility whose schedules shall have been so filed or the Commonwealth or other party in interest may appeal to the Supreme Court of Appeals from such decision or order as the Commission may finally enter. * * * (Code 1919, § 4066; 1918, p. 674; 1924, p. 539; 1927, p. 124.)
§ 56-247. Commission may change regulations, measurements, practices, services, or acts. — If upon investigation it shall be found that any regulation, measurement, practice, act or service of any public utility complained of is unjust, unreasonable, insufficient, preferential, unjustly discriminatory or otherwise in violation of law or if it be found that any service is inadequate or that any reasonable service cannot be obtained, the Commission may substitute therefor such other regulations, measurements, practices, service or acts and make such order respecting, and such changes in, such regulations, measurements, practices, service or acts as shall be just and reasonable.
The Commission shall investigate the promotional allowances and practices of public utilities and shall take such action as such investigation may indicate to be in the public interest. (Code 1919, § 4072; 1966, c. 552.)
5
394 U.S. at 507, 89 S.Ct. 1252
The Court recognized that in some situations a credit offer may be legitimately connected with the sale of a product as "an inseparable part" of the transaction. But it distinguished the Fortner transaction as clearly involving two products because of two facts: the loan and the tied goods were sold by separate corporations, and the loan was for an amount larger than that needed to pay the seller of the tied product.
The Supreme Court, 1968 Term, 83 Harv. L.Rev. 7, 244 (1969).
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853 So.2d 280 (2002)
Ex parte J.A.P., a minor child.
(In re J.A.P. v. STATE of Alabama).
1010263.
Supreme Court of Alabama.
September 6, 2002.
Rehearing Denied November 27, 2002.
*281 Joe W. Morgan III, Birmingham, for petitioner.
William H. Pryor, Jr., atty. gen., and Andy S. Poole and Kristi L. Deason, asst. attys. gen., for respondent.
WOODALL, Justice.
A delinquency petition was filed in the Jefferson Juvenile Court, charging J.A.P., a 14-year-old male, with the attempted first-degree rape of his 9-year-old half sister, L.P. The charge was based on allegations that J.A.P. attempted to commit the offense of first-degree rape, as that offense is defined in § 13A-6-61(a)(1), Ala.Code 1975. See also § 13A-4-2, Ala.Code 1975. Following an evidentiary hearing, the trial court found the charge to be true and adjudicated J.A.P. delinquent.
J.A.P. appealed to the Court of Criminal Appeals, which affirmed the judgment of the trial court. See J.A.P. v. State, 853 So.2d 264 (Ala.Crim.App.2001). After the Court of Criminal Appeals overruled J.A.P.'s application for rehearing, this Court granted J.A.P.'s petition for certiorari review. We reverse and remand.
In its opinion, the Court of Criminal Appeals adequately stated the relevant facts, and the repetition of those facts is not necessary. The delinquency petition alleged, in pertinent part, that "[J.A.P.], a male, did, with the intent to commit the crime of rape in the first degree (Section 13A-6-61 of the Alabama Criminal Code), attempt to engage in sexual intercourse with [L.P.], a female, by forcible compulsion." (Emphasis added.) Section 13A-6-61(a)(1) provides: "A person commits the crime of rape in the first degree if: (1) He or she engages in sexual intercourse with a member of the opposite sex by forcible compulsion." (Emphasis added.) Section 13A-6-60(8), Ala.Code 1975, defines "forcible compulsion" as: "Physical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person."
On appeal, J.A.P. argued that there was insufficient evidence to support the finding that he had used forcible compulsion in an attempt to engage in sexual intercourse with L.P. However, the Court of Criminal Appeals held that the evidence was sufficient to allow the trial court to infer the element of forcible compulsion, and it affirmed the trial court's judgment based upon B.E. v. State, 778 So.2d 863 (Ala.Crim.App.2000). Before this Court, J.A.P. argues that the holding of the Court of Criminal Appeals conflicts with its prior holding in Rider v. State, 544 So.2d 994 (Ala.Crim.App.1989).
In Rider, the Court of Criminal Appeals considered whether a 27-year-old defendant had used forcible compulsion when he sexually abused and sodomized his 9-year-old stepdaughter. The court stated the following relevant facts:
"The defendant is the 27-year-old stepfather of the victim. The victim testified that, when she and the defendant were sitting on the sofa alone, the defendant would put a movie on the VCR showing `people have sex.' She testified that as they watched the movie, the defendant "would force [her] hand on one of his private spots ... [b]etween his *282 legs.' (Emphasis added [in Rider].) After the movie, the defendant `took [her by the hand] back to the bedroom and touched [her] private part[s] ... [b]etween [her] legs and on [her] chest.' When this touching occurred, both the defendant and the victim were undressed. The victim testified that the defendant touched her private part with his mouth and that the defendant `asked' or `made' her touch his private part with her mouth.
"This touching began after the victim's ninth birthday and continued until around her twelfth birthday. The defendant told her not to tell anyone `because he would probably go to jail.' The victim testified that, after each incident, he usually told her he was sorry and promised that it would not happen again.
"When the prosecutor asked the victim if she `voluntarily' performed oral acts on the defendant, the victim did not answer. The victim testified that she tried to `mind' her stepfather because she `liked the way he treated [her], like [she] was his only child,' and she considered him her father. The victim testified that she did not have a father when she was born and when she was `a little baby.' The victim's mother married the defendant when the victim was seven. On direct examination, the victim explained her passive conduct:
"`Q. Okay. The things that Robin did to you, why did you let him do those things to you? Why didn't you scream and yell and scratch him and claw him and all of that? Why did you, you know, just why did you let him do those things to you?
"`A. Because I thought if I would stop, that he wouldn't treat me the way he did.'
"On cross-examination, the victim testified that she knew `it was wrong.' She was `afraid' to tell her mother and did not know how her mother would `react.' She did not tell her grandmother because she `thought it would break her heart.' She did not tell anyone because she did not want the defendant to go to jail. She stated that the defendant had never done anything to make her afraid of him and that she was not afraid of him."
Rider, 544 So.2d at 994-95 (footnote omitted). Regarding forcible compulsion, an element of the offenses of sexual abuse in the first degree and sodomy in the first degree, the Court of Criminal Appeals stated in Rider:
"There are two kinds of forcible compulsion. First, forcible compulsion may be that physical force which overcomes earnest resistance. Second, forcible compulsion may be a threat, either express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person."
544 So.2d at 996. Although the court found evidence indicating that physical force was involved, it found no evidence of any earnest resistance. Also, the Court of Criminal Appeals stated that "it [was] clear that there [was] absolutely no evidence to support [the] second type [of forcible compulsion]." Id.
In Powe v. State, 597 So.2d 721 (Ala.1991), the defendant had been convicted of first-degree rape of his 11-year-old daughter. The sole issue was whether the evidence was sufficient to support the jury's finding that the defendant had had sexual intercourse with his daughter through the use of forcible compulsion. The Court summarized the facts relevant to that issue:
"The record in this case reveals the following pertinent facts: The alleged *283 victim, N.S., testified that Willie Powe is her natural father and that sometime during the month of May 1988, he sexually assaulted her. N.S. was 11 years old at the time of the alleged incident.
"N.S. stated that the incident took place in her parents' bedroom when no one, other than N.S. and her father, was at home. N.S. testified that she and her father had been arm wrestling while she was on the floor and her father was on the bed. She testified that at some point her father told her that it was time to take a nap and that he told her to lie on her mother's side of the bed. N.S. said she did as her father told her, while her father lay on the other side of the bed. Thereafter, N.S. said, Powe told her that he was cold, and she said he told her to get on top of him. Again, N.S. said, she obeyed her father. N.S. further testified that her father physically lifted her up on top of him. She stated that at this point she was lying lengthwise on top of her father.
"N.S. testified that next her father unbuttoned and unzipped her pants, put his hand inside her panties, and touched her pubic hair. N.S. testified, on direct examination, that after her father touched her pubic hair, he then pulled down the hospital-type scrub pants that he was wearing and put his penis inside her vagina. Although this testimony conflicted somewhat with her response to certain questions on cross-examination, N.S. was recalled to the witness stand by the prosecution later in the trial and once again testified that her father did put his penis inside her vagina.
"N.S. testified that after her father had put his penis inside her vagina, he then told her to get up and go and lock the door in the living room, which N.S. did. N.S. stated that she then went back to the bedroom, but that she did not get back on the bed with her father. Rather, N.S. stated, she combed her hair and got ready to go over to her best friend's house. N.S. testified that before she left her house, her father called her back into her mother's bedroom and told her that she was `acting like a baby.'
"N.S. testified that she had lain on top of her father for about two minutes and that it was about four or five minutes between the time that she got off her father and the time that she left the house. Although N.S. stated that her father did not expressly threaten her before or during the incident, she did testify that she was afraid of her father."
Powe, 597 So.2d at 722-23. According to this Court, the record in that case "reveal[ed] no evidence that physical force was used on the victim or that the victim was expressly threatened." 597 So.2d at 726.
In Powe, the parties cited Rider, which this Court described as involving "neither a threat of any kind nor the use of any physical force. Furthermore, there was nothing in the record [in Rider] to show that the sex acts were anything other than voluntary." 597 So.2d at 726. This Court then distinguished Rider, stating:
"[W]e distinguish the Rider case because we find that the evidence in the present case, unlike the evidence in Rider, merits an analysis of whether, viewing the totality of the circumstances, a jury could properly find that an implied threat was made against the victim sufficient to satisfy the element of forcible compulsion. Such an analysis, however, presents an issue of first impression for the appellate courts of this state...."
597 So.2d at 726.
After reviewing cases from other jurisdictions, this Court concluded that the evidence *284 was sufficient to support a finding of forcible compulsion, because "a jury could reasonably infer that Powe held a position of authority and domination with regard to his daughter sufficient to allow the inference of an implied threat to her if she refused to comply with his demands." 597 So.2d at 728. That holding was extremely narrow, as this Court clearly emphasized:
"At this point, however, we note that our holding in this case is limited to cases concerning the sexual assault of children by adults with whom the children are in a relationship of trust. The reason for the distinction between cases involving children as victims and those involving adults as victims is the great influence and control that an adult who plays a dominant role in a child's life may exert over the child. When a defendant who plays an authoritative role in a child's world instructs the child to submit to certain acts, an implied threat of some sort of disciplinary action accompanies the instruction. If the victim is young, inexperienced, and perhaps ignorant of the `wrongness' of the conduct, the child may submit to the acts because the child assumes the conduct is acceptable or because the child does not have the capacity to refuse. Moreover, fear of the parent resulting from love or respect may play a role as great as or greater than that played by fear of threats of serious bodily harm in coercing a child to submit to a sexual act.
"....
"Our holding in this case establishes a mechanism by which the unique relationship between children and the adults who exercise a position of domination and control over them may be taken into consideration in determining whether the element of forcible compulsion has been established. To hold otherwise would be to require a child to be mangled, to see a deadly weapon, or to hear the actual utterance of specifically threatening words before a jury would be authorized to discern a rational fear of violence. Making these criteria absolute would be ignoring reality."
Id. at 728-29 (emphasis added). This Court made it quite clear that its holding would apply only to cases involving the sexual assault of children by adults who exercised positions of domination and control over the children.
In B.E. v. State, supra, the Court of Criminal Appeals, contrary to the limitations of the Powe holding, extended Powe's forcible-compulsion analysis and affirmed an adjudication of delinquency based upon the juvenile court's finding that B.E., a 14-year-old male, had committed first-degree sexual abuse and first-degree sodomy of his half sister, who was 5 years old at the time of the incident. Specifically, the Court of Criminal Appeals failed to acknowledge "that [this Court's] holding in [Powe] is limited to cases concerning the sexual assault of children by adults with whom the children are in a relationship of trust." Powe, 597 So.2d at 728. Therefore, to the extent it conflicts with Powe, we overrule B.E.
The Court of Criminal Appeals' affirmance of the judgment of the trial court adjudicating J.A.P. to be delinquent was based solely upon its decision in B.E. Because we are overruling B.E., we must reverse the judgment of the Court of Criminal Appeals and remand this case for an order consistent with this opinion.
REVERSED AND REMANDED.
HOUSTON, SEE, LYONS, JOHNSTONE, and HARWOOD, JJ., concur.
BROWN, J., concurs in part and dissents in part as to the rationale and concurs in the result.
MOORE, C.J., and STUART, J., dissent.
*285 BROWN, Justice (concurring in part and dissenting in part as to the rationale and concurring in the result).
I concur in the result reached in the majority opinion, which reverses the judgment of the Court of Criminal Appeals affirming the judgment of the trial court adjudicating J.A.P. delinquent because I do not believe the evidence before us is sufficient to establish the element of forcible compulsion.
I respectfully dissent, however, from the majority's overruling of B.E. v. State, 778 So.2d 863 (Ala.Crim.App.2000). I agree with the Court of Criminal Appeals' statement in B.E.:
"[T]he focus in Powe[ v. State, 597 So.2d 721 (Ala.1991) ] is on the child victim and the perspective should be that of the child victim; accordingly, where there is a significant enough difference in age or physical maturity between the defendant and the victim, and the defendant occupies a position of authority or control over the victim, forcible compulsion may exist whether or not the defendant is legally an adult."
778 So.2d at 866.
I believe this statement is a logical extension of Powe v. State, 597 So.2d 721 (Ala.1991), which, as the majority opinion notes, states:
"When a defendant who plays an authoritative role in a child's world instructs the child to submit to certain acts, an implied threat of some sort of disciplinary action accompanies the instruction. If the victim is young, inexperienced, and perhaps ignorant of the `wrongness' of the conduct, the child may submit to the acts because the child assumes that the conduct is acceptable or because the child does not have the capacity to refuse."
597 So.2d at 728-29 (emphasis added).
Thus, I do not believe B.E. should be overruled.
STUART, Justice (dissenting).
I respectfully dissent from the majority opinion, which reverses the judgment of the Court of Criminal Appeals affirming the juvenile court's adjudication of J.A.P. as delinquent and which overrules B.E. v. State, 778 So.2d 863 (Ala.Crim.App.2000). The Court of Criminal Appeals' affirmance is based on a well-reasoned application of established law to the facts of this case. As the Court of Criminal Appeals stated in J.A.P. v. State, 853 So.2d 264, 269 (Ala.Crim.App.2001):
"[T]he focus in cases of this kind, as the Alabama Supreme Court recognized in Powe v. State, 597 So.2d 721 (Ala.1991), must be on the child victim and ... the issue of the sufficiency of the evidence to support a finding of forcible compulsion must be resolved by viewing the totality of the evidence from the perspective of the child victim.... [I]n close cases of this nature, the juvenile court is in a unique position to assess the credibility of the witnesses and to determine whether a young child was physically compelled or psychologically coerced or conditioned by years of sexual abuse into participating in a sex act with an older child."
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341 S.W.2d 212 (1960)
H. T. HUGULEY, Appellant,
v.
BOARD OF ADJUSTMENT OF CITY OF DALLAS et al., Appellees.
No. 15783.
Court of Civil Appeals of Texas, Dallas.
October 7, 1960.
Rehearing Denied November 23, 1960.
*213 Saner, Jack, Sallinger & Nichols, H. Louis Nichols, Dallas, for appellant.
H. P. Kucera, City Atty., and Ted P. MacMaster and Arthur Schroeder, Jr., Asst. City Attys., Dallas, for appellees.
*214 THOMAS, Justice.
Appellant, Dr. H. T. Huguley, filed this suit for a writ of certiorari under the provisions of Art. 1011g, V.A.C.S., challenging the legality of the decision of the Board of Adjustment of the City of Dallas entered on October 28, 1958, sustaining prior decision of the Building Inspector denying to him a certificate of occupancy to use and occupy as a trailer court the southern part of a tract of land of about 2.8 acres and designated as 10001 North Central Expressway. The tract is in a district zoned for single family residential use. Appellant alleged that his tract was used for a trailer court as well as for a tourist court prior to March 3, 1953, when the tract was annexed to the City of Dallas, and he had the right to continue such use as a nonconforming use under the Zoning Ordinance of the City.
Appellant's right to use the northern part of the tract upon which there are about 19 tourist cottages or cabins as a nonconforming tourist court is not in question.
The members of the Board answered, assigning their reasons for refusing the certificate of occupancy. The minutes of the Board, made a part of its return, disclose that the certificate of occupancy was denied because the Board found from the evidence presented to it, both pro and con, that there was no nonconforming use of a trailer park or court in existence at the time of annexation and therefore no nonconforming use existed at the time of the Board's order.
The City of Dallas intervened seeking a mandatory injunction directing appellant to remove all house trailers off the property involved and also sought a permanent injunction enjoining appellant from using the premises as a trailer park or trailer court in the future, or for any other purpose not permitted in the area zoned for single family residence purposes.
A jury was impaneled; appellant introduced his evidence including the verified record of the Board's proceedings, and rested, whereupon the court sustained appellees' motion to withdraw the case from the jury and, entered judgment affirming the decision of the Board of Adjustment, denied appellant any relief and granted a mandatory injunction to the City of Dallas ordering appellant to immediately and forthwith remove any and all house trailers from the premises and permanently restraining appellant from using the premises for the purposes of a trailer park or trailer court or any purpose other than that for which it is zoned.
Appellant's points of appeal (twelve in number), none of which are well taken, can be narrowed to the following propositions, broadly stated:
(A) The Board of Adjustment as a matter of law does not have the power and jurisdiction to pass upon the fact issue of whether or not a nonconforming use existed on appellant's property when annexed to the City of Dallas.
(B) Under the Constitution of the United States and of the State of Texas appellant is entitled to have a jury pass upon the existence or nonexistence of a nonconforming use of his property at the time of annexation to the City of Dallas.
(C) The court's judgment affirming the decision of the Board of Adjustment is not supported by the proper quantum of evidence because (a) the decision of the Board of Adjustment is not supported by substantial evidence, (b) there is no evidence supporting the decision of the Board of Adjustment, (c) there is no evidence supporting the court's judgment, and (d) the great weight and preponderance of evidence is contrary to the decision of the Board of Adjustment and the court's judgment.
(D) There is no evidence to support judgment granting a mandatory and permanent injunction to intervenor, City of Dallas.
Appellant's tract of about 2.8 acres faces some 680 feet along the west side of the service road paralleling North Central Expressway. With other lands, it was annexed *215 to the City of Dallas on March 3, 1953 and all became zoned temporarily for single family residence use until permanent zoning after hearing could be effected under the Zoning Ordinance of Dallas.
Prior to these proceedings Dr. Huguley's property had been involved in five other proceedings, to-wit: (1) soon after annexation in 1953 the City Plan Commission recommended and the City Council approved permit and certificate of occupancy for Dr. Huguley to complete construction of 5 tourist cottages for a total of 19 cottages to be used as "The Coit Tourist Lodge"; (2) at permanent zoning hearing in 1953 appellant requested Tourist Camp Zoning (C-1 Commercial), but single family residence classification was imposed; (3) about a year later the Board of Adjustment granted a permit to appellant to erect a sign advertising the tourist court; (4) in January 1957, the Board of Adjustment denied a permit to appellant to erect a neon sign; and (5) late in 1957 permit was granted to erect a metal fence along the front of the property "as accessory to tourist court". The existence of a trailer court was not referred to in any of the foregoing proceedings except the last; there, an "existing trailer court" was referred to on appellant's application, but the permit was granted only for fence for the tourist court.
Until August 18, 1958, when appellant applied for permit and certificate of occupancy to operate a trailer court on the property he had not complied in any respect with City Ordinance 4720 regulating trailer courts or parks and tourist courts which requires (1) Certificate of Occupancy by Building Inspector after inspection; (2) license from City Health Officer with annual renewals; (3) annual license fee based on number of units in use; (4) register of persons furnished accommodations; and (5) copy of all management records kept on premises for inspection of law enforcement and health authorities.
The verified return filed by appellee Board of Adjustment consists of copies of originals of numerous documents and a record of testimony under oath of many witnesses. Appellant and several witnesses he called testified that the southern part of the 2.8 acres had been improved prior to annexation to the City with a small wooden building equipped with washroom and toilet facilities, as well as with electrical connections, graveled driveways, and fences for use as a house trailer park or court, and that some house trailers "but not too many" were using the site prior to, at the time of and since annexation.
In sharp conflict with appellant's evidence, several witnesses living in the neighborhood testified that except for a temporary use of the site for parking of house trailers by workmen on Central Expressway who moved along the highway as construction progressed, no other use had been made of appellant's property by house trailers until a trailer had been placed on the property about three months prior to the hearing before the Board. Area Inspectors from the Dallas Building Inspector's office first knew of a house trailer use of the property in 1958, although making inspections in the area every few days. They then issued a stop order directing appellant to remove the trailer and filed charges in the Corporation Court against him for violating the zoning ordinance.
The Board of Adjustment upheld the decision of the Building Inspector denying a permit and certificate of occupancy to appellant for the use of his property as a trailer park or court saying: "That the finding of this Board, from the evidence presented to it, both pro and con, is that there was no non-conforming use of a trailer park or court in existence at the time of annexation, and therefore no non-conforming use exists today."
A. Art. 1011g, V.A.C.S., authorizes a board of adjustment, prescribes its membership and procedure, and authorizes appeals from its decisions. As to such board's pow ers Art. 1011g in part provides:
*216 "The board of adjustment shall have the following powers:
"1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this Act or of any ordinance adopted pursuant thereto."
The Comprehensive Zoning Ordinance of the City of Dallas adopted pursuant to the Zoning Act, Arts. 1011a-1011k, V.A.C.S., in part provides:
(1) A nonconforming use is any that does not conform to the Zoning Ordinance but which was in existence prior to effective date of ordinance. (That date, as to appellant's property, is March 3, 1953, when it was annexed.)
(2) Any nonconforming use of land may be continued for definite periods of time and subject to regulations as the Board of Adjustment may require for preservation of the adjoining property and the ultimate removal of the nonconforming use, it being the declared purpose of the ordinance that nonconforming uses be eliminated and required to conform having due regard for the property rights of the persons affected.
(3) It being the declared purpose of the Ordinance that nonconforming uses be eliminated, the Board of Adjustment shall, from time to time on its own motion or upon cause presented by interested property owners, inquire into the existence, continuation or maintenance of any nonconforming use.
(4) That the Board of Adjustment shall have all the powers granted by and be organized and controlled by Art. 1011g, V.A.C.S.
(5) The provisions of the Ordinance shall be administered and enforced by the Building Inspector.
In Washington v. City of Dallas, 159 S. W.2d 579, 580, this court said:
"A claim to a nonconforming use under zoning ordinances is uniformly determinable by appeal to a Board of Adjustment from an order of the Building Inspector (or similar administrative official), and then by certiorari to the courts." (Citing authorities.)
See also City of Dallas v. Halbert, Tex. Civ.App., 246 S.W.2d 686; Gulf, Colorado & Santa Fe Ry. Co. v. White, Tex.Civ. App., 281 S.W.2d 441; Rosenthal v. City of Dallas, Tex.Civ.App., 211 S.W.2d 279, 291; Sams v. Dema, Tex.Civ.App., 316 S.W.2d 165. Appellant relies upon City of Amarillo v. Stapf, 129 Tex. 81, 101 S.W. 2d 229, 234, and the statements of Associate Justice Looney expressing his personal opinion in Terry v. City of Dallas, Tex. Civ.App., 175 S.W.2d 97.
City of Amarillo v. Stapf, supra, establishes the principle that a board of adjustment does not have jurisdiction "to designate for the first time foundries in the second manufacturing district" instead of the first manufacturing district. Of course, such action is zoning, and the function of the legislative body of the City. The Stapf case does not support appellant's contention.
Justice Looney's personal opinions expressed in Terry v. City of Dallas, supra, were not shared by the majority of this Court as we pointed out later in City of Dallas v. Halbert, supra. In fact, he apparently changed his opinion because in Rosenthal v. City of Dallas, Tex.Civ.App., 211 S.W.2d 279, 291, he said "The building inspector was the only City Official who could lawfully determine the existence of facts supporting the nonconforming use * * *; and the determination of these questions being placed upon the inspector by the legislature and the City Council, his rulings when supported by evidence as in the instant case, cannot be attacked except by appeal as provided in Art. 1011g," i. e., to the Board of Adjustment.
*217 B. Appellant had no constitutional right to have a jury pass de novo upon the issue as to the existence or nonexistence of a nonconforming use upon his property. The Federal Constitution does not expressly guarantee the right of trial by jury in any State Court in any character of case, and the due process clause does not require a jury trial in a State Court. White v. White, 108 Tex. 570, 196 S.W. 508, L.R. A.1918A, 339; Vol. 16A C.J.S. Constitutional Law § 623, p. 829; 12 Am.Jur. p. 311.
Under Art. 1, Sec. 15, 19 and 29 of the Constitution of Texas, Vernon's Ann.St., providing that "right of trial by jury shall remain inviolate" a litigant is "entitled to a trial by jury, in the full constitutional sense, if that practice prevailed in this State, according to the then existing laws, at the time of the adoption of said provisions as portions of our present State Constitution of 1876". White v. White, supra [108 Tex. 570, 196 S.W. 512]. Hickman et ux. v. Smith, Tex.Civ.App., 238 S. W.2d 838 (error refused).
Whitney R. Harris, Esq., in his excellent article "The Administrative Law of Texas", 29 Texas Law Review 213, says: "Since appeals from administrative decisions were unknown to Texas law at the time of the adoption of the Constitution, there is no right to a jury in actions brought to review administrative decisions, unless the Statute so provides." National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893; 42 Am. Jur. 486, Sec. 142.
In City of University Park v. Hoblitzelle, Tex.Civ.App., 150 S.W.2d 169, 172, (error refused) certiorari denied 315 U.S. 781, 62 S.Ct. 806, 86 L.Ed. 1188, appellee recovered judgment compelling City to grant him a permit for the erection of a building after jury findings in effect that the Board of Adjustment in denying the permit acted unreasonably and arbitrarily under the facts. In reversing and rendering the judgment of the trial court, this court discussed the question of whether a jury should pass upon the facts and the findings of the Board of Adjustment, saying:
"The issue therefore narrows to the inquiry, shall the findings of the Board govern in a matter entrusted by law to their discretion (a purely governmental function), or the findings of the jury be substituted therefor? Courts may determine whether or not it appears that the governing body of a city acted arbitrarily, but when the facts are fairly debatable legislative judgment of the legally constituted Board must prevail. * * * Or, if it can be said that the evidence raises the issue of any of the material facts upon which the city authorities refused the permit, then the law delegates to the city authorities, and not to courts or juries, the power and duty of determining the sufficiency of issuable facts in the exercise of a purely governmental function."
In this case Dr. Huguley demanded and obtained a jury which heard all the record of the proceedings before the Board and his witnesses. However, the court properly withdrew the case from the jury because there were no issues of fact since it appeared that the decision of the Board of Adjustment was supported by substantial evidence introduced in court.
C. In considering appellant's points of error directed at the state of evidence, the following principles control:
(a) Boards of Adjustment when functioning within their jurisdiction pursuant to Statutes comparable to Arts. 1011a-1011j, V.A.C.S., act as quasi-judicial bodies. Washington v. City of Dallas, Tex.Civ. App., 159 S.W.2d 579, and there is a presumption of legality with respect to permits, special uses, nonconforming uses and the like. A party seeking relief from a decision of a board of adjustment relative to nonconforming uses has the burden of proof to establish illegality. Montgomery v. City of Dallas, Tex.Civ.App., 245 S.W. *218 2d 753; McQuillin on Municipal Corporations, 3rd Ed. Vol. 8, Secs. 25.327-25.328.
(b) The court in considering the legality of the order of the board of adjustment must not put itself in the position of the board and substitute its findings for that of the board even though the court concludes that the overwhelming preponderance of the evidence is against the board's decision. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67. "The question is whether or not there is any substantial evidence affording reasonable support for such findings and orders entered thereunder. That is a question of law." Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420, 421; City of Dallas v. Stevens, Tex.Civ.App., 310 S.W.2d 750. If the evidence before the court as a whole is such that reasonable minds could have reached the conclusion that the Board must have reached in order to justify its action, then the order must be sustained. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 441.
(c) Art. 1011g contemplates that the trial court shall consider the board's verified return into court along with the evidence introduced. City of San Angelo v. Boehme Bakery, supra. Indeed, it has been held that the court may refuse to hear any further evidence if the record of the board's proceedings returned into court supports the findings of the board as to the existence of a nonconforming use. Rowton v. Alagood, Tex.Civ.App., Waco, 250 S.W. 2d 264.
(d) As said by Justice Werlein in Biddle v. Board of Adjustment, Village of Spring Valley, Tex.Civ.App., 316 S.W.2d 437, 442: "Mere preparation for use of the property before adoption of a zoning ordinance is not enough to show a devotion of the property to that use. An `existing use' should mean the utilization of the premises so that they may be known in the neighborhood as being employed for a given purpose. See Caruthers v. Board of Adjustment of City of Bunker Hill Village, Tex. Civ.App., 290 S.W.2d 340; Appeal of Haller Baking Co., 295 Pa. 257, 145 A. 77; Fairlawns Cemetery Ass'n, Inc., v. Zoning Commission of Town of Bethel, 138 Conn. 434, 86 A.2d 74." See also Meserole v. Board of Adjustment, City of Dallas, Tex. Civ.App., 172 S.W.2d 528.
Keeping the foregoing principles in mind, we have reviewed the entire record filed by the appellee Board in the trial court as well as the other evidence introduced by appellant, and while recognizing that there is very strong evidence to support appellant's contention that a nonconforming use as a trailer park existed, nevertheless we think it is clear that the Board's findings and decision are sustained by substantial evidence.
D. Since the Board of Adjustment found that no nonconforming use existed at the time of the annexation of appellant's property, and this finding has support in substantial evidence, it was of course a violation of the zoning ordinance for appellant subsequently to use the property as a trailer court. That he had so used the property is not disputed. Appellant himself so pled; he testified in court that one house trailer was located on the property and although not used "too many times" the area has been used all the time for trailer park purposes. The manager of his tourist court testified in court that although "we didn't have too many calls for it" since 1955 when he became manager the facilities had been available and used by occupants of the trailers renting space on the trailer park. In view of such pleading and testimony which we must regard in the nature of admissions, it was proper for the court to grant the City the mandatory and permanent injunction sought in its intervention without further evidence.
In Caulk v. Anderson, 120 Tex. 253, 37 S.W.2d 1008, 1009, our Supreme Court said "that the decisions of the Supreme Court `are conclusive that there is no need to *219 prove a fact admitted in pleadings of all parties.' Lafield v. Maryland Casualty Co., [119 Tex. 466] 33 S.W.2d 187, 189."
Furthermore, appellant Huguley's testimony with that of his tourist court manager is binding upon him and no issue of fact existed on the question of whether appellant is using his property as a house trailer park in violation of the zoning ordinances. MacDonald v. Carlisle, 146 Tex. 206, 206 S.W.2d 224; Texas & Pacific Ry. Co. v. Wood et al., 145 Tex. 534, 199 S.W.2d 652.
Accordingly, all of appellant's points of error are overruled and the judgment appealed from is affirmed.
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In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-18-00102-CV
PETERSON, GOLDMAN & VILLANI, § On Appeal from the 141st District
INC., Appellant Court
V. § of Tarrant County (141-236257-09)
ANCOR HOLDINGS, LP, TIMOTHY § July 18, 2019
MCKIBBEN, JOSEPH RANDALL KEENE,
AND ANCOR PARTNERS, INC.,
Appellees § Opinion by Justice Birdwell
JUDGMENT
This court has considered the record on appeal in this case and holds that there
was error in the trial court’s judgment. It is ordered that the judgment of the trial
court is affirmed, in part, reversed and rendered, in part, and remanded, in part.
We affirm the trial court’s judgment to the extent it disposed of PGV’s theories
of alter ego, punitive damages, and plain estoppel.
Having found that Appellant conclusively established its entitlement to
summary judgment on successor liability, we render judgment in favor of Appellant
on its claim to hold Ancor Holdings, LP liable on the judgment against Ancor
Holdings, LLC.
We remand the case to the trial court for further proceedings concerning
Appellant’s other claims.
It is further ordered that Appellees shall pay all of the costs of this appeal, for
which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By /s/ Wade Birdwell
Justice Wade Birdwell
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771 N.W.2d 318 (2009)
2009 SD 63
Brad OLSON, Duane Alm, Michael Miller, Linda Burdette, Russell Gall, Merritt Stegmeier, Tommy Svatos, Terry Svatos, Debbra J. Houseman, John Brooks, Madeline Fast Horse, Karen Slunecka, Dawn Redden, Terry Aesoph, Heather Bode, and Grady Heitmann, Plaintiffs and Appellants,
v.
Marty GUINDON, Auditor General, Department of Legislative Audit of the State of South Dakota, M. Michael Rounds, Governor, State of South Dakota, Lawrence Long, Attorney General, State of South Dakota, and the State of South Dakota, Defendants and Appellees,
v.
South Dakota Coalition of Schools, Intervenor and Appellant.
No. 24989.
Supreme Court of South Dakota.
Argued On January 14, 2009.
Decided July 22, 2009.
Rory King of Bantz, Gosch & Cremer, LLC, Aberdeen, South Dakota, Attorneys for plaintiffs and appellants.
Ronald A. Parsons, Jr. of Johnson, Heidepriem, Abdallah & Johnson, LLP, Sioux Falls, South Dakota, Attorneys for intervenor and appellant.
Lawrence E. Long, Attorney General, Jeffrey P. Hallem, Assistant Attorney General, Pierre, South Dakota, Attorneys for defendants and appellees.
MEIERHENRY, Justice.
[¶ 1.] The issue in this appeal is whether school districts have standing to seek a declaratory judgment against Auditor General Marty Guindon, Governor M. Michael Rounds, and Attorney General Lawrence Long (state officials) on the question of the constitutionality of K-12 public school funding in South Dakota. The circuit court determined that school districts did not have standing and granted summary judgment in favor of Guindon, Rounds, and Long. We reverse and remand.
*319 Procedural History
[¶ 2.] School district board members from Aberdeen, Andes Central, and Faulkton Area school districts[1] (school districts) filed the initial complaint for declaratory relief. The South Dakota Coalition of Schools (Coalition) joined the action as an intervenor. Formed in 1988 as the South Dakota Coalition of Small Schools, the Coalition is currently governed by a nine member board of school superintendents who work to advance the interests of member school districts. The Coalition is funded by dues paid by member school districts. In 2003, the Coalition was incorporated as a non-profit corporation. The Coalition employs attorneys to lobby the legislature and also employs expert-consultants and attorneys to represent the member school districts. The Coalition is a member of an organization that commissioned an adequacy study to determine the level of funding necessary to support South Dakota's required education and learning standards.[2] The results of the study showed that education was seriously underfunded in South Dakota. On June 11, 2007, the school districts filed the original complaint for declaratory relief against the state officials in Hughes County. The complaint challenged the constitutionality of the funding of the K-12 education system in South Dakota. The Coalition joined the suit as an intervenor on June 25, 2007. The Coalition received funding from 96 of the 168 school districts in South Dakota, either in the form of dues or in direct support of the constitutional challenge.
[¶ 3.] In May 2007, Governor Rounds ordered Auditor General Guindon to determine the legality of the payments made by the school districts in support of the pending litigation. Attorney General Long concluded that the payment of funds by the school districts to the Coalition was illegal and requested the Auditor General to conduct an audit. The school districts and the Coalition challenged the Attorney General's conclusion that the payment was illegal and brought an action for declaratory relief. The parties agreed to suspend the audit. Based upon an agreed stipulation of facts, the parties filed cross-motions for partial summary judgment pursuant to SDCL 15-6-56(b). The state officials claimed that the school districts did not have standing to sue the state officials. The school districts claimed that they did have standing to seek a declaratory judgment action; or alternatively, if they did not have standing, they had authority to expend school district monies to finance the litigation through the Coalition.
[¶ 4.] The circuit court ruled in favor of the state officials and entered a judgment declaring that the school districts lacked standing and did not have authority to finance the litigation. The school districts and the Coalition appeal the issue of whether the school districts have standing *320 to seek a judgment declaring the system of funding K-12 public education unconstitutional; or alternatively, whether the school districts can finance the lawsuit in the absence of standing. We hold that the school districts have standing. Standing is recognized here in the limited context of a declaratory judgment action and stems from provisions in the South Dakota Constitution.
[¶ 5.] The trial court denied standing based, in part, on prior cases decided by this Court. Edgemont Sch. Dist. 23-1 v. South Dakota Dep't of Revenue, 1999 SD 48, 593 N.W.2d 36; Agar Sch. Dist. No. 58-1 v. McGee, 527 N.W.2d 282 (S.D.1995). In those cases, we held that the school districts did not have standing to challenge tax levies and distributions. In both cases, we determined that the districts were not the real parties in interest. In Agar School District, the district challenged the legality of an increased tax levy and its distribution to other school districts. 527 N.W.2d at 284. The case did not involve a constitutional challenge of any sort only a dispute over statutes. We determined that the district did not have standing because it could show no actual or threatened injury. Id. at 285. The district had received its requested funds for the school year, and the operation of the district had not been affected. Id. In Edgemont School District, the district challenged the constitutionality of a state law that set forth the methods of assessment and distribution of a statewide railroad tax. 1999 SD 48, ¶ 12, 593 N.W.2d at 39. We determined that the school districts lacked standing to challenge the constitutionality of state legislation. Id. ¶ 15. The rationale centered on the concept that school districts, like counties and municipalities, "are the creatures of the legislature." Id. Generally, "`[t]he creature is not greater than its creator, and may not question that power which brought it into existence and set the bounds of its capacities.'" Id. (quoting Bd. of Supervisors of Linn County, 263 N.W.2d 227, 232 (Iowa 1978)). We determined that "[n]one of the exceptions to this general rule regarding standing apply because the taxpayers within the district and county are the real parties in interest and can satisfy the traditional standing requirements." Id. ¶ 16 (citing Agar Sch. Dist., 527 N.W.2d at 284).
[¶ 6.] The school districts and the Coalition assert that South Dakota's K-12 public school funding system unconstitutionally underfunds education. The state officials claim that as creatures of the legislature, the school districts do not have standing to challenge the constitutionality of the funding system and that the real parties in interest are the parents and students. To establish standing, the school districts rely on provisions in the South Dakota Constitution that directly and expressly accord school districts rights to certain funds.
Standing under the South Dakota Constitution
[¶ 7.] Pursuant to the constitutional mandate "to establish and maintain a general and uniform system of public schools," the South Dakota Legislature delegates to local school districts the authority to organize for the purpose of operating schools. See S.D. Const. art. VIII, § 1 (enabling legislation set forth in SDCL 13-5-1). In addition, the legislature gives local school boards "general charge, direction and management of the schools of the district and control and care of all property belonging to it." SDCL 13-8-39.
[¶ 8.] The South Dakota Constitution creates and defines the system of public schools. S.D. Const. art. VIII, § 1 mandates the establishment of a "general and uniform system of public schools" as follows:
*321 The stability of a republican form of government depending on the morality and intelligence of the people, it shall be the duty of the Legislature to establish and maintain a general and uniform system of public schools wherein tuition shall be without charge, and equally open to all; and to adopt all suitable means to secure to the people the advantages and opportunities of education.
S.D. Const. art. VIII, § 1. The South Dakota Constitution specifies four sources of funding that go to the local school districts for public education. The first source is the interest from a permanent trust fund, whose principal derives from the sale of public school lands acquired from the United States government, property escheated to the State, gifts and donations, and other property "acquired for public schools." S.D. Const. art. VIII, § 2. The constitutional provision provides for the permanent trust fund as follows:
All proceeds of the sale of public lands that have heretofore been or may hereafter be given by the United States for the use of public schools in the state; all such per centum as may be granted by the United States on the sales of public lands; the proceeds of all property that shall fall to the state by escheat; the proceeds of all gifts or donations to the state for public schools or not otherwise appropriated by the terms of the gift; and all property otherwise acquired for public schools, shall be and remain a perpetual fund for the maintenance of public schools in the state. It shall be deemed a trust fund held by the state. The principal shall never be diverted by legislative enactment for any other purpose, and may be increased; but, if any loss occurs through any unconstitutional act, the state shall make the loss good through a special appropriation.
Id.
[¶ 9.] S.D. Const. art. VIII, § 3 directs that the interest and income from the fund "be faithfully used and applied each year for the benefit of the public schools of the state" as follows:
The interest and income of this fund together with all other sums which may be added thereto by law, shall be faithfully used and applied each year for the benefit of the public schools of the state, and shall be for this purpose apportioned among and between all the several public school corporations of the state in proportion to the number of children in each[.]
Id.
[¶ 10.] Shortly after Article VIII had been approved by the voters, this Court in 1895 determined that the provision made the local school districts "the real owners of the [permanent trust] fund," and the State a "constitutionally appointed trustee." In re State Bonds, 7 S.D. 42, 63 N.W. 223, 226 (1895). We concluded that: "These funds do not belong to the state, but to the several school corporations. The state is simply a constitutionally appointed trustee, with the imposed duty of distributing to the real owners of the fund whatever of such moneys have been received by it ...." Id.[3]
*322 [¶ 11.] In 1896 in State v. Ruth, this Court for the first time addressed the issue of sovereign immunity for state constitutional officials. 9 S.D. 84, 68 N.W. 189 (1896). While ascertaining that sovereign immunity did exist for discretionary tasks, the Court painstakingly distinguished the State's legal status pertaining to the school trust funds found in Article VIII. Id. at 190. In regard to the school trust funds, the State's legal status was that of a trustee not that of a sovereign:
The state appears in this action in its capacity of trustee, and must be treated as a natural person, acting in the same capacity; regard being had to the character of the trust, and the spirit of the constitutional provisions relating thereto. The rules which regulate ordinary trustees will need to be so applied as to secure and promote the ends contemplated by the constitution. It is the duty of each branch of the state government to regard the sacred character of this important trust, and to insist upon the utmost fidelity in its management.
Id. These earlier constitutional decisions have been subsequently viewed as particularly persuasive because those cases were decided by Justices who had been members of the Constitutional Convention of 1885 that drafted Article VIII. See Schomer v. Scott, 65 S.D. 353, 274 N.W. 556, 566 (1937). See also McDonald v. Sch. Bd. of Yankton, 90 S.D. 599, 246 N.W.2d 93, 97 (1976); Green v. Siegel, Barnett & Schutz, 1996 SD 146, ¶ 19 n. 10, 557 N.W.2d 396, 402 n. 10.
[¶ 12.] In 1937 in Schomer v. Scott, this Court made it clear that the school corporations were the beneficiaries of the permanent school trust fund. 65 S.D. 353, 274 N.W. 556 (1937). We said that "[u]nder the provisions of the Constitution, both the state and the county become trustees of the funds for the benefit of the school corporations of the state." Id. at 561.[4]
[¶ 13.] The trustee/beneficiary relationship was examined for a fourth time in Schelle v. Foss, 76 S.D. 620, 83 N.W.2d 847 (1957). There, we held that because of the "sacred character of this important trust," it was no ordinary trust but rather, as the duties were set forth in In re Bonds, Ruth and Schomer, the trust was for the benefit of "the school corporations of the state." Id. at 851, 83 N.W.2d 847. The nature of the trust was defined as follows:
The framers of our Constitution intended to, and did, establish a special trust for the administration and preservation of our permanent school and educational funds. Article VIII of the Constitution serves as a trust instrument containing the declarations of trust. Its provisions are written in strong, clear, self-expressive language. Its beneficiaries are all of the public schools in the state together with its endowed charitable and educational institutions. The trust must be administered for their sole benefit and best interest. An involvement of the trust funds for any other purpose, consideration, or motivation would be in violation of the basic intendment of the trust.
Id. at 853, 83 N.W.2d 847 (emphasis added).
[¶ 14.] The Constitution establishes a second education funding source from "[t]he proceeds of all fines collected from violations of state laws[.]" S.D. Const. art. VIII, § 3. The county treasurers collect the fines and distribute them "among and *323 between all of the several public schools incorporated in such county in proportion to the number of children in each, of school age, as may be fixed by law." Id. The Constitution also provides two other funding sources for public education general taxation and local taxation. Article VIII, section 15 requires the legislature to "make such provision by general taxation and by authorizing the school corporations to levy such additional taxes as with the income from the permanent school fund shall secure a thorough and efficient system of common schools throughout the state." S.D. Const. art. VIII, § 15.
[¶ 15.] The funding sources established by the Constitution go to the local school districts for the sole purpose of educating the children of South Dakota. Local school districts are the core of the entire K-12 educational system. The districts are beneficiaries of the permanent trust fund and designated recipients of the fines and taxes earmarked for education. Their position as beneficiaries and designated recipients is established by the South Dakota Constitution. Without adequate funding, the school districts claim they are unable to fulfill their mandate of educating the children of South Dakota. It is undisputed that public education is of utmost importance to the state and its citizens. South Dakota's Constitution requires the legislature "to establish and maintain a general and uniform system of public schools ... and to adopt all suitable means to secure to the people the advantages and opportunities of education." S.D. Const. art. VIII, § 1. The Constitution pronounces that a "general and uniform system of public schools" without tuition and "equally open to all" is important because "[t]he stability of a republican form of government depend[s] on the morality and intelligence of the people." Id. Here, all the parties stipulated that "[e]ducation is a matter of great public importance in the State of South Dakota." As the United States Supreme Court said in Brown v. Board of Education of Topeka, "education is perhaps the most important function of state and local governments." 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954) (emphasis added).
[¶ 16.] Unlike the prior cases of Agar and Edgemont, the districts and Coalition challenge the constitutionality of the overall system of funding of K-12 public education. The school districts' interest in discharging their constitutional duty is not simply based on their status as representatives of constituent students and taxpayers. In this constitutional challenge, the school districts are not mere creatures of statute. Instead, they are creations of the Constitution via Article VIII. Because of the constitutional provisions and the vital position school districts hold as beneficiaries and recipients of public K-12 education funding, we recognize that school districts have standing to challenge the constitutionality of K-12 public school funding in the limited context of a declaratory judgment action. However, as counsel for the Coalition conceded during oral argument,
It would be up to the legislature and the executive branch to come up with a solution through the political process. The school funding litigation is not asking for a dollar. It asks for no relief other than declaratory relief and attempts to enforce declaratory relief if certain statutes have to be enjoined as unconstitutional.
Conclusion
[¶ 17.] Thus, we hold that in the narrow context of seeking a declaratory ruling on the constitutionality of K-12 public school funding that the districts have standing. Because we determine that the school districts have standing to sue the *324 state officials at this stage of the proceeding, it follows that the school districts also have authority to expend funds to support the litigation.
[¶ 18.] We reverse and remand.
[¶ 19.] GILBERTSON, Chief Justice, concurs with a writing and SABERS, Retired Justice, concurs.
[¶ 20.] KONENKAMP and ZINTER, Justices, concur in result.
GILBERTSON, Chief Justice (concurring).
[¶ 21.] I join in the Court's opinion but wish to add a few points. Before us is the question of the standing of certain school districts within South Dakota to commence a declaratory judgment action against the State. A substantial portion of oral argument before this Court focused directly upon the relief the school districts were seeking in that underlying proceeding.
[¶ 22.] During oral arguments, the school districts stated, "[w]e are seeking declaratory relief. We are not seeking any kind of a specific amount of appropriation from the State." Further, "[t]he school funding litigation does not ask for a dollar, and it asks for no relief other than declaratory relief, and attempts to enforce declaratory relief if certain statutes have to be enjoined as unconstitutional."
[¶ 23.] When the Court asked if the school districts, "... would concede ... that there is no Constitutional authority for this Court to declare itself to be some kind of `super school board,' that is now somehow, de facto, running the education system of South Dakota," they replied, "[we] would readily concede that. We have made no assertion of that whatsoever." The Court then asked, "What happens... if we get to the point where the Legislature says `so what' [in response to a declaratory judgment]? Do school districts have standing at that point ... to ask for an order to the Legislature to appropriate the funds?" The plaintiffs responded, "This Court can't appropriate funds. That would violate separation of powers. ... [The school districts do not have standing] to ask for the Court to appropriate funds. ..."
[¶ 24.] Finally, the school districts explained the underlying litigation as,
[A]n action brought purely under the Declaratory Judgment Act. The [DJA] specifically authorizes public corporations of any character whatsoever to bring declaratory judgment actions, including against the State. This Court placed one limitation on that, in the Dan Nelson case ... `The holding of Pennington County is limited to county suits seeking monetary relief from the State Treasury.' So a governmental entity, a subdivision of government, could not sue the State for money to try to ... force it to appropriate funds. Although the underlying action involves funding issues, it does not ask for a dollar. It does not seek to disgorge any money from the public treasury.
[¶ 25.] From the foregoing, it is clear that the school districts seek only a declaration as to the meaning of article VIII of the South Dakota Constitution. Also, they have made it clear that this Court is not being asked to address the issue of the parameters of its authority to mandate any certain dollar amount of school funding. See generally McIntyre v. Wick, 558 N.W.2d 347 (S.D.1996).
[¶ 26.] To arrive at its result of limited standing by the school districts, the Court properly applies the public trust theory to resolve this issue. In its interpretation of article VIII of the South Dakota Constitution, the Court's historical analysis begins with the Constitutional Convention of 1885, *325 which "framed the issues for debate in the 1889 Constitutional Convention and the constitution produced in 1885 was the genesis of the constitution adopted in 1889." Chief Justice David Gilbertson & David S. Barari, Indexing the South Dakota Constitutional Conventions: A 21st Century Solution to a 125 Year Old Problem, 53 SD Law Rev 260, 261 (2008) (citing In re Opinion of the Judges, 61 S.D. 107, 246 N.W. 295, 295 (1933); Schomer v. Scott, 65 S.D. 353, 274 N.W. 556, 562-63 (1937); Green v. Siegel, Barnett & Schutz, 1996 SD 146, ¶ 17 n. 8, 557 N.W.2d 396, 401 n. 8). Our case law since 1889, as cited by the Court, strongly supports standing in this limited case. It is clear from the Court's analysis that this trust theory is limited to article VIII and no case law since 1889 suggests it applies to any subdivisions of government other than the schools.
[¶ 27.] I cannot join in the concept of standing through what is declared to be "a public interest exception." Until today, such a doctrine has been unknown to our South Dakota Constitution or its interpretative scholarship. Moreover, it is a nebulous term without specific definition. We are not provided with a workable definition of what this term means; instead, we are told in general terms what it is not. Thus, should this exception be adopted, in future cases, what constitutes an issue of "great public importance" will be what three members of this Court conclude it to be. "The Court's inability to formulate a `judicially discernible standard' strongly counsels against the recognition of a novel constitutional right." Caperton v. A.T. Massey Coal Co., Inc., ___ U.S. ___, 129 S.Ct. 2252, 2272, 173 L.Ed.2d 1208 (2009) (Roberts, C.J.dissenting) (citing Vieth v. Jubelirer, 541 U.S. 267, 306, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (plurality opinion)). In future litigation, such a nebulous term invites the once narrow exception to swallow the general rule of no standing.
ZINTER, Justice (concurring in result).
[¶ 28.] The principal allegation in the underlying school funding litigation is that the Legislature is failing to perform its duty of appropriating sufficient general funds, derived from taxation, to maintain a thorough and efficient system of schools as required by article VIII, section 15 of the South Dakota Constitution. The plaintiffs in the underlying litigation do not allege any improper use of the two educational trust funds that were created by article VIII, sections 2 and 3 and are relied upon by the majority. See supra ¶¶ 6, 8-15. Therefore, I cannot join the majority's adoption of a theory of standing that is based upon a trust beneficiary's right to appear in actions concerning the use of the beneficiary's trust funds. Instead, I would apply a similar but more limited standing exception than that recognized by the other courts that have considered school funding litigation.
[¶ 29.] There is no dispute that, generally, governmental subdivisions do not have standing to sue their creator, the state. See Edgemont Sch. Dist. 23-1 v. SD Dep't of Revenue, 1999 SD 48, ¶¶ 13-16, 593 N.W.2d 36, 39-40. The school districts, however, argue that they have standing under the public interest exception to the general rule. The question of standing under the public interest exception is a question of first impression in this jurisdiction. Until today, we have applied the general rule disallowing standing to school districts as governmental subdivisions, but we have also acknowledged the exceptions. Id.
[¶ 30.] A limited exception is justified in this case for three reasons. First, local school districts have a unique constitutional *326 role in both providing and financing K-12 education under article VIII of the South Dakota Constitution. Second, on appeal, the school districts have narrowed the relief they seek in the underlying litigation to that of pure declaratory relief to determine the meaning of the parties' constitutional obligations.[5] Finally, all parties agree that this is an important public interest question. Under these circumstances, we should now adopt a limited standing exception for schools when they seek pure declaratory relief to determine the meaning of the constitutional provision under which they must provide a public education.[6]
[¶ 31.] I would not, however, recognize the broad public interest standing exception adopted in many of the school districts' cases. Rather, Washakie County Sch. Dist. No. One v. Herschler, 606 P.2d 310, 317-18 (Wyo.1980), and a restrictive reading of Seattle Sch. Dist. No. 1 of King County v. State, 90 Wash.2d 476, 493-94, 585 P.2d 71, 82 (1978), provide the most appropriate analysis. In Washakie County, the Wyoming Supreme Court recognized standing because schools themselves are tangibly injured if prevented from performing their constitutionally required duty to provide the important governmental function of education:
Educating the youth of our state is an important function performed by our state government. Our constitution ... plainly expresses the commitment of a free people to the value of a thorough education. The school districts and the members of school boards are charged with the responsibility of providing education to the children of Wyoming and are tangibly injured if the statutes which guide their hands disenable them from so providing.
606 P.2d at 317.
[¶ 32.] Like Wyoming, the South Dakota Constitution makes local school districts an integral part of financing and providing a thorough and efficient system of common schools. Article VIII, section 15 imposes a joint Legislature-local school district duty to finance schools: the legislative obligation through general taxation and the local school districts' obligation through property taxation. And, annual legislative funding together with property taxation provides the bulk of the revenue necessary for schools to fulfill their constitutional obligation of providing an adequate education. Therefore, as the Washington Supreme Court concluded, the interest of the schools is sufficiently within the zone of interest recognized by Washington's analogous education clause to afford standing.
[I]t is clear the District has standing to challenge the constitutionality of the school financing system. The interests *327 of the District are not theoretical; they involve actual financial constraints imposed upon the District by the challenged system itself. In short, the interests sought to be protected by the District are within the zone of interest either regulated by the challenged regulations and legislation or by [the Washington Constitution's analogous education clauses.] Under these circumstances it would be unreasonable to deny standing to the District which, far from being a nominal party, stands at the very vortex of the entire financing system.
Seattle Sch. Dist. No. 1, 90 Wash.2d at 493-94, 585 P.2d at 82.[7]
[¶ 33.] In the case before us today, the issue of standing arose in a declaratory judgment action in which the interests at stake involved the joint school district-legislative obligation to provide an adequate public education. The school districts specifically alleged that they are under threat of sanctions for failure to meet state-imposed standards of educational achievement.[8] They further allege injury to their ability to meet state and constitutional requirements. Under those circumstances, even the jurisdictions that strictly apply the general rule barring governmental subdivision challenges to legislative decisions recognize an exception. The exception applies when schools seek an interpretation of the law they are required to implement, but also allege that by their very compliance, they will be forced to violate a constitutional provision. See City of New York v. State, 86 N.Y.2d 286, 292, 631 N.Y.S.2d 553, 655 N.E.2d 649, 652 (1995) (citing Matter of Jeter v. Ellenville Cent. Sch. Dist., 41 N.Y.2d 283, 287, 392 N.Y.S.2d 403, 360 N.E.2d 1086, 1088 (1977)) (additional citation omitted) (concluding that the school board had standing to seek a declaration interpreting the meaning of laws governing the right to a free public education, but they did not have the substantive right to challenge those laws).
[¶ 34.] As previously indicated, at oral argument in this case the school districts limited their request for relief, stressing that standing was appropriate as they should be entitled to seek a determination of the "meaning" of article VIII, section 15. See supra note 5. Considering this limited question, considering the unique constitutional status and duties of schools regarding K-12 education, and considering the agreement that the underlying issue is a matter of great public importance, I agree with the previously cited authorities holding that schools have standing to seek *328 declaratory relief under the public interest exception. It must, however, be emphasized that such standing should only be recognized at this stage of the proceeding, and then only for the limited question of interpreting and determining the meaning of the education clauses and statutes.[9] To this extent, I concur in result.
[¶ 35.] The majority's standing exception is based on a theory of trust law; i.e., that a trust beneficiary has standing when asserting a claim of "right" to trust funds. See supra ¶ 6 (stating: "To establish standing, the school districts rely on provisions in the South Dakota Constitution that directly and expressly accord school districts rights to certain funds") (emphasis added). The majority relies on case law and constitutional provisions recognizing the school districts' direct and express rights in two trust funds. The first is the perpetual trust fund established by article VIII, section 2, which is funded from the sale of public lands, escheated property, and gifts. The second is the trust for collected fines established by article VIII, section 3. See supra ¶¶ 8-13 (discussing the perpetual trust fund) and supra ¶ 14 (discussing the proceeds of fines).
[¶ 36.] School districts do not, however, seek relief in the underlying litigation for any act or omission with respect to these two existing trust funds. Instead, according to the Third Amended Complaint, the school districts seek a larger future legislative appropriation of general funds through general taxation under the article VIII, section 15. Critically, that constitutional provision leaves some discretion to the Legislature, and it certainly has not created a trust fund. Article VIII, section 15 merely provides that the Legislature shall "make such provision by general taxation [which shall with other funds[10]] secure a thorough and efficient system of common schools throughout the state."
[¶ 37.] Consequently, article VIII, section 15 the focus of the underlying litigation does not provide school districts with any direct or express right to any trust *329 fund, and it certainly does not provide school districts with trust rights in the funds they seek: future increased appropriations. After all, the Legislature could, as it did in 1996 after the last school funding litigation, completely repeal and adopt a new method of funding K-12 education. See 1996 Session Laws ch 69, "An Act to revise and repeal certain provisions relating to state aid to education." Therefore, although Schelle v. Foss, 76 S.D. 620, 83 N.W.2d 847 (1957) and State v. Ruth, 9 S.D. 84, 68 N.W. 189 (1896) support the theory that school districts would be injured parties with standing if the trust funds in article VIII, sections 2 and 3 were not being used in accordance with constitutional requirements, that is not the allegation in the underlying litigation. For that reason, school district standing based on a trust beneficiary's "rights" to trust funds has no application in this case.[11]
[¶ 38.] KONENKAMP, Justice, joins this special writing.
NOTES
[1] The school district board members of the three districts involved in the instant suit include: Brad Olson, Duane Alm, Michael Miller, Linda Burdette, Russell Gall, Merritt Stegmeier, Tommy Svatos, Terry Svatos, Debbra Houseman, John Brooks, Madeline Fast Horse, Karen Slunecka, Dawn Redden, Terry Aesoph, Heather Bode, and Grady Heitmann.
[2] The organization, the Alliance for Education commissioned the adequacy study to "tie resources to outcomes." Other members of the Alliance include: the Associated School Boards of South Dakota (ASBSD), the School Administrators of South Dakota, the ESD Plus Six (a lobbying organization for school districts), and the Middle Schools Organization. The South Dakota adequacy study is available on the Alliance's website. See Estimating the Cost of an Adequate Education in South Dakota, http://www.sdalliance foreducation.org/object/u/AdequacyStudy.pdf (last visited July 13, 2009).
[3] This doctrine first surfaced in the Constitutional Debates of 1885. The following was proposed by two delegates concerning what would become Article VIII.
Mr. Edgerton: "I would have the school fund beyond all possible control of the elections of the future state; if there is any fund that should [b]e sacredly set apart beyond a possibility of its being used for such purposes, it is the school fund." At p. 500.
Mr. Kanouse: "The parties who hold this [school] fund, hold it nominally as a sacred trust and against the possibility of its being used for political purposes." At pp. 515-516.
[4] At that time, Article VIII, section 11 authorized borrowing from the school funds for mortgages upon farm land. The counties assumed certain legal obligations to see that these funds were repaid. Such loan authority was removed by amendment of section 11 in 1952.
[5] At oral argument, counsel for the school districts stated that in the underlying litigation, the plaintiffs are "seeking an interpretation of article VIII, what does it mean that ... the State is to adopt all suitable means to provide an education? Are the school districts entitled to have sufficient funds to provide an adequate education? What does an adequate education mean?"
[6] Although the State relies on authorities finding no standing for governmental subdivisions, those authorities are distinguishable as they either apply to other governmental subdivisions having no specific constitutional duty with respect to the issue in litigation, or the recognized standing exceptions are inapplicable or not discussed. See e.g. Denver Ass'n for Retarded Children, Inc. v. Sch. Dist. No. 1 in City and County of Denver, 188 Colo. 310, 535 P.2d 200 (1975); Lobato v. State, ___ P.3d ___, 2008 WL 194019 (Colo.App.2008); Bd. of Supervisors of Linn County v. Dep't of Revenue, 263 N.W.2d 227 (Iowa 1978); East Jackson Pub. Sch. v. State, 133 Mich.App. 132, 348 N.W.2d 303 (1984); New York State Ass'n of Small City Sch. Dist., Inc. v. State, 42 A.D.3d 648, 840 N.Y.S.2d 179 (3d Dept.2007).
[7] Although I agree with the Washington court's view of school standing in light of the school districts' constitutional obligation to provide education, I would not adopt the Washington court's view of standing for other governmental entities. The State's authorities from other jurisdictions overwhelmingly demonstrate that, absent the constitutional zone of interest that state constitutions provide to schools, other governmental entities, as creatures of the legislature, have no standing. South Dakota has adopted this view. For example, we have stated that:
Counties and other municipal corporations are, of course, the creatures of the Legislature; they exist by reason of statutes enacted within the power of the Legislature, and we see no sound basis upon which a ministerial (or, for that matter, any other) office may question the laws of its being. The creature is not greater than its creator, and may not question that power which brought it into existence and set the bounds of its capacities.
Edgemont Sch. Dist., 1999 SD 48, ¶ 15, 593 N.W.2d at 40 (quoting Bd. of Supervisors of Linn County, 263 N.W.2d at 232 (quoting C. Hewitt & Sons Co. v. Keller, 223 Iowa 1372, 275 N.W. 94, 97 (1937))).
[8] See, e.g., SDCL §§ 13-3-62, 13-3-69, 13-6-2, 13-13-11.
[9] In the underlying litigation, the circuit court dismissed all claims except those seeking declaratory relief. That litigation has not been finalized and it is not known if the dismissed claims may be the subject of an appeal. In any event, in light of the Schools' appellate limitation on their request for relief, see supra note 5, it should be understood that today's decision is no authority for the proposition that public schools have standing to take the often utilized step of also seeking enforcement of a declaratory ruling, which might, for example, include a request for monetary or other affirmative relief against the State. See Dan Nelson Auto., Inc. v. Viken, 2005 SD 109, ¶¶ 30-31, 706 N.W.2d 239, 251-52 (restating that declaratory relief is unavailable to governmental subdivisions seeking monetary relief from the state treasury).
For the same reason, today's decision should not be understood to mean that school districts have standing to seek the other relief they initially sought in the underlying litigation; namely,
That the [circuit] court issue appropriate writs of mandamus, writs of prohibition, and/or interim and permanent injunctive relief to bring defendants into compliance with article VIII of the South Dakota Constitution, to prohibit the defendants from administering, enforcing and/or funding those provisions of the public school financing system that are unconstitutional, and to remedy the continuing violation of plaintiffs' constitutional education rights; and That the court retain jurisdiction and maintain judicial oversight to assure that the Legislative and Executive departments act appropriately to correct the constitutional inadequacies of the public school finance system that presently exists in South Dakota.
Third Amended Complaint, 83.
[10] Although article VIII, section 15 also provides that the Legislature shall make provision for the school corporations to levy such additional local taxes, there is no allegation in the underlying complaint that the Legislature has failed to authorize the school districts to levy local taxes for their schools.
[11] There is one limited exception. To the extent the underlying plaintiffs allege inappropriate use of the article XII, section 6 Education Enhancement Trust Fund, the majority's trustee beneficiary theory could apply. That does not, however, appear to be the focus of the underlying litigation.
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31 F.Supp.2d 1069 (1999)
Thaddeus W. EDWARDS Jr., etc., Plaintiff,
v.
Officer Angela THOMAS, et al., Defendants.
No. 96 C 8203.
United States District Court, N.D. Illinois, Eastern Division.
January 7, 1999.
*1070 Andrew Kopon, Jr., Kopon, Shaughnessy & Spina, Chicago, IL, for Plaintiff.
*1071 Brendan S. Power, Chicago Housing Authority, Chicago, IL, for Defendant.
MEMORANDUM OPINION AND ORDER
SHADUR, Senior District Judge.
After the completion of discovery in this 42 U.S.C. § 1983 ("Section 1983") action brought by Thaddeus Edwards ("Edwards") against Chicago Housing Authority ("CHA") Police Officers Angela Thomas ("Thomas"), Arthur Lindsay ("Lindsay"), Dale Mitchell and David Lipinski (collectively "Officers"), counsel for the litigants jointly submitted a proposed final pretrial order ("FPTO") that was then entered by this Court. Thereafter the litigants tendered their respective motions in limine supported by legal memoranda, and each side then responded with a legal memorandum or memoranda in opposition to the other side's motions. This memorandum opinion and order addresses the motions seriatim.
Edwards' Motions in Limine Edwards' Prior Convictions (Dkt. No. 49)
Edwards brought a motion to exclude evidence relating to his prior convictions on two grounds: (1) as not probative of any fact and (2) even if probative, as nonetheless highly prejudicial and misleading to the jury. But the first branch of his argument that such convictions have no probative value because the focus of a Section 1983 action is the reasonableness of the defendant's actions (E. 1st Br.2)[1] is directly at odds with one of the Federal Rules of Evidence ("Rules"). Rule 609 embodies "[t]he proposition that felons perjure themselves more often than other, similarly situated witnesses" (Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987)),[2] and therefore expressly permits the introduction of a witness' prior felony convictions to impeach his or her testimony.
Of course Rule 609(a)(1) lends conceptual credence to the second branch of Edwards' motion: It requires the Court to evaluate the evidence under a Rule 403 weighing test to determine whether "its probative value is substantially outweighed by the danger of unfair prejudice." That weighing test is at the heart of the analysis here.
E. 1st Br. 3 framed the potential danger of introducing such evidence in an excessive force suit by pointing to language from Llaguno v. Mingey, 763 F.2d 1560, 1569 (7th Cir.1985), also quoted in Geitz v. Lindsey, 893 F.2d 148, 151 (7th Cir.1990):
[C]ivil rights actions often pit unsympathetic plaintiffs-criminals, or members of the criminal class ... against the guardians of the community's safety, yet serve an essential deterrent function.
That however is not an automatic bar thus Geitz itself permitted the introduction of plaintiff's pending charges and prior unrelated convictions after weighing the evidence in Rule 403 terms.
Indeed, in every case Edwards cites involving the issue of prior convictions or misconduct, save Christmas v. Sanders, 759 F.2d 1284, 1293 (7th Cir.1985),[3] at least some of the plaintiff's prior convictions or misconduct were admitted either for impeachment purposes or as substantive evidence bearing on *1072 the reasonableness of the officers' actions. It is useful to examine those cases briefly.
Wilson v. Groaning, 25 F.3d 581, 585-86 (7th Cir.1994), another excessive force action, permitted the use of three out of plaintiff's six prior convictions for impeachment purposes. Wilson found that the admission of the convictions was not prejudicial because the operative facts occurred while plaintiff was in prison, so the jury would already know he had been convicted of something.
Crawford v. Edmonson, 764 F.2d 479, 482-85 (7th Cir.1985) permitted evidence of plaintiffs' prior misconduct with guns to come in as probative of the reasonableness of defendant officer's actions in shooting the boys. Though the issue was viewed as debatable, Crawford found that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice where the jury already knew plaintiffs were involved in an armed robbery on the night of the incident.
Even though such a District Court opinion has no precedential force in any event, Charles v. Cotter, 867 F.Supp. 648, 655-56 (N.D.Ill.1994) permitted the defendants to cross-examine plaintiff as to his three felony convictions that were less than ten years old, but under Rule 609(b) excluded evidence of three convictions that were more than ten years old. Charles, id. at 655-56 found the danger of undue prejudice was lessened by limiting the cross-examination to the crime charged, the date and the disposition.
Here the jury will already know that Edwards sold heroin to the undercover officers before the arrest that resulted in this excessive force claim.[4] Hence admitting evidence of his earlier narcotics convictions one in 1992 for possession of a controlled substance and one in 1993 for possession of narcotics with intent to deliver will not place a different sort of criminal activity before the jury, thus generating a danger of unfair prejudice that would substantially outweigh the evidence's probative value.[5] This case is similar to such cases as Wilson and Crawford in that respect. To minimize any potential danger of unfair prejudice, this Court will limit the cross-examination to an identification of each crime charged, the disposition date and the disposition (see Campbell, 831 F.2d at 707).
There is of course an added potential of such prejudice identified in Wilson, 25 F.3d at 585 (quoting the trial court):
it might be prejudicial to overload the factfinder ... [by] put[ting] in all the convictions because [the jury] might well determine that as a result of having that many convictions, that regardless of how the facts come out, that Wilson is a person not deserving of any relief.
That consideration calls for the exclusion of any evidence of Edwards' earlier crimes of a different nature: convictions stemming from his 1989 guilty plea for burglary or his 1989 guilty plea for possession of a stolen vehicle. Edwards' two most recent convictions suffice for potential impeachment of his credibility at the trial.
Drug Evidence (Dkt. No. 50)
Edwards' second motion in limine requests that Officers be barred (1) from presenting evidence of Edwards' ingestion of drugs prior to the incident, his sale of drugs to the Officers or his drug screen results and (2) from presenting any documents indicating that the substance he sold that day was cocaine or heroin. Those efforts at obtaining such a blanket exclusion fail.
First Edwards argues that his consumption of drugs before and during his arrest are not relevant because the focus of the case is *1073 on the reasonableness of the Officers' actions, not on Edwards' own conduct (E.2d Br.2). To that end Edwards cites Palmquist v. Selvik, 111 F.3d 1332, 1340 (7th Cir.1997) for the proposition that his consumption of drugs before the police entered the premises should be excluded because it was outside of Officers' presence. But while Palmquist did uphold the exclusion of evidence that the plaintiff had a "death wish" that was unknown to the police, the Court of Appeals noted (id. at 1341-42, citing Saladino v. Winkler, 609 F.2d 1211, 1214 (7th Cir.1979)) that the magistrate judge could have admitted the preseizure evidence of intoxication and possession of marijuana. Saladino, id. held that evidence of plaintiff's intoxication was admissible under Rule 403 because it:
tends to make more probable that the plaintiff acted as the defendant contended he did or that plaintiff otherwise conducted himself in such a manner as to place the defendant reasonably in fear of his life.
In this instance Edwards' prior consumption of drugs and, more clearly, his consumption of the contraband (49 bags of heroin) during the arrest provide weight to Officers' argument that the jury could view those things as significant in determining whether he was "vigorously and actively" resisting arrest (O.2d R. Br.1). Likewise, Edwards' positive drug screen for cocaine opiates confirming his drug use is relevant and admissible. O.2d R. Br. 1-6 and 8-9 provides a thorough explanation of Officers' relevant and proper use of such evidence for their defense that need not be repeated here.
Next, evidence of Edwards' sale of drugs is necessary to Officers' ability to explain the incident. Its probative value in setting the stage for Edwards' arrest substantially outweighs any potentially unfair prejudice, satisfying Rule 403. Without evidence of the drug sale it would appear that Officers arrested Edwards without any reason. And as noted earlier in this opinion, Edwards' guilty plea to the drug sale is admissible as a prima facie admission (see Charles, 867 F.Supp. at 656, citing Brown, 738 F.2d at 206).
Finally, Officers' Exs. 3 to 14, comprising documents and physical evidence relating to the undercover purchase of heroin (including, for example, the plastic bags that were filled with heroin and chewed by Edwards, tests confirming the substance was heroin, money used to purchase the heroin and the heroin itself), are also admissible. That evidence is relevant to the jury's understanding of what happened to prompt the arrest (the sale of drugs) and what took place during the arrest (Edwards' attempt to conceal or swallow the drugs) and involves no unfair prejudice to Edwards.
It must be understood, however, that these general holdings regarding the admissibility of drug-related evidence are not intended to grant Officers a blank check in terms of using that evidence. Though Edwards' exclusion motion has been denied, it will be left to be determined during the course of the trial whether the manner in which the evidence is presented or the sheer quantity of the evidence is unfairly prejudicial or cumulative under Rule 403.[6]
Events and Actions after the Incident (Dkt. No. 51)
Edwards' third motion in limine seeks to bar evidence (1) as to his actions at the hospital emergency room after the arrest and (2) as to the doctors' having prescribed and administered Golytly to cleanse Edwards' body of heroin. Both requests are denied.
Edwards' behavior in the emergency room, following so shortly on the heels of his arrest (Thomas testified that it took only a few minutes to transport Edwards to the hospital (Dep.41)), is not so much "after" the alleged excessive force incident as it is part of the continuing interaction between Edwards and Officers (who were present and who claim they were still attempting to subdue and control Edwards and remove the evidence from his mouth) (O. 3rd R. B.2). Thus Edwards' actions are not inadmissible under Rule 404(b) instead they constitute evidence relevant to whether Edwards resisted *1074 arrest and whether Officers' actions were reasonable under the circumstances.
Administration of Golytly to Edwards is also relevant to the cause of Edwards' hospitalization and is not unfairly prejudicial. Drs. Lester Wright (Dep.34-35), Yaakov Friedman (Dep.46-47) and Amit Chakravarty (Dep.48) all testified that Edwards' three-day hospital stay was based solely upon his ingestion of 40 bags of heroin, not due to any injuries he might have received from Officers. Evidence as to the medical treatment for the heroin ingestion is therefore relevant to counter a possible argument by Edwards that the Officers' excessive force put him in the hospital for three days.
Officers' Motions in Limine (Dkt. No. 48) Officers' Prior and Subsequent Acts (also Edwards' cross-motion, Dkt. No. 52)
Edwards moves to admit evidence of five complaints of excessive force against Lindsay. Officers move that those complaints (and all other complaints against Lindsay and the other Officers) be barred. Four of the complaints against Lindsay were not sustained and therefore will not be considered in this analysis (subject to the condition stated in n. 9).[7] Edwards' motion is denied as to those complaints (IGC 94-267, IGC 94-262, IGC 94-318 and CC 97-0019), while Officers' corresponding motion is granted.
Only one excessive force complaint (CC 96-0357) against Lindsay was sustained. It resulted from a December 27, 1996 incident (almost two years after Edwards' January 22, 1995 arrest). United States v. Zapata, 871 F.2d 616, 620 (7th Cir.1989) sets out the required Rule 404(b) analysis:
To determine if such evidence is admissible, the district court must engage in a four-pronged analysis and evaluate whether (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.
Edwards says that the sustained complaint is not mere propensity evidence, rather being admissible under the Rule 404(b) exception that permits proof of Lindsay's intent in this instance his intention to commit assault and battery on Edwards. That contention is consistent with the holding in another Section 1983 action, Wilson v. City of Chicago, 6 F.3d 1233, 1238 (7th Cir.1993)(where plaintiff claimed he was tortured into giving a confession, evidence that the same officers had tortured two other suspects was held admissible to show intent and opportunity, preparation and plan to boot); see also Young v. Rabideau, 821 F.2d 373, 379 (7th 1987), citing with approval Carson v. Polley, 689 F.2d 562, 572-73 (5th Cir.1982)(a Section 1983 action where an officer's record of loss of temper and hostility toward others was held admissible to show his intent to do harm in the case at bar). Edwards' use of the sustained complaint to show intent therefore satisfies the first element of the Zapata formulation.[8]
Prong three of the formulation is readily satisfied. It is unnecessary to draw any inference from the low incidence of sustained complaints against police officers to hold that where such a complaint is sustained "the *1075 evidence is sufficient to support a jury finding that the defendant committed the similar act" (Zapata, 871 F.2d at 620). And although the second and fourth prongs are somewhat more difficult to satisfy, it takes only a moment to see that they are met here as well.
As to the second component, defense counsel attempt to make much of the fact that the incident addressed in the sustained complaint took place after rather than before Edwards' arrest. But United States v. Brown, 31 F.3d 484, 492 (7th Cir.1994) (among other cases) has expressly said that "trial courts may admit evidence of prior or subsequent bad acts" as long as they satisfy the four-prong test. Although to be sure the actions at issue in the sustained complaint occurred almost two years after Edwards' arrest, the striking comparability of the conduct involved (in each instance Lindsay's excessive force allegedly included, among other things, kicking an arrestee in the groin during the arrest (E.Br.9)) makes it "similar enough ... to be relevant to the matter in issue" (Zapata, 871 F.2d at 620).
Finally, as to the last of the four Zapata elements, Officers urge that unfair prejudice will result from the admission of the disputed evidence. They are of course correct in suggesting that the evidence is prejudicial (both because all relevant evidence is prejudicial by definition and because the sustained complaint involved egregious behavior), but the Rule 403 formulation speaks only of "the danger of unfair prejudice." That can be avoided by an appropriate cautionary instruction to the jury, to make clear that it is to decide whether or not Lindsay committed the similar act (so it is not to be controlled by the administrative determination in that respect).
In sum, Edwards' motion is granted as to the sustained excessive force complaint against Lindsay (CC 96-0357), but is denied as to all other evidence of complaints against Lindsay or any of the other Officers.[9] On the flip side of the same issues, Officers' motion is denied as to the sustained complaint and is granted as to all other complaints.
References to Defense Counsel
Officers' motion to bar references to their attorneys as "CHA attorneys" or "Housing Authority's Attorneys" is unopposed. This Court never apprises jurors of the law firm or any other affiliations of trial counsel. That motion is granted.
CHA's Indemnification of Officers
Officers' motion to bar any testimony or evidence suggesting that Officers may be indemnified by CHA for any compensatory damages returned against them is also unopposed. That motion too is granted, but on condition that Officers' counsel may not offer any evidence or tender any argument to the jury suggesting their clients' modest means or the clients' difficulty in being able to respond to an award of such damages.
Police Regulations/General Orders and Officer Training/Knowledge of Law
Defense counsel seek to engage in substantial overkill by moving to bar (1) "[a]ny testimony or evidence regarding police regulations or general orders or suggesting that Defendants or any police officers may have breached or violated any such regulations or orders during Plaintiff's arrest" (O.Br.8) and (2) "information relating to defendant's training or knowledge of the law" (O.Br.9). It is of course true that such violations of regulations or training (if they occurred) would not necessarily equate to violations of Edwards' constitutional rights that form the predicate for his Section 1983 claims against Officers. But it is equally true that any such violations could be both relevant and probative toward Edwards' claim of such violations of constitutional rights.
*1076 Objective reasonableness, the standard for excessive force claims (Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)), requires an analysis of what a hypothetical reasonable officer would have known and done in light of the circumstances confronting the actual officer in the case. Police regulations, general orders and officer training provide a relevant (although not conclusive) benchmark for making such a comparison. Any potential for the jury's automatically finding regulatory violations to equal constitutional violations can be curbed by appropriate jury instructions. So Officers' blanket motions are denied as tendered, with the subject to be taken up in appropriate fashion at trial.
Standards Not Defined by Jury Instructions
Officers' next motion proposes that Edwards' counsel be prevented from "[r]eferring to a `standard of care,' to any duty, to any failure to act, to negligence or to any standard other than the standard defined by the jury instructions for this case." That motion is offered in a vacuum, lacking any support or even speculation as to what Edwards might attempt to do in any of those respects. As such, the motion is inappropriately premature: There has been no discussion of jury instructions, and no context exists for considering the propriety of the proposed exclusions. That motion is denied without prejudice.
Police "Code of Silence"
Officers request the exclusion of all testimony that police officers in general, or in this case specifically, cover up for each others' conduct through a code of silence. Although Edwards responds that he currently does not intend to introduce such evidence, it remains unknown what testimony could develop at trial. At that point the evidence could be considered in the proper context but for now the motion is denied without prejudice to its possible future reassertion.
Evidence of Edwards' Reputation
As O. Br. 10 points out, Rule 608 allows evidence of a witness' good character to be introduced only after the character of the witness has been attacked. Once again we have a motion that, because of its prematurity, is both confusing and unnecessary at this point. It too is denied.
Police Misconduct Publicity
Officers request that recent publicity regarding allegations of police misconduct or the absence of recording devices during the January 23, 1995 incident be kept from the jury. Edwards correctly points out that questions regarding publicity may well be appropriate during voir dire. Furthermore, it remains unknown what other relevant testimony could develop at trial, when the evidence could be considered in the proper context. At this point the motion is denied without prejudice.
Undisclosed Witnesses and Exhibits
Whether a party may call an undisclosed witness or refer to undisclosed exhibits is essentially controlled by the FPTO, which (among other things) establishes the game plan for trial. Although some exception may arise that would call for further evaluation during the trial, for the present both motions to bar such undisclosed evidence are granted.
Racial Motivation
Next Officers ask that Edwards be barred from eliciting testimony and from attempting to imply, comment or argue that Officers' conduct was racially motivated. Edwards has responded that he currently does not intend to introduce such evidence. Unless and until some occasion arises to revisit the issue, as would seem unlikely, the motion is granted.
Sale of Drugs and Probable Cause for Arrest
In part Officers submit motions that are the obverse side of a coin tendered by Edwards and already addressed in this opinion. As stated earlier, Edwards' guilty plea to the drug sale is admissible as a prima facie admission, and it would seem highly doubtful that he could tender admissible evidence that he did not sell or deliver illegal narcotics to Thomas and Lindsay (then acting undercover) on January 23, 1995. To turn to a somewhat related nonissue, Edwards will not be allowed to introduce evidence that the Officers lacked probable cause to arrest him that day, because probable cause is not at issue in this case. Edwards' Complaint did not include allegations that Officers lacked probable *1077 cause, and on August 28, 1998 this Court denied an oral motion to amend the Complaint in that respect. Though the first-mentioned motion must be denied as a purely technical matter (it may perhaps be possible for Edwards to seek to counter the prima facie case on that score), the second motion by Officers is granted.
Intentional Placement of Heroin Bags in Mouth
Edwards judicially admitted, via his answer to Officers' March 25, 1998 Request to Admit Question 4, that he placed 49 bags of heroin in his mouth when Officers entered the apartment. Accordingly Officers' motion to bar Edwards from arguing that he did not intentionally place multiple packages of heroin into his mouth is granted.
Pain and Disability Testimony
Officers ask that Edwards be barred from testifying as to any future or permanent disability, including the possibility of future surgery, as well as from giving any medical testimony at all. They invoke Hiatt v. Finkl, 132 Ill.App.2d 92, 265 N.E.2d 690 (2d Dist. 1971) in purported support of that proposition, but neither that case nor any other forecloses Edwards from providing any medical testimony at all (indeed, Hiatt itself permitted some such testimony by the plaintiff there). For example, Edwards may of course testify both as to his personal knowledge of his condition and as to his doctors' statements about his condition that contribute to his state of mind. Any other possible testimony is more properly evaluated in the context of the trial. Officers' global motion is denied.
Calling Witness Shainett Haynes
Officers request that Edwards be barred from calling Shainett Haynes ("Haynes") to testify at trial unless that intention is disclosed to them no later than 21 days before the scheduled trial date (neither side now knows Haynes' whereabouts). Because any prospect of locating Haynes is necessarily speculative, Officers' 21-day requirement is denied, but if Haynes is located hereafter Edwards will not be allowed to call her as a witness unless Officers are afforded an adequate opportunity to take Haynes' deposition beforehand (this requires, of course, that Edwards must disclose Haynes' current address or location to the Officers as soon as he or his counsel learn it).
Conclusion
As stated earlier, Edwards' motions embodied in Dkt. Nos. 50 and 51 are denied, while Edwards' motions embodied in Dkt. Nos. 49 and 52 are granted in part and denied in part. Because all of Officers' motions in limine are included in Dkt. No. 48, those motions are granted in part, denied in part and deferred in part for the reasons stated in this opinion.
NOTES
[1] This opinion cites to the memoranda in support of Edwards' four motions in limine using the shorthand "E. 1st Br. ," etc., and similarly to Officers' responsive memoranda as "O. 1st R. Br. ," etc. Because Officers' 17 motions are all included in one memorandum, the citations to that memorandum will simply read "O. Br. ," and Edwards' responsive memorandum addressed to those motions will be cited as "E. R. Br. ."
[2] Campbell, id. expresses serious (and entirely proper) doubt as to that premise but concludes (with equal propriety) that it is not the judicial role to decline to apply the Rule on that ground.
[3] Christmas, 759 F.2d at 1292 upheld the exclusion of the plaintiff's rape conviction because it might have been "more probative on the issue of whether Christmas was a `bad person' and had a propensity to assault women." At issue was whether he made suggestive remarks to the offduty female officer and began assaulting her before she shot him. Given the factual circumstances, Christmas' prior rape conviction presented a far greater danger of unfair prejudice than Edwards' prior convictions do here. There is no question that Edwards was engaged in selling drugs and that Officers were entitled to arrest him the issue is only whether they used excessive force while doing so whereas the entire interaction in Christmas would have been clouded by the evidence of the plaintiff's rape convictions.
[4] Edwards pleaded guilty to selling heroin that night. As noted in Charles, 867 F.Supp. at 656 (citing Brown v. Green, 738 F.2d 202, 206 (7th Cir.1984)), Illinois courts treat guilty pleas as prima facie admissions of the facts alleged in the complaint, admissions that may be used against defendants in later proceedings. Under 28 U.S.C. § 1738 this Court must give preclusive effect to state court judgments whenever the courts of that state would do so, so that Edwards's guilty plea does constitute a prima facie admission of the underlying facts.
[5] It must be remembered that Rule 609 reflects a policy determination that any felony conviction, not just those involving dishonesty or false statement, necessarily bears on a witness' credibility (contrast Rule 609(a)(1) with Rule 609(a)(2)). As an original matter that leaves this Court unpersuaded (see n. 2), but this Court is obligated to apply the Rule as written rather than adhering to its own predilections.
[6] This ruling on admissibility also does not necessarily mean that the exhibits will go to the jury room during jury deliberations. As with all other exhibits, that subject will be addressed during the jury instruction conference following the closing of proofs.
[7] In terms of Rule 404(b) alone (before any Rule 403 balancing), Huddleston v. United States, 485 U.S. 681, 685, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) stated that evidence of other bad acts "should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act." Where a complaint has already been rendered "not sustained," that threshold determination is rendered questionable although it could well be held that the combination of (1) one sustained complaint with (2) other very similar complaints that were found "not sustained" (a term of art, not to be confused with an exonerative finding that a complaint was held to be "unfounded") would support the admission of those other complaints as well, to allow the factfinder to evaluate the situation as the Huddleston approach counsels.
[8] Although the standard for Section 1983 excessive force claims is objective reasonableness rather than a subjective test (a matter mentioned a bit later), Edwards' prayer for punitive damages would appear to make the issue of Officers' intent to do harm relevant on that claim as well.
[9] Defense counsel are cautioned that they will not be permitted at trial (as for example in closing argument) to attempt to downplay the significance of the evidence as to the sustained complaint by such assertions as, for example, that it was only an isolated incident a sport as to Lindsay. This Court's exclusion of two of the similar complaints (IGC Nos. 94-318 and 97-19) that were found "not sustained" at the administrative level has given Lindsay the benefit of the doubt in Rule 403 terms. Unless defense counsel are prepared to commit themselves in advance to the constraint referred to here, this Court would be required to reevaluate the Rule 403 balancing as to those other two complaints (see n. 7).
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09-1817-cv
Persaud v. St. Vincent’s Services
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure
32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
court, a party must cite either the Federal Appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 4th day of June, two thousand and ten.
PRESENT:
JOSÉ A. CABRANES,
RICHARD C. WESLEY,
Circuit Judges,
BRIAN M. COGAN ,
District Judge.*
-------------------------------------------x
MONICA G. PERSAUD,
Plaintiff-Appellant,
v. No. 09-1817-cv
ST. VINCENT’S SERVICES, INC ., ALLISON NELSON , Manager,
ADEBAYO IYANDA, Director, JANICE ASHTON , Managing
Director,
Defendants-Appellees.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
*
The Honorable Brian M. Cogan, of the United States District Court for the Eastern
District of New York, sitting by designation.
1
FOR APPELLANT: Monica G. Persaud, pro se, Greenpoint, New York.
FOR APPELLEES: Sean Close, Putney, Twombly, Hall & Hirson LLP; New York,
New York.
Appeal from a March 31, 2009 judgment of the United States District Court for the Southern
District of New York (Sandra L. Townes, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the District Court’s judgment is AFFIRMED.
Plaintiff-appellant Monica G. Persaud (“plaintiff”), pro se, brought this suit alleging various
claims of employment discrimination against defendants-appellees St. Vincent’s Services, Allison
Nelson, Adebayo Iyanda, and Janice Ashton (collectively, “defendants”). The District Court granted
summary judgment for defendants with respect to each of plaintiff’s claims. Plaintiff then brought
this timely appeal. We assume the parties’ familiarity with the underlying facts, the procedural
history of this action, and the issues raised on appeal.
We review an order granting summary judgment de novo. We ask whether the District Court
properly concluded that there were no genuine issues of material fact and that the moving party was
entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300
(2d Cir. 2003). In determining whether there are genuine issues of material fact, we “resolve all
ambiguities and draw all permissible factual inferences in favor of the party against whom summary
judgment is sought.” See Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks
omitted).
We have considered each of plaintiff’s arguments on appeal and have determined that they
are meritless. We therefore affirm the District Court’s grant of summary judgment to defendants for
substantially the reasons set forth in the December 5, 2008 Report and Recommendation of the
Magistrate Judge (insofar as that Report and Recommendation was adopted by the District Court in
its March 31, 2009 order).
CONCLUSION
For the foregoing reasons, the March 31, 2009 judgment is AFFIRMED.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
2
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173 F.Supp.2d 41 (2001)
THE RELIABLE AUTOMATIC SPRINKLER CO., INC. Plaintiff,
v.
CONSUMER PRODUCT SAFETY COMMISSION, Defendant.
Civil Action No. 01-00025(ESH).
United States District Court, District of Columbia.
November 28, 2001.
*42 Stephen Printiss Murphy, Reed, Smith, Shaw & McClay, L.L.P., Washington, DC, for plaintiff.
Steven Neil Gersten, U.S. Department Of Justice, Office of Consumer Litigation, Washington, DC, for defendant.
MEMORANDUM OPINION
HUVELLE, District Judge.
The question before this Court is whether the commencement of an investigation by the staff of the Consumer Product Safety Commission ("CPSC") under the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq. ("CPSA"), constitutes "final agency action" within the meaning of Section 704 of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"). The CPSC enjoys regulatory jurisdiction over "consumer products," as defined by 15 U.S.C. § 2052(a)(1), and pursuant to this authority, the CPSC staff has been investigating sprinkler heads manufactured by The Reliable Automatic Sprinkler Co., Inc. ("Reliable"). Reliable seeks declaratory relief, claiming that its products are not "consumer products," and therefore not within the regulatory ambit of the CPSC. As explained more fully below, because the agency's action at this preliminary stage does not constitute final agency action, this Court lacks subject matter jurisdiction over Reliable's claim, and defendant's motion to dismiss must therefore be granted.
BACKGROUND
Reliable manufactures the Model A Flush sprinkler head, which is incorporated into automatic fire sprinkler systems throughout the United States. The CPSC has been investigating the Model A Flush sprinkler head since 1999 to determine whether it performs reliably. The CPSC claims to have gathered evidence sufficient to support a "preliminary determination that ... [the Model A Flush] sprinklers present a substantial product hazard, as defined by Section 15(a) of the Consumer Product Safety Act ...." (Memorandum in Support of Defendant's Motion to Dismiss [hereinafter Def.'s Mem.], Ex. A.) Although the CPSC staff has not yet made that preliminary determination pursuant to *43 15 U.S.C. § 2064(a), in a letter dated September 11, 2000, the staff communicated to Reliable its intention to do so. (Def.'s Mem. at 3-4.) In that same letter, the CPSC requested that Reliable undertake a voluntary "corrective action plan," as described in 16 C.F.R. § 1115.20(a). (Def.'s Mem. at 3.) To date, no corrective plan has been instituted. (Id. at 4.)
Instead, taking the offensive, Reliable filed a complaint on January 9, 2001, seeking declaratory relief. Specifically, Reliable seeks a declaration that its sprinkler heads are not "consumer products" within the meaning of the CPSA. On July 27, 2001, defendant filed a motion to dismiss, arguing that this Court has no jurisdiction over Reliable's claim because there has been no final agency action within the meaning of the APA.
ANALYSIS
Review of agency action is available when specified by statute or for "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. In this case, defendant does not allege, nor could it, that the CPSA independently confers jurisdiction over the CPSC's preliminary administrative determination that Reliable's sprinkler head is a "consumer product." See generally 15 U.S.C. § 2051 et seq. Therefore, to establish jurisdiction, Reliable must be able to point to some final agency action. See American Telephone & Telegraph Co. v. EEOC, 270 F.3d 973, 975 (D.C.Cir.2001) (district court's authority is limited to challenges to "final agency action"); DRG Funding Corp. v. Secretary of Housing and Urban Dev., 76 F.3d 1212, 1214 (D.C.Cir.1996) (final agency action is "jurisdictional" requirement).[1]
The standard for determining if an agency's action is final and therefore reviewable was set forth by the Supreme Court in FTC v. Standard Oil of Cal., 449 U.S. 232, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980).[2] In that case, the Federal Trade *44 Commission ("FTC") filed a complaint against a number of oil companies, averring that it had "`reason to believe' that the companies were violating [federal law]." Id. at 234, 101 S.Ct. 488. Prior to a final adjudication of the complaint, the Standard Oil Company of California ("Socal") filed a complaint in federal court, asserting that the FTC had issued its complaint without "reason to believe" that there had been any violation. Id. at 235, 101 S.Ct. 488. The Court held that the agency's preliminary determination that it had "reason to believe" was not a final agency action or otherwise reviewable under the APA. Id. at 238, 101 S.Ct. 488. The FTC's averment of a "reason to believe" was not a "definitive statement of position"; rather, it "represent[ed] a threshold determination that further inquiry is warranted and that a complaint should initiate proceedings." Id. at 241, 101 S.Ct. 488. Furthermore, the Court noted that the FTC's decision had no "legal or practical effect, except to impose on Socal the burden of responding to the charges made against it," and while that burden might be substantial, it was different "in kind and legal effect" from the burdens imposed by conduct traditionally considered final agency action. Id. at 242, 101 S.Ct. 488. Since the FTC's issuance of a complaint was not final agency action within the meaning of Section 704 of the APA, it was "not judicially reviewable before administrative adjudication concludes." Id. at 246, 101 S.Ct. 488.
As is clear from Standard Oil, the actions of the CPSC staff do not rise to the level of final agency action. Like the FTC in Standard Oil, the CPSC has conducted an investigation. The CPSC clearly believes that it has gathered sufficient evidence to support a preliminary determination that Reliable's sprinkler heads pose a "substantial product hazard" under the CPSA, 15 U.S.C. § 2064(a). (Def.'s Mem. at 3.) But unlike Standard Oil, where the FTC had made a precatory finding of "reason to believe" a violation of law had occurred, 449 U.S. at 234, 101 S.Ct. 488, the CPSC's investigation has not yet reached the administrative complaint stage.[3] (Def.'s Mem. at 4.) Because final agency action "emphatically does not mean the issuance of the administrative complaint," it cannot possibly encompass the investigatory steps that the CPSC staff has taken to date. Abbs v. Sullivan, 963 F.2d 918, 926 (7th Cir.1992) (finding no jurisdiction over challenge to the National Institute of Health's investigation into allegations of scientific misconduct prior to the filing of an administrative complaint); see also Brandenfels v. Day, 316 F.2d 375 (D.C.Cir. 1963) (finding no subject matter jurisdiction over the FTC's investigation when the *45 agency had not yet taken any action against the plaintiff).
Implicit in its investigation is the CPSC's determination that Reliable's sprinkler heads constitute a "consumer product," and thus fall within the jurisdictional ambit of the CPSA. However, this belief is of no more legal significance than the CPSC's belief that it has sufficient evidence to show that Reliable's products are unreliable. As recognized by this Circuit in AT & T, at this stage of the investigation the agency has not "inflicted any injury" upon Reliable "merely by expressing its view of the law a view that has force only to the extent the agency can persuade a court to the same conclusion." 270 F.3d 973, at 975 (holding no final agency action where the EEOC had issued a Letter of Determination stating its belief that AT & T had unlawfully discriminated against two employees, and warning the company that if conciliation efforts failed, the matter would be referred to the agency's legal department). Until the jurisdictional issue is adjudicated in an administrative proceeding, the CPSC simply has not made a definitive statement with any legal consequence within the meaning of Standard Oil.
Recently, in Grucon Corp. v. Consumer Product Safety Commission, No. 01-C-0157 (E.D.Wis. September 18, 2001), United States Magistrate Judge William E. Callahan, Jr. rejected a similar challenge to CPSC action on jurisdictional grounds. In that case, the CPSC staff informed the Grucon Corporation ("Grucon") that a fire protection sprinkler head, which had been manufactured by a now defunct subsidiary of Grucon's, presented a "substantial product hazard" under the CPSA. The staff requested that Grucon take voluntary corrective action, the company refused, and before the CPSC could initiate administrative proceedings, Grucon filed suit seeking a declaration that it was a separate corporate entity, and therefore not responsible for the sprinkler heads. On the CPSC's motion, the court dismissed Grucon's complaint, holding that it had no jurisdiction because the CPSC staff's actions did not constitute final agency action. Grucon, No. 01-C-0157, slip op. at 12. The magistrate judge noted that "final agency action must `impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process.'" Id. at 15 (citation omitted).
Reliable disputes this conclusion, arguing that even if the APA is the exclusive basis for jurisdiction, there is final agency action ripe for review. (Pl.'s Opp. at 13-14.) First, Reliable claims that the CPSC's letter of September 11, 2000 constitutes final agency action. (Id. at 14.) However, the CPSC's letter states no more than the intent of the agency's staff to make a preliminary determination that Reliable's sprinkler heads constitute a "substantial product hazard," and thus, it is arguably not even an agency action, much less a final one. See AT & T, 270 F.3d 973, at 975; Borg-Warner Protective Serv. Corp. v. EEOC, 245 F.3d 831, 836 (D.C.Cir.2001) (holding that an EEOC letter communicating that the agency had reasonable cause to believe that the employer had violated Title VII was not final agency action); see also DRG Funding Corp. v. Secretary of HUD, 76 F.3d 1212, 1214-15 (D.C.Cir.1996) (holding that a determination by an HUD official affirming an administrative law judge's decision that HUD could collect debts by administrative offset was not sufficiently final to confer subject matter jurisdiction).
Nonetheless, citing Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 435-36 (D.C.Cir.1986),[4]*46 Reliable argues that because the letter is a sufficiently definitive statement of the CPSC's interpretation of the coverage of the CPSA, which will have a "significant practical and legal effect" on its business, that letter should be reviewable prior to the institution of any enforcement action. (Pl.'s Opp. at 14.) However, Reliable's reliance on Ciba-Geigy is misplaced. As an initial matter, Ciba-Geigy concerned ripeness, not a determination of what constitutes final agency action. Furthermore, the pragmatic concerns that motivated the Court's review in Ciba-Geigy are not present here. The Ciba-Geigy plaintiffs challenged the Environmental Protection Agency's position that any of the subject products not bearing a required labeling change were misbranded and that plaintiff was not entitled to a hearing. 801 F.2d at 433. Judicial review of that action was appropriate to determine if the statute at issue permitted the labeling changes without a hearing. See id. at 435. Reliable has not suffered a similar process-based injury, but will have the opportunity to argue its jurisdictional defense if the CPSC brings administrative action. As the Ciba-Geigy Court itself noted, judicial intervention is not appropriate "until administrative action has had a direct and immediate impact." Id. at 434.
Second, Reliable argues that the agency's "demand" for voluntary corrective action is a final agency action. (Pl.'s Opp. at 13.) Reliable offers no case law or argument in support of this point, and indeed, the position is irreconcilable with Standard Oil. If an administrative complaint is not a "definitive statement" of the agency's position, Standard Oil, 449 U.S. at 241, 101 S.Ct. 488, a decision to investigate cannot be elevated into a final agency action. Reliable's argument would open the door to collateral attacks or preemptive strikes even prior to the initiation of administrative action, assuming that the regulatory target could make a colorable jurisdictional challenge. Obviously, this would frustrate the carefully crafted mechanism for judicial review that is established by the APA. See AT & T, 270 F.3d 973, at 975 (permitting premature challenge "would disrupt the administrative process in a manner clearly at odds with the contemplation of the Congress"). Moreover, as discussed herein, Reliable faces no legal detriment from the CPSC's request to take corrective action; Reliable remains free to decline the invitation, see 16 C.F.R. § 1115.20(a), and it may challenge the agency's underlying claim of jurisdiction if and when the CPSC brings an enforcement action. Standard Oil unambiguously holds that this harm is not equivalent "in kind or legal effect" to final agency action. 449 U.S. at 242, 101 S.Ct. 488.
Third, Reliable believes that an alleged threat by the CPSC staff to bring "an administrative complaint on an expedited basis" is a final agency action. (Pl.'s Opp. *47 at 13-14.) This argument is plainly frivolous in light of Standard Oil.
Finally, Reliable maintains that the CPSC staff letter, the request for corrective action, and the threat to expedite a complaint, when taken together, constitute reviewable action. (Id. at 14.) Why three non-reviewable actions add up to final agency action is not clear, but perhaps the combination makes very "definite" the CPSC's apparent belief that it enjoys jurisdiction over Reliable's sprinkler heads. In its surreply, Reliable refines this argument and claims that these actions and similar proceedings against similarly situated manufacturers demonstrate that the CPSC has made a final interpretation of "consumer product" to include Reliable's sprinkler heads, and this determination is judicially reviewable. (Pl.'s Surreply at 7 (discussing Ciba-Geigy, 801 F.2d 430).) Even if the agency's opinion regarding its jurisdiction over Reliable's products is fixed, Standard Oil establishes that finality requires that the purported action have sufficient "legal force" and practical effect, which Reliable has not demonstrated. Standard Oil, 449 U.S. at 242, 101 S.Ct. 488. Until the CPSC does something with more definite consequences than merely expressing a tentative belief that it has jurisdiction, this Court is without power to review its deliberations.
As noted, Reliable has failed to demonstrate that the CPSC's assumption of jurisdiction inflicts costs commensurate "in kind and legal effect" with final agency action. Standard Oil, 449 U.S. at 242, 101 S.Ct. 488. This is especially clear when one considers that the CPSC has not taken any enforcement action against Reliable. (Def.'s Mem. at 4.) Instead, the CPSC has requested that Reliable take "voluntary corrective action," and submit plans regarding that action to the CPSC. (Def.Mem., Ex. A.)[5] Reliable is free to disregard this request, understanding that the consequence of doing so might be an enforcement action. If the CPSC proceeds and enters a determination that Reliable's sprinkler heads constitute substantial product hazards, and initiates administrative proceedings, Reliable will bear the burden of defending itself in that forum. Standard Oil makes clear that the cost of defending against an enforcement action is not the kind of burden associated with final agency action. 449 U.S. at 242, 101 S.Ct. 488.
In response, Reliable argues that it faces a "Hobson's Choice" because either compliance or non-compliance with the CPSC's request for voluntary corrective action will inflict reputational and economic injury. (Pl.'s Opp. at 15-16.) Of course, if voluntary corrective action is undertaken, plaintiff cannot argue that it has suffered a legally cognizable harm. As for the harm arising from non-compliance, the CPSC has not even made a preliminary finding that Reliable's products constitute a substantial product hazard, much less initiated administrative proceedings or an enforcement action. Furthermore, no corrective action could be ordered unless the CPSC first prevailed at an administrative proceeding. (See Reply Memorandum in Support of Defendant's Motion to Dismiss [hereinafter Def.'s Reply] at 18.) Prior to filing a complaint, or even making a determination of a "substantial product hazard" necessary to invoke its enforcement authority, CPSC investigative steps do not penalize Reliable for non-compliance with *48 the agency's voluntary action request. See Abbs, 963 F.2d at 926-27 (suggesting that agency investigations alone are unlikely to present a dilemma penalizing both compliance and non-compliance).
Reliable also alleges potential reputational harm and a resulting loss of business, arising from a possible negative reaction to any press release that the CPSC might issue if it initiates an administrative proceeding. (Pl.'s Surreply at 5-6.) The Court is not insensitive to these concerns, but they provide an insufficient basis upon which to exercise jurisdiction. See Abbs, 963 F.2d at 927-28 (noting that "no one likes to be accused of misconduct," but rejecting challenge to placement of scientist's name on a list of parties subject to NIH investigation). Reliable has failed to adduce any injury other than the inevitable reputational harm associated with the filing of a complaint. The product under investigation, the Model A Flush sprinkler head, has not been manufactured since 1983. (Pl.'s Opp. at 2.) Reliable does not even attempt to explain how a public announcement regarding this older model would "cause severe damage to [Reliable's] business, `including sales, good will and certain of its business relationship.'" (Pl.'s Opp. at 6 (quoting Kaiser, 414 F.Supp. at 1055, 1056).) Reliable also suggests that the costs of corrective action might threaten the viability of its business, noting that the execution of a corrective action plan "led [it's competitor,] Central Sprinkler[,] to the brink of financial collapse." (Pl.'s Opp. at 16; see also Pl.'s Surreply at 5-6.) Of course, before the CPSC can compel any action from Reliable, the company will have the opportunity to challenge the agency's findings in an administrative hearing, with a right of appeal. The rather distant prospect of injury to Reliable does not justify judicial intervention at this unusually early stage.[6]
Despite the clear import of Standard Oil, Reliable argues that several District of Columbia Circuit opinions handed down in the mid-80's support jurisdiction.[7] Under Reliable's theory, the question of CPSC jurisdiction over Reliable's sprinkler systems is a legal question, the resolution of which does not require the development of a factual record at the agency level. (Pl.'s Opp. at 11-12.) Reliable essentially asks this Court to grant an exception from the rule of Standard Oil based on cases where the D.C. Circuit has been willing to recognize an exception to the well-established doctrines of ripeness and exhaustion of administrative remedies. See, e.g., Athlone Indus., Inc. v. CPSC, 707 F.2d 1485 (D.C.Cir.1983) (holding exception to exhaustion requirement appropriate for purely legal question); Ciba-Geigy Corp. v. EPA, 801 F.2d 430 (D.C.Cir.1986) (holding that claim regarding what procedures were necessary for a change in labeling *49 requirements was ripe for review); Atlantic Richfield Co. v. Department of Energy, 769 F.2d 771 (D.C.Cir.1984) (holding that claim for declaratory and injunctive relief regarding an administrative order imposing discovery sanctions was ripe for review). These cases offer no guidance as to what constitutes final agency action because they do not consider the issue. Furthermore, each of the cases is distinguishable, and thus, they do not persuade this Court that an exception from the "final agency action" requirement is appropriate here. See Grucon, No. 01-C-0157, slip op. at 16-20 (discussing and rejecting application of these same cases to a similar question of jurisdiction and final agency action). The Court will address each decision seriatim.
Reliable cites Athlone, arguing that this decision supports the Court's exercise of jurisdiction, since the question is purely a legal one the interpretation of the statutory term "consumer product," and as recognized by Athlone, such a controversy "`presents issues on which courts, and not [administrators] are relatively more expert.'" (Pl.'s Opp. at 12 (quoting Athlone Indus., 707 F.2d at 1489).) In Athlone, the Court held that, because of "unique circumstances," the doctrine of exhaustion of administrative remedies did not bar suit to determine an agency's statutory authority to assess civil penalties in an administrative hearing. 707 F.2d at 1489. Those circumstances were the "purely legal nature of the issue presented," the "likely futility of further resort to [administrative proceedings]," and the fact that another defendant in identical circumstances had won a decision from the Eighth Circuit enjoining the agency from assessing civil penalties. Id. The Court reasoned that it would be "unfair and incongruous to require Athlone to return to the administrative proceeding when its co-respondent has been relieved of that responsibility on the basis of a co-ordinate federal court's resolution of the identical issue presented to us at this time." Id.
Given the dissimilarities between this case and Athlone, Reliable cannot rely on Athlone to support its preemptive strike (and avoidance of the inevitable consequence of the doctrine of exhaustion if and when a complaint is brought by the CPSC). First, Athlone concerned a collateral legal challenge to the CPSC's authority to assess civil penalties after a proceeding had been initiated and after a motion to dismiss the complaint on jurisdictional grounds had been denied by an administrative law judge. In contrast, this case concerns a pre-complaint challenge to an agency's jurisdiction. Thus, Athlone provides no support for Reliable's claim that the jurisdictional challenge may first be brought in district court, as opposed to being raised first in an administrative proceeding. See also Abbs, 963 F.2d at 927 (pre-complaint investigatory actions are not actionable "when the only harm the challenger seeks to avert is the inconvenience of having to go through the administrative process before obtaining a definitive declaration of his legal rights").
Second, the determination of jurisdiction in this case is not a "purely legal" question within the meaning of Athlone, for a determination of whether sprinkler systems are "consumer products" within the meaning of the CPSA and the regulations promulgated thereunder presents a number of factual issues. In Athlone, the Court examined Section 20 of the CPSA to determine what process the statute required before a civil penalty could be levied. The question was purely one of statutory interpretation. In this case, Reliable argues that no factual record need be developed, (Pl.'s Opp. at 12.), citing United States v. Anaconda Co., 445 F.Supp. 486, 491 n. 4 (D.D.C.1977) (holding that what constitutes *50 "consumer products" is a legal issue) and Kaiser Aluminum & Chemical Corp. v. CPSC, 414 F.Supp. 1047, 1056 (D.C.Del. 1976) (jurisdiction over consumer products to be determined on the basis of "the statute and its legislative history"), rev'd on other grounds, 574 F.2d 178 (3d Cir. 1978). Of course, the legal issue underlying Reliable's claim, that its products are not "consumer products," is well within the competence of this Court to answer, but that is not the sole issue presented here. In addition to interpreting the statutory term "consumer product," the Court will have to consider the application of that term to a discrete product Reliable's sprinkler heads. Defendant argues, and this Court agrees, that this case is not about defining the jurisdictional boundaries of the CPSC's authority, but whether the Reliable sprinkler heads fall within those boundaries. (Def.'s Reply at 7.) To determine whether Reliable's sprinkler heads are a "consumer product," this Court would have to consider whether they were "produced or distributed ... for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise ...." 15 U.S.C. § 2052(a)(1). Reliable claims that their sprinkler heads do not meet this definition (Pl.'s Opp. at 1, 2), defendant disputes this claim (Def's Reply at 7-8), and both parties rely on factual assertions to prove their claims.[8]
Third, it is not "unfair and incongruous" to ask Reliable to await an administrative determination. Athlone, 707 F.2d at 1489. In Athlone, the D.C. Circuit was faced with a unique situation where one respondent would be forced to answer an administrative complaint, while an identically-situated respondent would not because the Eighth Circuit had decided to answer the question of the agency's statutory authority. Id. Faced with this unfairness, the Court decided to address the question that the Eighth Circuit had answered. There is no unfairness here. Reliable has not been selectively burdened by the CPSC's investigation and threatened complaint. On the contrary, similarly situated sprinkler producers have been subjected to the administrative process. See note 8, supra; (Pl.'s Opp. at 4-6); see also Grucon, No. 01-C-157 (E .D. Wis. September 19, 2001).
Similarly, Reliable relies on Ciba-Geigy Corp., 801 F.2d 430, to argue that a "purely legal" question can be addressed by the district court prior to an administrative proceeding. (Pl.'s Opp. at 12-13.) Again, Ciba-Geigy is clearly distinguishable from the instant case. First, as noted above, Ciba-Geigy involved the issue of ripeness. Because the EPA had definitively stated in response to a demand for a hearing on certain labeling changes that no hearing would be required and "gave no indication that [the decision] was subject to further agency consideration or possible modification," the ripeness question did not present "the slightest danger that judicial review [would] disrupt the orderly process of administrative decision-making." Ciba-Geigy, 801 F.2d at 437. Additionally, the parties agreed, unlike the situation here, that the question presented was "purely *51 legal," and that no further factual development was required. Id. This case is different because efficient administrative decision-making is more directly threatened, and there is no agreement that the issue is purely legal.
Finally, Reliable argues that Atlantic Richfield Co., 769 F.2d 771, supports jurisdiction. (Pl.'s Opp. at 13.) Again, factual and legal dissimilarities prevent application of that holding to the facts of this case. As in Athlone, the issue was exhaustion and not jurisdiction. Second, as in Athlone, the administrative proceedings in Atlantic Richfield were already well underway when the plaintiff sought judicial relief and began to wage a collateral attack on discovery sanctions which had been imposed at an administrative proceeding, claiming that the Department of Energy lacked the authority to adjudicate questions concerning remedial orders and to impose sanctions. Significantly, plaintiff waited to bring its action in district court until after the agency first rejected its claim; whereas, in this case, Reliable has not yet tested its claim before the agency, and in fact, it could not because there is no pending proceeding. Furthermore, the plaintiff in Atlantic Richfield challenged the agency's ability to impose sanctions, not the merits of the agency's decision to do so. Reliable does not ask this Court to consider whether the CPSC generally has authority to conduct investigations and take enforcement actions; rather, Reliable asks for a determination as to whether the agency has the requisite authority to conduct an investigation of its particular product.
In its surreply, Reliable emphasizes the futility of pressing its jurisdictional argument before the agency. (Pl.'s Surreply at 2.) As an initial matter, Reliable's position is not yet futile because it will "have adequate opportunity during the administrative process to address [the] issue," and the CPSC must demonstrate jurisdiction to prevail in the proceeding. Grucon, No. 01-C-0157, slip op. at 16. Reliable claims that the opportunity to argue jurisdiction in the administrative proceeding is an empty promise, because it is a foregone conclusion that the agency will find against the company. (Pl.'s Opp. at 17-19.) However, if the application of the term "consumer products" to Reliable's sprinkler heads turns on factual issues, (Def.'s Reply at 18), then the company may be able to persuade an administrative law judge that the manner in which its sprinklers are produced and marketed, and the locations in which there are installed, (Pl.'s Opp. at 2), demonstrate that they are not "consumer products."
Moreover, even if Reliable's argument will not succeed, futility alone does not excuse the need for final agency action. Reliable cites a number of cases illustrating the importance of demonstrating futility when seeking an exemption from the exhaustion requirement. See, e.g., Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 105 (D.C.Cir. 1986) (exhaustion not required when adverse agency decision certain); Athlone, 707 F.2d 1485 (permitting exception to exhaustion requirement when agency unlikely to change its position); Atlantic Richfield Co., 769 F.2d 771 (same). However, plaintiff cites no case for the proposition that futility excuses the need for final agency action. Exemption from the finality requirement imposed by Section 704 of the APA is much more likely to disrupt the administrative and judicial review processes established by Congress. Cf. AT & T, 270 F.3d 973, at 975. Before there has been final action, determining futility will often amount to little more than a guessing game regarding agency intent and the likely outcome of administrative proceedings. *52 Thus, any prudential concern regarding futility cannot overcome the APA's clear requirement for final agency action.
CONCLUSION
For all of the above reasons, Plaintiff's reliance on the D.C. Circuit case law to evade the holding of Standard Oil is unpersuasive. The agency staff's investigatory steps do not rise to the level of "final agency action" within the meaning of Section 704 of the APA. Thus, this Court lacks subject matter jurisdiction, and the action must be dismissed.
ORDER
This matter is before the Court on defendant's Motion to Dismiss [8-1] and plaintiff's opposition thereto. For the reasons stated in the Court's Memorandum Opinion, it is hereby
ORDERED that defendants' motion is GRANTED as to all counts of plaintiff's complaint; and it is
FURTHER ORDERED that plaintiff's complaint is dismissed with prejudice.
NOTES
[1] Reliable also claims that this Court has jurisdiction under 28 U.S.C. §§ 1331 and 1337. Neither Section 1331 nor 1337, however, provides an independent jurisdictional basis because Congress has provided a specific method for reviewing agency action in the APA, and that "specific statutory method, if adequate, is exclusive." General Finance Corp. v. FTC, 700 F.2d 366, 368 (7th Cir.1983) (holding that the procedures set forth in the APA are the exclusive method for challenging the Federal Trade Commission's jurisdiction; although plaintiff could assert lack of jurisdiction as a defense if FTC sought to enforce its subpoena in federal court). Reliable argues that General Finance is distinguishable from the instant case because the Federal Trade Commission Act at issue in that case "contains an exclusive scheme for judicial review of adverse agency action," whereas the CPSA does not. (Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion to Dismiss [hereinafter Pl.'s Opp.] at 10 n. 4.) While the statutes may differ, the court in General Finance denied jurisdiction under Section 1331 on the basis of the general review mechanisms set forth in the APA. 700 F.2d at 368. Despite the fact that plaintiff's claim concerns the interpretation of a federal statute, obviously a federal question, (Plaintiff's Sur-Reply to Defendant's Motion to Dismiss [hereinafter Pl.'s Surreply] at 2 n. 2), this Court's jurisdiction "depends upon whether [plaintiff] can meet the requirements for APA review," because otherwise plaintiff would have no substantive cause of action. See also Grucon Corp. v. CPSC, No. 01-C-157, slip op. at 11 (E.D.Wis. September 19, 2001) (finding no jurisdiction over a similar challenge to the CPSC's pre-complaint investigatory activity).
[2] Recently, this Circuit addressed this very issue, explaining:
An agency action is deemed final if it "mark[s] the `consummation' of the agency's decisionmaking process" and determines "rights or obligations." The agency must have made up its mind, and its decision must have "inflict[ed] an actual, concrete injury" upon the party seeking judicial review. Such an injury typically is not caused when an agency merely expresses its view of what the law requires of a party, even if that view is adverse to the party.
AT & T, 270 F.3d 973, at 975 (citations omitted).
[3] The CPSC staff's efforts to date reflect only the initial stages of the CPSA regulatory process. See, e.g., Grucon, No. 01-C-0157, slip op. at 2-3. If the agency determines, after an initial investigation, that a commercial product presents a "substantial product hazard," it may vote to file an administrative complaint. See 16 C.F.R. § 1025.11. The complaint leads to a full adjudicatory hearing before an administrative law judge, with the right of appeal. See 15 U.S.C. § 2064(f); 16 C.F .R. § 1115.21(a); 16 C.F.R. Part 1025. If the agency prevails, it may then order the product's manufacturer to take corrective action to repair, replace, or refund the purchase price of the product. See 15 U.S.C. § 2064(d). Compliance with the order is mandatory under 15 U.S.C. § 2068(a)(5), and non-compliance may subject the violator to an enforcement action. See 15 U.S.C. §§ 2069, 2070, 2071(a) and (b).
[4] Reliable also relies on Western Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659 (7th Cir.1998). (Pl.'s Opp. at 14.) To the extent that Herman provides a more permissive standard for final agency action than Standard Oil, it is not good law. However, the facts of Herman are distinguishable from this case. The Herman court determined that a letter issued by the Department of Labor concluding that two employers were "joint employers" for the purposes of the Fair Labor Standards Act was final agency action under the APA. The court held that the letter was not "tentative or interlocutory in nature" and would inflict "legal consequences" if the two employers ignored the letter's command and did not aggregate their shared employees' hours for the purposes of overtime compensation. Herman, 150 F.3d at 663. Unlike the challenger in Herman, Reliable cannot show such a "`sufficiently direct and immediate'" effect on its "`day-to-day business.'" Id. at 662 (citation omitted).
[5] As Reliable points out, "these `voluntary remedial actions,' may include execution of a CPSC-approved `corrective action plan,' entailing press releases, televised announcements, in-store posters, repairs and replacements." (Pl.'s Opp. at 4 (quoting 16 C.F.R. § 1115.20(a)).)
[6] Plaintiff's citation to Kaiser Aluminum & Chemical Corp. v. CPSC, 414 F.Supp. 1047, 1056 (D.C.Del.1976), rev'd on other grounds, 574 F.2d 178 (3d Cir.1978), is not persuasive. In Kaiser, the court held that a manufacturer could challenge certain statements made by the CPSC because the agency allegedly had failed to comply with CPSA requirements regarding public statements. The CPSA requires the agency to provide advance notice and a summary of the information to be released to affected manufacturers, 414 F.Supp. at 1051-52, and the CPSC allegedly failed to do so before publishing a news article, a technical fact sheet, a press release, and a notice-of-proceeding regarding aluminum wiring systems. Id. at 1052. Reliable has not alleged a similar violation of CPSA requirements in the conduct of the CPSC's investigation to date.
[7] See, e.g., Athlone Indus., Inc. v. CPSC, 707 F.2d 1485 (D.C.Cir.1983); Ciba-Geigy Corp. v. EPA, 801 F.2d 430 (D.C.Cir.1986); Atlantic Richfield Co. v. U.S. Department of Energy, 769 F.2d 771 (D.C.Cir.1985).
[8] In fact, this determination as to a different sprinkler head manufactured by the Central Sprinkler Company was made by a CPSC administrative law judge. See Central Sprinkler Co., CPSC Docket No. 98-2, Order on Mot. to Dismiss Complaint (CPSC May 15, 1998). There, the administrative law judge recognized that Central Sprinkler's sprinkler heads were "consumer products" relying, in part, on whether the sprinklers were installed in a "home," id. at 15, whether the sprinkler heads were "distinct" component parts, id. at 11, and whether consumers were "exposed to hazards associated with the products." Id. at 12.
| {
"pile_set_name": "FreeLaw"
} |
208 P.3d 361 (2009)
FRIESEN
v.
STATE.
No. 100128.
Court of Appeals of Kansas.
June 5, 2009.
Decision without published opinion. Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
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