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103 Cal.App.2d Supp. 921 (1951)
R. A. BILICH, Appellant,
v.
HAROLD A. BARNETT et al., Respondents.
California Court of Appeals.
Apr. 2, 1951.
Slane, Mantalica & Davis for Appellant.
Frederick G. Stoehr for Respondents.
STEPHENS, J.
This appeal is from a judgment entered for defendant after plaintiff had failed to amend his third amended complaint following the sustaining of a general demurrer thereto.
[1] This amended complaint sets forth that plaintiff is a duly licensed and qualified contractor; that "defendants held themselves out as and purported to be civil engineers and land surveyors, licensed and with the ability to prepare properly a grade sheet for the work to be done on the job hereinafter mentioned"; that plaintiff entered into a contract with Reliable Trucking Company (apparently the owner of the real property, though there is no allegation of their status [103 Cal.App.2d Supp. 922] therein), whereby plaintiff agreed to install certain sewer lines for Reliable, and Reliable Trucking Company agreed that they would have defendants prepare survey lines and grade sheets covering the work that was to be done by plaintiff for Reliable; that Reliable Trucking Company paid defendants therefor; that defendants prepared and submitted to plaintiff a certain grade sheet but it was an inaccurate representation of the grade lines on said real property; that such submission was with full knowledge that plaintiff would rely thereon; that said grade sheet was negligently prepared by defendants and did not portray a true representation of the grade sheet as required on the job; that plaintiff relied thereon and "at the finish of the grading plaintiff discovered that the excavation was not as it should be according to the plans and specifications of Reliable Trucking Co."; that as a result thereof plaintiff was required to fill in part of the excavation and incur additional expenditures totaling $382, to his damage in that amount.
Upon this appeal plaintiff relies upon a statement of the rule as set forth in Restatement of Torts, as follows: "Information Negligently Supplied for the Guidance of Others."
"One who in the course of his business or profession supplies information for the guidance of others in their business transactions is subject to liability for harm caused to them by their reliance upon the information if"
"(a) he fails to exercise that care and competence in obtaining and communicating the information which its recipient is justified in expecting, and"
"(b) the harm is suffered"
"(i) by the person or one of the class of persons for whose guidance the information was supplied, and"
"(ii) because of his justifiable reliance upon it in a transaction in which it was intended to influence his conduct or in a transaction substantially identical therewith." (Restatement of Torts, Topic 3, 552.) He contends, in support of this rule, that it is but an extension of the principle that a manufacturer who negligently constructs chattels to be supplied to the public and which are of such nature as to imminently endanger the lives or safety of persons who may be expected to use them is liable for any damage resulting from such negligent construction to persons using them for the purpose for which they were made, even though no privity of contract exists between such manufacturer and the person injured; citing MacPherson v. Buick Motor Co., 217 N.Y. 382 [103 Cal.App.2d Supp. 923] [111 N.E. 1050, Ann.Cas 1916C 440, L.R.A. 1916F 696]; Dahms v. General Elev. Co. (1932), 214 Cal. 33 [7 P.2d 1013]; Hall v. Barber Door Co. (1933), 218 Cal. 412 [23 P.2d 279]; Kalash v. Los Angeles Ladder Co. (1934), 1 Cal.2d 229 [34 P.2d 481]. However, the California cases designate this holding as a "well-settled exception" to the general rule requiring privity (Dahms v. General Elev. Co., supra, 214 Cal. at p. 738), and the latter case, after discussing different theories upon which the holding has been placed by different courts, says (p. 739): "By still others it is placed upon the ground of the failure of the principal to exercise the ordinary care which is due to everybody, without regard to contract, under the Civil Code, and this seems to be true reason for the rule." (Emphasis added.)
The rule as set forth in the Restatement of Torts, hereinabove set forth, also finds support in Prosser on Torts, page 736, and both place strong reliance upon Glanzer v. Shepard (1922), 233 N.Y. 236 [135 N.E. 275, 23 A.L.R. 1425]. In the case of Ultramares Corp v. Touche (1931), 255 N.Y. 170 [174 N.E. 441, 74 A.L.R. 1139], the New York Court of Appeals, in an exhaustive opinion written by Cardozo, Chief Judge (who was also the author of the opinion in Glanzer v. Shepard) referred to the latter case as follows: "In Glanzer v. Shepard, the seller of beans requested the defendants, public weighers, to make return of the weight and furnish the buyer with a copy. This the defendants did. Their return, which was made out in duplicate, one copy to the seller and the other to the buyer, recites that it was made by order of the former for the use of the latter. The buyer paid the seller on the faith of the certificate which turned out to be erroneous. We held that the weighers were liable at the suit of the buyer for the moneys overpaid. Here was something more than the rendition of a service in the expectation that the one who ordered the certificate would use it thereafter in the operations of his business as occasion might require. Here was a case where the transmission of the certificate to another was not merely one possibility among many, but the 'end and aim of the transaction,' as certain and immediate and deliberately willed as if a husband were to order a gown to be delivered to his wife, or a telegraph company, contracting with the sender of a message, were to telegraph it wrongly to the damage of the person expected to receive it. Wolfskehl v. Western Union Tel. Co., 46 Hun [N.Y.] 542; De Rutte v. New York, Albany [103 Cal.App.2d Supp. 924] & Buffalo Electro Magnetic Telegraph Co., 1 Daly [N.Y.] 547; Milliken v. Western Union Tel. Co., 110 N.Y. 403, 410 [18 N.E. 251, 1 L.R.A. 281]."
In the Ultramares case the court, while approving the principle above indicated, refused to extend it further to persons generally to whom the information may come and who rely upon it. As the court said (74 A.L.R. at p. 1149): "A change so revolutionary, if expedient, must be wrought by legislation." While this decision is strongly persuasive, it does not appear to reflect the majority rule in this country. On the contrary, the following statement appearing in the text of 34 American Law Reports at page 67, seems to be supported by the authorities cited in the extensive annotation that follows: "It has frequently been declared a rule of law that no cause of action in tort can arise from the breach of a duty existing by virtue of a contract, unless there be between the parties a privity of contract, so that a plaintiff can show no wrong done himself for the breach of any duty arising out of a contractual relation, unless he can establish himself as a party or privy to the contract. 20 R.C.L. 49, 44."
"Following this general principle, the courts generally hold that, because of the absence of privity between the parties, a person making a certificate or record, in the absence of collusion or fraud, incurs no liability toward persons, other than the ones by whom he was employed, who rely thereon, for any negligent errors or omissions therein, causing damage."
In 19 California Law Review, in a case note as late as 1930, we find the following statement: "A few jurisdictions recognize a liability of an abstractor to persons with whom there was no privity of contract for negligence in abstracting a title, when he was aware that this party was being served. Brown v. Sims (1899), 22 Ind.App. 317 [53 N.E. 779, 72 Am.St.Rep. 308]; Denton v. Nashville Title Co. (1903), 112 Tenn. 320 [79 S.W. 799], Anderson v. Spriestersbach (1912), 69 Wash. 393 [125 P. 166, 42 L.R.A.N.S. 176]. Apart from this type of case only two jurisdictions, New Hampshire (Cunningham v. Pease House Furnishing Co. (1908), 74 N.H. 435 [69 A. 120, 124 Am.St.Rep. 979, 20 L.R.A.N.S. 236]), and New York, recognize liability for negligent misrepresentations where there is no privity of contract. See Carpenter, Responsibility for Intentional, Negligent, and Innocent Misrepresentation (1930), 9 Ore.L. Rev. 413, (1930), 24 Ill.L.Rev. 749."
In the only case which has come to our attention in which the Supreme Court of California has passed upon the question, [103 Cal.App.2d Supp. 925] the general rule, requiring privity of contract between plaintiff and defendant in order to sustain an action by the former, was followed. In that case, Buckley v. Gray (1895), 110 Cal. 339 [42 P. 900, 52 Am.St.Rep. 88, 31 L.R.A. 862], the court reviewed and quoted with approval from many authorities from other states. The following excerpts are from pages 343, 344 and 345 of the opinion: "They [cases previously discussed] show to a demonstration that it is not every one who suffers a loss from the negligence of another that can maintain a suit on such grounds. On the contrary, the limit of the doctrine relating to actionable negligence, says Beasly, C.J., is, that the person occasioning the loss must owe a duty, arising from contract or otherwise, to the person sustaining such loss. Such a restriction on the right to sue for a want of care in the exercise of employments or the transaction of business is plainly necessary to restrain the remedy from being pushed to an impracticable extreme. ... 'The right of a third party to maintain an action for injuries resulting from a breach of contract between two contracting parties has been denied by the overwhelming weight of authority of the state and federal courts of this country, and the courts of England. To hold that such actions could be maintained would not only lead to endless complications in following out cause and effect, but would restrict and embarrass the right to make contracts, by burdening them with obligations and liabilities to others, which parties would not voluntarily assume.' ... The only safe rule is to confine the right to recover to those who enter into the contract; if we go one step beyond that, there is no reason why we should not go fifty. ... 'If third persons can acquire a right in a contract, in the nature of a duty to have it performed as contracted for, the parties will be deprived of control over their own contracts. Plaintiff, not being party to the contract, cannot maintain this action on account of injuries resulting from any breach of duty defendant owed Pickle, arising purely out of the terms of the contract between them.' "
In the case of Kircher v. Hunter (1929), 101 Cal.App. 548 [281 P. 1047], it was held that there is no privity of contract between an owner and a subcontractor and, therefore, the former could not maintain an action against the latter for damages consisting of the cost of certain reconstruction work occasioned by defective construction in the laying of tile in two bathrooms. See, also, Diggs v. Pacific Gas & Elec. Co. [103 Cal.App.2d Supp. 926] (1922), 57 Cal.App. 57 [206 P. 765]. We find no other decisions in California involving the question.
If it could successfully be contended that a third party may recover the damages he has suffered by the negligent performance of a contract expressly made for his benefit, a question we do not decide, that proposition would not serve the plaintiff here because he has not alleged facts establishing any such contract.
An added reason for sustaining the judgment is found in the special demurrer for uncertainty (VII(1)). The complaint failed to reveal any connection between plaintiff's agreement with Reliable to construct a sewer and "the real property at the corner of Ransom street and Washington Boulevard."
We conclude that the action of the trial court in sustaining the general demurrer to the third amended complaint was proper.
The judgment is affirmed.
Shaw, P. J., and Bishop, J., concurred.
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563 F.Supp. 283 (1983)
UNITED STATES of America, Plaintiff,
v.
Jack J. ROSE and A. Raymond Bessette, Stephen J. Scheffer, and Wallace C. Kemper, Defendants.
No. 80 Civ. 2925(MEL).
United States District Court, S.D. New York.
May 19, 1983.
John S. Martin, Jr., U.S. Atty. S.D.N.Y., New York City, for plaintiff; Twila L. Perry, Asst. U.S. Atty., New York City, of counsel.
Butler, Fitzgerald & Potter, New York City, for defendant Jack J. Rose; Raymond Fitzgerald, New York City, of counsel.
LASKER, District Judge.
This is a motion for attorneys' fees under the recently-enacted Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"), which went into effect on October 1, 1981. The EAJA provides, inter alia, that a prevailing party in an action against the United States may recover attorneys' fees unless the position of the government was "substantially justified" or unless the award would be "unjust" due to "special circumstances."
In 1976, the government began an investigation into the payroll tax liabilities of Network Cinema Corporation. Jack Rose, the company's executive vice president for the periods in question, was believed to be "responsible" for the company's payroll tax liabilities under 26 U.S.C. § 6672. Rose appeared *284 at "several district and regional level administrative hearings" in connection with his alleged tax liability. (Affidavit of Jack Rose, ¶ 3). At the time, Rose did not have access to the company's records, which were in the hands of the trustee in bankruptcy. However, when the records became available in 1978, Rose sent the government copies of the cancelled checks for the disputed periods, along with an explanation of the accounting system utilized and a schedule specifying which checks were for which periods. (Attached as Exhibit A to Rose Affidavit).
The government denied Rose's claim for adjustment of assessed penalties, and, in 1979, Rose brought an action for an abatement in the District of New Jersey, Rose v. United States, Civ. No. 79-3595. In May, 1980 the government filed the present action against Rose for collection of the same tax liabilities.[1]
On January 30, 1981, Rose was deposed. At the conclusion of the deposition, the government attorney, Stephen Lyons, "concluded that Mr. Rose was not liable for the taxes in question." (Affidavit of Assistant United States Attorney Stephen Lyons, ¶ 6). Immediately after the deposition, Lyons recommended "concession of the New Jersey action based primarily on that deposition," and, a short time later, the United States Attorney for this district was instructed to dismiss the instant action against Rose.
Rose seeks attorneys' fees under the EAJA. In a prior decision, 549 F.Supp. 830, we ruled that the present action was pending on the effective date of the Act, but that the New Jersey action and the administrative proceedings before the Internal Revenue Service were no longer pending on that date and, accordingly, that attorneys fees were available under the EAJA only for fees incurred in connection with the present action.
The government argues that it was "substantially justified" in commencing this action, but that, even if the Court were to rule that the action was not substantially justified, attorneys' fees are available only for work performed subsequent to the effective date of the EAJA. In addition, the government argues that the fees requested are excessive.
Rose responds: that the government had no basis for bringing the action; that if a suit is pending on the effective date of the EAJA, all fees incurred in connection with the action are compensable; and that the fees requested are reasonable.
As indicated above, the EAJA provides for an award of attorneys' fees to a party prevailing against the government "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). The government has the burden of establishing that its position was substantially justified. S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Commission, 672 F.2d 426, 430 (5th Cir.1982). The test of whether the government's position was substantially justified is "`essentially one of reasonableness.'" S & H Riggers, supra, at 430, quoting H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11 (1980), reprinted in 1980 U.S. Code Cong. & Ad.News 4953, 4989.
According to the government attorney responsible for the action, the government decided to dismiss its entire claim against Rose at the conclusion of his deposition. Rose asserts that everything he said at the deposition he had repeatedly told the government prior to their institution of the action. (Rose Affidavit ¶ 5). There had been several administrative hearings, and, moreover, the government had had copies of the cancelled checks since 1978.
The government does not deny that the administrative hearings took place and that, *285 at the hearings, Rose presented all of the same facts that he set forth at the deposition. The government's response is that the deposition "revealed certain matters that were not available in the administrative file" and also gave the Assistant United States Attorney an opportunity to "observe the demeanor of Mr. Rose." (Lyons Affidavit, ¶ 6).
The government does not assert that it learned any new facts at the deposition. It asserts only that certain facts "were not available in the administrative file." (Lyons Affidavit, ¶ 6). Whatever that may mean, it does not appear to be attributable to Rose, and, whether it refers to an inadequacy in the administrative filing system or some other recordkeeping problem, it does not constitute "substantial justification."
As to the government's contention that the deposition afforded an occasion to observe Rose's demeanor, the government had ample opportunity to observe him at the various administrative hearings held prior to the filing of the complaint, and the observation at the deposition would seem to have been of marginal significance.
Accordingly, we conclude that the government has not carried its burden of demonstrating that it was substantially justified in bringing the instant action.
With respect to the government's contention that the Act covers only work performed after the effective date, we find persuasive the conclusion of the District Court for the District of Columbia that the EAJA should be interpreted consistently with similar attorneys' fees statutes, which have been held to apply to all services rendered in actions pending on the effective date of the respective acts. Photo Data, Inc. v. Sawyer, 533 F.Supp. 348, 351 n.5 (D.D.C.1982) and cases cited therein. Moreover, there is nothing noteworthy about the effective date provision of the EAJA: it simply provides that the act becomes effective on a particular date and applies to civil actions "pending on or commenced on or after, such date." 28 U.S.C. 2412 (note). In the absence of some language to indicate that the Act was intended to reimburse only for services rendered after its effective date, we believe that the statute should be given its plain meaning, and that a case either qualifies in whole or not at all.
For the reasons stated above, the motion for attorneys' fees is granted.
Submit judgment on notice with attachments substantiating the hours expended.
It is so ordered.
NOTES
[1] The government contends that its reason for filing a separate action was that the Southern District of New York was the only forum in which jurisdiction could be obtained against all of the potentially responsible persons. Rose asserts that the government had no choice but to file a separate action because it neglected to file a timely counterclaim for collection in the New Jersey action.
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20 F.3d 1173
U.S.v.Ikpa**
NO. 92-8975
United States Court of Appeals,Eleventh Circuit.
Apr 07, 1994
1
Appeal From: N.D.Ga.
2
AFFIRMED.
**
Local Rule 36 case
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33 So.3d 40 (2010)
DIXON
v.
STATE.
No. 2D10-891.
District Court of Appeal of Florida, Second District.
May 7, 2010.
Decision Without Published Opinion Dismissed.
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299 F.2d 256
MADISON-LEWIS, INC., and Gustave Adolph Godinez, Petitioners, for a Writ of Mandamusv.Hon. Lloyd F. MacMAHON, U. S. District Judge, Respondent.
Docket 27339.
United States Court of Appeals Second Circuit.
Argued February 5, 1962.
Decided February 13, 1962.
Daniel A. Novok, New York City, for petitioners.
Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, New York City, for respondent.
Before LUMBARD, Chief Judge, and SWAN and WATERMAN, Circuit Judges.
PER CURIAM.
1
Petitioner seeks to set aside an order made in the case of United States v. Madison-Lewis, Inc. and Gustave A. Godinez, defendants. The indictment charged importation of merchandise from a Danish corporation by means of fraudulent and fake invoices. Defendants moved for leave to take the deposition of the manager of a Danish corporation from which defendants had purchased the goods referred to in the indictment. The motion was granted on condition "that Fedania A/S, the proposed deponent, consent in writing to open its files to search and investigation by the United States."
2
Though we express no opinion on whether the district court should grant the motion for the taking of a deposition, we grant the petition for writ of mandamus and direct the district judge to expunge from any order he may make to take the deposition of Fedania A/S the condition that the deponent consent to open its files to search and investigation by the United States.
3
SWAN, Circuit Judge (dissenting).
4
This petition for mandamus seeks to have us review on the merits an interlocutory order which is not appealable. I think we should deny the petition without discussing the merits. See Fred Benioff Co. v. McCullock, 9 Cir., 133 F.2d 900; Bank Line v. United States, 2 Cir., 163 F.2d 133.
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791 F.2d 801
1986 Copr.L.Dec. P 25,987
UNITED STATES of America, Plaintiff-Appellee,v.William Richard MINOR, Defendant-Appellant.
No. 83-5152.
United States Court of Appeals,Ninth Circuit.
June 12, 1986.
Charles C. Lee, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
T.J. Pantaleo, Eric S. Engel, Pantaleo & Kudon, Los Angeles, Cal., for defendant-appellant.
Prior report: 9th Cir., 783 F.2d 154.
Before BROWNING, Chief Judge, KENNEDY and ALARCON, Circuit Judges.
ORDER
1
Appellee's motions for extension of time are granted and its response to appellant's motions for retention of mandate and reconsideration is filed, as is appellant's supplemental brief. Appellant's motions for retention of mandate and reconsideration are denied.
2
We reject the contention that Count I improperly charged two objects of the conspiracy: (1) conspiracy to commit copyright infringement; and (2) conspiracy to commit interstate transportation of stolen property. The indictment made clear that the property was alleged to be stolen on the basis that the copyrights were violated. Though this theory is now invalid in light of Dowling v. United States, --- U.S. ----, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985), appellant was apprised of the charge against him. The jury could find that the property was stolen only if it found that the copyrights were violated. There is no danger that the jurors did not unanimously agree that appellant conspired to commit copyright infringement. We also reject the contention that there was improper joinder of the conspiracy count and the substantive copyright infringement counts. The conspiracy count and the substantive copyright counts arose from a common scheme and were based on the same or related acts and transactions.
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336 So.2d 399 (1976)
VENETIAN SHORES HOME AND PROPERTY OWNERS and Other Adverse Interested Parties, Petitioners,
v.
Henry C. RUZAKAWSKI and the Department of Transportation, State of Florida, Respondents.
No. 76-166.
District Court of Appeal of Florida, Third District.
August 3, 1976.
Rehearing Denied August 31, 1976.
Wolf & Schoninger, Miami, for petitioners.
James A. Baccus, George L. Waas, Geoffrey B. Dobson and Winifred Sheridan Smallwood, Tallahassee, for respondents.
Before PEARSON and HENDRY, JJ., and SACK, MARTIN, Associate Judge.
PEARSON, Judge.
We are presented with a petition for writ of certiorari which seeks review of a final order of the Department of Transportation of the State of Florida which granted the application of the respondent Henry Ruzakawski to use a portion of Snake Creek in *400 the Florida Keyes as a private seaplane base. The order was entered by the Secretary of Transportation (Florida Department of Transportation). The order provided that the findings of fact, conclusions and recommendations of the Hearing Examiner were adopted "as modified" and proceeded to modify the Examiner's recommended order by providing that the license order, in fact, be issued.
We have jurisdiction to review this order pursuant to Fla. Stat. § 120.68 and FAR 4.5(c). The petitioners contend that the Department of Transportation erred in overruling the finding of the Hearing Examiner that the landing and take-off site was not adequate in that the prior existing uses and physical impediments of the designated area would make the use of the proposed site hazardous to nearby life and property. Other contentions are advanced but we hold they are without merit. We hold that the position outlined above is meritorious because the Department of Transportation was without authority to make a finding which is contrary to that of its Hearing Examiner when the finding of fact by the Hearing Examiner is supported by competent and substantial evidence in the record of the hearing.
Section 120.57(1)(b)(9) of the Florida Statutes, which is a part of the Administrative Procedure Act, provides for agency action upon the basis of the findings of the Hearing Examiner as follows:
"9. The agency may adopt the recommended order as the agency's final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines that a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept or reduce the recommended penalty in a recommended order, but may not increase it without a review of the complete record. In the event a court, in reversing an agency's order, finds that such agency action was done in bad faith or maliciously, the court may award attorney's fees and costs to the aggrieved prevailing party."
The findings of the hearing examiner were as follows:
* * * * * *
"The site of the proposed landing and take-off area desired by the Applicant to be licensed is inadequate for the proposed purpose.
"The granting of a certificate of site approval and license to the Applicant, as applied for, should be denied.
"CONCLUSIONS: Section 330.30(1), Florida Statutes, 1973, provides the basis upon which licensing should be granted or denied. One of these conditions is that the site is adequate. Chapter 14-60.07 G. (8), of the Florida Administrative Code as adopted to implement the Statute provides:
`No seaplane base shall be approved which requires aircraft to operate in close proximity to a bridge, public beach, power line, boat dock or other area which could constitute a danger to persons or property.'
"The evidence in this case clearly demonstrates that the area of Snake Creek upon which he desires a license for use as a landing and take-off site is not adequate for that purpose as provided by the law and the implementing Administrative Code. This area is already subject to uses inconsistent with the Applicant's desires. These uses include a bridge, power line, boat docks and uncontrolled recreational activities, all of which, are proscribed by regulation as above cited. It is true that the Applicant has gone to considerable length in acquiring authorization from at least three levels of government and no less than five agencies. However, this authorization dealt *401 with navigable airspace and his seaplane ramp. He has even been advised that the geometric configuration of Snake Creek would meet the minimum standards of site approval. All of this is unfortunate and must be frustrating to the Applicant. However, for the reasons stated herein it must be concluded that the site requested, by the Applicant for his intended use, is not adequate for such use and should not be licensed for that purpose."
* * * * * *
The order of the agency is as follows:
* * * * * *
"FINDINGS OF FACT: The site of the proposed take off and landing area desired by the applicant to be licensed is adequate for the issuance of a limited license for use by Henry C. Ruzakowski only when limited to his personally-owned Republic Sea Bee type aircraft. The applicant in hearing on 30 September, 1975, accepted the limitation to his own personal aircraft and personal pilotage.
"CONCLUSIONS: The water concerned is in the public domain and should be available to the public for reasonable use. It is concluded that reasonable use includes a landing area for Henry C. Ruzakowski's personally owned Republic Sea Bee aircraft.
"It is ordered that the recommended order as herein modified, the exceptions to the recommended order, the evidence and the transcript of the proceedings be made a part of this order and that a limited seaplane base site approval for the area known as Venetian Shores Seaplane Base should be and is granted."
It will be immediately noticed that the agency violated the statute in that it did "reject or modify the findings of fact" without "stat[ing] with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law."
Further, our review of the record in the light of the briefs filed compels us to hold that there is competent, substantial evidence to support the finding of the examiner and that he did proceed carefully in a strongly-contested matter to conduct a fair hearing in full compliance with the requirements of law.
We believe the entire tenor of the provisions of the Administrative Procedure Act having to do with the functions of a Hearing Examiner leads to the inescapable conclusion that the action of the agency, after a full hearing, is in the nature of a procedural review. Extensive provisions are made for remand or correction where the hearing is not complete or in accordance with the rules of due process, but there is no provision which suggests that the agency should make a new judgment upon the evidence. This relationship between agency and examiner is not new to the law. The rule long applied in chancery matters is that where a master is appointed to take the evidence and report the same, together with his findings of fact and conclusions of law, his findings should be approved by the chancellor unless clearly erroneous or it appears that the master has misconceived the legal effect of the evidence. Frank v. Frank, Fla. 1954, 75 So.2d 282. We do not think that the Administrative Procedure Act can be read to grant to the head of an agency greater powers over an examiner's findings than those of a trial judge over the findings of a master in chancery.
Accordingly, the writ is granted and the order appealed is quashed.
It is so ordered.
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Affirmed and Memorandum Opinion filed September 28, 2004
Affirmed and Memorandum Opinion filed September 28,
2004.
In The
Fourteenth Court of
Appeals
____________
NO. 14-03-01051-CR
____________
CHRISTOPHER
RAYMOND JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd
District Court
Harris County, Texas
Trial Court Cause No. 926,376
M E M O R A N D U M O P I N I O N
The jury found appellant guilty of sexual
assault. Based on the jury’s
finding that an enhancement paragraph
alleging a prior conviction for sexual assault was true, appellant was
sentenced to a mandatory life sentence in the Texas Department of Criminal
Justice, Institutional Division. In a
single point of error, appellant contends the evidence was legally and
factually insufficient to support his conviction because the victim was unable
to identify him in open court. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 24, 2002, the victim was sexually
assaulted in her home by a man she met the previous evening through a
friend. The State attempted to prove
appellant’s guilt through DNA testing and other circumstantial evidence. On the night of the assault, the victim
identified appellant by name as her attacker and supplied his telephone number
to police. The police later contacted
appellant at this telephone number and arranged to obtain his photograph and a
DNA sample. Two independent laboratories
tested the appellant’s DNA sample against the sample taken from the victim’s
body. Both laboratories found that the
two samples matched. At appellant’s
trial, over sixteen months after the assault, the victim failed to identify
appellant as the man who assaulted her.
She did, however, identify her assailant from a photograph police took
shortly after the assault. Appellant’s
telephone records revealed numerous calls between the victim and appellant on
the night of the assault. The victim’s
friend also identified appellant in court as the man she introduced to the
victim the evening before the assault.
The jury found appellant guilty of sexual
assault and further found the enhancement paragraph (alleging a prior sexual
assault) to be true. Appellant received
a mandatory twenty year sentence and now brings this appeal.
ANALYSIS
In his sole point of error, appellant
contends that the evidence was legally and factually insufficient to support
his conviction because the victim was unable to identify him in open court.
In evaluating a legal sufficiency
challenge, we view the evidence in the light most favorable to the
verdict. Wesbrook v. State, 29
S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc). The issue on appeal is not whether we, as a
court, believe the State’s evidence or believe that appellant’s evidence
outweighs the State’s evidence. Wicker
v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984) (en banc). The verdict may not be overturned unless it
is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846
(Tex. Crim. App. 1991) (en banc); see also Swearingen v. State,
101 S.W.3d 89, 95 (Tex. Crim. App. 2003).
In evaluating a factual sufficiency
challenge, we view the evidence in a neutral light. Zuniga v. State, No. 539-02, 2004 WL
840786, at *7 (Tex. Crim. App. Apr. 21, 2004).
The evidence is factually insufficient if (1) the evidence supporting
the verdict is too weak to find guilt beyond a reasonable doubt, or (2) the
contrary evidence is strong enough that the beyond-a-reasonable-doubt standard
could not have been met. Id.
Appellant relies on the victim’s failure
to identify him in open court. The
victim identified her attacker as Christopher Jackson, a man she met the
previous evening through a friend. But,
when asked whether she saw the man in the courtroom that her friend introduced
her to, the victim twice responded that she did not.[1]
However, the State also introduced
evidence from two DNA experts—Dr. Joseph Matthew, the supervisor of the Harris
County Medical Examiner’s Forensic DNA Lab, and Jennifer McCue, a forensic DNA
analysis employed by IndentiGene. Dr.
Matthew testified that appellant’s DNA sample matched the sample taken from the
victim, that the frequency of appellant’s DNA profile occurring in another
person was 1 in 6.2 billion, and that the frequency of appellant’s DNA profile
occurring in another person within the black
population was 1 in 1.8 quadrillion.[2] Similarly, McCue testified appellant’s DNA
sample matched the sample taken from the victim, and that the frequency of
appellant’s DNA profile occurring in another person was 1 in 13.5 quadrillion. The State also introduced evidence that (1)
the victim knew appellant, (2) she told a police officer her assailant was
named Chris Jackson, (3) she gave the officer appellant’s phone number, (4) she
identified a picture of appellant taken by the officer, and (5) appellant had
telephoned the victim despite denying knowing her.
In support of his position that this
evidence was insufficient in light of the victim’s inability to identify him,
appellant cites Johnson v. State, 978 S.W.2d 703 (Tex. App.—Corpus
Christi 1998), aff’d, 23 S.W.3d 1.
In Johnson, the victim testified in court, but was unable to
unequivocally identify the defendant. Id.
at 705–06. To bolster its case, that
State introduced DNA evidence that showed appellant was in a group of only 8.5%
of the black population to match the samples taken from the victim.[3] Id. at 706. The court of appeals held that the DNA
evidence was factually insufficient because it “could . . . apply to many
people other than [the defendant].” Id.
at 707.
The State counters with two cases in which
DNA evidence was held to be sufficient. See
Hinojosa v. State, 4 S.W.3d 240, 246 (Tex. Crim. App. 1999); Roberson
v. State, 16 S.W.3d 156, 172 (Tex. App.—Austin 2000, pet. ref’d). In Hinojosa, the DNA expert testified
that only 1 in 19,900,000 randomly selection people within the defendant’s
racial group would match the sample taken from the victim.[4] 4 S.W.3d at 243. The Court of Criminal Appeals held that
“these impressive statistics support the jury’s conclusion that appellant, as
opposed to some unidentified ‘suspect’ also sharing the same DNA profile,
sexually assaulted, kidnapped, and killed [the victim].” Id. at 245. In Roberson, the DNA expert testified
that only 1 in 420 billion people within the black population would match the
defendant’s profile.[5] 16 S.W.3d at 162. The court of appeals held that “[t]he DNA
(RFLP analysis) evidence was ‘strong evidence’ of [the defendant’s]
participation in the crime.” Id.
at 168.
This case is more similar to Hinojosa
and Roberson than to Johnson.
The experts here testified that the likelihood of appellant’s DNA
profile occurring within his racial group was either 1 in 1.8 quadrillion or 1
in 13.5 quadrillion. Thus, the
likelihood that another person shares the same profile as appellant is even
lower than the likelihood that another person shares the same profile as the
defendants in Hinojosa and Roberson. See Hinojosa, 4 S.W.3d at 243; Roberson,
16 S.W.3d at 162. By contrast, in Johnson
the likelihood of another person sharing the same profile as the defendant
was 8.5%, or roughly 1 in 12. See
23 S.W.3d at 706. Although no set
percentage will automatically satisfy the beyond-a-reasonable-doubt standard,
of course, cf. Wilder v. State, 111 S.W.3d 249, 253 (Tex.
App.—Texarkana 2003, pet. ref’d) (“[W]e do not encourage the use of a
percentage equation in describing the concept of beyond a reasonable doubt . .
. .”), we are comfortable that the percentages presented in this case—1 in 1.8
quadrillion and 1 in 13.5 quadrillion—satisfy the standard.
Appellant argues that the DNA evidence
does not show that he committed the crime, but rather it only rules out a large
number of other possible suspects. This
argument was also before the Hinojosa and Roberson courts, and
both courts rejected it. See Hinojosa,
4 S.W.3d at 245; Roberson, 16 S.W.3d at 166. Proof by circumstantial DNA evidence is not
subject to a more rigorous standard than proof by direct evidence; they are
equally probative. Roberson, 16
S.W.3d at 167. As the Court of Criminal
Appeals noted, “these impressive [DNA] statistics support the jury’s conclusion
. . . .” Hinojosa, 4 S.W.3d at
245; see also Roberson, 16 S.W.3d at 167 (quoting Hinojosa).
Viewing the DNA evidence and the
additional circumstantial evidence offered by the State in the light most
favorable to the verdict, we conclude that a rational jury could have found
appellant guilty beyond a reasonable doubt.
The evidence is therefore legally sufficient to support the
verdict. See Matson v. State,
819 S.W.2d at 846.
Viewing the same evidence in a neutral
light, we also conclude that it is not too weak to support guilt beyond a
reasonable doubt. Nor is the contrary
evidence—the victim’s inability to identify appellant in court—strong enough
that the beyond-a-reasonable-doubt standard could not have been met. See Meeks v. State, 897 S.W.2d
950, 955 (Tex. App.—Fort Worth 1995, no pet.) (holding that evidence was
sufficient because “[t]he fact that the complainant failed to identify [the
defendant] at trial goes only to the weight and credibility of the witnesses
and was before the jury for their consideration”). The evidence is therefore factually
sufficient to support the verdict. See
Zuniga, 2004 WL 840786, at *7.
We overrule appellant’s sole point of
error and affirm the judgment of the trial court.
/s/ Wanda McKee Fowler
Justice
Judgment
rendered and Memorandum Opinion filed September 28, 2004.
Panel
consists of Chief Justice Hedges and Justices Hudson and Fowler.
Do
Not Publish — Tex. R. App. P.
47.2(b).
[1] The victim’s
testimony follows:
Q: And
when you got there, when you got to her apartment who did you meet?
A: I met
Chris.
Q: Chris?
A: Christopher.
Q: Christopher
who?
A: Jackson.
Q: And do
you see him sitting in the courtroom today?
A: No, I
don’t see him.
Q: Looking
around you don’t see Christopher Jackson in this room.
A: No.
[2] A quadrillion
is represented by a one followed by fifteen zeros (1,000,000,000,000,000). In his testimony, Dr. Mathews described this
probability as “one in one, 885 followed by 12 zeroes” (1 in
1,885,000,000,000,000). Although the
record reflects that Dr. Mathews referred to this number as “about 1.8
quad-billion,” his testimony demonstrates the stated number is equivalent to
1.8 quadrillion.
[3] In addition to
this DNA evidence, the State introduced evidence that the defendant had once
lived in the area where the victim was taken, was uncircumsized (as was the
victim’s attacker), escaped from jail after his arrest, and lived near the
victim. Johnson, 978 S.W.2d at
706.
[4] In addition to
this DNA evidence, the State introduced evidence that the defendant lived next
door to the victim, was familiar with the victim’s house, and returned home
from work at about the same time as the victim on the night of the murder. Hinojosa, 4 S.W.3d at 245.
[5] In addition to
this DNA evidence, the State introduced the results of an additional DNA
analysis and a blood grouping procedure.
Roberson, 16 S.W.3d at 167–68.
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i i i i i i
MEMORANDUM OPINION
No. 04-10-00084-CR
Reynaldo ESPINOZA,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CR-11700
Honorable Juanita A. Vasquez-Gardner, Judge Presiding
PER CURIAM
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: March 3, 2010
DISMISSED
The trial court signed a certification of defendant’s right to appeal stating that this “is a plea-
bargain case, and the defendant has NO right of appeal.” See TEX . R. APP . P. 25.2(a)(2). Rule
25.2(d) provides, “The appeal must be dismissed if a certification that shows the defendant has the
right of appeal has not been made part of the record under these rules.” TEX . R. APP . P. 25.2(d).
Accordingly, on February 9, 2010, this court issued an order stating this appeal would be dismissed
04-10-00084-CR
pursuant to Rule 25.2(d) unless an amended trial court certification that shows defendant has the
right of appeal was made part of the appellate record. See Daniels v. State,110 S.W.3d 174 (Tex.
App.—San Antonio 2003, order); TEX . R. APP . P. 25.2(d); 37.1.
On February 11, 2010, defendant’s appellate counsel filed a letter stating “this court has no
choice but to dismiss the appeal.” In light of the record presented, we agree with defendant’s counsel
that Rule 25.2(d) requires this court to dismiss this appeal. Accordingly, this appeal is dismissed.
PER CURIAM
DO NOT PUBLISH
-2-
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92 N.Y.2d 646 (1998)
707 N.E.2d 421
684 N.Y.S.2d 466
Peter J. Stahlbrodt, Doing Business as Shopping Bag, Appellant, et al., Plaintiff,
v.
Commissioner of Taxation and Finance of the State of New York, Respondent.
Court of Appeals of the State of New York.
Argued November 17, 1998
Decided December 17, 1998.
Devorsetz Stinziano Gilberti Heintz & Smith, P. C., Syracuse (Kevin C. Murphy of counsel), for appellant.
Dennis C. Vacco, Attorney-General, Albany (Julie S. Mereson, Barbara G. Billet and Peter H. Schiff of counsel), for respondent.
Chief Judge KAYE and Judges BELLACOSA, SMITH, CIPARICK and WESLEY concur.
*648LEVINE, J.
Plaintiff-appellant Stahlbrodt, during the pertinent tax assessment period, published and distributed free of charge in Monroe County "The Shopping Bag," a weekly advertising paper which he claimed qualified for a sales tax exemption on purchases of printing services as a "shopping paper" under Tax Law § 1115 (i). After auditing The Shopping Bag, the State Department of Taxation and Finance disagreed, and assessed sales taxes on the printing services that plaintiff had purchased in publishing the paper. On plaintiff's administrative challenge, the Tax Appeals Tribunal upheld the assessment, concluding that plaintiff failed to qualify for the exemption because The Shopping Bag did not meet the requirement of Tax Law § 1115 (i) (C) that its advertising copy not exceed 90 percent of the printed area of each issue.
Plaintiff, along with his successor-in-interest, The Greater Rochester Advertiser, Inc., then brought this declaratory judgment action challenging the facial validity of Tax Law § 1115 (i) (C) (also known as "the 90 percent rule") under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. The complaint alleged that the 90 percent rule constitutes content-based discrimination against certain forms of expression, singles out a small subset of newspapers for differential tax treatment, and denies a class of shopping papers equal protection of the laws.
Supreme Court, in a comprehensive opinion by Justice Thomas W. Keegan, rejected each of plaintiffs' claims and dismissed the complaint. The Appellate Division affirmed (246 AD2d 793). Plaintiff Stahlbrodt appeals as of right on constitutional grounds (see, CPLR 5601 [b] [1]), and we now modify, declaring Tax Law § 1115 (i) (C) to be constitutional and, as so modified, affirm.
On this appeal, plaintiff has restricted his attack on the constitutionality of Tax Law § 1115 (i) (C) to one ground: that, in making entitlement to the shopping paper sales tax exemption turn on whether advertising comprises not more than 90 percent of the printed area, the provision discriminates among shopping papers based on their content and thus violates the First Amendment. We disagree.
*649We begin with the unarguable fact that the imposition of the sales tax here is not directed at the press in general or at a particular class of news entities, but is one of general application for the taxation of sales of goods and services in the State (Matter of Henry v Wetzler, 82 N.Y.2d 859, 861, cert denied 511 US 1126). In Matter of Henry v Wetzler, we rejected a constitutional challenge by shopping papers to being treated differently from newspapers and other news publications that receive a sales tax exemption for purchases of goods and services used "predominantly in the production of tangible personal property * * * for sale" (Tax Law § 1115 [a] [12]; [c]). We held that, because shopping papers are distributed without charge, they were treated no differently in being denied the exemption than "any business that does not produce a product `for sale'" (id., at 861 [emphasis in the original]). Thus, to avoid sales tax on their purchases of printing services, shopping papers such as plaintiff's are entirely dependent upon the special exemption set up for them in Tax Law § 1115 (i).
The 90 percent rule was incorporated into the shopping paper sales tax exemption to ensure that at least 10 percent of the publication would be devoted to news of general or community interest, or community notices, thus restricting the exemption to those advertising papers that serve at least in part the same informational social purposes served by general newspapers and news periodicals (see, Governor's Mem approving L 1977, ch 884, 1977 NY Legis Ann, at 305, 306).
The controlling Supreme Court precedents in this case are Regan v Taxation with Representation of Wash. (461 US 540) and Leathers v Medlock (499 US 439). Just as in the instant case, Regan and Leathers both involved challenges to differential entitlement to a specific tax benefit with respect to a tax of general application, to the advantage of some forms of expression or speakers, but not others. In Regan, the challenge was to a statutory scheme exempting all nonprofit civic welfare organizations from Federal taxation on income, but according the additional financial benefit of having contributions to them tax deductible to the donor only to those civic welfare organizations not engaged in substantial lobbying for legislation (see, Regan v Taxation with Representation of Wash., 461 US, at 543). The Supreme Court characterized both tax exemptions (such as claimed by plaintiff here) and tax deductibility as "a form of [legislative] subsidy that is administered through the tax system. A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would *650 have to pay on its income" (id., at 544). The Regan Court distinguished between a presumptively valid legislative decision to subsidize certain forms of expression and not others, and an impermissible direct penalization or regulation of speech (see, id., at 545). The former is invalid only "if Congress were to discriminate invidiously in its subsidies in such a way as to aim at the suppression of dangerous ideas" (id., at 548 [internal quotation marks and brackets omitted] [emphasis supplied]).
In Leathers v Medlock (supra) the Court upheld an exemption from a general State gross receipts tax that was granted to newspapers, subscription magazines and scrambled satellite TV broadcasters, but not to cable television companies. The Court held that a differential tax exemption scheme involving forms of expression or different speakers only becomes "constitutionally suspect when it threatens to suppress the expression of particular ideas or viewpoints" (Leathers v Medlock, 499 US, at 447). The threat to particular ideas or viewpoints may be embodied in taxes singling out the press for a special burden, targeting a small group of speakers, or discriminating on the basis of the content of the ideas expressed by the taxpayer (id., at 447).
The 90 percent rule of the shopping paper sales tax exemption passes constitutional muster under Regan and Leathers. As in those cases, the tax imposed on plaintiff here is one of general application, levied against virtually all final sales of products and services (see, Matter of Henry v Wetzler, supra). Neither the print media in general, nor shopping papers in particular, are singled out for special treatment. Other forms of published commercial speech which are distributed free of charge, including shopping catalogs, advertising flyers and shopping center advertising sheets, do not enjoy any sales tax exemption for purchases of printing services (Tax Law § 1115 [i] [D]). Plaintiff can readily qualify for the exemption by the simple expedient of a modest reduction in advertising space in its paper, possibly entailing an equally modest diminution in advertising revenues.
Moreover, the 90 percent rule does not enforce any differential treatment based on the content of ideas or viewpoints expressed in plaintiff's shopping paper. In this respect Regan remains instructive. As discussed, Regan teaches that, absent invidious discrimination, the Legislature can pick and choose between the forms of expression it decides to subsidize through a tax exemption. In Regan, the Supreme Court held that the *651 First Amendment was not implicated in Congress' choice not to subsidize expressions designed to advance a public interest group's legislative agenda. Here, a fortiori, the Legislature may validly decline to subsidize shopping papers which fail to serve at least minimally the same social purpose as a conventional newspaper by informing the public in matters of community interest, rather than exclusively commercial interest.
The Supreme Court recently reaffirmed the crucial constitutional distinction made in Regan between direct, content-based discriminatory regulation or penalization of expression, on the one hand, and subsidization of some expressions to encourage activities deemed socially desirable while remaining neutral as to other expressions. In National Endowment for Arts v Finley (524 US 569, ___, 118 S Ct 2168, 2179, 141 L Ed 2d 500, 516), the Court held that "although the First Amendment certainly has application in the subsidy context, we note that the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake."
Finally, Cincinnati v Discovery Network (507 US 410) and Arkansas Writers' Project v Ragland (481 US 221), principally relied upon by plaintiff, are distinguishable under the principles of Regan and Leathers. In Cincinnati, the Supreme Court invalidated the revocation of permits of two commercial magazine publications to use newsracks on city sidewalks for free distribution purposes, although some 1,500 to 2,000 newsracks were left available for the distribution of conventional newspapers. The closed newsrack outlets accounted for one third of the total distribution of one magazine and 15 percent of the total distribution of the other. Thus, Cincinnati presented the Supreme Court with a classic instance of the imposition of a regulation directly and significantly suppressing commercial expression, triggering First Amendment concerns, rather than merely a governmental decision to subsidize certain forms of expression via a tax exemption, while remaining neutral as to the others, as in the instant case (cf., National Endowment for Arts v Finley, supra; Regan v Taxation with Representation of Wash., supra).
In Arkansas Writers' Project, the challenged tax scheme exempted receipts from the sale of all religious, professional, trade and sports magazines published in the State from the sales tax, while taxing the sales of magazines of general interest. Crucial to the decision was that the burden of the tax fell on a very small group of magazines at most three publications, *652 including the plaintiff's. Thus, as the Court noted, "the fundamental question is * * * whether [the tax] targets a small group within the press" (Arkansas Writers' Project v Ragland, supra, 481 US, at 229). This constitutional infirmity was also identified in Leathers v Medlock (supra), but is totally absent in the instant case where numerous publications must pay sales tax on the purchase of printing services (see, e.g., Tax Law § 1115 [i] [D]). Moreover, the imposition of the tax on the plaintiff in Arkansas Writers' Project could not have been avoided, as here, by a minor adjustment between the relative advertising and news copy in plaintiff's shopping paper. Rather, avoidance of the tax by the plaintiff in that case could only have been achieved by a shift in its entire theme, commentary and reportage on matters of general interest, thereby effectively penalizing the magazine for providing coverage of some entire topics (Arkansas Writers' Project v Ragland, 481 US, at 230). Again, the 90 percent rule in this case does not at all operate to regulate the ideas or topics in plaintiff's advertising copy, or any other particular ideas, viewpoints or subjects but instead simply serves as a means of identifying those papers that qualify for a subsidy.
Accordingly, we agree with the lower courts that Tax Law § 1115 (i) (C) is constitutional. However, the proper disposition of this declaratory action is an adverse declaration to the plaintiffs, rather than a dismissal of the complaint (see, Lanza v Wagner, 11 N.Y.2d 317, 334, cert denied 371 US 901). Thus, the order of the Appellate Division should be modified, with costs to defendant, by granting judgment declaring Tax Law § 1115 (i) (C) constitutional and, as so modified, affirmed.
Order modified, etc.
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106 Cal.App.3d 441 (1980)
164 Cal. Rptr. 913
JOHN OTTO MATTSON, Plaintiff and Appellant,
v.
CITY OF COSTA MESA et al., Defendants and Respondents.
Docket No. 21411.
Court of Appeals of California, Fourth District, Division Two.
June 2, 1980.
*443 COUNSEL
Steven L. Stern and Richard P. Herman for Plaintiff and Appellant.
Burke, Williams & Sorensen and Richard R. Terzian for Defendants and Respondents.
OPINION
KAUFMAN, J.
Plaintiff John Otto Mattson (plaintiff) appeals from a judgment of dismissal following the court's sustaining demurrers by the *444 defendants, City of Costa Mesa (City) and two police officers in its employ.
Defendants Poling and Kent, police officers employed by the City, made a warrantless arrest of the plaintiff outside of his house around midnight on June 26, 1976. Plaintiff was taken to the Costa Mesa police station, where he was charged with three misdemeanors: public drunkenness, resisting arrest and disturbing the peace. He was released early the following morning. Eventually, the charges against him were dismissed for failure to prosecute. The actions of the officers and plaintiff, respectively, are in dispute as are the questions of probable cause for plaintiff's arrest, the officers' use of excessive force, and their negligence in their arrest and subsequent treatment of plaintiff.
On September 29, 1976, plaintiff presented to City a claim alleging that as a result of the arrest he had suffered $576,797.12 damages. The claim was rejected, and on February 8, 1977, the plaintiff filed a civil action against Poling, Kent and the City in the United States District Court for the Central District of California. The complaint averred that officers Poling and Kent had knowingly and without provocation or probable cause assaulted the plaintiff and then arrested him; that as a result the plaintiff suffered various physical injuries; and that the officers had failed to return $1,000 in cash which they had taken from him while he was detained at the city jail. The complaint was denominated an action to redress violations of the plaintiff's civil rights under color of state law, and it further requested the federal court to take pendent jurisdiction of a nonfederal claim of negligence based on the same facts.
On June 27, 1977, at defendants' urging, the federal court denied plaintiff's request that it take pendent jurisdiction of the state law negligence claim and dismissed City from the action.[1] Three days later, on June 30, plaintiff filed his complaint in the instant action in the Orange County Superior Court against Poling, Kent and City, alleging the same facts as he had alleged in the federal action but further alleging that Poling and Kent had "negligently assaulted, battered and arrested plaintiff" and "mishandled his personal property."
*445 Apparently plaintiff made no attempt to serve the defendants in the state court action, and it lay dormant for approximately two years while the federal civil rights action proceeded to jury trial. The jury in the federal action returned a unanimous verdict against plaintiff. On a motion by the defendants in the federal action for attorney fees, the court found the action was frivolous and without foundation and assessed plaintiff $2,607.30 attorney fees and costs. Plaintiff has since appealed the federal court decision on the ground that the dismissal of the City was erroneous.
Following the adverse decision in the federal action, plaintiff served the defendants with process in the state court action. Defendants demurred on grounds that the state court action was barred by res judicata or collateral estoppel and the relevant claims period and statute of limitations (Gov. Code, § 945.6; Code Civ. Proc., § 340, subd. 3). The trial court sustained the demurrers on these grounds and subsequently entered a judgment of dismissal.
I.
Collateral Estoppel
If, of course, dispositive factual questions were actually litigated in the federal civil rights action, plaintiff would be collaterally estopped from relitigating those questions in the instant action. (See Levy v. Cohen (1977) 19 Cal.3d 165, 171 [137 Cal. Rptr. 162, 561 P.2d 252]; In re Russell (1974) 12 Cal.3d 229, 233 [115 Cal. Rptr. 511, 524 P.2d 1295]; Merry v. Coast Community College Dist. (1979) 97 Cal. App.3d 214, 221 [158 Cal. Rptr. 603]; City of Los Angeles v. Superior Court (Levy) (1978) 85 Cal. App.3d 143, 149-150 [149 Cal. Rptr. 320].) (1) However, the collateral estoppel aspect of the doctrine of res judicata applies only to issues that were actually litigated in the first action. (Henn v. Henn (1980) 26 Cal.3d 323, 330 [161 Cal. Rptr. 502, 605 P.2d 10]; Clark v. Lesher (1956) 46 Cal.2d 874, 880-881 [299 P.2d 865]; Gorman v. Gorman (1979) 90 Cal. App.3d 454, 464 [153 Cal. Rptr. 479]; see also City of Los Angeles v. Superior Court (Levy), supra, 85 Cal. App.3d at pp. 149-150.)
Although defendants vigorously assert that the issues of lack of probable cause and excessive force were actually litigated in the federal civil rights action, we are unable to ascertain from the record whether or not *446 that is so. Negligence alone is insufficient to give rise to liability under 42 United States Code section 1983. To be entitled to relief under section 1983, plaintiff must at least show intentional conduct in circumstances in which the offending governmental employees were legally bound to know that their conduct would deprive the plaintiff of civil rights. (Monroe v. Pape (1961) 365 U.S. 167, 187, 207 [5 L.Ed.2d 492, 505, 516, 81 S.Ct. 473]; Bonner v. Coughlin (7th Cir.1976) 545 F.2d 565, 567-568; see Wood v. Strickland (1975) 420 U.S. 308 [43 L.Ed.2d 214, 95 S.Ct. 992]; Williams v. Field (9th Cir.1969) 416 F.2d 483.) From the record before us it appears possible that the federal jury determined no more than that defendants Poling and Kent lacked the requisite mens rea.
Thus, we conclude that the judgment cannot be affirmed on the basis of collateral estoppel on the record before us. (Cf. City of Los Angeles v. Superior Court (Levy), supra, 85 Cal. App.3d at pp. 149-150.)
II.
Res Judica (Bar)
(2) However, "[i]n its primary aspect the doctrine of res judicata operates as a bar to the maintenance of a second suit between the same parties on the same cause of action." (Clark v. Lesher, supra, 46 Cal.2d at p. 880; Henn v. Henn, supra, 26 Cal.3d at p. 329; Agarwal v. Johnson (1979) 25 Cal.3d 932, 954 [160 Cal. Rptr. 141, 603 P.2d 58]; Slater v. Blackwood (1975) 15 Cal.3d 791, 795 [126 Cal. Rptr. 225, 543 P.2d 593].) Under this aspect of res judicata the prior final judgment on the merits not only settles issues that were not actually litigated but also every issue that might have been raised and litigated in the first action. (Olwell v. Hopkins (1946) 28 Cal.2d 147, 152 [168 P.2d 972]; Merry v. Coast Community College Dist., supra, 97 Cal. App.3d at pp. 222, 224-225.) It also precludes litigation of the same cause of action on a different legal theory or for different relief. (Slater v. Blackwood, supra, 15 Cal.3d at p. 795; Merry v. Coast Community College Dist., supra.) In these respects, this aspect of res judicata is closely related to and parallels the rule prohibiting piecemeal litigation by splitting a single cause of action. (See City of Los Angeles v. Superior Court (Levy), supra, 85 Cal. App.3d at pp. 150-151; Merry v. Coast Community College Dist., supra, 97 Cal. App.3d at p. 221; Gorman v. Gorman, supra, 90 Cal. App.3d at p. 464.)
*447 (3) (See fn. 2.) Defendants assert that the cause of action sued upon by plaintiff in the case at bench is the same cause of action as he sued upon in the federal case, that only plaintiff's legal theory is different, and that, therefore, the federal court judgment bars plaintiff's maintenance of this action even if negligence was not actually litigated in the federal court action.[2] (See Levy v. Cohen, supra, 19 Cal.3d at pp. 173-174; Slater v. Blackwood, supra, 15 Cal.3d at pp. 795-797; City of Los Angeles v. Superior Court (Levy), supra, 85 Cal. App.3d at pp. 150-151; Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636, 638-640 [134 P.2d 242].)
Although the plaintiff cannot quite bring himself to concede that the cause of action sued upon in the state court is the same as that sued upon in the federal court action, he makes no argument to the contrary. (4) The parties' discussion of the "primary rights" theory employed by California courts in analyzing what constitutes a cause of action (see Agarwal v. Johnson, supra, 25 Cal.3d at p. 954; Merry v. Coast Community College Dist., supra, 97 Cal. App.3d at p. 227; City of Los Angeles v. Superior Court (Levy), supra, 85 Cal. App.3d at pp. 152-153; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 22, p. 1707) indicates that plaintiff's cause of action in the two suits is the same. While the utility of the "primary rights" doctrine as an analytical tool has been questioned (see, e.g., Merry v. Coast Community College Dist., supra, 97 Cal. App.3d at p. 227, fn. 9; City of Los Angeles v. Superior Court (Levy), supra, 85 Cal. App.3d at p. 153), the singlemost determinative factor is the substantive right of the plaintiff allegedly violated, the harm suffered. (Agarwal v. Johnson, supra; see also City of Los Angeles v. Superior Court (Levy), supra, 85 Cal. App.3d at p. 153.)
Defendants assert and plaintiff does not contest that the two primary rights of plaintiff that were the basis of the federal court action are the same as those that constitute the basis for this action. Those rights are two aspects of plaintiff's interest in personal security and integrity: (1) the right to be free from personal injury, and (2) the right to be free from arrest unless pursuant to a warrant valid on its face or upon reasonable cause and, in either event, without excessive force. The allegation in the state court action that defendants' conduct was negligent as opposed to having been accompanied by a mental state *448 necessary to support a federal civil rights action is simply a different way of expressing an invasion of the same primary rights or the assertion of a different legal theory for recovery. (Cf. City of Los Angeles v. Superior Court (Levy), supra, 85 Cal. App.3d at pp. 153-154; also cf. Panos v. Great Western Packing Co., supra, 21 Cal.2d at p. 638; Ford Motor Co. v. Superior Court (1973) 35 Cal. App.3d 676, 679 [110 Cal. Rptr. 59].) To the extent that plaintiff seeks recovery for an invasion of his interest in personalty, that right too is the same here as it was in the federal court action. (Cf. City of Los Angeles v. Superior Court (Levy), supra.)
However, it does not necessarily follow, as defendants appear to contend, that the instant state court action is barred by the judgment in the federal district court. The aspect of res judicata generally referred to "bar" has the effect of making conclusive on the parties the adjudication of all matters of fact that could have been litigated in the proceeding. (Merry v. Coast Community College Dist., supra, 97 Cal. App.3d at pp. 224-225; see also Levy v. Cohen, supra, 19 Cal.3d at pp. 173-174.) Plaintiff contends, in essence, that since he attempted to have the question of defendants' negligence adjudicated in the federal court action and was precluded from doing so by the federal court's refusal to take pendent jurisdiction of the state court claim, it cannot fairly be said that that question could have been litigated in that action. Thus, plaintiff concludes the judgment in that action should not bar maintenance of the instant action.
In support of his position, plaintiff relies primarily upon the decision of this court in Merry v. Coast Community College Dist., supra, 97 Cal. App.3d 214, and several sections, illustrations and portions of commentary from the Restatement of Judgments and the Restatement Second of Judgments, Tentative Draft No. 5 (hereafter cited as Rest. 2d Judgments). Defendants rely in support of their position to the contrary primarily upon Slater v. Blackwood, supra, 15 Cal.3d 791, Panos v. Great Western Packing Co., supra, 21 Cal.2d 636; City of Los Angeles v. Superior Court (Levy), supra, 85 Cal. App.3d 143, and portions of the Restatement of Judgments. As we shall see, plaintiff appears to have somewhat the better of it on the basis of the authorities cited, although none of them are controlling.
The Slater and Panos decisions are really of no great help in resolving the problem here presented. Both decisions utilize the "primary rights" theory and conclude that if both actions seek recovery for invasion *449 of the same primary right they are the same cause of action notwithstanding that recovery is sought in the second suit on a different legal ground or theory. Both decisions are in precise accord with section 63 of the Restatement of Judgments and comment c thereto which state in substance that a judgment in an action for negligent injury precludes a subsequent action for intentional or reckless invasion of the same primary right, even if the issues of intentional or reckless injury were not actually litigated in the first action.
More to the point is section 62 of the Restatement of Judgments which sets out the rule prohibiting splitting a cause of action. In essence, it provides that a judgment which precludes the plaintiff from thereafter maintaining an action upon the same cause of action also precludes maintaining an action upon any part of the original cause of action even though that part of the cause of action was not actually litigated in the earlier suit, unless (1) the procedure adopted by the plaintiff precluded his recovery for the entire claim and was essential to preserving his rights, or (2) the defendant's fraud or misrepresentation prevented the plaintiff from presenting the entire claim in the original action, or (3) the defendant consented to the splitting of the plaintiff's cause of action.
Comment j to section 62 is particularly pertinent. It provides: "The rule stated in this Section against splitting causes of action is applicable although the first action is brought in a court which has no jurisdiction to give a judgment for more than a designated amount.... The rule is also applicable where the first action is brought in a court of limited jurisdiction which has no jurisdiction to give a judgment as to one part of the plaintiff's claim. Where the plaintiff brings an action in such a court to enforce a part of his claim and recovers judgment, he is thereby precluded from thereafter maintaining an action for the other part of his claim.... The plaintiff, having voluntarily brought his action in a court which can give him only a limited remedy, cannot insist upon obtaining a further remedy in another action."
Section 62 of the Restatement of Judgments and comment j thereto were relied on in part by the court in City of Los Angeles v. Superior Court (Levy), supra, 85 Cal. App.3d at page 151, in granting a peremptory writ of mandate to compel the superior court to dismiss the plaintiff's state court action seeking damages for the seizure, withholding and loss of personal property because it was barred by a judgment *450 entered on a jury verdict in a prior federal court civil rights action based on the same facts. The court reasoned: "[N]o one compelled [plaintiff] to file his civil rights action in the federal court. He could have sued in the state court (Williams v. Horvath (1976) 16 Cal.3d 834, 837 [129 Cal. Rptr. 453, 548 P.2d 1125]), where his power to join the conversion counts with his civil rights grievances would have been unquestioned. [Citation omitted.] Third: it appears to be the law that a litigant cannot avoid the impact of the rule against splitting causes of action by choosing for his first foray a tribunal of limited jurisdiction. (Rest., Judgments, § 62, com. j; cf. Zirker v. Hughes (1888) 77 Cal. 235 [19 P. 423].)" (85 Cal. App.3d at p. 151; cf. Ford Motor Co. v. Superior Court, supra, 35 Cal. App.3d at pp. 679-680.) Both the City of Los Angeles and Ford Motor Co. decisions, however, are distinguishable from the case at bench because in those cases the respective plaintiffs had failed to attempt to have the federal court exercise pendent jurisdiction over the state claims, and in each case the appellate court determined that the federal court would in all likelihood have exercised pendent jurisdiction.
Plaintiff also argues that the exception set forth in section 62 making it permissible to split a cause of action if the defendant impliedly or expressly consents, is applicable in this case because defendants resisted plaintiff's effort to have the federal court take pendent jurisdiction over his state claim and urged the federal court not to exercise pendent jurisdiction.
(5) While it is true that defendants did urge the federal court not to exercise pendent jurisdiction over the state claim, we do not think defendants can be said thereby to have consented to this successive suit in the state court. Defendants have maintained consistently from the outset that plaintiff should have instituted his suit in the state court where as a matter of right he could have litigated both his federal and state claims. Thus, defendants did not consent to plaintiff's splitting his cause of action. On the contrary, their tactics in the federal court were undoubtedly aimed at causing plaintiff to litigate both claims simultaneously in the state court.
However, interwoven with plaintiff's consent theory is his reliance on section 67 of the Restatement of Judgments and portions of the commentary and illustrations to section 67. Section 67 provides: "Where in an action the court holds that the plaintiff cannot enforce a particular *451 claim in that action on the ground that he can enforce it only in a separate action, the judgment does not preclude the plaintiff from enforcing the claim in another action, although in the second action it appears that the holding of the court in the first action was erroneous." In comment a to section 67 it is stated that the rule is applicable whether or not the defendant is taking inconsistent positions in the two actions and that it is immaterial that the plaintiff did not appeal from the ruling of the court in the first action. In comment e it is stated: "The rule stated in this Section is applicable where the plaintiff brings an action alleging two or more grounds for the same relief, and the court erroneously holds that he cannot recover on one of the grounds except in a separate action. In such a case, although judgment is given for the defendant in the original action, the plaintiff is not precluded from maintaining a subsequent action based upon the ground which was excluded from the first action. It is true that a judgment for the defendant ordinarily precludes the plaintiff from subsequently maintaining an action on the same cause of action although he presents other grounds for the relief asked (see § 63). This rule, however, is not applicable where the court erroneously denies him an opportunity in the original action to present the other grounds for the relief asked."
Plaintiff relies particularly on illustration 6 to comment e of section 67. The illustration hypothesizes that in the first action the plaintiff alleges two counts, one for negligent injury and the second for wilful injury; that on the motion of the defendant the court strikes out the negligence count, erroneously ruling that there is a misjoinder of causes of action; that upon trial the plaintiff is unable to prove that the defendant wilfully caused the injury and that verdict and judgment are given for the defendant. The illustration concludes that the plaintiff is not precluded by the judgment from thereafter maintaining a second action against the defendant for negligently causing the injury.
Although plaintiff does not assert that the federal court erred in refusing to exercise pendent jurisdiction over the state claim, he argues that the result should nevertheless be the same when the court in the first action has discretionary jurisdiction and declines to exercise jurisdiction. From a consideration of the commentary and illustrations given under section 67 of the Restatement of Judgments, it appears probable that the authors were not attempting in section 67 to address the state court-federal court-pendent jurisdiction problem, but, rather, erroneous rulings in the first action by a court within a single court system. The *452 rules set forth in section 67 are eminently sound when applied to a single court system, for having attempted to litigate his claim on all theories and grounds and having been turned out of court as to one or more theories or grounds, what more could be expected of the plaintiff? In the state court-federal court-pendent jurisdiction milieu, however, when the federal court refuses to exercise pendent jurisdiction, the plaintiff has, as we shall discuss, the alternative of litigating both claims and all theories in the state court. Whether the existence of that alternative renders the rules set forth in section 67 inapplicable is a matter we address infra.
Some effort has been made by the authors of the Restatement Second of Judgments, Fifth Tentative Draft, to deal with the state court-federal court-pendent jurisdiction problem. Section 61 sets forth the general rule that "[w]hen a valid and final judgment rendered in an action extinguishes the plaintiff's claim pursuant to the rules of merger or bar ..., the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose."
Comment g to section 61 reads: "The rule stated in this Section as to splitting a claim is applicable although the first action is brought in a court which has no jurisdiction to give a judgment for more than a designated amount. When the plaintiff brings an action in such a court and recovers judgment for the maximum amount which the court can award, he is precluded from thereafter maintaining an action for the balance of his claim.... It is assumed here that a court was available to the plaintiff in the same system of courts say a court of general jurisdiction in the same state where he could have sued for the entire amount. Compare § 61.2, Comment c. The same considerations apply when the first action is brought in a court which has jurisdiction to redress an invasion of a certain interest of the plaintiff, but not another, and the action goes to judgment on the merits. (See Illustration 14 [judgment in a suit for property damage bars a second suit for personal injury, even if the forum chosen by the plaintiff for the first action lacked subject matter jurisdiction over an action for personal injury].) The plaintiff, having voluntarily brought his action in a court which can grant him only limited relief, cannot insist upon maintaining another action on the claim. [¶] Compare § 61.1, Comment e, and § 61.2, Comment d(1), on special problems of state and federal competencies."
*453 Comment e to section 61.1 provides: "A given claim may find support in theories or grounds arising from both state and federal law. When the plaintiff brings an action on the claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. If, however, the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should be held not precluded."
Illustration 10 under comment e to section 61.1 reads: "A commences an action against B in a federal court for treble damages under the federal antitrust laws. After trial, judgment is entered for the defendant. A then seeks to commence an action for damages against B in a state court under the state antitrust law grounded upon substantially the same business dealings as had been alleged in the federal action. Even if diversity of citizenship between the parties did not exist, the federal court would have had `pendent' jurisdiction to entertain the state theory. Therefore, unless it is clear that the federal court would have declined as a matter of discretion to exercise that jurisdiction (for example, because the federal claim, though substantial, was dismissed in advance of trial), the state action is barred."
Comment e to section 61.1 and illustration 10 thereunder were relied on in part by this court in Merry v. Coast Community College Dist., supra, 97 Cal. App.3d at page 229, in holding that a federal court summary judgment dismissing a civil rights action could not preclude a subsequent state court action based on the same operative facts. We reasoned in part that upon summary disposition of the federal claim, the federal court would doubtless have refused to exercise pendent jurisdiction over the state claim and that, therefore, the state claim was not barred by the summary judgment dismissing the federal claim.
Plaintiff argues that because he did attempt to have the federal court exercise pendent jurisdiction over the state claim and it refused to do so, a fortiori, his state court action is not barred by the federal court judgment in the case at bench. However, Merry is distinguishable from the instant case on two fundamental bases. First, the decision in Merry *454 was greatly influenced by the summary nature of the federal court judgment, and we were at pains to make that plain. (See 97 Cal. App.3d at pp. 227-228, 230.) Secondly, it is by no means clear that in Merry the cause of action asserted by plaintiff in the federal court action was the same cause of action as that asserted in the state court action, and we expressly declined to resolve that question in Merry. (See 97 Cal. App.3d at p. 227.)
While comment e to section 61.1 and illustration 10 do not expressly deal with the situation where the plaintiff has attempted to have the federal court exercise pendent jurisdiction over his state claim and the federal court has refused to do so, it is fairly plain from the comment and illustration that the authors of the Restatement Second would conclude that a subsequent state court action is not barred. That conclusion, however, would be somewhat inconsistent with the rule set forth in comment g to section 61 of the Restatement Second of Judgments and City of Los Angeles v. Superior Court (Levy), supra, 85 Cal. App.3d at page 151 that a litigant may not avoid the rule prohibiting splitting a cause of action by selecting a forum of limited jurisdiction.
We believe the rule was properly applied in the City of Los Angeles case where the plaintiff made no attempt to have the federal court exercise pendent jurisdiction over the state claim and the appellate court concluded that the federal court would have exercised pendent jurisdiction had it been requested to do so. However, application of the rule to preclude a subsequent state court action solely because the plaintiff elected to sue in federal court in the first instance appears to us inappropriate in a case in which the plaintiff did request the federal court to take pendent jurisdiction and it declined to do so. It would have an unwarranted and unnecessary chilling effect upon the invocation of the jurisdiction of the federal courts in civil rights actions.
The initial choice by the plaintiff to file suit in federal court will not necessarily result in splitting his cause of action, because the federal court may well exercise pendent jurisdiction over the nonfederal claim. However, when the federal court has been requested to and has declined to exercise pendent jurisdiction over the nonfederal claim, the plaintiff is presented with a new choice. He may proceed to trial on the federal claim or, usually, he may elect to dismiss the federal claim without prejudice (see Fed. Rules Civ.Proc., rule 41(a)(1)) and litigate both *455 claims in the state court[3] (see Merry v. Coast Community College Dist., supra, 97 Cal. App.3d at p. 224; City of Los Angeles v. Superior Court (Levy), supra, 85 Cal. App.3d at p. 151). Once it is known that the federal court will not exercise pendent jurisdiction over the state claim, plaintiff's proceeding to trial in the federal court on the federal claim alone will necessarily result in splitting the plaintiff's cause of action, and that fact should be apparent to the plaintiff.
(6) In such circumstances the rule that would best accommodate the rights of the plaintiff to fully litigate his claim and to invoke the jurisdiction of the federal court and the right of the defendant, the courts and the public to be free of multiple litigation of the same cause of action, is that once the federal court has declined to exercise pendent jurisdiction over the state claim, if the plaintiff then elects to proceed to trial and judgment in the federal court, his entire cause of action is either merged in or barred by the federal court judgment so that he may not thereafter maintain a second suit on the same cause of action in a state court.
A contrary rule would invite manipulation. It would permit a plaintiff halfheartedly to request the federal court to exercise pendent jurisdiction, offer little resistance to any argument by the defendant against its exercise, and hope that the federal court would decline to exercise pendent jurisdiction and thereby reserve to the plaintiff a second chance to prevail in a state court action should he be successful in the federal court. Judicious utilization of judicial and litigant resources become ever more essential in the wake of the law explosion. The efficient administration of justice would not be advanced by a rule resulting in or encouraging multiple litigation of a single cause of action.
Finally, plaintiff argues that defendants are estopped from asserting the bar of the federal court judgment because they urged the federal court not to exercise pendent jurisdiction over the state claim. There are, of course, situations in which the defendant's conduct with respect to a claim or a portion of a claim in the first action will estop him from asserting that the judgment in the first action is res judicata as to a second. (See, e.g., Slater v. Blackwood, supra, 15 Cal.3d at pp. 797-798, *456 citing Lunsford v. Kosanke (1956) 140 Cal. App.2d 623, 628-631 [295 P.2d 432], and decisions there discussed.) However, as we similarly concluded with respect to plaintiff's argument that defendants consented to plaintiff's splitting his cause of action, imposing an estoppel upon defendants in the case at bench because they urged the federal court not to exercise pendent jurisdiction over the state claim is unwarranted. The position of defendants was that the state claim would be better heard in the state court and that inasmuch as the state court had jurisdiction to litigate the federal civil rights action also, both aspects of the claim should be litigated together in a state court action. That position is not inconsistent with their present claim that, having proceeded to trial in the federal court on the civil rights action, plaintiff is barred from relitigating the cause of action in the state court.
Having concluded that the trial court correctly ruled that the present action is barred by the federal court judgment, we have no occasion to reach the questions whether plaintiff's action is barred by a statute of limitations or whether, as plaintiff asserts, the doctrine of equitable tolling applies so that the applicable statutes of limitation have not run (but see fn. 3, ante).
The judgment is affirmed.
Tamura, Acting P.J., and McDaniel, J., concurred.
Appellant's petition for a hearing by the Supreme Court was denied August 27, 1980.
NOTES
[1] The apparent reason for dismissal of the City as a party was that under the law as it was believed to be at that time, a municipality could not be sued directly under the Civil Rights Act. (See Aldinger v. Howard (1976) 427 U.S. 1 [49 L.Ed.2d 276, 96 S.Ct. 2413].) In 1978, of course, the United States Supreme Court decided Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 [56 L.Ed.2d 611, 98 S.Ct. 2018] holding that local public entities are not immune from liability under the Civil Rights Act. (See also Owen v. City of Independence (1980) 445 U.S. 622 [63 L.Ed.2d 673, 100 S.Ct. 2979].)
[2] For res judicata purposes, the federal judgment is considered final notwithstanding the pendency of plaintiff's appeal from the judgment. (See Levy v. Cohen, supra, 19 Cal.3d at p. 172, and cases there cited.)
[3] If the plaintiff commences suit in the state court promptly after the federal court has declined to exercise pendent jurisdiction, the doctrine of equitable tolling will avoid the bar of the statute of limitations if by then the period of limitations has expired. (Addison v. State of California (1978) 21 Cal.3d 313, 319-321 [146 Cal. Rptr. 224, 578 P.2d 941]; Nichols v. Canoga Industries (1978) 83 Cal. App.3d 956, 962-964 [148 Cal. Rptr. 459].)
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44 So.3d 216 (2010)
Xavier Gonzalez REYES, Appellant,
v.
STATE of Florida, Appellee.
No. 2D09-1072.
District Court of Appeal of Florida, Second District.
September 22, 2010.
James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM.
Xavier Gonzalez Reyes appeals the judgment and sentence entered after the trial court revoked his probation. We affirm the revocation of probation. We agree with Mr. Reyes that the trial court incorrectly identified the condition of probation he violated. The trial court found that he violated the condition of probation requiring him to submit to random urinalyses as directed by his probation officer. Although this condition is listed as number 11 in the order of probation, the trial court found him in violation of condition 5. On remand, the trial court should correct the written order to reflect that Mr. Reyes violated condition 11. See Murray v. State, 692 So.2d 965 (Fla. 2d DCA 1997).
Accordingly, we affirm the revocation of probation and resultant sentence, but we remand for the trial court to correct the written order.
ALTENBERND, VILLANTI, and KHOUZAM, JJ., Concur.
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SCOTT MASON PRATHO, M.D. V. LUPE ZAPATA, INDIVIDUALLY AND AS NEXT FRIEND FOR SABRINA ZAPATA AND GREGORY ZAPATA, AND AS HEIR OR REPRESENTATIVE OF THE ESTATE OF REYNALDO ZAPATA, DECEASED
(comment: 1)
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-051-CV
SCOTT MASON PRATHO, M.D. APPELLANT AND
APPELLEE
V.
LUPE ZAPATA, INDIVIDUALLY APPELLEE AND
AND AS NEXT FRIEND FOR SABRINA APPELLANT
ZAPATA AND GREGORY ZAPATA, AND
AS HEIR OR REPRESENTATIVE OF THE
ESTATE OF REYNALDO ZAPATA, DECEASED
------------
FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
------------
OPINION
------------
Appellant Scott Mason Pratho, M.D. appeals from a judgment rendered on a jury verdict awarding damages to the survivors of his deceased patient, Reynaldo Zapata, after Dr. Pratho failed to diagnose and treat Zapata’s heart condition. Lupe Zapata also appeals the trial court’s judgment notwithstanding the verdict invalidating the jury’s award of damages for pain and suffering sustained by Zapata before his death. Because we hold that Mrs. Zapata produced legally sufficient evidence of proximate cause, and because we further hold that she established standing to sue on behalf of Zapata’s estate at the time of trial, we will affirm the trial court’s judgment in part and reverse in part.
Forty-nine-year-old Reynaldo Zapata died at home of a heart attack on May 27, 1997. In the two weeks before his death, Zapata had been evaluated and treated by two emergency room physicians at Harris Methodist Southwest Hospital and a family practitioner, all of whom failed to diagnose Zapata’s heart problem: unstable angina. Zapata was first seen by emergency room physician Brett Landon Cochrum, M.D., at Harris Methodist on May 19, 1997, where he complained of a burning throat and tingling in his right arm. Dr. Cochrum concluded that Zapata was suffering pain from an upper respiratory infection and treated him accordingly.
Zapata returned to the emergency room the next day, May 20, 1997, where he was seen by Dr. Pratho. Dr. Pratho’s assessment was that Zapata suffered from “[n]onspecific neck pain possibly related to cervical disc disease.” Dr. Pratho prescribed Zapata pain medications and steroids, placed his neck in a soft cervical collar, and directed him to follow up with his family practitioner in “the next available appointment for reevaluation and possible work-up.”
The following day, May 21, 1997, Zapata was seen by John E. Staniland, M.D., the partner of Zapata’s regular family doctor. Dr. Staniland diagnosed Zapata with “musculoskeletal pain radiating from the neck.” Dr. Staniland prescribed a narcotic pain medication, ordered an x-ray of Zapata’s neck, and referred Zapata to a neurologist. Zapata suffered a heart attack and died six days later.
Zapata’s widow, on behalf of herself, her two children fathered by Zapata,
(footnote: 1) and Zapata’s estate, sued Harris Methodist and the three doctors,
(footnote: 2) alleging that the doctors’ failure to diagnose and treat Zapata’s heart condition proximately caused Zapata’s death and ensuing damages to his wife and children. After Mrs. Zapata settled during trial with Harris Methodist, Dr. Cochrum, and Dr. Staniland, the trial court submitted her claims against Dr. Pratho to the jury. The jury found Dr. Pratho negligent and further found that 30% of the negligence that caused Zapata’s death was attributable to Dr. Pratho.
I. DR. PRATHO’S APPEAL
On appeal, Dr. Pratho argues that the judgment against him should be reversed because Mrs. Zapata did not produce legally sufficient evidence of proximate cause. Dr. Pratho acknowledges that there was expert testimony that the medical treatment by other defendants were proximate causes of Zapata’s death, but he claims there was no expert testimony that the treatment he provided was a proximate cause of Zapata’s death. Furthermore, Dr. Pratho claims that the evidence failed to establish that he should have foreseen that his treatment would result in Zapata’s death.
In determining a “no-evidence” issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary.
Bradford v. Vento,
48 S.W.3d 749, 754 (Tex. 2001)
; Cont’l Coffee Prods. Co. v. Cazarez,
937 S.W.2d 444, 450 (Tex. 1996);
In re King's Estate
, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding.
Cazarez,
937 S.W.2d at 450;
Leitch v. Hornsby
, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact.
Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co.
, 77 S.W.3d 253, 262 (Tex. 2002).
In a medical malpractice case, a plaintiff must prove that the negligence of the defendant physician proximately caused the injury alleged.
Hart v. Van Zandt
, 399 S.W.2d 791, 792 (Tex. 1965). To establish proximate cause, a plaintiff must show (1) cause-in-fact, i.e., that the defendant's negligence was a substantial factor in bringing about the injury and without which no harm would have occurred, and (2) foreseeability, i.e., that the defendant should have anticipated the danger that resulted from his or her negligence.
Arlington Mem’l Hosp. Found., Inc. v. Baird
, 991 S.W.2d 918, 922 (Tex. App.—Fort Worth 1999, pet. denied). The trier of fact may decide the issue of causation in medical malpractice cases based upon (1) scientific principles provided by expert testimony allowing the fact finder to establish a traceable chain of causation from the condition back to the event; (2) a probable causal relationship as articulated by expert testimony; or (3) general experience and common sense from which reasonable persons can determine causation.
Marvelli v. Alston
, 100 S.W.3d 460, 470 (Tex. App.—Fort Worth 2003, pet. denied) (citing
Parker v. Employers Mut. Liab. Ins. Co
.
of Wis.
, 440 S.W.2d 43, 46 (Tex. 1969)).
Dr. Pratho argues that because Mrs. Zapata presented no expert testimony articulating a probable causal relationship between his treatment of Zapata and Zapata’s death, the evidence was legally insufficient to support the jury’s verdict against him. Under
Marvelli
, however, this is only one manner of proving causation. If the expert testimony presented by Mrs. Zapata established medical principles that allowed the jury to trace a chain of causation from Zapata’s death back to Dr. Pratho’s treatment of him the second time he visited the emergency room, then the jury had sufficient evidence before it of causation and its verdict will stand.
See id.
at 470;
Rocor Int’l
, 77 S.W.3d at 262.
At trial, Mrs. Zapata presented the expert witness testimony of William O’Riordan, M.D., a physician who is board certified in emergency medicine. The expert witness testified that Zapata probably was suffering from unstable angina due to the following symptoms that Zapata exhibited when he was treated by Dr. Cochrum at his first emergency room visit:
one and one-half weeks of waxing and waning symptoms with a variety of locations of discomfort;
pain or discomfort and symptomology that increased with exertion;
an EKG that was “highly suspicious for having an old inferior wall or old heart attack or a previous heart attack” and that contained “slightly down sloping or horizontal type[s] of changes”; and
risk factors, including his male gender, obesity, and smoking.
The expert witness testified that Zapata presented symptoms similar to these to Dr. Pratho when Zapata returned to the emergency room the next day.
In addition, the expert witness opined that both Dr. Cochrum and Dr. Pratho were negligent in failing to treat Zapata’s heart condition. In discussing Dr. Cochrum’s negligence, the expert witness explained the omissions made by Dr. Cochrum that formed the basis of his negligence opinion:
The presentation [of Zapata’s symptoms] required the patient being admitted into the hospital under a cardiologist’s care, and in the emergency department treating the patient by starting an IV, administering oxygen, finding out how much oxygen he had circulating in his blood through a pulse oxymeter, administering the Nitroglycerin, aspirin, a medication through the IV or by mounth to lower the blood pressure, and if the chest pain did not disappear, start intravenous Nitroglycerin. Also, blood thinners which were the standard at that time in the form of either a substance called Heparin or glomalocary (phonetic) Heparin should have been started.
The expert further testified that this negligence was a proximate cause of Zapata’s death. The expert witness did not, however, go on to state specifically that Dr. Pratho’s negligence was also a proximate cause of
Zapata’s death.
Nevertheless, we conclude that this expert testimony
provides legally sufficient evidence of a causal relationship between Dr. Pratho’s treatment and Zapata’s death because the expert witness’s testimony set forth medical principles that, under the facts of this case, applied to both Dr. Cochrum and Dr. Pratho. The expert’s testimony provided evidence that Zapata exhibited certain symptoms of unstable angina both when he was treated by Dr. Cochrum and when he was treated by Dr. Pratho and that these symptoms required actions such as admitting Mr. Zapata to the hospital and consulting a cardiologist—actions that Dr. Pratho did not take. Furthermore, the expert witness’s testimony provided evidence that the failure to take these actions caused Zapata’s death.
Even so, Dr. Pratho argues that there is no evidence of proximate cause because there was no evidence of foreseeability. Dr. Pratho argues that Mrs. Zapata proffered no evidence that he should have reasonably foreseen that his specific treatment of Zapata—sending him home with instructions to follow up with his primary care physician—would lead to Zapata’s death. Dr. Pratho argues that because Dr. Cochrum sent Zapata home only and did not additionally instruct him to see his primary care physician, Dr. Pratho’s course of treatment differed from Dr. Cochrum’s, so any causation evidence relating to Dr. Cochrum’s treatment is inapplicable to the differing treatment that Dr. Pratho provided to Zapata.
This argument fails to acknowledge, however, that Dr. Pratho’s negligence and Dr. Cochrum’s negligence were the same: they both failed to provide proper medical care for Zapata’s unstable angina. Dr. Pratho committed the same negligent omissions that Dr. Cochrum committed; they both failed to admit Zapata to the hospital under a cardiologist’s care, and they both failed to treat Zapata in the emergency room by starting an IV, administering oxygen, measuring the amount of oxygen in Zapata’s blood, and administering blood pressure-lowering medication and blood thinners. While Dr. Pratho may have instructed Zapata to follow up with his primary care provider, this instruction does not ameliorate Dr. Pratho’s omissions in the emergency room—the type of omissions that, according to the expert’s testimony, were the cause of Zapata’s death.
At trial, the court properly instructed the jury on the foreseeability element of proximate cause with respect to Dr. Pratho: “In order to be a proximate cause,
the act or omission claimed of must be such that an emergency room physician using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.”
See
Arlington Mem’l
, 991 S.W.2d at 922.
The expert witness testified at trial that Dr. Pratho, as an emergency room physician, should have had actual awareness of
the risk that if Zapata had unstable angina and were sent home without treatment, his
condition could lead to a heart attack and even death.
Despite his argument to the contrary, Dr. Pratho did send Zapata home untreated; as the expert witness explained, the proper treatment of Zapata’s condition involved hospital admission, consultation with a cardiologist, and administration of oxygen and medicines in the emergency room, but Dr. Pratho sent Zapata home without taking any of these actions. The mere fact that Dr. Pratho told Zapata to follow up with his primary care physician does not affect the awareness that sending Zapata home without treating his heart condition could lead to Zapata’s death. We conclude that this evidence satisfies the legal definition of foreseeability, as the jury was properly instructed.
See id.
Furthermore, the scientific principles established by the expert witness’s testimony allowed the jury to conclude that Dr. Pratho’s negligence proximately caused Zapata’s death because Dr. Pratho committed the same omissions that Dr. Cochrum committed—omissions that, according to the expert’s testimony, were a proximate cause of Zapata’s death. Accordingly, we overrule Dr. Pratho’s issue on appeal.
II. MRS. ZAPATA’S CROSS-APPEAL
In a cross-appeal, Mrs. Zapata challenges the trial court’s grant of Dr. Pratho’s motion for judgment notwithstanding the verdict regarding the damages awarded by the jury to Zapata’s estate, in which Dr. Pratho argued that Mrs. Zapata failed to present evidence that she had standing to bring suit on behalf of Zapata’s estate.
In her live petition at the time of trial, Mrs. Zapata pleaded that she had standing as an heir to assert claims on behalf of Zapata’s estate because no estate had been opened and no probate was necessary. After trial, however, Mrs. Zapata requested leave to file an amended petition substituting her daughter, Sabrina Zapata Nava, as the plaintiff for claims brought on behalf of Zapata’s estate. This motion for leave to file asserted that Sabrina had been appointed the administrator of Zapata’s estate and was therefore the proper plaintiff for the estate’s survival claims. The trial court judge refused Mrs. Zapata’s request for leave to amend, granted Dr. Pratho’s motion for JNOV regarding the estate’s recovery, and rendered a judgment for Mrs. Zapata that excluded the survival damages awarded by the jury to Zapata’s estate.
Texas’s survival statute provides that a cause of action for personal injuries suffered by a person who has died survives to and in favor of the heirs, legal representatives, and estate of the injured person.
Tex. Civ. Prac. & Rem. Code Ann.
§ 71.021(b) (Vernon 1997). The estate of a person with a spouse and children who dies intestate passes to the decedent’s heirs: the spouse and children.
See
Tex. Prob. Code Ann.
§§ 37, 38(b)(1) (Vernon 2003). Generally, however, only the personal representative of an estate is entitled to sue to recover estate property.
Shepherd v. Ledford
, 962 S.W.2d 28, 31-32 (Tex. 1998). This general rule has specifically been applied by the Texas Supreme Court to survival actions.
See id.
An exception to this general rule allows an heir, rather than the estate’s personal representative, to sue to recover estate property when the heir pleads and proves that there is no estate administration pending and none is necessary.
See id
. Mrs. Zapata argues that she qualified under this exception to sue as an heir on behalf of Zapata’s estate and that the trial court erred in granting Dr. Pratho’s motion for JNOV because she established standing to bring claims on behalf of Zapata’s estate by presenting evidence that no estate administration was pending and none was necessary.
A.
“Pending” estate administration
Under the general rule applied in
Shepherd v. Ledford
, if an estate is pending, an heir does not have standing to sue on behalf of the estate because the estate’s personal representative generally has the exclusive right to bring such suits.
See id.
at 31-32;
Chandler v. Welborn
, 156 Tex. 312, 294 S.W.2d 801, 806 (1956). Mrs. Zapata filed her application for letters of administration while the trial was taking place. Therefore, if an estate is “pending” at the time a request for letters of administration is filed in probate court, Mrs. Zapata could not qualify at the time of trial to sue as an heir on behalf of Zapata’s estate.
Cf. Henry v. LaGrone
, 842 S.W.2d 324, 326-27 (Tex. App.—Amarillo 1992, no writ) (holding that the estate of an incapacitated person was pending before the probate court upon the filing of a motion for appointment of a guardian).
The probate court did not issue the requested letters of administration naming Sabrina as personal representative of Zapata’s estate until September 12, 2002—two months after the jury returned its verdict. Consequently, Sabrina did not have standing at the time of trial to sue as an administrator on behalf of Zapata’s estate because the probate court had not yet appointed her administrator of the estate.
See Lorentz v. Dunn
, 112 S.W.3d 176, 179 (Tex. App.—Fort Worth 2003, pet. granted) (holding that plaintiff who was not named personal representative until twelve days after filing suit on behalf of the estate did not have standing at the time suit was filed). Therefore, if Zapata’s estate was “pending” upon the institution of proceedings in the probate court, at the time of trial there could have been no one with standing to sue on behalf of Zapata’s estate—no personal representative because none had yet been appointed, and no heir because an estate was pending in the probate court.
The Probate Code does not explicitly define the moment at which an estate is “pending,” but section 160, titled “Powers of Surviving Spouse When No Administration is Pending,” provides that a surviving spouse has certain powers over community property “[w]hen no one has qualified as executor or administrator of the estate of a deceased spouse.”
Tex. Prob. Code Ann.
§ 160(a). Under this section, then, “when no administration is pending” is “when no one has qualified as executor or administrator of the estate.” Other sections of the Probate Code that reference an estate that is “pending” contemplate that a personal representative has already been appointed.
See, e.g.
,
id.
§§ 177, 338, 460. Furthermore, the mere filing of a proceeding in the probate court does not necessarily cause an estate to be “pending.”
See
In re John G. Kenedy Mem’l Found.
, No. 13-03-696-CV, 2004 WL 1335849, at *9 (Tex. App.—Corpus Christi June 16, 2004, orig. proceeding) (holding that a bill of review filed in probate court after the estate had been closed did not render the estate “pending”). Because the probate court must determine that an administration is necessary before issuing letters of administration,
see
Tex. Prob. Code Ann.
§ 88(d), instituting proceedings in the probate court by filing an application for letters of administration does not guarantee that a personal representative will be appointed. If the court declines to appoint a personal representative, it is illogical to conclude that an estate was pending from the time of filing until the court’s refusal because this refusal indicates that no estate was necessary.
Accordingly, we determine that an estate is not “pending” for purposes of applying the exception to the survival statute unless and until a probate court appoints a personal administrator of the estate. Therefore, no estate was pending either at the time Mrs. Zapata filed the survival cause of action or at the time of trial.
B.
Necessity of estate administration
Also under the general rule applied in
Shepherd v. Ledford
, an heir does not have standing to sue on behalf of the estate if an estate administration is necessary.
See
962 S.W.2d at 31-32. The probate code specifically states that this “necessity” exists if two or more debts exist against the estate or if it is desired to have the county court partition the estate among the distributees.
See
Tex. Prob. Code Ann
. § 178(b)
.
(footnote: 3) The supreme court has held that this “necessity” does not exist when all the estate’s debts have been paid and the decedent’s family has agreed upon a manner of distributing the assets of the estate.
See Shepherd
, 962 S.W.2d at 33-34.
At trial, Zapata’s lawyer asked the trial court during its case-in-chief to “take judicial notice of the fact that there is no estate pending,” but he also informed the trial court that he had filed an application for letters of administration in the probate court that had not yet been issued. Furthermore, at the hearing on Dr. Pratho’s motion for instructed verdict held after Mrs. Zapata rested her case, Zapata’s lawyer asked the court “to take judicial notice of the contents of the filings in the Tarrant County Probate Court. We have asked that an estate be opened in the name of The Estate of Reynaldo Zapata, Deceased. . . . So that’s pending.”
The only evidence regarding the lack of the necessity of an estate administration was Sabrina’s testimony that it was her understanding that all Zapata’s heirs had signed an agreement regarding the division of his estate and that his debts had been paid. However, Mrs. Zapata’s application for grant of letters of administration averred otherwise:
A necessity exists for the administration of this estate . . . for the reason that the Applicant has pursued a survival cause of action for the Decedent’s medical costs, burial costs, and conscious pain and suffering prior to death in [this lawsuit]. That survival claim comprises funds or property due to the estate; it is necessary that the court issue letters of administration to recover those funds or property, and property [sic] distribute them to the estate.
Therefore, at the same time Mrs. Zapata was asserting in the trial court that an estate administration was
not
necessary, she was claiming in the probate court that an estate administration
was
necessary.
See
Tex. Prob. Code Ann.
§ 82(h) (providing that an application for letters of administration shall state that a necessity exists for administration of the estate);
id.
§ 178(b) (stating that a necessity for an estate exists “if or when it is desired to have the county court partition the estate among the distributees”).
Nevertheless, the evidence showed that
at the time of trial
, there was no need for an estate administration. Sabrina’s testimony, uncontroverted by Dr. Pratho, established that Zapata’s debts had been settled and his heirs had agreed to a distribution of his estate.
See Shepherd
, 962 S.W.2d at 33-34. The necessity urged in Mrs. Zapata’s application in the probate court—to obtain and distribute the recovery to Zapata’s heirs—would not arise unless and until any recovery for the survival action was actually awarded. Accordingly, we hold that at trial, Mrs. Zapata sufficiently pleaded and proved that no estate administration was pending and none was necessary.
Contrary to Dr. Pratho’s assertions, Mrs. Zapata never abandoned or changed her position on her standing as an heir at the time of trial; at the JNOV hearing, her counsel reiterated that she satisfied the
Shepherd v. Ledford
exception at the time of trial and that the trial court had jurisdiction over the survival claim.
(footnote: 4) Therefore, the JNOV was improper because
the evidence before the trial court was sufficient to establish that Mrs. Zapata had standing to sue as an heir on behalf of Zapata’s estate.
See
Fort Bend County Drainage Dist. v. Sbrusch
, 818 S.W.2d 392, 394 (Tex. 1991) (stating that a court may render a JNOV if a directed verdict would have been proper);
see also Prudential Ins. Co. v. Fin. Review Servs., Inc.
, 29 S.W.3d 74, 77 (Tex. 2000) (explaining that a directed verdict is proper only when
the evidence conclusively establishes the right of the movant to judgment or negates the right of the opponent
)
.
C.
Amended Pleading and Relation-Back Doctrine
After trial but before the trial court rendered judgment on Zapata’s claims, the probate court opened an administration of Zapata’s estate, naming Sabrina as its personal administrator.
With this estate administration pending, Sabrina then became the only party able to maintain a suit on behalf of Zapata’s estate.
See Chandler
,
294 S.W.2d at 806.
Mrs. Zapata argues that the trial court should have allowed her post-trial motion for leave to file her amended petition naming Sabrina as plaintiff for the survival claim of Zapata’s estate, even though the two-year statute of limitations had run on the survival claim, because the amended petition related back to the original petition filed within the limitations timeframe.
A trial court has no discretion to refuse a post-trial amendment of pleadings unless the opposing party presents evidence of surprise or prejudice or the amendment asserts a new cause of action or defense and the opposing party objects to the amendment.
State Bar of Tex. v. Kilpatrick
, 874 S.W.2d 656, 658 (Tex.),
cert. denied
, 512 U.S. 1236 (1994).
Dr. Pratho’s response to Mrs. Zapata’s motion for leave to file complained that Mrs. Zapata sought to plead factual allegations that were wholly opposite to the evidence presented at trial, creating “a wholly new, distinct and different proceeding with regards to the Estate of Reynaldo Zapata.”
But Dr. Pratho’s response did not include evidence that the amendment would cause surprise or prejudice his defense, and this amendment did not seek to add a new claim to the lawsuit. Therefore, the trial court had no discretion to refuse Mrs. Zapata’s request to file her amended petition.
See id.
Even though the amended petition was filed outside the statute of limitations for the estate’s survival claim, it would have related back to the earlier petition because Mrs. Zapata pleaded and proved standing as an heir at the time of trial.
See
Tex. Civ. Prac. & Rem. Code Ann.
§ 16.068 (Vernon 1997);
(footnote: 5) cf. Lovato v. Austin Nursing Ctr., Inc
., 113 S.W.3d 45, 55 (Tex. App.—Austin 2003, pet. granted) (holding that post-limitations pleading amendment naming plaintiff as estate representative related back to original pleading because plaintiff had authority to sue as an heir at the time suit was filed);
Lorentz
, 112 S.W.3d at 179 (holding that amended pleading did not relate back because plaintiff did not show that she possessed standing when she filed the original pleading).
(footnote: 6)
With the operation of the relation-back doctrine, therefore, the post-verdict petition substituting the estate’s personal representative named the proper party for Zapata’s survival action and was timely filed. Accordingly, we hold that the trial court erred in granting the JNOV and sustain
Mrs. Zapata’s issue on appeal.
Having overruled Dr. Pratho’s issue, we affirm the portion of the trial court’s judgment attributing responsibility to Dr. Pratho
for Zapata’s death. Furthermore, having sustained Mrs. Zapata’s issue, we reverse the portion of the judgment that disregarded the jury’s findings on the estate’s survival cause of action and render judgment that past damages sustained by Zapata’s estate for pain and mental anguish suffered by Reynaldo Zapata before death amount to $406,000, the amount found by the jury. We remand the cause to the trial court for computation of interest.
BOB MCCOY
JUSTICE
PANEL A: CAYCE, C.J.; WALKER and MCCOY, JJ.
WALKER, J. filed a concurring opinion.
DELIVERED
: February 3, 2005
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-051-CV
SCOTT MASON PRATHO, M.D. APPELLANT AND
APPELLEE
V.
LUPE ZAPATA, INDIVIDUALLY APPELLEE AND
AND AS NEXT FRIEND FOR SABRINA APPELLANT
ZAPATA AND GREGORY ZAPATA, AND
AS HEIR OR REPRESENTATIVE OF THE
ESTATE OF REYNALDO ZAPATA, DECEASED
------------
FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
------------
CONCURRING OPINION
------------
I. Introduction
I concur with the majority’s disposition of Mrs. Lupe Zapata’s cross-point, but I write separately because I do not agree with the majority’s reasoning that whether or not Mrs. Zapata possessed standing pivots on the definition of “pending,” that is, whether the application for administration of Mr. Zapata’s estate achieved “pending” status during the present trial.
I would hold that the antiquated requirement that heirs suing for recovery of estate property plead and prove that no administration is pending and none is necessary should not apply to a statutory survival action. I would further hold that Mrs. Zapata possessed standing to bring the survival action on behalf of Mr. Zapata’s estate when she initially filed suit under the probate code as an unqualified community survivor prosecuting a suit to recover debts due the community estate—Mr. Zapata’s medical expenses and funeral expenses—regardless of whether she pleaded or proved that no administration was pending and none was necessary. I would hold that even if the requirement that heirs suing for recovery of estate property plead and prove that no administration is pending and none is necessary applies to statutory survival actions Mrs. Zapata satisfied that requirement. And finally, I would also hold that as a matter of law the subsequent filing of an application for letters of administration more than four years after the decedent’s death solely for the purpose of recovering and distributing any funds awarded to the decedent’s estate cannot retroactively defeat an heir’s standing to bring a survival action. For these reasons, I would sustain Mrs. Zapata’s cross-point and render judgment on the jury’s verdict concerning the estate’s survival damages.
II. Relevant Factual and Procedural Background
Mr. Zapata died intestate on May 27, 1997. Mrs. Zapata filed an original petition on August 20, 1998 alleging that
Lupe Zapata brings this action in her individual capacity and on behalf of her children, Sabrina Zapata and Gregory Zapata, in their individual capacities as their Next Friend pursuant to Tex. Civ. Prac. & Rem. Code and § 71.004, and as Heir or Representative of the Estate of Reynaldo Zapata, Deceased, and on behalf of her children, Sabrina Zapata and Gregory Zapata, as heirs of the Estate of Reynaldo Zapata, Deceased, pursuant to Tex. Civ. Prac. & Rem. Code and § 72.021. No estate has been opened and no probate is necessary as the plaintiffs are the sole heirs and all family members agree upon the division of the estate. Further, all debts of the estate are provided for.
Mrs. Zapata subsequently added the allegation that Mr. Zapata had no will. Mrs. Zapata’s live pleading when the trial commenced on June 11, 2002 contained these same allegations.
During their case-in-chief, however, Mrs. Zapata offered no evidence of these pleaded facts. Consequently, Dr. Pratho moved for a directed verdict on the survival action based on lack of standing. The trial court allowed Mrs. Zapata to reopen and to put on evidence outside the presence of the jury concerning standing.
Sabrina Zapata Nava testified that, during the four years following her father’s 1997 death, her mother and her family settled any debts her father owed at the time of his death. She identified a “Family Agreement” and said that it was her understanding that she and all of the Zapata children, including adult children in Belton from her father’s first marriage, had signed the document agreeing to a division of her father’s estate. Sabrina testified that her father did not own any real estate and that the only personal property he owned was his “personal effects” and whatever money was in his bank account at his death.
At the conclusion of this testimony, Mrs. Zapata’s counsel argued that this evidence established standing. In response to questioning by the court, however, Mrs. Zapata’s counsel conceded that, “out of an abundance of caution,” he had filed an application for letters of administration before he successfully obtained the signatures of all of the family members on the family agreement. The trial court denied Dr. Pratho’s motion for a directed verdict, indicating that he would submit the estate’s damages to the jury and re-address the standing issue if necessary on motion for judgment notwithstanding the verdict.
The jury awarded $406,000 damages to the estate for pain and mental anguish suffered by Mr. Zapata before his death as a result of the occurrence in question and for funeral and burial expenses. Dr. Pratho filed a motion for judgment notwithstanding the verdict as to the estate damages. Dr. Pratho’s motion asserted three grounds for judgment notwithstanding the verdict: (1) Mrs. Zapata did not conclusively establish there were no debts owing to the estate; (2) although Sabrina Zapata testified the heirs of Reynaldo Zapata had agreed to the disposition of the estate, she also testified that she had no direct knowledge of the agreement and had not spoken with her stepbrothers or sisters; and (3) because Mrs. Zapata had, in fact, filed an application for letters of administration with the probate court, Mrs. Zapata did not have standing to bring the estate’s survival action as an heir.
Mrs. Zapata then filed a motion for leave to file their seventh amended original petition. That petition pleaded that Sabrina Zapata brought suit as the personal representative and administrator of the estate of Reynaldo Zapata. Mrs. Zapata attached a copy of the “Application to Appoint Independent Administrator and for Issuance of Letters of Administration” to her motion. The application bears a file stamp of June 26, 2002 and alleges that Mr. Zapata died intestate on May 27, 1997, owned no real property, and possessed personal property in the form of a checking account and a savings account containing a combined balance of less than $20,000 at the time of his death. The application lists the present survival action as personal property owned by Mr. Zapata and states that no other significant personal property exists. The application pleads that
a necessity exists for the administration of this estate, more than four years after death for the reason that Applicant has pursued a survival cause of action for the Decedent’s medical costs, burial costs, and conscious pain and suffering prior to death in [this lawsuit]. That survival claim comprises funds or property due to the estate; it is necessary that the court issue letters of administration to recover those funds or property, and property [sic] distribute them to the estate.
Letters of administration were issued to Sabrina Zapata Nava on September 12, 2002. The trial court denied Mrs. Zapata’s motion for leave to file her seventh amended original petition, granted Dr. Pratho’s motion for judgment notwithstanding the verdict as to the survival damages, and signed a final judgment on November 26, 2002. This appeal and cross-appeal followed.
III. Standing to Bring Statutory Survival Action
The issue of standing is a legal question that we review de novo.
City of Arlington v. Scalf
, 117 S.W.3d 345, 347 (Tex. App.—Fort Worth 2003, pet. denied) (recognizing that because standing is a component of subject-matter jurisdiction, we review a trial court's determination of standing de novo) (citing
Mayhew v. Town of Sunnyvale
, 964 S.W.2d 922, 928 (Tex. 1998),
cert. denied
, 526 U.S. 1144 (1999));
El Paso Cmty. Partners v. B&G/Sunrise Joint Venture
, 24 S.W.3d 620, 624 (Tex. App.—Austin 2000, no pet.). It is well-settled that a plaintiff must establish standing to bring a lawsuit.
See Tex. Ass’n of Bus. v. Tex. Air Control Bd.
, 852 S.W.2d 440, 443-47 (Tex. 1993). The test for standing requires that there be a real controversy between the parties that will actually be determined by the judicial declaration sought.
See Nootsie, Ltd. v. Williamson County Appraisal Dist.
, 925 S.W.2d 659, 662 (Tex. 1996).
To establish standing, one must show a justiciable interest by alleging actual or imminent threat of injury peculiar to one's circumstances and not suffered by the public generally.
See Tex. Ass’n of Bus
., 852 S.W.2d at 444;
Lorentz v. Dunn
, 112 S.W.3d 176, 178 (Tex. App.—Fort Worth 2003, pet. granted)
;
see also, e.g., Singleton v. Donalson
, 117 S.W.3d 516, 519 (Tex. App.—Beaumont 2003, pet. denied) (holding that where life tenant has unqualified power to dispose of property during his lifetime, remainder beneficiaries have no justiciable interest in any property except that which has not been disposed of at life tenant's death). A plaintiff has standing when it is personally aggrieved, regardless of whether she is acting with legal authority.
Nootsie
, 925 S.W.2d at 661;
see Pledger v. Schoellkopf
, 762 S.W.2d 145, 146 (Tex. 1988). Standing is jurisdictional and cannot be waived.
Tex. Ass'n of Bus.
, 852 S.W.2d at 445-46.
The Texas Survival Statute provides that a personal injury action survives to heirs, legal representatives, and the estate of the injured person.
See
Tex. Civ. Prac. & Rem. Code Ann.
§ 71.021(b) (Vernon 1997). Thus, the plain language of the statute appears to confer standing to assert this statutory survival cause of action—the decedent’s personal injury action—upon “heirs, legal representatives, and the estate” of the decedent.
Lorentz,
112 S.W.3d at 179 (recognizing that “This statute [the survival statute] provides a party who would not otherwise have a justiciable claim with standing to sue.”);
see also Garcia v. Caremark, Inc.
, 921 S.W.2d 417, 421 (Tex. App.—Corpus Christi 1996, no writ). Likewise, the Texas Probate Code provides that when a person dies intestate all of his estate
shall
vest immediately
in his heirs.
See
Tex. Prob. Code Ann.
§ 37 (Vernon 2003). When a person dies intestate leaving a surviving spouse, the spouse is an heir.
Id.
§ 38. Thus, again, the plain language of these statutory provisions would, upon the death of the intestate decedent, seem to immediately vest in his heirs at law, including a surviving spouse, with ownership of, and accordingly standing to assert, the deceased’s personal injury action via a survival action.
Accord
Nootsie
, 925 S.W.2d at 661 (holding that “[a] plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority”). And finally, the probate code makes a specific exception to the four-year time period for obtaining letters of administration when administration is subsequently necessary in order to receive funds owed to the estate.
Tex. Prob. Code Ann.
§
74. The probate code thus expressly recognizes that an administration may become necessary not to pay debts, but simply to receive and distribute monies owed to the estate, such as monies paid pursuant to a judgment on a jury verdict for an estate based on a survival action brought by heirs at law.
Id.
Juxtaposing general principles of standing with the statutory scheme concerning survival actions, it would appear that, to bring a statutory survival action on behalf of an estate, a person must prove only that he or she possesses some justiciable interest in the survival action, that is, that some portion of the action belongs to them via a will or by the laws of descent and distribution.
See
Tex. Civ. Prac. & Rem. Code Ann.
§ 71.021(b);
Nootsie
, 925 S.W.2d at 661;
accord
Lorentz
, 112 S.W.3d at 178-79 (holding person who was not an heir and had not been appointed personal representative of the estate when she filed survival action had no standing under statute to bring survival suit);
Ford Motor Co. v. Cammack,
999 S.W.2d 1, 4-5 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (holding that parents of adult daughter did not establish standing when they failed to prove any justiciable interest in her estate’s survival suit; they failed to prove whether she had died intestate or testate, they failed to obtain declaration of heirship from probate court, and no administration had occurred);
Pluet v. Frasier
, 355 F.3d 381, 384-86 (5th Cir. 2004) (holding mother of decedent’s alleged child did not establish standing to sue when she failed to prove any justiciable interest in estate’s survival claim; paternity tests revealed child was not decedent’s and mother did not prove she was an heir or was appointed any type of representative of estate when suit was filed). A
plaintiff lacks standing to bring a survival action if he or she fails to prove anything more than that he or she is a relative or friend of the deceased; instead, the plaintiff must prove that he or she possessed some justiciable interest in the survival action, that is, that he or she is personally aggrieved.
Cammack,
999 S.W.2d at 4-5;
Pluet
, 355 F.3d at 384-86. A random third party, who is not an heir of the deceased or the personal representative of the estate of the deceased, possesses no standing to bring a survival action on behalf of the deceased’s estate.
See
Lorentz
, 112 S.W.3d at 179;
Pluet
, 355 F.3d at 384-86.
IV. Requirement that Heirs Suing For Recovery of Estate Property
Plead and Prove that No Administration is Pending and None is Necessary
Early in Texas’s history, the rule of law was established that “the necessity for administration must be presumed in every case, unless facts be shown that make it an exception.”
Webster v. Willis
, 56 Tex. 468, 474 (1882);
see also Davis v. Cayton
, 214 S.W.2d 801, 804 (Tex. Civ. App.—Amarillo 1948, no writ). Because of this presumption, the general rule is that only an administrator or executor may sue to recover estate property or be sued on estate debts.
See, e.g.
,
Richardson v. Vaughan
, 23 S.W. 640, 640-41 (Tex. 1893) (recognizing general rule that only administrator may sue);
Lacy v. Williams
, 8 Tex. 182, 187 (1852) (same). Heirs are entitled to bring suit in their own names to recover estate property only if they defeat the presumption that a necessity exists for administration, usually by alleging and proving that no administration is pending and none is necessary.
Davis
, 214 S.W.2d at 804 (recognizing that because of presumption appellant was charged with burden of proving no necessity for administration);
see also Laas v. Seidel,
67 S.W. 1015, 1015 (Tex. 1902) (recognizing heir or legatee cannot sue in his own name to recover estate property unless he pleads and proves no administration is pending and none is necessary);
Richardson
, 23 S.W. at 640-41 (same)
;
Youngs v. Youngs
, 26 S.W.2d 191, 194 (Tex. Comm’n App. 1930, judgm’t adopted) (same)
;
accord
McCampbell v. Henderson
, 50 Tex. 601, 611 (1879) (permitting creditor’s suit directly against heirs where no administration was pending, none was necessary, and heirs were in possession of ancestor’s property).
The rationale underlying the requirement that heirs bringing suit in their own name to recover estate property allege and prove that there is no administration upon the estate and none is necessary was explained in
Giddings v. Steele
, 28 Tex. 732, 749 (1866). There, the supreme court explained that requiring the administrator to bring suit (1) prevented simultaneous suits by the heirs and the administrator both claiming the right to the same property and (2) prevented the heirs from essentially effecting a partition of the estate by recovering monies in their own name and refusing to turn them over to the administrator or to creditors for satisfaction of the debts of the estate.
Giddings,
28 Tex. at 749;
see also Lacy
, 8 Tex. at 187. Heirs could not sue in their own name in district court to recover estate property and thereby effectuate a partition of an estate because a district court errs by assuming jurisdiction to decree a partition of an estate among heirs before any necessary administration in the probate court is concluded.
See Elliott v. Elliott
, 208 S.W.2d 709, 712-13 (Tex. Civ. App.—Fort Worth 1948, writ ref’d n.r.e.).
From an early date, however, courts recognized that the surviving spouse, as an unqualified community survivor, may prosecute a suit to recover a debt due the community estate without the necessity of pleading or proving that no administration was pending and none was necessary.
See San Antonio & A. P. Ry. Co. v. Evans
, 198 S.W. 674, 675 (Tex. Civ. App.—Texarkana 1917, no writ);
Mo., K. & T. Ry. Co. of Tex. v. Groseclose
, 134 S.W. 736, 739 (Tex. Civ. App. 1911, writ ref’d);
W. Union Tel. Co. v. Kerr
, 4 Tex. Civ. App. 280, 283, 283 S.W. 564, 565 (Tex. Civ. App. 1893, no writ).
The surviving spouse, even in the absence of having qualified under the statute, is given broad powers to possess, control, and dispose of the community property in settlement of community affairs.
See
Tex. Prob. Code Ann.
§ 160(a);
S. Underwriters v. Lewis
, 150 S.W.2d 162, 167 (Tex. Civ. App.—Texarkana 1941, no writ);
see also Coleman v. Winn-Coleman
,
Inc.
, 110 S.W.3d 104, 110 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding surviving spouse has power to sue to collect claims due the community estate without qualifying as community administrator). In cases where the question of necessity for administration has been raised by a debtor being pressed for payment of a debt due the community estate, it is uniformly held that the unqualified community survivor may prosecute the suit, and in doing so that she exercises powers similar to that of a surviving partner.
S. Underwriters
, 150 S.W.2d at 167.
Other exceptions also exist to the general rule that only an administrator or executor may bring suit to recover estate property.
See Walker v. Abercrombie
, 61 Tex. 69, 71 (1884). While it is ordinarily true that the legal representative of a deceased person’s estate is the proper person to maintain a suit to recover property of or a debt due to an estate, there are well-settled exceptions to this rule even in cases where heirs or persons claiming rights derived from and through the deceased are the persons suing.
Id.
Heirs are permitted to sue in their own names to recover estate property under certain exceptions to the general rule.
Accord Shepherd v. Ledford,
962 S.W.2d 28, 31-32 (Tex. 1998) (recognizing general rule applies only when heirs bring suit within four-year period for administration);
Frazier v Wynn,
472 S.W.2d 750, 752 (Tex. 1971) (recognizing general rule applies only when heirs attempt to sue in their own name “during the four-year period allowed by law for instituting administration proceedings”);
Walker
, 61 Tex. at 73 (recognizing exception to general rule when suit was required to prevent running of limitations);
Rogers v. Kennard
, 54 Tex. 30, 37 (1880)
(recognizing exception to general rule when administrator was directly antagonistic to heir-plaintiffs so that he could not have instituted suit in their behalf);
Giddings
, 28 Tex. at 748-49 (recognizing exception to general rule when administration had been closed);
Youngs
, 26 S.W.2d at 194-95 (recognizing general rule applies only when heirs attempt to sue in their own names “within the four-year period allowed by law for an administration”);
Rackley v. May
, 478 S.W.2d 219, 225 (Tex. Civ. App.—Houston [1st Dist.] 1972, writ ref’d n.r.e.) (recognizing exception to general rule when administration period had passed);
Izard v. Townsend
, 208 S.W.2d 666, 667-68 (Tex. Civ. App.—Galveston 1948, no writ) (recognizing exception to general rule when the interest of estate required immediate action and there was no representative qualified to act);
Tunnell v. Moore
, 53 S.W.2d 324, 326 (Tex. Civ. App.—Dallas 1932),
aff’d
, 86 S.W.2d 207 (Tex. 1935) (recognizing exception to general rule when statutory time for administration had expired)
. The rule—that the legal representative of a deceased person’s estate is the proper person to maintain a suit to recover property of or a debt due to an estate—is not an unbending one and has its foundation in the necessity for giving protection to creditors of a deceased person, which in most cases makes it necessary to place the estate and its control in the hands of a legal representative, freed from interference by heirs, legatees, or devisees, while such representative is in the lawful discharge of the funds.
Walker,
61 Tex. at 71.
“This rule does not exist for the benefit of debtors to the estate who are indisposed to pay what they justly owe to any one.”
Id.
In 1893, in
Richardson v. Vaughan,
the Texas Supreme Court expressly recognized the questionable logic in the prohibition against heirs suing in their own names to recover estate assets but justified its continued application on the ground that it had been followed so long that “it is too late to depart from it.” 23 S.W. at 641.
Since our statute casts the legal title of property belonging to the estate of deceased persons directly upon the heirs . . . , we think it might properly have been held that, after the lapse of a reasonable time without administration upon the estate, they should have the right to sue for the recovery of any chose in action or other property which had descended to them. But from an early day a different doctrine has been announced in this court, and it is now too late to depart from it. As a general rule, the holding has been that the heirs cannot sue without alleging and proving that there is no administration upon the estate, and that there is no necessity for one.
Richardson
, 23 S.W. at 640-41. Despite the
Richardson
Court’s criticism in 1893, courts nonetheless continued to apply the general rule that only an administrator can sue to recover estate property and to impose the corollary requirement that an heir bringing suit in his own name to recover estate property must allege and prove that there is no administration upon the estate and that none is necessary.
See, e.g., Youngs
, 26 S.W.2d at 194-95 (decided in 1930).
In 1998 in
Shepherd v. Ledford
, the Texas Supreme Court discussed the general rule and the corollary requirement—that an heir may not bring suit in his own name to recover estate property unless he pleads and proves no administration is pending and none is necessary—in the context of an heir’s standing to bring a survival action. 962 S.W.2d at 31.
(footnote: 7) Other than
Shepherd
, the supreme court has not applied the rule that heirs cannot sue without alleging and proving that there is no administration upon the estate and that none is necessary to an heir’s standing to bring a statutory survival action. And even in
Shepherd
, the supreme court ultimately held that Mrs. Ledford possessed standing to sue on behalf of Mr. Ledford’s estate.
Id.
at 34. Thus, the supreme court has never applied the general rule to defeat an heir’s standing to bring a survival action.
Indeed, it is questionable whether the general rule that an heir may not bring suit in his own name to recover estate property without pleading and proving that no administration is pending and none is necessary is applicable to a statutory survival action.
Accord Loper v. Meshaw Lumber Co.
, 104 S.W.2d 597, 603 (Tex. Civ. App.—Eastland 1937, writ dism’d) (holding that, because heir’s suit was statutory trespass to try title suit, pleadings containing allegations in accordance with statute were sufficient and pleading that no administration was pending or necessary was not required). Additionally, the law no longer presumes the necessity for administration in every case.
See
Tex. Prob. Code Ann.
§ 178(b) (“No administration of any estate shall be granted unless there exits a necessity therefor[e].”);
Pitner v. United States
, 388 F.2d 651, 656 n.6 (5th Cir. 1967). If an administration is not necessary to satisfy the purposes of collecting the assets, paying debts and claims, and distributing the remaining property, certainly the law should not demand it merely as an empty form.
Pitner
, 388 F.2d at 656 n.6.
(quoting Basye,
Streamlining Administration Under the New Texas Probate Code
, 35
Texas L. Rev.
165-66 (1956)). The policy concerns underlying the general rule that only the administrator or executor of a decedent’s estate may bring suit to recover the decedent’s property likewise do not seem applicable to a statutory survival action.
See, e.g., Walker
, 61 Tex. at 71-72 (recognizing general rule is for benefit of creditors, not debtors).
Despite the questionable logic of applying the general rule that heirs cannot sue in their own names to recover estate property, based on the supreme court’s discussion in
Shepherd
,
Texas courts began applying the general rule that heirs must plead and prove no administration is pending and none is necessary to establish standing to bring a statutory survival suit in their own name on behalf of the estate.
See Lovato v. Austin Nursing Ctr., Inc.
, 113 S.W.3d 45, 52-55 (Tex. App.—Austin 2003, pet. granted);
Stewart v. Hardie,
978 S.W.2d 203, 207 (Tex. App.—Fort Worth 1998, pet. denied);
see also Moore v. Johnson
, 143 S.W.3d 339, 343-44 (Tex. App.—Dallas 2004, no pet.);
Stempson v. City of Houston
, No. 01-02-000280-CV, 2003 WL 139603, at *2-3 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (mem. op.). The problem with requiring an heir to prove standing by pleading when the suit is filed and
proving at the time of trial
that no administration is pending and none is necessary is that whether an administration is necessary is not a static fact that may be proved once and for all. A survival action must be brought within two years of the decedent’s death, but creditors of the decedent’s estate may initiate an administration at any time within four years of the intestate’s death—leaving a two-year gap when the administration facts pleaded by an heir instituting a survival action are subject to change.
See
Tex. Civ. Prac. & Rem. Code Ann.
§ 16.003(b) (Vernon 2002) (setting forth two-year statute of limitations);
Tex. Prob. Code Ann.
§ 74 (setting forth four-year period for creditor to initiate administration). For example, no administration is necessary if the estate has fewer than two debts. But what happens if the heirs allege standing to sue based on the estate having fewer than two debts, limitations runs on the survival action, and a creditor—whom the heirs at law do not even know exists—files an application for administration? Does this subsequent fact eliminate an heir’s initial standing to bring suit on behalf of the estate?
(footnote: 8) No administration is necessary when a family settlement agreement exists. But what happens if the heirs allege standing to sue based on a family settlement agreement, limitations runs on the survival action, and one heir subsequently decides not to accept the family settlement agreement? Does this subsequent fact, which gives rise to the necessity for administration of the estate, defeat an heir’s initial standing to bring suit on behalf of the estate? What happens if after a final judgment awarding survival damages to an estate an administration becomes necessary? Is the judgment subject to collateral attack as void because the heir who brought the suit did not have standing? Or, applying the majority’s logic, what happens if a probate court issues letters of administration during the trial of a survival action, causing an administration to become “pending”? Does the pendency of such an administration during one day of trial retroactively defeat the heir’s heretofore achieved standing?
The problems in this case developed as a result of just such evolving facts.
V. Application of Law to the Present Facts
A. Standing to Assert Survival Action
Mrs. Zapata pleaded and proved that she possessed a justiciable interest in the survival action that she brought on behalf of her husband’s estate. She pleaded that Mr. Zapata died intestate and that she was one of his heirs.
See
Tex. Prob. Code Ann.
§ 38 (surviving spouse is an heir when husband dies intestate). Mr. Zapata’s property, including this medical negligence action, vested immediately in his heirs, including Mrs. Zapata.
See id.
As an heir, Mrs. Zapata was statutorily authorized to bring suit on behalf of Mr. Zapata’s estate.
See
Tex. Civ. Prac. & Rem. Code Ann.
§ 71.021. By alleging that she was an heir in whom ownership of a portion of Mr. Zapata’s medical negligence claim had vested and asserting Mr. Zapata’s negligence claims, Mrs. Zapata alleged an actual injury peculiar to her circumstances and not suffered by the public generally.
See Tex. Ass’n of Bus
., 852 S.W.2d at 443. Mrs. Zapata had standing to file Mr. Zapata’s statutory survival action because a portion of that action passed to her as an heir and, accordingly, she was personally aggrieved, regardless of whether she was acting with legal authority.
Nootsie
, 925 S.W.2d at 659 (“A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority.”).
B. General Rule Does Not Apply to Suit to Recover
a Debt Due the Community Estate—Funeral Expenses
A surviving spouse, as an unqualified community survivor, may prosecute a suit to recover a debt due the community estate without the necessity of pleading or proving that no administration was pending and none was necessary.
Tex. Prob. Code Ann.
§ 160(a);
Coleman
, 110 S.W.3d at 110;
S. Underwriters,
150 S.W.2d at 167;
San Antonio & A. P. Ry. Co.,
198 S.W. at 675;
Mo., K. & T. Ry. Co. of Tex.,
134 S.W. at 739;
W. Union Tel. Co.,
23 S.W. at 565. Funeral expenses of a deceased spouse in a reasonable amount are chargeable to the entire community estate.
Landers v. B. F. Goodrich Co.
, 369 S.W.2d 33, 35 (Tex. 1963) (“reasonable cost of a suitable funeral constitutes a charge against the estate”);
Goggans v. Simmons
, 319 S.W.2d 442, 446 (Tex. Civ. App.—Fort Worth 1958, writ ref’d n.r.e.) (same). Nonetheless, reasonable funeral expenses are recoverable damages in a survival suit because they must be incurred as a result of the injuries.
Landers
, 369 S.W.2d at 35;
see also Russell v. Ingersoll-Rand Co.
, 841 S.W.2d 343, 345 (Tex. 1992) (same).
The Zapata’s live trial pleading sought recovery for Mr. Zapata’s physical pain and mental anguish and asserted that “[t]he estate has also incurred burial expenses and medical expenses for which the estate makes claim.” The estate’s damages were submitted in broad form, asking the jury what sum of money would fairly and reasonably compensate Mr. Zapata’s estate for (a) pain and mental anguish and (b) funeral and burial expenses. The jury answered $406,000.
The law is clear that Mrs. Zapata, as the surviving spouse and unqualified community survivor, possessed the power and authority to prosecute the survival suit to recover the funeral and burial expenses due the community estate without the necessity of pleading or proving that no administration was pending and none was necessary.
Tex. Prob. Code Ann.
§ 160(a);
Coleman
, 110 S.W.3d at 110;
S. Underwriters,
150 S.W.2d at 167;
San Antonio & A. P. Ry. Co.,
198 S.W. at 675;
Mo., K. & T. Ry. Co.,
134 S.W. at 739;
W. Union Tel. Co.,
23 S.W. at 565. Thus, at least as to the funeral and burial element of damages, she possessed standing to bring the instant survival suit.
(footnote: 9)
C. Pleading that No Administration was Necessary
As discussed above, it would appear that the requirement that an heir may not sue to recover estate property unless the heir pleads that no administration is pending and none is necessary is not applicable to a determination of whether an heir possesses standing to bring a statutory survival action.
Accord Loper
, 104 S.W.2d at 603. But, nonetheless, if this pleading requirement applies to determine standing in survival actions, the record demonstrates that Mrs. Zapata satisfied the requirement. She pleaded that she brought the suit as heir or representative of the estate of Mr. Zapata and on behalf of their children as heirs of Mr. Zapata’s estate. She pleaded that Mr. Zapata died intestate and that no administration was pending or necessary. These facts were true at the time each of her first six amended petitions were filed. Thus, even assuming the requirement that to bring suit an heir must plead that no administration was pending and none was necessary, Mrs. Zapata sufficiently
pleaded
standing to assert the survival action.
D. Proof Regarding Necessity for Administration:
Time for Administration By Creditors Had Expired;
Family Settlement Agreement
During trial, on July 3, 2002, the trial court allowed Mrs. Zapata to reopen her case in chief and to offer evidence (1) that Mr. Zapata’s heirs had entered into a family settlement agreement, (2) that during the four years after Mr. Zapata’s intestate death on May 27, 1997, any debts owed by him at the time of his death had been settled, (3) that Mr. Zapata did not own any real estate, and (4) that the only personal property Mr. Zapata owned was his “personal effects” and less than $20,000 in his bank accounts at his death.
(footnote: 10) This proof establishes that no administration was necessary.
The proof establishes that no administration was necessary because over five years had elapsed since the death of Mr. Zapata and the time within which a creditor could file an application for administration had expired.
See
Tex. Prob. Code Ann.
§ 74 (providing that all applications for letters of administration must be filed within four years after the death of the intestate). No creditor of Mr. Zapata’s had felt sufficient interest in his estate to cause an administration to be opened.
Accord Walker
, 61 Tex. at 73. The primary purpose of an administration is for the protection of creditors.
See, e.g., S. Underwriters,
150 S.W.2d at 168. Because the time for creditors to seek an administration had expired, no administration was necessary, and Mrs. Zapata was authorized to continue to prosecute the survival action.
Accord Shepherd,
962 S.W.2d at 31-32 (phrasing general rule as prohibiting heirs from suing “during the four-year period” for an administration without alleging no administration is pending and none is necessary);
Frazier,
472 S.W.2d at 752 (same);
Rackley
, 478 S.W.2d at 225 (same).
The proof also establishes that no administration was necessary because Mr. Zapata’s heirs had entered into a family settlement agreement. Proof of such an agreement establishes that no administration is necessary.
See
Tex. Prob. Code Ann.
§ 37;
Shepherd
, 962 S.W.2d at 34 (citing
In re Estate of Hodges
, 725 S.W.2d 265, 267 (Tex. App.—Amarillo 1986, writ ref’d n.r.e.)). The record reflects that Mrs. Zapata proved no administration was necessary for three alternative reasons: (1) the debts of the estate had been settled; (2) a family agreement existed; and (3) the time for administration for the benefit of creditors had expired.
E. An Administration Was Attained
On June 26, 2002, more than four years after Mr. Zapata died intestate on May 27, 1997, Mrs. Zapata filed an application for letters of administration alleging that the possibility of a recovery in the survival action necessitated an administration. On September 12, 2002, after the jury returned its verdict for Mrs. Zapata and during the trial court’s plenary power, the probate court issued letters of administration to Sabrina Zapata Nava. Mrs. Zapata filed a motion requesting leave to file a seventh amended original petition pleading that Sabrina Zapata Nava brought the survival suit as administrator of the estate of Mr. Zapata. The trial court denied Mrs. Zapata’s motion for leave. For the reasons discussed in the majority opinion, the trial court erred by denying Mrs. Zapata leave to file her seventh amended original petition.
See also
Tex. R. Civ. P.
63, 66;
Greenhalgh v. Serv. Lloyds Ins. Co.
, 787 S.W.2d 938, 939-40 (Tex. 1990) (holding trial court possesses no discretion to deny post-verdict amendment unless party opposing amendment presents evidence of surprise or prejudice or amendment asserts new cause of action or defense).
Once Sabrina obtained letters of administration, she possessed standing as administrator to pursue the survival action on behalf of her father’s estate.
See, e.g., Shepherd
, 962 S.W.2d at 31 (recognizing personal representatives of estate have standing to prosecute survival suit). As discussed in subsections A, B, C, and D above, Mrs. Zapata possessed standing to initially file the survival action and when Sabrina obtained letters of administration, she also possessed standing to step in, via an amended pleading, and conclude the survival action.
Accord
Tex. R. Civ. P.
65. Thus, the survival action was at all times asserted on behalf of Mr. Zapata’s estate by a person with standing.
F. Dr. Pratho’s Evidentiary Challenges
Dr. Pratho claims that Mrs. Zapata failed to “conclusively establish that there were no debts owing to the estate,” that is, that an administration was not necessary. Dr. Pratho points to two alleged debts—Mr. Zapata’s medical expenses and funeral expenses—which Sabrina could not conclusively testify had been paid.
(footnote: 11) The Texarkana court of appeals in
Southern Underwriters
rejected the exact claims made by Dr. Pratho here. 150 S.W.2d at 167-68.
Mr. Lewis sued Southern Underwriters and others for worker’s compensation benefits.
Id.
Mr. Lewis died before trial.
Id.
at 164. During trial the defendants moved for a directed verdict and, after trial, for judgment notwithstanding the verdict on the ground that the plaintiffs, the surviving spouse and child of Mr. Lewis, failed to show that there was no necessity for administration of Mr. Lewis’s estate.
Id.
at 167. The defendants argued that without showing such facts the plaintiffs had no right to prosecute the suit.
Id.
The testimony showed that the property owned by Mr. Lewis at the time of his death consisted of $723.69 due him by defendants on his compensation claim and a small "shack" worth approximately $5; he owed $75 borrowed money, some doctor bills, and the expenses of his last illness and burial, which were not shown to have been paid.
Id.
These facts showed necessity for administration in the sense that they would authorize the granting of letters of administration.
Id.
But nonetheless, the court held that Mrs. Lewis was not required to obtain letters of administration or to plead or prove that no administration of Mr. Lewis’s estate was pending or necessary.
S. Underwriters,
150 S.W.2d at 167.
The court of appeals recognized that when Mr. Lewis died Mrs. Lewis became entitled to one-half the community property and the minor child to the other one-half, subject to the debts against the estate.
Id.
Mrs. Lewis, having an interest in Mr. Lewis’s cause of action, was entitled to maintain the suit, and it was not necessary to allege there was no administration on the estate. The court of appeals reiterated that a primary purpose of administration is the protection of creditors of the estate.
Id.
In cases where the question of necessity for administration is raised by a debtor being pressed for payment of a debt due the community estate, it is uniformly held that the unqualified community survivor may prosecute the suit, and that in doing so she exercises powers similar to that of a surviving partner.
Id.
Here, Mr. Zapata’s funeral expenses constitute a debt of the community estate.
See
Landers
, 369 S.W.2d at 35. Likewise, Mr. Zapata’s medical expenses constitute a debt of the community estate.
See, e.g., Moreno v. Alejandro,
777 S.W.2d 735, 737 (Tex. App.—San Antonio 1989, writ denied) (
citing Graham v. Franco
, 488 S.W.2d 390, 396 (Tex. 1972) (holding “recovery for medical expenses incurred during marriage is community property”). While the possible existence of these two debts may authorize an administration, they do not compel Mrs. Zapata to obtain one before suing to recover these debts allegedly due the community estate. Mrs. Zapata, Mr. Zapata’s surviving spouse, as an unqualified community survivor, possessed authority to prosecute a suit to recover these debts due the community estate without the necessity of pleading or proving that no administration was pending and none was necessary.
Tex. Prob. Code Ann.
§ 160(a);
Coleman
, 110 S.W.3d at 110;
S. Underwriters,
150 S.W.2d at 167;
San Antonio & A. P. Ry. Co.,
198 S.W. at 675;
Mo., K. & T. Ry. Co.,
134 S.W. at 739;
W. Union Tel. Co.,
23 S.W. at 565.
Next, Dr. Pratho claims that although Sabrina Zapata Nava testified that the heirs of Reynaldo Zapata had agreed to the disposition of the estate, she also testified that she had no direct knowledge of the agreement and had not spoken with her stepbrothers or sisters.
(footnote: 12) Sabrina’s testimony reflects that her lawyers spoke with Mr. Zapata’s heirs. No evidence exists in the record that any heir did not sign the agreement or that any heir repudiated the agreement. I cannot agree that Sabrina’s testimony that she personally did not speak with her stepbrothers or sisters has any consequence to the validity of the family settlement agreement. That agreement established that no administration was necessary.
See Shepherd
, 962 S.W.2d at 33-34 (holding “because of the family agreement, no formal administration was necessary”).
Finally, Dr. Pratho claimed that Mrs. Zapata did not have standing to initially bring the estate’s survival action because Mrs. Zapata subsequently filed an application for letters of administration. I cannot agree. Mrs. Zapata pleaded standing to bring a survival suit on behalf of Mr. Zapata’s estate on the grounds that no administration was necessary. Four years passed. No administration was necessary. Nonetheless, “out of an abundance of caution,” the Zapatas instituted an administration solely for the purpose of receiving and distributing any funds recovered in this survival action. Administration for the purpose of receiving and distributing any funds awarded to Mr. Zapata’s estate in the survival action cannot defeat Mrs. Zapata’s standing to bring that same survival action. The argument is circular. Dr. Pratho argues that Mrs. Zapata lacked standing because an administration was required. Then, when Mrs. Zapata obtained letters of administration, he argues that the obtaining of letters of administration retroactively defeated Mrs. Zapata’s standing. For these reasons, I concur with the majority’s holding that Dr. Pratho was not entitled to judgment notwithstanding the jury’s verdict on the estate damages.
VI. Conclusion
The requirement that heirs must plead and prove no administration is pending and none is necessary should not be applied to statutory survival actions. Assuming the satisfaction of this requirement is necessary to attain standing to bring a statutory survival action, Mrs. Zapata pleaded and proved that no administration was pending and none was necessary. The Zapatas also proved up a family settlement agreement, further establishing that no administration was necessary. They were, in any event, excused from proving at trial that no administration was necessary because the trial occurred more than four years after Mr. Zapata’s death and the four-year time period for creditors to institute an administration had expired, bringing them within an exception to the requirement that heirs plead and prove that no administration is pending and none is necessary. And finally, Mrs. Zapata possessed standing as a surviving spouse and unqualified community administrator to bring the survival suit to recover medical and funeral expenses due the community estate. Nonetheless, out of an abundance of caution, the Zapatas also filed an application for letters of administration more than four years after Mr. Zapata’s death for the sole purpose of receiving and distributing any funds awarded to Mr. Zapata’s estate in the survival suit. The Zapatas established standing under at least five theories. No prohibition exists preventing litigants from asserting different, or even alternative, theories of standing at different points in a lawsuit so long as the suit is always prosecuted by someone with standing. For all of these reasons, not simply based on the majority’s definition of “pending,” I would sustain Mrs. Zapata’s cross-point and render judgment for Mr. Zapata’s estate on the damages awarded to the estate by the jury.
SUE WALKER
JUSTICE
DELIVERED:
February 3, 2005
FOOTNOTES
1:Zapata had two children with Lupe Zapata (Sabrina Zapata Nava and Gregory Zapata) as well as four other children from a previous marriage.
2:Zapata also sued the doctors’ professional associations, but due to a settlement and a directed verdict, these claims were not submitted to the jury.
3:These are not the only situations in which necessity for an estate administration may arise; “mention of these two instances of necessity for administration shall not prevent the court from finding other instances of necessity upon proof before it.”
Id.
4:While arguing at this hearing, Mrs. Zapata’s counsel stated that “[i]t became necessary to open an estate because we were unable to secure a binding agreement with other members of the family.” Dr. Pratho contends that this statement is evidence that the family did not agree on the distribution of Zapata’s estate. But counsel also explained near the end of trial that all family members had signed the agreement by the time Sabrina testified to the standing issue at trial. Regardless, none of these statements were made under oath, so they do not constitute evidence before the court.
See Banda v. Garcia
, 955 S.W.2d 270, 272 (Tex. 1997).
5:“If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.”
Id.
6:In
Lorentz
, we held that the plaintiff’s amended pleading did not relate back because the plaintiff, who was not named the personal representative until twelve days after filing suit on behalf of the estate, did not have standing at the time suit was filed, either as an heir or as a personal representative of the estate. Because the petition was filed by a plaintiff who lacked standing, it was a nullity; consequently, any amended petition could not relate back to it.
Id.
Here, Mrs. Zapata
did
have standing to sue on behalf of the estate as an heir at the time she filed her original petition, so the rule of
Lorentz
does not apply.
7:As authority for the proposition that heirs cannot bring a survival action on behalf of the decedent’s estate unless they allege and prove that no administration is pending and no necessity for an administration exists, the Texas Supreme Court in
Shepherd
cited only
Frazier
, 472 S.W.2d 750, 752 (Tex. 1971).
962 S.W.2d at 31.
Frazier
did not involve a statutory survival action. As authority for the proposition that heirs cannot bring a survival action on behalf of the decedent’s estate unless they allege and prove that no administration is pending and no necessity for an administration exists, the supreme court in
Frazier
cited only
Youngs v. Youngs
, 26 S.W. 191, 194 (Tex. Comm’n App. 1930, judgm’t adopted). 472 S.W.2d at 752
. Youngs
did not involve a statutory survival action. As authority for the proposition that heirs cannot bring a survival action on behalf of the decedent’s estate unless they allege and prove that no administration is pending and no necessity for an administration exists
Youngs
cited
Laas,
67 S.W. at 1015;
Richardson
, 23 S.W. at 640-41;
Giddings
, 28 Tex. at 732;
Green v. Rugely
, 23 Tex. 539, 542 (1859);
Webster
, 56 Tex. at 468; and
Rogers
, 54 Tex. at 37, none of which involved a statutory survival action.
8:At least one litigant has argued that, because a probate court cannot issue letters of administration without a specific finding that an administration is necessary, the issuance of letters of administration at any time during the pendency of the survival action retroactively collaterally estops an heir from contending that at the time she filed the survival action on behalf of the estate no necessity for administration exists.
See
Petitioner’s Brief on the Merits,
Austin Nursing Ctr., Inc. v. Lovato
, No. 03-0659, 2004 WL 554763, at *4-5 (filed with Supreme Court of Texas).
9:Pain and mental anguish damages are separate property.
See
Tex. Fam. Code Ann.
§ 3.002 (Vernon 1998).
10:Mrs. Zapata’s counsel conceded that a few weeks earlier, during the trial, he had filed an application for letters of administration in probate court because he had not at that time obtained all heirs’ signatures on the family settlement agreement.
11:Sabrina testified that the funeral expenses had been paid and that she was “pretty sure” the medical expenses had been paid because her father had insurance.
12:Specifically, Sabrina testified,
Q. Were you a part of the Zapata Family Trust, meaning, did you speak with, in this case, Jose Hernando Zapata, directly regarding this trust or agreement?
A. My lawyers did.
Q. No, ma’am. I’m asking have you.
A. Have I spoke with him? No, I have not spoke with him.
Q. Have you directly spoken with Corina Zapata Mia?
A. I haven’t spoken with any of them [her stepbrothers and sisters].
COMMENTS AND ANNOTATIONS
Comment 1:
Majority by Justice McCoy
Concurrence by Justice Walker
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY,
Plaintiff-Appellee,
No. 95-2725
v.
MASSOUD HEIDARY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-94-2944-AW)
Argued: June 5, 1996
Decided: August 20, 1996
Before WIDENER, HALL, and MURNAGHAN, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion. Judge Hall wrote a dis-
senting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Michael Joseph McAuliffe, QUINN, MCAULIFFE &
DUMAIS, Rockville, Maryland, for Appellant. Nell Berelson Stra-
chan, VENABLE, BAETJER & HOWARD, L.L.P., Baltimore, Mary-
land, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
I.
On October 25, 1994, Appellee Massachusetts Mutual Life Insur-
ance Company ("MassMutual") filed a declaratory judgment action in
the United States District Court for the District of Maryland against
Appellant Massoud Heidary. MassMutual sought a declaration that
Heidary had made material misrepresentations to the company when
he applied for disability insurance, that Heidary had released the com-
pany from all obligations under the disability policy on October 15,
1991, and that Heidary was accordingly not entitled to benefits under
the policy.
In support of its claim for declaratory relief, MassMutual made the
following allegations. Heidary applied to the company for disability
insurance on April 4, 1990. MassMutual issued a disability policy,
numbered 9-391-944, to Heidary on April 26, 1990. 1 On July 30,
1991, following an automobile accident, Heidary filed a claim for
benefits. Upon investigating the claim, MassMutual discovered that
Heidary had made material misrepresentations in his initial applica-
tion for insurance: contrary to his claim to be a company president
with managerial responsibilities, he spent at least half his time work-
ing as an electrician; contrary to his claim to have no known disorder
of the joints and bones, he had suffered since childhood from a defor-
mity caused by a broken arm; and contrary to his claim to have an
annual income of $65,000, he earned $24,000 in 1990.
MassMutual further alleged that company officials then met with
Heidary at the Dulles Airport on October 15, 1991. MassMutual
_________________________________________________________________
1 A copy of the policy filed with this court indicates that the policy
became effective on April 12, 1990.
2
stated that, at that time, Heidary accepted (and later cashed) a check
representing reimbursement for all of the premiums he had paid, plus
interest, and signed a release form discharging the company from all
liability under the disability policy. Two years later, in December
1993, Heidary contacted MassMutual seeking benefits under the dis-
ability policy. MassMutual refused to pay.
In his answer to MassMutual's complaint, and in a subsequent
attempt to prove the existence of genuine issues of material fact, Hei-
dary asserted that, in a single application, he had applied for both life
insurance and disability insurance. Heidary also stated that his native
language was Farsi, suggesting that he could not easily read the
release form. He denied making material misrepresentations in his
application and stated that he believed both that the release form he
signed in October 1991 concerned a life insurance policy, rather than
a disability policy, and that the check he received and cashed repre-
sented both a refund of life insurance premiums and the first install-
ment of benefits under the disability policy.2
On August 11, 1995, the district court granted MassMutual's
motion for summary judgment. The court observed that, under Mary-
land law, "absent fraud, duress or mutual mistake, . . . one having the
capacity to understand a written document who reads and signs it, or,
without reading it or having it read to him, signs it, is bound by his
signature." Ray v. William G. Eurice & Bros. , 93 A.2d 272, 278 (Md.
1952); accord Creamer v. Helferstay, 448 A.2d 332, 339-42 (Md.
1982) (reaffirming the rule articulated in Ray and stating that, "absent
intentional, culpable conduct, such as fraud, duress or undue influ-
ence, a unilateral mistake is ordinarily not a ground for relief from a
contract"). Finding no evidence which could lead a rational juror to
conclude that fraud, duress, or a mutual mistake had occurred, the dis-
_________________________________________________________________
2 Heidary also asserted three counterclaims against MassMutual: that
the company had breached its insurance contract by refusing to pay dis-
ability benefits, had committed constructive fraud by failing to investi-
gate his application for insurance at the time it was made, and had
negligently misrepresented that the application was acceptable. On April
5, 1995, the district court severed Heidary's counterclaims from the
declaratory judgment action. Upon granting MassMutual's motion for
summary judgment, the court found Heidary's counterclaims moot.
3
trict court ruled that Heidary was bound by the terms of the release
form he signed in October 1991.
Heidary has argued that the district court erred when it granted
MassMutual's summary judgment motion.
The district court's grant of summary judgment must be reviewed
de novo. Tuck v. Henkel Corp., 973 F.2d 371, 374 (4th Cir. 1992),
cert. denied, 507 U.S. 918 (1993). The party moving for summary
judgment has "the burden of showing the absence of a genuine issue
as to any material fact." Adickes v. S. H. Kress & Co., 398 U.S. 144,
157 (1970). The underlying facts and all inferences from those facts
"must be viewed in the light most favorable to the party opposing the
motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
"[T]here is no issue for trial unless there is sufficient evidence favor-
ing the nonmoving party for a jury to return a verdict for that party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); accord
Russell v. Microdyne Corp., 65 F.3d 1229, 1240 (4th Cir. 1995)
("Summary judgment is . . . appropriate where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving
party."). "If the evidence [presented by the nonmoving party] is
merely colorable, or is not significantly probative, summary judgment
may be granted." Id. at 249-50 (citations omitted); see also Felty v.
Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (stating
that trial judges have an "affirmative obligation" to prevent factually
unsupported claims from going to trial).
II.
Heidary bases his allegation of error upon the following factual
assertions. First, he does not read or speak English well; his native
language is Farsi. Second, using a single insurance application form,
he believed he had applied for both life insurance and disability insur-
ance. Third, Mohamed Reza Vaziri--a MassMutual agent who speaks
Farsi--was one of two MassMutual agents present at the October
1991 meeting and told Heidary, in Farsi, that (1) the check being
offered by the other MassMutual agent represented the first install-
ment of disability benefits and (2) the release form concerned only a
life insurance contract. Fourth, given the release form's use of the
phrase "on the life of Massoud Heidary" and the absence of any use
4
of the word "disability" in the release, he believed that the release was
effective with respect only to a life insurance policy.
Even though Vaziri has denied making the statements attributed to
him by Heidary, our duty to view the evidence in the light most favor-
able to Heidary compels us to proceed under the assumption that Hei-
dary's account of Vaziri's statements is accurate. We nevertheless
conclude that, on the basis of the evidence before us, no reasonable
trier of fact could return a verdict in favor of Heidary and that the dis-
trict court therefore did not err when it granted MassMutual's motion
for summary judgment. We reach that conclusion for the following
reasons.
First, no reasonable trier of fact could conclude that Heidary
applied--or reasonably believed he had applied--to MassMutual for
life insurance. Appearing at the top of the first page of the insurance
application submitted by Heidary were several boxes by which the
applicant was to indicate, with a check mark, the type of insurance he
wished to obtain or the means by which he wished to obtain it: "New
Life Insurance," "New Disability Insurance," "New Policy as
Exchange of Term Insurance," or "Conversion of Term or Disability
Insurance." On Heidary's application, only one box was checked--
the box next to the phrase "New Disability Insurance." The box next
to the phrase "New Life Insurance" was left blank. The one-and-one-
half-page section of the application titled "Life Insurance Data,"
beginning on the first page of the application, was left blank. The one-
and-one-half-page section titled "Disability Insurance Data" was fully
completed. While a number of questions appearing under the heading
"Complete for Life Application Only" were completed, those ques-
tions appeared as part of the "Agent's Statement," which was signed
only by the issuing agent.
Second, the insurance policy issued in response to Heidary's appli-
cation bears the title, on the first page of the policy, "Disability
Income Policy: Benefits Payable For Loss Of Earned Income." The
terms of the policy similarly unambiguously indicate that the policy
was a disability insurance policy, not a life insurance policy.3
_________________________________________________________________
3 Heidary has stated that he does not recall ever receiving a copy of the
policy and that he therefore had no means by which to determine the pol-
5
Third, if Heidary believed he could not read the release form he
signed in October 1991, he could have asked Vaziri or the other
MassMutual agent to read it to him. See Ray, 93 A.2d at 278 (stating
that a person with the capacity to understand a document is bound by
his signature on it even if he did not read it or"hav[e] it read to him").
Fourth, the release form Heidary signed clearly referred to the dis-
ability insurance policy by using the policy number. The form stated,
in pertinent part:
IN CONSIDERATION OF the payment of $4,185.43, repre-
senting a refund of premium plus interest under Policy No.
9 391 944 issued by Massachusetts Mutual Life Insurance
Company of Springfield, Massachusetts, on the life of Mas-
soud Heidary, the undersigned hereby delivers said policy to
said company for cancellation and hereby releases and for-
ever discharges said Company of and from all manner of
claims . . . which she/he ever had . . . by reason of the issu-
ance of said policy of insurance . . . .
It is true that the release makes reference to a policy "on the life of
Massoud Heidary." MassMutual argues that those words do not sug-
gest that a life insurance policy was being rescinded, but instead
"properly manifest a reference [to] Heidary as the life in being to
which the document applies." We find the release's language, in
solely that respect, ambiguous: a rational trier of fact could easily
conclude that a reader of only that portion of the document would
believe that it was a life insurance policy that was being cancelled. As
MassMutual points out, though, the release makes clear reference to
the number of the disability insurance policy. In light of that fact,
together with the fact that Heidary applied for and was issued only a
disability insurance policy and that the release form makes reference
to a refund of premiums plus interest--thereby disallowing the infer-
ence that the check offered to and accepted by Heidary represented
the first installment of disability benefits--we find (1) that no reason-
_________________________________________________________________
icy's nature. Even if that is true--and we must assume that it is--it is not
a factual allegation tending to show fraud, duress, or mutual mistake, and
therefore does not enable Heidary to escape from the terms of the release
form he signed in October 1991. See Ray, 93 A.2d at 278.
6
able trier of fact could conclude that the release form was fatally
ambiguous and (2) that no reasonable trier of fact could conclude that
Heidary was not bound by his signature on the form due to fraud,
duress, or mutual mistake. See Ray, 93 A.2d at 278; Creamer, 448
A.2d at 339-42.
For the foregoing reasons,4 the judgment of the district court is
AFFIRMED.
HALL, Circuit Judge, dissenting:
The release form is not clear on its face; even the majority has to
concede that the form's reference to "Policy No. 9 391 944 . . . on the
life of Massoud Heidary" could have led someone reading that por-
tion of the form to "believe that it was a life insurance policy that was
being cancelled." Ante, at 6.1 The majority's decision rests completely
_________________________________________________________________
4 Though we have not relied upon the observation in reaching our con-
clusion, it might also be noted that, during oral arguments, counsel for
MassMutual stated that, "to the penny," the amount of premiums
refunded to Heidary corresponded to the cost of obtaining disability
insurance during the period in question.
1 The other portions of the form on which the majority relies -- the
number of the disability policy and the reference to a refund of premiums
(see majority op. at 6) -- lend scant support to its decision. The inclusion
of the "Policy No." -- not, by the way,"Disability Policy No." -- is vir-
tually irrelevant; few persons have committed to memory even a snippet
of what may be numerous insurance policy numbers, (e.g., auto, home-
owner's, health and hospitalization, life, disability). When we factor in
Heidary's allegation that he never received a copy of the policy (a fact
that we assume to be true, see id. at 5-6 n.3), the relevance of the policy
number in the release form approaches zero.
Similarly, the reference to "a refund of premiums" is hardly supportive
of MassMutual's position. The refund language is consistent with Hei-
dary's claim that he was told that part of the amount was indeed a refund
of the premiums under the policy "on the life of" Heidary. That the form
said "refund," but (according to Heidary) included disability benefits as
well, is no more a basis for summary judgment for the company as the
inclusion of the words "on the life of" is a basis for summary judgment
for Heidary. See King v. Bankerd, 492 A.2d 608, 612 (Md. 1985)
(ambiguities in contract are resolved against the drafter). The release
form simply does not, by itself, mandate judgment against Heidary at this
point.
7
on its conclusion that no trier of fact could find that Heidary "reason-
ably believed he had applied" for a life insurance policy in addition
to the disability policy. Id. at 5. This conclusion is reached after an
examination of the policy application itself, without recourse to any
other evidence. My examination of the same document, together with
the other evidence (all viewed in the light most favorable to Heidary),
leads me to conclude that Heidary's belief was not so unreasonable
as to preclude a finding of fraud.
The question is not whether Heidary had an enforceable agreement
for life insurance coverage, but, rather, whether his alleged misappre-
hension of fact -- that he had such a policy -- was so unreasonable
as to bar his claim of fraud. In evaluating the reasonableness of the
belief, it must be borne in mind that he is also alleging that the agent
exploited his misapprehension by explaining that only a life insurance
policy was being affected by the form.
The application was filled out by the agent and signed by Heidary
in two places. On the seventh page is an "Agent's Statement." Under
section 4, headed in bold type "Complete for Life Application Only,"
Heidary's income is listed, and two other lines (unearned income and
spouse's income) are crossed through to indicate that they are not
applicable. Section 5, "Marital Status," has been completed, as has
section 8, which asks about other policies "on the life of the Insured."
While the form alone certainly could not establish a claim for life
insurance benefits, it also is not so clear as to preclude, as a matter
of law, Heidary's fraud claims regarding the release form. I believe
that a jury could find that Heidary's belief that he had applied for two
policies was not unreasonable.
Once this hurdle is crossed, it is a small step to conclude that a jury
could also find that Heidary reasonably thought he was rescinding the
policy "on [his] life" in return for life insurance premiums to date and
a partial payment on his disability claim.2 When all the evidence is
_________________________________________________________________
2 The majority posits two other bases for affirmance. One basis, that the
policy itself was clearly a disability policy only (ante, at 5), is irrelevant
in light of Heidary's allegation (which the majority concedes must be
believed at this point in the litigation, id. at n.3) that he never received
a copy of the policy.
8
taken into account -- a hurried meeting at the airport on the heels of
Heidary's initial claim; his reluctance to sign an ambiguous release
form until a fellow speaker of Farsi explained the necessity of his sig-
nature to get his disability benefits; his limited grasp of English, par-
ticularly written English; prompt and repeated attempts to discover
why he was not getting continued benefits3 -- I believe there remain
genuine issues of material fact that merit further consideration.
Accordingly, I would vacate the judgment and remand for further pro-
ceedings.
I respectfully dissent.
_________________________________________________________________
The other basis, that Heidary could have asked one of the agents to
read the release to him (id. at 6), ignores the essence of Heidary's fraud
claim. He asserts that he asked for an explanation of the form and that
he was told that it was merely a rescission of his life insurance policy and
a prerequisite for the initial payment of disability benefits. That he did
not have it read to him word for word is hardly a basis for summary
judgment for the insurance company.
3 When disability benefits did not follow, Heidary claims that, after
repeated telephone calls to MassMutual, he finally received a letter from
the company explaining what had happened. A friend wrote a letter for
him that began: "After some two years of telephone requests, thank you
for finally clearifying [sic] the reason that Mass Mutual cancelled my
disability policy"; the letter then recounted the same story that forms the
basis of his fraud claims.
9
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801 F.Supp.2d 465 (2011)
ACTIVEVIDEO NETWORKS, INC., Plaintiff,
v.
VERIZON COMMUNICATIONS, INC., Verizon Services Corp., Verizon Virginia Inc., and Verizon South Inc., Defendants.
Civil Action No. 2:10cv248.
United States District Court, E.D. Virginia, Norfolk Division.
April 7, 2011.
*469 Nathan Wayne McCutcheon, David Michael Morris, Morgan Lewis & Bockius LLP, Washington, DC, Stephen Edward Noona, Kaufman & Canoles, P.C., Norfolk, VA, Ahren Christian Hsu-Hoffman, Daniel Johnson, Jr., Dion Michael Bregman, Efrain Staino Flores, Jason Evan Gettleman, Lorraine Marie Casto, Michael Francis Carr, Michael John Lyons, Morgan, Lewis & Bockius LLP, Palo Alto, CA, Brett Michael Schuman, Sheila Jambekar, Morgan Lewis & Bockius LLP, San Francisco, CA, for Plaintiff.
Brent Lee VanNorman, Gregory N. Stillman, Hunton & Williams, Norfolk, VA, Brian Mark Buroker, Bradley Thomas Lennie, Hunton & Williams, John Christopher Rozendaal, Joseph Solomon Hall, Evan Todd Leo, Kenneth Matthew Fetterman, Kfir Ben-Gurion Levy, Kiran S. Raj, Mark Charles Hansen, Michael Eugene Joffre, Michael Kerry Kellogg, Rebecca Ann Beynon, W. Joss Nichols, Wan Joo Kim, Kellogg Huber Hansen Todd Evans & Figel PLLC, Justin T. Arbes, Hunton & Williams LLP, Caren K. Khoo, John P. Frantz, Leonard Charles Suchyta, Verizon Corporate Resources Group LLC, Basking Ridge, NJ, Washington, DC, Henry Braude Gutman, Lisa Heather Rubin, Noah Maxim Leibowitz, Simpson Thacher & Bartlett LLP, New York, NY, Jason Bussey, Jeffrey Eric Ostrow, Patrick Edward King, Simpson Thacher & Bartlett LLP, Palo Alto, CA, for Defendants.
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON, District Judge.
This matter stems from ActiveVideo Networks, Inc.'s ("ActiveVideo") claims against Verizon Communications Inc., Verizon Services Corp., Verizon Virginia Inc., and Verizon South Inc. (collectively, "Verizon"), alleging that Verizon has infringed five patents, in violation of 35 U.S.C. § 271(a)-(c), by making, using, providing, offering to sell, and/or selling within the United States interactive television systems, devices, and/or services, including the Verizon FiOS system and services, that are covered by one or more claims of ActiveVideo's patents; and Verizon's claims against ActiveVideo, alleging that ActiveVideo has infringed four patents, in violation of 35 U.S.C. § 271(a)-(c), by making, causing to be made, using, providing, offering to sell, and/or selling within the United States interactive television systems, devices, services, methods, and/or processes, including ActiveVideo's CloudTV system, that are covered by one or more claims of Verizon's patents.
The matter before the Court is the claim construction of several terms found in U.S. Patent Nos. 5,526,034 (the "'034 patent"), 5,550,578 (the "'578 patent"), 6,100,883 (the "'883 patent"), 6,034,678 (the "'678 patent"), and 6,205,582 (the "'582 patent"), held by ActiveVideo, and U.S. Patent Nos. 5,682,325 (the "'325 patent"), 6,169,542 (the "'542 patent"), 6,381,748 (the "'748 patent"), and 7,561,214 (the "'214 patent"), held by Verizon. The Court conducted a hearing on March 23, 2011 to construe the following terms: (1) "headend"; (2) "assignable television communication"; (3) "interactive controller"; (4) "interactive session"; (5) "node"; (6) "individually assignable processors"; (7) "common channel"; (8) "level I gateway"; (9) *470 "level 2 gateway"; (10) "video still image"; (11) "data processing network information"; (12) "interactive element"; and (13) "multiplex channel associated with the first anchor channel";[1] The Court now construes the disputed terms as a matter of law under Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995), aff'd 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996).
I. BACKGROUND AND PROCEDURAL HISTORY
This case involves cable television systems that have two-way communication capabilities with the user. Traditional cable television systems were unable to provide subscribers with interactive television services, such as video on demand, due in part to bandwidth limitations which are insufficient to provide individual subscribers with traditional television channels in addition to interactive information services that function independently from all other subscribers. Furthermore, the traditional systems, in which signals originated at the headend, would require complex switching mechanisms in order to provide separate interactive television services to thousands of subscribers simultaneously.
On July 16, 2010, ActiveVideo filed a First Amended Complaint in the United States District Court for the Eastern District of Virginia, alleging that the Verizon FiOS system, which provides interactive television services, infringes at least one claim of each of the '034, '578, '883, '678, and '582 patents, which are directed to methods and systems relating to interactive delivery of information services to subscriber televisions over a cable distribution network. On December 2, 2010, Verizon filed an Answer to ActiveVideo's First Amended Complaint and First Amended Counterclaims against ActiveVideo, seeking, inter alia, declaratory judgments of non-infringement and invalidity of the '034, '578, '883, '678, and '582 patents and alleging that ActiveVideo infringed the '325, '542, '748, and '214 patents.
The '034 patent was issued to ActiveVideo in 1996. The '034 patent describes an interactive home information system having a node in television communication and data communication with a group of home interface controllers. The '034 patent includes forty (40) claims, but ActiveVideo only asserts infringement of Claims 1, 4, 8, and 11. The Parties dispute terms in Claims 1, 4, and 8, but Claim 1, the only independent claim asserted, is representative of the other claims.
Claim 1 provides as follows:
An interactive television information system, for providing interactive cable television service over a cable television system distribution network, the interactive television system comprising:
*471 an information source means for supplying a plurality of information services;
a plurality of home interface controller means, each such home interface controller means providing an output in communication with an associated subscriber television and having (i) a cable television system distribution network signal input for television information signals and input selection means for selecting a given one of the television information signals at the signal input and (ii) a data transceiver operative through the cable television system distribution network signal input for conducting data communications over the cable television system distribution network;
node means, in television communication with the information source means and in television communication and data communication with a group of the home interface controller means over the cable television system distribution network, for selecting and providing information services obtained from the information source means to each home interface controller means in the group based on data obtained over the cable television system distribution network from each such home interface controller means;
wherein the node means includes (a) activity detection means for determining whether a given home interface controller means is to be placed in an interactive mode and (b) signal assignment means for causing, on an affirmative determination by the activity detection means, the input selection means of the given home interface controller means to select a given television information signal present at the signal input, so that signal assignment is accomplished on a demand basis for those home interface controllers determined to be placed in an interactive mode.
The '578 patent was also issued to ActiveVideo in 1996. The '578 patent describes an interactive television information system coupled to a cable television system having a headend for supplying information services and an information service distribution network for delivering information services to subscriber televisions. The '578 patent has ten (10) claims, but ActiveVideo only asserts infringement of Claims 8 and 9, and the Parties dispute terms in both claims. Claim 8, the only independent claim asserted, is representative.
Claim 8 provides as follows:
An interactive television information system coupled to a cable television system having (i) an information source means available at a headend for supplying a plurality of information services, and (ii) an information service distribution network, for delivering the information services to subscriber televisions, the system comprising;
a plurality of home interface controllers, one such home interface controller associated with each subscriber television, for providing an output in communication with the subscriber television and having (i) a signal output for television information signal and (ii) a data transceiver operative over a data communications link to the headend;
a plurality of subscriber selection devices, one device associated with each home interface controller and in communication with the data transceiver, for permitting subscriber interaction; and
a plurality of interactive controllers, disposed at the headend, each interactive controller (i) in television communication with the information source means and (ii) in assignable television communication over the *472 network with an assigned home interface controller and (iii) in assignable data communication over the data communications link with the assigned home interface controller, so that the interactive controller furnishes the information service interactively over the network to the assigned home interface controller and its associated television.
The '883 patent was issued to ActiveVideo in 2000 and is a continuation of the '578 patent. The '883 patent has fifty-five (55) claims, but ActiveVideo only asserts infringement of Claims 1, 11, 13, 15, 22, 26 (which depends on independent Claim 24 and dependent Claim 25), and 30. The Parties dispute terms in Claims 1, 13, 24 and 25. Claims 1 and 13 are the only independent claims asserted and are representative of the other claims.
Claim 1 provides as follows:
A method for providing interactive service on a cable television system that distributes television signals from a cable headend over an information service distribution network to a plurality of subscriber television sets, said method comprising:
detecting at a node on the information service distribution network a request, from a home interface controller associated with one of the subscriber television sets, for an information service in an interactive mode;
controlling at a processor in the node, in response to detection of the request, an interactive session with the requesting home interface controller;
providing an information signal capable of full motion video responsive to the interactive session through the information service distribution network to the subscriber television set associated with the requesting home interface controller for display of an image produced by the information signal; and
receiving data communications at the processor from the requesting home interface controller during the interactive session representative of commands interactive with the image on the associated subscriber television set.
Claim 13 provides as follows:
An interactive television information system for use over an information service distribution network that delivers information services from a headend to subscriber televisions, the interactive television information system comprising:
a plurality of home interface controllers, each such home interface controller being associated with a subscriber television and having a data transceiver, the plurality of home interface controllers, each operative over a data communications link;
activity detection means, at a node on the information service distribution network, for determining from communications received over the data communication link whether a given home interface controller is to be placed in an interactive mode; and a processor, responsive to said activity detection means, coupled to the data communication link and in communication with the information service distribution network for providing an information signal, the information signal being capable of full motion video in the interactive mode, for transmission on the information service distribution network and viewable reception only in the subscriber television associated with the home interface controller to be placed in interactive mode, said processor controlling an interactive session with the home *473 interface controller to be placed in interactive mode.
The '678 patent was also issued to ActiveVideo in 2000 and is a continuation of the '883 patent. The '678 patent has seven (7) claims, but ActiveVideo only asserts infringement of Claims 1 and 2. The Parties dispute terms in Claims 1, which is the only independent claim asserted.
Claim 1 provides as follows:
A method for interactive delivery of information services to subscriber televisions over a cable distribution network comprising the steps of:
receiving at a node over a data communication link a request for an interactive session from a home interface controller associated with a subscriber television;
assigning one of a plurality of television information signals carried by the cable distribution network to the requesting home interface controller to satisfy the request;
informing the requesting home interface controller of the assigned television information signal over the data communication link;
receiving at the node over the data communication link a request for an information service from the home interface controller associated with the subscriber television; and
putting the information service on the assigned television information signal.
The '582 patent was issued to ActiveVideo in 2001. The '582 patent describes an interactive cable system having a plurality of assignable interactive controllers which communicate with subscribers through an information service distribution network, a frame server is provided for interfacing with a plurality of subscribers. The '582 patent includes nine (9) claims, but ActiveVideo only asserts infringement of Claims 5, 6, 7, 8, and 9. The Parties dispute terms in claims 5, 8, and 9, but Claim 5, the only independent claim asserted, is representative of the other claims.
Claim 5 provides as follows:
An interactive cable system comprising:
(i) an information service distribution network, for delivering information services from a headend to subscriber television;
(ii) a plurality of home interface controllers, each home interface controller associated with a subscriber television and having a data transceiver operative over a data communications link to the headend;
(iii) a plurality of subscriber selection devices, each such device associated with a home interface controller and in communication with the data transceiver thereof;
(iv) a plurality of individually assignable processors, disposed at the headend, in assignable data communication with an assigned home interface controller and in television communication over the network with the subscriber television associated with the assigned home interface controller, and
(v) a frame server in communication with a plurality of home interface controllers each assigned to one of a plurality of processes running in said frame server for interactive service, said processes receiving data communications from the subscribers associated with their respective assigned home interface controllers, said frame server generating interactive pages responsive to the data communications and supplying the interactive pages to the subscriber televisions associated with the assigned home interface controllers in digitally encoded television signals over the information service distribution network.
*474 The '325 patent was issued to Verizon in 1997. The '325 patent describes routing and access control and billing functionalities in a video distribution network capable of providing subscribers with access to multiple information services providers. The '325 patent includes thirty-one (31) claims, but Verizon only asserts infringement of Claims 1 and 28. The Parties dispute terms in both claims and both claims are independent. Claim 1 provides as follows:
A communication method comprising:
receiving a request for service from a subscriber's terminal at a level 1 gateway control element of a broadband communication network;
in response to the request for service, generating menu information listing a plurality of broadband information service providers available through the broadband communication network;
transmitting said menu information from the level 1 gateway to the terminal;
visually displaying the menu to the subscriber;
receiving a selection of a service provider listed on the menu at the level 1 gateway; and
controlling the broadband communication network to establish a broadband communication though the network between a broadband server operated by the selected service provider and the subscriber's terminal and signaling communication between the subscriber's terminal and a level 2 gateway controlling operation of the server.
Claim 28 provides as follows:
In a system comprising:
communication network selectively providing broadband communications links;
a plurality of information service provider systems connected to the network, each provider system being capable of transmitting broadband digital information via a communication link through the network; and
a plurality of terminals for transmitting control signals upstream through the network in response to user inputs and for providing displays in response to information received through the network;
a gateway for:
(1) transmitting a menu of available service providers to one of the terminals for display,
(2) receiving a control signal from the one terminal representing a selection of one service provider from the menu, and
(3) controlling the network to establish a broadband communication link through the network between one of the information service provider systems associated with the selected service provider and the one terminal.
The '542 patent was issued to Verizon in 2001. The '542 patent describes a method of delivering advertising through an interactive video distribution system. The '542 patent includes twenty-six (26) claims, but Verizon only asserts infringement of Claims 1 and 6. The Parties dispute one term in independent Claim 1 only.
Claim 1 provides as follows:
A method of delivering advertising through a head end facility of an interactive video distribution system, said method comprising the steps of:
transmitting an advertisement to an interactive video subscriber unit in connection with an interactive video program;
*475 receiving, at said head end facility over a return path, a request to register said advertisement in a menu;
generating an entry for said advertisement in said menu;
communicating to said subscriber unit, said menu in a video still image;
obtaining, at said head end facility over said return path, a selection request for said entry; and
providing to said subscriber unit, in response to said selection request, supplementary advertising information associated with said advertisement.
The '748 patent was issued to Verizon in 2002. The 748 patent describes methods and an apparatus for accessing a network, such as the Internet, using a television and set top box. The '748 patent includes thirty-six (36) claims, but Verizon only asserts infringement of Claims 13 and 20. The Parties dispute terms in independent Claim 13 only.
Claim 13 provides as follows:
A method of retrieving and retransmitting data processing network information in response to a user selection request, comprising:
transmitting first selection information to be displayed on a television;
receiving a user selection request based on the transmitted first selection information;
retrieving data processing network information, in a network format, corresponding to the user selection request;
transforming the data processing network information from the network format having a first interactive element to a television format having a second interactive element, and
transmitting the data processing network information in the television format to the television.
The '214 patent was issued to Verizon in 2009. The '214 patent describes a two-dimensional channel navigation technique in which a channel up or down key is used to allow a viewer to sequence vertically through anchor channels of a number of different broadcast providers, while a channel right or left key is used to allow the viewer to sequence horizontally through one or more multiplex channels associated with a given anchor channel from a given broadcast provider. The '214 patent includes seventeen (17) claims, but Verizon only asserts infringement of Claim 9, which contains a number of disputed terms.
Claim 9 provides as follows:
A method of providing channel selection, comprising:
providing a set of channels;
displaying a first anchor channel from the set of channels when selected;
providing a first indication that the first anchor channel is an anchor channel;
superimposing the first indication over the display of the first anchor channel;
including with the first indication a second indication, wherein the second indication is included when there is at least one multiplex channel associated with the first anchor channel;
receiving a first command to select from the second indication a first multiplex channel of the at least one multiplex channel associated with the first anchor channel;
displaying the first multiplex channel;
providing for the selection of a second anchor channel from the set of channels through the use of a second command *476 of a different type than the first command; and
performing at least one of:
switching between multiplex channels associated with an anchor channel from the set of channels using commands of the same type as the first command;
switching between anchor channels from the set of channels using commands of the same type as the second command; and
switching from a multiplex channel associated with one anchor channel from the set of channels to a different anchor channel from the set of channels through a command of the same type as the second command.
II. LEGAL STANDARD
Claim construction is "a question of law, to be determined by the court." Markman v. Westview Instruments, Inc., 517 U.S. 370, 384, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). In construing claims, the Court must first look first to the intrinsic evidence in the record, i.e. the claims, the specification, and the prosecution history. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir. 1995), aff'd 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Claim construction begins with determining how a person of ordinary skill in the art understands a claim term as of the filing date of the patent application. Phillips v. AWH Corp. et al., 415 F.3d 1303, 1313 (Fed.Cir.2005), cert. denied, 546 U.S. 1170, 126 S.Ct. 1332, 164 L.Ed.2d 49 (2006). In the unlikely event that the intrinsic evidence is insufficient to determine the acquired meaning of the claim language, the court may rely on extrinsic evidence, i.e. dictionaries, treatises, publications, and expert testimony. See id.; Vitronics Corp. v. Conceptronic, 90 F.3d 1576, 1585 (Fed.Cir.1996).
A. Claim Language
The Court's claim construction analysis must begin with the words of the claim. "[T]he words of a claim `are generally given their ordinary and customary meaning' . . . the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention." Phillips, 415 F.3d at 1312-13 (quoting Vitronics, 90 F.3d at 1582). This ordinary meaning "may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words." Id. at 1313. Thus, the Court need not provide a new definition or rewrite a term when the Court finds the term's plain and ordinary meaning is sufficient. 02 Micro Int'l. Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed.Cir.2008).
If the meaning of a term is not immediately apparent, courts must look to the written description and prosecution history to provide guidance as to the meaning of the claim terms. Phillips, 415 F.3d at 1314. In analyzing the claim language, the Court must analyze the context in which the term appears and other claims of the patent to gain insight on the patentee's intention for the claim definition. "Because claim terms are normally used consistently throughout the patent, the usage of a term in one claim can often illuminate the meaning of the same term in other claims." Id.
B. Specification
The specification contains a written description of the invention, the manner and process of making and using it, and the best mode contemplated by the inventor of carrying it out. See 35 U.S.C. § 112. "It is always necessary to review the specification to determine whether the inventor has used any terms in a manner *477 inconsistent with their ordinary meaning." Vitronics, 90 F.3d at 1582; see also Phillips, 415 F.3d at 1315. However, there is a distinction between using the specification to analyze claim terms and incorporating limitations from the specification into the claim language. Phillips, 415 F.3d at 1323; see also Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 904 (Fed.Cir. 2004).
C. Prosecution History
The prosecution history contains the complete record of all proceedings before the Patent and Trademark Office ("PTO"), including any express representations made by the applicant regarding the scope of the claims. The prosecution history is useful in determining how the inventor understood the patent and invention, and may provide evidence that the inventor limited the invention during the course of prosecution, thus restricting the scope of the claim language. Phillips, 415 F.3d at 1317. However, the Court should not rely too heavily on the prosecution history because it "represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, [such that] it often lacks the clarity of the specification and thus is less useful for claim construction purposes." Id.
D. Extrinsic Evidence
A court may also consider extrinsic evidence, "which consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Phillips, 415 F.3d at 1317-19. However, extrinsic evidence should not be used "to contradict claim meaning that is unambiguous in the light of the intrinsic evidence." Id. at 1324. Judges may consult such resources to better understand the underlying technology and to aid in construing claim terms, "so long as the dictionary definition does not contradict any definition found in or ascertained by a reading of the patent documents." Id. at 1322-23. Extrinsic evidence has been found to be generally less reliable than intrinsic evidence and accordingly should be considered in light of the intrinsic evidence. If analysis of the intrinsic evidence will resolve any ambiguity, it is improper to consider extrinsic evidence in determining the meaning of the claims. Id. at 1320,
III. DISCUSSION
A. Stipulated Term Definitions
Prior to the Markman hearing, the Parties filed a Joint Pre-Hearing Markman Statement indicating that the Parties agreed to the definitions of eight (8) claim terms. Accordingly, the Court adopts the following term definitions:
1. The term "cable television system" appears in Claims 1, 4, and 8 of the '034 patent, Claim 8 of the '578 patent, and Claims 1 and 24 of the '883 patent. The parties agree that a "cable television system" is "an integrated system for delivery of any Information Service to subscribers for use in connection with their televisions, including conventional cable television systems utilizing coaxial cable for distribution primarily of broadcast and paid television programming, cable television systems using fiber optics and mixed fiber optic-coaxial cable, as well as other means for distribution of information services to subscribers."
2. The term "information service" appears in Claims 1 and 8 of the '034 patent, Claim 8 of the '578 patent, Claims 1, 13, 15, and 30 of the '883 patent, Claim 1 of the '678 patent, and Claims 5, 7, 8, and 9 of the '582 patent. The parties agree that an "information service" is "a service *478 capable of being furnished to a television viewer having an interface permitting (but not necessarily requiring) interaction with a facility of the cable provider, including but not limited to an interactive information service, video on demand, Internet access, local origination service, community event service, classified advertising services, newspapers, advertising, and televised catalogue ordering."
3. The term "network manager means" appears in Claim 8 of the '034 patent. The parties agree that the term "network manager means" is governed by 35 U.S.C. § 112, ¶ and that its function is "assigning an available one of the multimedia processing means to furnish an information service, over the cable television distribution network, to one of the home interface controller means based on data obtained from the one of the home interface controller means over the cable television system distribution network, so that assignment of multimedia processing means is accomplished on a demand basis" and the corresponding structure is net[work] manager 66a.
4. The term "television communication" appears in Claim 8 of the '578 patent. The parties agree that "television communication" means "providing an information service via a television information signal."
5. The term "information signal" appears in Claims 1, 11, 13, 22, 24, and 30 of the '883 patent. The parties agree that an "information signal" is "a signal that may be utilized by a television, directly or via a home interface controller, such as a set-top box, for video display, regardless of the form, including a standard NTSC-modulated if carrier, an MPEG-compressed digital data stream, or any other format."
6. The term "frame server" appears in Claim 5 of the '582 patent. The parties agree that the term "frame server" is fully defined by the language of the "frame server" limitation in the claim, and as such, does not require additional construction.
7. The term "interactive pages" appears in Claim 5 of the '582 patent. The parties agree that "interactive pages" are "pages that permit user interaction, including still video frame images or a multimedia short script for interpretation by a local process such as a typical page of HTML data as practiced by conventional web browsers."
8. The term "television formal" appears in Claim 13 of the 748 patent. The parties agree that a "television formal" is "format for display on a television."
B. Disputed Terms in ActiveVideo's Patents
1. "headend"
The term "headend" appears in Claim 4 of the '034 patent, Claim 8 of the '578 patent, Claims 1, 13, and 24 of the '883 patent, and Claim 5 of the '582 patent. ActiveVideo argues that a "headend" is "a facility within the television distribution network from which Television Information Services or Signals are distributed," while Verizon defines "headend" as a facility that originates and distributes broadcast television signals and potentially other signals." Joint Pre-Hr'g Markman Statement App. A, at 7. The primary distinction between the Parties' proposed constructions is whether broadcast television signals originate in the "headend."
*479 In construing this term, the Court first looks to the claim language to determine whether broadcast television signals must originate in the "headend" or whether, as ActiveVideo claims, this definition unduly limits the term. See Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1331 (Fed.Cir.2001) ("All intrinsic evidence is not equal however. First, we look to the claim language. Then we look to the rest of the intrinsic evidence, beginning with the specification and concluding with the prosecution history, if in evidence." (internal citations omitted)); Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1344 (Fed.Cir.1998) ("Even within the intrinsic evidence, however, there is a hierarchy of analytical tools. The actual words of the claim are the controlling focus."). Claim 1 of the '883 patent is illustrative of the use of the term "headend" in the other asserted claims and provides: "A method for providing interactive service on a cable television system that distributes television signals from a cable headend over an information service distribution network to a plurality of subscriber television sets . . .". Nothing within the claim language indicates that broadcast television signals must originate at the "headend;" rather the claim reveals only that television signals in general are distributed from the "headend."
Accordingly, the Court turns to the common specification to determine whether a deviation from the claim language is warranted.[2]See Interactive Gift Express, 256 F.3d at 1331. The common specification does not speak to whether broadcast television signals must originate at the "headend;" however, Verizon alleges that because Figure 7 depicts broadcast signals as originating at the "headend" the definition of "headend" must be so limited. See '034 patent fig. 7 (filed May 3, 1993). However, Verizon's proposed construction would impermissibly limit the term "headend" based on a drawn embodiment. See, e.g., Playtex Prods., Inc. v. Procter & Gamble Co., 400 F.3d 901, 907 (Fed.Cir. 2005) ("By its reliance on the figures, the district court improperly limited claim 1 to a preferred embodiment. We have consistently advised against this approach to claim construction. Claims of a patent may only be limited to a preferred embodiment by the express declaration of the patentee . . . ." (internal citations omitted)). Furthermore, Figure 1, which depicts the preferred embodiment, clearly illustrates a television information system in which network signals, or broadcast television signals, originate at the National Processing Center rather than at the "headend" '034 patent fig. 1, and a definition which would exclude the preferred embodiment is "rarely, if ever, correct and would require highly persuasive evidentiary support, which is wholly absent in this case," Vitronics, 90 F.3d at 1583.
Because intrinsic evidence clearly establishes the meaning of this disputed term, extrinsic evidence is unnecessary. Accordingly and in light of the intrinsic record, the Court finds that "headend" is defined as "a facility within the television distribution network from which television information services or signals are distributed."
2. "interactive controller"
The term "interactive controller" appears in Claim 8 of the '578 patent. ActiveVideo would define "interactive controller" to mean "equipment for providing Information Services and for communicating with a home interface controller." Verizon, on the other hand, defines "interactive controller" as "a processing *480 unit assigned on a one-to-one basis to a home interface controller for providing two-way information services." Pre-Hr'g Markman Statement App. A, at 8. The primary contention between the Parties is whether the "interactive controller" must be assigned on a "one-to-one" basis to a particular home interface controller, or whether the "interactive controller" may be assigned to multiple home interface controllers at one time.
Beginning with the patent claims, Claim 8 of the '578 patent provides; "An interactive television information system coupled to a cable television system . . ., the system comprising: . . . a plurality of interactive controllers, disposed at the headend, each interactive controller (i) in television communication with the information source means and (ii) in assignable television communication over the network with an assigned home interface controller and (iii) in assignable data communication over the data communications link with the assigned home interface controller, so that the interactive controller furnishes the information service interactively over the network to the assigned home interface controller and its associated television." Verizon argues that because the "interactive controller" is in assignable television communication with an home interface controller, and in assignable data communication with the home interface controller, the claim language indicates that each "interactive controller" is assigned to only one home interface controller. However, it is well settled in patent law that the terms "an" and "the" do not suggest singularity. See, e.g., Free Motion Fitness, Inc. v. Cybex Int'l, Inc., 423 F.3d 1343, 1350-51 (Fed.Cir.2005) ("Like the words `a' and `an,' the word `the' is afforded the same presumptive meaning of `one or more' when used with the transitional phrase `comprising.'").
Furthermore, the construction that the "interactive controller" is not limited to assignment to only one home interface controller is also supported by the doctrine of claim differentiation, as the '883 patent, which is a continuation of the '578 patent, contains a dependent claim that specifically provides for one-to-one assignment. See '883 patent claim 26 (filed Jun. 4, 1996) ("The interactive television information system according to claim 25 further comprising a network manager for assigning an available one of said processors to furnish interactive service to one of said home interface controllers in interactive mode based on data obtained from the data communication path so that assignment of processors to home interface controllers is accomplished on a demand basis." (emphasis added))[3]; see also Free Motion Fitness, 423 F.3d at 1351 ("The doctrine of claim differentiation `create[s] a presumption that each claim in a patent has a different scope.'" (quoting Comark Commc'ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed.Cir.1998))).
Verizon also urges the Court to consider the common specification which describes an embodiment where "an individual MMC is assigned on a demand basis to each requesting home interface controller."[4] '034 patent col. 7 ll. 24-28. However, the common specification also clearly describes a "party-line" embodiment in which multiple home interface controllers share the same MMC. See '034 patent col. 12 ll. 21-30 ("In the case of many types of interactive television service, the home interface controller will have exclusive use of the *481 assigned MMC, a `private line' to it over the data communications link and the interactive trunk 42b. In the case of near video on demand, however, several home interface controllers may share the same time slot on a movie, for example, and these subscribers would have a `party-line' to the MMC"). Accordingly, the Court finds that the term "interactive controllers" should be properly construed to include the described "party-line" embodiment. See, e.g., Purdue Pharma L.P. v. Boehringer Ingelheim GMBH, 237 F.3d 1359, 1364 (Fed.Cir.2001) (holding that where the patent specification contained examples of both single and multiple dose administrations, the district court's refusal to read a single dose limitation from the specification into the claims was not error).
Because the Court finds that the intrinsic evidence supports a finding that the "interactive controller" need not be assigned on a "one-to-one" basis, the Court declines to consider any further extrinsic evidence in construing this term. Thus, the Court finds that "interactive controller" means "equipment for providing information services and for communicating with a home interface controller."
3. "assignable television communication"
The term "assignable television communication" appears in Claim 8 of the '578 patent. ActiveVideo's proposed construction of "assignable television communication" is "an Information Service provided via a Television Information Signal capable of being assigned to a home interface controller, such as by addressed data packets," while Verizon's proposed construction defines the term as "communication over a television channel/frequency dedicated to the home interface controller in response to a request for service." Pre-Hr'g Markman Statement App. A, at 8. The primary dispute among the parties is whether the communication must be delivered over a channel/frequency.
Beginning with the patent claims, Claim 8 of the '578 patent provides, in relevant part: "An interactive television information system coupled to a cable television system ..., the system comprising: ... a plurality of interactive controllers, disposed at the headend, each interactive controller (i) in television communication with the information source means and (ii) in assignable television communication over the network with an assigned home interface controller ..." ActiveVideo alleges that the term "television communication" is defined within the patent to mean "providing an information service via a television information signal" and therefore, the term "assignable television communication" cannot be limited to a particular type of signal, such as frequency. Verizon, on the other hand, seeks to limit the signal assignment to a channel/frequency which would exclude assignment of other signals such as digital data streams or addressed packets.
Looking to the common specification, the term "television communication" is clearly defined to include provision of services through "television information signals." '034 patent col. 5 ll. 32-33. The term "television information signal" is also specifically defined as "any signal that may be utilized by a television for video display, regardless of the form, including a standard NTSC-modulated rf carrier, an MPEG-compressed digital data stream, or any other format." '034 patent col. 5 ll. 33-37. This express definition indicates that the assignable signals are not limited to frequencies as Verizon suggests. See Vitronics, 90 F.3d at 1582 ("Although words in a claim are generally given their ordinary and customary meaning, a patentee may choose to be his own lexicographer and use terms in a manner other than *482 their ordinary meaning, as long as the special definition of the term is clearly stated in the patent specification or file history."). Similarly, because "television information signals" are signals provided in any format, the Court sees no need to incorporate the additional modifier "such as by addressed data packets" to the definition of "assignable television communication." See Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 989 (Fed.Cir.1999) ("General descriptive terms will ordinarily be given their full meaning; modifiers will not be added to broad terms standing alone.").
Turning to the adjective "assignable," ActiveVideo argues that the Court should apply the plain and ordinary meaning of the term "assignable," which merely means "capable of being assigned," rather than the term "dedicated" as suggested by Verizon. Though the meaning of "television communication" has been clearly defined within the common specification and agreed upon by the Parties, see supra Part III.A, the Court must look to the ordinary meaning of the modifier "assignable" to determine the meaning of the entire claim term, see Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1372 (Fed.Cir.2003) ("[S]imply because a phrase as a whole lacks a common meaning does not compel a court to abandon its quest for a common meaning and disregard the established meanings of the individual words."). "Dictionary definitions provide evidence of a claim term's `ordinary meaning.'" Abbott Labs. v. Syntron Bioresearch, Inc., 334 F.3d 1343, 1350 (Fed.Cir.2003); see also Phillips, 415 F.3d at 1314 ("In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words. In such circumstances, general purpose dictionaries may be helpful." (citation omitted)).
The meaning of the word "assign" is "to set aside for a particular purpose" and the adjective prefix "-able" means "susceptible, capable, or worthy of a specified action." Webster's II New College Dictionary 67, 2 (2001). Therefore, the plain and ordinary meaning of "assignable" is "capable of being assigned" and not "dedicated" as Verizon suggests. As mentioned in supra Part III.B.2 above, nothing within the patent specification requires the television communication to be assigned on a one-to-one basis to a requesting home interface controller, an arrangement which is connoted by use of the term "dedicated." See id. at 294 (defining the word "dedicated" as "used for a single, special electronic business application"). Accordingly, based on the patent claims and the term definitions as set forth in the common specification, the Court finds that the term "assignable television communication" means "an information service provided via a television information signal capable of being assigned to a home interface controller."
4. "interactive session"
The term "interactive session" appears in Claims 1 and 13 of the '883 patent and Claim 1 of the '678 patent. ActiveVideo defines "interactive session" as a "two-way communication session between devices in a network that is established at a certain time and torn down at a later time." Verizon defines "interactive session" as "two-way communication over a channel/frequency assigned on a demand basis to an individual user." Pre-Hr'g Markman Statement App. A, at 3. As with the term "assignable television communication," the primary dispute between the parties is whether the provision of an "interactive session" must be limited to the assignment of a channel/frequency.
*483 As always, the Court begins by examining the claim language. Claim 1 of the '883 patent provides in relevant part:
A method for providing interactive service on a cable television system ..., said method comprising:
....
controlling at a processor in the node, in response to detection of the request, an interactive session with the requesting home interface controller;
providing an information signal capable of full motion video responsive to the interactive session through the information service distribution network to the subscriber television set associated with the requesting home interface controller for display of an image produced by the information signal; and
receiving data communications at the processor from the requesting home interface controller during the interactive session representative of commands interactive with the image on the associated subscriber television set.
Similarly, Claim 1 of the '678 patent provides, in relevant part: "A method for interactive delivery of information services to subscriber televisions over a cable distribution network comprising the steps of: receiving at a node over a data communication link a request for an interactive session from a home interface controller associated with a subscriber television ..." In reviewing the claims, the Court finds that the claims do not shed light on whether the "interactive session" must be limited to a channel/frequency assignment. Therefore, the Court must look to the common specification to ascertain the scope of the claim term "interactive session." See Gart v. Logitech, Inc., 254 F.3d 1334, 1341 (Fed.Cir.2001) (noting that the court should consult the specification where "the language itself lacks sufficient clarity such that there is no means by which the scope of the claim may be ascertained from the language used").
Verizon alleges that the common specification supports its definition of "interactive session" because the it describes an embodiment that resolves assignment issues caused when multiple home interface controllers request to be placed in interactive mode simultaneously by allowing the first home interface controller to keep its assigned frequency until an interactive mode is no longer necessary. See '034 patent col. 3 ll. 13-21. However, the common specification also indicates that the assignment of a frequency is merely one embodiment, and that the information services can be provided "in a wide variety of formats." '034 patent col. 9 ll. 145-65 ("FIG. 10 shows the allocation of frequency bands in the express trunks ... These frequency assignments are merely illustrative, however. Moreover, the television communications and the data communications between node and subscriber home can be achieved in a wide variety of formats.... [F]or example, the signal could be provided as a compressed digital data stream on a time-shared basis or as addressed packets."). Therefore, the Court declines to limit the claim based upon the specific embodiment described in the specification. See, e.g., Verizon Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1302-03 (Fed.Cir.2007) ("The mere fact that a specification's examples of translation may involve a change in protocol from a higher to a lower level protocol does not establish that such a limitation should be imported into the claims").
Verizon also urges the Court to consider the prosecution history in limiting an "interactive session" to assignment of a channel/frequency. Verizon argues that the applicant distinguished the Kuribayashi prior art reference during prosecution *484 of the '678 patent in order to avoid rejection of certain claims. However, upon close review of the prosecution history, the Court finds that the applicant distinguished the Kuribayashi reference on the grounds that Kuribayashi failed "to disclose requesting, establishing or engaging in an interactive session" at all, and not that the Kuribayashi reference failed to disclose an "interactive session" provided via a frequency/channel. See VanNorman Decl. Ex. 29, at AVNW00001201. Verizon also argues that the applicant distinguished the Lovett prior art reference based on the fact that Lovett fails to assign a channel for the provision of the "interactive session." However, the prosecution history reveals that the applicant distinguished Lovett not on the basis of whether or not a channel is assigned, but rather on whether the channel must be dedicated to a particular subscriber at all times, rather than being assigned on an on-demand basis. See VanNorman Decl. Ex. 30, at AVNW00001212-13. Therefore, neither the Kuribayashi nor the Lovett references cited to the patent examiner caused the applicant to disclaim an "interactive session" provided using signals other than a channel/frequency.
Though not a major dispute, the Parties also disagree on what is meant by the term "session," with ActiveVideo describing the session as being "established at a certain time and torn down at a later time," and Verizon claiming that the "session" is provided "on a demand basis." Nothing about ActiveVideo's construction connotes that the session must be initiated by the subscriber, as described in the asserted claims and the common specification. See, e.g., '883 patent col. 19 ll. 52-55 ("detecting at a node on the information service distribution network a request, from a home interface controller associated with one of the subscriber television sets, for an information service in an interactive mode"). Accordingly, the Court finds that Verizon's characterization of the "interactive session" as being provided "on a demand basis" properly conveys what is meant by "interactive session."
Having viewed all the intrinsic evidence, the Court finds that an "interactive session" need not be limited to the assignment of a channel/frequency, but rather encompasses a wide variety of signals. The Court also finds that the intrinsic record supports Verizon's claim that the "interactive session" is initiated "on a demand basis" by a requesting subscriber. Furthermore, because the meaning of "Interactive session" is clear from the intrinsic evidence, the Court declines to consider any further extrinsic evidence in construing this term. Thus, the Court finds that "interactive session" means "two-way communication session between devices in a network that is established on a demand basis."
5. "node"
The term "node" appears in Claims 1 and 13 of the '883 patent and Claim 1 of the '678 patent. ActiveVideo seeks to define "node" as "equipment in a cable distribution network that communicates with at least one home interface controller" while Verizon proposes to define "node" as "equipment that logically lies between and communicates with a cable headend and a small number of home interface controllers, that is physically connected and in close proximity to each subscriber through one or more feeders, and that contains a substantially identical copy of the data stored at a regional processing center." Pre-Hr'g Markman Statement App. A, at 7. The difference in the Parties* proposed constructions reflects four disputes based upon the location of the "node" and the proximity to subscribers, the number of home interface controllers connected to the "node," and whether the "node" is required to contain a copy of *485 data stored at the regional processing center. The Court will address each of these proposed limitations in turn.
The Court begins by examining the language of the asserted claims to determine whether any of the limitations that Verizon asserts are apparent from the claim language. The relevant portion of Claim 1 of the '883 patent provides as follows:
A method for providing interactive service on a cable television system that distributes television signals from a cable headend over an information service distribution network to a plurality of subscriber television sets, said method comprising:
detecting at a node on the information service distribution network a request, from a home interface controller associated with one of the subscriber television sets, for an information service in an interactive mode;
controlling at a processor in the node, in response to detection of the request, an interactive session with the requesting home interface controller;
Similarly, Claim 1 of the '678 patent provides, in relevant part:
A method for interactive delivery of information services to subscriber televisions over a cable distribution network comprising the steps of:
receiving at a node over a data communication link a request for an interactive session from a home interface controller associated with a subscriber television;
...
receiving at the node over the data communication link a request for an information service from the home interface controller associated with the subscriber television; ...
Verizon first argues that the "node" "logically lies between" the headend and the home interface controllers and that the "node" is "physically connected and in close proximity" to each subscriber. Claim 1 of the '883 patent clearly indicates that communication between the cable headend and the subscribers takes place through the "node" however the claim language does not indicate where the "node" must be located or how the "node" is connected to each subscriber. Accordingly, the Court looks to the common specification for guidance on the location of the "node" within the cable distribution system.
Verizon argues that Figure 1 illustrates the "node" lying in between the headend and the home interface controllers within the distribution network. See '034 patent fig. 1. Though Verizon concedes that Figure 7 depicts an embodiment where the "node" is located at the headend rather than between the headend and the home interface controllers, Verizon draws a distinction between logical location and physical location, noting that the "node" in Figure 7 is nevertheless "logically" located between the headend and the subscribers. See '034 patent fig. 7. The Court finds that Verizon's distinction between "logical" and "physical" location is only likely to confuse, rather than clarify, the term for the jury. See Sulzer Textil A.G. v. Picanol N.V., 358 F.3d 1356, 1366 (Fed.Cir.2004) ("The meaning and scope of patent claim terms, as determined by a district court's claim construction rulings, are legal issues central to most patent cases. Thus, the district court normally will need to provide the jury in a patent case with instructions adequate to ensure that the jury fully understands the court's claim construction rulings and what the patentee covered by the claims."). Accordingly, the Court finds that Verizon's proposed "logically located" construction is equally conveyed by construing the term "node" to require communication between the headend and the home interface controllers. Furthermore, given the depiction in Figure 7, which *486 places the "node" at the headend, the Court declines to construe the "node" as being in close proximity to the each subscriber.
In seeking to limit the term "node" to communicating with only a "small number" of subscribers, Verizon relies on language in the specification of U.S. Patent No. 5,220,420 (the "'420 patent"), a parent patent to the patents-in-suit, which indicates that the "node" serves a "small group of homes." See '420 patent col. 2 ll. 52-58. Though it is unclear whether the applicant of the '420 patent specifically disclaimed a "node" that is connected to more than a "small number" of subscribers,[5] the Court need not engage in that inquiry because "[t]he specification that is relevant to claim construction is the specification of the patent in which the claims reside." Young Dental Mfg. Co., Inc. v. Q3 Special Prods., Inc., 112 F.3d 1137, 1143 (Fed.Cir.1997). Looking to the common specification, the summary of the invention provides that the "node" is in communication with "a group" of home interface controllers, but fails to comment on the relative size of the group. Therefore the Court declines to limit the term "node" to communicating with only a small group of subscribers. Furthermore, the Court does not adopt ActiveVideo's proposed limitation that the "node" communicate with "at least one" subscriber, as a group connotes more than one, rather than at least one.
Finally, Verizon seeks to impose the additional limitation that the "node" store "a substantially identical copy of the data stored at a regional processing center" by relying upon statements made in the specification of and during the prosecution of several parent applications to the patents-in-suit. As previously mentioned, the most relevant specification is the one in which the disputed claim is contained. See Young Dental Mfg., 112 F.3d at 1143. Furthermore, "incorporation by reference does not convert the invention of the incorporated patent into the invention of the host patent." Modine Mfg. Co. v. U.S. Int'l Trade Comm'n, 75 F.3d 1545, 1553 (Fed.Cir.1996). The common specification makes no mention of data stored at the "node" nor is this limitation reflected in the asserted claims. Thus, the Court declines to impute this limitation from the specification of the parent application, where the storage feature was specifically claimed, to the asserted claims in this case.
Verizon also argues that the applicant distinguished at least 16 separate prior art references based upon the feature of storage at the "node" during the prosecution of U.S. Patent No. 5,093,718 (the "718 patent"), a parent application to the patents-in-suit. Although the prosecution history of a parent application may be used to disclaim the scope of a child application, disclaimer is not warranted where the claim language that was the subject of the disclaimer in the parent is not present in the child. See, e.g., Saunders Grp., Inc. v. Comfortrac, Inc., 492 F.3d 1326, 1333 (Fed.Cir.2007) ("The fact that the prosecution history relied upon was created in *487 connection with the parent application would be unimportant if the claim language at issue were present in both patent applications."). As in Saunders, the claim language in the 718 patent specifically provided for a system that contained the limitation that each "node" contain "a complete copy of said video picture information which said subscriber associated with said node can display and interact with." '718 patent claim 1. In fact, the abstract of the '718 patent specifically indicates that each "node" contains "a substantially identical copy of the interactive video picture information and related data from a regional processing center." Accordingly, "[w]hen the purported disclaimers are directed to specific claim terms that have been omitted or materially altered in subsequent applications (rather than to the invention itself), those disclaimers do not apply." Saunders Grp., 492 F.3d at 1333. In the patents-in-suit, rather than storing the data at the "node" the interactive system is achieved by using an interactive controller or processor, such as the MMC. Furthermore, limiting the "node" to storing a copy of the data would be at odds with the requirement that the "node" be in communication with the headend in delivering interactive services to the subscriber. Accordingly, the Court finds that the term "node" as used in the '883 and '678 patents need not contain a substantially identical copy of data stored at a regional processing center.
Having reviewed the intrinsic evidence, the Court finds that the meaning of "node" is clear from the intrinsic record, including the prosecution history referenced by the Parties, and the Court declines to consider any further extrinsic evidence in construing this term. Accordingly, the Court finds that "node" means "equipment in a cable distribution network that facilitates communication between the headend and a group of home interface controllers."
6. "individually assignable processors"
The term "individually assignable processors" appears in Claim 5 of the '582 patent. ActiveVideo advocates for the Court to construe the term "individually assignable processors" to mean "processors that are capable of being assigned to a home interface controller," while Verizon seeks to have the Court construe the term to mean "a processing unit assigned on a one-to-one basis to a home interface controller," Pre-Hr'g Markman Statement App. A, at 8, As with the term "interactive controller," the primary dispute among the Parties is whether "individually assignable processors" must be assigned on a "one-to-one" basis to a particular home interface controller, or whether the they can be assigned to multiple home interface controllers at once. See discussion supra Part III.B.2,
The '582 patent is unrelated to ActiveVideo's other patents-in-suit and thus, has a different specification from those patents. As always, the Court begins by analyzing the language of the asserted patent claim. Claim 5 of the '582 patent provides, in relevant part: "An interactive cable system comprising: ... a plurality of individually assignable processors, disposed at the headend, in assignable data communication with an assigned home interface controller and in television communication over the network with the subscriber television associated with the assigned home interface controller ..." As explained supra Part III.B.2 above, the claim language does not clearly indicate singular assignment. Similarly, as explained in supra Part III.B.3, the Court finds that the plain and ordinary meaning of "assignable" is "capable of being assigned." However, unlike the term "interactive controllers" claimed in the '034 family of patents, the term "individually assignable processors" *488 includes the additional modifier "individually." Verizon contends that this term means that the processors must be assigned on an individual basis to one home interface controller, while ActiveVideo argues that the term means that the plurality of "individually assignable processors" may be assigned individually to requesting home interface controllers rather than collectively. The Court must therefore look to the remainder of the intrinsic evidence for guidance.
Unlike in the common specification of the '034 family of patents, the '582 patent specification does not specifically disclose an arrangement in which "individually assignable processors" may be assigned to more then one home interface controller at once (e.g. the "party-line" embodiment). However, the fact that a particular embodiment was not disclosed does not necessarily preclude the patent claims from including that undisclosed embodiment. See SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed.Cir.1985) ("[The Law] does not require that an applicant describe in his specification every conceivable and possible future embodiment of his invention."). Therefore, Verizon argues that the applicant specifically disclaimed assignment to multiple home interface controllers when he distinguished the Blahut prior art reference during prosecution of the '582 patent. During prosecution, the applicant interchanged the term "individually assignable processors" for the term "interactive controllers" in several claims of the '582 patent. In distinguishing the function of the processors in Blahut from the claimed "individually assignable processors," the applicant stated: "The application processor [of Blahut] does not correspond to the plurality of individually assignable processors of the invention because it is not individually assignable. Rather, it appears that numerous users may be in communication with the application processor receiving interactive programming. There appears to be no suggestion of a processor that can be individually assigned to a subscriber." VanNorman Decl. Ex. 35, at AVNW00002032.
After review of the prosecution history, the Court finds that the applicant clearly disclaimed processors that were not "individually assignable," meaning that the claimed processors are capable of being assigned on a one-to-one basis to a requesting home interface controller. See Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed.Cir.2003) ("[W]here the patentee has unequivocally disavowed a certain meaning to obtain his patent, the doctrine of prosecution disclaimer attaches and narrows the ordinary meaning of the claim congruent with the scope of the surrender."). Accordingly, the Court finds that the intrinsic evidence clearly establishes the meaning of this disputed term and it is therefore unnecessary to consider extrinsic evidence. As outlined above, the Court finds that "individually assignable processors" means "processors that are capable of being assigned on a one-to-one basis to a home interface controller."
7. "common channel"
The term "common channel" appears in Claims 8 and 9 of the '582 patent. ActiveVideo contends that a "common channel" is "a single transmission path for carrying television signals," while Verizon alleges that a "common channel" is "a single digital channel dedicated for two-way communication between a frame server and subscribers." Pre-Hr'g Markman Statement App. A, at 9. The primary differences between the Parties' separate constructions is whether the "common channel" must be digital and whether it requires two-way communication.
Looking first to the claim language, Claims 8 of the '582 patent provides: "The interactive cable system of claim 7 further *489 comprising a common channel transmitted throughout said information service distribution network for carrying the digitally encoded television signals from said frame server."[6] Reading the plain language of the claims, the "common channel" appears to be a digital channel as Verizon suggests, since it carries only "digitally encoded television signals." Furthermore, in all other claims where the term "common channel" is referenced, it is also used to carry digital signals. See '582 patent claims 3, 4. Furthermore, this reading is supported by the patent specification which describes the "common channel" as a single "digital channel" used by all subscribers to connect to the frame server. See '582 patent col. 7 ll. 29-32. Therefore, the Court finds that a "common channel" as described in the '582 patent is a digital channel.
Verizon also contends that the "common channel" carries two-way communication between the frame server and subscribers. However, looking to the claim language, the "common channel" is required to only carry signals from the frame server, but the claim language does not speak to whether the "common channel" carries signals from the subscriber to the frame server. The specification further describes the "common channel" as transmitting video to the requesting subscriber, but does not indicate that the "common channel" also carries requests from the subscriber to the frame server where data is stored. See '582 patent col. 7 ll. 32-36. Accordingly, the Court finds that the "common channel" is required only to carry television signals from the frame server to subscribers and does not require two-way communication, as Verizon suggests. Furthermore, because intrinsic evidence clearly establishes the meaning of the term "common channel" extrinsic evidence is unnecessary. Thus, the Court finds that "common channel" is defined as "a single digital channel for carrying television signals from a frame server to subscribers."
C. Disputed Terms in Verizon's Patents
1. "level 1 gateway"
The term "level 1 gateway" appears in Claim 1 of the '325 patent. Verizon proposes to define "level 1 gateway" as "one or more network elements that control network connectivity functions between subscribers and broadband information service providers;" whereas ActiveVideo defines the term as "telephone company equipment for managing a video dial-tone network." Pre-Hr'g Markman Statement App. A, at 4. Verizon's primary dispute regarding ActiveVideo's definition is that the "level 1 gateway" is not limited to telephone company equipment in a video dial-tone network, but rather may be adopted to a wide variety of distribution networks.
The Court begins its analysis by examining the claim language. Claim 1 of the '325 patent provides, in relevant part:
A communication method comprising:
receiving a request for service from a subscriber's terminal at a level 1 gateway control element of a broadband communication network;
in response to the request for service, generating menu information listing a plurality of broadband information service providers available through the broadband communication network;
*490 transmitting said menu information from the level 1 gateway to the terminal;
visually displaying the menu to the subscriber;
receiving a selection of a service provider listed on the menu at the level 1 gateway; ...
The claim language indicates that a "level 1 gateway" is equipment in a "broadband communication network," but nothing in the claim language limits the term to a video dial-tone network as ActiveVideo suggests. Accordingly, the Court turns to the patent specification for guidance.
Verizon argues that ActiveVideo seeks to impermissibly limit the construction of the term "level 1 gateway" to a particular embodiment in the patent. Specifically, Verizon notes that the Video Dial Tone Network depicted in figure 1 of the '325 patent is only one network in which the "level 1 gateway" is useable. See '325 patent col. 5 ll. 32-38. ActiveVideo, however, argues that while the patent describes three different networks that incorporate the "level 1 gateway" see '325 patent col. 4 ll. 26-30, in actuality each of the different network architectures are actually merely video dial tone networks with enhanced capabilities, see '325 patent col. 17 l. 65-col. 18 1. 2. See also '325 patent cols. 18-36 (describing the fiber-to-the-curb and hybrid fiber-coax networks). Looking to the patent specification, the abstract describes the "level 1 gateway" as "an interactive device in that subscribers can input information and receive display information from the Gateway to define or modify their own video dial tone service through the network." See Tate Access Floors, Inc. v. Maxcess Techs., Inc., 222 F.3d 958, 965 n. 2 (Fed.Cir.2000) ("[I]n determining the scope of a claim, the abstract of a patent is a potentially useful source of intrinsic evidence as to the meaning of a disputed claim term."). This description indicates that the "level 1 gateway" is meant for use in a video dial tone network, rather than any video distribution network as Verizon contends.
Furthermore, the title of the '325 patent is "Level I Gateway for Video Tone Networks." See Exxon Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553, 1557 (looking to the patent title to interpret the scope of the claims). The term "video tone network" is not used elsewhere in the patent; however, the term "video dial tone network" is used throughout to patent specification to refer to the type of network in which the "level 1 gateway" is functioning. See, e.g., '325 patent col. 3 ll. 32-34 ("The present invention provides a number of the detailed network features needed to offer a truly effective video dial tone service. In particular the present invention provides a number of enhanced network functionalities through a gateway node, referred to as the `Level 1 Gateway'."), A "video dial tone network" is merely a network in which telephone companies are able to deliver video programming from external service providers to subscribers. Accordingly, the Court finds the patent title's reference to the "Level 1 Gateway for Video Tone Network" instructive in construing the term "level 1 gateway." Furthermore, the "other networks" that Verizon relies upon to support its broader reading of the term "level 1 gateway" merely differ in how the services are provided, rather than by the type of company that provides those services. Finally, the Court is persuaded by ActiveVideo's extrinsic evidence which indicates that the Federal Communications Commission ("FCC") envisioned the use of a two-level gateway system for video dial tone networks as early as 1991. See Noona Decl. Ex. 23, at 3. Accordingly, the Court determines that "level 1 gateway" means "equipment in a video dial tone network that controls network connectivity functions *491 between subscribers and broadband information service providers."
2. "level 2 gateway"
The term "level 2 gateway" appears in Claim 1 of the '325 patent. Verizon defines "level 2 gateway" as "one or more network elements, under the control of a broadband information service provider, that controls the transmission of broadband information between service provider servers and subscriber terminals;" while ActiveVideo defines the term to mean "service provider equipment for managing access to the service provider's media." Pre-Hr'g Markman Statement App. A, at 9. The Parties' separate constructions reflect two primary contentions. First, the parties dispute the function of the "level 2 gateway" as controlling the transmission of broadband information versus managing access to the service provider's media. Second, the parties dispute whether the "level 2 gateway" is owned by the service provider or merely controlled by the service provider. The Court addresses each limitation in turn.
The term "level 2 gateway" appears at the end of Claim 1 of the 325 patent cited above, which provides, "A communication method comprising: ... controlling the broadband communication network to establish a broadband communication though the network between a broadband server operated by the selected service provider and the subscriber's terminal and signaling communication between the subscriber's terminal and a level 2 gateway controlling operation of the server." The claim language indicates that the function of the "level 2 gateway" is to control the operation of the server. The specification provides more detail on the function of the "level 2 gateway" indicating that the "level 2 gateway" performs a multitude of tasks all related to facilitating transactions between a broadband information service provider and subscribers. For example, the "level 2 gateway" can download and transmit menus to subscribers, perform searches, signal the server to transmit information selected by the subscriber, and record transactions between the subscriber and the service provider. See '325 patent col. 7 ll. 38-55. Therefore, in construing the term "level 2 gateway" in light of the specification, the Court finds that the function of the "level 2 gateway" is to facilitate transactions between broadband information service providers and subscribers. This definition encompasses both "managing access to the service provider's media," and also "control[ing] the transmission of broadband information between service provider servers and subscriber terminals," as well as the multitude of other services provided by the "level 2 gateway" as outlined in the specification. See Johnson Worldwide Assocs., 175 F.3d at 991 ("Varied use of a disputed term in the written description demonstrates the breadth of the term rather than providing a limited definition.")
In determining the relationship between the "level 2 gateway" and the information service providers, ActiveVideo looks to the specification to argue that the "level 2 gateway" is provided by the information service provider, rather than merely controlled by the provider. A thorough review of the specification indicates that each service provider provides a "level 2 gateway." See, e.g., '325 patent col. 10 ll. 37-39; col. 30 ll. 27-32. Furthermore, throughout the patent specification, the service provider references the "level 2 gateway" in the possessive tense. See, e.g., '325 patent col. 7 ll. 22-27; col. 10 ll. 48-51; col. 12 ll. 37-39; col. 15 ll. 17-22; col. 24 ll. 20-22. There is no indication that the service provider controls the "level 2 gateway" in a configuration where it does not possess or operate the gateway. Therefore, the specification makes clear *492 that the "level 2 gateway" is "service provider equipment."
The Court finds that because intrinsic evidence clearly establishes the meaning of the term "level 2 gateway" it need not resort to extrinsic evidence, including the FCC documentation relied upon by ActiveVideo. Accordingly, the Court finds that a "level 2 gateway" is "service provider equipment for facilitating transactions between broadband information service providers and subscribers."
3. "video still image"
The term "video still image" appears in Claim 1 of the '542 patent. Verizon construes this term to mean "an image, at least a portion of which is not in motion." ActiveVideo, on the other hand, defines "video still image" as a "static image for display on a television that is not part of a full-motion video." Pre-Hr'g Markman Statement App. A, at 9. The primary disagreement between the Parties' proposed constructions is whether a "video still image" may include some motion.
Claim 1 of the '542 patent provides, in relevant part: "A method of delivering advertising ..., said method comprising the steps of: ... generating an entry for said advertisement in said menu; communicating to said subscriber unit, said menu in a video still image; ..." The Parties' dispute primarily surrounds the meaning of the word "still." Verizon argues that "still" means that at least a portion of the image is not in motion, while ActiveVideo contends that "still" means static. The Court begins by ascertaining the ordinary meaning of the term "still." See Laryngeal Mask Co. Ltd. v. Ambu, 618 F.3d 1367, 1370 (Fed.Cir.2010) ("The words of a claim are generally given their ordinary and customary meaning as understood by a person of ordinary skill in the art in question at the time of the invention when read in the context of the specification and prosecution history."). The plain and ordinary meaning of the term "still" is "devoid of movement." Webster's II New College Dictionary 1083. Verizon argues, that notwithstanding this ordinary meaning, the "video still image" described in the '542 patent may nevertheless contain some motion because the "video still image" is an interactive menu by which subscribers can use a pointer to select the displayed options. '542 patent col. 11 ll. 11-14.
The pointer or selection tool described in the '542 patent specification does not undermine the plain and ordinary meaning of "still." Just because a pointer or other selection tool is superimposed onto a still image, does not mean that the still background image is somehow in motion. The image itself remains stationary while the pointer or other tool is superimposed on top of and moved over the image. Thus, the intrinsic evidence in this case clearly establishes that a "video still image" does not have any portion of the image itself which is in motion. Therefore, the Court finds that the plain and ordinary meaning of "video still image" is "an image which is not in motion."
4. "data processing network information"
The term "data processing network information" appears in Claim 13 of the 748 patent. Verizon requests that the Court define "data processing network information" as "information from a network that must be transformed for display on a television," whereas ActiveVideo would define the term to mean "a page (e.g., a Web page) for display on a network computer." Pre-Hr'g Markman Statement App. A, at 3. The primary dispute is whether the "data processing network information" must be generated externally (i.e. from a network such as the Internet *493 or an Intranet) or whether it can be generated locally.[7]
The Court begins by examining the language of the claims. Claim 13 of the 748 patent provides, in relevant part:
A method of retrieving and retransmitting data processing network information in response to a user selection request, comprising:
...
retrieving data processing network information, in a network format, corresponding to the user selection request;
transforming the data processing network information from the network format having a first interactive element to a television format having a second interactive element; and
transmitting the data processing network information in the television format to the television.
The claim language clearly indicates that the "data processing network information" must be transformed from a network format to a television format. The Parties do not appear to disagree on this point, though their characterizations of what this transformation means vary.[8] Claim 13 is not, however, clear on whether the "data processing network information" must be retrieved externally, from the Internet or an Intranet, or whether it may be generated locally as Verizon suggests.
Looking to the specification, the 748 patent describes the "data processing network information" as information retrieved from the Internet; however, the specification makes clear that the invention could be equally applied to other networks such as the Intranet. See 748 patent col. 1 l. 66-col. 2 l. 3. Verizon argues that "data processing network information" also includes locally generated information such as menus and administrative information. However, upon examining the patent, although locally generated information may be selected from the menu presented to the user, this information does not constitute "data processing network information" because it is sent directly to the requesting user's television and does not require transformation from a network format to a television format. Compare '748 patent col. 5 ll. 47-56, with 748 patent col. 5 ll. 57-64. Accordingly, the Court finds that while "data processing network information" includes information retrieved from either the Internet or an Intranet, this term excludes locally generated information that does not require transformation from a network format to a television format. Accordingly, the Court finds it unnecessary to consult any extrinsic evidence and defines "data processing network information as information from the Internet or an Intranet that must be transformed from a network format to a television format."
*494 5. "interactive element"
The term "interactive element" also appears in Claim 13 of the 748 patent. Verizon defines "interactive element" as "an element for user selection." On the other hand, ActiveVideo seeks to define "interactive element" as "a user-selectable symbol or other visual indicia." Pre-Hr'g Markman Statement App. A, at 5. The parties agree that the "interactive element" is an element for user selection, but disagree over whether this element must be visual in nature.
Claim 13 of the 748 patent as quoted above, recites that data processing network information is transformed "from the network format having a first interactive element to a television format having a second interactive element." Because the claim language is unclear as to whether an "interactive element" must be visual, the Court resorts to the patent specification for clarification. The term "interactive element" is not used within the specification; however, the specification does describe the basic process by which the invention is practiced. See 748 patent col. 5 ll. 47-64. In general, the user is presented with a menu on his television screen and uses this menu to select information, such as a web page, that he wishes to have displayed. Once the selection is obtained, the selected web page is translated into an Internet (or Intranet) address and then processed to transform the web page from a network format to a television format. The processed web page is then transmitted to the television set for display for the user. Based on this description and the corresponding drawings, see 748 patent figs. 5-6, the first "interactive element" described in Claim 13 corresponds to the web page hyperlink which is translated to an Internet address, while the second "interactive element" corresponds to the selection number, letter, or symbol which corresponds to the displayed hyperlink that the user may select using his remote control or other device. See also '748 patent col. 6 ll. 55-65; col. 7 ll.15-18.
The specification clearly indicates that while, the first and second "interactive elements" need not both be symbols or other visual indicia (the first "interactive element" is a hyperlink), they must nevertheless be visual since the user must be able to see which hyperlink corresponds to the selected number, letter, or symbol in order to know what data he is selecting. Furthermore, during prosecution of the European counterpart to the '748 patent, the applicant indicated that the first "interactive element" was a hyperlink, while the second "interactive element" is a number, letter, symbol, or other selectable visual indicia. See Noona Supplemental Decl. Ex. 37, at VZ VID 040 00021649; see also Caterpillar Tractor Co. v. Berco, S.P.A., 714 F.2d 1110, 1116 (Fed.Cir.1983) ("Though no authority is cited for the proposition that instructions to foreign counsel and a representation to foreign patent offices should be considered, and the varying legal and procedural requirements for obtaining patent protection in foreign countries might render consideration of certain types of representations inappropriate, there is ample such authority in decisions of other courts and when such matters comprise relevant evidence they must be considered"). Accordingly, the Court finds that the term "interactive element" means "a visual element for user selection."
6. "multiplex channel associated with the first anchor channel"
The term "multiplex channel associated with the first anchor channel" appears in Claim 9 of the '214 patent. Verizon construes this term to mean "a channel associated with the first anchor channel," while ActiveVideo defines the *495 term as a "secondary channel of the same broadcast provider as the Anchor Channel." Pre-Hr'g Markman Statement App. A, at 5. The primary difference between the Parties* constructions concerns what it means to be "associated with," i.e. whether the phrase "associated with" means that the multiplex channel must originate from the same broadcast provider as the anchor channel.
Again, the Court begins the claims construction analysis by examining the claim language. Claim 9 of the 714 patent provides, in relevant part:
A method of providing channel selection, comprising:
providing a set of channels;
displaying a first anchor channel from the set of channels when selected;
providing a first indication that the first anchor channel is an anchor channel;
superimposing the first indication over the display of the first anchor channel; including with the first indication a second indication, wherein the second indication is included when there is at least one multiplex channel associated with the first anchor channel; receiving a first command to select from the second indication a first multiplex channel of the at least one multiplex channel associated with the first anchor channel;
displaying the first multiplex channel
...
Verizon contends that a "multiplex channel associated with the first anchor channel" is merely any channel that is associated with an anchor channel. ActiveVideo, however, argues that this definition does not clarify what it means for one channel to be "associated with" another channel. In order to expand upon this limitation, ActiveVideo urges the Court to look to the specification, which indicates that one channel is "associated with" another channel when the two channels originate from the same broadcast provider.
ActiveVideo first argues that the patentee identified the fact that the prior art channel navigation method fails to allow broadcast providers to maintain channel identity by keeping their multiplexed channels grouped together, as the primary problem addressed by the '214 patent. See '214 patent col. 1 ll. 55-59. Furthermore, ActiveVideo relies on the fact the '214 patent specification indicates that one of the objects of the invention was to "provide a channel navigation technique that preserves the existing branding investment broadcast providers have made in channel numbers, while also preserving the current user concept of channel numbers and providing efficient access to multiplexed channels originating from a common broadcast provider." '214 patent col. 2 ll. 34-40. Although, the fact that a patent specification indicates a particular object of the invention, does not necessarily mean that the invention must be limited to practice in a manner that achieves that objective, see Northrop Grumman Corp. v. Intel Corp., 325 F.3d 1346, 1355 (Fed.Cir. 2003) ("Absent a clear disclaimer of particular subject matter, the fact that the inventor may have anticipated that the invention would be used in a particular way does not mean that the scope of the patent is limited to that context."), the claims of the patent must nevertheless be read in light of the specification's "consistent emphasis on [the] fundamental feature of the invention," Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1324 (Fed.Cir.2008).
In this case, the "Background of the Invention" section of the patent describes the problems with the prior art as two-fold. First, in the linear channel navigation system, broadcast providers were unable to maintain channel identity because channels which originated from the same *496 broadcast provider would not be grouped together due to frequency limitations. Second, the linear channel navigation system did not permit users to access the multiplex channels in a straightforward manner. Both of these disadvantages are associated with the fact that channels from the same broadcast provider are not grouped together when a user navigates through the available channels. Therefore, the only object of the invention identified in the patent specification is to "provide a channel navigation technique, that preserves the existing branding investment broadcast providers have made in channel numbers, while also preserving the current user concept of channel numbers and providing efficient access to multiplexed channels originating from a common broadcast provider." '214 patent col. 2 ll. 34-40. Furthermore, throughout the specification, the patentee emphasized the feature of providing multiplex channels together with the anchor channel of the common broadcast provider. See, e.g., '214 patent col. 2 ll. 44-51; col. 2 ll. 61-64 ("The on-screen display includes an anchor channel identifier which identifies the broadcast provider supplying the currently-selected anchor channel and any corresponding multiplex channels."); col. 3 ll. 37-42 ("The invention provides a two-dimensional channel selection technique which, through the use of both horizontal and vertical navigation, preserves broadcast provider investment in branding of channel numbers, while at the same time preventing the viewer confusion associated with the above-described one-dimensional linear mapping approach."); see also Verizon Servs. Corp., 503 F.3d at 1308 ("When a patent thus describes the features of the `present invention' as a whole, this description limits the scope of the invention."). Accordingly, the Court finds it appropriate to limit "multiplex channel associated with the first anchor channel" as originating from a common broadcast provider as the anchor channel.
Having reviewed the intrinsic evidence and the pleadings of the Parties, the Court finds it unnecessary to resort to extrinsic evidence. Accordingly, the term "multiplex channel associated with the first anchor channel" means "a channel originating from a common broadcast provider as the first anchor channel."
IV. CONCLUSION
For the foregoing reasons, the Court FINDS that the disputed terms in ActiveVideo's asserted patents are defined as follows: "headend" means "a facility within the television distribution network from which television information services or signals are distributed;" "interactive controller" means "equipment for providing information services and for communicating with a home interface controller;" "assignable television communication" means "an information service provided via a television information signal capable of being assigned to a home interface controller;" "interactive session" means "two-way communication session between devices in a network that is established on a demand basis;" "node" means "equipment in a cable distribution network that facilitates communication between the headend and a group of home interface controllers;" "individually assignable processors" means "processors that are capable of being assigned on a one-to-one basis to a home interface controller;" and "common channel" means "a single digital channel for carrying television signals from a frame server to subscribers."
The Court FINDS that the disputed terms in Verizon's asserted patents are defined as follows: "level 1 gateway" means "equipment in a video dial tone network that controls network connectivity functions between subscribers and *497 broadband information service providers;" "level 2 gateway" means "service provider equipment for facilitating transactions between broadband information service providers and subscribers;" "video still image" means "an image which is not in motion;" "data processing network information" as "information from the Internet or an Intranet that must be transformed from a network format to a television format;" "interactive element" means "a visual element for user selection;" and "multiplex channel associated with the first anchor channel" means "a channel originating from a common broadcast provider as the first anchor channel."
The Clerk is DIRECTED to mail a copy of this Memorandum Opinion and Order to counsel for the parties.
IT IS SO ORDERED.
NOTES
[1] Prior to the hearing, the Court entered an order declining to construe the following nine terms as either being defined within the patent specification or as clear based upon the plain and ordinary meaning of the term: (1) "television information signal"; (2) "interactive mode"; (3) "assignable module"; (4) "data communication(s) link"; (5) "assigning one of a plurality of television information signals carried by the cable distribution network to the requesting home interface controller to satisfy the request"; (6) "broadband communication though [sic] the network between a broadband server operated by the selected service provider and the subscriber's terminal"; (7) "broadband communication link through the network between one of the information service provider systems associated with the selected service provider and the one terminal"; (8) "anchor channel"; and (9) "superimposing the first indication over the display of the first anchor channel; including with the first indication a second indication". The Court hereby incorporates the Order of March 23, 2011 into this Opinion by reference.
[2] The '034, '578, '883, and '678 patents all share a common specification. The Court will thus refer to the specification of the '034 patent when construing the terms of these patents.
[3] The Parties agree that the assignable processors provided in ActiveVideo's other patents-in-suit are equivalent to the "interactive controller" in the '578 patent.
[4] An "MMC" is a multimedia controller. See '034 patent col. 41.20. The Parties agree that an MMC as described in the common specification is an "interactive controller."
[5] In order for statements in a patent's specification to disclaim the scope of the claims, the disclaimer must be clear and apparent. See SciMed Life Sys. Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1341 (Fed.Cir. 2001) ("Where the specification makes clear that the invention does not include a particular feature, that feature is deemed to be outside the reach of the claims of the patent, even though the language of the claims, read without reference to the specification, might be considered broad enough to encompass the feature in question."). The language that Verizon relies upon to limit the term "node" to communicating with a small number of subscribers arguably falls below this standard.
[6] Claim 9 of the '582 patent is identical to Claim 8, except that the independent claim referenced is Claim 5 rather than Claim 7.
[7] Originally, Verizon interpreted ActiveVideo's proposed construction to limit the "data processing network information" to web pages from the Internet only, while excluding information retrieved from a private network, such as the Intranet. During the hearing, both Parties agreed that the "data processing network information" could come from the Internet or an Intranet. During the hearing, the Parties also agreed that "data processing network information" must be transformed from a network format to a television format, meaning that it could not automatically be displayed on a television. The Court will therefore incorporate these concessions into the definition of "data processing network information."
[8] When "data processing network information" is in "network format" it is suitable for display on a network computer. Likewise, once the "data processing network information" is transformed to "television format" it has been transformed into a format for display on a television.
| {
"pile_set_name": "FreeLaw"
} |
IN THE MATTER OF: JERRY L. ALSTON, Respondent.
No. 717, 2009, UPL No. 2008-0664-U.
Supreme Court of Delaware.
Submitted: January 6, 2010.
Decided: March 1, 2010.
Before STEELE, Chief Justice, HOLLAND and RIDGELY, Justices.
ORDER
STEELE, Chief Justice.
This 1st day of March 2010, it appears to the Court that the Board on the Unauthorized Practice of Law has filed its Report and Recommendation in this matter pursuant to Rule 9(d) of the Rules of the Board on the Unauthorized Practice of Law. Neither the Respondent nor the Office of Disciplinary Counsel has filed objections to the Board's Report. The Court has reviewed the matter pursuant to Rule 9(e) and concludes that the Board's Report should be approved.
NOW, THEREFORE, IT IS HEREBY ORDERED that:
(1) The Report of the Board on the Unauthorized Practice of Law filed on December 14, 2009 (copy attached) is APPROVED.
(2) The Respondent shall CEASE and DESIST the unauthorized practice of law immediately. The Office of Disciplinary Counsel is directed to take any action that is necessary to enforce this Order on an expedited basis.
(3) This Order shall be disseminated electronically by the Office of Disciplinary Counsel to all members of the Delaware Judiciary.
(4) This Order terminates the proceedings related to the matters that gave rise to the petition in this case.
BOARD ON THE UNAUTHORIZED PRACTICE OF THE LAW OF THE SUPREME COURT OF THE STATE OF DELAWARE
IN RE: UPL No. 2008-0664-U
JERRY L. ALSTON,
Respondent
This is a factual finding and recommendation from the Board on the Unauthorized Practice of the Law of the Supreme Court of the State of Delaware "Board" on an Amended Petition "Petition" filed by the Office of Disciplinary Counsel "ODC". The Petition was signed January 13, 2009 with a Certificate of Service date of June 4. 2009; the Petition was also filed with the Board on June 4. 2009,
Jerry L. Alston "Alston" or "Respondent" is the subject matter of the Petition.
The Board held a Hearing on July 15, 2009. Reference to Exhibits at the Hearing will be as "Ex. _____" and to the Transcript of the Hearing as "Tr. ____".
In the Petition it is alleged:
1. Alston is not licensed to practice law in Delaware.
2. Alston is the owner of 777 Para-Legal Services[1] "777".
3. Alston and 777, in a "Written Notice of Appearance" dated February 19, 2008, addressed to Delaware Sale University, Dover. Delaware "DSU" claimed to represent the interest of an individual, Micah L. Parker, in a dispute concerning DSU. The document further demanded DSU produce certain documents. [Ex. I]
The stated purpose of the document was:
"Be advised the investigations scope and purpose is sufficient to establish whether or not there is the legal basis for filing of a civil law suit against you."
4. Alston represented a thud party, 777, in a legal action. This occurred when, from Alton's point of view, discussions between Alston and DSU's counsel become unproductive. Alston filed in Superior Court, Kent County, on behalf of himself and 777, an action against DSU's counsel and DSU's counsel's law firm. Alston, et al, v. White and Williams. LLP, et al, DelSuper., ___ A2d ___, (Kent County, CA No. 08C-05-023, 11/19/2008)[2]
ODC requests in its Petition:
"... the Board find as a matter of fact and law that the Respondent has engaged in the unauthorized practice of law in the State of Delaware; and that the Board express its findings in a final report to the Court recommending that the Respondent cease and desist from engaging in the unauthorized practice of law in the State of Delaware by acting in a representative capacity in a Delaware legal tribunal or governmental agency, by giving legal advice on matters relating to Delaware law, by drafting documents reflecting upon Delaware Law for use in a Delaware legal tribunal or Governmental agency, and holding himself out as being authorized to practice law in the State of Delaware."
ODC's request for relief will be granted for the reasons herein. However, the Board cautions that based on the evidence presented to it or, as will be seen, the evidence not presented to it an Order from the Supreme Court will probably have little, if any, affect on Alston's conduct.
- - - - - - - - - - - - -
In Delaware State Bar Asso'n v. Alexander, DelSupr., 386 A2d 652 (1978) at page 661, the Delaware Supreme Court stated guidelines concerning "the practice of law":
"`In general, one is deemed to be practicing law whenever he furnishes to another advice or service under circumstances which imply the possession and use of legal knowledge and skill. The practice of law includes " "all advice to clients, and all actions taken for them in matters connected with the law." `* * * Practice of law includes the giving of legal advice and counsel, and the preparation of legal instruments and contracts of which legal rights are secured. * * * Where the rendering of services for another involves the use of legal knowledge or skill on his behalf where legal advice is required and is availed of or rendered in connection with such services these services necessarily constitute or include the practice of law.'" [citations omitted)
* * * * * *
"`The practice of law [in addition to conduct of litigation in courts of record] consists generally, in the rendition of legal service to another, or legal advice and counsel as to his rights and obligations under the law, calling for a degree of legal knowledge or skill, usually for a fee, or stipend, i.e. that which an attorney as such is authorized to do; and the exercise of such professional skill and certainly includes the pursuit, as an advocate for another, of a legal remedy within the jurisdiction of a quasi judicial tribunal'". [citations omitted]
* * * * * *
"`In determining what is the practice of law, it is well settled that it is the character of the acts performed and not the place where they are done that is decisive. The practice of law is not, therefore, necessarily limited to the conduct of cases in court but is engaged in whenever and wherever legal knowledge, training, skill and ability are required.'" [citations omitted)
- - - - - - - - - - - -
Turning to items 1 4. above:
1
Alston agreed he is not licensed to practice law in the State of Delaware or anywhere else:
"I have no license to practice law in the State of Delaware or any other state." [Tr. 13]
2
Alston acknowledged 777 Para-Legal Services ". . . is a name I chose for my business." [Tr. 24] He also stated the business is independently licensed.
"1 have a business license in the State of Delaware in the name of 777 Para-Legal Services" [Tr. 24]
Alston was less than forthcoming about what type of entity 777 was. When specifically asked, he declined to respond other than as noted above.
In view of Alston's testimony, the Board finds that 777 Para-Legal Services is an independent, third party, entity owned by Alston.
3
Even a cursory reading of Ex. 1 shows it is intended to be a legal document, one that would be prepared by, or under the direct supervision of, an attorney. Any reading of the document, given the purpose of the document as contained within it and quoted above, forces the conclusion that Ex. 1 is being sent for the purpose of legal proceedings. Even the second page of Ex. 1 is titled and notarized as an "`Affidavit of Service and Notice of Appearance"; page two contains the further direction that all questions be directed to 777's and Alston's telephone numbers.
Alston characterizes his conduct on behalf of Micah L. Parker as:
"I assisted him only". [Tr. 13]
"In a para-legal capacity only."
and
"As a para-legal, as identified by the document" [Tr. 34. for both]
Alston staled that nowhere on Ex. 1 does he indicate he is representing himself as an attorney. [Tr. 14] [See also Alston's Notice of Hearing filed June 1, 2009, page 3, all caps bold, 4th fine from the bottom.]
At no time during the Hearing, or in any of his documents, did Alston indicate he was working for, or under the supervision of, a licensed attorney. To the contrary, his position was consistent: he was allowed to independently do what he had been doing.[3]
No matter how inarticulately Ex. 1 may be drafted, it purports to be a demand in pending or potential litigation, and directs the recipient to take action because of pending or potential legal proceedings. This is the practice of law.
The filing of Alston, et al. v. White and Williams, LLP, et al,, and Alston's conduct of the case on behalf of 777, an independent legal entity, is also the practice of law. Delaware State Bar Asso'n v. Alexander, supra.
- - - - - - - - - - - -
What is here is someone Alston who has cloaked himself in a name `"para-legal" and is conducting himself as an attorney, with all of the rights and privileges which an attorney would have. The following colloquies are instructive: [Alston is the witness.]
"THE WITNESS: I assisted Mr. Parker in finding out where the legal law library was, for example. There were several of them. I assisted him in looking up certain documents he was looking for in the law library. Certain items that the union had, for example. So I assisted him. That's what I did." [Tr. 25 & 26]
* * * *
CHAIRMAN: Did you conduct any interviews of Mr. Parker to determine the factual basis for any claims he might have?
WITNESS: I'm not going to discuss any of the issues, or any of the things that I did with a client. That's confidential. And that would be work product. You're going into a slippery slope. Again, these issues are before the U. S. Supreme Court. I think this is where I should stop answering those types of questions. [Tr. 26 & 27] [emphasis supplied]
Alston has been quoted at length to show the obvious: he wants to file legal papers on behalf of third parties; he wants to participate in Court proceedings on behalf of third parties; he wants to draft legal documents[4] on behalf of third parties; and he wants to file documents with Courts and third parties in a manner that would lead others to believe Alston is authorized and qualified to give legal services.
In other words, Alston wants to play lawyer. But he is not licensed to do so and he should be prevented from doing so.
Alston's repeated defense to his conduct[5] is:
"So, what I am suggesting to this tribunal is that what I have been doing has either been sanctioned by two court orders. One from [Federal] Judge Sue Robinson and one from [Federal Judge, now United States Supreme Court Justice] Samuel Alito. That is what I am saying." [Tr. 46-47]
Alston was directed to produce copies of the above referenced orders to the Board; he said he would. ODC had no objection.[6] [Tr. 41, 50, 57-58]
Nothing related to Judge Robinson's or Justice Alito's orders has been received by the Board, post-Hearing, from Alston.
- - - - - - - - - - - - -
As noted above. ODC requests:
"..the Board find as a matter of fact and law that the Respondent has engaged in the unauthorized practice of law in the State of Delaware; and that the Board express its findings in a final report to the Court recommending that the Respondent cease and desist from engaging in the unauthorized practice of law in the State of Delaware by acting in a representative capacity in a Delaware legal tribunal or governmental agency, by giving legal advice on matters relating to Delaware law, by drafting documents reflecting upon Delaware law for use in a Delaware legal tribunal or Governmental agency, and holding himself out as being authorized to practice law in the State of Delaware."
This Board adopts the just-quoted statement as its findings and recommendation.
However, the Board cautions the requested remedy may not be sufficient; Alston has been consistent in his refusal to accept limitations on his conduct. The Court may be required to additionally Order that no Delaware Court, agency, governmental body, or other entity over which the Court can assert jurisdiction accept any filings, of any kind whatsoever, where Alston in any way attempts to, or purports to, be acting in any capacity for a third party or entity. Such an Order would limit Alston to only pro se conduct, acting solely in his name for his personal matters.
NOTES
[1] Also called "Triple 7 Para-Legal Services"
[2] The Board was also asked to take judicial notice of another case involving Alston, Alston v. Delaware Department of Justice, et al, Del Supr., 931 A2d 436 (2007)
[3] In his documentation Alston noted he took the "Para-legal course of study at Del. Tech.. . [and] received my certificate of completion in 2005." Alston's Affidavit filed 6/1/2008, p 1-2.
[4] Or documents which purport to be legal documents.
[5] Aside from the fact he feels wronged by a "corrupt", "racist", "personally bias", and "ungodly" legal and judicial system. [As to these allegations, not a scintilla of evidence was produced or introduced; the allegations are wholly without any factual basis and will be ignored by the Board.]
[6] ODC also agreed that all documents submitted by Alston prior to the Hearing could be considered by the Board. [Tr. 68]
| {
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/03/2018 09:08 AM CDT
- 617 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. STEELE
Cite as 300 Neb. 617
State of Nebraska, appellee, v.
M arkel D. Steele, appellant.
___ N.W.2d ___
Filed July 27, 2018. No. S-17-951.
1. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
4. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
5. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Jeffrey Pickens and Kelly S. Breen, of Nebraska Commission
on Public Advocacy, for appellant.
- 618 -
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300 Nebraska R eports
STATE v. STEELE
Cite as 300 Neb. 617
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Dobrovolny, District Judge.
Papik, J.
Markel D. Steele pled guilty to one count of second degree
murder and one count of first degree assault for his involve-
ment in an armed robbery and shooting that left one victim
dead and another paralyzed. Steele, who was 17 years old at
the time of the offenses, was sentenced to 60 years’ to life
imprisonment for second degree murder and to 40 to 50 years’
imprisonment for first degree assault, with the sentences to
run consecutively. Because we find no merit to the contentions
Steele raises on appeal regarding his sentences, we affirm.
BACKGROUND
Factual Basis for Charges.
The following details regarding the incident underlying
Steele’s convictions are summarized from the factual basis
recited by the State at Steele’s plea hearing.
On April 18, 2016, at approximately 3 p.m., law enforce-
ment responded to a report of gunshots at a residence near 19th
and Euclid Streets in Lincoln, Nebraska. Dispatchers relayed
to law enforcement that approximately eight gunshots were
heard in the residence and that “two black males” were seen
leaving the residence around the time of the shooting. One was
reported as wearing black jeans and a gray hoodie with the let-
ters “USA” on the back, and the other was wearing jeans and
a black “puffy” coat.
As officers first arrived in the area, they located a black
male wearing black jeans and a gray hoodie with the letters
“USA” walking westbound a block or two from the reported
location of the shooting. This individual, later identified as
Xheronte Lewis, was detained by police and admitted to being
at the residence when shots were fired.
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STATE v. STEELE
Cite as 300 Neb. 617
Inside the residence, officers located two victims, identified
as Christopher Coleman and Jerry Griffis, both of whom had
sustained gunshot wounds. Officers also found a dog that was
suffering from gunshot wounds. Three small children were also
present in the residence.
Coleman, who was found just inside the front doorway in
the living room, was pronounced dead at the scene. Griffis,
who was found in the kitchen, was transported to a nearby
hospital where he received extensive treatment for a gunshot
wound that passed through his spine. The dog was taken to an
emergency veterinary clinic where it died from its wounds.
An autopsy on Coleman later revealed that the cause of his
death was a gunshot wound to the neck. Griffis was hospital-
ized for approximately 11⁄2 months as a result of his injuries.
He was diagnosed with multiple gunshot wounds, a vertebra
fracture, paraplegia, “right and left hemopneumothorax,” bilat-
eral pulmonary contusion, and a rib fracture. He is now par-
tially paralyzed.
Griffis gave a statement to police approximately a week
after the shooting. He stated that he had gone to Coleman’s
house on April 18, 2016, to sell him some marijuana. While
there, he heard the front door open and immediately heard two
gunshots in quick succession. He stated that he could not see
the shooter initially, but could see Coleman facing the shooter.
He then saw Coleman turn “180 degrees” and fall to the floor
and believed that Coleman was struck by one or both of the
shots fired. Griffis stated that he then observed a black male
in his early twenties wearing all black clothing holding a black
semiautomatic handgun.
Griffis reported that the black male shot Coleman’s dog
two or three times when it appeared in the kitchen doorway.
The dog yelped and ran to its kennel toward the back of the
kitchen. Immediately after shooting the dog, the black male
pointed the gun at Griffis and fired one or two shots into his
torso. Griffis immediately fell to the ground. When he looked
up, the black male had walked a few steps toward him and
was pointing the gun at his head. Griffis put his left hand out
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STATE v. STEELE
Cite as 300 Neb. 617
in front of the gun in an attempt to block a shot to his head.
He heard another gunshot and felt pain on his hand and face.
Griffis stated that he “played dead” in order to avoid being
shot again.
After the last shot, Griffis heard two male voices in the
kitchen. He “heard the male closest to him, presumably the
shooter, say, . . . Where’s it at? Find the shit . . . .” He then
heard the intruders rifling through cabinets and drawers. A
quantity of marijuana was later found to have been taken from
the residence. Using a photograph that had been posted on
Facebook, Griffis was able to identify Steele as the shooter.
Investigators processed the crime scene and recovered seven
bullet casings from the residence. Two spent rounds were
found in the dog’s body, one round was collected from Griffis’
body, and two rounds were discovered at the residence. A
firearms analyst concluded that all of the bullets were fired
from the same gun, which was identified as a “Hi-Point JHP”
.45-caliber firearm.
Investigators also took photographs and castings of fresh
footprints from the kitchen floor and from the mud in the
backyard of the residence, which appeared to be consistent
with Nike “Air Force” tennis shoes. A witness described Steele
as having worn Nike “Air Force or Air Max” tennis shoes at
the time of the shooting. When Steele was later arrested, he
was wearing Nike “Air Force” tennis shoes, which were seized
by police and analyzed at the Nebraska State Patrol crime lab-
oratory. The analyst found that the castings and photographs
of the footprints taken at the crime scene corresponded to the
pattern and size of Steele’s left shoe.
Steele was arrested and interviewed by police on May 5,
2016. He denied any involvement in the robbery or homi-
cide, but admitted that he had a Facebook account and that
he used Facebook to communicate with others. Investigators
obtained a search warrant to access his Facebook records,
which showed that on April 7, Steele was in communication
with Lewis about possibly doing a narcotics-related robbery
on Euclid Street. This conversation continued over the course
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of 11 days while the two attempted to find a gun and a driver
for the robberies. The conversation included a screen shot of a
text message conversation in which Lewis asked another indi-
vidual to drive. That individual then asked Lewis where this
would occur, and Lewis responded, “‘Euclid.’”
After that individual declined to participate, Steele told
Lewis that he found a driver named “T.J.,” later identified
as Terique Jackson, and that they would be over to pick him
up in a BMW, which was the vehicle Jackson was driving at
the time.
Lewis was deposed and testified that he observed Steele
with a black .45-caliber semiautomatic handgun just before
the robbery and homicide on Euclid Street. He also testified
that Jackson was the driver who transported them to the Euclid
Street residence on April 18, 2016, and that Lewis made plans
with Steele to meet up after the robbery.
While incarcerated at the Lancaster County jail, Steele
admitted to more than one confidential informant that he had
shot Coleman and Griffis on April 18, 2016, at the Euclid
Street residence.
Steele was 17 years old on the date of the offenses.
Steele’s Guilty Pleas.
Steele was initially charged with eight different felony
offenses arising out of the incident on Euclid Street: first
degree murder, first degree assault, robbery, abandonment or
cruel neglect of an animal, and four counts of the use of a
firearm to commit a felony. The parties later advised the dis-
trict court that they had reached a plea agreement. Under the
agreement, Steele would plead guilty to an amended informa-
tion which reduced his first degree murder charge to second
degree murder, retained the first degree assault charge, and
dropped the other six counts. As part of the plea agreement, the
State also agreed to dismiss various charges it had filed against
Steele in Lancaster County District Court arising out of two
different incidents and to forgo any additional charges based on
those other incidents.
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STATE v. STEELE
Cite as 300 Neb. 617
Steele entered guilty pleas in accordance with the parties’
agreement. The district court accepted the pleas after conclud-
ing that there was a sufficient factual basis for the pleas and
that Steele understood the nature of the charges and made the
plea freely, voluntarily, knowingly, and intelligently.
Sentencing Hearing.
At the sentencing hearing, the district court acknowledged
receipt of the presentence investigation report and heard argu-
ments from both parties. Then, prior to imposing sentences, the
district court stated:
In determining the appropriate sentences, the Court con-
siders a number of factors. I recognize that Mr. Steele
was 17 years of age when these crimes were committed.
Although I do not believe that the Court is required to
do so, I have followed the requirements of Miller ver-
sus Alabama, where the United States Supreme Court
indicated that the court consider the juvenile’s special
circumstances in light of the principles and purposes of
juvenile sentencing, and I have taken into account how
children are different and how these differences counsel
against irrevocably sentencing a juvenile to a lifetime
in prison.
I have considered the defendant’s age; mentality; edu-
cation and experience; social and educational background
and cultural background; past criminal record or record
of law abiding conduct; motivation for the offense; the
nature of the offense; the amount of violence involved in
the commission of the crime.
And although not required to do so, I have also consid-
ered the mitigating factors which led to the commission
of this offense as set forth in Nebraska Revised Statute
Section 28-105.02. I have considered the age of the
defendant; the impetuosity of the defendant; his family
and community environment; his ability to appreciate the
risk and the consequences of the conduct; his intellec-
tual capacity; and the mental health evaluation that was
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STATE v. STEELE
Cite as 300 Neb. 617
submitted by defense counsel from the mental health pro-
fessional, including all of the statutory mitigating factors;
including information from the family, which includes
prenatal history, developmental history, medical history,
substance abuse treatment history, social history and psy-
chological history.
The Court has also considered and cannot ignore the
senselessness of these acts of violence; the motivation for
the crime, to steal marijuana; the premeditated actions,
this crime had been planned for some time; there was
no provocation for these offenses. I’ve considered that
the defendant used a firearm to commit these crimes.
And I have considered the depravity of these crimes,
cold-blooded shooting and killing of Mr. Coleman, and
the cold-blooded shooting of Mr. Griffis, numerous
times, and leaving him for dead, and he is now perma-
nently paralyzed.
I’ve considered that you shot and killed the dog.
Considered that fact that your intent was to leave no wit-
nesses. And I considered the fact that Mr. Coleman’s three
children were present in the home when you shot and
killed him. I’ve considered the effect that these crimes
have had on the family members of Mr. Coleman, includ-
ing his three children, who will grow up now without a
father. I’ve considered the effect that it has had on Mr.
Griffis, he’s paralyzed for life. And the effect that this has
had on his daily life, for the rest of his life.
I considered your other acts of violence, and although
you’ve not been convicted of those other crimes, they
were in the Presentence Report, including an armed
robbery, that, again, was for marijuana, and included
the taking of a four-year-old girl from a vehicle, and
brought into an apartment where an armed robbery was
in progress.
I do have to consider the safety of the public. You
are dangerous. Society needs to be protected from your
dangerousness.
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STATE v. STEELE
Cite as 300 Neb. 617
Having regard for the nature and circumstances of
the crimes, and the history, character and condition of
the defendant, and all other relevant factors, including
the age, mentality, education and experience, social and
cultural background, past criminal record, motivation
for the offense, nature of the offense, amount of vio-
lence involved, impetuosity of the defendant, family and
community environment, your ability to appreciate the
risk and consequences of your conduct, your intellectual
capacity, and the mental health evaluation, including all
of the factors set forth in Miller versus Alabama, Graham
versus Florida, and all of the mitigating factors set forth
in Section 28-105.02.
The Court does find that imprisonment of the defend
ant is necessary for the protection of the public, because
the risk is substantial that during any period of probation
the defendant would engage in additional criminal con-
duct, and because a lesser sentence would depreciate the
seriousness of the defendant’s crimes and promote disre-
spect for the law.
The district court then pronounced its sentences. It sen-
tenced Steele to 60 years’ to life imprisonment for second
degree murder. It sentenced Steele to 40 to 50 years’ imprison-
ment for first degree assault. It ordered the sentences to run
consecutively. The court also advised Steele that he would be
eligible for parole in 50 years.
ASSIGNMENTS OF ERROR
On appeal, Steele assigns, rephrased, that the district court
abused its discretion (1) in imposing a “de facto life sentence,”
and (2) in imposing excessive sentences.
STANDARD OF REVIEW
[1,2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Russell, 299 Neb. 483, 908 N.W.2d
669 (2018). An abuse of discretion occurs when a trial court’s
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STATE v. STEELE
Cite as 300 Neb. 617
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. State v. Hunt, 299 Neb. 573, 909 N.W.2d
363 (2018).
ANALYSIS
De Facto Life Sentence.
In many recent appeals to this court, individuals convicted
of offenses committed while they were juveniles have chal-
lenged their sentences, arguing that the sentence imposed is
unlawful because it amounts to a “de facto life sentence” that
is not permitted under the U.S. Supreme Court’s decisions in
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed.
2d 407 (2012), or Graham v. Florida, 560 U.S. 48, 130 S. Ct.
2011, 176 L. Ed. 2d 825 (2010). See, e.g., State v. Thieszen,
ante p. 112, 912 N.W.2d 696 (2018); State v. Russell, supra;
State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017). Steele
makes such an argument here, contending that under Miller,
a “de facto life sentence” can only be imposed upon a finding
that the offender is “irreparably corrupt.” Brief for appellant
at 8.
In Miller v. Alabama, supra, the U.S. Supreme Court held
that a sentence of mandatory life imprisonment without parole
for a juvenile violated the Eighth Amendment’s prohibition
on cruel and unusual punishment. Miller did not, however,
foreclose the possibility of a life-without-parole sentence for a
juvenile. Such a sentence may be imposed so long as the court
considers specific, individualized factors before handing down
that sentence. See State v. Russell, supra.
Steele, like previous challengers, urges us to find that Miller
places an additional restriction on life-without-parole sen-
tences. According to Steele, life-without-parole sentences are
permitted by Miller only if the offender is found to be “irrepa-
rably corrupt.” Brief for appellant at 8. Steele contends that
because no such finding was made by the district court here,
his sentences are unlawful.
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Cite as 300 Neb. 617
Under the sentences the district court imposed, Steele will
be eligible for parole in 50 years, or when he is 67 years old.
While some other states have found that a sentence expressed
as a term of years may constitute a de facto life sentence, we
have not done so. See State v. Russell, supra. On the other
hand, we have found that sentences that allow for a “mean-
ingful and realistic opportunity to obtain release” are not de
facto life sentences for purposes of Miller v. Alabama, supra,
or Graham v. Florida, supra. See State v. Russell, 299 Neb.
at 495, 908 N.W.2d at 677 (Miller). Accord, State v. Thieszen,
supra (Miller); State v. Smith, supra (Graham).
In State v. Russell, supra, we found the defendant’s sen-
tence allowed him a “meaningful and realistic opportunity to
obtain release” and thus was not a de facto life sentence. That
sentence did not make the offender eligible for parole until he
was 72 years old. As Steele will be eligible for parole at age
67, our decision in Russell leaves no room for a determina-
tion that Steele received a de facto life sentence. We thus need
not decide whether Miller requires a finding that the offender
is “irreparably corrupt” for a life-without-parole sentence,
because Steele did not receive such a sentence. Steele’s first
assignment of error is meritless.
Excessive Sentences.
Steele also argues that the district court imposed excessive
sentences. Steele does not argue that his sentences were outside
the statutory limits. Rather, he argues that the court abused its
discretion in imposing the sentences.
[3-5] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether a sentencing court abused its discretion in
considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
imposed. State v. Russell, 299 Neb. 483, 908 N.W.2d 669
(2018). Relevant factors customarily considered and applied
are the defendant’s (1) age, (2) mentality, (3) education and
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STATE v. STEELE
Cite as 300 Neb. 617
experience, (4) social and cultural background, (5) past crimi-
nal record or record of law-abiding conduct, and (6) motivation
for the offense, as well as (7) the nature of the offense and
(8) the amount of violence involved in the commission of the
crime. Id. The appropriateness of a sentence is necessarily a
subjective judgment and includes the sentencing judge’s obser-
vation of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. State
v. Thieszen, ante p. 112, 912 N.W.2d 696 (2018).
Steele contends that the district court abused its discre-
tion in various ways, but we disagree in every respect. First,
we reject Steele’s argument that the district court abused its
discretion by not considering certain factors set forth in Neb.
Rev. Stat. § 29-2260(3) (Reissue 2016), which, he contends
should have been considered as mitigating factors. Section
29-2260(3) sets forth factors that courts are to consider when
deciding “if it is appropriate to withhold a sentence of impris-
onment and grant probation.” State v. Cerritos-Valdez, 295
Neb. 563, 569, 889 N.W.2d 605, 610 (2017). Neither the
language of § 29-2260(3) nor logic would permit us to find
that district courts are required to consider the § 29-2260(3)
factors in cases like this one, in which a probation-only sen-
tence would not even be permitted by statute. See Neb. Rev.
Stat. §§ 28-304(2) and 28-308(2) (Reissue 2016) and 28-105
(Supp. 2017).
While the district court was not required to specifically con-
sider the factors set forth in § 29-2260(3), the district court did
state that it had considered the familiar factors set forth above,
which courts customarily consider and apply in fashioning
any sentence. In particular, after noting that it had considered
Steele’s age when he committed the offenses, the court said it
took “into account how children are different and how these
differences counsel against irrevocably sentencing a juvenile to
a lifetime in prison.” The court also stated that it had consid-
ered, among other things, Steele’s impetuosity, his family and
community environment, and a mental health evaluation that
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STATE v. STEELE
Cite as 300 Neb. 617
was submitted by defense counsel. But the court also stated
that it had considered the senselessness of Steele’s actions,
as well as the motivation behind them (to steal), the lack of
provocation, and the depravity that was exhibited by shooting
and killing one person and leaving another permanently para-
lyzed. We cannot say that the court abused its discretion in its
assessment of the relevant sentencing factors.
Neither are we persuaded by Steele’s argument that the
district court relied on personal bias or prejudice in determin-
ing his sentences. Steele cites to State v. Pattno, 254 Neb.
733, 579 N.W.2d 503 (1998), and State v. Bruna, 12 Neb.
App. 798, 686 N.W.2d 590 (2004), in support of this argu-
ment. In Pattno, we vacated a sentence, concluding that the
court’s reliance on “personal religious beliefs as a basis for a
sentencing decision injects an impermissible consideration in
the sentencing process.” 254 Neb. at 742, 579 N.W.2d at 509.
In Bruna, the Nebraska Court of Appeals, citing Pattno, also
vacated a sentence on the ground that the sentencing judge
had considered his personal religious views when sentencing
the defendant.
Unlike the defendants in Pattno and Bruna, Steele does not
point to any specific information or beliefs that he contends
the district court improperly relied upon in sentencing him.
Without any elaboration from Steele as to what particular
beliefs or information he contends improperly motivated the
district court, we have no basis to vacate his sentences on the
ground of bias.
CONCLUSION
Because we find that the district court did not abuse its dis-
cretion in sentencing Steele, we affirm.
A ffirmed.
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261 S.W.3d 565 (2008)
J. Annette DAVIES, and Todd Davies, Plaintiffs/Appellants,
v.
Dossu CHANDUWADIA, M.D., John P. Crotty, M.D., Scott Radiological Group, Inc., and Jefferson Memorial Hospital, Defendants/Respondents.
No. ED 88676.
Missouri Court of Appeals, Eastern District, Division Three.
May 27, 2008.
Motion for Rehearing and/or Transfer to Supreme Court Denied July 15, 2008.
Application for Transfer Denied September 30, 2008.
C. Marshall Friedman, P.C., Paul A. Burnett, Scott A. Friedman, St. Louis, MO, for appellant.
D. Paul Myre, Dennis S. Harms, St. Louis, MO, for respondent, John Crotty, M.D. and Scott Radiological Group, Inc.
Tracy L. Zuckett, Robyn Greifzu Fox, St. Louis, MO, for respondent, Dossu Chanduwadia, M.D.
Before ROY L. RICHTER, P.J., CLIFFORD H. AHRENS, J., and GLENN A. NORTON, J.
ORDER
PER CURIAM.
J. Annette Davies ("Patient") appeals the judgment entered in favor of Dr. Dossu Chanduwadia, Dr. John P. Crotty, and Scott Radiological Group, Inc. (collectively "Doctors") on her medical malpractice claim.[1] We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 84.16(b).
NOTES
[1] Todd Davies, Patient's husband, brought a loss of consortium claim.
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430 F.2d 510
139 U.S.App.D.C. 137, 1970 Trade Cases P 73,238
FEDERAL TRADE COMMISSIONv.Walter E. CROWTHER, Vice-President and Secretary, LouisvilleCement Company, Appellant.FEDERAL TRADE COMMISSIONv.William L. LUCAS, Secretary and Treasurer, Martin MariettaCorporation, Appellant.FEDERAL TRADE COMMISSIONv.GENERAL PORTLAND CEMENT COMPANY, Appellant.FEDERAL TRADE COMMISSIONv.Worth LOOMIS, Vice President-Administration and Secretary,Medusa Portland Cement Company, Appellant.
Nos. 23924-23927.
United States Court of Appeals, District of Columbia Circuit.
Argued April 17, 1970.Decided June 25, 1970.
Mr. Terrence C. Sheehy, Washington, D.C., with whom Mr. Harold F. Baker, Washington, D.C., was on the brief, for appellants.
Mr. Leonard Schaitman, Attorney, Dept. of Justice, with whom Messrs. Thomas A. Flannery, U.S. Atty., and Morton Hollander, Attorney, Dept. of Justice, were on the brief, for appellee.
Before McGOWAN, TAMM and ROBINSON, Circuit Judges.
McGOWAN, Circuit Judge.
1
This appeal is from a judgment of the District Court granting enforcement, at the instance of the Federal Trade Commission, of certain subpoenas duces tecum issued in a proceeding initiated by the Commission to challenge, under Section 7 of the Clayton Act (15 U.S.C. 18), the acquisition by Lehigh Portland Cement Company of a number of ready-mix concrete companies. Appellants are not parties to that proceeding. They are, rather, concrete producers who are actual or potential competitors of Lehigh, to whom, at Lehigh's request, the Commission directed the subpoenas in question calling for business information normally regarded as confidential. Their objection is not to any disclosure at all, but to the allegedly discriminatory manner in which disclosure is sought to be compelled. Because we think the Commission has failed to come to grips adequately with the claim of discriminatory treatment, we vacate the judgment of the District Court and remand the case to the Commission for further consideration.
2
* The subpoenas in suit commanded appellants to appear at the complaint proceeding against Lehigh as witnesses and to produce certain records and information relating to their individual business operations. Motions to quash resulted in a stipulation between appellants and Lehigh, as well as some modifications in the scope of the subpoenas by the hearing examiner. What remained at issue was the request of appellants that certain information covered by the subpoenas1 be presented to an independent accounting firm for organization and compilation in such a way that, although the information would be available in its entirety, it could not be attributed to any identifiable reporting company.
3
The examiner was of two minds about this request. He noted that what Lehigh 'here is asking for (is) rather sensitive information from its own competitors, or potential competitors, who as such have been allegedly damaged by respondent's acquisitions of ready-mix concerns purchasing cement.' He remarked the essential similarity of the situation to an earlier proceeding also involving a challenge by the Commission to the acquisition by a cement producer of ready-mix companies where the respondent had sought like information from competitors, and in which the Commission had provided for submission of the information in precisely the manner requested by appellants here. Matter of Mississippi River Fuel Corporation, F.T.C. Dkt. No. 8657. He stated his feeling to be that the Mississippi formula devised by the Commission, 'however commendable (an) effort to insure confidentiality * * * within the bounds of the law,' does 'impair substantially the usefulness of the information to the party' requesting it.2 He concluded, however, that the clarity of the Commission's command in Mississippi, with its emphatic rejection of any right in a respondent 'to rummage at will through the confidential business files' of its actual or potential competitors, was such as to constrain him to grant appellant's request.
4
The Commission was not impressed with this deference to its decision of two years before. It characterized its action in Mississippi as having 'merely held that under the facts of that proceeding the treatment ordered was appropriate.' It did not indicate in what particulars it thought the facts before the examiner were different from those in Mississippi, but, on a wave of generalities about the need to strike a balance in each case between the interests of 'the respondent's need to know sensitive information and the third party's need to protect the same valuable information from his competitors,' it floated the case back to the examiner for reexamination.
5
Because the initial examiner was about to retire, a new examiner, by consent of the parties, undertook this task. There were no new submissions of either evidence or argument. The new examiner denied appellant's request for mississippi treatment, and his reasons for doing so are confined to the following:
6
'* * * The undersigned examiner has carefully reviewed all of the documents above referred to and is of the opinion * * * that all of the information requested by the respondent be submitted without Mississippi River treatment. Counsel for respondent has made it abundantly clear that he will not disclose the information supplied.2 '
7
Footnote 2 so inserted by the examiner in his opinion consists solely of the citations of Commission proceedings in 1961 and 1964 involving protective orders. Those proceedings are not referred to in the Commission's subsequent opinion or in its brief in this court. The documents described by the examiner as having been reviewed by him refer expressly only to the subpoenas, the motions to quash, the first examiner's rulings, the appeals from those rulings and the answers thereto, and the Commission's order of remand.3
8
The Commission approved this altered disposition of the matter. After describing the ordering provisions of that disposition, it characterized the new examiner as having 'carefully considered our previous opinion,' and as having 'carefully attempted to consider the particular facts of this discovery dispute and * * * tailored a protective order which attempts to fully and fairly balance the potentially conflicting needs of respondent and the third parties.'4 The Commission's only descent to the level of the concrete is a reference to the order as preventing 'the alleged injuries which might flow from disclosure of the data to Lehigh or to the trade at large by restricting its availability to (Lehigh's) counsel alone.'
9
The petition for enforcement in the District Court was heard on the papers and oral argument of counsel. The court's findings of fact are made up of a review of the proceedings at the Commission level, and its legal conclusions are that the matter was one reposing in the Commission's discretion, which was not abused. Its reference to Mississippi is restricted to the conclusion that it does not preclude the Commission from prescribing a differing treatment in another case, provided it is fair.
II
10
In this court it is argued at length on behalf of the Commission that stare decisis has traditionally been thought to be a principle of palpably less rigorous applicability in the field of administrative law than elsewhere, and that the Commission is not bound to decide all future cases in the same way as it has decided a like one in the past. These are surely unexceptionable propositions, of the truth of which this court in especial has no need of persuasion. Our consciousness of the admonition of the Supreme Court in FCC v. WOKO, 329 U.S. 223, 67 S.Ct. 213, 91 L.Ed. 204 (1946), that a regulatory agency is not 'bound * * * to deal with all cases at all times as it dealt with some that seem comparable,' has been demonstrated repeatedly.5
11
Neither are we, however, unmindful of our duty under the Administrative Procedure Act (5 U.S.C. 706) to be alert to agency action which is 'arbitrary' or 'capricious,' or to take note of those situations where, in the words of the Supreme Court, 'the Commission has not adequately explained its departure from prior norms and has not sufficiently spelled out the legal basis of its decision.' Secretary of Agriculture v. United States,347 U.S. 645, 652-653, 74 S.Ct. 826, 831, 98 L.Ed. 1015 (1954). See Greensboro-High Point Airport Authority v. CAB, 97 U.S.App.D.C. 358, 231 F.2d 517 (1956), and Herbert Harvey v. NLRB, 128 U.S.App.D.C. 162, 385 F.2d 684 (1967).
12
A judicial disposition to accord an administrative agency wide latitude in adjusting its regulatory policies from case to case does not dispense with the necessity of adequate explication of the reasons why such alteration or adaptation may be seen to be rational and to escape the domain of the seemingly arbitrary. Judicial review of agency action otherwise becomes meaningless and incapable of fulfilling the Congressional purposes in providing it. See Burlington Truck Lines v. United States, 371 U.S. 156, 167-168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962), and NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 443, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965).
13
The question immediately before us is not whether the Commission could properly abandon the Mississippi formula so lately devised and utilized by it in a set of circumstances closely comparable to the one at hand, but whether the Commission has sufficiently identified and articulated its reasons for doing so. The facts have that degree of parallelism which entitles both appellants and ourselves to a fuller explanation from the Commission, and not from its counsel in this court, as to why the Mississippi approach should be jettisoned without giving credence to the charge that similar supplicants receive dissimilar dispensations. If the Commission thought it important in 1966 to design a method of purveying confidential business information which would elicit and expose the information in full but protect the competitive position of its source, surely it should explain with some care why that method is no longer justifiable in an identical proceeding in 1968.6
14
Certainly it is not enough to point out, as counsel for the Commission have in this court, that the cases involve different parties and different markets. The first simply defines the problem without resolving it. As for the second, we have no basis for knowing that the cement business is so different in two geographical regions that revelation of confidential business information to a competitor in the one creates none of the handicaps attendant upon disclosure in the other. In any event, this matter of disparate markets is counsel's rationalization, not the Commission's. See SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943).
15
The one asserted factual distinction between Mississippi and this case which is pressed most strenuously upon us by counsel for the Commission is that one of the lawyers for the respondent in Mississippi to whom disclosure would have been made was house counsel, whereas the examiner's order here limited disclosure to independent counsel who undertook by stipulation not to disclose the information to anyone except as it might prove necessary to use it as defense matter in the adjudicatory hearing. And it is true that the Commission referred briefly in its opinion to the restriction of the information's availability 'to respondent's counsel alone.'
16
We note, parenthetically, that neither the Commission nor the examiner was at pains to differentiate expressly between house counsel, on the one hand, and 'respondent's counsel,' on the other. The differentiation may well be significant, but it is hard for us to say how vital it appeared to be to the Commission. If such a distinction was an important element in the Commission's resolution of Mississippi itself, it is at least curious that the Commission's opinions in that case, both initially and on reconsideration, are devoid of any reference to it. Respondent there challenged the use of the independent accounting firm device only upon the ground that such a firm would not know whether the information supplied to it was complete or accurate, and would accordingly raise up the danger that the witness might withhold or distort relevant matter.
17
Thus the claim in Mississippi appears to have been not that the identity of each company giving the particular information was important in itself, but that the unidentified company would somehow be enabled to perjure itself with impunity in its responses to the subpoena. The Commission, not surprisingly, gave this argument short shrift indeed.7 What is surprising is that the Commission, having expressed itself so clearly, not to say vehemently, on the merits of the Mississippi formula should now abandon it with a reticence strikingly in contrast with the expansiveness of its earlier pronouncement.
18
Counsel for the Commission emphasize that independent counsel have asserted that they will not disclose the information to Lehigh personnel, but only to technical experts not regularly employed by Lehigh. Such counsel have also represented that, if and when they feel compelled to put the information in evidence at the adjudicatory hearing, they will not oppose a request by appellants for in camera treatment. It is one thing, however, for confidential business information to become available, even on this limited basis, with such information attributed to the particular company, and quite another to be under the shield of the Mississippi formula, which assures that such attribution can never be known under any contingency except to the independent accounting firm. Once supplied in the form presently ordered, there can of necessity never be the same degree of assurance that the information will not come within the ken of the respondent-competitor. Moreover, the mere undertaking by Lehigh Counsel that they will not oppose in camera treatment at the hearing is no guarantee that it will be accorded. There appear to be other parties to the proceeding as well, and the matter is one for the sound discretion of the examiner in the first instance, subject to review by the Commission.
19
What remains essentially unexplained is why the Mississippi approach, with its certain protection against individual attribution, is now thought by the Commission to be inadequate or contrary to the public interest. We do not intimate that the Commission could under no circumstances properly arrive at such a conclusion in the course of a balancing process, but it is not enough to explain the Commission's changed feeling by merely asserting that it has struck a new balance.8 Rationality in administrative adjudication requires something more than that.
20
The judgment of the District Court is vacated and the case remanded to the Commission for further consideration in the light hereof.
21
It is so ordered.
1
The information covered a variety of matters, including options held by appellants to acquire companies purchasing cement from them; debts owing from purchasers to appellants; purchasers' debts to third parties guaranteed by appellants; lease, sale, or other arrangements between appellants and purchasers relating to facilities or equipment used by the latter; capital contributions by appellants to purchasers; and interlocking personnel arrangements between appellants and purchasers
2
The examiner did not specify the exact nature of this impairment except to state that it appeared to be 'in respect to respondent's right to general discovery, i.e., for cross-examination and general purposes.' He referred in this regard to a 1967 amendment of the Commission's Rules, Section 3.34(b)(2), which he characterized as enlarging the discovery right to serve general purposes broader than that of securing information actually to be used as evidence in the proceeding
3
The ordering provisions of the examiner's denial are as follows:
IT IS HEREBY ORDERED that to assure that counsel for Lehigh Portland Cement Company will not use the data subpoenaed for an improper competitive purpose, the documents and information furnished by third parties to the attorney for Lehigh in response to the subpoenas as modified by Examiner Kaufman's orders dated May 29, 1968, and June 14, 1968, shall not be disclosed to Lehigh personnel.
IT IS FURTHER ORDERED that the data and documents produced by third parties pursuant to the subpoenas shall be disclosed or made available by respondent's counsel to counsel supporting the complaint only to the extent that the information is to be used in respondent's defense.
IT IS FURTHER ORDERED that no copies shall be made of any of said materials, except those to be used as exhibits in the hearing in the above matter and copies may be made and used only for such purpose; That said materials furnished by third parties and any copies made of aforesaid (except copies of originals which may become a part of the official record in this matter), shall be returned to third parties promptly following the close of the hearings in the above matter.
IT IS FURTHER ORDERED that, until further order of this examiner, the information furnished by third parties under the subpoenas is not to be made public.
4
In that opinion the Commission had enumerated five specific factors which 'an examiner should consider' in order to reach 'a fair resolution of a business secret claim.' Since the new examiner made no reference to any of them, a captious observer might view this characterization of his effort as on the extravagant side
5
Giant Food, Inc. v. FTC, 116 U.S.App.D.C. 227, 233, 322 F.2d 977, 983 (1963); James S. Rivers, Inc. (WJAZ) v. FCC, 122 U.S.App.D.C. 29, 351 F.2d 194 (1965); Capitol International Airways v. CAB, 129 U.S.App.D.C. 187, 392 F.2d 511 (1968). And see William N. Feinstein & Co. v. United States, 317 F.2d 509, 512 (2nd Cir. 1963). The point is discussed in 2 Davis, Administrative Law, Section 17.07 (1958 ed.)
6
Counsel for the Commission point in their brief to a case, decided by it at about the same time as the one before us, in which it also abandoned the Mississippi formula, Matter of Koppers Company, Inc., Dkt. No. 8755, and in which enforcement was granted in the District Court, FTC v. United States Pipe and Foundry Company, 304 F.Supp. 1254, decided October 3, 1969. We are not further informed about this matter, but it is obvious that the mere existence of such a ruling does not affect our view of the record before us
7
In its opinion denying reconsideration in Mississippi, the Commission said:
'Nor is there any reason to believe that responses to the subpoenas will be less completed or less candid because the responses are directed to an accounting firm rather than to respondent's counsel. Because of the overlapping nature of the subpoenas, the accounting firm will be as capable as respondent's counsel of detecting incomplete responses. In essence, respondent is seeking the right to rummage at will through the confidential business files of the subpoenaed firms, many of which are now, or may be in the future, its competitors. This it is not entitled to so. In order to avoid any possibility that the data claimed to be confidential will be improperly used, it is necessary that material submitted in response to the subpoenas be presented to respondent's counsel in such manner that no individual company's confidential arrangements will be revealed.'
8
Counsel for the Commission in this court make much of the circumstance that the amendment of the Commission's Rules supervened between Mississippi and this case. See Note 2, supra; and compare Rule 3.34(b)(2), 32 Fed.Reg. 8452 with Rules 3.10, 3.17, 28 Fed.Reg. 7088-9. The Commission itself, however, has not referred to this rule change in either its opinion of remand or its opinion approving the second examiner's ruling. At first blush, it would appear that enlarging discovery rights beyond information sought for actual use as evidence would present special problems in the cage of witnesses subpoenaed at the instance of a respondent-competitor
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941 F.2d 1213
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Elizabeth S. LEMONS, Plaintiff-Appellee,v.ICM MORTGAGE CORPORATION, a Delaware Corp., Defendant-Appellant.
No. 90-1211.
United States Court of Appeals, Tenth Circuit.
Aug. 22, 1991.
Before LOGAN, JOHN P. MOORE and BALDOCK, Circuit Judges.*
ORDER AND JUDGMENT**
BALDOCK, Circuit Judge.
1
Defendant ICM Mortgage Corporation appeals from the district court's judgment in favor of plaintiff Elizabeth S. Lemons following a jury trial on her age discrimination claims. By special verdict, the jury unanimously found that 1) Lemons was constructively discharged from her position with ICM, 2) age was a determining factor in her discharge, and 3) her discharge was willful. Rec. vol. I, doc. 4. The district court awarded Lemons back pay, liquidated damages, front pay, and attorney's fees.
2
On appeal, ICM raises three issues. First, it claims the district court erred in denying ICM's motion for judgment notwithstanding the verdict because the evidence in support of constructive discharge, age discrimination, and willfulness, was insufficient. Second, it claims error in the district court's award of front pay in lieu of reinstatement. Third, it asserts that Lemons waived reinstatement and, accordingly, tolled any front pay award. Our jurisdiction arises from 28 U.S.C. § 1291; we affirm.
3
* We may reverse the trial court's ruling on ICM's motion for judgment notwithstanding the verdict only if, after construing the evidence and all reasonable inferences therefrom in the light most favorable to Lemons, the nonmoving party, we conclude that the evidence points but one way, in favor of ICM. See Transpower Constructors v. Grand River Dam Auth., 905 F.2d 1413, 1416 (10th Cir.1990). "[W]e must affirm if evidence was before the jury upon which it could properly find against the movant." Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th Cir.1988). Following our review of the record on appeal, we hold that there was sufficient evidence presented to support the jury's findings that Lemons was constructively discharged, that age was a determining factor in her discharge, and that ICM's conduct, constituting discharge, was willful.
4
"A finding of constructive discharge is supported by evidence that an employee has resigned, rather than waiting to be fired, because of unreasonably harsh conditions that have been applied to him in a discriminatory fashion." Spulak v. K Mart Corp., 894 F.2d 1150, 1154 (10th Cir.1990); see also Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir.1986). To support a finding of age discrimination under the Age Discrimination in Employment Act, or ADEA, 29 U.S.C. §§ 621-634, a jury must have before it evidence showing that age "made a difference" in the discharge. Cooper, 836 F.2d at 1547. Under the ADEA, an employer may be charged with double or liquidated damages if found to have violated the act "willfully." Id. at 1548.
5
Lemons began her work for ICM in 1982 as an executive secretary. A 1984 reorganization within ICM resulted in a change of position, duties, and workload for Lemons. Lemons testified at trial that she had inquired about other positions in the company in order to return to a position more like her original job. Her inquiries were ignored. When she asked why she was not being interviewed for these positions and noted that the positions were being filled with younger, less-qualified people, ICM's Human Resources vice president could not answer her question. Lemons testified that, in 1987, her supervisor suggested she retire.
6
There was also evidence that Lemons was not performing her post-reorganization job adequately. Ultimately, she was told that her work was not satisfactory, and that she had two weeks to improve radically, or she should consider retiring. Lemons testified that the workload was increasing, that she had asked for help in various ways, which requests were either ignored or refused, that coworkers' offers of help were rejected by her superiors, and that she was given work with what she considered impossible deadlines. She offered evidence of instances in which she was treated differently from other employees, and testified that her supervisors ignored her overtures to discuss her workload and various criticisms of her work. We conclude that this evidence is sufficient to support the jury's findings.1 See Spulak, 894 F.2d at 1155. The jury was entitled to believe this evidence even in the face of evidence of Lemons' poor performance. See Krause v. Dresser Indus., Inc., 910 F.2d 674, 677 (10th Cir.1990).
II
7
ICM contends that front pay is inappropriate and, even if appropriate, that Lemons waived any post-trial damages. First, ICM claims that the district court erred in awarding front pay. Reinstatement is the preferred remedy for an ADEA violation. EEOC v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166, 1172 (10th Cir.), cert. denied, 474 U.S. 946 (1985). Front pay may be awarded, however, when reinstatement is inappropriate. Id. at 1172-73; see also Anderson v. Phillips Petroleum Co., 861 F.2d 631, 638 (10th Cir.1988) (noting various circumstances in which reinstatement may be inappropriate).
8
The district court based its ruling on three grounds: 1) Lemons' move to California to live with her daughter, 2) the jury's finding of constructive discharge, and 3) the jury's finding of willfulness. Rec. vol. I, doc. 8 at 3. This award of equitable relief under the ADEA is entrusted to the trial court's discretion. Accordingly, we may reverse only if the award is clearly erroneous. Bingman v. Natkin & Co., --- F.2d ----, Nos. 89-1114, 89-1122, slip op. at 12 (10th Cir. June 28, 1991). In light of the jury's finding that ICM's constructive discharge of Lemons was willful, we conclude the district court did not abuse its discretion in awarding front pay.
9
Second, ICM contends that Lemons waived any front pay damages. The jury announced its verdict for Lemons on September 27, 1989. The next day, ICM tendered an allegedly unconditional offer of reinstatement to Lemons. Lemons moved for a judgment granting front pay and ICM responded, raising the defense of waiver for the first time.2 Lemons rejected the offer.3 ICM contends that, under the waiver rule announced in Ford Motor Company v. EEOC, 458 U.S. 219, 241 (1982), Lemons' rejection waived her claim to front pay.
10
"[A]bsent special circumstances, the rejection of an employer's unconditional job offer ends the accrual of potential [damages]." Ford, 458 U.S. at 241 (Title VII case); see also Giandonato v. Sybron Corp., 804 F.2d 120, 124 (10th Cir.1986) (ADEA case). Only an unreasonable rejection of a reinstatement offer will toll a plaintiff's damages. See Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1203 (7th Cir.1989); Fiedler v. Indianhead Truck Line, Inc., 670 F.2d 806, 808 (8th Cir.1982). To determine whether waiver has occurred, the district court should consider the facts surrounding the offer of reinstatement and the plaintiff's refusal. See Taylor v. Teletype Corp., 648 F.2d 1129, 1139 (8th Cir.), cert. denied, 454 U.S. 969 (1981). This court has noted that personal reasons, standing alone, cannot be a basis for a reasonable rejection. Giandonato, 804 F.2d at 124.
11
The district court, ruling on both Lemons' motion for front pay and ICM's motion for judgment notwithstanding the verdict, summarized the parties' arguments regarding front pay, including ICM's waiver defense, and ruled that front pay was appropriate. Rec. vol. I, doc. 8 at 3. Reading the district court's order, we conclude that the court's ruling on front pay rejected ICM's waiver defense as a matter of law, and implicitly found Lemons' rejection to be reasonable. Cf. Lewis Grocer Co. v. Holloway, 874 F.2d 1008, 1012 (5th Cir.1989) (implicit in decision to toll back pay was finding that offer was unconditional). That finding is supported by evidence in the record of ICM's willful, constructive discharge of Lemons.
12
Finally, Lemons moves for attorney's fees incurred in defending against ICM's appeal. We believe an award of attorney's fees is appropriate in this case. See Cooper, 836 F.2d at 1557 (appellate court may, in its discretion, award appellate fees). On remand, the district court is instructed to assess the amount of attorney's fees to be awarded Lemons.
13
The judgment of the United States District Court for the District of Colorado is AFFIRMED.
*
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument
**
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
1
On the issue of willfulness, we note that the district court, without objection from either party, instructed the jury that "[a] violation is willful if the employer knew or showed reckless disregard for whether its conduct was prohibited under the ADEA." On appeal, neither party challenges this language as an incorrect statement of law. We believe the record supports the jury's finding of willfuless on this instruction. But see Cooper, 836 F.2d at 1551
2
Waiver is an affirmative defense, and must be raised in the pleadings, Fed.R.Civ.P. 8(c); see Gallegos v. Stokes, 593 F.2d 372, 375 (10th Cir.1979). Here, because the factual basis for the waiver claim arose after trial, ICM properly raised it in response to Lemons' motion
3
ICM characterizes Lemons' response as a rejection; Lemons does not contend otherwise
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264 U.S., 200 (1924)
GUARANTY TITLE & TRUST CORPORATION, RECEIVER OF VUE DE L'EAU COMPANY,
v.
UNITED STATES.
No. 109.
Supreme Court of United States.
Argued November 14, 1923.
Decided February 18, 1924.
APPEAL FROM THE COURT OF CLAIMS.
*201 Mr. E.R.F. Wells for appellant.
Mr. H.H. Rumble for Norfolk-Hampton Roads Company, appellee.
Mr. Solicitor General Beck and Mr. Alfred A. Wheat, Special Assistant to the Attorney General, filed a brief on behalf of the United States.
MR. JUSTICE BUTLER delivered the opinion of the Court.
In 1873, the Vue de L'Eau Company, a Virginia corporation, owned a tract of about 294 acres at Hampton Roads, Virginia. It platted the "Prize Lot Reserve" (hereinafter called the "Reserve"), containing 4.55 acres, into lots and streets. In January, 1874, after having sold seven of these lots, it made an assignment for the benefit of its creditors and conveyed to trustees all of its land except the Reserve. Then the company became dormant. No organizational was kept up. It had no directors or officers. But there was no formal dissolution or surrender of the charter. Thereafter, no action was taken by or in behalf of the company in reference to this land. It was allowed to remain in its former condition and to develop forest growth.
*202 The Court of Claims found that in 1899 the Norfolk-Hampton Roads Company purchased a large acreage of land, including that immediately surrounding the Reserve, and, in the language of the findings of fact. ". . . upon purchasing said lands the plaintiff company, [Norfolk-Hampton Roads Company without any right, title or interest, or claim of right, title or interest, in or to the lots or land of said Prize Lot Reserve, and with full knowledge of the fact that it had no claim of right, title or interest in or to any part of said lots or land, deliberately set about trying to acquire title to said lots and land by adverse possession; and in the course of its efforts to so acquire title thereto, the following action was taken: The plaintiff company .. . took possession of said holdings and from thenceforward to the time of its taking by the Government in June, 1917, treated the land of said Reserve as though it belonged to the plaintiff company. It recorded plats of its said property in which the land of said Reserve was included and indicated as a part of the company's holdings. The company's advertising matter issued in 1899 indicated as belonging to the company lands which included the lands of said Reserve, and said land was included in the company's subdivision known as `Subdivision No. 1, Norfolk on the Roads,' a plant of which, stating said subdivision to be the `Property of Norfolk-Hampton Roads Company,' was recorded in the County Clerk's office on June 14, 1901. In the development of its said property, streets were opened and graded through the land of said Reserve; timber was cut therefrom and used or marketed by the company; and bulkheads were built by the company in front of the property to protect it from erosion by the waves and tides. Said company also leased an area of its lands to the Jamestown Exposition Company, in 1907, including therewith said Prize Lot Reserve land as belonging to plaintiff company, and thereafter, upon the termination of the Exposition Company's lease. *203 said lands were leased by plaintiff company to another tenant, by whom they were occupied for some time. And in general, the land of said Reserve was held out and treated by plaintiff company as being the property of said company. It does not satisfactorily appear who, if anyone, paid the taxes on said land between the years 1874 and 1917."
June 28, 1917, the United States, pursuant to an Act of Congress of June 15, 1917, 40 Stat. 207, took 9.22 acres of land fronting on Hampton Roads for a naval base, made up of the Reserve and 4.67 acres immediately surrounding it. At that time the Norfolk-Hampton Roads Company was in possession of the tract taken. The compensation fixed by the President, $37,000, was not satisfactory. Payment of 75 per cent., as provided by the act, was not made because there was a question as to the title to the Reserve. The company sued the United States in the Court of Claims. 40 Stat. 207, 208; Judicial Code, § 145. Thereafter, in a suit brought in the Circuit Court of the City of Norfolk, Virginia, against the Vue de L'Eau Company by one of its stockholder, the Guaranty Title & Trust Corporation was appointed receiver of the company to take charge of its property and to prosecute claims and suits for the protection of its rights and interests. The receiver intervened in this case in the Court of Claims, alleging that the Vue de L'Eau Company was the owner of the Reserve at the time of the taking, and that it is entitled to compensation therefor. The Court of Claims found that, at the time of the taking, that part of the tract, title to which is not in controversy, was worth $35,500, and that the Reserve, claimed by both parties, was worth $33,000, and gave judgment in favor of the Norfolk-Hampton Roads Company for the whole $68,500. The receiver appealed. September 22, 1922, Congress made appropriation for the payment of this judgment. *204 42 Stat. 1052. The amount fixed as compensation for the land not claimed by appellant was paid. Because of the claim of appellant, the United States withholds payment of the balance until the determination of this appeal. June 4, 1923, this Court granted leave to the Norfolk-Hampton Roads Company to intervene as party appellee, and required appellant to give bond ". . . to secure the payment of costs of the appeal as well as interest on $33,000. . ." [262 U.S. 733.]
The owner at the time of the taking is entitled to the balance remaining unpaid. The question for decision is whether the Vue de L'Eau Company or the Norfolk-Hampton Roads Company was then the owner of the Reserve.
A Virginia statute provides that, "No person shall make an entry on, or bring an action to recover, any land lying east of the Alleghany mountains, but within fifteen years . . . next after the time at which the right to make such self or bring such action shall have first accrued to himself or to some person through whom he claims. . . ." Code of 1919, § 5805. By adverse possession and lapse of time the owner's right of entry or action is barred, and title is acquired by the occupant. Cochran v. Hiden, 130 Va. 123; 142; Virginia Midland R.R. Co. v. Barbour, 97 Va. 118, 123; Creekmur v. Creekmur, 75 Va. 430, 435, 439; Thomas v. Jones, 28 Gratt. 383, 387; Middleton v. Johns, 4 Gratt. 129.
The disseisor need not have a deed or other writing giving color of title or furnishing foundation for belief or claim of ownership or legal right to enter or take possession of land. Sometimes misapprehension arises from the somewhat misleading, if not inaccurate terms frequently used, such as "claim of right," "claim of title," and "claim of ownership." "These terms, when used in this connection, mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the *205 exclusion of all others." Carpenter v. Coles, 75 Minn. 9, 11. On the facts found, it is clear that the necessary adverse intent of the Norfolk-Hampton Roads Company existed from 1899 to the time of the taking. Cochran v. Hiden, supra; Brock v. Bear, 100 Va. 562, 565; Haney v. Breeden, id. 781, 784; Virginia Midland R.R. Co. v. Barbour, supra, 122; Kincheloe v. Tracewells, 11 Gratt. 587, 605. See also Chicago & Northwestern Ry. Co. v. Groh, 85 Wis. 641, 645; Rennert v. Shirk, 163 Ind. 542, 545, 546.
The Reserve was inclosed on all its sides, excepting the waterfront, by land acquired by the Norfolk-Hampton Roads Company in 1899. In that year, it issued advertising matter indicating the land as belonging to it. It included the Reserve and asserted ownership of it in a plat filed in 1901. It did not leave the land in a state of nature, but changed and improved it. It opened and graded streets, cut and removed timber for its own use and for sale, protected the waterfront by construction of bulkheads, and leased it to others. It platted, occupied and treated the Reserve just as it did surrounding land which it purchased. Its acts were sufficient to apprise everyone of its exclusive occupation and use. Its assertion of ownership was unequivocal, emphatic and public. The findings show that the possession met all the requirements of law under the decisions of the Supreme Court of Appeals of Virginia. Kincheloe v. Tracewells, supra, 602; Creekmur v. Creekmur, supra, 434; Virginia Midland R.R. Co. v. Barbour, supra. See also Taylor v. Burnsides, 1 Gratt. 165, 192, 198, 201; Harman v. Ratliff, 93 Va. 249, 253; Whealton v. Doughty, 112 Va. 649, 656; Craig-Giles Iron Co. v. Wickline, 126 Va. 223, 232. And the facts make out adverse possession under the rule generally applied.[1]
*206 The judgment is affirmed. In addition to costs of this appeal, the Norfolk-Hampton Roads Company is entitled to interest to be paid by appellant on $33,000 since September 22, 1922, until funds are available for payment by the United States of the balance of the judgment.
Judgment affirmed.
NOTES
[1] Page 205 Alice State Bank v. Houston Pasture Co., 247 U.S. 240; Ellicott v. Pearl, 10 Pet. 412, 442; Ewing v. Burnet, 11 Pet. 41, 52; Zeilin v. Rogers, 21 Fed. 103, 108; Plume v. Seward, 4 Cal. 94; Costello v. Edson, 44 Minn. 135, 138; Lyons v. Fairmont Co., 71 W. Va. 754, 768; Johns v. McKibben, 156 Ill. 71, 73; Worthley v. Burbanks, 146 Ind. 534, 539; Merritt v. Westerman, 165 Mich. 535; Porter v. McGinnis, 1 Pa. St. 413, 416; Dice v. Brown, 98 Ia. 297, 302; Wallace v. Maxwell, 32 N.C. 110, 113; Twohig v. Leamer, 48 Nebr. 247, 253; Chicot Lumber Co. v. Dardell, 84 Ark. 140, 143, Davies v. Wickstrom, 56 Wash. 154, 161; Ford v. Wilson, 35 Miss. 490, 504; Mississippi County v. Vowels, 101 Mo. 225, 228; Toltec Ranch Co. v. Babcock, 24 Utah, 183, 191; Stevens v. Pedregon (Tex. Civ. App.) 140 S.W. 236, 239; Richbourg v. Rose, 53 Fla. 173, 193; Finlay v. Cook, 54 Barb. (N.Y.) 9, 22; King v. See, 27 Ky. L. Rep. 1011; Foulke v. Bond, 41 N.J.L. 527, 550.
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306 F.2d 693
C. D. CALBECK, Deputy Labor Commissioner, EighthCompensation District, and Mrs. Alberta Gee,Individually and on behalf of her minorchildren Riers Gee and AndrewGee, Appellants,v.STRACHAN SHIPPING COMPANY and Texas Employers' InsuranceAssociation,Appellees.
No. 19034.
United States Court of Appeals Fifth Circuit.
Aug. 1, 1962.
W. Jiles Roberts, Jack Shepherd, Asst. U.S. Atty., Houston, Tex., Morton Hollander, W. Harold Bigham, Marvin S. Shapiro, Attys., Dept. of Justice, Washington, D.C., William H. Orrick, Jr., Asst. Atty. Gen., Woodrow Seals, U.S. Atty., for appellants.
C. A. Brown, Galveston, Tex., for appellees, Royston, Rayzor & Cook, Galveston, Tex., of counsel.
Before TUTTLE, Chief Judge, and HUTCHESON and JONES, Circuit Judges.
JONES, Circuit Judge.
1
The Deputy Labor Commissioner made an award to the widow and children of Matthew Gee under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. 901 et seq. The district court reached the conclusion that the award was not supported by substantial evidence on the record as a whole. It set aside the award and the Deputy Commissioner has appealed.
2
Matthew Gee was a sixty-year-old stevedore. On March 5, 1957, while employed by the appellee, Strachan Shipping Company, he was engaged in the unloading from a vessel to a barge of triple superphosphate fertilizer. The conveyer belt which was moving the fertilizer 'choked up' and a quantity of the fertilizer 'splattered over' Gee and he stated to a coworker that he was 'all choked up in his chest.' He went home and complained to his wife about his chest. On the next day Gee visited Dr. J. F. Rader and reported to him that the fertilizer got into his chest, made his chest, eyes and nose hurt, and made his breathing difficult. Dr. Rader believed that Gee's trouble was bronchitis caused by the fertilizer and prescribed an antihistamine. Gee improved but his condition again worsened. He was X-rayed and hospitalized. The X-ray indicated a residuum or effusion in the left chest.
3
Dr. Rader, suspecting that Gee had carcinoma of the lung referred him to Dr. Tom R. Jones, a specialist in diseases of the heart and lungs. Dr. Jones made an examination resulting in a tentative diagnosis of either carcinoma or tuberculosis. Tests were made eliminating the latter. Dr. Jones formed an opinion during the early part of May, 1957, that Gee had a lung carcinoma which was incurable and inoperable. He was also of the opinion that this condition was also present on March 12, 1957, when X-rays had been made. Gee was admitted to a Veterans Hospital in Houston on August 26th, where Dr. Jones' diagnosis was confirmed by a biopsy. He returned home on September 5th on leave of absence, returned on September 29th, and five days later, on October 4, 1957, died. Compensation benefits were claimed by Gee's widow and children under the Act. The Deputy Commissioner found that Gee's death was proximately caused, aggravated or accelerated by the employment. Benefits, as provided in the Act, were awarded. The employer and its insurance carrier sought a review in the District Court of the Southern District of Texas and prayed for injunctive relief against the enforcement of the Deputy Commissioner's award. The district court granted the relief sought, supporting its decision by a written opinion. Strachan Shipping Company v. C. D. Calbeck, Deputy Commissioner, D.C., 190 F.Supp. 255. From the final judgment of the district court enjoining the enforcement of the award, the Deputy Commissioner and the widow and children of Gee have appealed.
4
The question before the district court, as stated and decided by it, was whether there was reliable, probative, and substantial evidence in the record as a whole to support the Deputy Commissioner's finding that the 'fertilizer incident' resulted in Gee's permanent disability and caused or accelerated his death. Such is the question before us as it is submitted by the Deputy Commissioner. The Deputy Commissioner states, as the rule by which we should be guided, that an award can be made even though the claim is unsupported by, or is even in conflict with, medical evidence, if there is other evidence tending to establish causation. From this statement of principle the Deputy Commissioner reasons that the sequence of physical events justifies the finding of causation, and states that it is the Deputy Commissioner's task to decide whether the given injury is to be deemed the legal cause of the given consequence. It is not to be doubted that the findings of triers of fact who reach conclusions contrary to the weight of the medical testimony may be upheld. Sentilles v. Inter-Caribbean Shipping Corporation, 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142; Todd Shipyards Corporation v. Donovan, Deputy Commissioner, 5th Cir.1962, 300 F.2d 741. An injury which hastens an employee's death may be regarded as causing it. Mississippi Shipping Co. v. Henderson, 5th Cir.1956, 231 F.2d 457.
5
In the Deputy Commissioner's order there is included in his findings of fact the following statement:
6
'The employee's death was the result of the natural and unavoidable progression of the injury and the conditions and the ailments that were proximately caused, aggravated or accelerated by the employment. The injury and death arose out of and in the course of the employment. The chain of causation proceeded in a logical and orderly fashion and was direct and continuous from the day of the injury to and including the day of death.'
7
The uncontroverted fact is that Gee had cancer of the lung which had probably spread to the plural cavity prior to March 5, 1957, and by that date his condition had progressed to the incurable stage. There is nothing more than surmise and conjecture, there is no substantial evidence, to support a finding that the fertilizer accelerated the growth of the cancer or that the cancerous condition was aggravated by it. If the judgment of the district court is to be reversed and the award of the Deputy Commissioner is to be reinstated, it must be as a result of a determination that substantial evidence shows that the fertilizer incident masked the cancer and so delayed its diagosis that treatments were not given which probably would have prolonged Gee's life for a brief period of time. Such is the somewhat narrow question before us.
8
The review is of the record as a whole, and the administrative order is to be sustained if it appears, upon that review, that substantial evidence supports the findings. Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; O'Leary, Deputy Commissioner, v. Brown-Pacific Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483. Questions of credibility are for the Deputy Commissioner to determine. National Labor Relations Board v. Walton Manufacturing Co., 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829. The burden of showing that the accident caused an acceleration of the death of the employee was upon the claimant. Gooding v. Willard, 2nd Cir.1954, 209 F.2d 913.
9
If the whole record has within it the substantial evidence that is required to sustain the finding, that evidence must be found in the testimony of Dr. James G. Jones. He was a specialist in internal medicine and at the time of the hearing had been practicing for a year in the City of Houston. He had never examined Gee and so his testimony was based upon the clinical and hospital records, upon X-rays and upon the hypotheses incorporated in the questions of counsel. The doctor expressed the opinion that the fertilizer masked Gee's true condition and delayed a diagnosis of cancer so that it progressed beyond the stage at which treatment might have been given which probably would have prolonged his life by as much as two or three months. If his life was not prolonged, it can be said that his death was accelerated. But this is not all that Dr. Jones said in his testimony. The prolongation of Gee's life would probably have resulted if there had been an early diagnosis of cancer. He 'guessed' that the pleural effusion, which he opined was masked by the effect of the fertilizer incident, had existed for several weeks prior to the incident. On cross-examination he gave an affirmative answer to this question,
10
'And the only thing that you are in a position to say now, as I understand it, is that had it not been for the fertilizer incident, there is a possibility that the cancerous condition would have been discovered at an earlier date and there is then a possibility that his life may have been prolonged possibly two or three months.'
11
Thus that which had been a probability on direct examination became only a possibility on cross-examination. The doctor was further questioned about his opinion as to the prolonging effect of the treatment he would have given. He adhered to his opinion that Gee, if he had been diagnosed as cancerous at an earlier date, and if he had been given the treatments that the doctor would have given, would probably have lived two or three months longer. But this was qualified and, we think, contradicted by the statement that 'Well, how long they will go on and how much benefit, of course, nobody can predict.'
12
The opinion testimony of the claimant's expert, Dr. James C. Jones, that the fertilizer hastened the death of Gee, was uncertain and contradictory. It was based upon surmise and conjecture. It was the result of piling presumption upon presumption and drawing inference from inference. We reach the conclusion that this testimony cannot be regarded as substantial evidence to support the crucial finding that the death was hastened by the fertilizer. Cf. Whitten v. Liberty Mutual Insurance Company, 5th Cir.1958, 257 F.2d 699. The testimony of the doctors who examined Gee was all to the effect that the fertilizer episode neither caused nor aggravated Gee's cancerous condition nor caused or hastened his death. This testimony was considered by the Deputy Commissioner and, it seems, was by him rejected. It need not, therefore, be further discussed by us. If all of the medical testimony be rejected, and perhaps it was rejected by the Deputy Commissioner, we are to inquire as to whether there is other substantial evidence which will warrant the inference drawn by the Deputy Commissioner. Sentilles v. Inter-Caribbean Corporation, supra; McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20. Apart from the testimony of the doctros with respect to the questions of aggravation of the cancer and acceleration of the death, the testimony shows that Gee had an incurable cancer, that he inhaled some of the fertilizer, that this caused a bronchial irritation accompanied by a burning sensation, that Gee died, and that the cancer was the cause of his death. We are urged to say that the proof of these facts constitutes substantial evidence that Geehs death was accelerated by the injury of the fertilizer. The premise may be accepted but the conclusion does not follow. We fail to find substantial evidence of causation that must appear before the claimant can prevail. The district court reached the determination that this substantial evidence was not to be found in the record. We reach the same conclusion. The judgment of the district court is
13
Affirmed.
14
HUTCHESON, Circuit Judge (dissenting).
15
A careful consideration of the majority opinion in the light of the record and of the principles governing our review of the decision below, leaves me with the firm conviction that the judgment of the district court should be reversed rather than affirmed.
16
Without undertaking to set out or discuss the evidence, it is sufficient for me to say that I cannot agree with the majority in its conclusion that the testimony of Dr. Jones, as set out and discussed in the opinion, and the lay testimony in the case taken together do not furnish sufficient basis for the finding of the deputy commissioner. On the contrary, it seems clear to me from the record and from the opinion of the majority itself that the district judge's conclusion and judgment were wrong and that they should be reversed with directions to enter judgment in favor of the deputy commissioner and the widow and children of Gee.
17
I must, therefore, dissent from the opinion of the majority.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4244
MARILOU F. HULING,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-95-78)
Submitted: October 28, 1997
Decided: January 26, 1998
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Andrew M. Sacks, SACKS & SACKS, Norfolk, Virginia, for Appel-
lant. Helen F. Fahey, United States Attorney, Robert F. Porcarelli,
Special Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Marilou Huling appeals her conviction and sentence of four days
incarceration and a $250 fine for theft of government property.1 Hul-
ing contends the prosecution failed to present sufficient evidence of
an intent to steal to sustain her conviction. Because Huling's appeal
is meritless, we affirm.
In December 1994 Huling was observed by closed-circuit televi-
sion in the check-out line at the Navy Exchange (the Exchange) in
Norfolk, Virginia. Huling bought several items and paid by check in
the amount of $146.16. In addition, Huling's co-defendant, a cashier
at the Exchange, marked "sold" on a "My Size Barbie" doll, a Teddy
Ruxpin doll, and a Lladro porcelain figurine, and Huling removed the
items from the store. The total value of the unpurchased items was
$578.99. After Huling left the Exchange, investigators questioned the
co-defendant cashier concerning the observed discrepancies. Later
that night, Huling phoned the Exchange claiming that she had discov-
ered the unpaid items and she arranged to return the items the next
morning.
When Huling returned the items to the Exchange she was arrested
and charged with theft of government property. Huling was tried and
convicted by a magistrate judge. Huling received a sentence of four
consecutive days incarceration and a $250 fine. Huling appealed her
conviction and sentence to the district court. Finding the evidence suf-
ficient to sustain her conviction, the district court affirmed Huling's
conviction and sentence. Huling appeals to this court claiming that the
evidence was insufficient to convict her beyond a reasonable doubt.
However, the relevant question is not whether we are convinced of
her guilt beyond a reasonable doubt, but rather whether, viewing the
evidence in the light most favorable to the government, any rational
trier of fact could have found the essential elements of the charged
offense beyond a reasonable doubt.2 We must consider all circumstan-
_________________________________________________________________
1 18 U.S.C. § 641 (1994).
2 See United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993).
2
tial as well as direct evidence, and allow the government the benefit
of all reasonable inferences from the facts proven to those sought to
be established.3
Huling maintains that the Government's case against her was
flawed because the Government failed to establish the element of spe-
cific intent. According to Huling, the Government's evidence was
insufficient because it did not foreclose her argument that she
acquired the items through mistake or inadvertence, and not a wilful
criminal act. The Government's burden, however, was not to disprove
Huling's defense. Rather the Government's obligation was to place
enough evidence before the fact finder to prove beyond a reasonable
doubt that Huling stole, purloined, or converted government property.
The Government presented enough direct and circumstantial evi-
dence showing that Huling stole, purloined, or converted government
property. It showed that Huling: (1) knew her co-defendant; (2)
brought items that she did not plan on purchasing to the check-out
aisle; (3) returned items to her shopping cart that were marked "sold,"
but she had not purchased; (4) had noticed that the value of the items
in her shopping cart were greater than the amount she paid; (5) took
the unpurchased items out of the Exchange and placed them in her car
and drove home; and (6) did not contact the Exchange to return the
items until after her co-defendant was questioned regarding the theft.
Additionally, the magistrate judge found Huling's explanation that
her possession of the items was due to a mistake or her negligence
constituted perjury. Given the foregoing evidence, we hold that any
rational trier of fact could have found the essential elements of theft
of government property beyond a reasonable doubt.
Accordingly, we affirm Huling's conviction and sentence for theft
of government property. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
_________________________________________________________________
3 See United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
3
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113 B.R. 201 (1990)
In re Robert S. GRUBBS, Sr., Judith S. Grubbs, d/b/a Bob Grubbs Jewelry & Gifts, Debtors.
Bankruptcy No. 88-03247, Motion No. 89-7504-M.
United States Bankruptcy Court, W.D. Pennsylvania.
May 4, 1990.
Daniel J. Gates, Pittsburgh, Pa., for debtors.
Stanley G. Makoroff, Pittsburgh, Pa., U.S. Trustee, for trustee.
MEMORANDUM OPINION
JUDITH K. FITZGERALD, Bankruptcy Judge.
The matter before the Court is the Trustee's objection to the amendment of exemptions by the Debtors.
Because of the failure of their jewelry and gift business, Robert S. Grubbs, Sr., and Judith S. Grubbs (hereinafter, Debtors) filed a Voluntary Chapter 7 Bankruptcy Petition with this Court on December 2, 1988. On November 7, 1989 Debtors filed an amended Schedule B-4, Property Claimed As Exempt.
The Trustee timely filed an objection to Debtor Judith S. Grubbs' amended exemption claimed pursuant to 11 U.S.C. § 522(d)(5) in certain proceeds held by the Trustee from the sale of 1,500 shares of stock of North Pittsburgh Systems, Inc. (hereinafter, Stock). The Trustee contends that the Stock was owned solely by Debtor Robert S. Grubbs, Sr., and that, therefore, Debtor Judith S. Grubbs is entitled to no exemption. Debtors, on the other hand, maintain that the Stock was property held by the entireties, either by a presumption arising under Pennsylvania law or, in the alternative, by a valid gift inter vivos made *202 by Mr. Grubbs to himself and his wife by the entireties.
The pertinent facts, as delineated by the Debtors' Brief in Support of Amended Exemptions, are uncontested by the Trustee. Mr. Grubbs obtained the Stock by testamentary devise in 1986. Contacted by a relative and informed that the Stock had been bequeathed to him by his recently deceased aunt, Mr. Grubbs was given the choice of receiving either the Stock or its proceeds upon sale. He elected to receive the Stock and eventually was mailed the Stock certificates themselves, all registered in his name alone. Mr. Grubbs placed the Stock in a safe located in the family home, but the Stock was not segregated, marked, or identified as entireties property. The safe contained other valuable papers and items, including other property which was held by Mr. and Mrs. Grubbs as entireties property as well as property owned separately by Mr. or Mrs. Grubbs.[1] This safe was accessible to both Debtors who removed or replaced items contained therein at will. Dividends received on the Stock were placed in a bank account jointly held by the Debtors and were used to pay joint obligations. Mr. Grubbs avers that it was his intent and belief at all times that Mrs. Grubbs owned the Stock with him by the entireties.
Based upon the facts as presented and applying the relevant law, this Court concludes that the Stock was not property held by the entireties, either by presumption of law or by a valid gift inter vivos, and that Debtor Judith S. Grubbs is entitled to no exemption therein.
Debtors first argue that the Stock was property held by Debtors as tenants by the entireties due to a presumption arising under Pennsylvania law. Debtors cite three cases as supporting the principle that a conveyance of property to husband and wife creates a rebuttable presumption that a tenancy by the entireties is created: In re Roberts, 81 B.R. 354 (Bankr.W.D.Pa. 1987); Uccellini v. Uccellini, 423 Pa. 273, 223 A.2d 694 (1966), and Brenner v. Sukenik, 410 Pa. 324, 189 A.2d 246 (1963). Debtors are correct that these cases do, indeed, enunciate that rule of law and furthermore, that rule is still the law in Pennsylvania. See also Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988) (same issue in a divorce context) and In re Holmes' Estate, 414 Pa. 403, 200 A.2d 745 (1964). However, Debtors have applied it inappropriately to the case at bar. In the cases cited above, a tenancy by the entireties has been presumed where there has been a conveyance to both husband and wife. Here, however, the initial conveyance was to Mr. Grubbs alone. In such an instance, the presumption does not arise.
In point of fact, in Roberts, supra, cited and relied upon by Debtors, the Court specifically held that while, "property titled to Glenn M. Roberts [husband] and E. Jean Roberts [wife] with nothing more . . . is entireties property . . . any property titled to Glenn M. Roberts [husband] individually . . . is not entireties property." Roberts, 81 B.R. at 364.
This Court holds, therefore, that in the case at bar, no presumption arises under Pennsylvania law that the Stock was property held by the Debtors as tenants by the entireties.
A somewhat more difficult question is raised by Debtors second argument, that Debtor Robert S. Grubbs, Sr., made a valid inter vivos gift from himself to himself and his wife by the entireties. If this Court were to find that Mr. Grubbs later made a valid gift inter vivos of the Stock to himself and Mrs. Grubbs together, then the presumption of the creation of a tenancy by the entireties would arise, because that conveyance would have been to both husband and wife. See Lowry, supra.
Pennsylvania Courts have addressed the question of requirements for a valid gift inter vivos numerous times, both as to gifts of stock and as to contents of safe deposit boxes. These requirements were *203 reiterated in Judson Post Estate v. Com. Bank & Trust Co., 500 Pa. 420, 456 A.2d 1360 (1983):
To constitute a valid gift inter vivos of the contents of a safe deposit box, two essential elements are requisite: An intention to make an immediate gift, and such an actual or constructive delivery to the donee (a) as to divest the donor of all dominion and control, or (b) if a joint tenancy is created, as to invest in the donee so much dominion and control of the subject matter of the gift as is consonant with a joint ownership or interest therein.
Judson, 456 A.2d at 1361, citing In re Secary's Estate, 407 Pa. 162, 180 A.2d 572 (1962). See also In re Estate of Christie, 436 Pa. 101, 259 A.2d 156 (1969); Hengst v. Hengst, 491 Pa. 120, 420 A.2d 370 (1980).[2]
"To establish . . . a gift inter vivos the evidence must . . . be clear, direct, precise and convincing." In re Estate of Baker, 495 Pa. 522, 434 A.2d 1213, 1216 (1981) (quoting Donsavage Estate, 420 Pa. 587, 218 A.2d 112 (1966)). See also, Judson, supra. This Court finds that the Debtors have not met that burden of proof.
In the case before us, there is a marked paucity of evidence of a valid gift inter vivos and what evidence there is, is quite less than clear and convincing. Debtor Robert S. Grubbs, Sr., received a conveyance of Stock to him alone. He avers that he intended to make a present gift of the Stock to himself and his wife as tenants by the entireties. Upon receipt he placed it in a secure place, a place where he and Mrs. Grubbs kept entireties property, but also a place where Debtors admit they stored their individual property. Later, as dividends were paid on the Stock, these amounts were deposited in a joint bank account and used by both Debtors. We find that the actual or constructive delivery of the Stock by Debtor Robert S. Grubbs, Sr., to Debtor Judith S. Grubbs was not sufficiently proven to invest Mrs. Grubbs with dominion and control over the Stock consonant with joint ownership or interest.
The clearest form of a delivery of a gift of corporate shares is registration of the shares in the name of the donee on the stock ledger of the company coupled with physical delivery to the donee of stock certificates in the name of the donee representing the shares so registered.
Wagner v. Wagner, 466 Pa. 532, 353 A.2d 819, 822-823 (1976). While this is the ideal, it is clear that in some circumstances, Pennsylvania courts will accept lesser modes of delivery, notably that a gift of stock may be made without a change in registration. Debtors cite Christie, supra; Brightbill v. Boeshore, 385 Pa. 69, 122 A.2d 38 (1956), and In re Connell's Estate, 282 Pa. 555, 128 A. 503 (1925), regarding the proposition that a gift can be proven absent assignment, endorsement, or transfer of registration. Nevertheless, these three cases are all distinguishable from the instant situation.
Only Christie involved a joint tenancy or a tenancy by the entirety. In Christie the gift failed for the same reason it fails here; where a gift is alleged to pass to the donor and donee jointly, it becomes much more difficult to demonstrate sufficient dominion and control by both parties. Moreover, the validity of the gift must first be established. With virtually nothing more than the placing of the Stock in a communal safe place as was done here, that validity has not been shown.
The fact that a safe deposit box is leased in the names of both husband and wife is not of itself sufficient to establish joint ownership of the contents found therein which originally belonged to one of the lessees alone.
*204 Brown v. Brown, 330 Pa.Super. 324, 479 A.2d 573, 575 (1984) (citing Christie, supra). Further, the fact that dividends from the Stock were deposited in a joint bank account is not clear and convincing evidence of a valid inter vivos gift of the Stock, although it may be sufficient to establish a gift of the dividends.
Debtors find no succor in their cited cases. In Christie, supra, stocks registered in the husband's name alone were deposited in jointly controlled safe deposit boxes in two different banks. In spite of language contained in one of the box lease agreements that was redolent with donative intent,[3] the Court still found that no valid gift inter vivos had been effected. Debtors here have produced even less evidence of intent and delivery than was present in Christie, and the gift there failed.
While the gift in Brightbill, supra, was found to be valid, there was significantly greater donative evidence there than here. In Brightbill the stock was assigned to the donee and the certificates were physically delivered into the donee's sole possession. Still, Brightbill maintained that assignment was not necessary to a finding of a valid gift and cited In re Chapple's Estate, 332 Pa. 168, 2 A.2d 719 (1938), another case where a valid gift was found, but where there had been no assignment, endorsement or transfer of registration. Nevertheless, in Chapple's Estate there was, again, actual physical delivery of the certificates into the donee's exclusive possession. Neither Brightbill nor Chapple's Estate purported to make a gift from sole ownership to entireties or joint ownership.
Connell's Estate, supra, presents yet another parallel case; there was no assignment, endorsement or transfer of registration, but there was actual physical delivery of the certificates into the donee's sole possession. Again, Connell's Estate did not involve an entireties entity as donee. Clearly, Pennsylvania law does not require assignment, endorsement or transfer of registration to effect a valid gift inter vivos of stock where the donor delivers exclusive possession to the donee, but barring this obvious indicator, there must be some other distinct manifestation of the gift. There was no proof of delivery of exclusive possession in this case, nor any other evidence which was legally sufficient proof of a gift inter vivos to the entireties.
This Court finds Mr. Grubbs averment of donative intent unconvincing. He announced this intent for the first time in these bankruptcy proceedings after the Stock was sold and when such a claim carried with it a pecuniary advantage for the Debtors. His placement of the Stock in the home safe falls far short of a delivery "invest[ing] in the donee so much dominion and control of the subject matter of the gift as is consonant with a joint ownership or interest therein." Judson, 456 A.2d at 1361. Without an assignment or endorsement over or transfer of registration, Mrs. Grubbs could exercise only extremely limited control over the Stock, that is, physical removal of the certificates. She could neither sell the Stock nor encumber or hypothecate it in any way, nor could she claim the right to dividends from the corporation. Dominion and control consonant with joint ownership is not shown where the purported "joint owners" hold such grossly unequal rights with regard to the property. Assignment, endorsement or transfer of registration alone would establish validity of the gift of this Stock.
This Court holds that the Stock is not entireties property and that Debtor Robert S. Grubbs, Sr., failed to create a valid gift inter vivos of any interest in the Stock to his wife, Debtor Judith S. Grubbs. Accordingly, the Trustee's objection is sustained and the amendment of Schedule B-4 is disallowed insofar as it claims an exemption by Debtor Judith S. Grubbs in the Stock.
An appropriate Order will be entered.
NOTES
[1] Debtors' Brief at 3, for example, states that individual birth certificates were kept in the home safe.
[2] The standards announced in Hengst, supra, differ slightly from those in the other cases because the issue did not involve a safe deposit box. We note that while the case at bar involves a home safe rather than a safe deposit box, an analogy between the instant case and safe deposit box cases applies in that the allegedly gifted property is stored in a communal area. As a consequence, to prove the gift, the donee must be invested with so much dominion and control as is consonant with a joint ownership or interest. Indeed, in safe deposit box cases, the evidence of a valid gift inter vivos is often stronger than exists here because of the wording contained in the rental agreements for those boxes. See Christie, supra.
[3] "It is agreed that each (or either) of the undersigned is the owner of the present and future contents of said Box . . ." Christie, 259 A.2d at 158-159, quoting the lease agreement.
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NO. 07-05-0468-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 26, 2006
______________________________
DEXTER DEUWAN MITCHELL, (1) APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 48,922-A; HONORABLE HAL MINER, JUDGE
_______________________________
Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Dexter Deuwan Mitchell, appeals from a judgment revoking community
supervision and imposing sentence pursuant to a conviction for attempted aggravated
assault. Appellant's counsel has filed a brief in compliance with Anders v. California, 386
U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, 436
S.W.2d 137, 138 (Tex.Crim.App. 1969). We affirm.
Appellant entered a plea of guilty to attempted aggravated assault on September
8, 2004. The trial court judge found that the evidence substantiated appellant's guilt,
accepted the plea, found appellant guilty, and sentenced appellant to confinement for 10
years in the Institutional Division of the Texas Department of Criminal Justice. The
confinement portion of the sentence was suspended and appellant was placed on
community supervision for five years.
The State filed an amended motion to revoke appellant's community supervision
which was heard on December 7, 2005. Appellant pled not true to three of the nine alleged
violations of community supervision but pled true to the remaining six violations. After
hearing testimony, the trial judge found that appellant had committed six violations of his
community supervision, revoked the order placing appellant on community supervision,
and ordered that appellant serve the confinement portion of his sentence in the State Jail
Division of the Texas Department of Criminal Justice. Appellant filed a notice of appeal.
Appellant's counsel has filed a brief, in compliance with Anders and Gainous, stating
that she has diligently reviewed the appellate record and is of the opinion that the record
reflects no reversible error upon which an appeal can arguably be predicated. Counsel
thus concludes that the appeal is frivolous. Counsel's brief discusses why, under the
controlling authorities, there is no reversible error in the trial court proceedings and
judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).
Counsel has attached an exhibit showing that a copy of the Anders brief has been
forwarded to appellant and that counsel has appropriately advised appellant of his right to
review the record and file a pro se response to counsel's motion and brief. The clerk of
this court has also advised appellant by letter of his right to file a response to counsel's
brief. Appellant has not filed a response.
We have made an independent examination of the record to determine whether
there are any non-frivolous grounds upon which an appeal could arguably be founded.
See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v.
State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds.
Appellant's counsel has moved for leave to withdraw. See Johnson v. State, 885
S.W.2d 641, 645 (Tex.App.-Waco 1994, writ ref'd). We carried the motion for
consideration with the merits of the appeal. Having done so and finding no reversible error,
appellant's counsel's motion to withdraw is granted and the trial court's judgment is
affirmed.
Mackey K. Hancock
Justice
Do not publish.
1. This Court will follow the spelling of appellant's name as it appears in the trial court
records.
dException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1"/>
NO. 07-10-0311-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 21, 2010
______________________________
VERNON LEE MCBETH, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER
COUNTY;
NO. 57,343-E; HONORABLE DOUGLAS WOODBURN, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Pursuant to a plea
bargain in 2009, Appellant, Vernon Lee McBeth, was
granted deferred adjudication for the offense of theft, enhanced, and placed on
community supervision for five years and assessed a $250 fine. The following year, the State moved to proceed
with an adjudication of guilt alleging that Appellant violated three of the
terms and conditions of his community supervision.
At the hearing on the
State's motion to proceed, Appellant entered a plea of true to the allegations
in the motion. The trial court heard
testimony then adjudicated Appellant guilty of the original offense and
sentenced him to eighteen years confinement and assessed a $500 fine. Appellant perfected this appeal.
The clerk's record was filed on September 13, 2010, and it
contains the Trial Court=s Certification of Defendant=s Right of Appeal.
The options on the form "is a plea-bargain case, and the defendant
has No right of appeal" and "the defendant has waived the right of
appeal" appear to have been marked and then crossed out. No other options are checked. Thus, the certification is defective. See
Dears v. State, 154 S.W.3d 610, 614 (Tex.Crim.App.
2005). See also Tex. Code Crim. Proc. Ann. art. 42.12, §
5(b) (Vernon Supp. 2009) (amended in 2007 to permit an appeal from an
adjudication of guilt in the same manner as a revocation hearing);[1]
Hargesheimer v. State, 182 S.W.3d 906, 911-12
(Tex.Crim.App. 2006).
Consequently, we abate this appeal and remand this cause to
the trial court for further proceedings.
Upon remand, the trial court shall utilize whatever means necessary to
secure a proper Trial Court=s Certification of Defendant=s Right of Appeal in compliance with Rule 25.2(d) in
each cause referenced herein. Once
properly completed and executed, the certification shall be included in
supplemental clerk's record. See
Tex. R. App. P. 34.5(c)(2). The trial court shall cause the supplemental
clerk's record to be filed with the Clerk of this Court by November 5, 2010. This order constitutes notice to all parties,
pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure, of the
defective certification. If a supplemental
clerk's record containing a proper certification is not filed in accordance
with this order, this cause will be referred to the Court for dismissal. See Tex. R. App. P. 25.2(d).
In abating this appeal we note that the Clerk's Record
reflects a judgment signed July 16, 2010.
The summary portion of the judgment reflects "Court Costs: see
attached" and the following page contained in the record is a certified
bill of costs, dated July 19, 2010, containing a reference to attorney's fees
for Appellant's court-appointed attorney totaling $2,000.00.[2]
The judgment further orders
Appellant to pay all court costs "as indicated above." A review of the Reporter's Record does not
reveal any evidence pertaining to Appellant's ability to reimburse attorney's
fees, nor does it contain a finding by the Court in accordance with Article
26.05(g) of the Texas Code of Criminal Procedure.
A judgment ordering the reimbursement of court-appointed
attorney's fees without sufficient evidence of a defendant's ability to pay can
constitute error cognizable on appeal. See
Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App.
2010). Accordingly, we further direct
the trial court to either execute a corrected judgment or provide this Court
with a transcript of the proceeding wherein the Court has determined that Appellant
has financial resources that enable him to offset in part or in whole the costs
of legal services provided. The trial
court shall cause either a supplemental clerk's record containing the corrected
judgment or a reporter's record of the requested proceedings to be filed with
the Clerk of this Court by November 5, 2010.
It is so ordered.
Per
Curiam
Do not publish.
[1]See Act of May 28, 2007,
80th Leg., R.S., ch. 1308 § 5(b), 2007 Tex. Gen. Laws
4395, 4397.
[2]Although
we are unable to explain how the trial judge signed a judgment on July 16,
2010, which contained an attachment that was not created until July 19, 2010,
the Clerk's Record does represent the Bill
of Costs as being the attachment referred to in the judgment of the court.
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459 P.2d 853 (1969)
WAREHOUSE MARKET, INC., a corporation, Plaintiff in Error,
v.
Velma Jean BERRY, Defendant in Error.
No. 43661.
Supreme Court of Oklahoma.
October 14, 1969.
Rucker & Tabor, Tulsa, for plaintiff in error.
Jack I. Gaither, Tulsa, for defendant in error.
*854 HODGES, Justice.
On Motion by defendant in error challenging jurisdiction, this appeal is dismissed because it was not commenced within thirty days of final judgment or order as prescribed by 12 O.S.Supp. 1968 § 990.
Appellate proceedings concerning district court judgments or appealable orders must be commenced by filing in this court a petition in error within thirty days from the date of the final order or judgment appealed. Timely commencement is jurisdictional.
Jury verdict was returned to the trial court April 17, 1969, in favor of plaintiff, Velma Jean Berry. Defendant filed a motion for new trial April 18, 1969, which was disposed adversely to movant on May 16, 1969, by the trial court as reflected by the trial court docket. Journal entry of judgment containing the order denying a new trial dated May 16, 1969, was filed June 19, 1969. Judgment is rendered when pronounced by the trial court and the journal entry is only a record thereof. Werfelman v. Miller, 180 Okl. 267, 68 P.2d 819. Therefore, the thirty days allowed for filing of appeal to this court commenced when the trial court overruled the defendant's motion for a new trial on May 16, 1969.
The petition in error filed herein on July 11, 1969, fails to invoke the appellate jurisdiction of this court. The appeal is accordingly dismissed.
All Justices concur.
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Ronald WASHINGTON, a.k.a. Boo Washington, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 00-10426
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
March 9, 2001.
Appeal from the United States District Court for the Southern District of Alabama. (No. 98-01043-CV-AH-
C), Alex T. Howard, Jr., Judge.
Before BLACK, MARCUS and COX, Circuit Judges.
PER CURIAM:
We review Ronald Rene Washington's appeal of the district court's dismissal of his 28 U.S.C. § 2255
motion as untimely. We reverse.
Background
In April 1994, Washington was convicted of conspiring to distribute crack cocaine. This court
affirmed Washington's conviction and sentence in July 1997. Washington then petitioned the Supreme Court
for a writ of certiorari; his petition was denied on October 6, 1997.1 See Washington v. United States, 522
U.S. 895, 118 S.Ct. 239, 139 L.Ed.2d 169 (1997). Following the denial of his certiorari petition, Washington
completed and signed pro se a form § 2255 motion, dating the motion October 6, 1998. Washington's motion
was received by the clerk of the district court on October 21, 1998. The Government moved to dismiss,
contending that Washington had failed to file his motion within § 2255's one-year statute of limitations. The
district court dismissed Washington's motion as untimely. We review the district court's determination de
novo. See Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000).
Discussion
AEDPA provides that, barring other circumstances not relevant here, the one-year limitation period
to file a motion to vacate runs from the "date on which the judgment of conviction becomes final." 28 U.S.C.
§ 2255. This court has yet to address at what point a conviction becomes final in cases where a defendant
1
The district court's finding that the Supreme Court denied Washington's petition on October 9, 1997
was in error.
is unsuccessful on appeal and thereafter files a petition for a writ of certiorari with the Supreme Court. The
courts that have addressed the question have uniformly held that the time period begins to run when the
Supreme Court either denies certiorari or issues a decision on the merits. See United States v. Thomas, 203
F.3d 350, 355 (5th Cir.2000); United States v. Marcello, 212 F.3d 1005, 1008 (7th Cir.), cert. denied, --- U.S.
----, 121 S.Ct. 188, 148 L.Ed.2d 130 (2000); Kapral v. United States, 166 F.3d 565, 570 (3d. Cir.1999);
Rogers v. United States, 180 F.3d 349, 352 (1st. Cir.1999), cert. denied, 528 U.S. 1126, 120 S.Ct. 958, 145
L.Ed.2d 831 (2000); United States v. Simmonds, 111 F.3d 737, 744 (10th Cir.1997). We are persuaded by
the analysis of our sister circuits and hold that Washington's conviction became final on October 6, 1997, the
day the Supreme Court denied his certiorari petition.
The question therefore becomes whether Washington's motion was filed within AEDPA's one-year
statute of limitations. Federal Rule of Civil Procedure 6(a) provides that "[i]n computing any period of time
prescribed or allowed by ... any applicable statute, the day of the act, event or default from which the
designated period of time begins to run shall not be included." See Fed.R.Civ.P. 6(a). Here, the time for
Washington to file his § 2255 motion was triggered by the October 6, 1997 denial of certiorari by the
Supreme Court. Applying AEDPA's statute of limitations in the light of Rule 6(a) and computing the time
from the day following the Court's decision, we conclude that Washington had until October 7, 1998 to file
his § 2255 motion.
The district court dismissed Washington's motion because it was not received by the clerk until
October 21, 1998. This was in error. We have previously held that a prisoner's pro se § 2255 motion is
deemed filed the date it is delivered to prison authorities for mailing. See Adams v. United States, 173 F.3d
1339, 1340-41 (11th Cir.1999). The Government now concedes that the "mailbox rule" should have been
applied in this case.2
Under the mailbox rule, the burden is on prison authorities to prove the date a prisoner delivered his
documents to be mailed. See Garvey v. Vaughn, 993 F.2d 776, 781 (11th Cir.1993). Absent evidence to the
contrary in the form of prison logs or other records, we will assume that Washington's motion was delivered
to prison authorities the day he signed it, October 6, 1998. The Government has offered no evidence to
support a conclusion that the motion was delivered at a later date. Because Washington's motion was
2
At the time it moved to dismiss Washington's motion as untimely, the Government failed to call to
the attention of the district court either the mailbox rule or the fact that it should be applied in this case.
delivered to prison authorities within one year of his judgement of conviction becoming final, the motion was
timely and the district court erred in granting the motion to dismiss.
REVERSED AND REMANDED.
| {
"pile_set_name": "FreeLaw"
} |
789 F.Supp. 1257 (1992)
PARKE-HAYDEN, INC., Plaintiff,
v.
LOEWS THEATRE MANAGEMENT CORP., Defendant.
No. 91 Civ. 0215 (RWS).
United States District Court, S.D. New York.
April 20, 1992.
*1258 *1259 Davis & Gilbert, New York City (Bruce Ginsberg, of counsel), for plaintiff.
Marks Murase & White, New York City (Douglas J. Danzig, of counsel), for defendant.
OPINION
SWEET, District Judge.
Plaintiff Parke-Hayden, Inc. ("Parke-Hayden") has moved pursuant to Fed. R.Civ.P. 56 for an order granting summary judgment in its favor on the First Claim contained in the complaint. Defendant Loews Theatre Management Corp. ("Loews") has also moved for partial summary judgment in its favor dismissing the Third and Fourth Claims of the complaint as well as Parke-Hayden's request for punitive damages in connection with the First and Third Claims. For the following reasons, Parke-Hayden's motion is denied; Loews's motion is granted.
The Parties
Parke-Hayden is a licensed real estate brokerage firm which is a New York corporation with its principal place of business at 98 Cutter Mill Road in Great Neck, New York.
Loews is a Delaware corporation with its principal place of business at 400 Plaza Drive in Secaucus, New Jersey. Through its subsidiary and affiliated corporations, Loews engages in the operation and management of movie theaters throughout the United States.
The Facts
This lawsuit arises out of two unconsummated real estate transactions to which Loews was a party and in which Parke-Hayden acted as broker. With regard to both transactions, Parke-Hayden seeks to recover brokerage commissions, as well as punitive damages, from Loews.
The 72nd Street Property
The First Claim of the Complaint, on which Parke-Hayden seeks summary judgment, involves property located at 72nd Street and Broadway in New York City (the "72nd Street Property") and negotiations by Loews to lease the 72nd Street Property and construct and operate a partially below-grade movie theater complex (the "72nd Street Transaction").
Sometime in early 1988, Hy Teich ("Teich"), the president of Parke-Hayden, brought the 72nd Street Property to the attention of Loews's employee, Gil Littman ("Littman"), Teich Dep. at 32, who had been hired by Loews in December 1987 to locate potential theater sites for Loews. Littman had started searching for a theater site in the neighborhood of West 72nd Street in early 1988. It is unclear which of the men approached the other: Littman testified that he asked Teich, a longtime friend, to find potential sites for Loews in that area, Littman Dep. at 20; Teich, on the other hand, testified that he "made someone aware ... that we had this outrageous corner. Teich Dep. at 32. In any event, Teich showed Littman the Beacon Theater and the 72nd Street Property. Id. at 22.
According to Littman's testimony, when Teich showed him the 72nd Street Property, Littman said "Teich, we want the deal." Id. at 26. Lou Korman ("Korman"), who was at all relevant times chairman of Loews's parent, Columbia Pictures Entertainment, Inc. ("Columbia"), told Littman to make the deal, and Littman called Teich and said "hey, we want the deal. Let's go." Littman Dep. at 27; see also Teich Dep. at 32 (Korman told Teich directly that "I'd like to get that property"). Teich conveyed Loews's interest to Philip Pilevsky ("Pilevsky"), a general partner of Broadway-72 Associates (the "Owner"), the owner *1260 of the 72nd Street Property. Teich reported back to Littman that Pilevsky was not interested in a transaction with Loews for that property. Littman insisted that Teich continue trying to get the 72nd Street Property. When Littman informed Korman that Pilevsky would not do the deal, Korman said that he did not care "what it takes. Make the deal. Get 72nd Street. Get Teich and make the deal." Id. at 27, 30. Littman thereafter had "Teich continue to work for [Loews] to get the deal" by calling him at all hours of the day and night "to make sure he understood that I wanted it." Id.; see also Teich Dep. at 34 (Littman told Teich to "try to get it. Try to get it.").
In his affidavit, Pilevsky states that he never asked Teich to seek a lessee for the 72nd Street Property and did not have the property listed with any broker, Pilevsky Aff. ¶ 3, and that when Teich approached him, he told Teich that he did not want to lease the property to Loews. Id. Subsequently, according to Pilevsky, Teich repeatedly asked him to agree to Loews's proposal. Finally, Teich persuaded Pilevsky to enter into negotiations with Loews. Id. ¶ 4.
Negotiations took place over approximately the next two years. During the negotiations, according to Pilevsky, Teich would often ask him to agree to points desired by Loews, and, "as a result of his efforts, agreements were reached." Id. ¶ 5. Indeed, Teich's role in this regard is confirmed by former Loews President and Chief Operating Officer, Jerry Esbin ("Esbin"). Esbin testified that "[h]e [Teich] would convey various things that I [Esbin] wanted to Mr. Pilevsky." Esbin Dep. at 26. The purpose of his conveying such information was "to allow [Loews] to ultimately get the deal that [Loews] wanted." Id. at 28. According to Littman's deposition testimony, if anything came up with respect to the 72nd Street Transaction, Esbin would say "get to Teich. Let's say some business point came up that bothered Jerry, or something. He said, get Teich and have him take care of this with Phil [Pilevsky]." Littman Dep. at 32. At the same time, Esbin's testimony clearly establishes that he regarded and understood Teich to be acting as broker for the Owner. See, e.g., Esbin Dep. at 27.
By about March 1990, Loews and the Owner reached agreement on term, rent, taxes, construction of the theater, options for additional years, air rights, changes in zoning and mortgages. Esbin Dep. at 31. Esbin testified that at that point he told Mr. Teich that there would be a deal based on everything negotiated to that point, namely, the "economic points." Esbin Dep. at 55. Esbin testified that at the time the economic points were negotiated, Loews did not take into consideration the possible results of asbestos tests or rock borings. Id. at 58.
After negotiations and many drafts of a lease, a "final lease" was prepared and agreed to by both parties, which, according to Parke-Hayden, was ready for execution. Pilevsky Aff. ¶ 9, Ex. A. This lease agreement, like the drafts before it, provided that Parke-Hayden was the sole broker or finder and that the Owner would pay Parke-Hayden its brokerage commission for the lease transaction. Pilevsky Aff. Ex. A ¶ 35.01. After they worked out the rent, Esbin told Teich that "with respect to those points that we have discussed the economic points, up to that point, ... everything was satisfactory to me and there would be a deal based on everything at that point." Esbin Dep. at 55.
Nevertheless, as Esbin testified, all of the points had not yet been negotiated at that time. Esbin Dep. at 54-55. Because the theater complex was to be partially below-grade, demolition of the existing building and construction of a new facility would be necessary. Loews contends that it had always conditioned its signing of the lease upon satisfactory results from soil and environmental tests at the 72nd Street Property. Thus, according to Loews, as of April 1990, the "critical point concerning the expense of excavating bedrock and removing asbestos from the property had yet to be negotiated." Loews Memo. in Opp. at 7. Loews claims that this condition was known to both Teich and the Owner as early as January 1990 when the parties began negotiating a formal agreement for *1261 Loews to conduct the tests (the "Access Agreement"). Teich, on the other hand, testified that it was his understanding that the test results had no bearing on the parties' obligation to go forward on the deal. Teich Dep. at 118-19.
The physical due diligence revealed the presence of rock and asbestos. The estimated cost of excavation would increase the cost of the project by $800,000 to $1,000,000. Esbin informed Pilevsky that he was concerned about bearing the one million dollar cost of excavation and asbestos removal and inquired about possible concessions from the Owner. According to Pilevsky, he "immediately agreed to work that out with him.... The possible cost of the rock excavation was not a stumbling block and would not have hindered our closing this deal." Pilevsky Aff. ¶ 16; see also Esbin Dep. at 95. However, according to Loews, it determined that it could not accept the risk and expense involved in blasting the rock at the 72nd Street Property and decided not to go through with the transaction. See Benjamin 1/6/92 Aff. ¶ 3.
Meanwhile, in or about September 1989, Columbia had been taken over by Sony Corp., at which time Korman exited as Columbia's chief executive officer and Peter Guber ("Guber") and Jon Peters ("Peters") took the helm. Sometime in the end of April or beginning of May 1990, Guber and Peters replaced Bernie Myerson with Alan Friedberg ("Friedberg") as Loews's Chairman. Esbin was relieved of his position in May 1990. It is undisputed that Loews's new management terminated the 72nd Street Transaction and made no attempt to close a lease with the Owner.
The Danbury Transaction
The Third and Fourth Claims of the Complaint, which Loews seeks to have dismissed on summary judgment, relate to a proposed joint venture agreement between Loews and real estate developers Pilevsky and David Lavipour ("Lavipour"), who formed an entity known as PL Danbury Cinemas Associates ("PL Associates"). The purpose of the proposed joint venture was to construct and operate a motion picture cinema at a site in Danbury, Connecticut (the "Danbury Transaction"). According to Parke-Hayden, Teich was retained by the proposed joint venture as a broker to facilitate the transaction. This assertion is not disputed on this motion.
Negotiations took place beginning in the spring of 1989. Loews was, and in fact continues to be, subject to a 1952 consent judgment (the "Consent Judgment") under which it is enjoined "from acquiring or continuing to own any beneficial interest in any motion picture theatre in conjunction with an actual or potential independent exhibitor." Smith 12/6/91 Aff. Ex. B, art. III, ¶ 5(b). Each draft of the proposed partnership agreement contained a clause referring to the Consent Judgment and providing that the proposed partners would not do anything to cause Loews to be in violation of the Consent Judgment. See, e.g., id. Ex. C, at 22-23, 44-45, 46-47.
In early 1990, Loews learned that Lavipour and Pilevsky had interests in other motion picture theaters, whereupon Loews informed all of the parties that it needed to obtain Department of Justice ("DOJ") approval for the proposed transaction. In February 1990, Loews contacted its antitrust counsel, Allen Kezsbom of Fried, Frank, Harris, Shriver & Jacobson to request that he obtain an opinion from the DOJ that the Danbury Transaction would not constitute a violation of the Consent Judgment. On March 6, 1990, Kezbom sent a letter to Frederick Haynes of the Antitrust Division of the DOJ outlining why the proposed Danbury Transaction did not violate the Consent Judgment. Kezbom subsequently forwarded to the DOJ the proposed partnership agreement and the agreements documenting the theater interests of Lavipour and Pilevsky. On April 26, 1990, Kezbom sent Haynes another letter summarizing relevant case law.
Nevertheless, Seymour Smith, who at all relevant times was Executive Vice President and General Counsel for Loews, affirms that in late September 1990, Haynes informed him and Kezsbom at a meeting at the DOJ that the DOJ would consider the consummation of the Danbury Transaction a violation of the Consent Judgment. *1262 Smith 12/6/92 Aff. ¶ 28. On October 9, 1990, Kezsbom confirmed that Haynes had repeated this view to him. Id. Ex. F. Loews informed the other parties of the DOJ determination in early October 1990. Loews contends that, in view of this determination, it abandoned the Danbury Transaction. Parke-Hayden argues, on the other hand, that Loews had terminated the deal long before the DOJ determination for reasons other than any prohibitions imposed by the Consent Judgment.
Discussion
I. Standard for Summary Judgment
The standard for summary judgment is well-known. As the Second Circuit has recently written:
Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "As a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party."
Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir.1991) (citations omitted). The court will find that there is no genuine issue of material fact and may therefore grant summary judgment where, "[v]iewing the evidence produced in the light most favorable to the nonmovant, ... a rational trier could not find for the nonmovant." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir.1991); see also Bay, 936 F.2d at 116.
II. Parke Hayden's Motion for Summary Judgment
The First Claim of the Complaint, on which Parke-Hayden moves for summary judgment, relates to the 72nd Street Transaction. Parke-Hayden alleges that Loews employed Parke-Hayden to procure a lease of the 72nd Street Property on its behalf, that Loews wrongfully refused to enter into the lease procured by Parke-Hayden, and that Loews is liable to Parke-Hayden in the amount of the brokerage commission Parke-Hayden would have received from the owner if not for Loews's wrongful conduct. Loews challenges Parke-Hayden's characterization of its relationship with Loews, contending that at no time did it employ Parke-Hayden as broker, that Parke Hayden was employed as Pilevsky's broker and that Loews regarded Teich as a "conduit" who was "nothing more than Pilevsky's agent and Loews' `contact' with Pilevsky and his organization." Smith 1/6/92 Aff. ¶¶ 12-14.
It is undisputed that all parties interested in the 72nd Street Transaction contemplated that the Owner would pay Parke-Hayden's commission, as memorialized in each draft of the proposed lease agreement, see, e.g., Smith 12/6/91 Aff. Ex. A, ¶ 35.01. Moreover, Parke-Hayden concedes that it has never alleged or sought to prove any agreement by Loews to pay commission to Parke-Hayden in connection with the 72nd Street Transaction. Parke-Hayden Reply Memo. at 9.
Under New York law,
Where there is a contract of employment between the purchaser and the broker which does not expressly exclude the broker's right to commission unless the purchaser actually enters into a contract of sale, the purchaser's refusal to contract with a seller willing to contract on the purchaser's terms makes the purchaser liable to the broker for the commission the broker would have received from the seller.
This liability is predicated upon the proposition that when the prospective purchaser knows that the broker will earn a commission from the seller, the law will imply a promise on the part of the prospective purchaser to complete the transaction, and if he fails or refuses to do so without a valid reason, the prospective purchaser becomes liable to the broker for breach of an implied promise, with damages chargeable to him measured by the amount of commission the broker would have earned.
Tulp v. Padula, 70 Misc.2d 306, 308, 333 N.Y.S.2d 3, 6 (Civ.Ct.1972); see Westhill *1263 Exports, Ltd. v. Pope, 12 N.Y.2d 491, 496, 240 N.Y.S.2d 961, 964, 191 N.E.2d 447, 449 (1963); Schaecter v. Regency Props., Inc., 115 A.D.2d 981, 981, 497 N.Y.S.2d 793, 794 (4th Dep't 1985); Duross Co. v. Evans, 22 A.D.2d 573, 574, 257 N.Y.S.2d 674, 676 (1st Dep't 1965); Pease & Elliman, Inc. v. Gladwin Realty Co., 216 A.D. 421, 424, 215 N.Y.S. 346 (1st Dep't 1926); McKnight v. McGuire, 117 Misc. 306, 308, 191 N.Y.S. 323 (Sup.Ct.1921).
In New York, absent an agreement to the contrary, a real estate broker earns his commission when he procures a buyer who is ready, willing and able to purchase at the terms set by the seller. Lane Real Estate Dep't Store, Inc. v. Lawlet Corp., 28 N.Y.2d 36, 42, 319 N.Y.S.2d 836, 840, 268 N.E.2d 635, 638 (1971); Kalmon Dolgin Affiliates, Inc. v. Estate of Nutman, 172 A.D.2d 917, 568 N.Y.S.2d 204 (3d Dep't 1991).
For the broker to prevail therefore, it must be shown that the purchaser employed the broker, that the broker procured a seller who was ready willing and able to enter the proposed transaction, and that the failure to complete the transaction was due to the fault of the purchaser. The burden of proof is borne by the broker, in this case Parke-Hayden. Tulp, 70 Misc.2d at 308, 333 N.Y.S.2d at 6 (citing cases).
The mere fact that Parke-Hayden was to receive its commission from, and thus was employed by, the Owner, does not prevent it from also being employed by Loews. See Grossman v. Herman, 266 N.Y. 249, 251-52, 194 N.E. 694 (1935); Long Island Bus. Exch., Inc. v. De Luca, 58 A.D.2d 594, 594, 395 N.Y.S.2d 244, 246 (2d Dep't 1977); Simon v. Allied Chem. Corp., 35 A.D.2d 273, 275, 315 N.Y.S.2d 919, 922 (1st Dep't 1970), aff'd, 29 N.Y.2d 861, 328 N.Y.S.2d 169, 278 N.E.2d 340 (1971); Pease & Elliman, 216 A.D. at 423, 215 N.Y.S. at 423 (quoting McKnight, 117 Misc. at 308, 191 N.Y.S. 323).
Rather, the question is whether the facts may be held as matter of law to justify an inference of a double employment. Grossman, 266 N.Y. at 252, 194 N.E. 694. There must be a contract between Loews and Parke-Hayden which Loews has broken with resulting liability for damages. Id.
"[T]he contract of employment may be established ... by facts showing, in the absence of an express agreement, a conscious appropriation of the labors of the broker ... in some cases `by the mere acceptance of the labors of the broker.'"
Gronich v. 649 Broadway Equities Co., 169 A.D.2d 600, 565 N.Y.S.2d 18 (1st Dep't 1991) (quoting Sibbald v. Bethlehem Iron Co., 83 N.Y. 378, 380-81 (1881)).
The affidavits and deposition testimony cited above leave no doubt that, under relevant New York law, Loews employed Teich to procure a lease of the 72nd Street Property by soliciting and accepting his services on Loews's behalf.[1]See Tulp, 70 Misc.2d at 309, 333 N.Y.S.2d at 7 (plaintiff-broker was "employed" by defendants prospective purchasers of a one-family home who had "requested" that plaintiff show them one-family houses in a certain price range in a certain area).
The problem on this motion for summary judgment, however, is that the record is bare of evidence of the terms of that employment other than Teich's testimony that "[m]y obligation was to try to bring my obligation was to try to have Phil Pilevsky and his partners lease that parcel of property. My obligation to Loews was to negotiate a palatable deal once the plans were acceptable to both parties." Id. at 52-53 (emphasis added). This description of the terms is simply too indeterminate to form a basis upon which to conclude on a motion for summary judgment that Loews *1264 breached the purported agreement or "contract" with Parke-Hayden.[2]
Moreover, questions of fact exist as to whether Parke-Hayden procured a "ready, willing and able lessor" on the terms proposed by the Loews. Very specifically, the factual submissions raise a question as to whether a favorable result from the rock and asbestos tests was a condition to Loews concluding the 72nd Street Transaction which the Owner failed to meet.
Loews maintains that it had always made clear, both to Teich and Pilevsky, that favorable results from soil and environmental tests were a condition to Loews signing a final lease, while Teich testified that this was not his understanding.[3] The bulk of Loews's "evidence" of this condition or of the other parties' awareness thereof is either conclusory,[4] or fails to speak to whether the Owner or Teich were aware that these tests and/or favorable results were a condition to be met or a term to be negotiated before Loews would sign a lease.[5]
Of a more substantial nature, is Smith's affirmation regarding a January 11, 1990 meeting at Pilevsky's office at which the 72nd Street Transaction was discussed. Among those present were Smith, Pilevsky, Esbin and Teich. According to Smith, Loews's need for asbestos and subsoil testing was discussed along with other lease terms and "Pilevsky promised that before any documents would be signed, he would furnish Loews with a copy of an asbestos report he had prepared." Smith 1/6/92 Aff. ¶ 16 (emphasis in original). Furthermore, in a March 23, 1990 letter to Pilevsky's attorney, David Badain, Deputy General Counsel to Loews, requested execution of the Letter of Agreement for Loews to conduct its physical due diligence "as soon as possible so that we can commence our physical due diligence and facilitate the execution of the Lease." Danzig 1/6/92 Aff. Ex. G (emphasis added). Finally, Esbin testified that Loews's lawyers conveyed to the landlord's lawyers that Loews wanted to do the asbestos test and the rock boring, Esbin Dep. at 58, that there were discussions "amongst ourselves only at Loews" that the "economic points" upon which all had agreed were contingent on the results of the asbestos and boring tests, and that he was "not sure" whether he told Teich that the results of the tests were a contingency to entering into the lease. Esbin Dep. at 78-79.
Drawing all inferences and resolving all ambiguities in favor of Loews, there is a material factual dispute as to whether a favorable result from the environmental tests was a term or condition unsatisfied by the Owner and thus as to whether Parke-Hayden procured for Loews a ready, willing and able lessor. See Tulp, 70 Misc.2d *1265 at 310, 333 N.Y.S.2d at 8 (plaintiff not entitled to commission where failed to prove he had procured seller ready, willing and able to sell on defendants' terms); cf. Sanders A. Kahn, Assocs. v. Maidman, 69 Misc.2d 90, 93, 329 N.Y.S.2d 121, 124 (Sup. Ct.1971) ("Where the owner merely specifies the purchase price of property, without fixing the other terms of sale, commissions are not earned until and unless the person produced by the broker reaches an agreement with the owner not only as to price but also as to the terms upon which the sale is to be made."), aff'd, 38 A.D.2d 798, 329 N.Y.S.2d 318 (1st Dep't), aff'd, 30 N.Y.2d 831, 335 N.Y.S.2d 77, 286 N.E.2d 462 (1972).
Parke-Hayden contends, nevertheless, that Loews is liable for its commission regardless of any unfulfilled condition because the failure of the condition was due to the bad faith repudiation of the deal as part of a house-cleaning by the Loews management team that took over in the late spring of 1990. Under New York law, regardless of unfulfilled terms or conditions, the party who employs the broker will be liable for the commission if he is responsible for the failure to perform the condition. Nuvest, S.A. v. Gulf & Western Indus., Inc., 649 F.2d 943 (2d Cir.1981) (citing Lane, 28 N.Y.2d at 43, 319 N.Y.S.2d at 841, 268 N.E.2d at 639); Collins Tuttle & Co. v. Ausnit, 95 A.D.2d 668, 669, 463 N.Y.S.2d 219 (1st Dep't 1983) ("`a defendant who is sued for a commission cannot be heard to complain where it was her own act which prevented the natural progress of the transaction'" (quoting Trylon Realty Corp. v. Di Martini, 40 A.D.2d 1029, 1030, 338 N.Y.S.2d 945 (2d Dep't 1972), aff'd, 34 N.Y.2d 899, 359 N.Y.S.2d 284, 316 N.E.2d 718 (1974)). In other words, if the sale is not consummated due to the bad faith, wrongful or arbitrary conduct by the party who retained the broker, that party may not avoid his liability to the broker under their agreement.[6]
While Parke-Hayden has presented evidence suggesting that the demise of the 72nd Street Transaction may have been due to the mere unwillingness of the new management team to proceed even on the terms to which all of the parties had already agreed,[7] there are questions of fact as to whether the cost of the rock and asbestos removal was a genuine deal-stopper.[8] There is no proof, for instance, that Pilevsky indeed would have "worked out" issues regarding the cost of the removal within the terms undisputedly satisfactory to Loews. Because factual questions exist as to these issues, Parke-Hayden's motion for summary judgment on the First Claim is denied.
III. Loews's Motion for Partial Summary Judgment
A. Motion to Dismiss Third and Fourth Claims Based on the Danbury Transaction
The first half of Loews's motion for summary judgment seeks dismissal of the Third and Fourth Claims, in which Parke-Hayden claims lost brokerage commissions relating to the Danbury Transaction. Unlike the dispute relating to the 72nd Street Property, Loews does not contest Parke-Hayden's allegation that it was acting as *1266 Loews's broker in the Danbury Transaction. Rather, Loews contends that because the Consent Judgment prohibited the joint venture between Loews and PL Associates, Parke-Hayden did not secure ready, willing and able partners for the proposed joint venture. As such, Loews argues that Parke-Hayden is not entitled to a commission as a matter of New York law. See, e.g., Lane, 28 N.Y.2d at 42, 319 N.Y.S.2d at 840, 268 N.E.2d at 639.
Parke-Hayden opposes Loews's motion contending first that Loews cannot raise the Consent Judgment as a shield because it was within Loews's power to have the prohibition lifted, enabling it to consummate the Danbury Transaction. Secondly, Parke-Hayden contends that the Consent Judgment was not the real reason for Loews's decision to back out of the deal.
There is no dispute concerning the awareness of the parties that compliance with the Consent Order was a term of the transaction. Each draft of the proposed partnership agreement contained provisions stating that PL Associates had been alerted to the existence of the Consent Judgment, had been advised that it prohibited Loews "from acquiring or continuing to own any beneficial interest in any motion picture theatre in conjunction with an actual or potential independent exhibitor," and had agreed "not to do or perform any act ... which would cause Loews ... to be in violation of said provision...." See Smith 12/6/91 Aff. Ex. C, at 45-46. There is also no dispute that Loews sought an opinion from the DOJ as to whether the Danbury Transaction would violate the Consent Order and that the DOJ advised Loews in September 1990 that it would view the transaction as violative. Nevertheless, Parke-Hayden argues that Loews's motion should be denied, asserting that Loews could have had the Consent Judgment lifted but failed to take any steps to do so. See Parke-Hayden Memo. in Opp. at 5 ("Loews had but to ask the Department of Justice that it consent to the elimination of the decree.").
Parke-Hayden's assertion that the Consent Judgment would have been lifted had Loews made the effort is not supported by facts. Concededly, the DOJ did submit a memorandum in support of Loews October 1990 motion to lift the decree. Nevertheless, even to this date, no evidence has been presented that that motion was successful. Thus, even if Loews had taken action during the pendency of negotiations with PL Associates, there is no factual basis for Parke-Hayden's facile contention that Loews would have been freed of the constraints imposed by the Consent Judgment. As things stood at the time of the negotiations, and indeed, as they still stand today, Loews was subject to the Consent Judgment which, according to the DOJ, prohibits a joint venture with PL Associates.
Moreover, even assuming that Loews could have had the Consent Judgment eradicated by merely lifting its finger, this is not material to the inquiry as to whether Parke-Hayden procured ready, willing and able partners under the terms of the proposed partnership. Loews never agreed, nor was it a condition of any agreement with PL Associates or Parke-Hayden, that Loews would make any efforts to have the Consent Judgment lifted. To the contrary, the proposed partnership agreements clearly contemplated the existence and survival of the Consent Judgment. Thus, this case is distinguishable from Long Island Bus. Exch. v. De Luca, 58 A.D.2d 594, 395 N.Y.S.2d 244 (2d Dep't 1977), invoked by Parke-Hayden. In that case, a condition of the proposed agreement was that the defendant would obtain a liquor license within eight weeks. Because the defendant allegedly failed to apply timely for the license, the court held that the plaintiff had stated a cause of action for its commission because the defendant allegedly acted deliberately to cause the transaction to founder. Id. at 594, 395 N.Y.S.2d at 245.
Parke-Hayden also claims that the Consent Judgment had nothing to do with the failure of the transaction because Loews terminated the transaction long before it received the DOJ's opinion in September 1990. Even assuming the truth of the assertion that the Consent Judgment was not the primary reason for Loews's decision to *1267 terminate the transaction, the fact remains that the Consent Judgment existed at all times and legally prevented Loews from being "able" to participate in this joint venture.
Because the undisputed facts establish that Parke-Hayden failed to procure ready, willing and able partners for the Danbury joint venture, Loews's motion for summary judgment dismissing the Third and Fourth Claims is granted.
B. Motion to Dismiss Parke-Hayden's Claim for Punitive Damages
Loews also has moved for summary judgment dismissing Parke-Hayden's claim for punitive damages on the First and Third Claims.
As a preliminary matter, it bears noting that, even assuming Loews's bad faith, these claims sound in contract, not tort. Pittston Warehouse Corp. v. American Motorists Ins. Co., 715 F.Supp. 1221, 1227 (S.D.N.Y.1989) ("tort of bad faith breach of contract" except in the insurance context), aff'd 954 F.2d 62 (2d Cir.1992). Under New York law, punitive damages generally are not available for a simple breach of contract. Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 371 (2d Cir.1988) (citing New York cases). New York courts, the Second Circuit and courts within this district are virtually unanimous that punitive damages may not be awarded in breach of contract cases, unless the wrong is aimed at the public generally. Durham Indus., Inc. v. North River Ins. Co., 673 F.2d 37, 41 (2d Cir.), cert. denied, 459 U.S. 827, 103 S.Ct. 61, 74 L.Ed.2d 64 (1982); Airlines Reporting Corp. v. Aero Voyagers, Inc., 721 F.Supp. 579, 585 (S.D.N.Y.1989) (punitive damages available in breach of contract actions where "fraud `aimed at the public generally,' evincing a `high degree of moral turpitude,' and demonstrating `such wanton dishonesty as to imply a criminal indifference to civil obligations.'" (citation omitted; emphasis added)); Morse/Diesel, Inc. v. Fidelity & Deposit Co., 715 F.Supp. 578 (S.D.N.Y. 1989) (punitive damages based on a contractual action cannot be sought absent some allegation of wrong against public generally); Purdy v. Consumers Distrib. Co., 648 F.Supp. 980, 983 (S.D.N.Y.1986) ("[P]unitive damages are not available unless the plaintiff can show that the conduct complained of was not an isolated private wrong, but rather a morally culpable course of conduct aimed at injuring the public generally." (emphasis added)); Jacobson v. New York Prop. Ins. Underwriting Assoc., 120 A.D.2d 433, 501 N.Y.S.2d 882 (1st Dep't 1986) (to state cause of action for punitive damages, pleader must assert "`not an isolated transaction incident to an otherwise legitimate business, but a gross and wanton fraud upon the public.'" (emphasis added; quoting Walker v. Sheldon, 10 N.Y.2d 401, 406, 223 N.Y.S.2d 488, 179 N.E.2d 497 (1961)); Samovar of Russia Jewelry Antique Corp. v. Generali, 102 A.D.2d 279, 281, 476 N.Y.S.2d 869, 871 (1st Dep't 1984) (must be "morally reprehensible conduct directed at the general public" (emphasis added)).
Citing a handful of cases, Parke-Hayden argues that a wrong against the general public is not a required element of a claim for punitive damages in breach of contract actions in New York. However, the two cases that are arguably on point, Williamson, Picket, Gross, Inc. v. Hirschfeld, 92 A.D.2d 289, 460 N.Y.S.2d 36 (1st Dep't 1983) and AML Int'l Ltd. v. Orion Pictures Corp., No. 89 Civ. 2048 (KMW), 1991 WL 120323, 1991 U.S.Dist.Lexis 842 (S.D.N.Y. June 21, 1991), run decidedly against the grain of prevailing New York law.[9]
In Williamson, Picket, an action for breach of a brokerage agreement, the First Department held that punitive damages may be awarded where the defendant's conduct involves "that degree of bad faith *1268 evincing a `disingenuous or dishonest failure to carry out a contract.'" 92 A.D.2d at 295, 460 N.Y.S.2d at 41 (quoting Gordon v. Nationwide Mut. Ins. Co., 30 N.Y.2d 427, 437, 334 N.Y.S.2d 601, 285 N.E.2d 849 (1972)). However, the First Department appears to have abandoned the holding of Williamson, Picket. In Jacobson v. New York Property Ins. Underwriting Ass'n., 120 A.D.2d 433, 501 N.Y.S.2d 882 (1986), the same court explicitly held three years later that punitive damages are available in breach of contract actions only if the allegations support a conclusion that a fraud "upon the public" is involved. Id. at 435, 501 N.Y.S.2d at 884. And, after engaging in a detailed analysis of New York law on this topic, a court within this district rejected the rule in Williamson, Picket as an "aberration" in the otherwise uniform law of New York. Purdy, 648 F.Supp. at 982-83; cf. Morse/Diesel, 715 F.Supp. at 588 (breach of contract action; rejecting application of Greenspan v. Commercial Ins. Co., 57 A.D.2d 387, 395 N.Y.S.2d 519 (1977), which held that Walker is no longer valid in New York). Indeed, the Williamson, Picket court itself acknowledged the prevailing New York rule that "`punitive damages are not available for mere breach of contract, for in such a case only a private wrong, and not a public right, is involved.'" 92 A.D.2d at 294, 460 N.Y.S.2d at 40 (quoting Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 358, 386 N.Y.S.2d 831, 833, 353 N.E.2d 793, 795 (1976)).
In the second case, AML International, Judge Wood recently denied a motion for summary judgment to strike plaintiff's demand for punitive damages in a breach of contract action. The court stated that "[u]nder New York law, punitive damages will be available only where defendant's conduct constitutes `gross, wanton, or willful fraud or other morally culpable conduct.'" 1991 WL 120323 at 4, 1991 U.S.Dist.Lexis at 11 (quoting Smith, 861 F.2d at 371-72; Borkowski v. Borkowski, 39 N.Y.2d 982, 387 N.Y.S.2d 233, 355 N.E.2d 287 (1976)). Nevertheless, this definition of New York law must be read before the backdrop of Judge Wood's prior opinion in the same case in which she wrote:
According to the law of New York, ... "`punitive damages are not available for mere breach of contract' ... even if the breach results from a deliberate breach of good faith." To award punitive damages, "[t]here must be fraud `aimed at the public generally,' evincing a `high degree of moral turpitude,' and demonstrating `such wanton dishonesty as to imply a criminal indifference to civil obligations.'"
AML Int'l Ltd. v. Orion Pictures Corp., No. 89 Civ. 2048 (KMW) 1990 WL 364469, slip op. at 2 (emphasis added). AML is further distinguishable in that it involved an allegation of a pattern of breached contracts against various parties.
Following prevailing New York law, therefore, Parke-Hayden may not claim punitive damages for Loews's alleged breach of contract in the 72nd Street and Danbury Transactions. Loews's motion for summary judgment dismissing such claims is granted.
Conclusion
For the foregoing reasons, Parke-Hayden's motion for an order granting summary judgment in its favor on the First Claim is denied. Loews's motion for summary judgment dismissing the Third and Fourth Claims, as well as Parke-Hayden's claim for punitive damages on the First and Third Claims is granted.
It is so ordered.
NOTES
[1] The record contains evidence additional to that reviewed in the discussion of facts that establish that Teich was performing services on behalf of Loews in the 72nd Street Transaction. See, e.g., Esbin Dep. at 25-28 (Teich was "performing services for Loews in this regard [helping Loews get the site from Pilevsky]" and Esbin understood Teich to be working for him "to the extent that he would convey what I needed to Mr. Pilevsky" for the purpose of getting the deal Loews wanted).
[2] This case should be contrasted to McKnight v. McGuire, 117 Misc. 306, 191 N.Y.S. 323 (Sup.Ct. 1921), in which the court held the lessee liable to the broker for breaching his agreement with the broker to enter into a lease agreement. In that case, the lessee had employed the broker to submit an offer to the owner of the premises, had agreed to lease the premises if the broker could obtain specific terms (which the broker ultimately did), and knew that the broker anticipated receiving a commission from the owner. Id. at 307-09, 191 N.Y.S. 323; see also Westhill Exports, 12 N.Y.2d at 494, 240 N.Y.S.2d at 962-63, 191 N.E.2d at 448 (broker authorized to negotiate for paper supply contract; price, term, quantity and quality terms of desired contract specified); Julien J. Studley, Inc. v. New York News, Inc., 122 A.D.2d 633, 635, 505 N.Y.S.2d 419, 420 (1st Dep't 1986) (no implied-in-fact contract where defendant-seller never specified asking price), aff'd, 70 N.Y.2d 628, 518 N.Y.S.2d 779, 512 N.E.2d 300 (1987).
[3] Teich testified that rent and air rights were a topic of hot negotiation. Teich Dep. at 44-46. Unfortunately, the pages of the Teich deposition transcript which presumably contain Teich's response when asked what other issues were subject to negotiation have been omitted. Parke-Hayden Notice of Motion, Teich Dep. at 46-?.
[4] See, e.g., Smith 1/6/92 Aff. ¶¶ 16-19 ("This fact [that favorable results was a condition] was no secret to Pilevsky or Teich. In fact, Loews' intentions in this regard were made known to Pilevsky and Teich as early as January of 1990...."); id. at 21 ("As both Pilevsky and plaintiff were well aware, that [determining whether Loews should enter into the lease] was the precise purpose of conducting these due diligence environmental tests before Loews would sign the lease." (emphasis in original)).
[5] See, e.g., Smith 1/6/92 Aff. ¶ 19, stating merely that "the importance of the soil and environmental tests was continuously reiterated." (emphasis added).
[6] Loews contests the availability of this theory to Parke-Hayden in the first instance, claiming that it applies only where the party allegedly acting in bad faith employed the broker. As discussed above, Parke-Hayden was employed by Loews.
[7] Esbin and Pilevsky both testified that when Esbin approached Pilevsky about the potential added cost of the asbestos and rock excavation, Pilevsky indicated a willingness to negotiate concessions, stating that they would "work something out." Esbin Dep. at 95; Pilevsky Aff. ¶¶ 16-17. Nevertheless, this possibility was never pursued by Loews's new management, and the record establishes that it opted not to proceed with the deal because it was "financially unsound." Friedberg Aff. ¶¶ 2, 5-6. Thus, there is "testimony from which the jury could ... conclude[] that [the Owner] might have met [Loews's] price term" if Loews had negotiated the concessions further. Nuvest, 649 F.2d at 949.
[8] Kenneth Benjamin, a Vice President of Loews since May 1989, states in his affirmation that, as of April 1990, the discovery of rock posed a "major problem in going forward with the proposed transaction." Benjamin Aff. ¶ 3.
[9] The other cases cited by Parke-Hayden are distinguishable in that they did not involve simple breaches of contract. See Gordon v. Nationwide Mut. Ins. Co., 30 N.Y.2d 427, 334 N.Y.S.2d 601, 285 N.E.2d 849 (1972) (insurance contract), cert. denied, 410 U.S. 931, 93 S.Ct. 1374, 35 L.Ed.2d 593 (1973); Minjak Co. v. Randolph, 140 A.D.2d 245, 528 N.Y.S.2d 554 (1st Dep't 1988) (breach of warranty of habitability).
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120 B.R. 154 (1990)
In re MUIR TRAINING TECHNOLOGIES, INC., Debtor.
Bankruptcy No. 89-06850-H7.
United States Bankruptcy Court, S.D. California.
October 9, 1990.
*155 Frederick Martin, Jr., Christison & Martin, San Diego, Cal., for Muir Training Technologies, Inc.
MEMORANDUM DECISION
JOHN J. HARGROVE, Bankruptcy Judge.
Presently pending is the application of Christison & Martin ("applicant") for allowance of fees and reimbursement of costs as counsel for the debtor-in-possession in its Chapter 11 case, and later as counsel for debtor in its Chapter 7 case. At issue is the propriety and reasonableness of attorney's fees and costs charged by the attorney's for the debtor-in-possession. Opposition was filed by administrative claimants Anacomp, Inc. and Park Atlanta North Associates.
This court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334 and § 157 and the General Order No. 312-D of the United States District Court, Southern District of California. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (B) and (O).
FACTS
Applicant seeks court approval of compensation in the amount of $55,506.55 and reimbursement of expenses in the amount of $2,921.64 incurred representing the debtor-in-possession, Muir Training Technologies, Inc. ("Muir"), during its Chapter 11 proceeding from September 5, 1989 to December 21, 1989. Applicant also seeks approval of compensation in the amount of $3,089.50 and reimbursement of expenses in the amount of $70.41 incurred representing the debtor during its Chapter 7 proceeding between December 22, 1989 to January 30, 1990. This court previously ordered that applicant was allowed to draw down on its pre-petition retainer subject to surcharge and the approval of the principals of Muir.
*156 Muir operated a technical college which specialized in computer training. Its financial troubles began when it started to suffer cash flow problems. Eventually its cash flow problems became persistent and severe, causing delinquencies and significant late charges. On September 5, 1989, Muir filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code.
Muir operated six campuses in San Diego, San Marcos, Palm Desert, Riverside, Albuquerque and Tucson. It entered into the following nonresidential leases for operation of its campuses:
LOCATION TERM MONTHLY RENTAL
a. San Diego, 8/1/88-2/28/93 $11,550.00
California
b. San Marcos, 2/6/89-2/6/91 12,000.00
California plus 60 month
addendum
c. Palm Desert, 8/31/89-2/1/89 2,760.00
California plus extension
until 12/31/89
d. Tucson, 2/5/88-3/31/90 6,457.50
Arizona
e. Albuquerque, 4/15/88-4/14/95 6,787.08
New Mexico
f. Riverside, 7/25/88-7/25/91 14,490.00
California
After the petition was filed, Muir faced several minor crises. Some of the crises included: pre-petition employee payroll checks bouncing, loss of CAD software licenses, delinquent rent and a surprise inspection of records by the U.S. Inspector General. The most serious crisis faced by Muir occurred on October 10, 1989, when the Arizona State Board of Private and Post-Secondary Education ("Board of Education") placed the Tucson campus on probation. The principal ground for the probation was Muir's failure to advise prospective students that it filed for bankruptcy. The terms of the probation prohibited Muir from enrolling new students. Because the terms of the probation were so harsh, the existence of Muir was threatened. In an attempt to thwart this action by the Board of Education, applicant filed an application for a temporary restraining order, and later filed an application for a preliminary injunction on behalf of Muir.
On October 27, 1989, Muir's Board of Directors decided that due to the debtor's deteriorating financial condition, and the newly discovered unreliability of its books, the prospects for a reorganization were dim without either the sale of assets or an infusion of cash. It was also decided that if the debtor had not obtained a letter of intent from a serious, well qualified buyer by November 17, 1989, the case would be converted to Chapter 7.
On November 3, 1989, one week after the directors decided that the success of a reorganization through internal restructuring was impossible, and three days before the deadline within in which time the debtor's leases had to be assumed or deemed rejected, Muir petitioned this court to extend the time to assume or reject its six leasehold estates. At the time the motion was made, all of the Muir's rental payments were delinquent. The hearing on this motion was scheduled for December 15, 1989, a full month and a half after the motion was *157 filed, and almost a month after the self imposed deadline set for conversion. Neither Muir, nor any of the administrative claimants attempted to seek an earlier hearing date on the motion.
As a consequence of Muir's failure to perform its obligations under its leases, several of the lessors had difficulty paying the loans secured by their premises. In particular, the underlying lienholder of the Arizona leasehold initiated a trustee's sale against the limited partnership that owned the property. In addition, many of the premise's maintenance for common areas had suffered due to the lack of payment of Muir's pro rata portion.
At the hearing on the motion to extend, this court in effect denied Muir's motion to extend the time to assume or reject the unexpired leases and defer all post-petition rent obligations. The court ordered that the motion be granted, but only on the condition that the debtor cure all defaults on or before December 19, 1989, and keep current on all future payments. The court further ordered that failure to cure or keep current would result in the leases being rejected. Because Muir was unable to cure the delinquent rental payments, the case was converted to Chapter 7 on December 21, 1989.
DISCUSSION
11 U.S.C. § 330(a) provides in pertinent part that the court may award to the debtor's attorney:
(1) reasonable compensation for actual, necessary services rendered by such . . . attorney . . . based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and
(2) reimbursement for actual, necessary expenses.
Anacomp, Inc. argues that the fees and costs incurred as a result of the attempt to obtain an extension of the time allowed to assume or reject the nonresidential real property leases of the debtor are unreasonable and unnecessary within the meaning of 11 U.S.C. § 330. Applicant replies that even if Muir's motion could be characterized as completely unsuccessful, this characterization would be irrelevant to the issue of compensation, arguing that a strict application of the "results achieved" argument would render bankruptcy counsel subject to a "double contingency" fee arrangement. Applicant further argues that applicant was merely following the instructions of Muir's Board of Directors.
At least one circuit court has suggested that the measure of reasonableness may be the degree to which the work performed increases the likelihood of success, so that spending time and money for little improvement in position is not reasonable. Matter Central Ice Cream Co., 841 F.2d 732, 734-35 (7th Cir.1988). In order to determine the reasonableness of the fees incurred under the particular circumstances of this case, two major issues must first be discussed: 1) Whether the debtor-in-possession in a Chapter 11 proceeding must pay rent during the 60-day period for assumption or rejection of a non-residential lease pursuant to 11 U.S.C. § 365(d)(3); and 2) Whether the debtor-in-possession must continue to make rental payments during the 60-day decision period in order to obtain an extension pursuant to 11 U.S.C. § 365(d)(4). As will be shown, the answer to these questions is crucial in determining whether applicant's services have benefitted the estate.
1. DEBTOR'S DUTY TO PAY RENT PURSUANT TO SECTION 365(d)(3).
11 U.S.C. § 365(d)(3) requires the debtor to perform all lease obligations while deciding whether to assume or reject the subject lease. Section 365(d)(3) states:
The trustee shall timely perform all the obligations of the debtor, except those specified in section 365(b)(2), arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, not withstanding section 503(b)(1) of this title. The court may extend, for cause, the time for performance of any such obligation that arises within 60 days after the date of the order *158 for relief, but the time for performance shall not be extended beyond such 60-day period.
In support of its position that the bankruptcy court has the power to defer lease obligations pending a determination of the debtor's ability to perform its obligations, Muir cited In re Orvco, Inc., 95 B.R. 724 (9th Cir. BAP 1989).
Orvco does not support Muir's position. The issue in Orvco, was whether § 365(d)(3) required payment of contract rent for the post-petition 60-day period and the timing of such payment given rejection of the lease by the debtor. The court held that when a lease is deemed rejected, a lessor must establish its claim for administrative status under § 503(b)(1)(A). Id. at 728.
With respect to the right to immediate payment following rejection of the lease, the Bankruptcy Appellate Panel in Orvco stated:
[T]hat after rejection of the lease, the payment of an administrative claim for rent, like all other administrative claims is within the sound discretion of bankruptcy court and shall be determined under Section 503.
Id.
The directive of § 365(d)(3) requiring a debtor's timely performance of its obligations under any unexpired lease of nonresidential real property has been stated in at least two California cases. In the case of In re Tandem Group, Inc., 60 B.R. 125, 127 (Bankr.C.D.Cal.1986), the court stated with regard to § 365(d)(3) that:
"The only logical inference that can be drawn from these subsections is that to preserve the ability to assume the lease, the debtor, or trustee, must perform all lease obligations during the 60-day period and during any court authorized extension."
Id. at 127.
See also, In re Chandel Enterprises, Inc., 64 B.R. 607, 610 (Bankr.C.D.Cal.1986), (Timely payments under lease required by § 365(d)(3) during 60-day period and any extensions thereof). The express language of § 365(d)(3), its legislative history and the case law interpreting this section require a debtor or trustee to satisfy their lease obligations during the 60-day assumption/rejection period and any court authorized extension.
2. CAUSE MUST BE ESTABLISHED FOR AN EXTENSION OF THE 60-DAY PERIOD PRESCRIBED BY SECTION 365(d)(4).
Section 365(d)(4) sets forth the rule that unless an extension is granted "for cause", a debtor must assume or reject its nonresidential real property leases within 60 days after the filing of its petition. Section 365(d)(4) provides as follows:
Notwithstanding paragraphs (1) and (2), in a case under any chapter of this title, if the trustee does not assume or reject an unexpired lease of nonresidential real property under which the debtor is the lessee within 60 days after the date of the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such lease is deemed rejected, and the trustee shall immediately surrender such nonresidential real property to the lessor.
Although the Code does not provide a definition for "good cause" for the extension of time within which to assume or reject nonresidential leases, a list of relevant factors was developed in In re Wedtech Corporation, 72 B.R. 464 (Bankr. S.D.N.Y.1987). The Ninth Circuit subsequently adopted the approach set forth in Wedtech in In re Victoria Station Inc., 88 B.R. 231, 236 (9th Cir. BAP 1988).
The factors are as follows:
1) Whether the lease is the primary asset of the debtor;
2) Whether the lessor has a reversionary interest in the building built by the debtor on the landlord's land;
3) Whether the debtor has had time to intelligently appraise its financial situation and potential value of its assets in terms of the formulation of a plan;
4) Whether the lessor continues to receive rental payments and whether *159 the debtor fails to pay the rent reserved in the lease;
5) Whether the lessor will be damaged beyond compensation available under the Bankruptcy Code due to the debtor's continued occupation;
6) Whether the case is exceptionally complex and involves a large number of leases;
7) Whether need exists for judicial determination of whether the lease is a disguised security agreement;
8) Whether the debtor has failed or is unable to formulate a plan when it has had more than enough time to do so; and
9) Any other factors bearing on whether the debtor has had a reasonable amount of time to decide to assume or reject the lease. In re Wedtech Corp., 72 B.R. at 471-472.
The Wedtech court stated that Congress in adding § 365(d)(4) "placed the burden on the debtors-in-possession to show cause why the time to determine whether to assume or reject should be extended." Id. at 469.
After analyzing and weighing various factors, the court in Wedtech held that cause existed for extension of the 60-period for assumption or rejection of the unexpired lease even though the debtor-in-possession failed to pay rent. Id. at 475-476. In order to understand why the court came to this conclusion it is important to comprehend the rather unusual facts that lead to it.
First, in Wedtech, the debtor's failure to pay rent during the 60-day period was a result of the criminality of former officers and directors. Thus, the Wedtech court is not unilaterally proscribing that an extension can be granted even though the debtor failed to pay its obligations under the lease. In fact, the court stated that a "debtor's failure to keep current on its post-petition obligations to its landlord is a factor which should weigh heavily in favor of limiting the debtor's right to maintain the lease in limbo." Id. at 475 (quoting In re Westview 74th Street Drug Corp., 59 B.R. 747, 753 (Bankr.S.D.N.Y.1986)), See also In re Beker Industries Corp., 64 B.R. 890, 898 (Bankr.S.D.N.Y.1986) (Debtor's failure to perform post-petition obligations over a longer period of time carries greater weight than other factors.)
Second, the debtor had recently undergone a significant change in management which left it without sufficient time to decide whether to assume or reject. The principal officers had resigned less than a month after the petition was filed because they were the subject of a grand jury investigation concerning their relationships with numerous public officials.
Third, the debtor was uncertain whether the lease was a true lease or a security agreement because the debtor was a former owner of the property. Since this issue required judicial determination, the debtor contended that it was principally the presence this issue that constituted sufficient "cause" for the court to grant an extension of time.
Finally, the fact that Wedtech built the building and financed the improvements on the property was also a significant fact that the court took into consideration in determining that cause existed.
In this case, the leases in question were not the primary asset of Muir. Moreover, Muir had no reversionary interests in the buildings, nor were the buildings built by Muir. The lessors possessed the sole equitable and legal interest in and to the improvements on the subject properties.
Muir had sixty days, the standard time, to decide whether or not to assume or reject a lease. The leases were of no particular value to plan formulation since rental space in the markets where the campuses were located is relatively plentiful at market and below market rates due to the slow down in their commercial real estate markets. The lessors had not received any rental payments since the date of filing and many of the leases were in default prior to filing. At least one lessor may have been damaged beyond compensation available under the Bankruptcy Code because the premise's maintenance suffered due to Muir's failure to contribute its pro-rata *160 share. In addition, the Arizona lessor quite possibly suffered damage since the property was its sole asset and the underlying encumbrance holder had initiated a trustee's sale against the property. Finally, there were no other factors that mitigated in favor of continued occupancy by Muir, whereas additional factors, such as Muir's potential liability to meet administrative claims existed in favor of the lessors.
In support of its motion for an extension of the 60-day period set forth in § 365(d)(4), Muir relied heavily upon In re Southwest Aircraft Services, Inc., 831 F.2d 848, 854 (9th Cir.1987), cert. den'd, 487 U.S. 1206, 108 S.Ct. 2848, 101 L.Ed.2d 885 (1988). In Southwest Aircraft, the Ninth Circuit Court of Appeals held that the failure of the bankruptcy court to conduct a hearing on a motion for an extension under § 365(d)(4) within 60 days after the petition date will not automatically result in deemed rejection of the lease, provided the motion is filed within the 60-day period. While it was clear that Muir had complied with the technical requirements of § 365(d)(4), as announced by the Southwest Aircraft court, by filing its motion prior to the expiration of the 60-day period, Muir must still establish "cause" for the extension requested.
The following reasons represent the arguments advanced by Muir in favor of an extension. First, Muir asserted that it needed additional time to determine whether its estate had sufficient assets to pay the amounts due under the leases. However, Muir intended to allow additional unpaid amounts to accrue under the leases while it arrived at its decision.
Next, Muir argued in favor of an extension by stating that it was in negotiations for the sale of either stock or assets of the business. No further detail about the terms of the contemplated sale, or even the stage of negotiations was discussed.
Finally, Muir cited to Southwest Aircraft, supra, for the proposition that the debtor's failure to make payments under 11 U.S.C. § 365(d)(3) "constitutes simply one element to be considered, along with all the other relevant factors, in determining whether cause exists under subsection (d)(4) to extend the 60-day period for assumption or rejection" of a lease. Id. at 854.
Southwest Aircraft is factually dissimilar to the present case. In Southwest Aircraft, Southwest tendered checks to the City of Long Beach for all outstanding rent at the hearing to extend the sixty day deadline for assuming or requesting its lease. The City refused the checks. In this case, Muir had not tendered any monies for rent for the additional sixty days and was requesting a total deferment of making any payments toward the rental obligation.
Muir's arguments for extension are unpersuasive because it has not satisfied its burden of showing "cause" for the extension. Muir's arguments are general and could apply to any debtor seeking to reorganization. The court in Wedtech, infra, stated that, "Congress obviously did not intend the cause requirement to be lightly dismissed or blindly applied." 72 B.R. at 469.
There are no Ninth Circuit or BAP opinions which expressly hold that in all circumstances a debtor must make rental payments during the 60-day period and any extension thereof. However, the failure to keep current on rental obligations weighs heavily in favor of limiting extensions of the time to assume or reject a lease. While bankruptcy courts, as courts of equity "are compelled to disfavor a lease forfeiture that would imperil the debtor's reorganization and would impede rehabilitative goals", In re Victoria Station Inc., 840 F.2d 682, 684 (9th Cir.1988), it was counsel's actions in not seeking a timely disposition of Muir's motion while continuing to incur administrative rent, and not the conditional order of extension leading to lease forfeiture, which imperiled reorganization. In the cases surveyed, either the rent was paid, rent was tendered and refused, or there were adequate assurances that the rent would be paid when a court authorized an extension. None of those situations was present here. No effort was made by *161 Muir to lessen the burden on the landlords. Applicant took a gamble and lost. The other administrative claimants that have already suffered should not be required to pay for this.
Accordingly, this court holds that Muir's request to defer its obligations under its unexpired leases of nonresidential real property for an additional sixty days pursuant to its motion to extend the time to assume or reject its six nonresidential leases was not reasonable since it had shown no clear authority supporting its request and had failed to satisfy its burden of establishing causes as prescribed by 11 U.S.C. § 365(d)(4).
LACK OF BENEFIT TO THE ESTATE
11 U.S.C. § 330 authorizes compensation to professional persons who provide services to the debtor, trustee or creditor's committee. Section 330(a)(1) provides in pertinent part that after notice to any parties in interest and to the U.S. Trustee and a hearing, the court may award to the debtor's attorney reasonable compensation for actual, necessary services rendered by such attorney.
The court in Matter of Ryan, 82 B.R. 929, 931 (N.D.Ill.1987) interpreted this section to mean that as a matter of law, attorneys may recover fees from the estate only if their labors actually benefitted the estate. E.g. In re Moore, 57 B.R. 270, 271 (Bankr.W.D.Okla.1986); Matter of Zweig, 35 B.R. 37, 38 (Bankr.N.D.Ga.1983); In re Rosen, 25 B.R. 81 (Bankr.D.S.C.1982).
The court in In re Tinsley & Groom, 49 B.R. 94 (Bankr.W.D.Ky.1985) applied this principle in determining the compensation of a debtor's attorney in a Chapter 11 proceeding where the success of the reorganization of the debtor was totally dependent upon the success or failure of an adversary proceeding testing the validity of the "full proceeds" of a loan.
The Tinsley court held that the debtor's counsel was not entitled to compensation for services attributable solely to the unsuccessful adversary proceeding even though counsel was capable, experienced and acted in good faith, because counsel's efforts did not enhance the estate of the debtor. Id. at 98.
In denying compensation to the debtor's attorney, the court stated that if counsel had reached a favorable resolution of the adversary proceeding:
[H]is efforts would have substantially benefitted the debtor and the creditors. His compensation would have been substantial and justified. However, since these efforts proved completely unsuccessful, and, in fact, did not further enhance the administration of this estate, entitlement to administrative compensation from the estate for these services is not appropriate and will be accordingly denied.
Id. at 97.
The court further commented that it was unfortunate that the debtor's counsel could not be compensated for the services rendered in connection with the adversary proceeding since this litigation was necessary to achieve reorganizational potential. However, the court "must of necessity apply the well-established criteria" in determining the allowability of compensation. Id. at 98.
Other decisions have reached the same result. The court in In re S. & E. Oil Co. Inc., 66 B.R. 6 (Bankr.W.D.La.1986), held that a reduction of twenty percent of fees for the attorney for the debtor-in-possession was appropriate where long prior to conversion it should have been obvious to counsel that the debtor would not be able to reorganize. The S. & E. court criticized counsel for allowing "the tail to wag the dog", ie. allowing the client to create unnecessary and costly delays in the administration of the case. Id. at 8.
In In re G.W.C. Financial & Ins. Services, Inc., 8 B.R. 122 (Bankr.C.D.Cal.1981) the court ordered the debtor's attorney to return a portion of the fees previously paid noting that the new Bankruptcy Code "should not be taken to encourage counsel to file a Chapter 11 case with only a vague hope that something might turn up in the future by way of a plan and then try to justify a large retainer by largely unproductive services." Id. at 125.
*162 The important factor of "results obtained" may lead the district court to adjust the fee upward or downward. Matter of Mansfield Tire & Rubber Company, 65 B.R. 446, 453 (Bankr.N.D.Ohio 1986). The issue to be discussed is whether the results obtained makes the hours expended a satisfactory basis for making a fee award.
The Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1982), discussed the "results obtained" analysis, and stated:
If . . . a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.
* * * * * *
There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment.
Id. at 436-437, 103 S.Ct. at 1941.
While this analysis was undertaken in connection with an award of fees under the Civil Rights Attorney's Fees Awards Act of 1976, it is applicable to an award under 11 U.S.C. § 330, since under both provisions, the fees must be reasonable.
This court is now faced with a decision of who is more worthy of the remaining assets, the applicant or the other administrative claimants. The Chapter 11 proceeding in this case was unreasonably prolonged by applicant's last minute motion to extend time to assume or reject debtor's leasehold estates. The motion was filed only two days before the 60-day period provided by § 365(d)(4) would expire. The hearing was scheduled 43 days later, with no effort to obtain an earlier court date made by emergency application, or to have the court hear the request for an extension on an ex parte basis, effectively giving Muir a total of 102 days on the landlord's property without paying rent. This last minute (Board of Directors meeting of October 27, 1989) strategic planning by the Muir and its counsel resulted in the estate suffering significant rental obligations and substantial attorney's fees to draft and defend its motion[1].
Applicants presented no evidence, such as contact from or negotiations with joint venture partners who would provide new capital or a buyer who would buy the debtor's assets, that would have supported Muir's request for an extension without payment of rental obligations. There simply was no evidence revealing any reasonable prospect of reorganization during the extension period. It appears that the decision to obtain an extension to assume or reject the debtor's leases was made simply to "buy time" during which something might turn up.
Moreover, the applicant failed to timely convert the case to Chapter 7. This court believes that it should have been obvious to the applicant that for some time prior to conversion that Muir would not be able to successfully reorganize. At the very least it should have been self-evident to the applicant on November 17, 1989, since this was its own self-imposed deadline for conversion. The case should have been converted on this date[2]. Instead, the Chapter 11 proceeding was prolonged until December 21, 1989. There is no apparent reason *163 why the case was extended. Because applicant failed to timely convert the case when it was clear that there was no hope of reorganization and the estate suffered substantially from this failure, this court believes the other administrative claimants are more worthy of the remaining assets.
The fee application submitted by applicant states that applicant expended approximately 69 hours on leasehold issues and landlord litigation. This entailed all aspects of dealing with counsel for seven landlords at six campuses in three states, preparing debtor's motion for extension of time within which to assume or reject executory real property contracts, responding to landlords' opposition, and attending a hearing on the motion. A close review of the time sheets indicates however, that a total of 127 hours[3] were incurred relating to real property lease issues. This is broken down to 64.6 hours at $175 an hour, and 62.4 hours at $100 an hour for total fees of $17,545. Accordingly, this court shall disallow $17,545 of the total fees requested by applicant. Taking into consideration the retainer of $25,000 it received on September 1, 1989, this court will allow applicant $12,961.50 in payment of Chapter 11 fees for a total fee award of $37,961.50. In addition, this court will allow reimbursement of expenses totalling $2,921.64 in representing Muir during its Chapter 11 proceeding. Further, the request for compensation of $3,089.50 and reimbursement of expenses totalling $70.40 in representing the debtor during its Chapter 7 proceeding is allowed as prayed.
CONCLUSION
This Memorandum Decision constitutes findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052. Counsel for Muir is directed to file with this court an Order in conformance with this Memorandum Decision within ten (10) days from the date of entry hereof.
NOTES
[1] At the time of the fee application, it was uncertain whether there were sufficient assets available to pay the Chapter 11 administrative expenses.
[2] Applicant's time sheets indicate that research on voluntary conversion started on October 31, 1989; that a conference was held on November 1, 1989 to discuss conversion; and that a meeting took place with a potential trustee in early November 1989. Further, applicant drafted an ex parte motion for conversion and proposed order on November 6, 1989.
[3] Many of the services were lumped together into a single time entry making it difficult for the court to determine the actual time spent on the lease issue, as opposed to other issues. Where lumping occurred, the court included the complete time entry in his calculation of total hours incurred on the lease issue. Each type of service is required to be listed with the corresponding specific time allotment, otherwise, the court would be unable to determine the reasonableness of a specific task. Services which have been lumped together may be disallowed. In re Wildman, 72 B.R. 700, 709 (Bankr.N.D.Ill.1987).
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-1111
MICHAEL KEITH RIVERS,
Plaintiff - Appellant,
versus
AVIS CONSTRUCTION COMPANY, INCORPORATED; EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION;
COMMONWEALTH OF VIRGINIA, Department of Labor
and Industry; THE DEPARTMENT FOR RIGHTS OF
VIRGINIANS WITH DISABILITIES,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, District Judge.
(CA-01-749-7)
Submitted: March 21, 2002 Decided: March 28, 2002
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael Keith Rivers, Appellant Pro Se. Linda Davis Frith, FRITH,
ANDERSON & PEAKE, Roanoke, Virginia; Caren Ilene Friedman, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C.; Catherine F.
Hutchins, Assistant Attorney General, John P. Josephs, Jr., OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Keith Rivers appeals the district court’s order
dismissing his complaint alleging a violation of the Americans with
Disabilities Act, see 42 U.S.C.A. §§ 12101-12213 (West 1995 & Supp.
2001), by his employer, Avis Construction, and negligence on the
part of the remaining Appellees in investigating his claims. We
have reviewed the record and the district court’s opinion and find
no reversible error. Accordingly, we affirm on the reasoning of
the district court. See Rivers v. Avis Construction Co., CA-01-
749-1 (W.D. Va. Jan. 10, 2002). Additionally, we deny Rivers’
motions to subpoena all parties involved and for production of
documents. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
2
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163 F.3d 466
160 L.R.R.M. (BNA) 2133, 137 Lab.Cas. P 10,331
David M. LYONS and United Transportation Union, Plaintiffs-Appellants,v.NORFOLK & WESTERN RAILWAY COMPANY, Defendant-Appellee.
No. 98-2347.
United States Court of Appeals,Seventh Circuit.
Argued Dec. 9, 1998.Decided Jan. 4, 1999.
Kevin C. Brodar (argued), Cleveland, OH, for Plaintiffs-Appellants.
James S. Whitehead (argued), Sidley & Austin, Chicago, IL, for Defendant-Appellee.
Before FLAUM, EASTERBROOK and DIANE P. WOOD, Circuit Judges.
FLAUM, Circuit Judge.
1
This case presents us with David M. Lyons's ("Lyons") and United Transportation Union's ("UTU") appeal of the district court's grant of summary judgment to defendant Norfolk & Western Railway Company ("NW") (erroneously referred to as Norfolk Southern Railway in the complaint). Lyons and UTU sought to overturn an arbitration panel's decision upholding NW's decision to fire Lyons for allegedly failing to comply with a drug test administered by the company. Noting the extremely high level of deference federal courts pay to railroad arbitration boards, the district court found no basis to overturn the panel's decision, and granted NW's motion for summary judgment. For the reasons set out below, we affirm the district court's decision.
FACTS
2
Lyons was hired by NW as a locomotive engineer trainee in April of 1993. He was a member of the UTU, which was his duly authorized labor representative in all matters with NW. On November 4, 1995, Lyons reported for work as part of a crew operating between Peru, Indiana and Decatur, Illinois. Upon reporting, he and the other members of the train crew were informed that they had been selected for random drug and alcohol testing under NW's drug testing program. NW implemented its program in accordance with regulations promulgated by the United States Department of Transportation and the Federal Railroad Administration (FRA). 49 C.F.R. § 219.1 et seq.
3
At 9:30 a.m., Lyons and the other two crew members informed the test technician that they were unable to provide a urine sample. Although the exact time is disputed by the parties, later in the morning Lyons and the other crew members were given a second opportunity to provide a sample. UTU contends that this opportunity came at 11:40 a.m.; NW claims the test was administered at 10:40 a.m. At this point, Lyons was able to urinate, but submitted a sample of insufficient volume, which was discarded by the technician.
4
According to then-existing FRA regulations (which have subsequently been modified), because Lyons's sample was insufficient, he was to be afforded two hours to produce an adequate sample. Failure to produce at that point would result in his dismissal unless the failure was found to be medically excusable. 49 C.F.R. § 40.25(f) (10)(iv) (1995). Again, the parties dispute what happened next. UTU argues that after Lyons provided the insufficient sample at 11:40 a.m., he was removed from service at 12:15 p.m. NW argues, and the arbitrator agreed, that Lyons was sent home at 1:30 p.m.1 Two days later, Lyons was examined by a doctor, who informed NW that he knew of no medical explanation why Lyons could not provide a urine sample.
5
On November 17, 1995, an Assistant Superintendent at NW informed Lyons that he was dismissed from service with NW because he "failed to follow instructions in that [he] refused to cooperate with FRA Subpart G testing." UTU, acting on behalf of Lyons, exhausted its internal appeals under the collective bargaining agreement to no avail.
6
At this point, UTU pressed its case through two channels: it sent a letter asking the FRA to investigate whether the test had been properly administered and it appealed the Lyons firing to a Public Law Board ("PLB" or "Board") (the railroad industry equivalent of an arbitration panel) pursuant to its collective bargaining agreement ("CBA") with NW. Under the CBA's terms, the PLB could reverse the dismissal if it was found to be "unjust." The FRA and PLB proceeded on completely separate tracks.
7
The PLB was made up of a NW representative, a UTU representative and a mutually agreed-upon neutral chairman, Robert Richter. Both sides filed written briefs with the PLB. UTU sought to reinstate Lyons, and to clear from his record the alleged failure to follow the drug testing instructions. The PLB's task was to determine whether the dismissal was "unjust"; if so, Lyons was entitled to reinstatement.
8
After reviewing the parties' submissions, the PLB ruled in favor of NW on December 30, 1996 by a two to one vote; UTU's representative dissented. The PLB found that it was not required to determine whether NW had complied with the FRA regulations. Instead, it upheld the dismissal because "after 4 hours [Lyons] was unable to provide a sufficient urine sample for testing," and thus NW's actions were not unjust.
9
On March 7, 1997, the FRA completed its informal investigation of the Lyons drug test and concluded that NW had failed to provide him with the requisite two hours. It noted, however, that because of the "nature and complexity of the times, events, and sequences in this matter, FRA will not assess a civil penalty against the railroad." It bears noting that such a penalty was the only action the FRA could take against NW--it could not order NW to reinstate Lyons.
10
Subsequent to the PLB ruling, Lyons and UTU filed a Petition for Review in the District Court asking that it set aside the PLB award. The parties submitted cross-motions for summary judgment. Judge Miller granted NW's motion and denied that of Lyons and UTU on April 27, 1998. This appeal followed.
ANALYSIS
11
We review the district court's grant of summary judgment to NW de novo. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Independent Construction Equipment Builders Union v. Hyster Yale Materials Handling, Inc., 83 F.3d 930, 932 (7th Cir.1996). However, we, like the district court, are obliged to give the findings of the PLB an extraordinary amount of deference. The scope of judicial review of a PLB decision is "among the narrowest known to the law." Kulavic v. Chicago & Illinois Midland Ry. Co., 1 F.3d 507, 513 (7th Cir.1993) quoting Union Pacific R.R. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978).
12
Although, as UTU points out, "narrow review is not the equivalent of no review at all," Miller v. Chicago & North Western Transp. Co., 647 F.Supp. 1432, 1438 (N.D.Ill.1986), it is well established that "judicial review of Board orders is limited to three specific grounds: (1) failure of the Board to comply with the requirements of the Railway Labor Act; (2) failure of the Board to confine itself to matters within the scope of its jurisdiction; and (3) fraud or corruption." Kulavic, 1 F.3d at 513; 45 U.S.C. § 153 First (q).
13
UTU does not allege either failure of the Board to comply with the RLA's requirements or fraud or corruption. It argues that the PLB exceeded its jurisdiction because its decision did not draw its essence from the CBA and lacked a rational foundation. To remain within the scope of its jurisdiction, the essence of the PLB's decision must be contained in the terms of the agreement between the union and the employer. UTU v. Soo Line R.R., 457 F.2d 285, 288 (7th Cir.1972). In other words, the PLB's decision must be based on the provisions of the CBA. Id. We have held that "a party can complain if the arbitrators don't interpret the contract ... [or] if they disregard the contract." Hill v. Norfolk & Western Ry. Co., 814 F.2d 1192, 1195 (7th Cir.1987).
14
Appellant argues that the FRA regulations were implicitly part of the CBA and the PLB simply could not ignore them. UTU's contention is that by failing to base its re-instatement decision on FRA standards, the PLB exceeded its jurisdiction. UTU analogizes this case to Wilson v. Chicago & North Western Transp. Co., 728 F.2d 963 (7th Cir.1984), contending that in Wilson, the court set aside a PLB decision because it was at odds with the Railway Labor Act.
15
Far from strengthening UTU's argument, close inspection of Wilson points out the major defect in UTU's case. The Wilson court set aside the PLB's ruling because it had unambiguously ignored the written terms of the contract between the union and the railroad. 728 F.2d at 966. Under the express terms of that contract, the railroad was specifically obligated to hold hearings and investigations before it dismissed an employee. Id. There, the railroad admittedly failed to meet those obligations, but the PLB ignored the deficiencies in arriving at a "novel and innovative" award to the railroad. Id. The court ruled that the PLB had wrongly "depart[ed] from the agreement's clear and unambiguous provisions ... [and] alter[ed] the existing agreement by ignoring the [relevant] provisions," thus unlawfully exceeding the boundaries of its authority. Id. at 967.
16
What Wilson makes clear is that the focus for a reviewing court is not whether a PLB's decision varied with federal standards, see also Dingwall v. Metro-North Commuter R.R., 1990 WL 129189 at * 3 (S.D.N.Y.1990), but rather whether it ignored "clear and unambiguous" contract provisions. UTU points to nothing in its contract with NW that the PLB failed to interpret. UTU cannot argue that the contract clearly incorporates the express terms of the FRA or requires the PLB to interpret it because nothing in the contract even suggests this.2 Similarly, it cannot argue that the contract required the PLB to wait for, and defer to, the outcome of the FRA's informal investigation. The PLB's sole contractual responsibility was to determine whether Lyons' termination was "unjust" in light of the facts of November 4, 1995.
17
The PLB found that Lyons was dismissed for failing to follow instructions by not providing a urine sample when ordered to do so, and that it was not unjust for NW to fire him for this offense. It is not for us to decide if this conclusion was correct; it is sufficient for us to say that in arriving at this conclusion, the PLB was interpreting the contractual term "unjust." Once we reach this point, our analysis is at an end, because:
18
[a]s we have said too many times to want to repeat again, the question for a federal court asked to set aside an arbitration award ... is not whether the arbitrator erred in interpreting the contract; it is not whether they clearly erred in interpreting the contract; it is not whether they grossly erred in interpreting the contract; it is whether they interpreted the contract. If they did, their interpretation is conclusive.
19
Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1196 (7th Cir.1987).
20
Because we find that the PLB interpreted the contract, its interpretation is conclusive. Accordingly, the judgment of the district court in favor of NW is
21
AFFIRMED.
1
We recite these facts solely for informational purposes. We have no authority to review the PLB's findings of fact. Jasper Cabinet Co. v. United Steelworkers of America, 77 F.3d 1025, 1028 (7th Cir.1996); Bates v. Baltimore & Ohio R.R., 9 F.3d 29, 32 (7th Cir.1993)
2
UTU does not argue that the FRA regulations were intended by the Agency or Congress to have preemptive effect and supplant any other standard of review--such as whether the termination was "unjust"--agreed to in a CBA
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144 F.Supp.2d 1103 (2001)
David W. FUGET, Jr., Plaintiff,
v.
Larry G. MASSANARI[1], Acting Commissioner of Social Security, Defendant.
No. 3-00-CV-90117.
United States District Court, S.D. Iowa, Davenport Division.
May 3, 2001.
*1104 Janice E. Rutledge, Iowa City, IA, for Plaintiff.
William C. Purdy, Assistant United States Attorney, Des Moines, IA, for Defendant.
ORDER
PRATT, District Judge.
Plaintiff, David W. Fuget, Jr., filed a Complaint in this Court on July 12, 2000, seeking review of the Commissioner's decision to deny his claim for Social Security benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g). For the reasons set out herein, the decision of the Commissioner is reversed.
BACKGROUND
Plaintiff filed the application sub judice on September 30, 1996[2]. Tr. at 226-40. After the application was denied initially and upon reconsideration, Plaintiff requested a hearing before an Administrative Law Judge. A hearing was held before Administrative Law Judge John P. Johnson (ALJ) on November 17, 1998. Tr. at 56-82. The ALJ issued a Notice of Decision Unfavorable February 8, 1999. Tr. at 11-30. The ALJ's decision was affirmed by the Appeals Council of the Social Security Administration on May 26, 2000. Tr. at 6-8. Plaintiff filed his Complaint in this Court on July 12, 2000. On May 1, 2001, after Plaintiff's brief had been filed, the Commissioner moved to remand the case. However, as explained below, because substantial evidence supports a reversal with an award of benefits, the motion to remand is denied.
EVIDENCE BEFORE THE ALJ
At the time of the hearing, Plaintiff was an 11 year old child. Tr. at 61. The ALJ found that Plaintiff has never engaged in substantial gainful activity and that his severe impairments are attention deficit disorder without hyperactivity, developmental motor coordination deficits and visual motor deficits, low average to borderline intelligence, obesity, and enuresis. Tr. at 29. The ALJ found, that none of Plaintiff's impairments, or combination thereof, meet, medically or functionally equal an impairment listed in Appendix 1 of Subpart P, Regulations No. 4 (the listings). It was the ALJ's decision, therefore, that Plaintiff was not disabled nor entitled to the benefits for which he had applied. Tr. at 30.
Plaintiff's early childhood medical records are found in the transcript from page 125 to 154. On November 8, 1990, when Plaintiff was nearly four years old., he *1105 diagnosed with exogenous obesity. It was noted that he was at the 75th percentile for height and at the 95th percentile for weight. Tr. at 143. On September 4, 1992, Melinda Smith, M.D. saw Plaintiff for an evaluation of his obesity. Plaintiff's mother told the doctor that at lunch Plaintiff eats three to four times the amount of food that the other children eat and that he becomes irritated if food is denied. She told the doctor that Plaintiff engages in normal activity if pushed, but left to his own, he will choose to watch television or do other quiet activities. Commenting on Plaintiff's intellectual development, the doctor noted that Plaintiff was unable to count to 10, recite the alphabet, recognize letters or numbers or write his name. However, Plaintiff's parents reported that he had done well in preschool and was currently in kindergarten. Tr. at 148. On January 25, 1994, Plaintiff's parents spoke to Jon Fusselman, M.D. regarding Plaintiff's poor attention span and performance in school. Dr. Fusselman diagnosed possible attention deficit disorder and prescribed a trial of Ritalin. On February 1, 1994, Dr. Fusselman noted that Plaintiff was doing much better in school and that he had no apparent side effects from the Ritalin. Tr. at 154.
Plaintiff underwent a psychological evaluation in March of 1994. Tr. at 156-63. Plaintiff was administered portions of the Wechsler Intelligence Scale for Children Third Edition. Tr. at 160. This test showed a verbal IQ of 94, a performance IQ of 81, and a full scale IQ of 87. Tr. at 157. Subtests of the Woodcock-Johnson Tests of Achievement Revised showed Plaintiff's achievement to be commensurate with his low average to average intellectual abilities. It was noted that fine and gross motor coordination seemed to be somewhat difficult for Plaintiff. The psychologist wrote:
David is a very friendly, happy child who engages willingly in conversation. During testing, for the most part, David appeared to try to do his best, though at times it was difficult to keep him focused, possibly due to his enthusiasm about conversing. David's first grade teacher, Pat Wilske, indicates that David can be somewhat "spacey" at times, though his responses to classroom discussion are generally appropriate. Mrs. Wilske indicates that David's main problem appears to be that he is clumsy due to being overweight. He at times is picked on by other students due to his weight; however, David appears to take it all in stride. David's hygiene needs improvement.
Behavior rating scales completed by Plaintiff's teacher and by his mother indicated that conduct problems and hyperactivity were more than two standard deviations above the mean. Tr. at 161.
A report of Plaintiff's level of educational performance was written on March 16, 1995. Tr. at 169-71. Plaintiff qualified for services as a learning disabled student in the areas of reading, written language and math. Tr. at 170. Under the heading "Study Skills" the following was written: "David appears to want to do well in his second grade class. He works very hard. If he gets off task for a little while, it is easy to get him back on task by saying, `David, we need to be doing ...' He is a very pleasant student to have in class. He has difficulty with fine motor skills which has direct implications for math and written expression." Tr. at 171.
On December 19, 1995, Plaintiff was seen at the University of Iowa Pediatric Learning/Attention Disorders Clinic for a psychological evaluation. Tr. at 196-201. Plaintiff was still taking Ritalin and was still receiving services for learning disabilities. Tr. at 196. Two of Plaintiff's teachers and Plaintiff's parents completed pediatric behavior scales. Significant concerns *1106 were noted regarding inappropriate social behaviors, arousal, coordination, comprehension, and school performance. The parents noted many more behavioral concerns. Tr. at 198. Plaintiff continued to be overweight, continuing to eat large amounts of food. His parents noted that he frequently sneaks additional food and that he sometimes vomits after eating. Continued problems with enuresis were also noted. Tr. at 199. At the conclusion of the report, the following diagnoses were listed: Attention deficit disorder without hyperactivity; mixed developmental disorder; and, developmental motor coordination disorder. Tr. at 200.
An Individualized Educational Program was written on February 28, 1997, when Plaintiff was 11 years old and in the fourth grade. Tr. at 263-77. The special classroom teacher reported that Plaintiff was reading independently at the second grade level. It was also reported that Plaintiff was very slow with fine motor movements which hampered the amount of writing that he is able to do. It was noted that Plaintiff was working on cursive writing and that his writing had improved. Plaintiff was spelling at a third grade level. The teacher wrote: "In math class David still needs to master the basic addition, subtraction, multiplication, and division facts. He has a very difficult time maintaining his concentration during five minute timed tests." Tr. at 264. The teacher wrote: "David is the kindest and friendliest student in my classroom. He is quick to forgive other students." The regular classroom teacher reported that Plaintiff was achieving below average in language arts, science and social studies. The teacher said that the work was very difficult for Plaintiff and that he has "much difficulty paying attention and concentrating. He gets very little work completed during class time without constant reminders." This teacher also noted that Plaintiff interacted well, enjoyed being at school, was polite, happy and seemed to have a good self-concept. Tr. at 265. On a School Activities Questionnaire dated January 9, 1998, the special education teacher wrote that Plaintiff was not coming to school clean and that he showers at school so that he will not be teased by his peers about body odor. Tr. at 283.
On September 9, 1997, Plaintiff was seen at Muscatine General Hospital after having eaten 18 Ex-Lax tablets before school. Plaintiff said that he took them because he had a stomach ache. Tr. at 317.
On October 17, 1997, Plaintiff's treating psychiatrist, James Yeltatzie, M.D. wrote a report for Disability Determination Services. Plaintiff was 10 years old and in the fifth grade with a diagnosis of attention deficit hyperactive disorder and borderline IQ. In addition, the doctor noted possible oppositional defiant features but not enough to meet the criteria for diagnosis. Plaintiff's medication was Ritalin with fair response to treatment and poor prognosis. The doctor wrote:
David has a long history of behavior and cognitive limitations. His cognitive functioning is very concrete. He has significant problems with Attention Deficit disorder as well as prognitive (sic) impairments secondary to his borderline to low IQ. At times he is impulsive, moody and can be labile. His interactions with others, personal skills and behavioral skills is severely impaired. He is so disinhibited, very gullible, susceptible and prone to be taken advantage of by other people. In communicating, he has problems in being able to express his feelings, thoughts and needs.
The doctor noted that Plaintiff's pace is slow and deliberate and that he must have very simple tasks in order to perform. The doctor said that Plaintiff's ability to concentrate was impaired and that he cannot logically follow from A to B to C. Tr. at *1107 319. The doctor concluded his report: "His difficulties are chronic and will be lifelong. His abilities to function on a cognitive level will be impaired and I do not see him as being someone who will be able to be gainfully employed in his adult life. He will require sheltered living as well as sheltered work position." Tr. at 320.
Plaintiff was seen for a compete physical at the Muscatine Health Center by R. Boutros, M.D. on February 2, 1998. Tr. at 326-28. It was noted that Plaintiff had been previously seen at the University of Iowa's endocrinology clinic and had been placed on their diet. Nevertheless, Plaintiff continued to gain weight. Plaintiff's father reported that he fixes a plate in the afternoon but that the child goes to the refrigerator and eats what he wants to. Plaintiff's father said that he locks some food in the freezer. It was noted that Plaintiff's weight was above the 95th percentile at 221 pounds. Tr. at 326. The doctor concluded his report by noting that it may be necessary to obtain the services of a psychologist. Tr. at 327.
Another Individual Education Program Review was written on February 2, 1998, when Plaintiff was 12 years old and in the fifth grade. Tr. at 292-307. It was noted that in the area of math, Plaintiff was functioning at the late fourth grade level and at the late third grade level in the area of written language. The author of the report wrote: "David's work pace is slow and labored, however, when given time to complete a task, he is able to perform well. David's level of thinking is very concrete; he often does not understand sarcasm and is unable to draw inferences." Tr. at 295. Plaintiff's regular classroom teacher reported that verbally Plaintiff demonstrates an average to above average understanding of social studies and science, but that he is able to complete little written work, and performs in the low average to average range on tests. It was noted that listening was Plaintiff major source of learning. Although assignments were rarely completed, "[h]e does participate in class discussion often displaying a real knowledge of the topic." Tr. at 296. This teacher noted problems with personal hygiene but concluded her report: "David is an unusually kind, thoughtful child, quite forgiving of others. He has a good sense of humor." The special classroom teacher wrote that in the area of language arts, Plaintiff was functioning at the late third grade level. It was noted that Plaintiff was a "reluctant writer" and that: "He has a lot to share but would rather say it than write it." In math, Plaintiff was functioning at the beginning fourth grade level. Tr. at 297. Plaintiff had not yet mastered the basic addition, subtraction, multiplication or division skills. Tr. at 297-98.
Plaintiff was seen at the University of Iowa on April 15, 1998. The following was written under the heading Medical History:
David Fuget is an 11 4/12 year old boy with obesity (he weighed 112 lbs at age 10½ years) who is seen in Pediatric Weight Management Clinic on April 15, 1998. He started gaining weight excessively at age 3 to 4 years. He has been followed for obesity since 1992 but has not been seen in clinic since January, 1993. He is now eating more than ever, sneaking food behind people's backs. He finds left overs and has broken into a locked freezer to get snacks. He eats food from other children's trays at school. He will not exercise. He watches television and Nintendo from 4 to 6 P.M. on week days and is constantly in front of the television. He does not like to play outdoors. He still wets the bed at night 2 or 3 times per week. He has a regular bowel movement once a day. No changes are seen in his hair. He sleeps well 8 to 10 hours per night. He denies headaches and vision changes. *1108 He has no muscle aches, but complains of knee pain. He has shortness of breath after climbing one flight of stairs. Fifty per cent of his diet consists of fried foods. He has heartburn. He snores at night. He has low energy during the day but is not sleepy.
On physical examination, Plaintiff's weight was 103.5 kg, which was noted to be greater than the 95th percentile, and his height was 158.85 cm, also greater than the 95th percentile. Plaintiff's abdomen was described as morbidly obese. Diagnoses were exogenous obesity, borderline hypertension, and shortness of breath with minimal physical activity. Tr. at 329. Recommendations were made for dietary, behavioral, and exercise therapy. An admission to the Hospital School was considered. Tr. at 330.
In an undated letter addressed to Plaintiff's father, Robert P. Hoffman, M.D., of the Children's Hospital at the University of Iowa, stated that Plaintiff had evidence of sleep apnea during which he stops breathing while sleeping. Dr. Hoffman recommended tonsillectomy and adenoidectomy. Tr. at 341.
Plaintiff was admitted to the University of Iowa Hospital School from August 18 to 27, 1998. Tr. at 342-54. Diagnoses were: Attention-deficit disorder without hyperactivity; mixed developmental disorder; developmental motor coordination deficits; visual motor deficits; obesity; enuresis; encopresis improved. Under the heading History, in addition to what has been related elsewhere, it was noted that on January 15, 1997, Plaintiff had walked outside without shoes and experienced a severe frostbite to the bottom of both feet which required surgical debridement. Tr. at 342. On review of systems, no hyperactivity was reported, but Plaintiff's parents spoke of food seeking behavior at home and an unwillingness to participate in physical activity. During the hospitalization, Plaintiff's weight decreased from 111.1 kg to 107 kg which was described as a significant decrease. Tr. at 343. During the hospitalization, Plaintiff was seen by psychologist John Wadsworth, Ph.D. Tr. at 346-48. Dr. Wadsworth observed Plaintiff when he was taking Ritalin as well as on days when the medication was discontinued. When not receiving the medication, Plaintiff frequently appeared to have difficulty maintaining focus to academic and exercise activities. When receiving the medication, however, Plaintiff was noted to have much less difficulty with attention wondering. Dr. Wadsworth stated that Plaintiff is a very likeable young man who will need considerable adult support to make the lifestyle changes which will improve his quality of life. Tr. at 347. Addressing the issue of why Plaintiff overeats, Dr. Wadsworth wrote:
[I]n part, David's use of food as an activity results from his inability to develop and implement alternative activities in which he has a sense of competency. Food provides immediate gratification, especially when David is acting impulsively. It is difficult for David to develop alternative activities to food, which he can independently implement and meet his needs for satisfaction.
Tr. at 347-48. Plaintiff was also seen in occupational therapy to evaluate and treat his upper extremity and fine motor skills. Tr. at 348. After seven 30-45 minute sessions the therapist's impression was: "Dave demonstrates a significant delay in visual perception, visual motor, and motor proficiency skills. David's movement patterns and delays in visual perception, visual motor, and motor proficiency are affecting his handwriting, coordination, and play activities. These delays in turn are affecting his social interactions and self esteem." Tr. at 350. The physical therapy report states that Plaintiff participated in daily *1109 aerobic exercises, such as exercise biking, treadmill walking, walking outside, basketball, racquetball, tag games, and race games, during his hospital stay. Tr. at 351.
On October 20, 1998, University of Iowa Senior Occupational Therapist Karen Blewer, OTR/L, in a letter to Plaintiff's counsel, wrote that when Plaintiff was seen in August of 1998, he had scored two standard deviations below average on the Developmental Test of Visual Motor Integration and .96 deviations below average on the Test of Visual Perceptual Skills. The hand writing test was not a standard test, and a standard deviation could not be given on the Bruininks-Osteretsky Test of Motor Proficiency because not all the subtests had been given. Tr. at 355.
On October 30, 1998, Dr. Yeltatzie wrote:
Young David Fuget, Jr., continues to be followed through this office for his Attention Deficit disorder with Hyperactivity and his Organic Personality disorder. He has baseline mental retardation for which he is also being followed. David continues to take Ritalin for his disorders to decrease his hyperactivity and impulsive behavior and to improve his time on task and his abilities to stay focused and stay seated in his chair. David has benefitted from the medication, but this is a life long problem for David and he will always be requiring some form of medication to assist him with his mental disorders. He continues to be as risk for being taken advantage of due to his gullibility, naivete, and blind trust in others and his impulsive behavior with poor insight and judgement.
Tr. at 356.
On November 3, 1998, University of Iowa psychologist Scott D. Lindgren, Ph.D. administered, among other tests, the Wechsler Intelligence Scale for Children Third Edition (WISC-III). Tr. at 358. The psychologist wrote:
Intellectual ability was assessed using the WISC-III, and David demonstrated verbal skills in the average range, with relatively little scatter among subtests (scaled scores of 9-10). In contrast, all performance subtests administered were significantly below average, with scaled scores in the 4 to 5 range, which was suggestive of mild mental retardation for nonverbal processing. This finding of higher verbal and lower nonverbal skills is consistent with a nonverbal learning disorder. The extent of David's nonverbal deficits was not clear from earlier testing carried out in 1994, at which time his nonverbal intellectual abilities were closer to average. It appears, however, that as he has grown older, he has been unable to make normal progress in developing skills in motor coordination, fine-motor speed, and visual perception.
Tr. at 358. In the conclusion of his report, the psychologist wrote: "David is a very likeable young man with verbal abilities that are within the average range. In contrast, his perceptual-motor and nonverbal reasoning skills are significantly below average, currently falling in the range suggestive of mild mental retardation for nonverbal functions." The doctor noted that Plaintiff was, at the time of the evaluation, functioning at the third to early fourth-grade level whereas he was actually in the sixth grade (Tr. at 357).
ADMINISTRATIVE DECISION
In his decision, dated February 8, 1999, the ALJ, following the three step sequential evaluation prescribed for childhood disability claims, found that Plaintiff's has never engaged in substantial gainful activity. At the second step, the ALJ found that the severe impairments in this case are attention deficit disorder without hyperactivity, *1110 developmental motor coordination deficits and visual motor deficits, low average to borderline intelligence, obesity, and enuresis. Tr. at 29. At the third step, the ALJ found that Plaintiff's impairments do not meet or medically or functionally equal a listed impairment, and that Plaintiff is, therefore, not disabled. Tr. at 30.
DISCUSSION
The scope of this Court's review is whether the decision of the Secretary in denying disability benefits is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g). See Lorenzen v. Chater, 71 F.3d 316, 318 (8th Cir.1995). Substantial evidence is less than a preponderance, but enough so that a reasonable mind might accept it as adequate to support the conclusion. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.1996). We must consider both evidence that supports the Secretary's decision and that which detracts from it, but the denial of benefits shall not be overturned merely because substantial evidence exists in the record to support a contrary decision. Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir.1996) (citations omitted). When evaluating contradictory evidence, if two inconsistent positions are possible and one represents the Secretary's findings, this Court must affirm. Orrick v. Sullivan, 966 F.2d 368, 371 (8th Cir.1992) (citation omitted).
Fenton v. Apfel, 149 F.3d 907, 910-11 (8th Cir.1998).
In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record. Wilcutts v. Apfel, 143 F.3d 1134, 1136-37 (8th Cir.1998) citing Brinker v. Weinberger, 522 F.2d 13, 16 (8th Cir. 1975).
The Personal Responsibility and Work Opportunity Act of 1996 became effective on August 22, 1996. See Pub.L. No. 104-193, 110 Stat. 2105 § 211(b)(2) (1996). This legislation defines childhood disability as follows:
An individual under the age of 18 shall be considered disabled for the purposes of this subchapter if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(C)(i).
20 C.F.R. § 416.924(a) sets out a three step sequential evaluation process for childhood disability claims. At the first step, it is determined whether or not the claimant is working. If the claimant is not working, severe impairments are identified at step two. At step three, the severe impairments are compared to the childhood listings in Appendix 1 of 20 C.F.R. Pt. 404, Subpt. P. If the impairment(s) meet or equal a listing, the child is disabled. If not, then the ALJ must find the child not disabled. In Harper v. Apfel, 2000 WL 1369507 at *3 (S.D.Ala.2000), the Court wrote: "The current standard is more stringent than that employed prior to the effective date of Pub.L. No. 104-193, given Congress' decision, as stated in the House conference report, to confine the definition of childhood disability to the first three steps of the sequential evaluation process." Harper then quotes from 142 Cong.Rec. H8829, 8913 (1996 WL 428614), H.R.Conf.Rep. No. 104-725 (July 30, 1996):
The conferees intend that only needy children with severe disabilities be eligible for SSI, and the Listing of Impairments and other current disability determination regulations as modified by these provisions properly reflect the severity of disability contemplated by the *1111 new statutory definition.... The conferees are also aware that SSA uses the term "severe" to often mean "other than minor" in an initial screening procedure for disability determination and in other places. The conferees, however, use the term "severe" in its common sense meaning.
In order to be found disabled, a child must meet, medically equal or functionally equal a listed impairment. In the opinion of the Court, the ALJ's finding that Plaintiffs intelligence is in the low average to borderline range is not supported by substantial evidence in the record as a whole. While it is true that the 1994 testing showed that Plaintiff had a verbal IQ of 94, a performance IQ, of 81, and a full scale IQ of 87, the 1998 testing showed that his performance IQ was in the mild mental retardation range. The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), at page 40, states that IQ scores between 50-55 and approximately 70 fall within the mild mental retardation range. Dr. Lindgren's assessment of Plaintiff's intellectual capacity is consistent with the rest of the medical and educational evidence in the record, including Dr. Yeltatzie's testimony that Plaintiff has "baseline mental retardation" and an organic personality disorder.
In Muncy v. Apfel, 247 F.3d 728 (8th Cir.2001), the Court remanded the case to resolve a twenty-five point difference in IQ scores from tests several years apart. The Court wrote that mental retardation is not normally a condition that improves as an affected person ages. Id. at 734. Rather, continued the Court, absent evidence of a dramatic upswing in intellectual or adaptive functioning, or a challenge to the validity of the earlier scores, a person's IQ is presumed to be constant throughout his/her life. Id. at 734. In the case at bar, rather than seeing a dramatic upswing in Plaintiff's IQ, the opposite is true. Dr. Lindgren, who diagnosed mild mental retardation in the performance scale, explained that as Plaintiff had gotten older his nonverbal skills had markedly deteriorated. In the opinion of the Court, Dr. Lindgren's testimony is evidence of a change in Plaintiff's IQ, unfortunately, for the worse. Dr. Lindgren's testimony is consistent with the other evidence in the record including the testimony of Plaintiff's treating psychiatrist, Dr. Yeltatzie, that Plaintiff should not be seen as someone who will be able to function independently in adult life.
Section 112.05(D) of the listings is met when a claimant has a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant limitation of function.
Plaintiff's IQ, as evidenced by Dr. Lindgren's testing, clearly falls between the ranges of 60 through 70. In addition, the ALJ found, and the evidence supports, that Plaintiff has other severe mental and physical impairments which significantly affect his ability to function. These other severe impairments are attention deficit disorder, developmental motor coordination deficits and visual motor deficits, and obesity. Plaintiff, therefore meets the medical requirements of listing 112.05 and is entitled to the benefits for which he has applied. Because a remand to take additional evidence would only delay the receipt of benefits, an outright reversal is the appropriate remedy. Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir. 1984).
CONCLUSION
It is the holding of this Court that Commissioner's decision is not supported by substantial evidence on the record as a whole. The Court finds that the evidence in this record is transparently one sided against the Commissioner's decision. See *1112 Bradley v. Bowen, 660 F.Supp. 276, 279 (W.D.Ark.1987). Using the standards articulated in the congressional record cited above, it is the holding of this Court that Plaintiff's impairments are marked and severe "in [the] common sense meaning" of those words. Plaintiff has met that definition of disability from the date of his application. Substantial evidence on the record as a whole establishes that Plaintiff medically meets a listed impairment and that he is entitled to the benefits for which he applied. A remand to take additional evidence would only delay the receipt of benefits to which Plaintiff is entitled.
Defendant's motion to remand for additional evidentiary procedures is denied. This cause is remanded to the Commissioner for computation and payment of benefits. The judgment to be entered will trigger the running of the time in which to file an application for attorney's fees under 28 U.S.C. § 2412(d)(1)(B) (Equal Access to Justice Act). See Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). See also, McDannel v. Apfel, 78 F.Supp.2d 944 (S.D.Iowa 1999), and LR 54.2(b).
IT IS SO ORDERED.
NOTES
[1] Larry G. Massanari became the Acting Commissioner of Social Security on March 29, 2001. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure [Rule 43(c)(2) of the Federal Rules of Appellate Procedure], Larry G. Massanari should be substituted, therefore, for Commissioner Kenneth S. Apfel, or for Acting Commissioner William A. Halter as the defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
[2] Plaintiff filed a previous application for benefits which was heard by an ALJ and reviewed by the Appeals Council. Judicial review was not sought. The Court is without jurisdiction to review the prior application. Califano v. Sanders, 430 U.S. 99, 107-08, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).
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IN THE COURT OF APPEALS OF IOWA
No. 17-2084
Filed May 15, 2019
GABRIELLE BULMER and THOMAS BULMER,
Plaintiffs-Appellants,
vs.
UNITYPOINT HEALTH, a/k/a UNITYPOINT HEALTH-DES MOINES, a/k/a IOWA
HEALTH SYSTEM, a/k/a CENTRAL IOWA HEALTH SYSTEM, a/k/a CENTRAL
IOWA HOSPITAL CORPORATION, UPH IOWA LUTHERAN HOSPITAL; DES
MOINES ORTHOPAEDIC SURGEONS, P.C.; WESLEY SMIDT; and
UNIDENTIFIED JOHN DOES,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Porter, Judge.
Plaintiffs in a medical malpractice action appeal the grant of summary
judgment for the defendant providers. AFFIRMED.
Mark A. Critelli of Critelli Law Firm P.C., Urbandale, for appellants.
Jack Hilmes and Aaron J. Redinbaugh of Finley Law Firm, PC, Des Moines,
for appellees.
Considered by Potterfield, P.J., and Tabor and Bower, JJ
2
TABOR, Judge.
Gabrielle and Thomas Bulmer appeal the district court’s grant of summary
judgment on their medical malpractice action in favor of various medical
professionals and health-care entities.1 Specifically, they claim the court abused
its discretion in denying their request for more time to designate expert witnesses.
Because the Bulmers did not show good cause for an extension, we affirm.
I. Facts and Prior Proceedings
Gabrielle underwent a left hip replacement on November 7, 2014. She
alleges following the surgery, she suffered paralysis on her left side and “left foot
drop” due to sciatic nerve damage. Aiming to recover damages resulting from
those conditions, Gabrielle and her husband, Thomas, filed this malpractice suit
on November 4, 2016—three days before the statute-of-limitations deadline.2 The
defendants filed an answer on February 27, 2017. Accordingly, the Bulmers had
until August 26, 2017, to designate an expert witness. See Iowa Code
§ 668.11(1)(a) (2016) (setting 180-day deadline from answer for designating
expert witnesses).
While preparing her case, Gabrielle started a nerve-stimulation procedure
“to determine where the issue occurred with the surgery resulting in the paralysis
of the left lower extremity.” But Gabrielle was diagnosed with blood clots, which
1
For ease of reference, we refer to the various medical professionals and health-care
entities collectively as the defendants—they include: UnityPoint Health, a/k/a UnityPoint
Health-Des Moines, a/k/a Iowa Health System, a/k/a Central Iowa Health System, a/k/a
Central Iowa Hospital Corporation, UPH Iowa Lutheran Hospital; Des Moines Orthopaedic
Surgeons, P.C., Dr. Wesley Smidt; and unidentified John Does. Although initially named
as a defendant, The Iowa Clinic, P.C. was granted summary judgment in June 2017 and
is not a party to this appeal.
2
The petition sought damages for loss of consortium on behalf of Thomas.
3
prevented her from completing the procedure to identify “where the nick, tear, cut,
or whatever of the sciatic nerve occurred.” Due to Gabrielle’s nickel allergy, the
blood clots could not be removed using a stent and no plan was finalized to treat
the clots so that Gabrielle could complete the nerve-stimulation process to
determine causation.
In light of this uncertainty, on August 24, 2017, the Bulmers moved for an
extension of time to disclose their expert witnesses. The defendants resisted the
motion. At a September 20 hearing, the Bulmers claimed good cause existed for
the extension because they were unable to “do the proper analysis to find out
where this [injury] occurred” because of Gabrielle’s blood clots and nickel allergy.
Defense counsel argued the Bulmers could not show good cause because they
had failed to even designate a standard-of-care expert, which could have been
done without any further testing. The defense also noted the Bulmers did not
disclose to the court the identity of any experts with whom they were working to
finalize the opinion they sought on damage to her sciatic nerve.
The court concluded the Bulmers did not show good cause and summarily
denied their motion to extend the disclosure deadline. After that ruling, the
defendants sought summary judgment because the Bulmers had no expert
testimony to establish a prima facie case of medical malpractice. In their
resistance, the Bulmers noted their disagreement with the court’s rejection of their
motion to extend but acknowledged summary judgment was appropriate due to
their lack of designated experts. The court granted the defense motion for
summary judgment, and the Bulmers now appeal.
4
II. Scope and Standards of Review
We review rulings regarding pretrial deadlines for an abuse of discretion.
Hantsbarger v. Coffin, 501 N.W.2d 501, 506 (Iowa 1993). “A trial court has broad
discretion in ruling on such matters, and the exercise of that discretion will
ordinarily not be disturbed unless it was exercised on clearly untenable grounds or
to an extent clearly unreasonable.” Donovan v. State, 445 N.W.2d 763, 766 (Iowa
1989). We review summary judgment rulings for legal error. Seneca Waste Sols.
Inc. v. Sheafer Mfg., 791 N.W.2d 407, 410–11 (Iowa 2010). We view the record in
the light most favorable to the non-moving party. Robinson v. Allied Prop. & Cas.
Ins., 816 N.W.2d 398, 401 (Iowa 2012).
III. Analysis
The Bulmers object to the denial of their request for more time to disclose
expert witnesses, which precipitated the grant of summary judgment. They argue
the district court abused its discretion in not considering the complications from
Gabrielle’s blood clots and nickel allergy as good cause. Our legislature set the
statutory deadline at issue. Specifically, it states:
A party in a professional liability case brought against a
licensed professional pursuant to this chapter who intends to call an
expert witness of their own selection, shall certify to the court and all
other parties the expert’s name, qualifications and the purpose for
calling the expert within the following time period:
The plaintiff within one hundred eighty days of the defendant’s
answer unless the court for good cause not ex parte extends the time
of disclosure.
Iowa Code § 668.11(1)(a) (emphasis added).
5
Our supreme court has applied the good-cause definition for setting aside
a default judgment to section 668.11. Nedved v. Welch, 585 N.W.2d 238, 240
(Iowa 1998). Under this definition, good cause is a
sound, effective, truthful reason, something more than an excuse, a
plea, apology, extenuation, or some justification for the resulting
effect. The movant must show his [or her] failure to defend was not
due to his [or her] negligence or want of ordinary care or attention, or
to his [or her] carelessness or inattention. He [or she] must show
affirmatively he [or she] did intend to [act] and took steps to do so,
but because of some misunderstanding, accident, mistake or
excusable neglect failed to do so.
Id. (quoting Donovan, 445 N.W.2d at 766).
The Bulmers contend Gabrielle’s development of blood clots justifies
postponing the expert-witness disclosure because “[n]o reputable, ethical
physician would be willing to offer an expert opinion without a current, through
workup of [Gabrielle] especially in light of the physiological impediments: the
development of blood clots in her left extremity presented (added to the then
confirmed nickel allergy).”3 The defendants contend the Bulmers failed to preserve
error on this argument because it was never presented to or ruled upon by the
district court. See Meier, 641 N.W.2d at 537. To the extent the Bulmers assert
Gabrielle’s blood clots prevented an expert from forming an opinion regarding
3
In their reply brief, the Bulmers also note they pleaded res ispa loquiter in their petition
“which, by itself, presents good cause” for extending the expert witness deadline. The
defendants moved to strike this portion of the reply brief, and our supreme court ordered
the defendants’ motion to strike be considered with this appeal. The Bulmers’ opening
brief fails to mention res ispa loquiter as a basis for granting the motion to extend. “[A]n
issue cannot be asserted for the first time in a reply brief,” so we do not consider this claim
on appeal. See Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992). Even if Bulmers had
presented this argument in their opening brief, we could not consider it on appeal because
it was not raised in and decided by the district court. See Meier v. Senecaut, 641 N.W.2d
532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will decide them on
appeal.”).
6
causation due to the inability to complete the nerve-stimulation procedure, we find
error preserved. But to the extent the Bulmers assert on appeal they could not
secure any expert, including a standard-of-care expert, absent a full examination
of Gabrielle, we find error not preserved because they did not present that
argument to the district court.
On the preserved claim, we find no error in the court’s denial of the motion
to extend the deadline. When determining if good cause warrants an extension of
time under section 668.11, we consider: (1) the seriousness of the deviation from
the timeline; (2) the prejudice to the defendant from the delay; and (3) defense
counsel’s actions, if any, in encouraging plaintiff’s compliance. Hill v. McCartney,
590 N.W.2d 52, 55 (Iowa 1998) (citing Hantsbarger, 501 N.W.2d at 505–06). Here,
we cannot say the deviation is minor. Two days before the 180-day deadline, the
Bulmers asked for “a minimum extension” of six months to disclose a medical
expert. They did not estimate when Gabrielle’s blood clots would be resolved
allowing an expert to complete the nerve stimulation procedure. This open-ended
request for more time leaves the defendants in a legal limbo not contemplated by
the good-cause exception in section 668.11.
In addition, the resistance to the extension request shows the Bulmers
misled the defendants by previously suggesting an expert was already assessing
the case. Plus, defense counsel tried to contact the Bulmers’ counsel several
times to discuss the lack of progress in the case. Critically, the Bulmers failed to
support their assertion Gabrielle’s blood clots prevented an expert from forming an
opinion regarding causation or the standard of care. See Nedved, 585 N.W.2d at
240 (noting district court was not required to accept explanation for delay in
7
disclosure when it was unsupported by any evidence). The Bulmers also failed to
provide the names of any potential experts who could testify once Gabrielle’s blood
clots are eventually treated. See id. (noting the plaintiffs failed to even identify
potential experts). As a result, the district court did not abuse its discretion in
denying the motion. See Donovan, 445 N.W.2d at 766.
Without expert witnesses to establish a standard of care and violation of
that standard, the Bulmers are unable to demonstrate a prima facie case of
medical malpractice. See Hill, 590 N.W.2d at 56. Accordingly, we affirm the district
court’s grant of summary judgment.
AFFIRMED
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10 Cal.App.3d 628 (1970)
89 Cal. Rptr. 117
VENTURA REALTY COMPANY et al., Plaintiffs and Appellants,
v.
H.F. ROBINSON et al., Defendants and Respondents.
Docket No. 36163.
Court of Appeals of California, Second District, Division One.
August 19, 1970.
*630 COUNSEL
Harry T. Straitiff for Plaintiffs and Appellants.
Edwin M. Osborne, Acting County Counsel, for Defendants and Respondents.
OPINION
LILLIE, J.
Plaintiffs as taxpayers of Ventura County sued to enjoin members of the board of supervisors and the county executive from constructing a new county civic center complex, including a courthouse, on a site within the present corporate limits of the Town of San Buenaventura but outside the original boundaries of the town as established in 1866. Defendants demurred on two grounds "1. The complaint does not state facts sufficient to constitute a cause of action. 2. The court has no jurisdiction of the subject of the action for the reason that plaintiffs have failed to join an indispensable party."[1] The trial court took judicial notice of the fact that in 1968 the land on which the proposed site is located was annexed to the City of San Buenaventura, and sustained the demurrer on the ground "that the complaint fails to state a cause of action." Plaintiffs not having amended their pleading within 10 days, a judgment of dismissal was entered; they appeal from the judgment.
The Town of San Buenaventura was incorporated and established by the Legislature in 1866 (Cal. Stats. 1865-1866, ch. CCXVI, p. 216); it consisted of an area of one square mile. In 1872 the Legislature created the *631 County of Ventura and provided "The seat of justice shall be at the Town of San Buenaventura unless otherwise provided by law" (Cal. Stats. 1871-1872, ch. CCCLI, § 3, p. 484); the designation is now contained in section 23656, Government Code. When the Constitution of 1879 was adopted the Town of San Buenaventura, the boundaries of which were described in the Act of 1866, was the county seat of Ventura; it contained and still contains article XI, section 2: "No county seat shall be removed unless two-thirds of the qualified electors of the county, voting on the proposition at a general election, shall vote in favor of such removal...." From 1962 through 1964 the County of Ventura acquired four parcels of farm land (81.701 acres) at a place called Montalvo located on Victoria Avenue outside of the corporate limits of the Town of San Buenaventura and approximately five miles from the old courthouse; in 1968 the land was annexed to the city. The first paragraph of section 23600, Government Code, provides: "The county seats of the respective counties of the State, as fixed by law and designated in this article, are declared to be the county seats of the respective counties. In any case where a county seat is an incorporated city, it includes all territory heretofore or hereafter annexed thereto."[2] Section 24256, Government Code, reads: "Whenever the law specifies that an office or building shall be located at the county seat and an incorporated city has been designated as the county seat, the location of said office or building may be either within or in the immediate vicinity of the corporate limits of said city."
(1) The question is whether the board of supervisors may construct a courthouse and other county offices on a site presently within the corporate limits of the City of San Buenaventura but outside the city limits as they existed on the date the seat of justice of Ventura County was established at the Town of San Buenaventura (1872) without first securing the consent of two-thirds of the county's voters in an election as provided in article XI, section 2, California Constitution. Appellants claim it may not because it would constitute a removal of the county seat from San Buenaventura to Montalvo without approval of the electorate in violation of article XI, section 2; respondents counter that they propose no removal of the county seat from San Buenaventura because no designation of any other place as the county seat in Ventura County is contemplated, and that the county seat having been enlarged by annexation to include within its corporate limits the proposed building site at Montalvo (§ 23600, Gov. Code), they propose only a relocation of the courthouse within the City of San Buenaventura.
To support their position that when a city or town is designated as the *632 county seat the boundaries thereof as they then exist become the fixed boundaries of the county seat, and the subsequent inclusion of more territory does not enlarge the county seat, appellants rely on State v. Board of County Comrs. (1890) 44 Kan. 186 [24 P. 87]; Way v. Fox (1899) 109 Iowa 340 [80 N.W. 405, 407]; Matkin v. Marengo County (1903) 137 Ala. 155 [34 So. 171, 172]; and Board of Review of Covington County v. Merrill (1915) 193 Ala. 521 [68 So. 971, 974], and dictum in Jordan v. Board of Supervisors (1950) 99 Cal. App.2d 356 [221 P.2d 977]. In Jordan the court, acknowledging the out-of-state authorities, said somewhat gratuitously, at page 359: "When the county seat was thus located, it could not be changed by the proceedings incorporating the territory or by subsequent municipal action changing the boundaries of the incorporated city." Actually, unlike the instant case, Jordan dealt with a town unincorporated and without specific boundaries at the time of its designation as the county seat. The Board of Supervisors of Tulare County proposed the construction of a new courthouse on land outside of the present corporate limits of Visalia. The permanent location of Visalia as the county seat was established by election in 1853; at that time it was unincorporated with no definite or designated boundaries. Thus the trial court made a finding that the land upon which the new courthouse is to be erected is "at" Visalia. Citing Murdoch v. Klamath County Court (1912) 62 Ore. 483 [126 P. 6], the court held: "Since Visalia at the time of its selection as a county seat was not incorporated and had no definite or specific boundaries, the action of the electorate in designating Visalia as the county seat fixed its location at the place known as `Visalia.' The new building site can reasonably be said to be `at' Visalia and the proceedings by which the corporate limits of the city of Visalia were fixed and by which they may be changed from time to time do not change the location of the county seat.
"The erection and construction of a new courthouse on the site selected is not, in our opinion, a removal of the county seat within the meaning of the language used in article XI, section 2, of the California Constitution." (Pp. 360-361.)
There is a dearth of authority on the subject in this state, and Jordan is not really in point for the city involved therein differs in its corporate status from San Buenaventura; and the out-of-state cases so heavily relied on by appellants are of early vintage and in neither those nor Jordan did a statute such as section 23600, Government Code, exist. We find the law at that time aptly stated in one of appellants' own cases, Way v. Fox (1899) 109 Iowa 340 [80 N.W. 405]: "In the absence of statute, it seems to be well settled that, when a city or town is selected as the county seat, the boundaries of such city or town, as they then exist, become the boundaries of the county seat, and the subsequent inclusion of more territory does not *633 remove the county seat. See authorities last above cited [State v. Atchison County Comrs., 44 Kan. 186 (24 P. 87)]." (Italics added; 80 N.W. at p. 407.) Further, in most instances the requirement that offices be located at the county seats is contained in the Constitution of those states; this is not true of California.
In Murdoch v. Klamath County Court (1912) 62 Ore. 483 [126 P. 6], primarily relied on in Jordan, the county seat of Klamath County was established "at" Linkville which was incorporated five years later and its boundaries established. Subsequently the town of Klamath Falls was incorporated encompassing Linkville, and the incorporation of Linkville was repealed. Later Klamath Falls was enlarged by annexation. The county proposed to erect a new courthouse outside the original boundary of Linkville and outside of the original boundary of Klamath Falls but within the present corporate limits of Klamath Falls in the Hot Springs addition. The court held that the construction of the new courthouse did not constitute a removal of the county seat requiring an election. It relied upon the original designation of the county seat as being "at" Linkville and held that the term "at" meant "nearness" or "proximity" but did not limit the area of the county seat to the original corporate boundaries. Following Murdoch the California court in Jordan held that only proximity was required for location of the courthouse where the county seat was originally located at an unincorporated place. Thus dictum therein suggested a greater restriction where the place was incorporated when originally designated as the county seat.
In 1957 in a situation identical to the one before us, and prior to the enactment of the second sentence of the first paragraph of section 23600, Government Code, the Attorney General of California rendered an opinion that, without the necessity for election under article XI, section 2, the County of Santa Clara may construct certain public buildings on a site located within the present city limits of San Jose but outside the original boundaries as they existed on the date the county seat was established at San Jose (Ops. No. 57-12 [29 Ops.Cal.Atty.Gen. 42]). Discussing Jordan and the out-of-state authorities cited herein, the Attorney General pointed up the obvious effect of the dictum in Jordan which sanctioned a greater restriction on the location of county buildings where the place designated as the county seat at that time happened to be incorporated.[3] It was for that *634 reason that later in 1957 section 23600, Government Code, was amended to include the second sentence, and section 24256 was enacted. (2a) To avoid the effect of these two statutes appellants claim they are unconstitutional because they violate the constitutional prohibition against removal of county seats except by required action of the electorate (art. XI, § 2, Cal. Const.) and constitute special legislation (art. IV, § 16). Article IV, section 16, California Constitution, provides: "A local or special statute is invalid in any case if a general statute can be made applicable."[4]
The test for upholding statutes challenged under article IV, section 16 is "If the statute is reasonable and non-discriminatory it will be held valid; if not it will be struck down as `local' or `special' legislation." (Cal. Const. Revision Com., Proposed Revision of the California Constitution, February 1966, p. 39.) (3) "A summary of the relevant principles appears in Lelande v. Lowery (1945) 26 Cal.2d 224, 232 [157 P.2d 639, 175 A.L.R. 1109], which establishes that, while a legislative classification is improper if it is not founded upon some natural, constitutional or intrinsic distinction which reasonably justifies a difference in treatment, a classification which has a substantial relation to a legitimate object to be accomplished is valid. (4) If any state of facts can reasonably be conceived which would sustain a statutory classification, there is a presumption that this state of facts exists and the burden of demonstrating arbitrariness rests upon the party who assails the classification. (5) The Legislature is not bound, in order to adopt a constitutionally valid statute, to extend it to all cases which might possibly be reached, but is free to recognize degrees of harm and to confine its regulation to those classes of cases in which the need is deemed to be the most evident." (Board of Education v. Watson, 63 Cal.2d 829, 833 [48 Cal. Rptr. 481, 409 P.2d 481]; Professional Fire Fighters, Inc. v. City of Los Angeles, 60 Cal.2d 276, 288 [32 Cal. Rptr. 830, 384 P.2d 158].)
(2b) Appellants argue that legislation applying only to county seats that are incorporated cities is special legislation and that a general law could be *635 made applicable to all county seats. Section 23600, Government Code, is as general as possible. It relates to all "county seats of the respective counties of the State, as fixed by law and designated in this article ..." of which there are fifty-eight. The second sentence of the first paragraph deals with the effect of annexation to all incorporated cities which are the locations of county seats of which there are at least fifty. Manifestly such a statute could not possibly include county seats which are unincorporated cities or towns. Thus such a classification which includes all county seats which are incorporated cities regardless of any other factor of population, time of incorporation, area, etc., is a reasonable one. As hereinbefore discussed, the purpose of the addition of the second sentence to section 23600 and enactment of section 24256 in 1957 was the removal of any arbitrary classification that might exist due to dictum in Jordan v. Board of Supervisors, 99 Cal. App.2d 356 [221 P.2d 977], the effect of which was to restrict a county seat merely because it happened to be located at an incorporated city. We resolve the issue in favor of a finding that there exists a proper and rational basis for the statutory classification found in sections 23600 and 24256.
Nor, as urged by appellants, do these sections accomplish the removal of a county seat without the required action of the electorate specified in article XI, section 2. They argue that annexation of the building site to the present city in November 1968 is not relevant, a county seat and the town or city within which it may be located are not one and the same and when the city grows the county seat does not change with it thus the construction of the new courthouse outside of the original one square mile which constituted the Town of San Buenaventura at the time it was designated as the county seat of Ventura County constitutes a removal of the county seat within the meaning of article XI, section 2. Appellants' strained interpretation of the constitutional provision recognizes no distinction between removal of the county seat by designating a city or town (Camarillo, Thousand Oaks, etc.) in Ventura County other than the Town of San Buenaventura to be the county seat, and enlarging by annexation the county seat already established. By giving effect to the plain common-sense meaning of the language of both section 23600 and article XI, section 2, we can only conclude that the "removal" contemplated in the constitutional provision is a transfer of the seat of county government from San Buenaventura to some other city or town in Ventura County not a change of the site of the courthouse from one part of the City of San Buenaventura to another part. Appellants would have an election to obtain consent of the people of the county to relocate the courthouse within the City of San Buenaventura.
Moreover, the Victoria Avenue site while outside of the original boundaries of the Town of San Buenaventura is within the incorporated territory *636 of the present city and is at the county seat. While the designations of San Jose, San Buenaventura and Visalia are not exactly parallel, Visalia not having been incorporated at the time it was designated the county seat whereas San Jose and San Buenaventura were incorporated and had fixed boundaries, the original designations did use the word "at" as in "at the Town of San Buenaventura." This language thus falls within the rationale of Jordan which followed Murdoch v. Klamath County Court, 62 Ore. 483 [126 P. 6], in which the court held that the word "at" in reference to Linkville meant "nearness" or "proximity" but did not limit the area of the county seat to the corporate boundaries themselves. Thus without "removal" of the county seat the courthouse was located "at" Visalia, "at" Klamath Falls and "at" San Jose although outside of the original city limits. But of more significance, the employment by the Legislature of the word "at" in 1872 providing that the seat of justice of Ventura County shall be "at the Town of San Buenaventura" would indicate that it had no intention of requiring the courthouse to be in the then existing corporate limits or of barring a future location of the courthouse on another site annexed to the city.[5] Section 23600, Government Code, is entirely consistent with this.
Finally, our Constitution has facilitated the development and expansion of county seats. Nowhere in the Constitution is there a definition of "county seat," nor does it prescribe the extent, area or population of county seats or the offices which must be conducted or located there. These matters were left entirely to the Legislature. For example, sections 24250, 24261 and 25081, Government Code, provide that sheriffs, clerks, auditors, recorders, treasurers and superior court judges shall have offices, and supervisors shall hold regular meetings at the county seat. When San Buenaventura was designated as the county seat in 1872 the organizational act provided for three supervisors, one county judge and eight other officers of which only the county judge and four of the officers were required to have offices and reside at the county seat. When the Constitution was adopted in 1879 the inclusion of article XI, section 2, was not intended to fix for all time either the confines or characteristics of county seats. Since that time county seats have expanded in area and population and changes in character have evolved. In 1880 the requirement that the county judge, treasurer and recorder reside at the county seat was deleted and since that time other officers have been included; and over the years the requirement that some officers have their offices at the county seat was also deleted. So, too, as county seats have expanded county buildings have spread, many of which are now located outside the boundaries of the original incorporation. Legislation enacted in the years since the adoption of the Constitution reflects *637 continuous statutory change in relation to cities and towns designated as county seats in this state, obviously to accommodate the rapidly increasing population and the necessities it creates, need for extended county services, building congestion and traffic problems. The number of officers required to reside at county seats has decreased as has the number of officers required to maintain offices there; branch courts have been established; cases once required to be heard at the county seat may be heard elsewhere; the number of county services has multiplied as has the number of county offices and employees; county buildings to accommodate expanded services have increased and relocated and physically the courthouse itself has spread into numerous facilities. Thus, section 23600, Government Code, which provides that where a county seat is an incorporated city it includes all annexed territory is reasonable and practical, makes good legislative sense and is consistent with the rapid growth of California cities within the outline established by the Constitution. The erection and construction of a new courthouse on the site selected is not, in our opinion, a removal of the county seat within the meaning of the language used in article XI, section 2, of the California Constitution.
The judgment is affirmed.
Wood, P.J., and Thompson, J., concurred.
Appellants' petition for a hearing by the Supreme Court was denied October 15, 1970.
NOTES
[1] The order sustaining demurrer reads in pertinent part: "The matter is duly argued and submitted to the court for consideration and decision and the court after due consideration orders said demurrer sustained on grounds that the complaint fails to state a cause of action." The trial court made no ruling on the second ground of the demurrer although respondents seek to justify the court's order and judgment of dismissal on that ground also. We note the demurrer does not specify the name of the "indispensable party" (Kreling v. Kreling, 118 Cal. 413, 420 [50 P. 546]) although supporting points and authorities referred to "the county." Thus in the light of this, the order sustaining the demurrer and the absence of any mention therein of the second ground we cannot speculate whether the trial court considered the second ground of the demurrer and if it did, whether it found it to be a valid one.
[2] As originally enacted section 23600 consisted of the present first sentence; by amendment (1957) the second sentence was added.
[3] "It is hard for us to believe that when the Legislature passed these enactments [§§ 24261, 24250, 25081, Gov. Code, designating certain offices to be located "at" the county seat], and the preceding sections upon which they are based, it intended that all of the business of these offices be conducted within the original boundaries of some particular city in the event that such original boundaries had been fixed prior to 1878, but that the Legislature did permit business to be conducted outside the original boundaries where by happenstance those boundaries were not fixed at the time of the original designation. City planning does not lend itself to the application of such a rigid rule of law. Traffic problems alone frequently necessitate the moving of the so-called civic center out of a more congested part of town." (29 Ops.Cal.Atty.Gen. 46.)
[4] In 1957 article IV, section 25, read: "The Legislature shall not pass local or special laws in any of the following enumerated cases, that is to say:
". . . . . . . . . . . . . . .
"Twenty-first Changing county seats.
". . . . . . . . . . . . . . .
"Thirty-third In all other cases where a general law can be made applicable." In 1966, subsection Twenty-first was repealed and Thirty-third was transferred to article IV, section 16.
[5] In 1872, during the same session of the Legislature an act was passed to enable the inhabitants of territory adjacent to any city of the state to annex the same thereto.
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f-.
April 6, 1988
Nr. John Hille Opinion No. JR-885
Acting Executive Director
Texas National Guard Re: Construction of certain
Armory Board riders to the current appro-
P. 0. Box 5218 priation for the National
Austin, Texas 78763 Guard Armory Board (RQ-1210)
Dear Mr. Hille:
You have requested an opinion construing a rider in
the current appropriations act which provides that certain
.expenditures from appropriations to the National Guard
Armory Board say be made only through interagency
contracts with the Adjutant General's Department. The
relevant items of appropriation, found in the combined
appropriation to the Adjutant General*s Department and
National Guard Armory Board, are as follows:
ADJUTANT GENERAL'S DEPARTMENT/NATIONAL GUARD
ARMORY BOARD
For the Years Ending
August 31, August 31,
19881989
National Guard Armory Board:
a. Administration and
Support Services $ 2,820,441 $ 2,905,817
b. Acquisition and
Construction 4.670.710
Total, Facilities
Acquisition S 2.820.441 s 7.576.527
Facilities Maintenance:
a. National Guard
Armory Board $ 2,594,467 $ 2,638,584
b. Adjutant Generalas
Department 2,020,513 2,020,513
C. Utilities, National
Guard Armory Board 2.366.709 2.366.709
Total, Facilities
Maintenance S 6.981.689 S 7.025.806
p. 4323
Mr. John Hille - Page 2 (JM-885)
General Appropriations Act, Acts 1987, 70th Leg., 2d C.S.,
ch. 78, art. I, at 525. The rider you inquire about is
rider 17, which provides as follows:
17. Expenditures from Item 4.b. Acquisi-
tion and Construction, and Item 5-a. Facili-
ties Maintenance, National Guard m-Y
Board, be made [sic] only through inter-
agency contracts with the Adjutant General's
Department. In addition, from Item 4.a.
Administration and Support Services, expen-
ditures of $146,826 in fiscal year 1988 and
$233,802 in fiscal year 1989 shall be made
only through interagency contracts with the
Adjutant General's Department.
L at 525. you suggest that the Adjutant General's
Department lacks authority to engage in construction
and that it may not enter into a contract under the
Interagency Cooperation Act to provide construction
services to the National Guard Armory Board. V.T.C.S.
art. 4413(32), 53.
The validity of an appropriations act rider is deter-
mined by reference to article III, section 35, of the
Texas Constitution, which provides in part:
Sec. 35. (a) No bill, (scent aenera
a&mm=-Uon bills. mav anbrace ths
various subjects uunts. for ud on
aunt of which monevs aremriated)
shall contain more than one subject .
(Emphasis added.)
Tex. Const. art. III, 535. The Texas Supreme Court has
explained the underlined language as follows:
Despite the apparent exception for general
appropriations bills, it has been held
that they too must be limited to a single
subject, which is the appropriation of funds
to be paid from the State Treasury. a
, 144 Tey. 537, 192 S.W.2d 5;;
, 92 Tex. 451,
Se?- Texas Attorney
General Opinion No. V-1254 (1951).
Jessen Associates. Inc. v. Bullock 531 S.W.2d 593, 600
(Tex. 1975). An "item of approprjation" sets aside or
dedicates funds for a specified purpose, while a valid
rider qualifies or directs the use of appropriated funds
p. 4324
,
Mr. John Hille - Page 3 (Jh-885)
or is merely incidental to an appropriation. Jessen
Associates. Inc. v. Bullock SDQI~ at 599. To be valid, a
- rider must be germane to th; appropriation of funds. Id.
at 601. A rider attached to a general appropriation bill
cannot adopt, repeal, modify, or amend an existing general
law. Strake v. Court of Anneals, 704 S.W.2d 746 (Tex.
1986); Moore V. hem rd 192 S.W.2d 559 (Tex. 1946);
Lind n . Fin1 y 49 aS tr 578 (Tex. 1899); Attorney
GenezalVOpinioneVL1254 (195;).
you suggest that rider 17 is invalid on the ground
that the Adjutant General's Department lacks authority to
enter into an interagency contract to construct buildings
for the Armory Board. you argue, in effect, that rider 17
is invalid because it is inconsistent with provisions of
general law governing the Adjut,ant General's Department,
and it thus attempts to amend general law.
The following provisions of the Interagency
Cooperation Act are relevant to your argument:
Sec. 3. Any state agency may enter into
and perform a written agreement or contract
with other agencies of the state for fur-
nishing necessary and authorized special or
technical services, including the services
of employees, the services of materials, or
the services of equipment. . . . Provided,
however, nothing herein shall authorize any
agency to construct any highway, street,
road, or other building or structure for any
other agency, except as otherwise specifi-
cally authorized by existing law. . . .
. . . .
Sec. 5. No agreement or contract may be
entered into or performed which will require
or permit an agency of the State to exceed
its constitutional or statutory duties and
responsibilities, or the limitations of its
appropriated funds.
V.T.C.S. art. 4413(32), §§3, 5.
You point out that the Adjutant General's Department
has no express authority to construct any building. The
National Guard Armory Board, in contrast, was established
to acquire sites and build armories to house the Texas
National Guard and its equipment, and to provide a means
of financing the construction of armories. Texas National
p. 4325
Mr. John Hille - Page 4 @M-885)
Guard AzHQrv Board v. McGraw, 126 S.W.Zd 627 (Tex. 1939);
S&Z Texas Public Buildina Authoritv v. Mattox, 686 S.W.2d
924 (Tex. 1985). The Armory Board
is a public authority and a body politic and
corporate and has all powers necessary for
the acquisition, construction, rental,
control, maintenance, and operation of Texas
National Guard or Texas State Guard armories,
including all property and equipment neces-
sary or useful in connection with the
armories.
Gov't Code 5435.013. It may issue bonds to acquire
building sites or to construct, remodel, equip, or repair
buildings and may lease buildings to the Adjutant
General's Department. Gov't Code §§431.030, 435.023,
435.041(a)..
This brief summary of important provisions governing
the Armory Board shows, its close connection with the
Adjutant General's Department. In addition, the Armory
Board is composed of three senior officers of the Texas
National Guard and three members of the general public who
are appointed by the governor with the advice and consent
of the Senate. Gov't Code S435.004.
Although the Armory Board ha& express power to
construct buildings for the National Guard, it does not
necessarily have exclusive power over construction. The
adjutant general has broad powers which, in our opinion,
include implied authority to build, maintain, and repair
buildings necessary to carry out his responsibilities.
He controls the military department of the state, which
includes the Texas National Guard and the the Texas
State Guard. Gov't Code 55431.022, 431.001(3)(4). The
adjutant general is subordinate only to the governor, who
is commander-in-chief of the state military forces. Gov't
Code 0431.002. He is directed by statute to
perform for the state as near as practicable
the duties that pertain to the chiefs of
staff of the amy and air force and the
secretaries of the military services, under
regulations and customs of the United States
armed forces. . . .
Gov't Code 5431.029(2). Federal law provides that the
Secretary of the Army
p. 4326
Mr. John Hille - Page 5 (JM-885)
is responsible for, and has the authority
necessary to conduct, all affairs of the
Department of the Amy, including the
following functions:
Recruiting.
Organizing.
Supplying.
Equipping (including research and
development).
Training.
I:; Servicing.
(7) Mobilizing.
(8) Demobilizing.
(9) Administering (including the
morale and welfare of personnel).
Maintaining.
I::; The construction, outfitting, and
repair of military equipment.
(12) The construction.
. . maintenance. and
renair of buildinas. structures,
and utjJ,j&&g and the acquisition
of real property and interests in
real property necessary to carry
out the responsibilities specified
in this section. (Emphasis added.)
10 U.S.C. 53013. Section 431.029 of the Government Code,
read together with section 3013 of title 10, United States
Code, gives the Adjutant General some authority to build,
maintain and repair buildings as necessary to carry out
his duties. Moreover, the Adjutant General has authority
to "employ clerks, employees, and Jaborerg as necessary to
carry on the operations of the department." (Emphasis
added. ) Gov't Code 8431.028. The ReDOrt to the Sunset
AdvisoN Commission by the Adjutant General's Department
indicated that the department had responsibility to see
that facilities to house and train the army and air guard
units were constructed and maintained in SeNicable
condition. Adjutant General's Department, ReDOrt to the
Sunset AdvisoN Commission at 2. The department's annual
report for 1987 described the responsibilities of its
Directorate of Facilities Engineering as the development,
acquisition, construction, maintenance and operation of
facilities for the Texas Army National Guard. Ad jutant
General's Department of Texas, Annual ReDOrts, at 22-23.
Construction projects included a warehouse, a troop
medical clinic, and an armory. Id. at 42. Texas National
Guard engineering units performed some of the construction
and maintenance work. Id. at 23.
p. 4327
Mr. John Hille - Page 6 (JW-885)
The Adjutant General#s Department has implied
authority to construct and maintain buildings when
necessary to carry out its statutory responsibilities.
Rider 17 does not confer general law powers on the
Adjutant General's Department, but instead recognizes that
it has authority to provide construction services. Nor
does this rider attempt to confer upon the Adjutant
General's Department the Armory Board's discretion to
decide what construction and repair projects to undertake.
The rider contemplates that the Armory Board will contract
with the Adjutant General's Department, instead of a
private construction company, for the supervision of
construction services necessary to implement its decision.
Rider 17 also requires expenditures for maintenance
of facilities to be made only through interagency con-
tracts with the Adjutant General's Office. As already
pointed out, the Adjutant General's Office has implied
authority to maintain buildings, and the Armory Board's
decisions about building maintenance may be implemented by
a contract with the Adjutant General's Office. Rider 17
requires some of the Armory Board's expenditures for
administration and support services to be made through
interagency contract. Attorney General Opinion RW-352
(1981) decided that the National Guard Armory Board could
contract with the adjutant general under the Interagency
Cooperation Act for the services of employees.
We finally point out that rider 17 differs from the
rider which was said to be invalid in Attorney General
Opinion RW-585 (1982). The rider at issue in that opinion
stated in part:
It is the intent of the Legislature #at
an interagency contract shall be executed
between the State Board of Barber Examiners
and the Texas Cosmetology Commission to
reduce duplication of activities in inspec-
tions, enforcement and examination.
General Appropriations Act, Acts 1981, 67th Leg., ch. 875,
art. I, at 3376. This rider was invalid because it did
not appropriate funds, nor did it detail, limit or
restrict the use of funds appropriated elsewhere. Instead,
it directed the State Board of Barber Examiners and the
Texas Cosmetology Commission to take specific affirmative
action. Attorney General Opinion WW-585 (1982).
Rider 17 is also distinguishable from the rider held
invalid in Attorney General Opinion JW-167 (1984). That
p. 4328
Mr. John Hille - Page 7 (JR-885)
rider to the appropriation for the State Commission for
the Blind provided in part:.
9. It is the intent of the Legislature
that out of funds appropriated above in item
5.~. Older Blind Contract Training an amount
not to exceed $272,146 each fiscal year
shall be expended for entering into a con-
tract with the Texas Lions League or a
similar organization to provide rehabilita-
tive services to blind adults. . . .
Acts 1983, 68th Leg., ch. 1095, art. II, 59, at 5954. The
opinion pointed out that the State Commission for the
Blind had permissive authority to cooperate with public
and private agencies in providing facilities and services
for vocational rehabilitation of blind individuals. Human
Resources Code 891.052(b)(l). The rider attempted to make
mandatory a contract which general law made permissive.
It therefore was invalid general legislation contained in
an appropriations act in violation of article III, section
35, of the Texas Constitution. Attorney General Opinion
JM-167 (1984).
Rider 17 does not attempt to impose a mandatory duty
on the Armory Board to contract with a private entity, or
to enter into any contract at all. Instead, it conditions
the boardrs receipt of appropriated funds for construc-
tion and maintenance on the board's contracting with the
Adjutant General's Department to perform the work. See
ae rallv Attorney General Opinion V-1254 at 10 (1951)
(dyzcussinq appropriations subject to a condition).
General law establishes a close relationship between the
functions of the Armory Board and those of the Adjutant
General's Office, and the appropriations act recognizes
this connection by giving the two entities a combined
appropriation. In view of these circumstances, we believe
the legislature may allocate funding to a cooperative
endeavor between the two entities as it has done in rider
17. See aenerally Attorney General Opinion JR-256 (1984)
(power to allocate public funds between state agencies is
a legislative power). Rider 17 does not attempt to enact,
amend, or repeal a general law in violation of article
III, section 35(a), of the Texas Constitution.
SUMMARY
The Adjutant General's Department,
governed by chapter 431 of the Government
Code, has implied authority to build
and maintain facilities. Rider 17 to the
p. 4329
Mr. John Hille - Page 8 (JM-885)
combined 'appropriation to the Adjutant
General's Department and the National Guard
Armory Board in the current appropriation
act, which provides that an appropriation to
the Armory Board for construction and
maintenance may be spent only throuqh
interagency cokracts bith the- Adjutant
General's Office, does not violate article
III, section 35, of the Texas Constitution.
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 4330
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559 F.Supp. 57 (1983)
John F. MEADOWS, et al., Plaintiffs,
v.
BICRODYNE CORPORATION, et al., Defendants.
David J. PETERSON and Dorothy Peterson, et al., Plaintiffs,
v.
BICRODYNE CORPORATION, et al., Defendants.
No. C-82-4975-WWS.
United States District Court, N.D. California.
March 28, 1983.
Lance S. Stryker, Melissa M. Lackman, San Francisco, Cal., for plaintiffs Meadows.
Robert W. Rychlik, Los Altos, Cal., for plaintiffs Petersons.
Richard Warren, Landels, Ripley & Diamond, San Francisco, Cal., Robert Rychlik, Danell, Haley & Rychlik, Los Altos, Cal., for defendants.
ORDER
SCHWARZER, District Judge.
Plaintiffs renew their motion to remand this action to state court, asserting that defendants' removal petition was untimely filed. This assertion appears to be correct and will be assumed correct for the purposes of this motion. The question is whether plaintiffs waived this defect by failing to object to it when their motion to remand was first heard in October 1982 and by appearing in this Court both to defend against motions and to bring substantive motions of their own.
It is well established that a failure to remove within the thirty day time limit of 28 U.S.C. 1446(b) is a "waivable, nonjurisdictional defect." Intercoastal Refining, Inc. v. Jalil, 487 F.Supp. 606, 608 (S.D.Tex. 1980); see Weeks v. Fidelity & Casualty Co. of New York, 218 F.2d 503, 504 (5th Cir. 1955); Green v. Zuck, 133 F.Supp. 436, 438 (S.D.N.Y.1955); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3721 at 543-44 and cases cited therein (1976). Plaintiffs' multiple appearances in this Court are more than sufficient to amount to a waiver of any nonjurisdictional defect. See, e.g., Intercoastal Refining, supra (filing of jury demand); Manas y Pineiro v. Chase Manhattan Bank, 443 F.Supp. 418, 421 (S.D.N.Y.1978) (litigating merits of defendant's motion for summary judgment).
*58 Plaintiffs argue that because an untimely removal is "improvident," London v. United States Fire Ins. Co., 531 F.2d 257 (5th Cir.1976), a case which is untimely removed must be remanded pursuant to 28 U.S.C. § 1447(c) if the error is discovered at any time before final judgment. This argument ignores the plain language of § 1447(c): "If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case ..." (emphasis added). The Court has jurisdiction over this case because the parties are of diverse citizenship. Since the untimeliness of the removal petition is not a jurisdictional but a procedural defect, section 1447(c) does not require that the case be remanded. "[A]ny case within the federal court's original or removal jurisdiction may be retained if a procedural error escapes plaintiff's timely objection." 14 Wright, Miller & Cooper, supra, at 544.
Plaintiffs' motion is accordingly denied.
IT IS SO ORDERED.
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246 B.R. 459 (2000)
In re PRIORITY FINISHING CORPORATION, Debtor.
Priority Finishing Corporation, Plaintiff,
v.
Multi-Route Freight Systems, Ltd., Defendant.
Bankruptcy No. 99-14572-JNF, Adversary No. 99-1530.
United States Bankruptcy Court, D. Massachusetts.
March 29, 2000.
*460 Charles A. Lovell, Partridge, Snow & Hahn, Providence, RI, for plaintiff.
Douglas B. Rosner, Godston & Storrs, Boston, MA, for defendant.
MEMORANDUM
JOAN N. FEENEY, Bankruptcy Judge.
I. INTRODUCTION
The matter before the Court is the Defendant's Motion to Dismiss the Debtor's complaint for failure to state a cause of action. See Fed.R.Civ.P. 12(b)(6), made applicable to this proceeding by Fed. R.Bankr.P. 7012. In determining the Motion to Dismiss, the Court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the nonmoving party. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The issue presented is whether in seeking turnover of property or the value of property from the Defendant, Multi-Route Freight Systems, Ltd. ("Multi-Route"), see 11 U.S.C. § 542(a), the Debtor has established that the Defendant had possession of property of the estate. See 11 U.S.C. § 541(a).
*461 II. THE DEBTOR'S COMPLAINT
In its complaint, the Debtor alleged that it sold approximately 32,978 yards of fabric (the "goods") with a value of $84,067.00 to Global Orbit Industries ("Global"), a Canadian firm, and Tiagi Tabah International Apparel Group, Inc. ("Tiagi"). It attached to its complaint two purchase order forms from Global identifying the Debtor as the vendor and "Global Orbit (LA)" as the entity to whom the goods were to be shipped at a Los Angeles, California location. The first purchase order contained an order date of March 20, 1998 and a delivery date of June 15, 1998. It provided "LA" in a box captioned "F.O.B. DESTINATION." The second purchase order contained an order date of June 2, 1998 and a delivery date of August 20, 1998. It did not contain a designated place in the box captioned "F.O.B. DESTINATION." The two purchase orders together were for 145,000 yards of fabric at a total cost of $397,244.17.
According to the Debtor in its complaint, on December 3, 1998, Multi-Route, a Canadian carrier, accepted the goods for shipment from the Debtor's Fall River location to Global and Tiagi. Multi-Route took possession of the goods and then refused to deliver them to Global or Tiagi because it was owed money by Global.[1] The Debtor attached a bill of lading, denominated a "STRAIGHT BILL OF LADING," to its complaint. The bill of lading identified Global as the consignor. As consignor, Global certified that the materials that were being shipped were "PROPERLY CLASSIFIED, DESCRIBED, PACKAGED, MARKED AND LABELED AND ARE IN PROPER CONDITION FOR TRANSPORTATION ACCORDING TO THE APPLICABLE REGULATIONS OF THE DEPARTMENT OF TRANSPORTATION." Global also certified the following in the bill of lading:
RECEIVED, subject to the classifications and tariffs in effect on the date of the issue of this Bill of Lading, the property described above in apparent good order, . . . marked, consigned, and destined as indicated above which said carrier (the word carrier being understood throughout this contract as meaning any person or corporation in possession of the property under the contract) agrees to carry to its usual place of delivery at said destination if on its route otherwise to deliver to another carrier on the route to said destination. It is mutually agreed as to each carrier of all or any of said property, over all or any portion of said route to destination and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the bill of lading terms and conditions in the governing classification on the date of shipment.
Shipper hereby certifies that he is familiar with all the bill of lading terms and conditions in the governing classification and the said terms and conditions are hereby agreed to by the shipper and accepted for himself and his assigns.
Subject to section 7 of the conditions, if this shipment is to be delivered to the consignee without recourse on the consignor, the consignor shall sign the following statement:
The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges.
(emphasis supplied). Global was identified as the shipper in the upper right hand corner of the bill of lading and as consignee, at its Los Angeles, California address, in the upper left hand corner of the bill of lading. Multi-Route was identified as the carrier on the bill of lading following the pre-printed term "via." Two boxes, one *462 captioned "COLLECT" and the other "PREPAID," also appear on the bill of lading. The box captioned "COLLECT" was checked. The Debtor did not sign the bill of lading. The bill of lading, however, contained its preprinted name and addresses followed by boxes. The Debtor's Massachusetts address was checked.
III. DISCUSSION
The Debtor maintains that its complaint and the documents described above, as well as applicable law, demonstrate that the goods and their value were and are property of the estate. It argues that because one of the purchase orders provides for F.O.B. "LA," its contract with Global was a destination contract and that it retained title to the goods. Because Multi-Route did not deliver the goods to Global, as consignee, at its Los Angeles location, title to the goods remained with the Debtor as there was no tender there. The Debtor further argues that the bill of lading is ambiguous and cannot modify the F.O.B. term of the purchase order and that extrinsic evidence must be admitted to determine the rights of the parties.
The Court disagrees with the Debtor's interpretation of the documents and the law. The purchase orders were offers made to the Debtor, which were apparently accepted. Nevertheless, the offers do not embody all the material the terms of the contract between Global and the Debtor. Not only do the delivery dates on the purchase orders fail to conform with the actual date the goods left the Debtor's Fall River location, the quantity and dollar amounts of the orders fail to conform with the quantity and dollar amount of the contract described by the Debtor in its complaint. Accordingly, the purchase orders do not establish that the contract that existed between the Debtor and Global was a destination contract in view of the "strong presumption against the creation of destination contracts." Thus, "in the absence of the contract terms or trade usage to the contrary, a contract which contemplates the transportation of goods from the seller to the buyer will be interpreted as a shipment contract and not a destination contract."[2] 67 Am.Jur.2d Sales, § 393 (1985). This is so because in a shipment contract, title, as well as the risk of loss, passes to the buyer when the seller delivers the goods to the carrier. Id. The Debtor's complaint does not contain any allegations that its contract with Global was intended to be a destination contract or that destination contracts were routinely used in its industry or routinely used by the Debtor and Global.
The bill of lading does not establish that the Debtor retained any property interest in the goods either.
A bill of lading is an instrument by which goods may be transferred from seller to buyer when a direct transfer is impossible and the goods must be shipped by a carrier. It describes the goods shipped, sets forth the identity of the shipper (or consignor) and the buyer (or consignee), and directs the carrier to deliver the freight to a certain location or person. . . . A nonnegotiable bill of lading, in which a consignee is specified, may be considered evidence of title, but the transfer of a nonnegotiable bill of lading does not, in and of itself, transfer title to the goods under the bill. White & Summers, Uniform Commercial Code, § 21-4 at 163 (1988).
* * * * * *
Bills of lading are thus contracts between shippers and carriers that spell out the carrier's obligation to deliver specific goods to specific people or places. Interocean S.S. Corp. v. New Orleans Cold Storage & Warehouse Co., 865 F.2d 699, 703 (5th Cir.1989). As contracts of adhesion, they are strictly construed against the carrier. Allied Chemical International Corp. v. Companhia de Navegacao Lloyd Brasileiro, 775 F.2d 476, 482 (2d Cir.1985).
Met-Al Inc. v. Hansen Storage Co., 828 F.Supp. 1369, 1375-76 (E.D.Wis.1993). Although *463 the Debtor's name and address appears on the bill of lading, it did not sign the bill of lading and was neither consignor or shipper. The bill of lading attached to the complaint evidenced a contract between Multi-Route and Global, as Global was identified as both the shipper and the consignee of the goods with freight charges to be paid by the consignee upon delivery.[3] The bill of lading does not establish that the contract between the Debtor and Global was a destination contract, thus leaving title to the goods in the Debtor. On the contrary, it establishes that the Debtor delivered the goods to the carrier, Multi-Route, at its Massachusetts location, that Global, as buyer, shipper, consignor and consignee, made arrangements to have the goods shipped to Los Angeles at its expense, and that title to the goods passed to Global when possession was transferred to the carrier, Multi-Route.
The bill of lading is unambiguous, and the purchase orders do not create any ambiguity in the bill of lading. The bill of lading was a separate contract between Global and Multi-Route and does not evidence that the Debtor retained title to the goods. On the contrary, it evidences that the Debtor did not intend to retain title to the goods.
IV. CONCLUSION
Upon consideration of the Debtor's complaint and the documents attached to the complaint, the Court finds that the Debtor's complaint fails to state a cause of action for turnover under § 542(a). Accordingly, the Court shall grant the Defendant's Motion to Dismiss.[4]
NOTES
[1] At the hearing held on February 16, 2000, the parties represented that Global was insolvent. They did not mention Tiagi. The only reference to Tiagi in the documents attached to the complaint was on the March 20, 1998 purchase order where the following hand written notation appears: Ref: Tiagi Tabah Invoice 61599.
[2] See Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 376 N.E.2d 548 (1978).
[3] Thus, Global was responsible for the freight charges a responsibility that would be consistent with a shipment contract, not a destination contract. See Consolidated Freightways Corp. of Del. v. Pacheco Internat'l. Corp., 488 F.Supp. 68 (C.D.Cal.1979), in which the court stated the following:
A shipper or consignor who tenders freight to a motor carrier operating in interstate commerce for transportation is the party primarily liable for freight charges, unless the shipper or consignor and the carrier contractually agree that the carrier will look to another party only for payment. See, Louisville & Nashville R.R. Co. v. Central Iron & Coal Co., 265 U.S. 59, 44 S.Ct. 441, 68 L.Ed. 900.
The procedure by which a shipper or consignor may relieve himself of this primary obligation to pay the freight charges is to execute the "non-recourse" provisions of the Uniform Bill of Lading upon tendering the freight to the carrier. Where the shipper or consignor has failed to sign the "non-recourse" provision contained in the carrier's Bill of Lading then, upon the failure of the consignee to pay for the freight charges, the shipper or consignor remains liable for the said freight charges. See, e.g., Illinois Steel Co. v. Baltimore & O.R. Co., 320 U.S. 508, 64 S.Ct. 322, 88 L.Ed. 259 (1944). A direction by the consignor that the shipment be delivered "freight collect" is insufficient to relieve him of liability. See, New York Central Rail Co. v. Frank H. Buck Co., 2 Cal.2d 384, 41 P.2d 547 (1935).
488 F.Supp. at 69-70.
[4] In this regard, the Court notes that the Debtor filed the affidavit of Terry Bacon, the Debtor's Receivables Manager. He stated that the Debtor customarily prepared bills of lading. As the Global explained, however, this is not determinative of a contract between the Debtor and Multi-Route as the Debtor would be in the best position to identify the various boxes for shipment using its pre-printed form.
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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
LARRY SAMPSON, DOC #T30300, )
)
)
Appellant, )
)
v. ) Case No. 2D17-3319
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed March 21, 2018.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Hillsborough County; Mark Kiser, Judge.
PER CURIAM.
Affirmed.
CASANUEVA, KHOUZAM, and LUCAS, JJ., Concur.
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221 P.3d 23 (2009)
Kuldip VERMA and Binu Verma, husband and wife, Plaintiffs/Counter-Defendants/Appellees/Cross-Appellants,
v.
Tyson S. STUHR and Stacy E. Stuhr, husband and wife, Defendants/Counter-Claimants/Appellants/Cross-Appellees.
Kuldip Verma and Binu Verma, husband and wife, Plaintiffs/Counter-Defendants/Appellees/Cross-Appellants,
v.
Tilley Farms, Inc., an Arizona corporation, Defendant/Counter-Claimant/Appellant/Cross-Appellee.
Kuldip Verma, Trustee of the Binu Verma M.D. Profit Sharing Plan, Plaintiff/Appellee/Cross-Appellant,
v.
Andrew M. Dougherty and Katherine Dougherty, as Trustees of the Dougherty Living Trust, dated January 30, 2003, Defendant/Appellant/Cross-Appellee.
Nos. 1 CA-CV 07-0576, 1 CA-CV 07-0747, 1 CA-CV 08-0052.
Court of Appeals of Arizona, Division 1, Department D.
October 29, 2009.
*27 Lang & Baker, PLC By David R. Baker, Scottsdale, Attorneys for Plaintiffs/Appellees/Cross-Appellants.
Jennings Strouss & Salmon, PLC By Jeffrey P. Boshes, Phoenix, Attorneys for Defendants/Appellants/Cross-Appellees Stuhr.
Jennings Strouss & Salmon, PLC By Jeffrey P. Boshes, Phoenix, Attorneys for Defendant/Appellant/Cross-Appellee Tilley Farms.
Paul G. Ulrich, PC By Paul G. Ulrich, Phoenix, Co-Counsel for Defendants/Appellants/Cross-Appellees Dougherty.
Jennings Strouss & Salmon, PLC By Jeffrey P. Boshes, Phoenix, Co-Counsel for Defendants/Appellants/Cross-Appellees Dougherty.
OPINION
SWANN, Judge.
¶ 1 Three similar cases require us to decide when A.R.S. § 33-422 permits a buyer to rescind a contract to purchase real property. In each case, the buyers had actual knowledge of a federal flood easement over the subject property within the time provided for due diligence under their contracts. In each case, the buyers affirmatively elected not to terminate the contract after learning of the defect in title created by the easement. Ultimately, however, the buyers attempted to extract themselves from the transactions by invoking the statute's express disclosure requirement and its guarantee of a unilateral right of rescission. In two of the cases, we conclude that the buyers allowed their statutory rescission rights to lapse, and that they are bound by the terms of their contracts. In the third, we conclude that the right was validly invoked.
¶ 2 Our analysis requires us to resolve a number of issues concerning the validity and application of A.R.S. § 33-422. Subsection (A) of the statute provides:
A seller of five or fewer parcels of land, other than subdivided land, in an unincorporated area of a county and any subsequent seller of such a parcel shall furnish a written affidavit of disclosure to the buyer, at least seven days before the transfer of the property, and the buyer shall acknowledge receipt of the affidavit.
First, we hold that there is no upper limit to the size of a parcel subject to the statute. Second, we hold that the statute applies to parcels located only partially within unincorporated areas. Third, we hold that the statute is constitutional, and that a seller's compliance with the statute is mandatory unless the buyer waives its rights.
¶ 3 Compliance requires the seller to furnish an affidavit of disclosure that addresses those attributes of land identified in the statute's model affidavit of disclosure. Once an affidavit is furnished, the buyer's absolute right to rescind pursuant to A.R.S. § 33-422(D) *28 exists for five days. The right may not, however, be exercised after the transaction has closed. Finally, an affidavit that contains inaccurate statements may give rise to a claim for relief at common law, but it does not create a continuing right to rescind beyond the five days allowed by the statute.
FACTS AND PROCEDURAL HISTORY
¶ 4 The three cases considered in this opinion share many facts in common. We address those common facts first, and then address the facts unique to each case.
I. Common Facts
¶ 5 Each of the defendants below (collectively, "sellers") owned parcels of at least 600 acres. Those properties are subject to a flood easement held by the United States, pursuant to which the United States has the "perpetual right, power, privilege and easement occasionally to overflow, flood, and submerge the land ... and all structures and improvements thereon." The easements provide that "no structures for human habitation shall be constructed or maintained on the land." The sellers knew of the flood easement and the prohibition on construction.
¶ 6 In 2005, the sellers entered into individual purchase agreements with Kuldip and Binu Verma (the "Vermas"), under which the Vermas agreed to buy the sellers' respective properties. The purchase agreements provided, in relevant part:
The Vermas would make a down payment consisting of an initial deposit due upon execution of the agreement; a second deposit due on or before a defined "Risk Date"; and an additional payment due on the close of escrow.
Upon receipt of a preliminary title report from the agreed-upon escrow agent, the Vermas had ten days to object in writing to any of the exceptions listed in the report. Exceptions to which no objections were made would be deemed Permitted Exceptions.
Until the "Risk Date" had passed, the Vermas had an absolute right to cancel the transaction. If they did not do so, their deposits became nonrefundable.
The Vermas warranted and acknowledged that they were "purchasing the Property on an `as-is' basis, except as specifically warranted."
The agreements expressly provided that "all or a portion of the Property is in a floodplain or within flood easements."
¶ 7 The Vermas received a Commitment for Title Insurance for each of the properties. Each Commitment indicated that the federal flood easement was an exception to title insurance. In no case did the Vermas object to that exception.
¶ 8 By April 2005, the Vermas' private real estate consultant, Pranav Sahai, received further documents revealing the easements. The Vermas decided, however, to proceed with the transactions.
¶ 9 Under varying circumstances in each case, each seller provided the Vermas with an affidavit of disclosure. The Vermas finally sought to rescind all of the transactions based on A.R.S. § 33-422 and demanded the return of all money paid. The sellers refused to rescind.
¶ 10 The Vermas sued the sellers in superior court. In each action, the court entered summary judgment in favor of the Vermas based on their statutory rescission claims.
II. Unique Facts
A. Verma v. Tilley Farms
¶ 11 Tilley Farms ("Tilley") entered into its purchase agreement with the Vermas in March 2005. The Vermas paid to extend the agreement so that the final date for closing was February 22, 2006. Tilley furnished an affidavit of disclosure on May 10, 2005. On that date, C.W. Adams, Tilley's president and co-owner, was at the escrow agent's offices. Brian Stillman of Arizona Land Advisors, who represented the Vermas in the transaction, asked Adams to complete an affidavit of disclosure and provided Adams with a form. The form was not perfectly consistent with the then-current version of A.R.S. § 33-422; rather, it was drawn from former A.R.S. § 11-806.03, a predecessor version of A.R.S. § 33-422. Adams completed the form and returned it to Stillman. On May 12, the *29 Vermas signed the form next to the language "AGREED, ACCEPTED AND APPROVED."
¶ 12 By letter dated December 1, 2005, the Vermas expressed their intent to rescind the transaction and recover all money paid based on "inadequate and improper disclosures by the seller as required by A.R.S. § 33-422." In the lawsuit that followed, the Vermas argued that Tilley never provided a compliant affidavit of disclosure. The Vermas asserted that the statute imposes a non-waivable obligation on the seller to provide a compliant affidavit, and noted that Tilley's affidavit was missing several questions and answers required by the then-current statute. The superior court entered summary judgment in favor of the Vermas, granting them a refund of their deposits plus attorneys' fees. The Vermas were not awarded amounts they had paid under the contract as non-refundable extension fees.
¶ 13 Tilley timely appeals from the judgment and from the denial of its Rule 60(c)(6) motion. The Vermas timely cross-appeal.
B. Verma v. Dougherty
¶ 14 Andrew and Katherine Dougherty (the "Doughertys") entered into their purchase agreement with the Vermas in March 2005. The Doughertys' agent had earlier sent a letter to the Vermas' agent noting that the property was "within the confines of the Painted Rock Dam flood easement."
¶ 15 The Commitment provided by the escrow agent listed as an exception the flood easement and a separate "flowage" exception. Sahai, the Vermas' real estate agent, had a copy of a 1994 district court document evidencing the easement. The Vermas did not object to any exceptions. Instead, they paid to extend the agreement so that the final date for closing was August 22, 2005.
¶ 16 The Doughertys furnished an affidavit of disclosure on May 10, 2005. On that date, Stillman personally delivered a disclosure form to Andrew Dougherty at his office and Dougherty completed it. As in Tilley Farms, the form was not entirely consistent with the then-current statute it was based on an earlier version of the statute. On May 12, the Vermas signed the form next to the language "AGREED, ACCEPTED AND APPROVED."
¶ 17 The sale closed on August 24, 2005. By letter dated December 1, 2005, Kuldip Verma[1] expressed his intent to rescind the transaction and recover all monies paid based on "inadequate and improper disclosures by the seller as required by A.R.S. § 33-422." Verma sued on the same theory advanced in the Tilley Farms litigation, and the court granted him summary judgment. The judgment awarded Verma rescission damages plus attorneys' fees. Again, the court did not award the amount paid as non refundable extension fees. The court entered summary judgment for the Doughertys on their counterclaim for expenses incurred in repairing a well on the property. The Doughertys timely appeal from the judgment for Verma and from the court's denial of their Rule 60(c)(6) motion and motion for new trial. Verma timely cross-appeals.
C. Verma v. Stuhr
¶ 18 Tyson and Stacy Stuhr (the "Stuhrs") entered into their purchase agreement with the Vermas in April 2005. Earlier that month, the parties had entered into a letter of intent for the sale of the property. The letter stated: "Please note that property lies within the confines of the Painted Rock Dam Flood easement." The Vermas paid for extensions to the agreement so that the final date for closing was December 9, 2005.
¶ 19 By letter dated December 1, 2005, the Vermas requested that the Stuhrs provide an affidavit of disclosure pursuant to A.R.S. § 33-422. On December 5, the Stuhrs furnished an affidavit. A letter accompanying the affidavit asserted that disclosure was not required and was being provided as a courtesy only.
¶ 20 By letters dated December 8 and 9, the Vermas asserted a statutory right to *30 rescind the transaction and demanded the return of the earnest money. The Stuhrs declined to return the earnest money, and the transaction did not close. The Vermas sued the Stuhrs in February 2006.
¶ 21 As in Tilley Farms and Dougherty, the court entered summary judgment awarding the Vermas the amount of the earnest money plus attorneys' fees but not the amount they had paid in extension fees.
¶ 22 The Stuhrs timely appeal from the judgment. The Vermas timely cross-appeal.
¶ 23 We have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003).
DISCUSSION[2]
I. Common Legal Issues
A. A.R.S. § 33-422 Applies to Parcels Larger Than 160 Acres
¶ 24 Each seller argues that an affidavit of disclosure was not required because A.R.S. § 33-422 is inapplicable based on the size of the property at issue. Section 33-422 has been amended several times since its original adoption in 2000 as A.R.S. § 11-806.03. However, the following provisions have remained substantially unchanged.
A. A seller of five or fewer parcels of land, other than subdivided land, in an unincorporated area of a county and any subsequent seller of such a parcel shall furnish a written affidavit of disclosure to the buyer, at least seven days before the transfer of the property, and the buyer shall acknowledge receipt of the affidavit.
. . . .
C. No release or waiver of a seller's liability arising out of any omission or misrepresentation contained in an affidavit of disclosure is valid or binding on the buyer.
D. The buyer has the right to rescind the sales transaction for a period of five days after the affidavit of disclosure is furnished to the buyer.
E. The seller shall record the executed affidavit of disclosure at the same time that the deed is recorded. The county recorder is not required to verify the accuracy of any statement in the affidavit of disclosure. A subsequently recorded affidavit supersedes any previous affidavit.
A.R.S. § 33-422 (Supp.2008).
¶ 25 By its plain terms, the statute applies to "parcels of land, other than subdivided land." The sellers argue that parcels "other than subdivided land" must necessarily be "unsubdivided lands." A separate statute, A.R.S. § 32-2101(59) (2008), excludes parcels larger than 160 acres from its definition of "unsubdivided lands." Following the sellers' proffered syllogism to its apparent conclusion, parcels larger than 160 acres are not "unsubdivided," and therefore are not subject to A.R.S. § 33-422.[3] We disagree.
¶ 26 A.R.S. § 33-422 does not use the defined term "unsubdivided lands." And there is a logical component implicit in the sellers' arguments that is simply untenable namely that parcels in excess of 160 acres are automatically "subdivided" because they are not "unsubdivided." We think that the Legislature has clearly indicated its intent that A.R.S. § 33-422 apply to lands that have not been subdivided, regardless of size.
B. A.R.S. § 33-422 Is Constitutionally Valid
¶ 27 The sellers argue that A.R.S. § 33-422 is unconstitutionally vague because it *31 specifies neither the degree of diligence required by the seller nor the extent of the explanation that must be provided on the affidavit. Again, we disagree.
¶ 28 One who has suffered or may suffer an injury because of the vagueness of a statute may challenge the constitutionality of the statute on that basis. State v. McDermott, 208 Ariz. 332, 335, ¶ 11, 93 P.3d 532, 535 (App.2004). We review the constitutionality of a statute de novo. State v. Kaiser, 204 Ariz. 514, 517, ¶ 8, 65 P.3d 463, 466 (App.2003). A strong presumption exists that the statute is constitutional, and we construe it, if possible, to render it constitutional. Id.
¶ 29 A statute must provide persons of ordinary intelligence a reasonable opportunity to know the conduct prohibited or the duty imposed. Hernandez v. Frohmiller, 68 Ariz. 242, 251, 204 P.2d 854, 860 (1949); Kaiser, 204 at 517, ¶ 9, 65 P.3d at 466. "[T]he duty imposed [by the statute] must be prescribed in terms definite enough to serve as a guide to those who have the duty imposed upon them." Hernandez, 68 Ariz, at 251, 204 P.2d at 860 (quoting Vallat v. Radium Dial Co., 360 Ill. 407, 196 N.E. 485, 487 (1935)). A statute is not void for vagueness because it can be interpreted in more than one way or because it does not provide perfect notice. McDermott, 208 Ariz, at 336, ¶ 13, 93 P.3d at 536.
¶ 30 Section 33-422 requires a seller to answer questions about his or her property. The 2003 version of the statute was in effect when the sellers provided their affidavits of disclosure to the Vermas. The 2003 model affidavit lists twelve specific questions, many of which may be answered simply by checking a box, and some of which allow the seller to answer "unknown." Several of the questions provide space to explain an answer, but with the exception of question 12 (which pertains to the statutory requirements regarding land divisions), no explanation is automatically required. See Vig v. Nix Project II Partnership, 221 Ariz. 393, 398, ¶ 23, 212 P.3d 85, 90 (App.2009). The certification at the end of the model affidavit states that the party signing the document certifies that the information "is true, complete and correct according to my best belief and knowledge." A.R.S. § 33-422(F) (Supp.2003).
¶ 31 The statute is not impermissibly vague. It provides that a seller must disclose specific items of information to the best of his or her knowledge. A person of ordinary intelligence would understand that the statute requires responsive answers to the questions asked.
¶ 32 The sellers further contend that A.R.S. § 33-422 unconstitutionally impairs their right to contract. A statute impairs the obligation of a contract in violation of Article I, Section 10 of the United States Constitution only if it has "the effect of rewriting antecedent contracts, that is, of changing the substantive rights of the parties to existing contracts." Picture Rocks Fire Dist. v. Pima County, 152 Ariz. 442, 445, 733 P.2d 639, 642 (App.1986) (citing Manning v. Travelers Ins. Co., 250 So.2d 872 (Fla.1971)), disapproved on other grounds by Republic Investment Fund I v. Town of Surprise, 166 Ariz. 143, 800 P.2d 1251 (1990); see also State v. Direct Sellers Ass'n, 108 Ariz. 165, 169-170, 494 P.2d 361, 365-66 (1972) (the prohibition against a state passing a law impairing the obligation of contracts "means only that no state may impair the obligation of an Existing [sic] contract"). When the statute is in place at the time the contract is executed, it does not violate the Constitution; the parties are presumed to know the law and the law is made part of the contract. Samaritan Health Sys. v. Superior Court (Schwartz), 194 Ariz. 284, 293, ¶ 41, 981 P.2d 584, 593 (App.1998).
¶ 33 The statutory obligation to deliver an affidavit of disclosure and the related right of rescission has been in place since 2000, well before the sellers and the Vermas entered into contractual relationships. We are not confronted in this case with any amendment that applies retroactively, and conclude that the statute does not unconstitutionally impair the sellers' right to contract.
C. Compliance with A.R.S. § 33-422 Is Mandatory
¶ 34 The sellers argue that the court erred in finding that A.R.S. § 33-422 is mandatory. *32 They contend that we should construe the statutory language that the "seller... shall furnish a written affidavit" as directory, not mandatory.[4] A.R.S. § 33-422(A) (emphasis added). We disagree.
¶ 35 Our primary goal in interpreting a statute is to find and give effect to legislative intent. Mail Boxes, etc., U.S.A. v. Indus. Comm'n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995). Use of the word "shall" in a statute ordinarily demonstrates a legislative intent to impose a mandatory obligation. HCZ Constr., Inc. v. First Franklin Fin. Corp., 199 Ariz. 361, 364, ¶ 10, 18 P.3d 155, 158 (App.2001). Mandatory terms may be interpreted as directory depending on context and usage, and depending on whether the legislative intent is best served by that construction. Ariz. Minority Coal, for Fair Redistricting v. Ariz. Indep. Redistricting Comm'n, 211 Ariz. 337, 353, ¶ 58, 121 P.3d 843, 859 (App.2005); Way v. State, 205 Ariz. 149, 153, ¶ 10, 67 P.3d 1232, 1236 (App.2003).
¶ 36 We see nothing in A.R.S. § 33-422 to suggest that the Legislature intended "shall" to be interpreted in any way other than its ordinary meaning. As we recently noted in Vig, "[t]he plain language of the statute reveals that its primary purpose is to protect buyers from unscrupulous sellers who might otherwise fail to disclose material defects in a property. The statute also serves to protect sellers from unscrupulous buyers who might seek to invalidate improvident property transactions through the use of specious claims that defects had been wrongly concealed." 221 Ariz, at 397, ¶ 13, 212 P.3d at 89. That dual purpose is not served by a directory interpretation that would allow the parties to forgo the affidavit of disclosure requirement at their unilateral discretion.
¶ 37 In our view, the unequivocal statutory right of rescission militates in favor of a mandatory construction. The specificity of the model form of affidavit likewise suggests that the Legislature intended the statute to be mandatory. The Legislature has taken care in determining the particular information it believes parties should know before completing a transaction of the type to which the statute applies. We hold, therefore, that compliance with A.R.S. § 33-422 is mandatory. A seller must provide the buyer with an affidavit of disclosure that complies with the statute. Once that is done, the buyer's five-day period to rescind commences. A.R.S. § 33-422(D).
¶ 38 Subsection (F) of the statute describes the characteristics of a compliant affidavit of disclosure. First, the affidavit must meet the requirements of A.R.S. § 11-480, the statute describing the form of instruments that are presented to the county recorder for recordation. Second, the affidavit must completely and candidly address the attributes of land described in the model form. See Vig, 221 Ariz, at 398, ¶ 21, 212 P.3d at 90. The affidavit must "follow substantially" the model form, but need not exactly mirror it so long as the required information is included.[5]
D. An Erroneous Affidavit Does Not Give the Buyer a Continuing Right of Rescission
¶ 39 An error or omission in an affidavit of disclosure does not render an affidavit noncompliant such that the buyer is given a continuing right to rescind beyond the time stated in the statute. Where an affidavit fails to disclose the required information accurately, ordinary contract and tort remedies protect the buyer against any harm suffered from nondisclosure or fraud. We base this conclusion on the language of the statute itself.
¶ 40 The statute expressly contemplates the possibility that erroneous affidavits *33 will be recorded. Subsection (C) of the statute provides that a seller's "liability" for an omission or misrepresentation in an affidavit cannot be released or waived, and subsection (E) provides that the county recorder is not required to verify the accuracy of an affidavit. Despite its recognition that a seller might provide an erroneous affidavit, the Legislature did not provide a right of rescission upon discovery of an error after the five-day period has run. By its reference to "liability," and not "rescission," we believe the Legislature expressed its intent that contract and tort remedies are sufficient to redress omissions and misrepresentations in the affidavit. We decline to imply a separate right of rescission where the Legislature has created none.
E. Affirmative Defenses Are Available to Establish Compliance with A.R.S. § 33-422
¶ 41 The sellers contend that they should have been allowed to assert the affirmative defenses of waiver, estoppel, and laches to excuse their noncompliance or delayed compliance with A.R.S. § 33-422. The Vermas contend that such affirmative defenses are precluded by subsection (C) of the statute, which provides that a buyer is not bound by a "release or waiver of a seller's liability arising out of any omission or misrepresentation" in the affidavit. This argument, however, misses the mark in each case, the Vermas sought statutory rescission on the grounds of noncompliance with the disclosure requirement, not liability arising out of an omission or misrepresentation. Nothing in the statute precludes a seller from asserting affirmative defenses to avoid the consequences of noncompliance.
II. Unique Legal Issues
A. Verma v. Tilley Farms
1. The Affidavit of Disclosure Did Not Comply with A.R.S. § 33-422
¶ 42 Tilley concedes that the affidavit of disclosure it provided was based on an outdated form. The Vermas argue that Tilley's affidavit did not comply with A.R.S. § 33-422 because it did not include several items from the model affidavit, and because Tilley answered one question inaccurately and another incompletely.[6]
¶ 43 We have already concluded above that an erroneous answer does not necessarily render an affidavit noncompliant such that the buyer has a continuing right to rescind. Consequently, Tilley's negative, and therefore incorrect, answer to the question whether the property lies within a regulatory floodplain did not make the affidavit noncompliant.
¶ 44 Tilley's affidavit did not, however, answer completely the required questions pertaining to wastewater treatment facilities. Item 9 of the applicable model affidavit asks whether the property has an "on-site wastewater treatment facility (i.e., standard septic or alternative system ...)," whether the property will require installation of a wastewater treatment facility, and whether the treatment facility has been inspected. A.R.S. § 33-422(F) (Supp.2003). The affidavit Tilley completed asked, "Does the Property have a septic tank?" and "Will the Property require installation of a septic system? (Explain)." Tilley answered no to the first question, and did not answer the second. Tilley provided no information regarding inspection, because that question did not appear on the form that the Vermas provided.
¶ 45 Further, Tilley's affidavit did not include items 3 and 11 from the applicable model affidavit. Item 3 asks whether there is "a statement from a licensed surveyor or engineer available stating whether the property has physical access that is traversable by a two-wheel drive passenger motor vehicle," and item 11 asks whether the property "meet [s] the minimum applicable county zoning requirements of the applicable zoning designation." A.R.S. § 33-422(F) (Supp. *34 2003). Tilley argues that item 3 is satisfied because under the agreement the Vermas were required to obtain an American Land Title Association ("ALTA") Survey, and had they done so, they would have had the required information. Tilley argues that item 11 is also satisfied because "it [is] obvious" that "minimum applicable acreages and dimensions would be satisfied" and because its answer to another item implied the answer to item 11.
¶ 46 We do not find these explanations adequate to demonstrate compliance with the statute. The statute imposes an obligation on the seller to provide specific items of information, and Tilley did not describe all of the attributes addressed by the model form. The fact that the Vermas could otherwise discover the information does not establish Tilley's compliance.
2. The Vermas Were Estopped From Seeking Rescission Under A.R.S. § 33-422
¶ 47 We have already held above that a seller should be allowed to raise the affirmative defenses of waiver, estoppel, and laches. We find that the defense of estoppel applies here.
¶ 48 Equitable estoppel applies where the party to be estopped engages in acts inconsistent with a position it later adopts and the other party justifiably relies on those acts, resulting in injury. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 50, ¶ 28, 156 P.3d 1149, 1155 (App. 2007).
¶ 49 The circumstances surrounding Adams' provision of the affidavit of disclosure are undisputed. Citing Adams' declaration, Tilley first asserted those circumstances in its statement of facts opposing the Vermas' motion for summary judgment and supporting summary judgment for Tilley. The Vermas have never disputed Tilley's version of the facts surrounding Tilley's provision of the affidavit, and we take those facts as undisputed for purposes of our analysis.
¶ 50 In May 2005, Tilley completed an affidavit provided by the Vermas, which the Vermas soon thereafter signed next to the language "AGREED, ACCEPTED AND APPROVED." Then, until December 2005, the Vermas continued to take action toward the completion of the sale. They even executed and paid for a third amendment to the purchase agreement to create a further right to extend closing.
¶ 51 Given those undisputed facts, we have no difficulty concluding as a matter of law that the Vermas were estopped from seeking statutory rescission on the ground that Tilley's affidavit was noncompliant with the statute. The Vermas, not Tilley, selected the form of affidavit. There is nothing in the statute to suggest the Legislature intended that a buyer may affirmatively lull a seller into the belief that it has complied with the statute only to invoke a right to rescission at the last minute. And there is nothing in the record to generate a triable issue of fact that anything short of that happened here.
¶ 52 We therefore need not address Tilley's argument that the court wrongly denied its Rule 60(c) motion, nor the Vermas' argument on cross-appeal concerning the exclusion of the amount they paid in extension fees from the award of damages. We vacate the superior court's judgment and reverse and remand for entry of judgment in favor of Tilley.
B. Verma v. Dougherty
1. The Affidavit of Disclosure Did Not Comply with A.R.S. § 33-422
¶ 53 As in Tilley Farms, the Doughertys did not provide any information pertaining to items 3 and 11 from the model form. For the reasons discussed above, we find these inconsistencies between the affidavit furnished and the then-applicable statutory form fatal to the Doughertys' compliance with the statute.
2. Rescission Under A.R.S. § 33-422 Is No Longer Available After the Transaction Has Closed
¶ 54 Here, unlike in Tilley Farms, the transaction had closed before Verma attempted to rescind. We hold that the buyer's right to rescind under A.R.S. § 33-422(D) does not survive closing.
*35 ¶ 55 Section 33-422 contemplates that rescission will occur, if at all, no later than two days before closing. Subsection (A) provides that the affidavit must be furnished at least seven days before the transfer of the property.[7] Subsection (D) provides that the right to rescind must be exercised within five days after the affidavit is furnished. But the statute is silent concerning the consequences of a failure to provide a compliant affidavit before the transfer of title.
¶ 56 At oral argument, Verma contended that where a seller fails to provide an affidavit (or a compliant affidavit) before closing, we should read the statute as creating an ongoing right of rescission for one year after closing.[8] We decline to do so for several reasons. First, and most important, the statute does not expressly create such a lingering right. Second, were we to interpret subsection (D) as creating an implied right of rescission that survives closing, we would inject significant uncertainty into Arizona's recording system that the Legislature does not appear to have intended.
¶ 57 As a practical matter, once a transaction closes, a deed is usually recorded. Third parties, including lenders, are entitled to act in reliance on recorded instruments. Arizona public policy, as reflected in A.R.S. § 33-432 (2007), favors reliance on recorded deeds as evidencing unrestricted fee simple title absent express language to the contrary. Were we to find that A.R.S. § 33-422 creates the springing right of rescission that Verma seeks, we would inject significant uncertainty into the status of title to land throughout the state. We find nothing in Arizona's real property statutes to support such a result.
¶ 58 Because Verma did not first demand compliance with the statute, he could not rescind the bargain with the Doughertys after the August 2005 closing. He did not attempt rescission until December 2005, and we conclude that the right was no longer available.
¶ 59 Because we so hold, we need not address the issue of affirmative defenses. We also need not address the Doughertys' argument that the court wrongly denied its Rule 59(a) and 60(c) motions, nor Verma's argument on cross-appeal concerning the exclusion of the amount paid in extension fees from the award of damages.
3. The Award of Well Repair Expenses
¶ 60 We do not address Verma's argument that the court should not have assessed against him the well repair expenses raised by the Doughertys' counterclaim because Verma presented no argument in the trial court in opposition of the Doughertys' motion for summary judgment on that claim. Having not raised the argument in the trial court, Verma may not now raise it on appeal. Scottsdale Princess P'ship v. Maricopa County, 185 Ariz. 368, 378, 916 P.2d 1084, 1094 (App.1995).
C. Verma v. Stuhr
1. A.R.S. § 33-422 Applies to Parcels Located Only Partially Within An Unincorporated Area
¶ 61 The Stuhrs contend that A.R.S. § 33-422 does not apply to their transaction because the statute applies to property in an "unincorporated area of the county," and their property is located partially within the boundaries of the incorporated Town of Gila Bend.
¶ 62 The Stuhrs' property was sold as a single parcel, at least part of which was located in an unincorporated area of a county. The statute does not state that it applies only to parcels contained entirely within unincorporated areas. Nor does it otherwise provide an exception for parcels located only partially within an unincorporated area. *36 Therefore, we conclude that the plain language of A.R.S. § 33-422 requires its application to this transaction.
2. The Vermas Properly Exercised Their Right to Rescind Under A.R.S. § 33-422(D)
¶ 63 By the plain language of A.R.S. § 33-422, the buyer's right to rescind under subsection (D) is restricted only in that it must be exercised within five days after the affidavit of disclosure is furnished. The right to rescind is not contingent on the buyer's prior knowledge or lack of knowledge about any aspect of the property, and its exercise need not be based on the content of any disclosure in the affidavit.
¶ 64 The Stuhrs furnished the Vermas with an affidavit of disclosure shortly before the transaction was scheduled to close. The Stuhrs do not contend that the Vermas induced them not to provide the affidavit until that late date, and the equitable defenses of estoppel and laches are therefore unavailable. Rather, the Stuhrs contend only that the Vermas did not ask for the affidavit until the last minute. The Vermas, however, had no obligation to request the affidavit. The Stuhrs had an affirmative statutory duty to provide it. See A.R.S. § 33-422(A).
¶ 65 The Stuhrs' argument that the statute should not be read to allow a buyer to rescind even after the contractual Risk Date, after which the deposits became nonrefundable, is unavailing. The timing of the delivery of the affidavit of disclosure is within the exclusive control of the seller. To avoid a last-minute rescission by the buyer, the seller need only furnish a compliant affidavit at the time the contract is formed. The Stuhrs had the ability to prevent any conflict between the statute and their contract. They simply failed to do so.
¶ 66 After the Stuhrs provided the affidavit, the Vermas exercised their right to rescind within five days, and before closing. That they may have previously known about the easement, or had previously intended to proceed with the transaction despite that knowledge, was immaterial. Pursuant to the statute, the Vermas were entitled to rescind when they did, for any reason.
3. The Vermas Did Not Waive Their Right to Rescind
¶ 67 We also conclude that the affirmative defense of waiver is inapplicable to the undisputed facts of this case. The Stuhrs contend that the Vermas expressly waived the right to rescind under the statute because they were sophisticated buyers who agreed to purchase the property "as is." As an initial matter, we note that the statute does not distinguish between sophisticated and unsophisticated buyers.
¶ 68 Waiver is the intentional relinquishment of a known right. Jones v. Cochise County, 218 Ariz. 372, 379, ¶ 22, 187 P.3d 97, 104 (App.2008). "It is well settled that most rights may be waived." McClellan Mortgage Co. v. Storey, 146 Ariz. 185, 188, 704 P.2d 826, 829 (App.1985) (citing Estate of Henry, 6 Ariz.App. 183, 430 P.2d 937 (1967)). We have permitted the waiver of statutory rights by their intended beneficiaries in many circumstances, Herstam v. Deloitte & Touche, LLP, 186 Ariz. 110, 115-16, 919 P.2d 1381, 1386-87 (App.1996) (listing cases), though a statutory right may not be waived where waiver is expressly or impliedly prohibited by the plain language of the statute. Swanson v. Image Bank, Inc., 206 Ariz. 264, 268, ¶ 13, 77 P.3d 439, 443 (2003) (discussing waiver of rights under employment statutes).
¶ 69 "Waiver of a right requires a clear showing of intent to waive that right." Servs. Holding Co. v. Transamerica Occidental Life Ins. Co., 180 Ariz. 198, 206, 883 P.2d 435, 443 (App.1994) (citing Societe Jean Nicolas Et Fils v. Mousseux, 123 Ariz. 59, 61, 597 P.2d 541, 543 (1979)). Express waiver of a statutory right, however, need not recite exactly the right being waived; it is sufficient if the language of waiver clearly conflicts with the right and thereby demonstrates the beneficiary's intent to waive. McClellan Mortgage Co., 146 Ariz, at 189, 704 P.2d at 830.
¶ 70 Section 33-422 neither expressly nor impliedly prohibits waiver, and we do not doubt that a buyer may waive the protection *37 of the statute if it wishes to do so. Here, however, the purchase agreement provided, "Purchaser warrants and acknowledges that Purchaser is purchasing the property on an `as-is' basis, except as specifically warranted." From this, it cannot fairly be said that the Vermas demonstrated an intent to waive their rescission rights under A.R.S. § 33-422. No mention is made of the statute or of the affidavit of disclosure, and the language used is too general to conflict with the statute's specific provisions.
4. Rescission Did Not Entitle the Vermas to the Return of the Extension Fees
¶ 71 In their cross-appeal, the Vermas argue that the trial court erred in excluding from their damages the amount they paid in extension fees.[9] The trial court held that separate consideration, the extension of time to perform, was given for those payments. We agree.
¶ 72 The Vermas argue that under Arizona law, rescission requires placing the parties in the positions they were in before executing the contract. They further argue that the extension fees are no different than the earnest money deposit, which had become nonrefundable, but which the court ordered returned as rescission damages.
¶ 73 The Vermas are correct that rescission is meant to restore the parties to their pre-contract status. Grand v. Nacchio, 214 Ariz. 9, 19, ¶ 27, 147 P.3d 763, 773 (App. 2006). However, a contract may be partially rescinded when the contract is divisible or severable. Jones v. CPR Div., Upjohn Co., 120 Ariz. 147, 153, 584 P.2d 611, 617 (App. 1978). A contract may be considered severable when the consideration given is not single, but apportioned. Id. When separate consideration is given for a portion of a contract, that part of the contract may be considered severable. Id. at 154, 584 P.2d at 618.
¶ 74 Here, the purchase agreement and its amendments expressly provided that the extension payments were in addition to the purchase price and were to be paid to the Stuhrs for the extension of the closing date. The purchase agreement and amendments further provided that any extension payments would be deemed nonrefundable. The purchase agreement therefore supports the trial court's conclusion that the funds were given for consideration independent of the underlying contract. Accordingly, the separate extension agreements are severable from the underlying contract for purposes of rescission of that contract.
¶ 75 We affirm the trial court's ruling excluding the extension fees paid from any judgment awarded to the Vermas on their rescission claim.
5. The Trial Court Did Not Abuse Its Discretion In Denying the Stuhrs' Rule 60(c) Motion
¶ 76 The Stuhrs argue that the trial court wrongly denied their Rule 60(c) motion to set aside the judgment. We review a trial court's decision denying a motion to set aside a judgment for an abuse of discretion and affirm "unless `undisputed facts and circumstances require a contrary ruling.'" City of Phoenix v. Geyler, 144 Ariz. 323, 330, 697 P.2d 1073, 1080 (1985) (quoting Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 121, 317 P.2d 550, 552 (1957)). Because the motion did not raise any substantive issues not available at the time of the court's grant of summary judgment, we conclude that the trial court did not abuse its discretion in denying it.
CONCLUSION
¶ 77 We reverse the judgment of the superior court with respect to the rescission of the transactions in Tilley Farms and Dougherty and remand for entry of judgment in *38 favor of the sellers. We affirm the superior court's judgment in Stuhr. In our discretion, we award fees to Tilley and the Doughertys pending their compliance with ARCAP 21(c). Because neither the Vermas nor the Stuhrs prevailed in their appellate efforts, we decline to award fees in that matter.
CONCURRING: PATRICIA A. OROZCO, Presiding Judge and PATRICK IRVINE, Judge.
NOTES
[1] Prior to closing, the Vermas assigned their position in the transaction to a profit sharing plan for which Kuldip Verma was trustee.
[2] We review the grant of summary judgment de novo, Eller Media Co. v. City of Tucson, 198 Ariz. 127, 130, ¶ 4, 7 P.3d 136, 139 (App.2000), viewing the facts and the inferences to be drawn from those facts in the light most favorable to the party against whom judgment was entered. Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App.1996).
[3] The sellers correctly note that in Transamerica Title Insurance Company v. Cochise County, 26 Ariz.App. 323, 328, 548 P.2d 416, 421 (1976), the court held that Articles 1 and 4 of Chapter 20, Title 32 are in pari materia and therefore must be construed as one law with A.R.S. § 11-806.01, which is in the same title and chapter as A.R.S. § 11-806.03, the predecessor to A.R.S. § 33-422. Section 32-2181.02(A)(2), which is in Article 4, Chapter 20 of Title 32, provides that sales of lots of 160 acres or more "are exempt under this article." Because A.R.S. § 32-2181.02(A)(2) expressly limits the exemption to Title 32, Chapter 20, Article 4, which deals with the sale of subdivided lands, we conclude that the exemption has no application here.
[4] By "directory," we take the sellers to mean not that compliance with the statute is permissive, but rather that it is a procedural requirement that imposes no substantive consequences absent a showing of actual injury.
[5] Tilley and the Doughertys argue generally that substantial compliance with the statute is adequate. We reject that argument. Compliance may be achieved by an affidavit that conforms substantially to the model form, but that is not the same as substantially complying for example, by supplying the pertinent information through means other than that prescribed by the statute.
[6] The Vermas base their argument on the 2005 version of the statute, which did not go into effect until August 2005, but offer no argument to support the application of this version of the statute against Tilley, which provided its affidavit in May 2005. Accordingly, we reject the Vermas' arguments concerning items 13, 14, 15, and 16, because those items were not part of the statute in effect at the relevant time.
[7] Had Verma demanded a compliant affidavit fewer than seven days before closing, we would be presented with a different question. In such a case, the court would be required to consider whether affirmative defenses affected the buyer's rights and whether any equitable remedies might be available. We need not reach those questions here, because we conclude that the closing itself disposes of Verma's claim.
[8] Verma relies on A.R.S. § 12-541, the one-year statute of limitations governing claims for rights created by statute, in support of the argument that the right survives closing for a full year.
[9] The Vermas argue that their cross-appeal is from the denial of a motion for relief from judgment. Though the Vermas filed a motion for reconsideration of the trial court's decision on extension fees, they did not file a motion for relief from the judgment. The Stuhrs argue that the Vermas are appealing from the denial of their motion for summary judgment, which is not an appealable order. McCallister Co. v. Kastella, 170 Ariz. 455, 457, 825 P.2d 980, 982 (App. 1992). We conclude that the Vermas have properly preserved an appeal from the trial court's effective grant of summary judgment to the Stuhrs on the issue of the extension fees.
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706 S.E.2d 230 (2011)
STATE
v.
Lanie Philip LOFLIN.
No. 326P01-2.
Supreme Court of North Carolina.
February 3, 2011.
Lanie P. Loflin, Salisbury, for Loflin, Lanie Philip.
*231 Joan M. Cunningham, Assistant Attorney General, for State of N.C.
Tom Horner, District Attorney, for State.
The following order has been entered on the motion filed on the 7th of December 2010 by Defendant for Notice of Appeal:
"Motion Dismissed Ex Mero Motu by order of the Court in conference, this the 3rd of February 2011."
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269 Neb. 155
STATE OF NEBRASKA, APPELLANT,
v.
JAMES Y. PATHOD, APPELLEE.
No. S-03-1410.
Supreme Court of Nebraska.
Filed January 14, 2005.
Gail E. Collins, Deputy Madison County Attorney, for appellant.
Tom D. Hockabout, of Moyer, Moyer, Egley, Fullner & Warnemunde, for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
CONNOLLY, J.
The State of Nebraska filed an application for leave to docket an appeal under Neb. Rev. Stat. § 29-2315.01 (Reissue 1995). The issue is whether a district court, when sentencing a defendant, must advise and provide written notification of the requirements of Nebraska's Sex Offender Registration Act (the Act), Neb. Rev. Stat. § 29-4001 et seq. (Cum. Supp. 2002). We determine that the court must provide written notification at sentencing. It also must provide copies of the notification and journal entry to various parties. But we also conclude that the failure to do so was harmless because the defendant signed a notice the day after sentencing and had completed serving his sentence when this appeal was heard. The State's exception is sustained.
BACKGROUND
The State charged the appellee, James Y. Pathod, with one count of sexual assault in violation of Neb. Rev. Stat. § 28-320(1)(a) (Reissue 1995). At arraignment, the district court advised Pathod of the Act's requirements. Pathod pled no contest, and sentencing was set for a later date.
The record does not show that the district court informed Pathod of the Act's requirements at sentencing. The day after sentencing, however, Pathod signed a notification of registration responsibilities under the Act. That notification was also signed by the district court judge. The record showsand the State's attorney confirmed at oral argumentthat Pathod has completed serving his sentence.
The State timely filed an application for leave to docket an appeal under § 29-2315.01. The district court signed the application, and the application was filed in this court.
ASSIGNMENTS OF ERROR
The State assigns that the district court erred when at sentencing it failed to advise and provide written notification to Pathod of his duty to register under the Act.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. Campbell v. Omaha Police & Fire Ret. Sys., 268 Neb. 281, 682 N.W.2d 259 (2004).
ANALYSIS
The State argues that the court had a duty to inform Pathod, in writing, at sentencing about his duty to register under the Act. The State further contends that because the court failed to inform Pathod about the Act that the cause should be remanded for resentencing.
Section 29-4007 provides:
(1) When sentencing a person convicted of a registrable offense under section 29-4003, the court shall:
(a) Provide written notification of the duty to register under the Sex Offender Registration Act at the time of sentencing to any defendant who has pleaded guilty or has been found guilty of a registrable offense under section 29-4003. . . .
. . . .
(b) Require the defendant to read and sign a form stating that the duty of the defendant to register under the Sex Offender Registration Act has been explained;
(c) Retain a copy of the written notification signed by the defendant; and
. . . .
A copy of the signed, written notification and the journal entry of the court shall be provided to the county attorney, the defendant, the sex offender registration and community notification division of the Nebraska State Patrol, and the county sheriff of the county in which the defendant resides or is temporarily domiciled.
. . . .
(3)(a) The Department of Correctional Services or a city or county correctional or jail facility shall provide written notification of the duty to register pursuant to the Sex Offender Registration Act to any person committed to its custody for a registrable offense under section 29-4003 prior to the person's release from incarceration.
[2,3] Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004). As a general rule, the word "shall" is considered mandatory and is inconsistent with the idea of discretion. Spaghetti Ltd. Partnership v. Wolfe, 264 Neb. 365, 647 N.W.2d 615 (2002). See, also, State v. Rodriguez, 11 Neb. App. 819, 660 N.W.2d 901 (2003) (construing term "shall" in § 29-4005 of Act).
[4] Here, the Act's plain language states that when sentencing a person, the court "shall" provide written notification and copies of the notification and corresponding journal entry to various parties. Thus, we determine that the Act's requirements are mandatory.
Pathod argues, however, that because he was in county jail, the duty to inform him of the Act shifted to jail personnel under § 29-4007(3)(a). We disagree. The Act does not shift the burden to notify. Instead, it requires multiple entities to provide notification. Thus, the Act required the court to provide notification at sentencing and jail personnel to provide additional notification before Pathod was released from incarceration.
The record, however, does not contain a journal entry showing that written notification was given at sentencing. Because the court was required to provide written notification under the Act and provide a journal entry, we determine that the court erred. Compliance with the Act's technical procedures are important because if they are not properly followed, defendants may seek to use that failure to attack the validity of their conviction or sentence. See, e.g., State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002); State v. Rodriguez, supra.
Having determined that the court erred by failing to provide written notification and a journal entry, we address whether Pathod should be resentenced. The State argues that resentencing is appropriate and that double jeopardy does not apply. We do not reach the issue of double jeopardy because we determine that the court's failure to follow procedure was harmless.
[5] Errors, other than structural errors, which occur within the trial and sentencing process, are subject to harmless error review. State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999). Here, although the record does not contain a journal entry or evidence that notification was given at sentencing, it does contain a notice signed by Pathod and the district court judge that was filed the day after sentencing. In addition, the record shows that Pathod has completed serving his sentence. Concerns about using the failure to provide notification in court to attack the conviction and sentence are lessened, if not eliminated, when the sentence has already been served. Accordingly, we determine that the error was harmless.
CONCLUSION
We conclude that the district court erred when it failed at sentencing to provide written notification in court and failed to provide a journal entry showing that the notification was given. However, the error was harmless because Pathod signed a written advisory form and has already served his sentence.
EXCEPTION SUSTAINED.
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257 S.E.2d 871 (1979)
Philip Thomas DUDLEY et al.
v.
ESTATE LIFE INSURANCE COMPANY OF AMERICA.
Record No. 771792.
Supreme Court of Virginia.
August 30, 1979.
*872 Tommy Joe Williams, Roanoke (James H. Fulghum, King, Fulghum, Renick & Bounds, Roanoke, on briefs), for appellants.
David B. Hart, Roanoke (Smeltzer & Hart, P. C., Roanoke, on brief), for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
COMPTON, Justice.
In this civil appeal, we examine a principal's liability to third persons for fraudulent conduct of an agent.
Appellants Philip Thomas Dudley and Richard W. Walters filed separate actions at law in the court below seeking recovery in damages from appellee Estate Life Insurance Company of America and from George W. Blood. In identical amended motions for judgment, the respective plaintiffs alleged they were damaged by certain fraudulent, malicious and wanton acts of defendant Blood who was acting in the Roanoke area as a representative and agent of defendant Estate Life. Specifically, plaintiffs alleged that during the period of time in question, Blood made certain misrepresentations which induced Dudley and Walters to purchase "one unit" of a special type of life insurance policy and to pay large sums of money upon Blood's promise that plaintiffs would each receive one-fourth of one percent of all insurance premiums collected from other sales of the special policy in Virginia and elsewhere. Plaintiffs alleged that the representations were in fact part of a scheme by which Blood defrauded them. They sought compensatory and punitive damages against both defendants. Estate Life denied involvement in any fraudulent acts or that it was responsible for any such conduct on the part of anyone, including Blood. Blood denied that he acted in a fraudulent or malicious manner.
The cases were consolidated for trial before a jury and, at the conclusion of plaintiffs' evidence in chief, the trial court sustained Estate Life's motion to strike and entered summary judgment in its favor in each case. Blood's motion to strike was overruled and, subsequently, a judgment was entered in favor of each plaintiff against Blood for compensatory damages only. We granted plaintiffs a writ of error to the September 1977 orders of summary judgment. Blood is not a party to this appeal and the validity of the judgments against him are not in issue here.
As we view the plaintiffs' evidence, drawing all reasonable inferences in their favor, the following story develops. The evidence consisted of documentary exhibits and the testimony of Dudley, Walters, Dudley's sister, the treasurer of Estate Life and the chairman of the insurer's board of directors.
At some unspecified time prior to the fall of 1972, the management of Estate Life, a life insurer with its home office in Roanoke, "brought" Blood to Roanoke to supervise the sale of a so-called "GP-800" policy. Although a specimen copy of the policy is not in the record on appeal, non-specific testimony showed that "one unit" of the GP-800 could be purchased by payment of a premium of $600 per year for a period of eight years. At the end of the period, the policy would be "paid up" and the insured would receive a "dividend" of $100 per month for life.
Blood was given the title "Director-Special Marketing" by Estate Life. This title appeared on Blood's Estate Life business cards as well as on publicity brochures and a full-page newspaper advertisement, both listing him among the company officers. Blood individually had a general agency contract with Estate Life. In addition, a corporation organized by Blood to carry on his general agency business, First Estate Builders, Inc. (hereinafter First Builders), also held a general agent's contract with Estate Life. Blood was president of First Builders and told plaintiffs he had the exclusive right to sell, through First Builders as General Agent, all the GP-800 policies written by Estate Life.
Plaintiff Walters, a Roanoke tire salesman, first met Blood in December of 1972. *873 Blood displayed his Estate Life business card, stated he represented the insurer, and asked Walters if he would "like to get into the insurance business on a part-time basis." Walters expressed interest and Blood outlined the requirements as follows. First, the prospect must purchase a GP-800 policy. Next, he must attend a "school" for insurance salesmen at a cost of $75. Upon completion of the training, the recruit would be a "Marketing Representative" of Estate Life entitled to a commission of 35 percent of the first year premiums on policies sold by him. The representative could advance to the position of "Marketing Director," entitled to a 55 percent commission, by selling ten GP-800 policies and by recruiting five other persons to be salesmen of the GP-800.
Blood also outlined an alternative method, to be covered by an "Addendum" to a written Marketing Director Contract, which would permit a representative to be promoted immediately to Marketing Director. By the payment to First Builders of $10,000 in cash, the prospect would be designated a Marketing Director and also become entitled to one-fourth of one percent of all the premiums on GP-800 policies sold by Estate Life through First Builders. Blood advised Walters that within six years, Walters could earn $62,500 annually in commissions, emphasizing that Blood, through First Builders, owned all of the commissions earned on the GP-800.
Walters purchased the policy, paid the additional $75, and attended a three-hour "school" conducted, in part, by Blood at a local motel. Walters subsequently received a six-months temporary license to sell insurance for Estate Life. During February of 1973, Walters attended several "sales meetings" in Roanoke at which the president and another officer of Estate Life as well as Blood all spoke emphasizing the need to promote the GP-800 policy.
In February, Walters introduced Blood to plaintiff Dudley, who operated a country store in Bedford County. Blood made the same presentation to Dudley as he had made to Walters. Dudley, at first, was skeptical about accepting Blood's representations concerning the bonanza to be secured by the Addendum Contract. Blood assured Dudley that the president of Estate Life would execute both the Marketing Director Contract and the Addendum. Thereupon, after prodding by Blood over a period of several weeks, Dudley finally agreed to Blood's proposal and in March of 1973 handed Blood a check for $10,000 payable to First Builders. At the same time, Dudley executed two three-party documents, the printed "Marketing Director Contract" and "Addendum to Marketing Director Contract." These papers had already been signed on behalf of Estate Life by its president and by Blood as president of First Builders. These documents, introduced as exhibits at trial, provided for commissions to be paid on essentially the basis described by Blood to plaintiffs. They made no reference, however to any requirement for the payment of $10,000 in order for the salesman to be eligible to receive the commissions described in the "Addendum."
Upon being told by Blood that Dudley had "signed up," Walters agreed to become a Marketing Director and to take advantage of the commissions set forth in the Addendum. Based on what Blood told him, Walters thought he was "buying into [Estate Life]" and would receive "one-quarter of 1% of all the GP 800 that were sold in Estate Life by all of the agents of Estate Life." Thus, in March of 1973, Walters gave Blood a note for $8,000 and paid the balance of $2,000 by check made to First Builders.
In April, Dudley received a telephone call from Blood. According to Dudley, Blood "talked real excited" and "was real upset." Blood told Dudley that Blood no longer had the exclusive agency for sale of all the GP-800 policies and that Estate Life had "divided" the right to sell the policy among as many as seven other general agents. Dudley testified he then realized that he and Walters had "been took." Dudley, to that time in April, had received about $15 in commissions paid by checks drawn by Estate Life. Blood disappeared from Roanoke. *874 Plaintiffs' subsequent efforts to recover their cash payments from Blood and Estate Life were fruitless.
At the threshold, the parties disagree upon the issue on appeal. Plaintiffs claim that the only question is whether Blood acted within the apparent scope of his authority as agent. They point out that Estate Life assigned two basic grounds in support of its motion to strike plaintiffs' evidence: first, that the evidence failed to establish that Blood was clothed with authority to act as an agent for Estate Life under the circumstances and, second, that the evidence failed to show that Blood made fraudulent misrepresentations of existing facts. Plaintiffs also note that Blood moved to strike the evidence on the sole ground that Blood individually was not guilty of fraud because First Builders, and not Blood, received the money paid by plaintiffs, and because plaintiffs entered into the speculative venture "with their eyes wide open." Consequently, plaintiffs argue, when the trial judge, who assigned no reasons for his rulings on the respective motions to strike, overruled Blood's motion, the court implicitly ruled that a prima facie case of fraud and deceit had been established. Thus, plaintiffs argue the court below must have ruled in Estate Life's favor solely upon the apparent authority issue; they have appealed the trial court's decision on that one question, plaintiffs contend.
Estate Life argues, however, that both the issue of fraud and the issue of apparent authority properly are questions on appeal. Estate Life contends that because the trial judge failed to assign any reasons for his rulings on the motions to strike, it must be assumed that he agreed with each position taken by Estate Life in support of its motion, thereby making the fraud issue a proper subject for determination here. We disagree.
The cases went to the jury as to Blood on the theory of fraud and deceit. We will not presume that the trial judge made inconsistent rulings on the fraud question when he considered the separate motions to strike. So it is manifest that the court ruled in Estate Life's favor, and, of course, against plaintiffs, solely on the apparent authority question. As a consequence of this adverse ruling in their claims against Estate Life, the plaintiffs assigned one error as follows:
The trial court erred when it sustained the motion to strike of Estate Life Insurance Company of America at the conclusion of plaintiffs' case on the grounds there was no evidence at all upon which to find the defendant Blood acted within the scope of his authority so as to make Estate Life Insurance Company of America, his principal, liable for the perpetrated fraud.
That assignment of error raised the sole issue of apparent authority.[*] Elementary is the rule of appellate procedure that the scope of argument on appeal is limited by the assignments of error. Harlow v. Commonwealth, 195 Va. 269, 271, 77 S.E.2d 851, 853 (1953). Consequently, we hold that the only issue open to debate in this appeal is whether the plaintiffs' evidence established prima facie that Blood acted within the apparent scope of his authority thereby making Estate Life liable for the alleged fraud.
On that issue, Estate Life argues that the evidence demonstrates the fraud was committed solely for Blood's personal gain. Thus, it contends, the fraud was committed outside the scope of the agent's authority and the principal is not liable. In the same vein, the insurer takes the position that in a case such as this in which the agent makes fraudulent misrepresentations to procure personal gain, the principal cannot be held liable for those misrepresentations absent proof of actual knowledge. We reject these contentions and hold that the plaintiffs proved a prima facie case of liability upon Estate Life.
*875 We are guided in our decision by the following Restatement rules, which are in accord with principles already established in Virginia:
Agent's Position Enables Him to Deceive
A principal who puts a servant or other agent in a position which enables the agent, while apparently acting within his authority, to commit a fraud upon third persons is subject to liability to such third persons for the fraud.
Restatement (Second) of Agency § 261. Comment a. to § 261 reads as follows:
The principal is subject to liability under the rule stated in this Section although he is entirely innocent, has received no benefit from the transaction, and, as stated in Section 262, although the agent acted solely for his own purposes. Liability is based upon the fact that the agent's position facilitates the consummation of the fraud, in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of the business confided to him.
Section 262 of the same Restatement provides:
Agent Acts for His Own Purposes
A person who otherwise would be liable to another for the misrepresentations of one apparently acting for him is not relieved from liability by the fact that the servant or other agent acts entirely for his own purposes, unless the other has notice of this.
The Comment gives the following rationale for the rule set forth in § 262.
A person relying upon the appearance of agency knows that the apparent agent is not authorized to act except for the benefit of the principal. This is something, however, which he normally cannot ascertain and something, therefore, for which it is rational to require the principal, rather than the other party, to bear the risk. The underlying principle based upon business expediencythe desire that third persons should be given reasonable protection in dealing with agents[] finds expression in many rules, some in situations in which there is no apparent authority . . . and many in situations in which there is apparent authority.. . . In all of such cases the other party relies upon the honesty of the agent, and, if the principal is disclosed or partially disclosed, realizes that the agent is not authorized if fraudulent. It is, however, for the ultimate interest of persons employing agents, as well as for the benefit of the public, that persons dealing with agents should be able to rely upon apparently true statements by agents who are purporting to act and are apparently acting in the interests of the principal.
Restatement (Second) of Agency § 262, comment a.
The foregoing principles were applied in Jefferson Standard Life Insurance Co. v. Hedrick, 181 Va. 824, 27 S.E.2d 198 (1943). There, the wilful and culpable deception by the agent, authorized by his employer, an insurer, to solicit loans for the company, induced the plaintiff not to seek a loan elsewhere resulting in damage to plaintiff for which he sued the principal. This court in affirming a judgment against the insurer, held that a principal is liable for the fraudulent and deceitful acts of his agent "committed as an incident to and during the performance of an act which is within the scope of the agent's authority." 181 Va. at 834-35, 27 S.E.2d at 202.
Review of several foreign cases will demonstrate the manner in which courts of other jurisdictions have applied the foregoing principles. In Bowman v. Home Life Insurance Company, 243 F.2d 331 (3d Cir. 1957), a male field underwriter for defendant life insurer, masquerading as the company's physician, conducted intimate physical examinations upon the female plaintiffs, who had applied for insurance. The insurer furnished the underwriter with the plaintiffs' original application cards, which entitled him to ask plaintiffs many questions. He was to determine whether the insurance applied for was an appropriate risk for the *876 company to assume. The underwriter was not a physician and he was not authorized to conduct physical examinations. He obtained a black bag, which looked like a physician's kit, called upon the plaintiffs at their home and made the examinations. Applying Pennsylvania law and the foregoing Restatement rules, the Third Circuit determined, in the plaintiffs' suit for damages against the insurer, that the underwriter's conduct could be attributed to his employer. The court noted that even though the agent went further than his instructions and committed a tort upon the plaintiffs, "this was a kind of deceit which was well within the insignia of office with which he had been clothed." 243 F.2d at 334.
Likewise, in Lucas v. Liggett & Myers Tobacco Co., 50 Haw. 477, 442 P.2d 460 (1968), the owners of a supermarket sued a cigarette manufacturer for the value of cigarettes stolen by a cigarette sales representative. The evidence showed that in the course of servicing a large cigarette rack in the supermarket, the manufacturer's agent had stolen a quantity of the product over a period of time. The stolen cigarettes had been billed to the supermarket by the wholesale supplier, to which the supermarket owners had made payment. The Supreme Court of Hawaii rejected Liggett & Myers' argument that it was not liable because the agent was acting outside the scope of his employment when he committed the thefts. Relying on the foregoing Restatement rules, the court held the principal liable for the acts of its agent. It pointed out that Liggett & Myers put the agent in a position to commit the thefts and that from the plaintiff's point of view all of the agent's activities in connection with servicing the cigarette rack were apparently authorized by the principal. The court emphasized that Liggett & Myers' division manager frequently accompanied the agent and gave no indication that he disapproved of the agent's servicing activities at the supermarket.
The same reasoning has been uniformly applied in other cases with facts similar to Lucas. E. g., Billups Petroleum Co. v. Hardin's Bakeries Corp., 217 Miss. 24, 63 So.2d 543 (1953); Ripon Knitting Works v. Railway Express Agency, 207 Wis. 452, 240 N.W. 840 (1932).
Applying the foregoing principles to these facts, we think plaintiffs' evidence was sufficient to raise a jury issue on the question whether Blood's conduct was attributable to his principal. Estate Life put Blood in a position which enabled him, while apparently acting within his authority, to perpetrate the frauds upon Dudley and Walters. And on this evidence, we cannot say as a matter of law that plaintiffs had notice that Blood was acting for his own purposes.
From a third person's point of view, Blood was clothed with all the authority of Estate Life necessary to sell its product and to recruit others to become salesmen for the insurer. The principal armed Blood with an Estate Life business card which he used during his solicitation of plaintiffs. Blood was prominently presented in company brochures and in a newspaper advertisement as one of the insurer's officers. He advocated promotion of the GP-800 in sales meetings in the presence of other company officers, who, according to the evidence, never registered any disapproval of Blood's sales activities. He was allowed to display written contracts specifying compensation for salesmen which carried the signature of the president of Estate Life as one of the contracting parties.
Blood's position, thus ornamented, facilitated the consummation of the fraud whereby he improperly extracted a total of $12,000 from the two plaintiffs. Under the circumstances, Dudley and Walters were entitled to rely on statements made by Blood, who was purporting to act and was apparently acting in the interests of Estate Life.
Finally, Estate Life relies on the cases of Bank of Occoquan v. Davis, 155 Va. 642, 156 S.E. 367 (1931), and Peoples National Bank v. Morris, 152 Va. 814, 148 S.E. 828 (1929), neither of which is apposite and each of which is factually dissimilar. In Bank of *877 Occoquan, the defendant bank was held not liable for the fraudulent acts of one of its agents, a cashier. The dispositive holding was that the plaintiff had actually constituted the cashier as his own agent. Thus, the plaintiff, and not the bank, was bound by the agent's fraudulent conduct. Here, Blood was not plaintiffs' agent.
In Peoples National Bank, one Davis was cashier of the predecessor to defendant bank and was also president of a mercantile company. On behalf of the mercantile company, Davis obtained advance payments of rent from the plaintiff Morris, lessee of a building owned by such company. This was done a few days before the bank foreclosed on the rental property, thus eradicating the lease. Davis paid the money obtained from the plaintiff to the mercantile company which, in turn, used it to pay a debt to the bank. The evidence showed that Davis acted for his own benefit solely in his capacity as president of the mercantile company. In that capacity, he made no representations on behalf of the bank. Accordingly, this court refused to hold the bank liable for the conduct of Davis "merely" because he happened to be cashier of the bank. 152 Va. at 823, 148 S.E. at 830. In the case under consideration, however, Blood was acting for himself and First Builders, but such conduct of Blood individually and on behalf of his own corporation was apparently within the scope of Estate Life's business of vending insurance and recruiting salesmen.
In passing, we note broad language in Peoples National Bank, 152 Va. at 823-24, 148 S.E. at 830, a portion of which is quoted in Bank of Occoquan, 155 Va. at 648, 156 S.E. at 368, which states that when an agent, ostensibly acting in the principal's business, is really committing a fraud for his own benefit, he is acting outside the scope of his agency and the principal is not liable for such conduct. To the extent that this language means that when an agent is acting fraudulently for his own benefit, ipso facto he is acting outside the scope of his authority, we expressly disapprove it as being at odds with the views we have expressed in this opinion.
For the foregoing reasons, we hold that the trial court erred in sustaining Estate Life's motion to strike the plaintiffs' evidence. Consequently, the judgments below will be reversed and the cases remanded for new trials.
Reversed and remanded.
NOTES
[*] The assignment of error contained in the petition for appeal was in the foregoing language. That original language was altered when the assignment was set forth in the appendix and plaintiffs' opening brief, but presented the same issue. Such an alteration is contrary to accepted practice and is improper.
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677 F.3d 317 (2012)
Kimberly K. BENEDIX, Plaintiff-Appellant,
v.
VILLAGE OF HANOVER PARK, ILLINOIS, et al., Defendants-Appellees.
No. 11-1096.
United States Court of Appeals, Seventh Circuit.
Argued September 19, 2011.
Decided April 17, 2012.
*318 John P. Madden (argued), Attorney, O'Malley & Madden, P.C., Chicago, IL, for Plaintiff-Appellant.
Brandon K. Lemley (argued), Attorney, Querrey & Harrow, Chicago, IL, for Defendants-Appellees.
Before EASTERBROOK, Chief Judge, and KANNE and WILLIAMS, Circuit Judges.
EASTERBROOK, Chief Judge.
The Village of Hanover Park fired Marc Hummel from his position as Village Manager. That is the sort of job for which politics is a legitimate qualification (or disqualification). See Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). At the same time as they ousted Hummel, the Village President and Board of Trustees restructured the work force. An ordinance abolished three positions and created one new slot. Kimberly Benedix had occupied one of the three abolished positions: Executive Coordinator to the Village Manager. She filed this suit under 42 U.S.C. § 1983, contending that the Village, the President, and three of the Trustees violated the first amendment (applied to the states by the fourteenth) by holding her associations against her. Benedix contends that she was canned because she was associated with (and a friend of) Hummel, who had lost a political struggle, after which the defendants decided to clean out Hummel's office.
Because the Village implemented its plan through an ordinance, the district court dismissed the complaint on the ground of legislative immunity. See 2010 WL 5099997, 2010 U.S. Dist. LEXIS 129746 (N.D.Ill. Dec. 8, 2010). Despite Benedix's protest that this ordinance wasn't "really" legislation because it had her as a target, we agree with the district court that an ordinance adopted through the legislative process, and having the force of law, is covered by legislative immunity no matter the motives of those who proposed, voted for, or otherwise supported the proposal. See Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Rateree v. Rockett, 852 F.2d 946 (7th Cir.1988).
But the district judge failed to notice that the Village is among the defendants. Section 1983 imposes liability on state and municipal governments for their own unconstitutional policies, see Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and legislation makes the elimination of Benedix's position the Village's official policy. Municipalities do not enjoy any kind of immunity from suits *319 for damages under § 1983. See Owen v. Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Thus legislative immunity for the President and Trustees does not allow a court to end the suit. And since this suit was dismissed on the pleadings, we must assume that the main, if not the only, reason for the new ordinance was to get rid of the ousted Village Manager's staff. (Benedix contends that the Village Manager's position was itself abolished and that the President and Trustees took over management through a new position called Village Collector. This detail does not affect the analysis.)
Benedix contends that association should be treated the same as politics for purposes of the rule that a public employer cannot hire or fire (most) employees on the basis of speech. See, e.g., Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). This is not at all clear to usand not only because the right of association is derived from other constitutional rights rather than being a free-standing entitlement. Courts often say that intimate association is constitutionally protected, see Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (marriage is a fundamental right), but antinepotism statutes are common. Hanover Park could prevent the Village Manager from hiring his wife or child as Executive Coordinator; and if the closest kinds of association are legitimate grounds of deciding who occupies what positions in government, what's wrong with considering more distant kinds of association, such as friendship? Cf. Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228 (1977) (Social Security benefits may be reduced following marriage, even though this discourages intimate association).
It is common to hold a person's associations against him. For example, when an Attorney General leaves office, all of the special assistants, executive assistants, special assistants to the deputy executive assistants, and the rest of the coterie go too, so that the new Attorney General can choose his own aides. Policymaking officials such as an Attorney General and a Village Manager need an immediate staff of dedicated aides if they are to do their jobsand if the results of elections are to be translated into policy. It would disrupt this process, and undermine the right of the people to change policies by replacing officeholders, if a contention such as "I was a friend of the outgoing Attorney General and supported his policies" insulated the assistant from removal, the new Attorney General would arrive to find a potential saboteur in his entourage.
To put this differently, it is an important part of the new officeholder's own right of association to be able to choose who to work with, the better to promote his ideas and policies. Cf. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (organizers of a parade may choose who can march and who can't, so that they can convey their own message). This may be why neither Elrod nor any of its successors suggested that friendship with an ousted officeholder is a forbidden ground of action in making personnel decisions. Benedix has not cited, and we could not find, any appellate decision holding that friendship is a constitutionally impermissible basis of hiring or firing public employees.
But we need not decide whether Hanover Park could have removed all of Hummel's friends no matter what position they held. The need for the new Village Manager to have a loyal staff does not imply a need for the Village to get rid of, say, the *320 ousted Village Manager's next door neighbor who had a job as a kindergarten teacher. Benedix was the Executive Coordinator to the Village Manager. According to her brief, "she reported directly to and worked closely with Village Manager Hummel." She contends that Executive Coordinator was not a policy-making job, and so we shall assume, but a position as a policymaker's right-hand woman must be deemed a "confidential" one. Hummel had only two assistants, including Benedix. A new Village Manager (or Village Collector) who arrived and found that 50% of his staff was committed to his political adversary would not be able to do his job.
Elrod and its successors say that politics is an appropriate ground of decision for policymaking and confidential positions. We understand "confidential" positions to include those in the policymaker's immediate officenot only those who hear confidences (such as the policymaker's secretary or executive assistant) but also the persons responsible for recommending and implementing the policies. See Faughender v. North Olmsted, 927 F.2d 909, 913-14 (6th Cir.1991) (mayor's secretary is a "confidential" position); Soderbeck v. Burnett County, 752 F.2d 285, 288 (7th Cir. 1985) ("you cannot run a government with officials who are forced to keep political enemies as their confidential secretaries"). An Executive Coordinator who reports directly to, and works closely with, a policymaker such as the Village Manager is properly classified as a "confidential" employee who may be hired and fired on account of politicsor friendship. No matter what one makes of associational rights, friendship cannot have greater status than political speech.
Benedix presented some state-law claims under the supplemental jurisdiction. The district judge dismissed them, concluding that they are blocked by a state statute that prevents awards of damages based on legislative activity. 745 ILCS 10/2-205. We agree with that conclusion. Benedix has not made a claim under state law directly against the Village, so the judgment of the district court is
AFFIRMED.
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333 F.2d 812
Neal AYERS, Plaintiff-Appellant,v.Bernard KIDNEY and American Employers' Insurance Company,Defendants-Appellees.
No. 15290.
United States Court of Appeals Sixth Circuit.
June 30, 1964.
L. Thomas Skidmore, of Oberholtzer & Skidmore, Medina, Ohio, for appellant.
Eben H. Cockley, Cleveland, Ohio, James E. Courtney, Cleveland, Ohio, on brief; Jones, Day, Cockley & Reavis, Cleveland, Ohio, of counsel, for appellee American Employers' Ins. Co.
Before CECIL, O'SULLIVAN and PHILLIPS, Circuit Judges.
O'SULLIVAN, Circuit Judge.
1
This case involves a summary judgment in favor of appellee American Employers' Insurance Company, defendant in a supplemental proceeding under Ohio Revised Code, 3929.06. Such statute provides a method whereby, in a personal injury case, a judgment creditor of an allegedly insured debtor may enforce collection of the judgment against the liability insurer of the judgment debtor. Plaintiff-appellant, Neal Ayers, had obtained a $17,500 judgment against Bernard Kidney arising out of a collision between a truck owned by Kidney and a railroad train, in which plaintiff Neal Ayers, an employee of the railroad, was injured.
2
The issue involved is whether a policy of liability insurance written by defendant Insurance Company, insuring Kidney against certain liabilities, and in force on the day of the mentioned collision, April 3, 1958, covered Kidney's liability for the tort upon which Ayers' judgment against Kidney was obtained. The District Judge, upon the basis of the pleadings and affidavits filed in support of, and in opposition to, appellee Insurance Company's motion for summary judgment found that there was no such coverage in force. Judgment for the insurance company was entered.
3
On or about April 12, 1957, Kidney owned a truck and trailer with which he was engaged primarily in hauling as contract lessor. On that date, defendant American Employers' Insurance Company issued to him a policy of liability insurance providing certain coverages which, by endorsement attached thereto, provided that the bodily injury liability coverage did not apply 'while the automobile or any trailer attached thereto is used to carry property in any business.' At the time of the accident, Kidney's vehicle was hauling coal in a business then being carried on by Kidney. The policy in question, with the above quoted exclusionary endorsement, provided what is known as 'deadhead' or 'bobtail' coverage. It was sold at a reduced premium of $43.68. It was designed to cover truckers who lease their trucks, usually with a driver, to authorized public carriers while the trucks are returning empty--'deadheading'-- after delivering cargo for the lessee public carrier. The liability of such a trucker while carrying cargo for the lessee carrier is covered by the carrier's liability insurance. This so-called 'deadhead' or 'bobtail' insurance is sold to these trucker-lessors at a low premium because of the limited coverage provided.
4
While appellant makes some claim that the controlling endorsement, when read in conjunction with the entire policy, results in an ambiguity which should be resolved in favor of coverage, we find no such ambiguity. The exclusion of coverage when the insured vehicle 'is used to carry property in any business' is clear. Kidney's vehicle was being used to carry coal in Kidney's own business when this accident happened. There was no coverage unless it arises by what plaintiff calls waiver or estoppel.
5
Plaintiff contends that, notwithstanding the clear language of Kidney's policy and its endorsement, Kidney was covered for the loss involved for the two following reasons:
6
1. In opposition to defendant's motion for summary judgment, plaintiff filed Kidney's affidavit wherein Kidney said that he contacted the Somers-Smith Agency in Elyria, Ohio, for insurance to cover his tractor and trailer and that 'he requested full coverage to protect him at all times that he was not covered by the policy of the lessee for whom he primarily hauled.' Kidney's affidavit went on to say that he informed the agency,
7
'that he also intended to haul coal and gravel on his own account; that Joe Smith (of the agency) told affiant that he would insure affiant with American Employers Insurance Company, a company for which he was agent; that Joe Smith on April 12, 1957, told affiant that he was insured, and shortly thereafter affiant received Policy No. XF1121112; that affiant, relying on Agent Smith's words and declarations and the request of affiant to Joe Smith, assumed that he was covered.'Plaintiff says that the foregoing conversational events, accepted as true on motion for summary judgment, brought into being coverage not provided by the written insurance contract.
8
2. Kidney's affidavit further averred that some months after the policy was issued and while he was hauling under lease arrangement with the Cleveland Stone Company, he requested that 'a certificate of insurance be sent to the Cleveland Stone Company for the purpose of notifying the Cleveland Stone Company that affiant did have coverage; that said certificate of insurance was sent out and this certificate did not indicate any restrictions or limitations on coverage * * *.' From this, plaintiff argues that coverage protecting Kidney while hauling goods on his own came into being or that defendant Insurance Company, by reason of such certificate, is estopped to deny the existence of such coverage.
9
1. Parol creation of coverage.
10
Plaintiff's position is that notwithstanding the clear language of the policy, which specifically excluded the coverage claimed, such coverage came into being as a result of the above conversations between Kidney and defendant's local agent. Aside from the fact that scrutiny of the words of such conversations fails to disclose an agreement by the agent to obtain a policy for Kidney with the now claimed coverage, we are of the opinion that the coverage sought was not thereby provided by defendant insurance company.
The policy issued contained the following:
11
'21 Changes. Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed except by endorsement issued to form a part of this policy.' '25 Declarations. By acceptance of this policy the named insured agrees * * * that this policy embodies all agreements existing between himself and the company or any of its agents relating to this insurance.'
12
This diversity case is controlled by Ohio law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Because we deal here with a subject upon which there is much disagreement in state court decisions, we first look for Ohio law which is decisive or from which we can deduce what its highest court would do with the question before us. In some matters relating to the authority of insurance agents, the law of Ohio remains unsettled. Gettins v. United States Life Ins. Co., 221 F.2d 782, 783 (CA 6, 1955); John Hancock Mutual Life Ins. Co. v. Luzio, 123 Ohio St. 616, 621, 176 N.E. 446, 449 (1931). We think, however, that there are Ohio decisions which disclose a direction leading to our conclusion that Ohio would enforce the quoted provisions of the policy in question and thereby forbid creation of an insurance contract in the manner sought by the plaintiff Ayers.
13
In 30 Ohio Jur.2nd, 'Insurance' 744, p. 682, we find this text digest of Ohio law:
14
'As far as the doctrines of waiver and estoppel are based upon the conduct * * * of the insurer, they are not available, as a rule, to bring within the coverage of a policy risks not covered by its terms or risks expressly excluded therefrom.'
15
While Ohio Revised Code 3929.27 provides that solicitors obtaining applications shall be considered as agents of the issuing company, it does not follow that limitations on the authority of such an agent, clearly expressed, will not be enforced. Such was the holding of Plotner v. Buckeye Union Casualty Co., 94 Ohio App. 94, 97, 98, 114 N.E.2d 629, 632, where liability coverage was sought to be effected through an oral notice and request to a local agent. The Ohio Court of Appeals enforced a policy provision substantially identical with the hereinabove quoted provision No. 21, saying, 'as no endorsement was issued by defendant company to be a part of the policy, transferring the insurance from a 1949 Pontiac to a 1950 Pontiac, the insurance policy upon which this action is based did not indemnify the plaintiff for damages sustained to the 1950 Pontiac.'
16
In the case before us, plaintiff relies upon Kidney's averment that he told the agent that he was going to use his truck to haul coal for himself as well as to use it in a lease arrangement. Such knowledge, however, would not add coverage for a use which is specifically excluded by the terms of the policy. Such we believe is the effect of the holdings in Republic Mutual Ins. Co. v. Faught, 83 Ohio App. 31, 34, 82 N.E.2d 133, and Gillespie v. Security Mutual Life Ins. Co., 18 Ohio App. 164. In the latter case it was contended that an agent's conduct provided a policy term not contained in the written insurance contract. In disposing of such contention, the court said:
17
'If the agent, by virtue of his agency, has the power, by attaching a rider, to enlarge the company's liability to pay dividends, no reason is apparent why he could not in the same way increase the face of the policy or shorten the period of its maturity.' (18 Ohio App. 168)
18
Actually, the subject we deal with here is not waiver or estoppel, but the question of whether a conversation between an applicant and an agent of an insurance company can add or eliminate terms contrary to the clear language of the policy. In the context of this case, we do not consider that contracts of insurance can thus be created. If they could, then indeed a named insured could, on the basis of his claim of oral communications, make an issue of fact as to whether he had $100,000 coverage on three automobiles instead of $5,000 on one automobile as provided in a policy delivered to him.
19
While the Ohio cases which we have discussed are not directly dispositive of our problem, we find them sufficient to persuade us that our decision fits Ohio law.
20
2. Certificate to Cleveland Stone Company.
21
The Kidney affidavit opposing the motion for summary judgment states that several months after issuance of the policy and while Kidney was hauling gravel for the Cleveland Stone Company, he requested that a certificate of insurance be sent to that company 'for the purpose of notifying the Cleveland Stone Company that affiant did have coverage' and that a certificate was sent out which 'did not indicate any restrictions or limitations on coverage.' The accident involved in this case did not occur while Kidney was hauling for such company. Whatever right the Cleveland Stone Company might have been able to assert against the defendant Insurance Company by virtue of such certificate is not before us. We are satisfied, however, that the certificate did not provide, in the case before us, coverage clearly excluded by the policy sued upon.
22
Judgment affirmed.
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KEN PAXTON
ATTORNEY GENERAL OF TEXAS
September 28, 2015
Ms. Katie Conner Opinion No. KP-0038
Brazos County Auditor
200 South Texas Avenue, Suite 218 Re: Whether the Open Meetings Act applies
Bryan, Texas 77803 to district and county court-at-law judges
when they meet to appoint county officials
(RQ-0019-KP)
Dear Ms. Conner:
Your questions concern the Open Meetings Act (the "Act") and to what extent it may apply
to "a group comprised solely of district and county court-at-law judges." 1 You provide two statutory
examples of such judicial groups, asking whether each group constitutes a "governmental body"
under the Act. See Request Letter at 2. The term "governmental body" is defined under the Act to
include "a board, commission, department, committee, or agency within the executive or legislative
branch of state government that is directed by one or more elected or appointed members." TEX.
Gov'TCODEANN. § 551.001(3)(A) (West Supp. 2014). The term also includes "a deliberative body
that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political
subdivision of a county or municipality" and "the governing board of a special district created by
law." Id. § 551.001(3)(D), (H). With this statutory language in mind, we examine each judicial
group about which you ask.
Your first example concerns district judges who meet to appoint a county auditor. Request
Letter at 2. Pursuant. to chapter 84 of the Local Government Code, "the district judges having
jurisdiction" in a county with a population of 10,200 or more "shall appoint a county auditor." 2 TEX.
Loe. Gov'T CODE ANN.§§ 84.00l(a), .002(a) (West 2008). The judges shall appoint the auditor "at
a special meeting held for that purpose." Id. § 84.003(a). The district judges also approve the
appointment of assistants to the county auditor. Id. § 84.021(a). This office has previously opined
that a group of district judges meeting to appoint a county auditor pursuant to chapter 84 of the
Local Government Code is not a "governmental body" under the Act because the group "does not
constitute a board, commission, department, committee, or agency within the executive or
legislative department of the state nor is it a department, agency, or political subdivision of a county
1Letter from Ms. Katie Conner, Brazos Cnty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2
(Mar. 24, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
2
Brazos County has a population of 194,851. See U.S. Census Bureau, U.S. Dep't. of Commerce, 2010
Census of Population, http://quickfacts.census.gov/gfd/.
Ms. Katie Conner - Page 2 (KP-0038)
or a city or the governing board of a special district created by law." Tex. Att'y Gen. Op. No. JM-
740 (1987) at 4 (considering the predecessor to section 84.005 of the Local Government Code). The
law governing the appointment of a county auditor has not substantively changed since 1987 when
Opinion JM-740 was issued. Thus, the analysis and conclusion of that opinion is still applicable.
A group of district judges meeting to appoint the county auditor pursuant to chapter 84 of the Local
Government Code is not a "governmental body" under the Act.
Your second example concerns district and county court judges who meet to appoint a
community supervision and corrections department ("department") director. Request Letter at 2.
Section 76.004 of the Government Code directs a specific group of judges to "appoint a department
director" after publicly advertising the position, posting a job description, conducting a competitive
hiring process, and reviewing eligible applicants. TEX. Gov'T CODE ANN. § 76.004(a), (h) (West
2013). This group of judges also establishes the department as a whole and approves the
department's budget and community justice plan. Id § 76.0Q2(a). Against this background, we
examine each relevant definition of "governmental body" in the Act.
First, subsection 551.001(3)(A) of the Act defines "governmental body" as "a board,
commission, department, committee, or agency within the executive or legislative branch of state
government that is directed by one or more elected or appointed members." Id.§ 551.001(3)(A)
(West Supp. 2014). Although it establishes a department, the group of judges itself is not "a board,
commission, department, committee, or agency" that is "directed by one or more elected or
appointed members" because the judges are not elected or appointed to serve as a member of the
group. Id Membership in the group is established, not by election or appointment, but by statute.
See id § 76.002(a) (West 2013) (listing a specific group of judges). Thus, it is not a "governmental
body" under subsection 551.001(3)(A).
Next we examine subsection 551.001(3)(D), which defines a governmental body as "a
deliberative body that has rulemaking or quasi-judicial power and that is classified as a department,
agency, or political subdivision ofa county or municipality." Id. § 55 l.001(3)(D). The group of
judges has quasi-judicial power because it exercises judgment and discretion in its statutory
functions, and its decisions are binding. See Fiske v. City of Dallas, 220 S.W.3d 547, 551 (Tex.
App.-Texarkana 2007, no pet.) (defining "quasi-judicial power" to include these elements, among
others). The group of judges is not, however, "a department, agency, or political subdivision of a
county or municipality," and thus it is not a "governmental body" under subsection 551.001(3)(D).
Finally, the definition of "governmental body" in subsection 551.001 (3)(H) of the Act refers
to "the governing board of a special district created by law." ·TEX. Gov'T CODE ANN.
§ 551.001(3)(H) (West Supp. 2014). A previous opinion of this office concluded that a group of
district and county judges appointing the director of a depcirtment pursuant to chapter 76 of the
.Government Code comes within the scope of a "special district" and thus constitutes a
"governmental body" as that term is defined by subsection 551.001 (3)(H) of the Act. See Tex. Att'y
Gen. Op. No. DM-395 (1996) at 4. Since the time that DM-395 was issued, however, the Legislature
has altered the role of district and county judges with respect to departments. See Tex. Att'y Gen.
Op. No. JM-1185 (1990) at 3 (noting the relevance of a governmental body's function in
determining whether it is a governmental body subject to the Act).
Ms. Katie Conner - Page 3 (KP-0038)
Opinion DM-395 based its conclusion on both the broad definition of"special district" used
by an appellate court and the broad statutory responsibilities then in place for district and county
judges with respect to departments, particularly those involving management and decision-making.
See Tex. Att'y Gen. Op. No. DM-395 (1996) at 3-4 (examining Sierra Club v. Austin Transp. Study
Policy Advisory Comm., 746 S.W.2d 298 (Tex. App.-Austin 1988, writ denied)). The court in
Sierra Club defined "special district" as "[a] limited governmental structure created . . . to
accomplish a primarily local benefit or improvement." Sierra Club, 746 S.W.2d at 301. The
Attorney General in DM-395 stated that "[the committee of judges'] control over the CSCD
directorship and CSCD finances, as well as its general managerial function with respect to the
CSCD, makes it, we think, a 'governing body' of such special district within the [A]ct' s definition."
Tex. Att'y Gen. Op. No. DM-395 (1996) at 4. Legislation passed in 2005, however, significantly
scaled back the role of judges with respect to a department. See Act of May 16, 2005, 79th Leg.,
R.S., ch. 255, §§ 1, 4, 5, 7, 8, 12, 2005 Tex. Gen. Laws 454, 454-58 (codified at TEX. Gov'T CODE
ANN. §§ 76.002, .0045, .0051, .009, & .010 (West 2013)). As a result of these changes, judges no
longer have the authority to employ personnel, authorize the carrying of weapons, expend or
authorize expenditures of department funds, or participate in the management of a department that
they previously had. See id Instead, "[t]he responsibility of a judge described by Section 76.002
for personnel decisions is limited to the appointment of a department director and fiscal officer,"
and for budgetary decisions the responsibility "is limited to: (1) appointment of a fiscal officer; and
(2) approval of the department's budget." TEX. Gov'T CODE ANN.§ 76.0045(a)-(b) (West 2013).
Thus, the role of the district and county judges that appoint the department director is no longer that
of a decision-making "governmental structure" inherent in the Sierra Club court's definition of a
"special district." Because the managerial role of the district and county judges with respect to a
department has been significantly curtailed, a court would likely conclude that the group of judges
described in section 76.002(a) of the Government Code who appoint the director of a department is
not a "governmental body" as that term is defined under subsection 551.001(3)(H) of the Act. 3
Assuming this conclusion, you next ask whether each group ofjudges is nonetheless required
to post notice of some of its meetings. Request Letter at 2. The requirement under the Act that
"written notice of the date, hour, place, and subject of each meeting" shall be given to the public
applies to "each meeting held by [a] governmental body." TEX. Gov'T CODE ANN.§ 551.041 (West
2012) (emphasis added). If the group that is meeting is not a "governmental body" under the Act,
it follows that the notice requirement in section 551.041 of the Act is inapplicable. Thus, the Act
does not require either group of judges about which you ask to post notice of its meetings. Because
your last question is premised on an affirmative conclusion that the groups in question constitute
governmental bodies under the Act, we need not address it.
3 Because the statutory basis on which Opinion DM-395 relied has changed, its conclusion about the Act's
application to the judges described in section 76.002(a) of the Government Code is no longer valid.
Ms. Katie Conner - Page 4 (KP-0038)
SUMMARY
A group of district judges meeting to appoint the county
auditor pursuant to section 84.003 of the Local Government Code is
not a "governmental body" under the Open Meetings Act.
Consequently, notice ofthe group's meetings is not required by the
Act to be posted.
A court would likely conclude that a group of district and
county judges meeting to appoint a community supervision and
corrections department director pursuant to chapter 76 of the
Government Code as currently written is not a "governmental body"
under the Act because of the statutory curtailment of the group's
previous managerial role with respect to departments. Consequently,
notice of the group's meetings is not required by the Act to be posted.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
BECKY P. CASARES
Assistant Attorney General, Opinion Committee
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188 B.R. 416 (1995)
In re Charles Henry JENKINS, Jr., Debtor.
UNITED STATES TRUSTEE, Appellant,
v.
Ralph O. BOLDT, Trustee of the Estate of Charles Henry Jenkins, Jr., Appellee.
BAP No. SC-94-2301 CAsO. Bankruptcy No. 93-01109-A7.
United States Bankruptcy Appellate Panel of the Ninth Circuit.
Argued and Submitted September 21, 1995.
Decided October 18, 1995.
*417 Mary M. Testerman, San Diego, CA, for Appellant U.S. Trustee.
Michael Y. MacKinnon, San Diego, CA, for Appellee Boldt.
Before CARLSON[1], ASHLAND and OLLASON, Bankruptcy Judges.
OPINION
CARLSON, Bankruptcy Judge.
The sole question raised in this appeal is whether a trustee who has been awarded the maximum compensation permissible under 11 U.S.C. § 326(a)[2] may receive additional compensation for services performed by a paraprofessional employed by the trustee. We hold that such additional compensation is barred by section 326(a) and REVERSE the contrary ruling of the bankruptcy court.
FACTS
Appellee Ralph O. Boldt is the trustee in the above-entitled chapter 7 case. In the course of administering the bankruptcy estate, trustee Boldt disbursed $308.00 to Carla Ilfeld for bookkeeping services performed for the estate. Ms. Ilfeld's services totalled 6.1 hours, and consisted primarily of reviewing claims and preparing the trustee's final report. *418 She charged the estate $45.00 per hour for those services. Ms. Ilfeld is not an in-house employee in trustee Boldt's office and Boldt made no profit on her services. Ms. Ilfeld was not appointed by the court under section 327(a).
Upon completing administration of the estate, Boldt filed a Notice of Intent to Distribute Estate. The United States Trustee objected to Boldt's proposal to pay himself the maximum trustee compensation permissible under section 326(a) in light of the prior distribution to Ms. Ilfeld. The United States Trustee argued that section 326(a) limits the total compensation paid to the trustee for both services performed by the trustee personally and for services performed by a paraprofessional person employed by the trustee.
The bankruptcy court overruled the objection of the United States Trustee in a published opinion holding that section 326(a) limits only the compensation paid to a trustee for services performed by the trustee personally. The court held that section 326(a) does not prevent the payment of additional compensation for services performed by a paraprofessional person employed by the trustee, so long as the trustee does not make any profit on those paraprofessional services. In re Jenkins, 171 B.R. 104, 106-07 (Bankr. S.D.Cal.1994). The United States Trustee timely appealed.
JURISDICTION
This court has jurisdiction to review final orders entered by the bankruptcy court. 28 U.S.C. § 158(a) and (b). The order appealed from here is a final one because it resolved all issues regarding the trustee's compensation and the distribution of the assets of the estate. See In re NSB Film Corp., 167 B.R. 176, 180 (Bankr. 9th Cir.1994).
ISSUE ON APPEAL
The sole issue on appeal is whether section 326(a) limits the total compensation that a trustee may receive for both services performed by the trustee personally and for services performed by a paraprofessional person employed by the trustee, or whether it limits only the compensation for services performed by the trustee personally.[3]
STANDARD OF REVIEW
This panel reviews the conclusions of law of the bankruptcy court de novo. In re Nucorp Energy, Inc., 764 F.2d 655, 657 (9th Cir.1985).
DISCUSSION
Section 326(a) limits the compensation that a trustee may receive for "the trustee's services" to a percentage of the money disbursed to creditors.
In a case under chapter 7 or 11, the court may allow reasonable compensation under section 330 of this title of the trustee for the trustee's services, payable after the trustee renders such services, not to exceed fifteen percent on the first $1,000 or less, six percent on any amount in excess of $1,000 but not in excess of $3,000, and three percent on any amount in excess of $3,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims.
11 U.S.C. § 326(a).[4]
Section 330(a) authorizes the payment of compensation for services performed by a paraprofessional employed by a trustee.
After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor's attorney
(1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional *419 persons employed by such trustee, professional person, or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and
(2) reimbursement for actual, necessary expenses.
11 U.S.C. § 330(a) (emphasis added).[5]
The central question in the this case is what Congress intended the term "trustee's services" to encompass in enacting the section 326(a) limitation on compensation for such services. Appellant United States Trustee contends that the term includes both services performed by the trustee personally and services performed by any paraprofessional assisting the trustee. Appellee chapter 7 trustee contends that because section 330(a) refers to both services performed by the trustee and services performed by a paraprofessional employed by the trustee, the term "trustee's services" in section 326(a) includes only services performed by the trustee personally.
Neither the statutory language nor the legislative history provides any direct answer. The term "trustee's services" is not defined in either the Code or the legislative history. Furthermore, although section 330(a) states that it is "subject to" section 326, neither the Code nor the legislative history explains the relationship between the section 326(a) limitation on compensation for "trustee's services" and the language in section 330(a) referring to services "rendered by such trustee . . . and by any paraprofessional persons employed by such person."
The courts have split on the issue. A majority of the published decisions hold that section 326(a) limits the compensation that a trustee may receive for both services performed personally and services performed by a paraprofessional. In re Asher, 171 B.R. 690, 691-92 (D.Colo.1994); In re Santangelo and Co., Inc., 156 B.R. 62, 64 (Bankr.D.Colo. 1993); In re Stewart, 151 B.R. 255, 258-60 (Bankr.C.D.Cal.1993); In re Blue, 146 B.R. 856, 858 (Bankr.W.D.Okla.1992); In re Hagan, 145 B.R. 515, 517-18 (Bankr.E.D.Va. 1992); In re Berglund Construction Co., Inc., 142 B.R. 947, 948-49 (Bankr.E.D.Wash.1992) (en banc); In re Lanier Spa, Inc., 99 B.R. 490, 491-92 (Bankr.N.D.Ga.1989); In re Prairie Central Railway Co., 87 B.R. 952, 959 (Bankr.N.D.Ill.1988). The court below followed the minority view that section 326(a) does not apply to services rendered by a paraprofessional employed by a trustee. In re Abraham, 163 B.R. 772, 790 (Bankr. W.D.Tex.1994); In re Orthopaedic Technology, Inc., 97 B.R. 596, 598-99 (Bankr.D.Colo. 1989); Cavazos v. Simmons, 90 B.R. 234, 239-40 (N.D.Tex.1988). See also In re Hance Meyer, Inc., 161 B.R. 839, 840 n. 1 (Bankr.N.D.Cal.1993).
For the reasons stated below, we agree with the majority view and hold that the term "trustee's services" in section 326(a) includes both services performed by the trustee personally and services performed by a paraprofessional employed by the trustee.
First, the language of section 330(a) treats services performed by paraprofessionals employed by the trustee as a part of the trustee's services. Section 330(a) authorizes payment of compensation only to a trustee, an examiner, a professional person employed under section 327 or 1103, or the debtor's attorney. It does not authorize the estate to pay compensation directly to a paraprofessional. The statutory language regarding paraprofessionals merely permits the compensation paid to the trustee, etc., to be calculated in light of both the services performed by the trustee personally and the services performed by any paraprofessional persons working under the trustee. This approach is consistent with the nature of paraprofessional services. A paraprofessional helps a supervising professional perform professional services.[6] Thus, a paraprofessional working for a trustee is a paratrustee, helping the trustee to perform "trustee's services."
*420 Second, to permit trustees to obtain the maximum compensation permitted under section 326(a) and to recover additional funds based on services performed by paraprofessionals would frustrate Congress's intent to limit trustee compensation. Section 326(a) expressly limits a trustee's compensation to a percentage of the funds distributed to creditors. It is well established that a trustee may not evade the limitation imposed by section 326(a) by hiring other people to perform the trustee's duties. A trustee may employ professionals only for those tasks that require special expertise beyond that expected of an ordinary trustee. See In re J.W. Knapp Co., 930 F.2d 386, 388 (4th Cir. 1991); In re McKenna, 93 B.R. 238, 241-42 (Bankr.E.D.Cal.1988). Section 328(b) provides that an attorney or accountant may not receive compensation for the "performance of any of the trustee's duties that are generally performed by a trustee without the assistance of an attorney or accountant."[7] It would be inconsistent to allow compensation in excess of the section 326(a) limitation where a paraprofessional performs duties within the competence of an ordinary trustee, when the same services would not be compensable if performed by an accountant or an attorney. See Santangelo, 156 B.R. at 65; Berglund, 142 B.R. at 949 n. 2; Lanier Spa, 99 B.R. at 491; Prairie Central, 87 B.R. at 959. To allow a trustee to obtain payment in excess of the section 326(a) limitation simply by delegating ordinary trustee duties to a paraprofessional would render section 326(a) meaningless. See Santangelo, 156 B.R. at 65; Stewart, 151 B.R. at 259; Hagan, 145 B.R. at 517-18; Berglund, 142 B.R. at 949.
Third, the approach we adopt is fully consistent with the purpose of the language in section 330(a) regarding paraprofessionals. The legislative history states that this language was intended to reduce costs of administration by encouraging attorneys to use paralegals. Section 330(a) encourages use of paralegals by providing that paralegal services can be billed on the same terms as attorney services.
This subsection provides . . . for compensation of paraprofessionals employed by professional persons employed by the estate of the debtor. The provision is included to reduce the cost of administering bankruptcy cases. In nonbankruptcy areas, attorneys are able to charge for a paraprofessional's time on an hourly basis, and not include it in overhead. If a similar practice does not pertain in bankruptcy cases, then the attorney will be less inclined to use paraprofessionals even where the work involved could easily be handled by an attorney's assistant, at much lower cost to the estate. This provision is designed to encourage attorneys to use paraprofessional assistance where possible, and to insure that the estate, not the attorney, will bear the cost, to the benefit of both the estate and the attorneys involved.
H.R.Rep. No. 595, 95th Cong., 1st Sess. 330 (1977), 1978 U.S.C.C.A.N. 5787, 5963, 6286. Under our interpretation, the trustee has the same incentive as the estate's attorneys to use paraprofessionals, because charges for time expended by the trustee's paraprofessionals may be billed to the estate on the same terms as charges for the trustee's time. Appellee seeks to have services performed by a trustee's paraprofessional treated more favorably *421 than services performed by the trustee personally. Under the interpretation Appellee urges, services would be compensable if performed by a paraprofessional, although the same services would not be compensable if performed by the trustee personally and the trustee had already received maximum compensation. Congress intended to encourage trustees to delegate their duties where such delegation would lower costs of administration. Nothing in section 330(a) or its legislative history suggests that Congress intended section 330(a) to increase costs of administration by creating a loophole in the section 326(a) limitation on trustee compensation. See Stewart, 151 B.R. at 259.
The services performed by the paraprofessional in the present case were of a type ordinarily performed by a trustee without the assistance of a professional. Ms. Ilfeld helped the trustee review claims and prepare his final account. A trustee must be deemed competent to prepare a final account. Similarly, a trustee must be deemed competent to perform at least the initial review of claims. Appellee's counsel acknowledged at oral argument that nothing in the record would support a finding that review of the claims in question required expertise beyond that expected of an ordinary trustee. We therefore determine that the services performed by Ms. Ilfeld constitute "trustee's services" subject to the section 326(a) limitation.
Even if the services performed by Ms. Ilfeld did require expertise beyond that expected of an ordinary trustee, we would deny compensation for such services outside the section 326(a) limitation because Ms. Ilfeld was not appointed under section 327(a). Section 327(a) requires court approval before the trustee may hire a professional. Federal Rule of Bankruptcy Procedure 2014(a) requires that the application for employment of a professional describe the services to be rendered and the need for those services. The purpose of these requirements is to protect the estate against claims by volunteers performing unnecessary services. See In re Haley, 950 F.2d 588, 590 (9th Cir.1991); Hagan, 145 B.R. at 518. Similar considerations lead us to conclude that a trustee may receive compensation in excess of the section 326(a) limitation for the services of a paraprofessional only if the trustee obtains prior court approval for the employment of that paraprofessional. To the extent Ms. Ilfeld, a bookkeeper, performed services requiring expertise beyond that expected of an ordinary trustee, she in substance performed professional accounting services. The trustee should have complied with the requirements of section 327(a) and Rule 2014 in employing Ms. Ilfeld to perform professional services. Santangelo, 156 B.R. at 65; Hagan, 145 B.R. at 519.
CONCLUSION
A trustee may delegate performance of his or her duties to a paraprofessional. A trustee may receive compensation for the services performed by a paraprofessional at the market rate for such services, so long as the total compensation paid the trustee for services performed by the trustee and by the paraprofessional does not exceed the section 326(a) limitation. A trustee may receive total compensation in excess of the section 326(a) limitation only where the paraprofessional has been appointed under section 327(a) and the services performed by the paraprofessional require expertise beyond that expected of an ordinary trustee. The decision of the Bankruptcy Court is REVERSED.
NOTES
[1] Honorable Thomas E. Carlson, Chief Bankruptcy Judge for the Northern District of California, sitting by designation.
[2] All statutory references are to the United States Bankruptcy Code, Title 11 of the United States Code.
[3] The United States Trustee also objected to trustee Boldt's claim to recover $120 for the cost of storing case files. The bankruptcy court sustained the objection, Jenkins, 171 B.R. at 107, and trustee Boldt did not appeal that ruling.
[4] Section 326(a) was amended by the Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, 108 Stat. 4106 §§ 107, 702 (1994). The amendment raises the limit on trustee compensation. The amendment applies only in cases filed on or after October 22, 1994 and is not applicable to the present case.
[5] Section 330(a) was amended by the Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, 108 Stat. 4106 §§ 224, 702 (1994). The amendment applies only in cases filed on or after October 22, 1994 and is not applicable to the present case.
[6] The dictionary defines "paraprofessional" as "a person trained to assist a professional, such as a doctor's assistant or a part-time teaching assistant." Random House College Dictionary 965 (rev. ed. 1980).
The American Bar Association defines a legal assistant as:
a person, qualified through education, training or work experience; who is employed or retained by a lawyer, law office, governmental agency, or other entity in a capacity or function which involves the performance, under the ultimate direction and supervision of an attorney, of specifically delegated substantiative [sic] legal work, which work, for the most part, requires a sufficient knowledge of legal concepts that, absent such assistant, the attorney would perform the task.
"A Legal Assistant As Defined By The American Bar Association," ABA Board of Governors, February, 1986 (cited in In re Busy Beaver Building Centers, Inc., 133 B.R. 753, 756 (Bankr.W.D.Pa. 1991), remanded, 19 F.3d 833 (3rd Cir.1994)).
[7] Section 328(b) provides:
If the court has authorized a trustee to serve as an attorney or accountant for the estate under section 327(d) of this title, the court may allow compensation for the trustee's services as such attorney or accountant only to the extent that the trustee performed services as attorney or accountant for the estate and not for performance of any of the trustee's duties that are generally performed by a trustee without the assistance of an attorney or accountant for the estate.
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163 Cal.App.4th 970 (2008)
STEVEN A. FRY, Plaintiff and Appellant,
v.
PRO-LINE BOATS, INC., Defendant and Respondent.
No. G037665.
Court of Appeals of California, Fourth District, Division Three.
May 15, 2008.
*971 Korper & Shefter, René Korper, Bret A. Shefter; Law Offices of René Korper and René Korper for Plaintiff and Appellant.
Beam, Brobeck, West, Borges & Rosa and Donald S. Zalewski for Defendant and Respondent.
OPINION
RYLAARSDAM, Acting P. J.
Plaintiff Steven A. Fry appeals from a judgment on special verdicts entered for defendant Pro-Line Boats, Inc., on claims for breach of the implied warranty of merchantability and breach of *972 express warranty relating to a boat he purchased. Plaintiff contends there was no substantial evidence to support the jury's finding defendant had successfully repaired the boat and the court should have granted his motion for new trial. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2003, Outer Limits Marine, defendant's only authorized Southern California dealer, sold plaintiff a new 33-foot Pro-Line Walk around sport-fishing boat manufactured by defendant. The boat came with a one-year warranty from defendant that it would be "free from defects due to material or workmanship under normal non-commercial use." There was also a separate five-year limited warranty "on all factory-installed accessories, ... engines, outdrives, mechanical ... [and] electrical systems, controls, and more."
After the purchase, plaintiff submitted to defendant a list of problems with the boat, including a starboard-side list, a malfunctioning rotary rudder-position sensor, water in the bilge, a defectively designed overhead compartment, and an inadequately accessible chain locker. Defendant provided services and repairs.
In December 2004, plaintiff demanded defendant buy back the boat when it appeared to him defendant had incorrectly mounted the outboard engines. Defendant agreed to remount the engines, but plaintiff refused to allow the opportunity.
Plaintiff sued defendant for violation of the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.) alleging breach of implied warranty of merchantability and breach of express warranty. The jury returned a special verdict finding 12 to zero that the vessel satisfied the implied warranty of merchantability as it was "of the same quality as other similar motor boats generally acceptable in the trade or fit for [the] ordinary purposes for which boats are used." It also returned a special verdict finding nine to three that although the boat did not conform to the express warranties, defendant had "repair[ed it] to conform to the limited express warranties after a reasonable number of opportunities."
Plaintiff moved for a new trial on the ground there was no substantial evidence to support the finding defendant had repaired the boat to conform to the express warranty. The court denied the motion because, although it disagreed with the verdict, there was substantial evidence to support it. According to the court, the jury could have based its decision on the belief *973 defendant was willing to perform further repairs but plaintiff instead "brought everything to a screeching halt" by filing suit.
Additional facts are set out in the discussion.
DISCUSSION
(1) Plaintiff contends the evidence was insufficient to support the jury's determinations defendant had resolved the problems with the rudder-position sensor, the starboard list, the water in the bilge, the overhead compartment, and the chain locker and that the boat was fit for its ordinary purpose. We disagree.
1. Rudder-position Sensor
Plaintiff concedes defendant replaced the rudder-position sensor each time it failed and that the current one is not broken. But he asserts defendant's expert "confirmed the sensor prevents [him] from fully raising and locking the engines, and that therefore he cannot safely tow the vessel." Plaintiff misstates this testimony. Defendant's expert testified the engines could not be lifted to the locked position without hitting the rudder-position sensor on the rear of the boat. He did not say the engines could not be fully raised and locked.
Plaintiff argues the striking of the sensor on the boat "presumably ... will eventually cause the sensor to break again." Whether it will or not is pure speculation, which will not support a reversal of the judgment. (People v. Gray (2005) 37 Cal.4th 168, 230 [33 Cal.Rptr.3d 451, 118 P.3d 496]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 864 [107 Cal.Rptr.2d 841, 24 P.3d 493].)
(2) Also without merit is plaintiff's contention the linear rudder-position sensor that is currently on the boat is improper and that a rotary rudder-position sensor should have been installed instead. Both sensors were made by Raymarine. Pat Adsit, a 15-year-certified Raymarine technician, testified he installed the linear rudder-position sensor after the company that distributes the sensors told him the rotary rudder-position sensor had "shortcomings." In fact, plaintiff admitted reading a pamphlet that said the rotary rudder-position sensor "was highly limited in the kinds of applications it should be used for." According to Adsit, the linear rudder-position sensor was a new product that was appropriate for plaintiff's boat. Defendant's vice-president and general manager, John E. Walker, may have testified the rotary rudder-position sensor was the correct unit, but such conflicts in the testimony were for the jury to resolve. We will not reverse its determination *974 where, as here, "the testimony on which it is based is [not] wholly unacceptable to reasonable minds or unbelievable per se. [Citation.]" (Wanland v. Los Gatos Lodge, Inc. (1991) 230 Cal.App.3d 1507, 1519 [281 Cal.Rptr. 890].)
2. Starboard List
Plaintiff contends the boat had a starboard list that defendant never attempted to repair. The evidence belies his claim. Although defendant did not believe the boat listed improperly, customer representative Bill Shade tried to address plaintiff's concerns by offering to install lead ballast to the boat to redistribute the weight, but plaintiff rejected it as being a "band-aid."
Acknowledging the evidence, plaintiff maintains it was not substantial because it was hearsay, he denied it had occurred, Shade did not take the stand, and there were no notes of the conversation even though defendant generally took them. The contention lacks merit. Plaintiff waived any hearsay objection by failing to raise it at trial (Evid. Code, § 353), and his remaining attacks on the evidence merely present conflicts in the evidence.
According to plaintiff, even if the jury believed Walker, the evidence does not support "its finding that [defendant] actually repaired the vessel." That presumes the jury found there was an abnormal list that needed repairing.
(3) The jury returned a special verdict finding the "boat fail[ed] to perform as represented in the limited express warranties" and that defendant had repaired it to conform. But the verdict form did not require the jury to specify the particular ways in which the boat failed to perform. Thus, the jury may have found some of the defects claimed by plaintiff existed but not others. Plaintiff could have requested the special verdict include more specific interrogatories embracing each of the claimed defects but he did not and now must live with it. (See Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1159 [46 Cal.Rptr.3d 780]; Babcock v. Omansky (1973) 31 Cal.App.3d 625, 630 [107 Cal.Rptr. 512].) We presume the judgment is correct and indulge all intendments and presumptions in its favor where the record is silent. (Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 369 [17 Cal.Rptr.3d 39].) Plaintiff "has the burden of affirmatively showing error by an adequate record." (Ibid.)
(4) Here, because it is undisputed the list was not repaired but yet the jury awarded plaintiff no damages, we presume the jury found the list did not make the boat fail to perform under the limited express warranties. Such a finding is supported by substantial evidence. In his deposition testimony, admitted into evidence at trial, plaintiff's expert Peter Britton explained the standard for a "relatively level" boat was a static flotation of "within five *975 degrees." Britton concluded the boat had a 2-degree list. Although at trial he changed his opinion and testified a 2-degree list was not "relatively level," he was impeached with his deposition statements. The resolution of any conflict between Britton's trial and deposition testimony was for the jury. (Neyens v. Sellnow (1962) 202 Cal.App.2d 745, 749 [21 Cal.Rptr. 151].)
Defendant presented evidence there was even less of a list. Chuck Wagner, a marine surveyor who inspected the boat on defendant's behalf, found a "very minimal" or "one-degree list" when the boat was taken out on the water. Defense expert Jonathan Ide determined "the boat floats virtually level" and the "angle indicator shows zero" with the freshwater tank emptied as required by the ABYC (American Boat & Yacht Council), an industry recommendation for boat manufacturers to assess static floatation. Although the tank weighs about 180 pounds when full, defendant does not automatically offset that with ballast on the port side because it does not know how the customer will load or use the boat including whether or how much water will be put in the tank.
Plaintiff takes issue with the suggestion he caused the list by putting water in the freshwater tank or from lack of a trim tab on the boat's port engine. He asserts the jury rejected that theory because it found the boat's "failure to comply with the limited express warranties" was not "caused solely by unauthorized or unreasonable use of the ... boat following its sale." But that does not eliminate the possibility the jury may have found the list was caused by his authorized and reasonable use, including the way he loaded the boat, and not by any failure to conform to the express warranties.
3. Water in the Bilge
Plaintiff argues the bilge pumps were improperly placed because Britton testified there was no bilge pump at the lowest point of the bilge, causing water accumulation that resulted in mold and corrosion. Substantial contrary evidence exists.
Walker disputed the claim of corrosion and testified the bilge pumps could not be installed at the lowest point of the bilge because the hull of the boat has a sharp V-shape. A pad must be placed on the floor in order to install the bilge pumps. This allows the pumps to be screwed into the pad rather than the bottom of the boat, which is only three-quarters of an inch thick. According to Walker, mounting the pumps on pads is the industry standard.
Plaintiff maintains he poured 48 gallons of water in the bilge before the pumps activated. The water had moved forward into the center or mid-berth area of the bilge where it accumulated. But plaintiff acknowledges that in *976 response to his concern, defendant immediately provided a plug that was missing when the boat was delivered. The plug prevents water from moving forward into the mid-berth area.
Plaintiff criticizes defendant for not testing "to determine whether water still entered that area even with the plug in," but his own expert agreed that "if the plug is in place, water cannot move forward." And although plaintiff asserts "[w]ater is still trapped in the center part of the bilge, and cannot be removed by operating the bilge pumps but instead requires removal with a sponge attached to a length of flexible hose," he cites no supporting evidence and has waived the contention. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [19 Cal.Rptr.3d 416].)
Even if not waived, substantial evidence exists the bilge pumps were not designed to remove all water out and boat owners are responsible for removing water not picked up by the bilge pumps with a sponge on the end of a stick. The mere fact the jury found the boat's "failure to comply with the limited express warranties" was not "caused solely by unauthorized or unreasonable use" does not mean it rejected that evidence.
4. Overhead Compartment and Access to Chain Locker
Plaintiff contends the overhead compartment "came back and hit [him] directly in the forehead" when the boat hit a "significant" swell. His expert concluded plaintiff misspoke because the compartment does not move. Ide agreed the compartment was fixed and opined there was adequate distance between the cabinet and the head of the person at the helm.
(5) Plaintiff asserts Ide's testimony was not substantial because he did not test the boat under swell conditions. But that does not mean Ide's opinion was based on speculative or conjectural factors, as defendant claims. Ide, who is 5 feet 11 inches tall, measured the distance between the compartment and his forehead while he stood normally with his hands on the steering wheel; he determined the distance of 11 inches was adequate. Because Ide's opinion was not "based on incompetent material, the weight to be given [it] is a question for the trier of fact...." (People v. Rice (1960) 185 Cal.App.2d 207, 213 [8 Cal.Rptr. 76].)
As to the conflicting expert testimony on the anchor chain, with Britton testifying the opening to it was too small and Ide, in contrast, opining the opening was adequate although only one hand could fit through, that too was a question of fact for the jury. (See In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 204 [52 Cal.Rptr.3d 744].) Plaintiff's claim of error in this regard lacks merit.
*977 5. Merchantability
Lastly, plaintiff argues the boat did not comply with the implied warranty of merchantability because "industry standards require its wiring to be secured at least every 18 inches" and "Britton and Fry testified that the vessel did not satisfy this standard." Although plaintiff acknowledges "Walker testified otherwise," he claims he "produced pictures conclusively disproving Walker's testimony." Whether he did or not was yet another matter within the jury's exclusive province.
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs on appeal.
O'Leary, J., and Fybel, J., concurred.
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866 F.Supp. 1267 (1994)
Dewey THOMSON, Plaintiff,
v.
Mike OLSON, Mary Hawkins, Tom Duval, Dennis Davis, Bernard O'Kelly, Sally Page, Gene Kemper, Alice Clark, Tom Clifford, Kendall Baker, Douglas Treadway, North Dakota Labor Commissioner Craig Hagen, KFJM Radio, University of North Dakota, State of North Dakota, Defendants.
Civ. No. A2-94-23.
United States District Court, D. North Dakota, Northeastern Division.
September 19, 1994.
*1268 Dewey Thomson, pro se.
Sara B. Gullickson, Fargo, ND, for defendants.
MEMORANDUM AND ORDER
WEBB, Chief Judge.
This action was brought pursuant to Title VII of the Civil Rights Act of 1964 by pro se plaintiff Dewey Thomson. Before the court is defendants' motion to dismiss for failure to state a claim (docket # 6), pursuant to Fed. R.Civ.P. 12(b)(6). Plaintiff responded to that motion (docket # 12), and indicated it was a "partial" response only. The court denied a subsequent motion by the plaintiff for appointment of counsel (docket # 20) and ordered plaintiff to supplement his "partial" response to defendants' motion to dismiss within 10 days of service of the order. The order, dated July 12, 1994, indicated no further extensions would be granted to plaintiff. Plaintiff has failed to supplement his "partial" response. Also before the court is plaintiff's ex parte motion for service of process (docket # 21).
*1269 FACTS ALLEGED BY PLAINTIFF
Plaintiff Thomson alleges he was discriminated against by his supervisor and that one of his female co-workers received preferential treatment in obtaining work hours at KFJM, a University of North Dakota radio station. According to Thomson, he witnessed his female co-worker kissing their supervisor, Mike Olson, on numerous occasions, both at work and elsewhere, and preference for work hours was given to this co-worker because of her relationship with Mr. Olson. Thomson alleges that he brought the complaint to Mr. Olson's attention in June of 1991, to no avail. A formal grievance was then submitted to the station manager by Thomson on August 24, 1991, alleging the discrimination. The station manager determined that no discrimination had occurred. Thomson alleges that the kissing continued with increasing frequency, and that this created a problem with other unnamed co-workers. He therefore filed a complaint with the Affirmative Action Officer at the University of North Dakota in May, 1992.
The Affirmative Action Officer similarly determined that no discrimination had occurred, and forwarded Thomson's complaint to the Vice-President of Academic Affairs' Office. Thomson then informed KFJM at a staff meeting in early June, 1992, that he had filed a complaint and was releasing various correspondences he had on the matter to the public. Plaintiff alleges he was then told to leave the staff meeting, and, upon his departure, a unanimous vote was taken suspending him from his duties as the 4 p.m. to 6 p.m. on-air news reader. Thomson began missing work. He was informed by the programming director, Mary Hawkins, in a letter dated June 10, 1992, a copy of which was attached to plaintiff's complaint, that because of her programming concerns, he would be temporarily removed from his on-air position. He was, however, expected to report for work as usual to be assigned other duties. Thomson failed to return to work. On June 16, Ms. Hawkins wrote a follow up letter to Thomson expressing concern over his failure to show up for work and general failure to comply with the KFJM employment policies. She reiterated that he was to report to work as usual.
On June 22, 1992, Thomson was fired for "gross negligence." In the termination notice, Ms. Hawkins cited his failure to report to work since June 8th, failure to notify his supervisor of his absence from work from June 9th through June 17th, and failure to arrange for an acceptable substitute. A number of appeals followed.
Thomson filed an appeal pursuant to the Grievance Procedures of Student Life and his dismissal was upheld. He contends his due process rights were violated in this proceeding because an appeal board was not impaneled by the Affirmative Action Officer as provided for in the Grievance Procedures. Plaintiff next appealed unsuccessfully to the President of the University, which was followed by an appeal to the Equal Employment Opportunity Commission. Thomson, having determined that he had exhausted all administrative remedies, turns to this court seeking injunctive relief and damages in excess of $35,000,000.00.
DEFENDANTS' MOTION TO DISMISS
Defendants argue that, because Thomson has not complied with Rule 8(a) of the Federal Rules of Civil Procedure, and because Thomson's 42 U.S.C. § 1983 claim is barred by the Eleventh Amendment, and because Thomson has no Title VII claim, plaintiff's claim should be dismissed.
Thomson opposes defendants' motion, arguing that, because his claim is based on 42 U.S.C. § 2000e-2 and 3, not 42 U.S.C. § 1983, dismissal would be improper.
FAILURE TO FILE BRIEF
Rule 5(C) of the Local Rules provides that "[f]ailure to file briefs within the prescribed time shall subject such motions to summary ruling and the failure to file a brief by the ... adverse party shall be deemed an admission that, ... the motion is well taken." Plaintiff's failure to file a supplemental brief in response to defendants' motion to dismiss is, to the extent it fails to address issues in defendants' motion, "deemed an admission that, ... the motion is well taken." Id.
*1270 MOTION TO DISMISS STANDARD
A motion to dismiss a complaint should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986). The court "must take the well-pleaded allegations of the complaint as true, and construe the complaint, and all reasonable inferences arising therefrom, most favorably to the pleader." Id. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Therefore, only when the complaint on its face "reveals some insuperable bar to relief" should a dismissal be ordered. United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1376 (8th Cir.1989).
DISCUSSION
Fed.R.Civ.P. 8(a)(2) provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The statement should be plain because under the Federal Rules the principal function of pleadings is to give the adverse party fair notice of the claim asserted so as to enable him/her to answer and prepare for trial. Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988). The statement should also be short because "[u]nnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1281, at 365 (1969)). A dismissal is appropriate where the complaint is "a labyrinthian prolixity of unrelated and vituperative charges that defie[s] comprehension" and the amended complaint fails to cure prolixity and incomprehensibility. Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir.1972) (per curiam), cert. denied, 411 U.S. 935, 93 S.Ct. 1911, 36 L.Ed.2d 396 (1973).
The court is mindful of the well established rule that the complaint of a pro se litigant be liberally construed in his favor. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (per curiam). However, the court is also mindful that this particular pro se litigant has completed at least two years of law school training and possesses the capacity to adequately set forth relevant facts and applicable law. This same litigant submitted a complaint which, including attachments, exceeds 150 pages and contains a surfeit of information. Indeed, the court has been forced to select the relevant material from a mass of verbiage, some of which is incomprehensible.[1]
Although in light of the foregoing the complaint is subject to dismissal for non-compliance with Rule 8, dismissal is also appropriate on substantive grounds as well.
TITLE VII CLAIM
The relevant provision of Title VII states:
It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin....
42 U.S.C. § 2000e-2(a)(1).
As a preliminary matter, a Title VII claim may not be brought against a supervisory employee in his/her individual capacity. Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1049, 127 L.Ed.2d 372 *1271 (1994); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991); Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir.1990). The relief granted under Title VII is against the employer, not the individual employees whose actions would constitute a violation. See Busby, 931 F.2d at 772; see also 42 U.S.C. § 2000e(b) (definition of "employer"). Immediate supervisors are "employers" when delegated the employer's traditional rights, such as hiring and firing. Harvey, 913 F.2d at 227. Therefore, the proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming those supervisory employees delegated employer's traditional rights or by naming the employer directly. In the present instance, Thomson may only bring a Title VII claim against Mary Hawkins, the Program Director at KFJM, and Kendall Baker, the President of the University, in their official capacities, and the State of North Dakota. He may not bring a claim against Mike Olson because, although Mr. Olson apparently oversaw employee scheduling, he did not have the authority to hire and fire Thomson. Therefore, neither he nor the other named individuals are "employers" within the purview of Title VII.
Plaintiff's discrimination claim against Hawkins, Baker and the State of North Dakota is necessarily predicated on a broad definition of the term "sex" in 42 U.S.C. § 2000e. He argues that the phrase "discrimination on the basis of sex" contained therein encompasses not only disparate treatment premised on one's gender, but also encompasses disparate treatment arising from a romantic relationship between a supervisory employee and another employee preferentially treated. Plaintiff argues that for Title VII purposes, the meaning of "sex" includes "sexual liaison" and "sexual attraction." This court does not agree.
The United States Supreme Court has recognized, because the word "sex" was added to Title VII shortly before passage, that "we are left with little legislative history to guide us in interpreting the Act's prohibition against discrimination based on `sex.'" Merito Savings Bank v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). The Eighth Circuit has not specifically addressed the issue of whether sex discrimination under Title VII encompasses disparate treatment premised on a romantic relationship between a supervisory employee and another employee preferentially treated. However, it has indicated that for "purposes of Title VII the plain meaning must be ascribed to the term `sex' in absence of clear congressional intent to do otherwise." Sommers v. Budget Marketing, Inc., 667 F.2d 748, 750 (8th Cir.1982). In Sommers, the court refused to afford a transexual whose employment was terminated protection under Title VII. Id. The court noted that "the word `sex' in Title VII is to be given its traditional definition, rather than an expansive interpretation." Id. Although the court's discussion in Sommers focused on transexualism and discrimination on the basis of "sexual preference," the language is equally applicable in the present instance, particularly in light of the reasoning employed by other circuit courts.
The defendants' reliance on the Second Circuit's decision in DeCintio v. Westchester County Medical Ctr., 807 F.2d 304 (2d Cir. 1986), cert. denied, 484 U.S. 825, 108 S.Ct. 89, 98 L.Ed.2d 50 (1987), is persuasive. In DeCintio, the court reasoned:
the other categories afforded protection under Title VII refer to a person's status as a member of a particular race, color, religion, or nationality. "Sex" when read in this context, logically could only refer to membership in a class delineated by gender, rather than sexual activity regardless of gender. As the Supreme Court noted in Trans World Airlines v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), "[t]he emphasis of both the language and the legislative history of [Title VII] is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex, or national origin." Id. at 71, 97 S.Ct. at 2270 (emphasis added). The proscribed differentiation under Title VII, therefore, must be a distinction based on a person's sex, not on his or her sexual affiliations. *1272 Id. at 306-07. This finding that preferential treatment on the basis of a consensual romantic relationship between a supervisor and an employee is not sex discrimination has been embraced by most of the other reviewing courts. See, e.g., Miller v. Aluminum Co., 679 F.Supp. 495, 501 (W.D.Pa.), aff'd, 856 F.2d 184 (3d Cir.1988); Candelore v. Clark County Sanitation Dist., 752 F.Supp. 956, 960-61 (D.Nev.1990), aff'd, 975 F.2d 588 (9th Cir.1992); Autry v. North Carolina Dep't of Human Resources, 820 F.2d 1384, 1386-87 (4th Cir.1987) (following DeCintio). See also Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982) (bisexual supervisor's sexual harassment of male and female alike would not violate Title VII; dicta).
The District of Columbia Court of Appeals appears to be the only circuit court that has adopted a broader definition of the term "sex." In King v. Palmer, 778 F.2d 878, 880 (D.C.Cir.1985), the court recognized that a Title VII claim existed for a female employee who was rejected in favor of another woman for a promotion because the other was having a sexual relationship with an individual responsible for the selection. It suggested that "unlawful sex discrimination occurs whenever sex is `for no legitimate reason a substantial factor in the discrimination.'" Id. (quoting Bundy v. Jackson, 641 F.2d 934, 942-43 (D.C.Cir.1981)). Such an expansive definition of the term "sex" is not warranted by either congressional directive or sound reasoning. The language of the provision is clear: "It shall be an unlawful employment practice for an employer ... to discriminate against any individual ... because of such individual's ... sex...." The plain meaning must be ascribed to the term "sex" read in this context. The proscribed differentiation under this provision must be a distinction based on a person's sex, not on his or her sexual affiliations. Therefore, this court joins in the chorus of reviewing courts in finding that preferential treatment on the basis of a consensual relationship between a supervisor and an employee is not a cognizable sex discrimination claim under Title VII.
RETALIATION CLAIM
Thomson alleges that defendants also violated 42 U.S.C. § 2000e-3 in terminating his employment in response to his filing the discrimination claim with the Affirmative Action Office. The relevant provision states:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a). The Eighth Circuit Court has given employees filing discrimination claims broad protection from retaliation. See Benson v. Little Rock Hilton Inn, 742 F.2d 414 (8th Cir.1984); Womack v. Munson, 619 F.2d 1292 (8th Cir.1980), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). In Benson, the court stated
The merits of a charge made against an employer is irrelevant to its protected status. Access is protected; administrative and judicial mechanisms determine the truth, falsity, frivolousness or maliciousness of an EEOC charge or court complaint. Thus, employer retaliation even against those whose charges are unwarranted cannot be sanctioned.
Benson, 742 F.2d at 416. Therefore, the merits of the underlying charge is irrelevant in assessing a retaliation claim.[2] In order to *1273 show retaliation for filing a Title VII claim, a plaintiff must show: "(1) statutorily protected participation; (2) adverse employment action; (3) a causal connection between the two." Womack, 619 F.2d at 1296.
In the present instance, Thomson alleges he notified KFJM at a staff meeting in early June, 1992, that he had filed a complaint. Thomson then began missing work. He failed to show up for work on June 9th and he failed to attend a scheduled meeting with his supervisor, Mary Hawkins, on June 10th. It is clear from the attachments provided to the court by Thomson that he continued to be absent from work without explanation for the next several days. Thomson was notified in writing by his supervisor, Mary Hawkins, on June 10th, and again on June 16th, that he was expected to arrive at work and perform his assigned duties. His absence continued. Finally, on June 22, 1992, Thomson's employment at KFJM was terminated for "gross negligence" in failing to report to work, and failing to notify his supervisor of his absence.
Thomson has the right to file a Title VII claim against the defendants, and to be afforded protection against retaliation for doing the same. He must, however, continue to work. It is clear from the record that Thomson's employment was terminated because he failed to show up for work. Thomson lost the protection against retaliation under Title VII when he stopped going to work.
CONCLUSION
The court has carefully considered all other claims presented by plaintiff, including the alleged R.I.C.O. violations, and finds the same to be wholly without merit.
THEREFORE, defendants' motion to dismiss (docket # 6) is hereby GRANTED. Plaintiff's ex parte motion for service of process (docket # 21) is DENIED.
IT IS SO ORDERED.
NOTES
[1] At one point, Thomson discusses an alleged rape by a French national that was not prosecuted by the Grand Forks County State Attorney's Office as supporting his claim of a R.I.C.O. violation. The court fails to see the connection between the alleged failure to prosecute a rape by the state attorney and the present discrimination action against a radio station owned by the University. Indeed, Thomson's Complaint and Partial Answer to Motion to Dismiss is "a labyrinthian prolixity of unrelated and vituperative charges that defie[s] comprehension[.]" Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir.1972) (per curiam), cert. denied, 411 U.S. 935, 93 S.Ct. 1911, 36 L.Ed.2d 396 (1973).
[2] The court in Benson noted
[W]e do not intend to place the court's imprimatur on the filing of false claims of discrimination or false factual allegations in support of such claims. Indeed, Rule 11 of the Federal Rules of Civil Procedure deters the filing of false claims by obligating the attorney or party signing the pleadings, motions, or other papers to certify that to the best of his or her knowledge, after reasonable inquiry, the pleadings, motions, or other papers are well grounded in fact.
Benson v. Little Rock Hilton Inn, 742 F.2d 414, 417 n. 5 (8th Cir.1984). This court is pleased that Mr. Thomson is pursuing a legal education. The judicial system does not exist, however, to provide an additional learning experience for law students, at least insofar as spending its time and resources reviewing claims such as the one here presented, so that students may better learn the process. Rule 11 of the Federal Rules of Civil Procedure specifies other inappropriate uses of the system. This court will not tolerate abuse of the judicial process.
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45 Wn.2d 845 (1954)
278 P.2d 375
JOHN POLING, JR., Respondent,
v.
CHARBONNEAU PACKING CORPORATION, Appellant.[1]
No. 33028.
The Supreme Court of Washington, Department Two.
December 30, 1954.
Olson & Palmer and J.W. McArdle, for appellant.
Tonkoff, Holst & Hopp, for respondent.
HILL, J.
This is an appeal from a judgment entered on a verdict for the plaintiff in an action for personal injuries sustained while he was operating a tractor for the defendant. The issues before us relate to negligence, assumption of risk, and contributory negligence, all of which were, we assume, submitted to the jury by proper instructions. The same issues were presented to the trial court by appropriate motions during the trial, and finally by a motion for a judgment notwithstanding the verdict. The trial court determined that all of them were questions for the jury, and the jury determined them adversely to the defendant, appellant here.
[1] Appellant can prevail on this appeal only if it can be said as a matter of law that there is no evidence or reasonable inference therefrom to sustain the verdict on those issues. Williams v. Hofer, 30 Wn. (2d) 253, 191 P. (2d) 306 (1948).
The jury could have found the facts to be as hereinafter stated. John Poling, Jr., had a fifth-grade education and was twenty-three years old at the time of his injury. He had worked in the Yakima valley as a laborer in fruit orchards since 1945 and had had about fifteen hours' experience driving a tractor before his employment in early February of 1953 by the Charbonneau Packing Corporation. Thereafter until his injury he did various kinds of work on a fruit ranch belonging to that corporation, including some jobs which involved operating a tractor (for about *847 two and a half weeks). On April 17, 1953, the day before the accident, Poling and Charles Roche, who managed that particular ranch, were planting trees in an orchard and were utilizing the tractor and a trailer to haul the young trees and to haul water and dirt for the tree planting. At quitting time that day, the trailer was backed against what is referred to in the testimony as a "ditch bank" and was loaded with dirt, and they left it there overnight.
The trailer was attached to the tractor by means of a trailer-hitch assembly. This assembly consisted of a crossbar behind, parallel to, and lower than the rear axle; two lateral bars, the rear end of one attached to the left end of the crossbar and the front end bolted to the left side of the differential housing under the axle, the other similarly attached to the right side; and two bars forming an inverted V, the apex of which was connected to the top of the differential housing and the sides of which sloped down to the crossbar first described and were attached thereto near each end. The hitch itself was centered on the crossbar and was used to connect the tongue of the trailer to the assembly. The tractor seat was located above and in front of the differential housing. A utility chain that was usually carried on the tractor was wrapped over the protruding connection of the inverted V-shaped bar at the top of the housing.
On the morning of April 18, 1953, when Roche and Poling returned to the tractor and trailer, they found that the trailer had become "bogged" down, and when an attempt was made to move it forward the wheels of the tractor spun and became buried five or six inches in the dirt. Several attempts were made to pull the trailer straight ahead, but without success. Poling then suggested that they unhitch the tractor, move it, and then hitch it at right angles to the trailer tongue in an attempt to pull the trailer out from the side. Roche removed the pin from the trailer hitch and Poling started to move the tractor ahead. While doing this, he heard the chain fall from the differential housing where it had been resting, and saw it accidentally hook onto the trailer tongue. Continuing forward, he saw the *848 chain become taut and asked Roche to unhook it; however, Roche told him to "go ahead and try it ahead." In response to this order, Poling drove the tractor forward. As he did so, the front end "rared up" and the tractor tipped over backwards, pinning him under it and causing his injuries.
Roche, at the time of giving this order, was in a position to see the manner in which the chain was attached to both the trailer and tractor. Although Poling knew that the utility chain was usually carried on top of the differential housing, he did not learn until after the accident that after it slipped one end was still fastened to the tractor at the connection on top of the differential housing, which, of course, was considerably higher than the rear axle. The leverage thus created forced the tractor over backwards when Poling attempted to drive forward.
The first question presented is whether we can say as a matter of law that Roche, appellant's ranch manager, was not negligent when, under the conditions then existing, he told respondent to "go ahead and try it ahead." (Roche denies giving the directions quoted or knowing that the chain had caught on the trailer, but the jury could and did accept Poling's version of what happened.)
Appellant contends that the manager's direction or order was not actionable negligence, and relies on the cases of Sainis v. Northern Pac. R. Co., 87 Wash. 18, 151 Pac. 93 (1915), and Kosinski v. Hines, 113 Wash. 132, 193 Pac. 209 (1920). In the Sainis case, a heavy rock was to be lifted from a flatcar. The danger was declared by the court to be as apparent to the plaintiff as to the foreman who directed him to lift the rock. The Kosinski case involved an injury suffered by the plaintiff while doing the same kind of work he had previously done without injury, with the same five men, i.e., that of lifting heavy channel bars. The court held that negligence was not established, the foreman having ordered six men to do a job that had been done safely by the same six men on previous occasions.
[2] In cases which involve carrying or lifting heavy objects, it may well be true that the employee is the best judge *849 of his own physical strength and lifting capacity, and the foreman may not be negligent in directing an employee to lift an object too heavy for him. However, in a case involving facts such as those in the case at bar, we believe the issue of negligence was properly submitted to the jury. A more apropos series of cases would be Christiansen v. McLellan, 74 Wash. 318, 133 Pac. 434 (1913); Lindquist v. Pacific Coast Coal Co., 81 Wash. 73, 142 Pac. 445 (1914); Walters v. Sievers, 107 Wash. 221, 181 Pac. 853 (1919); Long v. Shirrod, 128 Wash. 258, 222 Pac. 482 (1924); Prink v. Longview, Portland & Northern R. Co., 153 Wash. 300, 279 Pac. 1115 (1929). While the discussion in those cases is concerned primarily with the question of assumption of risk, it is necessarily recognized therein that an employer can be negligent in giving an order to an employee under conditions comparable to those existing in this case. Roche's negligence, and hence that of appellant, represented a question for the jury.
The second contention of appellant is that respondent assumed the risk because (1) he assumed the ordinary dangers incident to driving a tractor, and (2) the chain hook-up, as it existed at the time of the accident, was open and obvious, and brought into play the natural forces of leverage.
[3] The facts do not indicate that this was an ordinary danger incident to driving a tractor. There are two answers to the contention that this accident brought into play the natural forces of leverage and that the chain hook-up was open and obvious and the result inevitable. Taking the inferences from the facts most favorable to the respondent, as we are bound to do in considering a motion for a judgment notwithstanding the verdict (Olsen v. White, 37 Wn. (2d) 62, 221 P. (2d) 542 (1950)), we cannot say that respondent knew that the chain was attached to the connection on top of the differential housing. Not knowing this, he would not be aware of the risk involved. He testified, moreover, that even had he known where the chain was hooked, he would not have known that an attempt to pull the loaded trailer *850 when so connected would overturn the tractor. It is clear that respondent was neither a physicist nor an experienced tractor operator. It is significant that, in the assumption-of-risk cases relied upon by appellant (Smith v. Hecla Mining Co., 38 Wash. 454, 80 Pac. 779 (1905); Props v. Washington Pulley & Mfg. Co., 61 Wash. 8, 111 Pac. 888 (1910); Cummins v. Dufault, 18 Wn. (2d) 274, 139 P. (2d) 308 (1943)), the plaintiffs either knew of the danger that occasioned their injuries or, as in the Props case, had an extensive experience which charged them with such knowledge. In none of those cases was the plaintiff acting in response to a direct and immediate command from a superior.
We recognize that we are not here concerned with what the respondent knew and appreciated, but rather, unless Roche was aware of some lack of capacity or understanding on the part of respondent, with what an ordinarily prudent person would have known and appreciated under the same or similar circumstances. Cummins v. Dufault, supra. But we also recognize that one of the circumstances to be considered is that respondent, as appellant's employee, was confronted with a direct and immediate order from appellant's manager. In Walters v. Sievers, supra, we said (p. 226):
"A servant cannot recover from the master for an injury received in the performance of an act, although directed by the master, if the act directed be one which no reasonably prudent person, having regard for his own safety, would undertake; or, to state the proposition in another way, where the dangers of performance are so apparent that there can be no room for two opinions concerning it. On the other hand, a servant may recover for an injury received in the performance of an act directed by the master, even if the servant has some knowledge of the dangers of performance, if he acts with that degree of prudence which an ordinarily prudent man would exercise under the circumstances. This latter rule is founded on plain principles of justice. The master and servant are not altogether upon an equal footing. It is the right of the master to direct his servant, and the primary duty of the servant is to obey. The master ordinarily has superior knowledge of the facts and conditions, and the servant has a right to assume that *851 the master will not expose him to unnecessary perils. Hence, if there is room for two opinions concerning the dangers of the particular act directed, it is for the jury to say whether the servant acted with that degree of prudence which will permit a recovery when injury ensues, or whether the act was such that no reasonably prudent person would undertake it, regardless of the assurances that were given him."
For another excellent statement, see Christiansen v. McLellan, supra.
We are unable to say as a matter of law that a reasonably prudent and cautious employee should have disobeyed Roche's order and refused to move the tractor forward under the circumstances. The trial court acted properly in submitting the question of assumption of risk to the jury.
Appellant's last contention is that respondent was guilty of contributory negligence as a matter of law, (1) for not looking to see where the chain was attached and (2) for not stepping on the clutch pedal when the tractor started to raise up and turn over backwards.
[4] We are unable to agree that, under the facts in this case, the respondent had a duty to look to see where the chain was attached. As we pointed out in the Walters case, supra, the master ordinarily has superior knowledge of the facts and conditions, and the servant has a right to assume that the master will not expose him to unnecessary peril. The case of Long v. Shirrod, supra, presented the same three defenses (denial of negligence, assumption of risk, and contributory negligence) that are urged on this appeal. That case seems to us decisive of all three issues raised by appellant here. On the issue of contributory negligence, we there quoted from the earlier case of Magnuson v. MacAdam, 77 Wash. 289, 137 Pac. 485 (1914), which in turn quoted from an earlier case, as follows (p. 261):
"`"As an employee, it was appellant's duty to obey the foreman's order, unless they were so manifestly dangerous that a prudent man in the exercise of due caution would refuse to obey.... Ordinarily a servant yields his judgment to the superior judgment and discretion of the master. If he does, and is injured by reason of his obedience *852 to the master's orders, it will ordinarily become a question for determination by the jury, in such an action as this, whether the danger of obeying the order was so imminent and hazardous as to charge the servant with contributory negligence and preclude him from recovering damages."'"
[5] We are likewise unable to agree that the failure to step on the clutch pedal when the tractor started to "rare up" can be held to be contributory negligence as a matter of law. If, as appellant seems to contend, respondent stepped on the brake pedal instead of the clutch pedal, it may have been because he was, as he testified, off balance. In any event, he was confronted with a sudden peril requiring instinctive rather than reasoned action. This court, in Dupea v. Seattle, 20 Wn. (2d) 285, 290, 147 P. (2d) 272 (1944), recognized that:
"When one is confronted with a sudden peril requiring instinctive action, he is not, in determining his course of action, held to the exercise of the same degree of care as when he has time for reflection." 1 Blashfield, Cyclopedia of Automobile Law and Practice (Perm. ed.), 538, § 668.
The facts in the case at bar bring it within the emergency doctrine. All facets of contributory negligence were for the jury.
Appellant's motions challenging the sufficiency of the evidence were properly denied. The judgment of the trial court is affirmed.
GRADY, C.J., SCHWELLENBACH, DONWORTH, and WEAVER. JJ., concur.
NOTES
[1] Reported in 278 P. (2d) 375.
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989 F.Supp. 1475 (1997)
William H. RITTS, III, Plaintiff,
v.
DEALERS ALLIANCE CREDIT CORP., Defendant.
No. Civ.A. 1:96-CV-2639-JOF.
United States District Court, N.D. Georgia, Atlanta Division.
August 14, 1997.
*1476 Bobby Adkins, Marietta, GA, for Plaintiff.
Albert A. Chapar, Jr., Atlanta, GA, for Defendant.
ORDER
FORRESTER, District Judge.
This matter is before the court on Plaintiff's motion to remand [3-1], Plaintiff's motion opposing entry of default [11-1], Defendant's motion to extend the time to file a motion for default judgment [13-1], Defendant's motion to dismiss [12-1], and Plaintiff's motion to extend or stay discovery [19-1, 19-2].
I. Statement of the Case
On August 13, 1996 Plaintiff William Ritts filed the instant action in the Superior Court of Fulton County, State of Georgia. In the complaint, Plaintiff alleges that Defendant breached an employment agreement when it terminated him and he seeks damages. Defendant filed a Notice of Removal and removed the action to this court on October 9, 1996 on the basis of diversity jurisdiction, 28 U.S.C. § 1332. Defendant filed its answer in this court on October 11, 1996. Included with the answer was a counterclaim for breach of fiduciary duties and breach of an employment agreement.
II. Discussion
A. Motion to Remand
Plaintiff moves to remand this action to state court on the grounds that diversity jurisdiction does not exist in this court. Plaintiff contends that on the day this suit was filed, August 13, 1996, he was a Georgia citizen and Defendant had its principal place of business in Georgia. Defendant, in its notice of removal and its response to Plaintiff's motion, contends that Plaintiff is a citizen of Florida and that it is a Delaware corporation with its principal place of business in Pennsylvania.
It is well settled that when a party seeks to remove a case based on diversity jurisdiction, there must be complete diversity of citizenship both at the time the complaint was filed and at the time of removal. Roecker v. U.S., 379 F.2d 400, 407 (5th Cir.), cert. denied, 389 U.S. 1005, 88 S.Ct. 563, 19 L.Ed.2d 600 (1967).[1] At the time that *1477 Plaintiff filed his complaint and when the action was removed, a federal court had diversity jurisdiction when the amount in controversy exceeded $50,000.00 and the action was between citizens of different states. 28 U.S.C. § 1332(a).[2] For the purposes of diversity jurisdiction, a corporation is deemed to be a citizen of both its state of incorporation and the state where it has its principal place of business. 28 U.S.C. § 1332(c)(1). To determine a corporation's principal place of business, the Eleventh Circuit examines the "total activity" of the corporation. Vareka Investments, N.V. v. Am. Inv. Prop., Inc., 724 F.2d 907, 910 (11th Cir.), cert. denied, 469 U.S. 826, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984). This fact-sensitive inquiry involves the application of both the "nerve center" test, which asks where the locus of the managerial and policy-making center of the corporation is located, and the "place of activities" test, which focuses on the location of the production or sales activities of the corporation. Id.; See Mercury Finance Corp. of Ala. v. Aetna Cas. and Sur. Co. of Illinois, 900 F.Supp. 390 (M.D.Ala.1995). The removing party bears the burden of establishing that federal jurisdiction exists on a motion to remand. Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.1996).
In an affidavit, Defendant maintains that it is a Delaware corporation with its principal place of business in Pittsburgh, Pennsylvania (Affidavit of Richard J. Uhl, at ¶¶ 3, 5). Defendant claims that it had an office in Georgia but that it sold most of its assets on or about August 2, 1996 to Search Capital Group, Inc., and Search Funding IV, Inc. (Id. at ¶ 5). Defendant also claims that it ceased all its business operations in Georgia on August 3, 1996 and that, from that day forward, it has not retained any employees in Georgia. (Id. at ¶¶ 5-6). Plaintiff has offered only his conclusory argument, in his brief, that Defendant maintained its principal place of business in Georgia on August 13, 1996 and that he is a citizen of Georgia. Plaintiff has not presented any affidavits or other admissible evidence that would show that Defendant did maintain an office or employees in Georgia after August 3, 1996.
As a result, the court concludes that Defendant has met its burden of showing the existence of federal jurisdiction in this court at the time that Plaintiff filed his complaint. Accordingly, Plaintiff's motion to remand is DENIED.
B. Motion to Dismiss
Defendant moves to dismiss this action pursuant to Fed.R.Civ.P. 12 and Fed. R.Civ.P. 4(m) because Plaintiff has not properly served it within 120 days of filing the complaint.[3]
Although this action is now in federal court, in analyzing Defendant's motion to dismiss for insufficiency of service of process, the court must examine whether Plaintiff complied with Georgia law governing process. See Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 n. 1 (11th Cir.1985). Under Georgia law, a plaintiff may perfect process on a domestic corporation or a foreign corporation authorized to do business in Georgia in several ways. First, the plaintiff can deliver a copy of the summons and complaint "to the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof...." O.C.G.A. § 9-11-4(d). Second, if for any reason that will not work, the plaintiff can deliver a copy of the summons and complaint to the Secretary of State along with a certification that the plaintiff has forwarded by registered mail the summons and complaint to the last known address of the *1478 corporation's office or agent. O.C.G.A. § 9-11-4(d). Finally, as foreign corporations are required to maintain a registered agent for service of process in Georgia under the Georgia Business Corporation Code, the plaintiff can serve the corporation's registered agent. O.C.G.A. § 14-2-504(a); O'Neal Constr. Co., Inc. v. Lexington Developers, Inc., 240 Ga. 376, 378, 240 S.E.2d 856 (1977).
Plaintiff claims that on September 11, 1996 a representative of the Fulton County Sheriff's Department personally served a copy of the summons and complaint on Defendant at its office on Powers Ferry Road. Plaintiff includes a copy of the Sheriff's Entry of Service. (Plaintiff's Response to Defendant's Motion to Dismiss, Exhibit A). Plaintiff also claims that he served Defendant's registered agent, Prentice-Hall Corporation System, Inc., by mail, with a copy of the summons and complaint. Defendant contends that, after August 3, 1996 it ceased all business operations in Georgia and no longer had any employees at its former office location of 6400 Powers Ferry Road, Suite 400, Atlanta, Georgia 30339. Although Plaintiff claims it served an agent of Defendant at that address on August 13, 1996, Defendant claims that there was no one at that address authorized to accept service.
In the instant case, the sheriff's return of service is prima facie evidence of service. Webb v. Tatum, 202 Ga.App. 89, 91, 413 S.E.2d 263 (1991). However, it is not conclusive and may be rebutted by proof that its facts are not true. Id. The party challenging the sufficiency of the service bears the burden of showing it was improper. Yelle v. U.S. Suburban Press, Inc., 216 Ga. App. 46, 47, 453 S.E.2d 108 (1995). Defendant submitted an affidavit demonstrating that it had no agents authorized to accept service at the Powers Ferry office on September 11, 1996. (Uhl Aff. at ¶¶ 5-6). In response to this affidavit, Plaintiff has offered no affidavits or other admissible evidence indicating that the person served on September 11, 1996 was actually an agent for Defendant. In response to a denial of an agency relationship, conclusory allegations that an agent relationship exists are not sufficient. See Standard Guar. Ins. Co. v. Landers, 206 Ga.App. 803, 804-05, 426 S.E.2d 574 (1992). The court therefore must conclude that service was not proper because the summons and complaint were not delivered to one of Defendant's agents. See Yelle, 216 Ga.App. at 47, 453 S.E.2d 108. Furthermore, assuming Plaintiff's unsworn statement that Prentice-Hall was Defendant's registered agent is true, the mailing of a copy of the summons and complaint along with a request for acknowledgment of service to Defendant's registered agent is not sufficient under Georgia law to perfect service. The service upon a registered agent has to be personal. See Todd v. Harnischfeger Corp., 177 Ga. App. 356, 357, 340 S.E.2d 22 (1985). In addition, Plaintiff has not provided any evidence that Prentice-Hall acknowledged the mailed service of process or that he later had a sheriff's representative serve them as he stated he would in his cover letter. (Plaintiff's Response to Defendant's Motion to Dismiss, Exhibit B).
Pursuant to Fed.R.Civ.P. 4(m), the court may dismiss an action without prejudice if the plaintiff fails to perfect service of process within 120 days of the filing of the complaint. Fed.R.Civ.P. 4(m). However, when an action is removed from state court, there is some authority that the 120 day period does not begin to run until the date that the action is removed to federal court. See Alber v. Illinois Dep. of Mental Health, 786 F.Supp. 1340, 1376 (N.D.Ill.1992); Motsinger v. Flynt, 119 F.R.D. 373, 377 (M.D.N.C.1988). These courts reason that there is no reason that federal procedural rules should apply retroactively back to the day of filing, and that such an interpretation could result in substantial prejudice to plaintiffs. Alber, 786 F.Supp. at 1376. If service is not made within the requisite time, the court is required to extend the time for a plaintiff to serve properly the defendant if the plaintiff shows good cause. Fed.R.Civ.P. 4(m); Madison v. BP Oil Co., 928 F.Supp. 1132, 1137 (S.D.Ala.1996). However, even if the plaintiff does not show good cause, the court may still enlarge the time for service instead of dismissing the complaint. See Henderson v. United States, 517 U.S. 654, 116 S.Ct. 1638, 1641 n. 5, 134 L.Ed.2d 880 (1996); Panaras v. Liquid Carbonic Industries Corp., 94 F.3d *1479 338, 340 (7th Cir.1996); Madison, 928 F.Supp. at 1136-37.
In the instant case, at the time Defendant filed its motion to dismiss on Rule 4(m) grounds, 120 days had not passed since the date of removal. As a result, the court does not believe that Rule 4(m) has been violated. See Alber, 786 F.Supp. at 1376. Furthermore, even if the court determined that the 120 days should begin to run from the date the complaint was filed such that Rule 4(m) was implicated, the court believes that an extension of time in which to perfect service would be warranted. Although Plaintiff has not shown good cause for his failure to serve properly the Defendants, the court finds that other considerations support such an extension. See Panaras, 94 F.3d at 341 (in absence of good cause, court should consider whether a permissive extension is warranted under the facts of the case).[4] Defendant has filed a counterclaim in this court that would remain pending should the court dismiss Plaintiff's complaint without prejudice. This counterclaim involves the same general transaction and occurrence as the allegations in Plaintiff's complaint. As a result, Plaintiff could simply refile his present complaint as a compulsory counterclaim in this pending action after this court dismisses it.
The court will therefore provide Plaintiff with an additional thirty days from the issuance of this Order to perfect service. The court notes that Plaintiff should comply with the Federal Rules of Civil Procedure in properly serving process on Defendant. See Schmidt v. Wilbur, 775 F.Supp. 216, 227 (E.D.Mich.1991).[5]
Accordingly, Defendant's motion to dismiss for insufficiency of service at this time is DENIED.
C. Motion Opposing Entry of Default
On December 2, 1996 Defendant filed a request that the Clerk of Court enter a default upon its counterclaim against Plaintiff because Plaintiff had not responded. Plaintiff subsequently filed an answer to the counterclaim and a motion opposing the entry of default on December 6, 1996. Plaintiff argues that because his motion to remand challenges this court's subject matter jurisdiction, his time to respond was tolled under Federal Rule of Civil Procedure 12(a)(4) while that motion was pending in this court. As a result, he contends that he was never in default.
The Clerk of Court is authorized to enter default when "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." Fed. R.Civ.P. 55(a). Although the Clerk has not yet entered a default, the court believes that Plaintiff's motion, which challenges the appropriateness of such an entry, is similar in spirit to a motion to set aside an entry of default already entered. See Meehan v. Snow, 652 F.2d 274, 276-77 (2d Cir.1981); Interactive Gift Express, Inc. v. Compuseve, Inc., 1996 WL 420193 (S.D.N.Y. July 25, 1996). As a result, in considering the motion, the court will look to the policies underlying consideration of Rule 55(c) motions to set aside defaults. Federal Rule of Civil *1480 Procedure 55(c) provides that a court may set aside an entry of default "for good cause shown." As the Eleventh Circuit has recognized, "good cause" is a mutable standard. See Compania Interamericana Export-Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir.1996). Generally, the factors for a court to consider in determining whether the defaulting party has shown "good cause" include: (1) whether the default was culpable or willful; (2) whether setting it aside would prejudice the non-defaulting party; and (3) whether the party in default has a meritorious defense. Id. Underlying consideration of the appropriateness of setting aside a default is the fact that defaults are not favored in federal court and trials on the merits are the preferred method for resolving disputes. See Meehan, 652 F.2d at 276 (citations omitted).
Rule 12(a)(4) provides that the filing of a motion permitted under Rule 12(b) alters the normal response time to a complaint. As a result, once a party files such a motion, the party does not have to respond to the complaint until ten days after the court either denies the motion or defers its consideration until trial. Fed.R.Civ.P. 12(a)(4) Among the defenses that can be presented by Rule 12(b) motion are lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim, and failure to join an indispensable party. Neither Plaintiff nor Defendant has cited the court any authority as to whether a motion to remand for lack of subject matter jurisdiction tolls the time to respond to a counterclaim. Defendant attempts to distinguish Rule 12(b) defense motions from a motion to remand on the grounds that if a Rule 12(b) motion is granted, it will lead to dismissal of the action and the party who filed it will never have to file a response. In such an instance, therefore, Defendant argues that it makes sense not to make the party file an answer until the Rule 12 motion is resolved. In contrast, Defendant contends that if a motion to remand is granted, the party will ultimately have to file an answer in the state court to which the action is remanded. Consequently, Defendant argues that a motion to remand should not toll the response time on a counterclaim. Plaintiff, in response, argues that pursuant to O.C.G.A. § 9-11-12(a), if the action is remanded to state court, he will not have to file an answer unless he is ordered to do so by the court.[6] Instead, the counterclaim will be deemed denied. As a result, he argues that the motion to remand on the grounds of lack of subject matter jurisdiction should be treated as a Rule 12 motion for purposes of tolling his response time.
After exhaustive research, this court has not been able to find any authority that a motion to remand falls either inside or outside the provisions of Rule 12(a)(4). However, Plaintiff's motion to remand does charge that this court lacks subject matter jurisdiction. A granting of his motion to remand would therefore require this court to remand the action and dispense with his need to respond to the counterclaim. As a result, to the court, Plaintiff's motion appears to fall within the spirit and purpose of Rule 12(a)(4). Furthermore, there is no evidence of willful conduct on Plaintiff's behalf in failing to answer. Moreover, there is no evidence of any particular prejudice Defendant would suffer if the default were not entered. Finally, examination of Plaintiff's complaint and Defendant's counterclaim reveal contrary allegations about the same general transaction or occurrence, and it appears that Plaintiff has pled a meritorious defense. Therefore, the court would find good cause to set aside any default that might be entered.
Accordingly, in light of the strong policy against defaults and the above conclusions, the court declines to direct the Clerk to enter one in this case. Plaintiff's motion opposing entry of default is GRANTED.
D. Motion for Stay or Extension of Discovery
Plaintiff moves for an extension of discovery for an additional 90 to 180 days after this court rules on the motion to remand. Defendant *1481 opposes this extension on the grounds that no further discovery is necessary. In the alternative, Defendant requests that only a 60-day extension be granted.
As this motion was made prior to the close of discovery and is Plaintiff's first request for an extension, the court GRANTS the motion and will extend discovery for an additional sixty (60) days from the issuance of this Order.
III. Conclusion
Plaintiff's motion to remand [3-1] is DENIED. Defendant's motion to dismiss [12-1] and motion to extend time to file a default judgment motion [13-1] are DENIED. Plaintiff's motion opposing entry of default [11-1] is GRANTED. Plaintiff's motion for an extension of discovery [19-1] is GRANTED.
Plaintiff is DIRECTED to serve properly the Defendants within thirty (30) days of the issuance of this Order. Furthermore, discovery is EXTENDED for sixty (60) days from the issuance of this Order.
NOTES
[1] In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.
[2] Due to a recent congressional amendment, the amount in controversy has been raised to $75,000 for cases filed after January 17, 1997. Pub.L. No. 104-317, § 205, 110 Stat. 3847, 3850 (1996).
[3] Rule 4(m) provides, in pertinent part:
[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period....
Fed.R.Civ.P. 4(m).
[4] Although Plaintiff continues to assert that Defendant is a Georgia corporation and he properly served it at its Powers Ferry Office, he has provided the court with no admissible evidence to support that assertion. Furthermore, Plaintiff was placed on notice by Defendant in its answer and its Mandatory Interrogatories, filed on October 26, 1996, that service of process may have been insufficient. Plaintiff, however, has apparently taken no action to correct the allegedly deficient service and has not moved this court for an extension of time in which to serve Defendant properly. Instead, Plaintiff merely argues that his service was proper and that this court should remand the action because it lacks subject matter jurisdiction. In such a situation, no good cause exists to allow for an additional period of time to serve Defendant properly. See Adams v. Allied-Signal General Aviation Avionics, 74 F.3d 882, 887 (8th Cir.1996) (citing Traina v. United States, 911 F.2d 1155, 1157 (5th Cir.1990)).
[5] 28 U.S.C. § 1448 provides:
In all cases removed from any state court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.
[6] O.C.G.A. § 9-11-12(a) provides, in pertinent part, that "[a] cross-claim or counterclaim shall not require an answer, unless one is required by order of the court, and shall automatically stand denied."
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Matter of Zackery C. (Katherine L.) (2019 NY Slip Op 08326)
Matter of Zackery C. (Katherine L.)
2019 NY Slip Op 08326
Decided on November 15, 2019
Appellate Division, Fourth 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 November 15, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ.
1105 CAF 18-00729
[*1]IN THE MATTER OF ZACKERY C., NEVAEH L., AND NICKOLAS B. NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; KATHERINE L., RESPONDENT-APPELLANT. (APPEAL NO. 1.)
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (CONNIE LOZINSKY OF COUNSEL), FOR RESPONDENT-APPELLANT.
MATTHEW E. BROOKS, LOCKPORT, FOR PETITIONER-RESPONDENT.
LAURA A. MISKELL, LOCKPORT, ATTORNEY FOR THE CHILDREN.
Appeal from an order of the Family Court, Niagara County (John F. Batt, J.), entered April 3, 2018 in a proceeding pursuant to Family Court Act article 10. The order, among other things, adjudged that respondent had neglected the subject children.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Same memorandum as in Matter of Nevaeh L. ([appeal No. 4] — AD3d — [Nov. 15, 2019] [4th Dept 2019]).
Entered: November 15, 2019
Mark W. Bennett
Clerk of the Court
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767 N.W.2d 653 (2009)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Laray Antawn WILLIAMS, Defendant-Appellant.
Docket No. 138245. COA No. 282324.
Supreme Court of Michigan.
May 27, 2009.
Order
On order of the Court, the application for leave to appeal the January 8, 2009 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
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J. A24044/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSEPH SCOTT RANKINEN, : No. 320 MDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, September 18, 2017,
in the Court of Common Pleas of Clinton County
Criminal Division at No. CP-18-CR-0000429-2016
BEFORE: OTT, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 31, 2019
Joseph Scott Rankinen appeals from the September 18, 2017 aggregate
judgment of sentence of 15 to 30 years’ imprisonment imposed after a jury
found him guilty of rape, rape of a child, involuntary deviate sexual intercourse
(“IDSI”) with a child, terroristic threats, and indecent assault of a person less
than 13 years of age.1 After careful review, we affirm the judgment of
sentence.
The relevant facts and procedural history, as gleaned from the certified
record, are as follows: On June 23, 2017, a jury found appellant guilty of rape
of a child and related offenses in connection with his sexual assault of a
12-year-old female victim in the bathroom at the Clinton County Fairgrounds
1 18 Pa.C.S.A. §§ 3121(a)(1), 3121(c), 3123(b), 2706(a)(1), and 3126(a)(7),
respectively.
J. A24044/18
in the Spring of 2011. As noted, the trial court sentenced appellant to 15 to
30 years’ imprisonment on September 18, 2017.2 On September 28, 2017,
appellant filed a timely post-sentence motion, which was denied by the trial
court on January 22, 2018. This timely appeal followed on February 14, 2018.
On February 15, 2018, the trial court directed appellant to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b),
within 21 days. Appellant filed his timely Rule 1925(b) statement on March 1,
2018, and the trial court filed its Rule 1925(a) opinion on April 17, 2018.
Appellant raises the following issues for our review:
I. Whether the trial court erred by failing to give
the jury an instruction on Lack of Prompt
Complaint as requested by trial counsel?
II. Whether the trial court erred in failing to sustain
trial counsel’s objection and motion for mistrial,
where the prosecutor commented before the
jury on [a]ppellant’s post-arrest,
post-Miranda[3] silence during his closing
argument on the issue of whether [a]ppellant
thought child abuse was normal?
II. Whether the trial court erred in failing to sustain
the objection and grant the motion for mistrial
of trial counsel when, during the course of the
trial, the prosecutor elicited statements from
2 The record reflects that the September 18, 2017 sentencing order was
amended on December 29, 2017, to include an additional restitution payment
to the Victims Compensation Assistance Program in the amount of $444.99.
(See trial court order, 12/29/17 at ¶ 1.) The portion of the September 18,
2017 sentencing order directing appellant to pay $78.90 restitution to the
victim was subsequently vacated by the trial court on January 22, 2018. (See
trial court order, 1/22/18 at ¶ 1.)
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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J. A24044/18
the alleged victim, consisting of information that
sustained the charge of Involuntary
Deviant [sic] Sexual Intercourse?
IV. Whether the trial court erred in ruling that the
entire forensic interview of the alleged victim
could be used on re-direct examination by the
prosecutor as a prior consistent statement?
V. Whether the trial court erred in failing to sustain
[a]ppellant[’]s objection to the testimony
elicited by the Commonwealth that, upon
custodial interrogation, by Trooper Sweet,
[a]ppellant stated that he was the victim of
sexual abuse?
Appellant’s brief at 3.
I. Prompt complaint jury instruction
Appellant first argues that the trial court erred in denying his request to
give the jury the prompt complaint instruction found at Section 4.13A of the
Pennsylvania Suggested Standard Criminal Jury Instructions. (Id. at 15.)
Appellant avers that the victim failed to report the alleged rape until 4 years
after it occurred and that “[t]here is absolutely no evidence that at the time
of the alleged assault, [the victim], because of her age, did not appreciate or
understand what had happened to her.” (Id. at 15-16.)4
4 In support of his argument, appellant relies primarily upon Commonwealth
v. Jones, 672 A.2d 1353 (Pa.Super. 1996), and Commonwealth v. Lane,
555 A.2d 1246 (Pa. 1989). (See appellant’s brief at 17-18.) In Jones, a
panel of this court reversed the defendant’s conviction of rape and remanded
for a new trial where the victim did not report the rape until nearly 24 hours
thereafter, and the trial court gave an erroneous prompt complaint jury
instruction. Jones, 672 A.2d at 1358. Likewise, in Lane, our supreme court
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J. A24044/18
“In reviewing a challenge to the trial court’s refusal to give a specific
jury instruction, it is the function of this Court to determine whether the record
supports the trial court’s decision.” Commonwealth v. Buterbaugh, 91
A.3d 1247, 1257 (Pa.Super. 2014) (citation omitted), appeal denied, 104
A.3d 1 (Pa. 2014).
The premise for the prompt complaint instruction is
that a victim of a sexual assault would reveal at the
first available opportunity that an assault occurred.
The instruction permits a jury to call into question a
complainant’s credibility when he or she did not
complain at the first available opportunity. However,
there is no policy in our jurisprudence that the
instruction be given in every case.
The propriety of a prompt complaint instruction
is determined on a case-by-case basis pursuant
to a subjective standard based upon the age and
condition of the victim.
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013) (citations
and internal quotation marks omitted; emphasis added).
In the instant matter, the trial court conducted a review of specific
charging requests by counsel prior to closing arguments. During the course
of this review, the trial court concluded that a prompt complaint instruction
was inappropriate because the victim’s young age and maturity prevented her
held that, “[i]n determining whether or not the delay [in making a prompt
complaint] reflects the insincerity of the complainant, the maturity [of the
child] is merely an additional factor to be considered by the jury in deciding
the question.” Lane, 555 A.2d at 1251.
-4-
J. A24044/18
from appreciating the offensive nature of appellant’s conduct. The trial court
stated as follows:
[APPELLANT’S COUNSEL]: Judge, are you giving
standard instruction 4.13(A) failure to make a prompt
complaint[?]
THE COURT: I am not.
[APPELLANT’S COUNSEL]: I would ask that you give
that one.
THE COURT: That is denied based on the age of the
child.
....
THE COURT: Jones says where the victim of a sexual
assault is a minor who, quote, may not have
appreciated the offensive nature of the conduct, the
lack of a prompt complaint will not necessarily justify
an inference of fabrication. It’s pretty much what you
said, but that’s what I was relying on to deny your
request.
Notes of testimony, 6/23/17 at 8-10.
In so ruling, the trial court indicated to appellant’s counsel that she could
renew her request for the prompt complaint instruction when the jury
instructions were given. (Id. at 10.) Counsel, however, failed to renew her
motion, and the jury was not instructed on the lack of a prompt complaint.
We find that appellant has waived this issue by failing to specifically
object to the trial court’s jury instructions on this basis before the jury retired
to deliberate. “[T]he failure to make a timely and specific objection before
the trial court at the appropriate stage of the proceedings will result in waiver
-5-
J. A24044/18
of the issue.” Commonwealth v. Houck, 102 A.3d 443, 451 (Pa.Super.
2014) (citation omitted); see also Pa.R.A.P. 302(b); Pa.R.Crim.P. 647(B). In
Commonwealth v. Pressley, 887 A.2d 220 (Pa.Super. 2006), this court
explained as follows:
Although obligating counsel to take this additional
step where a specific point for charge has been
rejected may appear counterintuitive, as the
requested instruction can be viewed as alerting the
trial court to a defendant’s substantive legal position,
it serves the salutary purpose of affording the court
an opportunity to avoid or remediate potential error,
thereby eliminating the need for appellate review of
an otherwise correctable issue.
Id. at 224 (citation and footnotes omitted). Accordingly, appellant’s first claim
is waived.5
5 We note that even if appellant had properly preserved his claim, it would
warrant no relief. Our review of the record reveals ample support for the trial
court’s decision to deny appellant’s request to provide a prompt complaint
instruction to the jury. At trial, the victim testified that at the time of the
sexual assault, she had never had sex, did not really understand what sex
was, and did not know “what body parts went where.” (Notes of testimony,
6/22/17 at 57-58.) The victim further testified that she “had no clue what
was going on” during the assault and did not understand what the term ‘rape’
meant prior to disclosing the incident to her mother in 2015. (Id. at 86-87,
184.) Based on the foregoing, we agree with the trial court’s determination
that the victim did not appreciate the offensive nature of appellant’s conduct
at the time the assault occurred, and a prompt complaint instruction would
have been inappropriate. See Jones, 672 A.2d at 1357 n.2 (stating, “[w]here
an assault is of such a nature that the minor victim may not have appreciated
the offensive nature of the conduct, the lack of a prompt complaint would not
necessarily justify an inference of fabrication.”).
-6-
J. A24044/18
II. References to appellant’s post-arrest, post-Miranda silence
Appellant next argues that the trial court abused its discretion by
denying his motion for a mistrial following the prosecutor’s improper reference
to appellant’s post-arrest, post-Miranda silence to the question of whether
he thought sex abuse was normal. (Appellant’s brief at 18.)
It is well-settled that the review of a trial court’s denial
of a motion for a mistrial is limited to determining
whether the trial court abused its discretion. An abuse
of discretion is not merely an error of judgment, but
if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will . . . discretion is abused. A trial court
may grant a mistrial only where the incident upon
which the motion is based is of such a nature that its
unavoidable effect is to deprive the defendant of a fair
trial by preventing the jury from weighing and
rendering a true verdict. A mistrial is not necessary
where cautionary instructions are adequate to
overcome prejudice.
Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa.Super. 2014) (citations
omitted), appeal denied, 118 A.3d 1107 (Pa. 2015).
Instantly, Corporal Matthew Sweet testified that on April 6, 2016, he
took appellant into custody and began to interrogate him following the
issuance of Miranda warnings. (Notes of testimony, 6/22/17 at 197-198.)
Corporal Sweet testified that during the course of this interrogation, appellant
remained silent in response to the question of whether he felt sexual abuse
was normal, as follows:
A. Yeah. He -- part of the things I got into him
with his sexuality, whether he was a virgin, stuff
-7-
J. A24044/18
like that, trying to get, again, conversation to
keep him talking to possibly get some sort of
admission. He indicated that he lost his virginity
sometime after the 2011 incident, and I guess
at that point I asked him, you know, do you feel
that sexual abuse is normal, you know, the loss
of your virginity. To that he gave no answer.
He remained silent.
Q. So when asked specifically if he thought sexual
abuse was normal, he had no answer?
A: No answer.
Id. at 206. Appellant’s counsel did not object to Corporal Sweet’s testimony
on appellant’s post-arrest, post-Miranda silence.
Thereafter, during the course of his closing argument, District Attorney
David A. Strouse made the following reference to appellant’s silence:
On the other hand, you can choose to believe that [the
victim] made this entire thing up, but to make that
choice you have to also choose to believe a number of
other things about this case. . . . You would have to
choose to believe that Corporal Sweet either wasn’t
being honest when he testified, or you would have to
believe that [appellant’s] responses and comments to
Corporal Sweet were just a coincidence. Like the fact
that during the interview with Corporal Sweet he said
he knew [the victim], but then later said I don’t know
who that is. That [appellant] admitted to his sexual
experimentation. That would just be a coincidence.
It would just be a coincidence that [appellant] said he
had open values, that nudity wasn’t a big deal to him.
It would have to be just a coincidence that
[appellant] would not respond when asked if he
felt sexual assault was normal.
Notes of testimony, 6/23/17 at 40-41 (emphasis added).
-8-
J. A24044/18
Appellant objected and requested a mistrial, which was denied by the
trial court on the basis that these comments “came out in evidence” and that
appellant had failed to make a timely objection at that time. (Id. at 41-42.)
The record further reflects that the trial court offered to give a cautionary
instruction to the jury, but appellant declined. (Id. at 42.) The trial court
subsequently instructed D.A. Strouse, at sidebar, “that is not a point that you
will revisit at all at any point during your remaining comments.” (Id.)
Upon review, we find that appellant has waived his claim that
D.A. Strouse improperly referenced appellant’s post-arrest, post-Miranda
silence during his summation by failing to timely and specific objection to
Corporal Sweet’s testimony at trial. As noted, the “the failure to make a timely
and specific objection before the trial court at the appropriate stage of the
proceedings will result in waiver of the issue.” Houck, 102 A.3d at
451(citation omitted); see also Pa.R.A.P. 302(a) (stating an issue not raised
in the trial court is considered waived for purposes of appellate review).
III. Victim’s testimony that she was forced to perform oral sex
Appellant next argues that the trial court abused its discretion in not
granting his motion for a mistrial after D.A. Strouse elicited testimony from
the victim that appellant forced her to perform oral sex on him. (Appellant’s
brief at 24.) Appellant contends that because no information about this
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J. A24044/18
incident was ever provided to the defense in discovery, a new trial is
warranted. (Id. at 25-28.) We disagree.
At trial, the victim testified at great length with regard to the sexual
assault and described how appellant dragged her towards the men’s bathroom
by her wrists, slammed her against the wall, pulled her pants and underwear
down around her knees, and how she felt “a repetitive feeling of pressure” in
her vagina. (See notes of testimony, 6/22/17 at 52-59.) D.A. Strouse then
inquired as to what happened “when [appellant] stopped[,]” and the victim
described in detail how appellant pushed her to the floor, pushed her head
against the wall, and forced his penis into her mouth. (Id. at 61-63.)
Appellant subsequently objected and moved for a mistrial on the basis that
this information was never provided to the defense. (Id. at 63, 65.) The
following discussion took place at sidebar, at the conclusion of which the trial
court denied his motion for a mistrial:
[APPELLANT’S COUNSEL]: Your Honor, at this time
I’d like Mr. Strouse to explain to me when he knew
this information. This last probably five minutes of
information of testimony is brand new information to
me. It’s a witness statement that was not disclosed
ever, not in the video, not in the police report, it was
not in the interview of the child. This is all new.
THE COURT: Mr. Strouse.
[D.A. STROUSE]: Some of the information I’m
hearing for the first time, Your Honor. Such is the
nature of a sexual assault case and the risk
[appellant] takes if he takes this to trial with a child
victim. The Commonwealth can’t possibly know
everything that was going to be said.
- 10 -
J. A24044/18
[APPELLANT’S COUNSEL]: I’d like to know what you
knew because some of this, Mr. Strouse, you clearly
knew based on your line of questioning, and it was not
disclosed to me.
THE COURT: Mr. Strouse.
[D.A. STROUSE]: The only information the
Commonwealth has come into position [sic] with
during preparation of this case was trial preparation
questions of witnesses, that’s it. And to the extent
that there was any additional statements, they were
provided directly during the course of trial preparation
with me, and as such they were work product.
[APPELLANT’S COUNSEL]: If they are work product
then they’re not admissible during trial. You can’t get
statements from a witness and not disclose them to
me.
[D.A. STROUSE]: So we’re clear on the record, I
received no statement from the witness. No
statement. If there was a statement, it would have
been provided.
Id. at 64-65.
Pennsylvania Rule of Criminal Procedure 573 governs pretrial discovery
and inspection and provides, in relevant part, that the Commonwealth must
disclose, at the discretion of the trial court, “all written or recorded
statements, and substantially verbatim oral statements, of eyewitnesses the
Commonwealth intends to call at trial[.]” Pa.R.Crim.P. 573(B)(2)(a)(ii).
Courts in this Commonwealth, however, have continually recognized that
“[t]he Commonwealth does not violate Rule 573 when it fails to disclose to
the defense evidence that it does not possess and of which it is unaware.”
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J. A24044/18
Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008) (citations omitted;
emphasis added); see also Commonwealth v. Ribot, 169 A.3d 64, 69
(Pa.Super. 2017) (same).
Instantly, we discern no abuse of discretion on the part of the trial court
in denying appellant’s motion for a mistrial. Our review of the record reveals
no evidence that the victim revealed to anyone that appellant forced her to
perform oral sex, or made any statement to this effect. On the contrary, the
victim testified on cross-examination that she had not told anyone about this
incident prior to trial:
Q. Now, you’ve told the jury today that [appellant]
pushed you on the floor, pushed your head
against the wall, and tried to force his penis into
your mouth?
A. Yes.
Q. That’s the first time you’ve told anybody that?
A. Yes, it is.
Q. You’ve not told your therapist that you’ve
worked with for a year?
A. No, I haven’t.
Q. Not told your family?
A. No.
Q. Not told anybody at this table here?
A. No.
Notes of testimony, 6/22/17 at 104-105.
- 12 -
J. A24044/18
Accordingly, as there is no evidence demonstrating that the
Commonwealth withheld any statements by the victim with regard to oral sex,
appellant’s claim must fail. See Collins, 957 A.2d at 253; Ribot, 169 A.3d
at 69.
IV. Admission of the victim’s forensic interview as a prior consistent
statement
Appellant next argues the trial court abused its discretion in permitting
the Commonwealth to introduce a video of the victim’s forensic interview as a
prior consistent statement. (Appellant’s brief at 28-31.)
In reviewing a trial court’s ruling on the admissibility of evidence, our
standard of review is one of deference. “[T]he admission of evidence is within
the sound discretion of the trial court and will be reversed only upon a showing
that the trial court clearly abused its discretion.” Commonwealth v.
Fransen, 42 A.3d 1100, 1106 (Pa.Super. 2012) (citation omitted), appeal
denied, 76 A.3d 538 (Pa. 2013).
At trial, the Commonwealth introduced a video of the forensic interview
of the victim conducted by Sherry Moroz of the Central Susquehanna Valley
Children’s Advocacy Center in 2015. (Notes of testimony, 6/22/17 at
165-166.) Appellant objected to the video arguing that it was inadmissible
hearsay, and the trial court overruled the objection. (Id. at 166.) The trial
court ruled that the forensic interview video was admissible as a prior
consistent statement, pursuant to Pennsylvania Rule of Evidence 613(c), in
- 13 -
J. A24044/18
order to rehabilitate the victim’s credibility. (Id. at 166; see also trial court
opinion, 1/22/18 at 4-6.6) Upon careful review of the record, we discern no
abuse of discretion on the part of the trial court in reaching this conclusion.
Pennsylvania Rule of Evidence 613 governs this issue and provides, in
relevant part, as follows:
(c) Witness’s Prior Consistent Statement to
Rehabilitate. Evidence of a witness’s prior
consistent statement is admissible to
rehabilitate the witness’s credibility if the
opposing party is given an opportunity to
cross-examine the witness about the statement
and the statement is offered to rebut an express
or implied charge of:
(1) fabrication, bias, improper influence
or motive, or faulty memory and the
statement was made before that
which has been charged existed or
arose; or
(2) having made a prior inconsistent
statement, which the witness has
denied or explained, and the
consistent statement supports the
witness’s denial or explanation
Pa.R.E. 613(c).
This court has long recognized that “prior consistent statements of child
victim of sexual assault, offered to corroborate in-court testimony, are not
hearsay.” Commonwealth v. Giles, 182 A.3d 460, 461 (Pa.Super. 2018),
6 We note that the trial court’s January 22, 2018 opinion does not contain
pagination; for the ease of our discussion, we have assigned each page a
corresponding number.
- 14 -
J. A24044/18
appeal denied, 193 A.3d 888 (Pa. 2018), citing Commonwealth v. Hunzer,
868 A.2d 498, 512 (Pa.Super. 2005), appeal denied, 880 A.2d 1237 (Pa.
2005).
Pennsylvania Rule of Evidence 613(c) permits the
admission of evidence of a prior consistent statement
for rehabilitation purposes if the opposing party is
given an opportunity to cross-examine the witness
about the statement, the statement is offered to rebut
an express or implied charge of fabrication, bias,
improper influence or motive, or faulty memory, and
the statement was made before the fabrication, bias,
etc.
Commonwealth v. Baker, 963 A.2d 495, 504 (Pa.Super. 2008) (citation
omitted), appeal denied, 992 A.2d 885 (Pa. 2010).
In the instant matter, appellant’s counsel attempted to impeach the
victim’s credibility and crossed-examined her extensively on several
statements she made on direct examination that were inconsistent with
statements she had previously made during the 2015 forensic interview. (See
notes of testimony, 6/22/17 at 93-124.) In response, the Commonwealth
introduced the video of the victim’s recorded interview with Sherry Moroz to
rehabilitate her credibility. (Id. at 165-166.) Review of the record indicates
the character of impeachment “was such that the trial court could reasonably
exercise its discretion to permit admission of evidence of prior consistent
statements to corroborate the child victim’s impeached testimony.” Hunzer,
868 A.2d at 513. Accordingly, we find that the trial court did not abuse its
discretion in admitting the minor victim’s forensic interview video as a prior
- 15 -
J. A24044/18
consistent statement. See Baker, 963 A.2d at 503-505 (holding that the
recording of a child victim’s interview with a forensic pediatrician who had
interviewed the child at behest of agencies investigating child abuse
allegations was admissible as prior consistent statement, given defense
counsel’s cross-examination insinuating that the child victim had been
improperly induced to fabricate her testimony by the prosecution and her
mother).
V. Admission of appellant’s statement that he was a sexual abuse
victim
In his final claim, appellant contends that the trial court abused its
discretion in permitting Corporal Sweet to testify that appellant acknowledged
during interrogation that he was sexually abused as a child. (Appellant’s brief
at 32.)
At trial, Corporal Sweet was questioned with regard to the tactics he
employed during his interrogation of appellant and testified as follows:
Q. Corporal Sweet, what type of tactics did you use
with respect to your interview with [appellant]?
A. I tried to minimize the actual -- the allegation.
I tried to make it feel like it was something less.
Typically I also try to deflect some of the blame
on maybe the way he was growing up or
brought up or something that had happened in
his past.
Notes of testimony, 6/22/17 at 202-203.
- 16 -
J. A24044/18
Appellant objected, and the trial court overruled the objection. (Id. at
204.) The Commonwealth’s direct examination of Corporal Sweet resumed
and he testified as follows:
Q. What specifically did [appellant] say to you
when you attempted to blame someone else?
A. He indicated that several years ago when he
was younger he was actually -- not necessarily
a victim, but he was also -- there was an older
neighbor boy who had sexually assaulted him
and, you know, again trying to deflect the blame
that perhaps that’s what may have caused some
of this was the answer I got.
Q. And did he describe -- did he indicate whether
or not he had been sexually active at a young
age?
[APPELLANT’S COUNSEL]: Objection, relevancy.
THE COURT: Overruled.
Id. at 205-206.
Appellant avers that “[t]his entire line of questioning regarding [his]
family’s personal sexual habits, [his] background, and whether he has been a
victim of child sexual abuse, was completely irrelevant.” (Appellant’s brief at
33.) Appellant maintains “[t]here was no evidence . . . that any prior assault
or abuse of [a]ppellant in any way drove or was a causative factor in the
conduct charge[d] in this case[,]” and the probative value of this testimony
was outweighed by its prejudicial effect. (Id.) For the following reasons, we
disagree.
- 17 -
J. A24044/18
The admissibility depends on relevance and probative
value. Evidence is relevant if it logically tends to
establish a material fact in the case, tends to make a
fact at issue more or less probable or supports a
reasonable inference or presumption regarding a
material fact. Evidence, even if relevant, may be
excluded if its probative value is outweighed by the
potential prejudice.
Fransen, 42 A.3d at 1106 (citations and internal quotation marks omitted);
see also Pa.R.E. 401, 403.
Upon review, we discern no abuse of discretion on the part of the trial
court in allowing Corporal Sweet’s brief reference to the fact that appellant
acknowledged during his interrogation that he was sexually abused as a child
to be admitted into evidence. We agree with the trial court that this statement
was relevant to appellant’s then-existing mental and emotional condition and
was admissible pursuant to the state of mind exception to the hearsay rule.
(See trial court Rule 1925(a) opinion, 4/17/18 at 4-5.7) Moreover, we find
that appellant’s acknowledgement that he was sexually abused as a child was
relevant to establish a possible motive for committing the underlying offenses.
Hearsay is defined as “a statement that the declarant does not make
while testifying at the current trial or hearing[, offered] in evidence to prove
the truth of the matter asserted in the statement.” Pa.R.E. 801(c)
(numeration omitted). Hearsay is generally inadmissible at trial unless it falls
7We note that the trial court’s April 17, 2018 Rule 1925(a) opinion does not
contain pagination; for the ease of our discussion, we have assigned each
page a corresponding number.
- 18 -
J. A24044/18
into an exception to the hearsay rule. See Pa.R.E. 802. Rule 803 contains
several recognized exceptions to the hearsay rule, including the state of mind
exception:
The following are not excluded by the rule against
hearsay, regardless of whether the declarant is
available as a witness:
....
(3) Then-Existing Mental, Emotional, or
Physical Condition. A statement of the
declarant’s then-existing state of mind
(such as motive, intent or plan) or
emotional, sensory, or physical condition
(such as mental feeling, pain, or bodily
health), but not including a statement of
memory or belief to prove the fact
remembered or believed unless it relates
to the validity or terms of the declarant's
will.
Pa.R.E. 803(3) (emphasis added).
“Where the declarant’s out-of-court statements demonstrate his state
of mind, are made in a natural manner, and are material and relevant,” as is
the case here, “they are admissible pursuant to the exception.”
Commonwealth v. Johnson, 107 A.3d 52, 84 (Pa. 2014) (citations and
emphasis omitted), cert. denied, U.S. , 136 S.Ct. 43 (2015).
Additionally, Corporal Sweet’s brief reference to the fact that appellant
acknowledged during his interrogation that he was sexually abused as a child
was not so unduly prejudicial as to warrant that a new trial be granted.
Evidence is not unduly prejudicial simply because it is harmful to the
- 19 -
J. A24044/18
defendant’s case. See Commonwealth v. Page, 965 A.2d 1212, 1220
(Pa.Super. 2009), appeal denied, 74 A.3d 125 (Pa. 2013). On the contrary,
the “exclusion of evidence on grounds that is prejudicial is limited to evidence
so prejudicial that it would inflame the jury to make a decision based upon
something other than the legal propositions relevant to the case[.]”
Commonwealth v. Flamer, 53 A.3d 82, 89 (Pa.Super. 2012) (citation and
parentheses omitted). Accordingly, appellant’s final claim of trial court error
warrants no relief.
For all the forgoing reasons, we affirm the September 18, 2017
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2019
- 20 -
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705 F.2d 457
Pittmanv.Secretary of Health and Human Services
81-3450
UNITED STATES COURT OF APPEALS Sixth Circuit
8/19/82
N.D.Ohio
AFFIRMED
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Case: 16-11063 Date Filed: 11/19/2018 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11063
Non-Argument Calendar
________________________
D.C. Docket No. 4:94-cr-04071-WS-CAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEFFANY FRAZIER,
a.k.a. Steffeny Bernard Frazier,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(November 19, 2018)
Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.
PER CURIAM:
Case: 16-11063 Date Filed: 11/19/2018 Page: 2 of 2
Marisa C. Maleck, appointed counsel for Steffany Frazier in this appeal from
the denial of a motion for reduction of sentence pursuant to 18 U.S.C.
§ 3582(c)(2), has moved to withdraw from further representation of the appellant
and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Our
independent review of the entire record reveals that counsel’s assessment of the
relative merit of the appeal is correct. Because independent examination of the
entire record reveals no arguable issues of merit that are not waived, counsel’s
motion to withdraw is GRANTED, and Frazier’s convictions and sentences are
AFFIRMED.
2
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537 U.S. 1054
GOODMANv.LEWIS, WARDEN.
No. 02-6664.
Supreme Court of United States.
December 2, 2002.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
2
C. A. 11th Cir. Certiorari denied.
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159 S.W.3d 412 (2005)
Frank NEASE, Appellant,
v.
INDEPENDENT LIVING RESOURCE CENTER, INC.; Division of Employment Security, Respondents.
No. WD 63993.
Missouri Court of Appeals, Western District.
January 11, 2005.
Motion for Transfer Denied March 1, 2005.
Application for Transfer Denied April 26, 2005.
*413 Michael H. Finkelstein, Jefferson City, MO, for appellant.
Ninion S. Riley, Jefferson City, MO, for respondent, State of MO. Div. of Employment.
Carla G. Holste, Jefferson City, MO, for Resp. Independent living Resource Center, Inc.
Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
Motion for Transfer to Supreme Court Denied March 1, 2005.
ROBERT G. ULRICH, Judge.
Frank Nease appeals the decision of the Labor and Industrial Relations Commission disqualifying him from unemployment benefits for six weeks. The appeal is dismissed as moot.
Mr. Nease applied for unemployment benefits after he was discharged by his employer, Independent Living Resource Center, Inc. A deputy with the Division of Employment Security determined that Mr. Nease was disqualified for benefits for four weeks because he was discharged for misconduct connected with work. Mr. Nease appealed, and the Appeals Tribunal modified the deputy's determination deciding that Mr. Nease was disqualified for benefits for six weeks. Mr. Nease then appealed to the Commission, which affirmed the decision of the Appeals Tribunal. This appeal followed.
The Division filed a motion to dismiss Mr. Nease's appeal, which was taken with the case, arguing that no justifiable issue exists, and, therefore, Mr. Nease's case is now moot. It contends that Mr. Nease has received the maximum amount of unemployment benefits and cannot receive any additional benefits should he prevail on appeal. Mr. Nease responded to the motion arguing that dismissal of his appeal would deprive him of the liberty interest in his good name and judicial review of the decision of the Division finding that he engaged in misconduct at work. He also argues that his case presents issues of general importance that are likely to recur yet evade judicial review.
A case is moot when the question presented for decision seeks a judgment upon some matter that, if the judgment is rendered, would not have any practical effect upon any then existing controversy. State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001)(quoting Shelton v. Farr, 996 S.W.2d 541, 543 (Mo.App. *414 W.D.1999)). "The existence of an actual and vital controversy susceptible of some relief is essential to appellate jurisdiction." Id. (quoting Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App. W.D.1999)). In deciding whether a case is moot, the appellate court may consider matters outside the record. Id.
This case is similar to Hill v. Venator Group Retail, Inc., 138 S.W.3d 746 (Mo.App. E.D.2003), and Rockett v. Radar, Inc., 97 S.W.3d 535 (Mo.App. E.D.2003). In those cases, the claimants had received the maximum amount of their unemployment benefits for the benefit year. Hill, 138 S.W.3d at 747; Rockett, 97 S.W.3d at 536-37. The cases were dismissed as moot because even if the claimants prevailed on appeal, they could not receive any additional unemployment benefits. Hill, 138 S.W.3d at 747; Rockett, 97 S.W.3d at 537.
Here, Mr. Nease also cannot receive any additional unemployment benefits. The Division included with its motion to dismiss the affidavit of Janice Belt, Chief of Benefits of the Division. She states that Mr. Nease has been paid the maximum amount of his unemployment benefits and that, even if he wins his appeal, he will not be paid any additional money on his claim. The record on appeal shows that after his six week disqualification period, Mr. Nease began receiving unemployment benefits of $250 per week on September 27, 2003. He received those benefits for twenty-six weeks for a total payment of $6,500. Mr. Nease's maximum benefit amount for the benefit year is $6,500. Therefore, even if this court were to reverse the decision of the Commission, Mr. Nease would not receive any additional benefits. If a claimant has received all of his entitled unemployment benefits, then the case is moot. Hill, 138 S.W.3d at 747; Rockett, 97 S.W.3d at 537.
Mr. Nease does not dispute that he received the maximum amount of his unemployment benefits. He argues, however, that he is aggrieved by the decision of the Commission because his reputation in the community was stained. This is not, however, the proper forum to raise such a claim. Chapter 288 provides the procedure for the payment of benefits to persons unemployed through no fault of their own. Mr. Nease's appeal involves the payment of unemployment benefits, and, as stated above, he has received the maximum benefit amount for the benefit year. Other forums may be available for addressing Mr. Nease's claim.
Mr. Nease also argues that if his appeal is dismissed, the issues raised in his appeal regarding the fairness of the hearing conducted by the Division, which are of general importance, will never be reviewed by the judiciary. A narrow exception to the mootness doctrine applies if a case presents an issue that is of general public interest and importance and that will evade appellate review unless the court exercises its jurisdiction. Kinsky v. Steiger, 109 S.W.3d 194, 196 (Mo.App. E.D.2003); Johnson v. Meyer, 108 S.W.3d 130, 131 (Mo.App. E.D.2003). Issues regarding the hearing before the Division are, however, not likely to evade appellate review in future live controversies where individuals are disqualified from unemployment benefits.
The appeal is, therefore, dismissed as moot.
HARDWICK, P.J., and NEWTON, J. concur.
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FILED
NOT FOR PUBLICATION NOV 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30050
Plaintiff - Appellee, D.C. No. 1:11-cr-00046-RFC
v.
MEMORANDUM *
HARLEY COMBRES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief Judge, Presiding
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Harley Combres appeals from the 87-month sentence imposed following his
guilty-plea conviction for attempted illegal export and concealing items for illegal
export, in violation of 18 U.S.C. §§ 2 and 554. We have jurisdiction under 28
*
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).
U.S.C. § 1291, and we affirm.
Combres first contends that the district court violated Federal Rule of
Criminal Procedure 32 by failing to resolve whether a statement made by Combres
after his arrest was truthful. However, the district court expressly found that the
statement was truthful. Accordingly, the court did not violate Rule 32. See United
States v. Karterman, 60 F.3d 576, 583 (9th Cir. 1995).
Combres next contends that his sentence is substantively unreasonable. The
district court concluded that Combres’s criminal history category failed to
adequately reflect the seriousness of his past criminal conduct and likelihood to
reoffend. This conclusion is supported by the record. In light of the totality of the
circumstances and the 18 U.S.C. § 3553(a) sentencing factors, Combres’s sentence
is substantively reasonable. See United States v. Ellis, 641 F.3d 411, 421-22 (9th
Cir. 2011) (reviewing criminal history departure as part of a sentence’s substantive
reasonableness); United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc).
AFFIRMED.
2 12-30050
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451 F.2d 176
Frank J. TOMASINO, Petitioner-Appellant,v.PEOPLE OF the STATE OF CALIFORNIA, Respondents-Appellees.
No. 71-1076.
United States Court of Appeals,Ninth Circuit.
Nov. 11, 1971.Rehearing Denied Dec. 16, 1971.
John N. Frolich (argued), Los Angeles, Cal., for petitioner-appellant.
Joseph P. Busch, Jr., Dist. Atty. of L. A. County, Harry Wood, Head, Appellate Div., Robert J. Lord, Deputy Dist. Atty., Los Angeles, Cal., for respondents-appellees.
Before MERRILL, KILKENNY and TRASK, Circuit Judges.
PER CURIAM.
1
While awaiting trial in state court, Tomasino filed a petition in the United States District Court for removal of his criminal prosecution to the federal court pursuant to 28 U.S.C. Sec. 1443(1). He claimed that the statute under which he was being prosecuted (Cal.Veh.Code Sec. 23101) was violative of the equal protection clause because punishment for any particular act could vary from that for a felony (a prison term) to that for a misdemeanor (a jail term plus a fine), depending upon the "whim or caprice" of the court.
2
The State was ordered to respond, and, upon doing so, moved to remand the case to the state courts. A copy of the response, the motion and a proposed order were served upon Tomasino by mail the same day. The following day, without offering appellant an opportunity to respond to the state's motion to remand, the district judge ordered the cause remanded because the petition for removal failed to state a claim under Sec. 1443(1).
3
Relying on People v. Pobuta, 437 F.2d 1200 (9th Cir. 1971); Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970); and Harmon v. Superior Court, 307 F.2d 796 (9th Cir. 1962), the appellant seeks reversal. See also Sanders v. Veterans Administration, 450 F.2d 955 (9th Cir. Sept. 29, 1971). We do not depart from the decisions announced in those cases.
4
But, there are also complaints filed where under no conceivable stretch of the imagination could a proper claim be stated on amendment. See Perdue v. Supreme Court of United States, 439 F.2d 806 (9th Cir. 1971). Although Perdue is not a Sec. 1443 case, it clearly illustrates the distinction we make here. Likewise, this complaint did not state a cause of action. Were the motion to remand to be heard and amendment permitted, it would still not state a claim upon which relief could be granted. Schneider v. California, 427 F.2d 1178 (9th Cir. 1970), appeal dismissed, cert. denied, 401 U.S. 929, 91 S.Ct. 925, 28 L.Ed.2d 209 (1971). Under those circumstances, we do not believe that the appellant is deprived of constitutional rights nor is the administration of justice served by requiring the district court to perform a useless exercise. See Greenwood v. Peacock, 384 U.S. 808, 832, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).
5
The order of the district court is affirmed.
MERRILL, Circuit Judge (dissenting):
6
I dissent and would remand to the District Court on the authority of People v. Pobuta, 437 F.2d 1200 (9th Cir. 1971), for a hearing on appellant's contentions respecting the propriety of removal. I disagree with the majority in its assertion that the administration of justice would not be served by such action.
7
I do not approve of our sanctioning ex parte action of this sort and do not approve of making this exception to the Pobuta rule, narrow though it may be. Ex parte action here has forced the aggrieved party to take an appeal in order that his contentions may have judicial consideration. It has forced this court to give consideration to those contentions in the first instance. In my view the administration of justice would be served by our making clear to the District Court that our function is to review its rulings upon appellant's contentions. This we can hardly do when appellant has had no opportunity to be heard.
8
I would suggest to the district courts that, notwithstanding the result here, the better course is to grant a hearing. In future cases panels of this court may not find the answer on the merits to be as obvious as was the case here.
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395 So.2d 647 (1980)
STATE of Louisiana
v.
Jay Dennis GOULD.
No. 67286.
Supreme Court of Louisiana.
October 6, 1980.
On Rehearing February 4, 1981.
Rehearing Denied March 20, 1981.
*648 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Judith Lombardino, Asst. Dist. Attys., for plaintiff-appellee.
J. Michael Johnson, Thomas P. Anzelmo, Sr., McGlinchey, Stafford & Mintz, New Orleans, for defendant-appellant.
MARCUS, Justice.
Jay Dennis Gould was charged by bill of information with armed robbery in violation La.R.S. 14:64. After trial by jury, defendant was found guilty as charged and sentenced to serve forty years at hard labor. A motion for appeal was filed but thereafter defendant escaped from the custody of the criminal sheriff. As a result, the trial judge refused to order an appeal. Nine years later,[1] the trial court granted defendant an out-of-time appeal. He relies on fourteen assignments of error for reversal of his conviction and sentence.[2]
ASSIGNMENTS OF ERROR NOS. 3, 7, 8, 10 AND 11[3]
Defendant contends the trial judge erred in denying his motion to suppress physical evidence grounded on a claim that his arrest was made without probable cause (Assignment of Error No. 3) and that the money (Assignment of Error No. 7), raincoat (Assignment of Error No. 8), suitcase (Assignment of Error No. 10), and hold-up note (Assignment of Error No. 11) seized after his illegal arrest was improperly received in evidence at trial.
The record reflects the following facts.[4] On March 17, 1970, at approximately 1:28 p. m., Officers Donald Eskridge and John Graham were patrolling in their police vehicle when they received a radio report of an armed robbery at the Bank of Louisiana at 246 Loyola. They proceeded towards that location, but were instructed that another patrol car had arrived on the scene and that they were to cruise the vicinity. Shortly thereafter, the officers received a radio report providing a description of the suspect: a white male, approximately 5'9" tall and weighing about 150 pounds, fair complexion, brown hair, wearing a yellow rain slicker, and driving a blue automobile. A subsequent call provided the model, color, and license number of the automobile as well as the address of the registered owner (defendant). The officers were proceeding to that address when, a few blocks away, an unidentified black male flagged them down and asked if they were looking for a white *649 male who had jumped out of a blue vehicle carrying a suitcase. When the officers replied affirmatively, the man told them that such a man had been running along Esplanade when he had seen another patrol car pass and had then run into a grocery store at 839 Esplanade.
The officers entered the store which was occupied by the cashier, a mailman who was leaving, and defendant who was hurriedly attempting to get out the rear door which was locked. Defendant then crouched behind a food rack as the officers proceeded to the rear of the store with their guns drawn. Officer Graham advised defendant to put up his hands and defendant complied and said, "Don't shoot. I give up." Defendant was then told that he fit the description of a subject wanted for armed robbery and he was placed under arrest and informed of his Miranda rights. The suitcase which was within six inches of defendant at the time of the arrest was then searched by Officer Eskridge and found to contain the yellow rain slicker, the note used in the robbery, and two thousand five hundred and fifty-four dollars including $750 in "bait money."
This court recently held in State v. Tomasetti, 381 So.2d 420 (La.1980):
It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonablesubject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is a search incident to a lawful arrest made of a person and the area in his immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Such a search is justified in order to discover weapons that may threaten the safety of the arresting officer and to prevent the concealment and destruction of evidence. It has been recently confirmed that an arrest made in a public place without a warrant is valid if founded on probable cause, regardless of the presence or absence of exigent circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). But, in order to justify a search as incident to an arrest, an arrest must have already occurred and the arrest itself must have been lawful. State v. Marks, 337 So.2d 1177 (La.1976). Finally, when the constitutionality of a warrantless search is at issue at a suppression hearing, the state must bear the burden of affirmatively showing that it was justified under one of the exceptions to the warrant requirement. State v. Adams, 355 So.2d 917 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).
In order to ascertain the validity of the seizure of the suitcase and its subsequent search in this case, we must determine whether the arrest was based upon probable cause to believe that defendant had committed a crime.
A warrantless arrest, no less than an arrest pursuant to a validly-issued warrant, must be based on probable cause. State v. Tomasetti, supra; State v. Thomas, 349 So.2d 270 (La.1977). Probable cause exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Marks, supra. Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Tomasetti, supra; State v. Marks, supra. Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Marks, supra.
In the instant case, the officers had heard official radio reports that the Bank of Louisiana at 246 Loyola had been robbed, and they had been furnished with a detailed *650 description of the robber and his automobile. Within a short time after the robbery and only a few blocks from the address of the registered owner of the getaway car, the officers heard from a citizen informer that a white male with a suitcase had abandoned a blue automobile, had begun to run up the street, and had run into a grocery store upon spotting a police car. The only white male in the grocery store fit the description they had received and was attempting to flee through a rear door. After attempting to hide behind a food rack, when confronted by the officers, defendant said, "Don't shoot. I give up." We conclude that ample probable cause existed prior to the arrest of defendant. Accordingly, since the arrest was constitutionally valid, the seizure of the suitcase from defendant and its subsequent search were permissible as incident to his lawful arrest. The suitcase was within defendant's immediate possession and control at the time of his arrest.[5]
Hence, the trial judge did not err in denying defendant's motion to suppress and in admitting the money, raincoat, suitcase and hold-up note in evidence at trial.
Assignments of Error Nos. 3, 7, 8, 10 and 11 are without merit.
ASSIGNMENT OF ERROR NO. 6
Defendant contends the trial judge erred in denying his motion to represent himself.
At trial, defendant was represented by retained counsel. Near the conclusion of the testimony of the first witness, counsel for defendant made an oral motion for the court to permit defendant to represent himself with counsel's assistance. The trial judge denied the motion. No objection was made or a bill of exceptions reserved to the adverse ruling. Later, defendant announced in court, "I would like another attorney." The trial judge denied the request.
Under the then applicable La.Code Crim.P. art. 841:
An irregularity or error in the proceedings cannot be availed of after verdict unless it is objected to at the time of its occurrence and a bill of exceptions is reserved to the adverse ruling of the court on such objection. Failure to reserve a bill of exceptions at the time of an adverse ruling of the court operates as a waiver of the objection and as an acquiescence in the irregularity or ruling.
In view of the fact that no objection was made or a bill of exceptions reserved to the trial judge's adverse ruling on defendant's motion to represent himself, nothing is presented for our review.[6]
In any event, pretermitting the question as to whether the trial judge erred in denying defendant's right to represent himself without further inquiry into the circumstances,[7] defendant's motion was not timely made. A defendant who waits until after commencement of trial to assert for the first time his right to represent himself, after having acquiesced throughout pretrial *651 procedures and the institution of trial, cannot thereafter successfully assert that right unless he makes a showing that the prejudice to his legitimate interest overbalances the potential disruption of the proceeding already in progress. State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Nix, 327 So.2d 301 (La.1975). There was no showing of prejudice here. Likewise, the trial judge properly denied defendant's request to be represented by another attorney after trial had commenced. See State v. Lee, 364 So.2d 1024 (La.1978); State v. Leggett, 363 So.2d 434 (La.1978); State v. Wiggins, 337 So.2d 1172 (La.1976).
Assignment of Error No. 6 is without merit.
ASSIGNMENT OF ERROR NO. 9
Defendant contends the trial judge erred in allowing in evidence, over his objection, six photographs without requiring introduction of the entire series of photographs from which the six were selected. He argues that the other photographs might have been favorable to him.[8]
At trial, Gerald Penton, operation manager at Armored Central Alarm Systems, testified that the camera surveillance system at the Bank of Louisiana at 246 Loyola was activated on March 17, 1970. Penton later removed the film and processed it in the presence of the FBI and the New Orleans Police. Penton enlarged six of the 840 frames which depict a bulge in defendant's pocket that could have been a gun. These photographs were introduced in evidence along with the film consisting of the 840 frames (S-12 through S-15). Defendant had no objection to the introduction of the film.
It is well settled that the prosecution may not suppress evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Williams, 349 So.2d 286 (La.1977). At no time during trial did defendant request processing of the other 834 frames which were in fact introduced in evidence. Also, there was no showing that this evidence would have been favorable to the accused or that it constituted material evidence under Brady and Agurs. Hence, we do not find that the trial judge erred in allowing the six photographs from the sequence in evidence.
Assignment of Error No. 9 is without merit.
ASSIGNMENT OF ERROR NO. 12
Defendant contends the trial judge erred in denying his motion for a new trial grounded on a claim that there was no evidence that defendant was armed with a dangerous weapon, an essential element of the crime of armed robbery.[9]
The record reflects that early in the afternoon of March 17, 1970, defendant placed *652 a note on the counter of a window at the bank where Mrs. Della Dunn worked as a teller. The note read as follows:
DON'T TALK! ACT NATURAL! PUT ALL THE BUNDLED MONEY IN THE SACK FIRST. NOW PUT THE REST OF THE MONEY IN. BE CALM & RELAXED AND YOU "WON'T GET "SHOT!" DON'T LET ANYONE FOLLOW ME.
After she read the note, defendant told Mrs. Dunn to pick up the bag that was in the window and said, "Hurry up. Fill it up." Mrs. Dunn testified that she was very frightened and that she thought defendant had a gun and believed that he would shoot her. She stated that he kept his hands down and put his hand in his pocket.
Gerald Penton testified that, while he did not actually see a gun in the photographs he processed, he did see what could have been a gun in the right-hand pocket of the coat bulging. Two of the six photographs (S-4 through S-9) introduced in evidence depict a bulge in the right-hand pocket of defendant's raincoat (the other four photographs were lost or destroyed subsequent to the trial of the matter).
Officer Eskridge testified that after the arrest defendant volunteered that, "It was a cap gun. It should be in the suitcase. I don't know where it's at. I must have dropped it." Also, FBI agent Paul Hinsel testified that defendant stated on questioning that he had a cap pistol with him which he intended to use to scare anyone who tried to stop him in the commission of the robbery. No one testified that they actually saw a gun during the robbery nor was a gun recovered from defendant at the time of the arrest or thereafter.
La.R.S. 14:64 provides that an armed robbery is the theft of anything of value from the person of another or which he is in the immediate control of another, by use of force or intimidation, "while armed with a dangerous weapon." La.R.S. 14:2(3) defines "dangerous weapon" to include "any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm." This court has noted that by making robbery with a dangerous weapon an aggravated offense with severe penalties the apparent intent of the armed robbery statute is to deter the possibility of serious physical harm resulting to anyone present in such a highly charged atmosphere as the scene of a robbery in progress by the use of any substance or instrument likely to produce death or serious bodily harm. State v. Leak, 306 So.2d 737 (La. 1975); State v. Levi, 259 La. 591, 250 So.2d 751 (1971).
In a case factually similar to the instant case, State v. Elam, 312 So.2d 318 (La.1975), the victim of a robbery was threatened with being shot if he failed to comply with the robber's demands. Also, the perpetrator kept one hand inside his jacket pocket and motioned with his hand in a manner that indicated he had a weapon in the pocket. Neither the victim nor anyone else who viewed defendant at the time of the offense saw a gun or other weapon. Nor was a weapon recovered from defendant at the time of his arrest. We held in Elam that the "mere facts that no weapon was actually seen by the victim or any other witness and that no gun was recovered by the law enforcement officers who arrested the defendants after pursuing them for approximately four hundred yards does not preclude the defendants' convictions for armed robbery, considering the victim's testimony relating Wiggins' [perpetrator's] actions and his threats." In our view, to hold otherwise in a situation such as this would create a "hidden gun" defense in a prosecution for armed robbery. Also, while not determinative of the issue, the subjective reaction of the victim may be some evidence of whether there was actual likelihood of danger. State v. Bonier, 367 So.2d 824 (La.1979).
In the instant case, defendant set forth in a note handed to the victim that she would be shot if she did not comply with his demands. After reading the threatening note and observing that he kept his hands down and put one of them in his pocket, she was convinced that he had a gun. Understandably, *653 she was frightened and thought that he would shoot her. Also, the pictures depicting a bulge in his right-hand coat pocket suggested the presence of a weapon. Moreover, defendant had ample opportunity between the commission of the robbery and his arrest in which to dispose of the weapon. Accordingly, whether applying the traditional "no evidence" standard of review or the one set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that is, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime had been proved beyond a reasonable doubt, we conclude that there was ample evidence to support the jury's conclusion that defendant was "armed with a dangerous weapon" at the time of the robbery.
Assignment of Error No. 12 is without merit.
ASSIGNMENT OF ERROR NO. 13
Defendant contends the trial judge erred in allowing the prosecutor to display a gun which had not been introduced at trial during his closing argument.[10] He argues that the demonstration was beyond the scope of closing argument.
During closing argument, the district attorney displayed to the jury a photograph taken by the camera surveillance system at the bank during a robbery. The photograph depicted defendant standing in front of the teller's window. There was a noticeable bulge in defendant's raincoat pocket and there was testimony at trial that the bulge could have been a gun. No gun was introduced in evidence. The district attorney argued that the bulge was in fact a gun, and in support of this argument, produced a gun, placed it in the pocket of the raincoat seized from defendant, and urged the jury to compare the bulge in the photograph with the protrusion produced by the gun. No attempt was made to connect the gun used in the demonstration with defendant or to claim that the gun was the one used in the robbery. Defendant admitted in brief that no objection was made by defendant.
The then applicable La.Code Crim.P. art. 841 required an objection at the time of the occurrence of an alleged irregularity or error and reservation of a bill of exceptions in order to be availed of after verdict. Since no objection was made or a bill of exceptions reserved to the alleged irregularity in this instance, nothing is presented for our review.
We wish to observe that in a somewhat similar situation in State v. Davis, 336 So.2d 805 (La.1976), while not finding reversible error, we noted that the "practice here followed is discouraged, because of its inherent possibility of prejudice and in order to assure that an accused is convicted only on the basis of legally admissible evidence." However, this case was tried some five years before the warning expressed in Davis.
Assignment of Error No. 13 is without merit.
ASSIGNMENT OF ERROR NO. 14
Defendant contends his constitutional right of judicial review based upon a complete record of all evidence upon which the judgment is based (La.Const. art. 1, § 19) has been violated by the destruction of part of the physical evidence introduced at trial.
The record reveals that after trial, the physical evidence introduced was delivered to the United States District Court pursuant to a subpoena duces tecum for use in connection with the trial of a federal charge against defendant arising out of the instant armed robbery. Following that trial, the film showing the commission of the crime (S-12 through S-15), the raincoat (S-3), and four of the six photographs (S-4 through S-9) were either lost or destroyed by the federal authorities.
We find that defendant suffered no prejudice as a result of the destruction of this evidence. The only issue on appeal with relation to the film was the trial judge's *654 allowing in evidence the six photographs from the film sequence and not the actual content of the film itself. Also, the only question related to the raincoat is whether it was constitutionally seized at the time of the arrest. Further, we find no prejudice to defendant's right of appellate review resulting from the absence of four of the six photographs introduced in evidence at trial. Moreover, the length of the delay between trial of this matter and appellate review (some ten years) may well have contributed to the loss or destruction of the evidence. In this connection, defendant's original appeal in 1970 was dismissed because of his escape and was not reurged by him until 1979, at which time an out-of-time appeal was granted.
Assignment of Error No. 14 is without merit.
DECREE
For the reasons assigned, defendant's conviction and sentence are affirmed.
DIXON, C. J., dissents with reasons.
DIXON, Chief Justice (dissenting).
I respectfully dissent.
There can be drawn from this record only the possibility that defendant was armed with a gun.
ON REHEARING
CALOGERO, Justice.
In this case on original hearing we affirm defendant Jay Gould's conviction of armed robbery and sentence to forty years at hard labor in the state penitentiary.[1]
We granted a rehearing primarily to reconsider the merit of defendant's assignment of error No. 12, complaining that the district court erred in not granting a motion for directed verdict premised on defendant's allegation that the jury received insufficient evidence under the applicable Jackson v. Virginia[2] standard to prove that in perpetrating the robbery of the bank defendant was armed with a dangerous weapon.
The entirety of the evidence in the record that defendant was armed with a dangerous weapon was the following:
Defendant, wearing a yellow rain slicker, entered the Bank of Louisiana in New Orleans on March 17, 1970. He proceeded to the window of a teller, one Della Dunn, without at any time exhibiting a weapon. He presented a note to the teller (quoted at length in the original opinion) which among other things stated "[b]e calm and relaxed and you won't get shot." Mrs. Dunn surrendered the money. At no time did defendant exhibit a weapon or place his hand in his pocket or make any motion with hand in pocket except that after leaving the teller's window he did place his hand in his pocket as he departed (the latter according to Mrs. Dunn). A number of witnesses with opportunity to observe defendant, including the bank manager who later gave chase and Mr. Joe Joseph who was in the teller's line just behind defendant, all testified that they did not see or suspect that defendant was armed with any kind of weapon, did not observe him place a hand in his pocket, or even so much as observe a bulge in his pocket or other clothing. A hidden bank camera[3] photographed the defendant during the robbery.
*655 The photos of defendant in the bank, taken at a distance, seem to suggest that something may have been in defendant's right coat pocket. It cannot be properly described as a bulge, but rather perhaps as a weight within the pocket causing the coat to dip on the right side.
Defendant made good his escape or departure from the bank without incident, but was captured shortly thereafter several miles away in a grocery in the Vieux Carre. When captured defendant was unarmed. The only contrary evidence concerning whether defendant was armed with anything was the testimony of a police officer who apprehended defendant, that at the time of his capture, defendant said that he had carried only a toy pistol with him which could be found in his brief case. When the officers examined the brief case it did not contain a toy pistol or any other weapon.
The state of course had the burden of proving beyond a reasonable doubt that the defendant was armed with a dangerous weapon. The only statutory definition of dangerous weapon appears in the criminal code at R.S. 14:2, under definitions, at Section 3: "[d]angerous weapon includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm."
A loaded pistol is undoubtedly a dangerous weapon irrespective of how used or exhibited. The R.S. 14:2(3) definition of dangerous weapon does not purport by its language to be exclusive. Rather, R.S. 14:2(3) merely states that the term dangerous weapon "... includes any gas, liquid, or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm." A person robbing with a loaded pistol anywhere on his person, irrespective of whether used in a manner calculated or likely to produce death or great bodily harm, would surely qualify as one armed with a dangerous weapon. Other instrumentalities, not inherently dangerous, are dangerous weapons only, as defined, when in the manner used they are calculated or likely to produce death or great bodily harm.
Troubling cases have arisen where a defendant is not clearly shown to have been armed with an inherently dangerous weapon and others where a defendant is shown to have been armed with an instrumentality not inherently dangerous but used in a manner likely to produce death or great bodily harm.
A review of the jurisprudence reveals that even an inherently harmless object can be classified as a dangerous weapon when used to replicate such a weapon because such a use is likely to produce death or great bodily harm. The rationale behind this holding was expressed in the case of State v. Johnston, 207 La. 161, 20 So.2d 741 (La.1944):
"Usually in a situation of that kind the person so assaulted attempts to escape, to wrest the gun from the assailant, or to deliver to him some death dealing blow; and, in making any of these attempts, serious injury often results. Moreover, under the circumstances that existed here, as the trial judge correctly points out, `the complainants, in order to repel their assailant, would have been justified if they had either inflicted great bodily harm upon him or slain him, because it was reasonable for them to believe that their lives were placed in danger by the conduct of the defendant.'"
The jurisprudence has also held that for defendant to have been found so armed he must have employed in the robbery some instrumentality of inanimate object. The mere use of defendant's hand or finger in a manner to feign the presence of a gun when that alone is what is found to have occurred will not qualify as proof of the existence of a dangerous weapon, regardless of the havoc created. State v. Elam, 312 So.2d 318 (La.1975); State v. Calvin, 209 La. 257, 24 So.2d 467 (1949). On the other hand, we have held in State v. Elam, supra, that no weapon need ever be seen by the victim, or witnesses, or recovered by police for the trier of fact to be justified in finding that in fact defendant was armed *656 with a dangerous weapon. The inanimate objects held to be dangerous weapons by the manner of their use include an unloaded pistol, State v. Johnston, 207 La. 161, 20 So.2d 741 (1945); an unloaded and unworkable pistol, State v. Levi, 259 La. 591, 250 So.2d 751 (La.1971); a bottle in the defendant's pocket, State v. McMorris, 343 So.2d 1011 (La.1977); and a ratchet wrench coupled with a socket to resemble the shape of a pistol, State v. Leak, 306 So.2d 737 (La. 1975). See also 32 La.Law Rev. 158 (1971).
The case at hand is perhaps even more difficult than some of those cited. If unarmed, defendant did not perpetrate an armed robbery. If armed with an instrumentality not inherently dangerous, he would not have qualified as having been armed with a dangerous weapon for he did not use the object in a manner likely to produce death or great bodily harm. Only if armed with an inherently dangerous weapon, whether displayed or not, would this defendant have been shown to be guilty of armed robbery. The question therefore in this case is, did defendant have a pistol in his pocket (i. e. an inherently dangerous weapon) as opposed to a toy pistol or some other non-inherently dangerous instrumentality.
The jury apparently concluded beyond a reasonable doubt that defendant did have on his person (perhaps in his coat pocket) an inherently dangerous object (a real pistol). And of course our appellate review on that finding is limited.
Each of the cases mentioned hereinabove and, in fact, all cases reviewing findings of dangerous weapons by this Court have taken place when the evidentiary standard was whether there was "some evidence", however slight, to support the finding of the trier of fact, which standard was applicable prior to Jackson v. Virginia, supra. See State v. Davis, 371 So.2d 788 (La.1979); State v. Lecompte, 371 So.2d 239 (La.1978).
By that standard we would probably conclude that the note implying that defendant would shoot the teller if she lost her composure, coupled with photographic proof that something was probably in defendant's pocket, constituted "some evidence" that defendant was armed with a real pistol.
This is the first occasion this Court has had to review with particularity a question regarding the sufficiency of evidence to support a finding of the existence of a dangerous weapon under the Jackson v. Virginia standard. That standard, as applied in this case is whether any rational trier of fact could conclude beyond a reasonable doubt that defendant had a pistol on his person at the time of the robbery.
The definition of "reasonable doubt" was discussed in a fairly old case, State v. Jefferson, 43 La.Ann. 995, 10 So. 199 (La.1891), which expressly approved the following jury charge describing, or defining, reasonable doubt:
"It is incumbent on the state to prove the offense charged or legally included in the indictment to your satisfaction, beyond a reasonable doubt; and, before you can convict the accused, you must be satisfied from the evidence that he is guilty beyond a reasonable doubt. A reasonable doubt, gentlemen, is not a mere possible doubt; it should be an actual or substantial doubt. It is such a doubt as a reasonable man would seriously entertain. It is a serious, sensible doubt, such as you could give a good reason for. It is not sufficient you should believe his guilt only probable. In fact, no degree of probability merely will authorize a conviction; but the evidence must be of such a character and tendency as to produce a moral certainty of the prisoner's guilt to the exclusion of reasonable doubt."
In this case, all of what evidence exists is circumstantial; there is no direct evidence. To convict, circumstantial evidence must exclude every reasonable hypothesis of innocence, assuming every fact to be proved that the evidence tends to prove. R.S. 15:438. State v. Elzie, 343 So.2d 712 (La.1977); State v. Soukup, 275 So.2d 179 (La.1973). And of course there was other evidence suggesting, to the contrary, that defendant was not armed with a dangerous weapon: the policeman said defendant at the time of arrest claimed to *657 have used a toy pistol, an inculpatory admission which the state introduced into evidence, and there was no witness testimony that defendant displayed or used any instrumentality much less an inherently dangerous one such as a pistol.
Under all of these circumstances we conclude that no rational trier of fact, presented no more than this circumstantial evidence which failed to rule out all other reasonable hypotheses of innocence, could have found beyond a reasonable doubt that in robbing the Bank of Louisiana defendant Gould was armed with a pistol.
In our original opinion, we observed that to hold other than we did at that time we would create a "hidden gun" defense in a prosecution for armed robbery, prompting robbers to avoid being charged with the armed offense merely by keeping their weapons concealed. While such an observation is a slight oversimplification (a robber who uses a dangerous weapon such as a pistol, hidden or not, has committed armed robbery), it does point up a proof problem. However, such a problem is one which the state faces in each and every case, burdened as the state is with the constitutional requirement of proving a defendant guilty beyond a reasonable doubt. Furthermore, the alternative would produce a situation where an unarmed robber who bullies a victim with empty threats of shooting could be convicted of armed robbery, allowing the robber no incentive to leave his pistol at home.
Particularly should we conscientiously apply these constitutionally mandated standards of appellate review where the penalty provision for armed robbery is a five year minimum and a ninety-nine year maximum prison term, without benefit of probation, parole or suspension of sentence.[4]
In this case, the evidentiary insufficiency related only to proof that defendant in robbing the Bank of Louisiana was armed with a dangerous weapon. The evidence more than sufficed to prove him guilty of simple robbery, which according to R.S. 14:65 is "... the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon."
Accordingly, we are here faced with a situation identical to that of State v. Byrd, 385 So.2d 248 (La.1980), from which case we quote as applicable to the instant appeal:
"When the evidence does not support a conviction of the crime charged, the Court has generally remanded with instructions to discharge the defendant. See State v. Allien, 366 So.2d 1308 (La. 1978). However, the discharge of the defendant is neither necessary or proper when the evidence does support a conviction on a lesser and included offense which was a legislatively authorized responsive verdict. See State v. Tillman, 356 So.2d 1376, n.2 at 1379 (La.1978).
"In this case all of the elements of the crime of attempted simple robbery necessarily have been proved beyond a reasonable doubt to the satisfaction of the trier of fact. The verdict of guilty of the greater offense explicitly reflects the finding that defendant attempted to commit the theft of something of value which was in within (sic) the immediate control of the victim. See R.S. 14:64, 65, and 67.
"Since all the elements of the lesser and included offense of attempted simple robbery have been proved beyond a reasonable doubt, this Court should not strike down all of those adequately supported findings merely because the evidence did not reasonably support the conclusion that an additional element also existed.
* * * * * *
"Accordingly, the conviction of armed robbery and the sentence are set aside, and the matter is remanded to the trial court with instructions to enter a judgment of guilty of attempted simple robbery and to sentence the defendant accordingly..."
*658 Decree
For the reasons stated above, upon rehearing we recall our original opinion and reverse defendant Jay Gould's conviction of armed robbery and sentence of forty years, but affirm as to a conviction of simple robbery. We remand defendant to the district court with instructions to enter a judgment of guilty of simple robbery and to impose sentence accordingly.
REVERSED AND REMANDED.
BLANCHE, J., dissents.
MARCUS, J., dissents and assigns reasons.
WATSON, J., dissents for reasons assigned by MARCUS, J.
MARCUS, Justice (dissenting).
I dissent, adhering to the views expressed in the original opinion. After reviewing the evidence in the light most favorable to the prosecution, I consider that any rational trier of fact could have found that defendant was armed with a dangerous weapon, an essential element of the crime charged, beyond a reasonable doubt. I further consider that the majority opinion will create a "hidden gun" defense in a prosecution for armed robbery. Accordingly, I respectfully dissent.
NOTES
[1] In defendant's brief to this court, it is stated that after defendant's escape he was "apprehended and incarcerated in a Federal prison from 1970 to 1979. This term was served in connection with a plea bargain under Federal law for the robbery out of which this state prosecution also arose. Following the granting of his federal parole, in December, 1979, he was transferred and re-incarcerated in Orleans Parish Prison."
[2] Defendant has neither briefed nor argued Assignments of Error Nos. 1, 2, 4 and 5. Hence, we consider them to be abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).
[3] We have numbered the assigned errors as designated in the Assignment of Errors filed in the record, not as numbered in brief to this court.
[4] In determining whether the ruling on defendant's motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Schmidt, 359 So.2d 133 (La.1978); State v. Stewart, 357 So.2d 1111 (La.1978); State v. Shivers, 346 So.2d 657 (La.1977); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971).
[5] Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and United States v. Johnson, 588 F.2d 147 (5th Cir. 1979), relied upon by defendant are distinguishable from the instant case in that the searches there involved automobiles (Sanders and Chadwick) and an airplane (Johnson) and that, at the time of the searches, the luggage searched was not within the immediate control of the defendants.
[6] La.Code Crim.P. art. 841 was amended by Act 297 of 1974, making a bill of exceptions to rulings or orders unnecessary. However, where trials took place prior to the effective date of the 1974 amendment, defendants were required to comply with the former law requiring objections to alleged irregularities or errors at the time of occurrence and reservations of bills of exceptions in order to be considered on appeal. See State v. Calloway, 324 So.2d 801 (La.1976); State v. Shillow, 310 So.2d 103 (La. 1975).
[7] In Farretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), decided some five years after the trial of this matter, the United States Supreme Court established that, when a defendant asserts this right of self-representation, a trial judge must make two independent decisions: Whether defendant's waiver of his right to be represented by counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal.
[8] In a prayer for oyer, defendant specifically requested copies of all pictures of whatever kind of the scene made by or for the New Orleans Police Department. The state responded that defendant was not entitled to this information. After a hearing, the trial judge ruled the state's answers to be good and sufficient. This ruling was correct under the law at that time; however, defendant would now be entitled to the film under La.Code Crim.P. art. 718, as enacted by Acts 1977, No. 515, § 1.
[9] At the close of the state's evidence, defendant moved for a directed verdict of not guilty on the same ground. The trial judge properly denied the motion as, at the time of the trial in 1970, La.Code Crim.P. art. 778 had been declared unconstitutional by this court insofar as it permitted the judge in a jury trial to direct a verdict of not guilty. See State v. Hudson, 253 La. 992, 221 So.2d 484 (1969). Defendant also filed a motion for a new trial alleging the same issue. The motion was denied; defendant objected and properly reserved a bill of exceptions. In this assignment of error, defendant alleges only that the trial judge erred in denying the motion for a directed verdict of not guilty. We construe this contention as a claim that the trial judge improperly denied his motion for a new trial on the ground that there was no evidence that defendant was armed with a dangerous weapon, an essential element of the crime of armed robbery, in order that the issue may be properly before us for review. The state concedes in brief to this court that under these circumstances the issue is properly before us on appeal.
[10] The record does not contain a transcript of the state's closing argument. However, defendant in brief to this court quotes the pertinent portion of the state's closing argument.
[1] This was a 1970 conviction to which the trial judge granted an out of time appeal in 1979 following defendant's return to the custody of state authorities. Defendant for this identical robbery of the Bank of Louisiana, on March 17, 1970 pled guilty in the United States District Court, Eastern District of Louisiana, to the crime of bank robbery (under a sub-part of the federal statute relative to unarmed robbery, defendant alleges in brief). He served nine years in the federal prison at Atlanta, was released and is on federal parole until sometime in the 1990's.
[2] That case is reported at 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[3] Film of 840 frames and six black and white photos of selected film frames were apparently entered into evidence, of which only two black and white photographs were available for our reviewthe remainder was apparently misplaced by the federal authorities, who used them to prosecute defendant on the federal bank robbery charge.
[4] This penalty was in effect for armed robberies committed in 1970, just as it is applicable to those committed at the present time. Louisiana Acts 1966, Ex. Sess., No. 5, § 1.
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476 F.Supp. 1355 (1979)
RANDOLPH ENGINEERING COMPANY, a corporation, Plaintiff,
v.
FREDENHAGEN KOMMANDIT-GESELLSCHAFT, Defendant.
Civ. A. No. 78-870.
United States District Court, W. D. Pennsylvania.
September 28, 1979.
*1356 J. Frank McKenna, III, Thorp, Reed & Armstrong, Pittsburgh, Pa., for plaintiff.
Thomas G. Kienbaum, Michael B. W. Sinclair, Dicksinson, Wright, McKean, Cudlip & Moon, Detroit, Mich., for defendant.
MEMORANDUM ORDER
COHILL, District Judge.
Randolph Engineering Company ("Randolph") brought a diversity action in the Western District of Pennsylvania against Fredenhagen Kommandit-Gesellschaft ("Fredenhagen") for damages allegedly arising from Fredenhagen's breach of a contract entered into by the two parties in May, 1977. The contract involved the construction of a conveyor paint line at a Volkswagen assembly plant located in the Western District of Pennsylvania. In early 1977, Volkswagen Manufacturing of America ("VWMOA"), then a Pennsylvania corporation, selected Conveyor Engineering Company, Inc. ("Conveyor") of Michigan as the prime contractor for the installation of material handling equipment at the assembly plant. VWMOA has since merged with *1357 Volkswagen of America, Inc., the latter having its headquarters in Michigan. Conveyor subsequently subcontracted with Fredenhagen, a West German limited partnership. Fredenhagen, in turn, subcontracted with Randolph, a Pennsylvania corporation with offices located in the Western District of Pennsylvania, to install equipment supplied by Fredenhagen. The contract entered into by Randolph and Fredenhagen incorporated several provisions of the contract between VWMOA and Conveyor, including Paragraph 25, entitled "Applicable Law."[1]
Randolph filed its complaint against Fredenhagen on August 9, 1978. The defendant responded on November 17, 1978 with a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b). That motion included challenges based on subject matter jurisdiction, personal jurisdiction, venue and failure to state a claim upon which relief can be granted. The defendant's challenge to venue arose primarily from Paragraph 8 of the Randolph-Fredenhagen contract, which provides: "Place of performance as regards delivery and payment as well as place of jurisdiction for both parties shall be Offenbach on the Main." In a Memorandum Order issued on May 15, 1979, this Court denied the defendant's motion to dismiss. On the issue of venue, we held that the defendant's failure to translate Paragraph 8 into English following a request from Randolph to provide a translation of the purchase order resulted in the exclusion of Paragraph 8 from the operative contract. Furthermore, we found that the parties had intended that the VWMOA-Conveyor provision, rather than Paragraph 8, control the issue of a forum for litigation. Finally, we determined that the VWMOA-Conveyor provision did not establish West Germany as the appropriate forum.
Fredenhagen filed an answer and a compulsory counterclaim on May 25, 1979. The third defense asserted in the answer resurrected the argument, which this Court had rejected in its Order of May 15, 1979, that Paragraph 8 of the contract required that the plaintiff bring any litigation only in the courts of West Germany. Randolph replied to the counterclaim on June 6, 1979.
Two days after the plaintiff filed its reply, Fredenhagen made a motion to dismiss on the ground of improper venue, alleging that Paragraph 25 of the VWMOA-Conveyor contract required that Randolph bring its action in Michigan. In the alternative, the defendant moved this Court to transfer the case to the Eastern District of Michigan pursuant to 28 U.S.C. § 1404(a) (1976). Randolph has opposed these motions, and has requested that this Court order the defendant to pay the plaintiff's attorneys' fees for responding to the motions.
After carefully reviewing the parties' briefs and hearing oral arguments, we will deny the defendant's motion to dismiss, the defendant's motion for transfer, and the plaintiff's motion for an award of attorneys' fees.
Motion to Dismiss
The defendant now asserts that the choice of forum provision in the VWMOA-Conveyor contract controls any dispute arising between Randolph and Fredenhagen, and that the provision makes Michigan the proper forum. Although the defendant's present interpretation of Paragraph 25 may have some merit, the Court need not decide that question. The defendant has waived its instant objection to venue by failing to assert the objection in the initial motion to dismiss filed on November 17, 1978. Federal Rule of Civil Procedure 12(h)(1) provides that a defense of improper venue is waived if omitted from a pre-answer motion made *1358 pursuant to Federal Rule of Civil Procedure 12(b). This provision enforces Rule 12(g), which requires that a party who makes a pre-answer motion under Rule 12(b) include all defenses and objections then available to him that Rule 12(b) permits to be raised by motion. Thus, "if defendant exercises the option afforded by Rule 12(b) and raises certain defenses and objections by preliminary motion, he is bound by Rule 12(g). . . . The rule generally precludes a second motion based on any Rule 12 defense or objection that defendant could have but neglected to raise in his original motion." 5 C. Wright & A. Miller, Federal Practice and Procedure § 1385, at 838 (1969). The consolidation requirement seeks "to eliminate unnecessary delays at the pleading stage of a case by avoiding the piecemeal consideration of pretrial motions." Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 701 (6th Cir. 1978) (footnote omitted).
Fredenhagen made a Rule 12(b) motion on November 17, 1978. Rule 12(h)(1) prohibits it from making a second such motion. The fact that both motions raise a defense based upon improper venue does not deactivate Rule 12(g) and Rule 12(h)(1). The policy concern underlying the consolidation requirement is violated whether the second motion raises a new Rule 12(b) defense or whether it raises a new theory supporting the original Rule 12(b) defense.
The defendant urges that Rule 12(h)(1) should not preclude its second motion because it did not know, prior to the Court's Order of May 15, 1979, that the Court would void Paragraph 8 of the contract and would find controlling Paragraph 25 of the VWMOA-Conveyor contract. Fredenhagen therefore argues that the Court should not penalize it for failing to allege in its original motion to dismiss the present objection based on Paragraph 25.
This Court's Order of May 15, 1979 brings into question defendant's present position that it could not have reasonably anticipated that the Court would hold controlling Volkswagen's intention through Paragraph 25. That Order states: "Randolph . . . asserts that the parties had agreed that the forum selected by Volkswagen in the terms and conditions of its orders would be the locus where disputes between Randolph and Fredenhagen would be considered. Fredenhagen appears to agree, but disagrees as to the meaning of the Volkswagen language." The defendant had asserted an interpretation of Paragraph 25 that would make West Germany the appropriate forum. In our Order, we found Fredenhagen's interpretation to be "strained, to say the least."
When Fredenhagen first argued the issue of venue, it knew that the Court probably would have to interpret Paragraph 25. It also knew that Randolph had urged an interpretation of Paragraph 25 that would make Pennsylvania the appropriate forum. Therefore, the defendant had adequate notice when it first challenged venue that it should assert all interpretations of Paragraph 25 that would render Pennsylvania an inappropriate forum. The defendant should have argued in the alternative, alleging that the contract required the parties to file any actions in the courts of either West Germany or Michigan, but definitely not Pennsylvania. See Fed.R.Civ.P. 8(e)(2). The Federal Rules do not allow a party to delay a case by asserting its arguments seriatim. "Once venue is waived, even by mistake of law, it may not be reasserted. . . . There may be circumstances where, by reason of fraudulent representations or misleading information furnished by a plaintiff, relaxation of the Rule would be justified. Such circumstances are not present here." United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, Local 102 v. Lee Rubber & Tire Corp., 269 F.Supp. 708, 713-14 (D.N.J.1967), aff'd, 394 F.2d 362, 364 (3d Cir.), cert. denied, 393 U.S. 835, 89 S.Ct. 108, 21 L.Ed.2d 105 (1968).
Even if the defendant did not waive its instant objection by failing to assert the objection in its motion to dismiss of November 17, 1978, it definitely waived the venue objection by failing to include that objection in its answer filed on May 25, 1979. Fredenhagen had the benefit of the Court's Memorandum Order ten days before it filed *1359 the answer. Rule 12(h)(1) states that a defense of improper venue is waived "if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course." The defendant lost its opportunity to amend its answer as a matter of course when the plaintiff filed a reply to the counterclaim on June 6, 1979, and in any case the defendant failed to amend its answer within twenty days after servicethe motion to dismiss filed on June 8, 1979 is not an amended answer.
The question of whether Randolph's earlier assertions would estop the plaintiff from arguing that Michigan is not the proper forum does not arise because the defendant can no longer raise an objection to venue.
Motion to Transfer
Fredenhagen has requested that this Court transfer the case to the Eastern District of Michigan. This Court has the power to order such a transfer pursuant to 28 U.S.C § 1404(a) (1976), which provides:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
Movant first has the burden to show that the plaintiff properly could have initiated the action in the transferee district. In its motion, Fredenhagen alleges that the plaintiff could have filed its suit in the Eastern District of Michigan pursuant to Paragraph 25 of the VWMOA-Conveyor contract, which Randolph and Fredenhagen had incorporated into their contract. A contract provision that specifies a forum for litigation will be recognized unless the court determines that enforcement would be unreasonable under the circumstances. See Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341, 344-45 (3d Cir. 1966). Cf. Morse Electro Products Corp. v. S. S. Great Peace, 437 F.Supp. 474, 487 (D.N.J. 1977) (parties free to choose venue for litigation of dispute arising from contract provided that jurisdiction chosen has some relationship to parties or contract). Courts occasionally have refused to enforce such provisions. See, e.g., Matthiessen v. National Trailer Convoy, Inc., 294 F.Supp. 1132, 1134-35 (D.Minn.1968); Hawaii Credit Card Corp. v. Continental Credit Card Corp., 290 F.Supp. 848, 851-52 (D.Haw. 1968). Hawaii Credit Card Corp. involved a suit brought in the District of Hawaii by a Hawaii-based franchisee against a California-based franchisor for breach of the franchise agreement. The agreement explicitly provided that the parties could initiate legal action arising from the contract only in the courts of California. The district court found that the forum selection provision was unreasonable "where apparently the target of defendants' agreements and actions was the credit card business of Hawaii, where many witnesses are residents of Hawaii and most of the evidence as to the acts complained of apparently is to be found in Hawaii." 290 F.Supp. at 851-52. More recently, a district judge in Leasewell, Ltd. v. Jake Shelton Ford, Inc., 423 F.Supp. 1011 (S.D.W.V.1976), refused to recognize a forum selection provision that specified that any litigation arising from the contract between a New York-based corporation and a West Virginia-based corporation had to be filed in the courts of New York. In determining that the forum selection provision was unreasonable, the judge examined the following factors: the law that governs the formation and construction of the contract; the residence of the parties; the place of execution and/or performance of the contract; the location of the parties and witnesses probably involved in the litigation; the inconvenience to the parties; and the bargaining power of the parties. 423 F.Supp. at 1015-16.
Applying the analysis of these decisions to the instant case, we find that enforcement of the forum selection provision would be unreasonable. First, the language of Paragraph 25 is ambiguous; it does not explicitly identify any jurisdiction. In its first motion to dismiss, Fredenhagen argued that West Germany was the only proper forum under Paragraph 25. Second, Michiganassuming that Paragraph 25 intended *1360 that Michigan serve as the forum has only the most tenuous connection with this law suit. Neither party is incorporated or has offices in Michigan. Fredenhagen does have a subsidiary (unrelated to the present action) and legal counsel in Michigan. The contract arose from communication between West Germany and Pennsylvania, and involved work to be performed at a Pennsylvania job site. Logic suggests that most witnesses and evidence are located at Randolph's offices in Pennsylvania, Fredenhagen's offices in West Germany and Volkswagen's Pennsylvania facility. Although Fredenhagen might find it more convenient to litigate in Michigan because of the presence there of a subsidiary and legal counsel, Randolph would suffer substantial inconvenience if it had to transport witnesses, evidence and legal counsel to Michigan.[2]
Even assuming, however, that Paragraph 25 made Michigan a proper original forum, this Court still would refuse to transfer the case. Movant must show that considerations of convenience strongly favor the transferee district. See Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971). Fredenhagen has failed to carry this burden.
Contrary to the defendant's contention, the plaintiff has not waived its interest in the Western District of Pennsylvania by arguing earlier that jurisdiction and venue should be determined under Paragraph 25. The plaintiff filed the action in the Western District of Pennsylvania and has maintained throughout that the action should remain in this district; it apparently feels that litigation in the Western District of Pennsylvania is consistent with the contract provision. In any case, Randolph argued for the applicability of Paragraph 25 on the issue of venuean issue already decided by this Court and not now properly before this Court.
Fredenhagen's brief in support of its motion makes only general statements regarding the relative convenience of the Eastern District of Michigan. For example, the brief states: "It is obvious that most of the witnesses necessary to try this case are located in Michigan where they would be subject to service of process . . .." Brief for Defendant at 6. The defendant made no effort to compile a list of specific witnesses and documents. Such general statements fail to satisfy the defendant's heavy burden on the issue of convenience.
Looking beyond Fredenhagen's submissions to the facts of the case, this Court has difficulty understanding why most witnesses and documents would reside in Michigan. The action is between a Pennsylvania corporation and a West German limited partnership for breach of a contract involving work to be done on a project in the Western *1361 District of Pennsylvania. The employees of the plaintiff live in the Western District of Pennsylvania, most employees of the defendant live in Germany, and evidence of the contract and damages[3] should be present primarily in the Western District of Pennsylvania.
The contract arose, according to the Vice President of Randolph, from correspondence between Pennsylvania and West Germany and from a meeting in Pittsburgh between representatives of the two companies. Affidavit of Robert L. Shaw at 3-6. Randolph's vice president noted that most Volkswagen personnel who might be witnesses are still working at the Pennsylvania facility. Id. at 8. He also stated that two Conveyor employees who might be called as witnesses are believed to reside in Detroit. Id. at 8-9. The presence of two potential witnesses in Detroit, however, does not support the proposition that justice demands a transfer to the Eastern District of Michigan for the convenience of the parties and the witnesses.
Robert T. Herivel, an employee of Conveyor who works in Detroit, submitted an affidavit in this case, but it seems unlikely from the nature of his affidavit that either party would call him as a witness on the merits. The necessity for this Court to engage in such speculation, however, is itself determinative on the disposition of the defendant's motion. Fredenhagen apparently wants the case transferred to the Eastern District of Michigan because it has a subsidiary and legal counsel in Detroit, but it failed to make any specific showing that the interest of justice would be served by such a transfer. In light of this failure, this Court must find that the defendant did not satisfy its heavy burden of establishing that considerations of convenience strongly favor the Eastern District of Michigan.
Motion for Award of Attorneys' Fees
The plaintiff, alleging that Fredenhagen made its motions solely for the purpose of delay, has moved this Court to order the defendant to pay the plaintiff's attorneys' fees associated with responding to these motions. A district judge does have the power to award attorneys' fees on equitable grounds, if a party to litigation acts vexatiously, oppressively or in bad faith. See Alyeska Pipeline Serv. v. Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Skehen v. Board of Trustees of Bloomsburg St. College, 538 F.2d 53, 57 (3d Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 588 (1976).
This power must be exerted sparingly, however. The First Circuit in Cordeco Development Corp. v. Santiago Vasquez, 539 F.2d 256 (1st Cir.), cert. denied, 429 U.S. 978, 97 S.Ct. 488, 50 L.Ed.2d 586 (1976), stated: "Whatever the parameters of the `bad faith' exception, fees should be awarded under its authority only in extraordinary circumstances and for dominating reasons of justice." 539 F.2d at 263 (citations omitted). In a subsequent case, Americana Industries, Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625 (1st Cir. 1977), the same circuit held: "Invocation of the bad faith exception to the normal federal rule that attorney's fees may not be recovered requires more than a showing of a weak or legally inadequate case. Doubtless a case can be so frivolous as to reflect impermissible conduct, but we cannot say that the issue is that plain here." Id. at 628.
Courts interpret the bad faith exception narrowly because they do not want to chill a lawyer's efforts on behalf of his client. After all, Canon 7 of the ABA Code of Professional Responsibility states that "A Lawyer Should Represent A Client Zealously Within The Bounds Of The Law." Although this Court believes that the defendant's motions lack merit, they are not *1362 vexatious or so frivolous that it can be said that Fredenhagen asserted the motions in bad faith. The defendant did offer reasons to support its position, and the question of a proper forum in this case is complex.
AND NOW, to-wit, this 28th day of September, 1979, it is ORDERED, ADJUDGED and DECREED that the defendant's motion to dismiss is denied, the defendant's motion to transfer is denied, and the plaintiff's motion for an award of attorneys' fees is denied.
NOTES
[1] Paragraph 25 reads in its entirety:
Applicable LawThis order and any contract arising from this order, as well as all transactions contemplated hereby, shall be governed by and construed according to the laws of the State from which this order is issued and the courts of the State and the federal courts sitting in the State shall have jurisdiction in all actions arising with respect thereto. Any trade or commercial terms used in this order shall be interpreted in the light of the INCOTERMS 1953 of the International Chamber of Commerce.
[2] The Eastern District of Michigan could become a proper original forum only through the application of Paragraph 25. Without that contract provision, the plaintiff could not obtain personal jurisdiction over the defendant in Michigan. The Michigan long-arm statute would recognize sufficient nexus if the law suit arose from the transaction of any business in Michigan or from a contract that provided that the defendant would furnish services or materials in the state. Mich.Comp.Laws.Ann. § 600.705 (West Supp.1968-79). The instant case satisfies neither of these tests, however. VWMOA and Conveyor provide the only ties with Michigan, and neither company is a party to the contract now in litigation.
Venue likewise becomes a problem without Paragraph 25. When subject matter jurisdiction rests on diversity of citizenship, 28 U.S.C. § 1391(a) controls venue. That statute provides: "A civil action wherein jurisdiction is founded only on diversity of citizenship may . . . be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose." Neither Randolph nor Fredenhagen resides in Michigan; Fredenhagen's subsidiary that now does business in Michigan has no relationship with this litigation. A claim arises in a judicial district when, in comparison with other possible fora, the most significant contacts underlying the cause of action occur in that district. See B. J. McAdams, Inc. v. Boggs, 426 F.Supp. 1091, 1103 (E.D.Pa.1977). In comparison to the Western District of Pennsylvania, the Eastern District of Michigan has very few contacts with this cause of action.
The personal jurisdiction and venue deficiencies that surface in the absence of Paragraph 25 underscore the unreasonableness of Michigan as a forum for the instant action.
[3] The plaintiff alleges in its complaint that it suffered damage when the defendant failed to deliver certain equipment to the Pennsylvania jobsite in a timely fashion and failed to deliver the equipment in the proper sequence. Randolph further alleges that as a result of these breaches of the contract it incurred extra costs for additional labor and supervision required after the scheduled delivery dates, additional field overhead costs, and direct costs resulting from inefficiency.
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i i i i i i
MEMORANDUM OPINION
No. 04-08-00245-CV
Michael Joseph KEARNS,
Appellant
v.
Sundok Lee CARAWAY,
Appellee
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2007-CI-13911
Honorable Barbara Hanson Nellermoe, Judge Presiding
PER CURIAM
Sitting: Alma L. López, Chief Justice
Catherine Stone, Justice
Steven C. Hilbig, Justice
Delivered and Filed: November 12, 2008
DISMISSED
Michael Joseph Kearns’s appellant’s brief was originally due July 31, 2008. We granted
Kearns extensions until September 29, 2008, to file the brief. The brief was not filed by the due date.
Therefore, on October 8, 2008, we ordered Kearns to file, no later than October 20, 2008, his
appellant’s brief and a written response reasonably explaining his failure to timely file the brief. We
further advised Kearns that if he failed to file a brief and the written explanation by the date ordered,
we would dismiss the appeal for want of prosecution. See TEX . R. APP . P. 38.8(a). Neither have
been filed.
04-08-00245-CV
We therefore order this appeal dismissed for want of prosecution. We further order that
appellee, Sundok Lee Caraway, recover her costs in this appeal from Michael Joseph Kearns.
PER CURIAM
-2-
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20 F.3d 468
U.S.v.Myer
NO. 93-08027
United States Court of Appeals,Fifth Circuit.
Mar 24, 1994
1
Appeal From: W.D.Tex.
2
AFFIRMED IN PART.
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174 U.S. 96 (1899)
ATCHISON, TOPEKA AND SANTA FÉ RAILROAD COMPANY
v.
MATTHEWS.
No. 147.
Supreme Court of United States.
Submitted January 18, 1899.
Decided April 17, 1899.
ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.
Mr. Robert Dunlap and Mr. E.D. Kenna, for plaintiff in error, submitted on their brief.
No appearance for defendants in error.
*97 MR. JUSTICE BREWER delivered the opinion of the court.
In 1885 the legislature of Kansas passed the following act:
"An act relating to the liability of railroads for damages by fire.
"SECTION 1. Be it enacted by the legislature of the State of Kansas: That in all actions against any railway company organized or doing business in this State, for damages by fire, caused by the operating of said railroad, it shall be only necessary for the plaintiff in said action to establish the fact that said fire complained of was caused by the operating of said railroad, and the amount of his damages, (which proof shall be prima facie evidence of negligence on the part of said railroad): Provided, That in estimating the damages under this act, the contributory negligence of the plaintiff shall be taken into consideration.
"SEC. 2. In all actions commenced under this act, if the plaintiff shall recover, there shall be allowed him by the court a reasonable attorney's fee, which shall become a part of the judgment." (Sess. Laws 1885, c. 155, 258.)
Under it an action was brought in the district court of Cloud County which resulted in a judgment against the railroad company, plaintiff in error, for $2094 damages and $225 attorney's fees. This judgment having been affirmed by the Supreme Court of the State, the company brought the case here on error.
All questions of fact are settled by the decision of the state courts, Hedrick v. Atchison, Topeka &c. Railroad, 167 U.S. 673, 677, and cases cited in the opinion, and the single matter for our consideration is the constitutionality of this statute. It is contended that it is in conflict with the Fourteenth Amendment to the Federal Constitution, and this contention was distinctly ruled upon by the Supreme Court of the State adversely to the railroad company. In support of this contention great reliance is placed upon Gulf, Colorado & Santa Fé Railway v. Ellis, 165 U.S. 150. In that case a statute of Texas allowing an attorney's fee to the plaintiffs in actions against railroad corporations on claims, not exceeding in *98 amount $50, for personal services rendered or labor done, or for damages, or for overcharges on freight, or for stock killed or injured, was adjudged unconstitutional. It was held to be simply a statute imposing a penalty on railroad corporations for failing to pay certain debts, and not one to enforce compliance with any police regulations. It was so regarded by the Supreme Court of the State, and its construction was accepted in this court as correct. While the right to classify was conceded, it was said that such classification must be based upon some difference bearing a reasonable and just relation to the act in respect to which the classification is attempted; that no mere arbitrary selection can ever be justified by calling it classification. And there is no good reason why railroad corporations alone should be punished for not paying their debts. Compelling the payment of debts is not a police regulation. We see no reason to change the views then expressed, and if the statute before us were the counterpart of that, we should be content to refer to that case as conclusive.
But while there is a similarity, yet there are important differences, and differences which in our judgment compel an opposite conclusion. The purpose of this statute is not to compel the payment of debts, but to secure the utmost care on the part of railroad companies to prevent the escape of fire from their moving trains. This is obvious from the fact that liability for damages by fire is not cast upon such corporations in all cases, but only in those in which the fire is "caused by the operating" of the road. It is true that no special act of precaution was required of the railroad companies, failure to do which was to be visited with this penalty, so that it is not precisely like the statutes imposing double damages for stock killed where there has been a failure to fence. Missouri Pac. Railway v. Humes, 115 U.S. 512. And yet its purpose is not different. Its monition to the railroads is not, pay your debts without suit or you will, in addition, have to pay attorney's fees; but rather, see to it that no fire escapes from your locomotives, for if it does you will be liable, not merely for the damage it causes, but also for the reasonable attorney's fees of the owner of the property injured or destroyed. It *99 has been frequently before the Supreme Court of Kansas, has always been so interpreted by that court, and its validity sustained on that ground. In Missouri Pac. Railway v. Merrill, 40 Kansas, 404, 408, it was said:
"The objection that this legislation is special and unequal cannot be sustained. The dangerous element employed and the hazards to persons and property arising from the running of trains and the operation of railroads, justifies such a law; and the fact that all persons and corporations brought under its influence are subjected to the same duties and liabilities, under similar circumstances, disposes of the objections raised."
And in the opinion filed in the present case, 58 Kansas, 447, 450, that court observed:
"Our statute is somewhat in the nature of a police regulation, designed to enforce care on the part of railroad companies to prevent the communication of fire and the destruction of property along railroad lines. It is not intended merely to impose a burden on railroad corporations that private persons are not required to bear, and the remedy offered is one the legislature has the right to give in such cases. This is the view heretofore held by this court, which we see no reason for changing. St. Louis & San Francisco Railway v. Snaveley, 47 Kansas, 637; Same v. Curtis, 48 Kansas, 179; Same v. McMullen, Id. 281; Missouri Pac. R.R. Co. v. Henning, Id. 465."
It is true that the Ellis case was one to recover damages for the killing of a colt by a passing train. And so it might be argued that the protection of the track from straying stock and the protection of stock from moving trains would, within the foregoing principles, uphold legislation imposing an attorney's fee in actions against railroad corporations. We were not insensible to this argument when that case was considered, but we accepted the interpretation of the statute and its purpose given by the Supreme Court of Texas, as appears from this extract from our opinion (p. 153): "The Supreme Court of the State considered this statute as a whole and held it valid, and as such it is presented to us for consideration. Considered as such, it is simply a statute imposing a penalty *100 upon railroad corporations for a failure to pay certain debts." And again, referring specifically to this matter, (p. 158): "While this action is for stock killed, the recovery of attorney's fees cannot be sustained upon the theory just suggested. There is no fence law in Texas. The legislature of the State has not deemed it necessary for the protection of life or property to require railroads to fence their tracks, and as no duty is imposed, there can be no penalty for non-performance. Indeed, the statute does not proceed upon any such theory; it is broader in its scope. Its object is to compel the payment of the several classes of debts named, and was so regarded by the Supreme Court of the State." Indeed, the limit in amount, ($50,) found in that statute, made it clear that no police regulation was intended, for if it were, the more stock found on the track the greater would be the danger and the more imperative the need of regulation and penalty.
So that according to the interpretation placed upon the Texas statute by its Supreme Court, its purpose was generally to compel the payment of small debts, and the fact that among the debts so provided for was the liability for stock killed was not sufficient to justify us in separating the statute into fragments and upholding one part on a theory inconsistent with the policy of the State; while on the other hand, the purpose of this statute is, as declared by the Supreme Court of Kansas, protection against fire a matter in the nature of a police regulation.
It may be suggested that this line of argument leads to the conclusion that a statute of one State whose purpose is declared by its Supreme Court to be a matter of police regulation will be upheld by this court as not in conflict with the Federal Constitution, while a statute of another State, precisely similar in its terms, will be adjudged in conflict with that Constitution if the Supreme Court of that State interprets its purpose and scope as entirely outside police regulation. But this by no means follows. This court is not concluded by the opinion of the Supreme Court of the State. Yick Wo v. Hopkins, 118 U.S. 356, 366. It forms its own independent judgment as to the scope and purpose of a statute, while of *101 course leaning to any interpretation which has been placed upon it by the highest court of the State. We have referred to the interpretation placed upon the respective statutes of Texas and Kansas by their highest courts, not as conclusive, but as an interpretation towards which we ought to lean, and which, in fact, commends itself to our judgment.
That there is peculiar danger of fire from the running of railroad trains is obvious. The locomotives, passing, as they do at great rates of speed, and often when the wind is blowing a gale, will, unless the utmost care is taken, (and sometimes in spite of such care,) scatter fire along the track. The danger to adjacent property is one which is especially felt in a prairie State like Kansas. It early attracted the attention of its legislature, and in 1860 long before any railroads were built in the State this statute was passed, (Laws 1860, c. 70, sec. 2; Comp. Laws, c. 101, sec. 2): "If any person shall set on fire any woods, marshes or prairies, so as thereby to occasion any damage to any other person, such person shall make satisfaction for such damage to the party injured, to be recovered in an action." As held in Emerson v. Gardiner, 8 Kansas, 452, its effect was to change the rule of the common law, which gave redress only when the person setting the fire did so wantonly or through negligence, whereas by this statute the mere fact of setting fire to woods, marshes or prairies gave a right to the party injured to recover damages. And in the years after the railroads began to be constructed, and prior to the passage of the act before us, the reports of the Supreme Court of that State show that nearly a score of actions had been brought to that court for consideration, in some of which great damage had been done by fire escaping from moving trains. Fire catching in the dry grass often runs for miles, destroying not merely crops but houses and barns. Indeed, in one case, Atchison, Topeka &c. Railroad v. Stanford, 12 Kansas, 354, it appeared that the fire escaping had swept across the prairies for over four miles, and one ground of objection to the recovery was that the distance of the property destroyed from the railroad track was so great and the fire had passed over so many intervening farms that it could *102 not rightfully be held that the proximate cause of the injury was the escape of fire from the locomotive. No other work done, or industry carried on, carries with it so much of danger from escaping fire.
In 1887 the legislature of the State of Missouri felt constrained to pass an act making every railroad corporation responsible in damages for all property destroyed by fire communicated directly or indirectly from its engines, and giving the corporation an insurable interest in the property along its road. This statute was, after a full examination of all the authorities, held by this court a valid exercise of the legislative power. St. Louis & San Francisco Railway v. Mathews, 165 U.S. 1. So, when the legislature of Kansas made a classification, and included in one class all corporations engaged in this business of peculiar hazard, it did so upon a difference having a reasonable relation to the object sought to be accomplished, to wit, the securing of protection of property from damage or destruction by fire.
While, as heretofore noticed, no special act of precaution was required, no statutory duty imposed upon railroad corporations in respect to protection against escaping fire, and a similar omission in the legislation of Texas was referred to in the opinion in the Ellis case as strengthening the argument that no police regulation was intended, yet we are of opinion that such omission is not conclusive upon the question of the validity of the statute. We have no right to consider the wisdom of such legislation. Our inquiry runs only to the matter of legislative power. If, in order to accomplish a given beneficial result a result which depends on the action of a corporation the legislature has the power to prescribe a specific duty and punish a failure to comply therewith by a penalty, either double damages or attorney's fees, has it not equal power to prescribe the same penalty for failing to accomplish the same result, leaving to the corporation the selection of the means it deems best therefor? Does the power of the legislature depend on the method it pursues to accomplish the result? As individuals we may think it better that the legislature prescribe the specific duties which the corporations must *103 perform; we may think it better that the legislation should be like that of Missouri, prescribing an absolute liability, instead of that of Kansas, making the fact of fire prima facie evidence of negligence; but clearly as a court we may not interpose our personal views as to the wisdom or policy of either form of legislation. It cannot be too often said that forms are matters of legislative consideration; results and power only are to be considered by the courts.
Many cases have been before this court, involving the power of state legislatures to impose special duties or liabilities upon individuals and corporations, or classes of them, and while the principles of separation between those cases which have been adjudged to be within the power of the legislature and those beyond its power, are not difficult of comprehension or statement, yet their application often becomes very troublesome, especially when a case is near to the dividing line. It is easy to distinguish between the full light of day and the darkness of midnight, but often very difficult to determine whether a given moment in the twilight hour is before or after that in which the light predominates over the darkness. The equal protection of the law which is guaranteed by the Fourteenth Amendment does not forbid classification. That has been asserted in the strongest language. Barbier v. Connolly, 113 U.S. 27. In that case, after in general terms declaring that the Fourteenth Amendment designed to secure the equal protection of the laws, the court added (pp. 31 and 32):
"But neither the amendment broad and comprehensive as it is nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts, such as for draining marshes and irrigating arid plains. Special burdens are often necessary for general benefits for supplying water, preventing fires, lighting districts, cleaning *104 streets, opening parks, and many other objects. Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon any one, but to promote, with as little inconvenience as possible, the general good. Though, in many respects, necessarily special in their character, they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment."
This declaration has, in various language, been often repeated, and the power of classification upheld whenever such classification proceeds upon any difference which has a reasonable relation to the object sought to be accomplished. It is also clear that the legislature (which has power in advance to determine what rights, privileges and duties it will give to and impose upon a corporation which it is creating) has, under the generally reserved right to alter, amend or repeal the charter, power to impose new duties and new liabilities upon such artificial entities of its creation. St. Louis &c. Railway Company v. Paul, 173 U.S. 404. It is also a maxim of constitutional law that a legislature is presumed to have acted within constitutional limits, upon full knowledge of the facts, and with the purpose of promoting the interests of the people as a whole, and courts will not lightly hold that an act duly passed by the legislature was one in the enactment of which it has transcended its power. On the other hand, it is also true that the equal protection guaranteed by the Constitution forbids the legislature to select a person, natural or artificial, and impose upon him or it burdens and liabilities which are not cast upon others similarly situated. It cannot pick out one individual, or one corporation, and enact that whenever he or it is sued the judgment shall be for double damages, or subject to an attorney fee in favor of the plaintiff, when no other individual or corporation is subjected to the same rule. *105 Neither can it make a classification of individuals or corporations which is purely arbitrary, and impose upon such class special burdens and liabilities. Even where the selection is not obviously unreasonable and arbitrary, if the discrimination is based upon matters which have no relation to the object sought to be accomplished, the same conclusion of unconstitutionality is affirmed. Yick Wo v. Hopkins, supra, forcibly illustrates this. In that case a municipal ordinance of San Francisco, designed to prevent the Chinese from carrying on the laundry business was adjudged void. This court looked beyond the mere letter of the ordinance to the condition of things as they existed in San Francisco, and saw that under the guise of regulation an arbitrary classification was intended and accomplished.
While cases on either side and far away from the dividing line are easy of disposition, the difficulty arises as the statute in question comes near the line of separation. Is the classification or discrimination prescribed thereby purely arbitrary or has it some basis in that which has a reasonable relation to the object sought to be accomplished? It is not at all to be wondered at that as these doubtful cases come before this court the justices have often divided in opinion. To some the statute presented seemed a mere arbitrary selection; to others it appeared that there was some reasonable basis of classification. Without attempting to cite all the cases it may not be amiss to notice, in addition to those already cited, the following: Missouri v. Lewis, 101 U.S. 22; Hayes v. Missouri, 120 U.S. 68; Duncan v. Missouri, 152 U.S. 377, 382; Marchant v. Pennsylvania Railroad, 153 U.S. 380, 389; Chicago, Kansas & Western Railroad v. Pontius, 157 U.S. 209; Lowe v. Kansas, 163 U.S. 81, 88; Plessy v. Ferguson, 163 U.S. 537; Covington & Lexington Turnpike Co. v. Sandford, 164 U.S. 578, 597; Jones v. Brim, 165 U.S. 180; W.U. Tel. Co. v. Indiana, 165 U.S. 304; Chicago, Burlington &c. Railroad v. Chicago, 166 U.S. 226, 257; Holden v. Hardy, 169 U.S. 366; Savings Society v. Multnomah County, 169 U.S. 421; Magoun v. Ill. Trust & Savings Bank, 170 U.S. 283, 300; Tinsley v. Anderson, 171 U.S. 101. In some of them the *106 court was unanimous. In others it was divided; but the division in all of them was, not upon the principle or rule of separation, but upon the location of the particular case one side or the other of the dividing line.
It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Thus, when the legislature imposes on railroad corporations a double liability for stock killed by passing trains it says, in effect, that if suit be brought against a railroad company for stock killed by one of its trains it must enter into the courts under conditions different from those resting on ordinary suitors. If it is beaten in the suit it must pay not only the damage which it has done, but twice that amount. If it succeeds, it recovers nothing. On the other hand, if it should sue an individual for destruction of its live stock it could under no circumstances recover any more than the value of that stock. So that it may be said that in matter of liability, in case of litigation, it is not placed on an equality with other corporations and individuals; yet this court has unanimously said that this differentiation of liability, this inequality of right in the courts, is of no significance upon the question of constitutionality. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the fact of inequality in no manner determines the matter of constitutionality.
Our conclusion in respect to this statute is that, for the reasons above stated, giving full force to its purpose as declared by the Supreme Court of Kansas, to the presumption which attaches to the action of a legislature that it has full knowledge of the conditions within the State, and intends no arbitrary selection or punishment, but simply seeks to subserve the general interest of the public, it must be sustained, and the judgment of the Supreme Court of Kansas is
Affirmed.
MR. JUSTICE HARLAN, with whom concurred MR. JUSTICE BROWN, MR. JUSTICE PECKHAM and MR. JUSTICE McKENNA, dissenting.
*107 The statute of Kansas, the validity of which is involved in the present case, provides in its first section that in all actions against a railway company to recover damages resulting from fire caused by the operating of its road, it shall only be necessary for the plaintiff to establish the fact that the fire complained of "was caused by the operating of said railroad, and the amount of his damages (which proof shall be prima facie evidence of negligence on the part of said railroad): Provided, that in estimating the damages under this act, the contributory negligence of the plaintiff shall be taken into consideration." The second and only other section provides that "if the plaintiff shall recover, there shall be allowed him by the court a reasonable attorney's fee, which shall become a part of the judgment."
Manifestly, the statute applies only to suits against railroad companies, and only to causes of action arising from fire caused by operating a railroad. It establishes against a defendant railroad company a rule of evidence as to negligence that does not apply in any other suit for damages arising from the negligence of a defendant, whether a corporate or natural person. It does more. It imposes upon the defendant railroad corporation, if unsuccessful in its defence, a burden not imposed upon any other unsuccessful defendant sued upon a like or upon a different cause of action. That burden is the payment of an attorney's fee as a part of the judgment. Even if it appears that the railway company was not guilty of any negligence whatever or that the plaintiffs were guilty of contributory negligence preventing any recovery in their favor, no such fee nor any sum beyond ordinary costs is taxed against them.
In Gulf, Colorado & Santa Fé Railway v. Ellis, 165 U.S. 150, we had before us a statute of Texas declaring among other things that any person in that State having "claims for stock killed or injured by the train of any railway company, provided that such claim for stock killed or injured shall be presented to the agent of the company nearest to the point where such stock was killed or injured, against any railroad corporation operating a railroad in this State, and the amount of such claim does not exceed $50, may present the same, verified *108 by his affidavit, for payment to such corporation by filing it with any station agent of such corporation in any county where suit may be instituted for the same, and if, at the expiration of thirty days after such presentation, such claim has not been paid or satisfied, he may immediately institute suit thereon in the proper court; and it he shall finally establish his claim, and obtain judgment for the full amount thereof, as presented for payment to such corporation in such court, or any court to which the suit may have been appealed, he shall be entitled to recover the amount of such claim and all costs of suit, and in addition thereto all reasonable attorney's fees, provided he has an attorney employed in his case, not to exceed $10, to be assessed and awarded by the court or jury trying the issue."
That was an action against the railway company to recover damages for the killing of an animal. Judgment was entered against the company, and it included a special attorney's fee. That judgment was sustained by the state court.
The question to be decided was whether within the meaning of the Fourteenth Amendment and in the cases specified the Texas statute did not deny to a railroad corporation the equal protection of the laws in that it required the corporation, if unsuccessful in the suit, to pay, in addition to the ordinary costs taxable in favor of a successful litigant, a special attorney's fee, but gave it no right if successful to demand a like fee from its adversary.
After observing that only against railway companies and only in certain cases was such exaction made, and considering the statute as a whole, this court said: "It is simply a statute imposing a penalty upon railroad corporations for a failure to pay certain debts. No individuals are thus punished, and no other corporations. The act singles out a certain class or debtors and punishes them when for like delinquencies it punishes no others. They are not treated as other debtors, or equally with other debtors. They cannot appeal to the courts as other litigants under like conditions and with like protection. If litigation terminates adversely to them, they are mulcted in the attorney's fees of the successful plaintiff; *109 if it terminates in their favor, they recover no attorney's fees. It is no sufficient answer to say that they are punished only when adjudged to be in the wrong. They do not enter the courts upon equal terms. They must pay attorney's fees if wrong; they do not recover any if right; while their adversaries recover if right and pay nothing if wrong. In the suits therefore to which they are parties they are discriminated against, and are not treated as others. They do not stand equal before the law. They do not receive its equal protection. All this is obvious from a mere inspection of the statute."
Referring to the previous decisions of this court holding that corporations were persons within the meaning of the Fourteenth Amendment of the Constitution of the United States, this court also said: "The rights and securities guaranteed to persons by that instrument cannot be disregarded in respect to these artificial entities called corporations any more than they can be in respect to the individuals who are the equitable owners of the property belonging to such corporations. A State has no more power to deny to corporations the equal protection of the law than it has to individual citizens."
In response to the argument made in that case that it was competent for the legislature to make a classification of corporations enjoying special privileges, the court said: "That such corporations may be classified for some purposes is unquestioned. The business in which they are engaged is of a peculiarly dangerous nature, and the legislature, in the exercise of its police powers, may justly require many things to be done by them in order to secure life and property. Fencing of railroad tracks, use of safety couplers, and a multitude of other things easily suggest themselves. And any classification for the imposition of such special duties duties arising out of the particular business in which they are engaged is a just classification and not one within the prohibition of the Fourteenth Amendment. Thus it is frequently required that they fence their tracks, and as a penalty for a failure to fence double damages in case of loss are inflicted. Missouri Pacific Railway v. Humes, 115 U.S. 512. But this and all *110 kindred cases proceed upon the theory of a special duty resting upon railroad corporations by reason of the business in which they are engaged a duty not resting upon others; a duty which can be enforced by the legislature in any proper manner; and whether it enforces it by penalties in the way of fines coming to the State, or by double damages to a party injured, is immaterial. It is all done in the exercise of the police power of the State and with a view to enforce just and reasonable police regulations. While this action is for stock killed, the recovery of attorney's fees cannot be sustained upon the theory just suggested. There is no fence law in Texas. The legislature of the State has not deemed it necessary for the protection of life or property to require railroads to fence their tracks, and as no duty is imposed, there can be no penalty for non-performance. Indeed, the statute does not proceed upon any such theory; it is broader in its scope. Its object is to compel the payment of the several classes of debts named, and was so regarded by the Supreme Court of the State." Again: "Neither can it be sustained as a proper means of enforcing the payment of small debts and preventing any unnecessary litigation in respect to them, because it does not impose the penalty in all cases where the amount in controversy is within the limit named in the statute. Indeed, the statute arbitrarily singles out one class of debtors and punishes it for a failure to perform certain duties duties which are equally obligatory upon all debtors; a punishment not visited by reason of the failure to comply with any proper police regulations, or for the protection of the laboring classes or to prevent litigation about trifling matters, or in consequence of any special corporate privileges bestowed by the State. Unless the legislature may arbitrarily select one corporation or one class of corporations, one individual or one class of individuals, and visit a penalty upon them which is not imposed upon others guilty of like delinquency, this statute cannot be sustained. But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the Fourteenth Amendment forbids this."
*111 If the opinions in the Ellis case and in this case be taken together, the state of the law seems to be this:
1. A State may not require a railroad company sued for negligently killing an animal to pay to the plaintiff, in addition to the damages proved and the ordinary costs, a reasonable attorney's fee, if it does not allow the corporation when its defence is sustained to recover a like attorney's fee from the plaintiff.
2. A State may require a railroad company sued for and adjudged liable to damages arising from fire caused by the operation of its road, to pay to the plaintiff, in addition to the damages proved and the ordinary costs, a reasonable attorney's fee, even if it does not allow the corporation when successful in its defence to recover a like attorney's fee from the plaintiff.
The first proposition arises out of a suit brought on account of the killing by the railroad of a colt. The second proposition arises out of a suit brought on account of the destruction of an elevator and the property attached to it by fire caused by operating a railroad.
Having assented in the Ellis case to the first proposition, I cannot give my assent to the suggestion that the second proposition is consistent with the principles there laid down. Placing the present case beside the former case, I am not astute enough to perceive that the Kansas statute is consistent with the Fourteenth Amendment, if the Texas statute be unconstitutional.
In the former case we held that a railroad corporation, sued for killing an animal, was entitled to enter the courts upon equal terms with the plaintiff, but that that privilege was denied to it when the Texas statute required it to pay a special attorney's fee if wrong, and did not allow it to recover any fee if right in its defence; and yet allowed the plaintiff to recover a special attorney's fee if right, and pay none if wrong. Upon these grounds it was adjudged that the parties did not stand equal before the law, and did not receive its equal protection. In the present case the Kansas statute is held to be constitutional, although the parties in *112 suits embraced by its provisions are not permitted to enter the courts upon equal terms, and although the defendant railroad corporation is not allowed to recover an attorney's fee if right, but must pay one if found to be wrong in its defence; while the plaintiff is exempt from that burden if found to be wrong.
In the former case it was adjudged that a State had no more power to deny to corporations the equal protection of the law than it has to individual citizens. In the present case it is adjudged that in suits against a railroad corporation to recover damages arising from fire caused by the operation of the railroad, a rule of evidence may be applied against the corporation which is not applied in like actions against other corporations or against individuals for the negligent destruction of property by fire.
In the former case it was held that as the killing of the colt was not attributable to a failure upon the part of the railroad to perform any duty imposed upon it by statute, there could be no penalty for non-performance. In the present case it is adjudged that the statute may impose a penalty upon the defendant corporation for non-performance, although the negligence imputed to it was not in violation of any statutory duty.
Suppose the statute in question had been so framed as to give the railroad corporation a special attorney's fee if successful in its defence, but did not allow such a fee to an individual plaintiff when successful. I cannot believe that any court, Federal or state, would hesitate a moment in declaring such an enactment void as denying to the plaintiff the equal protection of the laws. If this be true, it would seem to follow that a statute that accords to the plaintiff rights in courts that are denied to his adversary should not be sustained as consistent with the doctrine of the equal protection of the laws. This conclusion, it seems to me, is inevitable unless the court proceeds upon the theory that a corporate person in a court of justice may be denied the equal protection of the laws when such protection could not be denied under like circumstances to natural persons. But we said in the Ellis *113 case that "a State has no more power to deny to corporations the equal protection of the laws than it has to individual citizens," and that corporations are denied a right secured to them by the Fourteenth Amendment if "they cannot appeal to the courts as other litigants under like conditions and with like protection."
There is another aspect in which the Kansas statute may be viewed. Taken in connection with the principles of general law recognized in that State, that statute, although not imposing any special duties upon railroad companies, in effect says to the plaintiffs Matthews and Trudell, the owners of the elevator property indeed it says in effect to every individual citizen, and for that matter to every corporation in the State: "If you are sued by a railroad corporation for damage done to its property by fire caused by your negligence or in the use of your property, the recovery against you shall not exceed the damages proved and the ordinary costs of suit. But if your property is destroyed by fire caused by the operation of the railroad belonging to the same corporation, and you succeed in an action brought to recover damages, you may recover, in addition to the damages proved and the ordinary costs of suit, a reasonable attorney's fee; and if you fail in the action no such attorney's fee shall be taxed against you." In my judgment, such discrimination against a litigant is not consistent with the equal protection of the laws secured by the Fourteenth Amendment.
I submit that any other conclusion is inconsistent with Gulf, Colorado & Santa Fé Railway v. Ellis, as well as with many other well-considered decisions. A reference to a few adjudged cases will suffice.
The principles which in my judgment should control the determination of cases like the present one are well stated by the Supreme Court of Michigan in Wilder v. Chicago & W. Michigan Railway, 70 Michigan, 382. That case involved the validity of a provision in a statute of that State authorizing an attorney's fee of $25 to be taxed against a railroad company against which judgment should be rendered in an action for injuries to stock. The court said: "But the imposing of the *114 attorney's fee of $25 as costs cannot be upheld. The legislature cannot make unjust distinctions between classes of suitors without violating the spirit of the Constitution. Corporations have equal rights with natural persons as far as their privileges in the courts are concerned. They can sue and defend in all courts the same as natural persons, and the law must be administered as to them with the same equality and justice which it bestows upon every suitor, and without which the machinery of the law becomes the engine of tyranny. This statute proposes to punish a railroad company for defending a suit brought against it with a penalty of $25 if it fails to successfully maintain its defence. The individual sues for the loss of his cow, and if it is shown that such loss was occasioned by his own neglect, and through no fault of the company, and he thereby loses his suit, the railroad company can recover only the ordinary statutory costs of $10 in justice's court, but if he succeeds because of the negligence of the company, the plaintiff is permitted to tax the $10 and an additional penalty of $25; for it is nothing more or less than a penalty. Calling it an `attorney's fee' does not change its real nature or effect. It is a punishment to the company, and a reward to the plaintiff, and an incentive to litigation on his part. This inequality and injustice cannot be sustained upon any principle known to the law. It is repugnant to our form of government and out of harmony with the genius of our free institutions. The legislature cannot give to one party in litigation such privileges as will arm him with special and important pecuniary advantages over his antagonist. `The genius, the nature and the spirit of our state government amounts to a prohibition of such acts of legislation, and the general principles of law and reason forbid them.' Durkee v. Janesville, 28 Wisconsin, 464, 468; Calder v. Bull, 3 Dall. 386, 388. Here the legislature has granted special advantages to one class at the expense and to the detriment of another, and has undertaken to make the courts themselves the active agents in this injustice, and to force them to impose penalties in the disguise of costs upon railroad companies for simply exercising, in certain cases, the common right of every person to make a defence in the courts *115 when suits are brought against them." These principles were reaffirmed in Lafferty v. Chicago & W. Michigan Railway, 71 Michigan, 35, and Grand Rapids Chair Co. v. Runnells, 77 Michigan, 104, 111.
The validity of a statute of Alabama requiring a reasonable attorney's fee, not exceeding a named amount, to be taxed as part of the costs in certain actions, was involved in South & North Alabama Railroad v. Morris, 65 Alabama, 193, 199. The Supreme Court of Alabama, referring to the Fourteenth Amendment as well as to the state constitution, said: "The clear legal effect of these provisions is to place all persons, natural and corporate, as near as practicable, upon a basis of equality in the enforcement and defence of their rights in courts of justice in this State, except so far as may be otherwise provided in the Constitution. This right, though subject to legislative regulation, cannot be impaired or destroyed under the guise or device of being regulated. Justice cannot be sold, or denied, by the exaction of a pecuniary consideration for its enjoyment from one, when it is given freely and open-handed to another, without money and without price. Nor can it be permitted that litigants shall be debarred from the free exercise of this constitutional right, by the imposition of arbitrary, unjust and odious discriminations, perpetrated under color of establishing peculiar rules for a particular occupation. Unequal, partial and discriminatory legislation, which secures this right to some favored class or classes, and denies it to others, who are thus excluded from that equal protection designed to be secured by the general law of the land, is in clear and manifest opposition to the letter and spirit of the foregoing constitutional provisions... . The section of the code under consideration (§ 1715) prescribes a regulation of a peculiar and discriminative character, in reference to certain appeals from justices of the peace. It is not general in its provisions, or applicable to all persons, but it is confined to such as own or control railroads only; and it varies from the general law of the land, by requiring the unsuccessful appellant, in this particular class of cases, to pay an attorney's tax fee, not to exceed twenty dollars. A law *116 which would require all farmers who raise cotton to pay such a fee, in cases where cotton was the subject-matter of litigation, and the owners of this staple were parties to the suit, would be so discriminating in its nature as to appear manifestly unconstitutional; and one which should confine the tax alone to physicians, or merchants or ministers of the gospel, would be glaring in its obnoxious repugnancy to those cardinal principles of free government which are found incorporated, perhaps, in the Bill of Rights of every state constitution of the various Commonwealths of the American Government. We think this section of the code is antagonistic to these provisions of the state constitution, and is void. Durkee v. Janesville, 28 Wisconsin, 464; Gordon v. Winchester Association, 12 Bush, 110; Greene v. Briggs, 1 Curtis, 327; Cooley's Const. Lim. (3d ed.) § 393. The section in question is also violative of that clause in section 1, Article XIV of the Constitution of the United States, which declares that no State shall `deny to any person within its jurisdiction the equal protection of the laws.' This guaranty was said by Justice Bradley in Missouri v. Lewis, 101 U.S. 22, 30, to include `the equal right to resort to the appropriate courts for redress.' `It means,' as was further said by the court, `that no person or class of persons should be denied the same protection which is enjoyed by other persons, or other classes, in the same places and under like circumstances.' The same court, in United States v. Cruikshank, 92 U.S. 542, 555, per Waite, C.J., used the following language in discussing the foregoing constitutional clause: `The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States, and it still remains there.' Ward v. Flood, 48 California, 36."
Coal Company v. Rosser, 53 Ohio St. 12, 22-24, involved the validity of a section of the Revised Statutes of Ohio providing that "if the plaintiff in any action for wages recover the sum claimed by him in his bill of particulars, there shall be included in his costs such fee as the court may allow, but *117 not in excess of $5, for his attorney; but no such attorney fee shall be taxed in the costs unless said wages shall have been demanded in writing, and not paid within three days after such demand; if the defendant appeal from any such judgment, and the plaintiff on appeal recover a like sum exclusive of interest from the rendition of the judgment before the justice, there shall be included in his costs such additional fee not in excess of $15 for his attorney as the court may allow." The Supreme Court of Ohio said: "Under the statute, to entitle the plaintiff to have an attorney fee taxed against the defendant, he is not required to show that the debtor had funds which he wilfully or arbitrarily or even carelessly refused to apply to pay his debt, nor that a vexatious or dilatory defence had been made to defeat or delay the judgment. No other misconduct by the defendant is required than such as may be implied from a failure to comply with the peremptory written demand made upon him. Whether the debtor interposes or shows a vexatious defence, whether he makes an honest though unsuccessful one, or whether he makes none at all, but instead suffers judgment to be taken against him by default, are all equally immaterial; in either case the statute denounces against him a penalty called an attorney fee if an action is brought on the claim and judgment recovered for the sum demanded... . The right to protect property is declared as well as that justice shall not be denied and every one entitled to equal protection. Judicial tribunals are provided for the equal protection of every suitor. The right to retain property already in possession is as sacred as the right to recover it when dispossessed. The right to defend against an action to recover money is as necessary as the right to defend one brought to recover specific real or personal property. An adverse result in either case deprives the defeated party of property." Again: "Upon what principle can a rule of law rest which permits one party or class of people to invoke the action of our tribunals of justice at will, while the other party or another class of citizens does so at the peril of being mulcted in an attorney fee if an honest but unsuccessful defence should be interposed? A statute that imposes this restriction upon *118 one citizen or class of citizens only denies to him or them the equal protection of the law."
In Chicago, St. Louis &c. Railroad v. Moss, 60 Mississippi, 641, 646-647, 650-652, which involved the validity of a statute authorizing an attorney's fee to be taxed against the appellant, "whenever an appeal shall be taken from the judgment of any court in any action for damages brought by any citizen of this State against any corporation," the Supreme Court of Mississippi said: "All litigants, whether plaintiff or defendant, should be regarded with equal favor by the law and before the tribunals for administering it, and should have the same right to appeal with others similarly situated. All must have the equal protection of the law and its instrumentalities. The same rule must exist for all in the same circumstances. There may be different rules for appeals and their incidents in different classes of cases, determined by their nature and subjects, but not with respect to the persons by or against whom they are instituted. The subjection of every unsuccessful appellant to a charge for the fee of the attorney for the appellee would afford no ground for complaint as unequal, for it would operate on all, and such a rule for the unsuccessful appellant in certain causes of action, tested by the nature and subject of the actions, will be equally free from objection on the ground of its discriminating character; but to say that where certain persons are plaintiffs and certain persons are defendants, the unsuccessful appellant shall be subjected to burdens not imposed on unsuccessful appellants generally, is to deny the equal protection of the law to the party thus discriminated against. It is to debar certain persons from prosecuting a civil cause before the appellate tribunals of this State. It is an unwarrantable interference with the `due course of law' prescribed for litigants generally... . It is doubtless true that the act was designed for the relief of citizens who became litigants in actions against corporations, because it applies only when a citizen is plaintiff, and it was assumed that the corporation would be appellant, and to avoid discrimination between parties to the same action it was made to operate on either party as appellant, but it sometimes occurs, and may very *119 often, that the citizen plaintiff is an appellant, and in such cases the discrimination may operate oppressively on him. The Supreme Court of Alabama declared its act violative of the constitution of that State and of the United States, because of its unjust discrimination in establishing peculiar rules for a particular occupation, i.e., `such as own or control railroads.' Our objection to the act under consideration is broader, as shown above, embracing in its scope the right of the citizen who sues a corporation, for whom we assert the right to appeal on the same terms granted to the plaintiffs in like cases, i.e., actions for damages against whomsoever brought. The act was intended to deter from the appellate court corporations against whom judgments should be rendered for damages, or citizens of this State suing them for damages. It was conceived in hostility to citizens as plaintiffs or corporations as defendants in such actions. In either view it is partial and discriminating against classes of litigants, denying them access to the appellate courts on the same terms and with the same incidents as other litigants who may be plaintiffs or defendants in actions for damages. It is not applicable to all suitors alike in the class of actions mentioned by it... . An act `which is partial in its operations, intended to affect particular individuals alone or to deprive them of the benefit of the general laws, is unwarranted by the Constitution and is void.' `A partial law, tending directly or indirectly to deprive a corporation or an individual of rights to property, or to the equal benefits of the general laws of the land, is unconstitutional and void.'"
Cases almost without number could be cited to the same general effect. I refer to the following as bearing more or less upon the general inquiry as to the scope and meaning of the clause in the Fourteenth Amendment prohibiting any State from denying to any person within its jurisdiction the equal protection of the laws. Jolliffe v. Brown, 14 Washington, 155; Randolph v. Builders and Painters' Supply Co., 106 Alabama, 501; New York Life Ins. Co. v. Smith, (Texas) 41 S.W. Rep. 680; St. Louis &c. Railway v. Williams, 49 Arkansas, 492; Denver & Rio Grande Railway Co. v. Outcalt, 2 Colo. App. 395; Atchison & Neb. Railroad v. Baty, 6 Nebraska, 37; O'Connell *120 v. Menominee Bay Shore Lumber Co., (Michigan) 71 N.W. Rep. 449; San Antonio & A.P. Railway v. Wilson, (Texas) 19 S.W. Rep. 910; Jacksonville v. Carpenter, 77 Wisconsin, 288; Pearson v. Portland, 69 Maine, 278; Burrows v. Brooks, (Michigan) 71 N.W. Rep. 460; Middleton v. Middleton, 54 N.J. Eq. 692; State v. Goodwill, 33 W. Va. 179. These adjudications rest substantially upon the grounds indicated by this court in Yick Wo v. Hopkins, 118 U.S. 356, 369, where it was said that "the equal protection of the laws is a pledge of the protection of equal laws."
I do not think that the adjudged cases in this court, to which reference has been made, sustain the validity of the statute of Kansas.
In Missouri Pacific Railway v. Humes, 115 U.S. 512, 522, this court sustained a statute of Missouri requiring every railroad corporation to erect and maintain fences and cattle guards on the sides of its roads, and for failure to do so subjecting it to liability in double the amount of damages occasioned thereby. The court said: "The omission to erect and maintain such fences and cattle guards in the face of the law would justly be deemed gross negligence, and if, in such cases, where injuries to property are committed, something beyond compensatory damages may be awarded to the owner by way of punishment for the company's negligence, the legislature may fix the amount or prescribe the limit within which the jury may exercise their discretion. The additional damages being by way of punishment, it is clear that the amount may be thus fixed; and it is not a valid objection that the sufferer instead of the State receives them... . The power of the State to impose fines and penalties for a violation of its statutory requirements is coeval with government; and the mode in which they shall be enforced, whether at the suit of a private party or at the suit of the public, and what disposition shall be made of the amounts collected, are merely matters of legislative discretion. The statutes of nearly every State of the Union provide for the increase of damages where the injury complained of results from the neglect of duties imposed for the better security of life and property, and make that increase *121 in many cases double, in some cases treble, and even quadruple the actual damages... . The objection that the statute of Missouri violates the clause of the Fourteenth Amendment, which prohibits a State to deny to any person within its jurisdiction the equal protection of the laws, is as untenable as that which we have considered. The statute makes no discrimination against any railroad company in its requirements. Each company is subject to the same liability, and from each the same security, by the erection of fences, gates and cattle guards, is exacted, when its road passes through, along or adjoining enclosed or cultivated fields or unenclosed lands. There is no evasion of the rule of equality where all companies are subjected to the same duties and liabilities under similar circumstances."
In Missouri Pacific Railway v. Mackey, 127 U.S. 205, 209, this court held not to be unconstitutional a statute of Kansas making every railroad company liable for all damages done to one of its employés in consequence of any negligence of its agents or by any mismanagement of its engineers or other employé, to any person sustaining such damage. This court said: "Such legislation does not infringe upon the clause of the Fourteenth Amendment requiring equal protection of the laws, because it is special in its character; if in conflict at all with that clause, it must be on other grounds. And when legislation applies to particular bodies or associations, imposing upon them additional liabilities, it is not open to the objection that it denies to them the equal protection of the laws, if all persons brought under its influence are treated alike under the same conditions."
In Minneapolis & St. Louis Railway v. Emmons, 149 U.S. 364, 367, the court held to be valid a statute of Minnesota requiring railroad companies within a named time to build or cause to be built good and sufficient cattle guards at all wagon crossings and good and substantial fences on each side of their respective roads, and that failure by any company to perform that duty should be deemed an act of negligence, for which it should be liable in treble the amount of damage sustained. This court said: "The extent of the obligations and duties *122 required of railroad corporations or companies by their charters does not create any limitation upon the State against imposing all such further duties as may be deemed essential or important for the safety of the public, the security of passengers and employés, or the protection of the property of adjoining owners. The imposing of proper penalties for the enforcement of such additional duties is unquestionably within the police power of the States. No contract with any person, individual or corporate, can impose restrictions upon the power of the States in this respect."
In St. Louis & San Francisco Railway v. Mathews, 165 U.S. 1, 26, this court upheld a statute of Missouri providing that every railroad corporation owning and operating a railroad in that State should be responsible in damages to the owner of any property injured or destroyed by fire communicated directly or indirectly by locomotive engines in use upon its railroad the railroad company being however authorized to procure insurance on the property upon the route of its railroad. It was there said: "The right of the citizen not to have his property burned without compensation is no less to be regarded than the right of the corporation to set it on fire. To require the utmost care and diligence of the railroad corporations in taking precautions against the escape of fire from their engines might not afford sufficient protection to the owners of property in the neighborhood of the railroads. When both parties are equally faultless, the legislature may properly consider it to be just that the duty of insuring private property against loss or injury caused by the use of dangerous instruments should rest upon the railroad company, which employs the instruments and creates the peril for its own profit, rather than upon the owner of the property, who has no control over or interest in those instruments. The very statute now in question, which makes the railroad company liable in damages for property so destroyed, gives it, for its protection against such damages, an insurable interest in the property in danger of destruction, and the right to obtain insurance thereon in its own behalf; and it may obtain insurance upon all such property generally, without specifying any *123 particular property." Observe, that the Missouri statute gave the railroad company for its protection against the new liability imposed upon it the right to insure the property likely to be destroyed by fire.
I do not perceive that the judgment now rendered finds support in any adjudication by this court. The above cases proceed upon the general ground that in the exercise of its police power a State may by statute impose additional duties upon railroad corporations, with penalties for the non-performance of such duties, and that such legislation is not, because of its special character, a denial of the equal protection of the laws. It is said to be of the essence of classification that "upon the class are cast duties and burdens different from those resting upon the general public." But here the State does not prescribe any additional duties upon railroad companies in respect of the destruction of property by fire arising from the operating of their roads. It simply imposes a penalty which it does not impose upon other litigants under like circumstances. It only prescribes a punishment for assuming to contest a claim of a particular kind made against it for damages. The railroad company can escape the punishment only by failing to exercise its privilege of resisting in a court of justice a demand which it deems unjust. Undoubtedly, the State may prescribe new duties for a railroad corporation and impose penalties for their non-performance. But, under the guise of exerting its police powers, the State may not prevent access to the courts by all litigants upon equal terms. It may not, to repeat the language of the court in the Ellis case, "arbitrarily select one corporation or one class of corporations, one individual or one class of individuals, and visit a penalty upon them which is not imposed upon others guilty of like delinquency." Arbitrary selection cannot, we said in the same case, "be justified by calling it classification." There is no classification here except one that denies the equal protection of the laws. It would seem that what was said in the Ellis case was exactly in point, namely, "as no duty is imposed there can be no penalty for non-performance." Instead of prescribing some penalty for the *124 neglect by the railroad company of duties specifically enjoined upon it, the State attempts and by the decision just rendered is enabled to take from the company the right which we declared in the Ellis case was secured by the Constitution, namely, the right to "appeal to the courts as other litigants, under like conditions and with like protection."
Some stress is laid upon the fact that the statute under consideration was passed by a State in which fires caused by the operating of railroads may often cause and are likely to cause widespread injury to grass, crops, houses and barns. What, in the light of the authorities, the State may constitutionally do in order to protect its people against dangers of that character I need not stop to consider. The only question here is whether, in the absence of any statutory regulation prescribing what a railroad corporation shall or shall not do in order to guard property against destruction by fire arising from the operating of its road, the State can deny to such a corporation, when defending a suit brought against it to recover damages on the ground of negligent destruction of property, a privilege which it accords to its adversary in the trial of the issues joined. May the State meet the railroad corporation at the doors of its courts of justice and say to it, "If you enter here for the purpose of defending the suit brought against you it must be subject to the condition that a special attorney's fee shall be taxed against you if unsuccessful, while none shall be taxed against the plaintiff if he be unsuccessful?" Nothing has ever heretofore fallen from this court sustaining the proposition that the constitutional pledge of the equal protection of the laws admitted of a litigant, because of its corporate character, being denied in a court of justice privileges of a substantial kind accorded to its opponent. If there is one place under our system of government where all should be in a position to have equal and exact justice done to them, it is a court of justice a principle which I had supposed was as old as Magna Charta.
In my opinion the statute of Kansas denies to a litigant, upon whom no duty has been imposed by statute and whose liability for wrongs done by it depends upon general principles *125 of law applicable to all alike, that equality of right given by the law of the land to all suitors, and consequently it should be adjudged to deny the equal protection of the laws. I dissent from the opinion and judgment.
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50 N.J. 428 (1967)
236 A.2d 138
JACOB F. BOLLERER, PETITIONER-APPELLANT,
v.
GEORGE AND LUCILLE ELENBERGER, PARTNERS, T/A CITY BAKERY OF LONG BRANCH, RESPONDENT-RESPONDENT.
The Supreme Court of New Jersey.
Argued November 8, 1967.
Decided December 4, 1967.
*430 Mr. John G. Rathman for petitioner-appellant (Mr. Louis R. Aikins, attorney; Mr. John G. Rathman on the brief).
Mr. Isidor Kalisch for respondent-respondent.
The opinion of the court was delivered by PROCTOR, J.
This is a workmen's compensation case. The Division of Compensation dismissed the claimant's petition. The sole ground for the dismissal was a finding that the employer neither was given notice nor had knowledge of the claimed compensable injury within 90 days as required by N.J.S.A. 34:15-17. On appeal, the County Court held that the employer had knowledge of the injury sufficient *431 to satisfy the statute. Though the Division had not decided the issue of causal relationship, the County Court determined that the injury was causally related to petitioner's employment and remanded the case to the Division only for a determination of the amount of the award. The Division found permanent disability of 100% and a judgment thereon was entered in the County Court. The employer appealed to the Appellate Division which held that the notice requirement of the statute had not been satisfied. Accordingly, the judgment of the County Court was reversed and the Compensation Division's order of dismissal was reinstated. 93 N.J. Super. 57 (App. Div. 1966). We granted the employee's petition for certification. 48 N.J. 446 (1967).
The petitioner, Jacob F. Bollerer, was employed in the bakery owned by the respondents, Mr. and Mrs. Elenberger. Bollerer had been employed as a cake baker since 1927 by Mr. Elenberger's father and continued in that capacity when the Elenbergers succeeded to the business in 1958. On January 7, 1961 Bollerer gave up his job. He was suffering from partial paralysis of his right side, manifested by a loss of power and control in his right arm and a dragging of his right leg. The condition was diagnosed by his treating physician as the result of a cerebral vascular accident with a thrombus. Bollerer testified that these physical difficulties began at work on December 24, 1960 when, as he reached for a biscuit cutter hanging above his head, he lost feeling and control in his right hand and arm; that this condition became worse, compelling him to use his left hand and to drag his right leg, until he no longer could work as a baker.
It is undisputed that Bollerer did not report the episode of December 24 to the Elenbergers. Nevertheless, under the circumstances of this case, we conclude that they had knowledge of facts sufficient to indicate to them that an injury had been suffered by Bollerer and that the injury might involve a potential compensation claim. It is settled that such knowledge satisfies the notice requirements of the statute. Goldstein v. Continental Baking Co., 16 N.J. *432 8 (1954); Panchak v. Simmons Co., 15 N.J. 13 (1954). Although knowledge of a mere loss of physical capacity by an employee may not require an employer to inquire about the possibility of a work-connected injury, when an employer has reason to know that there is a sudden and severe loss of physical capacity and can see that the effects have seriously impaired the employee's ability to perform his work, the employer should suspect a possible work-connected injury. Especially is this true when the sudden loss is followed by a deteriorating capacity to work which itself suggests the possibility, as in fact was claimed in this case, that the continued work aggravated the condition. "Employers may generally be charged with pertinent knowledge far superior to that of their employees; they are undoubtedly now aware that many industrial accidents may occur without external trauma and they must guide themselves accordingly." Panchak, supra at 19. The test is whether a reasonably conscientious employer had grounds to suspect the possibility of a potential compensation claim. See 2 Larson, Workmen's Compensation § 78.31(a) pp. 254-255 (1961).
The facts in this case lead us to conclude that though the Elenbergers might not have had knowledge that Bollerer's condition actually was compensable, they were aware of facts which should have raised in their minds at least the possibility that Bollerer's condition was work-connected. Though the evidence is in dispute regarding Bollerer's health prior to Christmas 1960, it is clear that an obvious and precipitous change in his physical condition occurred about December 24, 1960. Mrs. Elenberger testified that she saw that "the work that he did wasn't the same ... I knew there was something wrong ... I saw him have difficulty with his work." She observed that Bollerer's condition was so bad that another baker in the establishment had to help him put together and ice a birthday cake, a routine task that ordinarily he would do by himself. Although Mr. Elenberger testified that Bollerer was in poor *433 health for some months prior to Christmas, he admitted that Bollerer's physical condition "worsened" shortly before Christmas and that on December 24 he saw Bollerer drop a peel (a shovel used for removing baked goods from the oven). He was not surprised when, on January 7, Bollerer "could not physically continue." Two co-employees testified that about Christmas 1960 they observed the partial paralysis of Bollerer's right side and noted that he had great difficulty doing his job and that he dropped things. The Elenbergers could not have failed to recognize that Bollerer had suffered a stroke. All the witnesses agreed that they observed him dragging his right leg and saw that he had difficulty using his right arm and hand; the treating physician stated that on January 23, 1961 two weeks after Bollerer left the Elenbergers' employment he exhibited a noticeable dragging of his right leg, partial paralysis of his right arm and hand, and involvement of the muscles of the right side of his face. Confronted with these incidents coupled with their admitted impairment of Bollerer's work, Mr. and Mrs. Elenberger reasonably should have suspected the existence of a work-connected injury. In fact, there is some evidence that Mr. Elenberger did consider the possibility of a compensation claim. He testified that he filled out a Workmen's Compensation form, because Bollerer could not work, "right after he left, Jan. 7th" well within the 90-day notice period. However, when shown that the form was dated June 26, 1961 Elenberger said that he could not recall the date he filled it out and that the date which appeared on it did not refresh his recollection.
The Appellate Division apparently concluded that the statutory notice requirement had not been satisfied because the Elenbergers "did not know, nor were they given notice * * * that petitioner's illness was connected in any way with his job performance, or that he had suffered any accident arising out of and during the course of his employment, or that he intended to make any such claim." 93 N.J. Super., at p. 62 (emphasis added). However, the *434 law does not require such knowledge; mere reason to inquire whether there was an injury within the broad coverage of the Compensation Act satisfies the statute. See Panchak, supra. Insofar as the Appellate Division did consider that the Elenbergers were on notice to inquire whether Bollerer's disability was work-connected, it found that they had inquired and were told by him that his trouble was due to a circulatory condition and that his doctor advised him to continue working. The Appellate Division held that this did not constitute knowledge of a potentially compensable injury. However, the inquiry which elicited the information concerning Bollerer's circulatory problem was made well before the dramatic change in his condition about Christmas time 1960. As we have concluded above, this sudden disablement of a previously capable worker certainly presented sufficient reason for the Elenbergers to make further inquiry.
We agree with the Appellate Division's criticism that the County Court should not have disposed of the issue of the causal relationship between Bollerer's disability and his employment, but should have remanded that issue to the Division which had not passed upon the question. In compensation appeals the de novo review by the County Court should extend only to issues which have been resolved by the Division; where it is necessary to decide factual issues not reached by the judge of compensation, the case ordinarily should be remanded for his initial determination. We would remand this aspect of the case to the Workmen's Compensation Division but for the following factors: Throughout the appeals the employer fully briefed and argued the question of causal relationship without objecting to the County Court's procedure; the petitioner is now sixty-two years of age and already has waited more than six years for disposition of his case. Under these circumstances, the interests of justice require that we bring finality to these proceedings.
We conclude that substantial credible evidence supports the decision reached by the County Court that Bollerer's *435 disability was causally related to his employment. Moreover, in order to afford the employer the de novo review of the initial determination, as provided by the Workmen's Compensation Act, N.J.S.A. 34:15-66, in the exercise of our original jurisdiction, R.R. 1:5-4(a), we have evaluated the evidence anew. Our review of the record leads us to an independent conclusion that, while the medical evidence was conflicting, the petitioner has sustained his burden of proving that his disability arose out of and in the course of his employment.
The judgment of the Appellate Division is reversed and the judgment of the County Court is reinstated.
For reversal Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, SCHETTINO and HANEMAN 6.
For affirmance None.
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-10-2009
USA v. Percy Dillon
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3397
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Percy Dillon" (2009). 2009 Decisions. Paper 1201.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1201
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-3397
_____________
UNITED STATES OF AMERICA,
v.
PERCY DILLON,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 93-cr-0084)
District Judge: Honorable Stewart Dalzell
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 19, 2009
Before: FUENTES, JORDAN, and NYGAARD, Circuit Judges.
(Opinion Filed: June 10, 2009)
OPINION OF THE COURT
FUENTES, Circuit Judge:
Percy Dillon appeals the District Court’s partial denial of his motion to reduce his
sentence pursuant to 18 U.S.C. § 3582(c)(2). In 2008, the United States Sentencing
1
Commission amended the United States Sentencing Guidelines (“Guidelines”),
retroactively reducing the base offense level for crack cocaine offenses. The District
Court subsequently entered an order reducing Dillon’s sentence by two-levels, but held
that it lacked authority to reduce Dillon’s sentence further. Dillon argues that the District
Court erred in failing to recognize that United States v. Booker, 543 U.S. 220 (2005) gave
it such authority. For the reasons that follow, we will affirm.
I.
If Booker did apply in proceedings pursuant to § 3582, Dillon would likely be an
ideal candidate for a non-Guidelines sentence. In 1993, Dillon was convicted of
conspiracy to distribute more than 500 grams of cocaine and more than 50 grams of
cocaine base in violation of 21 U.S.C. § 846; use of a firearm during a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1); and possession with intent to distribute more
than 500 grams of cocaine in violation of 18 U.S.C. § 841(a)(1).
At the time, the District Court calculated Dillon’s offense level to be 38 and his
criminal history category to be II. Dillon received two criminal history points; one for
misdemeanor marijuana possession and one for misdemeanor resisting arrest. Thus,
Dillon’s Guidelines Range was 322 to 387 months.1
The District Court sentenced Dillon to the bottom of the Guidelines Range, 322
1
This Guidelines Range includes the mandatory consecutive 60-month sentence
for the firearms offense. See 18 U.S.C. § 924(c)(1).
2
months. However, the District Court repeatedly stated that it was constrained by the
Guidelines to impose what it believed to be an unreasonable sentence. At Dillon’s
original sentencing hearing, the District Court noted: “I personally don’t believe that you
should be serving 322 months[, b]ut I feel I am bound by those Guidelines . . .” App. at
99. The District Court continued: “I don’t say to you that these penalties are fair. I don’t
think they are fair. I think they are entirely too high for the crime you have committed
even though it is a serious crime.” Id. The District Court also noted that it believed
Dillon’s sentence to be unreasonable in its Statement of Reasons: “[T]he guidelines range
is unfair to the defendant. The Court, however, is bound by the guidelines range.” App.
at 5.
Following the change in the crack cocaine offense level, Dillon filed a pro se
motion for a sentence reduction. The District Court recalculated Dillon’s offense level to
be 36 and reduced Dillon’s sentence to 270 months. Dillon argued that the District Court
should apply Booker in resentencing him, but the District Court found that Booker did not
apply and that it lacked jurisdiction to do grant more than a 2-level sentence reduction.
II.
A court generally may not modify a term of imprisonment once it has become
final. 18 U.S.C. § 3582(c). However, 18 U.S.C. § 3582(c)(2) provides that:
in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. 994( o) . . .
the court may reduce the term of imprisonment, after considering the factors
3
set forth in section 3553(a) to the extent that they are applicable, if such a
reduction is consistent with applicable policy statements issued by the
Sentencing Commission.
In Booker, the Supreme Court concluded that the Sixth Amendment requires a jury
to find the facts that establish a mandatory floor on a defendant’s sentence. 543 U.S. at
229, 244. Following Booker, a sentencing court must calculate a defendant’s Guidelines
range, but may only use that range as a starting point for determining a reasonable
sentence based on an individualized assessment of the factors set forth at 18 U.S.C. §
3553(a). Gall v. United States, 128 S.Ct. 586, 596-97 (2007). Dillon argues that a district
court adjusting a sentence pursuant to § 3582(c) must also treat the amended Guidelines
range as advisory, and impose a sentence based on the procedures set forth in the Booker
line of cases.
We have held that Booker does not effect eligibility for a § 3582(c) sentence
reduction. See, e.g., United States v. Doe, 564 F.3d 305 (3d Cir. 2009) (holding that
defendants’ who received substantial assistance departures below the statutory mandatory
minimum were not eligible for reduction); United States v. Mateo, 560 F.3d 152, 155 (3d
Cir. 2009) (holding that defendant sentenced based on career offender Guidelines Range
was not eligible for reduction as a result of the crack cocaine amendment).
Though, we have not yet written precedentially on whether Booker gives a district
court authority to give a defendant who is eligible for a sentence reduction under § 3582
an additional reduction, our reasoning in the eligibility cases also applies in this context.
4
In the context of eligibility for a § 3582 sentence reduction we explained that:
Nowhere in Booker did the Supreme Court mention § 3582(c)(2).
Because § 3582(c)(2) proceedings may only reduce a defendant’s sentence
and not increase it, the constitutional holding in Booker does not apply to §
3582(c)(2). See Booker, 543 U.S. at 244. Additionally, the remedial
holding in Booker invalidated only 18 U.S.C. § 3553(b)(1), which made the
Sentencing Guidelines mandatory for full sentencings, and § 3742(e), which
directed appellate courts to apply a de novo standard of review to departures
from the Guidelines. Therefore, Booker applies to full sentencing
hearings–whether in an initial sentencing or in a resentencing where the
original sentence is vacated for error, but not to sentence modification
proceedings under § 3582(c)(2). Not only are sentence modification
proceedings sanctioned under a different section of the statute than those at
issue in Booker, but the Booker court held that “[w]ith these two sections
excised (and statutory cross-references to the two sections consequently
invalidated), the remainder of the Act satisfies the Court's constitutional
requirements.” Booker, 543 U.S. at 259. Section 3582(c)(2) contains no
cross-reference to § 3553(b) and therefore was not affected by Booker. Nor
is there anything else in Booker that directly addresses § 3582(c)
proceedings.
....
Nothing in Booker purported to obviate the congressional directive
in § 3582(c)(2) that a sentence reduction pursuant to that section be
consistent with Sentencing Commission policy statements. The language of
§ 3582(c)(2) could not be clearer: the statute predicates authority to reduce
a defendant’s sentence on consistenc[y] with the policy statement, and the
policy statement provides that a reduction is not consistent if the
amendment does not have the effect of lowering the defendant’s applicable
Guideline range. The Guidelines are no longer mandatory, but that does not
render optional statutory directives.
....
Because U.S.S.G. § 1B1.10 is binding on the District Court pursuant
to § 3582(c)(2), the District Court correctly concluded that it lacked the
authority to further reduce the Appellants’ sentences.
Doe, 564 F.3d at 312-14 (internal citations and quotation marks omitted). For the same
5
reasons, we conclude that Booker does not apply to the size of a sentence reduction that
may be granted under § 3582(c)(2).
In doing so, we are joined by the overwhelming majority of our sister Courts of
Appeals. See United States v. Fanfan, 558 F.3d 105 (1st Cir. 2009) (holding that Booker
does not apply); United States v. Dunphy, 551 F.3d 247, 254 (4th Cir. 2009) (same);
United States v. Cunningham, 554 F.3d 703, 705 (7th Cir. 2009) (same); United States v.
Starks, 551 F.3d 839, 842 (8th Cir. 2009) (same); United States v. Rhodes, 549 F.3d 833,
840 (10th Cir. 2008) (same); United States v. Melvin, 556 F.3d 1190 (11th Cir. 2009)
(same); United States v. Savoy, —F.3d—, 2009 WL 1457976, *2 (2d Cir. 2009), but see
United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007) (holding that Booker abolished the
mandatory nature of the Guidelines in all contexts).
Dillon also argues that the District Court erred in calculating his criminal history
score. However, the District Court had no authority to reconsider its prior criminal
history determination. See, e.g., Mateo, 560 F.3d at 156.
III.
Because Booker does not apply in § 3582(c)(2) proceedings, the District Court did
not err in denying Dillon’s motion for a reduction below his new Guidelines Range. We
will affirm the judgment of the District Court.
6
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MURRAY ALAN COATS,
Petitioner-Appellant,
v. No. 97-7295
ROBERT SMITH, Superintendent,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-97-33-5-3H)
Argued: January 28, 1998
Decided: April 2, 1998
Before RUSSELL,* WIDENER, and WILKINS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: John Kirk Osborn, Chapel Hill, North Carolina, for
Appellant. Clarence Joe DelForge, III, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: J. Matthew Martin, MARTIN &
_________________________________________________________________
*Judge Russell heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C.A. § 46(d) (West 1993).
MARTIN, P.A., Hillsborough, North Carolina, for Appellant. Michael
F. Easley, Attorney General, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Murray Alan Coats appeals a decision of the district court denying
his petition for a writ of habeas corpus, see 28 U.S.C.A. § 2254 (West
1994 & Supp. 1997), which challenged his North Carolina convic-
tions. Coats argues that the district court applied an incorrect standard
of review in considering the decision of the state postconviction court.
Coats further contends that the district court erred in denying him
relief on the basis of violations of Brady v. Maryland, 373 U.S. 83
(1963), and ineffective assistance of counsel. Finding no error, we
affirm.
I.
Coats was convicted in 1989 by a North Carolina court on two
counts of first-degree sexual offense, see N.C. Gen. Stat. § 14-27.4
(1993), and one count of second-degree kidnapping, see N.C. Gen.
Stat. § 14-39 (1993). Coats' victim testified that she was working at
a convenience store when Coats forced her at gunpoint to leave the
store and accompany him to a barn where he forced her to remove her
clothes and perform oral sex on him for an hour or more. She also tes-
tified that Coats penetrated her vagina with his finger. Coats' convic-
tions were affirmed by the North Carolina Court of Appeals, and the
North Carolina Supreme Court denied discretionary review.
In 1993, having obtained new counsel, Coats filed a motion for
appropriate relief in the Wake County Superior Court asserting that
2
his trial counsel was constitutionally ineffective, that Coats had dis-
covered evidence having a direct and material bearing upon his inno-
cence, and that the prosecutor had engaged in misconduct by failing
to disclose the evidence. An evidentiary hearing was held in Decem-
ber 1994, after which the state-court judge denied Coats' motion,
finding in pertinent part that trial counsel was not constitutionally
ineffective, that the newly discovered evidence was not material, and
that the prosecutor had not engaged in misconduct. The North Caro-
lina Court of Appeals then denied certiorari. Coats subsequently filed
this petition for a writ of habeas corpus in January 1997, and the dis-
trict court granted summary judgment against him.
II.
Having had the benefit of oral argument and the parties' briefs, and
after careful consideration of the record and the applicable law, we
conclude that the district court correctly decided the issues before it.
Accordingly, we affirm on the reasoning of the district court. See
Coats v. Smith, No. 5:97-HC-33-H-3 (W.D.N.C. Aug. 12, 1997).
AFFIRMED
3
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392 F.2d 155
Ray S. BAILEY, Appellant,v.Ellis C. MacDOUGALL, Director of the South CarolinaDepartment of Corrections, et al., Appellees.
No. 11735.
United States Court of Appeals Fourth Circuit.
Argued Dec. 4, 1967.Decided Feb. 28, 1968.
Betty M. Sloan, Columbia, S.C., for appellant.
Edward B. Latimer, Asst. Atty. Gen. of South Carolina (Daniel R. McLeod, Atty. Gen. of South Carolina, and B. O. Thomason, Jr., Sol., Thirteenth Judicial Circuit, on brief), for appellees.
Before BOREMAN, BRYAN and BUTZNER, Circuit Judges.
BUTZNER, Circuit Judge:
1
Ray S. Bailey was sentenced to life imprisonment in 1936 upon a plea of guilty to murder. Now Bailey challenges the validity of his plea, which was entered after the chief of police and the state's solicitor promised in writing they would recommend parole or pardon after Bailey had served a term not exceeding ten years. We hold that Bailey's arraignment was defective and the record fails to establish he understood the consequences of his plea. We remand the case for proceedings consistent with this opinion.
2
Bailey applied for a writ of habeas corpus in 1964 in the Court of Common Pleas for Richland County, South Carolina. After a full evidentiary hearing, the court found that Bailey's guilty plea was not voluntary, and ordered a new trial. Upon appeal the Supreme Court of South Carolina reversed and entered final judgment discharging the writ.1 Bailey then applied to the United States District Court for a writ of habeas corpus, which was denied upon the basis of the state records without a plenary hearing.
3
A policeman, attempting to thwart a bank robbery, was killed in 1932 in Greenville, South Carolina. A few days later Bailey was charged with murder. Following an unsuccessful fight against extradition from North Carolina,2 Bailey fled to Georgia. He was captured and returned to Greenville for trial. His brother, C. M. Bailey, and other members of his family retained a capable and experienced lawyer to defend him. He steadfastly maintained that he was not in Greenville the night of the murder, and upon his arraignment he pleaded not guilty.
4
The mainstay of the prosecution's case was a witness named Corea, who identified Bailey as the murderer of the policeman. Corea was sentenced to prison for robbery and refused to testify unless he was pardoned. The South Carolina solicitor who was prosecuting the case knew that another eyewitness was unable to identify Bailey positively. He also knew a number of witnesses would support Bailey's alibi. The solicitor suggested to Bailey's lawyer that Bailey plead guilty 'with a recommendation to mercy.'3 This plea would result in a mandatory life sentence. Bailey's lawyer did not know Corea refused to testify.4 He thought the evidence would be sufficient to take the case to the jury and he knew that public sentiment was aroused over the killing. He said that he could advise his client to plead guilty to manslaughter, but the solicitor declined this offer. The lawyers finally agreed that if Bailey would enter a plea of guilty to murder with recommendation to mercy, the solicitor and the chief of police would recommend a pardon or parole after Bailey had served not more than ten years.
5
The defense attorney advised Bailey that if he did not participate in the shooting he should not plead guilty. The attorney explained that the plea arrangement meant a life sentence would be imposed, and it did not mean the Governor would have to grant parole or pardon. He added that ordinarily the Governor would give great weight to the recommendation of the solicitor and the chief of police.5 Bailey agreed to plead guilty. His attorney, out of an abundance of caution, required the solicitor and chief of police to put their promise in writing. They signed this statement:
6
'This will confirm our conversation that in the event that Ray Bailey enters a plea of guilty with recommendation to mercy in the case now pending against him in the General Sessions Court for Greenville County that I will, knowing the facts of the case and the circumstances surrounding same, after the said Ray Bailey has served for a period not exceeding ten years, recommend to the Board of Pardons or Governor a pardon or parole.'
7
Bailey withdrew his original plea and pleaded guilty with recommendation to mercy. He was sentenced to life imprisonment. No one mentioned the agreement. No inquiry was made to determine whether Bailey's plea was voluntary or whether he understood the charges against him and the consequences of his plea. In the state habeas hearing the solicitor testified that he believed the trial judge was not aware of the agreement.
8
Bailey's lawyer placed the statement in his safety deposit box. At the expiration of the ten year period, the solicitor, the chief of police, and Bailey's attorney unsuccessfully asked the Governor and the State Parole Board to pardon or parole Bailey.6
9
At the state habeas corpus hearing, Bailey testified that he was not in Greenville at the time the police officer was killed, and that at first he refused to plead guilty. He agreed to change his plea because he was certain any agreement the solicitor made would be carried out. He testified that there wasn't any doubt in his mind that he would be released in ten years.
10
Bailey was not alone in testifying he believed he would serve only ten years. The assistant solicitor, who investigated the case and was present at the arraignment, testified that '* * * when that plea was entered by that boy, at that time, I was convinced that, after service of these ten years, without doing something in the penitentiary to prevent it, he would have been released. I was convinced of it and I am sure that everybody in the courtroom that knew anything about it was.'
11
Bailey raises several questions about plea bargaining. He does not urge the practice in itself is unconstitutional.7 He does claim the promise rendered his plea involuntary and that his arraignment was constitutionally defective.
12
The state habeas judge found Bailey believed he would serve not more than ten years and that the agreement leading to his change of plea 'vitiated the voluntary nature of the guilty plea.' The Supreme Court of South Carolina concluded this judgment was erroneous.8 The State Supreme Court emphasized that the promise was only to recommend parole or pardon and that it had been kept, that the written statement was unambiguous, and that Bailey's attorney had explained to him that the Governor might not follow the recommendation. It concluded that the evidence did not disclose that the plea was induced by coercion, false promises, or misrepresentation, and that Bailey's plea was voluntary.
13
In Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), the Court held:
14
'A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack. See Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Shelton v. United States, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579, reversing 5 Cir., 246 F.2d 571.'
15
The voluntariness of Bailey's plea does not depend upon whether he was the victim of a false promise. The question remains: Did the promise, even if fulfilled,9 induce the plea and deprive it of the character of a voluntary act? Whether Bailey's plea was voluntary raises issues of fact, upon which the state courts differed. The state appellate court's rejection of the state habeas court's findings ordinarily would require us to remand the case to the federal district court for an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). However, we find a remand unnecessary because the case can be decided upon an alternative ground which, under the circumstances, does not require another evidentiary hearing.
16
Bailey contends he was denied due process of law because the court did not advise him of the consequences of his plea. In examining whether Bailey fully understood the consequences of his plea, we limit ourselves to the direct consequences-- the length of the sentence to be served.10 Whether Bailey understood the consequences of his plea depends upon whether he understood the plea agreement. He claims the agreement meant he would be imprisoned not more than ten years. The state says the agreement provided only that he would be recommended for parole or pardon at the end of ten years.
17
In Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), the Court said:
18
'A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury, it is conclusive. More is not required: the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.'
19
No particular form or ritual is required, but it must appear that the defendant understood the consequences of his plea.11 The evidence discloses, however, that no inquiry was made by anyone to determine Bailey's understanding of the consequences of his plea. The judge asked him no questions. Indeed, it appears from the record that the judge himself did not know the full consequences. Bailey's attorney did his best to explain it, but he testified at the habeas corpus hearing that he could not say that Bailey or his brother understood the proposition. Apparently the court and Bailey's attorney assumed that Bailey understood. Bailey challenges the validity of this assumption. He claims he thought the consequences would be not more than ten years' confinement in prison.
20
Ordinarily there is no great difficulty in ascertaining that the defendant understood the consequences of his plea even when the parties have engaged in plea bargaining. The bargain itself generally is laid before the court through the recommendation and motions of the prosecuting attorney.12 The difficulty arises in Bailey's case because the promise made by the prosecuting officers was extrajudicial. It was never revealed in open court, although Bailey's attorney and the solicitor both recognized that it was indispensable to securing Bailey's plea and that it had an important bearing upon Bailey's punishment. Regardless of whether we accept the state's or Bailley's version of the plea arrangement, the uncontradicted evidence shows that no effort was made at Bailey's arraignment to determine which version he understood. The dispute about the plea agreement, which must be adjudicated thirty years after arraignment, demonstrates the fundamental unfairness and the lack of due process in placing upon a prisoner the burden of showing by a preponderance of the evidence the terms of an admittedly secret, extrajudicial proviso that could substantially affect the length of his sentence. A prisoner's liberty should not depend upon the astuteness of his attorney in demanding and preserving written memoranda of a plea agreement or upon the vagaries of human recollection decades after arraignment.
21
The defect in Bailey's arraignment lies in the fact that no one-- court or counsel-- ascertained that Bailey understood the consequences of his plea. Nevertheless, if Bailey in fact understood, the error was harmless. Gundlach v. United States, 262 F.2d 72 (4th Cir. 1958), cert. denied 360 U.S. 904, 79 S.Ct. 1283, 3 L.Ed.2d 1255 (1959). The state, however, has the burden of proving harmless error. Cf. Munich v. United States, 337 F.2d 356, 360 (9th Cir. 1964).
22
The result does not depend upon the prisoner's subjective testimony alone. The issue is one of fact, which must be resolved by an examination of 'reasonable inferences to be drawn from all the surrounding facts and circumstances.'13 Ordinarily this issue could be decided only in a plenary hearing in the district court, but this rule is not inexorable. Cf. Fields v. Peyton, 375 F.2d 624 (4th Cir. 1967). Counsel for both Bailey and the respondent have assured us that all evidence that can be marshalled is contained in the record. We find the material facts for the determination of this issue to be uncontradicted.
23
Aside from Bailey, the only witnesses who knew about the agreement at the time it was made were the solicitor, the assistant solicitor, and Bailey's attorney. The solicitor never discussed the matter with Bailey and consequently could offer no testimony on this issue. The assistant solicitor testified that at the time of the arraignment he was convinced, barring misbehavior, Bailey would be released after ten years. Thus, he tends to corroborate Bailey. The only witness who actually discussed with Bailey the meaning of the agreement was Bailey's attorney. With regard to Bailey's claim, 'I accepted a life sentence with the distinct understanding that I would be free in ten years,' Bailey's attorney testified, 'He may have understood it that way * * * even though I tried to explain to him the circumstances of it, not being a lawyer and not being familiar with legalities and things of that kind. It's possible that Mr. Bailey felt that that would happen.' This evidence does not establish whether the state's version or Bailey's version of the plea agreement should be accepted. The evidence demonstrates, however, that the state has not carried its burden of provind harmless error by showing Bailey understood what the state claims to be the consequences of his plea.
24
Under familiar principles of due process, a guilty plea cannot be accepted unless the defendant understands its consequences. At the arraignment the court made no effort to ascertain what Bailey understood, either through its own efforts or through counsel, and the state has failed to show this error was harmless. The judgment of the district court is reversed and this case is remanded for the issuance of a writ of habeas corpus. Execution of the writ may be stayed for a reasonable time to permit the State of South Carolina to to retry Bailey if it be so advised.
25
Reversed and remanded.
1
Bailey v. MacDougall, 247 S.C. 1, 145 S.E.2d 425 (1965), cert. denied, 384 U.S. 962, 86 S.Ct. 1589, 16 L.Ed.2d 674 (1966)
2
Bailey was arrested in North Carolina on a warrant of extradition. On application for habeas corpus, a judge of the Superior Court of North Carolina held that South Carolina had failed to show probable cause for holding Bailey. The Supreme Court of North Carolina affirmed. Ex parte Bailey, 203 N.C. 362, 166 S.E. 165 (1932). The Supreme Court of the United States reversed, holding Bailey had the burden of showing beyond reasonable doubt that he was outside South Carolina. State of South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292 (1933)
3
In South Carolina, a defendant can plead guilty to murder only before a jury, which, pursuant to the plea, returns a verdict of 'guilty of murder with the recommendation to the mercy of the court.'
4
Bailey urges, 'Constitutional due process cannot be satisfied where the prosecution negotiates a guilty plea knowing it has no other means to obtain a conviction and fails to disclose this fact to either the defendant's counsel or the court.' Bailey did not seek relief on this ground in the state court, and we do not consider it
5
When Bailey was arraigned, the Governor of South Carolina had absolute discretion to grant paroles and pardons. Ten years later, the Governor no longer exercised parole powers, although he could pardon. The Parole Board alone granted paroles
6
After serving about 14 years Bailey escaped to North Carolina and surrendered. Later he escaped to Montana, where he was captured
7
Plea bargaining that induces an innocent person to plead guilty cannot be sanctioned. Negotiation must be limited to the quantum of punishment for an admittedly guilty defendant. Cf. Tabor v. United States, 203 F.2d 948 (4th Cir. 1953), cert. denied, 345 U.S. 1001, 73 S.Ct. 1148, 97 L.Ed. 1407 (1953); Anderson v. State of North Carolina, 221 F.Supp. 930 (W.D.N.C.1963)
A comprehensive review of authorities criticizing or supporting plea bargaining is contained in Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966). The practice, when restricted by prudent safeguards, is approved in Institute of Judicial Administraction, ABA, Standards Relating to Pleas of Guilty, Part III (tentative draft 1967); Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U.Pa.L.Rev. 865 (1964). The practice is criticized in Curlee, Criminal Law and Procedure, 1966-67 Survey of South Carolina Law, 19 S.C.L.Rev. 30, 34 (1967).
8
Bailey v. MacDougall, 247 S.C. 1, 145 S.E.2d 425 (1965), cert. denied, 384 U.S. 962, 86 S.Ct. 1589, 16 L.Ed.2d 674 (1966)
9
Cf. Shelton v. United States, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958), reversing on confession of error 246 F.2d 571 (5th Cir. 1957); Edgerton v. State of North Carolina, 315 F.2d 676 (4th Cir. 1963); United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244, 253 (S.D.N.Y.1966) (dictum)
10
'Courts have not considered it necessary to inform the defendant of possible collateral consequences when such consequences result from subsequent criminal convictions of the defendant or do not relate directly to the charge to which the defendant pleads guilty.' Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U.Pa.L.Rev. 865, 875 (1964)
11
Fed.R.Crim.P. 11, as amended in 1966, requires the court to determine this even though the defendant is represented by counsel. Many states also impose such a duty. Others hold the requirement is satisfied where counsel sufficiently informs the accused. Note, Criminal Procedure-- Duty of the Trial Judge to Advise a Defendant of the Consequences of a Guilty Plea, 19 S.C.L.Rev. 261 (1967), Annot. 97 A.L.R.2d 549 (1964)
We decline to follow McGrady v. Cunningham, 296 F.2d 600, 96 A.L.R.2d 1286 (4th Cir. 1961), cert. denied, 369 U.S. 855, 82 S.Ct. 944, 8 L.Ed.2d 14 (1962). Now, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), would require a plenary hearing upon the petitioner's allegations.
12
Institute of Judicial Administration, ABA, Standards Relating to Pleas of Guilty 1.5, p. 29 (tentative draft 1967) suggests the plea agreement should be disclosed to the court, and that the court should advise the defendant that recommendations of the prosecutor are not binding on the court
13
United States v. Tateo, 214 F.Supp. 560, 565 (S.D.N.Y.1963)
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-30458
Summary Calendar
BAUMER FOODS, INC.,
Plaintiff-Appellant,
VERSUS
NEW JERSEY MACHINE, INC.,
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
(99-CV-3611-G)
October 26, 2000
Before DAVIS, JONES, and DeMoss, Circuit Judges.
PER CURIAM:*
Baumer Foods, Inc. (“Baumer”) purchased a commercial labeling
machine from New Jersey Machine, Inc. (“NJM”) in 1998. The
documents used to effect this purchase were a purchase order from
Baumer to NJM which had attached to it a prior quotation from NJM
to a third party covering a similar machine. One of the printed
*
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.
pages of this prior quotation contained “Additional Terms and
Conditions” which set forth a forum selection clause and a clause
limiting damages. The machine was built, delivered, and put into
operation. Unfortunately the machine failed to operate as expected
by Baumer and required substantial and continuing repairs to keep
it operating. Finally in 1999 Baumer filed suit against NJM in the
federal district court in New Orleans asserting diversity
jurisdiction and seeking damages and redhibition under Louisiana
law. However, unbeknownst to Baumer, NJM had previously filed suit
against Baumer in the State of New Hampshire pursuant to the forum
selection clause in the quotation appended to the purchase order.
NJM moved to dismiss the federal court proceeding in Louisiana and
the district court granted such motion. Baumer timely appeals.
We have carefully reviewed the briefs, the record excerpts,
and relevant portions of the record itself. For the reasons stated
by the district court in its Memorandum and Order filed March 17,
2000, we affirm the judgment entered on March 23, 2000 dismissing
Baumer’s petition.
AFFIRMED.
2
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UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, CAMPANELLA, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JUVENTINO TOVARCHAVEZ
United States Army, Appellant
ARMY 20150250
Headquarters, 8th Theater Sustainment Command
Gregory A. Gross, Military Judge
Colonel Anthony T. Febbo, Staff Judge Advocate (pretrial and recommendation)
Lieutenant Colonel LaJohnne A.W. Morris, Acting Staff Judge Advocate (addendum)
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Ryan Yoder, JA;
Major Brian J. Sullivan, JA (on brief); Captain Ryan Yoder, JA; Major Brian J.
Sullivan, JA (reply brief); Lieutenant Colonel Melissa R. Covolesky, JA; Captain
Ryan Yoder, JA; Major Brian J. Sullivan, JA (on brief in response to specified
issues); Lieutenant Colonel Carrier, JA; Captain Cody Cheek, JA; Major Brian J.
Sullivan, JA (reply brief to specified issues).
For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Melissa Dasgupta
Smith, JA; Captain Christopher A. Clausen, JA (on brief); Major Michael E. Korte,
JA; Captain Christopher A. Clausen, JA (on brief in response to specified issues).
7 September 2017
----------------------------------
MEMORANDUM OPINION
----------------------------------
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
WOLFE, Judge:
Charged with sexually assaulting his fellow soldier Specialist (SPC) JR on
two separate occasions, an enlisted panel of a general court-martial convicted
TOVARCHAVEZ—ARMY 20150250
appellant only of the latter instance. 1 Appellant collaterally attacks his conviction
and claims his counsel were ineffective at trial. 2 Because the affidavits submitted by
the parties contain material differences in fact that we cannot resolve on appeal, we
remand the case for a hearing pursuant to United States v. DuBay, 17 U.S.C.M.A.
147, 37 C.M.R. 411 (1967). Appellant also raises two assignments of legal error
directly attacking the findings. Both merit discussion, but not relief.
The case is before us for review under Article 66, UCMJ. The convening
authority approved the adjudged sentence to a dishonorable discharge, confinement
for two years, total forfeiture of pay and allowances, and reduction to E-1.
LAW AND DISCUSSION
A. Ineffective Assistance of Counsel
Appellant alleges his defense counsel were deficient in cross-examining SPC
JR and that this deficiency resulted in the panel finding him guilty. Appellant
specifically asserts, as part of the assigned error, that the civilian defense counsel
(CDC) even admitted his ineffectiveness. The government disagrees.
1. May this court consider unsworn unauthenticated matter?
Appellant relies on a printed email signed by “Don” from
520508[####]@yzwplx.com that was included in appellant’s Rules for Courts-
Martial [hereinafter R.C.M.] 1105 matters. Appellant asserts the email is from
appellant’s civilian defense counsel to appellant’s military defense counsel. The
date on the email indicates it was sent shortly after trial.
1
Appellant was charged with two specifications of sexual assault in violation of
Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012 & Supp. I
2014) [hereinafter UCMJ].
2
Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
asserts the evidence is factually and legally insufficient to sustain a conviction. We
disagree. Appellant also asks us to consider the issues of post-trial delay and
ineffective assistance of counsel raised in his post-trial matters. We find the post-
trial delay in this case did not rise to the level of a due process violation and does
not warrant relief. Appellant’s ineffective assistance of counsel claims raised in his
post-trial matters overlap with his assignment of error and sworn declaration. While
we specifically address several of these claims, the Dubay court may consider all the
factual and legal bases for appellant’s claims of ineffective assistance of counsel
upon remand.
2
TOVARCHAVEZ—ARMY 20150250
The substance of the email reads in its entirety as follows:
[M], re Tovar appeal: I screwed up crossing CW. 3 I, alone
was ineffective. Let’s talk how best to present issues on
appeal, including pretrial issues. Even though I think I
came out on top on all pretrial issues, my methodology
can help lay the foundation for ineffective assistance
crossing CW and reversal. Let’s talk [M]onday. Don’t
want to drag you into it, but [I] lost respect for the
military 40 years ago, so I’m not concerned with reversal
for ineffective assistance. FYI, not sour grapes, I received
an honorable discharge at 21, 4 years service, E5. I served
very honorably, but what I witnessed was a disgrace. My
bad for not being timely prepared. I believed battle
stations were [T]uesday, not [M]onday.
Appellant also asks us to consider an unsworn memorandum for record (MFR)
by appellant’s post-trial defense counsel summarizing a conversation with the
civilian defense counsel. (Appellant appears to have been assigned new post-trial
counsel). The MFR recounts a conversation between military counsel and civilian
defense counsel that occurred two to three months prior to the date of the MFR. The
substantive paragraphs of the MFR are as follows:
2. During this conversation [the CDC] told me he was
ineffective in representing PVT Tovar-Chavez because he
failed to cross[-]examine the victim effectively. He went
on to say it was his first military trial and he did not
realize the victim would take the stand the first day. As a
result, he did not have any notes from her Article 32
testimony with him and was completely unprepared to
proceed. Additionally, he did not have the Article 32
testimony transcribed.
3. He did not ask the Military Judge for a delay.
3
In his brief, appellant notes that “CW” are not the initials of the victim or any
other witness in the case. Appellant suggests that this misnaming of the victim is
further evidence that the CDC was unprepared for trial. Given the context, we are
certain that CW is an abbreviation for “complaining witness.” Even in his affidavit
to this court submitted on appeal, the CDC continues to use “CW” to refer to the
victim.
3
TOVARCHAVEZ—ARMY 20150250
Both parties on appeal also ask us to consider the audio recording of the
Article 32, UCMJ, preliminary hearing. Presumably, this is a reference to a CD
included in the allied papers labeled “US v. Tovarchavez I.O. copy.” No one has
authenticated the audio recording or claimed that it is an accurate and complete
recording of the hearing.
In resolving the issue of ineffective assistance of counsel presently before this
court, we note that both parties ask us to rely on unauthenticated matter that is
attached to the record of trial. That is, each party asks us to assume the authenticity
of matter that, if it had been admitted at trial, would require at least some
foundation. Indeed, as the Article 32, UCMJ, hearing occurred before the military
judge was detailed to the case, and the R.C.M. 1105 matters were submitted after
authentication, the military judge likely could not (even if asked) authenticate that
such matters “accurately report[] the proceedings.” R.C.M. 1104(a)(1). The
military judge did not “preside” over a proceeding in which these matters were
considered. R.C.M. 1104(a)(2). The parties on appeal have not stipulated to the
authenticity of the documents. Further, neither party on appeal filed a motion for us
to consider the documents.
In United States v. Cade, 75 M.J. 923, 928 (Army Ct. Crim. App. 2016) we
defined what is the “record of trial on appeal.” We found the President had
answered this question when he defined the “contents” of the record of trial in
R.C.M. 1103(b)(2). Id. Allied documents and other matter “attached” to the record
of trial are not part of the record of trial. Id.; See R.C.M. 1103(b)(3). Neither the
military judge nor anyone else has certified or authenticated matters “attached” to
the record as being accurate. See R.C.M. 1104. In Cade, we required that matter
from outside the record of trial must be sworn by someone with personal knowledge.
75 M.J. at 930.
The problem with considering unsworn unauthenticated matter that was never
subjected to adversarial testing should be obvious. Both parties (and recently crime
victims) have broad authority to unilaterally attach matters to the record of trial (the
accused in his submission of R.C.M. 1105 matters and the government in assembling
the record and determining which allied papers to include). See R.C.M. 1103(b)(1).
The Military Rules of Evidence do not–in the main–apply to submission of matters
at Article 32, UCMJ, hearings or in post-trial. See Military Rule of Evidence 1101.
Absent a stipulation by the parties, matter submitted to the court for consideration
that is not part of the authenticated record of trial should be accompanied by a sworn
declaration that the matter is what a party says it is.
Confusion on this issue perhaps stems from the fact that this court does
consider post-trial matters in determining the appropriateness of the sentence. Our
superior court has clearly said so. See United States v. Boone, 49 M.J. 187, 192
(C.A.A.F. 1998). To forestall needless motion practice, our local rules allow for an
4
TOVARCHAVEZ—ARMY 20150250
appellant to request in the appellant’s brief that we consider the post-trial
submissions. However, our sentence appropriateness review is a separate endeavor
from our determination of whether there was legal or factual error in the trial. “It is
inappropriate to base an appellate opinion on assertions dehors the record.” United
States v. Matthews, 68 M.J. 29, 41 (C.A.A.F. 2009) (citing United States v. Crouch,
566 F.2d 1311, 1316 (5th Cir. 1978) (internal ellipses omitted)). For example, an
appellant could rightly cry foul if we were to affirm a finding as correct in law
because (at least in part) of a factual assertion made in a crime victim’s submission
under R.C.M. 1105A.
However, Boone itself distinguishes between Courts of Criminal Appeals’
review of sentences as being appropriate and determinations as to whether the
findings and sentence are correct in law and fact. 49 M.J. at 193. The Court of
Appeals for the Armed Forces (CAAF) stated that “[w]e have recognized that there
are legitimate and salutary reasons for the now-Court of Criminal Appeals to have
the discretion to obtain evidence by affidavit, testimony, stipulation, or a factfinding
hearing, as it deems appropriate.” Id. Except for a stipulation (which requires
agreement by both parties), at each instance listed by the CAAF the matter appears
to be coming to the court by way of oath or sworn declaration.
Thus, our superior court has not required post-trial hearings to resolve
conflicting accounts created by unsworn submissions. See United States v. Lofton,
69 M.J. 386, 391 (C.A.A.F. 2011) (convening authority not required to order post-
trial hearings based on unsworn unsubstantiated statements).
Likewise, while we do not doubt the integrity of counsel, 4 our superior court
has made it clear that we cannot consider court filings to be the equivalent of sworn
declarations. United States v. Lewis, 42 M.J. 1, 4 (C.A.A.F. 1995) (“The question
remains whether the Army court erred by treating defense counsel’s motion as the
“functional equivalent” of an affidavit. We hold that it was error . . . .”). That is,
even assuming that appellate counsel had personally verified in their briefs that the
allied papers they wish us to consider are what they say they are, we cannot treat a
brief as if it were an affidavit.
Normally, we need not remand for factfinding based on conflicts created by
an unsworn unauthenticated document. See United States v. Gunderman, 67 M.J.
4
Here, this is not merely a technicality as the CDC appears to dispute the accuracy
of some of the words attributed to him in the R.C.M. 1105 matters – at least in part.
The government submitted a sworn affidavit from the CDC. The CDC stated that the
matter quoted in appellant’s brief was not a verbatim recitation of what he had said.
That is, to some greater or lesser extent he appears to dispute the accuracy of the
words attributed to him in the email or the MFR.
5
TOVARCHAVEZ—ARMY 20150250
683 (Army Ct. Crim. App. 2009). However, for unrelated reasons discussed below,
we remand this case for factfinding. Accordingly, while we have significant
concerns that the parties view the record on appeal differently than we do, for
reasons of judicial economy it is best to dispose of these concerns by wrapping them
into a DuBay hearing where these issues can be addressed by the trial court.
2. Was counsel ineffective for failing to cross-examine SPC JR on prior statements?
Setting aside the issues raised by appellant in reliance on the unsworn
matters, appellant also submitted a sworn personal affidavit. In the affidavit,
appellant asserts he had three post-assault conversations with SPC JR in which she
made exculpating statements.
First, appellant asserts that the day after the offense of which he stands
convicted he had a Facebook conversation with SPC JR. He asserts that in the
conversation SPC JR affirmatively stated she was not upset by appellant’s conduct.
Rather, she stated she was upset because she had cheated on her boyfriend.
Appellant states he told his defense counsel about this conversation but his counsel
“never sought a copy of this online conversation from me, from SPC JR, or from
Facebook directly.”
Appellant’s counsel responds that the conversation in question would have
“corroborated [SPC JR’s] allegations of rape and would not have been prudent to
introduce into the trial.” Although unstated directly, we infer from this statement
that the CDC had discussed the Facebook exchange with appellant. However, and
citing to his trial notes, the CDC averred that his pretrial discovery found that the
Facebook conversation had been deleted. He also disagrees with the substance of
the conversation and states that the panel would have inferred rape from SPC JR’s
statement that she was upset.
The affidavits both agree that appellant and his counsel discussed the
Facebook conversation. The CDC also agrees with appellant’s assertions that he had
not expected to cross-examine SPC JR on the first day of trial. The affidavits part
ways on 1) whether the CDC attempted to get a copy of the Facebook conversation;
2) whether the conversation was deleted; and 3) what was said in the Facebook
conversation.
We are not allowed to make credibility determinations on the basis of
conflicting affidavits when resolving collateral claims of ineffective assistance of
counsel. United States v. Ginn, 47 M.J. 236, 243 (C.A.A.F. 1997).
In Ginn, the CAAF outlined five principles to guide this court when to order a
factfinding hearing. Id. at 248. Most on point is the first, which stated that “if the
facts alleged in the affidavit allege an error that would not result in relief even if
6
TOVARCHAVEZ—ARMY 20150250
any factual dispute were resolved in appellant’s favor, the claim may be rejected on
that basis.” Id.
Here, we cannot determine one way or the other whether, assuming
appellant’s factual assertions are true, appellant received effective assistance of
counsel. Accordingly, a factfinding hearing is necessary. To prevent extended
appellate process, to ensure appellant’s claims of error are given adequate
consideration, and for reasons of judicial economy, we direct a DuBay hearing to
make appropriate factual and legal determinations on appellant’s claim of ineffective
assistance of counsel generally. That is, while this one dispute regarding a
Facebook conversation is what necessitates a factfinding hearing, the DuBay court
may consider all the factual and legal bases for appellant’s claims of ineffective
assistance of counsel.
B. Mistake of Fact
Appellant asked the panel for an instruction on the defense of mistake of fact.
The military judge denied the request. Accordingly, any error is preserved for
appeal.
A military judge has an affirmative duty to instruct on special defenses
reasonably raised by the evidence. R.C.M. 920(e)(3). “The test for determining
whether an affirmative defense of mistake of fact has been raised is whether the
record contains some evidence of an honest and reasonable mistake to which the
members could have attached credit if they had so desired.” United States v.
Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). Put differently, an instruction on a
defense is not required if no reasonable panel member could find the defense
applicable. United States v. Schumacher, 70 M.J. 387, 389-90 (C.A.A.F. 2011)
(stating that the test is similar to the test for legal sufficiency).
After making verbal and non-verbal rejections of appellant’s advances SPC JR
testified to an aggressive struggle on her bed. As appellant tried to pull SPC JR’s
sweat pants off, SPC JR pulled them back up. This continued for some time, until
appellant overpowered SPC JR. He then assaulted her by putting his penis in her
vagina. When done, appellant refused to get off SPC JR until she kissed him.
Appellant did not testify. Accordingly, the only evidence regarding the
assault came from SPC JR. There were no “mixed messages” from which a mistake
of fact could occur. See United States v. DiPaola, 67 M.J. 98, 102 (C.A.A.F. 2008).
There is no evidence to which the members could have attached credit that there was
a reasonable mistake of fact as to consent. The assault described by SPC JR was, in
every which way, objectively non-consensual.
7
TOVARCHAVEZ—ARMY 20150250
Additionally, we find no evidence appellant honestly possessed an innocent
state of mind. We recently addressed this issue in United States v. Kelly, where we
said:
An accused is not required to testify to establish a mistake
of fact defense. United States v. Jones, 49 M.J. 85, 91
(C.A.A.F. 1999). However, to warrant an instruction on
the mistake of fact defense there must be “some evidence
of an honest and reasonable mistake to which the members
could have attached credit if they had so desired.” United
States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003).
In other words, there is no per se requirement an accused
testify to establish a mistake of fact defense, but evidence
the accused honestly and reasonably believed the victim
had consented must come from somewhere. In many
cases, the only source of admissible evidence about the
accused’s subjective belief the victim consented may well
be from the accused himself.
M.J. , 2017 CCA LEXIS 453, at *30-31 (Army Ct. Crim. App. 5 Jul. 2017).
To be clear, we agree with appellant that there need not be direct evidence of
an honest belief. Just as the government often proves an accused’s intent to commit
an offense by inference, the defense can establish some evidence of an honest
mistake of fact to consent by inference. See Dep’t of Army, Pam 27-9, Legal
Services: Military Judges’ Benchbook, para. 7-3, n. 2 (10 Sept. 2014). Here,
appellant points us to numerous pre-assault interactions between SPC JR and
appellant, to include the conduct that was charged, but of which appellant was
acquitted. Looking at the evidence in a light most favorable to appellant, one could
infer that on the day of the assault appellant went to SPC JR’s barracks room
honestly believing they might engage in consensual intercourse. However, once in
the room and being rebuffed both verbally and non-verbally, the reasonableness of
the inference disappears. That is, as the evidence was that SPC JR manifestly
rejected appellant’s advances, at the time of the offense there was no evidence that
appellant honestly believed she was consenting or that such a belief would be
reasonable.
C. United States v. Hills
The military judge gave the panel in this case an instruction that was for all
substantive purposes identical to the instruction that the CAAF found to be error in
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). However, although discussed
8
TOVARCHAVEZ—ARMY 20150250
more than once, trial defense counsel offered no objection to the instruction and
ultimately stated he had “no objection” to the instruction.
We specified the issue of whether appellant forfeited or waived any objection
to the instructions when he stated he had no objection to the instruction he now
challenges on appeal. In United States v. Hoffman, we determined a statement of
“no objection” to instructions that are challenged on appeal constitutes an
affirmative waiver of the issue. M.J. , 2017 CCA LEXIS 425, at *15 (Army Ct.
Crim. App. 27 Jun. 2017). We cited the Fourth Circuit in United States v. Smith, for
the proposition that a statement of “no objection” is an “intentional relinquishment
or abandonment of a known right.” No. 97-4904, 1998 U.S. App. LEXIS 22673, at
*3-4 (4th Cir. Sep. 16, 1998). Citing almost every circuit court of appeals we stated
that “[a]bsent evidence to the contrary, we presume that counsel are competent under
Strickland v. Washington, 466 U.S. 668, 690 (1984), thus defense counsel stating
that he or she has “no objection” is a purposeful decision.” Hoffman, M.J. ,
2017 CCA LEXIS 425, at *15.
This case is perhaps distinguishable from Hoffman. Hoffman involved several
additional opportunities for the accused to object to the errant instruction, to include
written motions practice. Id. at *18-20. Our decision in Hoffman was conditioned
on that being a case “where appellant ‘was fully aware of the [issue], and he had
numerous opportunities to contest its admission and use.’” Id. (citing United States
v. Swift, 76 M.J. 210, 217 (C.A.A.F. 2017)).
However, we need not decide whether the issue was waived because even if
the issue was not waived we still would not find plain error. Appellant has not met
his burden of establishing material prejudice to a substantial right. United States v.
Paige, 67 M.J. 442, 449 (C.A.A.F. 2009) (To establish plain error, appellant must
show: (1) an error was committed; (2) the error was plain, or clear, or obvious; and
(3) the error resulted in material prejudice to substantial rights).
Appellant argues that because any error violated appellant’s presumption of
innocence and right to be convicted only by proof beyond a reasonable doubt, the
error materially prejudiced appellant’s substantial rights. The first two subparts of
appellant’s brief on prejudice address the gravity of the error.
In our view, this misunderstands our prejudice analysis. A prejudice analysis
is separate from the finding of error. As the Supreme Court stated in Puckett v.
United States:
Any trial error can be said to impair substantial rights if
the harm is defined as “being convicted at a trial tainted
with [fill-in-the-blank] error.” Nor does the fact that there
is a “protected liberty interest” at stake render this case
9
TOVARCHAVEZ—ARMY 20150250
different. That interest is always at stake in criminal
cases. Eliminating the third plain-error prong through
semantics makes a nullity of Olano’s instruction that a
defendant normally “must make a specific showing of
prejudice” in order to obtain relief.
556 U.S. 129, 142 (2009) (internal citations omitted, bracketed language in
original). In other words, absent structural error, proof of error does not ipso facto
prove prejudice. If it did, our plain error test would be effectively reduced to only
two prongs. If a Hills error were structural, we presume our superior court would
have so stated, given the strong presumption against structural errors, and further
would not have bothered to test for prejudice in that case, which it did. 75 M.J. at
358.
Appellant also argues that this case was not strong. The evidence consisted of
the credible testimony of SPC JR as well as post-assault apologies that the
government successfully presented as evidence of consciousness of guilt. Appellant
correctly notes the lack of corroborating physical or forensic evidence.
Our understanding of the proper framework for determining prejudice for
Hills violations continues to develop as we consider each new case. A candid
review of our cases considering the matter shows a progression in our analyses as we
consider the facts of each new case and absorb binding and persuasive authority
from our superior and sister courts. See Hoffman, M.J. , 2017 CCA LEXIS
425, at *12-13 (surveying recent decisions of Hills violations). For this panel, we
have viewed the danger from an improper propensity instruction to be greatest when
issues of propensity are clearly at play.
In United States v. Guardado, we found a low likelihood of prejudice because
the evidence that the accused had committed the other misconduct was not credible.
75 M.J. 889 (Army Ct. Crim. App. 2016), pet. granted, 76 M.J. 166 (C.A.A.F. 2017).
“The likelihood of prejudice from propensity evidence is greatest when the evidence
is solid and credible. In other words, weak evidence offered to show propensity
poses less danger of contributing to the verdict.” Id. at 898.
Similarly in United States v. Moore, this panel was presented with a case in
which there was substantial evidence as to one offense, but less convincing evidence
as to the other offenses. ARMY 20140875, 2017 CCA LEXIS 191 (Army Ct. Crim.
App. 23 Mar. 2017), pet. granted, 76 M.J. , 2017 CAAF LEXIS 630 (C.A.A.F. 22
June 2017) (order). We assessed that such a situation created a danger that strong
evidence of one offense may bleed over to prove the offenses for which the evidence
was not so strong. Id. at *10-14. Accordingly, we set aside all but the one offense.
Id.
10
TOVARCHAVEZ—ARMY 20150250
In United States v. Denson, we set aside all the subject offenses because of
concerns about propensity. ARMY 20150137, 2017 CCA LEXIS 564 (Army Ct. Cr.
App. 18 Aug. 2017). In that case, the government presented evidence that several
charged victims were assaulted in a manner that was arguably similar. An improper
propensity inference was a rational response to these facts. Id. at *3-5. In such a
case, an instruction that tells a panel they may infer that which there may have been
a natural instinct to do anyway compounds the danger of an improper instruction.
Most importantly, however, our analysis of prejudice for Hills violations is
framed by the appellate posture of the issue on appeal. 5 In cases of preserved error,
the burden falls on the government and the burden is proof of harmlessness beyond a
reasonable doubt. Hills, 75 M.J. at 357. In cases of unpreserved error, the burden is
on appellant to show material prejudice to a substantial right. Hoffman, M.J. ,
2017 CCA LEXIS 425, at *30-31.
Here, we cannot find a specific showing of prejudice in a case where
propensity was not argued or discussed. Indeed, the absence of an objection by the
defense and argument by the trial counsel is indicative of the low impact of
propensity at the trial.
For the reasons stated in Hoffman we find appellant has met the first two
prongs of a plain error analysis and has demonstrated that the Hills instruction in
this case was obvious error. Id. at *26-30. We, however, do not find appellant has
met his burden of establishing prejudice, and therefore do not find plain error.
CONCLUSION
In light of this court’s inability to resolve the conflicting affidavits presented
on appeal, the record of trial is returned to The Judge Advocate General for such
action as is required to conduct a DuBay hearing on whether trial defense counsel
were ineffective in their representation of appellant at trial.
As noted in our discussion, although the need for a DuBay hearing primarily
results from the conflicting affidavits of appellant and his civilian defense counsel
regarding the Facebook conversation between SPC JR and appellant, the DuBay
military judge shall consider all of appellant’s claims of ineffective assistance of
counsel. However, the military judge is required to consider only those claims of
ineffective assistance of counsel that have already specifically been identified by
appellant’s briefs, Grostefon materials, and sworn affidavit. The Clerk of Court is
5
In Guardado and Moore we treated the Hills issue as preserved based upon the
government’s concession or the parties framing of the issue. Guardado, 75 M.J. at
905; Moore, 2017 CCA LEXIS 191, at *6.
11
TOVARCHAVEZ—ARMY 20150250
directed to provide a copy of these materials to the DuBay judge. The military judge
at the hearing will make findings of fact and conclusions of law as appropriate.
Upon conclusion of the DuBay hearing, the record will be returned to this
court for further review.
Senior Judge MULLIGAN and Senior Judge CAMPANELLA concur.
FOR THE COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk
Clerk of
of Court
Court
12
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286 F.2d 573
NATIONAL MARINE SERVICE, INCORPORATED, (formerly LakeTankers Corporation), Appellant,v.BARRIOS BROS., INC., Appellee.
No. 18503.
United States Court of Appeals Fifth Circuit.
Feb. 9, 1961.
Alfred M. Farrell, Jr., New Orleans, La., Terriberry, Rault, Carroll, Martinez & Yancey, New Orleans, La., of counsel, for appellant.
Cornelius G. Van Dalen, New Orleans, La., Deutsch, Kerrigan & Stiles, New Orleans, La., of counsel, for appellee.
Before TUTTLE, Chief Judge, JONES, Circuit Judge, and MIZE, District judge.
PER CURIAM.
1
The lugger, Young Thelma, owned and operated by the appellee, sank in the Southwest Pass of the Mississippi River as a result of a collision with a tug and barge of the appellant. The district court determined that the collision was caused by the fault of the tug and barge and allowed full recovery to the appellee for the loss of the lugger. Barrios Bros., Inc. v. Lake Tankers Corporation, D.C., 188 F.Supp. 300. The district court made justifiable findings on conflicting evidence. No question except as to the sufficiency of the evidence is submitted. The judgment of the district court is
2
Affirmed.
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359 F.Supp. 41 (1973)
Jean SOLOMON and Ruby Rayford, Individually and on behalf of all others similarly situated, Plaintiffs,
v.
The MIAMI WOMAN'S CLUB and the Florida Federation of Women's Clubs, Defendants.
Civ. No. 72-701.
United States District Court, S. D. Florida, Miami Division.
March 30, 1973.
*42 Jon D. Caminez, Tallahassee, Fla., for plaintiffs.
L. S. Bonsteel of Smathers & Thompson, Miami, Fla., for The Miami Woman's Club.
Doris A. Dudney of Fowler, White, Gillen, Humkey, Kinney & Boggs, P. A., Tampa, Fla., for The Fla. Federation of Women's Clubs.
ROETTGER, District Judge.
This civil rights case presents the all-too familiar pattern of difficult cases made more difficult when both parties act as if the Holy Grail is a permanent possession in their own trophy case. Briefly stated, plaintiffs are black and contend their civil rights have been violated because the Miami Woman's Club would not admit them to membership and the Club insists it is a private organization.
FINDINGS OF FACT
The facts generally have been stipulated to among the parties.
Plaintiffs, Jean Solomon and Ruby Rayford, are black residents of this judicial district. The Miami Woman's Club is a non-profit corporation consisting of women members residing in and around Miami. Both the Miami Woman's Club and the Florida Federation of *43 Women's Clubs, a state-wide organization to which the Miami Club belongs, are named as defendants in this suit.
On April 22, 1972, plaintiff Rayford sent a letter to defendant Miami Woman's Club at the Club's address at 737 North Bayshore Drive requesting a membership application.
Subsequently, by telephone, Mrs. Rayford requested an application blank from an employee of the Club, Mrs. Audrie Wheat, who told Mrs. Rayford she had no authority to give out application forms. When asked how an application form could be obtained, Mrs. Wheat told Mrs. Rayford that application blanks must be received from Club members. Not knowing the names of any members, Mrs. Rayford then asked for a membership list but was refused. After this conversation, Mrs. Rayford visited the Club on two different occasions but was unsuccessful in obtaining an application blank.
Plaintiff Solomon also telephoned the Club and spoke to Mrs. Wheat. Her request for an application blank was likewise refused. Mrs. Solomon visited the Club on two occasions but was not able to speak to anyone.
The Miami Woman's Club was organized in 1900[1] and became federated with the Florida Federation of Women's Clubs in 1903. The property on which the clubhouse sits is owned by the Club and the Club's business is managed by its officers and directors who are elected by the general membership. The Club neither seeks nor receives funds from the public and does not advertise for members. It does not have a license to purvey food or alcoholic beverages.
An applicant for membership in the Miami Woman's Club must be proposed by an active member and endorsed by two others. All three must have been members of the Club for at least two years and have known the applicant for that time. No member of the Club may propose or endorse more than two candidates a year.
The defendant Florida Federation was organized in 1898 and consists solely of women's clubs throughout the State of Florida. It does not receive applications from individuals. Approximately 32,000 members are in the Federation. It leases the land on which its headquarters are located from the City of Lakeland.
The Miami Woman's Club has engaged in various activities since its inception in 1900. For many years, the Club's primary function was to maintain a public library in Dade County but that function ceased when the city of Miami eventually developed its own library system.
The Miami Woman's Club has approximately four hundred members, an initial fee of $25.00 and annual dues of $15.00. No member of the Club receives compensation except reimbursement for some of the expenses incurred by its president in attending meetings of the General and Florida Federations.
At trial, Mrs. Burton, the president of the Miami Woman's Club, testified that the Club would not and could not accept a black person for membership since the articles of incorporation of the Federation limited membership to white women.
CONCLUSIONS OF LAW
Standing:
The first question presented is whether plaintiffs have standing to challenge the admission policies of the Miami Woman's Club.
Defendant Club contends that since Mrs. Rayford testified that she had not presented a written application to the Club for membership, she therefore *44 lacked the standing necessary to litigate the membership policies of the Club. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972).
Completion of an application blank for membership is not indispensable to plaintiffs' standing under the facts of this case. The evidence showed that plaintiffs attempted several times to obtain forms but that each time they were unsuccessful. The fact that the person refusing plaintiffs was Mrs. Wheat, an employee, rather than a member of the Club, is immaterial in light of Mrs. Wheat's statement to Mrs. Rayford that application blanks could be obtained only from Club members and that a list of Club members was unavailable. After this statement, further effort on Mrs. Rayford's part would only have been pointless.
Obviously the court will not require plaintiffs to exhaust procedures which would be futile. If the court ruled otherwise, no plaintiff alleging a deprivation of civil liberties could ever obtain standing except with the full cooperation of the defendant.
In this vein, the policy behind the relief afforded under Title 42 U.S.C. § 1983 and Title 28 U.S.C. § 1343(3) is that requirements for standing are to be broadly construed. See, e. g., Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1961). Under these circumstances, plaintiffs have comfortably cleared a standard of reasonableness for the standing requisite for judicial review.
Merits:
To state a claim under Title 42 U.S.C. § 1983 the elements which must be proven are deprivation of a constitutional right by defendants and the fact that defendants acted under color of law. Smith v. Y. M. C. A. of Montgomery, Inc., 462 F.2d 634, 647 (5th Cir. 1972).
(a) Deprivation of Rights:
Membership in a private organization may not be secured by suit under the Civil Rights Acts. Sims v. Order of Commercial Travelers of America, 343 F.Supp. 112 (D.C.Mass.1972). Specifically, Title 42 U.S.C. § 2000a provides that the prohibitions against discrimination or segregation in places of public accommodation shall not apply to a private club.
The burden of proof is on the Miami Woman's Club to prove its exempt status under section 2000a. Nesmith v. Y. M. C. A. of Raleigh, N. C., 397 F.2d 96, 101 (4th Cir. 1968).
Courts look at several factors to determine whether a club, in fact, is private or merely a subterfuge to evade the civil rights laws. Among these factors are whether the membership is limited or open-ended, whether the facilities are open to the public, existence of easily articulated admission standards, and whether its funds are derived from public or private sources. Stout v. Young Men's Christian Ass'n of Bessemer, Ala., 404 F.2d 687 (5th Cir. 1968); Nesmith v. Y. M. C. A. of Raleigh, N. C., supra, 397 F.2d at 102.
The Miami Woman's Club meets all of the foregoing standards required for the private club exemption. In addition, the evidence indicates it meets all of the tests of a private club set forth in Wright v. Cork Club, 315 F.Supp. 1143, 1153 (S.D.Tex.1970). The Club does not accept a new member unless she had been endorsed by an active member and endorsed by two others. This method may be a basis for excluding applicants but it does serve to provide the Club with a way to select or reject applications. Selectivity has often been said to be the essence of a private club and selection by recommendation serves to draw a line of demarcation between admitting the general public and only the select few.
The Miami Woman's Club is a non-profit organization operated solely for the benefit and use of its members. Bell v. Kenwood Golf and Country Club, Inc., 312 F.Supp. 753 (D.C.Md.1970). The fact that the general purpose of the Club is to work for the public good obviously *45 does not deprive the Club of its private status. Necessarily, through its involvement with civic affairs, some publicity has been afforded the Club. But the publicity given to the Club was only incidental to the Club's function of involvement with the community and none of the indirect advertising was designed to increase the patronage of the Club's facilities. Wright v. Cork Club, supra.
Further, while the Miami Woman's Club has never admitted a black woman and while membership in the Florida Federation of Women's Clubs is limited by its Articles of Incorporation, Art. IV, to clubs consisting of white women, it nevertheless does not appear that the Miami Woman's Club was formed for the primary purpose of excluding blacks on account of their race. United States v. Johnson Lake, Inc., 312 F.Supp. 1376 (D.C.Ala.1970).
All factors taken together, the court concludes that the privacy of the Club is not a mere sham to evade the Civil Rights Acts. The Miami Woman's Club is indeed private.
(b) Color of Law:
Plaintiffs readily concede that if the Club is private, the State must have significantly involved itself with the invidious discrimination to afford constitutional protection to plaintiffs. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967).
Plaintiffs argue that the Miami Woman's Club and the Florida Federation are quasi-public in nature and are aided by the municipalities of the State as well as the State itself. This argument is based on several factors: the Federation's lease with the city of Lakeland; the sheer size of the defendant Federation throughout the State of Florida; and the purpose of the defendant Club.
The court observes that plaintiffs are entitled to relief, if at all, against the Club only because of its association with the Federation by reason of the Federation's 1954 lease with Lakeland. If the Miami Woman's Club was not a member of the Federation, it would plainly be an "individual invasion of individual rights" and not within the scope of the Fourteenth Amendment. The lease, plaintiffs urge, indicates the encouragement the State has given to these segregated facilities which encouragement has the effect of officially sanctioning segregation.
The court cannot conclude that the lease represents anything other than an arms-length transaction. The city of Lakeland leases property to the Federation for its state headquarters for $1.00 a year for 99 years. At first blush, and as plaintiffs contend, this would appear to be a gratuitous transfer. However, in return for the nominal rental, several obligations are placed upon the Federation. The Federation is required to pay state or county taxes or assessments on the property, an obligation normally reserved to the lessor. The Federation also was required to erect a building on the property within two years of the commencement of the lease which will revert to the city upon termination or cancellation of the lease. The lease contains no restrictions as to racial purposes. See Lease, plaintiffs' exhibit 5.
Plaintiffs rely on the case of Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), for the contention that the city of Lakeland and the Florida Federation were joint participants in the establishment of the Federation's policy of admitting clubs consisting of white members only.
Burton is easily distinguishable from the instant case. In that case, the city of Wilmington owned the land and building and operated a parking garage on the site. As an incident to the garage, the city leased space for a restaurant which prohibited service to blacks. The court found that a particular and peculiar relationship existed and that simultaneous benefits flowed between the restaurant and the parking facility. Each aided the other's business. The court noted that the restaurant held itself out as a place of public accommodation. *46 Further, the restaurant served many who used the City's parking garage and thus extended the service of the State in providing food for garage patrons.
While the Federation leases its land from the city of Lakeland, all simile to Burton ends with this fact. Neither the Florida Federation nor the Miami Woman's Club are places of public accommodation. Indeed, both proudly and adamantly assert that they are private. Neither defendant could be said to have opened its doors to the public as did the restaurant in Burton. There is no evidence that the lease was a part of any municipal plan or that any control is exercised by the City over the property. The building is maintained by the Federation, not the city; and the Federation is liable for ad valorem taxes or assessments against the property. There is no evidence before the court that Lakeland, in fact, encouraged the maintenance of a segregated club by leasing the land to the Federation. See, e. g., Wright v. City of Brighton, Ala., 441 F. 2d 447, 451 (5th Cir. 1971), cert. denied, 404 U.S. 915, 92 S.Ct. 228, 30 L.Ed.2d 190 (1971) (enjoining sale by city of formerly public school for maintenance of private school for whites only was in bad faith and obviously done to defeat desegregation mandate) and Hampton v. City of Jacksonville, 304 F.2d 320 (5th Cir. 1962), cert. denied, 371 U.S. 911, 83 S.Ct. 256, 9 L.Ed.2d 170 (1962) (enjoining operation on a segregated basis of golf courses by persons who purchased the courses from the city after the court had enjoined the city from operating them on a racially segregated basis).
In a recent case in this circuit dealing with the involvement necessary to constitute state action which would otherwise be private discrimination, Smith v. Young Men's Christian Ass'n of Montgomery, 462 F.2d 634 (5th Cir. 1972), a class action was brought against the Y. M.C.A. for refusing applications of minor black plaintiffs to its day camp. Evidence showed that the day camp previously had been operated as an all-white camp. Twenty percent of the Y. M.C.A.'s annual income came from the Montgomery United Appeal Fund. In addition, the Y.M.C.A. operated extensive programs for the general public. The Y.M.C.A. pools were the only public pools in Montgomery. Membership in the "Y" was open to the public at large.
The court in Smith found that the Y. M.C.A. had a cooperative agreement with the city to coordinate the facilities of the Y.M.C.A. and those of the city to avoid duplication of effort. The agreement, in writing, provided for a working committee which was found by the court to have had a substantial impact on the Y.M.C.A. In addition to this agreement, several resolutions reflected the city's wish to have the Y.M.C.A. provide mass recreation for Montgomery.
The court in Smith held that the Y. M.C.A., in discriminating against blacks, had acted as a quasi-public agency and "under color of law" in refusing to allow membership to blacks. In dealing with the Y.M.C.A.'s claim that it enjoyed private club status, the court found that the club was too unselective in its membership policies; private clubs do not derive twenty percent of their revenue from public agencies or provide recreation for an entire city. The Y.M.C.A., therefore, was not a private club under Title 42 U.S.C. § 2000a(e).
More recently, this circuit has held that truly private organizations, who have discriminatory practices, may use public recreational facilities on a periodic basis if there is no significant effect on rights of excluded individuals. Gilmore v. City of Montgomery, 473 F.2d 832 (5th Cir., decided Feb. 9, 1973).
The Burton, Smith, and Gilmore cases clarify what type and amount of participation by the state is needed to make discrimination under color of law. Neither benefit to nor participation by the city of Lakeland in the membership policies of the Federation have been shown by plaintiffs. The mere fact that the Federation has a lease from the city of Lakeland, without more, does not make the State a partner in discrimination.
*47 The second factor upon which plaintiffs rely to make the alleged discrimination state action is that the sheer size of the Florida Federation throughout the State of Florida makes any action taken by it state action. The fact that the word "Florida" appears in defendant's name does not make state action present, as asserted by plaintiffs; if this were true, as the Federation points out, any organization containing the name "Florida" would take on color of law, even the "Boston Terrier Club of Florida" and similar organizations.
In Adams v. Miami Police Benevolent Ass'n, Inc., 454 F.2d 1315 (5th Cir. 1972), cert. denied, 409 U.S. 843, 93 S. Ct. 52, 34 L.Ed.2d 82, the defendant operated a canteen at police headquarters, solicited funds from the public using the name "police" and collected $90,000 the previous year, and was represented at staff meetings held at the police department. It also was present at meetings of the city commission as a bargaining agent and used the facilities of the police department to solicit members. In that case, the inclusion of the word "Miami" in the defendant's title, in addition to the word "police", was given some weight in determining state involvement. This total involvement is not present under the facts of this case, however.
For a third basis plaintiffs assert that activities of the Club, such as sponsoring facilities in state parks for handicapped persons and co-chairing the bicentennial celebration of the city of Miami, add up to state involvement. Neither law nor common sense could conclude that any and every action taken by defendant Federation and member clubs like the Miami Woman's Club seeking to promote community and civic affairs constitutes state involvement.
In reaching its decision, the court has paid special attention to two recent decisions of the United States Supreme Court, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) and Tillman v. Wheaton-Haven Recreation Association, Inc., 410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973.)
In Moose Lodge, the plaintiff was invited by a member of a local moose lodge to the lodge's dining room and bar and was refused service solely because he was black. Plaintiff contended that since the lodge held a liquor license from the State of Pennsylvania that discrimination constituted state action and was therefore violative of the Equal Protection Clause. Plaintiff contested both the membership practices of the lodge as well as its discriminatory policy toward guests.
First, the Court held that plaintiff lacked the standing necessary to challenge the membership practices of the lodge for the reason that, unlike the present case, plaintiff had never sought membership in the lodge.
Second, as to discrimination by the Moose Lodge, the Supreme Court clearly stated that not all private club discrimination violates the Equal Protection Clause. Rather, it is only where "the State [has] `significantly involved itself with invidious discriminations,' Reitman v. Mulkey, 387 U.S. 369, 380, 87 S. Ct. 1627, 1634, 18 L.Ed.2d 830 (1967), in order for the discriminatory action to fall within the ambit of the constitutional prohibition." Moose Lodge, supra, 92 S.Ct. at 1971. Significantly, the liquor license was held to be not sufficient involvement by the state to find for the plaintiffs.
No liquor license is involved in the present case. However, plaintiffs have pointed to the previously mentioned facts of the Federation's size and lease to evidence state involvement. The court finds that these factors proposed by plaintiffs fall short of involvement under the guidelines of Moose Lodge to afford relief to plaintiffs.
In the second and most recent Supreme Court case on the subject, Tillman v. Wheaton-Haven Recreation Association, Inc., supra, the defendant association operated a community swimming pool with membership limited to whites *48 and their white guests. Those residing within a certain radius of the association received a preference in membership and needed no recommendation to apply; those living outside the area needed an endorsement from a member as a prerequisite to membership. A member selling his house could convey a first option for membership to his vendee. Plaintiff purchased a home in the preference area from a nonmember of the association and was denied membership in the club for racial reasons.
Principally, the Supreme Court held that Title 42 U.S.C. § 1982[2] applied to the facts to bar the "property-linked preferences" given to residents in the area near the swimming pool. The Supreme Court found that "when an organization links membership benefits to residency in a narrow geographical area, that decision infuses those benefits into the bundle of rights for which an individual pays when buying or leasing within that area. The mandate of 42 U.S.C. § 1982 then operates to guarantee a nonwhite resident who purchases, leases, or holds the property, the same rights as enjoyed by a white resident." Tillman, supra, 93 S.Ct. at 1094. While the complaint sub judice alleges, inter alia, a violation of section 1982, plaintiffs have not shown any deprivation of property rights within that section. The Tillman holding is inapplicable to the present case.
The court cannot condone membership policies of the defendant Club and the Federation; however, the court concludes that plaintiffs are not entitled to the relief sought because of defendants' status as private organizations and there is no "symbiotic relationship" shown between the Federation and the State.
The court is left with the inescapable conclusion that plaintiffs have been deprived by defendants, not of their civil rights, but only of civil treatment. It is
Ordered and adjudged that final judgment be, and hereby is entered in favor of defendants and against plaintiffs, and the complaint is hereby dismissed with prejudice and at the cost of plaintiffs.
NOTES
[1] The Court takes judicial notice that in 1900 Miami was not a sprawling metropolis but a town of 4955. It came into existence and held its first election only four years earlier; the "barefoot mailman" had only stopped his unique mail-route in the previous decade when Henry Flagler's railroad had opened South Florida for development by pushing southward to Miami in 1896.
[2] "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property."
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84 P.3d 825 (2004)
192 Or. App. 164
STATE of Oregon, Respondent,
v.
Daniel Thomas GILL, Appellant.
P349289, P349290, P414403, R414404; A115064 (Control), A115065, A115066, A115067.
Court of Appeals of Oregon.
Argued and Submitted September 30, 2003.
Decided February 18, 2004.
*826 Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Acting Executive Director, Office of Public Defense Services.
Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before EDMONDS, Presiding Judge, and DEITS, Chief Judge, and LEESON, Judge pro tempore.
*827 EDMONDS, P.J.
Defendant appeals convictions for driving under the influence of intoxicants (DUII), driving while suspended (DWS), giving false information to a police officer, and attempted felony DWS. ORS 161.405; ORS 807.620; ORS 811.182; ORS 813.010. He assigns as error the trial court's denial of his motion to dismiss on statutory and constitutional speedy trial grounds. We affirm.
The material facts are undisputed. On September 28, 1991, defendant was cited for DUII and DWS in Multnomah County. On October 22, 1991, defendant failed to appear, and a bench warrant was issued for his arrest on November 4, 1991. On March 12, 1992, defendant was arrested in Multnomah County pursuant to the outstanding warrant and was cited for giving false information to a police officer, felony DWS, and failure to present a driver's license.[1] Defendant was released on his own recognizance on March 13, 1992, and on the same day failed to appear on the September 1991 offenses. A bench warrant was again issued for his arrest on March 17, 1992. On March 31, 1992, defendant failed to appear on the March 12, 1992, charges, and on April 2, 1992, another bench warrant was issued. On May 28, 1992, defendant was arrested pursuant to the outstanding warrants, released on his own recognizance, and again failed to appear on May 29, 1992. On June 3, 1992, bench warrants were again issued. Defendant subsequently moved to Virginia in July 1992. He was not arrested again on the above Multnomah County charges until March 2001. During this period, defendant never contacted the court about the status of the outstanding bench warrants.
Before leaving Oregon in 1992, defendant assisted the Federal Bureau of Investigation (FBI) with the apprehension of a bank robber. Defendant told the FBI agents with whom he worked on the bank robbery case that charges were pending against him in Multnomah County, and the agents indicated that they would attempt to get the charges dropped. The FBI agents were unsuccessful in persuading the district attorney's office to drop the charges, and the charges remained pending. The trial court found that defendant "left here knowing that he had warrants outstanding."
While defendant was in Virginia, he was involved in two severe accidents that left him partially paralyzed and confined to a wheelchair. Defendant underwent extensive hospitalizations, and he asserts that he has an impaired memory due to a concussion and the multiple prescription medications that he takes as a result of his physical condition.
Defendant returned to Oregon in 1995. He was cited and released on a theft charge on July 25, 1995, which was dismissed in August 1995. Defendant lived in Portland for a short period and then moved to Vancouver, Washington. He moved to Medford sometime in late 1996 or early 1997. Thereafter, he had multiple interactions with the police in Jackson County. On January 3, 1997, defendant was indicted in Jackson County for tampering with drug records.[2] He was convicted of a felony drug tampering offense on March 4, 1997, and placed on 18 months' probation. On April 21, 1997, defendant was indicted for criminal mischief in the second degree. He was convicted the next day and placed on probation with an order to perform community service. Defendant was charged with other traffic infractions in March 1998. He was convicted of DUII on May 5, 1998, and was placed on probation. In January 1999, defendant failed to appear for a victim impact program and received a jail sentence that was converted to community service, which involved completing court observations. Defendant was later cited for other traffic infractions in Clackamas County in February 2000.[3]
*828 There is no indication that, during his interactions with the criminal justice system in Jackson County and Clackamas County, defendant was ever confronted about the outstanding Multnomah County warrants. Throughout his interactions with the criminal justice system, defendant used his real name. However, he apparently moved several times and listed different addresses. The trial court found that the Jackson County police failed to check for defendant's outstanding warrants in Multnomah County.
Before trial, defendant moved to dismiss the indictments on statutory and constitutional speedy trial grounds. After the trial court denied defendant's motion, defendant waived his right to a jury trial, was tried by the court on stipulated facts, and was found guilty of the above-mentioned offenses. On appeal, defendant assigns error to the trial court's refusal to dismiss the indictments under ORS 135.747, Article I, section 10, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution. Under each provision, the issue of whether a defendant was brought to trial within a reasonable time is a question of law. State v. Rohlfing, 155 Or.App. 127, 129, 963 P.2d 87 (1998).
We begin with the statutory issue.[4] ORS 135.747 provides:
"If a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed."
In order to determine whether there was a violation under the statute warranting dismissal, we first consider the extent to which "defendant caused or consented to the delay." State v. Peterson, 183 Or.App. 571, 576-77, 53 P.3d 455 (2002) (internal quotation marks omitted). If there is some delay to which defendant did not consent, we then determine whether the lapse of time between the indictments and trial was reasonable under the circumstances. Id. at 577, 53 P.3d 455.
In State v. Kirsch, 162 Or.App. 392, 397, 987 P.2d 556 (1999), we held that consent to a delay of trial under ORS 135.747 "does not require express consent and that defendant's failure to appear and his subsequent inaction constituted consent to the delay at issue * * *." Implicit consent may be found where a defendant demonstrates "that he [does] not want to have his trial scheduled within the regular course of the justice system but [consents] to have his case languish in legal limbo." Id. (internal citations and quotation marks omitted). Implied consent continues until the point at which it is revoked. See id. (holding that the defendant's failure to appear and subsequent inaction following that failure to appear constituted implied consent to the entire period of delay regardless of the defendant's other multiple interactions with police during his failure-to-appear status); see also Peterson, 183 Or.App. at 574-77, 53 P.3d 455 (finding that the defendant impliedly consented to the period during his failure-to-appear status, which lasted until the defendant again contacted the court by filing a motion to waive his appearance and entering a plea of not guilty).
The effect of defendant's implicit consent to the delay in this case means that there was not an "unreasonable delay" within the meaning of ORS 135.747. Here, the period of delay is due in large part to defendant's failures to appear, his absconding from Oregon, and his failure to provide information to the court about his whereabouts. For instance, *829 the delay from the initial 1991 and 1992 charges until defendant's return to Oregon in 1995 is attributable entirely to defendant. Defendant could not reasonably rely on the FBI's attempt to intercede on his behalf without ascertaining whether that effort had been successful. The remaining period of time involves defendant's return to Oregon in 1995 until his arrest in March 2001 and the import of defendant's contacts with law enforcement agencies and courts during that period of time, which we discuss in more detail in our constitutional analysis that follows. We conclude here that, consistent with Kirsch, there is no statutory speedy trial violation despite defendant's interactions with police during the delay.
We turn to defendant's arguments under the Oregon and United States constitutions. Article I, section 10, of the Oregon Constitution provides that "justice shall be administered * * * without delay." An analysis under Article 1, section 10, requires consideration of three factors: (1) the length of the delay, (2) the reason for the delay, and (3) the resulting prejudice to the accused. Harberts, 331 Or. at 84, 11 P.3d 641; State v. Mende, 304 Or. 18, 21, 741 P.2d 496 (1987). The threshold consideration, the length of the delay, can be dispositive if the delay itself is so long "that the thought of ordering [a] defendant to trial shocks the imagination and the conscience, or if the delay is caused purposely to hamper the defense." Harberts, 331 Or. at 85, 11 P.3d 641 (citations and internal quotation marks omitted). Neither of those circumstances exist here. Significantly, there was no pretrial incarceration. See State v. Moylett, 123 Or. App. 600, 606, 860 P.2d 886 (1993), rev. den., 319 Or. 150, 877 P.2d 87 (1994) (denying dismissal on constitutional speedy trial grounds despite lengthy pretrial appeal and potential anxiety attributable to pretrial delay because, inter alia, the "[d]efendant was never incarcerated, and was not prejudiced by the delay in his ability to defend the case"). There is no evidence that the state caused the delay purposefully to hamper the defense, and the delay is not so long that it shocks the imagination and the conscience. For example, in Kirsch we held that an eight-year delay during which the defendant was aware of a pending DUII charge, initially failed to appear, and subsequently remained unavailable for trial was not so excessive that it shocked the conscience. The ten-year delay in this case is similar to the eight-year delay in Kirsch, which we held not to be so excessive that it shocked the conscience.
Here, the length of the delay, approximately 10 years, triggers further inquiry. We turn then to the reasons for the delay.
We have previously recited the facts about the reasons for the delay. In that regard, our decision in Kirsch again informs our analysis. In Kirsch, we held that neither a constitutional nor a statutory speedy trial violation had occurred after an eight-year delay where the defendant failed to appear on a DUII charge. The defendant in Kirsch was stopped by police eight times during the period of delay after his failure to appear but was never served with the outstanding bench warrant. We observed that, although
"the delay was due in part to defendant's failure to appear and his subsequent failure to provide the court with any information regarding his whereabouts[,][t]he delay was also attributable in part to the state's negligence in not arresting defendant on the outstanding bench warrant on the numerous occasions that he was stopped for traffic offenses."
Id. at 399, 987 P.2d 556. As were the facts in Kirsch, defendant in this case had multiple interactions with the police during the period of delay, and the outstanding warrant was never executed. Like in Kirsch, the police may well have been negligent in not arresting him on those occasions. However, as we said in Kirsch, "that does not preclude the conclusion that, by his conduct, defendant acquiesced in the delay. It was defendant who did not appear at the time set for trial and it was his choice not to contact the court following that failure." Id. at 397, 987 P.2d 556. See also id. at 399, 987 P.2d 556 (discussing reasons for delay under the constitutional analysis); Barker v. Wingo, 407 U.S. 514, 536, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ("barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional *830 right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial"). Consequently, the reasons for delay in this case do not weigh heavily against the state.
The next factor requires us to determine whether defendant has established actual prejudice or the reasonable possibility of prejudice. As the court noted in Harberts, "prejudice can be of three kinds: the damage arising from lengthy pretrial incarceration, the anxiety and public suspicion resulting from public accusation of a crime, and the hampering of the ability to defend at trial." Harberts, 331 Or. at 93, 11 P.3d 641 (citing State v. Ivory, 278 Or. 499, 507-08, 564 P.2d 1039 (1977)). Defendant does not claim that he experienced pretrial incarceration or that he suffered anxiety and concern with regard to the charges, but he does assert that the delay impaired his defense. In determining whether the delay caused prejudice to the defense, the proper inquiry is whether "the delay caused a `reasonable possibility of prejudice' to the ability to prepare a defense." Id. at 86, 11 P.3d 641 (quoting Ivory, 278 Or. at 508, 564 P.2d 1039). Defendant asserts that he experienced prejudice in the form of impaired memory due to the delay. However, he did not provide to the trial court any medical record as to the effect of his injuries on his memory, and the court found defendant not to be a credible witness. Accordingly, we agree with the trial court's implicit finding that defendant has not sufficiently demonstrated that he suffered prejudice from the delay. For all of the above reasons, we conclude that defendant has not demonstrated a violation of his right to a speedy trial under Article I, section 10.
A speedy trial analysis under the Sixth Amendment to the United States Constitution includes much of the same analysis as is made under Article I, section 10, except that we balance the factors instead of weighing them. Mende, 304 Or. at 22, 24, 741 P.2d 496. Also, we consider "an additional factor: whether the defendant raised a speedy trial claim below." Peterson, 183 Or.App. at 576, 53 P.3d 455 (citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Dykast, 300 Or. 368, 712 P.2d 79 (1985)). Here, defendant first made a speedy trial argument when he filed his motion to dismiss. Nonetheless, defendant never protested about the delay between 1992 and 2001. Therefore, our consideration under Sixth Amendment speedy trial analysis does not yield a different outcome.
Affirmed.
NOTES
[1] As a result of the March 12 incident, defendant was ultimately convicted of giving false information to a police officer and attempted felony DWS, and the charge of failure to present a driver's license was dropped.
[2] Defendant failed to appear on those charges on January 27, 1997, and February 4, 1997, and bench warrants were issued.
[3] Defendant failed to appear twice on the Clackamas County charges. Bench warrants were issued and recalled. The case was reactivated in March 2001.
[4] We may address the constitutional analysis first where a constitutional violation would result in more complete relief (dismissal with prejudice) than a statutory violation (dismissal without prejudice). See, e.g., State v. Harberts, 331 Or. 72, 81, 11 P.3d 641 (2000); State v. Harman, 179 Or.App. 611, 614, 40 P.3d 1079 (2002); State v. Hilton, 187 Or.App. 666, 671, 69 P.3d 779 (2003). Pursuant to ORS 135.753, dismissal under ORS 135.747 bars reprosecution only for Class B and C misdemeanors. DUII (ORS 813.010), giving false information to a police officer (ORS 807.620), and attempted felony DWS (ORS 161.405 and ORS 811.182) were Class A Misdemeanors at the time of the events giving rise to these charges. DWS (ORS 811.182) was a Class C Felony. However, under ORS 131.125, the statute of limitations is two years for misdemeanors and three years for felonies. We therefore elect to consider the statutory issue before we address the constitutional issues.
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477 F.3d 573
UNITED STATES of America, Plaintiff-Appellee,v.Yvette LaFloe FALCON, Defendant-Appellant.
No. 06-1438.
United States Court of Appeals, Eighth Circuit.
Submitted: October 17, 2006.
Filed: February 14, 2007.
Larry M. Baer, argued, West Des Moines, IA, for appellant.
David L. Peterson, Asst. U.S. Attorney, argued, Bismarck, ND, for appellee.
Before MELLOY, BEAM, and BENTON, Circuit Judges.
MELLOY, Circuit Judge.
1
Yvette LaFloe Falcon was convicted by a jury of one count of conspiring to commit an offense against the United States in violation of 18 U.S.C. § 371 and two counts of embezzlement or misapplication of funds from an Indian tribal organization in violation of 18 U.S.C. § 1163. The district court1 sentenced Falcon to eighteen months' imprisonment. Falcon appeals, alleging insufficient evidence and plain error in the jury instructions. We affirm.
I. Background
2
Falcon is an enrolled member of the Turtle Mountain Band of Chippewa Indians ("the Tribe") in North Dakota. In 1994, she was elected chief clerk of the Tribe's court. She was re-elected in two subsequent elections and held the post of chief clerk during all times relevant to the present offenses. The conspiracy and embezzlement charges in this case arose from the use of travel funds obtained and disbursed under Falcon's signature or under the signature of her convicted coconspirator Sharon Malaterre. The travel at issue was allegedly undertaken for the purpose of training related to tribal business. During the times relevant to the present offenses, Malaterre served first as an associate judge and later as chief judge of the Tribe's court.
3
Under the Tribe's policy regarding business travel, travelers were required to submit a signed travel authorization request and voucher request to a supervisor or department head who would approve, sign, and forward the requests to a member of the executive committee for a final signature and disbursement of funds. The Tribe considered Falcon and Malaterre to be supervisors or department heads. Members of the executive committee included officers such as the Tribe's chairman, vice-chairman, etc. Travelers could request and receive up to eighty percent of their anticipated travel expenses in advance and submit receipts upon the completion of travel to obtain the lesser of the remaining twenty percent or the actual cost of travel.
4
In 2001, the Tribe's chairman instructed Falcon and other department heads and project administrators that his signature on requisitions served only as acknowledgment that all other necessary signatures were present. He stated it was the responsibility of department heads or project administrators to make sure that requested expenditures were permissible under the terms of relevant grants or funding sources, and he would interpret their signatures as representations that expenditures were appropriate. The Tribe's chairman testified that the large number of grants and other funding sources and the large number of departments or line items in the Tribe's overall budget made it impractical for the executive committee to track each source and verify the propriety of every request received from a department head. Accordingly, the Tribe's chairman testified that it was necessary, in general, for the executive committee and the finance office to rely upon representations by the department heads and grant administrators concerning the propriety of expenditures under the various grants.
5
The travel funds at issue in this case relate to travel for two separate seminars or conferences. The first travel occurred in 1999, and the destination was a conference in Jacksonville, Florida. The persons who received travel funds for the trip from North Dakota to Florida included Falcon, Malaterre, Delmark Langen (a Bureau of Indian Affairs law enforcement officer), and Marilyn Davis (an employee of the Tribe). These persons had planned to fly to Florida, and Falcon had made flight reservations for the group. Days before leaving, however, Falcon determined that flying was not possible. She then approached Langen about using a BIA van for the trip. Langen obtained a nine-passenger BIA van. The travelers also used a smaller van owned by a different judge on the Tribe's court.
6
Falcon, Malaterre, and Langen requested and received eighty percent of their anticipated expenses in advance. Malaterre received $970 and Falcon and Langen each received over $1934. The amounts advanced to Malaterre and Langen included anticipated mileage for the trip at $0.31 per mile. Falcon proposed and approved payment of $0.31 per mile for Langen to drive the BIA van to Florida. This reimbursement rate was the rate usually paid to persons for driving their own vehicles during reimbursable travel, not a rate applied to the use of government-owned vehicles.
7
Langen, Malaterre, Falcon, and Falcon's son traveled together to Florida in the BIA van. Davis, her husband, and her husband's daughter traveled in the private van. The employees' family members went to Disney World while in Florida. Although the government strongly inferred at trial that the purpose for taking two vans was to permit the family members to travel to Disney World for free, such a finding was not necessary to support the jury's verdict.
8
During the trip, Falcon told Langen that Malaterre had run out of money, and Langen gave a portion of his mileage money to Malaterre. Following the trip, Falcon submitted trip reports and receipts for the travelers. These submissions included receipts for hotel stays in Eau Claire, Wisconsin, and Ashley, Illinois. It was shown at trial that these hotel receipts were false—Langen and Malaterre denied staying in either of the hotels, and, in fact, the hotels named on the receipts did not exist. Further, the fabricated receipts were poorly made (for example, Eau Claire was misspelled on the false receipt). Falcon claimed that Malaterre acted alone and submitted the false receipts. Malaterre and Langen testified, however, that Falcon submitted the receipts. Also, Falcon had signed the relevant trip reports.
9
The second instance of travel at issue in this case was a trip to Las Vegas for a training conference. Funding for the Las Vegas trip, approved by Falcon, was taken from a specific federal grant. The federal grant included a limited allocation of funds for travel. This allocation included money for an attorney to travel to Washington, D.C., and for the project administrator to travel once to Rapid City, South Dakota, and once to Bismark, North Dakota. It contained no money for travel to Las Vegas. According to grant documents and testimony from multiple witnesses, Falcon was the administrator for the grant and was responsible for creating the budget that was included in the grant. Notwithstanding Falcon's knowledge of and responsibility for the grant, she approved travel for multiple members of the Tribe to a conference in Las Vegas. The total amount of travel funds requested and paid out under vouchers approved by Falcon for the Las Vegas trip exceeded the total travel budget of the grant by thousands of dollars.
10
In Las Vegas, multiple Tribe members spent their travel advances at the gaming tables prior to the conference. The money lost due to gambling included the travel advances intended to pay the conference fee or tuition. Falcon talked to the conference director and obtained permission to pay the required fee at a later date. Ultimately, only one of the travelers paid the conference fee. After the conference, in her submission for the unpaid twenty percent of her requested travel funds, Falcon submitted a photocopy of a check for the conference fee and a photocopy of an envelope that she purportedly used to mail the check to the conference organizers. At trial, it was revealed that the check was never received by the conference organizers and that the check had never been cashed. Taken in a light most favorable to the verdict, we must assume that the jury permissibly concluded that Falcon never sent the check to pay for the conference tuition and fabricated the evidence she submitted with her claim for reimbursement.
11
The government charged Falcon and Malaterre with conspiracy and embezzlement. Malaterre pleaded guilty to conspiring to defraud the United States in violation of 18 U.S.C. § 371 and testified against Falcon. The jury received Malaterre's plea agreement as evidence in Falcon's case.
12
Falcon defended herself at trial by arguing that the Tribe's executive committee, comptroller, and finance office had oversight duties regarding the travel expenditures such that she was free to sign her own and other persons' requests and vouchers without regard to the propriety of the travel. Numerous other witnesses, including the Tribe's chairman and the comptroller, rebutted these claims. Further, Falcon at no time presented a reasoned explanation for the submission of false hotel receipts. She did argue that Malaterre acted alone regarding the false hotel receipts, but other testimony and evidence rebutted her claim. Finally, she failed to present any explanation of why Langen received the personal vehicle per-mile rate for driving the BIA's van to Florida.
13
Ultimately, the jury rejected Falcon's characterization of her role as a non-supervisory, non-responsible party and accepted the testimony of the tribal officials who had explained the apportionment of responsibilities in the Tribe's process for approving travel.
II. Discussion
A. Jury Instructions
14
Falcon raises two challenges concerning the instructions on the substantive counts of embezzlement. She first argues that the district court erred by not instructing the jury as to the meaning of the word "willfully." She also argues that the district court erred by submitting an instruction regarding "deliberate indifference" even though the embezzlement statute required proof that she acted willfully or knowingly.
15
Falcon did not raise these challenges below, so our review is for plain error. United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Plain error only exists if (1) there was an error, (2) the error was plain, (3) the error affected Falcon's substantial rights, and (4) a failure to grant relief would "seriously affect the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotations omitted). An error is only plain if it is a clear violation of existing law. Olano, 507 U.S. at 734, 113 S.Ct. 1770. An erroneous jury instruction only affects substantial rights if "`the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process.'" United States v. Smith, 450 F.3d 856, 859 (8th Cir.2006) (quoting Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)).
16
Falcon's first challenge relates to her interpretation of the term "willfully" as used in 18 U.S.C. § 1163. That section provides:
17
Whoever embezzles, steals, knowingly converts to his use or the use of another, willfully misapplies, or willfully permits to be misapplied, any of the moneys, funds, credits, goods, assets, or other property belonging to any Indian tribal organization or intrusted to the custody or care of any officer, employee, or agent of an Indian tribal organization. . . .
18
Shall be fined under this title, or imprisoned not more than five years, or both; but if the value of such property does not exceed the sum of $1,000, he shall be fined under this title, or imprisoned not more than one year, or both.
19
The district court instructed the jury that one element of the offense required proof that "the Defendant knowingly and willfully permitted to be misapplied assets, that is, travel funds." The district court defined the terms "embezzle," "conversion," and "misapply." The separate instruction that set forth the definition for the term "misapply" stated: To "misapply" means to use the funds or property of the Turtle Mountain Band of Chippewa Indians, knowing that such use is unauthorized, or unjustifiable or wrongful. Misapplication includes the wrongful taking or use of the money or property of the Turtle Mountain Band of Chippewa Indians, by its agent for his or her own benefit, the use or benefit of some other person, or an unauthorized purpose, even if such use benefitted the Turtle Mountain Band of Chippewa Indians.
20
(Emphasis added).
21
Falcon asserts that the term willfully in the context of a violation of 18 U.S.C. § 1163 requires proof not only that a defendant intentionally or purposely permitted the misapplication of funds, but that a defendant knew she was violating the law and acted with a culpable state of mind, i.e., acted with a specific intent to violate the law. Even if we were to presume that Falcon correctly describes the meaning of the term "willfully" under § 1163, her argument fails. The definition that the district court gave to the jury for the term "misapply" incorporated precisely the kind of specific intent definition that Falcon advocates. Further, the term "willfully" only appears in § 1163 in reference to the acts of misapplying or permitting to be misapplied. Accordingly, under the instructions used in this case, the jury could not have found that Falcon acted willfully without finding the mens rea that Falcon believes applicable to § 1163.
22
Falcon's second, related argument is that the district court erred when it gave the jury a "deliberate indifference" instruction. According to Falcon, such an instruction permitted the jury to convict based on a finding merely of constructive knowledge and permitted a conviction where the jury may have only found negligence or carelessness. This argument misconstrues the nature of the deliberate indifference instruction and ignores the fact that the district court expressly cautioned against finding guilt based on negligence. The instruction given by the district court was as follows:
23
You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant was aware of a high probability that travel funds were being misapplied and that she deliberately avoided learning the truth. The element of knowledge may be inferred if the defendant deliberately closed her eyes to what would have otherwise been obvious to her.
24
You may not find that the defendant acted knowingly, however, if you find that the defendant was simply careless. A showing of negligence, mistake, or carelessness is not sufficient to support a finding of knowledge.
25
This is not, as argued by Falcon, a negligence, constructive knowledge, or "should have known" instruction. As we and other courts previously have recognized, a deliberate indifference instruction is not the same as a constructive knowledge instruction. See United States v. Parker, 364 F.3d 934, 947 n. 3 (8th Cir.2004) (holding a deliberate indifference instruction adequate where the trial court admonished the jury against finding the requisite knowledge based merely on the defendant's "negligence, mistake, or carelessness"); United States v. Crabtree, 979 F.2d 1261, 1269-70 (7th Cir.1992) (rejecting the argument that a deliberate indifference instruction permitted conviction "for negligence without proof of intent" and stating that a deliberate indifference instruction "informs the jury that guilty knowledge can be inferred from a combination of suspicion and deliberate indifference"). A deliberate indifference instruction is used to inform the jury that a defendant's actions, or failures to act, combined with other circumstances may suffice to prove that a defendant had actual knowledge of a fact. Parker, 364 F.3d at 947. Here, as in Parker, there was an express admonition to preclude the jury's finding of knowledge based merely on a negligence standard. The deliberate indifference instruction was appropriate because Falcon had argued she did not act willfully or with the requisite knowledge. Also, her version of the facts laid blame at the feet of Malaterre but indicated Falcon may have signed vouchers and acted with willful blindness of Malaterre's actions.
26
Further, we note that even if Falcon's challenges to the instructions had merit, we would have to conclude that the alleged errors did not affect Falcon's substantial rights. The evidence taken in a light most favorable to the jury's verdict demonstrated that Falcon fabricated and submitted hotel receipts for hotel stays that never occurred. Further, it showed that Tribe members used their travel funds to gamble, and Falcon falsely claimed to have paid conference fees in an effort to hide the misuse of funds. Finally, the evidence showed that Falcon initiated inappropriate claims for mileage even though the mileage arose from the use of a government vehicle. Under any reasonable definition of the term willfully, and without resort to a theory of deliberate indifference, this evidence suffices to establish a willful misapplication of Tribal funds.
B. Sufficiency of the Evidence
27
Falcon also challenges her conviction based on the sufficiency of the evidence. "We will uphold the conviction `as long as there is an interpretation of the evidence that would allow a reasonable-minded jury to find the defendant guilty beyond a reasonable doubt.'" United States v. Johnson, 470 F.3d 1234, 1237 (8th Cir.2006) (quoting United States v. Peters, 462 F.3d 953, 957 (8th Cir.2006)).
28
Falcon's challenge rests largely on her own contested testimony, which the jury clearly rejected. For example, Falcon stated that Langen approached her about using the BIA van. Langen denied this claim and testified that Falcon requested that he obtain the BIA van. Falcon testified that the Tribe's officers, rather than department heads like herself, were responsible for approving travel and ensuring that travel expenditures were authorized under the relevant funding sources. The Tribe's officers, however, made clear in their testimony that department heads were responsible for ensuring the propriety of travel. Falcon testified that Malaterre submitted the voucher requests and false hotel receipts for all employees following the Florida trip, even though the other employees stated that Falcon received and submitted their receipts, and even though Falcon signed-off on the submission of the false hotel receipts.
29
We will not disturb the jury's credibility assessments on appeal. United States v. Jansen, 470 F.3d 762, 765 (8th Cir.2006) ("[C]redibility determinations are virtually unreviewable on appeal.") (internal quotations omitted). As such, we cannot accept Falcon's credibility-based challenge and must rely on the jury's assessment of the competing testimony. We therefore find that substantial evidence supports the verdict.
30
The judgment of the district court is affirmed.
Notes:
1
The Honorable Ralph R. Erickson, United States District Judge for the District of North Dakota
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502 F.2d 172
Dewey J. HASSLER, Plaintiff-Appellant,v.Casper WEINBERGER, Secretary of Health, Education andWelfare, Defendant-Appellee.
No. 73-1754.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 15, 1974.Decided Sept. 5, 1974.
John A. Burgess, South Bend, Ind., for plaintiff-appellant.
Kathryn H. Baldwin and Stanton R. Koppel, Attys., U.S. Dept. of Justice, Washington, D.C., John R. Wilks, U.S. Atty., Fort Wayne, Ind., for defendant-appellee.
Before PELL, STEVENS, and SPRECHER, Circuit Judges.
PELL, Circuit Judge.
1
On July 18, 1969, plaintiff Dewey Hassler applied to the Social Security Administration for a period of disability and disability benefits. The Secretary of the Department of Health, Education and Welfare denied the application. Hassler commenced an action in the district court under Section 205(g) of the Social Security Act, 42 U.S.C. 405(g), for review of the final decision of the Secretary. The district court denied the plaintiff's motion for judgment on the pleadings and sustained the Secretary's motion for summary judgment. Judgment was entered accordingly and this appeal followed. The sole question on appeal is whether there was substantial evidence to support the Secretary's determination.1
2
* At the time of his application, Hassler was 46 years old, married, and had a high school education. Until he ceased being employed in June 1969, the claimant had worked for over 23 years at the McCord Corporation. His most recent jobs there had been as a watchman and as a radiator inspector, tasks which Hassler described as requiring walking but no lifting. Hassler receives $182 a month as a pension from his former employer and $50 a month in proceeds from a G.I. insurance policy.
3
In his application, Hassler listed a number of physical impairments ('hearing, heart, lung (chronic pneumothorax)') as the cause of his inability to work. The claimant submitted in support of his application the report of his treating physician, Dr. James Coursey, a general practitioner. In his report, Dr. Coursey, after reviewing Hassler's physical problems, stated as part of his diagnosis:
4
'Psycho-social adjustment problem-- severe; particularly with regard to steady employment at factory work.'
5
At the request of the Disability Determination Section, Hassler was also examined by Dr. Howard Engel, an internist. On the basis of his examination of the claimant, Dr. Engel concluded: 'I can see absolutely no reason why this man cannot be hired to do sedentary-type work.' Dr. Engel immediately added, however, that 'there is a tremendous amount of psychological overlay in this situation and I am afraid that it will be difficult for this man to take any type of work.'
6
The agency denied Hassler's application for benefits. Hassler then requested and was granted a hearing before an examiner.
7
At this hearing, Hassler represented himself and continued to rely only upon his physical impairments as the basis for disability benefits. After reviewing the evidence, the hearing examiner denied the disability benefits on the ground that Hassler did not have an impairment, or a combination of impairments, so severe as to preclude any substantial gainful activity, including the work in which the claimant had experience.
8
When Hassler asked for review of the hearing examiner's decision, the Appeals Council requested a psychiatric examination of Hassler. All three consultants seeing him found Hassler to have psychological problems.2 Dr. Kooiker, a Diplomate of the American Board of Psychiatry and Neurology, who had received the reports of the psychiatric social worker and the clinical psychologist, gave the most specific diagnosis:
9
'DIAGNOSIS No. 1: Hypochondriacal neurosis. This examiner considers that for practical purposes an equivalent diagnosis would be conversion reaction. AMA impairment rating-- Class 2F, impairment rating 10%. a) Stress: In the opinion of this examiner, the basic problem is long frustrated dependency needs, some of which may have been mobilized by repeated clear-cut episodes of spontaneous pneumothorax. b) Predisposition: See Diagnosis No. 2. DIAGNOSIS No 2: Passive Aggressive personality. AMA impairment rating 5%. PROGNOSIS: In the opinion of this examiner, the patient is comfortably able to rationalize his dysfunction on the basis of various somatic symptoms. In addition to this, he is able to at least partially achieve some of his dependency needs by acquiring a disability rating from his company. Consequently, the prognosis for return to significant gainful activity is considered to be nil.'
10
After reviewing all of the evidence, including the psychiatric reports, the Appeals Council affirmed the decision of the hearing examiner which affirmance became the final decision of the Secretary. With respect to the psychiatric evidence, the Council stated: 'The claimant's functional capabilities because of a nervous impairment are evaluated at only 15 percent disabling.'
11
Hassler then filed this action for review of the Secretary's decision. Hassler was represented in the district court by counsel, who argued that Hassler's impairments were largely mental, not physical.
12
The district court granted the Secretary's motion for summary judgment on the ground that the Secretary's decision was supported by substantial evidence. In particular, the district court interpreted Dr. Kooiker's final prognosis 'as a statement that the plaintiff does not intend to work and is totally unwilling to recognize why. Clearly, Dr. Kooiker's determination that plaintiff had only a fifteen percent (15%) mental impairment constituted more than substantial evidence that the plaintiff did not have a mental impairment within the meaning of the Social Security Act.'
13
On appeal Hassler's counsel again stresses that Hassler's impairment is primarily mental rather than physical. This mental condition, it is argued, prevents Hassler from performing any type of work. In particular, counsel for Hassler directs our attention to Dr. Kooiker's finding that Hassler is suffering from hypochondriacal neurosis. (Dr. Kooiker noted that, for practical purposes, an equivalent diagnosis would be conversion reaction.)3
14
Such a condition is characterized by emotional distress and anxiety. The patient unconsciously produces physical symptoms to meet his psychological problem. 'The symptoms protect him from having to face the traumatic situation.' J. Coleman, Abnormal Psychology 208 (3d ed. 1964). Since the physical symptoms are unconsciously produced, the patient himself sees no relation between his symptoms and the stress situation. This lack of intent to deceive distinguishes the conversion reaction from malingering, where the symptoms are consciously produced with intent to deceive. Coleman, supra at 204-210; T. Harrison, Principles of Internal Medicine 1878-79 (7th ed. 1974).
II
15
In order to qualify for disability benefits under the Act, a claimant must show, first, that he is suffering from a medically determinable physical or mental impairment,4 and, second, that, due to this impairment, he is unable 'to engage in any substantial gainful activity.'5 Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974); Pierce v. Gardner, 388 F.2d 846, 847-848 (7th Cir. 1967), cert. denied, 390 U.S. 928, 88 S.Ct. 865, 19 L.Ed.2d 992 (1968).
16
Insofar as physical impairment is concerned, upon which Hassler relied when he commenced the long trial seeking disability benefits, we would have no trouble in determining that there was substantial evidence supporting a decision that there was not a disqualifying physical impairment despite the fact that there was indeed evidence of physical impairment.
17
The fracture of a limb is a matter of easy demonstration. The fracture of that delicate but complex conglomerate of elusive and variable components termed the human mind is not so easily demonstrable even though the resultant disability may be every bit as devastating as the physical trauma in its impact. While much distance has yet to be travelled, there has been an emergence from the darkness of thinking that it is only the gibbering idiot who cannot control the exercise of his will by simply putting his mind to it. Unfortunately there is still much blurring of the boundaries between those who have lost control and those who could but choose not to control confusion between medical hysteria and hysterical actions, and failure to differentiate between hypochondriacal neurosis and malingering with hypochondriacal manifestations. It is primarily to the psychiatrist or psychoanalyst to whom we must turn, and indeed where the reliance was placed in the present case by the Secretary, for the 'medically acceptable clinical and laboratory diagnostic techniques.'
18
In the present case, the Secretary concedes that Hassler has a mental impairment which affects his ability to engage in substantial gainful activity. (The Secretary specifically stated in oral argument that the agency does not regard Hassler as a malingerer.) The sole issue is whether Hassler's mental impairments are so severe as to make him 'disabled' within the meaning of the Act.
19
In finding that Hassler was not disabled, the Secretary, as we have stated, relied on the psychiatric report submitted by Dr. Kooiker.6 Dr. Kooiker, the Secretary noted, had stated the 'impairment ratings' for Hassler's mental conditions to be 10% (for the hypochondriacal neurosis) and 5% (for the passive aggressive personality). Such a low impairment rating, totalling 15% At best, could never, the Secretary concluded, be sufficient to render a claimant incapable of engaging in any substantial gainful activity. We reject, for two reasons, the Secretary's interpretation of Dr. Kooiker's report.
20
First, the Secretary's interpretation erroneously equates the degree of mental impairment with the degree of functional disability. The Appeals Council, thus, stated in its decision that 'the claimant's functional capabilities because of a nervous impairment are evaluated at only 15 percent disabling.' This interpretation of Dr. Kooiker's findings is clearly erroneous: the psychiatrist reported the impairment rating-- not the disability rating-- to be 15%. There is nothing in the record to support the Secretary's assumption that the degree of mental impairment, as measured by the particular AMA scale utilized by Dr. Kooiker, corresponds on a one-to-one basis with the degree of functional disability.7
21
Second, and more important, the Secretary's interpretation of Dr. Kooiker's report precludes a consistent reading of the entire psychiatric evaluation. The view that Hassler's mental impairments are only 15% Disabling simply cannot be reconciled with Dr. Kooiker's final conclusion that 'the prognosis for return to significant gainful activity is considered to be nil.'
22
It is possible, however, to harmonize the various statements in Dr. Kooiker's report. After diagnosing Hassler's mental impairment as being, in part, hypochondriacal neurosis, Dr. Kooiker added (under the subheading 'Stress'): 'The basic problem is long frustrated dependency needs.' In his prognosis, the psychiatrist noted that 'the patient is comfortably able to rationalize his dysfunction on the basis of various somatic symptoms.' In addition, Hassler's dependency needs, Dr. Kooiker found, have been satisfied to some extent by the claimant's acquisition of a disability rating from his company. Dr. Kooiker then, as we have noted, presented his conclusion that 'the prognosis for return to significant gainful activity is considered to be nil.' A careful reading of these statements indicates that Dr. Kooiker found that Hassler's mental impairments (hypochondriacal neurosis and passive aggressive personality) are enhanced by rationalizations and by an official, 'outside' corroboration (through the company disability rating) of the patient's own view of himself as physically sick. The result is a total inability to engage in significant gainful activity.
23
The Secretary may consider expert medical opinion regarding the claimant's ability to engage in any substantial gainful activity although such evidence, in itself, is not binding upon the Secretary. Colwell v. Gardner,386 F.2d 56, 72 (6th Cir. 1967); Teeter v. Flemming, 270 F.2d 871, 874 (7th Cir. 1959). Moreover, where two or more experts disagree in their opinions of the claimant's disability, it is normally for the Secretary, and not the courts, to resolve these conflicts. Cyrus v. Celebrezze, 341 F.2d 192, 195 (4th Cir. 1965).
24
However, the Secretary may not arbitrarily choose to ignore uncontroverted medical testimony. Colwell v. Gardner, supra, 386 F.2d at 72. Nor may he rely on one expert 'to the disregard of overwhelming evidence to the contrary.' Cyrus v. Celebrezze, supra, 341 F.2d at 195.
25
Likewise, the Secretary may not rely on a portion of an expert's report where a fair reading of the entire report indicates that the expert reached a conclusion contrary to that asserted by the Secretary.
26
In considering the present appeal we do not have a question of weighing conflicting expert opinions,8 which would be the province of the administrative agency. Here we know the expert upon whom reliance was placed. However, that expert's opinion, when read in its entirety, indicates that Hassler is disabled within the meaning of the Act. The Secretary's contrary conclusion was based upon a misinterpretation of the report upon which he relied.
27
We cannot agree with the district court's interpretation of Dr. Kooiker's prognosis as being a statement that plaintiff 'does not intend to work and is totally unwilling to recognize why.' The very essence of the report, culminating in the prognosis, is that Hassler's mental condition precluded his recognizing why he was abstaining from work.9 Any other interpretation must be predicated upon a malingering basis which has been excluded as a factor.
28
That Hassler cannot return to gainful activity may well be partially attributable to the state of the civilization in which we live. We must look, however, at the case in that context and not in that of a primitive society.
29
Since there was no substantial evidence to counter Dr. Kooiker's prognosis of total disability, the Secretary's decision cannot stand. Teeter v. Flemming, supra, 270 F.2d at 874.10
30
The judgment is reversed and the case is remanded to the district court for further proceedings consistent with this opinion.
31
Reversed and remanded.
1
42 U.S.C. 405(g) provides, in pertinent part: 'The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..'
2
Gordon Reinschreiber, a psychiatric social worker, stated:
'The degree of impairment of the patient's ability to relate to other people appears to be moderate. The degree of restriction of daily activities appears to be moderately severe. The degree of deterioration of personal habits appears to be none. The degree of constriction of interests of claimant appears to be moderately severe.'
Edward Strain, a clinical psychologist, reported:
'This is a hostile paranoid personality. This is a man who perceives the outside world as a threatening, over powering place and he is very paranoid about it.
'The patient, in addition, has some mild sadistic impulsives, suggesting that many of his emotional relationships are colored by a tendency on his part to hurt other people emotionally.
'Depression is moderate in intensity, a chronic disturbance in mood.
'The man does not appear psychotic at this time. His paranoid posture toward reality is stable and constant and seems to have been with him for a long time. The mild to moderate depression is also stable and chronic.'
3
'Conversion' has been defined as '(a) freudian term for the process by which emotions become transformed into physical (motor or sensory) manifestations.' Dorland's Illustrated Medical Dictionary (24th ed. 1965)
4
'(A) 'physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.' 42 U.S.C. 423(d)(3)
5
'The term 'disability' means inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . . ..' 42 U.S.C. 423(d)(1)(A)
6
The reports of the other physicians and consultants were mentioned as background in the decision of the Appeals Council but do not appear to have figured in the final assessment of Hassler's mental condition. Dr. Engel was misquoted in the decision as recognizing 'that the claimant might have a psychological overlay.' Dr. Engel actually reported, as noted hereinbefore, that 'there is a tremendous amount of psychological overlay.'
7
We are not unmindful of a general reluctance on the part of physicians to evaluate either physical or mental disabilities in percentage terms. The inherent difficulty of so doing is illustrated in the present case. Two inches sliced off the top of a six foot person's head would be percentagewise less than 3% Of the person as a whole but would no doubt be fatal in its consequences to that person. It is for that reason that we place primary reliance not on an estimated percentage of impairment but on the culmination of the evaluation of disability as it is contained in the prognosis. The Secretary's decision ignores this crucial, and in our opinion, controlling portion of Dr. Kooiker's report
8
On this appeal, the Secretary stated in his brief in referring to the possibility of a conflict between Dr. Coursey's statement and Dr. Kooiker's diagnosis that 'the Secretary was amply justified in resolving that conflict by relying upon the diagnosis of the psychiatric specialist, which was based upon his own thorough examination and tests, and upon the reports of examinations by two specialists in psychology.'
9
Dr. Kooiker also noted that psychiatric treatment would be useless in Hassler's case:
'The patient does not see himself as having personality or emotional problems of any sort. Consequently, the offer of psychiatric help and support would be largely an empty gesture to which the patient would undoubtedly be unreceptive.'
10
Hassler also argued, on appeal, that the Secretary, having found Hassler to be moderately disabled, failed to describe sufficiently the jobs which the claimant could perform. Since we find that the evidence indicates that Hassler was wholly disabled, we need not reach this second issue
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-2255
___________
Curtis J. Neeley, Jr., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
NameMedia, Inc.; Network *
Solutions, Inc.; Google, Inc., *
* [UNPUBLISHED]
Appellees. *
___________
Submitted: July 26, 2010
Filed: August 12, 2010
___________
Before COLLOTON, HANSEN and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Curtis Neeley, Jr., filed this interlocutory appeal from the district court’s1 grant
of the defendants’ motions to dismiss and for partial summary judgment. Neeley
brought suit alleging a conspiracy by the defendants to “cybersquat” on two domain
names that he had previously registered. See 15 U.S.C. § 1125(d)(1)(A). Neeley’s
domain registrations expired in 2003, while he was hospitalized, and NameMedia,
Inc., purchased the domain names on the day the registrations expired. He further
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
alleges that the defendants ignored his alleged trademark rights. See 17 U.S.C. § 106.
Neeley seeks injunctive relief and monetary damages. NameMedia has
counterclaimed, alleging that Neeley’s registration of namemedias.com constitutes
cybersquatting. See § 11 U.S.C. § 1125(d).
On March 1, 2010, the district court granted summary judgment for
NameMedia on some, but not all, of Neeley’s claims and dismissed certain claims
against Google, Inc. On May 20, 2010, the court dismissed Neeley’s claims against
Network Solutions, Inc., including his claims for injunctive relief.2 Neeley filed this
appeal from the March 1 and May 20 orders. The defendants filed a motion to dismiss
the appeal, arguing that we lack jurisdiction because the appeal is interlocutory in
nature.
Subject to certain limited exceptions, federal courts of appeals only have
jurisdiction over “final decisions of the district courts of the United States.” 28 U.S.C.
§ 1291. “A final decision generally is one that ‘ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.’” Clos v. Corr. Corp. of
America, 597 F.3d 925, 928 (8th Cir. 2010) (quoting McAdams v. McCord, 533 F.3d
924, 927 (8th Cir. 2008)). One exception to the final judgment rule is set out in 28
U.S.C. § 1292(a)(1), which grants the courts of appeals jurisdiction over interlocutory
appeals from orders refusing to grant an injunction.
The orders from which Neeley appeals are indisputably not final decisions
under § 1291. See Huggins v. FedEx Ground Package Sys., Inc., 566 F.3d 771, 773
(8th Cir. 2009) (“[W]e generally consider only orders that dispose of all claims as
final and appealable under § 1291.”). However, the district court’s denial of Neeley’s
claims for injunctive relief falls within § 1292’s exception to the final judgment rule.
2
In a separate order on the same day, the district court reconsidered parts of its
March 1 order and reinstated some of Neeley’s claims.
-2-
We therefore have jurisdiction over Neeley’s appeal of that portion of the district
court’s order. See Izaak Walton League of Am., Inc. v. Kimbell, 558 F.3d 751, 763
(8th Cir. 2009). To the extent Neeley appeals other portions of the district court’s
orders, we grant the defendants’ motion to dismiss. We review the district court’s
denial of Neeley’s claims for injunctive relief for abuse of discretion. See Coyne's &
Co., Inc. v. Enesco, LLC, 553 F.3d 1128, 1131 (8th Cir. 2009). We agree with the
district court that Neeley has not shown irreparable harm or any likelihood of success
on the merits. See General Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 316
(8th Cir. 2009) (outlining the requirements for injunctive relief). We find no abuse of
discretion and affirm. See 8th Cir. R. 47B.
______________________________
-3-
| {
"pile_set_name": "FreeLaw"
} |
628 S.W.2d 284 (1982)
Darrell Wayne HILL, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR-81-18.
Supreme Court of Arkansas.
February 8, 1982.
Rehearing Denied March 15, 1982.
*286 William H. McKimm, Mount Ida, and Bob Keeter, Mena, for appellant.
Steve Clark, Atty. Gen., by Leslie M. Powell, Asst. Atty. Gen., Little Rock, for appellee.
ADKISSON, Chief Justice.
On July 11, 1980, following a jury trial, appellant, Darrell Wayne Hill, was convicted and sentenced for capital felony murder (death), kidnapping (50 years), and aggravated robbery (50 years) in connection with offenses against Donald Lee Teague; and for attempted capital murder (life), kidnapping (50 years), and aggravated robbery (50 years) in connection with offenses against E. L. Ward. The 50-year sentences were set to run consecutively to the life sentence.
*287 We affirm the conviction and sentence for capital felony murder but set aside the lesser included offenses of kidnapping and aggravated robbery in connection with offenses against Donald Lee Teague. Ark.Stat.Ann. § 41-105(1)(a), (2)(a) (Repl. 1977) prohibits the entry of a judgment of conviction on capital felony murder or attempted capital felony murder and the underlying specified felony or felonies. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981). Generally, this Court will not consider errors raised for the first time on appeal; however, as we stated in Singleton, supra, in death cases we will consider errors argued for the first time on direct appeal where prejudice is conclusively shown by the record and this Court would unquestionably require the trial court to grant relief under Rule 37.
We affirm the convictions and sentences for attempted capital felony murder, kidnapping, and aggravated robbery in connection with offenses against E. L. Ward. The objection that kidnapping and aggravated robbery are offenses included in the offense of attempted capital felony murder was not raised in the lower court. This Court will not consider this issue when raised for the first time on appeal except in death cases. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980). Also see Rowe v. State, Ark., 622 S.W.2d 16 (1982).
I
On February 7, 1980, at approximately 2:00 p. m. appellant drove into E. L. Ward's Service Station in Pencil Bluff, Montgomery County, in a maroon Thunderbird. Ward checked his radiator and filled his car with gas. At this time Donald Teague, a Game and Fish Commission Officer, drove up, also wanting gas, so Ward went inside the garage to clear the pumps. Appellant, who was waiting inside the garage, pulled a gun on Ward and demanded his money. He then ordered Ward to put the money from the cash register into a money bag along with his wallet. At this time Teague entered the garage, and appellant pointed the gun at Teague, told him to put his billfold in the money bag, and told both men that they were going for a ride. Teague was instructed to drive the car and Ward to bring the money bag. While riding, appellant took the money from Ward's wallet and put it in his pocket. Teague was forced to drive to a gravel road off of Highway 88. Appellant then had Teague stop the car, marched the men into some weeds, and forced them to lie down with their hands behind them. Appellant shot Teague several times, killing him. Ward begged him to quit shooting, but appellant then shot at Ward four times, wounding him. Ward dropped into the weeds and did not move or speak until appellant had driven away. He then hollered at Teague, who did not respond, so he crawled back to the road. A pulpwood driver found him there later that afternoon. Ward gave the police a description of his assailant and the car he was driving before he was rushed to a hospital in Hot Springs.
That afternoon at 4:05 p. m. law enforcement offices in the surrounding area began receiving NCIC (National Crime Information Center) radio dispatches regarding these crimes. The Hot Springs Police Department broadcast the description of a white male, 45 to 50 years old, medium build, 160 lbs, rough skinned face, black hair, last seen wearing a gray suit with a blue shirt; vehicle and license described as late model Ford Thunderbird, maroon in color, with dark blue or black lettering on a white license plate. The occupant was described as being armed and extremely dangerous.
At 6:25 p. m. Hot Springs Police Officer Buck observed a vehicle matching this description with a white Oklahoma license plate with dark letters going westbound on Grand in Hot Springs; he radioed in that he was following the car. He stopped the vehicle at about the same time Officer Ward arrived to back him up. Officer Buck used a public address system to advise appellant to step out of the car and keep his hands in plain sight. Officer Buck conducted a frisk search of appellant for weapons. Meanwhile, *288 Officer Ward searched the immediate area of the car where appellant had been sitting, finding a brown paper sack containing a loaded Charter Arms .38 Special and a large quantity of coins under the front seat, driver's side. Appellant was then placed in Officer Buck's vehicle and transported to the police station at approximately 6:45 p. m. Neither of these officers testified during the trial regarding a description of the appellant before he was searched: neither while appellant was inside the car, nor after he was directed to stand behind it.
The evidence as set out above and the positive results of the ballistics tests on the gun found in appellant's car lead us to conclude that appellant's convictions were supported by overwhelming evidence of guilt.
II
Appellant argues that the stop and search of his vehicle by the police was unreasonable and that the pistol seized from under the driver's seat should have been suppressed as the fruit of an illegal search. We disagree. The search of the car was reasonable under the circumstances.[1] Rule 3.1, Ark.Rules Crim.Proc., Ark.Stat.Ann., Vol. 4A (Repl.1977) provides:
Rule 3.1 Stopping and Detention of Person: Time Limit.
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer's presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense. (Emphasis added)
Did the officer reasonably suspect the appellant had committed a felony? Rule 2.1 defines reasonable suspicion as:
[A] suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.
The courts have used various terms to describe how much cause or suspicion is necessary or reasonable in order to stop a person or vehicle. The common thread which runs through the decisions makes it clear that the justification for the investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity. U. S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967).
Here the police had reasonable suspicion upon which to base an investigatory stop of appellant's late model maroon Ford Thunderbird exhibiting an Oklahoma license plate with a white background and dark letters. The car matched the description of the police broadcast. It was not likely that another vehicle of that description was in the MontgomeryGarland County area at that time. Also, the crimes had just recently been committed in the small community of Pencil Bluff in neighboring Montgomery County.
*289 Since the investigatory stop was justified, the police were then allowed to make a limited search for weapons to protect themselves from attack by a suspect they had every reason to believe was armed and very dangerous. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Rule 3.4, Ark.Rules Crim.Proc. specifically authorizes a search for weapons in a situation such as existed here:
If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others. (Emphasis added)
This rule is consistent with the rule set forth in Terry v. Ohio, supra, which emphasizes that the purpose of the protective search is wholly for the safety of the police officer:
We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.
In Terry the Court dealt specifically with a limited protective search of a pedestrian. However, the principles enunciated in that case are wholly consistent with the concept that an automobile's passenger compartment may be the subject of a limited search, in circumstances such as those presented here, for the protection of officers who otherwise might be endangered.[2]See e.g. United States v. Thomas, 314 A.2d 464 (D.C.App.1974).
The search here was completely reasonable when considered under the totality of the existing circumstances. The officers would have taken an unnecessary risk if they had attempted to talk with the appellant before searching him and the accessible areas of his car; removing appellant from his car was a prerequisite to the safety of the officers in making such a search. Although appellant was standing behind the car with his hands on the trunk at the time of the search, the mere fact of appellant's removal from the car did not remove the possible danger to the officers and thereby obviate the necessity for the search. It was certainly reasonable to believe that a suspect believed to have kidnapped, robbed, and executed a Game and Fish Officer, and, simultaneously, attempted to do the same thing to another person was capable of breaking for a weapon inside his car, and probably would have been highly motivated to do so. Here, the limited search of the car was both "justified at its inception" and "reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, supra.
III
Appellant argues that the trial court erred in not granting his motion for a change of venue. Ark.Stat.Ann. § 43-1501 (Repl.1977) provides:
Any criminal cause pending in any circuit court may be removed ... whenever it shall appear ... that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.
*290 To prove prejudice in this case appellant introduced four issues of the local newspaper which had carried stories about the crime. Appellant did not allege or prove any television or radio coverage of the crime. At the special hearing on the change of venue appellant also introduced testimony from six witnesses who testified that they did not think defendant could receive a fair trial in Montgomery County. Three witnesses for the State testified that he could. The trial judge specifically found that none of the defense witnessed showed that they were cognizant of prejudice existing throughout the whole county, but merely portions of the county. In Bailey v. State, 204 Ark. 376, 163 S.W.2d 141 (1942) we stated that the statute which provides methods of proving prejudice, Ark.Stat. Ann. § 43-1502 (Repl.1977), contemplates that the witnesses should have fairly accurate information concerning the state of mind of the inhabitants of the entire county.
A motion for a change of venue is directed to the sound discretion of the trial court and is not subject to reversal except for an abuse of that discretion. Rush v. State, 238 Ark. 149, 379 S.W.2d 29 (1964). Under the facts of this case we cannot say that the trial court abused his discretion.
IV
Appellant argues that the trial court erred in not excusing certain jurors for cause. We recently held in Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980) that in order to preserve this point for appeal appellant must have exhausted his peremptory challenges and must state for the record that there is someone actually sitting on the jury that he would have stricken if he had had another preemptory challenge. Also, it must appear from the record that the trial judge should have excused the juror for cause.
Here, the record reflects that appellant did exhaust his preemptory challenges, and that appellant objected to juror Reed who sat on the jury. However, the trial court was correct in not striking juror Reed for cause. Reed stated on voir dire that she was related to one of the victims in a complicated way, but the record is silent on how close the relationship actually was. Defense counsel's reason for asking the court to strike her for cause was that she had stated that "Anybody that is brought in is under suspicion either if they are innocent or guilty; they are just as much guilty as they are innocent when you pick them up or they wouldn't be picked up in the first place." After this statement, however, the court advised her as to the presumption of innocence. She then stated that she understood the law to be innocent until proven guilty, and said she could follow this law. This juror was sufficiently rehabilitated by the trial court so that we cannot say it was error to not strike her for cause.
Appellant also argues it was error to allow the State to preemptorily challenge two jurors who expressed opposition to the death penalty. These jurors were not excused for cause by the court but were preemptorily stricken by the State. Under such circumstances no explanation is necessary as to why a potential juror is being excused.
V
Appellant argues that the trial court erred in refusing (1) to grant his motion to make the victim, Mr. Ward, talk with defense attorneys, and (2) in refusing to allow defense attorneys to voir dire the sheriff concerning a conversation between the sheriff and a deputy in which the sheriff allegedly stated that "They will probably have me on trial in the morning concerning Mr. Ward."
The trial court refused to order Mr. Ward to discuss the case with defense counsel, but suggested that the prosecuting attorney furnish to defense counsel the substance of Mr. Ward's testimony whereupon the prosecuting attorney delivered to defense counsel a statement Mr. Ward had given to the state police. At trial, Mr. Ward testified that no one had told him not to speak with defense counsel. He explained that he had *291 talked to defense counsel over the phone, but that he wasn't going to tell anyone anything over the phone, and that he wasn't going to talk to defense counsel unless the prosecuting attorney was present.
We cannot say the trial court abused its discretion in declining defense counsel's request to compel Mr. Ward to discuss the case with him or in refusing defense counsel's request to "voir dire" the sheriff regarding his conversation with the deputy. Appellant made no showing as to what information was sought by these motions or that a favorable ruling by the court would materially aid in the preparation of the defense. Nor did appellant show that he was in any way prejudiced by the court's actions in denying the motions.
VI
Appellant argues that reversible error was committed when a state witness referred to appellant's prison records during the guiltinnocence phase of the trial. The State's witness, a psychiatrist with Arkansas State Hospital, testified that his psychiatric diagnosis of appellant was based on personal interviews and various psychological examinations that had been administered to appellant. He was then asked if there were any other tools he used in forming his opinion. He answered, "I did have the results of previous examinations conducted at the Vinita State Hospital. I also had access to his prison records." Defense counsel moved for a mistrial. The trial court then admonished the jury that they must not consider the witness's statement.
This cautionary instruction to the jury made harmless any prejudice that may have occurred and this is especially true in view of the overwhelming evidence of guilt. Declaring a mistrial is an exceptional remedy to be used only where any possible prejudice cannot be removed by an admonition to the jury. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). The trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. Brown v. State, 259 Ark. 464, 534 S.W.2d 207 (1976). Dean v. State, 272 Ark. 448, 615 S.W.2d 354 (1981).
VII
Appellant argues that the photographs of the bullet wound in Teague's head should not have been admitted. We disagree. The picture was not shocking or grotesque and was not likely to unfairly prejudice or inflame the jury. The question of admissibility of photographs lies largely in the sound discretion of the trial court. Tanner v. State, 259 Ark. 243, 532 S.W.2d 168, 169 (1976).
VIII
Appellant argues that the trial court erred in limiting the testimony of Reverend Nixon, a defense witness in the penalty phase of the trial. Reverend Nixon attempted to testify to appellant's charitable acts which appellant had related to him in a two-hour conference before trial. The trial court sustained the State's objection to Reverend Nixon's testimony that appellant wanted to donate a kidney. The court stated at a bench conference that appellant could testify if he so desired. Counsel for appellant was then encouraged to continue examining the witness, but declined to do so.
Ark.Stat.Ann. § 41-1301(4) permits the introduction of evidence as to any mitigating circumstances in a capital murder case regardless of its admissibility under the rules of evidence. However, this statute was not designed to create a vehicle for intentional circumvention of the rules of evidence. The rules of evidence should be followed where possible. In this case the witness was available to testify and there was no reason for the admission of this hearsay testimony.
Appellant also argues that Reverend Nixon should have been allowed to testify as to the religious and ethical considerations applicable to the death penalty. Religious and philosophical approaches to *292 the death penalty are not relevant as mitigating evidence. Franklin v. State, 245 Ga. 141, 263 S.E.2d 666 (1980).
IX
Appellant argues that it was error to allow the State to prove, during the penalty phase, three prior convictions that did not involve threat or violence.
For purposes of sentence enhancement as a habitual offender, the State proved that appellant had been convicted of five prior felonies pursuant to Ark.Stat.Ann. § 41-1001 (Repl.1977):
(2) A defendant who is convicted of a felony and who has previously been convicted of four (4) or more felonies, or who has been found guilty of four (4) or more felonies, may be sentenced to an extended term of imprisonment as follows:...
Of these five prior convictions the State used two robbery convictions to prove aggravating circumstances under Ark.Stat. Ann. § 41-1301 (Repl.1977). This statute provides that if a defendant is found guilty of capital murder, the jury may hear evidence as to aggravating circumstances. Prior offenses for purposes of aggravating circumstances are specifically limited by Ark.Stat.Ann. § 41-1303 (Repl.1977) to offenses involving threat or violence:
Aggravating circumstances.Aggravating circumstances shall be limited to the following:
....
(3) the person previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person;...
Appellant argues that the jury may have improperly considered the convictions introduced for enhancement purposes, some of which did not involve threat or violence, when they were considering aggravating circumstances. Apparently, appellant's position is that there should be two separate hearings on sentencing when capital and non-capital offenses are being tried together. This argument has no merit. Our statutes merely provide for a bifurcated procedure under which sentencing is separate from the determination of guilt or innocence. See State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981). Furthermore, the court clearly instructed the jury that they were to consider only the two robbery convictions as aggravating circumstances. They were also instructed that the other convictions were to be considered only for enhancement purposes on the charges of robbery, kidnapping, and attempted murder.
Appellant further argues that the court erred in allowing the State to submit the conviction for "unauthorized use of a motor vehicle after former conviction of a felony" for purposes of sentence enhancement under Ark.Stat.Ann. § 41-1001. Appellant argues that this conviction should not have been admitted since there was no proof that appellant was represented by an attorney when he was convicted of the "former felony." There is no merit to this argument. The record reflects that appellant was represented by an attorney when he was convicted of "unauthorized use of a motor vehicle after former conviction of a felony." This is the crime that the State used for enhancement purposes. The statute only requires proof of a prior conviction, not the underlying elements of the conviction.
Appellant also argues that the jury may have improperly considered the six findings of guilt that they had just entered as felonies for purposes of enhancement and aggravation during the penalty phase of the trial. We find no merit to this argument. We can assume that the jury understood the court's instructions and understood the verdict forms which refer to conviction for previous felonies.
We have examined all objections pursuant to Rule 11(f), Rules of the Supreme Court, Ark.Stat.Ann., Vol. 3A (Repl.1979) and find no error. Cf. Singleton v. State, supra.
Affirmed in part; reversed in part.
HICKMAN, J., concurs. See Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981).
*293 HOLT and DUDLEY, JJ., concur.
PURTLE, J., concurs in part; dissents in part.
PURTLE, Justice.
I concur in that part of the majority opinion which affirms the sentence of capital felony murder wherein the penalty was set at death by electrocution. Also, I agree that it is plain error for the court to have sentenced the appellant to the lesser included offense of kidnapping and aggravated robbery in connection with the death of Donald Lee Teague.
I dissent from that part of the majority opinion which fails to apply the plain error rule to the lesser included charges in the case involving E. L. Ward. For the Ward episode the court sentenced the appellant for attempted capital murder, kidnapping and aggravated robbery. Although it is a mystery how he is going to serve any of these sentences if he is put to death, I nevertheless would like to see the record kept straight. By failing to recognize plain error at this time we are simply prolonging this case because we know with absolute certainty that the case is going to come back to us under a Rule 37 Petition and in all likelihood another full appeal. If we follow our present opinions, we will at that time set aside these sentences just as we did finally in the case of Rowe v. State, Ark. (1982), 622 S.W.2d 16. We had also corrected the matters in Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); and Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).
Because of the foregoing reasons I would correct the sentence imposed in this case by deleting the convictions of aggravated robbery and kidnapping with regard to the offenses against E. L. Ward as we did with the same charges relating to the offenses against Donald Lee Teague.
DUDLEY, Justice.
I concur in the result and agree with the reasoning expressed on all but one issue the search. On that issue the majority opinion sanctions the search of the passenger compartment and the resulting seizure of evidence on the basis of a search incident to an investigatory stop as distinguished from a search incident to an arrest. That part of the holding disregards the Fourth Amendment because an investigatory stop does not require probable cause. In a footnote the majority opinion states that the search also can be justified as a search incident to arrest. That latter reason is the only basis on which this case can be sustained.
"It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) quoted in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). In this case there are two seizures, seizure of the person and seizure of the evidence. The Supreme Court of the United States has treated the two in differing ways. Seizure of the person involves a higher governmental interest than does seizure of evidence. The former allows an official intrusion for the intense governmental interest of protecting the safety of the arresting officer while the latter allows a lesser intrusion based only upon the governmental interest in preventing the concealment or destruction of evidence. The Court has traditionally limited the reach of any Fourth Amendment exception to that which is necessary to accommodate the identified needs of society. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).
The difference between the two seizures is illustrated by stating the general rule for each. An arrest, or seizure of a person, without a warrant is valid only when the arresting officer has reasonable grounds to believe that the arrested person has committed a felony, Johnson v. State, 249 Ark. 208, 458 S.W.2d 409 (1970); United States *294 v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), while a seizure of evidence without a warrant is, per se, unreasonable. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
The Supreme Court of the United States has recognized four exceptions, which are material to this case, where warrantless seizures of the person can be based on less than probable cause and still comply with the reasonableness standard of the Fourth Amendment.
First, in Terry v. Ohio, supra, a limited stop and frisk was approved. Second, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) a stop was approved to investigate an informant's tip that the person stopped was armed and carrying narcotics. Third, in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Court held that border patrol officers may make investigatory stops of vehicles near the country's borders if there are articulable facts that reasonably warrant a suspicion that the vehicle contains illegal aliens. Fourth, in United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), the Court held that police could make an investigatory stop where there is an objective manifestation that the person is, or is about to be, engaged in criminal activity. Again, the investigatory stop does not have to be based on probable cause, it can be based upon the lesser standard of reasonable suspicion. Not one of these cases discussing a warrantless arrest upon only a reasonable suspicion intimates that an accompanying search and seizure of evidence can go beyond protection of the police officer's safety.
A seizure of evidence without a warrant is, per se, unreasonable. The Supreme Court of the United States has set forth only one narrowly drawn exception where a seizure of evidence can be based on less than probable cause. It is the protective search doctrine set out in Terry v. Ohio, supra, and Adams v. Williams, supra. It authorizes a search of the clothing and that area which is immediately reachable by the arrested person. The basis of this exception is that the arresting officer has every right to assure himself that the person does not have within reach a weapon, although the weapon may be evidence. The rationale of this exception is applicable to an investigatory stop, an arrest, a frisk, or any other seizure. It was applicable to the case before us and the frisk of the appellant was obviously valid. If a gun had been discovered during the frisk, it would have been admissible evidence. However, the appellant had been behind his car, had already been frisked and was about to be placed in the arresting officer's car when a second officer conducted a search of the interior of appellant's car. The search of the interior of the car was not necessary for the officer's protection. It was necessary only to prevent the concealment or destruction of evidence. See A.R.Crim.P. 3.4, Vol. 4A (Repl.1977).
All cases approving a warrantless search to prevent the concealment of evidence are synthesized with probable cause. Until probable cause is shown the warrantless search is narrowly limited to the governmental interest of protecting the police officer. After the probable cause standard is met the Court has not so narrowly defined the governmental interest and, as a result, the sanctioned area of the search is not as narrow. The Court has stated that a warrantless search of an automobile can be valid where the police have probable cause to believe the vehicle contains evidence of a crime. The governmental interest causing the Court to authorize this exception is the mobility of an automobile and the concealment of evidence. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Arkansas v. Sanders, supra; Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980).
There is also the "automobile exception" where the scope of a search incident to a lawful custodial arrest, as opposed to investigatory stop, extends over the entire passenger compartment of the automobile in *295 which the person arrested was riding. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Generally, however, the scope of a search incident to a lawful arrest is governed by the principles set forth in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). These exceptions, based on probable cause, sanction a limited search to prevent the concealment or the destruction of evidence. While this area of search is limited, it is broader than the very narrow area of protective search based only upon reasonable suspicion. The reason is that the higher standard of probable cause allows the sanctioning of a greater governmental interest without violating the reasonableness clause of the Fourth Amendment.
The exceptions announced in Carroll, Arkansas, Colorado, New York and Chimel have two governmental interest bases; first, the need to protect the officer and, second, the need to prevent the concealment or destruction of evidence. The first basis can be authorized by reasonable suspicion, while the second is authorized only when there is probable cause either for the arrest or for believing the vehicle contained evidence of a crime. Yet, the majority opinion sanctions a search to prevent the concealment of evidence, not on arrest and probable cause, but on an investigatory stop and reasonable suspicion. That result is based upon the fallacious assumption that a valid exception to the Fourth Amendment for the seizure of a person on less than probable cause creates a second exception of equal standing for the seizure of evidence. Such a double exception swallows the general rule that Fourth Amendment seizures of evidence are reasonable only if based on probable cause.
In the case before us the police had probable cause to arrest appellant, as opposed to stop to investigate, and that is the only basis upon which the search of the passenger compartment of the automobile can be sustained. I would affirm on that basis. See New York v. Belton, supra.
I am authorized to state that Mr. Justice HOLT joins in this opinion.
NOTES
[1] Officer Ward testified at the hearing on the motion to suppress that, as soon as appellant got out of the car, both he and Officer Buck immediately recognized him as fitting the description of the suspect as broadcast over the police radio. The search, therefore, was justified as being incident to an arrest and permissible under New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).
[2] In instances where a person is arrested in an automobile, New York v. Belton, supra, standardized the concept of what is the immediate surrounding area for purposes of a protective search to include the entire passenger compartment of the automobile in which the person arrested was located. Since the purpose of the protective search is for the safety of the police officer, the rationale of Belton must be equally applicable to searches of automobiles after investigatory stops even though, as in Belton, the suspect is no longer inside the automobile.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-1728
____________
UNITED STATES OF AMERICA
v.
MICHAEL YOUNG,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-14-cr-00183-002)
District Judge: Honorable Michael M. Baylson
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 11, 2017
Before: HARDIMAN, SHWARTZ, and ROTH, Circuit Judges.
(Filed: December 4, 2017)
____________
OPINION*
____________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.
Michael Young appeals his judgment of conviction under 18 U.S.C. § 924(c) for
his participation in the armed robbery of a Philadelphia convenience store. We will
affirm.
I1
In May 2015, Young was simultaneously convicted of Hobbs Act robbery, 18
U.S.C. § 1951(a), and using or carrying a firearm during a crime of violence, 18 U.S.C.
§ 924(c)(1)(A). In this appeal, Young claims his Hobbs Act robbery conviction is not a
crime of violence for purposes of § 924(c).
In United States v. Robinson, we recently held that a Hobbs Act robbery
conviction qualifies as a crime of violence under § 924(c) when the convictions are
contemporaneous. See 844 F.3d 137, 143–44 (3d Cir. 2016). This is so because, in those
circumstances, the jury necessarily finds that the defendant used a firearm while
committing Hobbs Act robbery. Id. at 144.
Just like Robinson, Young was found guilty of violating both the Hobbs Act and
§ 924(c). Because these charges were tried simultaneously before one jury, our inquiry
“is not ‘is Hobbs Act robbery a crime of violence?’ but rather ‘is Hobbs Act robbery
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. Because Young raises this issue for the first time on appeal, we
review for plain error. See United States v. Robinson, 844 F.3d 137, 140 (3d Cir. 2016).
2
committed while [using or carrying] a firearm a crime of violence?’” Id. We held in
Robinson that “[t]he answer to this question must be yes.” Id. The fact that Young used a
firearm instead of brandishing it (as Robinson did) does nothing to change this analysis.2
Accordingly, the District Court committed no error—plain or otherwise—in classifying
Young’s Hobbs Act robbery as a crime of violence. For that reason, we will affirm
Young’s judgment of conviction.
2
While the defendant in Robinson was convicted of brandishing a firearm under
§ 924(c)(1)(A)(ii), the reasoning of that case extends to a § 924(c)(1)(A)(i) conviction
where a jury finds that the defendant used or carried a gun. See 844 F.3d at 143–44.
3
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________
No. 98-60275
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SIMEON COLEMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
(3:97-CV-85-D)
September 14, 1999
Before DUHÉ, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Simeon Coleman, federal prisoner #24164-044, pled guilty to possession of crack cocaine
with intent to distribute, see 21 U.S.C. § 841, and, over his objections, was sentenced by the district
court. Coleman was represented before the district court by retained counsel, Laurel G. Weir.
Neither Coleman, nor Weir on his behalf, filed a timely notice of appeal.
Subsequently, Coleman filed a motion to vacate, correct, or set aside his sentence under 28
U.S.C. § 2255, alleging, inter alia, ineffective assistance of counsel based on Weir’s failure to file an
appeal of Coleman’s sentence. The district court held an evidentiary hearing on that issue. After
hearing testimony from both Coleman and Weir, the district court denied Coleman’s motion.
Coleman appealed the district court’s denial of his motion under 28 U.S.C. § 2255 and received a
certificate of appealability limited to the issue of his ineffective assistance of counsel claim.
*
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.
To show ineffective assistance of counsel, Coleman must show that Weir’s performance was
both deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052,
2067, 80 L. Ed. 2d 674 (1984). To demonstrate that Weir’s performance was deficient, Coleman
must show that Weir’s actions “fell below an objective standard of reasonableness.” Id. at 688, 104
S. Ct. at 2064. To show prejudice, Coleman must show that his reliance on Weir’s unprofessional
errors resulted in the denial of his right to appeal. See United States v. Gipson, 985 F.2d 212, 215
(5th Cir. 1993).
It is not clear from the record whether the district court found that Weir had fulfilled his
professional obligations or that Weir’s actions met an objective standard of reasonableness. At the
end of the evidentiary hearing, the district court only found that Coleman “never engaged or
employed Mr. Weir to appeal his sentence,” and that “[t]here was never an agreement or payment
or any contractual relationship entered into by [sic] and between Mr. Coleman and Mr. Weir to
perfect this appeal.” Even though Coleman never retained Weir to appeal his sentence, Weir
nonetheless must fulfill his professional obligations and act in an objectively reasonable manner. See,
e.g., Gipson, 985 F.2d at 215-16 (finding ineffective assistance because the attorney never informed
the defendant of the time limits on his right to appeal, even though the defendant asked the attorney
how much the attorney would charge to pursue the appeal and informed the attorney of his efforts
to raise this money).
Accordingly, we VACATE the judgment of the district court denying Coleman’s 28 U.S.C.
§ 2255 motion, and REMAND for further findings consistent with this opinion.
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580 F.2d 1046
U. S.v.Lepore
No. 77-1488, 77-1498
United States Court of Appeals, Second Circuit
5/11/78
1
S.D.N.Y.
2
AFFIRMED*
*
Oral opinion delivered in open court in the belief that no jurisprudential purpose would be served by a written opinion. An oral opinion or a summary order is not citable as precedent. Local Rule Sec. 0.23
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2 F.3d 1148
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.Felicita FERRER-CRUZ, Plaintiff, Appellant,v.SECRETARY of Health and Human Services, Defendant, Appellee.
No. 92-2330.
United States Court of Appeals,First Circuit.
August 20, 1993
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez Garcia, Assistant United States Attorney, and Nancy B. Salafia, Assistant Regional Counsel, Department of Health and Human Services, on brief for appellee.
D.Puerto Rico.
AFFIRMED.
Before Torruella, Cyr and Boudin, Circuit Judges.
Per Curiam.
1
We have carefully reviewed the record and conclude that substantial evidence supports the Secretary's determination that claimant Felicita Ferrer Cruz retained the ability to perform a particular past job and was not entitled to social security disability benefits. We have considered all of claimant's arguments and, finding them without merit, affirm the judgment of the district court essentially on the basis of the magistrate-judge's report adopted by the district court. We add only these comments.
2
While we agree with claimant that the "B" criteria of the Appeals Council's psychiatric review technique form show a severe mental impairment, the claimant failed to meet her relatively minimal initial burden to show both the mental demands of her former work and how those work duties were compromised by her mental condition. Santiago v. Secretary of Health & Human Services. 944 F.2d 1, 6-7 (1st Cir. 1991) ("[T]he kind of foundation that the claimant must lay requires no more than putting into issue functional loss that precludes performance of pertinent prior work activities."). Based upon claimant's description of her previous work as secretary/receptionist at a photo studio, it is not obvious how her mental condition, a generalized anxiety disorder, precluded her prior work. In addition, we note that although claimant filed an application alleging disability due to, inter alia, "nerves", there is no evidence that claimant was ever treated or followed for any mental or emotional condition. Even if we were to conclude that claimant had sufficiently raised the issue of her inability to perform the actual mental demands of her former job, where no treatment whatsoever was obtained, the ALJ was entitled to decide that claimant's relatively mild mental condition only minimally affected her ability to perform her self-described work duties. See, e.g., Irlanda Ortiz v. Secretary of Health & Human Services, 955 F.2d 765, 769-70 (1st Cir. 1991); Perez Torres v. Secretary of Health & Human Services, 890 F.2d 1251, 1255 (1st Cir. 1989). In sum, substantial evidence supports the Secretary's determination that claimant failed to carry her burden of showing that her impairments prevented her return to her past work.
3
Affirmed.
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645 F.2d 1014
207 U.S.App.D.C. 89
UNITED STATES of Americav.Calvin Linwood GIRST, Appellant.
No. 77-1604.
United States Court of Appeals,District of Columbia Circuit.
Dec. 26, 1979.
On Petition for Rehearing (D.C. Criminal 77-00161).
Opinion for the Court filed by Circuit Judge MacKINNON.
Before BAZELON, Senior Circuit Judge, and McGOWAN and MacKINNON, Circuit Judges.
ORDER
PER CURIAM.
1
Upon consideration of appellee's petition for rehearing, of the response thereto, and of the various supplemental memoranda filed by both parties, it is
2
ORDERED, by the Court, that appellee's petition for rehearing is granted and the judgment of, and opinion for, this Court entered herein on March 28, 1979, are vacated; and it is
3
FURTHER ORDERED, by the Court, that the Clerk shall enter forthwith a new judgment in accordance with the opinion for the Court on rehearing, filed herein this date.
MacKINNON, Circuit Judge:
4
Opinion on Rehearing. Our unanimous opinion in this case, filed on March 28, 1979, involved concurrent sentences of five years and two years respectively imposed under 18 U.S.C. § 922(g)(1), § 924(a) and 18 U.S.C. App. § 1202(a)(1) for substantially the same single offense. We held that the rule of lenity and the statutory arrangement required that the judgment of conviction resting on § 922(g)(1), § 924(a), should be vacated because it called for more severe punishment than § 1202(a)(1) permitted for the identical offense.
5
The United States Attorney thereafter filed a Petition for Rehearing because of the pendency in the Supreme Court of U. S. v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 from the Seventh Circuit. We accordingly held action on the petition in abeyance awaiting the Supreme Court decision. U. S. v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755, 1979 was decided shortly after we received subject petition and we thereafter received supplemental memoranda from the parties that address the petition for rehearing. They analyze the decision in Batchelder and suggest the effect of that decision on the disposition we must make of this case. We begin by granting the Petition for Rehearing and then consider the effect of Batchelder upon our disposition of Girst.
6
In Batchelder, the accused, a previously convicted felon, was convicted on a single count charging a violation of 18 U.S.C. § 922(h) for "receiving a firearm that had travelled in interstate commerce" and was sentenced under § 924(a) to five years imprisonment. On appeal the Court of Appeals for the Seventh Circuit found an ambiguity between the statute authorizing that sentence and § 1202(a) which provided for a maximum term of two years for substantially identical offenses. The Seventh Circuit then proceeded to direct the replacement of the five year sentence with a two year sentence. 581 F.2d at 636. On review in the Supreme Court, a unanimous opinion failed to find any ambiguity in the two statutes, or any constitutional issue, and upheld the validity of all the statutes involved and ordered reinstatement of the five year sentence.
7
In reaching its ultimate conclusion in Batchelder the Supreme Court held that a defendant convicted of a violation of § 922(h) is properly sentenced under § 924(a) even though he also violated § 1202(a) but was not charged thereunder; that the statutes were not ambiguous, there was no implied repeal and no alternative interpretation was fairly presented; that the substantive statutes operate independently of each other; that no rule of law requires that a defendant convicted under § 922(h) cannot be sentenced to a term in excess of the maximum term provided by § 1202(a); that the statutes unambiguously specify the offenses and the penalties and are not void for vagueness; that the statutes do not impermissibly delegate legislative responsibility to fix criminal penalties to the Executive Branch; and that the prosecutorial discretion which the statutes place in the United States Attorney is not sufficiently unfettered to violate the Equal Protection or Due Process Clauses because such choices generally rest in prosecutorial discretion and a defendant has no constitutional right to choose between which of two applicable statutes he will be prosecuted or sentenced.
8
In Batchelder the Supreme Court analyzed the two statutes:
9
While §§ 922 and 1202(a) both prohibit convicted felons such as petitioner from receiving firearms, ( ) each Title unambiguously specifies the penalties available to enforce its substantive proscriptions. Section 924(a) applies without exception to "(w)hoever violates any provision" of Title IV, and § 922(h) is patently such a provision. See 18 U.S.C., ch. 44; 82 Stat. 226, 234; S.Rep.No.1097, 90th Cong., 2d Sess., 20-25, 117 (1968). Similarly, because Title VII's substantive prohibitions and penalties are both enumerated in § 1202, its penalty scheme encompasses only criminal prosecutions brought under that provision. On their face, these statutes thus establish that § 924(a) alone delimits the appropriate punishment for violations of § 922(h).
10
That Congress intended to enact two independent gun control statutes, each fully enforceable on its own terms, is confirmed by the legislative history of the Omnibus Act. Section 922(h) derived from § 2(f) of the Federal Firearms Act of 1938, 52 Stat. 1251, and § 5 of that Act authorized the same maximum prison term as § 924(a). 52 Stat. 1252. Title IV of the Omnibus Act merely recodified with some modification this "carefully constructed package of gun control legislation," which had been in existence for many years. Scarborough v. United States, 431 U.S. 563, 570 (97 S.Ct. 1963, 1966, 52 L.Ed.2d 582) (1977); see United States v. Bass, 404 U.S., at 343 n. 10 (92 S.Ct. 515, at 520 n. 10); 15 U.S.C. §§ 902, 905 (1964 ed.).
11
442 U.S. 119, 99 S.Ct. 2201; Footnote omitted.
12
The Court also pointed to the wide range of prosecutorial discretion:
13
This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants ... (Cases omitted). Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion ... (Cases omitted).
14
More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact standing alone does not give rise to a violation of the Equal Protection or Due Process Clauses. Cf. Rosenberg v. United States, 346 U.S., at 294 (73 S.Ct. 1152, at 1163) (Clark, J., concurring); Oyler v. Boles, 368 U.S., at 456 (82 S.Ct. 501, at 505). Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced. See U.S.Const., Art. II, §§ 2, 3; 28 U.S.C. §§ 515, 516; United States v. Nixon, 418 U.S., at 694 (94 S.Ct. 3090, at 3100).
15
442 U.S. 125, 99 S.Ct. 2204-05.
16
It is obvious from the above extracts from Batchelder that such decision requires a modification of our prior opinion. Since the Supreme Court has held that there is no ambiguity in the two statutes and no implied repeal of § 922(h), § 924 by § 1202(a)(1), and that the Government may prosecute under either statute, we cannot strike down the judgment of conviction based on § 922(g)(1), § 924 because a harsher sentence was authorized.
17
On the other hand Batchelder was not charged with, and convicted on, two counts, as here. He was only charged with one count, that arising under 18 U.S.C. § 922(h),1 prohibiting certain persons from receiving any firearm which has been transported in interstate commerce.
18
Girst is thus not a carbon copy of Batchelder since Girst was charged with violations of both § 922(g)(1) and § 1202(a) and was convicted and sentenced on both counts which involved offenses embodying essentially the same elements. Our original opinion, supra, applied the rule of lenity and vacated the judgment on count one based on § 922(g)(1), § 924(a) because the statute there permitted a more severe sentence than § 1202. This left standing among Counts One and Two only the judgment on Count Two based on § 1202(a) with its lesser sentence of two years. As to these two statutes Batchelder ruled with respect to the offenses arising under § 922(h) and § 1202(a)(1),2 which overlap each other in much the same manner as the offenses here involving § 922(g)3 and § 1202(a)(1), that "the Government may prosecute under either (criminal statute) ... (the choice) generally rest(s) in the prosecutor's discretion...." U. S. v. Batchelder, supra. Batchelder thus prohibits us from applying the rule of lenity to vacate the judgment of conviction carrying the five year sentence under § 924. Accordingly, to the extent that our earlier decision of 1979 may have partially vacated the judgment, we reinstate the judgment of the trial court on Count One involving the conviction and sentence under § 922(g)(1), § 924(a).
19
However, since Batchelder further states that the Government may prosecute under "either" § 922 or § 1202, that indicates that convictions under both sentences cannot stand. Thus one of the convictions under § 924 or § 1202 must be vacated. The United States Attorney had the prosecutional discretion to choose to proceed under either statute but he did not exercise such election. Instead he proceeded and obtained convictions under both statutes. We therefore follow the procedure outlined in U. S. v. Dorsey, 591 F.2d 922 (D.C.Cir.1978) and U. S. v. Shepard, 515 F.2d 1324, 1336 (D.C.Cir.1975), and remand Counts One and Two to the District Court with instructions "to vacate in its discretion one or the other" of the two gun related federal convictions. 591 F.2d at 937. In exercising its discretion to vacate the judgment of conviction on one of those counts, an Eighth Circuit opinion by Judge Stephenson, in a substantially similar case held that the court is not required to vacate the judgment carrying the most severe punishment. 591 F.2d 1076 (8th Cir. 1979). Which conviction will be vacated is within the discretion of the trial court.
20
Girst also attacks his conviction on Count Three which charges a violation of D.C.Code § 22-3204. We fully discussed and disposed of his contentions with respect to this count in part III of our opinion of March 28, 1979 in this case which appears above. We affirm the judgment of conviction on Count Three for the reasons set forth in part III and incorporate said part III herein by reference.
21
The judgments on Counts One and Two are remanded to the district court for disposition in accordance with the foregoing opinion.
22
Judgment accordingly.
1
18 U.S.C. § 922(h) provides:
(h) It shall be unlawful for any person
(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201(v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954); or
(4) who has been adjudicated as a mental defective or who has been committed to any mental institution;
to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
2
18 U.S.C. Appendix 1202(a)(1) provides:
(a) Any person who
(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony ... and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.
3
18 U.S.C. § 922(g) provides:
(g) It shall be unlawful for any person
(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201(v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954); or
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
to ship or transport any firearm or ammunition in interstate or foreign commerce.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-66,553-13
IN RE FRANKLIN CARL JONES, Relator
ON APPLICATION FOR A WRIT OF MANDAMUS
IN THE 185TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
ORDER
Relator has filed a motion for leave to file an application for a writ of mandamus pursuant
to the original jurisdiction of this Court. In it, Relator contends that on March 9, 2015, he filed an
application for a writ of habeas corpus in the 185th District Court of Harris County and his
application has not been timely forwarded to this Court as mandated by Texas Rule of Appellate
Procedure 73.4(b)(5).
Respondent, the District Clerk of Harris County, is ordered to file a response, which may be
made by submitting the record on such habeas corpus application, submitting proof of the date of
receipt by the State showing 180 days has not yet elapsed, or stating that Relator has not filed an
application for a writ of habeas corpus in Harris County. This application for leave to file a writ of
2
mandamus shall be held in abeyance until Respondent has submitted the appropriate response. Such
response shall be submitted within 30 days of the date of this order.
Filed: February 17, 2016
Do not publish
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349 Mass. 448 (1965)
208 N.E.2d 807
MASSACHUSETTS TURNPIKE AUTHORITY
vs.
PERINI CORPORATION & others.[1]
Supreme Judicial Court of Massachusetts, Suffolk.
May 5, 1965.
June 28, 1965.
Present: WILKINS, C.J., WHITTEMORE, CUTTER, KIRK, & REARDON, JJ.
Walter Powers (Daniel Needham & Walter White with him) for the plaintiff.
Philander S. Ratzkoff (Roger B. Coulter with him) for the defendants.
CUTTER, J.
The authority's bill in equity seeks declaratory relief against Perini Corporation (Perini) and also against an insurance company (the insurer, see fn. 1) which had issued to Perini a comprehensive liability insurance policy. The policy named Perini as insured and the authority and the trustee (fn. 1) as additional insureds. A judge of the Superior Court, without making any decision, reserved the case for the determination of this court upon the pleadings and a case stated.
In 1959, the authority (acting under St. 1958, c. 598) made a contract with Perini (drafted by the authority) to construct an additional traffic tunnel (now known as the Lieutenant Callahan Tunnel) under Boston harbor, to modernize the existing Sumner Tunnel, and to combine the two tunnels as a single project. The contract (art. 26) provided that Perini "shall indemnify and save harmless the [a]uthority and ... its officers, ... and employees against all suits, claims or liability of every name and nature, for or on account of any injuries to persons or damage to property arising out of or in consequence of the acts of ... [Perini] in the performance of the work covered by the contract and/or [sic] failure to comply with ... [its] terms... whether by himself or his employees or sub-contractors, but only in respect of such injuries or damages sustained ... prior to the completion and acceptance of the work ... [emphasis supplied in the original *450 exhibit]." Certain other relevant contract provisions are summarized in the margin.[2]
The insurer issued the comprehensive liability insurance policy mentioned above. As amended, the relevant coverage (insuring agreement 1, coverage D, property damage liability) read, "To pay on behalf of the [i]nsured all sums which the [i]nsured shall become legally obligated to pay as damages for: (a) [p]hysical injury to or destruction of tangible property, or (b) [l]oss of use of such tangible property, provided the physical injury thereto was caused by accident."[3] The policy also required the insurer to "defend any suit ... against the insured alleging such ... injury or destruction and seeking damages which are payable under ... this policy, even if such suit is groundless...."
The authority "acquired by formal eminent domain takings all property and rights deemed by it essential for the construction," thus making available to Perini "those areas and rights deemed essential for the prosecution of the work *451 under the contract. In respect of each case or claim which is the subject matter of controversy ... such areas and rights had been so made available to ... [Perini] prior to the occurrence of any alleged damage to the affected property in each such case or claim. The work ... at the time of the bringing of this bill... had not been completed, nor accepted by the Authority."
During the performance of the contract, "property of landowners was physically injured or destroyed, and in some cases rights of access were impaired. As a result of the takings made and of the alleged injury to or destruction of such property or of impairment of access to such property ... forty-four owners initiated petitions against the [a]uthority" under G.L.c. 79. See St. 1958, c. 598, § 15. The authority in each instance has called on Perini and the insurer to defend the proceeding and to save the authority harmless against the claim. Because Perini and the insurer have declined to defend these cases, the authority has paid (1) the legal expenses in connection with (a) the claims which have been tried and (b) the preparation of other cases, and (2) all judgments against it.
The authority contends (1) that Perini and the insurer "are bound ... jointly and severally, to indemnify it for all judgments ... for damages, other than for takings by eminent domain, caused to property in the course of the construction," and (2) that the insurer "is bound to defend against all petitions heretofore brought against the [a]uthority for [such] damages." Perini and the insurer contend (1) that the contractor has no obligation under the contract with the authority either to defend petitions brought against the authority under G.L.c. 79,[4] or to indemnify *452 the authority against any judgments recovered upon such petitions, and (2) that the insurer has no such obligation under its policy naming the authority as an additional insured.
1. Contract and insurance policy provisions much like those here discussed have been the subject of earlier decisions. Like other contracts of indemnity, such provisions are "to be ... reasonably construed" in accordance with the parties' intention, with reference to the parties' situation when the provisions were negotiated, and in a manner "to effectuate the purpose sought to be accomplished." See New York, N.H. & H.R.R. v. Walworth Co. 340 Mass. 1, 3.
Bryne v. Gloucester, 297 Mass. 156, dealt with a situation in many respects similar to that now before us. A contractor agreed with a city to construct a tunnel under certain buildings and (p. 157) to indemnify it against claims "by reason of any act, omission or neglect of the ... [c]ontractor ... in carrying on the work." The contractor performed the work with extreme care and with no negligence. Any damage to the buildings was caused by necessary blasting operations and was inevitable. The city, when it acquired an easement under the buildings, had agreed to restore the buildings in the event of inevitable damage. The trial judge ruled (p. 158) that the word "act" in the contract meant only improper or negligent acts, and that the contractor's obligation to indemnify did not extend to loss which was inevitable by reason of the construction. This court took essentially the same view. It construed the contract "with reference to the situation of the parties when they made it and to the objects sought *453 to be accomplished." It noted (p. 159) that the parties to the construction contract "must have expected that the city would acquire the necessary rights" in private land, and pointed out that, if the city had acquired the easement by eminent domain, it would have acquired "the right to do all things necessary to complete the work, including the right to inflict `inevitable' damage," with the consequence that the landowners would have acquired, immediately upon the taking "valid claims against the city for all damages, including such [inevitable] injury to the buildings." The court declined (pp. 160-161) to hold that the building owners' claims for inevitable damages arose by reason of any act, omission, or neglect of the contractor as those words were used in the indemnity provision. Cf. Murray Realty, Inc. v. Berke Moore Co. Inc. 342 Mass. 689, 692-693 (where the damage was not found to be necessary or inevitable).
In Holbrook v. Massachusetts Turnpike Authy. 338 Mass. 218, it was held that an owner, part of whose land had been taken, might recover under St. 1952, c. 354, § 15, and G.L.c. 79, §§ 10 (see fn. 4) and 12, for "special and peculiar" injury subsequently caused to the remainder of his land as a necessary consequence (p. 224) of construction work. The court pointed out (p. 222) that the Legislature may permit recovery of damages beyond what "the landowner ... [was] entitled to receive as a matter of constitutional right," and said (p. 223) that the court then was "not dealing with a statute [the 1952 statute] which imposes liability only where a taking is involved." At p. 224, it was said, "If, due to the performance of the work as authorized, the [then] petitioner's property suffered injuries ... such damage could be found to have occurred while `carrying out the powers' or `by the exercise of any of the powers' conferred by [St. 1952] c. 354, and to be a necessary consequence of doing the authorized work at that time. In this respect it is immaterial that the work was performed by a contractor." The court stated (pp. 224-226) that there could not be recovery under St. 1952, c. 354, § 15 (and G.L.c. 79), "for damages due to negligence or to other *454 unauthorized acts or omissions in carrying out work under" the 1952 statute. The relevant provisions of § 15 of the 1958 statute (fn. 4) appear identical with those of § 15 of the 1952 statute considered in the Holbrook case.
These decisions largely control the present case. The contract between Perini and the authority, and the policy issued by the insurer, each must be given a sensible, practical construction in the light of these decisions. See United Shoe Mach. Corp. v. Gale Shoe Mfg. Co. 314 Mass. 142, 148; Connecticut Indem. Co. v. Lee, 74 F. Supp. 353, 359 (D. Mass.) affd. 168 F.2d 420 (1st Cir.).
2. We hold, following the Bryne case, that the parties intended by art. 26 (and also the somewhat related provisions of art. 25, fn. 2) of the contract between Perini and the authority to require Perini to indemnify the authority only from claims for Perini's acts and omissions causing damage other than damage attributable to a taking or "inevitable" in carrying out the work. In essence, this means that Perini will be liable only if its acts or omissions were tortious by reason of negligence or strict liability, maintaining a nuisance, participating in wrongful conduct, taking unauthorized action,[5] or otherwise. The Holbrook case, 338 Mass. 218, 224, as has been said, decides that damages for tortious action may not be recovered in a proceeding under G.L.c. 79. Because damage for which there may be recovery under c. 79 is either attributable to a taking or inevitable in carrying out the work, Perini would have no obligation to hold the authority harmless against claims thus enforceable under c. 79.
Although art. 26 is broadly expressed, the circumstances make plain the intention of the parties. If any reasonable doubt existed concerning the parties' intention, the contract should be construed against the authority which drafted it. See Bowser v. Chalifour, 334 Mass. 348, 352.
*455 We construe Perini's liability to indemnify the authority as excluding not only all damages for direct takings by eminent domain, but also, so far as such damages may be obtained under G.L.c. 79, (a) all damages, attributable or related to a taking, for injury to the remainder of a parcel of land, a part of which has been taken; (b) all "special and peculiar" damages (by reason of deprivation of access or otherwise) "to a parcel of land injured when no part of it has been taken" (see G.L.c. 79, § 12, as amended through St. 1959, c. 626, § 4; see also Webster Thomas Co. v. Commonwealth, 336 Mass. 130, 138-139); and (c) damages from injuries which are "inevitable" in carrying out a public project. All such injuries arise, not from any act of Perini (see the Bryne case, 297 Mass. 156, 160-161), but from the sovereign act of appropriation of property by eminent domain. Compensation is paid for them (either as a matter of constitutional necessity or by legislative command) because of the exercise of that right. If the parties had intended substantially to extend beyond usual forms of tort liability the natural scope of Perini's obligation to indemnify the authority, the parties would have been unlikely to leave that extension to implication. See Chas. T. Main, Inc. v. Massachusetts Turnpike Authy. 347 Mass. 154, 162. See also Pennsylvania Turnpike Commn. v. United States Fid. & Guar. Co. 343 Pa. 543, 546-548.
3. We treat the policy as furnished in compliance with the contract requirements of art. 19, B 1 (see fn. 2). There would be little occasion for Perini (the principal insured under this policy) to insure itself, except with respect to its own tort liability. As to no other matters is it (Perini) obliged to indemnify the authority. The insurer does not argue that it is not obliged to defend and indemnify Perini and the other insureds with respect to tort claims against each of them (and appears to be doing so with respect to pending tort actions). It is difficult to see any remaining purpose in the requirement of art. 19 that Perini furnish property damage liability insurance except to support Perini's indemnity obligation under art. 26, which, we have *456 held, does not extend to claims under G.L.c. 79. Such policies most frequently protect against tort claims, and it would take clear language to warrant interpreting such a policy as covering, or as procured to cover, the direct and indirect effects of a sovereign act of appropriation.
Of an automobile bodily injury policy covering "injury accidentally sustained," it was said in Miller v. United States Fid. & Guar. Co. 291 Mass. 445, 448, "It is common knowledge that protection against liability on the ground of negligence is the principal purpose of such policies." This is also true of the type of contractor's property damage insurance here involved, although, of course, such policies and the term "accident" (and also the term "occurrence" here substituted by endorsement, see fn. 3) will not be given "any narrow construction ... which will limit or defeat any coverage fairly intended to be given by" such a policy (emphasis supplied). See Vappi v. Aetna Cas. & Sur. Co. 348 Mass. 427, 432. See also Appleman, Insurance Law and Practice, § 4497; Couch, Insurance 2d, §§ 1.32, 44:269, 44:337-44:345.
We do not see in the substitution of the word "occurrence" for "accident" in various parts of the policy (fn. 3), or in any other provision of the policy, evidence of an intention to require the insurer to indemnify either Perini or the additional insureds, or to defend them, against claims for injuries for which recovery may be had under G.L.c. 79. One purpose of the substitution of the word "occurrence" for "accident" may have been to include in the coverage a suitable provision for indemnity against injuries (see e.g. American Cas. Co. v. Minnesota Farm Bur. Serv. 270 F.2d 686, 690-692 [8th Cir.]) gradually occurring (as contrasted with an injury arising from a sudden event, an aspect of injuries frequently, but not always, associated with the word "accident"). See Bean, The Accident Versus the Occurrence Concept, 1959 Ins. L.J. 550, 553; Leslie, Automobile and General Liability Insurance, Am. Bar Assn. Section of Insurance, Negligence, and Compensation Law, 1962 Proceedings, 70, 84-85. See also *457 United Pac. Ins. Co. v. Schaecher, 167 F. Supp. 506, 508-509 (N.D. Cal.). The use of the term "occurrence" also may be designed to expand the coverage so that it will be more nearly as extensive as negligence and possibly also other forms of tort liability.[6] We hold that the policy does not cover and was not intended to cover, any liability enforceable under G.L.c. 79. For discussion of an issue somewhat similar to that before us, see Lumbermens Mut. Cas. Co. v. C.Y. Thomason Co. 87 F. Supp. 889, 892-893 (W.D.S.C.), affd. 183 F.2d 729, 732-733 (4th Cir.). See also Tieton v. General Ins. Co. 61 Wash.2d 716, 721-724. There is no such ambiguity about the policy, read in the light of the attendant circumstances, as to require its construction most strongly against the insurer. Cf. the Vappi case, 348 Mass. 427, 431.
The naming of additional insureds does not extend the nature of the substantive coverage originally given by the policy but merely gives to other persons the same protection afforded to the principal insured. See Sonoco Products Co. v. Travelers Indem. Co. 315 F.2d 126, 128 (10th Cir.); Refined Syrups and Sugars, Inc. v. Travelers Ins. Co. 136 F. Supp. 907, 910-911 (S.D. N.Y.), affd. per cur. 229 F.2d 439 (2d Cir.).
The insurer's liability to defend Perini and the additional insureds under its policy relates to "any suit ... against the insured alleging such ... injury or destruction and seeking damages ... payable under the terms of this policy." The allegations in the pleadings, of course, determine whether in respect of any particular claim such a liability exists. See Magoun v. Liberty Mut. Ins. Co. 346 Mass. 677, 681. Unless the pleadings show that a claim, if proved, will be within the policy's substantive coverage, the insurer has no obligation to defend.
4. A final decree is to be entered declaring that neither Perini nor the insurer has any obligation to defend petitions *458 brought against the authority to recover damages under G.L.c. 79, as amended, the recovery of which is authorized by St. 1958, c. 598, or to indemnify the authority against any judgments therein. The Superior Court, if the parties cannot agree, shall include in the final decree a determination, in accordance with the principles stated in this opinion, whether each claim to which the case stated refers comes within the coverage of the policy. Perini and the insurer are to have costs of this proceeding.
So ordered.
NOTES
[1] The additional defendants are The Employers' Liability Assurance Corporation, Limited and The First National Bank of Boston (the trustee), the trustee under an indenture securing bonds issued by the authority. No relief is sought against the trustee.
[2] Article 19, entitled "Insurance Requirements," provided, among other things, that Perini would carry (A) workmen's compensation insurance and (B) two forms of "public liability insurance," viz. (art. 19, B 1) contractors' public liability and property damage liability insurance, and (art. 19, B 2) contractors protective public liability and property damage liability insurance. In respect of property damage insurance, art. 19, B 1, described the coverage as "regular [c]ontractors' [p]roperty [d]amage [l]iability [i]nsurance ... for all damages arising out of injury to or destruction of property in any one accident [see fn. 3]," and then referred to the limit per accident and to an aggregate limit during the policy period. Article 25 (protection and restoration of property) provided, in part, that Perini "shall, at his own expense, preserve and protect from injury all property either public or private adjacent to the work and ... be responsible for and repair at his own expense any and all damage and injury thereto, arising out of ... any act or omission of ... [Perini] or his employees or sub-contractors in the performance of the work." Article 30 provides that, until final approval by the authority, Perini "shall assume full charge and care of the work and ... shall take every necessary precaution against injury or damage to his work ... from any cause whatsoever, and especially when blasting is to be done."
[3] Prior to amendment by endorsement, coverage D read, "To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident." The same endorsement which amended coverage D also struck out (except with respect to the insurance for loss of use of tangible property provided in subpar. [b] of the endorsement) the word "accident," wherever it appeared in the policy with reference to coverage D, and substituted the word "occurrence."
[4] General Laws c. 79, § 14, permits the filing of a petition in the Superior Court for the assessment of damages under c. 79. Section 6 (prior to its amendment by St. 1964, c. 579, § 2) provided that damages for a taking by eminent domain "shall be paid by the body politic ... on behalf of which the taking was made." Section 9 deals with "injury ... caused to ... real estate ... by ... a public improvement which does not involve the taking of private property," where the owner is entitled to compensation for such injury. Section 10 deals with instances where "real estate ... has been taken ... or ... damaged by... a public improvement ... but such taking ... or damage was not effected by ... a formal vote ... of the board of ... a body politic." Statute 1958, c. 598, § 7, gave the authority power to take (under G.L.c. 79) land or easements for the tunnel project, and provided (1) that "[a]ny person whose property has been taken ... may recover from the [a]uthority under" c. 79, and (2) that the damages shall be paid by the authority. Section 15 of the 1958 act provided, among other things (a), "All private property damaged ... in carrying out the powers granted by this act shall be restored or repaired ... or adequate compensation made therefor out of funds provided under ... this act," and (b) "Any person damaged in his property by the exercise of any of the powers granted by this act may recover his damages from the [a]uthority under" G.L.c. 79 (emphasis supplied).
[5] See Boston Edison Co. v. Campanella & Cardi Constr. Co. 272 F.2d 430, 432-433 (1st Cir.). We have no occasion, however, to consider whether and to what extent the principle applied in the Boston Edison Co. case would permit recovery in tort where the contractor without negligence followed contract specifications themselves negligently drawn by a State agency.
[6] The necessity for this type of coverage expansion is probably greater in jurisdictions which have not taken as broad a view of the word "accident" as is reflected in our decisions. See cases collected in the Vappi decision, 348 Mass. 427, 432. See also Appleman, Insurance Law and Practice, § 391, 4492, 4733; Couch, Insurance 2d, §§ 1.32, 44:269, 44:283, 44:284, 44:337.
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183 F.2d 172
FIRST NAT. BANK OF MOBILEv.COMMISSIONER OF INTERNAL REVENUE.
No. 13097.
United States Court of Appeals Fifth Circuit.
July 7, 1950.
Scott P. Crampton, George E. H. Goodner, Washington, D. C., for petitioner.
Francis W. Sams, Ellis N. Slack, A. F. Prescott, Special Assistants to Attorney General, Theron Lamar Caudle, Assistant Attorney General, Charles Oliphant, Chief Counsel, Rollin H. Transue, Special Attorney, Bureau of Int. Revenue, Washington, D. C., for respondent.
Before HUTCHESON, Chief Judge, and McCORD and RUSSELL, Circuit Judges.
McCORD, Circuit Judge.
1
This appeal involves alleged deficiencies in income and victory taxes on the estate of Aaron Lowenstein for the calendar years 1942 and 1943.
2
The questions presented, broadly stated, are (1) whether taxpayer may reduce its proportionate share of the income from a partnership for the calendar year 1942 by deducting its stipulated portion of the difference between the book value and fair market value of the partnership's opening inventory; and (2) whether the loss realized by taxpayer on the sale of the partnership interest is deductible as an ordinary loss, or as a capital loss subject to the limitations of Section 117(b) and (d) (2) of the Internal Revenue Code. Title 26 U.S.C.A., Sections 117(b) and 117(d) (2).
3
The material facts, briefly summarized, reveal that Aaron Lowenstein, deceased, was for many years prior to his death a member of the partnership firm of Taylor, Lowenstein & Company, which is engaged in the mercantile and naval stores business at Mobile, Alabama. The partnership agreement under which the business was conducted at the time of his death specifically provided that the partnership would not be dissolved upon the death of a partner, but would continue in effect for a full year from the first of the year next following such partner's death, after which period the remaining partners would have the right to purchase the deceased partner's interest. It was further provided that during the period in which the business was to be continued the deceased partner's personal representative would succeed to all of his interests in the partnership except the right of management, and that it would receive "all payments and credits, to which such deceased partner would have been entitled, if living".
4
At the date of Lowenstein's death, on July 8, 1941, the partnership inventory had a book value1 of $665,771.78, and a fair market value of $721,191.40. Since he had been one of three equal partners in the business, the value of Lowenstein's one-third interest in the partnership inventory was therefore $221,923.93 according to book value, and $240,397.13 by fair market value. This difference of $18,473.20 between the above two methods of evaluating his interest in the partnership inventory was reflected in his estate tax return, since the statute and regulations required the assets of the estate to be reported at fair market value. See Title 26 U.S.C.A., Section 811; Section 113(a) (5); Treasury Regulations 105, Section 81.10.
5
For the tax year 1942 following the death of Lowenstein, the partnership computed its net income by using as its opening inventory the book value figure of $665,771.78. On this basis the partnership reported distributable income to taxpayer in the amount of $95,107.15. It is this latter figure which taxpayer claims should be reduced by the sum of $18,473.20, which amount represents the increased value of the partnership inventory by its fair market evaluation, as the same had previously been reported in the estate tax return.
6
Taxpayer contends that upon Lowenstein's death his estate owned a one-third interest in every item of the partnership inventory, and that in computing the loss from the sale of this inventory to the surviving partners in the year 1942 from which its partnership income was derived it is entitled to use the same basis of fair market evaluation at which the partnership inventory was reported in the estate tax return; that, in the alternative, it is entitled to the tax benefit to be derived from considering the loss from such sale as an ordinary loss deductible in full, rather than as a capital loss subject to the statutory limitation of $1,000.00. Title 26 U.S.C.A., Sections 117(b) and 117(d) (2).
7
We are of opinion the Tax Court correctly held that taxpayer may not reduce its proportionate share of the partnership income for the tax year 1942 by deducting its portion of the difference between the book value and fair market value of the partnership's opening inventory. All that the estate here acquired under the partnership agreement was Lowenstein's interest plus a contractual right to a share of the partnership income for a limited period. It did not acquire any specific partnership property or assets, nor was there any distribution to the estate of any part of the partnership inventory. Title 26 U.S.C.A., Section 113(a) (13) treats the partnership interest which taxpayer here acquired as something separate and apart from the partnership inventory and assets, and as having a basis of its own for tax purposes. It is the basis of this "partnership interest" which is subject to adjustment under Section 113(a) (5), and such adjustment in no wise affects the basis of the partnership inventory. See Ford v. Commissioner, 6 T. C. 499. Under such circumstances, we conclude there is no logical justification under the applicable statutes for disregarding the partnership as the tax computing entity, and assigning a different basis to taxpayer's share of the partnership inventory merely because such basis was used in the estate tax return. Consequently, there is no foundation for allowance of the deduction or adjustment here claimed. Cf. Commissioner v. Long, 5 Cir., 173 F.2d 471; Ford v. Commissioner, 6 T. C. 499.
8
We further hold that the loss from the sale of this partnership interest was not deductible as an ordinary loss, but only as a capital loss subject to the limitation provided by the statute. Title 26 U.S.C.A., Sections 117(b), 117(d) (2); see also, Commissioner v. Long, 5 Cir., 173 F.2d 471; Commissioner v. Smith, 5 Cir., 173 F.2d 470; United States v. Landreth, 5 Cir., 164 F.2d 340.
9
Affirmed.
Notes:
1
This book value was based on either cost or market value, whichever was lower
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518 F.2d 1196
James G. ELLINGBURG, Petitioner-Appellant,v.A. G. LUCAS, Correctional Employee, Cummins Unit, ArkansasDepartment of Correction, Respondent-Appellee.
No. 75-1012.
United States Court of Appeals,Eighth Circuit.
Submitted June 9, 1975.Decided June 25, 1975.
James G. Ellingburg, pro se.
Jim Guy Tucker, Atty. Gen., and Robert A. Newcomb, Asst. Atty. Gen., Little Rock, Ark., for respondent-appellee.
Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and HEANEY, Circuit Judges.
PER CURIAM.
1
The plaintiff, an Arkansas state prisoner, appeals from the dismissal of an action for damages under 42 U.S.C. § 1983 brought against a prison employee. In his complaint, plaintiff alleged the defendant defamed his reputation by calling him an obscene name. We affirm.
2
Damages for defamation are not recoverable under § 1983 because a defamed person has not been deprived of any right, privilege or immunity secured to him by the Federal Constitution or laws of the United States. See Morey v. Independent School Dist., 429 F.2d 428 (8th Cir. 1970), affirming, 312 F.Supp. 1257, 1262 (D.Minn.1969); Azar v. Conley, 456 F.2d 1382, 1388-1389 (6th Cir. 1972); Heller v. Roberts, 386 F.2d 832 (2d Cir. 1967).
3
Judgment is affirmed.
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339 So.2d 577 (1976)
Robert R. BRYAN et al.
v.
Roger BROWN et al.
SC 1661.
Supreme Court of Alabama.
October 1, 1976.
Rehearing Denied December 3, 1976.
*578 Robert L. Wiggins, Jr., Birmingham, for appellants.
James M. Fullan, Jr., Birmingham, for appellees.
BEATTY, Justice.
Roger Brown and Larry Waites filed identical, separate libel actions against Robert R. Bryan and James Allen Brown, as codefendants. Each complaint contained one count as follows:
"Plaintiff claims of the defendants the sum of Five Hundred Thousand and No/100 ($500,000.00) Dollars as damages for that heretofore on, to-wit: the 14th day of January, 1974 in Jefferson County, Alabama defendants falsely and maliciously published of and concerning the plaintiff in a writing styled "Petition for Removal' the following matter, with intent to defame the plaintiff:
"That plaintiff asked the defendant, James Allen Brown, to plant narcotics in defendant, Robert Bryan's, airplane and residence and that a conviction of defendant, Bryan, could most likely be obtained for possession of narcotics.'
"Plaintiff alleges that on said occasion, to-wit: the 14th day of January, 1974, he was a Deputy District Attorney in Jefferson County, Alabama and that said matter was false and untrue and said matter was maliciously published by defendants, all to plaintiff's damage as aforesaid, hence this suit."
The defendants filed identical answers alleging five defenses: (1) Not guilty; (2) That Robert Bryan did not make any statement in his individual capacity but filed a Petition in the United States District Court in behalf of his client; (3) That "there is no evidence" that Robert Bryan performed any service other than in his capacity as an attorney acting for a client; (4) That Robert Bryan individually never made a statement pertaining to plaintiff; (5) Plaintiff was guilty of negligence which proximately contributed to his injuries.
By consent of all parties the two cases were consolidated for trial. Motion by defendants for summary judgment was denied, and a jury trial ensued resulting in a verdict for each plaintiff in the amount of $15,000.00. Judgment was entered accordingly in each case on September 16, 1975.
On December 22, 1975 the following Notice of Appeal was filed by the defendantappellants:
"Notice is hereby given that Robert R. Bryan and James Allen Brown appeal to the above named court from the judgment *579 of the trial court entered on September 15, 1975 and the final order of said court entered on December 10, 1975. With this notice of appeal appellants file security for costs of appeal."
Security for costs of appeal was filed and approved by the circuit clerk on that same date.
On December 12, 1975, the attorney for plaintiff, Roger Brown, filed an Affidavit in Garnishment on Judgment, which was followed on December 22, 1975 by a Writ of Garnishment directed to a Birmingham bank. Thereafter, on January 12, 1976, defendant-appellants filed with the clerk their Supersedeas Bond approved by the trial judge. With this bond a sureties affidavit was filed. The garnishment was then released by the judge.
The next day, January 13, 1976, plaintiffs filed their motion to set aside the order releasing the garnishment and to strike the supersedeas bond. Thereafter, on January 16, 1976, the Court allowed the defendant, Robert Bryan, until January 30, 1976 to file and have approved an additional supersedeas bond. Such an additional bond was filed and approved on February 2, 1976.
We note these steps in the appeal in view of appellees' motion to dismiss the appeal which raised several grounds, among them that appellant, James Allen Brown, (1) failed to timely effect his appeal by giving notice and filing therewith security for costs under Rule 7, ARAP, and (2) failed to file a notice of appeal within forty-two days from the entry of judgment against him.
Rule 7 of our Appellate Rules contemplates filing of "a supersedeas bond or other undertaking which includes security for the payment of costs on appeal," or security for costs which is to be filed in the trial court by appellant. This security for costs is, under the rule, to be approved by the court clerk. This was done here. Rule 7, however, pertains only to costs on appeal, and the failure to give security for costs is not fatal to appellate jurisdiction.
Under Rule 3, ARAP, an appeal is taken in a civil case by the timely filing of a notice of appeal with the clerk of the trial court, specifying the parties appealing, designating the judgment appealed from, and naming the court to which the appeal is taken. Joint notices of appeal are permitted, after which the appellants are allowed to proceed as a single appellant. Timely filing of the notice of appeal is jurisdictional, and under Rule 4 must be filed with the clerk of the trial court within forty-two days (six weeks) of the date of the entry of the judgment appealed from. The time limitation of Rule 4, however, is subject to the exception found in Rule 49, ARAP, which applies those rules to:
". . . all appellate proceedings
. . . . .
"(2) in which the decision, judgment or order is entered prior to December 1, 1975, and the notice of appeal is filed on or after December 1, 1975, except those rules which establish a time for invoking an appellate proceeding, including an appeal under Rule 4;"
Thus the time limit of the new rules, fortytwo days, did not apply to Brown's notice of appeal, but the old six months limitation applied.
As noted above, judgments on the verdicts were entered in each case on September 16, 1975. Motions for judgments N.O.V. or for new trial which suspended the running of the time for filing a notice of appeal were filed in each case on September 25, 1975 by Robert T. Bryan (but not by Brown) and continued from time to time until overruled on December 10, 1975. Under the old rules notice of appeal was due to be filed not later than six months thereafter, or by March 16, 1976. Because notice of appeal was filed on behalf of defendant Bryan on December 22, 1975, we conclude that his notice was timely filed. Brown also timely filed his appeal. The time for filing his notice of appeal began to run from the date of the judgment, September 16, 1975. His notice of appeal was filed on December 22, 1975. Therefore, we deny appellee's motion to dismiss Brown's appeal.
Appellees additionally assert in their motion to dismiss the appeal that the clerk's *580 record was not completed and a certificate of completion filed in this Court within twenty-eight days from the date of notice of appeal. Here appellees rely upon Rule 11, ARAP. According to the record, the certificate of completion of clerk's record, dated January 30, 1976, was filed in this Court on February 3, 1976, or forty-three days after notice of appeal, or fifteen days after the date required. The certificate of completion of the record on appeal, which was due to be filed in this Court within seven days of the filing with the circuit clerk, on February 12, 1976, of the reporter's transcript, was filed in this Court on February 16, 1976, or four days thereafter, thus it was filed within the time provided by Rule 11.
However, in view of the serious nature of this case and the fact that the parties each applied to this Court and received additional time in which to file briefs in a case which all considered complex, and involves a record over two hundred pages in length, with many exhibits, we do not consider it appropriate at this juncture to dismiss the appeal on this appellee's other grounds, i.e., that appellants' brief was not followed by a statement of the case, that the appellants' table of cases was not alphabetically arranged, and that appellants failed to designate the Appendix, even though we deprecate these departures from the appellate rules, and by this particular decision we are not establishing a precedent of liberality in applying the time limitations imposed by the appellate rules.
Accordingly, we deny appellees' motion to dismiss the appeal.
The defendant, Robert R. Bryan, was called as a witness for plaintiffs. He testified that on January 14, 1974 he was a practicing attorney in Birmingham and that the two plaintiffs were assistant district attorneys, the same persons referred to in the petition for removal Bryan filed in federal court. Bryan was representing James Brown in three criminal cases, two heroin sales and one robbery, the drug charges having been sounded on the Jefferson County Circuit Court trial docket that morning. Apparently, Bryan had represented James Brown as counsel in the robbery case, being employed by Brown shortly after his arrest following indictment, about September 22, 1972. According to the removal petition set out below, Bryan began to represent James Brown in the drug cases on August 9, 1973 but learned of the alleged conspiracy to "frame" him "during the early portion of 1973." Bryan announced "ready" subject to the availability of a witness, Pamela Mason, then sometime later that day he returned to his office. That afternoon he filed a Petition for Removal in the clerk's office of the United States District Court in Birmingham, the pertinent part of which follows:
"3. Upon information and belief, the trial of Case Nos. 26107 and 26108 is scheduled to begin during the present week. The trial of Case No. 25671 is scheduled to begin on or about January 28, 1974.
"4. For the reasons set forth below, Petitioner will be denied or can not enforce in the courts of the State of Alabama rights under laws providing for the equal civil rights of citizens of the United States, or of all persons of the jurisdictions thereof.
"5. Petitioner was indicted on, to-wit, August 10, 1972 for an alleged robbery. Thereafter the actual culprit, Mickey Taylor, entered a plea of guilty to the subject charge along with several drug charges and was placed upon probation. The subject Mickey Taylor actually committed said crime. The attorney representing said individual was Mr. Wilson Dinsmore and the prosecutor was Mr. Roger Brown. Upon the plea being entered, the subject Mickey Taylor was placed upon probation. During the period in which the alleged crime was committed by the said Mickey Taylor, the Petitioner was acting undercover from members of the Birmingham Police Department. Upon his arrest, the Petitioner retained the undersigned as his attorney.
"6. On, to-wit, October 6, 1972, the Petitioner was indicted by the Grand Jury *581 of Jefferson County in Case Nos. 26107 and 26108 for allegedly selling, furnishing or giving away heroin to an undercover agent of the United Narcotics Detail Operation (UNDO). At said time, the Petitioner was acting undercover for members of the Birmingham Police Department. Upon being arrested, the Defendant obtained the services of Mr. Wilson Dinsmore as his attorney.
"7. Subsequent to his arrest and release on bail in case nos. 26107 and 26108, the Petitioner while visiting his mother in Atlanta during June, 1972, was contacted by Mr. Wilson Dinsmore, his attorney in the subject drug charges. Mr. Dinsmore by telephone advised the Petitioner that he had a method in which the Petitioner could `hit the streets' and that said Petitioner should immediately return to Birmingham for a meeting. The Petitioner did return to Birmingham and attended a meeting in the office of Mr. Dinsmore in which Mr. Larry Waites and Mr. Roger Brown, members of the District Attorney's Office of the Circuit Court of the Tenth Judicial Circuit, Jefferson County, were present. It was explained to the Petitioner that they (Mr. Waites and Mr. Brown) wanted to `get' the undersigned attorney, Robert R. Bryan, on a criminal charge. They advised the Petitioner that if he could make arrangements for the arrest of the said Robert R. Bryan, they would see that he (Petitioner) would never go to prison.
"When it was learned during the late fall of 1972 that the aforementioned Robert R. Bryan, who was still appearing as counsel in behalf of the Petitioner in the aforementioned robbery charge, was in no way violating the law and therefore could not be ligitamately [sic] arrested, the said Robert Brown and Larry Waites asked if the Petitioner could take a trip in the airplane of Robert R. Bryan and plant a quantity of narcotics therein. It was explained to the Petitioner that if he could make arrangements to plant narcotics both in the subject attorney's airplane and residence, that a conviction could most likely be obtained for possession of narcotics. The Petitioner went along with the suggestions of the subject representative of the District Attorney's Office and his attorney on the two drug cases, Mr. Wilson Dinsmore, leading them to believe that he was willing to cooperate.
"8. During the early portion of 1973, the Petitioner advised the undersigned attorney of the aforementioned illegal conspiracy, and that what had possibly begun as a ligitimate [sic] investigation evolved into a very concerted effort to frame said attorney. Evidentally [sic] Mr. Waites, Mr. Brown and Mr. Dinsmore became suspicious of the Petitioner's willingness to cooperate in their improper plan. Thus, the Petitioner was subjected to a polograph examination in the law office of Mr. Dinsmore with Mr. Waites being present. Sometime thereafter Mr. Dinsmore went off the bonds previously posted in behalf of the Petitioner in Case Nos. 26107 and 26108, and the Petitioner was incarcerated in the Jefferson County Jail. On, to-wit, August 9, 1973, bail was posted in behalf of the Petitioner through arrangements made by the undersigned attorney. Additionally, the undersigned attorney agreed to also represent the Petitioner on the subject cases.
"9. It is apparant [sic] that by the unwillingness of the Petitioner to cooperate with the illegal conspiracy of the Respondents, Mr. Roger Brown and Mr. Larry Waites, the subject individuals have instituted a person [sic] vendita [sic] against the Petitioner, thus depriving him the rights guaranteed by the Constitution and laws of the United States. As evidence of such, a recommendation was made by the Chief Investigating Officer that the robbery charge presently pending, (Case No. 25671) should be dismissed. Said recommendation has been rejected by the Respondent, Mr. Roger Brown."
Bryan signed the petition as attorney and James Allen Brown signed a Verification.
The petition and the federal judge's order were offered into evidence by plaintiffs as *582 plaintiffs' exhibit one. Defense counsel objected to that part of exhibit one which constituted the judge's order on the grounds that it was irrelevant and prejudicial, which objection was overruled, and exhibit one was received in evidence. Suffice it to state here that the district court's order found that the allegations of the petition "could not conceivably constitute a basis for removal pursuant to 28 U.S.C. 1443," and remanded the cases to the Circuit Court of Jefferson County.
Bryan testified that he filed the petition under Title 28, § 1443 of the United States Code. That statute allows removal to a federal district court a criminal prosecution pending against "any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States . . ." According to Bryan, the petition was filed under the Fourteenth Amendment. Bryan stated that he relied upon research he had done while assisting in preparing a similar removal petition in another state, and also upon his examination of the face of the removal statute itself, together with a book of criminal forms. He did not read any case law on the Fourteenth Amendment and did not have time to read the annotations contained in 28 United States Code, Section 1443. He identified Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, decided in 1966, as contained therein and available in 1973, and read into evidence a portion of the opinion, viz.:
"On the basic [sic] of the historical material that is available, we conclude that the phrase `any law providing for * * * equal civil rights' must be construed to mean any law providing for specific civil rights stated in terms of racial equality."
He read into evidence a further statement of the U.S. Supreme Court holding that removal under Section 1443 was not permissible under a claimed Fourteenth Amendment right, but necessitated "specific language of racial equality." He added: "[b]ut they didn't say you couldn't try it."
According to Bryan, he spent many sleepless nights before deciding what to do. He was not familiar with the cases of Miller v. Wade, 420 F.2d 489 and Peacock v. City of Greenwood, 347 F.2d 679, decided by the Fifth Circuit Court of Appeals in 1969 and 1965, respectively, which applied Rachel. He would have filed this petition if he had known of Rachel and Miller because Greenwood was a close case with four judges dissenting, and he was doing everything he could for his client. He had told his client in April, 1975 that he never heard of one of these petitions being granted and the order would probably be against him. He wanted this clearly understood by his client to be sure he would be willing to go forward because "I was putting myself out on a limb" and wasn't "going to make any friends doing this."
Bryan further testified that he had stated to plaintiffs' counsel in April, 1975 that if he were convinced that the removal statute applied only to racially discriminating situations, then his filing (the petition) would be improper, but he added that "if there was a chance to change the law on appeal or a chance that a Court might grant relief" he would have filed the petition. Even so, he did not appeal Judge Allgood's remanding order.
After the district attorney had referred to the petitioner's charges as "a damnable, reprehensible, contemptible lie," Bryan filed suit against Morgan (the district attorney), Waites and Roger Brown after they had sued him, and later allowed these suits to be dismissed. He first testified that he had been given the right to amend and deliberately did not do so, but later testified that he did file an amendment to the suit. Newspaper articles containing recitals of the charges made in the petition were admitted into evidence, as were copies of the Rachel and Miller decisions, and a copy of Title 28, Section 1443 of the United States Code.
According to Bryan, Waites, Roger Brown and he tried cases against one another as adversaries.
*583 He furnished a copy of the petition to David Rockwell, a newspaper reporter who wrote the article introduced as exhibit two. He testified that he did not make the initial overtures to Rockwell, but conceded that during the earlier proceedings in Judge Crowder's Court he had made an erroneous statement concerning whether he had given the press any indication of the petition, maintaining that his client had contacted the newspaper and he, Bryan, had given the reporter the copy after the petition had been filed.
We do not find it necessary to consider all of the issues raised in their briefs by appellants, because we have determined that the case must be reversed. Appellants urge us to hold erroneous the trial court's charge on the presumption of malice and the recovery of punitive damages, contending that proof of actual injury is affirmatively required in defamation cases, absent actual malice. Their objections to the Court's charge sufficiently preserved these questions for our review.
Prior to the decision of the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), it was the law of Alabama that a "libel per se," that is, one charging a malicious imputation of crime or moral delinquency, was "actionable per se," malice being implied and damage to the reputation being presumed without the necessity of proof. Marion v. Davis, 217 Ala. 16, 114 So. 357 (1927); Tidmore v. Mills, 33 Ala.App. 243, 32 So.2d 769 (1947). The Sullivan decision, however, ingrafted a federal constitutional limitation on the presumption of malice in cases wherein a public officer charged a libel against him relating to his official conduct. Under it he cannot recover damages unless he proves that the statement was made with "actual malice," i.e., "with knowledge that it was false or with reckless disregard of whether it was false or not." Sullivan, supra, 376 U.S. at page 279, 84 S.Ct. at page 726. Following Sullivan the United States Supreme Court decided Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), a diversity libel action brought by a private individual against a magazine publisher. Because the magazine article in question was libel per se in Illinois, the trial court put the case to the jury only on the issue of damages which they awarded. Later the Court entered judgment N.O.V. for the publisher on the theory that the Sullivan doctrine protected discussion (and thus prevented recovery) "of any public issue without regard to the status of a person defamed therein." In the appeal to the Court of Appeals, that Court held the Sullivan doctrine applicable to any publication about an issue of significant public interest, and further held that the position of the defamed person made no difference on the question of that application. The United States Supreme Court, after comparing the media's First Amendment right with the states' legitimate interest in compensating the private individual for the harm caused by defamation, held that:
". . . [s]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. . . . But this countervailing state interest extends no further than compensation for actual injury. . . [W]e hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth."
And further:
". . .[t]he doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs . . . gratuitous awards of money damages far in excess of any actual injury."
Although Gertz was a libel action brought by a private individual against a "publisher" in the narrow sense, nevertheless the holding in that case, so directly *584 involving the breadth of the First Amendment to the United States Constitution, is applicable to the facts of the instant case insofar as it affects the right of our state to award damages in defamation actions. Here, there was entirely absent any proof of actual injury to these plaintiffs. Nor was the jury instructed upon the requirement of actual malice as a predicate to the award of punitive damages. The failure to instruct the jury on the requirement of proof of actual malice for an award of punitive damages and the instruction authorizing compensatory damages absent proof of actual injury, constituted reversible errors.
Appreciating the vital role which judicial restraint occupies in our legal processes, nevertheless we feel constrained to express our considered regret for the circumstances which resulted in these proceedings. Certainly, we members of the legal profession can be esteemed by the public whom we serve no higher than we esteem ourselves. Beyond this expression of our regret we say no more.
For the errors we have noted the cases are due to be, and are
REVERSED AND REMANDED.
HEFLIN, C.J., and MADDOX, JONES and SHORES, JJ., concur.
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946 So.2d 1132 (2006)
Lucy HADI, as Secretary for the Department of Children and Families, Petitioner,
v.
L.B., B.B., R.B., & E.B., minor children, Respondents.
No. 1D06-4724.
District Court of Appeal of Florida, First District.
December 19, 2006.
*1133 Lucy Goddard-Teel, District Legal Counsel, and Gregory D. Venz, Assistant General Counsel, Gainesville, for Petitioner.
Merrill C. Tunsil, Attorney ad Litem, and Sandra H. Peterson, Guardian Ad Litem Program Attorney, Lake City, for Respondents.
PER CURIAM.
We have for review a petition for writ of certiorari challenging the portion of the trial court's order directing the attorney for the Department of Children and Families to subpoena the Secretary of the Department, Lucy Hadi, to appear before the trial court to testify as to whether the Department has an appropriate placement in Florida for B.B., a dependent minor. Because the information sought by the trial court is available from lesser ranking officers, the trial court departed from the essential requirements of the law by directing the Department to subpoena Secretary Hadi. Dep't of Health & Rehab. Servs. v. Brooke, 573 So.2d 363, 371 (Fla. 1st DCA 1991), approved by F.G. v. Agency for Persons with Disabilities, 940 So.2d 1095 (Fla.2006).
We therefore grant the petition and quash the portion of the trial court's order directing the Department to subpoena Secretary Hadi. We note that the trial court is free to subpoena a lesser ranking officer to obtain any additional information to assist in the placement of B.B.
ERVIN, DAVIS, and BENTON, JJ., concur.
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12 Kan. App. 2d 516 (1988)
749 P.2d 1052
In the Matter of the Estate of MAGGIE ALEXANDER, Deceased.
No. 60,021
Court of Appeals of Kansas.
Opinion filed February 11, 1988.
Dan H. Myers, of Myers & Pottroff, of Manhattan, for the appellants.
Robert L. Constable, of Law Offices of Robert L. Constable, Chartered, of Salina, for the appellee.
Before ABBOTT, C.J., STEVEN P. FLOOD, District Judge, assigned, and BARRY A. BENNINGTON, District Judge, assigned.
FLOOD, J.:
The sole issue in this appeal is the applicability of K.S.A. 59-605 to a situation in which the scrivener of a will is the wife of the principal beneficiary.
The testator, Maggie Alexander, and her husband had four children; Roy, Russell, Harold, and Lulu Lee. In 1957, Mr. and Mrs. Alexander gave a farm to each of the three boys and the cash equivalent to Lulu Lee. Following her husband's death in 1963, Maggie Alexander lived with her son Harold until his marriage to Arlyss in 1973, at which time Harold and Arlyss moved a mile down the road to set up housekeeping. Between 1963 and 1979 when Maggie entered a nursing home, Harold alone, and then Harold and Arlyss attended to most of Maggie's needs, looking in on her frequently and providing her with the bulk of her transportation needs. After Harold and Russell had a falling out in 1973, Russell never again saw Maggie before her death. Maggie and her daughter Lulu Lee also had a strained relationship, but that softened somewhat during Maggie's final years in the nursing home.
*517 In 1969, Maggie made out a will by which she left her estate equally to her sons Harold and Roy, excluding Lulu Lee and Russell. In 1978, she made out a second will with the same provisions, except she left one dollar each to Russell and Lulu Lee. In 1979, by letter to Harold, Maggie evidenced an intent to leave her entire estate to Harold and, earlier that same year, she transferred her savings to Harold.
After Maggie's move to the nursing home in 1979, Lulu Lee began to visit Maggie frequently and apparently worked herself back into Maggie's favor.
On April 16, 1980, Lulu Lee, ostensibly at Maggie's direction, went to see attorney Frank Oberg and had a new power of attorney made out, naming Lulu Lee and Russell as Maggie's attorneys in fact. The next day, again ostensibly at Maggie's direction, Lulu Lee went to see attorney Wayne Ryan and had a will prepared, leaving Maggie's estate to her four children in equal shares and naming Lulu Lee and Russell as co-executors. This will was read and explained to Maggie by attorney Ryan and was duly witnessed by his two secretaries.
Subsequently, Maggie advised Arlyss that she had been tricked into signing some papers and wanted a new will made out leaving her entire estate to Harold. Arlyss drafted a copy of the new will, went over it with Maggie, and then on May 3, 1980, Maggie executed the will before Arlyss's mother and sister.
After Maggie's death in February of 1985, Russell and Lulu Lee offered the will dated April 17, 1980, for probate, and Harold offered the will dated May 3, 1980, for probate. The trial court admitted the May 3, 1980, will to probate and denied admission to probate of the will dated April 17, 1980.
The trial court found that the record did not contain evidence showing that Harold discussed the will with Maggie or participated in having it executed. The trial court further found there were not sufficient facts and circumstances to justify a finding that Arlyss and Harold were a fiduciary to each other or that Arlyss was a fiduciary to Maggie when she took Maggie's instructions and prepared her will to impute such a relationship to Harold; therefore, K.S.A. 59-605 did not apply. With respect to the exercise of undue influence by either Arlyss or Harold, the court reached the following conclusion:
*518 "Here the evidence shows a pattern of Harold caring for Maggie over many years. The evidence shows an estrangement between Maggie and Russell that continued until her death, and an estrangement between Maggie and Lulu Lee that existed for years until the latter began to visit Maggie in the nursing home. The evidence shows that Maggie, in return for his years of devotion, wanted Harold to take her estate to the exclusion of her other children. If any evidence smacks of undue influence, it is that which suggests that after years of estrangement, Maggie would execute a will in April naming Lulu Lee and Russell as co-executors. The Court finds that the petitioners Lulu Lee and Russell have failed to show that the May 3, 1980 will was the result of undue influence."
We are, of course, bound by the trial court's findings of fact, but not by the trial court's conclusions of law. K.S.A. 59-605 provides:
"If it shall appear that any will was written or prepared by the sole or principal beneficiary in such will, who, at the time of writing or preparing the same, was the confidential agent or legal adviser of the testator, or who occupied at the time any other position of confidence or trust to such testator, such will shall not be held to be valid unless it shall affirmatively appear that the testator had read or knew the contents of such will, and had independent advice with reference thereto."
With reference to the latest will dated May 3, 1980, it is readily apparent that Maggie Alexander did not have independent advice. By the same token, the beneficiary is Harold Alexander, who was not the scrivener of the will. Rather, it was his wife Arlyss who was the scrivener.
In In re Estate of Schippel, 169 Kan. 151, 161, 218 P.2d 192 (1950), it was recognized that under this statute there might be circumstances in which a person occupying a position of a "go-between" could be considered to be held the one writing or preparing a will within the meaning of the statute. However, here, the trial court found that the record did not contain any evidence that Harold discussed the will with Maggie or participated in having it executed, and such a finding has not been challenged on appeal. In In re Estate of Kern, 239 Kan. 8, 716 P.2d 528 (1986), it was recognized indirectly that the statute might apply if the principal beneficiary had made suggestions to the scrivener concerning the preparation of the will. However, the evidence in this case seems to be that Arlyss prepared the will pursuant to Maggie's request, without any input from Harold.
*519 The question, then, before this court is whether the actions of Arlyss as scrivener must, under the statute, be imputed to Harold solely because of their husband and wife relationship. The closest Kansas case dealing with this question seems to be In re Estate of Robinson, 231 Kan. 300, 644 P.2d 420 (1982), relied upon by the trial court in making its decision in this case. In that case the wife of the testator was the principal beneficiary and was, arguably, the go-between with the family lawyer who had drafted the will; furthermore, she had suggested the contingent beneficiaries named in the will. The trial court held that, under those circumstances, 59-605 had been violated. The Supreme Court reversed, holding that the relationship of husband and wife alone was not sufficient to create the confidential or fiduciary relationship between the beneficiary and the testator required by K.S.A. 59-605 and, further, that the action of the wife in suggesting contingent beneficiaries to the family lawyer did not make her the scrivener of the will. The case is distinguishable because it does not deal with the question presented here, which is whether a wife can ever be the scrivener of a will in which her husband is the principal beneficiary without violating the provisions of 59-605.
We have been cited to several decisions from other states where the issue has been addressed, although not necessarily in the context of a statute similar or identical to the one in Kansas. In Estate of Trefen, 86 Cal. App.2d 139, 194 P.2d 574 (1948), a daughter-in-law had been instrumental in getting the decedent to make a new will disinheriting decedent's husband in favor of the daughter-in-law's husband, decedent's son by a prior marriage. The court there held in Syl. ¶ 10:
"Where a wife is active in obtaining the preparation and execution of a will making her husband the sole beneficiary, the activity of the wife is imputed to the husband."
However, in that case there was a factual finding that the wife of the beneficiary had exercised undue influence upon the decedent to disinherit the decedent's husband. This finding, in turn, was based upon the fact that the decedent had long expressed a testamentary preference for her husband, who had jointly helped her acquire the property in question.
*520 In In re Estate of Peterson, 283 Minn. 446, 168 N.W.2d 502 (1969), an attorney who acted as scrivener induced his client to make a will disinheriting her relatives in favor of the attorney's own children. The court held that the act of the scrivener, who stood in a confidential relationship with the decedent, could be imputed to his children as beneficiaries to make out a prima facie case and sustain a finding of undue influence. Here, again, we have a case where on the facts a decedent, who stood in a confidential and fiduciary relationship with the scrivener, is induced by the scrivener to make out a will in favor of casual acquaintances, contrary to her expressed intent and desires.
In Swenson v. Wintercorn, 92 Ill. App.2d 88, 234 N.E.2d 91 (1968), an elderly testatrix had been persuaded by Mr. Green to make out a will in favor of his wife, Mrs. Green. Mrs. Green was not related to the testatrix. The Illinois court held that one who procures the execution of a will largely benefiting himself in the absence of others having equal claim on the bounty of the testatrix, who is enfeebled by age and disease, is faced with the presumption that he exercised undue influence. The court went on to say that undue influence may be the result of activities of third persons, as well as the result of activities of direct beneficiaries, and that insofar as Mr. Green may have been instrumental in influencing the testatrix to favor his wife, his activity may be imputed to his wife.
The most that can be said of these decisions is that where one who is a scrivener drafts, or procures a scrivener to draft, a will in favor of his or her spouse or son or daughter, such behavior allows a presumption of undue influence or makes out a prima facie case of undue influence or supports a decision of undue influence. This is particularly so when the beneficiary is not related to the testator, or the will is contrary to the long-expressed desires of the testator.
In this case the evidence is that Harold did not procure the making of the May 3, 1980, will by his mother, nor did he have any input into the making of the will. Further, Maggie's long-expressed testamentary intent as shown by the earlier wills, the letter, and the relationship generally was that she intended to make Harold Alexander her sole beneficiary. The trial court found that the evidence would not support a conclusion that *521 either Arlyss or Harold exercised undue influence on Maggie. The trial court further found that there was no fiduciary relationship between Arlyss and Harold or between Arlyss and Maggie which would permit imputing Arlyss's actions as scrivener of the will to Harold. We think these factual conclusions are correct. We also agree with the trial court that, merely because the relationship between the scrivener of a will and the principal beneficiary is one of husband and wife, there is not an automatic or per se violation of K.S.A. 59-605. To so hold, we believe, would take action by the legislature.
Affirmed.
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691 F.2d 506
Crawfordv.Secretary of U. S. Dept. of Labor
81-7535
UNITED STATES COURT OF APPEALS Ninth Circuit
10/1/82
Sec. of Labor
AFFIRMED
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588 P.2d 1027 (1979)
Pamela Sue CLARK, Appellant,
v.
The STATE of Nevada, Respondent.
No. 9633.
Supreme Court of Nevada.
January 12, 1979.
*1028 Morgan D. Harris, Clark County Public Defender, and George E. Franzen, Deputy Public Defender, Las Vegas, for appellant.
Robert List, Atty. Gen., Carson City, George E. Holt, Dist. Atty. and Ira H. Hecht, Deputy Dist. Atty., Las Vegas, for respondent.
OPINION
MANOUKIAN, Justice:
Following pleas of not guilty and not guilty by reason of insanity, and trial, a jury convicted appellant of attempted murder of her infant daughter, Heather Denise Clark. This appeal ensued.
Two issues confront us: (1) Was appellant properly found to be sane at the time of the commission of the offense? (2) Was the jury correctly instructed on the presumption of sanity?[1] We answer both questions in the affirmative and uphold the conviction.
It is well settled in Nevada that insanity is an affirmative defense and that the accused is presumed to be sane absent proof of insanity by a preponderance of the evidence. Guynes v. State, 92 Nev. 693, 558 P.2d 626 (1976); Phillips v. State, 86 Nev. 720, 475 P.2d 671 (1970), cert. denied, 403 U.S. 940, 91 S.Ct. 2260, 29 L.Ed.2d 719; Criswell v. State, 84 Nev. 459, 443 P.2d 552 (1968), cert. denied, 400 U.S. 946, 91 S.Ct. 251, 27 L.Ed.2d 251.
The jury heard evidence that on the evening of May 3, 1975, while her husband was at work, appellant wrapped her two week old baby in a blanket and abandoned it behind a clump of bushes off the side of a desert road in Clark County. Appellant then went to her husband and told him that the baby had been kidnapped. When the police arrived, appellant told them that she was putting the baby in its crib when someone grabbed her from behind, hit her on the head and knocked her unconscious. When she awakened, the baby was gone. The *1029 police were suspicious however, since there was no indication of a forced entry into appellant's mobile home and appellant was calm and unemotional. Further, there were no visible injuries resulting from the alleged attack.
Three days later, appellant was taken to Las Vegas police headquarters for further interrogation. There she admitted that she had abandoned the baby, believing that the child was probably dead. She explained that on the evening of May 3, 1975, she fell asleep after putting the baby to bed. She awakened a couple hours later and noticed the infant was not moving. Fearful that it was dead, she wrapped the baby in a blanket, drove out to the desert and there abandoned it. Appellant directed the police to where the child had been left. A helicopter spotted it and rushed the infant to Southern Nevada Memorial Hospital where it was treated essentially for dehydration.
At trial, two psychiatrists and one psychologist testified that a severe post partum depression rendered appellant legally insane at the time of the crime. Cross-examination of the defense experts, however, developed that only the psychologist had examined appellant shortly after the events involved. The psychiatrists examined appellant over a year following the incident. Members of appellant's family, on the other hand, testified that her conduct immediately preceding the commission of the crime was normal and that she seemed happy and excited about having the baby. It was only after the events of May 3, 1975, that they noticed a change in her personality. After that date, she seemed despondent, unusually quiet and unemotional.
The M'Naughten rule has long been the test for criminal responsibility in the State of Nevada, Williams v. State, 85 Nev. 169, 451 P.2d 848 (1969); Sollars v. State, 73 Nev. 248, 316 P.2d 917 (1957); State v. Lewis, 20 Nev. 333, 22 P. 241 (1889), and here it was within the province of the jury to weigh the evidence Lewis, supra, and determine whether appellant knew the nature and quality of her acts, had the capacity to determine right from wrong or knew whether she was doing wrong when she committed the crime. The jury, fulfilling its role as finder of fact, made a determination adverse to appellant, apparently concluding that appellant's conduct and declarations before and after the offense belied her insanity claim. There is substantial evidence supporting the jury's determination. See Criswell, supra.
Incidental to the presumption of sanity question, a subsidiary issue arises as to the continued vitality of the presumption confronted by controverting evidence. Appellant contends that the presumption evaporates with introduction of controverting evidence, while respondent argues that the presumption remains viable throughout the trial, absent sufficient countervailing proof. We agree with respondent's contention.
In Nevada insanity is not proved simply by raising a doubt as to whether sanity exists. State v. Bourdlais, 70 Nev. 233, 265 P.2d 761 (1954). The presumption is a disputable one (NRS 47.240, 47.250) and its effect in a criminal action is governed by NRS 47.230(2) which provides in part:
[T]he existence of the presumed fact may be submitted to the jury if the basic facts are supported by substantial evidence, or are otherwise established, unless the evidence as a whole negatives the existence of the presumed fact.
Here, while expert testimony suggested that appellant was legally insane at the time of the crime, the trial court, in the exercise of its discretion properly concluded that such evidence as a whole did not negative the existence of the presumed fact sufficiently to remove the issue from jury consideration. Additionally, such testimony is not binding on the trier of fact, and the jury was entitled to believe or disbelieve the expert witnesses. State v. Nobel, 90 N.M. 360, 563 P.2d 1153 (1977); see Criswell, supra. The expert opinions were largely based on information supplied to the psychiatrists by appellant over a year subsequent to the commission of the crime, which information was markedly sharp in contrast to statements given police more proximate *1030 to the infant's disappearance. Neither did the testimony of lay witnesses sufficiently negative the presumed fact.
Appellant faults the State's failure to present rebuttal witnesses. She contends that the "presumption of sanity" is dispelled once evidence of insanity is introduced. Appellant misconceives the nature of the insanity defense. In this State, sanity is not considered an element of the offense which must be pleaded and proved by the prosecutor. Cf. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Moreover, the conflicting statements of appellant coupled with expert testimony premised on information supplied by appellant over a year later cannot be said to be uncontradicted evidence. The jury concluded that the evidence produced as a whole was inadequate to overcome by a preponderance of evidence the presumption of sanity. Appellant cites In re Dennis, 51 Cal.2d 666, 335 P.2d 657 (1959) as controlling. That case is clearly distinguishable. There the disputable presumption of sanity was overcome by a preponderance of uncontradicted evidence. The defendant had been institutionalized on several occasions prior to the commission of the crime compelling the court to conclude that:
[p]roof that defendant was afflicted with a permanent insanity, as distinguished from a temporary or transient insanity, prior to the commission of the crime charged will, however, dispel the presumption of sanity and raise a presumption that his insanity continued to exist until the time of the commission of the crime.
Id. at 661.
In State v. King, 375 S.W.2d 34 (Mo. 1964), although five witnesses testified to the defendant's lack of mental capacity and the state offered no evidence on that subject, the court held that the verdict of guilty is not contrary to the evidence since the burden was on the defendant to prove insanity by a preponderance of the evidence, the issue was a jury question, and the jury, as the instant case, had a right to disbelieve the defendant's witnesses, which they obviously did. Accord State v. Sands, 10 Or. App. 438, 499 P.2d 821 (1972); Gibson v. State, 55 Wis.2d 110, 197 N.W.2d 813 (1972).
Here, appellant alleged temporary, not permanent, insanity and consequently the jury found her evidence, whether controverted or uncontroverted (see Annot., 62 A.L.R.2d § 7 at 1191), was nevertheless insufficient to dispel the presumption.
The verdict is supported by substantial evidence and the jury was properly instructed regarding the burden and sufficiency of proof necessary to establish the defense of insanity.
We find no error and affirm.
MOWBRAY, C.J., and THOMPSON, GUNDERSON and BATJER, JJ., concur.
NOTES
[1] The court's Instruction No. 13 read in part:
"The jury may consider evidence of defendant's mental condition before and after the time of the commission of the offense. Such evidence is to be considered for the purpose of throwing light upon her mental condition as it was when the offense was committed.
* * * * * *
"However, if you find that the defendant was not capable of knowing or understanding the nature and quality of her act, you will find that she was legally insane; or, if you find that she was incapable of knowing or understanding that her act was wrong, you will find that she was legally insane.
"The defendant has the burden of proving her legal insanity by a preponderance of the evidence."
* * * * * *
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00200-CV
In re Ronald Dwayne Whitfield
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Filed: April 28, 2009
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230 F.Supp.2d 716 (2002)
MIKE ROSS, INC., Plaintiff,
v.
DANTE COAL COMPANY, Defendant.
No. CIV.A. 202CV3.
United States District Court, N.D. West Virginia.
September 25, 2002.
*717 William R. Wooton, Roslyn C. Payne, Beckley, WV, for Plaintiff.
Richard J. Bolen, Melissa Dodd Veltri, Marvin Capehart, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, WV, for Defendant.
ORDER GRANTING SUMMARY JUDGMENT TO DANTE COAL COMPANY
KEELEY, Chief Judge.
I.
PROCEDURAL HISTORY
This action was originally filed in the Circuit Court of Barbour County, West Virginia, in early 2002 by plaintiff Mike Ross, Inc. ("Ross") against defendant Dante Coal Company ("Dante"). Ross is the successor in interest to S.M. Kaemmerling ("Kaemmerling"), lessor, and Dante is the successor in interest to Badger Coal Company ("Badger"), lessee, under a coal lease originally dated April 25, 1955. In its initial complaint, Ross sought a temporary restraining order as well as preliminary and permanent injunctions requiring Dante to refrain from removing facilities, including a tipple, located on the leased property. In the original petition, Ross alleged that removal of the facilities would violate the terms of the lease, and sought a court order to enforce the lease.
Dante removed the case to this court on January 16, 2002. At a hearing on January 28, 2002, Ross orally asked the Court to enjoin removal of the facilities because the lease had terminated by operation of law following Dante's cessation of mining activities. As a result, Ross contended that Dante had no right to occupy the premises. Because Ross' complaint had not mentioned termination of the lease, the Court gave Ross leave to amend its complaint. Meanwhile, on January 29, 2002, it granted the preliminary injunction sought by Ross.
On February 4, 2002, Ross filed an amended complaint. In Count I, it sought an injunction to prohibit Dante's removal of the facilities based on its original theory that removal would violate the lease. Similarly, in Count II, it alleged that removal of the facilities directly contravened certain express terms of the lease. In Count III, however, Ross sought a declaration that the lease was void and unenforceable on the ground that Dante's cessation of mining operations had caused the lease to terminate automatically. Dante timely answered the amended complaint.
Thereafter, on February 28, 2002, the parties submitted an Agreed Order that dissolved the preliminary injunction, permitted Dante's removal of the facilities, dismissed the DEP from the action and withdrew Counts I and II of the amended complaint. The remaining count in Ross' complaint seeks a declaratory judgment regarding the rights and obligations of the parties, especially with regard to Dante's obligation to mine all merchantable coal on the property.
During a telephone conference with the Court on April 1, 2002, the parties agreed that the sole remaining issue in this case is primarily a legal question. Both parties then filed motions for summary judgment with supporting memoranda of law, and the case is now ripe for the Court's consideration.
II.
STATEMENT OF FACTS
The coal reserves in this case are the subject matter of the April 25, 1955 lease *718 agreement between Kaemmerling and Badger, and of certain later amendments to that lease. According to the testimony of Senator Mike Ross, the owner of the plaintiff corporation, Ross is the successor in interest to the lessor and Dante is the successor in interest to the lessee.
The 1955 lease provides, in relevant part, that the lease shall continue "until all of the mineable and marketable coal that can be removed from the premises by the use of efficient, practical and modern methods of mining is exhausted, unless sooner terminated as hereinafter provided." In addition, it provides that the "Lessee shall work, mine and recover all the mineable and merchantable coal in the premises in an efficient and workmanlike manner and according to the approved methods of modern mining." The lease also provides that "a waiver by Lessor of, or failure to enforce, any particular cause of forfeiture shall not prevent the forfeiture and cancellation of this lease for any other cause of forfeiture, or for the same cause occurring at any other time."
The June 30, 1966 supplemental lease between Kaemmerling's successor in title, R.K. Bogert, Jr. and others ("Bogert"), and Badger, the January 31, 1967 royalty agreement between Bogert and Badger, and the March 1, 1967 lease agreement between Bogert and Badger provided for the lease of additional lands "to have and to hold" under the same terms and conditions as provided for in the original lease. The February 6, 1993 deed shows that Bogert conveyed all of his interest in the lease to Ross.
Dante admits that the leased property has not been mined for more than fifteen years, and Ross has no record of any mining on the property since 1984. Dante admits that there are currently no active mining operations, and has stated that the property cannot be operated profitably at the present time.
Ross asserts that this failure to mine leaves at least one hundred forty-four million tons of coal on the leased premises which Dante has identified as "economical to mine" but has not recovered. It further states that, since the cessation of mining operations, the selling price for coal produced adjacent to or near the leased premises ranged from $15.00 to $30.00 per ton. Senator Ross testified at the hearing that the price per ton is currently higher than that. Ross argues that, if the coal were mined today, it could potentially receive millions of dollars in royalties on the leased premises rather than the "appallingly low royalty rate" of ten cents per ton.
According to Dante, however, review of certain additional facts that were known to Ross at the time of the purchase in 1993, as well as facts that have occurred since that time, is necessary to completely understand the equities of the case. Dante claims these facts show that the royalty rate is not "appallingly low," as Ross claims, but rather is a substantial rate under the circumstances.
First, Dante argues that Ross knew it was purchasing a long-term lease with a low royalty rate, and used this fact to its advantage in negotiating a very favorable purchase price. Dante notes that the purchase price of $300,000 is equal to 2/10 of one cent per ton of coal, much less than the royalty payment. Moreover, it claims Ross knew or should have known that it was buying high sulfur coal, which has a limited market. Dante further posits that Ross must have known that coal production had been steadily declining in northern West Virginia for a number of years, that there were few active coal operations in Barbour County, and that there had been no mining on the leased premises since 1984.
*719 Furthermore, contrary to Ross' assertions, Dante counters that it has not physically abandoned the property and has no intention to do so. It points to its continued physical possession and control of the premises, including maintenance of an office and employment of at least one full-time employee on the premises. Dante also argues that it has paid all maintenance costs, maintained the necessary permits, and remains prepared to re-commence operations in the event that market conditions permit it to conduct mining operations profitably. Additionally, it has investigated all reasonable options for developing the coal reserves, including drilling core holes and investigating the possibility of subleasing or selling the lease. Dante argues that these costs provide financial incentive for it to develop the coal, but that it is simply not economically feasible at this time for it to do so. Finally, Dante points out that there are many ten cents per ton leases still in effect in the coal fields of West Virginia, which underscores the point that this royalty rate is neither unusual nor "appallingly low."
III.
STANDARD OF REVIEW
Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Material questions of fact are limited to those whose outcome is determinative of the substantive legal issue in question. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The moving party bears the initial burden of identifying "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 Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). The burden then shifts to the respondent, who may not rest on the pleadings, but must point to specific facts showing that there is a genuine triable issue. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Kitchen v. Upshaw, 286 F.3d 179, 182 (4th Cir.2002).
IV.
ANALYSIS
A.
The Applicability of Oil and Gas Case Law to a Coal Case
To analyze this case, the Court first must determine whether Ross is correct that case law regarding oil and gas leases applies to a case involving a coal lease. In its argument, Ross relies almost exclusively on the authority in oil and gas cases, which Dante insists is inapplicable for several reasons.
First, Dante claims that the jurisprudence of oil and gas is almost entirely separate from that of coal in West Virginia. It notes that the leading oil and gas case relied upon by Ross, McCullough Oil v. Rezek, 176 W.Va. 638, 346 S.E.2d 788 (W.Va.1986), although frequently cited in other oil and gas cases, is never cited in a coal case. Second, Dante points out that, in both form and content, oil and gas leases are very different from coal leases. Typically, oil and gas leases contain habendum clauses that provide the lease shall remain in effect so long as production continues. Coal leases, on the other hand, rarely contain such clauses, providing instead that the lease shall remain in effect until all of the mineable and merchantable *720 coal has been exhausted.[1] Also, oil and gas leases rarely contain a provision requiring payment of minimum royalties or rental payments. However, coal leases often provide for minimum royalties or rentals.
In addition, Dante documents the differences in oil and gas and coal production. Oil and gas production is ordinarily continuous, sometimes lasting for many consecutive years. Coal production, by contrast, is rarely continuous, and sometimes involves pauses lasting several years. One reason for this is that oil and gas is fugacious, and can be lost to surrounding property if not diligently captured. Coal, of course, remains in the ground until removed, and mining companies often delay mining or marketing until doing so is profitable.
In reply to all this, Ross claims that oil and gas cases have been cited in coal cases, noting in particular Iafolla v. Douglas Pocahontas Coal Corp., 162 W.Va. 489, 250 S.E.2d 128 (1978), a case on which Dante relies heavily. Ross points out that even Iafolla cites at length the oil and gas lease case of Wilson v. Reserve Gas Co., 78 W.Va. 329, 88 S.E. 1075 (1916), and that Iafolla also distinguished the case of Chandler v. French, 73 W.Va. 658, 81 S.E. 825 (1914). In Chandler, the West Virginia Supreme Court noted that the doctrine of abandonment of mineral leases for non-exploitation is alive and well in West Virginia, but found the doctrine inapplicable to the case:
In respect to the lessee's duty to develop there is no distinction between an oil and gas lease and a coal lease. The difference in the nature of the minerals, with respect to which the right is given, furnishes no basis for applying to the two kinds of leases different rules of construction. That the existence of one is known and the other unknown is no reason why the lessee should not be diligent to develop in the one case as in the other.
81 S.E. at 828.
The facts in Chandler are substantially different from those in the present case. There, the lease contained no provision for the payment of minimum royalty or rental payments, and the lessee did not pay property taxes. These facts demonstrate a lease more typical of an oil and gas lease, and significantly different from the usual coal lease. Moreover, in Chandler, the only consideration for the lease was in the form of a royalty measured by the amount of mineral produced. Despite these important differences, Ross insists that the case strongly supports its position that cases involving oil and gas leases are applicable to cases involving coal leases.
To settle this dispute, the Court need not draw a sweeping conclusion that all oil and gas cases either apply or do not apply to all coal cases. A more reasonable approach is to consider the factual background of each case. If the facts of a particular oil and gas case are similar to those of a coal case, the case's analysis may assist a court in a coal case. On the other hand, if there are important factual differences between the oil and gas and coal cases, such as the presence or absence of an habendum clause or a provision for minimum royalty payments, the oil and gas case would be of little assistance in *721 deciding a coal case. Because such important factual differences typically exist, oil and gas cases normally are not very helpful in analyzing coal cases. However, some coal cases have cited to oil and gas cases, and there is no reason why, in reviewing this coal case, this Court should refuse to consider an oil and gas case if the material facts are similar.
This determination does not help Ross much, however, because most of the oil and gas cases on which it relies do not have minimum royalty or rental payment provisions, or provisions requiring continuous production. Still, in the remaining analysis, the Court will discuss several of the cases on which Ross relies to illustrate the significance of the factual differences to the legal analysis here.
B.
Whether the Lease was Terminated Through Forfeiture or Abandonment
The major question in this case is whether the lease between Ross and Dante has terminated due to abandonment or forfeiture. To make that determination, it is necessary to determine whether Dante had any express or implied duty to mine.
Dante did not have any express duty either to mine continuously or to act with reasonable diligence. The coal lease did not contain an habendum clause providing that the lease would remain in effect so long as production continued. Rather, it contained a term clause providing that the lease would remain in effect until the supply of mineable and merchantable coal was exhausted. Unlike in many coal leases, the lease did not contain any clause requiring Dante to act with reasonable diligence. Therefore, Dante's cessation of production did not violate any express lease provision.
Dante also had no implied duty to mine. The lease agreement provided for annual minimum royalty payments. This provision suggests that the parties anticipated there might not be continuous mining. Courts have generally imposed an implied duty to act with reasonable diligence only when there is no provision requiring payment of minimum royalties or rentals. This makes sense because minimum royalties or rental payments are designed to ensure that the lessor receives a return on its investment regardless of whether there is actual production, and also to protect the lessee in case production becomes temporarily impossible or unprofitable.
Minimum royalties or rentals serve as a substitute for a due diligence provision and extend the lease despite periods of low production or non-production. See Iafolla, 162 W.Va. at 490, 250 S.E.2d 128 (syllabus point 2)(absent extraordinary circumstances, lease providing for minimum rental payment could not be considered abandoned during its term for failure to exploit minerals so long as minimum rental payments were regularly tendered); Goodwin v. Wright, 163 W.Va. 264, 255 S.E.2d 924 (W.Va.1979) (lease was terminated because lessee failed to produce and did not pay royalties or rentals to keep the lease in effect); Begley v. Peabody Coal Co., 978 F.Supp. 861 (S.D. Indiana 1997) (although the implied obligation of diligent mining has been widely recognized by courts, it is a narrow principle, and it does not apply when the parties to the lease provide for some substantial amount of advance royalties or other assurance of income to the lessor in the event the lessee does not mine at all; Dulin v. West, 35 Colo.App. 6, 528 P.2d 411 (Colo.1974) (where minimum royalties and annual rentals provided for in lease are reasonably substantial in relation to anticipated return from the property, they are in effect an agreed compensation to the lessor for the lessee's failure to achieve reasonable production); Archer v. Mountain Fuel Supply Co., 102 Idaho 852, 642 P.2d 943 (Idaho 1982) (courts have not *722 imposed an implied-in-law obligation to mine, separate and apart from the language of an agreement, where substantial consideration was paid in exchange for a mining lease). These cases suggest that, where there is no lease requirement of continuous production or due diligence, and where minimum royalty payments are made as required by the lease, there has been no forfeiture or abandonment through non-production.
Christian Land Corp. v. C. & C. Co., 188 W.Va. 26, 422 S.E.2d 503 (W.Va.1992)(per curiam), is the only West Virginia case finding abandonment of the coal lease despite the presence of a minimum rental payment provision. The facts of that case, however, are quite unlike those in the instant case. The lessee coal company in Christian had its mining permits revoked and was in bankruptcy proceedings. 422 S.E.2d at 505. Under the bankruptcy court's order, the coal company had no continuing obligation to make lease payments or maintain any West Virginia interest in the property. Id. In the context of these facts, the West Virginia Supreme Court of Appeals concluded that the coal company's loss of its mining rights, and its failure to even attempt to regain those rights, constituted abandonment of the lease. Id. at 507-08.
Here, by contrast, Dante has continued its payments as due under the lease, and there is no indication that it will cease doing so. Moreover, Dante's permits have not been revoked, although they are in inactive status.
Abandonment requires both physical abandonment and an intent to abandon, Christian Land Corporation v. C. & C. Company, 188 W.Va. 26, 422 S.E.2d 503 (W.Va.1992), and depends on the particular circumstances of each case. Id. Here, Dante has continued to maintain the property and has paid a maintenance crew. It has drilled test holes and explored the possibilities of subleasing or selling its interest. It has paid property tax reimbursements and minimum annual royalty payments to Ross, and kept all permits active so it could begin to mine if doing so became plausible. These actions clearly indicate that Dante had no intention to abandon, and did not physically abandon, the property. Thus, the Court concludes it has not abandoned the lease. Because there has been no abandonment or forfeiture of the lease, the lease remains in effect and Dante retains its rights under the lease to be on the property.
C.
Whether Reformation of the Lease Agreement is Appropriate
Ross asserts that, if the lease has not terminated, it should be reformed because it is inequitable or unconscionable to enforce a lease with such an "appallingly low" minimum royalty rate. Dante argues that, when all of the facts of the case are considered together, the royalty rate is not "appallingly low," but, rather, is exactly what Ross bargained for. It appears that, at the time of the sale, both Ross and Bogert knew the coal was subject to a long-term lease with a low royalty rate. It follows that this necessarily helped Ross obtain a favorable purchase price. Also, Ross was aware that there was a limited coal market in the area, particularly for the high-sulfur coal reserved in the lease, and knew that there had been no production on the premises for many years. In light of these facts, the minimum royalty payment is not appallingly low. It is what was bargained for, and is a reasonably substantial return on the investment, particularly when one considers that Ross does not bear the cost of maintenance or taxes.
In addition to these basic equitable considerations, Dante correctly points out that *723 reformation is only a remedy in West Virginia for mutual mistake of fact. Because there is no evidence that there was mutual mistake of fact, or even mistake of one party, in negotiating the original lease or subsequent transfers of the interests, there is no legal or equitable basis for reforming the lease agreement in this case.
In its brief, Dante also argues that Ross has waived his right to contest the validity of the lease agreement by operation of the doctrine estoppel. In light of the Court's ruling that the lease agreement was not terminated through forfeiture or abandonment, and that the agreement should not be reformed, it need not address this issue.
D.
Whether the Doctrine of Reasonable Expectations Applies to this Case.
To protect its interests, Ross urges the Court to engraft the doctrine of reasonable expectations onto the case law of coal leases. Even if this doctrine were applicable, however, it would be of no help to Ross in the present case.
The doctrine of reasonable expectations is primarily a doctrine of insurance law. In an insurance context, the doctrine states that the objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored, even though painstaking study of the policy provisions would have negated those expectations. McMahon & Sons, Inc., 356 S.E.2d at 495. In other words, where the insured has a reasonable expectation of coverage under a policy, the insured should not be subject to technical encumbrances or hidden pitfalls.
Before the doctrine of reasonable expectations is applicable to an insurance contract, however, there must be an ambiguity regarding the terms of that contract. Nat'l Mut. Ins. Co. v. McMahon & Sons, Inc. 177 W.Va. 734, 741, 356 S.E.2d 488, 496 (W.Va.1987)(citing Soliva v. Shand, Morahan & Co., 176 W.Va. 430, 345 S.E.2d 33, 35-36 (1986)). The requirement of ambiguity is based on the fact that the doctrine is essentially a rule of construction, and unambiguous contracts do not require construction by the courts. Thus, even if the doctrine generally applied in coal lease cases, something no West Virginia court has held, it would not apply to the present case because the lease agreement is unambiguous.[2]
V.
CONCLUSION
Ross' claim against Dante fails because there is no express or implied duty on the part of Dante to mine continuously or to operate with due diligence. The minimum annual royalty payment has maintained the lease in effect despite Dante's period of non-production. Thus, Dante has not forfeited its rights under the lease due to its failure to produce. In addition, it neither physically abandoned nor intended to abandon the property, so the lease was not terminated through abandonment. Furthermore, there are no legal or equitable grounds for reformation of the lease agreement. Finally, the doctrine of reasonable expectations is inapplicable to the present case. Accordingly, the lease agreement remains in full effect. For the reasons stated, the Court DENIES Ross' motion for Summary Judgment and GRANTS Dante Coal's motion for Summary Judgment. The Court enters JUDGMENT for the defendant, Dante Coal Company, and DISMISSES the case with prejudice.
*724 It is so ORDERED.
The Clerk is directed to transmit copies of this Order to counsel of record herein.
NOTES
[1] The lease agreement in this case contains a clause providing that the term would "continue until December 31, 1973, and thereafter until all of the mineable and marketable coal that can be removed from the premises by use of efficient, practical and modern methods of mining is exhausted, unless sooner terminated as hereinafter provided...." This clause is present in the original lease, signed in 1955, and had remained unchanged despite subsequent amendments to the lease in June of 1966 and January of 1967.
[2] And even if the contract were ambiguous and the doctrine did apply, it still would not help Ross because any expectations of continuous production or higher royalty rates which Ross might have had were unreasonable in light of all the circumstances of this case.
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804 F.2d 763
25 ERC 1300, 256 U.S.App.D.C. 218, 17Envtl. L. Rep. 20,119
KENNECOTT CORPORATION, Petitioner,v.ENVIRONMENTAL PROTECTION AGENCY, Respondent.ASARCO INCORPORATED and Magma Copper Company, Petitioners,v.ENVIRONMENTAL PROTECTION AGENCY, Respondent.The BUNKER HILL COMPANY, Petitioner,v.ENVIRONMENTAL PROTECTION AGENCY, Respondent.MOLYCORP, INC., Petitioner,v.ENVIRONMENTAL PROTECTION AGENCY, Respondent.ASARCO INCORPORATED, et al., Petitioners,v.ENVIRONMENTAL PROTECTION AGENCY, Respondent.
Nos. 80-2036, 80-2039, 80-2040, 80-2041 and 81-1173.
United States Court of Appeals,District of Columbia Circuit.
Argued May 23, 1986.Decided Nov. 7, 1986.
Bruce C. Swartz, with whom Nancy C. Shea, Washington, D.C., was on the motion for award of attorneys' fees, for petitioners, ASARCO, Inc., et al.
Carl Strass, Atty., Dept. of Justice, Washington, D.C., for respondent.
Before BORK, STARR and SILBERMAN, Circuit Judges.
Opinion PER CURIAM.
PER CURIAM:
1
This case involves a dispute over attorneys' fees that grows out of our decision in Kennecott Corp. v. EPA, 684 F.2d 1007 (D.C.Cir.1982). In that case, petitioners were partially successful in challenging EPA regulations governing the issuance of primary nonferrous smelter order (NSO) regulations. On June 13, 1985, the original panel issued a brief per curiam order granting petitioners' request for attorneys' fees in the amount of $203,140.1 EPA petitioned for rehearing, and the court, acting en banc, vacated the panel's order of June 13, 1985, and reassigned the case to the present panel for further consideration on the fees issue.
2
EPA challenges petitioners' fee request on several grounds. EPA argues that petitioners "completely lost" on two issues and should not recover fees for time spent addressing those issues. The agency also contends that the fee request should be further reduced because petitioners have inadequately documented their request and because various specific items in the request are "suspect." Petitioners respond that no deduction should be made for the claims on which they were unsuccessful because overall they achieved "excellent results" and are therefore entitled to a "fully compensatory fee." See Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). Petitioners also contend that their fee request has been carefully documented and that market forces can be relied upon to substantiate the reasonableness of the specific items of the request challenged by EPA. We hold that petitioners are entitled to attorneys' fees, but conclude that the fee amount ultimately awarded to petitioners must be reduced in light of poor documentation and petitioners' lack of success on one issue. We then refer the remaining factual issues to a magistrate.
I.
3
Petitioners' fee request is grounded on section 307(f) of the Clean Air Act, which provides:
4
In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate.
5
42 U.S.C. Sec. 7607(f) (1982). While most fee statutes are limited to "prevailing" parties, see, e.g., 5 U.S.C. Sec. 552(a)(4)(E) (1982) (Freedom of Information Act fee awards), Congress in enacting section 307(f) specifically decided not to limit the class of potential beneficiaries in that manner. See H.R.Rep. No. 294, 95th Cong., 1st Sess. 337, reprinted in 1977 U.S. Code Cong. & Admin. News 1077, 1416. Thus, on its face, section 307(f) does not mandate success as a prerequisite to a fee award. The Supreme Court has held, however, that Congress did not by this broad standard intend to authorize fees for parties that were wholly unsuccessful on the merits. Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983). Similarly, this circuit has determined that parties are not entitled to fees under section 307(f) for time spent on issues on which they were wholly unsuccessful. Sierra Club v. EPA, 769 F.2d 796, 802 (D.C.Cir.1985).
6
Sierra Club derived this issue-by-issue approach from Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). There, in applying a "prevailing party" fee statute, the Supreme Court held that when a plaintiff presents "distinctly different claims for relief that are based on different facts and legal theories," id. at 434, 103 S.Ct. at 1940, there can be no fee award for unsuccessful issues. The Court concluded that "[t]he congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim." Id. at 435, 103 S.Ct. at 1940 (footnote omitted).
7
As we have seen, Congress did not intend in section 307(f) to limit fee awards to prevailing parties. But the Supreme Court in Ruckelshaus determined that Congress did intend that section 307(f) be limited to parties who demonstrate at least some success. This court in Sierra Club examined Hensley and Ruckelshaus and concluded that a party may recover fees only for issues on which it achieved a "modicum of success," a lower standard than that of "prevailing party" and one that this court determined was consonant with the standard set forth in section 307(f). Sierra Club, 769 F.2d at 800, 802.
8
With these principles in mind, we are called upon to make an issue-by-issue assessment of petitioners' success and discount the fee request for time spent on issues on which a "modicum of success" was not achieved. 769 F.2d at 801-02; see Hensley, 461 U.S. at 434-36, 103 S.Ct. at 1939-41. In this case, petitioners advanced three basic arguments on the merits: that EPA's procedural actions in promulgating the NSO regulations at issue were improper; that EPA's regulations concerning a financial test for NSO eligibility were inconsistent with the statute; and that EPA did not have statutory authority to require a particular treatment for certain sulfur dioxide streams.
9
In its examination of the merits, this court ruled favorably on petitioners' procedural and financial-test claims, but rejected the sulfur dioxide streams argument. Kennecott v. EPA, 684 F.2d at 1013-20. In a footnote, the court also rejected one argument petitioners advanced in attacking the financial eligibility test, concluding that their claim--that the test improperly usurped the role of the States--was "without merit." Id. at 1014 n. 18.
10
In light of this court's disposition of the various issues on the merits, we conclude that the ultimate fee award must be discounted for petitioners' failure to succeed on the sulfur dioxide streams issue. Petitioners' attack in this respect was predicated on their reading of EPA regulations to require installation of an additional acid plant to treat those streams. Petitioners claimed that EPA's imposition of such a requirement conflicted with the statute itself. This court disagreed, stating: "We cannot agree with Asarco and Magma's basic premise. There is, on this record, no basis to conclude that EPA's bypass rules require a smelter to install additional acid plant capacity." 684 F.2d at 1015.
11
Since it is clear that this circuit is "extremely reluctant to award fees for time expended on ... unsuccessfully raised issues," Sierra Club, 769 F.2d at 802 (applying Hensley ), petitioners now attempt to cast the court's conclusion in this regard not as a "loss," but as a failure to reach the merits. See Memorandum of ASARCO and Magma on Rehearing Regarding Attorneys' Fees at 12 (May 1, 1986). If that were so, there would be no basis for reducing the fee. See Hensley, 461 U.S. at 435, 103 S.Ct. at 1940 (a court's "failure to reach" an issue is not grounds to reduce a fee award). But that is not the case. To be sure, our court did not reach the issue whether requiring an additional plant would conflict with the statute, but it failed to address that issue because it rejected petitioners' interpretation of the regulations. It is unreasonable and wrong to characterize a specific rejection of the fundamental predicate of petitioners' argument as a "failure to reach" the issue. By virtue of the court's dismissal of their argument, petitioners fall short in this respect of the requisite "modicum of success." Sierra Club, 769 F.2d at 800. We hold that the ultimate award of fees to petitioners must be reduced by the amount of compensation that petitioners have claimed for time spent on the sulfur dioxide streams issue. If it cannot be discerned from the record how much time was spent on this argument, the ultimate fee award shall be reduced by one-third, since this argument was one of petitioners' three primary arguments.
12
Petitioners were similarly unsuccessful in their argument regarding the exclusive regulatory power of the States. As we have seen, however, this argument was advanced in the form of an alternative attack on the validity of the financial eligibility test for NSO's.2 Petitioners claimed that the test was inconsistent with the statute and that its imposition usurped the exclusive regulatory power of the States. The court rejected the second line of argument, but accepted the first, vacating the regulations and remanding to EPA for further proceedings. Kennecott, 684 F.2d at 1014, 1020. Petitioners were thus completely successful on their challenge to the financial eligibility test, and the court's rejection of their alternative (State power) challenge to the same test provides no grounds for reducing the fee. As the Supreme Court instructed in Hensley: "Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters." Hensley, 461 U.S. at 435, 103 S.Ct. at 1940; see also Sierra Club, 769 F.2d at 803 (awarding fees for unsuccessful challenge to one aspect of a certain regulatory definition because a separate challenge to another aspect of the same definition was successful). Accordingly, the fee request is correct insofar as it compensates petitioners for time spent on the issue concerning the States' regulatory power.
II.
13
Our review of petitioners' fee request has been greatly hampered by the inadequacy of the records submitted by petitioners. Petitioners have refused to provide the contemporaneous time logs that were compiled to detail the hours spent on this litigation. Instead, they have provided two other sets of documents. The first is the stack of monthly bills sent by the firm to its clients, which do not separate the work billed on this litigation from other services performed for the same companies. A typically uninformative entry reads:
14
Disbursements for the period April 1 through June 30, 1980 (duplicating, postage, long-distance telephone charges, out-of-town travel expenses: Mr. Beers to New York (4/7/80) and Ms. Shea to New York (6/11/80), miscellaneous expenses) ... $1,479.97.
15
Bill from Shea & Gardner to Magma Copper Company (Sept. 2, 1980). The second set of documents, which purports to segregate from those monthly bills the work done on this case, contains generalized summaries of work performed during the individual billing periods, summaries that were themselves reconstructed from the contemporaneous time records that have been withheld. The summaries are only slightly more enlightening. A typical entry identifies the work performed for a given period as follows:
16
Analysis of final NSO regulations; first joint petition for review; research.
17
Monthly Breakdown of Attorneys' Fees, Billing Period July 1, 1980 to Sept. 30, 1980.
18
These documents are of very little help. Because they do not reveal how much time has been spent on each issue, we are unable to make that calculation ourselves unless we resort to a mechanical percentage figure. Other items in dispute here, such as the amount of time spent on the reply brief and whether time has been billed even though it relates only to work before the agency, have also been made more difficult to resolve as a result of the imprecision of the documentation. This is one reason why contemporaneous time charges are generally required. See McCann v. Coughlin, 698 F.2d 112, 130 n. 18 (2d Cir.1983).
19
This circuit and others have indicated that contemporaneous time charges should be filed with the motion for attorneys' fees as a matter of course, and certainly should be provided once legitimate questions are raised by the opposing party. See Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir.1984); McCann, 698 F.2d at 131; National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 & n. 12 (D.C.Cir.1982). Petitioners suggest that because these fees were originally submitted to a private client--in contrast to the situation surrounding most fee litigation--market discipline will ensure that the bills are not inflated, and less exacting scrutiny from this court is needed. We disagree. As we have explained, the time records are necessary in order for us to resolve disputed questions about what work was actually done. Moreover, we are not prepared to hold that the willingness of a private client to pay a bill necessarily demonstrates that the charge was reasonable under the statutory definition and can therefore be automatically assessed against the government.3
20
Fee applicants bear the "heavy obligation to present well-documented claims," Concerned Veterans, 675 F.2d at 1324, and that obligation was not met here. A fee award may be discounted as a result of poor documentation. Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. Accordingly, we hold that the ultimate award of fees to petitioners must also be reduced by 15%.
III.
21
EPA has raised a number of factual issues pertaining to the reasonableness of petitioners' fee request: whether the number of hours spent on the reply brief, on the bill, and on preparation for oral argument were excessive; whether the number of attorneys used by Shea & Gardner was unreasonable; and whether petitioners' fee request includes time that cannot be recovered because it was spent only on matters before the agency.4 Statutory provisions like section 307(f), which provide attorneys' fees for direct appeals of agency action to an appellate court, require factual inquiries that we are ill-equipped to judge in the first instance. Accordingly, we refer these remaining factual matters to a magistrate. Although appellate courts do not have express authority to appoint magistrates under the Federal Magistrates Act, 28 U.S.C. Sec. 631 (1982), nothing in the statute prohibits us from exercising our traditional equitable powers--in cooperation with the District Court for the District of Columbia--to appoint a magistrate to assist us in making factual inquiries. See Ex parte Peterson, 253 U.S. 300, 312-14, 40 S.Ct. 543, 547-48, 64 L.Ed. 919 (1920).
22
In sum, we wish to restate our precise disposition of this case. The specific factual issues that we have identified as relevant to the reasonableness of petitioners' fee request are referred to a magistrate with instructions to determine if any aspects of the petitioners' request are unreasonable and, if necessary, to make appropriate adjustments to the $203,140 request.5 After making any such adjustments, the magistrate shall reduce the ensuing figure in two respects. First, the figure shall be reduced by the amount necessary to reflect petitioners' lack of success on the sulfur dioxide streams issue. If the amount of this adjustment cannot be discerned from the record, then the figure shall simply be reduced by one-third. The remaining sum shall then be reduced by 15% for poor documentation to yield the ultimate fee award.
23
It is so ordered.
1
In addition, the panel reaffirmed its previous award of costs in the amount of $2,065 and denied petitioners' request for other costs. We do not reconsider that aspect of the order
2
In their 93-page opening brief on the merits, petitioners devoted 22 pages to the challenge to the financial eligibility test, of which only 4 1/2 pages dealt with the state-power issue. This contention was clearly a subsidiary, alternative argument
3
Petitioners point to Laffey v. Northwest Airlines, 746 F.2d 4 (D.C.Cir.1984), to support their argument about reliance on the market as a check upon the reasonableness of attorneys' fee requests. Laffey, however, is inapposite here; it relied on the market mechanism only to establish the reasonableness of hourly rates, not to establish the reasonableness of all aspects of a fee request. Id. at 13-25. Reliance on the market as a check on other aspects of a fee request, such as allotment of tasks, was only accepted to the extent those other items were found independently by the court to be "reasonable." Id. at 26
4
EPA also contends that petitioners should not receive fees at its attorneys' commercial rate but rather "at the same rate as environmental lawyers who regularly handle similar issues." In Laffey, however, we rejected that argument and held that as long as the fees the firm charges are "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation," 746 F.2d at 25 (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984)), the firm's established billing rates provide fair compensation, id. at 24-25. In our view, the actual billing rates in the present case were appropriately used in calculating the fee request
5
We would suggest, however, that two of the charges contained in the fee request seem excessive on their face. Petitioners seek fees for over 50 hours of attorney time spent preparing the bill. That figure seems unreasonable, especially if contemporaneous time charges are kept. Additionally, at least four attorneys devoted at least 93 hours of time to preparation for oral argument. (We say "at least" because portions of the time spent on preparation were amalgamated within the monthly breakdowns along with other activities, and thus it is impossible for us to know precisely how many hours above 93 were spent.) Given the substantial amount of time that already had been committed to researching and writing the briefs, 93 hours seems an excessive amount of time to prepare for oral argument. If there are facts of which we are unaware that justify these apparently excessive claims, the magistrate is, of course, free so to find
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736 F.2d 525
Fed. Sec. L. Rep. P 91,576SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellant,v.James H. RANDOLPH, Jr., and Charles Blackard, Defendants-Appellees.
No. 83-2070.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted April 10, 1984.Decided June 29, 1984.
Linda D. Feinberg, SEC, Washington, D.C., for plaintiff-appellant.
Robert F. Watson, Law, Snakard & Gambill, P.C., Fort Worth, Tex., for defendants-appellees.
On Appeal from the United States District Court for the Northern District of California.
Before WISDOM,* DUNIWAY, and ANDERSON, Circuit Judges.
J. BLAINE ANDERSON, Circuit Judge:
1
The Securities and Exchange Commission brought an action against James H. Randolph and Charles Blackard alleging violations of Sec. 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78j(b), and Rule 10b-5, 17 C.F.R. 240.10b-5, for illegal insider trading. Simultaneous with the filing of the complaint, the parties filed a proposed consent decree. The district court, 564 F.Supp. 137, rejected the proposed decree and dismissed the action. We reverse.
I. BACKGROUND
2
On October 5, 1981, a merger between Santa Fe International Corporation (Santa Fe) and Kuwait Petroleum Company (Kuwait) was announced. Kuwait's $51 per share tender offer caused the value of Santa Fe stock to rise from $24.75 on October 1 to $43.75 on October 6.
3
The SEC soon began an investigation into alleged insider trading in Santa Fe stock. Its investigation led it to believe that numerous individuals, including the defendants, traded on non-public insider information and reaped sizeable gains after the Kuwait offer for Santa Fe was announced. The purchase of call option contracts was one of the methods used to secure the greatest returns. Call options are highly speculative agreements in which the buyer acquires the right to purchase shares of the underlying security at a fixed price at a future date.
4
Randolph is a vice president of a Santa Fe subsidiary. Blackard is a former manager of the same subsidiary. The SEC's complaint alleged that during August and September of 1981 each of these individuals learned of the possibility of Kuwait's tender offer for Santa Fe. The complaint states that Randolph gave this information to his father-in-law, who purchased 65 call option contracts in September for $1,059.53. This investment returned a profit of $76,647 in October. The complaint also alleges that Blackard invested $1,940 in September and realized a profit of $40,060 in January, 1982.
5
After its investigation, the Commission negotiated a settlement with Randolph and Blackard. On the day the SEC filed its complaint, September 30, 1982, the defendants each filed a "Consent and Undertaking" in which they consented to the entry of permanent injunctions against future violations of the securities laws, agreed to disgorge the profits from the trading mentioned above, and agreed to cooperate in the SEC's continuing investigation of other insider trading in the Kuwait-Santa Fe merger. Proposed judgments incorporating the terms of the consents were also filed.
6
At two hearings in the fall of 1982, the district judge expressed reservations about entering the proposed decrees. Particularly, he was concerned with the lack of an appropriately severe sanction against Randolph and Blackard. The Commission's attempt to alleviate the court's concerns failed and on October 15, 1983, the court denied the parties' motion to approve the judgment and dismissed the action.
7
The district court's opinion is reported at 564 F.Supp. 137 (N.D.Cal.1983). It held first that approval of the decree would not be in the public interest because the defendants were not required to pay prejudgment interest on the profits received. The court also held that, in any event, it could not enter the decree because there was no case or controversy.
8
The SEC filed a timely appeal. The defendants, Randolph and Blackard, chose not to participate in the appeal. Only the SEC briefed the issues.
II. DISCUSSION
9
We address the case or controversy issue first because it is a threshold requirement for our, and the district court's, jurisdiction. We conclude the lower court erred in holding that no controversy existed because the parties arrived in court with the proposed judgment in hand.
10
The Supreme Court has long endorsed the propriety of the use and entry of consent judgments. E.g., Swift & Co. v. United States, 276 U.S. 311, 325-326, 48 S.Ct. 311, 314-315, 72 L.Ed. 587 (1928); Pope v. United States, 323 U.S. 1, 12, 65 S.Ct. 16, 22, 89 L.Ed. 3 (1944); United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). In Swift & Co. the Court was presented with an issue very similar to the one in this case. Simultaneously with an antitrust complaint filed by the United States and answers filed by the defendants, the parties filed a proposed consent decree. The court entered the decree. Four years later, the defendants returned to court arguing that the decree was void for lack of case or controversy when it was entered. The Supreme Court upheld the decree, noting that, as here, the decree called for prospective injunctive relief which overcame the argument that the case had become moot prior to entry of the decree. 276 U.S. at 325-326, 48 S.Ct. at 314-315; see also Dacanay v. Mendoza, 573 F.2d 1075, 1078 (9th Cir.1978) ("it is ... well settled in the usual litigation context that courts have inherent power summarily to enforce a settlement agreement with respect to an action pending before it").
11
We also disagree with the district court's statement that even if it had jurisdiction, it was unnecessary to exercise it because the parties could rely on their settlement agreement and bring a later action if one of the parties failed to abide by it. This reasoning neglects the contingent nature of the proposed decree; without court approval, the parties might claim the right to withdraw their consent to the agreement. See Carson v. American Brands, Inc., 450 U.S. 79, 87, 101 S.Ct. 993, 998, 67 L.Ed.2d 59 (1981); cf. Collins v. Thompson, 679 F.2d 168, 172-173 (9th Cir.1982) (judicial disapproval of a consent decree is a condition subsequent; where a party submits a proposed decree which is subsequently accepted by the other party, the parties are bound by the agreement unless the court fails to approve it). It also runs against the judicial recognition of the validity and efficacy of this procedure. Carson, 450 U.S. at 86-87, 101 S.Ct. at 997-998. The use of consent decrees encourages informal resolution of disputes, thereby lessening the risks and costs of litigation. Id.; Dacanay, 573 F.2d at 1078. A consent decree offers more security to the parties than a settlement agreement where "the only penalty for failure to abide by the agreement is another suit." United States v. City of Miami, 664 F.2d 435, 439 (5th Cir.1981) (en banc) (Rubin, J., concurring). A consent decree is a judgment, has the force of res judicata, and it may be enforced by judicial sanctions, including, as in this case, citations for contempt. Id. at 439-440.
12
For these reasons, we conclude that the district court erred in holding that it could not enforce the decree because there was no case or controversy and because the parties' contract remedies were available.
13
The district court also concluded that it should not approve the decree because it was not in the public's best interest. It was not in the public interest, the court believed, because it did not impose severe enough sanctions against Randolph and Blackard. In particular, it did not require the defendants to pay prejudgment interest on the profits realized from trading Santa Fe stock. We sympathize with the district court's concern that insider trading should be met with appropriate sanctions. Nevertheless, we believe the district court used too strict a standard on which to condition its approval of the decree.
14
"The initial decision to approve or reject a settlement proposal is committed to the sound discretion of the trial judge." Officers for Justice v. Civil Service Commission, 688 F.2d 615, 625 (9th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1219, 75 L.Ed.2d 456 (1983) (citations omitted). This discretion is not unbridled, however. Unless a consent decree is unfair, inadequate, or unreasonable, it ought to be approved. Id.; see Citizens for a Better Environment v. Gorsuch, 718 F.2d 1117, 1126 (D.C.Cir.1983). Also, the courts should pay deference to the judgment of the government agency which has negotiated and submitted the proposed judgment. See Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1178 (9th Cir.1977); Officers for Justice, 688 F.2d at 625; see also Sam Fox Publishing Co. v. United States, 366 U.S. 683, 689, 81 S.Ct. 1309, 1312, 6 L.Ed.2d 604 (1961).
15
The district court believed that the purposes of the securities laws and an analogous requirement in the Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16(e), required it to closely scrutinize the proposed decree to see if it was in the public's best interest. We do not question the appropriateness of a requirement that the decree be in the public interest. The purpose of the securities laws is to protect the public. See United States v. Naftalin, 441 U.S. 768, 775-776, 99 S.Ct. 2077, 2082-2083, 60 L.Ed.2d 624 (1979). As the agency given the responsibility of administering the securities laws, the SEC ought to always be required to serve the public interest. That does not mean, however, the district court should have conditioned approval of the consent decree on what it considered to be the public's best interest. Instead, the court should have deferred to the agency's decision that the decree is appropriate and simply ensured that the proposed judgment is reasonable.
16
The primary civil remedy available to the SEC for a violation of the prohibition on insider trading is an injunction, 15 U.S.C. Sec. 78u(d), although this provision has been interpreted liberally to provide for other forms of equitable relief. E.g., Handler v. SEC, 610 F.2d 656, 659 (9th Cir.1979). In this case, the Commission was able to secure through defendants' consent an injunction against future violations, disgorgement of profits received, and cooperation in the continuing investigation of the Santa Fe-Kuwait merger. The only remedy arguably available that was not incorporated into the consent decree was the payment of approximately $8,000 in prejudgment interest on the profits. The failure to incorporate this sanction led the district court to believe that the decree was not in the public's best interest because it failed to have an adequate deterrent effect.
17
As the district court recognized, the "purpose of injunctive relief against violators of the securities laws is to deter future violations, not to punish the violators." SEC v. Koracorp Industries, Inc., 575 F.2d 692, 697 (9th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978). We are unable to agree, however, that the payment of $8,000 in interest is so significant to the deterrent purpose of the SEC's injunctive remedy that the consent decree should not have been approved.
18
Compromise is the essence of a settlement. Armour & Co., 402 U.S. at 681, 91 S.Ct. at 1757. Even if the Commission's case against Randolph and Blackard is strong, proceeding to trial would still be costly. The SEC's resources are limited, and that is why it often uses consent decrees as a means of enforcement. See SEC v. Clifton, 700 F.2d 744, 748 (D.C.Cir.1983). The SEC is investigating other individuals who purportedly reaped much greater gains from insider trading in Santa Fe stock, and the SEC has ample reason to allocate more of its resources in those investigations. The agreement of Randolph and Blackard to cooperate in these investigations must also be considered. In addition, the disgorgement agreement required Randolph to return $76,647 realized not by him but by Minor, his father-in-law. Nowhere in the record before us is it indicated that Minor was to turn the profits over to Randolph. If not, this surely is a substantial penalty against Randolph. Any of these factors may have been worth $8,000 to the Commission.
19
For these reasons, we find that the consent decree should have been approved. The initial determination whether the consent decree is in the public interest is best left to the SEC and its decision deserves our deference. The provisions of the proposed decree have an adequate deterrent effect for it to be in the public interest. Accordingly, we reverse the judgment of the district court, with directions to enter the consent decree.
20
REVERSED.
*
The Honorable John Minor Wisdom, Senior Circuit Judge for the Fifth Circuit, sitting by designation
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58 F.Supp. 417 (1944)
SANDERS
v.
ALLEN.
No. 3145.
District Court, S. D. California, Central Division.
December 29, 1944.
*418 Allard & Whyte, of Pomona, Cal., for plaintiff.
Paul Taylor, of Los Angeles, Cal., for defendant.
J. F. T. O'CONNOR, District Judge.
This action is founded in tort. The plaintiff prays judgment against the defendant for actual damages in the sum of $100,000 and punitive damages in the sum of $100,000, making a total of $200,000. Both plaintiff and defendant are citizens and residents of the State of California. There are two questions to be decided by the court. (1) The sufficiency of the affidavit of prejudice, and (2) the jurisdictional question. In order to pass upon the first question, a brief summary of the allegations in the complaint will be stated.
The plaintiff alleges a violation of Regulation 53 of the Emergency Price Control Act and, among the enumerated alleged violations, are:
"* * * the defendant refused to furnish steam heat, electric current for refrigeration, hot and cold running water in kitchen and some in bathroom, use sun room on roof, and use of telephone, reduced lighting in lobby making same `unsafe and impossible to read or enjoy', denied plaintiff use of porches and lobby by threatening plaintiff when plaintiff used same. The complaint alleges that when plaintiff required steam heat `defendant assaulted plaintiff threatening to do him great bodily harm, shouted at him in a loud and angry tone and shaking his fist in plaintiff's face.'
"* * * attempted to force plaintiff out of apartment in violation of Regulation No. 53. Defendant advised plaintiff he could rent apartment at $7.50 per month above ceiling price."
The plaintiff alleges a second assault, "* * * again assaulted plaintiff, advancing toward him with fists swinging and in a loud and boisterous voice and in an harassing and threatening manner, told plaintiff that he was going to throw him out of said tenancy on the 9th day of September, 1943, and that he intended to beat plaintiff until plaintiff was unconscious on the floor and then hurl him bodily out of the apartment", also calling the plaintiff bad names. The complaint then alleges that other tenants in the same apartment have had their rent raised by the defendant in excess of the ceiling rentals, and alleges that the plaintiff is not in default in the payment of his rent. The defendant answered and denies specifically and generally all of the allegations of the complaint, and as a separate defense contends the court has no jurisdiction of the cause of action; and further that the complaint does not state a claim upon which relief can be granted in this court.
It will be noted that the plaintiff does not allege a battery, and counsel frankly admit that the defendant never committed a battery of any kind upon the plaintiff.
The allegations in the complaint, if established, would show continued irritating conduct on the part of defendant toward the plaintiff, and alleges further: "permanently impaired the range of plaintiff's vision * * *."
At the pretrial hearing the court called the plaintiff's attention to what the *419 court considered a prayer for excessive damages under the facts alleged in the complaint, and expressed surprise that any attorney would allege damages in the amount of $200,000 under the facts stated. The attorney for the plaintiff contends that it was an act of prejudice on the part of the court to make any such comment upon the pleadings. In other words, the plaintiff contends that such comment on the part of the court disqualifies the court from hearing the case. If the contention of the plaintiff is sound in law, then a court cannot make any comment upon any pleadings. No reference was made by the court to the plaintiff in the action, and the record shows that the court did not know either the plaintiff or the plaintiff's attorney. The plaintiff, in his affidavit, stated referring to the court: "* * * has a personal bias and prejudice against me and against my attorney, Mr. James G. Whyte, and is therefore disqualified from proceeding further herein;"
The court feels it is proper to quote from the affidavit of prejudice of the plaintiff, which affidavit is approved by the attorney for the plaintiff, alleging that the affidavit is "made in good faith by him". The affidavit, omitting the formal parts and omitting the reasons for delay in filing it, and including the entire comments made upon which the plaintiff bases his right to disqualify the court, states:
"* * * that said prejudice was manifest by the court in certain comments made by the court at the hearing of a second pretrial conference held on October 23rd, 1944, particularly in a statement twice made by the court substantially as follows: `Counsel, I am astonished that any lawyer would come before any court and make such a statement.' That the court's attitude and bias is shown by the following quotation from the reporter's transcript of the hearing held on Monday, October 23rd, 1944:
"`The Court: Counsel, do you seriously consider the damages you have prayed for should be pleaded by any lawyer, under the statements you have made to the court now, asking for $200,000 damages? How do you explain it?
"`Mr. Whyte: It is our contention that this man has lost the use of one eye in the assault that has been performed on him.
"`The Court: Supposing he has; supposing that is true, can you find a case anywhere in the United States which would award him $100,000? I don't think there has been an award of $100,000 in such a situation.
"`Mr. Whyte: I think there has been award as high as $50,000 for the loss of an eye.
"`The Court: You have asked for $200,000 damages. Do you think it is good practice, counsel, in any court of justice, to plead $100,000 exemplary damages, in a matter of this kind?
"`Mr. Whyte: If the course of conduct of this man is what we think it is, and what we think can be shown, I think it is. This man owns, and we can show he owns some eight or nineat least seven apartment hotel buildings, and if he has indulged in a course of practice, as he has in regard to this particular tenant, I don't think $100,000 exemplary damages would be out of line.
"`The Court: Counsel, I am astonished that any lawyer would come before any court, and make such a statement. I will hear the other side.'"
It will be noted that the remarks were made at pretrial conference on the 23rd of October, 1944, and that the affidavit of prejudice was filed November 17, 1944. The remarks were directed to the attorney for the plaintiff and not to either party to the action. The statute, Jud.Code § 21, 28 U.S.C.A. § 25, does not include attorneys. It provides that whenever a party to an action or proceeding "* * * shall make and file an affidavit that the judge * * * has a personal bias or prejudice either against him or in favor of any opposite party to the suit * * *." In each instance the statute refers to a partynot to an attorney. Whenever an affidavit of bias or prejudice is filed against a judge, it is the duty of the judge to pass on its sufficiency and, if found insufficient, to strike it from the files. His action is reviewable on appeal. Benedict v. Seiberling, D.C., 17 F.2d 831. The legal sufficiency of the affidavit is the only question before the court and the court cannot pass upon the truth or falsity of the facts alleged therein. Berger v. United States, 41 S.Ct. 230, 255 U.S. 22, 65 L.Ed. 481; Henry v. Speer, 5 Cir., 201 F. 869, 120 C.C.A. 207; Saunders v. Piggly-Wiggly Corp., D.C., 1 F.2d 582; Chafin v. United States, 4 Cir., 5 F.2d 592, certiorari denied, 269 U.S. 552, 46 S.Ct. 18, 70 L.Ed. 407; Lewis v. U. S., 8 Cir., 14 F.2d 369; Nations v. United States, 14 F.2d 507, certiorari *420 denied 273 U.S. 735, 47 S.Ct. 243, 71 L.Ed. 866.
United States v. 16,000 Acres of Land, More or Less, 49 F.Supp. 645. The District Judge remarked to the attorney for the government that he was a "pettifogger" and had been "pettifogging" for two and a half hours, and did not establish personal bias against the United States or against counsel requesting disqualification of the judge. The judge further stated in the same action that it appeared that unfair advantage had been taken of the landowner, that counsel were trying to cover up evidence relating to value of land involved in the condemnation proceedings.
The judge owes it to his oath of office and to the litigant who has invoked the jurisdiction of the court over which he regularly presides not to withdraw from the case, however much his personal feelings may incline him to do so. Benedict v. Seiberling, supra. If the affidavit is legally insufficient, the judge should refuse to disqualify himself, or because the litigant prefers some other judge, and should not abandon the position assigned to him by the sovereign unless required so to do by the law, particularly in criminal cases. United States v. Pendergast, D.C., 34 F. Supp. 269. It is the duty of the judge not to permit the use of an affidavit of prejudice as a means to accomplish delay and otherwise embarrass the administration of justice. United States v. Murphy, D.C., 19 F.Supp. 987. A judge, to be disqualified, must have a personal bias or prejudice against a party or in favor of an opposite party, and judicial rulings cannot ordinarily be made the basis of a charge of bias, since any error in such ruling may be corrected on appeal. Ryan v. United States, 8 Cir., 99 F.2d 864, certiorari denied, 1939, 306 U.S. 635, 59 S.Ct. 484, 83 L.Ed. 1037, rehearing denied, 1939, 306 U.S. 668, 59 S.Ct. 586, 83 L.Ed. 1063.
The orderly administration of justice requires that affidavits of personal bias or prejudice of a trial judge filed under the statute be strictly construed so as to prevent abuse, and that they state facts showing personal bias or prejudice of the judge against the affiant. Beland v. United States, 117 F.2d 958, certiorari denied 313 U. S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541, rehearing denied 314 U.S. 708, 62 S.Ct. 54, 86 L.Ed. 565.
It is well settled that the affidavit of bias or prejudice filed against a judge must be strictly construed, and the terms of the statute strictly followed. Fieldcrest Dairies v. City of Chicago, D.C., 27 F.Supp. 258.
The court finds the affidavit of prejudice filed by the plaintiff is not sufficient as a matter of law, and the motion to strike it from the files is granted.
Jurisdiction.
The plaintiff and the defendant are both citizens and residents of the State of California. In the absence of diversity of citizenship, jurisdiction of the federal court can only be invoked if Congress has conferred jurisdiction upon the court or if the right which the plaintiff claims and seeks to enforce arises under a law of Congress and the interpretation of the law in one manner would sustain his right, while the interpretation of the law in one manner would defeat it. Jurisdiction cannot be affected by waiver or conferred by agreement of the parties. Mitchell v. Maurer, 293 U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338; West Publishing Co. v. McColgan, 9 Cir., 138 F.2d 320; Williams v. Miller, 48 F. Supp. 277, affirmed 317 U.S. 599, 63 S.Ct. 258, 87 L.Ed. 489. The instant action is one sounding in tort and the District Court is without jurisdiction where diversity of citizenship is lacking and no federal or constitutional question is involved. Thomason v. War Projects Administration, 47 F.Supp. 51, affirmed 138 F.2d 342.
Where the state courts have long enjoyed jurisdiction over the subject matter of an action, jurisdiction is not withdrawn by federal statute unless such an intention is distinctly manifested. Elliott v. Steinfeldt, 254 App.Div. 739, 4 N.Y.S.2d 9; followed in Murphy v. Steinfeldt, 254 App. Div. 741, 4 N.Y.S.2d 10; 21 C.J.S., Courts, § 526, p. 800.
In order to sustain the jurisdiction of the District Court it is necessary for the complaint to clearly establish that the action arises under the laws of the United States and substantially involves a dispute respecting the validity and construction or effect of the federal statute. Jud.Code § 24(1) (a), 28 U.S.C.A. § 41(1) (a), Malone v. Gardner, 4 Cir., 62 F.2d 15; Johnson v. Thomas, D.C., 16 F.Supp. 1013, 1014: "Suit does not have its origin in laws of United States, so as to confer jurisdiction on federal court, unless it involves a real and substantial controversy respecting validity, construction, or effect *421 of such laws on which determination of result depends, and such fact must appear by distinct allegations in legal and logical form and cannot rest on inference, argument, or anticipated defense."
The federal courts do not acquire jurisdiction by virtue of a merely colorable claim under a federal statute, nor because a federal statute must be referred to to explain a contract or a local law. St. Paul, M. & M. Ry. Co. v. St. Paul & N. P. R. Co., 8 Cir., 68 F. 2, 15 C.C.A. 167, affirmed 18 S.Ct. 946, 42 L.Ed. 1212. To give jurisdiction to the federal courts, where diversity of citizenship does not exist, there must be a federal question, not in mere form, but in substance, and not in mere assertion, but in essence and effect. Cuyahoga River Power Co. v. Northern Ohio Traction & Light Co., 252 U.S. 388, 40 S. Ct. 404, 64 L.Ed. 626; Phillips v. Pucci, D. C., 43 F.Supp. 253; Jud.Code §§ 24(1) (a), 28, 28 U.S.C.A. § 41(1) (a), 71; Gully v. First Nat. Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70, reversing 5 Cir., 81 F.2d 502, certiorari granted 56 S.Ct. 939, 298 U.S. 650, 80 L.Ed. 1378; Marshall v. Desert Properties Co., 103 F.2d 551, certiorari denied 308 U.S. 563, 60 S.Ct. 74, 84 L.Ed. 473; 28 U.S.C.A. § 41(1) (a); Malone v. Gardner, 4 Cir., 62 F.2d 15; Manhattan Ry. Co. v. City of New York, 18 F. 195; Gustason v. California Trust Co., 73 F.2d 765, certiorari denied 296 U.S. 607, 56 S.Ct. 123, 80 L.Ed. 430; Gully v. First Nat. Bank, 5 Cir., 81 F.2d 502, certiorari granted, 298 U.S. 650, 56 S.Ct. 939, 80 L.Ed. 1378, and reversed 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70.
The plaintiff cites Carter v. Bramlett, D.C., 51 F.Supp. 547; 148 A.L.R. 1409. In this action the plaintiff sued for damages alleged to have been suffered by her as the result of forcible removal of herself and her furnishings from her apartment. She alleged that "the defendants, without just cause or provocation and without compliance with the existing rules and regulations of the O. P. A. governing under the Emergency Price Control Act of 1943, 50 U.S.C.A.Appendix § 901 et seq., and the minimum rent regulations pertaining thereto governing the area of Dallas, Dallas County, Texas, did institute eviction proceedings against the plaintiff." Also, that the writ of possession was issued contrary to the Emergency Price Control Act. The District Court assumed jurisdiction. It is clear from the opinion of the court that to determine the issue it was necessary to construe not only the federal statute, but also the regulations issued thereunder with reference to proper notice and other questions. One interpretation would defeat the plaintiff, while another interpretation of the Act would permit the plaintiff to prevail in the action. The opinion is clearly consistent with the decisions cited in this opinion. In the complaint before this court there was no eviction. The facts which, if established, would make out an action in tort, would be triable in the State courts without any reference to the federal statute referred to in the complaint. The plaintiff's attorney, in his brief, very frankly states the question as follows: "The terms of the Emergency Price Control Act of 1942 do not seem particularly helpful. The Act neither affirms nor denies the right to maintain this type of case. Section 205, subsections (a) to (f) inclusive [50 U.S.C.A.Appendix § 925(a to f)], deal with enforcement. Subsection (e) grants to individuals a particular form of remedy for violation. The other sub-sections cover enforcement rights granted the price administrator. Nowhere is it stated that these enforcement provisions are exclusive, nor that an individual's remedy is limited to that particular type of remedy specified in subsection (e)".
The plaintiff filed his brief on the jurisdictional question on Nov. 8, 1944, and filed his affidavit of prejudice on Nov. 17, 1944.
It is clear from the authorities cited that this court has no jurisdiction.
The action is dismissed.
Exception allowed to the plaintiff.
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661 F.2d 940
Lichti-Tarkan International Inc.v.Jetway Equipment Corp.
79-3663, 79-3679
UNITED STATES COURT OF APPEALS Ninth Circuit
9/3/81
1
C.D.Cal.
VACATED AND REMANDED
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-93-00588-CV
Williamson County Appraisal District, Appellant
v.
Nootsie, Ltd. and State of Texas, Appellees
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
NO. 90-320-C26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING
Williamson County Appraisal District (the "District") appeals from an adverse
judgment rendered in a suit brought by Nootsie, Ltd. for judicial review of an order issued by the
District appraisal review board. See Tex. Tax Code Ann. §§ 42.21-.42 (West 1992 & Supp.
1995) (the "Code"). We will reverse the trial-court judgment and render judgment as indicated
below.
THE CONTROVERSY
Nootsie applied to the appraisal review board to have Nootsie's land in Williamson
County classified as "qualified open-space land" under the provisions of section 23.51(1) of the
Code. See Code §§ 23.51(1), .54. For ad valorem tax purposes, land classified as "qualified
open-space land" is appraised not at its market value but according to an income-capitalization
method, provided the result does not exceed market value. Code § 23.52. The board rejected
Nootsie's application, believing section 23.51(1) of the Code is unconstitutional to the extent it
purports to include in the definition of "qualified open-space land" any "land that is used
principally as an ecological laboratory by a public or private college or university." It is
undisputed that Nootsie's land is used precisely for that purpose and is therefore entitled to the
classification of "qualified open-space land" unless section 23.51(1) is unconstitutional to the
extent the District claims.
Nootsie sued the District for review of the board's rejection order. The District
counterclaimed for a declaratory judgment that section 23.51(1) is unconstitutional on the ground
and to the extent claimed. After proper service of notice, the attorney general of Texas intervened
and defended the constitutionality of section 23.51(1). Upon stipulated facts, the trial court
adjudged the statute not unconstitutional, directed the District to grant Nootsie's application, and
awarded ancillary relief. The District appealed to this Court.
DISCUSSION AND HOLDINGS
I.
Article VIII of the Texas Constitution sets forth in sections one and two the norm
or standard for State taxation. Section one requires that "[t]axation shall be equal and uniform";
section two directs that all real property "shall be taxed in proportion to its value." See Tex.
Const. art. VIII, §§ 1, 2. Taxation of real property is equal and uniform when it is based solely
on the market value of the property involved. Lively v. Missouri, K. & T. Ry. Co., 120 S.W.
852, 856 (Tex. 1909). Believing the market-value norm worked unfairly in the case of
"agricultural property," the legislature in 1978 proposed "a constitutional amendment relating to
ad valorem taxation of agricultural property." Act of Aug. 8, 1978, Tex. H.J. Res. 1, § 1, 65th
Leg., 2d C.S., 1978 Tex. Gen. Laws 54 (the "resolution") (emphasis added). The proposed
amendment would add to Article VIII of the Constitution a section 1-d-1, providing as follows:
(a) To promote the preservation of open-space land, the legislature shall provide
by general law for taxation of open-space land devoted to farm or ranch
purposes on the basis of its productive capacity and may provide by general
law for taxation of open-space land devoted to timber production on the basis
of its productive capacity. The legislature by general law may provide
eligibility limitations under this section . . . .
(b) If a property owner qualifies his land for designation for agricultural use under
section 1-d of this article, the land is subject to the provisions of section 1-d
for the year in which the designation is effective and is not subject to a law
enacted under this section 1-d-1 in that year.
Id. § 2 (emphasis added). (The existing section 1-d of Article VIII, referred to in paragraph (b)
of the proposed amendment, defined "[a]gricultural use" and provided for the taxing of such land
"on the consideration of only those factors relative to such agricultural use."). Section 9 of the
resolution directed that the proposed amendment "be printed to provide for voting for or against
the proposition: `The constitutional amendment providing for tax relief for . . . agricultural
land.'" Id. § 9 (emphasis added). The people adopted the proposed amendment in an election held
November 7, 1978. There can be no doubt that they believed the scope of the amendment was
limited to the two classes of land named in the amendment, agricultural land and timber land.
Pursuant to the 1978 amendment, the legislature enacted Subchapter D of the Code,
being sections 23.51-.57. To secure the taxation of "qualified open-space land" on the basis of
its productive capacity, section 23.52(a) of the Code provides that the appraised value of such land
shall be determined "using accepted income capitalization methods applied to average net to land,"
but the appraised value resulting from that method "may not exceed the market value as
determined by other appraisal methods." Code § 23.52(a).
To define the land eligible for the new appraisal method, the legislature provided
as follows in section 23.51(1) of the Code:
(1) "Qualified open-space land" means land that is currently devoted principally
to agricultural use to the degree of intensity generally accepted in the area and
that has been devoted principally to agricultural use or to production of timber
or forest products for five of the preceding seven years or land that is used
principally as an ecological laboratory by a public or private college or
university.
Code § 23.51(1) (emphasis added). The effect of the statutory definition is to specify three
different uses of land that may qualify as "open-space land" entitled to the new appraisal method
described in section 23.52(a). They are: (1) land devoted principally to agricultural use to the
degree of intensity indicated; (2) land devoted principally to the production of timber or forest
products; and (3) "land that is used principally as an ecological laboratory by a public or private
college or university." Id. The new appraisal method for all three is, of course, in derogation
of the constitutional norm or standard that real property shall be taxed according to its market
value. The 1978 amendment authorized the derogation expressly as to land devoted to an
agricultural use and to timber production. The issue before us is whether the 1978 amendment
also authorized, by implication, the new appraisal method for "land that is used principally as an
ecological laboratory by a public or private college or university." We believe the 1978
amendment did not have that effect, as asserted by the District in its first point of error.
Nootsie does not contend its property comes within the definition of section
23.51(1) because the property is devoted to agricultural use or to the production of timber or
forest products, the two uses authorized expressly in the 1978 amendment. (1) Nootsie contends
rather that the legislature was authorized by the 1978 amendment to include a third class of
land--land used as an "ecological laboratory"--because such use of open-space land is also within
the objective of that amendment, as expressed in its introductory clause: "To promote the
preservation of open-space land." We reject this theory.
"The Legislature may not authorize that which the Constitution prohibits." Maher
v. Lasater, 354 S.W.2d 923, 925 (Tex. 1962). Article VIII, sections 1 and 2 of the constitution
prohibit the appraisal of land, for ad valorem tax purposes, on any basis except market value.
The effect of the 1978 amendment was to remove the prohibition as to two specific classes of
"open-space lands," that "devoted to farm or ranch purposes" and that "devoted to timber
production." No branch of government is entitled to question the wisdom of the people in thus
limiting the removal of the prohibition to these two classes of land; their limitation may not be
enlarged or restricted further. See Jones v. Ross, 173 S.W.2d 1022, 1024 (Tex. 1943) (when
constitutional provision authorizes recovery of exemplary damages for wilful act, omission, or
gross neglect, recovery of exemplary damages for violation of statute may not be authorized);
Cramer v. Sheppard, 167 S.W.2d 147, 154 (Tex. 1943) (when constitution authorizes state office
holders to hold concurrently reserve-officer commissions in military and naval forces, they do not
vacate their state office on being ordered to active duty, absent any constitutional provision so
directing).
Maher is also illustrative. Article I, section 17 of the Constitution, prohibiting the
taking of property for public use without adequate compensation paid in advance, also prohibits
the public taking of property for private use. Tex. Const. art. I, § 17. The legislature enacted
a statute authorizing the public taking of private property for private use if applicants wished it
to be done and had no access to their property. The court held the statute unconstitutional as
being repugnant to the constitutional prohibition against taking property for a private use. Maher,
354 S.W.2d at 924-25.
We believe, therefore, that the introductory clause of the 1978 amendment--"[t]o
promote the preservation of open-space land"--did not constitute an implied invitation to the
legislature to enlarge the two classes of land to any greater number because the additional classes
would also further the objective of promoting the preservation of open land, and thereby escape
the general constitutional prohibition against appraising land on a basis other than market value.
It is beyond dispute that the power to amend the constitution resides exclusively in the body of
the people as an organized body politic; they have ultimate sovereignty and are the source of all
State authority, provided they act within the Constitution of the United States. See Storrie v.
Cortes, 38 S.W. 154, 159 (Tex. 1896). To permit the additional class of open-space land--land
devoted to use as an "ecological laboratory"--would be tantamount to holding that the legislature
itself may amend the constitution by adding such other classes of land as that body believes wise
and necessary to accomplish the constitutional objective of promoting the preservation of open-space land. This turns the constitution on its head. See Tex. Const. art. I, § 2. We hold section
23.51(1) of the Code unconstitutional to the extent it purports to remove from market-value
appraisal open-space "land that is used principally as an ecological laboratory by a public or
private college or university."
II.
At oral argument, we questioned whether the District possessed authority to
challenge the constitutionality of section 23.51(1) of the Code, an integral part of the statutory
scheme entrusted by the legislature to the District's administration. See Aransas County Appraisal
Review Bd. v. Texas Gulf Shrimp Co., 707 S.W.2d 186, 196 (Tex. App.--Corpus Christi 1986,
writ ref'd n.r.e.) (tax assessors are proper parties to challenge constitutionality of tax-code
provisions); Colony Mun. Util. Dist. No. 1 v. Appraisal Dist., 626 S.W.2d 930, 932 (Tex.
App.--Dallas 1982, writ ref'd n.r.e.) (because rights of equal protection and due process of law
are vested only in persons, not political subdivisions, appraisal district may not challenge
constitutionality of tax-code provisions). We are grateful to counsel for their resulting post-submission briefs on the question.
We believe the District may challenge the constitutionality of section 23.51(1) of
the Code. It is true as a general rule that government subdivisions and municipalities are not
"citizens" or "persons" who may sue to invalidate statutes on the basis of constitutional provisions
found within the bill of rights constituting Article I of the Texas Constitution. Tex. Const. art.
I, §§ 1-29; see McGregor v. Clawson, 506 S.W.2d 922, 929 (Tex. Civ. App.--Waco 1974, no
writ); Harris County v. Dowlearn, 489 S.W.2d 140, 145 (Tex. Civ. App.--Houston [14th Dist.]
1973, writ ref'd n.r.e.). Government subdivisions and municipalities may, however, assert the
unconstitutionality of a statute they believe violates a constitutional norm or principle existing
outside the bill of rights of Article I. Durish v. Texas State Bd. of Ins., 817 S.W.2d 764, 767
(Tex. App.--Texarkana 1991, no writ); see, e.g., Love v. City of Dallas, 40 S.W.2d 20, 27 (Tex.
1931) (because Article VII, section 3 of the Constitution authorizes school taxes for educating
students residing within a school district, legislature may not impose upon the district an
obligation to educate non-resident students). Article VIII of the Constitution, dealing with
taxation and revenue, is just such a norm or principle in our view. In addition to the Code
provision, District officers are required by their duties to administer any applicable provisions of
the state and federal constitutions, including the mandate of Article VIII, sections 1 and 2 that real
property shall be taxed according to its market value as well as section 1-d-1 designating two
classes of property that are exceptions to that general rule. These constitutional provisions are
limitations upon the power of the legislature to control its creatures--the appraisal districts--and its
supremacy over them. When the officers of such districts believe the statutory directions of the
legislature conflict with the norms and principles of the Constitution, they "are entitled to have
their legal duties determined by declaratory judgment for only in this manner may well
intentioned, but unlawful, acts be avoided with certainty." Industrial Accident Bd. v. Texas
Workmen's Compensation Assigned Risk Pool, 490 S.W.2d 956, 958 (Tex. Civ. App.--Austin
1973, no writ). We hold accordingly and sustain the District's points of error.
We therefore reverse the trial-court judgment and render judgment that section
23.51(1) of the Code is unconstitutional to the extent indicated above. We order that Nootsie take
nothing by its claim against the District and affirm the order of the appraisal review board.
John Powers, Justice
Before Justices Powers, Jones and B. A. Smith
Reversed and Rendered
Filed: June 7, 1995
Publish
1. Cf. Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820 (Tex. 1993); Hays County Appraisal
Dist. v. Robinson, 809 S.W.2d 328 (Tex. App.--Austin 1991, no writ); Riess v. Appraisal Dist.,
735 S.W.2d 633 (Tex. App.--Austin 1987, writ denied).
nd that is used principally as an ecological laboratory by a public or
private college or university."
II.
At oral argument, we questioned whether the District possessed authority to
challenge the constitutionality of section 23.51(1) of the Code, an integral part of the statutory
scheme entrusted by the legislature to the District's administration. See Aransas County Appraisal
Review Bd. v. Texas Gulf Shrimp Co., 707 S.W.2d 186, 196 (Tex. App.--Corpus Christi 1986,
writ ref'd n.r.e.) (tax assessors are proper parties to challenge constitutionality of tax-code
provisions); Colony Mun. Util. Dist. No. 1 v. Appraisal Dist., 626 S.W.2d 930, 932 (Tex.
App.--Dallas 1982, writ ref'd n.r.e.) (because rights of equal protection and due process of law
are vested only in persons, not political subdivisions, appraisal district may not challenge
constitutionality of tax-code provisions). We are grat | {
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-1504
_____________________________
TERRENCE HAROLD KOENIG, JR.,
Petitioner,
v.
DEPARTMENT OF HIGHWAY
SAFETY AND MOTOR VEHICLES,
Respondent.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction.
December 5, 2018
PER CURIAM.
DENIED.
LEWIS, RAY, and M.K. THOMAS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
David M. Robbins and Susan Z. Cohen of Epstein & Robbins,
Jacksonville, for Petitioner.
Christie S. Utt, General Counsel, and Mark L. Mason, Assistant
General Counsel, Department of Highway Safety and Motor
Vehicles, Tallahassee, for Respondent.
2
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Docket No. 79309–Agenda 3–January 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT CLOUTIER, Appellant.
Opinion filed September 18, 1997.
JUSTICE NICKELS delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, defendant, Robert Cloutier, was found guilty of the first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9–1(a)) and aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12–14(a)(4)) of Alice Cogler on January 28, 1990. Thereafter, a capital sentencing hearing was held before the jury, and defendant was sentenced to death. On appeal, this court affirmed defendant's convictions, but vacated his death sentence because the trial court improperly failed to “reverse-
Witherspoon
,” or “life-qualify,” the jurors in accordance with
Morgan v. Illinois
, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992).
People v. Cloutier
, 156 Ill. 2d 483 (1993). We remanded the cause for a new sentencing hearing. On remand, a bifurcated capital sentencing hearing was held before a jury, which determined that defendant was eligible for the death penalty and that there were no mitigating factors sufficient to preclude imposition of the death sentence. The trial court sentenced defendant to death in accordance with the jury's verdict, and this appeal followed.
BACKGROUND
The factual background of guilt phase in this case is set forth in our earlier opinion (
People v. Cloutier
, 156 Ill. 2d 483 (1993)) and will not be repeated in detail here. Defendant was arrested on February 1, 1990, after he was identified as the perpetrator of attacks on two women, Susan Bradford and Elizabeth Halili. Also, the victim in this case, Alice Cogler, had last been seen with defendant, and defendant was suspected of involvement in the disappearance of a fourth woman, Cynthia Cooney. Following his arrest, defendant admitted to police that he had killed both Cogler and Cooney, and he disclosed where their bodies could be found. Defendant gave detailed statements about the killings in the presence of a court reporter, and the statements were read to the jury at the eligibility stage of defendant's sentencing hearing.
According to defendant's statement, he visited a tavern called the Huggery on the evening of January 27, 1990. At about 9 p.m. defendant left the tavern, accompanied by Alice Cogler. Defendant related that Cogler performed oral sex on him, and they later returned to the Huggery, where they remained until closing time. They then proceeded in Cogler's car to the vicinity of the Rose Meat Packing Company in Chicago, where they engaged in consensual vaginal and anal sex in the backseat of the car. After having sex, defendant and Cogler held each other for a few minutes. Defendant then began choking Cogler with his hands. After determining that Cogler still had a heartbeat, defendant wrapped a fan belt that he found in the car around Cogler's throat. Defendant squeezed the fan belt until Cogler's lips were blue and he could no longer detect a heartbeat. Defendant then covered the body with some clothing and left it on the backseat. Defendant eventually transferred the body to the trunk of the car, which he then abandoned.
Defendant told the authorities that he met Cynthia Cooney on the evening of January 29, 1990, at a tavern called Panama Sid's. They left together at 12:30 or 1 a.m. and drove in Cooney's car to Summit, Illinois, where they engaged in vaginal and oral sex. Defendant stated that he and Cooney then held each other for a while, and defendant started to choke Cooney with his hands. When defendant believed that Cooney was dead, he drove to Willow Springs, and disposed of Cooney's body in the Des Plaines River.
The State presented evidence that defendant had previously been found guilty by a jury of first degree murder and aggravated criminal sexual assault with respect to Cogler, and that defendant had pleaded guilty to the same charges in connection with Cooney's death. During the eligibility stage, the State also presented the testimony of Chicago police detective William Drish regarding conversations with Susan Bradford and Elizabeth Halili, who reported being attacked by defendant. Defendant objected that the proffered testimony was inadmissible hearsay, but the trial court overruled the objection.
According to Detective Drish's testimony, Susan Bradford recounted that on the morning of January 28, 1990, she met an individual with long blond hair named Bob at a lounge, and they later proceeded to a house where a group of people were gathered. Bob offered Bradford a ride home, and during the drive, he began to struggle with her. Bradford's clothes were torn and Bob grabbed her breasts. At one point, Bob grabbed Bradford by the hair and turned her head toward the backseat of the car, where she saw the body of a white female. Bradford was able to escape from the car, and after she started screaming, Bob drove away. The incident described by Bradford would have occurred about 2½ hours after the time of Alice Cogler's murder.
Elizabeth Halili reported to Detective Drish that on the morning of January 28, she was working as a clerk at a gas station when she encountered a man with long blond hair worn in a ponytail. The man announced a robbery, and forced Halili into a brown Oldsmobile. (According to Detective Drish, Susan Bradford had provided a similar description of the vehicle driven by her assailant.) After forcing Halili into the Oldsmobile, the man ordered her to remove her clothes, and also tore at parts of her clothing. Like Bradford, Halili told Detective Drish that her attacker grabbed her hair and turned her head toward the backseat, where she observed the body of a white female. Halili was able to escape from the vehicle, and her attacker drove off.
Based on this evidence, the jury unanimously determined that defendant was eligible for the death penalty for the murder of Alice Cogler based on two separate statutory aggravating factors: (1) the murder occurred during the course of another felony (Ill. Rev. Stat. 1989, ch. 38, par. 9–1(b)(6)); and (2) defendant had been convicted of murdering two or more individuals (Ill. Rev. Stat. 1989, ch. 38, par. 9–1(b)(3)). Thereafter, the jury heard evidence of aggravating and mitigating factors. Susan Bradford and Elizabeth Halili testified in person regarding the attacks by defendant that Detective Drish had described during the eligibility stage. Another woman, Marie Goodman, testified that defendant attacked her during the same time frame. Goodman testified that she had made defendant's acquaintance in September 1989. About 7 a.m. on January 28, 1990, defendant arrived, uninvited, at Goodman's home, with visible scratch marks on his chin, neck and wrist. Defendant claimed he had been in a fight, and he departed from Goodman's apartment after a few minutes. Defendant returned at around 10:30 a.m. and took Goodman and her young son out for breakfast. After they returned from breakfast, defendant attacked Goodman. He placed his thumb at the base of her throat so that she was barely able to breathe. Defendant physically placed Goodman's hand on his penis and tore her shirt open. When Goodman's son came into the room, defendant left.
A number of witnesses for the State provided accounts of several robberies committed by defendant in 1983. Defendant targeted convenience stores, gas stations and liquor stores. In October 1983, while driving a stolen vehicle, defendant led Chicago police on a high-speed chase that ended when defendant collided with a police vehicle. It was stipulated that defendant entered the Department of Corrections in 1983 to serve four 12-year sentences for armed robbery and a three-year sentence for theft. All sentences were to be served concurrently. It was further stipulated that defendant was “paroled” in September 1989. (In fact, defendant was not paroled, but was released as a result of the accumulation day-for-day good-conduct credits under section 3–6–3(a)(2) of the Unified Code of Corrections (730 ILCS 5/3–6–3(a)(2) (West 1994)).)
Springfield police officer Robert Crouch testified that on the morning of October 28, 1989, he observed defendant striking a woman in the head and face with a large chain. The woman told Officer Crouch that defendant was her boyfriend. He had become angry with her, dragged her down the street with the chain around her neck, and then began beating her with the chain. It was stipulated that defendant thereafter returned to prison because of a violation of the terms of his “parole,” and was again released from custody in late December 1989. After his release, defendant engaged in an extensive spree of armed robberies in January 1990 before being arrested for the murders of Alice Cogler and Cynthia Cooney.
It was stipulated that during his incarceration from 1983 to 1989, defendant received a total of 52 disciplinary tickets from Department of Corrections personnel. Defendant also received five disciplinary tickets between August 1991 and January 1995 during his incarceration in the Department of Corrections following his convictions for the murders of Alice Cogler and Cynthia Cooney. Timothy Pruett, a correctional officer, testified that on July 17, 1994, defendant threw a pitcher of scalding water at him at the Pontiac Correctional Center. Officer Pruett suffered minor burns to his neck and back.
As evidence in mitigation, defendant presented the testimony of Lawrence Heinrich, a clinical psychologist. Based on psychological testing, interviews with defendant and review of documents relating to defendant's criminal history and personal background, Dr. Heinrich concluded that defendant suffered from antisocial personality disorder and mixed substance abuse disorder. Defendant also showed some traits of narcissistic personality disorder. Antisocial personality disorder is characterized by defects in interpersonal relationships and a lack of conscience and social sensitivity, and is commonly associated with criminal or delinquent behavior. Mixed substance abuse disorder involves the abuse of a variety drugs and alcohol in such a manner that the toxic effects of the substances tend to aggravate each other. Narcissistic personality disorder is characterized by self-centeredness, grandiosity in pleasure-seeking endeavors and a lack of empathy.
In connection with his evaluation, Dr. Heinrich reviewed a biographical sketch of defendant prepared by defendant's mother. The biography indicated that defendant was raised by his mother along with his four sisters. Defendant never fit in or felt connected with the rest of the family. Defendant's problems became worse when he suffered a serious eye injury as a child. He was abusing drugs and alcohol by the time he was in high school. During his teen years, defendant spent time in a youth home or detention center. At one point while defendant was in the facility, his family moved without telling him where they could be found.
Dr. Heinrich observed that a police bulletin issued in connection with efforts to arrest defendant identified him as a heavy user of cocaine and other drugs. Dr. Heinrich further noted that defendant had been ordered to participate in an alcohol abuse program as a condition of his supervised release from prison. Dr. Heinrich noted that persons suffering personality disorders often use drugs and alcohol for purposes of self-medication to soothe the unpleasant feelings associated with their disorders. Dr. Heinrich believed that drugs and alcohol influenced defendant's behavior and impaired his judgment during the series of fatal and nonfatal attacks on women on January 28 and January 29, 1990.
Alvin Hill, coordinator of the Cook County Public Defender's Sentencing Advocacy Program, also testified on defendant's behalf, elaborating on the biographical information supplied in written form by defendant's mother. Defendant's mother indicated that defendant's life changed drastically when he was 13 years of age: he no longer took pride in himself, started to cruelly tease his sisters, and substantially withdrew from family life. Defendant also experienced problems with truancy and stole money from the family. Defendant's mother noted that when the family moved while defendant was in the youth home, they left no forwarding address and changed their telephone number. According to defendant's mother, they “left no trace.”
Hill also testified about conversations with defendant. Defendant expressed his love for and loyalty to his family, but maintained that his family did not understand him. Defendant was adamant that his family not be asked to testify on his behalf. Defendant related that he began using alcohol at about the age of 10 and street drugs at the age of 13. Defendant indicated that he was “drugging” at the time of the murder of Alice Cogler. Defendant expressed remorse for his crimes and the suffering inflicted on the families of the victims and on his own family. Defendant had received a general equivalency degree while incarcerated, and felt that he could help younger inmates.
Having heard the foregoing evidence, the jury returned a verdict finding that there were no mitigating factors sufficient to preclude imposition of the death sentence.
ANALYSIS
I. Eligibility Stage
A.
Hearsay Evidence
Defendant contends that the trial court erred at the eligibility stage of sentencing by allowing Detective Drish to testify about conversations with Susan Bradford and Elizabeth Halili in which they described how they were attacked by defendant. Defendant argues that the evidence was both irrelevant and inadmissible under the hearsay rule. In defendant's original appeal, we held that testimony by Bradford, Halili and other victims who survived attacks by defendant was admissible to establish that defendant's sexual conduct with Alice Cogler was achieved by the use of force.
Cloutier
, 156 Ill. 2d at 505-06. Similarly, Detective Drish's testimony was relevant at the eligibility stage of sentencing to establish the statutory aggravating factor that Cogler was murdered during the course of another felony: aggravated criminal sexual assault. We agree with defendant, however, that notwithstanding the relevance of the subject matter of Detective Drish's testimony, the testimony was inadmissible hearsay.
Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted, and is generally inadmissible unless it falls within a recognized exception.
People v. Lawler
, 142 Ill. 2d 548, 557 (1991). Without citation of authority, the State argues that Detective Drish's account of conversations with Bradford and Halili was admissible under the state of mind exception to the hearsay rule. The State argues that the evidence that defendant displayed the victim's body to Bradford and Halili in an effort to force them to “submit to his wishes.” This, according to the State, shows that in killing the victim defendant acted with the culpable mental state necessary under
Enmund v. Florida
, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982), before capital punishment may constitutionally be imposed. The State contends that the out-of-court statements were not offered to prove the truth of the matter asserted.
The State's argument is unpersuasive. Unless the out-of-court statements by Bradford and Halili were true, they could have no bearing on defendant's mental state. The State's effort to shed light on defendant's mental state necessarily depended on the truth of the matter asserted. The State misunderstands the state of mind exception to the hearsay rule. Under that exception, an out-of-court statement of a declarant is admissible when that statement tends to show the
declarant's
state of mind at the time of the utterance.
Lawler
, 142 Ill. 2d at 558. In order to be admissible, the
declarant's
state of mind must be relevant to a material issue in the case.
People v. Nyberg
, 275 Ill. App. 3d 570, 580 (1995). In this case, defendant was not the declarant: the declarants were Bradford and Halili. Their state of mind when they spoke with Detective Drish has no bearing on defendant's state of mind when he killed the victim. Because the State relies exclusively on the state of mind exception, we need not consider whether any other exceptions to the hearsay rule might apply to this case.
Although Detective Drish's testimony regarding out-of-court statements by Bradford and Halili was inadmissible hearsay, the error in admitting this testimony does not require reversal of defendant's death sentence. Defendant argues that the evidence may have contributed to the jury's determination that defendant was eligible for the death penalty on the basis that he murdered Alice Cogler during the course of another felony: aggravated criminal sexual assault. Defendant notes that the victim showed no signs of vaginal trauma, and cocaine was detected in the victim's blood. According to defendant, this evidence is consistent with his account of the crime, in which he maintained that he engaged in consensual sex with the victim prior to the murder. Defendant argues that but for the improperly admitted evidence of his attacks on Bradford and Halili, the jury might have returned a verdict in his favor on the felony-murder aggravating factor.
Be that as it may, based on careful review of the record we conclude that the improperly admitted hearsay could have had no effect on jury's separate verdict on the multiple-murder aggravating factor set forth in section 9–1(b)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9–1(b)(3)). In determining whether a defendant is eligible for the death penalty under section 9–1(b)(3), the sentencing jury must consider whether the defendant was convicted of murdering two or more individuals and whether the deaths were the result of either an intent to kill more than one person or of separate acts that the defendant knew would cause death or create a strong probability of death or great bodily harm to the victim.
People v. Hooper
, 172 Ill. 2d 64, 73 (1996). In the present case, overwhelming evidence was presented establishing defendant's eligibility for the death penalty under the multiple-murder factor. The State introduced certified copies of defendant's convictions of the murders of Alice Cogler and Cynthia Cooney, and defendant's own statements detailing the deliberate manner in which he killed the two women establish that he acted with the requisite mental state under section 9–1(b)(3).
This court has held that the Illinois death penalty statute does not place special emphasis on any aggravating factor and does not accord added significance to multiple aggravating factors as opposed to a single factor.
People v. Brown
, 169 Ill. 2d 132, 164 (1996). Once one statutory aggravating factor has been found, the defendant is eligible for the death penalty, regardless of whether other factors have been proved as well.
Brown
, 169 Ill. 2d at 165. Thus, where a defendant is found eligible for the death penalty based upon two or more statutory aggravating factors, the fact that one of those factors may later be invalidated will not generally impair the eligibility finding as long as a separate, valid aggravating factor supported eligibility.
People v. Cole
, 172 Ill. 2d 85, 102-03 (1996);
People v. Bounds
, 171 Ill. 2d 1, 69 (1995);
Brown
, 169 Ill. 2d at 165;
People v. Page
, 156 Ill. 2d 258, 268 (1993), citing
Zant v. Stephens
, 462 U.S. 862, 880-90, 77 L. Ed. 2d 235, 252-58, 103 S. Ct. 2733, 2744-50 (1983); see also
People v. Todd
, 154 Ill. 2d 57, 75 (1992). In the case at bar, the jury's verdict on the multiple-murder factor independently established defendant's eligibility for the death penalty regardless of the validity of the verdict on the felony-murder factor. See
Todd
, 154 Ill. 2d at 75.
We further emphasize that the improper hearsay evidence did not taint the jury's ultimate determination, based on evidence in aggravation and mitigation, that defendant should be sentenced to death. See
Tuggle v. Netherland
, 516 U.S. ___, ___, 133 L. Ed. 2d 251, 256, 116 S. Ct. 283, 285 (1995) (although error under
Ake v. Oklahoma
, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985), affected only one of two statutory aggravating circumstances making defendant eligible for the death penalty, error may also have affected the jury's ultimate decision, based on all the evidence before it, to sentence defendant to death rather than life imprisonment). As indicated, Detective Drish's testimony regarding the attacks on Bradford and Halili should not have been admitted during the eligibility stage of the sentencing proceedings. However, the testimony could properly be considered by the jury for purposes of its determination whether there were any mitigating factors sufficient to preclude the imposition of the death penalty. Ordinary rules of evidence are relaxed at the aggravation/mitigation stage of sentencing. The only requirements for admissibility are that the evidence be reliable and relevant.
People v. Hudson
, 157 Ill. 2d 401, 449 (1993). This is so because in determining the appropriate sentence, the sentencing authority must possess the fullest information possible concerning the defendant's life, character, criminal record and circumstances of the particular offense.
Hudson
, 157 Ill. 2d at 450. Hearsay evidence of other crimes which did not result in prosecution or conviction is therefore admissible at the aggravation/mitigation stage if it meets the requirements of reliability and relevance.
Hudson
, 157 Ill. 2d at 450. Detective Drish's hearsay testimony regarding defendant's attacks against Bradford and Halili was relevant to the jury's sentencing decision, and it was reliable because it was corroborated by testimony of the victims themselves. Accordingly, the admission of Detective Drish's hearsay testimony during the eligibility stage of sentencing was harmless error.
B.
Improper Closing Argument
Defendant argues that he was denied a fair hearing on his eligibility for the death penalty because during closing argument the prosecution improperly suggested that additional evidence of defendant's eligibility existed which could not be introduced at the eligibility stage. Defendant's argument is based on the following portion of the proceedings occurring near the end of the State's closing argument:
“MR. BYRNE [Assistant State's Attorney]: Many of you might be wondering, so what's next? Remember, here at the eligibility stage, we're only able to present a limited amount of evidence on the murders and the rape, not the entire case.
And remember your oaths, at this point. Follow the law. Read the instructions. It's crystal clear what happened here, and it's crystal clear what he's been convicted of and it's crystal clear he's eligible for the death penalty.
For those of you who have some lingering, unanswered questions in your mind as to certain facts, that's for a later time.
MS. PLACEK [defense attorney]: Objection.
MR. RICHARDS [defense attorney]: Objection.
THE COURT: Sustained. Proceed.
MR. BYRNE: At the next phase, ladies and gentlemen, in aggravation and mitigation, both sides will have an opportunity to present additional evidence.
MR. RICHARDS: Objection, not relevant.
THE COURT: Sustained. Proceed.
MR. BYRNE: Only after the second phase is concluded, the phase of aggravation and mitigation, will we return to you and ask you to decide on the sentence in this case.
For now, we ask you to follow your oaths, look at the evidence that we've presented. Look at the instructions of law. Return both verdicts of eligibility on both statutory aggravating factors. Thank you.”
Contrary to defendant's argument, these remarks did not insinuate that evidence bearing on defendant's
eligibility
for the death penalty had been withheld. Instead, when the remarks are considered in their entirety, it is apparent that the prosecutor was simply reiterating that if the jurors found defendant eligible for the death penalty, their
ultimate decision whether to impose the death penalty
would not be based solely on the eligibility stage evidence: a broader range of evidence in aggravation and mitigation would be available for their consideration. With respect to the eligibility stage decision, the prosecutor specifically advised the jurors to confine their deliberations to the evidence introduced at that stage of the proceedings: “For now, we ask you to follow your oaths,
look at the evidence that we've presented
.” (Emphasis added.) The jurors were also properly instructed by the trial court “to determine the facts
and to determine them only from the evidence
.” (Emphasis added.) Considering the prosecutor's remarks as a whole, together with the instruction from the court, we conclude that the remarks were not prejudicial.
II. Aggravation/Mitigation Stage
A.
Jury Misconduct
During the course of the State's presentation of evidence in aggravation, the foreman of the jury delivered a note to the trial judge asking, “Can we have a list of the events in chronological order from the release of [defendant] from prison in [September] of 1989 to his capture on [February] 1, 1990 when we start deliberation?” Based on this note defendant surmises that, in defiance of instructions from the court, the jury improperly discussed the case before being instructed to begin its deliberations. Defendant argues that this misconduct deprived him of a fair sentencing hearing. We disagree.
For purposes of our analysis, the following cogent summary of general principles is instructive:
“As a rule, it is improper for jurors to discuss among themselves the case or any subject connected with the trial until all of the evidence has been presented and the case has been submitted to them after final instructions by the trial court. By permitting the jurors to discuss the case among themselves *** the trial court authorizes and encourages them to give premature consideration to the evidence presented–consideration unaided by the final instructions of the trial court as to the law to be applied to the facts in the case. Furthermore, it is human nature that an individual, having expressed his or her views of the guilt or innocence of a defendant, would be inclined thereafter to give special attention to testimony which strengthened or confirmed the views already expressed to other jurors.
Even so, under certain circumstances discussions of evidence among jurors before the final submission of a criminal case have been deemed not to have been improper, or as not having resulted in prejudicial error where, for instance, a review of the jurors' responses to questions of the trial court indicated that the jurors' impartiality had not been affected by their discussions among themselves of certain exhibits prior to deliberations. Even assuming that discussion by jurors of a case during recesses in the proceedings constitutes juror misconduct, the test for reversibility is whether the misconduct has prejudiced the defendant to the extent that he has been denied a fair trial. The important question in this regard is not whether the jurors kept silent with each other about the case, but whether each juror kept an open mind until the case was submitted to them.” 75B Am. Jur. 2d
Trial
§1610, at 379-80 (1992).
While jurors should not discuss the facts of the case before being instructed to begin deliberations, there is nothing in the record to indicate that the jurors did so in the present case. Contrary to defendant's argument, the jury foreman's note does not imply that any discussion of the evidence or the facts of the case had taken place. It merely reflects a possible discussion of a tangential matter regarding the presentation of the State's case. Assuming such a discussion occurred among some or all of the jurors, it could have engendered no prejudice to defendant.
Defendant also contends that if the jurors did in fact disregard the judge's admonition not to discuss the case, they may also have ignored the judge's instructions as to the law applicable to their decision whether defendant should be sentenced to death. In support of this argument, defendant cites two cases–
People v. Jones
, 105 Ill. 2d 342 (1985), and
People v. Rogers
, 135 Ill. App. 3d 608 (1985)–where criminal convictions were reversed because during trial the jurors were exposed to prejudicial material not admitted into evidence. In
Jones
a mimeographed copy of a racist joke was found in the jury room, and in
Rogers
certain jurors were exposed to a newspaper article containing information about the defendant that the trial court had ruled inadmissible. In each case, the reviewing court commented that the jurors' failure to bring the misconduct to the court's attention might indicate a lack of appreciation for their responsibilities as jurors.
Jones
, 105 Ill. 2d at 352;
Rogers
, 135 Ill. App. 3d at 628.
Jones
and
Rogers
do not control the case at bar. Both those cases involved flagrant misconduct bearing directly on the fairness of the defendants' trials. Here, however, even if the jurors did in fact discuss the desirability of a chronological list of events, the discussion would be at most an innocuous technical violation of the judge's admonition to refrain from discussing the case. This provides no basis for concern that the jurors did not generally appreciate their responsibilities or that they failed to abide by their oaths to follow the law as instructed by the judge.
To the extent that the jury foreman's note might have been viewed as creating the specter of improper communications among the jurors, defendant should have raised the matter in the trial court, as was done in
People v. Gilyard
, 124 Ill. App. 2d 95 (1970). This would have enabled the trial court, in its discretion, to probe the nature of the jurors' discussions, if any, and the extent to which those discussions might have compromised the jury's ability to render a fair verdict based on the evidence. However, on the basis of the record as it stands, defendant's contention that the jurors engaged in a premature discussion of the facts of the case, or any other misconduct, is entirely speculative.
In this vein, defendant argues that his trial attorney's failure to move for a mistrial based on juror misconduct represents ineffective assistance of counsel. We disagree. Claims of ineffective assistance of counsel are evaluated in accordance with the two-prong test set forth in
Strickland v. Washington
, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), which requires a showing of deficient performance by counsel and resultant prejudice. To establish deficient performance, the defendant must show that counsel's performance fell below an objective standard of reasonableness.
Strickland
, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Prejudice exists when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
Strickland
, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Defendant has failed to show either requirement. .
As already stated, by itself the jury foreman's note evidences at most a nonprejudicial technical violation of the trial court's admonitions. Under these circumstances, the decision whether to seek the jury's discharge was properly a matter for counsel's exercise of professional judgment. Counsel was familiar with the composition of the jury, and was able to observe the jurors' reactions to the evidence and to defendant. Counsel was therefore in the best position to determine whether the danger of prejudice from premature discussion of the case outweighed the risk of empaneling a new jury which might be less favorably disposed to defendant. Counsel's failure to request a mistrial was not objectively unreasonable under the particular circumstances of this case. Moreover, defendant cannot show prejudice. The jury foreman's note was not, in itself, grounds for a mistrial, and there is no way to determine from the record whether further inquiry into communications among the jurors would have revealed any misconduct sufficiently serious to justify a mistrial.
B.
Improper Closing Argument
Defendant argues that a number of remarks by the prosecutor during closing argument at the aggravation/mitigation stage were improper and deprived him of a fair sentencing hearing. At the outset, we note that defendant failed to object to several of the challenged remarks during sentencing. The State maintains that these issues are therefore waived. See
People v. Enoch
, 122 Ill. 2d 176 (1988). Defendant responds that he was excused from objecting to these remarks because objections would have been futile. Defendant argues that by repeatedly overruling defense objections to prosecutorial remarks, the trial court demonstrated a disinclination to limiting closing argument, and the pursuit of futile objections by defendant would simply have antagonized the jury. Defendant cites no authority that one may dispense with contemporaneous objections and assert error on appeal merely because he or she has suffered adverse rulings on other unrelated objections. Contemporaneous objections will often enable the trial court to cure error, thereby avoiding the possible need to retry the defendant. Obviously, the requirement of a contemporaneous objection promotes judicial economy and the swift and fair administration of justice. We are hesitant to undermine these objectives by allowing a criminal defendant to base his choice whether to object not on the merits of the objection but on a general appraisal of the trial court's inclinations. Hence we agree with the State that these claims of error are waived.
An exception to the waiver rule permits review of plain error. 134 Ill. 2d R. 615. However, this exception does not operate as a general savings clause: it may be invoked only when the evidence is closely balanced or the alleged error is so serious that it deprived the defendant of a fair trial.
People v. Childress
, 158 Ill. 2d 275, 300 (1994). Although the evidence in mitigation presented by the defense was not insubstantial, overall the evidence at sentencing cannot be regarded as closely balanced. Thus, in considering claims of error involving comments to which defendant failed to object, our review is limited to consideration of whether the comments, if improper, were so prejudicial as to deprive defendant of a fair sentencing hearing.
Defendant first argues that the prosecutor misstated the law by arguing that defendant “signed his own death verdict” or “chose the death sentence” by killing Alice Cogler and Cynthia Cooney. Because defendant failed to object to these remarks, our review is confined to the question of whether the allegedly improper remarks were so prejudicial as to deprive defendant of a fair trial. According to defendant, the prosecutor's statements implied that the death penalty was mandatory in the case of multiple murders. We interpret the remarks differently. The prosecution's argument was designed to convey, albeit with rhetorical flourish, that defendant was responsible for the acts for which he was to be punished. The jury was properly instructed that in reaching its verdict, it was to determine whether there were any mitigating factors sufficient to preclude imposition of a death sentence, and the prosecution's remarks could not have misled or confused the jury about the basis for its decision. The challenged remarks do not constitute plain error on this basis.
Defendant alternatively argues that the prosecution's remarks improperly diminished the jury's sense of responsibility for imposing the death penalty, violating of the principles of
Caldwell v. Mississippi
, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985). In
Caldwell
, the prosecutor emphasized to the jury that if it should decide to impose the death penalty, its decision would be subject to review by the state supreme court. The
Caldwell
Court held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.”
Caldwell
, 472 U.S. at 328-29, 86 L. Ed. 2d at 239, 105 S. Ct. at 2639. However, in several cases involving remarks similar to those in the case at bar, this court has concluded that the jury would have understood the remarks not as literal statements of the law but as comments on the evidence. See
People v. Burgess
, 176 Ill. 2d 289, 318-20 (1997);
People v. Cole
, 172 Ill. 2d 85, 112-13 (1996);
People v. Page
, 155 Ill. 2d 232, 280-82 (1993);
People v. Kokoraleis
, 132 Ill. 2d 235, 286 (1989); see also
People v. Moore
, 171 Ill. 2d 74, 120-21 (1996) (prosecutor's remark that defendant “sentenced himself to death” may have been interpreted as merely emphasizing the strength of the aggravating evidence). The same conclusion emerges in this case. The prosecutor's comment that defendant “chose” the death penalty simply expressed the idea that defendant deserved the death penalty for the acts of violence he chose to commit. Unlike the remarks in
Caldwell
, the prosecutor's rhetorical comments in this case could not have affected the jury's understanding of its role as sentencer or the gravity of its sentencing decision. See
People v. Pasch
, 152 Ill. 2d 133, 205-06 (1992) (remark that defendant was responsible for the sentence received did not shift the responsibility of death from the jury to another judicial body, and defendant's attempt to equate himself with another judicial body was unfounded).
Defendant cites
Buttrum v. Black
, 721 F. Supp. 1268 (N.D. Ga. 1989),
aff'd
, 908 F.2d 695 (11th Cir. 1990), in support of his argument that the prosecutor's statements ascribing the sentencing decision to defendant violated
Caldwell
. In
Buttrum
, a
Caldwell
violation was found where the prosecutor argued that the defendant had signed her own death warrant and that the jurors were merely a “cog” in the criminal justice process. As stated before, the remarks in the case at bar are properly viewed as a comment on the strength of the evidence against defendant; they did not trivialize the jury's sentencing function as did the comments in
Buttrum
. See
Page
, 155 Ill. 2d at 281-82. Therefore,
Buttrum
is inapposite.
Defendant also complains that the prosecution improperly urged the jury to impose the death penalty because the criminal justice system had treated defendant too leniently in the past. During closing argument the prosecutor stated:
“Well, think about the lack of remorse here. Think about how it was that *** two weeks after he was reparoled he is out robbing and raping and murdering. That is remorse. I am sorry. Think about his earlier parole from the Illinois Department of Corrections when he had to be returned for beating his girlfriend. Think of that when you think of remorse. I am sorry.
He has had all kinds of breaks from the criminal justice system. Don't give him another
.” (Emphasis added.)
During rebuttal, the prosecution argued, “You could rob, and you can rob, and you can rob with a gun and you can steal a car and you can get a 12 year sentence and you get out in six years, and you come out and you beat a woman in the face with a chain *** [a]nd *** the criminal justice system will take you back for a month or two and then what you can do is come out again.” Again, defendant failed to object to the remarks.
Although the parties stipulated that defendant had been “paroled” in 1989, after serving 6 years of four concurrent 12-year sentences for armed robbery, defendant points out that he was actually released as a result of day-for-day good-conduct credits under section 3–6–3(a)(2) of the Unified Code of Corrections (730 ILCS 5/3–6–3(a)(2) (West 1994)). Defendant argues that unlike parole, which signifies a discretionary release,
all
inmates (except those serving natural life sentences) automatically receive a day-for-day credit against their sentence. Defendant thus takes issue with the prosecution's assertion that he received special treatment or “breaks” from the criminal justice system. Defendant also argues that the prosecutor's remarks impugned the criminal justice system in a manner condemned by this court in
People v. Williams
, 161 Ill. 2d 1 (1994).
We agree with defendant that the State mischaracterized the facts with its references to defendant being “paroled” and getting “breaks” from the criminal justice system. We also disapprove of any suggestion in the State's argument that defendant should be punished more severely now to compensate for overly lenient treatment in the past. Such argument is inconsistent with the principle that the focus in death penalty hearings must be on the particular nature of and circumstances surrounding the offense, and the individual character and record of the defendant.
People v. Szabo
, 94 Ill. 2d 327, 366 (1983). Nonetheless, the prosecution's remarks do not constitute plain error.
The thrust of the remark regarding parole was that defendant exhibited a brazen disregard of the law, as was evident in the commission of violent crimes shortly after his release from prison. In this context the distinction between release resulting from the accumulation of good-conduct credits as opposed to release on parole is unimportant, and the mischaracterization could not have affected the jury's sentencing decision. Defendant also contends that by mischaracterizing his release as a “parole,” the State bolstered its argument that defendant received “all kinds of breaks from the criminal justice system.” However, this was merely an isolated remark: it was not a major theme in the State's argument which mainly focused on defendant's background, and the circumstances of the murder of Alice Cogler and defendant's other crimes in late January 1990. Any error arising from this remark was unquestionably harmless. With respect to the portion of the State's rebuttal argument quoted above, we do not approve of the disdainful attitude toward the corrections' process evident in this passage. Again, however, these remarks were not dwelt upon at length and cannot be said to have deprived defendant of a fair sentencing hearing.
The brief comments in this case contrast sharply with the improper remarks in
Williams,
which “constituted almost the entirety of the State's rebuttal argument” such that “it [could not] be said that any improper remarks were merely isolated comments made in the course of a lengthy and otherwise proper argument.”
Williams
, 161 Ill. 2d at 78. Additionally, in our estimation the objectionable remarks in
Williams
were substantially more inflammatory than the comments here. In
Williams
, the prosecutor criticized a plea agreement in a prior homicide committed by the defendant. Under the agreement, the defendant in
Williams
had pleaded guilty to voluntary manslaughter and received a 10-year prison sentence. However, the prosecutor argued to the jury that the defendant was actually guilty of murder in the prior homicide and should have been sentenced to 120 years' imprisonment.
In a related argument, defendant claims that his attorney's inaccurate stipulation that defendant had been “paroled” represents ineffective assistance of counsel insofar as the stipulation facilitated the State's erroneous argument. As discussed earlier a criminal defendant asserting ineffective assistance of counsel must show prejudice, which exists when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Since we have already concluded that the prosecution's mischaracterization of the basis for defendant's release could not have affected the jury's sentencing decision, defendant cannot establish prejudice.
Defendant also complains that the prosecution improperly commented on the “death qualification” of the jurors pursuant to
Witherspoon v. Illinois
, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), and its progeny. Once again, defendant failed to object to these remarks. At the outset of his rebuttal argument, the prosecutor reminded the jurors that during jury selection they had indicated that they were able to consider imposing the death penalty, whereas those prospective jurors who could not do so walked out of the courtroom without ever learning of defendant's “depravity.” Defendant contends that these remarks implied that even the jurors excluded under
Witherspoon
because of their views about capital punishment might have voted for the death penalty had they heard the evidence in aggravation presented in this case. Defendant also claims that the prosecutor patronized the jurors “by telling them that they were predisposed toward death even without having heard about [defendant's] `depravity.' ” We disagree. Simply stated, defendant is trying to put words in the prosecutor's mouth. The ability or willingness simply to
consider
imposing the death penalty cannot fairly be equated with a “predisposition” toward death. Moreover, notwithstanding the prosecutor's passing reference to the excluded venire members, we find no reasonable basis for concern that the jurors based their verdict on anything other than their independent appraisal of the evidence presented in aggravation and mitigation.
We next consider those prosecutorial remarks to which defendant properly objected at sentencing. Defendant argues that the prosecutor misstated the law by arguing that the jurors could uphold the law and abide by their oaths only by imposing the death penalty. Specifically, the prosecutor told the jurors, “With your verdicts of death, you uphold the law. It's what you are sworn to do.” According to defendant these remarks were erroneous as a matter of law because “Illinois law permits an alternative to the death penalty in the case of an individual shown to have committed more than one murder–natural life in prison without possibility of parole.” Defendant's contention is meritless. The challenged remark, which appears near the end of the prosecutor's closing argument, was a permissible comment on the strength of the evidence in aggravation as compared to the evidence in mitigation and properly emphasized the jury's duty to follow the law. See
People v. Pasch
, 152 Ill. 2d 133, 208 (1992). We find no error.
Finally, defendant contends that the prosecution improperly appealed to the jurors' emotions with arguments speculating that the victims and their friends and families would want defendant sentenced to death. During closing argument, the prosecutor stated that “what is at stake here is nothing short of human justice *** because from their graves there are two women who cry out for human justice. And in this whole world of ours there are only 12 people that could hear them and answer their cries, and that's the 12 of you.” During rebuttal, the prosecutor responded as follows to the defense's argument that a sentence of natural life imprisonment was an appropriately severe punishment:
“[Defense counsel] said natural life isn't a picnic. It isn't a pass. It's punishment. Would the friends and family of Alice Cogler and Cynthia Cooney gladly ask that he suffer that terrible punishment rather than the one he gave them? What do you think?”
Defendant contends that these appeals to emotion diverted the jury's attention from its task of evaluating aggravating and mitigating factors. Defendant also argues that the comments were unsupported by the evidence and that, in any event, such opinions regarding whether the death penalty should be imposed are irrelevant and therefore inadmissible. Proper or not, the prosecution's argument concerning the victims and their families was not so inflammatory as to constitute reversible error.
Cf.
People v. Spreitzer
, 123 Ill. 2d 1, 36-37 (1988) (prosecutor's rhetorical question to jurors regarding what the victims' families would think about sparing the defendant's life and sending him back to prison–which defendant viewed as a “country club”–was not grounds for reversal of defendant's death sentence).
C.
Prejudicial Exhibit
During the aggravation/mitigation stage the prosecution used an exhibit to visually depict defendant's criminal history. The exhibit consisted of a map of the southwest Chicago area bearing tags marking the location of the crimes described by the State's witnesses. The tags were placed on the map during the hearing by the State's witnesses as they gave their testimony. Defendant did not object to the State's use of the exhibit in connection with the examination of witnesses or to its admission into evidence. Defendant objected only to allowing the exhibit to go to the jury during its deliberations, but the trial court overruled this objection.
Defendant argues that this exhibit was improperly admitted into evidence, but because defendant failed to object to its admission the issue is waived unless the plain error rule applies. Defendant argues that the map was improper under
People v. Williams
, 161 Ill. 2d 1 (1994), which held that a similar exhibit was inadmissible because it merely summarized clearly understandable testimony and it unfairly memorialized the State's evidence in aggravation. Assuming for the sake of argument that the State's use of the map in the case at bar was improper, the error was not of sufficient magnitude to deprive defendant of a fair trial. The exhibit was neither inaccurate nor misleading, it does not appear to have been used in an inflammatory manner, and undoubtedly its impact on the jury was far less significant than the testimony it summarized. Although defendant objected to sending the exhibit to the jury during deliberations, we find no error in this regard. Whether evidentiary items should be taken to the jury room is a matter for the discretion of the trial court, whose decision will not be disturbed absent an abuse of discretion to the prejudice of the defendant.
People v. Williams
, 97 Ill. 2d 252, 292 (1983). No abuse of discretion occurred here. The exhibit was admitted into evidence without objection, was accurate, was unlikely to inflame the jury, and was responsive to a request by the jury for chronological information about defendant's criminal history. Defendant also contends that his attorneys' failure to object to the exhibit represents ineffective assistance of counsel. We disagree. As previously discussed, a criminal defendant asserting ineffective assistance of counsel must show prejudice, which exists when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Given all the evidence in this case, no reasonable probability exists that the jury would have returned a different verdict but for this particular exhibit.
III. Constitutionality of the Death Penalty Statute
Defendant argues that various aspects of the death penalty statute and the applicable jury instructions create an unconstitutional risk of arbitrary or capricious imposition of death sentences in violation of the eighth and fourteenth amendments to the United States Constitution. Defendant contends that the procedures for imposing the death penalty are invalid because the prosecution exercises discretion in deciding whether to seek the death penalty; pretrial notice that the death penalty will be sought and pretrial notice of the aggravating factors on which the prosecution intends to rely is not required; this court undertakes only limited comparative proportionality review of death sentences; the burden of proof is not placed on the prosecution; the sentencer may place the burden of proof on the defendant; the sentencer is not required to make written findings; and the sentencer is not permitted to consider the range of possible sentences that will be imposed if the defendant is not sentenced to death. This court has previously rejected each of these constitutional challenges, and has also rejected the argument that in combination these features violate the Constitution. See
People v. Burgess
, 176 Ill. 2d 289, 322-23 (1997) (and cases cited);
People v. Munson
, 171 Ill. 2d 158, 205-06 (1996). Defendant offers no persuasive reason why this court should reexamine its holdings on these issues.
Defendant also contends that the death penalty statute is unconstitutional because it places a burden of proof on the defendant which precludes meaningful consideration of mitigating factors. Again, we have rejected the very same argument in prior cases (see
Burgess
, 176 Ill. 2d at 322;
Munson
, 171 Ill. 2d at 204-05), and there is no reason to revisit the issue in this case.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. The clerk of this court is directed to enter an order setting Thursday, January 15, 1998, as the date on which the sentence of death entered in the circuit court of Cook County is to be carried out. Defendant shall be executed in the manner provided by law (725 ILCS 5/119–5 (West 1994)). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, to the warden of Stateville Correctional Center, and to the warden of the institution where defendant is now confined.
Affirmed
.
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Subsets and Splits