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United States Court of Appeals for the Federal Circuit ______________________ SUNTEC INDUSTRIES CO., LTD., Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee MID CONTINENT NAIL CORPORATION, Defendant ______________________ 2016-2093 ______________________ Appeal from the United States Court of International Trade in No. 1:13-cv-00157-RKM, Senior Judge R. Kenton Musgrave. ______________________ Decided: May 30, 2017 ______________________ MARK B. LEHNARDT, Antidumping Defense Group, LLC, Washington, DC, argued for plaintiff-appellant. STEPHEN CARL TOSINI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by BENJAMIN C. MIZER, JEANNE E. DAVIDSON, PATRICIA M. MCCARTHY; MICHAEL THOMAS GAGAIN, Office 2 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC. ______________________ Before NEWMAN, TARANTO, and CHEN, Circuit Judges. Opinion for the court filed by Circuit Judge TARANTO. Dissenting opinion filed by Circuit Judge NEWMAN. TARANTO, Circuit Judge. This case arises from the U.S. Department of Com- merce’s third administrative review of its antidumping- duty order covering certain steel nails from China. Mid Continent Nail Corporation, a domestic entity, asked Commerce to initiate the third administrative review to determine the proper duty rates for the covered period, but Mid Continent did not serve the request directly on Suntec Industries, a Chinese exporter and producer named in the antidumping order and in the request. As this case comes to us, it is undisputed that Mid Continent thereby violated a service requirement stated in a Com- merce regulation. When Commerce actually initiated the review about a month after receiving the request, it published a notice of the initiation in the Federal Regis- ter, as provided in 19 U.S.C. § 1675(a)(1), which states that Commerce shall initiate review “if a request for such a review has been received and after publication of notice of such review in the Federal Register.” Despite the Federal Register publication, however, Suntec did not participate in the review. Evidently because of a lapse in its relationship with the counsel who had been its repre- sentative for years in the steel-nail proceedings, Suntec remained unaware of the review until Commerce an- nounced the final results (or a few days earlier). Based on the service deficiency regarding the request for the review, Suntec sued in the Court of International Trade to set aside the results of the review at least as applied to Suntec. The court rejected the challenge. It SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 3 held that Suntec had failed to demonstrate that it was substantially prejudiced by the service error as to the request for the review in this case. In particular, it con- cluded that the Federal Register notice of initiation of the review constituted notice to Suntec as a matter of law and fully enabled Suntec to participate in the review because Suntec did not show any prejudice from not knowing of the request in the pre-initiation period. We affirm. I In 2008, Commerce issued an antidumping-duty or- der, under 19 U.S.C. § 1673, covering certain steel nails from China. Certain Steel Nails from the People’s Repub- lic of China: Final Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances, 73 Fed. Reg. 33,977 (Dep’t of Commerce June 16, 2008). The Final Determination expressly covers Suntec, which was among the few foreign entities for which Commerce specifically verified infor- mation (at Suntec’s Shanghai location) pursuant to 19 U.S.C. § 1677m(i). Id. at 33,977, 33,980, 33,982, 33,983; see J.A. 194. Suntec had established its entitlement to a rate separate from the China-wide rate of 118.04 percent, and Commerce assigned Suntec a rate of 21.24 percent. 73 Fed. Reg. at 33,981, 33,984. The common annual administrative-review process pursuant to 19 U.S.C. § 1675 then began. In the first two years after issuance of the 2008 order, i.e., the years beginning August 1, 2008, and August 1, 2009, respective- ly, Commerce published Federal Register notices an- nouncing the opportunity to request, Mid Continent requested, and Commerce then initiated (announced by publication in the Federal Register) administrative re- views of the proper duty rate under the order. In each year, the request and initiation included Suntec. In each year, Mid Continent served the request on a Chinese law firm that Suntec had designated as representing it; the 4 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES certificates of service list that firm’s Shanghai address, not Suntec’s own, different Shanghai address. In each year, Suntec participated in the review by filing a “sepa- rate rate certification,” Mid Continent then dropped its review request as to Suntec, and Commerce in turn rescinded the review of Suntec. See J.A. 194–96. The effect was to leave the 21.24 percent rate in place for Suntec. See Certain Steel Nails from the People’s Repub- lic of China: Notice of Partial Rescission of the First Antidumping Duty Administrative Review, 75 Fed. Reg. 43,149, 43,150 & nn.1–2 (Dep’t of Commerce July 23, 2010). This case concerns the third annual administrative review, for the year beginning August 1, 2010. On August 1, 2011, Commerce published a Federal Register notice of the opportunity to request a review, J.A. 196, and on August 31, 2011, Mid Continent requested such a review, naming Suntec among many other entities, J.A. 196, 208. The certificate of service shows that, as in the first two administrative reviews, Mid Continent mailed a copy of the request to the Suntec-designated Shanghai lawyers’ address, not to Suntec’s own Shanghai address. J.A. 196. Five weeks later, on October 3, 2011, Commerce pub- lished a notice of initiation of the review in the Federal Register. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revoca- tions in Part, 76 Fed. Reg. 61,076 (Dep’t of Commerce Oct. 3, 2011) (Notice of Initiation). The notice of initiation in the Federal Register expressly lists Suntec as a party subject to the administrative review. Id. at 61,082. Commerce conducted the review and issued its final determination on March 18, 2013. Certain Steel Nails from the People’s Republic of China; Final Results of Third Antidumping Duty Administrative Review; 2010– 2011, 78 Fed. Reg. 16,651 (Dep’t of Commerce Mar. 18, 2013). The final determination recites that Suntec, among other entities, did not apply for a rate separate SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 5 from the China-wide rate and therefore was assigned the China-wide rate of 118.04 percent. Id. at 16,652. As for the reason for Suntec’s non-participation, it is now undis- puted that Suntec was in fact unaware of the third ad- ministrative review until just after, or perhaps nine days before, the final determination issued. J.A. 73, 197, 244. 1 Thirty-one days after Commerce published the final results, Suntec challenged the initiation of the adminis- trative review in the Court of International Trade, argu- ing that the initiation was invalid as to Suntec because Mid Continent did not serve Suntec with the request for review as required by 19 C.F.R. § 351.303(f)(3)(ii). The court first denied Commerce’s motion to dismiss. The court concluded that it had jurisdiction under 28 U.S.C. § 1581(i) and that Suntec’s complaint allegations, if true, would establish that Mid Continent failed to comply with the service requirements contained in 19 C.F.R. § 351.303(f)(3)(ii). Suntec Indus. Co. v. United States, 951 F. Supp. 2d 1341, 1346–48, 1349 (Ct. Int’l Trade 2013). Subsequently, the court considered and granted Commerce’s motion for summary judgment. The court concluded that Mid Continent did violate the service requirement of 19 C.F.R. § 351.303(f)(3)(ii). Under the 1 Suntec participated in the fourth and fifth admin- istrative reviews, seeking and receiving a rate separate from the (still 118.04 percent) China-wide rate. See Certain Steel Nails from the People’s Republic of China: Final Results of Fourth Antidumping Duty Administra- tive Review; 2011–2012, 79 Fed. Reg. 19,316, 19,318 (Dep’t of Commerce Apr. 8, 2014) (assigning Suntec 10.42 percent rate); Certain Steel Nails from the People’s Re- public of China: Final Results of Fifth Antidumping Duty Administrative Review; 2012–2013, 80 Fed. Reg. 18,816, 18,817 (Dep’t of Commerce Apr. 8, 2015) (assigning Sun- tec 16.62 percent rate). 6 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES regulation, “an interested party that files with the De- partment a request for . . . an administrative re- view . . . must serve a copy of the request by personal service or first class mail on each exporter or producer specified in the request . . . by the end of the anniversary month or within ten days of filing the request for review, whichever is later.” Id. Mid Continent did not serve a copy of the request on Suntec. Suntec Indus. Co. v. Unit- ed States, No. 13-00157, 2016 WL 1621088, at 1, 4 (Ct. Int’l Trade Apr. 21, 2016). Nevertheless, the court held that Suntec was not enti- tled to relief because it had failed to make a showing that would permit a reasonable finding that it was prejudiced by Mid Continent’s failure to serve its request for initia- tion of the administrative review. In particular, the court concluded that the Federal Register notice of initiation sufficed as a matter of law to give Suntec notice of the proceeding upon its initiation, so that, to show prejudicial error, Suntec had to establish prejudice from losing the five-week pre-initiation period to prepare for participation in the review post-initiation. It held that Suntec had made no showing of any such pre-initiation prejudice. On that basis, the court granted Commerce’s motion for summary judgment. Id. at 7. Suntec appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(5). II We review the existence of jurisdiction in the Court of International Trade in this case de novo. Int’l Custom Prods. v. United States, 467 F.3d 1324, 1326 (Fed. Cir. 2006); Consol. Bearings Co. v. United States, 348 F.3d 997, 1001 (Fed. Cir. 2003). We review the grant of sum- mary judgment de novo. StoreWALL, LLC v. United States, 644 F.3d 1358, 1361 (Fed. Cir. 2011). “When reviewing a Court of International Trade decision in an action initiated under 28 U.S.C. § 1581(i), this court SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 7 applies the standard of review set forth in 5 U.S.C. § 706.” PS Chez Sidney, L.L.C. v. U.S. Int’l Trade Comm’n, 684 F.3d 1374, 1379 (Fed. Cir. 2012); 28 U.S.C. § 2640(e). 2 A We begin with the government’s contention that the Court of International Trade lacked jurisdiction to hear this case. Suntec’s complaint invoked jurisdiction under 28 U.S.C. § 1581(i), whose language, as relevant here, confers jurisdiction over a civil action arising out of a law providing for duties on the importation of merchandise for reasons other than the raising of revenue or for “admin- istration and enforcement with respect to” such duties. That language covers antidumping duties, and associated administration and enforcement, but to ensure that the statute works as intended, “we have held ‘that jurisdiction under subsection 1581(i) may not be invoked if jurisdic- tion under another subsection of section 1581 is or could have been available, unless the other subsection is shown to be manifestly inadequate.’” Hutchison Quality Furni- ture, Inc. v. United States, 827 F.3d 1355, 1360 (Fed. Cir. 2016) (quoting Hartford Fire Ins. Co. v. United States, 544 F.3d 1289, 1292 (Fed. Cir. 2008)). To determine whether another subsection could have been available, “[w]e look to the ‘true nature of the action.’” Id. (quoting Hartford Fire Ins., 544 F.3d at 1293). The government argues that this case is outside § 1581(i) because Suntec could have challenged Com- merce’s final determination under § 1581(c). We disagree. To adopt the government’s contention that this case 2 Commerce argues that the Court of International Trade misapplied the standard of review when it consid- ered Suntec’s extra-record evidence. We need not address that argument because we conclude that affirmance is required even in light of Suntec’s evidence. 8 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES comes within § 1581(c), we would have to conclude that Suntec was or could have been a party to the administra- tive review. We cannot draw that conclusion. 28 U.S.C. § 1581(c) gives the Court of International Trade exclusive jurisdiction over any civil action com- menced under 19 U.S.C. § 1516a. The relevant provisions of § 1516a are those which allow “an interested party who is a party to the proceeding in connection with which the matter arises” to “commence an action” to “contest[] any factual findings or legal conclusions upon which” a “final determination” in an administrative review under 19 U.S.C. § 1675 “is based.” 19 U.S.C. § 1516a(a)(2)(A), (B)(iii) (emphasis added). The requirement that the plaintiff have been a party in the administrative review is reinforced by 28 U.S.C. § 2631(c) (“A civil action contest- ing a determination listed in [19 U.S.C. § 1516a] may be commenced . . . by any interested party who was a party to the proceeding in connection with which the matter arose.”) (emphasis added). See 19 C.F.R. § 351.102(b)(36) (“‘Party to the proceeding’ means any interested party that actively participates, through written submissions of factual information or written argument, in a segment of a proceeding.”). Suntec was not a party to the administrative review. And we cannot conclude, in our jurisdictional analysis, that Suntec could have been such a party. We assume the correctness of Suntec’s merits contention for the jurisdic- tional analysis here. Cf. Rocky Mountain Helium, LLC v. United States, 841 F.3d 1320, 1325 (Fed. Cir. 2016) (standing analysis assumes correctness of merits allega- tions). Suntec’s claim on the merits is that it could not have participated because it did not get notice of the proceeding and hence did not know that the proceeding was underway. 28 U.S.C. § 1581(c) is manifestly inade- quate where a party is challenging the initiation of an administrative review based on the contention that it did not participate in the review precisely because it did not SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 9 get the legally required notice. The Court of International Trade therefore had jurisdiction in this case under § 1581(i). 3 B The merits question presented to us takes as a given two premises not contested on this appeal. One is that Mid Continent violated a regulation in requesting the third administrative review when it failed to mail a copy of the request to Suntec itself and instead mailed a copy to Suntec’s designated legal representatives in Shanghai, as it had done in the first two administrative reviews. The second is that Suntec’s non-participation in the third administrative review likely cost it a good deal of money, at least on a per-unit basis. Rather than retaining its earlier 21.24 percent rate, it was assigned the China-wide rate of 118.04 percent. What is at issue here is the con- nection between the service deficiency and Suntec’s non- participation in the review. The question on appeal is not whether the regulatory service deficiency could be a basis for judicial review under 5 U.S.C. § 706 even aside from whether the defi- ciency was prejudicial. The Court of International Trade did not rule, and Commerce does not contend on appeal, that Suntec is barred from challenging Commerce’s ac- tions (its initiation of and final determinations in the review) because it was only Mid Continent, not Com- merce, that was responsible for providing, and failed to provide, service as required by the governing regulation. 3 The government argues that PAM, S.p.A. v. Unit- ed States, 463 F.3d 1345 (Fed. Cir. 2006), demonstrates that § 1581(c) was available to Suntec in this case to challenge the initiation of the review. But PAM is unlike this case, because the exporter in PAM participated in the administrative review. See PAM, 463 F.3d at 1346–47. 10 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES We may therefore assume that such a service deficiency can be a basis, in a proper case, for setting aside Com- merce’s actions as, e.g., “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). Section 706, however, does not stop there in prescrib- ing when a court may set aside agency action. Section § 706 commands that, when a court hears a challenge to an agency action, “due account shall be taken of the rule of prejudicial error.” 5 U.S.C. § 706. The Supreme Court has held that the § 706 “rule of prejudicial error” com- mand requires application of a traditional harmless-error analysis and that the person seeking relief from the error has the burden of showing prejudice caused by the error. Shinseki v. Sanders, 556 U.S. 396, 406, 409 (2009). Accordingly, the question presented here is whether Suntec has met its burden of establishing the connection between the service deficiency and Suntec’s absence from the review that is required to constitute a showing of prejudicial error. The crucial fact here is that there was an intervening event between the request and the review: the Federal Register notice of initiation of the review. If that notice of initiation constituted notice as a matter of law, then Suntec was responsible for its own non-participation in the review after that notice, and to show harm from the earlier service defect it would have had to show that it lost an opportunity for pre-initiation preparation that it would have needed to make post-initiation participation effective. Such a showing might be difficult, given that Commerce gave Suntec and others 60 days after initiation to make pertinent filings. See Notice of Initiation, 76 Fed. Reg. at 61,077. We need not say, however, what might be required to make such a showing. In this case, Suntec made no such showing based on the pre-initiation period and does not meaningfully argue otherwise in this court. SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 11 The question therefore comes down to whether the Federal Register notice constituted effective notice as a matter of law, to be treated as indistinguishable from actual notice. Like the Court of International Trade, we conclude that the Federal Register notice did constitute notice as a matter of law. Our court and other courts have often recognized that a failure to give a person a required notice can be harm- less—e.g., where the person has actual knowledge of the relevant information or the notice defect was cured by a subsequent notice given in time for the person to act on the matter. See, e.g., United States v. Great Am. Ins. Co. of N.Y., 738 F.3d 1320, 1329–30 (Fed. Cir. 2013) (denying relief despite Commerce’s violation of notice requirement in context of suspension of liquidation); Dixon Ticondero- ga Co. v. United States, 468 F.3d 1353, 1355–56 (Fed. Cir. 2006) (denying remedy where party did not show that it was prejudiced by agency’s failure to provide notice at time required by regulation); Kemira Fibres Oy v. United States, 61 F.3d 866, 875–76 (Fed. Cir. 1995) (as Dixon, 468 F.3d at 1355, summarized, “holding that failure to timely comply with the notice requirement of 19 C.F.R. § 353.25(d) did not deprive the Department of Commerce of the authority to commence an administrative review where the antidumping review was noticed by the agency after the regulatory deadline”); Intercargo Ins. Co. v. United States, 83 F.3d 391, 394–96 (Fed. Cir. 1996) (find- ing lack of required information in notice harmless); 4 see 4 We implicitly recognized the point in Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015), when we held that a notice defect was not cured by eventual notification after the deadline for submission of evidence. See id. at 1345 (“At least in this context, a ‘cure’ of the notice defect must mean some source providing notification of the same opportunity a correct notice would have provided.”). 12 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES also U.S. Telecom Ass’n v. Fed. Communication Comm’n, 825 F.3d 674, 725 (D.C. Cir. 2016) (denying remedy for failure to provide notice where parties had actual knowledge of the final rule); Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487–88 (9th Cir. 1992) (deny- ing remedy for failure to provide notice during rulemak- ing because the parties had actual notice of the proceedings); Aero Mayflower Transit Co., Inc. v. Inter- state Commerce Comm’n, 711 F.2d 224, 232 (D.C. Cir. 1983) (denying remedy for insufficiently informative agency notice where party contesting decision learned the relevant information in subsequent proceedings in time to present challenges). We applied that familiar principle, and the require- ment to show substantial prejudice of a notice defect, in PAM, S.p.A. v. United States, 463 F.3d 1345, 1348 (Fed. Cir. 2006), specifically in the context of the same regula- tory service deficiency that is at issue here. In PAM, the domestic petitioners failed to serve PAM, a foreign ex- porter, with their request that Commerce initiate an administrative review, as required by 19 C.F.R. § 351.303(f)(3)(ii). Four weeks later, Commerce initiated the review and published notice of initiation in the Feder- al Register. PAM, listed in the notice, entered an appear- ance in the review the next day. PAM, 463 F.3d at 1346. When the review was complete, PAM argued that it was entitled to have the review set aside as to it because of the service defect. Id. at 1347. This court rejected that contention, reversing the Court of International Trade’s contrary ruling. Id. at 1346. The court held that PAM had to show prejudice to se- cure relief for the service defect. The court explained: “Even if a regulation is intended to confer an important procedural benefit, if the failure of a party to provide notice as required by such a regulation does not prejudice the non-notified party, then we think neither the govern- ment, the non-serving party, nor the public should be SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 13 penalized for such a failure.” Id. at 1348. Acknowledging the procedural benefit provided by the regulation, the court followed American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539 (1970), as well as this court’s Kemira and Intercargo decisions, and held that PAM had to “show substantial prejudice” from the service deficiency to secure relief. PAM, 463 F.3d at 1347–48. The court then held that PAM had not shown “that it was substantially prejudiced by [petitioners’] lack of service, which delayed its notification by several weeks.” Id. at 1349. The court relied on the fact that “PAM re- ceived constructive and actual notice of the review by publication in the Federal Register” before the review began. Id. And while PAM did not have the pre-initiation time to prepare, it did not show prejudice as a result, because Commerce gave it “more than enough time to ‘catch up.’” Id. PAM makes clear how a deficiency in service of the request for a review could in some cases be prejudicial notwithstanding a fully effective Federal Register notice of initiation of the review. In particular, the un-served person may be able to prove prejudice from loss of pre- initiation time to prepare for effective post-initiation participation in the review. The regulation demanding service of the request is therefore not rendered unenforce- able by treating the Federal Register notice of initiation as effective notice. But there was no such (uncured) prejudice in PAM. And in the present matter, as we have noted, Suntec has not shown, or even meaningfully ar- gued for, prejudice relating to the pre-initiation period. Accordingly, this case differs from PAM only in that here the Federal Register notice was not actually seen by Suntec, whereas PAM evidently saw the notice in its case. The question is whether the Federal Register notice nevertheless suffices to require the same no-prejudice result as in PAM. We conclude that it does, based on the 14 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES background law regarding Federal Register notices and the specific congressional prescription of Federal Register notice for the initiation of administrative reviews under 19 U.S.C. § 1675(a). The background law includes two provisions of the Federal Register Act, codified in Title 44 of the U.S. Code. Those provisions establish a broad, non-agency-specific default rule that Federal Register notices are treated as legally effective notices in a wide range of circumstances. See, e.g., Wolfson v. United States, 492 F.2d 1386, 1392 (Ct. Cl. 1974) (“It is well settled that when regulations are published in the Federal Register they give legal notice of their contents to all who may be affected thereby.”); Aris Gloves, Inc. v. United States, 281 F.2d 954, 958 (C.C.P.A. 1958) (“Congress intended a proper publication in the Federal Register to be considered reasonable public notice unless otherwise provided by statute.”). One of the Title 44 provisions says: “Unless otherwise specifically provided by statute, filing of a document, required or authorized to be published by section 1505 of this title, except in cases where notice by publication is insufficient in law, is sufficient to give notice of the con- tents of the document to a person subject to or affected by it.” 44 U.S.C. § 1507. That provision applies to the initia- tion notice here. Congress specifically required Com- merce to publish the notice in the Federal Register, 19 U.S.C. § 1675(a)(1), and Commerce did so. Section 1507, standing alone, therefore applies to make the publication “sufficient to give notice of [its] contents . . . to a person subject to or affected by it,” 44 U.S.C. § 1507, which includes Suntec. The second Title 44 provision of relevance is 44 U.S.C. § 1508, which addresses a narrower situation of certain notices of timing information regarding hearings or opportunities to be heard. The provision says: “A notice of hearing or of opportunity to be heard, required or author- SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 15 ized to be given by an Act of Congress, . . . shall be deemed to have been given to all persons residing within the States of the Union and the District of Columbia, except in cases when notice by publication is insufficient in law, where the notice is published in the Federal Register” and it satisfies certain timing conditions related to “the date fixed in the notice for the hearing or for the termination of the opportunity to be heard.” 44 U.S.C. § 1508. In this case, it is undisputed that the initiation notice at issue gave Suntec an opportunity to be heard by specified dates after the initiation. Notice of Initiation, 76 Fed. Reg. at 61,076–77, 61,082; see 19 U.S.C. § 1675(e) (requiring that in administrative reviews, Commerce “shall, upon the request of an interested party, hold a hearing in accordance with section 1677c(b)”); 19 U.S.C. § 1677(9) (“interested party” includes a “foreign manufac- turer, producer, [and] exporter”). But for the fact that Suntec is not a resident of the States or the District of Columbia, 44 U.S.C. § 1508 would supplement section 1507’s confirmation that the Federal Register notice of initiation sufficed to give notice. Section 1508, however, does not apply to Suntec, a foreign firm, and so does not aid Commerce here. On the other hand, section 1508 does not resolve this case against Commerce. The provision merely declares the legal sufficiency of Federal Register notices of opportunities to be heard for the designated domestic firms, as a default rule applicable in a wide range of contexts not specific to any particular statutory regime. It sets a generic back- ground floor of sufficient notice for domestic firms for the hearing-related circumstances covered. Section 1508 does not go further and declare that such notice is legally insufficient for foreign firms, regardless of the statutory context. It does not do so in terms, and it would not be sensible to read this generic, floor-setting provision as doing so impliedly. In particular, section 1508 cannot reasonably be read to deem Federal Register notice of a 16 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES hearing or opportunity to be heard legally insufficient as to foreign firms where a specific statutory or regulatory regime makes clear that such Federal Register notice provides foreign entities legally sufficient notice. That is the case here. Under the relevant provisions of Title 19, we must conclude that a Federal Register publication of a notice of a review’s initiation is sufficient as a matter of law to give notice to the named foreign exporters and producers. Congress was explicit in prescribing Federal Register publication as the mechanism of notice: Commerce “shall” review the duties “if a request for such a review has been received and after publication of notice of such review in the Federal Register.” 19 U.S.C. § 1675(a)(1). It said just that while also guaranteeing “a hearing in accordance with” 19 U.S.C. § 1677c(b) to any “interested party” requesting one. 19 U.S.C. § 1675(e). Congress recognized that it is central, not incidental, to the review process that the “interested parties” typically include foreign firms named in the antidumping order as subject to antidump- ing duties: in defining “interested party,” Congress listed “foreign manufacturer, producer, [and] exporter” first in its covered examples. 19 U.S.C. § 1677(9). And in the “hearing” provision mentioned in § 1675(e), Congress further confirmed that Federal Register notice suffices to give notice: “Any hearing required or permitted under this title shall be conducted after notice published in the Federal Register . . . .” 19 U.S.C. § 1677c(b). 5 5 Indicating the distinctive character of the statuto- rily prescribed “hearing,” the same provision declares that the hearing “shall not be subject to” a “procedure” sub- chapter of the Administrative Procedure Act, 5 U.S.C. §§ 551–559, or to that Act’s “right of review” provision, 5 U.S.C. § 702. 19 U.S.C. § 1677c(b). SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 17 The legal sufficiency of Federal Register notice, we conclude, follows from the statutory provisions at issue. And we do not think that Suntec has identified anything implausible about the congressional scheme when so understood. A foreign exporter or producer that is ex- pressly named in an antidumping order, and is subject to continuing antidumping duties for the protection of U.S. industry, can reasonably be expected to have knowledge of the established mechanism for regular reviews (upon request) to determine the final amount of duties owed, of the potentially severe consequences of non-participation by a foreign entity from a non-market economy, and of the need to maintain representation to monitor developments. Suntec itself had such knowledge, participating in the first two annual reviews and maintaining, until the lapse that caused the problem in this review, a relationship with counsel to provide the necessary monitoring. It is not unreasonable for Congress to provide a simple, famil- iar Federal Register notice mechanism that deems those in Suntec’s position properly notified upon publication. Suntec argues that it is irrelevant whether it is deemed to have gotten notice of the initiation of the review because Commerce can initiate a review only after receiving a valid request and a request is not valid unless it includes a certification of service. But that argument is just a reformulation of the assertion that, under the regulations, there was a service deficiency as to the re- quest; deeming the request invalid changes nothing. 6 The 6 We note that the statute requires only receipt of a request and Federal Register publication of a notice of initiation, not service of the request on identified export- ers. 19 U.S.C. § 1675(a)(1). A regulation requires “[e]ach document filed with [Commerce to] include a certificate of service,” with the penalty for failure to do so being that the “Secretary may refuse to accept [the] document.” 19 18 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES alternative articulation of the same point thus does not alter at all the need to show prejudice from the identified error. Suntec has not made that showing, because the Federal Register notice was effective as to initiation and Suntec showed no prejudice from the pre-initiation defi- ciency. III For the foregoing reasons, we affirm the judgment of the Court of International Trade. AFFIRMED C.F.R. § 351.303(f)(2). Here, the Secretary accepted the request for review. Furthermore, the regulation that addresses the required contents of requests does not mention service on the exporters. See 19 C.F.R. § 351.213(b)(1) (stating that an interested party may request review of particular exporters or producers only if it “states why [it] desires the Secretary to review those particular exporters or producers”). United States Court of Appeals for the Federal Circuit ______________________ SUNTEC INDUSTRIES CO., LTD., Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee MID CONTINENT NAIL CORPORATION, Defendant ______________________ 2016-2093 ______________________ Appeal from the United States Court of International Trade in No. 1:13-cv-00157-RKM, Senior Judge R. Kenton Musgrave. ______________________ NEWMAN, Circuit Judge, dissenting. I respectfully dissent. Suntec did not receive the per- sonal service required by regulation; the Court of Interna- tional Trade held that the regulation was violated. Suntec Indus. Co. v. United States, 2016 WL 1621088, at 1, 4 (Ct. Int’l Trade Apr. 21, 2016). And Suntec never had actual notice of the review by Commerce and did not participate in the review. Id. at 3 (accepting Suntec’s affidavits as true). 2 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES The regulatory violation was not harmless, and Sun- tec was substantially prejudiced, for it did not have the opportunity to participate at all. Constructive notice is not within the statute or rule. Commerce is required to enforce its regulation that requires the requestor to provide service to a party. 19 C.F.R. § 351.303(f)(3)(ii) contemplates that foreign entities may not be readers of the Federal Register and explicitly requires direct notice. PAM, S.p.A. v. United States, 463 F.3d 1345 (Fed. Cir. 2006), describes the potential harm to a party that had actual notice and actually participated in the proceeding. Suntec had no such notice, and did not participate. Precedent includes some situations in which notice defects were harmless. In PAM and other cases, the person complaining about the lack of required regulatory notice nonetheless had actual notice and appeared to participate in the action. Since the early 1800’s, a party who appeared in person or by attorney was deemed to have waived any defects in service. Knox v. Summers, 7 U.S. 496, 497 (1806) (“The court were unanimously of the opinion, that the appearance by attorney cured all irregu- larity of process.”); Pollard v. Dwight, 8 U.S. 421, 428–29 (1808) (“By appearing to the action, the defendants in the court below placed themselves precisely in the situation in which they would have stood, had process been served upon them, and consequently waived all objections to the non-service of process.”); Creighton v. Kerr, 87 U.S. 8, 12 (1873) (“A general appearance waives all question of the service of process.”). The same principle applies here; a party who is un-served but appears anyway waives the issue of defects in service. However, Suntec was not served and did not appear. The Administrative Procedure Act’s prejudice re- quirement allows for harmless error, but the error here was not harmless. Suntec did not participate because it was, as we must accept, unaware of the proceeding. Suntec was unaware of the proceeding because it was not SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 3 informed that the request for review had been filed, and therefore had no reason to expect that a review would be instituted. Without the notice required by Commerce’s rule, the request was faulty and Commerce could not institute review of Suntec. By statute, the administering authority shall review “if a request for such a review has been received.” 19 U.S.C. § 1675(a)(1) (emphasis added). Absent a request that was properly served, Commerce cannot institute a review. Commerce requires the reques- tor of an administrative review to provide actual notice to foreign manufacturers as part of the request for review. Commerce’s rule requires: Request for review. In addition to the certificate of service requirements under paragraph (f)(2) of this section, an interested party that files with the Department a request for an expedited antidump- ing review, an administrative review, a new ship- per review, or a changed circumstances review must serve a copy of the request by personal ser- vice or first class mail on each exporter or produc- er specified in the request and on the petitioner by the end of the anniversary month or within ten days of filing the request for review, whichever is later. If the interested party that files the request is unable to locate a particular exporter or pro- ducer, or the petitioner, the Secretary may accept the request for review if the Secretary is satisfied that the party made a reasonable attempt to serve a copy of the request on such person. 19 C.F.R. § 351.303(f)(3)(ii). This regulation requires that a requestor “must serve a copy of the request by personal service or first class mail on each exporter or producer specified in the request.” Compliance with 351.303(f)(3)(ii) is not optional. The provision stating that the “Secretary may refuse to accept [the] document” 4 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES appears in Rule 351.303(f)(2), which generally deals with certificates of service for “documents filed with the De- partment.” Rule 351.303(f)(3)(ii) expressly states that its requirements are “in addition to the certificate of service requirements under paragraph (f)(2).” Here, there was no personal service, and the Secre- tary made no finding that the requestor made a reasona- ble attempt to serve. Without one of those two requirements, the rule is violated and the request is defective. Commerce brushes off the violation as a harmless procedural defect. But the only way to render the viola- tion harmless is by assuming that Suntec was obligated to appear, although without notice that the request had been filed. The court creates that obligation by charging Suntec with constructive notice by publication of the institution of the review in the Federal Register. Con- structive notice is a legal fiction. Torry v. Northrop Grumman Corp., 399 F.3d 876, 878 (7th Cir. 2005) (“When a court says that the defendant received ‘con- structive notice’ of the plaintiff's suit, it means that he didn't receive notice but we’ll pretend he did”). However, constructive notice is not applicable here. Given Commerce’s regulations, Suntec’s duty to inquire did not begin until it received the required actual notice of the request. The Federal Register Act does not, by itself, compel foreign entities to monitor the Federal Register. Nor does the Tariff Act. The regulations require actual notice. Commerce assigned the burden to the requestor to provide actual notice to all the foreign manufacturers that a request had been filed. Foreign manufacturers are entitled to rely on the regulations that Commerce has promulgated. “It is no less good morals and good law that the Government should turn square corners in dealing with the people than that the people should turn square SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 5 corners in dealing with their Government.” St. Regis Paper Co. v. United States, 368 U.S. 208, 229 (1961). Commerce cannot, after the fact, nullify the regulato- ry scheme it created. From the court’s contrary holding, I respectfully dissent.
390 B.R. 734 (2008) In re BARON'S STORES, INC., Debtor. No. 97-25645-BKC-PGH. United States Bankruptcy Court, S.D. Florida, West Palm Beach Division. May 14, 2008. 737 Arthur J. Morburger, Miami, FL, for Debtor. ORDER DENYING UNDERLYING RELIEF SOUGHT BY JOINT EMERGENCY MOTION TO REOPEN CASE AND PRO SE EMERGENCY MOTION TO REOPEN CASE PAUL G. HYMAN, Chief Judge. THIS MATTER came before the Court for pretrial conference on March 24, 2008 upon Baron's Stores, Inc. ("Baron's") and Norman Lansons's Joint Emergency Motion to Reopen Case for Consideration of Newly Discovered Evidence of Attorneys' Fraud on the Court and to Void Liquidation Plan ("Motion") (CP. # 586), and upon Meryl Lanson's (collectively with Baron's and Norman Lanson, "Movants") Pro Se Emergency Motion to Reopen Case for Consideration of Newly Discovered Evidence of Attorneys' Fraud on the Court ("Pro Se Motion")(C.P. # 587).[1] Marc Cooper, Esq., Cooper and Wolfe, P.A., Ronald C. Kopplow, Esq., Kopplow and Flynn, P.A., Sonya Salkin, and Malnik and Salkin, P.A. (collectively "the Attorneys") filed a Memorandum in Opposition (CP. # 599), a Notice of Intent to Rely Upon Document (CP. # 600), and a Surreply (CP. #607). Movants filed a Reply to Attorneys' Memorandum in Opposition (CP. # 602) and a Response to Surreply and Attorneys' Notice of Intent to Rely Upon Document (CP. # 616). BACKGROUND AND PROCEDURAL POSTURE On September 9, 1997, Baron's filed a voluntary petition under Chapter 11 of the Bankruptcy Code. On November 16, 1998, Baron's and the Official Committee of Unsecured Creditors' Joint Amended Chapter 11 Plan (the "Amended Plan") was confirmed by the Court ("Confirmation Order") (CP. # 263). On December 10, 1999, a Final Decree was entered and the case was closed. On September 7, 1999, the Lansons filed a legal malpractice action against Kopplow and Cooper in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida based upon their representation in an accounting malpractice action against Baron's former accountants (the "State Malpractice Action"). In November 2001, the Lansons amended the State Malpractice Action to include Salkin who had represented Baron's in its Chapter 11 case. The Lansons alleged in the State Malpractice Action that the Attorneys committed fraud in this Bankruptcy Court in connection with Motions to Employ Special Counsel and Orders Employing Special Counsel. The presiding judge in the State Malpractice Action advised the Lansons to resolve the fraud on the Bankruptcy Court allegations with the Bankruptcy Court. Consequently, on March 11, 2005, the Lansons filed an Emergency Motion to Reopen Case (CP. # 339), which was set for pretrial on April 4, 2005. On April 7, 2005, this Court entered an Order Granting the Emergency Motion to Reopen (CP. # 347) for the purpose of adjudicating the merits of the claim that the Attorneys perpetrated a fraud upon the Court. Following a three-day evidentiary hearing, conducted January 29-31, 2007, the Court entered a Memorandum Opinion Determining That Fraud Has Not Been Perpetrated Upon The Court ("Order") (CP. # 546). The Movants appealed 738 the Court's Order. On January 7, 2008, United States District Court Judge Cecilia Altonaga entered an order affirming the Court's Order. The Movants now ask the Court to reopen this case: 1) in order to consider "newly discovered" evidence as it relates to the credibility of the Attorneys' testimony at the fraud on the Court trial conducted January 29-31, 2007; 2) on the independent ground of a "newly discovered" fraud on the Court; and 3) on the independent ground that the Amended Plan is void for lack of consent by Baron's, which consequently deprived Baron's of due process. Motion at 9. The Court took this matter under advisement following the pretrial conference to determine whether it was appropriate to conduct an evidentiary hearing for the Movants to present "newly discovered" evidence of the Attorneys' alleged fraud upon the Court. Although the Movants asked the Court to reopen this case, the Court's review of the docket revealed that the case was not closed following the January 2007 trial. Thus on April 22, 2008, the Court entered an Order Denying as Moot Motion to Reopen and Pro Se Motion to Reopen and Extending Deadline for Submissions, wherein the Court denied as moot the request to reopen the case. The Court also granted the parties additional time to submit supplemental briefs and/or motions regarding the propriety of conducting an evidentiary hearing on the underlying relief sought by the Movants in the Motion to Reopen and the Pro Se Motion to Reopen. Supplemental briefs were filed by the Attorneys and Meryl Lanson pro se. For the reasons set forth below, the Court concludes that the relief from final orders sought by the Movants is unavailable as a matter of law, and that an evidentiary hearing is unnecessary. MOVANT'S ARGUMENTS AND THE "NEWLY DISCOVERED" EVIDENCE The gravamen of the Motion is that the Attorneys committed fraud by deleting an exculpation clause from the Amended Plan that had been included in the original Plan ("Plan") as Article XVI (the "Exculpation Clause"). The Movants maintain they did not discover that the Exculpation Clause had been deleted from the Amended Plan until approximately February 4, 2008, when the Attorneys filed a Motion for Summary Judgment with a copy of the Amended Plan attached as an exhibit in the State Malpractice Action. The Movants point out that the footer code on page 23 of the Amended Plan indicates that this signature page was printed on September 3, 1998, while the footer codes on pages 1-22 indicate that the rest of the Amended Plan was printed on September 4, 1998. (Movants' Ex. 10). Similarly, the footer codes on signature pages 24 and 25 of the Amended Disclosure Statement indicate that these pages were printed on September 3, 1998, while the footer codes on pages 1-25 indicate that the rest of the Amended Disclosure Statement was printed on September 4, 1998. (Movants' Ex. 11). In addition, signature pages 24 and 25 of the Amended Disclosure Statement are not consecutively paginated such that two different pages immediately preceding the signature pages are also assigned page numbers 24 and 25. The Movants argue that the footer print date codes of the documents and the irregular pagination of the Amended Disclosure Statement, evidence that Salkin, perhaps with the knowledge and consent of Cooper and Kopplow, deliberately and surreptitiously deleted the Exculpation Clause from the Amended Plan in an attempt to avoid liability for their alleged malpractice. The Movants contend that the deleted Exculpation 739 Clause reserved rights to Baron's to prosecute claims for legal malpractice against the Attorneys. Furthermore, the Movants maintain that Baron's never consented to deletion of the Exculpation Clause. The Pro Se Motion additionally states that the Attorneys filed "bogus pleadings" (the Amended Plan and the Amended Disclosure Statement) in the Bankruptcy Court "which were altered and changed from the original document [sic] signed by Norman Lanson". Pro Se Motion at 1. Based upon this "newly discovered" evidence of the Attorneys' alleged fraud, the Movants seek to "void" the Amended Plan for lack of consent by Baron's, to have the Court set aside the Order finding that the Attorneys had not committed fraud on the Court[2], and to determine that there has been a fraud perpetrated on the Court independent of the previously alleged fraud on the Court regarding alleged nondisclosure of connections by the Attorneys. CONCLUSIONS OF LAW I. JURISDICTION The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 11 U.S.C. § 157(b)(2)(A). II. DELETION OF THE EXCULPATION CLAUSE The core of all of the Movants' arguments involves the deletion of the Exculpation Clause. The Exculpation Clause which was included in the original Plan but deleted from the Amended Plan states: ARTICLE XVI EXCULPATIONS The Debtor, the Creditors Committee and each of their respective members, ex-officio members and any of their respective officers, directors, employees, agents, attorneys, accountants and other professionals in such capacities shall neither have nor incur any liability to the Debtor or to any holder of a Claim or Interest for any act or omission in connection with, or arising out of, the Debtor's bankruptcy case, the Plan, including without limitation, the. negotiation, formulation, preparation, confirmation, or consummation of the Plan, the Disclosure Statement, any sale of assets pursuant to the Plan, or any contract, instrument, release or other agreement, document, or election made, created or entered into in connection with the Debtor's bankruptcy case, the Plan, any sale of assets pursuant to the Plan or the funds to be distributed under the Plan, and/or the administration of the Debtor's bankruptcy case except, in such case on account of willful misconduct or gross negligence on the part of a specific person sought to, be held so liable or cases of action commenced prior the Effective Date. Plan at p. 24 (Movants Ex. # 2)(emphasis added). The central theme of the Movants's arguments is that the underlined portion of the Exculpation Clause is a reservation of rights clause, the removal of which caused the Movants harm. However, the Movants have not identified any cause of action that was released by deletion of the Exculpation Clause. A plain reading of the entire Exculpation Clause indicates that its deletion did not harm, restrict or release any claims. Indeed, the deletion of the Exculpation Clause has the opposite effect. The Exculpation Clause operates as a 740 waiver and release for all but willful and intentional acts. In contrast, deletion of the Exculpation Clause from the Amended Plan means all claims are not released. Thus, deletion of the Exculpation Clause does not disadvantage the Movants. Indeed, the Movants are in a better position than they would have been had the Exculpation Clause been included in the confirmed Amended Plan. The Court also notes that 11 U.S.C. § 1141(b) provides: Effect of Confirmation: (b) Except as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor. 11 U.S.C. § 1141(b). Thus, unless otherwise provided for in the Amended Plan, causes of action belong to the estate were re-vested in Baron's upon confirmation. Generally, the purpose of including reservation of rights clauses in Chapter 11 plans is to avoid the effect of § 1141(b) so that property of the estate can be vested in parties other than the debtor such as, for example, a creditors' committee. A review of the confirmed Amended Plan indicates that it contained a reservation of rights clause. However, the Amended Plan's reservation of rights clause was not designed to avoid the effect of § 1141(b) because it reserved rights to the Debtor and the Estate. The reservation of rights clause states: ARTICLE XV MISCELLANEOUS 6. Reservation of Rights. Neither the filing of the Plan by the Debtor or the Committee nor any statement or provision contained in the Plan, or the Disclosure Statement to accompany the Plan, shall be deemed a waiver of any rights, remedies, defenses or claims by the Debtor, or the Estate, and all such rights, remedies, defenses and claims are hereby specifically reserved. Amended Plan, Art. XV, ¶ 6. Accordingly, the reservation of rights clause did not alter the effect of § 1141(b) to statutorily re-vest any causes of action in Baron's. Nor did deletion of the Exculpation Clause alter the effect of § 1141(b) to statutorily re-vest any causes of action in Baron's. Had the Exculpation Clause been included in the Amended Plan, it would have limited the causes of action revested in Baron's. Removing the Exculpation Clause removed the limitation of claims re-vested in Baron's such that all claims were re-vested, not merely claims based upon willful and intentional actions. Finally, the Court notes that the issue of whether Baron's ceased to exist, which was raised in the State Malpractice Action, is a separate issue unrelated to deletion of the Exculpation Clause from the Amended Plan.[3] The Court concludes that rather than harming the Movants, deletion of the Exculpation Clause benefitted the Movants by eliminating provisions that could have protected the Attorneys and other specified parties if timely claims were lodged against them. As further discussed below, the Court finds that the Movants' arguments are without merit because they are built upon the Movants' incorrect interpretation of the consequences engendered by deletion of the Exculpation Clause. 741 III RELIEF SOUGHT IS UNAVAILABLE AS A MATTER OF LAW A. Standing Movants argue that the Attorneys lack standing to oppose their motions. While the term "party in interest" is not defined in the Code, it "is well established that the term is `to be construed broadly in order to allow parties affected by a Chapter 11 case to appear and be heard.'" In re Tarrer, 273 B.R. 724, 731 (Bankr. N.D.Ga.2001) (citations omitted). Thus, the issue presented is whether the Attorneys are parties in interest with standing to oppose the motions. If the Court were to conduct an evidentiary hearing, the Attorneys would be compelled to defend the allegations against them and to incur the cost of additional litigation. Therefore, the Court finds that the Attorneys are parties in interest with standing to oppose the motions. B. Federal Rule of Bankruptcy Procedure 9024 The Movants ultimately seek relief from final orders of this Court. "Federal courts... long ago established the general rule that they would not alter or set aside their judgments after the expiration of the term at which the judgments were finally entered. This salutary general rule springs from the belief that in most instances society is best served by putting an end to litigation after a case has been tried and judgment entered...." Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978) (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244, 64 S.Ct. 997, 88 L.Ed. 1250 (1944)). However, along side the need for finality of judgments there has long been a rule of equity to the effect that under certain circumstances relief may be granted against judgments. Id. Federal Rule of Civil Procedure 60 sets forth the circumstances under which a Court may grant relief from a final judgment. The pertinent sections of Rule 60 provide: (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: * * (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); * * * (4) the judgment is void; * * * (6) any other reason that justifies relief. (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding. * * * (d) Other Powers to Grant Relief. This rule does not limit a court's power to: * * * (3) set aside a judgment for fraud on the court. 742 Fed.R.Civ.P. 60(b)-(d)[4]. Federal Rule of Bankruptcy Procedure 9024 makes Federal Rule of Civil Procedure 60 applicable in bankruptcy proceedings with three limitations. The pertinent limitation for this matter states that although Rule 60 is applicable in bankruptcy proceedings: (3) a complaint to revoke an order confirming a plan may be filed only within the time allowed by § 1144, § 1230, or § 1330. Fed. R. Bankr.P. 9024. As more fully discussed below, the Court finds that as a matter of law, the Movants failed to establish the requirements for relief from this Court's final orders. C. Newly Discovered Evidence Affecting Attorneys' Credibility Movants assert that newly discovered evidence of the surreptitious deletion of the Exculpation Clause damages the credibility of the Attorneys' testimony at the January 2007 trial, and therefore the Movants are entitled to Rule 60(b)(2) relief from the Court's Order. The Eleventh Circuit has stated the test for Rule 60(b)(2) relief as follows: For the court to grant relief based upon newly discovered evidence under Rule 60(b)(2), a movant must meet a five-part test: (1) the evidence must be newly discovered since the trial; (2) due diligence on the part of the movant to discover the new evidence must be shown; (3) the evidence must not be merely cumulative or impeaching; (4) the evidence must be material; and (5) the evidence must be such that a new trial would probably produce a new result. Waddell v. Hendry County Sheriffs Office, 329 F.3d 1300, 1309 (11th Cir.2003). The Movants claim they did not discover that the Exculpation Clause had been deleted from the Amended Plan until the Attorneys filed a Motion for Summary Judgment in the State Malpractice Action in February 2008. However, the Court notes that the Amended Plan was filed in this bankruptcy proceeding on September 11, 1998. Therefore, the Amended Plan is a matter of public record. The Eleventh Circuit has determined that "[e]vidence that is contained in the public records at the time of trial cannot be considered newly discovered evidence." Scutieri v. Paige, 808 F.2d 785, 794 (11th Cir.1987). Therefore as a matter of law, the evidence relied upon by the Movants, deletion of the Exculpation Clause from the Amended Plan, is not evidence that can be considered newly discovered since the trial. Nor can it be said that the Movants exercised due diligence to discover this evidence. Notwithstanding that the Movants suffered no detriment by deletion of the Exculpation Clause, Movants' contention that they could not have discovered its deletion with reasonable diligence until the Motion for Summary Judgment was filed in State Court is unpersuasive, especially given Movants' assertion that they relied upon the rights reserved under the Exculpation Clause to prosecute the State Malpractice Action they commenced in 1999. The Movants fail to show why this evidence could not have been discovered with due diligence prior to the January 2007 trial. See Liberty Mut. Ins. Co. v. FAG Bearings 743 Corp., 153 F.3d 919, 924 (8th Cir. 1998) ("FAG merely asserts that such new evidence was discovered in another action against FAG.... However, FAG fails to show why such evidence could not have been discovered earlier with due diligence"). In addition, Rule 60(b)(2) requires that the evidence not be merely cumulative or impeaching. However, the Movants offer this evidence precisely for the purpose of impeaching the Attorneys' testimony at trial. Finally, the newly discovered evidence must be material and such that a new trial would probably produce a new result. Had evidence of the deletion of the Exculpation Clause been introduced at the fraud on the court trial, it would not have produced a different result. A motion for Rule 60(b)(2) relief "is an extraordinary motion and the requirements of the rule must be strictly met." Waddell v. Hendry County Sheriffs Office, 329 F.3d at 1309 (citations omitted). The Movants have not established any of the five elements necessary for Rule 60(b)(2) relief. Accordingly, the relief requested is unavailable as a matter of law.[5] D. Voiding the Amended Plan Federal Rule of Bankruptcy Procedure 9024, which makes Federal Rule of Civil Procedure 60 applicable in bankruptcy proceedings, expressly limits the time to seek revocation of an order confirming a Chapter 11 plan to the time allowed by § 1144. Fed. R. Bankr.P. 9024. Section 1144 "Revocation of an order of confirmation" provides in pertinent part: On request of a party in interest at any time before 180 days after the date of the entry of the order of confirmation, and after notice and a hearing, the court may revoke such order if and only if such order was procured by fraud. 11 U.S.C. § 1144. Thus, a request to revoke a Chapter 11 plan may only be made within 180 days of the order confirming the plan, and then only if the order was procured by fraud. Notwithstanding the 180-day time limitation of § 1144 and Rule 9024, Movants argue that they are entitled to Rule 60(b)(4) relief on the basis that the Amended Plan is void for lack of Baron's consent which they contend deprived Baron's of due process. The Movants rely upon In re Rideout, 86 B.R. 523 (Bankr.N.D.Ohio 1988), to draw a distinction between "voiding" a plan pursuant to Rule 60(b)(4) and "revoking" a plan pursuant to 11 U.S.C. § 1144. Rule 60(b)(4) permits a Court to grant relief from a final judgment if the judgment is void. Fed.R.Civ.P. 60(b)(4). "Generally, a judgment is void under Rule 60(b)(4) `if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.'" Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir.2001) (citations omitted). The Movants assert that the Confirmation Order is void because Baron's did not consent to the Amended Plan and therefore, like the creditors in Rideout, Baron's was denied due process. However, the Movants' reliance on Rideout is misplaced. In Rideout, the court found that the confirmation order deprived a creditor of property rights without notice and an opportunity to be heard. Rideout, 86 B.R. at 530. The Rideout court also determined that the confirmation order was void because the 744 court did not have jurisdiction over the parties whose rights were adjudicated. Id. The Rideout, debtors had argued that in the absence of allegations of fraud there was no basis under § 1144 for the court to set aside the confirmation order. Id. at 529. The Rideout court rejected this argument and voided the order and reset the confirmation hearing pursuant to Rule 60(b)(4). By voiding the confirmation order, the Rideout court addressed both the rights of the unnoticed creditor and the concern that the debtor would not be able to successfully reorganize if the quarter million dollars of debt owed to the creditor was not discharged. Id. at 529-530. The Rideout court attached importance to the fact that the movant "brought the matter before the court promptly, thereby minimizing the creditors' reliance on the confirmed plan." Id. at 530. Bankruptcy Rule 9024 incorporates § 1144's 180-day time limit for a party to seek relief from an order confirming a Chapter 11 Plan. Unlike this case, the time limitation was not an issue in Rideout because the creditor sought relief promptly after entry of the confirmation order. Furthermore, unlike the creditor in Rideout, the Movants received notice of the Amended Plan, and thus they were not consequently denied due process. Moreover, removal of the Exculpation Clause did not adversely affect their rights. Under the facts of this matter, the distinction between "voiding" a plan and "revoking" a plan is a distinction without a difference. In re Logan Place Properties, Ltd., 327 B.R. 811, 813 n. 1 (Bankr. S.D.Tex.2005). Section 1144 provides a 180-day time limit for a party to seek revocation of a confirmed plan. This time limit may not be circumvented by invocation of Rule 60. Fed. R. Bankr.P. 9024 advisory committee's notes. See also In re BFP Investments, Inc., 150 Fed.Appx. 978, 979 (11th Cir.2005). The 180-day time limit is strictly enforced. In re Vencor, Inc., 284 B.R. 79, 83 (Bankr.D.Del.2002). See also In re Orange Tree Assoc., Ltd., 961 F.2d 1445, 1447 (9th Cir.1992) ("Congress has determined that a 180-day limitations period strikes the appropriate balance between the strong need for finality in reorganization plans and the interest in affording parties in interest a reasonable opportunity to discover and assert fraud. In recognition of the strength of the interest in finality of reorganization plans, courts have held uniformly that strict compliance with section 1144 is a prerequisite to relief."); In re California Litfunding, 360 B.R. 310, 317 (Bankr.C.D.Cal.2007) ("The expiration of the limitation period bars a motion to set aside confirmation of a plan of reorganization even if the fraud is not discovered until the period has passed.") The Court entered the Confirmation Order affirming the Amended Plan on November 16, 1998. The 180-day time limit expired nine years ago on May 15, 1999, at which time the Confirmation Order became irrevocable as a matter of law. Movants also attempt to circumvent the time limit of § 1144 by characterizing their request to void the plan as an independent action. This argument is also unavailing. See In re California Litfunding, 360 B.R. at 317-318 ("creditors may not attack confirmation orders by simply characterizing their attempt as an independent cause of action rather than a motion to revoke the order"). Having determined that after nine years the Confirmation Order is an irrevocable order, the Court reiterates that deletion of the Exculpation Clause from the Amended Plan did not adversely affect the Movants because it did hot harm, restrict or release any claims they may have had against the Attorneys. The Court concludes that the 745 relief sought to void the Amended Plan is time barred, and therefore unavailable as a matter of law. E. Different Fraud Upon the Court Allegations Lastly, the Movants allege that a fraud was perpetrated on the Court because it was represented to the Court that Baron's consented to the Amended Plan, when in fact it did not. Movants maintain that this fraud upon the Court is different than the fraud upon the Court allegations of the Attorneys' failure to disclose connections that were the subject of the three-day January 2007 trial. The Court does not reach the issues of res judicata and collateral estoppel raised by the Attorneys because even if true, the allegations do not evidence that a fraud has been perpetrated on the Court. The Court noted in its April 12, 2007 Order[6] that: "`[F]raud on the court' occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter." Fraud on the court is an "intentional deflecting of the Court from knowing all the facts necessary to make an appropriate judicial decision on the matter before it." Pearson v. First NH Mortgage Corp., 200 F.3d 30, 37 (1st Cir.1999). Inclusion of the Exculpation Clause in the Amended Plan would not have benefitted Baron's.[7] Thus, the Court finds that even if Baron's did not consent to deletion of the Exculpation Clause from the Amended Plan as alleged, the deletion did not set in motion an unconscionable scheme calculated to interfere with the Court's ability to impartially adjudicate the matter of confirmation of the Amended Plan. The only parties potentially harmed by removal of the Exculpation Clause were the Attorneys. Based upon the Court's finding that deletion of the Exculpation Clause benefitted Baron's, the allegations regarding deletion of the Exculpation Clause cannot, as a matter of law, serve as a basis to grant the relief sought herein. The Movants also quote, in part, the Court's Order to support their argument that the Attorneys' perpetrated a fraud upon the Court by allegedly fabricating evidence: "Generally speaking, only the most egregious conduct, such as ... the fabrication of evidence ... in which an attorney is implicated, will constitute fraud on the court." Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir.1978). In Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), the seminal case involving fabrication of evidence, the Supreme Court found that an attorney was a direct participant in a deliberate plan conceived for the purpose of defrauding the opposing party, the patent office, and the Court of Appeals. Securities & Exch. Comm'n v. ESM Group. Inc., 835 F.2d 270, 274 (11th Cir.1988). The Hazel-Atlas Glass offending attorney had fabricated an article extolling the virtues of a patented process, *746 and then relied on the article as authority in a patent infringement action. Id. Even if evidence of Baron's consent to the Amended Plan "was fabricated as alleged, the Movants have not demonstrated how they were harmed by deletion of the Exculpation Clause. If anything, the deletion of the Exculpation Clause removed protections that might otherwise have protected the Attorneys. The Court finds no manifest injustice or fraud upon the Court caused by deletion of the Exculpation Clause from the Amended Plan. CONCLUSION For the reasons stated above, the Court finds that it is unnecessary to conduct an evidentiary hearing because the ultimate relief sought by the Movants is unavailable as a matter of law. ORDER The Court, having considered the arguments of the parties, the submissions of the parties, the applicable law, and being otherwise fully advised in the premises, hereby ORDERS AND ADJUDGES that: 1. The underlying relief sought in the Motion is DENIED. 2. The underlying relief sought in the Pro Se Motion is DENIED. NOTES [1] In addition, a Notice of Joinder and Adoption of the Motion and Pro Se Motion was filed by five unsecured creditors (CP. # 605). [2] The Motion asks the Court to as it relates to the credibility of day trial conducted in January 2007. Movants seek by asking the Court to the Court set aside the Order. [3] By making this finding, the Court does not opine on the issue, raised in the State Malpractice Action, that the malpractice claim no longer exists under state law because Baron's no longer exists. [4] The 2007 Amendments to the Federal Rules of Civil Procedure became effective December 1, 2007. The Advisory Committee's Note states that "[t]he language of Rule 60 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only." Fed. R. Civ. P. 60 advisory committee's note. [5] Because the Court has not reconsidered its Order, the Court need not reach the issue raised by the Attorneys regarding the affect on the Court's jurisdiction of the Movants' appeal of the District Court's Order affirming the Order finding the Attorneys had not perpetrated a fraud upon the Court. [6] The Court refers the parties to its April 12, 2007 Order wherein the Court discussed at length the law of fraud upon the Court. See In re Baron's Stores, Inc., 2007 WL 1120296 (Bankr.S.D.Fla.2007). [7] The Court notes that the Attorneys filed a Notice of Intent to Rely Upon Document, i.e., a proposed Objection to the Plan by the United States Trustee. The Court has not considered this unauthenticated document in making its ruling. However, the Court does note that plans containing exculpation clauses are generally not confirmable by this Court.
286 S.W.2d 194 (1956) A. A. WEHMEYER, Appellant, v. Louis DOMINGUES, Appellee. No. 12906. Court of Civil Appeals of Texas, San Antonio. January 18, 1956. 195 L. W. Pollard, Kerrville, W. W. Palmer, San Antonio, for appellant. Robert I. Wilson, A. P. Allison, Kerrville, for appellee. W. O. MURRAY, Chief Justice. On or about July 10, 1954, appellee, Louis Domingues, was the holder of a promissory vendor's and deed of trust lien note, signed by A. A. Wehmeyer and wife, dated December 15, 1950, for the principal sum of $5,000, payable in quarterly installments of $150 each, including interest, providing for 10% attorney's fees if placed in the hands of an attorney for collection, and secured by liens on a parcel of land described as the southwest 25 feet of Lot 10, and the northeast 40 feet of Lot 11, in Block 5 of the A. L. Lewis 3rd Addition to the City of Kerrville, in Kerr County, Texas. On July 10, 1954, Joe Burkett, Jr., Esq., as substitute trustee, posted notices to sell the land, under the power of sale contained in the deed of trust, for the full amount of unpaid principal, interest and attorney's fees as provided for in the note. Copies of this notice were mailed on July 11, 1954, to appellant, A. A. Wehmeyer, Alamo Construction Company, which had assumed the payment of the note, and George Scruggs, president of such company. On July 31, 1954, A. A. Wehmeyer filed Cause No. 4118 against Louis Domingues and the substitute trustee, seeking a temporary injunction restraining the substitute trustee from selling the property because of an alleged oral agreement of extension of the time of payment of the note until July 15, 1954. This temporary injunction was granted. On August 16, 1954, Louis Domingues instituted Cause No. 4127 in the District Court of Kerr County, seeking judgment on the note for the full amount of principal and interest due, together with attorney's fees, and for foreclosure of the vendor's lien and deed of trust lien. The two causes were consolidated and tried together and this appeal is from the final judgment in the consolidated cases. The trial was to a jury but, upon motion, judgment was rendered for Louis Domingues, non obstante veredicto, for the full amount of principal, interest and attorney's fees provided for in said note and foreclosure of the vendor's and deed of trust lien upon the above described property. A. A. Wehmeyer has prosecuted this appeal. Appellant's first contention is that appellee, Louis Domingues, the holder of the note and beneficiary of the deed of trust, had failed to give appellant, A. A. Wehmeyer, the maker of the note and grantor in the deed of trust, or the Alamo Construction Company, which had assumed the payment of the note, any notice that he had exercised the option contained in the note to accelerate the maturity of the note, and that in the absence of such notice he was unauthorized to accelerate the maturity of the entire principal of the note. We overrule this contention. The record shows that on July 10, 1954, the substitute trustee had posted notices that the property would be sold under the power of sale contained in the deed of trust to satisfy the entire principal, interest and attorney's fees provided for in the note and that copies of this notice had been mailed not only to A. A. Wehmeyer, the original maker of the note, but also to the Alamo Construction Company, which had assumed the payment of the note, and George Scruggs, the president of such company. The suit to foreclose 196 was not filed by appellee until August 16, 1954. These copies of the notice of the sale were sufficient to put appellant on notice that appellee had accelerated the date of the maturity of the principal of the note and was demanding payment of the entire principal, interest and attorney's fees provided for in the note. Amuny v. Seaboard Bank & Trust Co., Tex.Com.App., 23 S.W.2d 287; Iden v. Lippard, Tex.Civ. App., 166 S.W.2d 185. Appellant next contends that the court erred in disregarding the findings of the jury and rendering judgment in appellee's favor because the jury found that appellee entered into an unconditional and unqualified agreement to extent the time of payment of the note until July 15, 1954. There is no evidence to sustain this jury finding. The oral agreement, if any, was negotiated between appellee and George Scruggs as agent for appellant. The testimony of Scruggs shows that the agreement was conditional. Scruggs plainly stated that if he did not settle his differences with appellant he would make the note current by July 15, 1954. The promise to pay was conditional and therefore not a valid extension agreement. 6 Tex.Jur. 826, § 186; G. M. & J. W. Magill v. Young, Tex.Civ. App., 153 S.W. 184; City Loan & Trust Co. v. Sterner, 57 Tex.Civ.App. 517, 124 S.W. 207. The alleged agreement was not that he would pay the note on July 15, 1954, but by that date, which is equivalent to an agreement to pay on or before. Such extension agreements are held to be without consideration and therefore null and void. Austin Real Estate & Abstract Co. v. Bahn, 87 Tex. 582, 30 S.W. 430; Universal Credit Co. v. Cole, Tex.Civ.App., 146 S.W.2d 222; Phoenix Furniture Co. v. McCracken, Tex.Civ.App., 3 S.W.2d 545. There is another reason why this alleged extension agreement is of no avail to appellant. According to the testimony offered by appellant the extension was granted upon the condition that the note be made current by July 15, 1954, which was admittedly not done. Appellant, having admittedly violated the agreement, is not now in any position to claim the benefits of such agreements. Appellant attempts to justify his breach by saying that appellee breached the agreement first, by posting notices of sale on July 10, 1954. If this be true, it might justify appellant in disregarding the agreement, but if he expects to insist upon performance of the contract he must not breach it himself. He must perform his obligations under the agreement before he can insist upon performance by appellee. 10 Tex.Jur., Sec. 262, p. 451; Wellington Railroad Committee v. Crawford, Tex. Com.App., 216 S.W. 151. Appellant on July 31, 1954, tendered to appellee the sum of $4,457.02. This amount admittedly did not cover the attorney's fees contended for by appellee. The evidence shows that, prior to the negotiations for an extension of time of payment, on July 8, 1954, certain installments on the note were past due and unpaid, and appellee had already placed the note in the hands of his attorney for collection and so informed Scruggs at the time. The exact provision in the note as to attorney's fees is as follows: "In the event of default and this note is placed in the hands of an attorney for collection, * * * then we promise to pay Ten (10) percent of the amount of the principal and interest then due thereon as attorney's fees." Thus, all that is required for attorney's fees to become due is that default be made and the note thereafter placed in the hands of an attorney for collection. It appears that, even before the negotiations for an extension of time of payment had begun, the attorney's fees had already become due and payable, therefore the tender made on July 31, 1954, was insufficient to pay the amount of principal, interest and attorney's fees due at that time on the note. There is a further contention that the amount tendered lacked $58 of being sufficient to cover the amount of principal and interest due, but as appellant may have been unintentionally misled by appellee as to the exact amount of principal and interest *197 due we do not regard this shortage of $58 in the tender as significant, but base our holding that the tender was insufficient upon the failure of appellant to tender a sum sufficient to cover attorney's fees then due on the note. It is apparent that appellant intentionally did not tender any sum to cover attorney's fees. Accordingly, the judgment of the trial court is affirmed.
IN THE TENTH COURT OF APPEALS No. 10-06-00128-CV One Ford Mustang, VIN 1FAFP40471F207859, Appellant v. The State of Texas, Appellee From the 13th District Court Navarro County, Texas Trial Court No. 05-00-14653-CV Opinion Shannon Raye brings this appeal from an order forfeiting a Ford Mustang which was used in the commission of a narcotics crime. Raye contends in two issues that the judgment is erroneous because she established as a matter of law that: (1) she is the owner of the Mustang and did not know and should not reasonably have known of the acts giving rise to the forfeiture; and (2) the person arrested in the Mustang breached his contract with Raye for its purchase. We will reverse and render. Background Raye purchased the Mustang which is the subject of this proceeding in May 2004. She signed a “contract of sale” with Chris Harris for the Mustang in March 2005.[1] According to the terms of the contract, Harris agreed to pay $7,500 for the car. He made a down payment of $1,000 and agreed to make twenty-one monthly payments of $300 and one payment of $200 for the remaining $6,500 owed. For her part, Raye agreed to maintain insurance on the car “for [the] duration of [the] contract.”[2] An Arlington police officer arrested Harris in July 2005 for possession of twenty-eight grams of methamphetamine. Harris was driving the Mustang at the time of his arrest. A Navarro County sheriff’s deputy arrested Harris in October 2005 for possession with intent to deliver forty-two grams of methamphetamine. Harris was driving the Mustang on this occasion as well, and it was seized for forfeiture. The State served Raye with notice of the forfeiture proceeding because she is the registered owner of the Mustang. Raye filed a general denial, asserted the innocent-owner defense, and asserted a cross-claim against Harris for breach of their contract. Harris failed to appear at the forfeiture hearing. The State called three witnesses: the Arlington police officer and two Navarro County sheriff’s deputies. The police officer described Harris’s Arlington arrest and testified on cross-examination that he had no knowledge that Raye was involved in any way with Harris’s narcotics offense or had any knowledge of the offense. Deputy Clint Andrews testified to the circumstances of Harris’s Navarro County arrest. Deputy Andrews stated on cross-examination that he did not know Raye, that he was not aware of any involvement on her part in narcotics trafficking, that he had no evidence to suggest that she was involved in Harris’s crime, and that there is nothing to suggest that she had knowledge that Harris was selling narcotics. Deputy Stan Farmer also participated in Harris’s arrest and the ensuing investigation. Deputy Farmer testified that Raye was the registered owner of the Mustang. He had learned of Raye’s boyfriend Jared Coker through “narcotics information.” To Farmer’s knowledge, Coker had never been arrested for a narcotics crime. He had no information to indicate that Raye had ever been involved in narcotics trafficking or that she would have knowledge of any narcotics trafficking. Raye testified that Coker negotiated the transaction with Harris for the sale of her car. Coker and she had lived together for about ten years. In describing Coker’s relationship with Harris, she characterized them as “acquaintances” rather than “good friends.” She personally had seen Harris on only a few occasions. She understood the agreement with Harris to mean that she would maintain title to the car until he paid the purchase price in full. She thought Coker may have experimented with marihuana when he was younger but denied that he had “a methamphetamine problem” as far as she was aware. She did not know that Harris was involved in narcotics trafficking until a few days after his Navarro County arrest. Harris still owes her $4,500 under their contract. Forfeiture Statutes Chapter 59 of the Code of Criminal Procedure authorizes the forfeiture of “contraband,” which is defined as property used in the commission of various enumerated felonies and misdemeanors including any felony under Chapter 481 of the Health and Safety Code, commonly known as the Texas Controlled Substances Act.[3] See Tex. Code Crim. Proc. Ann. arts. 59.01(2)(B)(i), 59.02(a) (Vernon 2006). Article 59.02(c) provides an innocent-owner defense to forfeiture which requires a person whose property has been seized for forfeiture to establish: (1) she acquired or perfected her ownership interest before or during the act or omission giving rise to forfeiture; and (2) she did not know and should not reasonably have known of that act or omission or that it was likely to occur at or before acquiring the ownership interest.[4] Id. art. 59.02(c)(1) (Vernon 2006); $18,800 v. State, 961 S.W.2d 257, 260 (Tex. App.—Houston [1st Dist.] 1997, no writ); Bochas v. State, 951 S.W.2d 64, 71 (Tex. App.—Corpus Christi 1997, writ denied). Standard of Review A forfeiture proceeding under Chapter 59 is a civil in rem proceeding governed by the procedural rules applicable to civil trials and appeals generally. See State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex. 2004) (per curiam); Hardy v. State, 50 S.W.3d 689, 692 (Tex. App.—Waco 2001), aff’d, 102 S.W.3d 123 (Tex. 2003); see also Tex. Code Crim. Proc. Ann. art. 59.05(a), (b) (Vernon 2006). Thus, the appropriate standard of review on appeal depends on which party had the burden of proof at trial. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001); Lifshutz v. Lifshutz, 199 S.W.3d 9, 17-18 (Tex. App.—San Antonio 2006, pet. denied); Hardy, 50 S.W.3d at 692; Beard v. Beard, 49 S.W.3d 40, 54-55 (Tex. App.—Waco 2001, pet. denied). The burden is on the owner to establish the innocent-owner defense by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 59.02(c); $18,800, 961 S.W.2d at 260; Bochas, 951 S.W.2d at 71. When the appellant asserts that there is no evidence to support an adverse finding on which she had the burden of proof, the standard of review has been traditionally stated thusly: we construe the issue as an assertion that the contrary was established as a matter of law. We first search the record for evidence favorable to the finding, disregarding all contrary evidence. If we find no evidence supporting the finding, we then determine whether the contrary was established as a matter of law. Beard, 49 S.W.3d at 54-55 (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989) (other citations omitted); accord Dow Chem., 46 S.W.3d at 241; Lifshutz, 199 S.W.3d at 17-18; Hardy, 50 S.W.3d at 695; $18,800, 961 S.W.2d at 261. However, the appropriate enunciation of this standard must be reconsidered in light of the Supreme Court’s recent decision in City of Keller v. Wilson. 168 S.W.3d 802 (Tex. 2005). The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Whether a reviewing court begins by considering all the evidence or only the evidence supporting the verdict, legal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. at 827. Thus, consistent with City of Keller, a correct restatement of the appropriate standard of review is as follows: When an appellant asserts that there is no evidence to support an adverse finding on which she had the burden of proof, we construe the issue as an assertion that the contrary was established as a matter of law. We first search the record for evidence favorable to the finding, disregarding all contrary evidence unless a reasonable factfinder could not. If we find no evidence supporting the finding, we then determine whether the contrary was established as a matter of law. See Dallas County Constable v. Garden City Boxing Club, Inc., 219 S.W.3d 613, 616 (Tex. App.—Dallas 2007, no pet.); Sellers v. Foster, 199 S.W.3d 385, 392 (Tex. App.—Fort Worth 2006, no pet.). Ownership Raye contends as part of her first issue that she established as a matter of law that she is the owner of the Mustang. The facts pertinent to Raye’s interest in the Mustang are not in dispute. Rather, the parties’ dispute centers on the legal conclusions to be drawn from those facts. The court made the following findings of fact and conclusions of law regarding Raye’s interest in the Mustang: 1. The evidence seems clear that the record title owner of the vehicle intended to sell and did sell the subject vehicle to the person from whom it was seized in connection with a narcotics case. 2. The evidence also discloses that the seller and buyer did not comply with the certificate of title act. The buyer made payments on the vehicle and seller apparently intended to retain a lien, but no lien was perfected as required by law. 3. While a certificate of title is presumptive evidence of ownership, it may be rebutted by competent evidence. The evidence in this case clearly discloses a sale from the record owner to the person from whom it was seized. 4. A lien upon a motor vehicle may be perfected only by compliance with the certificate of title act. Based upon the foregoing, the Court finds that the vehicle was sold to Harris and that the seller, Ms. Raye failed to perfect her lien. The vehicle is forfeited and Ms. Raye is free to pursue her legal remedy, futile though it may be. Thus, the court found that Raye did not own the Mustang but was a lienholder who had failed to perfect her lien. Accordingly, the court rendered judgment ordering the forfeiture of the Mustang. See Tex. Code Crim. Proc. Ann. arts. 59.01(4), 59.02(c) (Vernon 2006) (a lienholder’s interest is not protected from forfeiture unless it is perfected); State v. Southwind Auto Sales, 951 S.W.2d 849, 852 (Tex. App.—San Antonio 1997, no pet.) (same). In denying Raye’s motion for new trial, the court also referred to the following language in the parties’ contract: “Seller . . . hereby sells and agrees to convey unto . . . Purchaser” [the car]. This according to the court provided further support for its conclusion that Raye transferred ownership of the car to Harris when she delivered it to him. For purposes of Chapter 59, an “owner” is defined as “a person who claims an equitable or legal ownership interest in property.” Tex. Code Crim. Proc. Ann. art. 59.01(6) (Vernon 2006). Under this statutory definition, there may be more than one “owner” for an article of property. See Arnold v. State, 793 S.W.2d 305, 308 (Tex. App.—Austin 1990, no writ). The parties’ dispute brings to light a conflict between the provisions of the Certificate of Title Act (“the Title Act”) and the Uniform Commercial Code (“the UCC”) regarding the transfer of title and ownership in a motor vehicle sale. This conflict has been discussed by several of our sister courts. See, e.g., Vibbert v. PAR, Inc., 224 S.W.3d 317, 321-24 (Tex. App.—El Paso 2006, no pet.); First Nat’l Bank of El Campo v. Buss, 143 S.W.3d 915, 919-24 (Tex. App.—Corpus Christi 2004, pet. denied); Arcadia Fin., Ltd. v. Southwest-Tex Leasing Co., 78 S.W.3d 619, 623-24 (Tex. App.—Austin 2002, pet. denied); see also Tyler Car & Truck Ctr. v. Empire Fire & Marine Ins. Co., 2 S.W.3d 482, 485 (Tex. App.—Tyler 1999, pet. denied). We begin with the Title Act. Section 501.002(16) of the Title Act defines an “owner” as “a person, other than a manufacturer, importer, distributor, or dealer, claiming title to or having a right to operate under a lien a motor vehicle that has been subject to a first sale.”[5] Tex. Transp. Code Ann. § 501.002(16) (Vernon 2007). Under the Title Act, a motor vehicle may not be sold “unless the owner designated in the certificate of title transfers the certificate of title at the time of the sale.” Id. § 501.071(a) (Vernon 2007). A purported sale which does not comply with this requirement “is void and title may not pass until the requirements of this chapter are satisfied.” Id. § 501.073 (Vernon 2007). Thus, it is the general rule that ownership of a vehicle rests in the person(s) named in the certificate of title. However, “[t]he name on the certificate of title is not conclusive of ownership.” Vibbert, 224 S.W.3d at 321; accord Tyler Car & Truck Ctr., 2 S.W.3d at 485. And notwithstanding section 501.073, the sale of a vehicle may still be valid as between the buyer and seller even if they do not comply with the Title Act. Phil Phillips Ford, Inc. v. St. Paul Fire & Marine Ins. Co., 465 S.W.2d 933, 937 (Tex. 1971); First Nat’l Bank of El Campo, 143 S.W.3d at 919; Tyler Car & Truck Ctr., 2 S.W.3d at 485. Evidence that a party is the registered owner of a vehicle raises a presumption of ownership which is not “evidence” and which “vanishes when positive evidence to the contrary is introduced.” Vibbert, 224 S.W.3d at 321; Tyler Car & Truck Ctr., 2 S.W.3d at 485; see also Sudduth v. Commonwealth County Mut. Ins. Co., 454 S.W.2d 196, 198 (Tex. 1970) (“A true presumption is simply a rule of law requiring the jury to reach a particular conclusion in the absence of evidence to the contrary. The presumption does disappear, therefore, when evidence to the contrary is introduced, but the facts upon which the presumption is based remain in evidence and will support any inferences that may properly be drawn therefrom.”); accord Little v. Tex. Dep’t of Criminal Justice, 177 S.W.3d 624, 631-32 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Jean v. Tyson-Jean, 118 S.W.3d 1, 6-7 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). By contrast, the UCC governs the sale of “goods” generally, which are defined therein as “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Chapter 8) and things in action.” Tex. Bus. & Com. Code Ann. § 2.105(a) (Vernon 1994). Motor vehicles necessarily fit within this definition. Assocs. Discount Corp. v. Rattan Chevrolet, Inc., 462 S.W.2d 546, 549 (Tex. 1970); Vibbert, 224 S.W.3d at 322; First Nat’l Bank of El Campo, 143 S.W.3d at 920. Section 2.106(a) of the UCC provides: In this chapter unless the context otherwise requires “contract” and “agreement” are limited to those relating to the present or future sale of goods. “Contract for sale” includes both a present sale of goods and a contract to sell goods at a future time. A “sale” consists in the passing of title from the seller to the buyer for a price (Section 2.401). A ”present sale” means a sale which is accomplished by the making of the contract. Tex. Bus. & Com. Code Ann. § 2.106(a) (Vernon 1994). Section 2.401 provides in pertinent part: (a) Title to goods cannot pass under a contract for sale prior to their identification to the contract (Section 2.501), and unless otherwise explicitly agreed the buyer acquires by their identification a special property as limited by this title. Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest. Subject to these provisions and to the provisions of the chapter on Secured Transactions (Chapter 9), title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties. (b) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading (1) if the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but (2) if the contract requires delivery at destination, title passes on tender there. Id. § 2.401(a), (b) (Vernon 1994). Finally, returning to the Title Act, section 501.005 provides, “Chapters 1-9, Business & Commerce Code, control over a conflicting provision of this chapter.” Tex. Transp. Code Ann. § 501.005 (Vernon 2007).[6] In determining the respective rights of parties to vehicle transactions in which the parties did not comply with the terms of the Title Act, courts have uniformly held that the terms of the UCC control over the terms of the Title Act under section 501.005. See Vibbert, 224 S.W.3d at 324; First Nat’l Bank of El Campo, 143 S.W.3d at 923-24; Hudson Buick, Pontiac, GMC Truck Co. v. Gooch, 7 S.W.3d 191, 198 (Tex. App.—Tyler 1999, pet. denied); but see Arcadia Fin., 78 S.W.3d at 624 (construing transaction in manner which rendered the issue of a conflict between the statutes moot). We believe the approach taken in Arcadia Financial dictates the outcome in this case. Under section 2.401(b), title passes at the time a seller delivers goods to a buyer “[u]nless otherwise explicitly agreed.” Tex. Bus. & Com. Code Ann. § 2.401(b). Here, Raye testified that the parties agreed that title would not pass until Harris had made payment in full. See Arcadia Fin., 78 S.W.3d at 624 (“Under the agreement between Lone Star and Advantage, no sale was completed until Advantage was paid in full. Thus, under the parties’ agreement, Lone Star had not yet acquired ownership of the vehicles because it had not yet paid Advantage for them.”). Evidence that Harris had possession of the Ford Mustang at the time of his arrest, that he had negotiated an agreement to purchase it from Raye, and that he maintained liability insurance for it constitutes some evidence that Harris has an ownership interest in the Mustang. However, it is no evidence that Raye does not also have “an equitable or legal ownership interest” in the Mustang. See Tex. Code Crim. Proc. Ann. art. 59.01(6); see also Arnold, 793 S.W.2d at 308 (“logic compels the conclusion that the term ‘owner’ cannot be construed to require sole ownership.”). We also examine the court’s reliance on the peculiar language of the parties’ contract which states in pertinent part, “Seller . . . hereby sells and agrees to convey unto . . . Purchaser” [the car]. As we have already observed, Raye and Harris used a form real estate sales contract which they modified to suit their purposes. Texas courts have for decades construed virtually identical contract language as evidencing an intent to make a future conveyance of real property rather than a present conveyance. See, e.g., U.S. Enters., Inc. v. Dauley, 535 S.W.2d 623, 624-25 (Tex. 1976) (identifying contract with identical language as “written purchase contract”); Bowles v. Fickas, 140 Tex. 312, 167 S.W.2d 741, 742 (Tex. 1943) (“contract of sale”); Scott v. Vandor, 671 S.W.2d 79, 82 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.) (“option contract” for sale of real property); Ramsey v. Gordon, 567 S.W.2d 868, 868-69 (Tex. Civ. App.—Waco 1978, writ ref’d n.r.e.) (contract to sell real property); Noblitt v. Barker, 97 S.W.2d 1010, 1010-11, 1014 (Tex. Civ. App.—San Antonio 1936, writ ref’d) (contract of sale). At least one current Texas form book continues to endorse this language as appropriate for a real estate sales contract. See 1 Frank A. St. Claire, Texas Real Estate Guide § 3.200[2] (Matthew Bender & Co. 2007) (“Seller sells and agrees to convey, and Buyer purchases and agrees to pay for, the tract of land”); but cf. 1 James W. Adams, Jr., Texas Forms § 1:84, at 246-47 (West 2000) (“Seller agrees to sell and convey to Purchaser and Purchaser agrees to purchase from Seller the following:”); 1 Real Estate Forms Comm., State Bar of Tex., Texas Real Estate Forms Manual Form 8-1, at 8-21 (July 2006) (“Seller agrees to sell and convey the Property to Buyer, and Buyer agrees to buy and pay Seller for the Property.”). The language endorsed by the State Bar’s Real Estate Forms Committee is certainly more clear on the issue of whether the seller is making a present conveyance or agreeing to a future conveyance. However, we cannot disregard decades of uniform interpretation merely because a form has been updated. Therefore, we hold as a matter of law that the contract language at issue evidences an intent and agreement to make a future sale of the Mustang rather than a present sale. Cf. Tex. Bus. & Com. Code Ann. § 2.106(a) (“’Contract for sale’ includes both a present sale of goods and a contract to sell goods at a future time.”). Thus, this contract language is no evidence that Raye does not have “an equitable or legal ownership interest” in the Mustang. Having found that there is no evidence in the record to support the court’s finding that Raye does not have “an equitable or legal ownership interest” in the Mustang, we now determine whether Raye established as a matter of law that she does have such an interest. See Dow Chem., 46 S.W.3d at 241; Dallas County Constable, 219 S.W.3d at 616; Sellers, 199 S.W.3d at 392; Lifshutz, 199 S.W.3d at 17-18; Hardy, 50 S.W.3d at 695; $18,800, 961 S.W.2d at 261. The State’s witnesses and Raye all testified that she is the registered owner of the Mustang. Raye testified that Harris and she agreed that title for the car would not be delivered until he had paid in full. This evidence establishes as a matter of law that Raye held legal title to the Mustang at the time it was seized. See Arcadia Fin., 78 S.W.3d at 624; Southwind Auto Sales, 951 S.W.2d at 852-53; see also Cadle Co. v. Harvey, 46 S.W.3d 282, 286 (Tex. App.—Fort Worth 2001, pet. denied) (real estate sales contracts typically “provide that upon making a down payment, the buyer is entitled to immediate possession of the property, with the remaining purchase price paid in installments over a period of time. Legal title, however, remains in the seller until the purchase price is paid in full.”) (emphasis added).[7] Knowledge of Narcotics Trafficking Raye also contends as part of her first issue that she established as a matter of law that she did not know and should not reasonably have known that Harris was involved in narcotics trafficking. The only affirmative evidence in the record on this subject is the virtually unanimous testimony of all witnesses that Raye did not know that Harris was involved in narcotics trafficking. Presumably because the court found that Raye was not an “owner” of the Mustang, the court did not make an express finding on the issue of Raye’s knowledge. Nevertheless, the court did state during the hearing on Raye’s request for additional findings of fact and conclusions of law, “I don’t think there was any evidence to support she was actually involved in any contraband trafficking or anything like that.” The State suggests that, despite the virtually unanimous testimony of all the witnesses on this subject, the trial court was free to disbelieve this testimony and conclude that Raye did know or reasonably should have known of Harris’s involvement in narcotics trafficking. The State is correct that credibility determinations are left to the jury (or the court in a bench trial) which “may choose to believe one witness and disbelieve another.” City of Keller, 168 S.W.3d at 819. “Jurors may disregard even uncontradicted and unimpeached testimony from disinterested witnesses.” Id. at 820. However, “’[t]he jury’s decisions regarding credibility must be reasonable.’ Jurors cannot ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted.” Id. (quoting Bentley v. Bunton, 94 S.W.3d 561, 599 (Tex. 2002)). Here, the testimony of all the witnesses was “undisputed . . . clear, positive, [and] direct” on the issue of whether Raye knew or reasonably should have known of Harris’s involvement in narcotics trafficking. See id. Thus, the trial court was not free to disbelieve this testimony. Id. We are well aware of the established principle that this Court may not interfere with the credibility determinations of a trial court. See id. at 819 (“Reviewing courts cannot impose their own opinions [on credibility] to the contrary.”). However, in view of the court’s “oral finding” and the undisputed testimony on the issue of Raye’s lack of knowledge, it would not be “reasonable” for us to conclude that the trial court chose to disbelieve this evidence. See id. at 820; but cf. In re Doe 10, 78 S.W.3d 338, 340 n.2 (Tex. 2002) (“Oral comments from the bench are not written findings of fact.”); In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984) (per curiam) (appellate court may not consider trial judge’s oral comments as substitute for written findings); In re E.A.S., 123 S.W.3d 565, 569 (Tex. App.—El Paso 2003, pet. denied) (“Oral statements by the judge on the record will not be accepted as findings of fact.”). Therefore, we hold that Raye established as a matter of law that she did not know and should not reasonably have known that Harris was involved in narcotics trafficking. Accordingly, we sustain her first issue. Breach of Contract Raye contends in her second issue that she established as a matter of law her cross-claim that Harris breached their contract and that she is entitled to a money judgment for the amount he still owes on the contract. The contract provides that Raye may have as possible remedies for a breach either: (1) the right to retain the monies paid “as liquidated damages for the breach of this contract” or (2) the right to “enforce specific performance of this contract.” The court stated in its written findings of fact and conclusions of law, “[T]he Court finds that the vehicle was sold to Harris and that the seller, Ms. Raye failed to perfect her lien. The vehicle is forfeited and Ms. Raye is free to pursue her legal remedy, futile though it may be.” It appears from this that the court concluded Raye would have to file a separate suit to enforce her contractual rights. However, we have already rejected the trial court’s interpretation of the contract. Rather, the evidence establishes as a matter of law that Raye and Harris had a contract for the future sale of the Mustang conditioned on Harris making payment in full. The evidence is undisputed that Harris failed to make payment in full and still owes $4,500 on the contract. Thus, Raye established as a matter of law that Harris breached their contract. See Runge v. Raytheon E-Sys., Inc., 57 S.W.3d 562, 565 (Tex. App.—Waco 2001, no pet.) (listing elements for breach of contract). However, Raye seeks a remedy not provided by the contract (namely, Harris’s payment of the remaining amount owed while Raye retains possession of the car). Rather, the contract provides that, in the event of a breach by Harris, Raye can (1) retain ownership of the car and retain the monies paid “as liquidated damages for the breach of this contract” or (2) “enforce specific performance of this contract.” The remedy of “specific performance” would require Raye to transfer ownership of the car to Harris in exchange for payment of the remaining $4,500 owed. See Brantley v. Etter, 662 S.W.2d 752, 757 (Tex. App.—San Antonio 1983), writ ref’d n.r.e., 677 S.W.2d 503 (Tex. 1984) (per curiam). Because Raye seeks a remedy not authorized by the contract, we overrule her second issue. Conclusion We reverse the judgment and render judgment in favor of Raye for possession of the Ford Mustang. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissenting) Reversed and rendered Opinion delivered and filed July 18, 2007 [CV06] [1] The parties’ contract is actually a form real estate sales contract which was modified to constitute a contract for the sale of an automobile. In the margin of the contract is a pre-printed notation identifying the document as a “Contract of Sale and Receipt of Earnest Money (with Title Advice).” [2] However, Deputy Stan Farmer testified that Harris carried the insurance for the Mustang, and a liability insurance card was admitted in evidence indicating that Harris did have coverage on the car. Raye likewise testified that Harris maintained liability insurance for the car. [3] Harris was arrested in Arlington for a violation of section 481.115 of the Heath and Safety Code (possession of controlled substance listed in Penalty Group 1) and in Navarro County for a violation of section 481.112 of that code (possession with intent to deliver a controlled substance listed in Penalty Group 1). See Tex. Health & Safety Code Ann. §§ 481.112, 481.115 (Vernon 2003). [4] Article 59.02 also provides an innocent-owner defense for a person who acquires ownership after the act or omission giving rise to the forfeiture but before the seizure of the property. See Tex. Code Crim. Proc. Ann. art. 59.02(c)(2) (Vernon 2006). [5] By comparison, section 502.001(16) of the Title Act defines an “owner” as “a person who: (A) holds the legal title of a vehicle; (B) has the legal right of possession of a vehicle; or (C) has the legal right of control of a vehicle.” Tex. Transp. Code Ann. § 502.001(16) (Vernon 2007). [6] The Legislature enacted the statutory predecessor to section 501.005 in 1971 in response to a 1970 Supreme Court holding that the terms of the Title Act controlled over the terms of the UCC. See Hudson Buick, Pontiac, GMC Truck Co. v. Gooch, 7 S.W.3d 191, 198 (Tex. App.—Tyler 1999, pet. denied). [7] We cite Cadle Co. v. Harvey because, as stated above, Raye’s contract with Harris was a real estate sales contract which had been converted to a contract for the sale of the Mustang.
990 A.2d 51 (2009) COM. v. PONZO. No. 1137 EDA 2009. Superior Court of Pennsylvania. December 16, 2009. Quashed.
FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-2111 _____________________________ MATERNAL GRANDMOTHER, D.H. n/k/a D.S. and THE ADOPTION ENTITY, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. _____________________________ On appeal from the Circuit Court for Bay County. Ana Garcia, Judge. March 5, 2019 PER CURIAM. AFFIRMED. ROBERTS, WETHERELL, and MAKAR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jennifer M. Erlinger of Wood, Atter & Wolf, P.A., Jacksonville, for Appellants. Sara Rumph of Children's Legal Services, Tallahassee; Thomasina F. Moore, Statewide Director of Appeals, and Sara Goldfarb, Appellate Counsel, Guardian ad Litem Program, Tallahassee, for Appellee. 2
5 Ill. App.3d 1100 (1972) 284 N.E.2d 436 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL LATSON, JR. et al., Defendants-Appellants. No. 56161. Illinois Appellate Court First District. May 17, 1972. 1101 Francis E. Andrew, of Chicago, for appellants. 1102 Edward V. Hanrahan, State's Attorney, of Chicago, (Robert A. Novelle and Daniel J. Pierce, Assistant State's Attorneys, of counsel,) for the People. Judgment affirmed. Mr. PRESIDING JUSTICE DIERINGER delivered the opinion of the court: This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendants, Samuel Latson, Jr., and Terrance Watson, were charged with violating Section 24-1 (a) (4) of Chapter 38 of the Illinois Revised Statutes, in that they knowingly carried a concealed weapon in a vehicle. At a bench trial the defendants were found guilty and sentenced to two years' probation, the first thirty days to be served in jail. On appeal, the defendants contend the State failed to prove either knowledge or concealment; that the court should not give any weight to the statement made by Watson implying he knew of the gun; that the court improperly limited the use of a police report to impeach a State's witness; and that the sentence was unduly harsh. Officers Brady and Ginani stopped the defendants' car because of a broken taillight at about 1:30 A.M. on September 9, 1969, at 2201 West Warren Boulevard, Chicago, Illinois. They approached the car, one on each side, and both testified they saw an open box of shotgun shells on the seat. At the hearing on the motion to suppress, Officer Brady testified he arrested the defendants after seeing the shells on the seat and receiving no response to his request for a State Firearms Owner's Card. He testified he placed the defendants under arrest, informed them of their rights, and asked them to step out of the car. After the driver of the car, Terrance Watson, stepped out, Officer Brady stated he saw a shotgun laying on the floor of the seat with the barrel pointing toward the passenger and the trigger and stock laying on the hump on the driver's side. The top half of the weapon was visible. After recovering the shotgun the defendants were taken to the police station and read their rights again. Officer Brady testified that at the station Watson said, "If there weren't so many squad cars around, I would have come out shooting." Watson stated there were about six squad cars at the scene at the time of the arrest. Officer Brady testified he didn't remember seeing any other squad cars parked nearby although several passed by. The testimony at trial established the car had been borrowed by the defendants about two and one-half hours prior to their arrest, and the ownership of the weapon was not proven. At the time of the arrest the 1103 officers could see because of the street lights, although there were no interior lights in the car. The defendants testified they discovered the shotgun shells in the box on the floor of the front seat of the car after they started on their errand, but did not see the shotgun until Officer Brady took it out of the car. 1, 2 The defendants claim that since they were arrested in a borrowed car, were not proved to either have owned or touched the gun, and denied knowing the gun was there, the evidence is wholly circumstantial and insufficient to show that either defendant knowingly carried the weapon. This claim ignores the testimony of the arresting officers, who stated the top half of the gun was visible from outside the car when the driver exited. If this testimony is believed, the defendants also must have been aware of the presence of the gun in the car, and at a bench trial it is the function of the trial court to determine the credibility of witnesses. People v. Hyman (1962), 24 Ill.2d 205. The defendants contend that because the weapon was visible from outside the car by the police officer, it cannot be considered a concealed weapon within the meaning of the statute. This cannot be maintained. In People v. Euctice (1939), 371 Ill. 159, the court stated: "People v. Niemoth, 322 Ill. 51, is not controlling here. In that case we said, among other things, that there must be proof that a firearm is carried in such a manner as to give no notice of its presence. However, in that case the defendant was in the front seat of the car and the gun was on the floor of the rear seat. The decision there was based on the fact that the gun was not in such proximity to the accused as to be within easy reach and under his control. The statute does not mean that the firearm shall be carried in such manner as to give absolutely no notice of its presence. It merely requires that the firearm shall be concealed from ordinary observation." 3, 4 In this case the gun was both within easy reach under the control of both defendants and was concealed from ordinary observation as it was not seen until Watson exited from the car. Ownership of a weapon need not be proven in a concealed weapons prosecution. People v. McKnight (1968), 39 Ill.2d 577. 5 The defendants also contend there were many material inconsistencies and contradictions in the State's testimony and the evidence is so unreasonable as to raise a reasonable doubt. They claim a police report contradicts the testimony of the officers that the box of shells was found on the seat of the car. The report made shortly after the arrest stated in part: "As case report states a shotgun and box of shells were found on front floor of car." The supplemental report states: "When the 1104 arresting officers approached the vehicle they were able to see that the arrestees had a box of shotgun shells on the seat of the car." The original report is a short, general explanation of what occurred. That it was not explicit in the placement of both the shotgun and box of shells is not of great importance. The supplemental report, a more detailed description of the arrest, cures the ambiguity contained in the first report. 6 The defendants speculate that it was impossible for the officers to have seen two shotgun shells balanced on the flap of the overturned box, as was their testimony, because of the slant of the seat. Other than mere assertion of such impossibility they offered no proof. 7 The defendants next contend the admission of Watson at the police station testified to by Officer Brady deserves no weight because it was made, if at all, without a fair opportunity for explanation, was omitted from all police reports, is uncorroborated, and contradicts the State's testimony that no other squad cars were parked in the area at the time of the arrest. They assert this point is important because it is the only evidence which implies they had knowledge of the weapon in the car. However, once again they ignore the testimony of the police officers that because of the placement of the weapon, the defendants had to be aware of its presence. The alleged statement of the defendant is not an essential element of the prosecution's case. The third point argued by the defendants is that the court erroneously limited cross-examination of Officer Brady with regard to the contents of the supplementary report, which indicated the defendants denied owning the shotgun. Officer Brady testified he had read the report and he believed it was an accurate statement of what happened, but then said he was not present when the defendants made any denials. The defense suggests this is a discrepancy and that since he adopted the report, it was error for the court to preclude them from impeaching him with it. 8 The testimony shows that Officer Brady neither prepared the report himself nor talked to the one who did. He stated he was not present when the defendants made the denials but never excluded the possibility they were made to any other officer. The ruling of the court was correct. 9, 10 Finally, the defendants suggest the sentence was too severe. The penalty for a violation of Section 24-1 (a) (4) is $500.00 or imprisonment in a penal institution other than a penitentiary for not more than one year, or both. The power to reduce the punishment imposed by the trial court should be exercised with caution, and this court will not reduce a sentence unless it clearly appears the punishment is a departure from fundamental law, its spirit and purpose, or that the penalty is not proportioned *1105 to the nature of the offense. (People v. Taylor (1965), 33 Ill.2d 417; People v. Ramey (1969), 115 Ill. App.2d 431.) The sentence rendered in this case is well within the statutory limitation and does not violate the standards set forth above. For these reasons the judgment of the Circuit Court of Cook County is affirmed. Judgment affirmed. BURMAN and ADESKO, JJ., concur.
1 F.2d 769 (1924) MASSACHUSETTS TRUST CO. v. MacPHERSON. No. 1676. Circuit Court of Appeals, First Circuit. February 26, 1924. On Rehearing November 5, 1924. Michael J. Mulkern, of Boston, Mass. (Ralph H. Willard and Ham, Willard & Taylor, all of Boston, Mass., on the brief), for appellant. Joseph B. Jacobs, of Boston, Mass. (Jacobs & Jacobs, of Boston, Mass., on the brief), for appellee. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. BINGHAM, Circuit Judge. The appellee is trustee in bankruptcy of the Chandler Motors of New England, Inc., against whom an involuntary petition in bankruptcy was filed on the 19th of October, 1922, and upon which it was later adjudicated a bankrupt. In his suit to recover an unlawful preference relating to a transfer on the 19th of September, 1922, of certain automobiles to the defendant (the Massachusetts Trust Company), there was a decree against the defendant for the sum of $16,024 and interest to the date of the decree, amounting to $568.85. The Chandler Company was a dealer in Chandler automobiles, with its principal place of business in Boston. Its business in the handling of these cars was financed by the Trust Company in the following manner: The manufacturer of the cars shipped them to the Chandler Company at Boston. A bill of lading, with a draft attached drawn on the Chandler Company, was sent to the Trust Company. The Trust Company then notified the Chandler Company, who brought to it a check for the amount of the draft. The Trust Company on receiving the check, surrendered the bill of lading, but held the draft until the Chandler Company removed the cars from the railway to the Beacon Storage Company, a storage warehouse, and obtained therefrom warehouse receipts describing the particular cars described in the draft and the bill of lading. The Chandler Company then hypothecated these receipts with the Trust Company to secure their notes for 80 per cent. of the amount of the check or draft, and thereupon a loan of 80 per cent. of the value of the cars covered by the bill of lading was credited to the Chandler Company's account in the Trust Company, and the check was charged against that account. In other words the actual loan was for 80 per cent. of the check or draft, and notes for this amount were given by the Chandler Company to the Trust Company, to secure which a warehouse receipt or receipts describing the particular car or cars into which the loan went were pledged. The Beacon Storage Company had a place of business on the fourth floor of a building, the first and second floors of which were occupied by the Chandler Company. It issued a nonnegotiable warehouse receipt for each car which was brought there by the Chandler Company under the conditions above stated. In each receipt the Beacon Storage Company acknowledged that it had received as depository from the Chandler Company on account of the Trust Company a car, describing it and giving its number, and stating that it would deliver the same on surrender of the receipt properly indorsed and the payment of storage charges. The Beacon Storage Company was a warehouse company incorporated under the laws of Massachusetts. Its officers were also the officers of the Chandler Company, and, while the Trust Company did not know who 770 its officers were, it did know they were connected with the Chandler Company. There was no sign of the Beacon Storage Company on the outside of the building, although it had signs on many of the interior doors. The bulk of the cars covered by the warehouse receipts were kept on the fourth floor of the building, and the particular cars here in question, when taken by the Trust Company as hereafter stated, were taken from this floor; but the evidence showed that the Chandler Company had, at times theretofore, removed cars from the fourth floor to its salesrooms for display and sale. Each car bore a manufacturer's number, which was inserted in the warehouse receipt for that car, and attached to the radiator rod under the hood of the car was a tag with the word "Mass." to indicate that it belonged to the Massachusetts Trust Company. The Trust Company knew that the Chandler Company was engaged in the business of selling cars, and knew that certain of the cars covered by the warehouse receipts were offered for sale; but in negotiating the sale of a car the Chandler Company was expected and required to pay the note and take up the warehouse receipt covering such car before delivering it to a purchaser, and this was done. August 1, 1922, the Trust Company learned that the Chandler Company had a deficit of $37,000 in its quick assets, and, shortly before September 19, that it was unable to renew with another bank an unsecured loan for $75,000. About this time or shortly thereafter it demanded payment of the collateral notes (which were demand notes), and on the 19th of September, 1922, took possession of the automobiles described in the warehouse receipts, and removed them from the fourth floor of the building occupied by the Beacon Storage Warehouse Company, and later sold them. It is agreed that the cars were of the value of $16,024. In the court below it was found that the Trust Company had reasonable cause to believe that the Chandler Company was in serious difficulties and was insolvent; that the cars, prior to September 19, had not been in the actual or constructive possession of the Trust Company, as the Beacon Storage Company did not have such exclusive possession of the cars as would give the Trust Company constructive possession of them under the warehouse receipts. It did not find that the transaction between the Chandler Company and the Trust Company was fraudulent, and there was no evidence from which fraud in fact could reasonably be found. We do not think, on the facts in this case, that the finding that the Beacon Storage Company did not have exclusive possession of the motor cars concludes the case in the plaintiff's favor. The facts show that 80 per cent. of the purchase price of these cars was advanced by the Trust Company; that in consideration of this advance it was agreed between the parties that the specific cars into which the Trust Company's money went should be held as security in the nature of a pledge for the notes evidencing the loan that went into each car; that there was no fraud in the transaction; that as a car was sold by the Chandler Company the purchase price was required to be and was paid by it to the Trust Company before delivery of the car to pay the note evidencing the loan that went into the car; and that, the notes representing the particular cars in controversy not having been paid upon demand, the Trust Company took possession of them a month or more prior to the filing of the petition in bankruptcy, as they had the right to do under the agreement contained in the warehouse receipts. At the time the Trust Company took possession of the cars no rights of third persons had intervened, and the right under which they took possession having been acquired more than four months prior to filing the petition in bankruptcy, its possessory title or lien related back and took effect as of the time the right accrued. It may be conceded that, if on September 19, 1922, when the Trust Company took possession of the automobiles, which was within four months of the filing of the petition, its rights in the property began only on that date, the Chandler Company being then insolvent, and the Trust Company having reasonable cause to believe that it was, the taking of possession would constitute an unlawful preference. But as the Trust Company's rights in the automobiles arose as of the time the loans were made and the notes and warehouse receipts were given, and the transactions were entered into in good faith, the taking of possession did not constitute an unlawful preference or transfer within the four months. The agreement contained in each note and receipt was not a promise to give security in the future; it was of a more limited and cautious nature, confined to specific and identified things, and purported to give a present right. The possession taken before commencement of the proceedings in bankruptcy, and 771 before third persons had obtained liens or rights by attachment or otherwise, gave the Trust Company a lien which was good under the common law of Massachusetts as against creditors of the Chandler Company. Tatman v. Humphrey, 184 Mass. 361, 362, 68 N. E. 844, 63 L. R. A. 738, 100 Am. St. Rep. 562; Sawyer v. Turpin, 91 U. S. 114, 23 L. Ed. 235; Humphrey v. Tatman, 198 U. S. 91, 94, 25 S. Ct. 567, 49 L. Ed. 956; Mitchell v. Black, 6 Gray (Mass.) 100, 104, 105. In the Tatman Case the mortgage, which covered the mortgagor's present and afteracquired stock in trade and fixtures, was not recorded and the goods in controversy remained in the mortgagor's possession down to within three weeks before the filing of the petition in bankruptcy, when they were taken possession of by the mortgagee, and it was held that the taking of the property by the mortgagee was not a preference voidable under the bankruptcy law. Such a mortgage, so far as it related to the after-acquired property, only created an equitable title in the property when acquired with a right in the mortgagee to take possession, and possession having been taken in pursuance of that right, the equitable title became a legal one. That case seems to be weaker than the one now before us, for there is nothing in that case to show that the obligation the mortgage was given to secure was for a present rather than a past consideration, or, if for a present consideration, that the money obtained went into the after-acquired property, while here there is no question but that the money loaned by the Trust Company to the bankrupt went into the specific cars which the parties understood and agreed were pledged to secure the loan. See, also, on this question Hurley v. Atchison, Topeka & Santa Fe Ry., 213 U. S. 126, 29 S. Ct. 466, 53 L. Ed. 729; Thompson v. Fairbanks, 196 U. S. 516, 25 S. Ct. 306, 49 L. Ed. 577; Sexton v. Kessler, 225 U. S. 90, 32 S. Ct. 657, 56 L. Ed. 995; Macomber v. Parker, 14 Pick. (Mass.) 497, 504, 505; Federal Finance Corporation v. Reed, 296 F. 1, decided by this court February 26, 1924. The trustee in bankruptcy acquired no rights as an attaching or judgment creditor in the cars by virtue of section 47a, clause 2 of the Bankruptcy Act of 1898 as amended in 1910 (Comp. St. § 9631) for any rights of this nature conferred upon him by section 47a, clause 2, would not arise or relate back to a date earlier than the filing of the petition in bankruptcy, which was long subsequent to the taking of possession by the Trust Company. Bailey v. Baker Ice Machine Co., 239 U. S. 268, 274, 275, 36 S. Ct. 50, 60 L. Ed. 275. The decree of the District Court is reversed, and the case is remanded to that court, with directions to enter a decree for the appellant, with costs. On Rehearing. JOHNSON, Circuit Judge. An opinion in the above case was handed down by this court February 26, 1924. Since then the case has been reargued, and it is claimed that we erred in our former opinion in applying the doctrine of Humphrey v. Tatman, 198 U. S. 91, 94, 25 S. Ct. 567, 49 L. Ed. 956, to this case because, under the law of Massachusetts, it is not applicable to a pledge. In our former opinion we based the right of the Massachusetts Trust Company to hold the proceeds derived from the sale of the cars of which it took possession upon the ground that the note and receipt given by the Motor Company did not constitute a promise to give security in the future, but gave a present right which attached to the specific car upon which each loan was made and for which a note and receipt were given. No decision of the Massachusetts court has been cited by counsel in which that court has held that the taking of possession by the pledgee within four months of the filing of a petition in bankruptcy, under an agreement executed before this period, made such taking a preferential transfer under section 60b of the Bankruptcy Act (Comp. St. § 9644). In Coggan v. Ward, 215 Mass. 13, 102 N. E. 336, the court said: "It is the settled law of this commonwealth that an instrument of transfer of personal property, absolute in form but intended by the parties to be a mortgage, genuine, honest and valid as such when executed and delivered, authorizes the person named as vendee to take possession of the property, in order to secure his own debt, at any time before the rights of other persons have intervened, and that thereby he acquires a title which relates back for its validity to the date of the instrument, and that, although the taking possession may be at a time when the debtor is insolvent to the knowledge of himself and of his creditor named as vendee in the instrument of transfer, it is nevertheless effectual, although occurring within a period of time previous to insolvency, which would invalidate the 772 transaction if the initial step had occurred at the time of taking possession." While the general law of pledge requires possession in the pledgee, yet, where possession is taken before the rights of third parties have intervened and in the assertion of a right given by a contract made before the beginning of the four months' period, which gave the pledgee an equitable lien upon the property taken, we think the same law should be applied as in case of a mortgage, given before but not recorded until within the four months' period. The Massachusetts court in its decisions has given as broad an application of the doctrine of an equitable lien as have the federal courts. See Westall v. Wood, 212 Mass. 540, 99 N. E. 325, in which the court cites with approval Hurley v. Atchison, Topeka & Santa Fe Ry., 213 U. S. 126, 29 S. Ct. 466, 53 L. Ed. 729, and Connolly v. Bouck, 174 F. 312, 98 C. C. A. 184; also Delval v. Gagnon et al., 213 Mass. 203, 207, 99 N. E. 1095. As we pointed out in our former opinion, the right of the trustee attached at the time of the filing of the petition in bankruptcy, citing Bailey v. Baker Ice Machine Co., 239 U. S. 268, 36 S. Ct. 50, 60 L. Ed. 275. At that time no third party had secured any adversary rights. After possession had been taken no creditor could have attached the automobiles or seized them upon execution; and under the Bankruptcy Act the trustee, as to property not in the possession of the bankruptcy court, has the right of a creditor holding an execution which has been returned unsatisfied. Counsel have claimed in argument that Humphrey v. Tatman, supra, may be distinguished from the present case because, in that case, a mortgage was given and there was a present transfer of title. In the present case, however, there was a transfer to the pledgee of an equitable lien with a present right of possession. There is no question about the honesty and validity of the claim of the Trust Company. The proof is clear and convincing that it actually advanced the money which was used in the purchase of the cars upon which a lien was given for the satisfaction of its loan in each instance; and that it was the understanding and intention of the parties that the Trust Company should have a lien upon each car for the money which it had advanced toward its purchase. If it be admitted that the delivery to the Beacon Storage Warehouse Company did not satisfy the requirement of a pledge, because the possession of the Warehouse Company was not exclusive a question which we do not now feel called upon to decide it is, nevertheless, true that the notes gave the Trust Company an equitable lien upon each car for the money which it had advanced to pay for the same, with the right of possession. When it exercised this right, before the rights of third parties intervened and before the filing of the petition in bankruptcy, its power to do so was conferred by the notes and the warehouse receipts, all of which were given before the four months' period began to run. That a pledgee may hold property of which possession is thus taken was recognized in this District by Judge Dodge in Wood v. United States Fidelity & Guaranty Co. (D. C.) 143 F. 424, who held that the right of the defendant to take possession of property was to be adjudged not by the state of facts existing when possession was taken, but by the state of facts existing when the right was given, and that, since possession was taken before bankruptcy, the defendant held the property by a title relating back to the time when its right was acquired and that there was no preference in taking possession within the four months' period before bankruptcy. The same was held by this court in Atherton v. Beaman, 264 F. 878, in which we cited Johnson v. Root Mfg. Co., 241 U. S. 160, 36 S. Ct. 520, 60 L. Ed. 934, Sumner v. Hamlet, 12 Pick. (Mass.) 76, and Copeland v. Barnes, 147 Mass. 388, 390, 18 N. E. 65. In that case we held that the designation of carload lots of lumber within four months of bankruptcy, made under an authorization given before the commencement of that period, would not render the pledge invalid as against the trustees in bankruptcy, "because, in a transaction untainted with fraud and where the rights of third parties are not affected, such designation relates back to the date of the order." As we pointed out in our former opinion, this was not an agreement to give a pledge in the future; "it was of a more limited and cautious nature, confined to specific and identified things, and purported to give a present right." After a careful examination of the federal decisions and those of the Supreme Judicial Court of Massachusetts, we see no reason to change the conclusion which we reached in our former opinion. 773 ANDERSON, Circuit Judge (dissenting). On careful reconsideration, I am driven to the conclusion that this decision is wrong; and that the error will go far to destroy the wholesome preference provisions of the Bankruptcy Act. The fundamental trouble grows, I think, out of a misinterpretation of the record. Both opinions go upon the theory of some right accruing to the Trust Company before the four months' period. But the notes given were nothing but collateral notes in familiar form, reciting the deposit of designated cars, with the usual powers of sale and of substitution. They are, except as to names and amounts, for all legal purposes, exactly like the collateral notes found in the form books. Compare Tiffany's Form Book, pp. 1124 and 1125. But in this case the recital of the pledge of designated cars was false, as both parties well knew. The cars remained in the possession of the owner-debtor-bankrupt. That the receipt of the Beacon Storage Warehouse Company was nothing but the receipt of the pledgor under an alias is too plain for serious discussion. There was, therefore, nothing but collateral notes with a false recital therein the recital of a nonexistent pledge. This was everything the Trust Company had and relied upon until, within the four months' period, it found its debtor in default and insolvent. It then seized the cars, thus showing conclusively that it knew it had no real pledge. This seizure, if with the debtor's assent, grounded a real pledge, then made. If without the debtor's assent, it was a conversion; the debtor might have replevied the cars. But if with the debtor's assent, the result was, so far as present questions are concerned, the same as if the Trust Company had then sued and attached the cars. The majority hold that this false recital shall be transmuted into an equitable lien, or into some unnamed right, thus described in the original opinion: "The agreement contained in each note and receipt was not a promise to give security in the future; it was of a more limited and cautious nature, confined to specific and identified things, and purported to give a present right." (Italics mine.) Not so; it purported "to give" nothing; the note simply recited that the promisor had "deposited with said company as general collateral security" various cars. It was only from the deposit already or contemporaneously made that any security could arise, as the note itself recognized. It was not the writing that made the pledge. No writing can make a pledge. No real pledge requires any writing. It requires an act. As the cars had not, in fact, been deposited with said company, the recital to the contrary was idle and empty of legal import. To sustain this result is to hold that every false recital of a present pledge shall be transmuted into an equitable lien or into some other undefined and hitherto unknown species of security and to allow it to prevail against the title of the trustee in bankruptcy. To such a destruction of vital provisions of the bankruptcy law, I cannot contribute. It has always been elementary that mere intent cannot change the legal results, arising from one form of agreement, into another form of agreement. Cf. Hunt v. Rhodes, 1 Pet. 1, 15, 17, 7 L. Ed. 27, where it was held that when the parties had adopted a power of attorney as a means of security, the creditor took the risk of losing it by the death of the grantor. Nothing has ever been more common (or more futile) than for debtors and creditors to agree upon an unrecorded bill of sale as security, thinking thereby to avoid the annoyance and publicity incident to a duly recorded chattel mortgage. If the courts are to transmute false recitals of pledge into equitable liens and enforce them as against trustees in bankruptcy, a fortiori, unrecorded mortgages, or even agreements for mortgages, must be allowed to prevail. In this case it is clear that the parties did not want recorded mortgages, and did want to leave the putative pledgor in possession of the cars so as to be unhampered in the sale thereof. This arrangement was for the obvious purpose of avoiding the limitations the law puts upon ostensible but unreal ownership. Compare Harkness v. Russell, 118 U. S. 663, 669, 670, 7 S. Ct. 51, 30 L. Ed. 285. It is no part of the duty of courts to assist parties to adopt business methods running counter to the public policy evidenced by our recording acts and by the requirement that creditors, in order to have real pledges, must take and retain possession not leave the property in the possession, and apparent ownership, of the debtor. Compare Blanchard v. Cooke, 144 Mass. 207, 218, 225, 11 N. E. 83; Casey v. Cavaroc, 96 U. S. 467, 24 L. Ed. 779. My view of the facts makes it unnecessary to consider and discuss the cases of conflict between the rights of holders of real equitable liens and trustees in bankruptcy. This problem is elaborately treated in 4 Remington (3d Ed.) §§ 1782, 1783 and 1784; *774 and the nature and scope of equitable liens are fully discussed in 3 Pomeroy's Equity (4th Ed.) §§ 1233 to 1791, particularly 1235. In Hayes v. Gibson, 279 F. 812, 22 A. L. R. 1372, the opinion of the Court of Appeals for the Third Circuit shows a recognition of the danger to the fundamentally important principle of equality of treatment of creditors in bankruptcy, arising out of holding equitable liens superior to the title of a trustee in bankruptcy. It is a doctrine not to be extended by construction. But I repeat and emphasize: The close and difficult questions arising in cases in which creditors plainly have equitable liens are not now before us. So far as I know, no court, except this, has ever held that false recitals of pledges in ordinary collateral notes can be transmuted into equitable liens and, as against trustees in bankruptcy, be enforced as valid forms of security.
783 F.Supp. 249 (1992) Hoyt M. LONG, Plaintiff, v. LOCKHEED MISSILES AND SPACE COMPANY, INC. and C. Thomas Cook, Defendants. Civ. A. No. 2:91-519-IJ. United States District Court, D. South Carolina, Charleston Division. February 4, 1992. 250 Hans F. Paul, North Charleston, S.C., for Hoyt M. Long. David Brian McCormack, Charleston, S.C., for Lockheed Missiles and Space Co., Inc. Morris Dawes Cooke, Jr., Charleston, S.C., for C. Thomas Cook. ORDER HAWKINS, Chief Judge. This matter is before the court on the order of the magistrate judge made in accordance with Title 28, United States Code, Section 636(b)(1)(A) and the standing order of this court dated June 19, 1990. Objections to the magistrate judge's order to remand this case to state court were filed by the defendants on August 19, 1991 and August 26, 1991. Pursuant to Local Rule 12.08, DSC, the court determined that a hearing on the motion was unnecessary. STANDARD OF REVIEW The defendant Lockheed Missiles and Space Company, Inc. (Lockheed) raised the issue of whether an order remanding the case was within the power of the magistrate judge or whether such a motion was dispositive, in which case the magistrate judge should submit a report and recommendation. The defendant's challenge presents a question of first impression for this court. Pursuant to 28 U.S.C. § 636(b)(1)(A), a magistrate [may] hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, ..., to dismiss or permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law. A motion to remand does not explicitly fall within any of the dispositive motions set forth in 28 U.S.C. § 636. This omission has lead to a split in authority on the question. One line of cases had held that a motion to remand is not dispositive, relying solely on a statutory argument. See Walker v. Union Carbide Corp., 630 F.Supp. 275 (D.Me.1986); Jacobsen v. Mintz, Levin, Cohn Ferris, Glorsky, & Popeo, P.C., 594 F.Supp. 583 (D.Me.1984). These cases hold that since a motion to remand is not included among the list of dispositive motions, it is not a dispositive motion. Another line of thought on the subject is that an order to remand is not dispositive because "[u]pon remand to state court all parties will be able to assert any claim or defense permitted in [federal court]." Acme Electric Corporation v. Sigma Instruments, Inc., 121 F.R.D. 26, 28 (W.D.N.Y.1988). In Giangola v. Walt Disney World Co., 753 F.Supp. 148, 152 (D.N.J.1990), however, the court held that a motion to remand was dispositive. The court stated: Perhaps no issue is so accurately described as a determination which will destroy or uphold the Court's jurisdiction. While neither the statute nor the Local Rules specifically remove an order of remand from the jurisdiction of a magistrate, a remand order is the equivalent of a dismissal. The Magistrate's Order thus sought to effect an "involuntary dismissal" of the action. As such, the Magistrate was not empowered to hear the matter.... The analysis of the court in Giangola is the preferred approach to this case because it combines both the statutory language with the practical effects of a dismissal from federal court. Further, there is no provision in the Local Rules of this court governing this matter. See Local Rule 19, DSC. Therefore, the magistrate judge was without authority to issue an order to remand. 251 Consequently, the order is viewed as a report and recommendation. By statute, the court is charged with conducting a de novo review of any portions of a magistrate judge's report to which specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). The court is not bound by the recommendation of the magistrate judge and retains responsibility for the final determination. See Brock v. Heckler, 612 F.Supp. 1348, 1350 (D.C.S.C.1985). However, if neither party objects to the factual or legal conclusions of the magistrate judge, the statute does not require review of those conclusions by the district court. Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 471-72, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986). Accordingly, the court has reviewed, de novo, only those conclusions of the magistrate judge to which objections have been made. FACTS Having reviewed the entire matter de novo, the court adopts the facts and procedural history of the case as set forth in the order of the magistrate judge. Long alleges that the defendants have failed to show proper grounds for removal and that his complaint provides no basis for removal to federal court. 28 U.S.C. § 636(b)(1). The plaintiff filed his complaint against defendants, Lockheed and C. Thomas Cook (Cook), on January 17, 1991, in state court. Long alleged causes of action against Cook for libel and slander and against Lockheed for breach of an employment contract and defamation; he also alleges a wrongful termination cause of action against both defendants for civil conspiracy. Long alleged that he was employed by Lockheed for twenty-four (24) years prior to March 1989; that, beginning November 1988, Lockheed made Long's work environment intolerable by removing him from a management position and reassigning him to a position as a mail room clerk. Long asserts this reassignment amounted to a constructive discharge from employment. Long has further alleged that Lockheed's actions were predicated on a false report provided by defendant Cook, Lockheed's physician and agent, which described Long as an alcoholic and a substance abuser. Further, Long alleges that Lockheed knew that the doctor's report was inaccurate, but used it to constructively discharge him. This allegedly constituted a wrongful discharge based on Lockheed's agreement with its employees. As a result of these actions, Long alleges that he suffered the loss of his employment, wages, benefits, good reputation, and emotional and physical health. Lockheed determined that the complaint sought recovery of employee benefits governed by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, et seq., and that Long's state law causes of action were preempted by ERISA. It timely filed for removal based upon a claim arising out of the laws of the United States. 28 U.S.C. § 1441. On March 13, 1991, the plaintiff filed a motion to remand the action to the Court of Common Pleas, Ninth Judicial Circuit, at Charleston, South Carolina, pursuant to 28 U.S.C. § 1447(c). The magistrate judge granted the plaintiff's motion to remand the matter to the state court by an order dated August 7, 1991. ANALYSIS The gravamen of the defendants' objections is that the magistrate judge erred in ruling that the plaintiff's claim does not "relate to" an employee benefit plan. Further, the magistrate judge erred in his application of Ingersoll-Rand Company v. McClendon, ___ U.S. ___, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) and Pizlo v. Bethlehem Steel Corp., 884 F.2d 116 (4th Cir. 1989) to the facts of this case. First, the court will set forth the law applicable to this case. ERISA preempts "any and all state laws insofar as they may now or hereafter relate to any employee benefit plan." 29 U.S.C. § 1144(a) (1982). The Fourth Circuit 252 has held that "the phrase `relate to' has been read expansively, giving `unparalleled breadth' to the preemption provision." Solomon v. Transamerica Occidental Life Ins. Co., 801 F.2d 659, 661 (4th Cir.1986). In Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983), the Supreme Court held that "[a] law `relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan." Although the Court has recognized the breadth of the preemption clause under ERISA, it has established limits on the application of the clause. Ingersoll-Rand, 111 S.Ct. at 482. In Ingersoll-Rand, the employee was fired after nine years and eight months of employment. His complaint, in state court, alleged that his employer had fired him to prevent him from vesting in his pension plan at the end of 10 years. The employee did not raise any claims under ERISA, although his claim was clearly covered by ERISA. The Supreme Court ruled that ERISA pre-empted the state law claims stating that "here, the existence of a pension plan is a critical factor in establishing liability under the state's wrongful discharge law. As a result, this cause of action relates not merely to pension benefits, but to the existence of the pension plan itself." Id. 111 S.Ct. at 483 (emphasis in original). In so holding, however, the court noted two guidelines which limit the preemption of state claims under ERISA. First, "[t]he fact that collection might burden the administration of a plan [does] not, by itself, compel preemption." Id. at 483 citing Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). Second, "[u]nder the plan language of § 514(a) the Court has held that only state laws that relate to benefit plans are pre-empted." Id. citing Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 23, 107 S.Ct. 2211, 2223, 96 L.Ed.2d 1 (1987) (emphasis in original). The Fourth Circuit's opinion in Pizlo is also relevant to this case. In Pizlo, the defendant had made alterations to the company's pension plan over the years. Included in the changes was an early retirement provision, which provided reduced benefits for those employees who retired or were fired before reaching the age of 62. As these changes were made over a period of years, various meetings were held in which the corporation allegedly assured the employees that the changes were only to keep the employees working until they were 62, implying that the employees had job security. The plaintiffs were employees who were subsequently fired prior to reaching the age of 62. The plaintiffs brought several causes of action including state claims for breach of contract, promissory estoppel and negligent misrepresentation. In holding that the state law claims were not pre-empted by ERISA, the court stated: The claims do not bring into question whether Plaintiffs are eligible for plan benefits, but whether they were wrongfully terminated from employment after an alleged oral contract of employment for a term. In their state law claims, the Plaintiffs seek from the corporation compensatory damages for wages and pension, health, life and disability benefits that they would have been entitled to had the alleged contract to work until age 62 not been breached. If the Plaintiffs prevail, the damages would be measured in part by the lost pension benefits the Plaintiffs would have received, but the pension trust itself would not be liable and the administrators of the pension plan would not be burdened in any way. Pizlo, 884 F.2d at 120 (citations omitted). With these cases set forth and having reviewed the matter thoroughly, the court finds that the plaintiff's claim does not "relate to" a benefit plan. First, Plaintiff's complaint sets forth three claims for libel and slander, constructive discharge and civil conspiracy, respectively. Generally speaking, "[w]hen an employee contracts to fill a particular position any material change in duties or significant reduction in rank constitutes a constructive discharge which, if unjustified, is a breach of the contract." Tracey v. Sconnix Broadcasting 253 of South Carolina, Inc., 284 S.C. 379, 325 S.E.2d 542, 544 (S.C.1985). Thus, the focus is on the existence of a material change in duties or rank and the justification, or lack thereof, for the change. The existence of the pension plan is not critical to determining liability and the inquiry does not "relate to" the pension plan itself. Second, the defendants argue repeatedly that the plaintiff's action will "clearly be affected since, presumably, recalculation and increases could be required with regard to benefits." Defendant's Brief at ¶ 1. The Supreme Court has made it clear, however, that the mere possibility that collection will burden administration of a plan does not compel pre-emption. Ingersoll-Rand Co. at 483. Finally, despite the defendant's argument to the contrary, Pizlo is particularly applicable to this case. The key aspect of Pizlo was that the claims focused on the oral assurances made by the company and whether the employees were discharged in a manner which was contrary to the terms of the alleged agreement. The existence and extent of benefits under the pension plan was not critical to the terms of the employee's employment. Likewise in this case, the existence of the pension plan is not critical to the existence of a material change in the plaintiff's employment conditions. If the court could not establish that the claim related to the pension plan in Pizlo, where the oral assurances were given as a result of actual changes in the pension plan, then there is even less merit in an argument that the claim in this case, which arises out of the modification of the plaintiff's employment duties, is related to the pension plan. Therefore, based on the foregoing, it is ORDERED, that the plaintiff's motion to remand be, and the same is hereby, granted. Accordingly, the report and recommendation of the magistrate judge is adopted. AND IT IS SO ORDERED.
FILED United States Court of Appeals Tenth Circuit September 29, 2010 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT JOHN MOORE, Plaintiff - Appellant, No. 10-1315 v. (D. Colorado) DELTA COUNTY POLICE; THE (D.C. No. 10-CV-01288-ZLW) CITY OF DELTA, Defendants - Appellees. ____________________________ JOHN MOORE, Plaintiff - Appellant, No. 10-1324 v. (D. Colorado) DELTA COUNTY HOSPITAL; (D.C. No. 10-CV-01342-ZLW) STEVE PADUA; SAM JAHANI, M.D.; TOM MINGEN, Administrator; THE BOARD OF DIRECTORS; BILL HELLMAN; JOHN MUSSER; JOHN BREITNAUER; THEIMA STARNER; DORY FUNK; COPIC INSURANCE COMPANY; DELTA COUNTY POLICE DEPARTMENT, Defendants - Appellees. ORDER AND JUDGMENT * * This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. (continued...) Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellant John Moore, a citizen proceeding pro se, appeals the dismissals of two civil rights cases he brought against various individuals associated with the Delta County, Colorado, hospital and police, alleging liability for the death of his mother and for failing to investigate her death. We affirm. BACKGROUND We begin by noting that Mr. Moore is a frequent filer in our court system. These two cases are two of sixteen civil actions Mr. Moore has initiated in the Colorado Federal District Court since February 2010, all concerning his mother’s death. In two of these actions, the cases were dismissed because Mr. Moore failed to cure the designated deficiencies and failed to prosecute. Three were dismissed for failure to cure. Three were summarily remanded to Mr. Moore’s * (...continued) -2- failed attempts, as a plaintiff, to remove them from state court. In two actions, Mr. Moore was unable to file a complaint that complies with the pleading requirements of Fed. R. Civ. P. 8. One action was dismissed for Mr. Moore’s deceit in creating a fictitious court order, affixing a judge’s signature to it, and tendering it to the district court. Mr. Moore voluntarily dismissed three actions, and then appealed from the voluntary dismissal of one of them. His remaining actions, including the two at issue in this appeal, have deficient complaints, as will be more fully explained below. DISCUSSION I. Appeal No. 10-1324: As indicated, this appeal, as apparently all of his actions do, involves the death of Mr. Moore’s mother. There are few details provided. Mr. Moore lists as defendants a large number of people and entities. 1 His amended complaint states as follows: My mom past away in Dec. 28 2008 civil right was violated this is criminal negligence homicide and medical-male malpractice and civil rights issued. 1 Mr. Moore lists as defendants in this case: the Delta County Hospital, Steve Padua, Sam Jahani, M.D., Tom Mingen, Administrator, The Board of Directors, Bill Hellman, John Musser, John Breitnauer, Theima Starner, Dory Funk, Copic Insurance Company, and the Delta County Police Department. -3- Amended Comp. at 1, R. Vol. 1 at 7 (grammar and spelling verbatim). His July 12 and 14 one-page amendments to his amended complaint, which sues the Delta County Police Department alone, are identical and state as follows: On Dec 28 2008 my mom past away I cald the police to do someing about it and thay told me there was nothing thay can do about it, Me and my dad saw my mom murder and this day thay well not look in to it Amendments to Amended Comp. at 1, R. Vol.1 at 21-22 (grammar and spelling verbatim). In any event, Mr. Moore attempted to initiate this action by submitting to the district court a pro se motion and affidavit for leave to proceed pursuant to 28 U.S.C. § 1915 along with an incomplete complaint. The district court determined that the submitted documents were deficient. See D.C. Colo. Civ. R. 8.1. Accordingly, on June 10, 2010, the court directed the court clerk to commence a civil action and directed Mr. Moore to cure certain deficiencies in his pleadings if he wished to pursue his claims. More specifically, the district court directed Mr. Moore to file a complete complaint with an original signature and also ordered Mr. Moore to show cause why filing restrictions should not be imposed against him for his repetitive and abusive filings. Since the June 10 order, Mr. Moore submitted various documents, including an amended complaint submitted on June 11 and what appear to be amendments to the June 11 amended complaint, submitted on July 12. -4- Construing the complaint liberally because of Mr. Moore’s pro se status, the court nonetheless dismissed the amended complaint, with its amendments, and imposed filing restrictions against Mr. Moore for his repetitive and abusive filings. The court dismissed the complaint because it failed: (1) to assert the basis for the court’s jurisdiction; (2) provide a short and plain statement of Mr. Moore’s claims; or (3) request any relief, and thus failed to comply with the pleading requirements of Fed. R. Civ. P. 8. The court further determined that giving Mr. Moore a chance to file yet another amended complain would be futile, as he had been given such an opportunity in at least two prior cases and was unable to comply. Accordingly, the court held that “the amended complaint and its amendments will be dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to comply with Fed. R. Civ. P. Rule 8.” Order Dismissing Case at 3, R. Vol.1 at 25. After observing that Mr. Moore is “unable to represent himself properly” even though the court made “repeated efforts to allow Mr. Moore to cure deficiencies and defects in his filings,” the district court imposed sanctions on Mr. Moore, pursuant to Fed. R. Civ. P. 11(c). The court ruled as follows: The Court will prohibit Mr. Moore from filing new actions in the United States District Court for the District of Colorado without the representation of a licensed attorney admitted to practice in the United States District Court for the District of Colorado unless he obtains permission to proceed pro se. In order to obtain permission to proceed pro se, Mr. Moore must take the following steps: 1. File with the Clerk of this Court a motion requesting leave to file a pro se action. -5- 2. Include in the motion requesting leave to file a pro se action the following information: A. A list of all lawsuits currently pending or filed previously in the District of Colorado, including the name, number, and citation, if applicable, of each case, and the current status or disposition of each case; and B. A statement of the legal issues to be raised in the proposed new pleading and whether he has raised the same issues in other proceedings in the District of Colorado. If so, he must cite the case number and docket number where the legal issues previously have been raised. 3. Submit the proposed new pleading to be filed in the pro se action. The motion requesting leave to file a pro se action and the proposed new pleading shall be submitted to the Clerk of the Court, who shall forward them to the judicial officer designated by the Chief Judge pursuant to D.C. Colo. Civ. R. 8.1C for review. If the motion requesting leave to file a pro se action is denied, the matter will be dismissed. If the motion requesting leave to file a pro se action is granted, the case will proceed in accordance with the Federal Rules of Civil Procedure and the Local Rules of Practice of the United States District Court for the District of Colorado-Civil. Order Dismissing Case at 8-9, R. Vol.1 at 30-31. The court then dismissed the action without prejudice. It denied all other pending motions as moot. We agree completely with the district court’s actions in this case. We accordingly affirm its dismissal for substantially the reasons stated by the district -6- court. We deny Mr. Moore’s motion before our court for leave to proceed on appeal in forma pauperis. II. Appeal No. 10-1315: This action was filed by Mr. Moore against only the Delta County Police Department and the City of Delta, and appears to allege substantially the same claims. The district court reviewed Mr. Moore’s pro se motion and affidavit for leave to proceed pursuant to 28 U.S.C. § 1915 and an incomplete complaint. Noting the complaint’s deficiencies, the district court directed the clerk of court to commence a civil action and directed Mr. Moore to cure certain deficiencies in the case within thirty days if he wished to pursue his claims. The deficiencies noted in the order included the fact that Mr. Moore only submitted page one of the court’s six-page complaint form and the complaint was missing an original signature; and that the names in the caption to the § 1915 motion and affidavit did not match the names in the caption to the complaint. The district court accordingly dismissed the complaint without prejudice for failure to cure. The court denied Mr. Moore’s motion for leave to proceed in forma pauperis as moot. We again agree completely with the district court’s disposition of this case. We accordingly affirm the dismissal for substantially the reasons stated in the -7- court’s order. We deny Mr. Moore’s motion before our court for leave to proceed on appeal in forma pauperis. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s orders in these two appeals. We DENY Mr. Moore’s requests for permission to proceed on appeal in forma pauperis. ENTERED FOR THE COURT Stephen H. Anderson Circuit Judge -8-
539 U.S. 910 Braxtonv.Federal Bureau of Prisons et al. No. 02-10468. Supreme Court of United States. June 2, 2003. 1 Appeal from the C. A. 11th Cir. 2 Certiorari denied. Reported below: 54 Fed. Appx. 684.
Piazza v Cline (2018 NY Slip Op 03717) Piazza v Cline 2018 NY Slip Op 03717 Decided on May 23, 2018 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 23, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department CHERYL E. CHAMBERS, J.P. SYLVIA O. HINDS-RADIX COLLEEN D. DUFFY HECTOR D. LASALLE, JJ. 2017-01641 (Index No. 101917/14) [*1]Elizabeth Piazza, et al., appellants, vGary R. Cline, respondent. Jonathan D'Agostino, Staten Island, NY (Glen Devora of counsel), for appellants. Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Marshall D. Sweetbaum and Jackie Gross], of counsel), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Charles M. Troia, J.), dated November 18, 2016. The order granted the defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied. On the morning of October 30, 2013, a mini school bus on which the injured plaintiff, a school bus matron, was a passenger, collided with the defendant's vehicle at the intersection of Preston Avenue and Oakdale Street in Richmond County. The school bus was traveling southbound on Preston Avenue, which was governed by a stop sign at its intersection with Oakdale Street. The defendant's vehicle was traveling westbound on Oakdale Street, which was not governed by any traffic control device at its intersection with Preston Avenue. The injured plaintiff, and her husband suing derivatively, commenced this action against the defendant. The defendant moved for summary judgment dismissing the complaint, contending that the bus driver's failure to yield the right-of-way was the sole proximate cause of the accident. The Supreme Court granted the motion, and the plaintiffs appeal. The defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that the bus driver was negligent in failing to yield the right-of-way, and that the defendant was not at fault in the happening of the accident (see Fuertes v City of New York, 146 AD3d 936, 937; Wolf v Cruickshank, 144 AD3d 1144, 1145; Nohs v DiRaimondo, 140 AD3d 1132, 1134; Luke v McFadden, 119 AD3d 533, 534). However, in opposition, the plaintiffs submitted a copy of the injured plaintiff's deposition transcript, which raised triable issues of fact as to, among other things, whether the defendant was at fault in the happening of the accident (see Anastasi v Terio, 84 AD3d 992; Wilson v Rosedom, 82 AD3d 970; Virzi v Fraser, 51 AD3d 784). Accordingly, we disagree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint. CHAMBERS, J.P., HINDS-RADIX, DUFFY and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court
267 U.S. 408 (1925) UNITED STATES AND BOWERS, COLLECTOR OF INTERNAL REVENUE, v. KAUFMAN, TRUSTEE IN BANKRUPTCY OF FINKELSTEIN, ET AL. UNITED STATES AND BOWERS, COLLECTOR OF INTERNAL REVENUE, v. COXE, RECEIVER OF JONES AND BAKER, BANKRUPTS. Nos. 515 and 516. Supreme Court of United States. Argued January 13, 1925. Decided March 2, 1925. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 409 Mr. Merrill E. Otis, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck was on the brief, for the United States. Mr. J.M. Hartfield, with whom Mr. Alfred C. Coxe Jr. and Mr. William St. John Tozer were on the brief, for respondents. MR. JUSTICE SANFORD delivered the opinion of the Court. These two cases were heard together in the Circuit Court of Appeals. They involve a single question relating to the extent of the priority of the United States in the collection of taxes in bankruptcy proceedings. In 1921, on an involuntary petition filed in the Southern District of New York, Finkelstein Brothers, a partnership, and the individual partners thereof, were adjudged bankrupts. In 1923 the Collector of Internal 410 Revenue filed proof of claim for an income tax assessed against Abraham Finkelstein, one of the partners, for the year 1919. It is stipulated that the income on which this tax was based "was derived from the business of the co-partnership." No individual assets of Finkelstein had come into the hands of the trustee, and the partnership assets were insufficient to yield any surplus after the payment of the partnership debts. The Collector claimed that the tax against Finkelstein should be paid out of the partnership assets prior to the partnership debts. The referee denied this claim, and ordered that the partnership assets first be applied to the payment of the partnership debts. This order was affirmed by the District Judge. In 1923 an involuntary petition in bankruptcy was filed in the same court against Jones & Baker, a partnership. A receiver was appointed, who collected and held the partnership assets. Before an adjudication of bankruptcy the partnership offered a composition to its creditors at less than the full amount of their claims. This was confirmed by the District Judge. Before the partnership assets were distributed, the Collector of Internal Revenue filed proofs of claims against the individual partners for income taxes assessed against them for the years 1918, 1919 and 1920. It does not appear that the income on which these taxes were based was derived from the business of the partnership. The Collector claimed that these taxes should be paid out of the partnership assets prior to the payments to the partnership creditors. The District Judge denied this claim of priority. On appeals to the Circuit Court of Appeals both orders of the District Court were affirmed. 298 Fed. 11. Writs of certiorari were granted by this court. 266 U.S. 596. 1. These taxes were assessed against the individual partners and due from them to the United States. They were neither assessed against, nor due from, the partnerships. 411 The tax assessed against Finkelstein was none the less an individual tax because the income on which it was based was derived from partnership business. The Revenue Act of 1918, 40 Stat. 1057, c. 18, § 218 (a), under which it was assessed, specifically provided that "individuals carrying on business in partnership shall be liable for income tax only in their individual capacity."The provision that in computing the income of each partner there should be included his distributive share of the income of the partnership, whether distributed or not, did not change the nature of the tax or make it one against the partnership. 2. The Bankruptcy Act gives the United States no priority of payment out of partnership assets for a tax due from an individual partner. Section 64 (a), which provides that "the court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States . . . in advance of the payment of dividends to creditors," manifestly relates to the payment of the taxes out of the estate of the bankrupt from whom they are "due and owing." Where the bankrupt owing the tax is a member of a partnership, it gives the United States no priority of payment out of the partnership estate. The Bankruptcy Act clearly recognizes the separate entity of the partnership for the purpose of applying the long-established rule as to the prior claim of partnership debts on partnership assets and of individual debts on individual assets, and "establishes on a firm basis the respective equities of the individual and firm creditors." Francis v. McNeal, 228 U.S. 695, 700; Schall v. Camors, 251 U.S. 239, 254. Section 5f provides that: "The net proceeds of the partnership property shall be appropriated to the payment of the partnership debts, and the net proceeds of the individual estate of each partner to the payment of his individual debts. Should any surplus 412 remain of the property of any partner after paying his individual debts, such surplus shall be added to the partnership assets and be applied to the payment of partnership debts. Should any surplus of the partnership property remain after paying the partnership debts, such surplus shall be added to the assets of the individual partners in the proportion of their respective interests in the partnership." The intention of Congress that the partnership assets shall be first applied to the satisfaction of the partnership debts, and that only the interests of the partners in the surplus remaining after the payment of partnership debts shall be applied in satisfaction of their individual debts, is plain. It is urged, however, on the authority of United States v. Herron, 20 Wall. 251, 255, and other cases, that as the United States is not named in this section of the Bankruptcy Act it is not bound by the rule for marshalling assets thereby established. But, however this may be, it is clear that, independently of the provisions of this section, the priority of payment of taxes given the United States by § 64(a) extends only to the bankrupt's share in the surplus of the assets of a partnership of which he is a member. This follows from the decision in United States v. Hack, 8 Pet. 271, 275, a case arising under the Act of March 2, 1799,[1] providing that if the maker of any bond given to the United States for the payment of duties became insolvent or committed an act of bankruptcy, the debt due the United States on such bond should be first satisfied. The maker of such a bond had become insolvent. He had no individual property, and the assets of an insolvent partnership of which he was a member, were insufficient to pay the partnership creditors. It was held, on these facts, that the United States was not entitled to priority of satisfaction out of the partnership assets, since the Act merely gave it priority of payment 413 out of the property of its debtor, and the rule was too well settled to be questioned that his interest in the partnership property was his share in the surplus after the partnership debts were paid, and that such surplus only was liable for his separate debts. To the same effect is United States v. Evans, Crabbe, 60, 25 Fed. Cas. 1033, a case arising under the same Act. These decisions are directly applicable to § 3466 of the Revised Statutes on which the United States relies which incorporated the provisions of the Act of 1799 and similar Acts of August 4, 1790, and March 3, 1797, in the general provision that whenever any person indebted to the United States is insolvent, the debts due to the United States shall be first satisfied, and that this priority shall extend to cases in which an act of bankruptcy is committed. And in so far as this section, under the rule stated in Guarantee Co. v. Title Guaranty Co., 224 U.S. 152, may now be applicable in bankruptcy proceedings, it must be held that any priority of payment to which the United States is entitled for a debt due it from an individual partner, extends only to his share in the surplus of the partnership assets. There is no conflict between the decisions in these cases and in Lewis v. United States, 92 U.S. 618, 624, and In re Strassburger, 4 Woods 557, 23 Fed. Cas. 224, on which the United States relies. In the Lewis Case the members of the firm of Jay Cooke & Co. had been adjudicated bankrupts, and a trustee had been appointed who held their individual assets and those of the firm as well. This firm was not indebted to the United States, but another firm, of which several of the bankrupts were members, was so indebted. On these facts it was held that the bankrupt members of such other firm, as to its indebtedness, stood to the United States in the relation of "individual debtors," and that under the priority given to debts due the United States by § 3466 of the Revised 414 Statutes, recognized and reaffirmed in § 28 of the Bankruptcy Act of 1867, it was entitled, as a creditor of these individual bankrupts, to priority of payment out of their individual estates. There was, however, no suggestion that the United States as a creditor of these individual bankrupts was entitled to priority of satisfaction out of the partnership assets of Jay Cooke & Co. In the Strassburger Case, Mr. Justice Bradley, sitting at circuit, while explicitly recognizing the rule that where one member of a firm is indebted to the United States, its priority extends only to his interest in the surplus of the partnership assets, held that as the United States had a judgment against both members of the firm, it was entitled to priority of payment thereof out of their joint property in preference to their joint creditors. Whether a correct result was reached we need not inquire. And if to any extent the reasoning in this case may be in conflict with that in the Hack Case, it cannot be approved. Nor is the contention of the United States strengthened by the provision in § 3186 of the Revised Statutes, as amended by the Act of March 4, 1913, c. 166, 37 Stat. 1016, that the amount due the United States from any person as a tax shall be a lien on all property and rights to property belonging to such person. To whatever extent this statute may be now applicable in a bankruptcy proceeding, under its very terms the lien includes only the property of the person owing the tax; and in the case of a partner owing an individual tax, it extends only to his interest in the surplus of the partnership property. It results that in proceedings in bankruptcy against a partnership the partnership assets must be first applied to the payment of the partnership debts, and that the United States is not entitled to any priority of payment out of such assets for a tax due it from an individual partner, except to the extent of the share of such partner, if any, in the surplus remaining after the payment of the partnership debts. *415 3. The United States also relies, independently of the foregoing matters, upon the decision in Re Brezin (D.C.) 297 Fed. 300, 306, in which it was held that as the individual partners, instead of drawing out their distributive shares of the income of the partnership from year to year had left a large portion thereof in the partnership business, the United States had a claim in the nature of an equitable lien for the collection of their individual income taxes which it could follow into the partnership property. Whether or not this case was correctly decided on its peculiar facts, it has no application to either of the present cases, in which no such facts appear. The decree of the Circuit Court of Appeals is Affirmed. NOTES [1] 3 Laws, U.S. 136, 197; 1 Stat. 627, 676, c. 20, § 65.
358 U.S. 307 (1959) DRAPER v. UNITED STATES. No. 136. Supreme Court of United States. Argued December 11, 1958. Decided January 26, 1959. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. Osmond K. Fraenkel argued the cause and filed a brief for petitioner. 308 Leonard B. Sand argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Anderson, Beatrice Rosenberg and Jerome M. Feit. MR. JUSTICE WHITTAKER delivered the opinion of the Court. Petitioner was convicted of knowingly concealing and transporting narcotic drugs in Denver, Colorado, in violation of 35 Stat. 614, as amended, 21 U. S. C. § 174. His conviction was based in part on the use in evidence against him of two "envelopes containing [865 grains of] heroin" and a hypodermic syringe that had been taken from his person, following his arrest, by the arresting officer. Before the trial, he moved to suppress that evidence as having been secured through an unlawful search and seizure. After hearing, the District Court found that the arresting officer had probable cause to arrest petitioner without a warrant and that the subsequent search and seizure were therefore incident to a lawful arrest, and overruled the motion to suppress. 146 F. Supp. 689. At the subsequent trial, that evidence was offered and, over petitioner's renewed objection, was received in evidence, and the trial resulted, as we have said, in petitioner's conviction. The Court of Appeals affirmed the conviction, 248 F. 2d 295, and certiorari was sought on the sole ground that the search and seizure violated the Fourth Amendment[1] and therefore the use of the heroin in evidence vitiated the conviction. We granted the writ to determine that question. 357 U. S. 935. 309 The evidence offered at the hearing on the motion to suppress was not substantially disputed. It established that one Marsh, a federal narcotic agent with 29 years' experience, was stationed at Denver; that one Hereford had been engaged as a "special employee" of the Bureau of Narcotics at Denver for about six months, and from time to time gave information to Marsh regarding violations of the narcotic laws, for which Hereford was paid small sums of money, and that Marsh had always found the information given by Hereford to be accurate and reliable. On September 3, 1956, Hereford told Marsh that James Draper (petitioner) recently had taken up abode at a stated address in Denver and "was peddling narcotics to several addicts" in that city. Four days later, on September 7, Hereford told Marsh "that Draper had gone to Chicago the day before [September 6] by train [and] that he was going to bring back three ounces of heroin [and] that he would return to Denver either on the morning of the 8th of September or the morning of the 9th of September also by train." Hereford also gave Marsh a detailed physical description of Draper and of the clothing he was wearing,[2] and said that he would be carrying "a tan zipper bag," and that he habitually "walked real fast." On the morning of September 8, Marsh and a Denver police officer went to the Denver Union Station and kept watch over all incoming trains from Chicago, but they did not see anyone fitting the description that Hereford had given. Repeating the process on the morning of September 9, they saw a person, having the exact physical attributes and wearing the precise clothing described by Hereford, alight from an incoming Chicago train and 310 start walking "fast" toward the exit. He was carrying a tan zipper bag in his right hand and the left was thrust in his raincoat pocket. Marsh, accompanied by the police officer, overtook, stopped and arrested him. They then searched him and found the two "envelopes containing heroin" clutched in his left hand in his raincoat pocket, and found the syringe in the tan zipper bag. Marsh then took him (petitioner) into custody. Hereford died four days after the arrest and therefore did not testify at the hearing on the motion. 26 U. S. C. (Supp. V) § 7607, added by § 104 (a) of the Narcotic Control Act of 1956, 70 Stat. 570, provides, in pertinent part: "The Commissioner . . . and agents, of the Bureau of Narcotics . . . may ..... "(2) make arrests without warrant for violations of any law of the United States relating to narcotic drugs . . . where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation." The crucial question for us then is whether knowledge of the related facts and circumstances gave Marsh "probable cause" within the meaning of the Fourth Amendment, and "reasonable grounds" within the meaning of § 104 (a), supra,[3] to believe that petitioner had committed or was committing a violation of the narcotic laws. If it did, the arrest, though without a warrant, was lawful 311 and the subsequent search of petitioner's person and the seizure of the found heroin were validly made incident to a lawful arrest, and therefore the motion to suppress was properly overruled and the heroin was competently received in evidence at the trial. Weeks v. United States, 232 U. S. 383, 392; Carroll v. United States, 267 U. S. 132, 158; Agnello v. United States, 269 U. S. 20, 30; Giordenello v. United States, 357 U. S. 480, 483. Petitioner does not dispute this analysis of the question for decision. Rather, he contends (1) that the information given by Hereford to Marsh was "hearsay" and, because hearsay is not legally competent evidence in a criminal trial, could not legally have been considered, but should have been put out of mind, by Marsh in assessing whether he had "probable cause" and "reasonable grounds" to arrest petitioner without a warrant, and (2) that, even if hearsay could lawfully have been considered, Marsh's information should be held insufficient to show "probable cause" and "reasonable grounds" to believe that petitioner had violated or was violating the narcotic laws and to justify his arrest without a warrant. Considering the first contention, we find petitioner entirely in error. Brinegar v. United States, 338 U. S. 160, 172-173, has settled the question the other way. There, in a similar situation, the convict contended "that the factors relating to inadmissibility of the evidence [for] purposes of proving guilt at the trial, deprive[d] the evidence as a whole of sufficiency to show probable cause for the search . . . ." Id., at 172. (Emphasis added.) But this Court, rejecting that contention, said: "[T]he so-called distinction places a wholly unwarranted emphasis upon the criterion of admissibility in evidence, to prove the accused's guilt, of the facts relied upon to show probable cause. That emphasis, we think, goes much too far in confusing and disregarding the difference between what is required to prove guilt in a criminal case and what is 312 required to show probable cause for arrest or search. It approaches requiring (if it does not in practical effect require) proof sufficient to establish guilt in order to substantiate the existence of probable cause. There is a large difference between the two things to be proved [guilt and probable cause], as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them."[4] 338 U. S., at 172-173. Nor can we agree with petitioner's second contention that Marsh's information was insufficient to show probable cause and reasonable grounds to believe that petitioner had violated or was violating the narcotic laws and to justify his arrest without a warrant. The information given to narcotic agent Marsh by "special employee" 313 Hereford may have been hearsay to Marsh, but coming from one employed for that purpose and whose information had always been found accurate and reliable, it is clear that Marsh would have been derelict in his duties had he not pursued it. And when, in pursuing that information, he saw a man, having the exact physical attributes and wearing the precise clothing and carrying the tan zipper bag that Hereford had described, alight from one of the very trains from the very place stated by Hereford and start to walk at a "fast" pace toward the station exit, Marsh had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, Marsh had "reasonable grounds" to believe that the remaining unverified bit of Hereford's informationthat Draper would have the heroin with himwas likewise true. "In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, supra, at 175. Probable cause exists where "the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United States, 267 U. S. 132, 162.[5] 314 We believe that, under the facts and circumstances here, Marsh had probable cause and reasonable grounds to believe that petitioner was committing a violation of the laws of the United States relating to narcotic drugs at the time he arrested him. The arrest was therefore lawful, and the subsequent search and seizure, having been made incident to that lawful arrest, were likewise valid.[6] It follows that petitioner's motion to suppress was properly denied and that the seized heroin was competent evidence lawfully received at the trial. Affirmed. THE CHIEF JUSTICE and MR. JUSTICE FRANKFURTER took no part in the consideration or decision of this case. MR. JUSTICE DOUGLAS, dissenting. Decisions under the Fourth Amendment,[1] taken in the long view, have not given the protection to the citizen which the letter and spirit of the Amendment would seem to require. One reason, I think, is that wherever a culprit is caught red-handed, as in leading Fourth Amendment cases, it is difficult to adopt and enforce a rule that would turn him loose. A rule protective of law-abiding citizens is not apt to flourish where its advocates are usually criminals. Yet the rule we fashion is for the innocent and guilty alike. If the word of the informer 315 on which the present arrest was made is sufficient to make the arrest legal, his word would also protect the police who, acting on it, hauled the innocent citizen off to jail. Of course, the education we receive from mystery stories and television shows teaches that what happened in this case is efficient police work. The police are tipped off that a man carrying narcotics will step off the morning train. A man meeting the precise description does alight from the train. No warrant for his arrest has beenor, as I see it, could then beobtained. Yet he is arrested; and narcotics are found in his pocket and a syringe in the bag he carried. This is the familiar pattern of crime detection which has been dinned into public consciousness as the correct and efficient one. It is, however, a distorted reflection of the constitutional system under which we are supposed to live. With all due deference, the arrest made here on the mere word of an informer violated the spirit of the Fourth Amendment and the requirement of the law, 26 U. S. C. (Supp. V) § 7607, governing arrests in narcotics cases. If an arrest is made without a warrant, the offense must be committed in the presence of the officer or the officer must have "reasonable grounds to believe that the person to be arrested has committed or is committing" a violation of the narcotics law. The arresting officers did not have a bit of evidence, known to them and as to which they could take an oath had they gone to a magistrate for a warrant, that petitioner had committed any crime. The arresting officers did not know the grounds on which the informer based his conclusion; nor did they seek to find out what they were. They acted solely on the informer's word. In my view that was not enough. The rule which permits arrest for felonies, as distinguished from misdemeanors, if there are reasonable grounds for believing a crime has been or is being committed (Carroll v. United States, 267 U. S. 132, 157), 316 grew out of the need to protect the public safety by making prompt arrests. Id. Yet, apart from those cases where the crime is committed in the presence of the officer, arrests without warrants, like searches without warrants, are the exception, not the rule in our society. Lord Chief Justice Pratt in Wilkes v. Wood, 19 How. St. Tr. 1153, condemned not only the odious general warrant,[2] in which the name of the citizen to be arrested was left blank, but the whole scheme of seizures and searches[3] under "a discretionary power" of law officers to act "wherever their suspicions may chance to fall"a practice which he denounced as "totally subversive of the liberty of the subject." Id., at 1167. See III May, Constitutional History of England, c. XI. Wilkes had written in 1762, "To take any man into custody, and deprive him of his liberty, without having some seeming foundation at least, on which to justify such a step, is inconsistent with wisdom and sound policy." The Life and Political Writings of John Wilkes, p. 372. George III in 1777 pressed for a bill which would allow arrests on suspicion of treason committed in America. The words were "suspected of" treason and it was to these words that Wilkes addressed himself in Parliament. "There is not a syllable in the Bill of the degree of probability attending the suspicion. . . . Is it possible, Sir, to give more despotic powers to a bashaw of the Turkish 317 empire? What security is left for the devoted objects of this Bill against the malice of a prejudiced individual, a wicked magistrate . . . ?" The Speeches of Mr. Wilkes, p. 102. These words and the complaints against which they were directed were will known on this side of the water. Hamilton wrote about "the practice of arbitrary imprisonments" which he denounced as "the favorite and most formidable instruments of tyranny." The Federalist No. 84. The writs of assistance, against which James Otis proclaimed,[4] were vicious in the same way as the general warrants, since they required no showing of "probable cause" before a magistrate, and since they allowed the police to search on suspicion and without "reasonable grounds" for believing that a crime had been or was being committed. Otis' protest was eloquent; but he lost the case. His speech, however, rallied public opinion. "Then and there," wrote John Adams, "the child Independence was born." 10 Life and Works of John Adams (1856), p. 248. The attitude of Americans to arrests and searches on suspicion was also greatly influenced by the lettres de cachet extensively used in France.[5] This was an order emanating from the King and countersigned by a minister directing the seizure of a person for purposes of immediate imprisonment or exile. The ministers issued the lettres in an arbitrary manner, often at the request of the head of a noble family to punish a deviant son or relative. See Mirabeau, A Victim of the Lettres de Cachet, 3 Am. Hist. Rev. 19. One who was so arrested 318 might remain incarcerated indefinitely, as no legal process was available by which he could seek release. "Since the action of the government was secret, his friends might not know whither he had vanished, and he might even be ignorant of the cause of his arrest." 8 The Camb. Mod. Hist. 50. In the Eighteenth Century the practice arose of issuing the lettres in blank, the name to be filled in by the local mandatory. Thus the King could be told in 1770 "that no citizen of your realm is guaranteed against having his liberty sacrificed to revenge. For no one is great enough to be beyond the hate of some minister, nor small enough to be beyond the hate of some clerk." III Encyc. Soc. Sci. 138. As Blackstone wrote, ". . . if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown,) there would soon be an end of all other rights and immunities." I Commentaries (4th ed. Cooley) 135. The Virginia Declaration of Rights, adopted June 12, 1776, included the forerunner of the Fourth Amendment:[6] "That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted." (Italics added.) The requirement that a warrant of arrest be "supported by evidence" was by then deeply rooted in history. And it is inconceivable that in those days, when the right of 319 privacy was so greatly cherished, the mere word of an informersuch as we have in the present casewould be enough. For whispered charges and accusations, used in lieu of evidence of unlawful acts, were the main complaint of the age. Frisbie v. Butler, Kirby's Rep. (Conn.) 1785-1788, p. 213, decided in 1787, illustrates, I think, the mood of the day in the matter of arrests on suspicion. A warrant of arrest and search was issued by a justice of the peace on the oath of a citizen who had lost some pork from a cellar, the warrant stating, "said Butler suspects one Benjamin Frisbie, of Harwinton, to be the person that hath taken said pork." The court on appeal reversed the judgment of conviction, holding inter alia that the complaint "contained no direct charge of the theft, but only an averment that the defendant was suspected to be guilty." Id., at 215. Nothing but suspicion is shown in the instant casesuspicion of an informer, not that of the arresting officers. Nor did they seek to obtain from the informer any information on which he based his belief. The arresting officers did not have a bit of evidence that the petitioner had committed or was committing a crime before the arrest. The only evidence of guilt was provided by the arrest itself. When the Constitution was up for adoption, objections were made that it contained no Bill of Rights. And Patrick Henry was one who complained in particular that it contained no provision against arbitrary searches and seizures: ". . . general warrants, by which an officer may search suspected places, without evidence of the commission of a fact, or seize any person without evidence of his crime, ought to be prohibited. As these are admitted, any man may be seized, any property may be taken, in the most arbitrary manner, without any evidence or reason. Every thing the most sacred 320 may be searched and ransacked by the strong hand of power. We have infinitely more reason to dread general warrants here than they have in England, because there, if a person be confined, liberty may be quickly obtained by the writ of habeas corpus. But here a man living many hundred miles from the judges may get in prison before he can get that writ." I Elliot's Debates 588. The determination that arrests and searches on mere suspicion would find no place in American law enforcement did not abate following the adoption of a Bill of Rights applicable to the Federal Government. In Conner v. Commonwealth, 3 Binn. (Pa.) 38, an arrest warrant issued by a magistrate stating his "strong reason to suspect" that the accused had committed a crime because of "common rumor and report" was held illegal under a constitutional provision identical in relevant part to the Fourth Amendment. "It is true, that by insisting on an oath, felons may sometimes escape. This must have been very well known to the framers of our constitution; but they thought it better that the guilty should sometimes escape, than that every individual should be subject to vexation and oppression." Id., at 43-44. In Grumon v. Raymond, 1 Conn. 40, the warrant stated that "several persons are suspected" of stealing some flour which is concealed in Hyatt's house or somewhere else, and ordered the constable to search Hyatt's house or other places and arrest the suspected persons if found with the flour. The court held the warrant void, stating it knew of "no such process as one to arrest all suspected persons, and bring them before a court for trial. It is an idea not to be endured for a moment." Id., at 44. See also Fisher v. McGirr, 1 Gray (Mass.) 1; Lippman v. People, 175 III. 101, 51 N. E. 872; Somerville v. Richards, 37 Mich. 299; Commonwealth v. Dana, 2 Metc. (Mass.) 329, 335-336. 321 It was against this long background that Professors Hogan and Snee of Georgetown University recently wrote: ". . . it must be borne in mind that any arrest based on suspicion alone is illegal. This indisputable rule of law has grave implications for a number of traditional police investigative practices. The round-up or dragnet arrest, the arrest on suspicion, for questioning, for investigation or on an open charge all are prohibited by the law. It is undeniable that if those arrests were sanctioned by law, the police would be in a position to investigate a crime and to detect the real culprit much more easily, much more efficiently, much more economically, and with much more dispatch. It is equally true, however, that society cannot confer such power on the police without ripping away much of the fabric of a way of life which seeks to give the maximum of liberty to the individual citizen. The finger of suspicion is a long one. In an individual case it may point to all of a certain race, age group or locale. Commonly it extends to any who have committed similar crimes in the past. Arrest on mere suspicion collides violently with the basic human right of liberty. It can be tolerated only in a society which is willing to concede to its government powers which history and experience teach are the inevitable accoutrements of tyranny." 47 Geo. L. J. 1, 22. Down to this day our decisions have closely heeded that warning. So far as I can ascertain the mere word of an informer, not bolstered by some evidence[7] that a 322 crime had been or was being committed, has never been approved by this Court as "reasonable grounds" for making an arrest without a warrant. Whether the act complained of be seizure of goods, search of premises, or the arrest of the citizen, the judicial inquiry has been directed toward the reasonableness of inferences to be drawn from suspicious circumstances attending the action thought to be unlawful. Evidence required to prove guilt is not necessary. But the attendant circumstances must be sufficient to give rise in the mind of the arresting officer at least to inferences of guilt. Locke v. United States, 7 Cranch 339; The Thompson, 3 Wall. 155; Stacey v. Emery, 97 U. S. 642; Director General v. Kastenbaum, 263 U. S. 25; Carroll v. United States, 267 U. S. 132, 159-162; United States v. Di Re, 332 U. S. 581, 591-592; Brinegar v. United States, 338 U. S. 160, 165-171. The requirement that the arresting officer know some facts suggestive of guilt has been variously stated: "If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient." Stacey v. Emery, supra, at 645. ". . . good faith is not enough to constitute probable cause. That faith must be grounded on facts within knowledge of the . . . agent, which in the judgment of the court would make his faith reasonable." Director General v. Kastenbaum, supra, at 28. 323 Even when officers had information far more suggestive of guilt than the word of the informer used here, we have not sustained arrests without a warrant. In Johnson v. United States, 333 U. S. 10, 16, the arresting officer not only had an informer's tip but he actually smelled opium coming out of a room; and on breaking in found the accused. That arrest was held unlawful. Yet the smell of opium is far more tangible direct evidence than an unverified report that someone is going to commit a crime. And in United States v. Di Re, supra, an arrest without a warrant of a man sitting in a car, where counterfeit coupons had been found passing between two men, was not justified in absence of any shred of evidence implicating the defendant, a third person. And see Giacona v. State, 164 Tex. Cr. R. 325, 298 S. W. 2d 587. Yet the evidence before those officers was more potent than the mere word of the informer involved in the present case. The Court is quite correct in saying that proof of "reasonable grounds" for believing a crime was being committed need not be proof admissible at the trial. It could be inferences from suspicious acts, e. g., consort with known peddlers, the surreptitious passing of a package, an intercepted message suggesting criminal activities, or any number of such events coming to the knowledge of the officer. See People v. Rios, 46 Cal. 2d 297, 294 P. 2d 39. But, if he takes the law into his own hands and does not seek the protection of a warrant, he must act on some evidence known to him.[8] The law goes for to protect 324 the citizen. Even suspicious acts observed by the officers may be as consistent with innocence as with guilt. That is not enough, for even the guilty may not be implicated on suspicion alone. Baumboy v. United States, 24 F. 2d 512. The reason is, as I have said, that the standard set by the Constitution and by the statute is one that will protect both the officer and the citizen. For if the officer acts with "probable cause" or on "reasonable grounds," he is protected even though the citizen is innocent.[9] This important requirement should be strictly enforced, lest the whole process of arrest revert once more to whispered accusations by people. When we lower the guards as we do today, we risk making the role of the informerodious in our historyonce more supreme. I think the correct rule was stated in Poldo v. United States, 55 F. 2d 866, 869. "Mere suspicion is not enough; there must be circumstances represented to the officers through the testimony of their senses sufficient to justify them in a good-faith belief that the defendant had violated the law." Here the officers had no evidenceapart from the mere word of an informerthat petitioner was committing a crime. The fact that petitioner walked fast and carried a tan zipper bag was not evidence of any crime. The officers knew nothing except what they had been told by the informer. If they went to a magistrate to get a warrant of arrest and relied solely on the report of the informer, it is not conceivable to me that one would be granted. See Giordenello v. United States, 357 U. S. 480, 486. For they could not present to the magistrate any of the facts which the informer may have had. They could swear only to the fact that the informer had made the accusation. They could swear to no evidence that lay in their own knowledge. They could *325 present, on information and belief, no facts which the informer disclosed. No magistrate could issue a warrant on the mere word of an officer, without more.[10] See Giordenello v. United States, supra. We are not justified in lowering the standard when an arrest is made without a warrant and allowing the officers more leeway than we grant the magistrate. With all deference I think we break with tradition when we sustain this arrest. We said in United States v. Di Re, supra, at 595, ". . . a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success." In this case it was only after the arrest and search were made that there was a shred of evidence known to the officers that a crime was in the process of being committed.[11] NOTES [1] The Fourth Amendment of the Constitution of the United States provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [2] Hereford told Marsh that Draper was a Negro of light brown complexion, 27 years of age, 5 feet 8 inches tall, weighed about 160 pounds, and that he was wearing a light colored raincoat, brown slacks and black shoes. [3] The terms "probable cause" as used in the Fourth Amendment and "reasonable grounds" as used in § 104 (a) of the Narcotic Control Act, 70 Stat. 570, are substantial equivalents of the same meaning. United States v. Walker, 246 F. 2d 519, 526 (C. A. 7th Cir.); cf. United States v. Bianco, 189 F. 2d 716, 720 (C. A. 3d Cir.). [4] In United States v. Heitner, 149 F. 2d 105, 106 (C. A. 2d Cir.), Judge Learned Hand said "It is well settled that an arrest may be made upon hearsay evidence; and indeed, the `reasonable cause' necessary to support an arrest cannot demand the same strictness of proof as the accused's guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties." Grau v. United States, 287 U. S. 124, 128, contains a dictum that "A search warrant may issue only upon evidence which would be competent in the trial of the offense before a jury (Giles v. United States, 284 Fed. 208; Wagner v. United States, 8 F. (2d) 581) . . . ." But the principles underlying that proposition were thoroughly discredited and rejected in Brinegar v. United States, supra, 338 U. S., at 172-174, and notes 12 and 13. There are several cases in the federal courts that followed the now discredited dictum in the Grau case, Simmons v. United States, 18 F. 2d 85, 88; Worthington v. United States, 166 F. 2d 557, 564-565; cf. Reeve v. Howe, 33 F. Supp. 619, 622; United States v. Novero, 58 F. Supp. 275, 279, but the great weight of authority is the other way. See, e. g., Wrightson v. United States, 236 F. 2d 672 (C. A. D. C. Cir.); United States v. Heitner, supra (C. A. 2d Cir.); United States v. Bianco, 189 F. 2d 716 (C. A. 3d Cir.); Wisniewski v. United States, 47 F. 2d 825 (C. A. 6th Cir.); United States v. Walker, 246 F. 2d 519 (C. A. 7th Cir.); Mueller v. Powell, 203 F. 2d 797 (C. A. 8th Cir.). And see Note, 46 Harv. L. Rev. 1307, 1310-1311, criticizing the Grau dictum. [5] To the same effect are: Husty v. United States, 282 U. S. 694, 700-701; Dumbra v. United States, 268 U. S. 435, 441; Steele v. United States No. 1, 267 U. S. 498, 504-505; Stacey v. Emery, 97 U. S. 642, 645; Brinegar v. United States, supra, at 175, 176. [6] Weeks v. United States, 232 U. S. 383, 392; Carroll v. United States, 267 U. S. 132, 158; Agnello v. United States, 269 U. S. 20, 30; Giordenello v. United States, 357 U. S. 480, 483. [1] The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (Italics added.) [2] The general warrant was declared illegal by the House of Commons in 1766. See 16 Hansard, Parl. Hist. Eng., 207. [3] The nameless general warrant was not the only vehicle for intruding on the privacy of the subjects without a valid basis for believing them guilty of offenses. In declaring illegal a warrant to search a plaintiff's house for evidence of libel, issued by the Secretary of State without any proof that the named accused was the author of the alleged libels, Lord Camden said, "we can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society." Entick v. Carrington, 2 Wils. K. B. 275, 291. [4] See Quincy's Mass. Rep., 1761-1772, Appendix I, p. 469. [5] "Experience . . . has taught us that the power [to make arrests, searches and seizures] is one open to abuse. The most notable historical instance of it is that of lettres de cachet. Our Constitution was framed during the seethings of the French Revolution. The thought was to make lettres de cachet impossible with us." United States v. Innelli, 286 F. 731. [6] See also Maryland Declaration of Rights (1776), Art. XXIII; Massachusetts Constitution (1780), Part First, Art. XIV; New Hampshire Constitution (1784), Part I, Art. XIX; North Carolina Declaration of Rights (1776), Art. XI; Pennsylvania Constitution (1776), Art. X. [7] Hale, who traced the evolution of arrests without warrants in The History of the Pleas of the Crown (1st Am. ed. 1847), states that while officers need at times to act on information from others, they must make that information, so far as they can, their own. He puts a case where A, suspecting B "on reasonable grounds" of being a felon, asks an officer to arrest B. The duty of the officer was stated as follows: "He ought to inquire and examine the circumstances and causes of the suspicion of A. which tho he cannot do it upon oath, yet such an information may carry over the suspicion even to the constable, whereby it may become his suspicion as well as the suspicion of A." Id., at 91. [8] United States v. Heitner, 149 F. 2d 105, 106, that says an arrest may be made "upon hearsay evidence" was a case where the arrest was made after the defendant on seeing the officers tried to get away. Our cases cited by that court in support of the use of hearsay were Carroll v. United States, 267 U. S. 132; Dumbra v. United States, 268 U. S. 435; and Husty v. United States, 282 U. S. 694. But each of them was a case where the information on which the arrest was made, though perhaps not competent at the trial, was known to the arresting officer. [9] Maghan v. Jerome, 67 App. D. C. 9, 88 F. 2d 1001; Pritchett v. Sullivan, 182 F. 480. See Ravenscroft v. Casey, 139 F. 2d 776. [10] See State v. Gleason, 32 Kan. 245, 4 P. 363; State v. Smith, 262 S. W. 65 (Mo. App.), arising under state constitutions having provisions comparable to our Fourth Amendment. [11] The Supreme Court of South Carolina has said: "Some things are to be more deplored than the unlawful transportation of whiskey; one is the loss of liberty. Common as the event may be, it is a serious thing to arrest a citizen, and it is a more serious thing to search his person; and he who accomplishes it, must do so in conformity to the laws of the land. There are two reasons for this: one to avoid bloodshed, and the other to preserve the liberty of the citizen. Obedience to law is the bond of society, and the officers set to enforce the law are not exempt from its mandates. "In the instant case the possession of the liquor was the body of the offense; that fact was proven by a forcible and unlawful search of the defendant's person to secure the veritable key to the offense. It is fundamental that a citizen may not be arrested and have his person searched by force and without process in order to secure testimony against him. . . . It is better that the guilty shall escape, rather than another offense shall be committed in the proof of guilt." Town of Blacksburg v. Beam, 104 S. C. 146, 148, 88 S. E. 441.
360 F.2d 321 TOWN OF RADCLIFFE, IOWA, Appellant,v.P.R. CARROLL, Jr., Appellee. No. 18129. United States Court of Appeals Eighth Circuit. May 17, 1966. Michael Figenshaw, of Bradshaw, Fowler, Procter & Fairgrave, Des Moines, Iowa, made argument for appellant and filed brief with D.J. Fairgrave, Des Moines, Iowa. Robert A. Gamble, of Gamble, Riepe, Martin & Webster, Des Moines, Iowa, made argument for appellee and filed brief with B. A. Webster, Jr., Des Moines, Iowa. Before MATTHES, MEHAFFY and GIBSON, Circuit Judges. MEHAFFY, Circuit Judge. 1 This appeal is from a judgment for plaintiff based on a jury verdict in a personal injury action. Damages were awarded for injuries resulting from plaintiff's fall caused by an electrical shock from contact with a worn electrical wire on defendant's water tower. Defendant owned and maintained the water tower and had engaged plaintiff, a steeple jack, to clean and inspect the water tank. We affirm the judgment. 2 Jurisdiction is established by diversity of citizenship and the requisite amount in controversy. The substantive law of Iowa controls. 3 Plaintiff is an employee of National Tank Maintenance Corporation of Des Moines, Iowa, which contracted with defendant to clean and estimate the replacement cost of defendant's water tank. Plaintiff had completed his task and in descending contacted the uninsulated wire. The wires in question furnished electricity for a siren mounted on the tower and extended from a fuse box in an adjoining pump house. Its attachment to the tower is unclear but it entered the siren on both sides of a ladder constructed to a tower leg. It was near this siren that plaintiff was shocked. Evidence of both parties revealed that the insulation near the siren was 'weathered, old and partially bare.' There was also testimony concerning the anticipated removal of the wire from among adjacent tree branches because of worn insulation. Aside from knowledge of the wire's weathered condition near the tree and knowledg that they had been in place 'quite awhile,' there is no direct evidence that defendant knew they were bare near the siren. In any event, plaintiff was not cautioned. 4 For reversal, defendant asserts (1) the absence of evidence to justify a finding of defendant's negligence and establish plaintiff's freedom from contributory negligence; and challenges (2) the improper admission into evidence of the custom among steeple jacks of descending water towers by their supporting 'swayrods'; (3) the correctness of the District Court's charge to the jury; and (4) the application of the doctrine of res ipsa loquitur. 5 In determining whether, plaintiff established defendant's negligence and his own freedom from contributory negligence, special consideration must be given to the dangerous nature of electricity and its transmission. The character of the instrumentality is an important factor in determining whether defendant exercised reasonable or ordinary care under the circumstances. Clinton Foods, Inc. v. Youngs, 266 F.2d 116 (8th Cir. 1959), cert. denied, 361 U.S. 828, 80 S.Ct. 77, 4 L.Ed.2d 71 (1959); Iowa-Illinois Gas & Electric Co. v. Young, 179 F.2d 485 (8th Cir. 1950); Cronk v. Iowa Power & Light Co., 138 N.W.2d 843 (Iowa 1965); Beman v. Iowa Electric Co.,205 Iowa 730, 218 N.W. 343 (1928). 6 Also, the question of defendant's negligence in maintaining the agency of electrivity and plaintiff's freedom from contributory negligence are ordinarily questions for the jury. Clinton Foods, Inc. v. Youngs, supra; Iowa-Illinois Gas & Electric Co. v. Young, supra; Beman v. Iowa Electric Co.,supra; Loveless v. Town of Wilton, 193 Iowa 1323, 188 N.W. 874 (1922). So it is with the instant case. There is testimony that the wire had not been inspected or repaired prior to the accident and that at least sections were known to be weathered. Plaintiff testified that he was on the water tower ladder when he came into contact with the wire. Two eyewitnesses stated instead that plaintiff slid down a 'swayrod' and was attempting to reach the ladder when he was shocked. In addition, there was evidence that the bare wire was in plain view-- its defects apparent-- and that reasonable precautions and observation by plaintiff would have prevented his injuty. 7 In view of the higher standard of care imposed on defendant due to its maintaining the electric wires, the trial court was justified in holding that the plaintiff had presented sufficient evidence to establish a fact question regarding defendant's negligence and plaintiff's freedom from contributory negligence. Admissibility of Evidence of Custom 8 Plaintiff's witnesses testified that it is customary for steeple jacks to descend from water towers by sliding down 'swayrods' or other members of the tower's structure, rather than climb down the ladder. There was credible evidence that plaintiff had, in fact, descended part way down the tower via the swayrod. Defendant's objection to the admission of this evidence is unfounded as his theory and supporting authorities of the necessity of notice of custom within a trade deal with contract law and are not applicable in the field of negligence. 9 It is settled in Iows that evidence of the customary and usual method of performance, although not conclusive on the issue, is admissible as to whether that performance was reasonable under the circumstances. McCrady v. Sino, 254 Iowa 856, 118 N.W.2d 592 (1962); Gibson v. Shelby County Fair Ass'n., 246 Iowa 147, 65 N.W.2d 433 (1954); Johnson v. Johnson,245 Iowa 1216, 65 N.W.2d 157 (1954); Webber v. E.K.Larimer Hdwr. Co., 234 Iowa 1381, 15 N.W.2d 286 (1944). While there are exceptions of possible application to the instant case, defendant neither specified these exceptions in his objections nor offered an evidentiary basis for their sustainment. Consequently, we should not disturb the trial judge's decision to admit the evidence of custom. See Jackson v. Chicago, M. St. P. & P. R.R., 238 Iowa 1253, 30 N.W.2d 97 (1947). Jury Instructions 10 Defendant argues that the trial court erred in refusing to give defendant's requested instruction defining a landowner's duty to an invitee. This duty was adequately defined and discussed in another instruction, and since they must be considered as a whole, we will not reverse absent flagrant error such as in an instruction that when read even with others continues to give the jury an erroneous rule of law. Here, the challenged instruction deals with plaintiff's theory of the case and such instruction is always proper when there is substantial evidence to support it. Kuehn v. Jenkins, 251 Iowa 718, 100 N.W.2d 610 (1960); Kempe v. Bennett, 134 Iowa 247, 111 N.W. 926 (1907). Applicability of Res Ipsa Loquitur 11 The defendant contends that the doctrine of res ipsa loquitur has no application here as the cause of plaintiff's injury is known, i.e., the fall occasioned by the electric shock from the bare wire. Additionally, defendant asserts that evidence surrounding plaintiff's injury was as accessible to plaintiff as to defendant, thus negating the underlying basis for the doctrine. Augspurger v. Western Auto Supply Co., 134 N.W.2d 913 (Iowa 1965) and Eaves v. City of Ottumwa, 240 Iowa 956, 38 N.W.2d 761, 11 A.L.R.2d 1164 (1949). 12 However, we find considerable support for application of the doctrine in cases factually similar to the instant case. See Orr v. Des Moines Electric Light Co., 213 Iowa 127, 238 N.W. 604 (1931); Beman v. Iowa Electric Co., supra; Duncan v. Fort Dodge Gas and Electric Co., 193 Iowa 1127, 188 N.W. 865 (1922). 13 Defendant's attempt to distinguish the instant case from the Iowa general rule is unsuccessful. While it is true that res ipsa would not apply when the precise cause of the injury is known, it is necessary to go beyond showing the physical cause of the injury and disclose the actionable cause or the precise negligent act or failure to act proximately resulting in injury. Applied to the facts at hand, it is obvious that plaintiff's injurious fall was caused by his contact with a bare electric wire. However, the actionable cause, if one exists, could be failure to shut off the current during maintenance, use of excessive current, failure to inspect and repair a dangerous agency, of failure to warn. This is the ultimate fact to be found by the jury under the doctrine of res ipsa and its resulting presumption. In the cases cited by plaintiff in which res ipsa applied, the physical cause of the injury-- either a bare or overloaded electric wire-- was known, but the doctrine applied to require defendant to rebut the presumption that he was negligent in allowing the physical cause to exist. 14 In addition, the evidence of the actionable cuase of the injury is more accessible to defendant than to plaintiff. The municipal officials were certainly in a better position to know the danger in the situation and whose duty it was if not its own, to maintain the wires or shut off the current when men were working. If the city had any defense, they could have come forward with it. Failing to do so, their objection to the doctrine of res ipsa should not be heard. 15 The judgment is affirmed.
275 Cal.App.2d 743 (1969) JAMES B. CLACK, Plaintiff and Appellant, v. THE STATE OF CALIFORNIA ex rel. DEPARTMENT OF PUBLIC WORKS, Defendant and Respondent; COUNTY OF BUTTE, Intervener and Respondent. Civ. No. 11948. California Court of Appeals. Third Dist. Aug. 20, 1969. Dinkelspiel & Dinkelspiel, John F. Taylor and Gary J. Shapiro for Plaintiff and Appellant. Harry S. Fenton, Benjamin Hagan, Jr., John D. Reynen, Kingsley T. Hoegstedt and Orrin T. Finch for Defendant and Respondent. George P. Kading, County Counsel, for Intervener and Respondent. FRIEDMAN, Acting P. J. This is a breach of contract action against the state growing out of disputes over performance of a highway construction project.plaintiff sues both as a subcontractor and as assignee of the general contractor. The trial court denied plaintiff's motion for leave to amend his complaint and granted the state's motion for judgment on the pleadings.plaintiff appeals from the ensuing judgment. [1] The complaint seeks damages for alleged breach of an implied warranty of correctness of the plans and specifications, for misrepresentation of project conditions and for unjustified change orders. The complaint alleges that plaintiff gave notice of his claim as required by the state "and said claim was denied by defendant [state] in its entirety." The state's motion for judgment on the pleadings was aimed primarily at the last quoted allegation. In support of its motion the state relied upon section 9(f) of the Standard Specifications of the State Division of Highways, a part of the contract. Section 9(f) provides for the administrative settlement of disputed contract items by the state highway engineer, whose determination shall be "conclusive and binding ... except in the case of gross error." The state pointed out that the complaint failed to allege facts constituting gross error. Plaintiff then countered with notice of a motion for leave to amend his complaint by adding the following allegation: "The denial of said claim by defendant's State Highway Engineer was the result of gross error insofar as said claim related to plaintiff's performance of the contract, the amount of work done thereunder, and plaintiff's just compensation therefor, in that said denial was arbitrary and contrary to the weight of the evidence." The trial court entered a written order granting the state's motion and denying plaintiff's, for the reason that the complaint 746 and the proposed amendment failed to plead "gross error" in the sense of fraud, constructive fraud or bad faith.plaintiff had conceded that it could not prove fraud or bad faith on the part of the State Highway Engineer. Although plaintiff had not pleaded section 9(f) of the state's general specifications, it is deemed a judicially noticed part of the pleadings. (E. H. Morrill Co. v. State of California (1967) 65 Cal.2d 787, 794-795 [56 Cal.Rptr. 479, 423 P.2d 551]; A. Teichert & Son, Inc. v. State of California (1965) 238 Cal.App.2d 736, 742 [48 Cal.Rptr. 225].) This court considered this precise provision of the state's highway contracts in A. Teichert & Son, Inc. v. State of California, supra. [fn. 1] We held that section 9(f) establishes a non-judicial remedy for the settlement of disputed contract claims; that this remedy must be pursued to completion before recourse to the courts; that the provision has an impact on the scope of judicial inquiry. (238 Cal.App.2d at pp. 744-747, 753.) Although eschewing any attempt at a comprehensive delineation of the gross error concept, we called attention to decisions equating it with fraud, constructive fraud, bad faith or failure to exercise honest judgment, as well as decisions rejecting the administrative determination when it was arbitrary. (238 Cal.App.2d at pp. 754-757.) A similar provision in nonhighway construction contracts of the state was construed in Macomber v. State (1967) 250 Cal.App.2d 391 [58 Cal.Rptr. 393]. There the court referred to Teichert and other cases equating gross error with fraud or bad faith, then stated (250 Cal.App.2d at p. 397): "Fraud in this connection has a broader connotation than is ordinarily implied. In addition to its ordinary significance, in construction contracts it includes arbitrary action and gross mistake (13 Am.Jur.2d, Building and Construction Contracts, 34; Restatement of the Law, Contracts, 303, subd. (f).)" [2] The boundaries of the phrase "gross error" fix the degree of finality accorded the enginer's administrative decision and correlatively establish the scope of judicial review. To require dishonesty or bad faith as indispensable elements 747 stamps the decision with more finality and constricts judicial review more narrowly than the phrase permits. Both Teichert and Macomber include arbitrariness within the connotation of gross error. The engineer's decision may entail interpretation of the contract language or specifications; application of a rule of law, or of a contract interpretation, to agreed facts; or a resolution of disputed facts. Whatever his honesty, any of these decisions may be so groundless that no impartial, reasoning arbiter would agree with it. An action is arbitrary when it is based on no more than the will or desire of the decision-maker and not supported by a fair or substantial reason (Bedford Inv. Co. v. Folb (1947) 79 Cal.App.2d 363, 366 [180 P.2d 361]; State ex rel. Cosmopolis Consol. School Dist. v. Bruno (1963) 61 Wn.2d 461 [378 P.2d 691, 696]; see Jaffe, Judicial Review: Question of Fact, 69 Harv.L.Rev. 1020, 1021 (1956)). In the context of fact- finding, arbitrariness characterizes the decision when it lacks substantial support in the evidence. (McDonough v. Goodcell (1939) 13 Cal.2d 741, 749 [91 P.2d 1035, 123 A.L.R. 1205]; Riley v. Chambers (1919) 181 Cal. 589, 595 [185 P. 855, 8 A.L.R. 418]; Hollon v. Pierce (1967) 257 Cal.App.2d 468, 478 [64 Cal.Rptr. 808].) Fraud or bad faith, as morally reprehensible qualities, are not necessary attributes of arbitrariness, hence are not indispensable ingredients of gross error. United States v. Wunderlich (1951) 342 U.S. 98, 99 [96 L.Ed. 113, 115, 72 S.Ct. 154], involved a federal public works contract which gave finality to the engineer's decision without any express exceptions for fraud or gross error. The court read into the contract an exception for fraud in the sense of an intention to cheat, but refused to reexamine the engineer's decision for arbitrariness. A few years later Congress supplanted the Supreme Court's decision by adoption of the Wunderlich Act (68 Stat. 81 (1954) 41 U.S.C.A. 321), giving finality to the administrative decision "unless the same is fraudulent [sic] or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence." The California courts have not had occasion to consider the Wunderlich Act's criteria of finality as judicially declared doctrine. Although the act applies only to federal contracts, Professor Arthur Corbin has suggested: "... the rule that it lays down should be applied in all contract cases alike as a 748 rule of the common law, including equity. The court should not overlook their powers as successors of the Court of Chancery." (3A Corbin on Contracts (1960) 652, p. 129.) The federal statutory criteria are consistent with the Teichert and Macomber decisions, which recognize arbitrariness as a variety of gross error, and with other California decisions, supra, recognizing lack of substantial evidentiary support as one kind of arbitrariness. [fn. 2] The substantial evidence rule, moreover, has been highly developed and refined as a standard of appellate review of trial court findings [fn. 3] and of judicial review of the findings of administrative agencies. [fn. 4] Thus absorbing it as one kind of gross error which permits review of the administrative settlement of public contract disputes is eminently practical. Although the trial court erred in requiring allegations of fraud or bad faith, there is still a question as to the adequacy of plaintiff's proposed amendments. [3] Where a condition precedent to contractual recovery is an event, as distinguished from an act to be performed by the plaintiff, the complaint must specifically allege the event. (Byrne v. Harvey (1962) 211 Cal.App.2d 92, 113 [27 Cal.Rptr. 110], quoting Witkin, Cal. Procedure (1954) Pleading, 261, p. 1237.) [4] Where a fact is pleaded in general or conclusionary terms, followed by an inconsistent specific allegation, the latter controls. (Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416, 422 [282 P.2d 890]). Plaintiff's proposed amendment declared that the State Highway Engineer's denial of the claims "was the result of gross error ... in that said denial was arbitrary and contrary to the weight of the evidence." Gross error and arbitrariness fall into the class of allegations which combine 749 factual connotations and legal implications. They are relatively large and vague terms, quite inadequate to inform the opposite party of the actual deficiency which may be urged at the trial. [5] Thus, for pleading purposes, gross error and arbitrariness should be classed as legal conclusions, inadequate to support the pleadings unless accompanied by more specific averments. (1 Chadbourn, Grossman, & Van Alstyne, California Pleading, 866, 867.) [fn. 5] [6] Plaintiff's conclusionary allegations of gross error and arbitrariness were not supported, indeed were contradicted, by his specific averment of an engineer's decision contrary to the weight of the evidence. Judicial review which extends to reweighing the evidence denotes the reviewing tribunal's power to try the entire controversy de novo, to exercise its independent judgment on the evidence. (Nardoni v. McConnell (1957) 48 Cal.2d 500, 503 [310 P.2d 644]; Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 308, 316 [196 P.2d 20].) The parties had contracted to lay their disputes before an arbiter whose very position evidenced professional skill, as well as long experience and practical familiarity with highway construction problems. Although employed by one of the contracting parties, he was bound to exercise impartial judgment. (Macomber v. State of California, supra, 250 Cal.App.2d at p. 398; A. Teichert & Son, Inc. v. State of California, supra, 238 Cal.App.2d at p. 757.) The parties chose a settlement at his hands in preference to adjudication by a court, reserving the latter's availability for the relatively narrow contingency of gross error. Independent, de novo consideration by the court would deprive the administrative settlement of the degree of finality accorded it by the contracting parties. (Cope v. Beaumont (3d Cir. 1910), 181 F. *750 756, 758-759 [104 C.C.A. 292]; Bush v. Jones (3d Cir. 1906) 144 F. 942, 947 [75 C.C.A. 582, 6 L.R.A. N.S. 774]; Mayer v. East Side Logging Co. (1929) 130 Ore. 341 [278 P. 957, 961]; City of San Antonio v. McKenzie Constr. Co. (1941) 136 Tex. 315 [150 S.W.2d 989, 996]; see also, McDonough v. Goodcell, supra, 13 Cal.2d at p. 749.) Since plaintiff's specific assertion of a decision contrary to the weight of the evidence was inconsistent with his conclusionary allegations of gross error and arbitrariness, the proposed amendment failed to cure the deficiency in the complaint. [7] An appeal from a judgment on the pleadings is reviewed as though it were a judgment of dismissal after a general demurrer had been sustained. (Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 275 [239 P.2d 630].) The order granting a defense judgment on the pleadings was the equivalent of one sustaining a general demurrer without leave to amend. (Budrow v. Wheatcraft (1953) 115 Cal.App.2d 517, 522 [252 P.2d 637].) If there was any reasonable possibility that plaintiff might state a good cause of action, he should have been given an opportunity to amend. (Youngman v. Nevada Irr. Dist. (1969) 70 Cal.2d 240, 245 [74 Cal.Rptr. 398, 449 P.2d 462]; Hardy v. Admiral Oil Co. (1961) 56 Cal.2d 836, 841-842 [16 Cal.Rptr. 894, 366 P.2d 310].) The deficiency in plaintiff's proposed amendment was traceable to an erroneously selected theory of law and did not foreclose the conceivable availability of adequate facts. Accordingly, the court erred in entering judgment on the pleadings. Judgment reversed with directions to permit plaintiff an opportunity to amend his complaint. Regan, J., and Janes, J., concurred. NOTES [fn. 1] 1. In E. H. Morrill Co. v. State of California, supra, 65 Cal.2d at page 792, the Supreme Court disapproved "any implications" in the Teichert decision which narrowed the effect of language in the state's contract disclaiming responsibility for physical data compiled for the information of bidders. We find no such "implications" in Teichert. Nevertheless, the Supreme Court's disapproval had no connection with those phases of the Teichert opinion which are pertinent here. [fn. 2] 2. The variety of verbal signals used to open the gate to judicial review and the comparative unreliability of these signals is illustrated by Terminal Constr. Corp. v. Bergen County etc. Authority (1955) 18 N.J. 294 [113 A.2d 787, 799].) There the court reached a result parallel to ours, but by viewing the engineer's arbitrary action and gross mistake as varieties of fraud. See also 17A C.J.S. 748, text accompanying footnotes 36.10-36.25. [fn. 3] 3. See, e.g., People v. Bassett (1968) 69 Cal.2d 122, 138-139 [70 Cal.Rptr. 193, 443 P.2d 777]; Estate of Teed (1952) 112 Cal.App.2d 638, 644 [247 P.2d 54]; Jaffe, op. cit. supra, 69 Harv. L.Rev. at pp. 1025-1031. [fn. 4] 4. See, e.g., Universal Camera Corp. v. N.L.R.B. (1951) 340 U.S. 474 [95 L.Ed. 456, 71 S.Ct. 456]; Martin v. Alcoholic Beverage etc. Appeals Board (1959) 52 Cal.2d 238, 246 [340 P.2d 1]; Argonaut Ins. Exchange v. Industrial Acc. Com. (1958) 49 Cal.2d 706, 713 [321 P.2d 460]; 4 Davis, Administrative Law Treatise, 29.02. [fn. 5] 5. Although this damage action may be regarded as one involving judicial review, and certain issues may be classed as conclusions of law for pleading purposes, these characterizations do not necessarily foreshadow the segregation of law issues from fact issues after the evidence is in. Most of the decisions assume that the award of damages by the jury necessarily enmeshes the jury in the business of finding that the administrator's decision is arbitrary or, what is the same thing, lacks substantial evidence. (Macomber v. State of California, supra, 250 Cal.App.2d at pp. 398-399; Terminal Constr. Corp. v. Bergen County etc. Authority, supra, 113 A.2d at pp. 801, 804; James I. Barnes Constr. Co. v. Washington Township (1962) 134 Ind.App. 461 [184 N.E.2d 763, 764-766]; see generally, Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 Cal. L.Rev. 1867 (1966). The present appeal reaches us at the pleading stage. Hence we do not venture into the allocation of finding functions between judge and jury.
FILED NOT FOR PUBLICATION JUN 22 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT PATRICIA A. LONG, No. 09-35281 Plaintiff - Appellant, D.C. No. 2:08-cv-00071-FVS v. PEND OREILLE COUNTY SHERIFF’S MEMORANDUM * DEPARTMENT; et al., Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Washington Fred Van Sickle, District Judge, Presiding Submitted May 25, 2010 ** Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges. Patricia A. Long appeals pro se from the district court’s summary judgment for defendants in her 42 U.S.C. § 1983 action alleging that defendants violated her constitutional rights by entering her house to gather documents pursuant to a court order in connection with guardianship proceedings for a previous resident of the * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 09-35281 house. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Huseman v. Icicle Seafoods, Inc., 471 F.3d 1116, 1120 (9th Cir. 2006). We affirm. The district court properly granted summary judgment for defendants because Long failed to raise a genuine issue of material fact as to whether sheriff’s deputies were acting under the special needs exception to the Fourth Amendment’s warrant requirement. See Henderson v. City of Simi Valley, 305 F.3d 1052, 1061 (9th Cir. 2002) (affirming summary judgment for police officers under the special needs exception where, pursuant to a court order, officers accompanied daughter to mother’s home to keep the peace while daughter retrieved belongings). Because Long failed to establish that the deputies violated her constitutional rights, summary judgment for the sheriff and the sheriff’s department also was proper. See Quintanilla v. City of Downey, 84 F.3d 353, 355-56 (9th Cir. 1996) (plaintiff could not recover on a § 1983 claim against city or police chief absent underlying violation of his constitutional rights). The district court properly granted summary judgment as to the guardian ad litem and her assistant because, as a matter of law, they are not state actors. See Kirtley v. Rainey, 326 F.3d 1088, 1095-96 (9th Cir. 2003) (a guardian ad litem appointed by a Washington court was not a state actor under § 1983). 2 09-35281 The district court did not abuse its discretion by denying Long’s request for an extension of time to conduct discovery. Long had been granted an extension previously but had not propounded discovery. See Margolis v. Ryan, 140 F.3d 850, 853-54 (9th Cir. 1998) (upholding denial of Rule 56(f) discovery motion where “appellants failed to identify facts, either discovered or likely to be discovered, that would support their § 1983 claim”). AFFIRMED. 3 09-35281
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 01-7510 COREY JERMAINE MAPP, Petitioner - Appellant, versus RONALD J. ANGELONE, Director of the Virginia Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (CA-01-26-2) Submitted: December 20, 2001 Decided: January 9, 2002 Before LUTTIG, TRAXLER, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. Corey Jermaine Mapp, Appellant Pro Se. Thomas Drummond Bagwell, Assistant Attorney General, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Corey Jermaine Mapp appeals the district court’s order adopt- ing the magistrate judge’s recommendation and dismissing his peti- tion filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 2001) as time-barred under the Antiterrorism and Effective Death Penalty Act (AEDPA). We have reviewed the record and the district court’s opinion and find no reversible error. See Hernandez v. Caldwell, 225 F.3d 435 (4th Cir. 2000). Further, we conclude Mapp is not entitled to equitable tolling of the AEDPA’s one-year limitations period. See Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000). Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2
815 F.2d 83 U.S.v.Coleman 86-1161 United States Court of Appeals,Ninth Circuit. 4/7/87 1 E.D.Cal. AFFIRMED
731 F.2d 886 Swiftv.U.S. Border Patrol* NO. 83-2484 United States Court of Appeals,fifth Circuit. APR 04, 1984 Appeal From: S.D.Tex.,578 F.Supp. 35 1 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2
FILED UNITED STATES COURT OF APPEALS JUL 02 2014 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS HARDEV SINGH, No. 10-70860 Petitioner, Agency No. A077-424-794 v. ORDER ERIC H. HOLDER, Jr., Attorney General, Respondent. Before: SCHROEDER and CALLAHAN, Circuit Judges, and PRATT, Senior District Judge.* The government’s unopposed motion to amend decision is GRANTED. The last sentence of the disposition will be amended to add “and the case is REMANDED to the Board of Immigration Appeals.” * The Honorable Robert W. Pratt, Senior United States District Judge for the Southern District of Iowa, sitting by designation.
145 Ga. App. 112 (1978) 243 S.E.2d 88 CONTINENTAL INSURANCE COMPANY v. ECHOLS et al. 54965. Court of Appeals of Georgia. Argued January 16, 1978. Decided February 8, 1978. Rehearing Denied March 2, 1978. Swift, Currie, McGhee & Hiers, Clayton H. Farnham, for appellant. Rich, Bass, Kidd, Witcher & Billington, Casper Rich, for appellees. BELL, Chief Judge. Plaintiffs brought separate suits to recover on judgments they had obtained against a known uninsured motorist. The defendant insurer pleaded that plaintiffs had not established legal liability of an uninsured motorist as required by Code Ann. § 56-407.1 (g). The cases were consolidated for trial. The court made findings of fact and conclusions of law and entered judgments in favor of plaintiffs. The defendant appeals. The pertinent facts were stipulated. The plaintiffs were insured under a policy containing uninsured motorist coverage. They were injured in a collision with a known uninsured motorist and a suit was filed against the latter. The uninsured retained her own counsel who answered the complaint by general denial. The defendant carrier was also served but it elected to file no defensive pleadings in its own name as it was authorized to do by Code Ann. § 56-407.1. The case came on for trial and the attorney for the operator of the uninsured vehicle confessed judgment in respective amounts for each plaintiff and a judgment was entered accordingly. A prior appeal was taken from this judgment. In the prior case we held that the insurer by not filing any pleadings did not become a party to the case and any defenses that it could have asserted were of no consequence in that suit; and that the uninsured operator's private attorney was authorized to confess judgment. Londeau v. Davis, 136 Ga. App. 25 (220 SE2d 43). Held: As a defense in this suit, the insurer argues that it was not bound by the judgment in the other case between the plaintiffs and the third-party uninsured tortfeasor. Defendant cites Code Ann. § 56-407.1 (g) which states in part that the insured in order to recover under the uninsured motorist coverage must establish "legal liability." Defendant asks us to construe this statutory language to require a "trial of the issues" as between the insured and the uninsured in order to bind the carrier to damages and since the other case resulted in a judgment based on a confession of judgment, there has been no trial *113 on the issues. A judgment obtained against the uninsured motorist is a condition precedent to recovery against an automobile liability carrier under the provisions of uninsured motorist coverage. State Farm Mut. Auto. Ins. Co. v. Girtman, 113 Ga. App. 54 (147 SE2d 364). Here a judgment was obtained against the known uninsured motorist. Plaintiffs fulfilled the condition precedent and "legal liability" for recovery under the cited portion of the statute was shown. The phrase "legal liability" in the statute means exactly what transpired here, viz., the securing of a judgment against the uninsured motorist. A statute should be given logical meaning unless a contrary legislative intent plainly and unequivocally appears from the statute and must square with common sense and sound meaning. Sale v. Leachman, 218 Ga. 834 (131 SE2d 185). To adopt the defendant's construction would require us to violate these rules of statutory construction. Defendant is attempting to relitigate issues that have been adjudicated and adjudicated finally. This cannot be done. The findings of fact and conclusions of law were authorized and the judgments are affirmed. Judgments affirmed. Shulman and Birdsong, JJ., concur.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 15a0264n.06 Case Nos. 14-5325/5519/5674 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ROBERT W. BRADFORD (14-5325), ) ) Plaintiff-Appellant, ) FILED ) Apr 13, 2015 DEBORAH S. HUNT, Clerk v. ) ) LVNV FUNDING, LLC; TOBIE GRIFFIN; ) BUFFALOE & ASSOCIATES, ) ) Defendants-Appellees; ) ___________________________________ ) CARL R. SELLS (14-5519), ) ) Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE EASTERN DISTRICT OF ) TENNESSEE STEVE HAWKINS; HOSTO & BUCHAN; ) LVNV FUNDING, LLC, ) ) Defendants-Appellees; ) ___________________________________ ) WILLIAM H. MELVIN (14-5674), ) ) Plaintiff-Appellant, ) ) v. ) ) PYOD, LLC; TOBIE GRIFFIN, ) ) Defendants-Appellees. ) ____________________________________/ Case Nos. 14-5325/5519/5674, Bradford v. LVNV Funding, LLC, et al. Before: Keith, Merritt, and Boggs, Circuit Judges. MERRITT, Circuit Judge. This consolidated appeal presents a single question of Tennessee state debt-collection law that creates in turn a problem under the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. The various debtor-plaintiffs below alleged multiple violations of the Federal Act, one of which turned on alleged violations of a state licensing statute that also covers debt collection services. The district court granted summary judgment to the defendants on all counts, and the plaintiffs appealed on a narrow question governed by a point of Tennessee law: specifically, whether the Tennessee statute required these defendants to be licensed as “collection services” before they purchased debts and used attorneys or licensed collection services to collect on those debts. Because we determine that the district court properly applied Tennessee law to the facts of this case, we affirm the judgment of the district court. The underlying dispute involves litigation over plaintiffs’ debts purchased by defendants. The plaintiffs below alleged that the defendants made a practice of purchasing questionable debts and then filing suit against the named debtors, including the plaintiffs in this case. Under the plaintiffs’ theory, if an accused debtor appeared in court to contest the debt, the defendant holders of the debt then just dismissed the action as a matter of course. When an accused debtor failed to appear, the resulting default judgment made it easier for the debt-holders to pursue collection. In essence, the plaintiffs claimed the defendants were using a default-judgment-only litigation strategy to convert potentially bad debts into more robust, collectable judgments. The plaintiffs argued this pursuit of default-only judgments violated provisions of the Federal Act that prohibit using “any false, deceptive, or misleading representation or means in connection -2- Case Nos. 14-5325/5519/5674, Bradford v. LVNV Funding, LLC, et al. with the collection of any debt.” 15 U.S.C. § 1692e. The potentially deceptive practice was filing debt-collection lawsuits with no intention of pursuing any claims beyond default judgment. The Federal Act targets “a wide array of unfair, harassing, deceptive, and unscrupulous collection practices by debt collectors.” Currier v. First Resolution Inv. Corp., 762 F.3d 529, 532 (6th Cir. 2014). It bans not only outright falsehoods, but also any “‘false, deceptive, or misleading’ debt-collection practices.” Buchanan v. Northland Grp., Inc., 776 F.3d 393, 396 (6th Cir. 2015) (quoting 15 U.S.C. § 1692e). The Federal Act specifically outlaws “[t]he threat to take any action that cannot legally be taken or that is not intended to be taken.” 15 U.S.C. § 1692e(5). While “Congress did not turn every violation of state law into a violation of the [Federal Act] . . . [t]he legality of the action taken under state law may be relevant, as it is in this case.” Currier, 762 F.3d at 537 (citations omitted). Although the theory at the core of the plaintiffs’ initial complaint cast the alleged default- judgment-only litigation strategy as a threat to take action that was “not intended to be taken”— i.e., to pursue more fulsome litigation—this appeal focuses on an alternative theory that casts the filing of those suits by unlicensed debt-holders as “action that cannot legally be taken.” Thus, on the narrow appeal before us, the plaintiffs can prevail only if the defendants violated Tennessee law and that violation made their conduct “false, deceptive, or misleading.” The Tennessee Collection Service Act, Tenn. Code Ann. § 62-20-101 et seq., has regulated debt collection in Tennessee since it was enacted in 1981. The Tennessee Act requires “collection services” to obtain a license from the Tennessee Collection Service Board before engaging in any “collection activities”—an undefined term—on behalf of themselves or any clients. The district court in these cases agreed with the defendants that “the licensing requirement applies only to those persons who actually involve themselves in, or take part in, the -3- Case Nos. 14-5325/5519/5674, Bradford v. LVNV Funding, LLC, et al. act of collecting” and not to investors who rely on others to collect on the debts they hold. Bradford v. LVNV Funding, LLC, 3 F. Supp. 3d 708, 719 (E.D. Tenn. 2014). While the district court based this conclusion on the Tennessee Act alone, its judgment conformed to an opinion issued by the state board charged with implementing the statute and issuing the licenses. See id. at 713, 718–19. During this appeal, the Tennessee legislature revisited the Tennessee Collection Service Act. Effectively endorsing the state board’s interpretation, the legislature indicated that the state law did not apply to “[a]ny person that holds or acquires accounts, bills or other forms of indebtedness . . . and only engages in collection activity through the use of a licensed collection agency or an attorney authorized to practice law in this state.” Act of May 22, 2014, 2014 Tenn. Pub. Acts ch. 996 § 2 (codified at Tenn. Code Ann. § 62-20-103(a)(9)). The legislature further indicated that it did not intend to change the substance of the prior law, but only to “clarify the statute and policies of the collection services board” and “provide a restatement of the statute and policies as the statute existed prior to the passage of [the amendment].” Id. at § 5. This legislation reinforces the already compelling district court analysis placing these defendants outside the scope of the state licensing requirements. For these reasons and those contained in the district court opinion, the judgment of the district court is affirmed. -4-
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 06-3679 ___________ United States of America, * * Appellee, * * v. * * Jaime Lamon Esquivel, * * Appellant. * ___________ Appeals from the United States No. 06-3681 District Court for the ___________ District of Nebraska. United States of America, * * Appellee, * * v. * * Ricardo Esquivel, Jr., * * Appellant. * Submitted: April 10, 2007 Filed: November 19, 2007 ___________ Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges. ___________ SHEPHERD, Circuit Judge. Following the district court’s1 denial of their motions to suppress evidence, Jaime Esquivel (Jaime) and Ricardo Esquivel, Jr. (Ricardo) pled guilty to possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1), reserving their right to appeal the suppression ruling. From the denial of their motions to suppress, Jaime and Ricardo appeal. Their appeals are consolidated. We affirm. I. On January 20, 2006, Nebraska State Trooper Jeff Roby stopped a vehicle driven by Jaime because the vehicle had no license plates and the trooper could not observe a temporary registration permit or in-transit sticker on the vehicle. At the time of the stop, Ruben Nunez and Ricardo were passengers in the vehicle. When the trooper approached the vehicle, he asked to see Jaime’s driver’s license and the vehicle registration. While Jaime was retrieving the requested documentation, Trooper Roby noticed a document or “sticker” affixed to the bottom right side of the inside of the windshield, which was later identified as a valid Nevada temporary vehicle registration permit with an expiration date of January 29, 2006. Trooper Roby testified that immediately after his initial look at the document, he believed the document affixed to the passenger side windshield was issued from the Nevada Department of Motor Vehicles. Jaime then gave Trooper Roby his California driver’s license and the rental documentation for the vehicle. The rental documentation revealed that the vehicle was rented in Las Vegas, Nevada, by Nunez. Jaime was listed as an authorized additional driver on the rental agreement. Trooper Roby explained that he had stopped the vehicle because the vehicle had no license plates. 1 The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska, adopting the report and recommendations of the Honorable David L. Piester, United States Magistrate Judge for the District of Nebraska. -2- He stated that he would have to take a look at the “sticker” to see if it was expired “or what the story is with that.”2 After examining the rental documentation for the date, make, model, VIN number and other identifying information, Trooper Roby directed Jaime to the front passenger seat of his patrol car to issue a written warning and to further inspect the rental documentation. While he reviewed the paperwork, ran Jaime’s driver’s license and performed a criminal history check, Trooper Roby conversed with Jaime about his travel activities and plans. Jaime told Trooper Roby that he and his two nephews, Ricardo and Nunez, were on their way to a family wedding in Chicago. He said they traveled from El Centro, California, to Las Vegas, Nevada, in Nunez’s truck. Jaime stated that the three gambled at the Queen’s Casino, spent the night in Las Vegas, and rented the vehicle in Las Vegas. Dispatch then advised Trooper Roby that Jaime’s driver’s license was valid and he had no active warrants. However, dispatch also advised Trooper Roby that Jaime had a history of an immigration violation charge, several marijuana smuggling charges, an assault charge and a drunk driving conviction. Trooper Roby advised Jaime that the permit on the windshield looked “okay.” Roby further explained that, although it was not Jaime’s fault, the vehicle needed license plates. Trooper Roby then left Jaime in the patrol car and spoke with the passengers, Ricardo and Nunez, obtained their driver’s license and identification cards, and discussed the details of their trip with them. The passengers provided Trooper Roby with a different account of the trip than did Jaime. For example, the passengers said that they gambled only briefly while in Las Vegas, did not spend the night in Las Vegas, and named a 2 Government Exhibit One introduced at the suppression hearing is the videotape of the stop and ensuing events recorded from the dash mounted camera on Roby’s patrol car. The videotape includes audio of the interchange between Roby and the appellants. -3- different casino as the location of their gambling activities. Trooper Roby then returned to his vehicle and conducted a driver’s license and warrant check on the two passengers. While waiting for dispatch to provide the requested information on the passengers, Trooper Roby began filling out a written warning and asked Jaime detailed questions about his travel plans, the exact date of the wedding, and his criminal history. Jaime told the officer about his past driving under the influence and marijuana smuggling charges. While the passengers said that the wedding was on Friday, Jaime told the trooper that the wedding was on Saturday. When he was advised that the passengers had no outstanding warrants, Trooper Roby completed the written warning, asked Jaime to sign for the document and handed the warning ticket to Jaime, telling him that they “were done with the traffic stop” and to have a safe trip. Trooper Roby then asked Jaime if he would agree to answer further questions, to which Jaime agreed. At that point, the trooper asked Jaime if there was marijuana, methamphetamine, or cocaine in the car. Jaime denied that such substances were in the vehicle. The trooper then asked for and received verbal consent to search the vehicle from Jaime, Ricardo, and Nunez. Other officers then arrived to assist Trooper Roby. One of the other officers, Sergeant Duis, arrived with his K-9 partner and performed a walk-around search on the exterior of the vehicle. The K-9 alerted at the rear of the vehicle. The officers then began a physical search of the vehicle and found heroin in the shape of shoe insoles inside the car. When the defendants were placed under arrest, heroin was also located inside the shoes they were wearing. After being Mirandized, Jaime and Ricardo stated that they were transporting five pairs of shoe insoles containing heroin. Jaime, Ricardo and Nunez each wore a pair of the insoles and the remaining two pairs of insoles, which also contained heroin, were hidden in the rear of the car. Jaime, Ricardo, and Nunez were indicted for possession with intent to distribute heroin. 21 U.S.C. § 841(a)(1). The defendants jointly moved to suppress the -4- evidence seized from the vehicle in which they were traveling. Following a suppression hearing, the magistrate judge recommended that the motion be denied, concluding that: the traffic stop was valid; that the officers had reasonable suspicion to warrant extending the stop; that Jaime and Ricardo voluntarily consented to the search; and, such voluntary consent purged the taint of any illegal detention. This recommendation was adopted by the district court. The defendants conditionally entered pleas of guilty subject to this appeal of the denial of the suppression motion. II. Jaime and Ricardo concede the validity of the initial traffic stop of the vehicle for no license plates and no visible temporary registration permit. See United States v. Bueno, 443 F.3d 1017, 1024-25 (8th Cir. 2006) (neither mistake of law or fact render traffic stop illegal as long as actions of officer were objectively reasonable under the circumstances; because lack of license plate or temporary registration would have constituted violation of state law, officers had reasonable suspicion to stop the vehicle); United States v. Ehrmann, 421 F.3d 774, 780 (8th Cir. 2005), cert. denied, 126 S. Ct. 1099 (2006) (traffic violations, however minor, create probable cause to stop vehicle). However, the appellants argue that: (1) the investigation which followed the traffic stop was excessive in length and scope, and (2) the appellants’ consent to a search of the vehicle did not “purge the taint of the illegal detention.” In an appeal of a denial of a motion to suppress evidence, the district court’s factual determinations are reviewed for clear error, and we review de novo its legal conclusions as to whether the Fourth Amendment has been violated. United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007). “Guided by this standard, we must affirm the district court’s decision on a suppression motion unless it is not supported by substantial evidence on the record; it reflects an erroneous view of the applicable law; or upon review of the entire record, [we are] left with the definite and firm conviction -5- that a mistake has been made.” Id. (alteration in original) (quoting United States v. Janis, 387 F.3d 682, 686 (8th Cir. 2004)). Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support a conclusion. See United States v. Cruz, 285 F.3d 692, 697 (8th Cir. 2002). Appellants concede that the detention was legitimate until Trooper Roby received the radio message that Jaime’s driver’s license check was clear. At that point, they argue, Trooper Roby’s detention of Jaime and Ricardo became illegal. After carefully reviewing the video and audio recording of the traffic stop and the transcript of the suppression hearing, we find it unnecessary to address the appellants’ contention that the traffic stop was excessive in length and scope, because even assuming a Fourth Amendment violation, the appellants’ consents to search the vehicle validated the subsequent search. See United States v. Grajeda, 497 F.3d 879, 882 (8th Cir. 2007) (unnecessary to address whether the act amounted to an illegal search because, even assuming a Fourth Amendment violation, subsequent search was validated by intervening voluntary consent); United States v. Kreisel, 210 F.3d 868, 869 (8th Cir. 2000) (consent was sufficiently an act of free will to purge taint of detention). “An illegal detention is only the start, and not the end, of our fourth amendment analysis, for the evidence seized from [appellants and their vehicle] need not be suppressed if [their] voluntary consent provided an independent basis for the search . . . .” United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001). After returning the paperwork and advising Jaime that the traffic stop was complete, Trooper Roby asked Jaime if he would agree to answer additional questions. Jaime agreed. There is no indication in the record that this post-stop encounter was anything other than consensual. See United States v. Salazar, 454 F.3d 843, 847 (8th Cir. 2006) (no indication that the post-stop encounter was a seizure rather than consensual); United States v. Santos-Garcia, 313 F.3d 1073, 1078 (8th Cir. 2002) (during post-stop consensual encounter, officer may, without reasonable -6- suspicion, ask further questions unrelated to the traffic stop). Further, we find that the district court did not clearly err in finding that Jaime, Ricardo and Nunez voluntarily consented to the search of the vehicle during the post-stop consensual encounter. A defendant’s voluntary consent to be searched is an exception to the Fourth Amendment’s warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). A court determines whether consent is voluntary under the totality of the circumstances. United States v. Gipp, 147 F.3d 680, 685 (8th Cir. 1998). The Government bears the burden of proving voluntary consent by a preponderance of the evidence and must show that the defendant behaved in such a manner that the officer reasonably believed that the search was consensual. United States v. Cedano-Medina, 366 F.3d 682, 684-85 (8th Cir. 2004). In evaluating the reasonableness of the officer’s belief, we consider the characteristics of the person consenting, “including the party’s age, intelligence and education, whether he was under the influence of drugs or alcohol, whether he was informed of his right to withhold consent, and whether he was aware of rights afforded criminal suspects.” United States v. Almendares, 397 F.3d 653, 660 (8th Cir. 2005). We also consider the environment in which the alleged consent took place, “specifically (1) the length of time he was detained; (2) whether the police threatened, physically intimidated, or punished him; (3) whether the police made promises or misrepresentations; (4) whether he was in custody or under arrest when the consent was given; (5) whether the consent occurred in a public or a secluded place; and (6) whether he stood by silently . . . as the search occurred.” United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001). United States v. Esquivias, 416 F.3d 696, 700 (8th Cir. 2005). As noted above, the duration of the stop which preceded the consensual post- stop encounter and consent to search was brief and the majority of the trooper’s investigation was lawful. The appellants spoke and understood the English language. At the time of his arrest, Jaime was 44 years old and had a ninth grade education. -7- Although Jaime was born in Mexico, he had become a United States citizen. Ricardo was born in Los Angeles, California, was 30 years of age and had a high school education. Further, there is no evidence that Trooper Roby used coercion to obtain consent to search or to compel the appellants to answer questions. Id. at 700-701 (the totality of the circumstances establish that the officers reasonably believed consent to search was voluntary where 19-year-old Hispanic suspect understood English, was not under influence of drugs or alcohol, was only detained short time, was not threatened or intimidated by police, and was described by officers as very cooperative). Accordingly, the district court did not clearly err in finding the government proved by a preponderance of the evidence that appellants consented freely and without coercion. See United States v. Becker, 333 F.3d 858, 861 (8th Cir. 2003) (the government has the burden of proving that the consent to search was freely given and without coercion). Although the consent to search was voluntary, “that is not the end of our inquiry.” United States v. Becker, 333 F.3d 858, 861 (8th Cir. 2003). Because voluntary consent to search, “which was preceded by an illegal police action, does not automatically purge the taint of an illegal detention,” we must next determine if the voluntary consent was an “independent, lawful cause” of the discovery of the heroin in the vehicle and the appellants’ shoes. Id. at 862. In order to make that determination, we must consider the following factors: 1) the temporal proximity between the illegal search and the consent; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct. See Brown v. Illinois, 422 U.S. 590, 603-604 (1975). When assessing the temporal proximity factor, we must focus on the time from which the stop became illegal to the time of the consent. “[T]his court has found consent given a short time after the stop [was] sufficient to purge the taint if other circumstances indicate the consent was sufficiently an act of free will.” United States v. Herrera-Gonzalez, 474 F.3d 1105, 1112 (8th Cir. 2007); see United States v. -8- Palacios-Suarez, 149 F.3d 770, 772 (8th Cir. 1998) (holding that consent was sufficiently an act of free will to purge the taint of the initial stop where the officer asked the defendant several times if he could search the vehicle nine minutes after the initial stop); see also United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994) (finding consent sufficient to purge the taint where the arrest and consent were “close in time”). As the district court noted, the appellants were not in custody or being detained when they consented. A review of the video of the traffic stop reveals that 9 minutes and 35 seconds passed between the time the detention allegedly ceased being valid and the time the consents to search were obtained. Next, Trooper Roby had already returned the rental paperwork, the warning ticket and Jaime’s driver’s license when Jaime consented to the search. Although fairly close in time to the completion of Trooper Roby’s check of Jaime’s driver’s license, which is the point that appellants contend the detention became illegal, the Trooper’s announcement that the traffic stop was over and Jaime was free to leave was also an intervening circumstance between the presumed illegal detention and the consent. Lastly, the district court found no evidence of official misconduct on the part of the trooper. A thorough review of the record reveals that substantial evidence supports this finding. “The totality of the circumstances indicate that [appellants’] consent[s] [were] . . . act[s] of free will and . . . independent intervening cause[s] of the discovery of contraband, sufficient to cure the taint of any prior Fourth Amendment violation.” Grajeda, 497 F.3d at 883. Therefore, the district court did not err in finding that the consent to search given by Jaime, Ricardo and Nunez purged the taint of any portion of the stop which may have been illegal. -9- III. Accordingly, we affirm the judgment of the district court. -10-
302 F.2d 818 Deborah A. NORTHCROSS et al., Plaintiffs-Appellants,v.The BOARD OF EDUCATION OF the CITY OF MEMPHIS, TENNESSEE, etal.,Defendants-Appellees. No. 14642. United States Court of Appeals Sixth Circuit. March 23, 1962, Rehearing Denied April 26, 1962, As AmendedMay 15, 1962, Certiorari Denied June 25, 1962, See82 S.Ct. 1586. Constance Baker Motley, New York City (Thurgood Marshall, New York City, A. W. Willis, Memphis, Tenn., on the brief; R. B. Sugarmon, Jr., H. T. Lockard, B. L. Hooks, B. F. Jones and Ira H. Murphy, Memphis, Tenn., of counsel), for appellants. Jack Petree, Evans, Petree & Cobb, Memphis, Tenn. (Larry B. Creson, Laughlin, Watson & Creson, Memphis, Tenn., on the brief), for appellees. Before CECIL, WEICK and O'SULLIVAN, Circuit Judges. CECIL, Circuit Judge. 1 This appeal involves the public school system of the City of Memphis, Tennessee. 2 The appellants were plaintiffs in the District Court for the Western District of Tennessee. They are eighteen minors and their parents, all of the Negro race, who bring the action on behalf of themselves, and all other Negro children and their parents in Memphis, similarly situated. The defendants-appellees are the Board of Education of the City of Memphis, the members thereof individually and the superintendent of schools. The parties will be referred to hereinafter as plaintiffs and defendants. 3 Jurisdiction of the District Court is invoked by virtue of section 1343(3), Title 28 U.S.C. By this act, jurisdiction is conferred 'To redress the deprivation, under color of any State law, * * * custom or usage, of any right privilege or immunity secured by the Constitution of the United States * * * for equal rights of citizens or of all persons within the jurisdiction of the United States.' 4 It is alleged in the complaint, inter alia, that the defendants maintain and operate a compulsory biracial school system in the City of Memphis, in which certain schools are designated for Negro students only and staffed by Negro personnel, and certain other schools are designated for white students only and staffed by white personnel. It is further alleged that there is separate geographical zoning for the Negro and white schools and that these zones in some instances overlap so that both Negro and white students are in the same zone. The plaintiffs also allege that they have not exhausted their remedies under the Tennessee Pupil Assignment Law for the reason that it does not provide an adequate remedy for the relief they seek. 5 By their complaint, briefly stated, the plaintiffs seek an order enjoining the defendants from operating a biracial school system or in the alternative for an order to the board to submit a plan for the reorganization of the schools on a unitary non-racial basis. 6 The defendants in their answer deny that they maintain a compulsory biracial school system in the city of Memphis. They admit that certain of their schools are attended and staffed stolely by members of the white race and that certain other schools are attended and staffed solely by members of the Negro race. They concede that there is no racial integration of their schools for the reason that no members of the Negro race have made applications for transfers to white schools. The defendants allege in their answer that the Tennessee Pupil Assignment Law affords to plaintiffs and defendants a simple and easy method of complying with the requirements of the Supreme Court of the United States in the school segregation cases. 7 A trial was had in the District Court upon the issues presented by the pleadings, after which the District Judge made findings of fact and conclusions of law and entered judgment on May 2, 1961. 8 The trial judge found as facts, that the defendants do not operate a compulsory biracial school system or maintain a dual schedule or pattern of school zone lines based upon race or color; that the school zone maps introduced in evidence have no significance as evidence of a biracial school system; that the Tennessee Pupil Assignment Law furnishes the plaintiffs an effective and adequate remedy for integration and as effective a plan for compliance with the decisions of the Supreme Court of the United States as the Court could devise; that the defendants' intention to effect integration of the school system under the Pupil Assignment Act has been open and generally known to the public and that the plaintiffs and their attorneys were so advised at a public meeting of the Board of Education on February 6, 1960; that the Board has evidenced all good faith to the public and to the court of its intention to comply with the decision of the Supreme Court. 9 By judgment entry the court sustained the plaintiffs' prayer for alternative relief by approving the Tennessee Pupil Assignment Law as a plan for desegregation and denied further relief to the plaintiffs for the reason that the defendants did not operate a biracial school system and the plaintiffs had not exhausted their administrative remedies under the Assignment Law. 10 On December 14, 1961, after this appeal was docketed, the defendants filed in this Court a motion to dismiss the appeal. The basis of the motion is that the Board desegregated the schools of Memphis on October 3, 1961, and that the issues involved in the appeal have now become moot. This motion is supported by an affidavit of the president of the Board of Education. 11 In this affidavit it is alleged that on August 28, 1961, forty-two Negro children made application to desegregate the public school system of Memphis; that four of them abandoned their applications and thirty-eight were considered by the Board; and of these applicants thirteen were admitted to three schools previously attended by white children. 12 This is denominated in the affidavit as desegregation of the Memphis schools and it is alleged that it was accomplished through the cooperation of members of the Negro race, the news media and public officials of Memphis. It is further alleged that it was accomplished without fanfare or strife, and that it has been generally accepted by all of the citizens of the community. 13 By filing this motion and affidavit, after the appeal was docketed, the defendants enlarged the record without an opportunity to the plaintiffs to be heard on the subject involved. The affidavit does not state went criteria was applied in granting these transfers, but we were informed in oral argument that they were based on scholarship by tests not given to white children in the same school. 14 At the time this action was brought, according to the evidence, there were in the city of Memphis approximately fifty-five white elementary school units, fifteen white junior high schools and nine white sentor high schools. At the same time, there were approximately thirty-one Negro elementary school buildings, seven Negro junior high, and six Negro senior high units. There were separate technical high schools and separate schools for Negro and white crippled children. There are approximately 100,000 pupils in the Memphis school system, forty-four percent of wheom are Negroes. 15 The Pupil Assignment Law was enacted by the Tennessee legislature in 1957. Sections 49-1701-- 49-1764 Tenn. Code. At the time this action was filed in March of 1960, no Negro pupil had ever been transferred to a white school, nor had a white pupil ever been transferred to a Negro school, under the operation of the law. The superintendent of schools testified that the Assignment Law is not applied to children entering school for the first time. In the case of such children, the principal to whom application is made will take into consideration the applicant's race and residence in determining an assignment to a school. The evidence also shows that there are dual area zone maps, one for white schools and one for Negro schools. These zones may overlap and there may be Negro and white children in the same zone, but each goes to the school for his respective race. 16 One of the plaintiffs, Mrs. McFerrin, applied in 1958 for admission of her son to Vollentine, a white school. Mrs. McFerrin and her son lived in an area assigned to Hyde Park, a Negro school. The Vollentine school is located four blocks from their home and on the same side of the street. Hyde Park is ten blocks from their home and reached by an indirect route. She asked for the transfer for convenience, but the superintendent denied her application for the reason that transfers were not granted for convenience. 17 In 1960 two Negro girls who were enrolled in Melrose High School, (Negro), sought a transfer to South Side High School, (white). They had moved within four blocks of the South Side School. They were told that they were in the Booker T. Washington (Negro) district and were offered transfers to that school. It required a thirty to forty-five minute bus ride to get to Melrose, and Washington was almost equally far away, and they refused the transfer. 18 In May 1954, the Supreme Court of the United States decided that 'Separate educational facilities are inherently unequal,' and that segregation of the races in separate schools deprived the minority group of the equal protection of the laws guaranteed by the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. At this time, the Constitution of Tennessee provided that white and Negro children were not to be received as scholars together in the same school. Art. 11, Sec. 12, Tenn. Const. The statutes of Tennessee also prohibited white and Negro children attending the same schools. Sections 49-1005, 49-1107, and 49-3701 Tenn. Code. 19 It is conceded that these provisions of the Constitution and statutes were no longer enforcible after the Brown decision. The defendants now claim that compulsory segregation of the races for school purposes has been abandoned in the city of Memphis, and that the Board of Education has adopted a plan for full compliance with the second Brown decision, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, for the admission of Negroes to its public schools on a racially non-discriminatory basis. 20 The questions presented are whether the schools of Memphis are being operated on a racially non-discriminatory basis and whether the Pupil Assignment Law can in and of itself constitute a plan for such operation. 21 This law declares that the public schools shall be free to all persons above the age of six; provides that the board of education of each city shall enroll and assign all pupils to schools and subject to review or certain exceptions this exercise of power by the board is final; that certain criteria or factors, some twenty in number, may be considered in making assignments; that each school child shall be assigned to the same school he attended prior to January 25, 1957, until graduation therefrom; that the board may prescribe a date for filing applications for admission or transfer and refuse to consider applications filed after such date; and that the board may conduct investigations, surveys, and give tests in determining the schools to which pupils shall be assigned. 22 There is a further provision that if there is dissatisfaction with the assignment of a child, both parents may make application for a hearing before the board and a transfer to another school. The board shall consider each case separately and its decision shall be based on the criteria heretofore mentioned. From an unfavorable decision of the board, both parents may petition the chancery court of the county where the board of education is located for review. The review is based on a transcript of the proceedings before the board. The findings of the board shall be final if supported by substantial evidence on the entire record. The court has no power to suspend an order of the board until after final determination, except after a preliminary hearing and upon a prima facie showing by the petitioner that the board has acted arbitrarily, fraudulently or unlawfully, to the manifest detriment of the child. A further appeal may be taken to the court of appeals or the Supreme Court by both parents or the board of education. 23 The Pupil Assignment Law might serve some purpose in the administration of a school system but it will not serve as a plan to convert a biracial system intl a nonracial one. 24 In Kelly v. Board of Education of City of Nashville, 159 F.Supp. 272, 276, D.C.M.D.Tenn., it was held that the administrative remedy under the act was inadequate to end racial discrimination in the public school system of Nashville, Tennessee. 25 In Gibson v. Board of Public Instruction of Dade County, Florida, 272 F.2d 763, 766, C.A.5, the court said: 'That being true, we cannot agree with the district court that the Pupil Assignment Law, or even that the Pupil Assignment Law plus the Implementing Resolution, in and of themselves, met the requirements of a plan of desegregation of the schools or constituted a 'reasonable start toward full compliance' with the Supreme Court's May 17, 1954, ruling. That law and resolution do no more than furnish the legal machinery under which compliance may be started and effectuated. Indeed, there is nothing in either the Pupil Assignment Law or the Implementing Resolution clearly inconsistent with a continuing policy of compulsory racial segregation.' 26 And in Gibson v. Board of Public Instruction of Dade County, Florida, et al., 246 F.2d 913, 914, C.A.5, the court said, at p. 914: 'Neither that nor any other law can justify a violation of the Constitution of the United States by the requirement of racial segregation in the public schools. So long as that requirement continues throughout the public school system of Dade County, it would be premature to consider the effect of the Florida laws as to the assignment of pupils to particular schools.' See also, Mannings v. Board of Public Instruction of Hillsborough County, Florida, 277 F.2d 370, C.A.5. 27 In Parham v. Dove, 271 F.2d 132, C.A.8, the court required three Negroes, individually, who sought transfers to white schools to exhaust their administrative remedies. However, the court said, at p. 137: 'In this field of constitutional paramountcy, a placement or assignment statute is entitled to be accorded recognition only as an implement or adjunctive element on the part of a state for effecting an orderly solution to its desegregation difficulties, in proper relationship to its other school-system problems, but with a subservience to the supreme-law declaration of the Brown cases as to all imposed segregation and the obligation owed to get rid thereof within the tolerance entitled to be allowed play under these decisions for accomplishing that result.' 28 This position was reaffirmed in Dove v. Parham, 282 F.2d 256, 261, C.A.8, where the court held that assignment and placement laws were 'subordinate to the duty to move forward, by whatever means necessary, to correct the existing constitutional violation with 'all deliberate speed'.' 29 Opinions of the Fourth Circuit have been cited in support of the defendants' position.1 We consider them, as did the Fifth Circuit. 'Obviously, unless some legally nonsegregated schools are provided, there can be no constitutional assignment of a pupil to a particular school. We do not understand that the Fourth Circuit has ruled to the contrary. The net effect of its rulings, as we understand them, is that the desegregation of the public schools may occur simultaneously with and be accomplished by the good faith application of the law providing for the assignment of pupils to particular schools. If that understanding is correct, then we readily agree.' Gibson v. Board of Public Instruction of Dade County, Florida, 272 F.2d 763, 767, C.A.5. 30 More than seven years had elapsed from the time of the first Brown decision to the time of the trial and judgment of this case in the District Court. More than four years had passed from the time of the enactment of the Assignment Law, and yet at that time the schools of Memphis were as biracial as they had been under the Tennessee Constitution and statutes. 31 The defendants admit in their brief that the Memphis school system was in fact a biracial one. They say, however, that this does not result from compulsion on their part. It is voluntary on the part of the Negro pupils and parents because they do not avail themselves of the transfer provisions of the law. 32 It was decided in the first Brown case that the separation of children of similar age and qualifications solely because of race was a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States. Since that decision, there cannot be 'Negro' schools and 'white' schools. There can now be only schools, requirements for admission to which must be on an equal basis without regard to race. 33 Minimal requirements for non-racial schools are geographic zoning, according to the capacity and facilities of the buildings and admission to a school according to residence as a matter of right. 'Obviously the maintenance of a dual system of attendance areas based on race offends the constitutional rights of the plaintiffs and others similarly situated and cannot be tolerated.' Jones v. School Board of City of Alexandria, Virginia, 278 F.2d 72, 76, C.A.4. 34 The Pupil Assignment Law assigned, by legislative enactment, all children who had previously been enrolled in the schools to the same schools that they had attended under the constitutional and statutory separate racial system. They were to remain in these same schools until graduation unless transferred by a request of both parents. At the end of the school year of graduation, from an elementary or junior high, they were assigned to a school for the next year. As a matter of practice, Negroes were assigned to so-called '8negro' schools. Although it is claimed that beginning pupils could apply to any school, the practice was for the Negro children to be assigned to 'Negro' schools. 35 It is argued that the transfer provisions of the law create a voluntary system and that, by reason of them, there is no compulsory segregation of races. These transfer provisions do not make of this law a vehicle to reorganize the schools on a non-racial basis. Nor has the practice for four years under the law been in the direction of establishing non-racial schools. Negro children cannot by required to apply for that to which they are entitled as a matter of right. If they are deprived of their constitutional rights, they are not required to seek redress from an administrative body before applying to the courts. Borders v. Rippy, 247 F.2d 268, C.A.5. The burden rests with the school authorities to initiate desegregation. Cooper v. Aaron, 358 U.S. 1, 7, 78 S.Ct. 1401, 3 L.Ed.2d 5. 36 Any pupil through both parents may request a transfer but in the final analysis it is up to the school board to grant or reject it. Although an appeal may be taken to the courts, it would be an expensive and long drawn out procedure, with little freedom of action on the part of the courts. In determining requests for transfers, the board may apply the criteria heretofore mentioned. None of these criteria is based on race, but in the application of them, one or more could always be found which could be applied to a Negro. The denial of the transfers herein referred to is significant of the practical application of the transfer provisions of the law. 37 The trial judge found that the defendants do not operate a compulsory biracial school system. It might be said that by reason of the transfer aspect of the law, it is not compulsory. The real question is, Do they maintain separate schools? The first Brown case decided that separate schools organized on a racial basis are contrary to the Constitution of the United States. 38 The inescapable conclusion is that at the time of the judgment in this case the schools of Memphis were operated on a basis of 'white schools' for white children and 'Negro schools' for Negroes. The findings of fact that the school zone maps introduced in evidence have no significance as evidence of a biracial school system, and that the defendants do not maintain a dual schedule or pattern of school zone lines, based upon race or color, are contrary to the evidence and clearly erroneous. As we have previously said, the Pupil Assignment Law cannot serve as a plan to organize the schools as a non-racial system. 39 We do not discuss exhaustion of remedies under the statute for the reason that we hold the Pupil Assignment Law is not adequate as a plan for reorganizing the schools into a non-racial system. Kelly v. Board of Education of City of Nashville, 159 F.Supp. 272, 277, D.C.M.D.Tenn.; Gibson v. Board of Public Instruction of Dade County, Florida, 246 F.2d 913, C.A.5. 40 The motion to dismiss the appeal must be and it is hereby overruled. The admission of thirteen Negro pupils, after a scholastic test, out of thirty-eight who made applicaltion for transfer, is not desegregation, nor is it the institution of a plan for a non-racial organization of the Memphis school system. 41 We are impressed that the defendants honestly and sincerely desire to comply with the law, but they have pursued the mistaken belief that 'full compliance' as required by the Supreme Court can be had under the Pupil Assignment Law. The practice over a long period of time of separate schools in certain geographical areas of our nation has become a way of life in those areas, and we realize that a change is not easy to accomplish. But as this Court must follow the supreme law of the land, as interpreted by the Supreme Court; so must boards of education follow it. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401. We urge the defendants herein to adopt and submit to the District Court some realistic plan for the organizations of their schools on a non-racial basis, in 'full compliance' with the mandate of the Supreme Court, and to do so 'with all deliberate speed.' 42 The judgment of the District Court is reversed with instructions to restrain the defendants from operating a biracial school system in Memphis, or in the alternative to adopt a plan looking toward the reorganization of the schools, in accordance with the Constitution of the United States. The District Court should retain jurisdiction of the case during the period of transition. Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753. 43 PER CURIAM. 44 This cause is before the Court on petition for rehearing. 45 One point raised by the petition is that the Court made an erroneous statement in its opinion, to the effect that Negro children were given scholastic tests not given to white children, in order to be admitted to 'white' schools, under the Tennessee Pupil Assignment Law. 46 This matter arose out of a motion of the appellees to dismiss the appeal supported by an affidavit. In this affidavit it was alleged that the schools of Memphis were desegregated by the admission of thirteen Negro students to 'white' schools. The affidavit did not specify what criteria were applied in order to allow these admissions. 47 This motion and affidavit tended to change the character of and add to the issues presented on the appeal without an adequate opportunity for a hearing. There was no denial that thirteen students had been thus transferred and there was nothing in the affidavit to be traversed by counter-affidavit. This Court cannot accept the conclusion of the appellees that these transfers under the Tennessee Pupil Assignment Law constituted desegregation. 48 Upon inquiry in oral argument, the Court understood that scholastic tests were given to the Negro students and not to the white students of the same schools. The necessity for this inquiry arose by reason of the interjection of the motion into the record, as heretofore stated. 49 The Court does not wish to make an incorrect statement of fact and will amend its opinion, in respect to the claimed error, if it is shown to be an error. For this purpose, the Court will permit the parties to submit affidavits upon the sole question of how scholastic tests were applied and to whom, in connection with the transfers. 50 The Court in its opinion concluded that the Pupil Assignment Law, while not unconstitutional on its face and while it may serve some function in proper school administration, it cannot serve as a vehicle for desegregation. Other points raised by the petition for rehearing have been previously considered and found to be without merit. 51 The petition for rehearing will be denied. 1 Hood v. Board of Trustees of Sumter County School District No. 2, Sumter County, South Carolina, 286 F.2d 236, C.A. 4; McCoy v. Greensboro City Board of Education, 283 F.2d 667, C.A. 4; Holt v. Raleigh City Board of Education, 265 F.2d 95, C.A. 4, cert. denied, 361 U.S. 818, 80 S.Ct. 59, 4 L.Ed.2d 63; Hood v. Board of Trustees of Sumter County School District No. 2, Sumter County, South Carolina, 232 F.2d 626, C.A. 4, cert. denied, 352 U.S. 870, 77 S.Ct. 95, 1 L.Ed.2d 76; Carson v. Board of Education of McDowell County, 227 F.2d 789, C.A. 4
2019 IL App (1st) 180248 FIRST DIVISION March 25, 2019 No. 1-18-0248 STEPHAN URBANIAK and SANDRA ) Appeal from the Circuit Court of URBANIAK, ) Cook County, Law Division. ) Plaintiffs-Appellants/Cross-Appellees, ) ) v. ) No. 14 L 13331 ) AMERICAN DRUG STORES, LLC d/b/a ) OSCO DRUG #3086 ) Honorable William Gomolinski and ) Honorable Kathleen Flanagan Defendant-Appellee/Cross-Appellant. ) Judges Presiding ______________________________________________________________________________ JUSTICE GRIFFIN delivered the judgment of the court, with opinion. Presiding Justice Mikva and Justice Walker concurred in the judgment and opinion. OPINION ¶1 The learned intermediary doctrine is a fundamental tenet of pharmacological and negligence law in America. The doctrine generally absolves pharmacies and pharmaceutical companies from liability for failing to warn a patient about the potential side effects of prescription drugs. The logic behind the doctrine is to put the burden on the prescribing physician—a learned intermediary—to know the drug’s side effects and any of the patient’s relevant conditions before prescribing the drug. ¶2 In this case, a patient was prescribed and took a drug called Reglan for six years and developed severe movement disorders called tardive dyskinesia and dystonia. The prescribing physician admits that he was unaware of the risk that a patient might develop these movement No. 18-0248 disorders from the long-term ingestion of Reglan. The doctor has separately settled with the plaintiffs. This appeal concerns whether the pharmacy that filled the prescriptions and dispensed Reglan to plaintiff can be liable for failing to verbally warn him or his doctor about the medical risks associated with the long-term ingestion of Reglan. By operation of the learned intermediary doctrine, the pharmacy cannot be liable for such an alleged omission. We affirm the circuit court’s entry of a judgment of no liability for the pharmacy. ¶3 I. BACKGROUND ¶4 In 2008, plaintiff Stephan Urbaniak was under the care of a gastroenterologist who prescribed him a prescription drug called Reglan to treat gastroparesis. Beginning in 2010, plaintiff’s primary care physician, Dr. John Ross, took over writing plaintiff’s prescription for the drug. Plaintiff took Reglan continuously from May 2008 to August 2014. ¶5 In August 2014, plaintiff was diagnosed with tardive dyskinesia and dystonia. Tardive dyskinesia and dystonia are well-known side effects from the prolonged ingestion of Reglan. Tardive dyskinesia is a serious movement disorder that causes involuntary movements of parts of the body. Dystonia is a similar movement disorder that causes involuntary and uncontrollable muscle contractions. There is no known cure for either disorder. Plaintiff is now unable to work and suffers from extensive disabilities. ¶6 In February 2009, after plaintiff was prescribed and began taking Reglan, the Food and Drug Administration approved a black box warning for the drug. A black box warning is the strongest form of warning that the FDA requires for prescriptions, and it indicates that there is reasonable evidence that there are serious or life-threatening risks associated with taking the drug. The black box warning for Reglan, speaking in terms of its generic name, metoclopramide, addresses tardive dyskinesia directly. 2 No. 18-0248 “WARNING: TARDIVE DYSKINESIA Treatment with metoclopramide can cause tardive dyskinesia, a serious movement disorder that is often irreversible. The risk of developing tardive dyskinesia increases with duration of treatment and total cumulative dose. Metoclopramide therapy should be discontinued in patients who develop signs of symptoms of tardive dyskinesia. There is no known treatment for tardive dyskinesia. In some patients, symptoms may lessen or resolve after metoclopramide treatment is stopped. Treatment with metoclopramide for longer than 12 weeks should be avoided in all but rare cases where therapeutic benefit is thought to outweigh the risk of developing tardive dyskinesia.” ¶7 For the six years he took Reglan, plaintiff had all of his prescriptions filled at Osco Drug—a local retailer of defendant American Drug Stores, LLC. Osco receives Reglan in containers of 500 pills from the manufacturer and divides them up to distribute to consumers. The 500-pill containers it received during the period relevant to this case contained a package insert that included the FDA’s black box warning. When dispensing Reglan, Osco distributed a medication guide to consumers. The medication guide for Reglan provided warnings and other information about the drug, including the warning about tardive dyskinesia from the FDA. However, Osco never verbally warned plaintiff about the risks associated with taking Reglan longer than 12 weeks. ¶8 During his time of prescribing Reglan to plaintiff, Dr. Ross was unaware of the tardive dyskinesia risks associated with the long-term use of Reglan. Thus, Dr. Ross never informed plaintiff of the risk of developing tardive dyskinesia and he continued to write the prescriptions 3 No. 18-0248 for the drug for years. Osco had frequent contact with Dr. Ross during the period plaintiff was taking Reglan, and it never informed the doctor of the risks associated with taking Reglan longer than 12 weeks. ¶9 Plaintiff filed this case against Dr. Ross, Dr. Ross’s professional corporation, and the pharmacy. The doctor and his professional corporation settled the case for their insurance policy limits. Osco moved for summary judgment on the claims against it, arguing that it had no duty to warn plaintiff or his doctor about plaintiff being at risk of developing tardive dyskinesia and dystonia as a result of taking Reglan for longer than 12 weeks. Depositions and other discovery were taken, and the trial court entered summary judgment in Osco’s favor finding that it did not owe plaintiff the duty of care it was alleged to have breached. Plaintiff appeals. ¶ 10 II. ANALYSIS ¶ 11 Plaintiff appeals the trial court’s order entering summary judgment in defendant’s favor. Summary judgment is appropriate when the pleadings, depositions, admissions and affidavits, viewed in a light most favorable to the nonmovant, fail to establish that a genuine issue of material fact exists, thereby entitling the moving party to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2012); Fox v. Seiden, 2016 IL App (1st) 141984, ¶ 12. We review a trial court’s decision to grant summary judgment de novo. Illinois Tool Works Inc. v. Travelers Casualty & Surety Co., 2015 IL App (1st) 132350, ¶ 8. ¶ 12 Defendant was granted summary judgment on the basis that it did not owe plaintiff the duty of care that it was alleged to have breached; namely that it was under no legal duty to warn plaintiff or his doctor about the risks of taking Reglan for a prolonged period. In cases where a pharmacy is alleged to be negligent for failing to warn a consumer about the risks of a drug it dispenses, Illinois courts look to the same factors reviewed in any typical negligence case to 4 No. 18-0248 determine whether a plaintiff is owed the relevant duty of care. See Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186-87 (2002). To determine whether a duty exists in a particular case, courts look to certain relevant factors, including: (1) the reasonable foreseeability that the defendant’s conduct may injure another; (2) the likelihood of an injury occurring; (3) the magnitude of the burden of guarding against such injury; and (4) the consequences of placing that burden on the defendant. Id. ¶ 13 Frequently at issue in pharmaceutical cases, the “learned intermediary doctrine” has a role in this case. The learned intermediary doctrine helps courts to decide which participant in the chain of administering prescription drugs to consumers should be charged with the duty to warn patients about the potential adverse side effects. See Hernandez v. Schering Corp., 2011 IL App (1st) 093306, ¶ 30. In its most basic form, the learned intermediary doctrine obligates drug manufacturers to warn only physicians about the potential risks of a drug, and then physicians are required to use medical judgment to determine which warnings to provide to patients to whom the drug is prescribed. Martin by Martin v. Ortho Pharmaceutical Corp., 169 Ill. 2d 234, 238-39 (1996). The doctor acts as an intermediary of the information for the benefit of and on behalf of the patient. The learned intermediary doctrine applies to pharmacists in the same way that it does drug manufacturers—the duty to warn of side effects is not placed on the pharmacist, it is placed on the prescribing physician. Leesley v. West, 165 Ill. App. 3d 135, 143 (1988) (quoting Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 524 (1987)). ¶ 14 A pharmacist owes just a duty of ordinary care in practicing his profession. Eldridge v. Eli Lilly & Co., 138 Ill. App. 3d 124, 126 (1985). However, we have explained that a pharmacist’s duty to its customers nonetheless requires “the highest degree of prudence, thoughtfulness and diligence, and it is proportioned to the danger involved.” Id. Because of the 5 No. 18-0248 learned intermediary doctrine, a pharmacist generally has no independent duty to warn a consumer about the potential dangers of a prescribed drug. Jones v. Irvin, 602 F. Supp. 399, 402 (S.D. Ill. 1985) (applying Illinois law); Eldridge, 138 Ill. App. 3d at 127. But a duty to warn, including in the pharmaceutical context, can be found where there is unequal knowledge of a dangerous condition and the defendant, possessed of that knowledge, knows or should know that harm might or could occur if no warning is given. Kennedy v. Medtronic, Inc., 366 Ill. App. 3d 298, 304-05 (2006). The duty of care that pharmacists sometimes owe to their customers to warn them of the dangerous side effects of prescription drugs is still regarded as a narrow one. See Happel, 199 Ill. 2d at 189, 197. ¶ 15 To be clear in defining the issue in this case, it is not whether Osco had a generalized duty to warn plaintiff about the dangers of Reglan, because it did so in writing. The issue is whether Osco had a specific duty to verbally advise defendant about the risks of the prolonged ingestion of Reglan or to advise the prescribing physician about the risks of taking Reglan long term. ¶ 16 Plaintiff argues that he was legally entitled to be warned by Osco because “Osco’s employees should have known that Stephan had taken the drug for years and that the risk of a serious neurological injury was cumulative.” Plaintiff points out that it is “highly unusual” for a black box prescription warning to have a time limitation—12 weeks in this case—and that Osco’s pharmacists “should have told Dr. Ross and Stephan about the 12 week warning so they could have evaluated whether to continue the drug.” ¶ 17 Going through the factors our courts use to determine whether a duty exists in a particular case, plaintiff opines that it is reasonably foreseeable that injury will result from dispensing a drug for more than six years that is known to cause tardive dyskinesia when taken for more than 6 No. 18-0248 12 weeks. The likelihood of an injury occurring is supported by “reasonable evidence” according to the FDA, and the risk increases with the duration of treatment and the total cumulative dose. Plaintiff suggests that the magnitude of guarding against the injury is “slight” because there are very few drugs that have severe dangers based on the duration of their administration. And plaintiff argues that the consequence of placing a duty to warn on pharmacies with regard to Reglan are limited and are already embraced by Osco’s policy of providing “conscientious pharmaceutical care” by always using “professional judgment to accurately audit prescriptions.” ¶ 18 The arguments submitted by plaintiff suggest a tacit acknowledgement that, were we to rule in his favor, we would be expanding any duty our courts have previously recognized for pharmacists in Illinois. Plaintiff asks that we find Osco to have had a duty “to be aware of the black box time limitation, to make sure that the refill does not exceed the limitation, and if it does, discuss that issue with the doctor or patient.” Such a rule would require pharmacies to inquire into the doctor’s judgment about, at a minimum, the duration of prescriptions when side effects could develop from long-term use. Plaintiff makes clear that he is not asking us to find a duty for pharmacists “to monitor every patient’s prescriptions of every kind.” Nonetheless, a proper application of the learned intermediary doctrine means that plaintiff cannot demonstrate that the pharmacy in this case was legally obligated to inform him about the potential side effects of the drug prescribed to him. ¶ 19 It is the pharmaceutical company’s obligation to inform the doctor about potential adverse effects of a drug and then it is the doctor’s obligation to take that information into account, decide what drug to prescribe, and then to prescribe the drug and a regimen for delivering the drug: dosage, duration, and so on. See Eldridge, 138 Ill. App. 3d at 127. From the pharmacy’s perspective, the prescribing physician is presumed to have knowledge of the 7 No. 18-0248 potential adverse side effects of the drug he is prescribing. If the physician prescribes the drug in spite of the side effects he is presumed to know, it is the doctor’s burden to warn the patient. See Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 34 (1992) (“consumers should principally look to their prescribing physician to convey the appropriate warnings regarding drugs, and it is the prescribing physician’s duty to convey these warnings to patients.”). Plaintiff wants us to allocate some of that burden to the pharmacist. ¶ 20 As we recently stated, we have “consistently declined to impose upon a pharmacy, any duty to monitor patients, make medical decisions, or to warn a physician or a patient of ‘excessive’ prescribed doses.” Hernandez v. Walgreen Co., 2015 IL App (1st) 142990, ¶ 24. Illinois law imposes “no duty on a pharmacist to warn the customer or notify the physician that drugs are being prescribed in dangerous amounts, that the customer is being overmedicated or that various drugs in the prescribed quantities could have an adverse effect.” Id. ¶ 21 Osco also did warn plaintiff about the dangers of taking Reglan for longer than 12 weeks. It just did so in writing and plaintiff argues that it should have been done verbally. That is not a theory of liability the court can accept. Osco passed along the warning from the FDA. Plaintiff admits that he never read the medication guide given to him with his prescription. Plaintiff posits that Osco should have waded further into the situation. But the learned intermediary doctrine dictates that pharmacists stay out of the physician-patient relationship. Happel, Ill. 2d 194-95. And, when it comes to prescription drugs, the extent of the warnings to be given to patients is within the discretion of the physician. Frye, 153 Ill. 2d at 34. The legal framework, through application of the learned intermediary doctrine, places the responsibility for providing medical advice on the doctor, not the pharmacist. ¶ 22 Osco was not required to inquire about Dr. Ross’s medical judgments or question the 8 No. 18-0248 physician’s wisdom concerning the regimen for administering the drug; it was required to dispense to the patient the drug that the doctor prescribed to the patient. Osco had no reason to know that the doctor was ignorant of the effects of the drug for which he wrote a prescription and Osco had no independent duty to inquire into the doctor’s pharmaceutical competence. Osco likewise had no reason to know that Reglan could be dangerous to plaintiff specifically as opposed to the general public. ¶ 23 The deposition testimony in this case revealed that the 12-week timetable for administering Reglan is by no means absolute. Dr. Lue, who prescribed Reglan to plaintiff in the first place, stated that he has a number of patients to whom he has prescribed Reglan and that many have taken it for far longer than 12 weeks. The black box warning itself does not say Reglan cannot or should not be prescribed or taken for more than 12 weeks; it just states that there are accompanying medical risks. Those are risks that must be considered by the doctor, not the one simply dispensing the medication. The decision to prescribe Reglan and to continue prescribing Reglan are medical decisions. Osco is fully entitled to presume that Dr. Ross knew about the potential consequences of Reglan and prescribed it to plaintiff in spite of those warnings. Putting any further burden on Osco would require it to question doctors’ medical judgment or question their competency when, knowing almost nothing about the patient’s medical condition, the patient presents a prescription that could be unwise or inadvisable for any number of reasons. ¶ 24 Plaintiff was prescribed Reglan for a number of years by two different doctors who were the ones in the position to verbally warn plaintiff about the risks of Reglan. The deposition testimony reveals that, obviously, plaintiff’s primary care doctor could not have warned him about the relevant side effect of the drug because the doctor did not know about it himself. But 9 No. 18-0248 because plaintiff’s doctor fell short on his obligation to know about the drugs he was prescribing, plaintiff seeks to hold the pharmacy responsible for simply carrying out the doctor’s directives and doing so as directed. The learned intermediary doctrine places the legal duty in such cases on the doctor, not the pharmacy. ¶ 25 It is the doctor’s duty to know what he is prescribing and it is the pharmacy’s duty to give the patient what the doctor orders. Fakhouri v. Taylor, 248 Ill. App. 3d 328, 333 (1993). Plaintiff is asking that we require much more of the pharmacy. He asks us to have the pharmacy enter the realm of inquiring into what medication regimen is appropriate for a patient—a medical judgment best addressed to the doctor. ¶ 26 The parties have not pointed us to any case law directly addressing a pharmacist’s duty related to administering a drug for a potentially-unsafe duration, but a close analogue is presented in cases addressing a pharmacist’s duty related to administering a drug in a potentially- unsafe dose. Discussing Illinois law, the United States District Court for the Southern District of Illinois described the varying role of those involved in the pharmaceutical delivery system and how the primary burden is placed on the doctor and not the pharmacist. “It is the duty of the prescribing physician to know the characteristics of the drug he is prescribing, to know how much of the drug he can give his patient, to elicit from the patient what other drugs the patient is taking, to properly prescribe various combinations of drugs, to warn the patient of any dangers associated with taking the drug, to monitor the patient's dependence on the drug, and to tell the patient when and how to take the drug. Further, it is the duty of the patient to notify the physician of the other drugs the patient is taking. Finally, it is the duty of the drug manufacturer to notify the physician of any adverse effects or 10 No. 18-0248 other precautions that must be taken in administering the drug. [Citation.] Placing these duties to warn on the pharmacist would only serve to compel the pharmacist to second guess every prescription a doctor orders in an attempt to escape liability.” Jones, 602 F. Supp. at 402 (S.D. Ill. 1985) (emphasis added). ¶ 27 Plaintiff advocates for a ruling that would require pharmacies to investigate the appropriateness of a prescription for the patient. Plaintiff is asking us to require the pharmacy to skeptically question the doctor’s judgment and to delve into whether the doctor’s judgment is being exercised prudently. That is precisely the result that the application of the learned intermediary doctrine precludes. The rationale behind the learned intermediary doctrine is that, because the prescribing physician has expert knowledge of the drugs he is prescribing and, more importantly, knowledge of his patient’s medical history, it is the physician who is in the best position to prescribe drugs and monitor their use. Happel, 199 Ill. 2d at 193. ¶ 28 Our courts have already made clear that pharmacies do not have a duty to determine whether a prescription is “excessive” (see, e.g., Fakhouri, 248 Ill. App. 3d at 330; Hernandez, 2015 IL App (1st) 142990, ¶ 44), and there is no basis to make a legal distinction between an excessive dose for a regular duration and a regular dose for an excessive duration. The rationale for not imposing a duty on the pharmacists in such cases is that the pharmacists did nothing more than fill prescriptions as ordered by physician. Id. at 331-32. To impose a duty to verbally warn on the pharmacist would be to place the pharmacist in the middle of doctor-patient relationship. See id. at 323-33. ¶ 29 Plaintiff relies heavily on our supreme court’s decision in Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179 (2002) for his position that Osco should be liable here. That case is readily distinguishable from the situation presented in this case. In Happel, the supreme court stated that 11 No. 18-0248 a pharmacy could be liable for dispensing drugs to a customer where the pharmacy dispensed a drug to a customer despite that it knew of the customer’s allergies, knew that the prescribed drug was contraindicated for a person with the customer’s allergies, and knew that injury or death was substantially certain to result from the contraindication. Happel, 199 Ill. 2d at 187-90. The supreme court held that the reasons for generally applying the learned intermediary doctrine were not present in that case because the pharmacy knew both that the customer had a drug allergy and that the prescription written for the customer was contraindicated and dangerous for someone with that allergy. Id. at 194. ¶ 30 Here, there is not any allegation that the pharmacy knew of any potential problems with plaintiff taking Reglan. Some of those working in the pharmacy did not even know about the warning, but again, it was plaintiff’s physician’s duty to know. In attempting to bring this case into some harmony with Happel, plaintiff presented evidence on “contraindications” like the drug allergy presented in Happel. Plaintiff argues that since he should have been warned about the risks of a longer-than-12-week Reglan treatment, “[f]or him, Reglan was ‘relatively contraindicated’ for six years.” ¶ 31 Our supreme court addressed contraindications in Happel and stated that “[a] contraindication is a serious limitation on a drug’s use, necessarily implying grave consequences if it is ignored.” Id. at 189. The court continued by explaining that a court in another jurisdiction had noted that “a contraindication refers to ‘a circumstance under which the drug must never be given.’ ” Id. (quoting Hand v. Krakowski, 453 N.Y.S. 2d 121, 123 (1982)). Other courts have used the definition for contraindications used by the American Medical Association, that a “contraindication” is “[a] factor in a person’s condition that makes it inadvisable to participate in a particular treatment, such as taking a certain medication or undergoing surgery.” Happel v. 12 No. 18-0248 Walmart Stores, Inc., 602 F.3d 820, 823 n. 2 (7th Cir. 2010) (quoting American Medical Association Complete Medical Encyclopedia 404 (Jerrold B. Leikin & Martin S. Lipsky eds., 2003)). ¶ 32 Under either or any definition, contraindications refer to specific treatments that might be harmful to a specific patient— like where a specific drug should not be used for a specific person at a specific time. But plaintiff is really trying to make the case that Reglan should be considered contraindicated for anyone after 12 weeks of use. Contraindications speak in terms of specific patients and specific treatments. Reglan was not specifically contraindicated for plaintiff for any articulable reason. Plaintiff presented with no allergy and there was no concern about the interaction of multiple drugs in this case. There is no specific reason that the pharmacy could have known about that would have made plaintiff specifically someone who could not be treated with Reglan longer than 12 weeks. In Happel, it was clear that the drug prescribed to the customer could have never been taken safely and no medical judgment to the contrary would change that. Here, the deposition testimony in the record is clear that Reglan can be and often is prescribed for and taken for a period longer than 12 weeks—it just requires an exercise of medical judgment. ¶ 33 While the supreme court in Happel found that the facts presented therein took the case “outside the purview of the learned intermediary doctrine,” the facts presented here put the case squarely within the doctrine’s purview. Osco did not owe plaintiff the duty of care that it is alleged to have breached. The circuit court properly granted summary judgment for Osco. ¶ 34 III. CONCLUSION ¶ 35 Accordingly, we affirm. ¶ 36 Affirmed. 13
382 B.R. 304 (2008) In re Rick MYERS and Tina Myers. No. 00-53489EE. United States Bankruptcy Court, S.D. Mississippi. January 31, 2008. 305 306 Robert Gambrell, Biloxi, MS, Derek A. Henderson, Jackson, MS, for Debtors. Kimberly R. Lentz, Gulfport, MS, William J. Little, Jr., Jackson, MS, for Chapter 7 Trustee. Robert A, Byrd, Biloxi, MS, Hon. Kelly D. Simpkins Jackson, MS, for Liberty Insurance Co., et al. MEMORANDUM OPINION ON LIBERTY MUTUAL INSURANCE COMPANY'S MOTION TO COMPEL EDWARD ELLINGTON, Bankruptcy Judge. THIS MATTER came before the Court for hearing on Liberty Mutual Insurance Company's Motion to Compel, the Response to Liberty Mutual Insurance Company's Motion to Compel filed by Rick Myers and Tina Myers (Debtors), and the Reply to Response to Liberty Mutual Insurance Company's Motion to Compel filed by Liberty Mutual Insurance Company (Liberty Mutual). After considering the pleadings and the arguments of the parties, the Court finds that Liberty Mutual Insurance Company's Motion to Compel is well taken and should be granted. DISCUSSION a. This Court has jurisdiction of the subject matter and of the parties to this proceeding 307 pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157. This is a core proceeding as defined in 28 U.S.C. § 157(b)(2)(A), (N) and (O). b. On August 17, 2000, the Debtors filed a petition under Chapter 13 of the United States Bankruptcy Code styled Rick and Tina Myers dba P & L Properties dba Express Personnel in the Gulfport Divisional Office of the Southern District of Mississippi. The case was assigned to the Judge Edward R. Gaines.[1] On March 2, 2001, the Debtors converted their case to one under Chapter 7 of the United States Bankruptcy Code. Kimberly R. Lentz (Trustee) was appointed the Chapter 7 Trustee.[2] As stated above, the Court has before it Liberty Mutual Insurance Company's Motion to Compel (Motion) in which Liberty Mutual requests that the Court order John McDonnell, the attorney who prepared the Debtors' schedules and who represented the Debtors at the time of the conversion, to produce a complete copy of his file pertaining to his representation of the Debtors in their bankruptcy and to testify as to what specific information was given to him by the Debtors in order for him to represent them in their bankruptcy. This Motion has evolved out of litigation between the parties which started in state court, was removed to district court and taken up in bankruptcy court. In its Motion, Liberty Mutual asserts that the information to be compelled is relevant to the determination of whether the Debtors' conversion from a Chapter 13 to a Chapter 7 was in bad faith. When Liberty Mutual attempted to depose Mr. McDonnell, he refused to testify on the basis of attorney-client privilege. Liberty Mutual contends that the attorney-client privilege does not arise in this case. Alternatively, Liberty Mutual asserts that even if the attorney-client privilege does arise in this situation, the Debtors waived it. When Liberty Mutual deposed Mr. Myers and questioned him about his schedules and about the conversion of the Chapter 13 to a Chapter 7, Mr. Myers pled reliance on his attorney's advice. Consequently, Liberty Mutual contends that the motion to compel should be granted because even if the attorney-client privilege did arise, Mr. Myers waived it when he pled reliance on his attorney's advice. As the attorney-client privilege belongs to the client. Liberty Mutual asserts that Mr. McDonnell may not use the shield of attorney-client privilege once his client has waived it. In their Response to Liberty Mutual Insurance Company's Motion to Compel (Response), the Debtors first contend that the Motion to Compel is untimely and should be denied. The Debtors further contend that the discovery Liberty Mutual is attempting to obtain pertains to the question of whether the cause of action against Liberty Mutual is property of the bankruptcy estate because the Debtors converted to a Chapter 7 in bad faith. The Debtors allege that the cause of action against Liberty Mutual did not accrue until after the Debtors converted to a Chapter 7, and therefore, it makes no difference whether the case was converted in bad faith or not because the cause of action 308 against Liberty Mutual accrued after the date of conversion and is not property of the estate. Consequentially, the Debtors assert that Liberty Mutual is not entitled to the discovery. In addition, the Debtors contend that the discovery sought by Liberty Mutual is protected by the attorney-client privilege and that the Debtors have not waived the attorney-client privilege. Therefore, the issue before the Court is whether the attorney-client privilege applies to prevent Liberty Mutual from obtaining the discovery it is seeking. c. The Court finds the Debtors' contention that the Motion to Compel should be denied as it is untimely to be without merit. As stated previously, these parties have been involved in litigation in three different courts and with at least four different judges. Because of the convoluted path this matter has taken, the Court does not find that the Motion is untimely. The Court also finds without merit the Debtors' position that the discovery requested by Liberty Mutual is unnecessary because the cause of action against Liberty Mutual accrued after the date of conversion, and therefore, is not property of the Debtor's estate. Whether the cause of action is property of the Debtors' estate is an issue that must be determined by this Court at a later date.[3] d. The purpose of the rules of evidence is to facilitate all parties in ascertaining the truth. However, privileges exist that permit the exclusion of evidence in order to protect a relationship or an interest. "Since the effect of a privilege is to suppress the truth, a privilege should be recognized only if the interest or relationship is of outstanding importance and would undoubtedly be harmed by denying the protection of privilege." Barry Russell, Bankruptcy Evidence Manual § 501.1,1023 (Thomson/West 2007). Federal Rule of Evidence 501 states: Rule 501. General Rule Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a . . . person, . . . thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a . . . person, . . . thereof shall be determined in accordance with State law. Fed.R.Evid. 501. The Mississippi rule on lawyer-client privilege states in pertinent part: 309 RULE 502. LAWYER-CLIENT PRIVILEGE . . . . (b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself . . . and his lawyer or his lawyer's representative,. . . . (c) Who May Claim the Privilege. The privilege may be claimed by the client,. . . . The person who was the lawyer . . . at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client. Miss. R. Evid. § 502(b) (emphasis added). The attorney-client privilege was created in order to ensure the honest and open communication between attorneys and their clients. "The privilege serves the purpose of promoting full and frank communications." In re Eddy, 304 B.R. 591, 596 (Bankr.D.Mass.2004) (quoting Upjohn v. United States, 449 U.S. 383, 389, 101 S.Ct. 677; 66 L.Ed.2d 584 (1981)). Open and honest communication is the foundation of the relationship between attorneys and their clients. Without the privilege, clients would not divulge important confidential information to their attorneys, and therefore, their attorneys would not be able to provide adequate advice or representation. "The privilege, however, is not meant to serve as an all-purpose shield. Since the attorney-client privilege may obstruct the search for truth, it should be strictly construed and applied only where necessary to ensure fully informed legal advice." Id. In the context of a bankruptcy, the attorney-client privilege is narrowed. As aptly explained by the Honorable Henry J. Boroff in In re Eddy: In exchange for an automatic stay of creditor collection activity and potential discharge of certain debt, debtors are obligated to disclose all of their assets and liabilities. U.S. v. White, 950 F.2d 426, 430 (7th Cir.1991); In re French, 162 B.R. 541, 548 (Bankr.D.S.D.1994). These disclosures are necessary to ensure that bankruptcy relief is accorded only to the honest and compliant debtor. French, 162 B.R. at 548. A debtor has no reasonable expectation that information will be kept confidential if it must be disclosed in bankruptcy filings, Id. at 547 (citing to White, 950 F.2d at 430), and where the Debtor has no reasonable expectation of confidentiality, the attorney-client privilege is unavailable. See Epstein at 4 (citing to J. Wigmore, Evidence § 2285 at 527). Thus, it has been previously held that the information disclosed to an attorney for the assembly of a bankruptcy petition and schedules does not fall within the scope of the attorney-client privilege. White at 430; French at 548. In re Eddy, 304 B.R. at 596. In the case at bar, the Debtors were obligated to disclose all liabilities, and especially, all assets as part of an honest financial reorganization. Therefore, the Debtors had no reasonable expectation that the information they gave Mr. McDonnell would be kept confidential. Consequently, there is no attorney-client privilege which would prevent Liberty Mutual from obtaining the documents it is seeking. Assuming for the sake of argument that the privilege did exist, once Mr. Myer raised the advice of his attorney as part of his defense, he waived the privilege. "Once a party has used communications between himself and his attorney as 310 a claim or defense, it would be unfair to deny the opposing party discovery of the only information relevant to such claim or defense on a claim of privilege. Such use of the attorney-client privilege would transform it from a defense against intrusion into a weapon in the battlefield of litigation." In re Fortune Natural Resources Corp., 350 B.R. 270, 274 (Bankr. E.D.La.2005). See also Cuervo v. Snell (In re Snell), 232 B.R. 684, 685 (Bankr. S.D.Ohio 1999)(where the advice of a lawyer is made the basis of a defense fairness requires that the privilege has been waived). In addressing this same issue, the Mississippi Supreme Court held that "(w)hen Moore used confidential communications with her attorney to toll the statute of limitations, she used the attorney-client privilege as a sword: fairness requires that she not now be allowed to hide behind the shield of attorney-client privilege." Jackson Medical Clinic for Women v. Moore, 836 So.2d 767, 773 (Miss.2003). Additionally, there are exceptions to the attorney-client privilege. Section 502(d) states in pertinent part: (d) Exceptions. There is no privilege under this rule: (1) Furtherance of Crime or Fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonable should have known to be a crime or fraud. Miss. R.Evid. § 502(d)(1). "The privilege between client and attorney ceases when the purpose of the privilege is abused, when the lawyer becomes either the accomplice or the unwitting tool in a continuing or planned wrongful act." United States v. Ballard, 779 F.2d 287, 292 (5th Cir.1986), cert. denied, 475 U.S. 1109, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). In the district court litigation involving the same parties. Judge Wingate previously ruled on the crime or fraud exception to the privilege. In his Order denying the plaintiffs motion to quash the subpoena of Mr. McDonnell, Judge Wingate stated: "If . . . the client seeks legal advice for the purpose of being assisted or guided in the commission of a crime or the perpetration of a fraud, the communication is not sheltered." United States v. Ballard, 779 F.2d 287, 290 (5th Cir. 1986). This court is persuaded that the motion to quash should be denied because the attorney-client privilege does not cover documents relevant to legal representation procured in furtherance of fraud. Further, these documents are essential to the court's determination of whether fraud was, in fact, perpetrated. Wingate, J. Infinity Services of Miss., LLC. and Rick Myers v. Liberty Mutual Insurance Co., et. al., Case No. 3:04cv392-HTW-JCS, Order, p. 2, September 26, 2005. Likewise, this Court also finds that the attorney-client privilege does not exist as to legal representation procured in furtherance of fraud. The Court is of the opinion that at this stage of the proceedings, Liberty Mutual has produced enough proof to raise a legitimate question at to the possibility of fraud on the part of the Debtors. Therefore, the attorney-client privilege does not exist as to the documents and testimony requested by Liberty Mutual. As Judge Wingate stated, these documents are essential to the court's determination of whether fraud was, in fact, perpetrated. Id. CONCLUSION When information is disclosed by a debtor to his bankruptcy attorney for the purpose of preparing and assembling the *311 schedules and supporting documents, there is no reasonable expectation that the attorney will keep the information confidential because it will be disclosed on documents publically filed with the bankruptcy court. Therefore, the attorney-client privilege does not arise. Further even if the privilege existed, once Mr. Myer raised the advice of his attorney as part of his defense, he waived the attorney-client privilege. In addition, the attorney-client privilege does not exist if the legal representation was used in order to commit a crime or fraud. Therefore, the attorney-client privilege is not a bar to prevent Liberty Mutual from obtaining the information it is seeking from the Debtors. A separate order will be entered. NOTES [1] In 2007, Judge Gaines recused himself and transferred the Debtors' bankruptcy case and related adversary proceeding to the Jackson Divisional Office of the Southern District of Mississippi. Judge Edward Ellington was assigned the case. [2] C. Thomas Anderson was the Chapter 7 Trustee when the Debtors converted from a Chapter 13 to a Chapter 7. The case was closed. When the Debtors reopened their case, Kimberly R. Lentz was appointed the Chapter 7 Trustee. [3] Contrary to the Debtors' position, the Court will note that in the district court litigation between the parties. Judge Henry T. Wingate held that: "Mississippi courts have held that a cause of action based on a false representation, such as the claims at issue here, `accrues upon the completion of the sale induced by such false representation or upon the consummation of the fraud.'" Black v. Carey Canada,' Inc., 791 F.Supp. 1120, 1123 (S.D.Miss.1990); FDIC v. Belli, 981 F.2d 838, 840 (5th Cir.1993) (cause of action accrues when it comes into existence, not when it is discovered). The first policy was issued in December of 2000 while the bankruptcy was open, and prior to the conversion. Accordingly, this court finds that the cause of action is core since: (1) the cause of action accrued prior to the conversion, (2) it is property of the bankruptcy estate if the conversion was fraudulent, and (3) it effects the liquidation of the assets of the bankruptcy estate. Wingate. J. Infinity Services of Miss., LLC and Rick Myers v. Liberty Mutual Insurance Co., et. al., Case No. 3:04cv392-HTW-JCS. Order, p. 6-7. March 24, 2005.
12 Ill.2d 608 (1958) 147 N.E.2d 356 ALBERT J. HUNSLEY et al., Appellants, v. ARNOLD VALTER et al., Appellees. No. 34551. Supreme Court of Illinois. Opinion filed January 24, 1958. 609 JOHN W. FRIBLEY, of Pana, and SWEENEY & SWEENEY, of Taylorville, for appellants. HERSHEY & BLISS, of Taylorville, and ROY M. RHODES, of Springfield, for appellees. Decree affirmed. Mr. JUSTICE BRISTOW delivered the opinion of the court: Appellants commenced an action to quiet title in them to the mineral rights underlying a rectangular tract of land of approximately 20 acres, located in Christian County. Appellees and their predecessors in title owned and possessed a rectangular 20-acre tract immediately to the south of the land in which appellants claimed an interest. The north 20 acres is traversed from northwest to southeast by a branch of the Sangamon River. Thus a 5.16-acre segment of the southwest portion of the north acreage is separated from the remainder of that property. The 5.16-acre segment is contiguous to the south tract and is not separated therefrom by a natural boundary. Appellants contended that their predecessor in title acquired the north 20 acres in 1903, and conveyed it to a third party in 1918, reserving to himself the coal and mineral 610 rights, which appellants claimed by devolution. Certain defendants denied the allegations of the complaint as to the 5.16-acre segment, and sought by counterclaim to quiet title in themselves to the mineral rights thereunder. Their counterclaim was based upon an alleged adverse and continuous possession of the segment for a period in excess of 20 years by their predecessor in title. (Ill. Rev. Stat. 1957, chap. 83, par. I.) They contended that the adverse possession commenced in 1913, that is, prior to the separation of the surface and mineral estates by plaintiffs' predecessors in title. Valter, the remaining defendant, was the oil-and-gas lessee of the other defendants. His counterclaim, seeking a declaration that his oil-and-gas lease was valid as against the plaintiffs was predicated upon the same prescriptive rights asserted by his lessor codefendants. For present purposes, we may treat all defendants as a unity. The evidence for the defendants tended to show that a portion of the 5.16-acre segment was occupied by trees and a slough; that the remainder had been cleared for farming, and was continuously occupied and farmed by the defendants' predecessor in title or his tenants from 1913 until the date the counterclaim was filed. Defendants' claim of adverse possession was predicated upon said occupancy and use. At the conclusion of the evidence, the chancellor dismissed plaintiffs' complaint for want of equity, allowed the counterclaims filed by the defendants, and entered a decree, quieting title in the plaintiffs to the mineral rights in that part of the north 20 acres lying north of the river, and quieting title in the defendants to the mineral rights in the 5.16-acre segment lying south of the river. Plaintiffs appeal from those portions of the decree dismissing their complaint and quieting title in the defendants to the 5.16 acres. They insist that the original possession by the defendants' predecessor in title was permissive, with 611 the consequence that prescriptive rights in defendants could not result, absent a clear, unequivocal, and notorious disclaimer of the rights of plaintiffs' predecessor in title, prior to the severance of the mineral rights in 1918. They further contend that the evidence offered by the defendants on the issue of adverse possession was not of sufficient weight to warrant the decree of the trial court. Appellants have not offered reasons why the dismissal of their complaint should be set aside. Nor could they. In their complaint, they alleged acquisition by their predecessor in title to the entire north 20-acre tract; his conveyance of the surface rights and reservation of mineral rights in 1918, and their ownership of those mineral rights by devolution. They further alleged the execution by the defendants of oil-and-gas leases to the 5.16-acre tract. Plaintiffs neither alleged nor proved their occupancy of the 5.16 acres at the time of filing suit, or that the land was at that time vacant and unoccupied. We have held that failure to allege and prove possession or vacancy of property is a jurisdictional defect in a suit to quiet title or remove a cloud. (First National Bank of Assumption v. Gordon, 371 Ill. 424, 426; McGookey v. Winter, 381 Ill. 516, 526.) Nor does the situation differ when the property in question is a mineral estate as distinguished from a surface estate. Pickens v. Adams, 7 Ill.2d 283, 291. Plaintiffs adduced evidence from two of their number, the sons of plaintiffs' predecessor in title. They testified that in 1903 their father, one Thomas Hunsley, purchased the 20-acre tract; that they cleared timber from a portion of the 5.16 acres south of the river in the spring of 1903; that their father rented the 5.16 acres to one John Finlay, the tenant of defendants' predecessor in title to the 20-acre tract to the south. Finlay continued to pay rent upon the 5.16 acres and to farm it until 1911. The witnesses testified that in 1913 one Roland Cook commenced to farm the 5.16 acres. One of the two witnesses testified that Cook 612 once paid his father $10 rent in 1914 or 1915. That witness testified that he lived with his father on the 20 acres to the north until 1911, when he moved. In support of their countercomplaint, the defendants called Walter Cook as a witness. He testified that, in partnership with his father, Roland Cook, he farmed the 5.16 acres from 1913 to 1936. During that time they were the tenants of defendants' predecessor in title to the 20 acres to the south. Walter Cook stated that all of the land south of the river was farmable, save for about an acre in a pond, and that he farmed all of the land that was farmable. He testified that during the entire time that he was a tenant on the property in question he and his father paid rent to their landlord on all that part of the property south of the river. On cross-examination, Walter Cook stated that he did not pay any rent to Thomas Hunsley and that he did not know whether his father had paid Hunsley rent. On redirect examination, he testified that he would have known had his father paid Hunsley rent. Other defense witnesses testified that they had camped on the 5.16 acres before the conveyance in 1918 by Thomas Hunsley and that the small tract was then considered to belong to the owner of the 20-acre tract to the south. The plaintiffs offered no evidence of possessory acts with regard to the 5.16 acres subsequent to 1915. Indeed, the last undisputed possessory act by the plaintiffs or their predecessor occurred in 1911. Granting permissive possession by Finlay from 1903 to 1911, it does not follow that possession by Walter Cook and his father, commencing in 1913, two years after Finlay's departure, was similarly permissive. Nor does it follow that permissive usage by Finlay was likewise permissive usage by his lessor of the south 20 acres. Clearly, when Walter Cook and his father became the tenants of the owners to the south, they paid rent to their landlord not only for the use of the 20-acre tract, but also for the use of the 5.16-acre tract. In 613 short, they relied upon the rights of defendants' predecessors in title to the 5.16 acres. Plaintiff's testimony indicated that Walter Cook's father once gave Thomas Hunsley $10 for rent. There was no evidence as to what was being rented. Whatever the weight of that testimony, it was amply rebutted by Walter Cook's testimony to the effect that he did not know of payment by his father to Hunsley and that he would have known had such a payment been made. In this connection, we observe that the supposed payment by Roland Cook to Thomas Hunsley occurred from three to four years subsequent to the time at which the witness who so testified had moved from the Hunsley tract. Walter Cook was not a party to this litigation and apparently had no motivation which might account for a mistake in his recollection. The trial judge saw and heard the witnesses while they testified. His evaluations of their testimony, as evidenced by his decree, must prevail unless they are palpably contrary to the weight of the testimony. Appellants contend that the defendants failed to make sufficient proof of adverse possession by their predecessor in title of the 5.16-acre tract. In Schwartz v. Piper, 4 Ill.2d 488, 492, we again enumerated the elements required to constitute proof of adverse possession. Such possession must be hostile, actual, visible and notorious, exclusive, continuous, and under claim of ownership. In 1913, when the Cooks entered upon the 5.16-acre tract, they did so as tenants of the owner of the 20 acres to the south. Their payment of rent from 1913 to 1936 evidenced a recognition of the title of defendants' predecessors. Another witness testified that from 1936 until the date of the filing of the counterclaim, payments of rent continued to be made to defendants' predecessors. Hostility of possession does not imply an ill will, only an assertion of ownership adverse to that of the true owner and all others. (Kinder v. LaSalle County Carbon Coal Co. 301 Ill. 362, 614 366.) As noted, the supposed permissive possession by Finlay could not affect the defendants' rights in the absence of some relationship between Finlay's and the owners of the south 20 acres with respect to the 5.16-acre tract. The hiatus of two years separating Finlay's departure from the possession of Cook serves further to negate the possibility of continuous permissive use. The unrebutted evidence of the defendants showed that their possession of the 5.16 acres was an actual possession in excess of 40 years. Their tenants occupied it and farmed it for that period of time. Nor can plaintiff successfully contend that such possession was neither visible, notorious, and exclusive, all of the evidence being quite to the contrary. The acts required to accomplish adverse possession may vary, depending upon the nature of the property itself and the uses to which it may be adapted. (Chicago Title and Trust Co. v. Darley, 363 Ill. 197, 202.) Thus, as here, cultivation of the land may be sufficient. (Siegle v. Criss, 304 Ill. 338, 347.) The acts of the various tenants on the south 20 acres with reference to the 5.16-acre tract were such acts of dominion as would indicate to neighbors that the owners of the south 20-acre tract, acting by their tenants, exercised the exclusive control and management of the property. Chicago Title and Trust Co. v. Darley, 363 Ill. 197. Plaintiffs further complain that the defendants' predecessors in title never made known to the plaintiffs' predecessor in title that they were asserting a hostile claim to any portion of the 5.16 acres. As we observed in Leonard v. Leonard, 369 Ill. 572, 577: "No mere words could assert title more satisfactorily than a continued exercise of ownership over the lands for a period of more than twenty years. Using and controlling property as an owner is the ordinary mode of asserting a claim of title. * * " Appellants invite our attention to McIntyre v. McIntyre, 287 Ill. 544, and New York Central Railroad Co. v. Kinsella, 615 324 Ill. 339, in support of the proposition that proof of adverse possession must be by clear, positive, and unequivocal evidence. In both of the cited cases, the parties asserting the prescriptive rights testified to intermittent and merely occasional use of the premises. Here exclusive and continued use has been established by ample evidence. Plaintiffs further insist that there was insufficient evidence as to what portion of the 5.16-acre tract was cultivated. Plaintiffs' witnesses testified that about 2 1/2 acres had been cleared, the remainder being slough and trees. Other witnesses testified that about 3 acres were cleared for farming and that a pond covered about an acre. Walter Cook testified that he cultivated all of the land south of the river that was arable. The presence of a small pond on the property and the possibility that every square foot of the property may not have been cultivated does not defeat defendants' adverse possession of the 5.16-acre segment as a whole. Here there was an apparent effort to cultivate and occupy all of the segment. Nor can the significance of the fact that the river creates a natural boundary be overlooked. It is apparent that the acts of the adverse possessors extended to the river to the extent that the swampy character of the land permitted. The testimony disclosed that the owners of the south 20 acres permitted persons to camp along the river where it cut through the north 20 acres. While occasional camping could not ripen into title, the fact that the campers turned to the owners of the south 20 acres for permission to camp on the uncultivated portions of the 5.16 acres is indicative of the claim of defendants' predecessors in title to all of the 5.16 acres of land south of the natural boundary. We conclude that the chancellor's findings and conclusions were amply supported by the evidence. As is evidenced by his decree, the chancellor agreed with the parties hereto that where the mineral and surface estates are separated subsequent to the commencement of adverse possession, *616 the continued adverse possession of the surface carries with it the prescriptive rights to subsurface minerals, as though the record title to surface and mineral estates had not been severed. In this we concur. (See Annotation 35 A.L.R. 2d, 124, 149-154.) The holding is not in conflict with our previous rulings that where the severance of surface and mineral estates occurs previous to the adverse possession, commencement of possession of the surface does not of itself result in prescriptive rights to the minerals below the surface. Pickens v. Adams, 7 Ill.2d 283, 292; Kinder v. LaSalle County Carbon Coal Co. 301 Ill. 362. The decree of the circuit court is supported by the evidence, and it is affirmed. Decree affirmed. Mr. JUSTICE HERSHEY took no part in the consideration or decision of this case.
629 So.2d 1022 (1993) Lenoria WIGGINS, Appellant/Cross-Appellee, v. SOUTHERN MANAGEMENT CORPORATION, Appellee/Cross-Appellant. No. 92-2841. District Court of Appeal of Florida, Fourth District. December 29, 1993. Rehearing, Rehearing and Suggestion to Certify Denied January 26, 1994. 1023 Isidro M. Garcia, Joseph A. Vassallo, P.A., Lake Worth, for appellant, cross-appellee. Carla L. Brown, Honigman Miller Schwartz and Cohn, West Palm Beach, for appellee, cross-appellant. Rehearing, Rehearing En Banc and Suggestion to Certify Denied January 26, 1994. POLEN, Judge. Lenoria Wiggins brings this appeal from an order that dismisses her complaint against her former employer, Southern Management Corporation ("Southern"), with prejudice. Southern cross-appeals from the trial court's denial of its prayer for attorney's fees under section 57.105, Florida Statutes (1991). We affirm both orders. Southern owns and operates a Burger King franchise in Belle Glade, where appellant worked prior to her termination. Following her termination from Burger King, appellant filed a one-count complaint against Southern, wherein she alleged that Southern's termination of her employment was retaliatory in nature. Appellant further alleged that the termination occurred because appellant provided testimony adverse to Southern in an unemployment compensation hearing involving appellant's sister and that such termination violated section 92.57, Florida Statutes (1991). Southern filed a motion to dismiss the complaint, on which the trial court heard argument and then granted with prejudice. Subsequently, the trial court entered an "explanatory" order that dismissed the complaint with prejudice. In the latter order, the trial court stated that (1) appellant could not state a cause of action under section 92.57, as that statute limits the right of action for wrongful termination to those individuals who testify pursuant to a subpoena; and, (2) appellant could not state a common law cause of action either, because she was an employee at will. Appellee then filed a 1024 motion for attorney's fees under section 57.105, Florida Statutes, which the court denied. Appellant argues that the trial court's dismissal of her complaint with prejudice violates public policy as reflected by the legislature's enactment of section 92.57, Florida Statutes (1991). Section 92.57, "Termination of employment of witnesses prohibited.-" provides: A person who testifies in a judicial proceeding in response to a subpoena may not be dismissed from employment because of the nature of the person's testimony or because of absences from employment resulting from compliance with the subpoena. In any civil action arising out of a violation of this section, the court may award attorney's fees and punitive damages to the person unlawfully dismissed, in addition to actual damages suffered by such person. Appellant asks this court to engage in a "reasonable construction" of section 92.57; she contends that this court should construe section 92.57 as an attempt by the legislature to encourage truthful testimony, whether compelled or uncompelled. Appellee responds that section 92.57 does not afford appellant relief for two reasons: First, appellant is precluded from recovery under the section because she testified in an unemployment compensation hearing, as opposed to a trial or judicial hearing. Second, appellant testified voluntarily, not under subpoena, and the plain language of the statute reflects a legislative intent to protect individuals who testify under subpoena, as opposed to those who testify voluntarily. We reject appellee's first contention, but we are constrained to agree with the second. Unemployment compensation hearings are held under the authority of the unemployment compensation appeals commission, which is a division of the Department of Labor and Employment Security. § 443.036(13), Fla. Stat. The latter department is an administrative agency, which is designated a part of the legislative branch of government. Notwithstanding, administrative agencies may perform quasi-judicial duties under the authority granted to them by the legislature. See Canney v. Board of Public Instruction, 278 So.2d 260 (Fla. 1973). Consequently, hearing officers in the unemployment compensation division (or appeals referees) serve as triers of fact and resolve evidentiary conflicts presented at the unemployment compensation hearings. See David Clark & Assoc. v. Kennedy, 390 So.2d 149 (Fla. 1st DCA 1980). Further, if requested to do so, an appeals referee must issue a subpoena, where the witness is concerned that his testimony may result in a retaliatory employment termination. See O'Blenis v. Florida Dept. of Labor and Employment Security, 388 So.2d 1099 (Fla. 4th DCA 1980).[1] We hold that for purposes of section 92.57, an unemployment compensation hearing is a judicial proceeding. Although appellant testified at a judicial proceeding, she does not dispute that she testified voluntarily on her sister's behalf; she did not testify under subpoena. Under the plain language of section 92.57, appellant is not entitled to relief. Where the terms of a statute are clear, definite and unambiguous, there can be no judicial interpretation or construction. See State v. Egan, 287 So.2d 1 (Fla. 1973). Under those circumstances, a court has no power to read or construe the statute in a manner that extends, modifies, or limits its express terms. See LaCentra Trucking v. Flagler Fed. Savings & Loan, 586 So.2d 474 (Fla. 4th DCA 1991). "Inference and implication" cannot be substituted for "clear expression." See Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362, 364 (Fla. 1977). Accordingly, we hold that the trial court correctly dismissed appellant's complaint with prejudice. We do, however, find appellant's public policy argument compelling[2]. We can 1025 foresee other circumstances, apart from the instant case, where retaliatory termination stemming from testimony given at a judicial proceeding would effect a gravely unjust result. While we are mindful that knowledge of the law is imputed to members of the bar, we recognize that many unemployment appeals claimants are not represented by an attorney. In an effort to present their cases, pro se claimants carry the burden of obtaining evidence in their favor, including the securing of witnesses, if any, to testify in their behalf.[3] Without assistance of counsel, and hence equipped with the knowledge of the average lay person, ordinarily a pro se claimant has no one to advise her that she must request the appeals referee to issue a subpoena to a witness who would otherwise testify voluntarily. Furthermore, as in the instant case, the fact that the claimant is represented by counsel does not guarantee that a witness will be protected under section 92.57. A claimant's attorney owes no duty to the claimant's witnesses to advise them of potential retaliation from their employers and to secure subpoenas for them for their protection. Thus, for all practical purposes, section 92.57, as currently written, protects only those persons who are aware of its existence, which most frequently will be a witness himself represented by counsel.[4] As a result, we would encourage the legislature to revisit this issue to determine whether the requirement of a subpoena is necessary to effect the legislative intent behind section 92.57. As to appellee's cross-appeal, we affirm the trial court's denial of appellee's prayer for attorney's fees brought under section 57.105, Florida Statutes. We disagree with appellee's contention that appellant's claim was frivolous, i.e., that there was a complete absence of a justiciable issue of law or fact, so as to entitle appellee to attorney's fees under this section. In Whitten v. Progressive Casualty Ins. Co., 410 So.2d 501 (Fla. 1982), the supreme court defined a frivolous claim, in part, as "one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed." Id. at 505. This court has recognized the validity of permitting good faith efforts to change existing law and has not characterized such actions as frivolous. See Jones v. Charles, 518 So.2d 445 (Fla. 4th DCA 1988). In Jones, this court held that "[a] party asserting a good faith, soundly-based attempt to change an existing rule of law is not subject 1026 to attorney's fees under section 57.105." Id. at 446. We cannot think of a more fitting example of a good faith attempt to change existing law, grounded on solid public policy considerations, than the one at bar. Accordingly, we affirm the trial court's denial of appellee's prayer for attorney's fees. HERSEY and PARIENTE, JJ., concur. NOTES [1] We agree with appellee's assertion that appellant had the option to request that the appeals referee issue a subpoena to her prior to her appearance at the hearing. This simple procedural tactic would have afforded her section 92.57 protection. [2] We agree that there is a public policy interest to secure truthful testimony in all judicial proceedings. Ideally, no one should have to fear retaliatory employment termination as the result of their testimony. We note, however, that prior to the legislature's enactment of section 92.57 in 1990, there was no law in Florida to protect individuals who testified against their employer's interests, whether or not their testimony was obtained by subpoena. As such, section 92.57 takes a step in the right direction. [3] We can certainly recognize that one who testifies under subpoena must be protected from retaliatory employment termination, because they are (presumably) coming to the claimant's aid involuntarily. As a result, it can ultimately only assist triers of fact in their truth-seeking endeavors to have section 92.57. If in fact a person is subjected to retaliatory employment termination after giving testimony under subpoena, they now have an action at law. However, there is something very troublesome about providing no protection or remedy to one who testifies willingly, without subpoena, with the sole interest of aiding a friend or relative, or because they perceive that they are "doing the right thing." [4] Florida does not recognize an exception to the at-will doctrine in the form of a common-law tort for retaliatory discharge from employment. See Smith v. Piezo Technology and Professional Administrators, 427 So.2d 182 (Fla. 1983). Thus, "where the term of employment is discretionary with either party or indefinite, then either party for any reason may terminate it at any time and no action may be maintained for breach of the employment contract." DeMarco v. Publix Super Markets, 360 So.2d 134 (Fla. 3d DCA 1978), aff'd, 384 So.2d 1253 (Fla. 1980); see also Wynne v. Ludman Corp., 79 So.2d 690 (Fla. 1955). This court relied on DeMarco in Jarvinen v. HCA Allied Clinical Lab., 552 So.2d 241 (Fla. 4th DCA 1989), wherein it held that because Jarvinen was an employee at will, she had no recourse against HCA after HCA fired her for adversely testifying against its interests. Indeed, had Jarvinen been decided after the enactment of section 92.57, the result therein would have been different, because Ms. Jarvinen testified under subpoena. Appellant claims that section 92.57 repudiates this court's decision in Jarvinen v. HCA Allied Clinical Laboratories, 552 So.2d 241 (Fla. 4th DCA 1989). Nevertheless, when the legislature "repudiated" the Jarvinen decision, it did so only to the extent that it sought to protect those who testify under subpoena. Its enactment still does not address appellant's plight. For all we know, Judge Glickstein's concurring opinion in that case, while addressed to the supreme court, may have been the catalyst for the legislature's enactment of section 92.57.
FILED NOT FOR PUBLICATION MAR 03 2014 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SANFORD D. JONES, No. 11-56503 Plaintiff - Appellant, D.C. No. 2:07-cv-08194-PA v. MEMORANDUM* LEE D. BACA, Sheriff of Los Angeles County; COUNTY OF LOS ANGELES, a public entity, Defendants - Appellees. Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding Submitted February 18, 2014** Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges. Sanford D. Jones appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional violations during his detention in the Los Angeles County Jail pursuant to California’s Sexually Violent * 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). Predator Act (“SVP Act”). We review de novo, Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004), and we affirm. The district court properly granted summary judgment because, even assuming that a constitutional deprivation occurred, Jones failed to raise a genuine dispute of material fact as to whether any such constitutional deprivation resulted from an official county custom or policy, whether Baca was personally involved in any constitutional violation, or whether there was a causal connection between Baca’s conduct and any such violation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978) (requirements for municipal liability); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (requirements for supervisory liability); see also Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (party opposing summary judgment must present “significant probative evidence tending to support its claim that material, triable issues of fact remain” (citation and internal quotation marks omitted)). We reject Jones’s contention that his detention in a jail pursuant to the SVP Act is unconstitutional. See Jones, 393 F.3d at 932 (declining to hold that involuntary civil commitment detainees cannot be housed in jail). We also reject Jones’s contention that he raised a genuine dispute of material fact based on the “totality of conditions” of his confinement. Hoptowit v. Ray, 682 2 11-56503 F.2d 1237, 1246 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995) (courts generally may not find constitutional violations based on the totality of conditions of confinement). We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam). AFFIRMED. 3 11-56503
SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 125 CA 13-00287 PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ. A&M GLOBAL MANAGEMENT CORP., PLAINTIFF-APPELLANT, V MEMORANDUM AND ORDER NORTHTOWN UROLOGY ASSOCIATES, P.C., JOHN M. ROEHMHOLDT AND JACEK T. SOSNOWSKI, DEFENDANTS-RESPONDENTS. (APPEAL NO. 2.) HOGAN WILLIG, PLLC, AMHERST (ROBERT MICHALAK OF COUNSEL), FOR PLAINTIFF-APPELLANT. DAMON MOREY LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), FOR DEFENDANT-RESPONDENT JOHN M. ROEHMHOLDT. HURWITZ & FINE, P.C., BUFFALO (EARL K. CANTWELL OF COUNSEL), FOR DEFENDANT-RESPONDENT JACEK T. SOSNOWSKI. Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered December 11, 2012. The order, among other things, awarded defendant Jacek T. Sosnowski attorneys’ fees and costs against plaintiff. It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion of defendant Jacek T. Sosnowski and vacating the award of attorneys’ fees and costs against plaintiff and as modified the order is affirmed without costs. Same Memorandum as in A&M Global Mgt. Corp. v Northtown Urology Assoc., P.C. ([appeal No. 1] ___ AD3d ___ [Mar. 28, 2014). Entered: March 28, 2014 Frances E. Cafarell Clerk of the Court
534 Pa. 424 (1993) 633 A.2d 1069 COMMONWEALTH OF PENNSYLVANIA, Appellee, v. Mary NEWMAN, Appellant. Supreme Court of Pennsylvania. Argued March 10, 1992. Decided November 1, 1993. 425 426 Graydon R. Brewer, Greenfield & Associates (court-appointed), Pittsburgh, for appellant. Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Kemal A. Mericli, Asst. Dist. Atty., Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for appellee. Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ. OPINION ZAPPALA, Justice. At issue in this appeal is the applicability of Act 16 of 1989, which rewrote the statutory provision dealing with spouses as witnesses against each other, 42 Pa.C.S. § 5913 (Supp.1993), and the interplay between that section and the provision dealing with confidential communications between spouses, 42 Pa.C.S. § 5914 (Supp.1993). Mary Newman, the Appellant, was subpoenaed to testify at a coroner's inquest/preliminary hearing on November 14, 1989, concerning a charge of homicide against her husband, Kenneth Newman, arising out of the death of Raymond Little in March of 1988. The Commonwealth's offer of proof with respect to her testimony was that she was present and observed certain events involving her husband, the victim, and a co-conspirator, and that her husband had admitted to her that he struck the victim on the head with a stone. According to the Commonwealth, the Appellant had provided this information to detectives investigating the homicide. Upon her refusal to testify at the coroner's inquest, the Court of Common Pleas of Allegheny County entered an order holding her in contempt. A stay of incarceration was granted pending this appeal. 427 We must first address the Appellant's argument that Act 16 of 1989 does not apply to this case and thus 42 Pa.C.S. § 5913 as it existed before June 29, 1989, states the controlling rule. This question must be resolved at the outset, for if the Appellant is correct, she is not competent as a witness against her husband. We find no merit to this argument, however. Prior to the passage of Act 16 of 1989, Section 5913 stated a general rule disqualifying a husband or wife from giving any testimony adverse to the spouse. It also stated several exceptions to this broad rule. One spouse could give testimony against the other in proceedings for desertion and maintenance, in cases where husband or wife was charged with threatening, attempting, or committing an act of bodily injury or violence against the spouse or any child in their care, and in cases of bigamy. Act 16 of 1989 rewrote this section, changing it from a rule rendering one spouse incompetent to testify against the other to a rule recognizing a privilege not to testify against one's spouse. The exceptions were carried over; thus, in cases where previously an exception rendered a spouse competent to testify, now it is stated that there is no privilege in such situations. Additionally, an exception was added for cases where the charges include murder, rape, or involuntary deviate sexual intercourse.[1] 428 Thus, if Act 16 does not apply, the Appellant is incompetent to testify against her husband and no exception applies that would permit her testimony. If it does apply, she is a competent witness and she has no privilege not to testify, since "one of the charges against [her husband] includes murder." The Appellant's argument that Act 16 does not apply is based on section 2, which states that the Act "shall apply to all criminal cases pending on the effective date" of the Act, which was June 29, 1989. The Appellant notes that the death occurred in March of 1988 and that the man charged as a co-conspirator in the crime had pled guilty prior to the adoption of Act 16. Accordingly, there was no case pending on the effective date of the Act. Indeed, argues the Appellant, the Commonwealth did not originally file charges against Kenneth Newman because without the testimony of his wife the case would have been too difficult to prove; charges were brought after the Act became effective on the belief that the Appellant could then be compelled to testify. This argument is specious. Obviously the General Assembly intended Act 16 to apply to all cases initiated after the effective date. The "pending cases" language of Section 2 does no more than express the legislature's intention that the new rule should apply to cases already "in the system" as well. Such cases would necessarily involve criminal conduct occurring before the effective date of the Act; thus, it is clear that the legislature made a conscious decision not to limit the application of the Act to criminal conduct occurring after its effective date. Since the hearing in this case at which the Appellant was called to testify was held on November 14, 1989, the rule of 42 Pa.C.S. § 5913 as rewritten by Act 16 of 1989 controls. The Appellant is a competent witness against her husband and, because one of the charges against him is murder, she may not assert a privilege not to testify against him. 429 The Appellant also argues that it would be unfair to allow the Commonwealth to "take advantage of a potential windfall" by using the Appellant's testimony, since at the time she was interviewed by investigators (in February of 1989) it was "well known" that information obtained from her could not later be compelled in the form of testimony. We perceive no unfairness. It has always been permissible for the Commonwealth to use information obtained from one spouse to build a case against the other spouse. The competency rule, now privilege, is a testimonial one. We find it highly doubtful that the Appellant freely informed the investigators about matters implicating her husband in the crime in reliance on the assumption that it could do no harm since she could not be called to repeat the information in any formal proceeding. Even if this were the case, however, such an assumption would have been unreasonable. Subject only to constitutional limitations, the legislature is always free to change the rules governing competency of witnesses and admissibility of evidence. The application of the new rule in circumstances such as this does not constitute an ex post facto law. See Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), where, at the time of the homicide, a convicted felon could not be called as a witness, but before trial the law was changed, and a convicted felon testified and implicated the defendant. The Court held that the law was not ex post facto because it did not criminalize a previously innocent act, it did not enhance a crime previously committed, and it did not change the proof needed to obtain a conviction. [A]lterations which do not increase the punishment, nor change the ingredients of the offence, or the ultimate facts necessary to establish guilt, but . . . only remove existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the State, upon grounds of public policy, may regulate at its pleasure. Id. 110 U.S. at 589, 4 S.Ct. at 210. See also Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898) (no 430 ex post facto violation where defendant, whose conviction was reversed because inadmissible evidence had been allowed, was convicted on retrial, the same evidence being introduced pursuant to a change in the law rendering such evidence admissible.) We turn next to the principal question in this appeal, whether the Appellant may invoke the rule of 42 Pa.C.S. § 5914 in refusing to testify, even if she may not assert a privilege under Section 5913. The lower court held that "[s]ince Mary Newman's husband is charged with the crime of Murder her testimony falls within the four corners of the newly enacted exception to spousal privilege. She may not refuse to give testimony under these circumstances without being subject to a contempt order." Opinion at 2, R.7a. At the hearing, the order had been explained as follows: JUDGE DAUER: This Court orders Mrs. Newman to testify as to all matters relative to this homicide. If not, she'll be held in contempt of court and held in the Allegheny County Jail until she does testify. MR. PARISE (counsel for the defendant): Your Honor, with respect to the issues I raised earlier regarding prior statements before the effective date of this action JUDGE DAUER: All statements. Everything. MR. BREWER (counsel for the Appellant): Your Honor, just so we understand the basis of your ruling, are you determining that 5914 does not apply at all? JUDGE DAUER: Of course, it applies. MR. BREWER: 5914? JUDGE DAUER: 5913 and 14. They're all applicable laws of Pennsylvania, but 5914 really doesn't have anything to do with that amendment because it's an exception. It's the exception to the rule. MR. BREWER: Only for the purpose of clarifying, because you queried the District Attorney on the point, if he were to ask Mrs. Newman with respect to any alleged statements to her, would the Court also require that she respond to that? 431 JUDGE DAUER: I think the legislature changed the law. . . . Everything, any questions. . . . The privilege is gone by orders of the legislature of Pennsylvania. N.T. pp. 70-72 (emphasis added). In Commonwealth v. Hancharik, 525 Pa. 654, 582 A.2d 321, 1990, filed this same day, we rejected the view that the exceptions found in Section 5913 when it was stated as a rule of incompetency also applied to Section 5914, such that a husband or wife could testify as to confidential communications because the case came within the circumstances of one of the exceptions stated in Section 5913. We noted that the two sections stated two distinct rules. The prefatory language contained in each section, "Except as otherwise provided in this subchapter," could not be read to engraft the provisions explicitly stated as exceptions to Section 5913 onto Section 5914, for to do so would result in the exception swallowing the rule, rendering Section 5914 superfluous. That language, we found, referred to Section 5915, which renders a husband or wife competent to testify, even as to confidential communications, when "the defendant makes defense at trial upon any ground which attacks the character or conduct of his or her spouse. . . ." We find this analysis applicable with respect to Section 5913 as rewritten by Act 16 of 1989 as well. Section 5913 describes a privilege and four circumstances when it is not applicable. The privilege explicitly referred to is the privilege not to testify against one's spouse. Section 5913 makes no reference whatsoever to the distinct privilege (rule of incompetency) with respect to confidential communications found in Section 5914. To paraphrase the rules with regard to spousal testimony, a husband or wife is now deemed competent to testify against his or her spouse, but has a privilege to refuse to give adverse testimony, which he or she may waive. There is no privilege to refuse to testify against a spouse in four distinct situations: (1) actions for desertion and maintenance; (2) cases where the one spouse is charged with threatening, 432 attempting, or committing acts of bodily injury or violence against the other or against any child in their care; (3) cases of bigamy; or (4) cases where one of the charges is murder, rape, or involuntary deviate sexual intercourse. Even if a husband or wife may be called to give testimony adverse to his or her spouse, however, he or she is not competent to testify to confidential communications. Nevertheless, should the defense attack a spouse's character or conduct, the attacked spouse is a competent witness and may testify even to confidential communications. In the present case, we are unable to determine from the record the full extent of the questions the Commonwealth sought to ask the Appellant and whether she could properly refuse to answer any of them on the basis of Section 5914. She initially refused to testify in response to the question, "Do you know a gentleman by the name of George Simon [the co-conspirator]?" In doing so, she explained, "I wish not to testify against my husband." N.T. 38. For the reasons stated above, there was no basis for invoking the privilege with regard to this question, which plainly did not relate to a confidential communication. Following the hearing and the court's ruling on the claim of privilege, she refused to testify in response to questions as to her whereabouts on the date in question, whether she was present with her husband on that date, whether she was present when her husband and Simon returned to Simon's apartment, and whether she had a subsequent conversation with her husband concerning his involvement in the death. Thereafter the questioning was terminated in light of the Appellant's declared intention to continue to invoke the spousal privilege and not to answer any questions. We can discern nothing about the first three questions that would implicate the prohibition against testimony about confidential communications. The record is inadequate to allow a determination whether the Appellant properly refused to answer the fourth question. This would depend on the circumstances of the conversation with her husband that was the subject of the query. If, for example, a third party was 433 present, the conversation would be deemed not confidential and Section 5914 would not bar the testimony. For the foregoing reasons, we hold that the Appellant could not lawfully refuse to answer the questions addressed to her by the assistant district attorney by invoking the privilege not to testify against her husband. Accordingly, the Order of the Court of Common Pleas holding the Appellant in contempt is affirmed. Pursuant to that Order, upon the return of the record the Appellant shall be remanded to the Allegheny County Jail until such time as she testifies. Such testimony, of course, is subject to her right to refuse to testify to confidential communications pursuant to 42 Pa.C.S. § 5914, it being for the common pleas court to determine whether that rule is properly invoked with respect to any particular question. LARSEN, and McDERMOTT, JJ., did not participate in the decision of this case. PAPADAKOS, J., files a concurring and dissenting opinion. PAPADAKOS, Justice, concurring and dissenting. I concur with the majority's decision to continue the custody of Mrs. Newman until she testifies as to what she learned from her husband's confession to homicide. I dissent from the majority's holding that the Appellant could refuse to testify to a confidence because of 42 Pa.C.S. § 5914. In Commonwealth v. Hancharik, (J-74-1992), 534 Pa. 435, 633 A.2d 1074 (1993) decided today as a companion case, I wrote separately to concur in the result because I cannot accept the statutory interpretation advanced by the majority regarding §§ 5913 and 5914. Section 5913 reads: Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse except that there shall be no such privilege: (1) in proceedings for desertion and maintenance; 434 (2) in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them; (3) applicable to proof of the fact of marriage, in support of a criminal charge of bigamy alleged to have been committed by or with the other; or (4) in any criminal proceeding in which one of the charges pending against the defendant includes murder, involuntary deviate sexual intercourse or rape. This case is covered fully by subsection (4), as the trial court correctly decided. For reasons which I detailed in Hancharik, I conclude that the four exceptions provided under § 5913 apply to § 5914. I am in dissent, therefore, as to the majority's determination that Mrs. Newman could refuse to testify to her husband's confidential admission because § 5914 would protect her silence from the exercise of judicial power. The trial court's order that she divulge the information was proper under the law. The majority is incorrect in determining that, upon a finding that the interspousal communication was confidential, she would be rendered speechless. I agree that Appellant should remain in contempt until she is prepared to loosen her tongue in conformity with § 5913(4). NOTES [1] Section 5913 now reads Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse except that there shall be no such privilege: (1) in proceedings for desertion and maintenance; (2) in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them; (3) applicable to proof of the fact of marriage, in support of a criminal charge of bigamy alleged to have been committed by or with the other; or (4) in any criminal proceeding in which one of the charges pending against the defendant includes murder, involuntary deviate sexual intercourse or rape.
645 N.E.2d 423 (1994) 269 Ill.App.3d 96 206 Ill.Dec. 418 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Demarco YARBROUGH, Defendant-Appellant. No. 1-93-0560. Appellate Court of Illinois, First District, Second Division. December 20, 1994. 424 Rita A. Fry, Public Defender, County of Cook, Chicago, (Denise R. Avant, of counsel), for appellant. Jack O'Malley, State's Atty., County of Cook, Chicago, (Renee Goldfarb, James Fitzgerald, Kalina Tulley, Steven C. Steinback, of counsel), for appellee. Presiding Justice DiVITO delivered the opinion of the Court: The issues presented in this case are whether the circuit court properly denied defendant's request for a jury instruction concerning second degree murder based upon sudden and intense passion, and whether judgments for both first degree murder and home invasion were proper. For the following reasons, we affirm. A summary of the evidence heard by the jury, emphasizing the facts that defendant contends justify the second degree murder instruction, follows. In August 1989, defendant Demarco Yarbrough resided in a Richton Park apartment with Debra Turner, Richard Clerk, and Irma Jean McCastle. Defendant and Turner had been living together for six months. On Friday, August 18, 1989, defendant, the other occupants of the apartment, two of Turner's children (from a different relationship), and two of her other relatives were present at a dinner party at the Richton Park apartment. At some point during the night, Turner's relatives and Richard Clerk left the apartment and James Clerk, Richard's nephew, joined the party. The guests consumed alcohol, heroin, cocaine, and marijuana. When the party ended early Saturday morning, defendant and Turner went to sleep in the bedroom they shared, McCastle went to sleep in her room, and James Clerk went to sleep on the couch in the living room. Defendant awoke Saturday afternoon and left the apartment to pick up his paycheck. He was away from the apartment for approximately 45 minutes to an hour. Turner testified that as she remained sleeping on the bed, while lying on her stomach and dressed in a nightshirt with no underwear, she was partially awakened by the feel of someone's fingers in her vagina. Half asleep, hung over from the night before, and still in a drugged state, she thought defendant was fondling her. When the person tried to adjust her legs to enter her, the movement popped Turner's hip and caused her pain. The pain awakened her, and she turned around to find that the man was James Clerk, not defendant. Turner screamed at him, asking what he was doing. Clerk responded that defendant was not present and since he and Turner had known each other for a long time he thought they could have intercourse. Turner shouted that he had better leave, and Clerk left the bedroom. When defendant returned to the apartment, he drove James Clerk to a liquor store in Ford Heights and continued on to visit 425 some relatives in Chicago. James Clerk's girlfriend, Shelia Harris, testified that Clerk seemed upset and jumpy that evening, continually looking out the windows. Defendant testified that he left Chicago around midnight on that Saturday night, returned to the Richton Park apartment, and went to sleep, without speaking to Turner. On Sunday afternoon defendant noticed Turner's distressed state and asked what was upsetting her. While crying hysterically, Turner replied defendant did not know what happened, and asked why he would leave her in the house in the state that she was in. Defendant testified that Turner then said that Clerk had raped her. Turner testified that she was unsure whether she used the word "rape", "attack", or "molest", but it was a word in that category. Defendant stated that he felt his stomach drop and, while crying, he immediately drove off to the 100 block of West Hickory Street in Chicago Heights where both his brother Dwayne Yarbrough and James Clerk resided. Defendant recklessly pulled his car into Dwayne Yarbrough's driveway at 130 Hickory Street. Defendant exited from the car, slapped a beer from the hands of his brother Demetrious Yarbrough and yelled, "That nigger raped Debra." Defendant testified that he wanted to find out if it was true that Clerk had raped his girlfriend. Following defendant's request, Dwayne took him to Clerk's apartment, down the block, at 120 West Hickory Street. Defendant knocked on Clerk's second floor apartment door, and Clerk eventually answered the door, allowing defendant into the apartment. Sheila Harris was also in the apartment at the time. Defendant did not want to speak in front of her, so he said, "I need to speak to you about something that's important." Clerk appeared shocked and agreed to meet defendant downstairs outside of the apartment. Defendant's signed statement to the police on September 27, 1990, detailing the events, failed to include any mention of defendant asking Clerk to meet him outside. Defendant testified that he exited the apartment, went downstairs, waited for Clerk for a minute or two, and then went back to Dwayne's apartment. While in the apartment, defendant retrieved a large automatic rifle, measuring approximately three to four feet in length. Defendant grabbed the rifle for protection; he did not trust Clerk, viewing him as a threat. Defendant was emotional, confused, and hurt. He tried to place the rifle inside of his pants, but it did not fit. Defendant testified that he exited Dwayne's apartment and headed back to Clerk's residence. Clerk was not in front of the apartment when defendant arrived. As defendant knocked on Clerk's door, he was hurt, his stomach felt funny, and he thought Clerk should have been outside by then. When Clerk answered, he smiled at defendant. At that moment, defendant thought Clerk had raped Debra Turner. Clerk attempted to run, and defendant fired the gun several times in Clerk's direction. Defendant claimed that he pulled the automatic trigger only one time. Sheila Harris testified that she opened the bedroom door when she heard a pop sound and observed Clerk lying on the ground, with both his hands up, "yelling for his life." James Rossi, an evidence technician for the Cook County Sheriff's Office, testified that a bullet recovered from the floor at the scene indicated that defendant fired that particular shot while standing over the deceased. Clerk had been shot five times. Defendant then ran back down the street and through the gangway alongside Dwayne's apartment building, dropped the weapon, and continued into the forest preserve. Approximately one week later, defendant and Debra Turner fled to Minneapolis, where defendant was arrested over a year later, on September 19, 1990. The following day defendant gave a signed statement to police accounting the events surrounding James Clerk's death. At trial, contending that he killed James Clerk under a state of sudden and intense passion after he learned that Clerk had sexually assaulted his girlfriend, defendant sought a jury instruction for second degree murder based upon sudden and intense passion. The trial court denied defendant's request. Defendant was convicted of first degree 426 murder and home invasion, and he was sentenced to concurrent imprisonment terms of 40 years for murder and 30 years for home invasion. I Defendant first contends that the trial court erred in refusing to give the jury an instruction on second degree murder. A criminal defendant is entitled to have the jury consider any legally recognized defense theory which has some foundation in evidence, however tenuous. (People v. March (1981), 95 Ill.App.3d 46, 54, 50 Ill.Dec. 763, 419 N.E.2d 1212, reversed on different grounds, People v. Chevalier (1989), 131 Ill.2d 66, 71, 136 Ill.Dec. 167, 544 N.E.2d 942.) Section 9-2 of the Criminal Code of 1961 (Ill.Rev.Stat1991, ch. 38, par. 9-2 (now codified at 720 ILCS 5/9-2 (West 1992))) provides that a crime is second degree murder when the State proves all the elements of first degree murder beyond a reasonable doubt, but a mitigating factor exists. (People v. Burts (1993), 256 Ill.App.3d 972, 976, 195 Ill.Dec. 51, 628 N.E.2d 515, vacated and remanded on different grounds (1994), 155 Ill.2d 567, 196 Ill.Dec. 680, 630 N.E.2d 845.) As applied to this case, an instruction concerning second degree murder is appropriate if, at the time of the killing, the defendant was (1) acting under a sudden and intense passion; (2) which resulted from serious provocation. (Burts, 256 Ill.App.3d 972 at 976-77, 195 Ill.Dec. 51, 628 N.E.2d 515.) Although the Criminal Code does not define serious provocation, Illinois courts have traditionally recognized four different categories: substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender's spouse. (People v. Chevalier (1989), 131 Ill.2d 66, 71, 136 Ill.Dec. 167, 544 N.E.2d 942.) Generally, mere words are not considered serious provocation regardless of how aggravated, abusive, opprobrious or indecent the language. (People v. Neal (1983), 112 Ill.App.3d 964, 967, 68 Ill.Dec. 536, 446 N.E.2d 270.) Concerning the first relevant requirement for a second degree murder instruction, the State argues that defendant could not have been acting under sudden and intense passion because the period of time between his learning of the sexual assault and the shooting was sufficient to cool his passions. Defendant argues that he was emotional, hurt, and confused throughout the ordeal, citing his unsuccessful attempt to hide the rifle down his pants as evidence of his irrational state of mind at the time of the shooting. The existence of a sufficient cooling off period depends upon the magnitude of the provoking act and the degree to which passions have been aroused in the defendant. (People v. Hudson (1979), 71 Ill.App.3d 504, 511, 28 Ill.Dec. 23, 390 N.E.2d 5) "[N]o yardstick of time can be used by the court to measure a reasonable period of passion but it must vary as do the facts in every case." (People v. Harris (1956), 8 Ill.2d 431, 435, 134 N.E.2d 315.) In this case, defendant did not witness the act of sexual assault. After learning of the incident, defendant drove to Chicago Heights, walked to Clerk's residence, spoke to Clerk, returned to his brother's apartment (where he acquired a rifle), walked back to Clerk's residence, observed Clerk smile at him, and shot Clerk as he attempted to flee. We find that the length of time which passed and the defendant's actions within that period were such that defendant was not acting under sudden and intense passion when he killed James Clerk. Furthermore, even if the facts here had satisfied the sudden and intense passion requirement, to justify a second degree murder instruction, the sexual assault of defendant's girlfriend had to be deemed a serious provocation. To do this, two distinct hurdles had to be overcome: (1) the act must fall within one of the four recognized categories of provocation; and (2) "mere words" are generally not an adequate provocation. Regarding the first issue, defendant concedes that the first three recognized categories of provocation listed in Chevalier are not applicable to this case. Considering that the legislature has imposed no limitations upon the categories, defendant argues that the sexual assault upon the woman with whom he had lived for many months constituted 427 a sufficient provocation, one he equates to the adultery-with-spouse provocation. He therefore urges this court to expand the adultery defense to include marital-type relationships. We note first that defendant's proposed expansion was rejected in People v. McDonald (1965), 63 Ill.App.2d 475, 480, 212 N.E.2d 299. The supreme court addressed the issue in People v. McCarthy (1989), 132 Ill.2d 331, 138 Ill.Dec. 292, 547 N.E.2d 459, explaining that the spousal limitation has been questioned in legal literature in instances of a "longstanding relationship comparable to that of husband and wife. [Citation.]" (McCarthy, 132 Ill.2d 331 at 341, 138 Ill.Dec. 292, 547 N.E.2d 459.) The court noted that some of the rationale supporting recognition of adultery with a spouse as sufficient provocation under the second degree murder statute would also be applicable in the absence of a marital relationship. The court further noted, though, that Illinois continues to differentiate between marital and non-marital relationships by refusing to recognize the validity of common law marriages. (McCarthy, 132 Ill.2d 331 at 341, 138 Ill.Dec. 292, 547 N.E.2d 459.) Ultimately, however, the McCarthy court made no determinative statement because the relationship between the defendant and deceased in that case had ended before the killing, thus making the question moot. McCarthy, 132 Ill.2d 331 at 342, 138 Ill.Dec. 292, 547 N.E.2d 459. Illinois courts have subsequently addressed the issue and have found either that the relationship had already terminated, as in McCarthy, (see People v. Elder (1991), 219 Ill.App.3d 223, 229, 161 Ill.Dec. 872, 579 N.E.2d 420), or that the statute's sudden passion requirement was not fulfilled, (see Burts, 256 Ill.App.3d at 977, 195 Ill.Dec. 51, 628 N.E.2d 515.) To date, no Illinois court has extended the adultery category beyond a legal marriage to marital-type relationships. In any event, the physical act involved in this case is criminal sexual assault (Ill.Rev. Stat. 1991, ch. 38, par. 12-13, now codified at 720 ILCs 5/12-13 (West 1992)), not adultery. (Ill.Rev.Stat.1991, ch. 38, par. 11-7, now codified at 720 ILCS 5/11-7 (West 1992).) We believe that the public policy of this State dictates that the appropriate response to sexual assault is to seek redress through the criminal justice system. Adherence to that policy is especially mandated when, as here, defendant did not personally witness the sexual assault, a significant period of time passed between the act and his being told of it, and a significant time passed between his learning of the act and the shooting. As for the "mere words" issue, we note that a report of adultery by a spouse, in itself, is not a serious provocation. (People v. Chevalier (1989), 131 Ill.2d 66, 76, 136 Ill. Dec. 167, 544 N.E.2d 942.) "In Illinois, adultery with a spouse as provocation generally has been limited to those instances where the parties are discovered in the act of adultery or immediately before or after such an act, and the killing immediately follows such discovery." (Chevalier, 131 Ill.2d 66 at 72, 136 Ill.Dec. 167, 544 N.E.2d 942.) In the instant case, the "mere words" of defendant's girlfriend should not be countenanced as an adequate provocation. Defendant did not witness the sexual assault; he did not learn of the incident immediately after it occurred; and the killing did not immediately follow his discovery. In summary, because we find an absence of both sudden and intense passion and serious provocation, no instruction for second degree murder was required. II Defendant next contends that his conviction for home invasion must be reversed because the murder and home invasion charges were based on the same physical act. Generally, a defendant may not receive multiple convictions and sentences which are based upon the same physical act. (People v. Wilson (1991), 224 Ill.App.3d 364, 367, 166 Ill.Dec. 589, 586 N.E.2d 547.) However, multiple convictions are permissible when the offenses arise from a series of incidental or closely related acts and none of the offenses are lesser included offenses of the others. (People v. King (1977), 66 Ill.2d 551, 566, 6 Ill.Dec. 891, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 98 S.Ct. 273, 54 L.Ed.2d 181.) A lesser included offense arises when the greater offense includes every element of the lesser offense plus one or more elements. People v. Govednik (1986), 150 Ill.App.3d 717, 722, 104 Ill.Dec. 13, 502 N.E.2d 276. *428 Neither home invasion nor first degree murder is a lesser included offense of the other. Each crime contains elements which are not elements of the other. (People v. Trimble (1991), 220 Ill.App.3d 338, 348, 162 Ill.Dec. 790, 580 N.E.2d 1209.) "The crime of home invasion requires an unauthorized entry into the home [citation], an element not present in murder. Similarly, murder, as charged here, requires an intentional killing [citation], an element not present in the crime of home invasion." Trimble, 220 Ill. App.3d 338 at 348, 162 Ill.Dec. 790, 580 N.E.2d 1209. Defendant's actions did not amount to a single physical act but consisted of numerous, closely related actions. Entering into the victim's apartment was not the same physical act as firing the gun. Even though defendant's actions which resulted in the home invasion conviction were closely related to the actions resulting in the first degree murder conviction, the Trimble rationale controls, and the home invasion conviction is upheld. For the foregoing reasons, the judgment of the circuit court is affirmed. Affirmed. HARTMAN and SCARIANO, JJ., concur.
26 F.3d 127 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.Norbert REED, Appellant,v.CITY OF ROCK HILL; Jesse L. Stroup, Mayor; Larry W.Hensley, City Administrator; Donald McDonald,Chief of Police; Kenard Whitfield,Chairman of Safety Committee, Appellees. No. 93-3000EM. United States Court of Appeals,Eighth Circuit. Submitted: April 15, 1994.Filed: May 24, 1994. Before McMILLIAN, OAKES,* and FAGG, Circuit Judges. PER CURIAM. 1 Norbert Reed appeals the district court's grant of summary judgment to the appellees on his race and age discrimination claims. Having reviewed the record and the parties' briefs, we conclude Reed is not entitled to relief. Because the controlling law is clear and an opinion would have no precedential value, we affirm for the reasons stated in the district court's memorandum opinion. See 8th Cir. R. 47B. * The HONORABLE JAMES L. OAKES, Circuit Judge for the United States Court of Appeals for the Second Circuit, sitting by designation
212 Va. 771 (1972) GEORGE A. CLAAR, JR. v. ROBERT S. CULPEPPER, ANCILLARY ADMINISTRATOR AND ROBERT E. HARTSHORN, ADMINISTRATOR OF THE ESTATE OF LYNDA SUE HARTSHORN, DECEASED. Record No. 7809. Supreme Court of Virginia. April 24, 1972. Present, All the Justices. Judgment reversed insofar as it provides damages for pecuniary loss, since record does not show basis for such award. Error to a judgment of the Corporation Court of the City of Newport News. Hon. Douglas M. Smith, judge presiding. Daniel W. Wilkinson, Jr. (West & Wilkinson, on brief), for plaintiff in error. William T. Prince (Williams, Worrell, Kelly & Worthington, on brief), for defendants in error. Per Curiam. In this action for wrongful death, the jury returned a verdict for the plaintiffs and awarded damages to the decedent's son for pecuniary loss, as well as damages to the decedent's husband and son for solace. Code \| 8-636. The trial court entered judgment on the verdict, and this appeal ensued. The decedent had no earnings and made no monetary contribution to her family at the time of her death. Counsel therefore seeks to support the award for pecuniary loss on the services rendered by the decedent to her son. See Pugh Yearout, Adm'r, 212 Va. 591, 186 S.E.2d 58 (1972). The record does not show, however, the nature of the services rendered by the decedent. So the jury had no basis for awarding damages for loss of services. We must therefore reverse the judgment insofar as it provides damages for pecuniary loss. Reversed and final judgment.
929 F.2d 696 Blakev.Wyatt Cafeteria's Inc.* NO. 90-1621 United States Court of Appeals,Fifth Circuit. MAR 12, 1991 1 Appeal From: N.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2
996 F.Supp. 343 (1998) Jane Doe, Plaintiff, v. Richard ROSENBERG, M.D., personally, Anne Skomorossky, M.D., personally, Loraine Innes, M.D., personally, Stan Acrow, M.D., personally, Elizabeth Mirabello, M.D., personally, Jane Doe, personally, Columbia Presbyterian Medical Center, Herbert Pardes, in his official capacity of head of the Department of Psychiatry of Columbia Presbyterian Medical Center, Defendants. No. 97 CIV. 3205(RWS). United States District Court, S.D. New York. May 7, 1998. 344 345 Touro College, Jacob D. Fuchsberg Law Center, Mental Disability Law Clinic (William M. Brooks, of Counsel), Huntington, NY, for Plaintiff. Shapiro, Beilly, Rosenberg, Albert & Fox, (Lewis Rosenberg, Barry I. Levy, Angela Thompson-Tinsley, of Counsel), New York City, for Defendant Richard Rosenberg, M.D. Martin, Clearwater & Bell (Peter T. Crean, Gregory J. Radomisli, Tiffany L. Bauman, of Counsel), New York City, for Remaining Defendants. OPINION SWEET, District Judge. Defendants Anne Skomorossky, M.D., Lorraine Innes, M.D., Stan Arcow, M.D., Elizabeth Mirabello, M.D., Presbyterian Hospital in the City of New York, s/h/a Columbia Presbyterian Medical Center, and Herbert Pardes, M.D. (collectively, the "Hospital Defendants"), and Defendant Richard Rosenberg, M.D. (individually, "Rosenberg," together with the Hospital Defendants, the "Defendants") have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., in this action filed by Plaintiff Jane Doe ("Doe") on the grounds that they are not state actors, and therefore Doe's claim pursuant to 42 U.S.C. § 1983 must fail. Defendants also seek an Order dismissing Plaintiff's state law claims pursuant to 28 U.S.C. § 1367(c)(3). For the reasons set forth below, (1) Defendants' motions for summary judgment are granted, and (2) Plaintiff's state law claims are dismissed. 346 Parties At the time relevant to this action, Jane Doe was enrolled in a Masters Degree program in Biostatistics at Columbia University and a Masters Degree program in Mathematics at New York University. Defendant Columbia Presbyterian Medical Center ("CPMC") is a private medical institution doing business as a private corporation. Defendant Anne Skomorossky, M.D. was, at the time relevant to this action, a resident at CPMC. Defendants Lorraine Innes, M.D., Stan Arcow, M.D., and Elizabeth Mirabello, M.D., are private attending physicians with privileges at CPMC. Herbert Pardes is the head of the Department of Psychiatry at CPMC. Defendant Rosenberg is a private physician with privileges at CPMC. Prior Proceedings Doe filed this action pursuant to 42 U.S.C. § 1983 on May 2, 1997. The complaint was amended on May 19, 1997. This action arises out of the involuntary psychiatric hospitalization of Doe. The complaint alleges violation of Plaintiff's civil rights as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution. Doe also has filed pendent state law claims, including false imprisonment, and violations of Plaintiff's rights to informed consent, to determine Doe's own course of treatment, and to confidentiality. The instant summary judgment motion by Rosenberg was filed on October 10, 1997, and the motion by the Hospital Defendants was filed November 10, 1997. Argument on both motions was heard on March 12, 1998, at which time the motions were considered fully submitted. Facts On April 30, 1996, Doe went to Rosenberg's office on Fort Washington Avenue for a general physical exam. Rosenberg, at that time, maintained private offices at 161 Fort Washington Avenue and 903 Park Avenue, New York, New York. Doe was independently referred to Rosenberg through her insurance company, Oxford Health Plans (the "Oxford Plan"). Rosenberg participated as a primary care physician under the Oxford Plan. This was Doe's first visit to Dr. Rosenberg. Rosenberg's examination of Doe revealed that she had been under a lot of stress for a significant period of time, relating to her job and educational responsibilities as well as her personal life. She had also been experiencing depression and crying spells. During the examination, Doe began exhibiting symptoms indicative of psychotic behavior. According to Rosenberg, Doe told Rosenberg that her parents (who live in Michigan) had been entering her New York apartment and had placed things such as salad dressing and ketchup around her apartment. Doe also advised Rosenberg that her employer had suggested she seek psychiatric help. It was Rosenberg's medical opinion that Doe needed immediate psychiatric treatment. Rosenberg arranged for Doe to meet with Dr. Judith Lewis, a private psychiatrist, on May 2, 1996. At that point, Doe left Rosenberg's office. Doe failed to keep the appointment with Dr. Lewis because she did not know Dr. Lewis and her fees were high. Dr. Lewis contacted Rosenberg on May 2 or 3, 1996, informing him that Doe had failed to appear for her appointment. Rosenberg's secretary called Doe on the morning of May 3, 1996, asking Doe to come to Rosenberg's office. Doe agreed, as she wanted to obtain results of her blood test. She, however, was concerned that she would be late for another appointment she had with a gynecologist. Upon Doe's arrival, Rosenberg observed that her psychological condition had severely deteriorated since he last saw her on April 30, 1996. When Rosenberg asked Doe to discuss her situation, she appeared frightened to enter his office and ran away as Rosenberg attempted to speak with her in the hallway. It was Rosenberg's medical opinion that Doe was experiencing a paranoid psychotic episode and presented a potential danger 347 to herself. Rosenberg then called Dr. Lewis to discuss Doe and her behavior. Dr. Lewis recommended that Rosenberg try to locate Doe and have her escorted by hospital security to the psychiatric emergency room for an evaluation. Rosenberg wrote a medical order authorizing hospital security to transport Doe to CPMC. Rosenberg is not an employee of CPMC. He merely has privileges there. Doe reappeared momentarily. Again, when Rosenberg attempted to speak with Doe, she became agitated and ran out of the office. Rosenberg then alerted security, suspecting that Doe would return. According to Doe, she left Rosenberg's office because she did not want to discuss her blood test results in the waiting room, and she did not want to be late for her gynecological appointment. She maintains that at no time did she appear agitated in the presence of Rosenberg, nor was she a threat to herself or others. When Doe once again returned to Rosenberg's office, security officers had arrived. Rosenberg advised Doe that she would be escorted to the psychiatric emergency room so that she could be evaluated. According to Rosenberg, Doe's delusions became so severe that she accused him of being an impostor. Doe again ran away and was later found lying on the floor of the adjacent hospital building. The supervising nurse of the hospital building requested that Rosenberg sign an order permitting the use of four-point restraints, if necessary. Rosenberg signed the order, but such restraints proved unnecessary. Doe was escorted to CPMC without them. At the CPMC psychiatric emergency room, Doe met with Drs. Anne Skomorossky and Lorraine Innes. Both physicians certified Doe for involuntary commitment after concluding that she was dangerous and no adequate alternate forms of treatment existed at the time, as is required under the New York Mental Hygiene Law ("MHL") § 9.27 (McKinney 1996). For Doe's commitment to meet the MHL requirements, a staff physician must confirm the two physicians' evaluation. Dr. Stan Arcow executed such confirmation. Doe was committed on May 5, 1996. Pursuant to the MHL, Doe challenged her confinement and requested a hearing. On May 16, 1996, CPMC was directed to release Doe. It did so later that day. None of the physicians above is a state employee, and CPMC is a private hospital that is licensed to provide emergency psychiatric services and treat mentally disabled persons.[1] Discussion I. Standard for Summary Judgment Rule 56(e) of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Silver v. City University, 947 F.2d 1021, 1022 (2d Cir.1991). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060 (2d Cir. 1995). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.1988). If there is any evidence in the record regarding the issues on which summary judgment is sought from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See 348 Knowles v. New York City Dept. of Corrections, 904 F.Supp. 217, 220 (S.D.N.Y.1995). A party seeking to defeat a summary judgment motion cannot "rely on mere speculation or conjecture as to the true nature of facts to overcome the motion." Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir.1995) (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986)). Rather, the responding party "must show the existence of a disputed material fact in light of the substantive law." Peer Int'l Corp. v. Luna Records, Inc., 887 F.Supp. 560, 564 (S.D.N.Y.1995). In the absence of any disputed material fact, summary judgment is appropriate. II. Summary Judgment Is Granted Because the Defendants Are Not State Actors Section 1983 of Title 42 provides that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured .... 42 U.S.C.A. § 1983 (West Supp.1997). The constitutional sections creating the substantive rights in this case are the Fourth and Fourteenth Amendments. Because the Amendments are directed at the States, they can be violated only by "state action" and not by the conduct of a private actor. "Careful adherence to the `state action' requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Section § 1983's "under color of law" requirement is treated "`as the same thing' as the `state action'" requirement under the Constitution. Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (quoting United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)). To prevail in this § 1983 action, Doe must show (1) that Defendants deprived her of a right secured by the Constitution or laws of the United States and (2) that, in doing so, Defendants acted under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156-57, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). As to the first requirement, it has been established that involuntary confinement or civil commitment constitutes a significant deprivation of liberty requiring due process protection. See Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). The critical issue in this case, however, is not whether Doe has a liberty interest in being free from unwarranted confinement, but whether the actions of a private physician, Defendant Rosenberg, who authorized the transport of Doe to CPMC for psychiatric evaluation, and the actions of the Hospital Defendants, who committed Doe could be considered the actions of the State for the purposes of liability under 42 U.S.C. § 1983. According to Doe, Defendants are state actors because they derived the authority to commit her from the laws of New York State. "The ultimate issue in determining whether [the Defendants are] subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights `fairly attributable to the State?'" Rendell-Baker, 457 U.S. at 838 (quoting Lugar, 457 U.S. at 937). For conduct of the Defendants to be fairly attributable to the State, Defendants must be state actors. See Lugar, 457 U.S. at 937. In the instant case, the group of Defendants consists of private physicians and a private hospital. "Only in rare circumstances can a private party be viewed as a `state actor' for section 1983 purposes." Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.1992). The Supreme Court has developed a number of approaches to determine whether a private party's conduct may constitute state action, including (1) the state compulsion test, (2) the close nexus/joint action test, and (3) the public function test. Under the state compulsion test, "a State normally can be held responsible for a private decision only when it has exercised 349 coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (citing Flagg Bros., Inc., 436 U.S. at 164-65). The close nexus/joint action test requires Plaintiff to demonstrate "`a sufficiently close nexus between the State and the challenged action of the [private] regulated entity so that the action of the latter may be fairly treated as that of the State itself.'" Id. (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). Finally, the public function test is satisfied if the private party performs a function that is "`traditionally the exclusive prerogative of the State.'" Id. 457 U.S. at 1005 (quoting Jackson, 419 U.S. at 353). These three tests have been employed by various courts of appeals to determine whether involuntary commitment by private parties pursuant to state statute converts private conduct into state action for purposes of § 1983. The First, Third (by affirming the district court opinion), Fourth, Sixth, Seventh, Tenth, and Eleventh Circuits all agree that such action does not constitute state action. See S.P. v. City of Takoma Park, Md., 134 F.3d 260 (4th Cir.1998); Pino v. Higgs, 75 F.3d 1461 (10th Cir.1996); Ellison v. Garbarino, 48 F.3d 192 (6th Cir.1995); Rockwell v. Cape Cod Hosp., 26 F.3d 254, 257-60 (1st Cir.1994); Harvey v. Harvey, 949 F.2d 1127 (11th Cir.1992); Janicsko v. Pellman, 774 F.Supp. 331 (M.D.Pa.1991), aff'd without opinion, 970 F.2d 899 (3d Cir.1992); Spencer v. Lee, 864 F.2d 1376 (7th Cir.1989) (en banc). The issue has not heretofore been presented to the Second Circuit. The facts of this case lead to the same conclusion. Application of the state compulsion, public function, and close nexus tests below reveals the absence of state action. A. The Hospital Defendants Are Not State Actors 1. State Compulsion The Hospital Defendants are not state actors because the MHL neither compels nor encourages involuntary commitment "any more than repossession laws are passed because states want to encourage creditors to repossess their debtors' goods." Spencer, 864 F.2d at 1379. Doe was committed pursuant to § 9.27 of the MHL, which by its terms is permissive, not mandatory. See, e.g., Rockwell, 26 F.3d at 258 (finding no state compulsion where Massachusetts statute did not compel or encourage involuntary commitments). Like similar state statutes under which state compulsion was lacking, New York's MHL simply sets forth a mechanism to effect involuntary commitments when necessary. See S.P., 134 F.3d at 269-70; Ellison, 48 F.3d at 196; Rockwell, 26 F.3d at 258; Harvey, 949 F.2d at 1130-31; Janicsko, 774 F.Supp. at 338-39. The language of MHL § 9.27 is not one of compulsion. MHL § 9.27(a) states: The director of a hospital may receive and retain therein as a patient any person alleged to be mentally ill and in need of involuntary care and treatment upon the certificates of two examining physicians, accompanied by an application for the admission of such person. The examination may be conduced jointly but each examining physician shall execute a separate certificate. MHL § 9.27(a) (emphasis added). The use of the word "may" is convincing of the lack of encouragement or exercise of coercive power by the state, factors that must exist under the state compulsion test.[2]See Blum, 457 350 U.S. at 1004. Even though the MHL provides the legal framework under which physicians may involuntarily commit a patient by creating procedures and standards for commitment, as Doe points out, it leaves the decision to commit completely to the physician's discretion. See Janicsko, 774 F.Supp. at 338-39 (finding significant that physicians retained discretion to determine when commitment is necessary under the Pennsylvania Mental Health Procedures Act). According to Doe, New York State exercises coercive authority because a person may be involuntarily committed only pursuant to the MHL. However, the state compulsion inquiry does not focus on whether commitment may be effectuated only by statute but whether the State compels the action of involuntary commitment. The Hospital Defendants, and not the State, exercised professional medical judgment to determine whether Doe needed to be committed. As the Supreme Court held in Blum, 457 U.S. at 1008, a state is not liable for determinations that "ultimately turn on medical judgments made by private parties according to professional standards that are not established by the State." Blum regarded a suit against the Commissioner of New York State Department of Public Services based on actions of a privately operated nursing home that had downgraded the plaintiff Medicaid patients from a high level to a lower level of care. Although the State subsidized the nursing homes, extensively regulated and licensed them, and paid patient expenses, the Supreme Court held that the home's decision to discharge patients to other nursing homes that provided a lower level of care was made in its capacity as a private entity according to private professional, and not state-mandated, standards. See id. "[P]hysicians, and not the forms, make the decision about whether a patient's care is medically necessary .... We cannot say that the State, by requiring completion of a form, is responsible for the physician's decision." Id. at 1006-07. Here too, the private physicians employed medical judgment based on standards accepted in the medical community when rendering their decision. MHL § 9.27 provided the procedure the physicians were to follow for a valid commitment; for example, the statute requires certificates by two physicians, MHL § 9.27(a), and asks that the physicians consider alternative forms of treatment and care before committing a patient, MHL § 9.27(d). The MHL does not, however, contain comprehensive standards or definitions that may be applied by rote, leading a physician to the conclusion that involuntary commitment is, or is not, warranted in any given case. Doe relies on the Second Circuit's opinion in Catanzano v. Dowling, 60 F.3d 113 (2d Cir.1995), in contending that the standards set forth in the MHL replaced the judgment of the private physicians. In Catanzano, Medicaid patients challenged decisions to reduce health care services made by certified home health care agencies ("CHHAs"), agencies licensed by New York State to provide home health care services under Medicaid. 60 F.3d at 115. The Second Circuit found the CHHAs to be state actors because, inter alia, CHHAs are required to evaluate all potential recipients of care; CHHA decisions are made pursuant to standards defined by the Department of Health in regulations; the statute provides the specific alternatives the CHHA must consider when making efficiency determinations mandated by statute; and the State commands denial of treatment if the CHHA concludes after applying the standards set by the statute that home health care is inappropriate. See id. at 119. The coercive power and significant encouragement by the State in Catanzano is absent in the instant case. Unlike the statute governing the CHHAs, the MHL does not require commitment, set forth the alternatives a physician must consider before ordering commitment, or define the standards a physician must apply when deciding the fate of one facing involuntary commitment. New York's MHL states: "in need of involuntary care and treatment" means that a person has a mental illness for which care and treatment as a 351 patient in a hospital is essential to such person's welfare and whose judgment is so impaired that he is unable to understand the need for such care and treatment. "likelihood to result in serious harm" or "likely to result in serious harm" means (a) a substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself, or (b) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear or serious physical harm. MHL § 9.01, Definitions. Neither "mental illness" nor "substantial risk" is defined. Instead, private physicians must apply generally accepted standards of the medical community to determine whether a patient has a "mental illness" or poses a "substantial risk" to oneself or others. Cf. Janicsko, 774 F.Supp. at 339 (finding that despite the extensive definition of the term "severely mentally disabled" in the Pennsylvania Mental Health Procedures Act, the statute "nevertheless leaves a sufficient degree of this determination to the discretion of a medical practitioner using the non-governmentally imposed criteria of the medical profession"). The professional medical judgment exercised by the Hospital Defendants in the instant case is akin to that exercised under MHL § 9.39. The Second Circuit has held that § 9.39 incorporates the medical community's generally accepted standards as a matter of law. See Rodriguez v. City of New York, 72 F.3d 1051, 1063 (2d Cir.1995). The plaintiff in Rodriguez was involuntarily committed pursuant to MHL § 9.39, which provides that a person "alleged to have a mental illness for which immediate observation, care, and treatment in the hospital is appropriate," may be admitted if a hospital staff physician finds that the mental illness "is likely to result in serious harm" to the individual or others.[3] MHL § 9.39. The Rodriguez court confronted the issue of whether the defendants, a city hospital, a resident of the city hospital, and the attending physicians of the city hospital, complied with § 9.39. See Rodriguez, 72 F.3d at 1053. The parties' expert physicians had testified to differing definitions of the generally accepted meaning within the medical community of § 9.39's use of "threat[] ... of suicide" and "conduct demonstrating [that a person] is dangerous to himself." Id. at 1057. The Second Circuit held that the district court below had correctly interpreted § 9.39 as "implicitly defer[ring] to medical judgment," and it correctly construed that section as "requir[ing] a physician to make a medical decision, guided by standards that are generally accepted within the medical community." Implicit in § 9.39's requirement that the decision be made by a physician is the premise that the decision will be made in accordance with the standards of the medical profession. Id. at 1062-63 (citations omitted). As Doe acknowledges, although § 9.27 does not require a finding of dangerousness on its face (unlike § 9.39), New York courts have recognized that a person cannot be committed unless deemed dangerous, i.e., by posing a substantial threat of harm to his or her person or others. See, e.g., Matter of Scopes v. Shah, 59 A.D.2d 203, 205-06, 398 N.Y.S.2d 911, 913 (3d Dep't 1977). Because the analysis physicians employ for commitments under § 9.39 must also be employed for commitments under § 9.27, it follows that, given Rodriguez, as a matter of law the Hospital Defendants exercised professional judgment, guided by generally accepted standards in the medical community, in determining that Doe required involuntary commitment pursuant to MHL § 9.27.[4] 352 Compliance with the procedures of the MHL, a statute that neither forces nor encourages involuntary commitments, does not convert private action into state action. New York's involuntary commitment scheme puts in place due process safeguards for the protection of the person confronted with involuntary confinement hence, the requirement of evaluations by more than one physician and the reminder to physicians that they consider alternate routes of treatment. The actual decision of whether commitment is warranted, however, is left entirely to the sound medical judgment of physicians. Therefore, the actions of the Hospital Defendants cannot be attributed to the State under a theory of state compulsion. 2. Close Nexus/Joint Action The MHL does not create a sufficiently close nexus between the State and the Hospital Defendants to mandate their classification as state actors. The fact that CPMC has a contract with the OMH that enables CPMC to operate a psychiatric wing and is licensed by the OMH Commissioner to serve as a primary psychiatric emergency care provider does not render the Hospital Defendants state actors. According to the Supreme Court, "the mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment. Nor does the fact that the regulation is extensive and detailed ... do so." Jackson, 419 U.S. at 350 (citation omitted); see Rockwell, 26 F.3d at 258 (holding that private hospital and physicians who involuntarily committed plaintiff under Massachusetts statute were not state actors, noting that state regulation, even if extensive, and receipt of federal funds do not establish state action); Harvey, 949 F.2d at 1132 (finding licensing and regulation insufficient to transform private hospitals into state actors for purposes of § 1983 liability). The purpose of the close nexus requirement is to "assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains." Blum, 457 U.S. at 1004. This assurance is especially important where the plaintiff seeks to subject private parties to § 1983 liability by bestowing on them the title of state actors. The instant case does not involve a situation where the State has "`so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise.'"[5]Harvey, 949 F.2d at 1131 (quoting NBC v. Communications Workers of Am., AFL-CIO, 860 F.2d 1022, 1026 (11th Cir.1988) (citation omitted)). The Eleventh Circuit in Harvey, confronting facts similar to the case at bar and the issue of whether involuntary commitment by private parties may be considered state action, found an insufficient nexus between the defendants, a private hospital and private physicians, and the State. See id.; see also Rockwell, 26 F.3d at 258 (holding that Massachusetts statute did not create a sufficiently close nexus between private hospital and the State to warrant labeling private actors state actors). The court observed that "[b]oth the Supreme Court and our predecessor circuit have concluded that such a nexus is lacking in circumstances much more compelling than the circumstances in this case." Id. (referring to Rendell-Baker and Blum). In Rendell-Baker, the Supreme Court examined the relationship between the State of Massachusetts and a private school in a § 1983 claim brought by discharged teachers. The private school, which taught special needs children, received 90% of its funds from the State and was extensively regulated in personnel matters by state-imposed guidelines. The Court refused to attribute the teachers' discharges to state action. See Rendell-Baker, 457 U.S. at 840-43. Similarly, the Supreme Court in Blum found that despite extensive state regulation and funding of private nursing homes, state action could not be maintained. See Blum, 457 U.S. at 1004. Thus, because the MHL merely licenses private physicians and hospitals to commit 353 involuntary commitments yet in no way influences the decisions to commit, its relationship with the Hospital Defendants is insufficient to pass the close nexus/joint action test. 2. Public Function Involuntary commitment under the MHL fails the public function test because the powers exercised by the Hospital Defendants are not the sort that were "traditionally the exclusive prerogative of the State." Jackson, 419 U.S. at 353. This exclusion function theory is related to situations where the State delegates its responsibilities to private parties and then attempts to escape liability for constitutional violations caused by private parties acting pursuant to the delegation. See Rockwell, 26 F.3d at 258. This is not what New York State did in allowing physicians to decide whether involuntary commitment is in the best interests of a patient. The responsibility for invalid commitment lies with the physician as a private individual. Very few activities are "exclusively reserved to the states." Flagg Bros., Inc., 436 U.S. at 158-59; see White v. Scrivner Corp., 594 F.2d 140, 142 (5th Cir.1979) (noting that even arrest, search, and detention are not exclusively reserved to states). Election is one such area. See Flagg Bros., Inc., 436 U.S. at 158. Involuntary commitment is not. See Rockwell, 26 F.3d at 258-60 (unwilling to categorize involuntary commitment in Massachusetts as a public function); Harvey, 949 F.2d at 1131 (same regarding Georgia statute). According to Doe, the public function test is satisfied because involuntary commitment is a function of New York State in that New York authorizes confinement of the mentally ill. Doe, however, does not take the analysis far enough. As the Supreme Court declared in Rendell-Baker, "our holdings have made clear that the relevant question is not simply whether a private group is serving a `public function.' We have held that the question is whether the function performed has been `traditionally the exclusive prerogative of the State.'" 457 U.S. at 842 (quoting Jackson, 419 U.S. at 352 (emphasis added)); see Rockwell, 26 F.3d at 258 finding that involuntary commitment is not a public function, and stating: "In order for a private actor to be deemed to have acted under color of state law, it is not enough to show that the private actor performed a public function. The plaintiff must show that the private entity assumed powers `traditionally exclusively reserved to the State.'" (quoting Jackson, 419 U.S. at 352 (emphasis added)). The fact that the private party has powers coextensive with the state is irrelevant to determine that state action exists. See Harvey, 949 F.2d at 1131. Exclusivity is required. Doe misstates Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), to support her contention that the exclusivity test required by the Supreme Court should not be followed. In Edmonson, the Court held that a private litigant in a civil case may not use peremptory challenges to exclude jurors on account of race. The Court found that the action in question was the performance of a traditional governmental function due to the distinct nature of peremptory challenges. The Court stated that "the peremptory challenge has no utility outside the jury system, a system which the government alone administers." Id. at 622 (emphasis added). In addition, Doe's reliance on Janusaitis v. Middlebury Volunteer Fire Dep't, 607 F.2d 17 (2d Cir.1979) to circumvent the exclusivity prong of the public function test is similarly misplaced. The case actually supports the use of "exclusivity". The Second Circuit in Janusaitis relied on Flagg Bros., Inc. and held that fire protection has traditionally been the exclusive function of the state and thus constitutes state action if performed by a private entity. See id. at 22. The court quoted Flagg Bros., Inc. when it stated that "[a]mong (such exclusive municipal functions) are such functions as education, fire and police protection, and tax collection." Id. (quoting Flagg Bros., Inc., 436 U.S. at 163-64). Two district court cases in New York have abandoned the exclusivity requirement to find that involuntary commitment is indeed a public function. See Rubenstein v. Benedictine Hosp., 790 F.Supp. 396 (N.D.N.Y.1992); Ruffler v. Phelps Memorial 354 Hosp., 453 F.Supp. 1062 (S.D.N.Y.1978). The Ruffler court held that New York Hospital, a private hospital, had engaged in state action by involuntarily confining plaintiff pursuant to the MHL. See id. at 1067-71. The Ruffler decision found that involuntary confinement was a public function in New York because of the legislature's assumption of responsibility for the mentally ill in § 7.01 of the MHL[6] and its extensive regulation of private agencies which provide mental health services. See id. at 1069. However, Ruffler concluded existence of state action on a theory that civil commitment is a matter of public concern without a finding of "exclusivity". This contention is contrary to the Supreme Court's analyses in Flagg Bros., Inc., Jackson, Rendell-Baker, and Blum. The Eleventh Circuit criticized the Ruffler court because it "only inquired as to the public nature of the function and did not determine if exclusivity existed." Harvey, 949 F.2d at 1131 n. 10. In addition, contrary to Ruffler, extensive regulation does not make involuntary confinement an exclusive state function. In Rendell-Baker, plaintiffs asserted that the private school for maladjusted high school students performed a traditional public function because of extensive state regulation and funding. The Supreme Court disagreed, stating: Chapter 766 of the Massachusetts Acts of 1972 demonstrates that the State intends to provide services for such students at public expense. That legislative choice in no way makes these services the exclusive province of the State. Rendell-Baker, 457 U.S. at 842 (emphasis added). Likewise, New York's authorization of civil commitment and assumption of care for the mentally ill under MHL § 7.01 do not convert involuntary commitment into a function traditionally reserved to the State. Finally, Ruffler neglected the importance of the fact that the decision to commit Doe was based on medical judgment according to generally accepted medical standards, a fact the Supreme Court found crucial in Blum, as discussed above. For these reasons, Ruffler will not be followed. Rubenstein is also unpersuasive as it relied heavily on Ruffler. In fact, the Rubenstein court recognized that Ruffler was criticized for not applying the "exclusivity" requirement in its public function analysis, but did not address why the requirement should not be followed. Rather, the court held that the activity of the private hospital in committing an individual was nonetheless reserved to the State under either its parens patriae or police power. See Rubenstein, 790 F.Supp. at 406. The court asked, "[i]f the State is not providing the authority to deny an individual his liberty what is providing the authority?" Id. (quoting Plain v. Flicker, 645 F.Supp. 898, 905 (D.N.J.1986)). To answer the court's inquiry, the authority which private physicians and private hospitals use to commit an individual is the professional medical standard of the community where the physicians' medical judgments are based. The professional standard at which a physician is accountable is not established by the State. The private physician is not exercising governmental authority when he or she uses medical judgment in assessing the dangerousness of an individual for commitment purposes. Similarly, when a physician prescribes medication, the physician is not exercising government authority but rather using medical judgment despite the fact that the physician is licensed by the State to prescribe medication. Authorization by the State does not constitute a public function. Failing to abide by the exclusivity requirement would create a slippery slope whereby private physicians who prescribe medication would be deemed state actors simply because the authority to license the physicians lies with the State. In her quest to convert the Hospital Defendants into state actors, Doe proclaims that Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), and West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), leave little doubt that the Hospital Defendants engaged in state action. Both cases, however, are distinguishable 355 from the instant case as West involves prisoners, who are wards of the State, and Dodson involves state employees, not private individuals. The Dodson Court held that a public defender is not a state actor when defending indigent clients because he or she uses professional judgment in performing a lawyer's traditional function as counsel and takes an adversarial stance against the State. See Dodson, 454 U.S. at 318-20. Dodson's context is so far removed from the case at bar that it does not merit discussion.[7]West, on the other hand, does involve physicians. Doe's reliance on West, nonetheless, is misplaced because it was decided in the context of providing medical treatment to prisoners. The Supreme Court held in West that a private physician under contract with the State to provide medical care to prisoners engaged in state action despite the fact that the challenged activity turned on medical judgments. The Court reasoned that the physician within the state prison performed a public function reserved to the State providing medical care to prisoners. Unlike Plaintiff in the instant case, the prisoner in West was not free to consult a physician of his choosing. "[T]he only medical care West could receive for his injury was that provided by the State." West, 487 U.S. at 55. The State bore an affirmative, constitutional duty to provide medical treatment to those in custody. See id. at 56. Here, the State bears no duty to commit individuals involuntarily. The West Court realized that "although the provision of medical services is a function traditionally performed by private individuals, the context in which [these services were performed] for the State ... distinguishes the relationship between [this physician] and West from the ordinary physician-patient relationship." Id. at 56 n. 15. The rationale behind the West decision lies in the fact that the prisoner relies entirely on prison authorities for medical treatment, and therefore health care in state prisons is the exclusive prerogative of the State. See id. at 55. The context in this case differs. It does not follow that because private physicians who are contracted by the State to provide medical care to prisoners, who are wards of the State, can be held as state actors, so too must private physicians who involuntarily commit citizens due to authorization by the State. Doe's assertion that just as the Eighth Amendment requires the State to provide adequate medical care to prisoners, the Fourteenth Amendment requires the State to provide minimally adequate care to mentally ill patients confined in institutions is inapposite to this case. It is not the care Doe may have received after commitment that is at issue but the decision by the Hospital Defendants to commit the Doe in the first instance. A proper determination of whether an activity is a public function involves delving into the history of the activity. The circuit courts that have studied the history of involuntary commitment have concluded that such commitments have not traditionally been the exclusive prerogative of the State. See Rockwell, 26 F.3d at 258-60 (finding that history of involuntary commitment in Massachusetts reveals it is not a public function); Spencer, 864 F.2d at 1380-82 (same regarding involuntary commitment in Illinois). This inquiry, of course, is state specific. In the case at bar, history demonstrates that involuntary commitment has not been exclusively a function of New York State and thus is not a traditional public function. In New York, involuntary treatment and confinement of the mentally ill originated in private homes, and later it took place in both private and public institutes. Since the beginning of the United States, families, friends, and guardians have cared for the mentally ill privately. See Henry M. Hurd et al., 1 The Institutional Care of the Insane in the United States and Canada 40 (Johns Hopkins Press 1916). According to Blackstone, writing in 1765, "[o]n the first attack of lunacy, or other occasional insanity, while there may be hope of a speedy restitution of reason, it is usual to confine the unhappy objects in private custody under the direction of the nearest friends and relations." 1 Commentaries on the Laws of England 305. 356 The New York Hospital, a private, not-for-profit hospital, was one of the first institutions to admit the mentally ill for in-patient care. The first patient was received in 1792. See Albert Deutsch, The Mentally Ill in America 97-98 (2d ed.1949). In those days, "commitment could be effected with the greatest of ease. No specific safeguard existed for the protection of the personal liberty of the supposedly mentally ill person. The pauper and indigent insane might be summarily committed to the poorhouse, prison or hospital by friends or relatives or by order of public officials ...." Id. at 420. In New York, there seems to have been little early legislation in reference to the mentally ill, and if they were dependent, they were probably classed among the poor. See Hurd, supra, at 86. "The violent and dangerously insane were handled under the authority of the sovereign's police powers." Samuel J. Brakel et al., The Mentally Disabled and the Law 22 (3d ed.1985). In 1838, private asylums, county poorhouses, public asylums, and lunatic asylums of the City of New York were recognized by statute. See Hurd, supra, at 87. The care of the mentally ill, however, was not recognized as a public duty, except insofar as it sought to protect the public from violent persons. See id. Private institutional care predated public institutional care, as it was not until 1842 that laws were passed to erect the first state institution in New York. See id. The earliest movement toward complete state care did not come until the second half of the nineteenth century. See Deutsch, supra, at 234. In 1874, New York passed a law authorizing any asylum, public or private, institution, home, or retreat that cared for the mentally ill, without court order, to commit for five days any person upon the certificates of two physicians. 1874 N.Y. Laws ch. 446, § 1. See Rockwell, 26 F.3d at 259 (noting similar law passed in Massachusetts). History reveals that involuntary commitment has long been a private remedy, although subject to safeguards, like repossession, self-defense, citizen's arrest, and other infringements on rights of liberty and property. See Spencer, 864 F.2d at 1380. Even if New York had been following the same procedure set forth in the current Mental Hygiene Law for the last 200 years, that would tend to show that commitment had not been an exclusively public function, any more than transportation, or the removal of trespassers from one's property, or the repossession of goods from a defaulting debtor are exclusively public functions that almost a century before the enactment of the Fourteenth Amendment, private persons were doing what [Plaintiff] contends is the work of the state today even when done by private persons, id., such as the Hospital Defendants. That the State can authorize commitment through its parens patriae or police powers does not make it the exclusive prerogative of the State. The reasons for private commitment are practical. A person may need to be restrained immediately, by his or her family, physician, or even a stranger, and there may not be a public institution at hand. See id. at 1381. This is why the responsibility for treatment of the mentally ill is shared between private and public institutions. Simply because commitment today may only be effected in the manner prescribed by New York State does not prove that the power to commit has traditionally been the exclusive prerogative of New York. "Private commitment is no more state action than a citizen's arrest, the repossession of chattels, or the ejection of trespassers is." Id. As this Court stated in Thomas v. Beth Israel Hosp., Inc., as a general rule, private hospitals do not act under color of state law for § 1983 purposes. 710 F.Supp. 935, 940 (S.D.N.Y.1989) (noting that private hospital was not acting under color of law when it complied with the New York Child Protective Services Act by reporting suspected child abuse). The rule applies here. The application of the state compulsion, close nexus/joint action, and public function tests establish that the MHL, at most, provides a licensing provision enabling the private hospital to receive mental patients. Licensing and regulations are insufficient to transform the Hospital Defendants into state actors for § 1983 purposes. Holding otherwise would expose private physicians and private hospitals 357 to § 1983 liability whenever they act pursuant to the MHL, despite the fact that their actions reflect medical judgments made according to generally accepted professional standards that are not established by New York State. B. Defendant Rosenberg Is Not a State Actor Defendant Rosenberg did not engage in state action when he authorized transport of Doe to CPMC for a psychiatric evaluation. Like the Hospital Defendants, Rosenberg is a private actor. Therefore the state compulsion, close nexus/joint action, and public function tests are applicable. Their application mandates the same conclusion as when applied to the Hospital Defendants: there was no state action. A test-by-test analysis, however, proves unnecessary because Rosenberg did not commit the act of which Doe complains. He was not among the physicians who committed Doe against her will pursuant to the MHL. His actions are one step removed from those of the Hospital Defendants. Rosenberg simply took steps necessary to secure a psychiatric examination of Doe. Doe's contention that Rosenberg should be deemed a state actor because it was his actions that set in motion the events that eventually led to her civil commitment cannot be sustained. Indeed, the Tenth Circuit in Pino dismissed a claim against a private therapist who advised police to transport the plaintiff to a hospital for psychiatric evaluation. See Pino, 75 F.3d at 1463, 1466. The court reasoned that: [the therapist's] conduct does not rise to the level of state action merely because [the officers] responded to her call to the dispatcher and heeded her advice to transport Appellant to the hospital. Moreover, [the therapist], by her actions ... did not exercise "some right or privilege" or act under a "rule of conduct" created by state law as required by Lugar. Id. at 1465; see Harvey, 949 F.2d at 1132 ("[P]rivate persons ... who act pursuant to state statutes to commit the mentally ill cannot be held liable under section 1983."). Unlike civil commitment, ordering transport of Doe to the hospital for a psychiatric evaluation does not constitute a significant deprivation of liberty requiring due process protection. As the facts indicate, Doe was not subjected to four-point restraints during transport. In deciding that Doe required a psychiatric evaluation Rosenberg relied not on statute but on pure medical judgment, thereby dispelling any notion of state compulsion. In addition, this function has never been within the exclusion function of the State. In fact, one need not be a physician to facilitate a psychiatric evaluation of a person. A father, mother, sister, brother, husband, wife, or any person with whom the person alleged to be mentally ill resides could secure such an evaluation, see MHL § 9.27(b), or request the person be taken into custody, if necessary, for the purposes of obtaining a psychiatric evaluation. See Watkins v. Roche, 529 F.Supp. 327, 329-30 (S.D.Ga.1981) (finding that private physician's execution of certificate involuntarily subjecting plaintiff to psychiatric examination did not constitute state action because ordinary citizens had the same authority as the physician and the physician was not required or compelled by statute to execute the certificate). Thus, Okkunieff's assertion that the law treats physicians differently than other citizens as physicians are authorized to make decisions that can result in involuntary commitment is misplaced. It was found above that involuntary commitment itself does not convert a private actor into a state actor. A fortiori, actions taken by a private physician to set the ball rolling so that involuntary commitment might be a possibility certainly do not equal state action. Even if involuntary commitment were attributable to the State, requesting a psychiatric examination that ultimately leads to involuntary commitment surely cannot be. Holding otherwise would cast the net of § 1983 liability too far. A mother who brings her disturbed daughter to CPMC for psychiatric evaluation would be subject to § 1983 liability. Doe's claim is neither practical nor legally valid. A private physician does not trigger state action when he or she determines a patient is in need of immediate *358 psychiatric evaluation and takes steps necessary to facilitate that evaluation. Because Defendant Rosenberg is not an employee or agent of the State, his decision and actions constituted nothing more than treatment of a patient based only on medical judgment, and most importantly, he was not the physician who involuntarily committed Doe, Doe's § 1983 claim must fail for lack of state action. III. Doe's Pendent State Law Claims Will Be Dismissed A district court may decline supplemental jurisdiction when it dismisses all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). Since the parties are in an early stage of the case and the federal claims have been dismissed, leaving no independent basis of jurisdiction over the remaining state claims, they will also be dismissed. See Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir.1994); Modeste v. Local 1199, 850 F.Supp. 1156, 1167 (S.D.N.Y.1994), aff'd, 38 F.3d 626 (2d Cir.1994). Conclusion In sum, Doe has failed to raise a genuine issue of material fact that the Hospital Defendants and Defendant Rosenberg's actions could be attributed to the State. For the reasons set forth above, Defendants' motions for summary judgment are granted, and all pendent state law claims are dismissed for lack of supplemental jurisdiction. It is so ordered. NOTES [1] Under MHL § 31.02, general hospitals may not operate a psychiatric wing without an operating license issued by the New York State Office of Mental Health ("OMH"). CPMC had such a license. CPMC also was licensed by the OMH Commissioner to operate a comprehensive psychiatric emergency program ("CPEP") under MHL § 31.27. A CPEP serves as a primary psychiatric emergency provider. [2] Courts have even found state compulsion lacking despite existence of coercive language in state statutes comparable to the MHL. Maryland's involuntary commitment statute states that "[i]f an emergency evaluee meets the requirements for involuntary admission and is unable or unwilling to agree to a voluntary admission ..., the examining physician shall take the steps needed for involuntary admission." S.P., 134 F.3d at 269 (quoting Md.Code Ann., Health-Gen. § 10-625(a) (1994)). The Fourth Circuit held that although the statute uses language which suggests a degree of coercion, the entire involuntary commitment scheme in Maryland is permissive and leaves much discretion to the private physician or hospital. See id. at 270. Likewise, because of the word "shall" in the Pennsylvania statute, the court in Janicsko noted that the statute "does not clearly allocate all the discretion of commitment to a physician, and, in fact, uses language which suggests a degree of coercion." Janicsko, 774 F.Supp. at 338. Regardless, the court found that the "shalls" related to the necessity of emergency treatment and were included to offer more protection to the person to be committed rather than to compel civil commitment by private actors. [3] MHL § 9.39 defines "likelihood to result in serious harm" to include, inter alia, "substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself." MHL § 9.39. [4] Peter Stastny, M.D., states in an Affidavit submitted by Doe that the determination of "dangerousness" requires a social, rather than a medical, assessment. Dr. Stastny's Affidavit is unhelpful in this summary judgment motion since, as the Second Circuit concluded in Rodriguez, the interpretation of the MHL and the amount of discretion afforded to physicians is a question of law and not fact. [5] As described in the discussion of state compulsion, the MHL leaves the decision to commit in the hands of the physician. [6] MHL § 7.01 states: "The state of New York and its local governments have the responsibility for the prevention and early detection of mental illness and for the comprehensively planned care, treatment and rehabilitation of their mentally ill citizens." [7] If anything, Dodson's analysis regarding the use of professional judgment may be used as an analogy to support the Hospital Defendants' assertion that there is no state action in this case.
[Cite as State v. Andrews, 2019-Ohio-1771.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA STATE OF OHIO, : Plaintiff-Appellee, : No. 107357 v. : ISIAH ANDREWS, : Defendant-Appellant. : JOURNAL ENTRY AND OPINION JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: May 9, 2019 Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-75-017902-ZA Appearances: Brian Howe, Mark A. Godsey, and Mallorie Thomas, The Ohio Innocence Project, for appellant. Michael C. O’Malley, Prosecuting Attorney, and Anthony Thomas Miranda, Assistant Prosecuting Attorney, for appellee. LARRY A. JONES, SR., J.: Defendant-appellant Isiah Andrews (“Andrews”) appeals the trial court’s denial of his application for DNA testing. For the following reasons, we reverse and remand. In 1975, Andrews was convicted in the aggravated murder of his wife, Regina Andrews (“Regina”). He was sentenced to life in prison. His conviction was affirmed on appeal. State v. Andrews, 8th Dist. Cuyahoga No. 34620, 1976 Ohio App. LEXIS 7602 (Mar. 18, 1976). He has been in prison since 1975 and is currently 81 years old. The following facts were adduced at trial, as stated in Andrews at 1-3: The defendant was arrested on September 19, 1974 and charged with the stabbing death of his wife, Regina Andrews. At trial Linda Cloud testified that she lived in the Colonial Hotel next door to where the defendant and his wife lived. Cloud stated that on September 17, 1974 at 9:00 p.m. she saw Regina Andrews and an unidentified man enter the Andrews’[s] room and that sometime later she saw the defendant appear and also enter the room. Cloud testified that between 1:00 and 1:30 on the morning of September 18, she saw the defendant and his wife leave their room and get into their car, at which time she overheard the defendant tell his wife, “[B**], you know I am going to kill you, don’t you.” Betty Worth[1] testified that she was working as a maid at the Colonial House Hotel on September 18, 1974 when, at about 11:00 a.m., she saw the defendant talking to his wife in the doorway of their room. Worth stated that she saw the defendant slam the door and go inside the room, whereupon a record player in the room was turned up very loud. Worth stated that approximately ten minutes later the record player was turned off and the defendant came out of his room, went to his car and opened its trunk; that the defendant then returned to his room and within a few minutes left carrying a large heavy object over his shoulder which he placed in the trunk of his car. Worth testified that she walked past the defendant’s room and saw that the bed was stripped of all linen. Regina Andrews’s body was found in Forest Hills Park in the afternoon of September 18, 1974 wrapped in bedroom linen. The linen 1Although the witness is referred to as “Betty Worth,” a review of the transcript shows that her last name was actually “Worthy.” was identified by Betty Worth as being the same type used in the Colonial House Hotel. The following facts were also adduced at trial, based on our review of the trial transcript: Andrews and his wife were temporarily living in Room 133 at the Colonial House Motel. Around 5:00 p.m. on September 18, 1974, Andrews spoke to Betty Worthy, an unpaid maid at the motel, and inquired about his wife’s whereabouts. Worthy knew that several prostitutes lived at the motel and suggested that maybe Regina had been arrested. Andrews called police and reported his wife missing. After a few hours, Andrews called his wife’s mother. After receiving a phone call from Andrews, Regina’s mother arrived at the motel with some family members. They noted that other than dirty dishes in the kitchenette, the room was neat and orderly, the bed was made, and there was no blood anywhere. Andrews told his mother-in-law that he was away from the motel most of the day and he did not know where Regina was. Regina’s body was discovered by a bystander, Jesse Byous, who found her in Forest Hills Park, wrapped in blood-soaked bed linens. She had multiple stab wounds to her neck and the front of her body. Regina’s nightgown, peignoir, and full-length caftan were pushed up above her waist, leaving her lower half bare. Regina was not wearing any underwear or shoes. The bed sheets found with the victim were labeled “Holiday Inn, Akron-Canton.” Police also discovered two pillow cases labeled “Howard Johnson” and a hand towel stained with urine and fecal matter in the bedding. Police found about a dozen blood-soaked Plain Dealer newspapers in the woods near the body. On September 19, detectives went to the Colonial Inn, where Andrews voluntarily agreed to speak with them. Andrews explained that the couple had recently married and were staying at the motel temporarily while searching for a place to live. Andrews told police he last had sexual intercourse with his wife the night before she was killed. He last saw his wife when he left their room just before 8:00 a.m. on the morning of September 18. He ran errands over the course of the day, selling clothes and wholesale fish, and returned home in the afternoon. When he got back to the motel, the room was locked with no one inside, and Andrews had to get a spare key from the front desk clerk. After meeting with Andrews, detectives interviewed others at the motel, including Linda Cloud and Betty Worthy. Cloud lived next door to the Andrews in Room 131. She initially told detectives that she saw Andrews and Regina on September 17 and heard the TV on around 11:00 a.m. on September 18. Cloud also told police that a light-skinned man was in the Andrews’s motel room around 9:00 p.m. on September 17. Betty Worthy had lived at the Colonial House Motel for two months. Worthy told police that she saw Andrews talking to his wife around 11:00 a.m. on September 18. According to Worthy, Andrews was inside the room for approximately ten minutes and, during that time, extremely loud music was playing. Andrews then came out of his motel room and made eye contact with Worthy. He walked to his car, opened the trunk, and proceeded back to his room. When he emerged from his room again, Worthy saw Andrews carrying a heavy bag over his shoulder, which he put in the trunk. He then returned to the doorway of the motel room, said some words into the room, and left. Worthy next saw Andrews around 5:00 p.m. at the motel office. Worthy testified that Andrews was still wearing the same brown suit she had seen him in earlier in the day and he was dressed “very neatly,” as he usually dressed. At trial, Worthy told, for the first time, that after she saw Andrews put a bag in the car, she looked into the Andrews’s room and saw that the sheets had been stripped off the bed. Worthy admitted that she did not mention this to police in her initial account. According to Worthy, she “only told [police] part of it” and could not initially remember details to which she eventually testified. Dr. Elizabeth Balraj performed the autopsy on Regina. She counted 11 stab wounds, all to the front of the body – the doctor located 7 stab wounds on the neck and 4 superficial stab wounds on the abdomen. Dr. Balraj estimated that Regina lost two to three pints of blood and testified that the stabbing would have produced “a great deal of blood.” Andrews gave police permission to search his car, including the trunk, but the police did not locate any blood in the car or its trunk. The police also did not locate any blood in the Andrews’s motel room, including on the mattress or the carpet. As part of the investigation, police closely examined the Regina’s clothing for defects, where the knife would have penetrated the fabric. Despite Regina having been stabbed 11 times in the neck and abdomen, there were no defects on the peignoir, and her full-length caftan showed only two defects, both around the neck area. Barbara Campbell, a trace evidence technician with the coroner’s officer, testified that the markings on Regina’s clothes were consistent with her nightclothes having been “pushed up” at the time of stabbing. The coroner’s office also collected swabs from Regina’s vagina, rectum, and mouth and discovered intact, fully-tailed sperm on the vaginal swabs. At trial, Dr. Balraj testified that these swabs were collected to investigate a potential sexual assault: Q: Doctor, may I ask you why you performed the test on these three openings [vaginal, anal, and oral]? A: To look for sperm. Q: Why look for sperm? A: To look if there has been any recent sexual intercourse. Q: And is this, in part, due to the determination or to make a better determination as to whether or not there was any sexual assault involved in this killing? A: That is correct. Q: All right. When we talk about sexual assault, we are talking about rapes and things of that sort, aren’t we? A: Yes, that is correct. DNA testing was not available in 1974, thus the sperm was never tested for a DNA match. Despite the fact that blood type testing was available in 1974, the coroner’s office never tested the sperm for blood type. The jury convicted Andrews of aggravated murder and the court sentenced him to life in prison. In April 2018, Andrews filed an application for DNA testing, requesting the testing of vaginal swabs collected from the victim during the autopsy. In his motion, he argued that the trial court had multiple sources of authority under which it could order DNA testing: (1) the Ohio postconviction DNA testing statutes, R.C. 2953.71 et seq.; (2) R.C. 2933.82 which requires the testing of sexual assault examination kits; and (3) a trial court’s equitable authority. Plaintiff-appellee, the state of Ohio, filed a report confirming that the Cuyahoga County Medical Examiner was in possession of three sets of oral, vaginal, and rectal slides. But the state opposed Andrews’s request for DNA testing, arguing that the test results would not alter the outcome of the trial, the slides were not part of a sexual assault examination kit, and the trial court had only statutory authority to order testing. The trial court denied Andrews’s application. In its opinion, the trial court noted that there was no evidence presented at trial that Regina’s sexual activity was related to her murder and concluded that “there is no strong probability that a reasonable factfinder would not find Defendant guilty based upon any DNA testing regardless of the results.” This appeal followed. Andrews raises two assignments of error for our review: I. The trial court erred by denying appellant access to DNA testing pursuant to R.C. 2953.71 – 81. II. The trial court erred by implicitly denying appellant’s request for DNA testing under R.C. 2953.84 without explaining its reasoning. In his first assignment of error, Andrews claims that the trial court erred by denying his access to DNA testing pursuant to R.C. 2953.71 et seq. Advances in DNA testing prompted the General Assembly to enact R.C. 2953.71 et seq. in 2003. These statutes permit an eligible prison inmate who has been convicted of a felony and who has at least a year remaining on his or her prison term to file a postconviction application for DNA testing of biological evidence upon which no DNA test, or an inconclusive DNA test, has been conducted. See R.C. 2953.71(F), 2953.72(A) and (C), and 2953.74(A) and (B). The court may accept an eligible inmate’s DNA-testing application only if (1) biological material was collected from the crime scene or the victim, and the parent sample of that biological material still exists; (2) the parent sample of the biological material is sufficient, demonstrably uncorrupted, and scientifically suitable for testing; (3) the identity of the perpetrator of the charged offense was an issue at the inmate’s trial; (4) a defense theory at trial was such that it would permit a conclusion that an “exclusion result w[ould] be outcome determinative”; and (5) “if DNA testing is conducted and an exclusion result is obtained, the results of the testing w[ould] be outcome determinative.” See R.C. 2953.74(B) and (C). An “exclusion result” is a DNA test result “that scientifically precludes or forecloses the * * inmate as a contributor of biological material recovered from the crime scene or victim in question.” R.C. 2953.71(G). Importantly, an exclusion result is “outcome determinative” if, had the results of DNA testing of the subject offender been presented at the trial of the subject offender requesting DNA testing and been found relevant and admissible with respect to the felony offense for which the offender is an eligible offender and is requesting the DNA testing, and had those results been analyzed in the context of and upon consideration of all available admissible evidence related to the offender’s case as described in division (D) of section 2953.74 of the Revised Code, there is a strong probability that no reasonable factfinder would have found the offender guilty of that offense * * * . (Emphasis added.) R.C. 2953.71(L).2 In deciding whether to accept an application for DNA testing, the trial court “shall consider the application, the supporting affidavits, and the documentary evidence and, in addition to those materials, shall consider all the files and records pertaining to the proceedings against the applicant, including, but not limited to * * * the court reporter’s transcript.” R.C. 2953.73(D). R.C. 2953.74(A) provides that the common pleas court “has discretion on a case-by-case basis” to accept or reject an eligible inmate’s application for DNA testing. Thus, we review a trial court’s decision whether to grant the application for an abuse of discretion. An abuse of discretion is more than an error 2In 2006, the General Assembly amended R.C. 2953.71(L) to lower the outcome determinative standard for establishing entitlement to DNA testing. The current version lowered the definition of “outcome determinative” from a “showing of innocence beyond a reasonable doubt to one of clear and convincing evidence.” State v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, 923 N.E.2d 654, ¶ 21 (8th Dist.). of law or judgment; it implies that the court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). In this case, the trial court found that DNA testing would not be outcome determinative because, “[t]he simple fact that Regina had sex with someone prior to her death is not enough without other evidence to suggest there was some other perpetrator.” The trial court also focused on the parties’ arguments at trial, stating that “[n]either the State nor the defense relied upon anything relating to sexual activity or sexual assault in this case,” and that “no defense was presented that Regina had been sexually assaulted and that whoever had assaulted her was that murderer.” Although the closing arguments from the trial do not appear to have been transcribed, defense counsel did question witnesses about the theory that Regina was sexually assaulted before she was killed. During defense counsel’s cross- examination of Barbara Campbell, a trace evidence technician with the coroner’s office, defense counsel asked: “So, is it not possible that given the facts that there is sperm in the vagina and given the fact that the caftan which was over this woman’s bed or nightclothing, is it not possible that that was pushed up just prior to death and that she was sexually assaulted?” (The state objected to the question and the trial court sustained the objection.) Defense counsel also solicited testimony from the coroner, Dr. Balraj, that she collected the vaginal, oral, and anal swabs to determine whether a sexual assault had occurred. Thus, one could reasonably conclude that the defense theory was that whomever killed Regina did so in the course of some kind of sexual activity or assault. There was also objective evidence linking Regina’s murder to sexual activity. At the time of her death, Regina was wearing a nightgown and peignoir under a full-length caftan. Both the nightgown and the caftan appear to have been pushed up around the time Regina was stabbed. Although the state claimed that Regina was killed in her motel room and the nightgown was pushed up when Andrews transported her from the motel to the woods, the state’s own forensic witness, Barbara Campbell, testified that the slash marks through Regina’s nightgown were consistent with it having been folded and bunched up around her upper abdomen when the knife passed through the fabric. Further, although Regina was stabbed in the abdomen multiple times, the peignoir had no slash type defects at all and the full-length caftan had only two slash defects, both around the neck and both corresponding to stab wounds on Regina’s neck. Thus, Andrews argues, the perpetrator could not have stabbed Regina multiple times in the abdomen without leaving any corresponding defects in the caftan, unless Regina’s clothing was pushed up at the time of the murder. This evidence, Andrews claims, strongly indicates that the murder was connected to some form of sexual activity. The victim was found lying on or near a small towel, without underwear. During the autopsy, the coroner noted the presence of fully-tailed sperm. Dr. Balraj testified that she could not determine how long ago the sperm had been deposited, except that it “could have been hours.” Campbell testified that the sperm found in the victim were immobile or dead, and, although she could not opine as to when the victim last had sexual intercourse, she had seen mobile sperm up to days (“152 hours”) after deposit. The trial court noted in its opinion denying Andrews’s application that the state did not present any evidence related to sexual assault and did not charge Andrews with any crimes of sexual violence. In 1974, however, it was not a crime to commit an act of sexual violence against your spouse. See former R.C. 2907.02-.06. In light of the above, we agree with Andrews that determining the source of the sperm found in Regina is critical. The outcome determinative standard requires the court to assume that DNA testing will lead to an exclusion result, i.e., that DNA testing will prove that the sperm found on the vaginal swabs came from someone other than Andrews. See R.C. 2953.74(B)(1); R.C. 2953.71(G). It also requires courts to consider this exclusion “in the context of and upon consideration of all available admissible evidence.” R.C. 2953.74(B)(1); R.C. 2953.71(L). Andrews admits that it is possible that his wife was found with her clothes bunched up around her upper abdomen for reasons unrelated to sexual activity. He also concedes that it is possible that the fully-tailed sperm may be on the vaginal swabs for reasons unconnected to his wife’s murder or sexual assault, e.g., she had consensual sexual intercourse with someone other than Andrews prior to her murder. And, as mentioned, Andrews told police he and his wife had sexual intercourse the day before she was killed. However, it is equally possible that Regina was stabbed as a part of, or immediately following, some sexual activity or sexual assault, and that the fully-tailed sperm belong to someone other than Andrews. In this case, the trial court focused on how an exclusion result would have fit into the arguments presented by the parties in 1974, finding that “[n]either the State nor the defense relied upon anything relating to sexual activity or sexual assault in this case,” and that “no defense was presented that Regina had been sexually assaulted and that whoever had assaulted her was the murderer.” Trial Court Opinion at 3-4. But defense counsel did posit the theory at trial that Regina was sexually assaulted by the person who murdered her. And the fact that the state did not file rape charges is explained, at least in part, by the fact that the spouse of a victim could not be charged with a crime of sexual violence in 1974. The proper focus of an outcome-determinative analysis is to consider the evidence in totality, not just the arguments made by each side at the time of trial. See R.C. 2953.73(D). In fact, DNA results excluding the defendant could have fundamentally changed the arguments the parties made at trial. For example, Andrews’s trial counsel might have been less aggressive in pushing a sexual assault defense, perhaps fearing a jury might believe Andrews was the source of the semen. However, if counsel had known that DNA from the vaginal swabs did not match Andrews, or matched a third party via the Combined DNA Index System (“CODIS”), the entire character of the trial could have been altered. The impact of a hypothetical exculpatory DNA result should be determined independently, in the context of and upon consideration of all available admissible evidence. To the extent the trial court relied solely on how exculpatory DNA results would have impacted the specific arguments made by the parties in 1974, its reasoning was in error. Dr. Balraj testified that the victim was stabbed 11 times, through major arteries, and would have lost a large amount of blood. The linens in which Regina’s body was wrapped were completely soaked through with blood, as were her clothes. Despite this, police failed to find any blood anywhere connected to Andrews, testifying that “[n]othing that we could use against Isiah was found in the [motel] room” or in his car. The motel room where the state alleged the murder occurred was found clean and neat, with no blood or other physical evidence linking Andrews to his wife’s death. Although the bedding found with the victim was completely soaked through with blood, the mattress in the Andrews’s room was spotless. There was no blood on the floor or anywhere else in the room, nor was there any blood in the trunk of Andrews’s car. In addition, Andrews was seen wearing the same suit both before and after the time the state alleged he murdered his wife. We further note that the linens found with the body were not unique to the Colonial Inn. In fact, they were stamped as property of multiple other hotels ─ “Howard Johnson Motor Inn,” “Holiday Inn Akron-Canton,” and “Howard Johnson, University Circle” and were from a laundry company who pooled and distributed the same kinds of linens to an unknown number of hotels. Andrews contends that DNA testing could definitively prove his innocence. It may, or it may not, but Andrews need not meet that standard to obtain testing under Ohio law. The “outcome determinative” standard no longer requires hypothetical DNA results to be proof positive of innocence. Nor does the standard require certainty that a jury would acquit. The standard requires that there is a “strong probability” that, faced with exculpatory DNA results, a jury could find reasonable doubt as to the defendant’s guilt. In this case, this means that if the sperm came from someone other than Andrews, then there is a strong probability a jury would find reasonable doubt. If DNA testing is able to match the sperm to a known felon through CODIS, there is a strong possibility a reasonable jury would have voted to acquit Andrews of his wife’s murder. Our decision in Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, 923 N.E.2d 654, is instructive. After a trial at which no physical evidence linked him to the murder of an elderly woman, Ayers was convicted of aggravated murder, aggravated robbery, and aggravated burglary. He later filed an application for DNA testing. The trial court denied his application, stating that DNA testing would not be outcome determinative. This court disagreed, finding that Ayers had made a compelling argument in support of DNA testing because the police found biological evidence on the victim and, although none of the evidence matched Ayers’s DNA profile, it was possible that refinements in testing could identify the source of the DNA and perhaps establish proof that another person was with the victim at the time of the murder. Id. at ¶ 43. This court reasoned that the newer tests could show the existence of biological material under the victim’s fingernails when testing conducted nearly ten years ago could not, and, given evidence that the victim had wounds that indicated she tried to defend herself, a positive identification of such material would likely point to the murderer. Id. This court noted that Ayers had offered to bear the cost of DNA testing through non-public means, so the testing would not financially burden the state. Id. at ¶ 44. Moreover, this court found, if the DNA testing of the items Ayers sought to have tested yielded his expected results; that is, establishing a profile of someone who is inextricably linked to the crimes and subsequently identified – such results would undermine the confidence in the jury’s verdict. Id.3 Likewise, in this case there was no physical evidence linking Andrews to the murder of his wife. Andrews has also offered to bear the cost of DNA testing so the testing will not financially burden the state. Most importantly, if the DNA testing of the swabs taken from Regina during her autopsy yield the results Andrews claims they will; that is, establishing a profile of someone who is linked to the crime and subsequently identified, or if Andrews is excluded as the source of the DNA, the results would undermine the confidence in the jury’s verdict. Thus, under these circumstances and the particular facts of this case, the trial court abused its discretion by denying Andrews’s application for DNA testing. Accordingly, the first assignment of error is sustained. 3After the Sixth Circuit Court of Appeals granted Ayers’s habeas corpus petition based on the testimony of a jailhouse informant, the state sent all of the evidence from the crime scene for DNA testing. The DNA testing excluded Ayers. In September 2011, the state dismissed its case against Ayers and he was released from prison. See Ayers v. Hudson, 623 F.3d 301, 304 (6th Cir.2010); State v. Ayers, Cuyahoga C.P. No. CR-00-388738-ZA; https://www.innocenceproject.org/cases/david-ayers (accessed Apr. 3, 2019). In his second assignment of error, Andrews argues that the court erred in denying his application for DNA testing without explaining its reasoning. Our conclusion under the first assignment of error, that the court abused its discretion in rejecting the application, renders moot the challenge advanced in his second assignment of error. See App.R. 12(A)(1)(c). The “ultimate objective” of our system of criminal law is that “the guilty be convicted and the innocent go free.” Ayers at ¶ 24, citing Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). We find that the trial court abused its discretion when it rejected Andrews’s application for DNA testing and reverse the court’s judgment and remand the case for further proceedings. Judgment reversed and cause remanded. It is ordered that appellant recover from appellee costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LARRY A. JONES, SR., JUDGE MARY EILEEN KILBANE, A.J., and RAYMOND C. HEADEN, J., CONCUR
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0582-15T3 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.D., Defendant-Appellant, and H.R., Defendant-Respondent. _______________________________ IN THE MATTER OF A.R., Minor. ________________________________ Submitted March 27, 2017 – Decided March 31, 2017 Before Judges Haas and Currier. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-75-15. Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent H.R. (Cary L. Winslow, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief). PER CURIAM Defendant R.D.1 appeals from the Family Part's August 21, 2015 order, following a dispositional hearing, terminating litigation initiated by the Division of Child Protection and Permanency ("Division") pursuant to N.J.S.A. 30:4C-12 against defendant and H.R., who are the parents of Alice, born in 2007. The order also granted custody of Alice to H.R. Defendant challenges the trial judge's determination, asserting that "the proceedings herein did not comply with the procedural requirements of N.J.S.A. 30:4C-12." The Division, the Law Guardian on behalf of Alice, and H.R. support the judge's 1 We refer to the parties by initials and to their child by a fictitious name in order to preserve their privacy. 2 A-0582-15T3 determination on appeal. Based on our review of the record and applicable law, we affirm. We derive the following procedural history and facts from the record developed before the Family Part. When the Division first became involved with defendant and H.R. in July 2008, they were living together, but later separated due to domestic violence issues between them. The Division removed Alice from the home in December 2008 and thereafter provided services to the family, including parenting skills training, psychological evaluations for both parents, individual counseling, and domestic violence counseling for defendant. The child returned to defendant's care in June 2009. Less than a month later, however, the Division removed the child again after defendant was arrested for shoplifting while Alice was with her. Alice resumed living with defendant in December 2010, and the Division closed the case in June 2011. In September 2014, a hospital staff person called the Division to report that defendant had appeared at the hospital on a bicycle with Alice and a dog, and that defendant was experiencing hallucinations and presented with anxiety and paranoia. Defendant was running through the emergency room with Alice and the dog, and she told the hospital staff that "God spoke to her through movies." Because defendant needed to be hospitalized, the Division 3 A-0582-15T3 conducted "a Dodd removal"2 of Alice and placed her in a resource home. On September 4, 2014, the trial court granted the Division custody, care, and supervision of Alice. After the hospital released defendant, she appeared in court on September 29, 2014. Defendant stated that H.R. had moved to Puerto Rico, but she was not able to provide the Division with H.R.'s contact information. The trial judge granted defendant weekly supervised visitation with Alice. Over the next three months, however, defendant's visits with the child were sporadic at best and, when she did appear, she would sometimes leave the visits early. The judge also ordered defendant to undergo a psychiatric evaluation. Following this evaluation, the psychiatrist opined that defendant suffered from bi-polar disorder and required ongoing mental health treatment, including mood-stabilizing medication, under the direction of a psychiatrist. Although the court ordered defendant to comply with these recommendations, she never did so. On December 17, 2014, the Division advised the trial court that it would forego seeking a finding that defendant had abused 2 A "Dodd removal" is an emergent removal of a minor without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011). 4 A-0582-15T3 or neglected Alice pursuant to N.J.S.A. 9:6-8.21(c)(4), but wished to continue the matter under N.J.S.A. 30:4C-12 so that it could continue to provide services to defendant and Alice. Defendant did not object to the dismissal of the Title 9 portion of the case, or the continuance of the litigation under Title 30. The Division was finally able to locate H.R., who stated that he was interested in caring for Alice. The Division arranged with its counterpart agency in Puerto Rico to conduct a home study of H.R.'s residence. The results of the home study were positive. In addition, H.R. arranged to come to New Jersey so he could engage in visits with Alice. These visits were not supervised. Based upon these developments, and defendant's continued refusal to obtain needed psychiatric care,3 the Division advised the trial court at a March 16, 2015 compliance review hearing that its plan was to reunite Alice with H.R. at the end of the school year in June. The Division also proposed that the trial court 3 At the March 16, 2015 hearing, defendant asserted that she worked as a bartender, for an energy company, and at her parents' real estate and mortgage company in Miami, Florida. Defendant stated that she also had a career as a dental assistant. In addition, defendant alleged that she had attended three different colleges, had a $35,000 scholarship "waiting for" her, and was "supposed to be in school." 5 A-0582-15T3 conduct a dispositional hearing4 in August to determine whether it would be safe to return Alice to defendant or whether the child's best interests would be served by placing the child in H.R.'s care. Through counsel, defendant did not object to the case progressing down this procedural path. On April 29, 2015, the Division filed an emergent application to suspend defendant's visits with Alice after defendant called the police to falsely report that the child had been abducted. In addition, at her most recent visit with Alice two weeks earlier, defendant attempted to walk the child out of the building, and then kept the child in a bathroom with her for twenty minutes. Although defendant's counsel was present, the Division was unable to find defendant to apprise her of this motion and it appeared that defendant did not live at the address she had provided to the 4 Thereafter, the parties and the trial judge sometimes mistakenly referred to the upcoming hearing as a "G.M. hearing" as a shorthand term. However, a "G.M. hearing" is held near the conclusion of Title 9 proceedings where the trial court needs to determine whether the child "may be safely released to the custody of [the offending parent], who was responsible for [his or her] care at the time of the filing of the complaint, or whether, consistent with N.J.S.A. 9:6-8.51, some other disposition is appropriate." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 387-88 (2009). However, in a Title 30 case, like the present one, where there is no finding of abuse or neglect on the part of a parent, the trial court conducts a summary hearing at the end of the litigation to determine what placement would be in the child's best interests. N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 36-37, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013). 6 A-0582-15T3 Division. Pending the May 6, 2015 return date, the trial judge cancelled defendant's next scheduled visit with Alice. On May 6, 2015, defendant was not present in court at the start of the proceedings. After oral argument, however, defendant entered the courtroom. The trial judge advised defendant that he was suspending her visitation with Alice until she began attending psychiatric treatment sessions. Defendant replied by informing the judge that: her father had left her a $20 million inheritance; she was applying for an "anti-terrorism" job with the FBI; was about to receive a monetary award for identifying a suspect in the 1995 Oklahoma City bombing; and planned to become "a congresswoman." Defendant never appeared in court again. Although defendant provided the trial judge on May 6, 2015 with a new address where she said she could be reached, defendant did not reside at that location. On June 15, 2015, the trial judge held a compliance hearing and transferred custody of Alice to H.R. Thus, the child was finally able to leave her resource home to live with a parent. The judge scheduled a dispositional hearing for August 21, 2015. Prior to that hearing, the Division made numerous attempts to locate defendant and filed an "Affidavit of Diligent Inquiry" pursuant to Rule 5:12-2(b) detailing these efforts. Defendant did 7 A-0582-15T3 not appear at the hearing. Her attorney advised the trial judge that he was "not at liberty" to say whether he was aware of defendant's whereabouts. At the hearing, the Division presented the testimony of a caseworker, who summarized the procedural history and facts set forth above. The caseworker reiterated that the Division's counterpart-agency in Puerto Rico had "no concerns" about H.R.'s ability to parent Alice and that the child "wishes to be with her father." Defendant's attorney did not call any witnesses or present any evidence on her behalf. At the conclusion of the hearing, the trial judge rendered an oral decision, terminating the litigation and placing Alice in H.R.'s legal and physical custody. In explaining his ruling, the judge stated: I've listened to the caseworker testify and I do find her testimony to be credible and uncontradicted, and I have to choose today between the father or the mother . . . as to where this child is going to be placed or who is going to get the legal and physical custody [and] clearly it's with [H.R.] And I'm . . . not only to consider what I heard today and what I see today, what I saw in the past. . . . I need to place on the record that my observations of [defendant's] demeanor were that she was incoherent at times when she addressed the [c]ourt, she rambled, she was delusional, and that was the last time that she was here and nobody has seen her since and she's not here today. 8 A-0582-15T3 On the other hand, [H.R.], aside from . . . one incident with marijuana, appears to have done everything he's supposed to do for his child with respect to healthcare, education, clothing, shelter, et cetera. I find that it would be a risk, a safety risk, to place this child or to maintain custody with [defendant] because of what I just said. She's delusional, she's incoherent, she rambles, and she is in clear need, in this [c]ourt's opinion, based on my observations, of psychiatric assistance or therapy . . . [and] she is not capable, in my opinion, of being an appropriate parent to this child when juxtaposed against the ability of [H.R.] at this time. The judge continued: So based upon [defendant's] noncompliance with services, which she clearly needed, based upon my personal observations of her the last time she was here, based upon the fact that I know that -- or I find that she knew about today and is not here, and that [H.R.] has acted in the appropriate fashion with respect to his daughter since she's been in his custody, I find it would be in the best interest of the child to . . . be with [H.R.] and he is now granted physical and legal custody and the case will be dismissed. This appeal followed. On appeal, defendant challenges the trial judge's determination and asserts that the judge followed an incorrect procedural course in deciding to place Alice with H.R. at the conclusion of the Title 30 proceedings. We disagree. Our review of a trial court's fact-finding in a non-jury case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 9 A-0582-15T3 169 (2011). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411- 12 (1998)). We "should not disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (internal quotation marks omitted). However, we owe no deference to a trial court's interpretation of the law, and review issues of law de novo. Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009). We also extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 413. Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of North America Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)). "It is not our place to second-guess or substitute our judgment for that of the family 10 A-0582-15T3 court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). Applying these standards, we discern no basis for disturbing the trial judge's reasoned determination that Alice should be removed from her resource home and placed in H.R.'s custody. H.R. "was the only appropriate parent to award custody to at the dispositional conclusion of this fact-sensitive Title 30 proceeding." I.S., supra, 214 N.J. at 41. H.R. had a stable home and was willing and able to care for Alice, who wished to live with him. On the other hand, defendant suffered from a psychiatric condition for which she refused to seek treatment. Between September 2014 and April 2015, defendant's supervised visits with Alice were sporadic at best. In early April 2015, defendant attempted to leave the Division office with the child and, two weeks later, she called the police to falsely report that the child had been abducted. After May 6, 2015, defendant never appeared in court again, never provided her address to the Division, and never complied with the trial judge's order that she participate in treatment for her psychiatric condition. Thus, we are satisfied that there was competent, credible evidence in the record to support the trial judge's finding that it was not safe 11 A-0582-15T3 to return Alice to defendant's care and that placing the child with H.R. served the child's best interests. We also discern no merit in defendant's contention that she was deprived of due process as a result of the proceedings that occurred. The record demonstrates that defendant's rights were scrupulously protected. Defendant was represented by an attorney at all critical stages of the litigation, including the August 21, 2015 dispositional hearing. Thus, she had the opportunity to present witnesses and evidence, cross-examine the Division's witness and question its proofs, and engage in oral argument. As defendant points out, the trial judge and the parties' attorneys often incorrectly referred to the August 21, 2015 dispositional hearing as a "G.M. hearing," rather than as a Title 30 summary hearing where the child's best interests govern the placement decision. However, this mistake in nomenclature had no impact upon defendant's due process rights. Contrary to defendant's contention that the trial judge did not consider Alice's best interests, the judge made a specific finding that "it would be in the best interest of the child to . . . be with" H.R. and fully explained the basis for this decision as required by N.J.S.A. 30:4C-12. N.J. Div. of Youth & Family Servs. v. T.S., 426 N.J. Super. 54, 65 (App. Div. 2012) (noting that under the statute, a trial court "must conduct a summary hearing" and 12 A-0582-15T3 determine whether the "best interests of the child" require the placement sought by the Division). Finally, defendant's assertion that the trial judge "permanently separated" her from Alice by granting custody of the child to H.R. also lacks merit. Like any other parent, defendant may file a motion to address custody or visitation under a non- dissolution (FD) docket if she can demonstrate a sufficient change of circumstances. N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288, 300 (App. Div.) (citing I.S., supra, 214 N.J. at 40; G.M., supra, 198 N.J. at 402, n.3; and Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007)), certif. denied, 218 N.J. 275 (2014). In sum, the trial judge's decision to grant custody of Alice to H.R. was an appropriate disposition to end the Title 30 proceedings. This result was fully supported by the record and we perceive no basis for disturbing it. Affirmed. 13 A-0582-15T3
808 A.2d 928 (2002) ESTATE OF Adelaide BRISKMAN, deceased. Appeal of Mark Resop. Superior Court of Pennsylvania. Argued April 24, 2002. Filed September 9, 2002. Reargument Denied November 13, 2002. 929 Bernice J. Koplin, Philadelphia, for appellant. Daniel B. Evans, Philadelphia, for appellee. Before: DEL SOLE, P.J., TODD and MONTEMURO[], JJ. OPINION BY MONTEMURO, J. ¶ 1 This is an appeal from a final decree reversing the decision of the Register of Wills admitting to probate a 1993 will executed by the decedent, Adelaide Briskman, and vacating the letters testamentary issued to Appellant Mark Resop. Because we find that the contestant of the will, Appellee Julie Palley, had no standing to challenge probate, we reverse the Orphan's Court decree. ¶ 2 The decedent, Adelaide Briskman, died on June 15, 1993, at the age of 82, in the state of Florida. Ms. Briskman never married and had no children. Approximately five months before her death, Ms. Briskman transferred substantially all of her assets to Appellant Mark Resop, the branch manager of her bank.[1] On January 21, 1993, Ms. Briskman purportedly executed the will in question ("the 1993 will"), naming Appellant as the executor and sole beneficiary of her estate. The only asset of value presently remaining in her estate is a parcel of commercial property located at 1632 Walnut Street in Philadelphia.[2] ¶ 3 Appellant probated the 1993 will in Philadelphia, and was granted letters testamentary on December 3, 1993. Less than one year later, Appellee Julie K. Palley, a niece of the decedent, filed an appeal from the decision claiming that the decedent lacked testamentary capacity at the time she executed the 1993 will, or alternatively, 930 that the will was procured through fraud, duress, constraint, or undue influence. On December 7, 1994, the court issued a Citation to Show Cause why the appeal should not be sustained. Subsequently, on March 23, 1995, the court enjoined the sale or transfer of the Philadelphia property pending disposition of the will contest. ¶ 4 Sometime thereafter, Appellee discovered another purported will of the decedent dated August 1, 1984 ("the 1984 will"). The 1984 will makes several specific bequests, most to charity, and directs that Ms. Briskman's residuary estate be held in a charitable trust.[3] Ms. Briskman named her attorney at that time, Richard Rosin, as executor and trustee. Appellee and her husband were named as successor trustees if Mr. Rosin were unable to serve at any time. On March 6, 1997, Appellee filed another Petition for Citation to Show Cause, this time seeking probate of the 1984 will and the grant of letters testamentary to her if the 1993 will were to be set aside. The court, however, dismissed the petition without prejudice to refile it after conclusion of the will contest. ¶ 5 The case was assigned to Judge Frank X. O'Brien, who conducted two pretrial conferences. During the December 3, 1997, conference, Appellee stipulated that the signature on the 1993 will was indeed the decedent's.[4] (N.T., 12/3/97, at 20). Following a two-day non-jury trial in February of 1998, Judge O'Brien ordered the parties to file briefs and proposed findings of fact. No further notation appears in the record until February of 2001, when Appellant filed a Suggestion of Death averring that Appellee was deceased.[5] Thereafter, the case was reassigned to Judge Alex Bonavitacola,[6] who by decree dated May 7, 2001, reversed the decision of the Register of Wills admitting the 1993 will to probate, vacated the letters testamentary issued to Appellant, and remanded the record to the Register. Judge Bonavitacola concluded that, despite the parties' pretrial stipulation, the 1993 will lacked sufficient authentication by two competent witnesses pursuant to 20 Pa. C.S.A. § 3132.[7] Appellant filed timely exceptions, 931 which were denied by decree dated August 13, 2001. This timely appeal follows. ¶ 6 Appellant raises the following issues for our review: I. Whether the lower court's findings of fact were supported by legally competent and sufficient evidence? II. Whether contestant had standing to bring a will contest? And if contestant did have such standing, did it survive her death? III. A. Whether the proceedings in the lower court denied proponent due process? B. Whether the lower court abused its discretion by determining the credibility of witnesses it did not observe? IV. Whether the lower court committed an error of law by invalidating the 1993 Will where there were two competent witnesses to her signature? V. Presuming that the 1993 Will were [sic] authentic, whether contestant proved her case of undue influence or lack of testamentary capacity? (Appellant's Brief at 4). Because we conclude that Appellee had no standing to contest the will, we need not address Appellant's claims. ¶ 7 "As a general rule, a party must have an interest in order to challenge the grant or denial of letters to administer a decedent's estate." In Re Estate of Sidlow, 374 Pa.Super. 624, 543 A.2d 1143, 1145 (1988). The Decedents, Estates and Fiduciaries Code, 20 Pa.C.S.A. § 101 et seq., sets forth the parameters of this general rule: § 908. Appeals (a) When allowed.Any party in interest who is aggrieved by a decree of the register, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom to the court within one year of the decree: Provided, That the executor designated in an instrument shall not by virtue of such designation be deemed a party in interest who may appeal from a decree refusing probate of it. The court, upon petition of a party in interest, may limit the time for appeal to three months.... 20 Pa.C.S.A. § 908(a). ¶ 8 In the present case, there is no dispute that Appellee is an intestate heir of the decedent. Therefore, in the absence of any valid will, Appellee would certainly be considered a "party in interest" as she would share in the decedent's estate under the intestacy statute. See 20 Pa.C.S.A. § 2103. However, here, in addition to the 1993 will, there is a prior will of the decedent, executed in 1984, still in existence. Appellee is not a beneficiary under the 1984 will; rather, she is named only as a successor trustee. It is clear that if Appellee were named as trustee under the prior will, she would have standing to appeal probate of the 1993 will as a "fiduciary whose ... trust is so aggrieved[.]" See In re Thompson's Estate, 416 Pa. 249, 206 A.2d 21 (1965) (named trustee under will has standing to appeal probate of codicil which cancels charitable trust). Therefore, the question before us, which appears to be one of first impression, is whether an heir at law of the decedent who is not a beneficiary, but is a named successor trustee under a prior will, is "a party in interest aggrieved by the decree of the register" such that she has standing to appeal the decree? ¶ 9 In the present case, we are hard pressed to find that Appellee has any interest that has been aggrieved by probate of the 1993 will. Indeed, even under the 1984 will, Appellee's "interest" would arise only if the named trustee, Richard Rosin, 932 were unable to serve. In her Petition for Citation to Show Cause why the 1984 will should not be admitted to probate, Appellee alleged, 10. Richard E. Rosin has been notified by petitioner's counsel of the pending appeal from the probate of the 1993 will in this court but has failed to join in that appeal or petition this court for letters testamentary under the 1984 will. Counsel for petitioner has requested that Mr. Rosin renounce his right to serve as executor but he has failed to respond to that request. (Petition For Citation To Show Cause, filed 3/6/97, at ¶ 10). Therefore, Appellee has failed to demonstrate that Mr. Rosin is unable to serve as executor and trustee of the decedent's estate pursuant to the 1984 will. Moreover, her interest as an intestate heir would arise only if both the 1993 and the 1984 wills were determined to be invalid. ¶ 10 Although our research has not uncovered any appellate court decisions on this issue, we have found two Common Pleas Court cases which reach the opposite result; that is, in both cases, an heir at law, who was not named as a beneficiary in a prior will, was found to have standing to contest the validity of a later will "even though, at the moment, his coming into an intestate share may appear to be remote." Heffner Estate, 43 Pa.D. & C.2d 365, 369, 1967 WL 5834 (1967). See also Holtz Estate, 30 Pa.D. & C.2d 396, 1963 WL 6253 (1963).[8] The trial court in Holtz Estate explained, If appellant, as an heir at law, were excluded as a party in interest, the court in this proceeding would be deciding that the prior testamentary document was admissible to probate. Such a determination cannot be made collaterally in this proceeding. It can only be made when the will in question is offered for probate. Only in the probate proceedings could the possible existence of later wills or the partial destruction or revocation of the will be authoritatively determined. Holtz Estate, supra at 400. See also Heffner Estate, supra at 367 ("If there were 10 invalid prior wills of decedent in existence, this, of itself, would not be a compelling reason for this court to foreclose contestant's efforts to prove that decedent died intestate."). ¶ 11 However, if we were to follow this line of reasoning, then an heir at law would always be permitted to file an appeal from probate of a will in which the heir is not a named beneficiary. If the Legislature had intended that result, it could have specifically included "heirs at law" among those permitted to appeal the decision of a Register in § 908. It did not do so. Moreover, the statute was amended three times, in 1972, 1974, and 1976, since the Holtz and Heffner decisions. The clear and unambiguous language of the statute permits 933 a party to appeal a Register's decision only if that party has an interest that has been aggrieved. We find that Appellee's contingent interest, either as a successor trustee under the 1984 will, or as an intestate heir at law if both wills are deemed invalid, is too remote to confer upon her an interest in the probate of the 1993 will. ¶ 12 Moreover, even if we were to assume Appellee has a legitimate interest in the outcome of the will contest, historically, that interest must be substantial, direct, and immediate to confer standing. In Re Francis Edward McGillick Foundation, 537 Pa. 194, 642 A.2d 467, 469 (1994). A "substantial" interest is an interest in the outcome of the litigation which surpasses the common interest of all citizens in procuring obedience to the law. A "direct" interest requires a showing that the matter complained of caused harm to the party's interest. An "immediate" interest involves the nature of the causal connection between the action complained of and the injury to the party challenging it, and is shown where the interest the party seeks to protect is within the zone of interests sought to be protected by the statute or constitutional guarantee in question. South Whitehall Township Police Serv. v. South Whitehall Township, 521 Pa. 82, 555 A.2d 793, 795 (1989) (internal citations omitted). Here, although Appellee's interest might be considered substantial, that is, one that surpasses the common interest of all citizens, it is neither direct nor immediate. As we discussed supra, her interest arises only if the named trustee is unavailable to serve under the 1984 will, or if both the 1993 will and the 1984 will are invalidated. ¶ 13 Appellee argues that Appellant has waived the issue of standing since he did not raise it in his exceptions. "However, when a statute creates a cause of action and designates who may sue, this issue of standing becomes interwoven with that of subject matter jurisdiction[,]" and may be raised by this Court sua sponte. Grom v. Burgoon, 448 Pa.Super. 616, 672 A.2d 823, 824-25 (1996). Here, Appellee's cause of action arises from § 908; therefore, her standing is a "jurisdictional prerequisite" to the action. Id. at 824. Accordingly, Appellant's failure to raise the issue below is not fatal. ¶ 14 In addition, Appellee contends that Appellant cannot object to her standing based on the 1984 will when that will "has never been probated (and might never be probated), never been authenticated, and never been introduced into evidence[.]" (Appellee's Brief at 9). We find this argument disingenuous since it was Appellee, not Appellant, who first proposed that the 1984 will should be probated. See Petition For Citation To Show Cause, filed 3/6/97. In addition, although the 1984 will was not admitted during trial, it is included in the certified record as an attachment to Appellee's Petition For Citation To Show Cause. Finally, neither party has ever challenged the signature of the decedent or the subscribing witnesses on the 1984 will. Thus, this argument fails. ¶ 15 Because Appellee had no standing to challenge probate of the 1993 will, we are compelled to reverse the decree of the Orphan's Court.[9] 934 ¶ 16 Decree reversed; case remanded to Register of Wills for proceedings consistent with this Opinion. Jurisdiction relinquished. NOTES [] Retired Justice assigned to Superior Court. [1] In its Opinion, the trial court found that between January, 1993 and June, 1993, Ms. Briskman deeded her residence to Appellant for nominal consideration, and transferred over $2,000,000 in investments to a new account titled jointly with Appellant, from which he began to spend freely. Shortly after her death, he sold the condominium for $118,000. [2] The trial court noted that, at the time its Opinion was filed, the property was occupied by a branch of Mellon Bank. [3] Although Ms. Briskman did bequeath $10,000 to her brother Charles in the 1984 will, the language of the will indicates that her failure to provide for other family members was a conscious decision: Bequests to Family Members. It is not for lack of affection that I have made no other provision for other members of my family, but only because I am confident that they are otherwise well provided for and I believe that they feel, as I do, that those less fortunate than we should benefit from the disposition I intend to make of my estate. (1984 Will at ¶ 4(B)). [4] The trial court memorialized this stipulation in a pretrial order noting that "it is agreed between the parties that the probate record be introduced by the proponent without further evidence as to the execution of the will[.]" (Order, dated 12/8/97). [5] On June 28, 2001, the co-executors of Appellee's estate filed a document in the Orphan's Court, voluntarily substituting themselves as petitioners in the place of Appellee, who they acknowledged had died on September 3, 2000. [6] It appears that Judge O'Brien was reassigned to another division of the Philadelphia Court of Common Pleas. [7] Both subscribing witnesses to the will, as well as the notary, were employees of Appellant's bank at the time the will was executed. During her deposition, subscribing witness Linda John testified that she did not actually see Ms. Briskman sign the will, but rather found the document, with a note asking her to sign it, on her desk when she arrived for work one morning. The will already contained Ms. Briskman's purported signature and had been notarized. (Excerpts from deposition of Linda K. John, taken August 21, 1997, at 5). [8] We note that although the Holtz decision was affirmed on appeal to the Supreme Court, see In Re Estate of Holtz, 422 Pa. 540, 222 A.2d 885 (1966), the Supreme Court's decision is not germane here as it rested on different grounds. After the decedent's will and two codicils were probated, two appeals were filed, both claiming the documents were forged; one by a self-described heir at law of the decedent's, and one by a charity, which was a named beneficiary under a prior will of the decedent's. Id. at 887 n. 1. The Common Pleas Court opinion addressed the issue of the purported heir's standing, which was challenged in preliminary objections filed by the proponents of the will. The Supreme Court decision, however, addressed only an appeal by the charity, to which the heir was not a party, filed after the lower court, sitting en banc, affirmed the probate of the will and codicils. [9] Moreover, even were we to review the lower court's Opinion on its merits, the same result would obtain. During a December 3, 1997, pretrial conference, Appellee's counsel expressed his willingness to stipulate that the signature on the 1993 will was indeed the decedent's. See N.T. Pretrial Conference, 12/3/97, at 20. The court, then Judge O'Brien, memorialized this stipulation in a pretrial order, which states: "it is agreed between the parties that the probate record be introduced by the proponent without further evidence as to the execution of the will[.]" (Order, dated 12/8/97). Indeed, during trial, when Appellant's counsel began questioning notary Annette Tufano about the events surrounding the execution of the will, the court interrupted, stating "... it seems to be superfluous. You are going into an issue that's already been laid to rest." (N.T. Trial, 2/26/98, at 108). "Parties may by stipulation resolve questions of fact or limit the issues, and, if the stipulations do not affect the jurisdiction of the court or the due order of the business and convenience of the court, they become the law of the case." Parsonese v. Midland Nat. Ins. Co., 550 Pa. 423, 706 A.2d 814, 815 (1998). Once Appellee stipulated to the authenticity of the decedent's signature, any question concerning the execution of the will was resolved. 20 Pa.C.S.A. § 3132 mandates that "[a]ll wills shall be proved by the oaths or affirmations of two competent witnesses. . . ." Arguably, the intent behind this provision is to insure that the signature of the decedent on the will is authentic. Here, Appellee stipulated to that fact. Moreover, subsection (1) provides, In the case of a will to which the testator signed his name, proof by subscribing witnesses, if there are such, shall be preferred to the extent that they are readily available, and proof of the signature of the testator shall be preferred to proof of the signature of the subscribing witness. Appellee's stipulation here proved the testator's signature. Nothing more was required, despite any doubts there may be of the testator's intent or Appellant's motives.
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CP-00498-COA JESSIE T. BEAL A/K/A JESSIE BEAL APPELLANT v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 03/06/2015 TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JESSIE T. BEAL (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DISMISSED PETITION FOR POST- CONVICTION RELIEF DISPOSITION: AFFIRMED: 02/09/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND FAIR, JJ. FAIR, J., FOR THE COURT: ¶1. On May 27, 2009, Jessie Beal pled guilty to statutory rape in violation of Mississippi Code Annotated section 97-3-65(1)(a) (Rev. 2014). He was sentenced to twenty-three years in the custody of the Mississippi Department of Corrections. ¶2. Beal filed his first petition for post-conviction relief (PCR) in circuit court a little over seven months later. The circuit court dismissed Beal’s petition, and this Court affirmed in Beal v. State, 58 So. 3d 709 (Miss. Ct. App. 2011). This Court also affirmed the circuit court’s dismissal of Beal’s second PCR petition. See Beal v. State, 118 So. 3d 162 (Miss. Ct. App. 2012). ¶3. Beal now appeals the circuit court’s dismissal of his third PCR petition. He claims that his indictment violated his rights against double jeopardy and that his counsel was ineffective. Finding no error, we affirm. STANDARD OF REVIEW ¶4. “[An appellate court] review[s] the dismissal or denial of a PCR [petition] for abuse of discretion” and will reverse only if the circuit court's decision is clearly erroneous. Hughes v. State, 106 So. 3d 836, 838 (¶4) (Miss. Ct. App. 2012) (citing Crosby v. State, 16 So. 3d 74, 77 (¶5) (Miss. Ct. App. 2009)). A PCR movant bears the burden of showing he is entitled to relief by a preponderance of the evidence. Wilkerson v. State, 89 So. 3d 610, 613 (¶7) (Miss. Ct. App. 2011). We will affirm the summary dismissal of a PCR petition if the movant fails to demonstrate “a claim procedurally alive substantially showing the denial of a state or federal right.” Id. at 614 (¶7). DISCUSSION ¶5. The circuit court dismissed Beal’s petition, finding it was time-barred and successive- writ barred. In Rowland v. State, 42 So. 3d 503, 506 (¶9) (Miss. 2010), however, the Mississippi Suprme Court held that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” Beal’s double-jeopardy claim falls within that exception. See id. at 508 (¶14). 1. Double Jeopardy 2 ¶6. “Double jeopardy consists of three separate constitutional protections: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution for the same offense after a conviction, and (3) protection against multiple punishments for the same offense.” Powell v. State, 806 So. 2d 1069, 1074 (¶8) (Miss. 2001). ¶7. Beal argues that he was subjected to double jeopardy because he was indicted a second time for the same crime found in a prior indictment that had been nolle prosequied. He uses the general affidavit (dated June 30, 2008) from the Madison County/City of Canton Municipal Court to show that his statutory-rape charge was nolle prosequied. The later indictment that resulted in his guilty plea was brought October 8, 2008, and states that the July 2008 grand jury was recalled September 10, 2008.1 ¶8. Our supreme court has held that “the State can re-indict an accused for the same offense after an order of nolle prosequi has been entered.” State v. Shumpert, 723 So. 2d 1162, 1165 (¶16) (Miss. 1998); see also Beckwith v. State, 615 So. 2d 1134, 1145-48 (Miss. 1992) (holding that a nolle prosequi order is not an actual acquittal or conviction on the merits to bar another prosecution). ¶9. Beal was not acquitted, nor was he even tried. He was not prosecuted a second time 1 In Beal’s second PCR petition, he alleged that the State delayed indicting him, which prejudiced his defense. See Beal II, 118 So. 3d at 164 (¶8). This Court found that “the investigation was delayed because the victim was pregnant, and the State waited to indict until the baby was delivered and DNA tests could be performed to determine paternity.” Id. at 165 (¶9). 3 because of his guilty plea and resulting conviction. Nor did he receive multiple punishments. Thus, we find no merit to Beal’s claim that his indictment subjected him to double jeopardy. 2. Ineffective Assistance of Counsel ¶10. “The Supreme Court has not held that an ineffective-assistance-of-counsel claim invokes a ‘fundamental right’ that circumvents all procedural bars that apply to PCR motions.” Riley v. State, 150 So. 3d 138, 140 (¶8) (Miss. Ct. App. 2014). This issue is procedurally barred. ¶11. In the alternative, it is without merit. Beal argues that his counsel was ineffective because he failed to raise the double-jeopardy claim. Because Beal’s double-jeopardy clam fails, so does his ineffective-assistance-of-counsel claim. ¶12. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, JAMES AND WILSON, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT. GREENLEE, J., NOT PARTICIPATING. 4
Order filed October 17, 2017. In The Fourteenth Court of Appeals ____________ NO. 14-17-00600-CV ____________ KURT GODFREY CLARKE, Appellant V. HARRIS COUNTY, THE HARRIS COUNTY DEPARTMENT OF EDUCATION, THE PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, THE HARRIS COUNTY FLOOD CONTROL DISTRICT, THE HARRIS COUNTY HOSPITAL DISTRICT, THE CITY OF HOUSTON, Appellee On Appeal from the 333rd District Court Harris County, Texas Trial Court Cause No. 2009-30394 ORDER This is an appeal from an order signed April 18, 2017. Appellant did file a timely post-judgment motion extending appellate timelines. See Tex. R. App. P. 26.1(a). The notice of appeal was due July 17, 2017. See id. Appellant, however, filed his notice of appeal on July 21, 2017, a date within 15 days of the due date for the notice of appeal. A motion for extension of time is necessarily implied when the perfecting instrument is filed within 15 days of its due date. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Appellant did not file a motion to extend time to file the notice of appeal. While an extension may be implied, appellant is still obligated to come forward with a reasonable explanation to support the late filing. See Miller v. Greenpark Surgery Center Assocs., Ltd., 974 S.W.2d 805, 808 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Accordingly, we ORDER appellant to file a proper motion to extend time to file the notice of appeal on or before 10 days after the date of this order. See Tex. R. App. P. 26.3; 10.5(b). If appellant does not comply with this order, we will dismiss the appeal. See Tex. R. App. P. 42.3. PER CURIAM
723 F.2d 908 Bak (Arlene)v.Secretary of Health & Human Services NO. 82-3516 United States Court of Appeals,sixth Circuit. NOV 01, 1983 Appeal From: N.D.Ohio 1 AFFIRMED.
120 B.R. 579 (1990) In re LASELLE'S BICYCLE WORLD, Debtor. Bankruptcy No. 89-00485-C. United States Bankruptcy Court, N.D. Oklahoma. October 26, 1990. 580 Theodore P. Gibson, Tulsa, Okl., for General Bicycle and Moped, Inc. Jeff Steen, Broken Arrow, Okl., for Arkansas Valley State Bank. MEMORANDUM OPINION STEPHEN J. COVEY, Bankruptcy Judge. This cause comes on for hearing upon the motion of Arkansas Valley State Bank ("AVSB") requesting issuance of an order to the Trustee to disburse the proceeds generated from the sale of inventory consisting of approximately sixty (60) bicycles and miscellaneous parts. The parties stipulated to the facts as follows: 1. On November 21, 1985, the Debtor entered into a line of credit, promissory note and security agreement with AVSB. Financing statements were signed and properly filed with the Oklahoma County Clerk on December 3 and 4, 1985. The transaction gave AVSB a perfected security interest in all present and future inventory of the Debtor. On October 9, 1987, General Bicycle and Moped, Inc. ("General") commenced sales to the Debtor on credit. General requested financing statement information from the Oklahoma County Clerk on August 19, 1988, and the Clerk improperly advised, in writing, on August 31, 1988, that no financial statements were filed against the Debtor. General obtained a security agreement from the Debtor dated August 19, 1988, and filed a financing statement in the office of the Oklahoma County Clerk on September 2, 1988, perfecting it's security interest in all inventory thereafter sold to the Debtor. General did not notify AVSB of its purchase money security interest in inventory, because it relied on the Oklahoma County Clerk's notification of no other security interests. On February 28, 1989, La Selle's filed a Chapter 7 proceeding under the United States Bankruptcy Code. AVSB filed a proof of claim on March 15, 1989, in the amount of $5,048.71. General filed a proof of claim on May 1, 1989, in the sum of $42,224.00. On November 7, 1989, the bankruptcy Trustee sold the inventory to a third party with the agreement of General and AVSB that the Trustee would hold the funds pending settlement of their conflicting claims. The total received from the sale was $6,600.00. The Trustee incurred administrative expenses in the amount of $1,100.00, leaving a balance of $5,500.00 to be distributed. FortEEy percent (40%) of the inventory the Trustee sold represents inventory in which General has a purchase money security interest and was, in fact, property manufactured and sold by General to the Debtor. Sixty percent (60%) sold by the Trustee was property against which General has no claim. ARGUMENTS AND ANALYSIS 12A O.S. § 9-312 sets forth the priorities among conflicting security interests in the same collateral. Specifically, subsection 3 states: A perfected purchase money security interest in inventory has priority over a conflicting security interest in the same inventory . . . if: (a) the purchase money security interest is perfected at the time the debtor receives possession of the inventory; and (b) the purchase money secured party gives notification in writing to the 581 holder of the conflicting security interest, if the holder had filed a financing statement covering the same types of inventory (emphasis added) (i) before the date of the filing made by the purchase money secured party . . . and (c) the holder of the conflicting security interest receives notification within five years before the debtor receives possession of the inventory; and (d) the notification states the person giving notice has or expects to acquire a purchase money security interest in inventory of the debtor, describing such inventory by item or type. By sending AVSB written notice, General would have obtained a purchase money security interest in the inventory it sold the Debtor, which would have priority over AVSB's security interest pursuant to the statute. AVSB would have had fair warning of General's security interest, if the Debtor asked to borrow more monies in the future. General failed to give AVSB proper notice pursuant to 12A O.S. § 9-312(3)(b), because the County Clerk erred in telling it that there were no prior security interests covering the same types of inventory. AVSB argues that it should not pay the cost of the County Clerk's mistake, citing McMillin v. First National Bank & Trust (In re Fowler), 407 F.Supp. 799 (W.D.Okl. 1975), and In re Daniels, 35 B.R. 247 (Bankr.W.D.Okl.1983). The cases propose that a secured party does not bear the risks of an improper filing or indexing as long as its conduct does not lead to the error. General argues that the security agreement of AVSB does not adequately describe the collateral under 12A O.S. § 9-203, which requires, pursuant to subsection 1(b), that "the debtor has signed a security agreement which contains a description of the collateral . . ." The description must make it possible for a third party to determine whether the property is subject to a security interest. In addition, General argues that it should not be penalized for the Oklahoma County Clerk's mistake for failing to give written notice to AVSB because it took all steps necessary to determine who, if anyone, should receive such notice. Who should bear the burden of the Court Clerk's mistake? Both parties are innocent, neither contributing to the circumstances leading to the error. AVSB sufficiently described its collateral by a blanket description of "inventory" on its filed financing statement. In re Buttram, 2 B.R. 92 (Bankr.N.D.Okl.1979), and Consolidated Equipment Sales, Inc. v. First Bank & Trust Co. of Guthrie, 627 P.2d 432 (Okla.1981). General took the required steps necessary to perfect it's security interest excluding failure to notify AVSB which was the result of the Oklahoma County Clerk's error. In McMillin, 407 F.Supp. 799 (Bankr.W. D.Okl.1975), the court found that 12A O.S. § 9-403(1) does not put the risk of improper filing and indexing upon the secured party, if his conduct did not lead to the filing officer's error. The section states: "Presentation for filing of a financing statement and tender of the filing fee or acceptance of the statement by the filing officer constitutes filing under this article." The U.C.C. comment to 12A O.S. § 9-407 supports this contention as well. The comment states in part: ". . . under section 9-403(1) the secured party does not bear the risk that the filing office will not properly perform his duties: under that section the secured party has complied with the filing requirements when he presents his financing statement for filing and the filing fee has been tendered or the statement accepted by the filing officer . . ." The Court has carefully scrutinized the financing statements to determine whether either party could have contributed to the Oklahoma County Clerk's mistake. The proper name of the Debtor styled on its bankruptcy schedules is "La Selle's, Inc.," two words, singular possessive. AVSB filed a financing statement naming "LASELLES, INCORPORATED" as Debtor, one word, no possessive. General's financing statement names as Debtor "LaSelle's Bicycle World, a/k/a LaSelle's, Inc.", one word, singular possessive. The *582 Court believes the Oklahoma County Clerk should have forwarded information found under "LASELLE INCORPORATED" to General pursuant to General's request. Nevertheless, the Oklahoma County Clerk did not forward the information and there is no testimony that she even found it to begin with. However, AVSB did not give the proper name of the Debtor on its financing statement which could have led to an indexing or reporting error; thus contributing to the Oklahoma County Clerk's failure to find AVSB's security interest. Between two innocent parties, the one whose action, however innocent, helped create the circumstances upon which an error was made must bear the costs of the mistake, in this case AVSB. General's security interest in forty percent (40%) of the inventory sold by the Trustee will be enforced. Furthermore, the purpose of 12A O.S. § 9-312(3) is to protect future advances a prior lienor may give the debtor by putting her on notice that others may have an interest in the same type of property. AVSB gave no new advances to the Debtor. It did not rely on the additional inventory sold to the Debtor by General to secure its interest and, therefore, has not been damaged as a result of General's security interest. To allow AVSB to have a security interest in the inventory sold by General would give AVSB a windfall by allowing it an interest, to which it would not have been entitled, but for the mistake of the Oklahoma County Clerk and General's resulting failure to give written notice. The UCC comment to 12 O.S. § 9-312(3) states: "The reason for the additional requirements of notification is that typically the arrangement between an inventory security party and his debtor will require the secured party to make periodic advances against incoming inventory or periodic releases of old inventory as new inventory is received . . . The notification requirement protects the inventory financer in such a situation: if he has received notification he will presumably not make an advance; if he has not received notification (or if the other interest does not qualify as a purchase money interest), any advance he may make will have priority . . ." Therefore, the Court will enter a separate order directing the sale proceeds held in escrow be distributed sixty percent (60%) to AVSB and forty percent (40%) to General.
70 F.3d 116 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Larry K. WILLIS, Plaintiff-Appellant,v.William N. MORRIS, Jr; Richard Swiggart; Henry Marmon;Joseph Jackson; Shelby County TennesseeInformation Technology, Defendants-Appellees. No. 95-5107. United States Court of Appeals, Sixth Circuit. Oct. 18, 1995. 1 Before: MERRITT, Chief Judge; KENNEDY, Circuit Judge, and JOINER, District Judge.* ORDER 2 Larry K. Willis, a pro se Tennessee citizen, appeals the dismissal without prejudice of his employment discrimination action filed under Title VII of the Civil Rights Act of 1964, the Equal Pay Act, and 42 U.S.C. Sec. 1983. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). 3 Seeking forty-five million dollars and injunctive relief, Willis filed this action against his employer, a county agency, and several county officials, claiming that he had been denied promotion and received less pay for similar work than a female co-worker. Willis sought and was granted an entry of default. One week after the expiration of the period for responding to the complaint, defendants moved to set aside the entry of default, which motion was granted after oral arguments. Defendants also moved for dismissal of the complaint, and to strike references to settlement negotiations, both of which motions were subsequently granted. On appeal, Willis argues, among other issues, that the district court erred in setting aside the entry of default and in dismissing his complaint. Defendants argue that Willis cannot appeal the ruling setting aside the entry of default because he did not file a separate notice of appeal from that ruling. Defendants' brief also addresses the grounds relied on by the district court in dismissing the complaint, as well as the merits of the underlying sex discrimination claim. 4 Upon review, we reject defendants' argument that Willis is barred from appealing the ruling setting aside the entry of default. The notice of appeal from the final judgment in this action was sufficient to preserve a challenge to all the district court's prior nonfinal rulings. See Cattin v. General Motors Corp., 955 F.2d 416, 428 (6th Cir.1992). However, we also conclude that the district court did not abuse its discretion in setting aside the entry of default. See INVST Financial Group, Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d 391, 398-99 (6th Cir.), cert. denied, 484 U.S. 927 (1987). 5 The claim under Title VII, 42 U.S.C. Sec. 2000e et seq., was properly dismissed without prejudice for failure to exhaust administrative remedies, as Willis admitted he had not yet received a notice of right to sue. Whether construed as a jurisdictional prerequisite or a condition precedent, the requirement of receiving a notice of right to sue was properly invoked by the district court as Willis made no argument for equitable relief from the condition. See Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1486-88 (6th Cir.1989). The claim under 42 U.S.C. Sec. 1983 was also properly dismissed, as Title VII provides the exclusive remedy for the employment discrimination alleged here. See Allen v. Denver Pub. School Bd., 928 F.2d 978, 982 (10th Cir.1991) (per curiam). 6 However, the district court erred in dismissing the claim under the Equal Pay Act, 29 U.S.C. Sec. 206, for the same reason that the Title VII claim was dismissed. The Equal Pay Act contains no requirement to exhaust administrative remedies before bringing an action in the district court. See County of Washington v. Gunther, 452 U.S. 161, 175 n. 14 (1981); Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1527 (11th Cir.1992). 7 The remaining arguments raised by Willis on appeal are frivolous. Defendants' discussion of the merits of the sex discrimination claim is misplaced, as no judgment on the merits is under appeal. 8 Accordingly, the dismissal of the Equal Pay Act claim is vacated and the matter remanded for further proceedings. In all other respects, the district court's judgment is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit. * The Honorable Charles W. Joiner, United States District Judge for the Eastern District of Michigan, sitting by designation
FILED NOT FOR PUBLICATION APR 12 2010 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. 08-30415 Plaintiff - Appellee, D.C. No. 2:08-cr-00134-RSL v. MEMORANDUM * BOBBY BARNARD BEASLEY, also known as Cutthroat, Defendant - Appellant. Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, Chief District Judge, Presiding Argued and Submitted July 6, 2009 Seattle, Washington Before: O’SCANNLAIN, KLEINFELD and BERZON, Circuit Judges. Beasley appeals his sentence of 37 months imprisonment, followed by 3 years supervised release, for unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Beasley’s 2005 conviction for first degree theft under Washington Revised Code § 9A.56.030(1)(b) is categorically a crime of violence within the meaning of U.S. Sentencing Guidelines § 2K1.1(a)(4). This case is directly controlled by our holding in Beasley’s co-defendant’s appeal, United States v. Alderman, __ F.3d ___ (9th Cir. 2010). We affirm for the reasons laid out in Alderman. AFFIRMED.
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751 F.2d 385 Hofstetter (Myra)v.Commissioner of Internal Revenue NO. 84-1307 United States Court of Appeals,sixth Circuit. NOV 30, 1984 1 Appeal From: U.S.T.C. 2 AFFIRMED.
951 N.E.2d 8 (2011) KATZIORIS v. MARTIN OIL MARKETING LTD. No. 45A03-1012-PL-654. Court of Appeals of Indiana. July 19, 2011. MAY, J. Disposition of Case by Unpublished Memorandum Decision Affirmed. BAKER, J., concurs. BRADFORD, J., concurs.
816 F.2d 679 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Everett COX, Petitioner,v.BENEFITS REVIEW BOARD; Director, Office of Workers'Compensation Programs, United States Department ofLabor, Respondent. No. 86-3425. United States Court of Appeals, Sixth Circuit. April 14, 1987. Before LIVELY, Chief Judge, BOGGS, Circuit Judge, and CELEBREZZE, Senior Circuit Judge. PER CURIAM. 1 Petitioner Everett Cox filed a claim for benefits under the Black Lung Benefits Act of 1977, 30 U.S.C. Sec. 901 et seq. ("Act") in 1979. After a formal hearing before an Administrative Law Judge, at which the parties presented evidence and argument, Cox's claim was denied in an opinion dated October 6, 1982. Cox appealed the ALJ's decision to the Benefits Review Board, which affirmed the ALJ's decision on March 14, 1986. Cox filed a timely Petition for Review in this court. After carefully reviewing the record, we find that the ALJ's decision is supported by substantial evidence and affirm the decision of the Board. I. 2 Cox was born in 1921 and began work as a coal miner in 1936. Except for the time he served in the army in World War II, he continued working in the mines until 1951. The ALJ credited him with twelve years and three months of coal mine employment. Cox has not worked in such employment since 1951. He was employed by the Tennessee Valley Authority in power production until 1973, when he was retired due to his physical condition. 3 Medical evidence presented in this case includes the results of two complete physical examinations conducted in May and September 1979. Cox was examined by Dr. Swann on May 1, 1979. Chest X-rays were negative for pneumoconiosis (0/0). Arterial blood gas analysis results were normal. Pulmonary function testing showed a moderately severe obstruction ventilatory impairment and a restriction of vital capacity. FEV1/4%1 was 1.7 liters per second and MVV was 41.5 liters. Dr. Swann diagnosed chronic obstructive pulmonary disease and stated that there was no positive evidence of occupational dust disease of the lungs at that time. Dr. Swann clarified that statement in a letter dated September 17, 1980, stating that the report should more correctly read that there was no x-ray evidence of occupational dust disease of the lungs at that time. 4 Cox was examined on September 18, 1979 by Dr. Guthrie. Blood gas studies were normal. Chest x-rays were negative, classified as 0/1 profusion. Dr. Guthrie noted several small peripheral nodules on the x-ray which could possibly be silicotic, but stated that there was no way to know without a biopsy. The x-ray was re-read in December and classified as 0/0. Pulmonary function studies again showed obstruction. FEV1/4%1 results of 1.88 liters per second and MVV results of 51 liters were recorded. Dr. Guthrie diagnosed pulmonary emphysema, and checked the "No" box on the report, indicating that in his opinion the diagnosed condition was not related to dust exposure in Cox's coal mine employment. II. 5 20 C.F.R. Sec. 727.202 defines pneumoconiosis as: 6 ... [A] chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment. This definition includes, but is not limited to, coal workers' pneumoconiosis, anthracosilicosis, anthracosisanthro-silicosi, massive pulmonary fibrosis, progressive massive fibrosis silicosis, or silicotuberculosis arising out of coal mine employment. For purposes of the definition, a disease "arising out of coal mine employment' includes any chronic pulmonary disease resulting in respiratory or pulmonary impairment significantly related to, or aggravated by, dust exposure in coal mine employment. 7 The regulations allow a miner with over ten years coal mine employment to establish an interim, rebuttable presumption of pneumoconiosis if the miner produces any of the following medical evidence: 8 1. A positive chest x-ray which establishes pneumoconiosis; 9 2. Ventilatory or breathing function studies where the test results fall below certain regulatory standards; 10 3. Blood gas studies, showing an impairment of oxygen transfer from the lungs to the bloodstream within certain regulatory standards; 11 4. Other medical evidence, including the documented opinion of a physical exercising reasoned medical judgment. 12 20 C.F.R. Sec. 727.203(a). The ALJ found that Cox had established the presumption of pneumoconiosis as he had over ten years of coal mine employment, and his pulmonary function results fell below the regulatory standards of Sec. 727.203(a). 13 1. The evidence establishes that the miner is doing his usual coal mine work, or comparable and gainful work. 14 2. The evidence establishes that the miner is able to do his usual coal mine work, or comparable and gainful work. 15 3. The evidence establishes that the total disability or death of the miner did not arise out of coal mine employment. 16 4. The evidence establishes that the miner does not, or did not, have pneumoconiosis. 17 The ALJ considered all the medical evidence of record, including the blood gas studies, the negative x-rays, the medications prescribed, and the fact that Cox was a smoker. The ALJ agreed with Dr. Guthrie's opinion that Cox's emphysema was not related to dust exposure in his coal mine employment, and found that the other evidence corroborated this opinion. The ALJ thus determined that Cox did not have pneumoconiosis because his disease did not arise out of coal mine employment as required by the definition of pneumoconiosis in Sec. 727.202 and concluded that the interim presumption of disability had been rebutted. III. 18 Our scope of review over decisions of the Benefits Review Board is limited. This court looks only for errors of law and for adherence to the statutory standard governing the Board's review of the ALJ's factual determinations. The ALJ's factual findings can be upset only if they are not supported by substantial evidence. Welch v. Department of Labor, 808 F.2d 443, 445 (6th Cir. 1986). 19 Cox argues that the ALJ made several legal errors and that his finding that the presumption of pneumoconiosis had been rebutted is not supported by substantial evidence. Cox argues that Dr. Guthrie's opinion that Cox's disease was not related to his coal mine employment was not a "reasoned medical judgment" as required by 20 C.F.R. Sec. 727.203(a)(4) because he did not provide an alternative explanation for his symptoms. The ALJ did not err in relying on Dr. Guthrie's opinion. An alternative etiology is not required for a physician's opinion to be "reasoned medical judgment" within the meaning of Sec. 727.203(a)(4). This court has held that an ALJ is entitled to rely on a physician's uncontradicted opinion even though it does not present an alternative reason for the patient's condition. Welch, supra at 446. 20 Cox also argues that the ALJ erred by not allowing certain other medical reports into evidence. These reports were not signed or initialed by any medical personnel. The ALJ found that they were not authenticated and refused to admit them. Cox argues tht the formal rules of evidence do not apply to hearing before the ALJ and that the ALJ should consider all relevant medical evidence. The Board refused to consider the propriety of the ALJ's rejection of the evidence, pointing out that the reports, even if admitted, could not constitute substantial evidence weighing against the rebuttal evidence on record because neither report mentioned pneumoconiosis nor explained the etiology of the respiratory conditions diagnosed. We find that the Board acted correctly in refusing to consider whether the evidence should have been admitted. Any error by the ALJ was clearly harmless as the proffered evidence would not have strengthened Cox's claim. 21 Finally, Cox argues that the ALJ erred by considering the negative x-rays as rebuttal evidence. 30 U.S.C. Sec. 923(b) provides in pertinent part that "no claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram." However, Cox's claim was not denied solely on the basis of the negative x-ray. The ALJ considered the x-ray only to corroborate Dr. Guthrie's opinion. This court has held that negative x-rays can properly be used to rebut the presumption of pneumoconiosis when there is other evidence to corroborate them. Welch, 808 F.2d at 446. 22 We find that there was substantial evidence to support the ALJ's determination that the presumption of pneumoconiosis had been rebutted and that the Benefits Review Board thus correctly upheld the ALJ's denial of benefits. The Board's order is AFFIRMED.
661 F.Supp.2d 569 (2009) Earl F. COLE, Plaintiff, v. BUCHANAN COUNTY SCHOOL BOARD, Defendant. Case No. 1:07CV00001. United States District Court, W.D. Virginia, Abingdon Division. October 1, 2009. 570 Michael A. Bragg, Bragg Law PLC, Abingdon, VA, for Plaintiff. Jim H. Guynn, Jr., Guynn, Memmer & Dillon, P.C., Roanoke, VA, and Thomas R. Scott, Jr., Street Law Firm, LLP, Grundy, VA, for Defendants. OPINION AND ORDER JAMES P. JONES, Chief Judge. The question presented is whether the defendant, a Virginia local school board, may be sued in this court for money damages under 42 U.S.C.A. § 1983 (West 2003) by virtue of the Eleventh Amendment.[1] The plaintiff, Earl F. Cole, a local newspaper reporter and publisher, contends in this suit that the defendant Buchanan County School Board ("the Board") violated his rights under the First and Fourteenth Amendments by retaliating against him for publically criticizing the Board and its members. Cole also filed a pendent state-law claim alleging the Board's actions defamed him. Cole seeks both monetary and injunctive relief. The Board now has moved for partial summary judgment on the ground that Cole's claim for money damages is barred by virtue of the Eleventh Amendment.[2] 571 In order to determine whether a governmental entity is covered by the Eleventh Amendment, the principal factor for consideration "is whether a judgment against the governmental entity would have to be paid from the State's treasury." Cash v. Granville County Bd. of Educ., 242 F.3d 219, 223 (4th Cir.2001). The Board disclaims that factor in this case.[3] If the State's treasury will not have to pay any judgment, as is the case here, the absence of that factor "weighs against finding that entity immune." Id. at 224. The court, however, must also examine the relationship between the local governmental entity and the State by considering: "(1) the degree of control that the State exercises over the entity or the degree of autonomy from the State that the entity enjoys; (2) the scope of the entity's concernswhether local or statewidewith which the entity is involved; and (3) the manner in which State law treats the entity." Id. A court must consider these factors before determining whether legal action against a local governmental entity qualifies as "subjecting a State to the coercive process of judicial tribunals at the instance of private parties." Id. (quoting Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)). In Cash, the court of appeals held that an examination of North Carolina law showed that the school board functioned "more like a county or municipality than like an arm of the State itself." Cash, 242 F.3d at 224-25. An examination of Virginia law shows that county school boards operate as independent units of local government. Local school boards in Virginia are autonomous corporate bodies over which the State exercises limited control. Under Virginia law, county school boards may enter into contracts, sue or be sued, and hold title to real or personal property. Va.Code Ann. § 22.1-71 (2006). In Virginia, as in North Carolina, boards manage and control funds for the local school system and they may incur costs and expenses. Va.Code Ann. § 22.1-89 (2006). In addition, county school boards may hire an attorney to represent the board, pay an employee's legal fees and expenses, and purchase liability and property insurance. Va.Code Ann. §§ 22.1-82, 83, 84 (2006). Local school boards in Virginia may also enter into contracts for telephone service and credit cards, and create policies for commercial, promotional, and corporate partnerships between a school system and businesses. Va.Code Ann. §§ 22.1-89.3, 89.4 (2006). While local school boards may not levy taxes to raise money, the State has implicitly authorized counties, cities, 572 and townslocal governmental entities to tax property so local governments can fund school districts. Va.Code Ann. § 22.1-95 (2006). Clearly, Virginia law establishes county school boards that have a wide breadth of financial autonomy and independent responsibilities. Under Cash's second factor, a court must "consider whether the School Board is involved with local or statewide concerns." Cash, 242 F.3d at 226. This element demonstrates that Virginia county school boards have a local focus that is independent of the State's concerns. While county school boards must comply with State law, local boards are charged with determining the length of the school term, "the studies to be pursued, the methods of teaching and the government to be employed in the schools...." Va. Code Ann. § 22.1-79(5) (2006). In addition, voters in the county, or county officials, determine the composition of the county school board. Va.Code Ann. §§ 22.1-47, 57.3 (2006). Under the final factor of the Cash analysis, Virginia law characterizes county school boards as local governmental entities, not arms of the State. The section of the Virginia Code dealing with civil remedies and state agencies explicitly states that local school boards are "not state agencies" and that board employees are not "state employees." Va.Code Ann. § 8.01-195.3 (2006). The Virginia Supreme Court has held that local school boards are entitled to sovereign immunity, but that immunity is narrowly interpreted and only pertains to tort claims. Kellam v. School Bd. of the City of Norfolk, 202 Va. 252, 117 S.E.2d 96, 97, 100 (1960). Virginia's grant of sovereign immunity for tort claims, like the school board's limited immunity in Cash, offers county school boards a narrow form of State protection. It should not be mistaken as an indicia of State control. Virginia's autonomous county school districts contrast sharply with the Maryland county school board examined in Lewis v. Board of Education of Talbot County, 262 F.Supp.2d 608 (D.Md.2003). The Lewis district court used the Cash analysis to determine that under the Eleventh Amendment, the Talbot County School Board should be accorded sovereign immunity because it was an arm of the State. Id. at 613-14. In this case, the Board clearly differs from the county board in Lewis, which was appointed by the governor, could not buy or sell property without the State's permission, and had to submit its budget to for an annual State audit. Id. at 613. In contrast, Virginia county school boards are locally elected or appointed, and school boards may sell, buy, and hold property. Va.Code Ann. §§ 22.1-47, 57.3, 71 (2006). The interdependent relationship between the State and the Lewis school board does not exist in Virginia. Rather, in Virginia, county school boards are independent local agencies. The State, however, does have some influence over Virginia county school boards. As in Cash, Virginia county school boards receive money from the State and they must follow statewide rules regarding aspects of course curriculum or annual budgets. Va.Code Ann. §§ 22.1-88, 115, 199-212 (2006). But these factors do not shift the balance toward a finding of sovereign immunity. Instead, the scope of independence given to county school boards under Virginia law, and the school boards' involvement in purely local concerns, demonstrate that Virginia county school boards are autonomous governmental entities. In this case, the above-mentioned considerations must be coupled with the most "salient factor" in an Eleventh Amendment 573 determination: the uncontested fact that a judgment against the Board would not be paid from the State's treasury. Cash, 242 F.3d at 224 (quoting Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994)). Upon consideration of each factor, it is clear that the Buchanan County School Board is an independent local governmental agency, not an arm of the State. For these reasons, I conclude that the Board is not entitled to sovereign immunity under the Eleventh Amendment and Cole may proceed with his claim for money damages under § 1983. The Board's Motion for Summary Judgment and supporting memoranda do not discuss the pendent state defamation claim against the Board. Nevertheless, I must dismiss Cole's defamation claim because Virginia common law holds that county school boards are immune from state-law tort liability, which includes claims of defamation. Kellam, 117 S.E.2d at 97, 100. For the foregoing reasons, it is ORDERED that the Board's Motion for Summary Judgment as to Cole's § 1983 claim is DENIED. It is further ORDERED that Cole's state-law defamation claim is DISMISSED. NOTES [1] The Eleventh Amendment to the Constitution provides that "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." [2] When suit was first filed, the Board and its members were defendants, and they sought dismissal on the ground of legislative immunity. That defense was overruled. Cole v. Buchanan County Sch. Bd., 504 F.Supp.2d 81, 85 (W.D.Va.2007). The individual members of the Board then moved to dismiss on the ground of qualified immunity, which motion was denied. Cole v. Buchanan County Sch. Bd., No. 1:07CV00001, 2007 WL 4613039, at *4 (W.D.Va. Dec. 29, 2007). The individuals took an interlocutory appeal, and the court of appeals reversed, holding that Cole's rights were not sufficiently clear that a reasonable official would understand that what he was doing violates those rights. Cole v. Buchanan County Sch. Bd., 328 Fed.Appx. 204, 207-11 (4th Cir.2009) (unpublished). In accord with the court of appeals' ruling, the individual Board members have been dismissed as parties to this suit. [3] At oral argument on the present motion, counsel for the Board advised the court that the Board had insurance covering the case and that "[t]he money that came from the state may have been part of paying that premium, or part of the pool, but it's not specific enough or direct enough to, to bring in that reasoning from the Fourth Circuit [in the Cash case]." (Tr. 5.)
898 N.E.2d 1219 (2008) MAYBERRY v. STATE. Supreme Court of Indiana. August 14, 2008. Transfer denied. All Justices concur.
928 F.2d 1133 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Jules T. SMITH, Plaintiff-Appellant,v.W.J. ESTLARK, Officer, Barbara Austin, Nurse, Defendants,James J. Blanchard, Governor, James L. Kelly, Sheriff,County of Saginaw, Defendants-Appellees. No. 90-1906. United States Court of Appeals, Sixth Circuit. March 28, 1991. E.D.Mich., No. 90-60126; LaPlata, J. E.D.Mich. DISMISSED. Before KEITH and DAVID A. NELSON, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge. ORDER 1 This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. 2 A review of the documents before the court indicates that the appellant appealed from an order of the district court which dismissed defendants James Blanchard, James Kelly, and Saginaw County. However, the court further ordered that the complaint and order be served on the two remaining defendants, W.J. Estlark and Barbara Austin. 3 Absent Fed.R.Civ.P. 54(b) certification, an order disposing of fewer than all the claims or parties involved in the action is not appealable. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742-45 (1976); Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 59-60 (6th Cir.1986). No Rule 54(b) certification was made in the instant case. The final decision of the district court has not been entered during the pendency of this appeal; therefore, this court lacks jurisdiction. See Gillis v. United States Dep't of HHS, 759 F.2d 565, 569 (6th Cir.1985). 4 It is ORDERED that the appeal be, and it hereby is, dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.
772 So.2d 475 (2000) Freddy L. HOLLOWAY v. STATE of Alabama ex rel. John D. WHETSTONE. 2990353. Court of Civil Appeals of Alabama. June 16, 2000. 476 John W. Beck, Fairhope, for appellant. Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee. MONROE, Judge. Freddy Holloway appeals from the trial court's judgment, wherein the trial court determined that "the ELEVEN THOUSAND SIX HUNDRED EIGHTY DOLLARS ($11,680.00) [IN] U.S. CURRENCY, in issue was used, or intended for use, in a transaction which would be a violation of the Alabama [Controlled] Substances Act." Holloway contends that the trial court committed reversible error when it determined that the State had presented sufficient evidence to meet its burden of proof for the forfeiture of the currency, pursuant to § 20-2-93, Ala.Code 1975. We agree. In February 1999, a Daphne police officer observed Holloway driving his vehicle without a tag on U.S. Highway 98 in the City of Daphne. After Holloway drove into the parking lot of the Eastern Shore Motel, he and his two passengers exited the vehicle. The police officer approached Holloway and asked him why he did not have a car tag. Holloway told the police officer that he had purchased the vehicle earlier that day. The police officer observed a large bundle of cash near the driver's seat and asked Holloway for consent to search the vehicle. Holloway consented to the search. The search revealed $11,680 in U.S. currency and "quite a bit of marijuana stems and seeds on the floorboard." The detective investigating the case testified that he did not take the marijuana stems and seeds into evidence and that he does not recall anyone under his authority taking the marijuana stems and seeds into evidence. Although neither Holloway nor any of his passengers was ever charged with possession of marijuana or with driving a car without a tag, the Daphne Police Department seized the currency and the vehicle. Holloway's vehicle was returned to him when the Daphne police were satisfied that he had just purchased the vehicle that day and that it was not involved in, or related to, a drug transaction. However, the State filed a petition requesting that the currency be forfeited and condemned to the State for use for law-enforcement purposes because, it said, "[b]ased upon investigation by law enforcement officials it is believed that the money seized from Freddy L. Holloway on or about February 10, [1999,] is drug proceeds or was being used to violate [the] Alabama [Controlled] Substances statutes." After a hearing, the trial court granted the State's petition, and this appeal followed. In State v. Smith, 578 So.2d 1374, 1376 (Ala.Civ.App.1991), this court stated: "Under § 20-2-93 the State must establish a prima facie case for the seizure, condemnation, and forfeiture of the property. The standard of proof is reasonable satisfaction. The statute is penal in nature and, as such, should be strictly construed." (Citations omitted.) In Agee v. State ex rel. Galanos, 627 So.2d 960, 962 (Ala.Civ. App.1993),[1] this court stated: 477 "If the State fails to present reasonably satisfying evidence that the property sought to be forfeited was derived from proceeds obtained from any violation of any law of the state concerning controlled substances, the forfeiture proceeding must fail. On review of an ore tenus forfeiture proceeding, the trial court's judgment is presumed to be correct unless the record shows it to be contrary to the great weight of the evidence." (Citations omitted.) One of the detectives from the Daphne Police Department testified to the following at the hearing: "Q. Did you arrest anybody for a drug transaction involving this money? "A. No, sir. "Q. Did you even trace this money back to any specific drug transaction or any transaction [in] violation of the Alabama controlled substances law? "A. No, sir. "Q. Did you try? "A. No, sir." The record clearly shows the following: Neither Holloway nor any of his passengers was ever even charged with possession of marijuana, even though the search of Holloway's automobile revealed the $11,680 in U.S. currency and "quite a bit of marijuana stems and seeds on the floorboard"; Holloway's automobile was returned to him because the Daphne Police Department was reasonably satisfied that the automobile was not involved in, or related to, a drug transaction; and the authorities were unable to trace the $11,680 in U.S. currency back to "any specific drug transaction or any transaction [in] violation of the Alabama controlled substances law." In light of the foregoing, the judgment of the trial court, which found the currency "was used, or intended for use, in a transaction which would be a violation of the Alabama [Controlled] Substances Act," is contrary to the great weight of the evidence. See Agee v. State ex rel. Galanos, 627 So.2d at 962. Thus, we must reverse the trial court's judgment and remand the case for proceedings consistent with this opinion. REVERSED AND REMANDED. ROBERTSON, P.J., and YATES and CRAWLEY, JJ., concur. THOMPSON, J., concurs in the result. NOTES [1] We note that in Wilhite v. State, 689 So.2d 221, 224 (Ala.Crim.App.1996), the Court of Criminal Appeals stated: "To the extent that our holding in the present case conflicts with the holding of the line of Alabama cases [stating] that § 20-2-93, Ala.Code 1975, is penal in nature, the holding of that line of cases is overruled. See e.g., Reeder v. State, 294 Ala. 260, 314 So.2d 853 (1975); Agee v. State, 627 So.2d 960 (Ala.Civ.App.1993)." However, the Court of Criminal Appeals recognized that it did not have the authority to overrule Alabama Supreme Court and Court of Civil Appeal cases and explained the above-quoted statement in footnote 5 of Money v. State, 717 So.2d 38, 48 (Ala.Crim.App. 1997).
956 A.2d 433 (2008) COM. v. IRIZARRY. No. 248 MAL (2008). Supreme Court of Pennsylvania. July 30, 2008. Disposition of petition for allowance of appeal. Denied.
125 S.W.3d 310 (2003) WEBSTER COUNTY COAL CORPORATION, Appellant, v. Jimmie D. LEE; Honorable John B. Coleman, Administrative Law Judge; and Workers' Compensation Board, Appellees. and Jimmie D. Lee, Cross-Appellant, v. Webster County Coal Corporation; Honorable John B. Coleman, Administrative Law Judge; and Workers' Compensation Board, Cross-Appellees. Nos. 2002-CA-001123-WC, 2002-CA-001314-WC. Court of Appeals of Kentucky. August 29, 2003. As Modified October 10, 2003. 311 James G. Fogle, Louisville, KY, for Appellant/Cross-Appellee. Dick Adams, Madisonville, KY, for appellee/cross-appellant, Jimmie Lee. Before JOHNSON and KNOPF, Judges; and MILLER, Senior Judge.[1] OPINION JOHNSON, Judge. Webster County Coal Corporation has petitioned for review of an opinion of the Workers' Compensation Board entered on April 24, 2002, which affirmed an opinion and award by the Administrative Law Judge that determined Jimmie D. Lee to be permanently and totally disabled due to an occupational hearing loss. Lee has cross-petitioned for review of that part of the Board's opinion that affirmed the ALJ's denial of his claim for income benefits due to coal workers' pneumoconiosis. Having concluded that the Board has not overlooked or misconstrued controlling statutes or precedent or committed an error in assessing the evidence so flagrant as to cause gross injustice,[2] we affirm. Lee, who was born on November 12, 1944, has completed only the seventh grade and has no specialized or vocational training. Lee primarily spent his working life as a shooter in the underground coal mining industry. A shooter goes to the face of the coal after it has been cut and drilled, loads the holes with explosives, and sets off the charge. Lee worked in the mining industry for approximately 33 1/2 years for multiple employers. Lee's job exposed him to both large amounts of coal dust and loud noise. Lee was furnished with dust masks and hearing protection, but he did not wear this protective gear all the time. Lee became employed by Webster County Coal in August 1979, where he continued to be exposed to the hazards of coal workers' pneumoconiosis and loud noise. Lee alleged that he sustained an injury due to hearing loss on December 8, 2000. Medical evidence concerning Lee's hearing loss consisted of reports from Dr. Ian Windmill, who performed an evaluation pursuant to KRS[3] 342.315, and Dr. Mitchell P. Kaye, who examined Lee at his attorney's request. Dr. Windmill received from Lee a 20-year history of work-related noise exposure. He noted that Lee had access to hearing protection but was unable to use it on a full-time basis. Dr. Windmill further indicated that Lee wore bilateral hearing aids he had received five years earlier and that he was getting some good benefit from them. Dr. Windmill interpreted an audiogram as revealing a bilateral moderate to severe sensory neural hearing loss. He stated that Lee had a greater hearing loss than expected based on a gentleman of 56 years of age, but that he had a pattern that was consistent with work-related noise induced hearing loss. 312 Objective and behavioral test results were consistent with this pattern. It was likely that a small portion of Lee's hearing loss was due to the aging process, but the majority was consistent with noise exposure. Pursuant to the American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment, Dr. Windmill assessed an 18% permanent functional impairment to the body as a whole due to Lee's hearing loss. He indicated that Lee should wear hearing protection devices whenever exposed to loud noise and that he did not retain the physical capacity to return to the type of work he performed at the time of injury. Dr. Windmill indicated that since Lee used hearing amplification and since he received adequate benefit from the hearing aids, no other recommendations were made. He suggested that Lee should continue to use hearing amplification, as it was likely the best alternative in terms of treatment and overcoming Lee's communicative difficulties. Dr. Kaye evaluated Lee on April 25, 2001. He took note of Lee's work history as a shooter in the mines and that at times Lee had not used hearing protection. Under the AMA Guides, audiometric studies indicated a 16% permanent functional impairment to the body as a whole for binaural hearing impairment. Dr. Kaye indicated that Lee's hearing loss was irreversible and likely progressive. He also noted that Lee had poor speech discrimination, which would make normal understanding difficult or impossible, despite heavy amplification. He further noted that Lee had tinnitus.[4] Dr. Kaye considered Lee's hearing loss noise-induced and found particularly impressive Lee's negative family history for hearing loss. In determining Lee's hearing loss claim, the ALJ described the evidence offered by Lee as "extremely powerful." He relied on the medical testimony of Dr. Windmill, who assessed an 18% permanent functional impairment as a result of Lee's hearing loss and opined that Lee lacked the capacity to return to his past work. Based on this 18% permanent functional impairment and the factors of permanent total disability as defined in KRS 342.0011(11)(c),[5] as well as the definition of work found in KRS 342.0011(34),[6] the ALJ found that Lee was permanently and totally disabled due to his hearing loss. The ALJ indicated that since Lee was 56 years old, had only a seventh grade education, had no specialized or vocational training, had spent his entire work history as a shooter in the underground coal mining industry, and had suffered a significant hearing impairment, that he met the definition for permanent total disability based on his 313 hearing loss alone. The ALJ found that Lee "would be unable to obtain employment outside the coal mining industry in light of his age, education and past work experience in combination with his restricted level of hearing." The ALJ rejected Webster County Coal's argument that a finding of total disability based on hearing loss alone was prohibited by KRS 342.730(1)(a) and KRS 342.7305. In its petition for review, Webster County Coal argues that the ALJ erred as a matter of law in applying KRS 342.7305 to the undisputed facts concerning Lee's hearing loss claim. Webster County Coal claims the ALJ erred because he awarded Lee total disability income benefits based upon KRS 342.730(1)(a), rather than limiting the award to permanent partial disability as required by KRS 342.7305. Webster County Coal contends that KRS 342.7305 limits Lee's hearing loss disability benefits to an award of income benefits pursuant to KRS 342.730(1)(b) based upon an 18% permanent functional impairment to the body as a whole, with the 1.5 multiplier since Lee could not return to his previous work. KRS 342.730(1)(a) provides as follows: (1) Except as provided in KRS 342.732,[7] income benefits for disability shall be paid to the employee as follows: (a) For temporary or permanent total disability, sixty-six and two-thirds percent (66 2/3%) of the employee's average weekly wage but not more than one hundred percent (100%) of the state average weekly wage and not less than twenty percent (20%) of the state average weekly wage as determined in KRS 342.740 during that disability. Nonwork-related impairment and conditions compensable under KRS 342.732 and hearing loss covered in KRS 342.7305 shall not be considered in determining whether the employee is totally disabled for purposes of this subsection [emphasis added]. KRS 342.7305(2) provides: Income benefits payable for occupational hearing loss shall be as provided in KRS 342.730, except income benefits shall not be payable where the binaural hearing impairment converted to impairment of the whole person results in impairment of less than eight percent (8%). No impairment percentage for tinnitus shall be considered in determining impairment to the whole person. Accordingly, income benefits are payable for occupational hearing loss as provided under KRS 342.730, as long as the whole person impairment results in no less than an 8% impairment and no impairment percentage for tinnitus is considered. In finding Lee permanently and totally disabled, the ALJ reasoned as follows: In making this determination, I have considered that K.R.S. 342.730(1)(a), which provides that a hearing loss covered in K.R.S. 342.7305 shall not be considered in determining whether the employee is totally disabled for purposes of that subsection. A reading of that statute in combination with K.R.S. 342.0011 makes it clear that it is meant that a combination of a hearing loss cannot be added to another injury claim to create a total disability rather than a permanent partial disability under K.R.S. 342.730 and a partial disability under K.R.S. 342.7305. However, in this instance, my finding is that the hearing loss disability under K.R.S. 342.7305 is, in and of [itself], permanently and totally disabling. 314 Webster County Coal argues that KRS 342.730(1)(a) provides that an employee cannot be found permanently and totally occupationally disabled due to an occupational hearing loss as provided in KRS 342.7305. Webster County Coal interprets KRS 342.730(1)(a) as a limitation on the ALJ finding a permanent total disability based on any hearing loss other than a total loss of hearing as provided in KRS 342.0011(11)(c) 7. In affirming the ALJ's award of permanent total disability for Lee's partial hearing loss, the Board stated: We believe the provision of KRS 342.730(1)(a) upon which Webster County bases its arguments merely provides that an occupational hearing loss cannot be used to "Teledyne"[8] another permanent partial impairment rating into an award for total occupational disability benefits. Clearly, a claimant may be awarded total occupational disability benefits for coal workers' pneumoconiosis under KRS 342.732. Likewise, it is clear KRS 342.730(1)(a) cannot be read to exclude total occupational disability awards for KRS 342.7305. The occupational hearing loss statute simply provides a floor of 8% impairment. It does not set a ceiling of a partial award. Furthermore, if Webster County's reasoning were applied to KRS 342.730(1)(e),[9] occupational hearing loss could not be used for determining the extent of disability or duration of benefits whatsoever in a permanent partial award. We agree with the Board's analysis concerning the interpretation of KRS 342.730(1)(a) and 342.7305. There are several sound reasons which support this result. First, an employee can be awarded total occupational disability benefits for coal workers' pneumoconiosis under KRS 342.732 even though that section is also excluded by KRS 342.730(1)(a) from being used to "Teledyne" another permanent partial impairment rating into an award for total occupational disability benefits. Second, KRS 342.0011(11)(c)7. specifically lists "[t]otal loss of hearing" as a condition for which total disability shall be irrebuttably presumed. The statutory interpretation urged by Webster County Coal would produce the unreasonable result that a disability caused by a loss of hearing would be the only work-related disabling condition that an employee could suffer which would prohibit the consideration by the ALJ of disability factors listed in Osborne v. Johnson,[10] and the statutes. This would result in loss of hearing being the only medical condition for which an employee could receive permanent total disability benefits only if the employee met the statutory condition for an irrebuttable presumption of total disability. We can discern no sound public policy for the Legislature creating such an exception for a permanent total disability resulting from loss of hearing. Third, not only is KRS 342.7305 listed in KRS 342.730(1)(a) along with KRS 342.732, but also included is "[n]onwork-related impairment[.]" The Legislature's exclusion of a nonwork-related impairment from consideration by the ALJ in determining whether an employee suffers a permanent 315 total disability indicates to this Court that the Legislature enacted this provision in KRS 342.730(1)(a) to prohibit the use of such a disability to "Teledyne" another permanent partial impairment rating into an award for total occupational disability benefits. Fourth, the argument propounded by Webster County Coal is circular. While the argument recognizes that KRS 342.730(1)(a) sets forth the method for calculating permanent total disability benefits except for coal workers' pneumoconiosis as provided in KRS 342.732, it attempts to limit any findings of permanent total disability under KRS 342.732 for loss of hearing based on KRS 342.7305, even though KRS 342.7305(2) in turn provides that "[i]ncome benefits payable for occupational hearing loss shall be provided in KRS 342.730[.]" We believe this argument is circular because KRS 342.730(1)(a) refers to KRS 342.7305 which in turn refers to KRS 342.730. Fifth, the statutory scheme relied upon by Webster County Coal fails to include the language necessary to produce the result that it proposes. If the Legislature had intended to prohibit a finding of permanent total disability based on factors other than a total loss of hearing, it could have clearly included the statutory language prohibiting such an award.[11] Finally, we are required to interpret the workers' compensation statutes in a manner that is consistent with their beneficent purpose.[12] To deny a severely disabled worker permanent total disability benefits for any loss of hearing short of a total loss of hearing could produce the unreasonable result that a worker who had lost 99% of his hearing could not be found to be permanently and totally disabled regardless of the disability factors in Osborne and the statutes since a 99% loss of hearing is not a total loss of hearing. When there is an ambiguity in the workers' compensation statutory scheme, it must be interpreted in a way that furthers the social policy of the Act to provide benefits for the disabled worker.[13] Lee has cross-petitioned for review of the Board's affirmance of the ALJ's denial of income benefits due to coal workers' pneumoconiosis. The ALJ concluded that although Lee suffered from coal workers' pneumoconiosis, his spirometric test values were above 80% of predicted based on Dr. Robert Powell's testing. The ALJ also noted that Dr. Antara Mallampalli indicated that based on arterial blood gas studies Lee was impaired; however, it was not shown that the spirometric tests were not valid. Therefore, the ALJ did not rely on the alternative method for determining respiratory impairment as provided in KRS 342.732(3); and the ALJ concluded that Lee was not entitled to income benefits pursuant to KRS 342.732(1)(a), (b), or (c). 316 Lee claims that the ALJ erred as a matter of law by not finding that he had a respiratory impairment based on what he claims to be the more reliable arterial blood gas studies performed by Dr. Mallampalli. However, since Lee failed to show that the spirometric tests provided were not valid, the alternative method for determining respiratory impairment provided in KRS 342.732(3) was not available. Since the pulmonary studies performed by Dr. Powell had both an FVC and FEV1 of above 80% of predicted, Lee was not entitled to income benefits under KRS 342.732(1)(a), (b) or (c).[14] As the claimant, Lee had the burden of proof and the risk of persuading the ALJ.[15] Since Lee was unsuccessful before the ALJ, the question on appeal is "whether the evidence was so overwhelming, upon consideration of the entire record, as to have compelled a finding in [his] favor."[16] For the evidence relied upon by Lee to be compelling, the evidence must be so overwhelming that no reasonable person could reach the conclusion of the ALJ.[17] The evidence offered by Lee to support the use of the alternative method under KRS 342.732(3) was not so overwhelming as to compel a finding in favor of Lee on his coal workers' pneumoconiosis claim for income benefits. Based on the foregoing reasons, the Board is affirmed on both the petition for review and the cross-petition. ALL CONCUR. NOTES [1] Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580. [2] Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992). [3] Kentucky Revised Statutes. [4] Tinnitus is a sound in the ears, such as buzzing, ringing, or whistling, caused by a defect in the auditory nerve. [5] KRS 342.0011(11)(c) provides as follows: "Permanent total disability" means the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury, except that total disability shall be irrebuttably presumed to exist for an injury that results in: 1. Total and permanent loss of sight in both eyes; 2. Loss of both feet at or above the ankle; 3. Loss of both hands at or above the wrist; 4. Loss of one (1) foot at or above the ankle and the loss of one (1) hand at or above the wrist; 5. Permanent and complete paralysis of both arms, both legs, or one (1) arm and one (1) leg; 6. Incurable insanity or imbecility; or 7. Total loss of hearing. [6] KRS 342.0011(34) provides: "`Work' means providing services to another in return for remuneration on a regular and sustained basis in a competitive economy." [7] KRS 342.732 pertains to coal workers' pneumoconiosis. [8] Teledyne-Wirz v. Willhite, Ky.App., 710 S.W.2d 858 (1986)(superceded by statute as stated in McNutt Construction v. Scott, Ky., 40 S.W.3d 854, 858 (2001)). [9] KRS 342.730(1)(e) provides: "For permanent partial disability, impairment for nonwork-related disabilities, conditions previously compensated under this chapter, conditions covered by KRS 342.732, and hearing loss covered in KRS 342.7305 shall not be considered in determining the extent of disability or duration of benefits under this chapter." [10] Ky., 432 S.W.2d 800 (1968). [11] Commonwealth v. Simmons, Ky.App., 753 S.W.2d 872, 873 (1988). [12] "We approach the decision under the influence of the remedial principle of workmen's compensation and the development and progress of legislation to accomplish its humane and beneficent purpose." Dick v. International Harvester Co., Ky., 310 S.W.2d 514, 515 (1958) (citing Consolidation Coal Company's Receivers v. Patrick, 254 Ky. 671, 72 S.W.2d 51 (1934); and Adams v. Bryant, Ky., 274 S.W.2d 791 (1955)). [13] "`In interpreting such an act all presumptions will be indulged in favor of those for whose protection the enactment was made, and who have by the terms of the act and by their own voluntary agreement been deprived of the enforcement of their rights in the courts of this state.' Workmen's Compensation Board v. U.S. Coal & Coke Co., 196 Ky. 833, 245 S.W. 900, 902." Consolidation Coal Co., supra at 678, 72 S.W.2d 51. [14] Lee was awarded medical benefits and that award was not appealed. [15] Snawder v. Stice, Ky.App., 576 S.W.2d 276, 279 (1979). [16] Wolf Creek Collieries v. Crum, Ky.App., 673 S.W.2d 735, 736 (1984). [17] REO Mechanical v. Barnes, Ky.App., 691 S.W.2d 224, 226 (1985).
329 So.2d 795 (1976) O'Neal Walter SCOTT v. I. L. LYONS & COMPANY, LTD., et al. No. 6881. Court of Appeal of Louisiana, Fourth Circuit. March 16, 1976. Rehearings Denied April 13, 1976. Writs Refused June 2, 1976. 796 Meyer Sabludowsky, New Orleans, for plaintiff-appellant. Drury, Lozes & Curry, James H. Drury and Madison C. Moseley, New Orleans, for defendant-appellee. Christovich & Kearney, C. Edgar Cloutier, New Orleans, for intervenor-appellant, Ranger Ins. Co. Before SAMUEL, REDMANN, LEMMON, SCHOTT and BEER, JJ. LEMMON, Judge. Plaintiff has appealed from the dismissal, after a trial on the merits, of his tort suit based on a premises defect which allegedly caused him to fall while alighting from a truck. The accident occurred when plaintiff, a truck driver, was delivering freight to a warehouse owned and leased by the two defendants. As instructed by defendant lessee's employee, plaintiff had backed his truck into the warehouse door at an angle in order to keep the alley clear and to get as close as possible to the stationary conveyor, which was located just inside the door. After plaintiff had unloaded the freight, he began a two-step descent from the stationary apron across the rear of the truck. The height of the apron was about four feet above ground level outside the warehouse and about three feet above the level of the raised warehouse floor. In the second step he caught his left knee on a 797 hook on the inside frame of the warehouse door and was thrown onto the warehouse floor, landing on both knees. The principal issues on appeal are whether the object which caused plaintiff's fall constituted a defect or hazard and whether plaintiff was himself negligent in failing to discover the object or in descending from the truck in the manner he did. The following photograph, depicting plaintiff and the truck in question, illustrates the first phase of the two-step descent: 798 In the position shown in the photograph plaintiff had already closed the curtain and, holding onto the chain with his left hand, had stepped down from the apron of the truck and placed his right foot on an iron rail or step, which was located between the apron and ground level. After stepping down with his right foot, as shown, and completing the first phase of the two-step maneuver, plaintiff attempted to complete the second phase by moving his left leg down. This second step would normally have placed plaintiff's left foot on the ground; however, with the rear of his truck angled inside the door of defendants' warehouse, plaintiff intended by this second step to place his left foot on the warehouse floor and then to go to a desk just inside the door, where defendant lessee's employee had to sign the delivery ticket. The following photograph shows another truck (without a projecting apron) backed into the warehouse door and further shows the hook (circled) protruding from a metal plate, which is attached to the brick that forms the side of the door opening: [1] 799 The distance between the conveyor and the side of the door was approximately 2½ feet. The L-shaped hook, two to three inches long and three feet above the ground (two feet above the raised warehouse floor) had been in that location during the many years that defendant lessee occupied the building, but had never been used. I Defendants admittedly had a duty to keep the premises reasonably safe and 800 free of hazards for plaintiff and other truck drivers who delivered freight on the premises. They contend, however, that the hook was not a hazard which rendered the premises unsafe and that no duty was therefore imposed upon them to correct the known condition or to warn plaintiff of its existence. Plaintiff would not have fallen if the hook had not been in that location. The punctate type of injury to the knee supports the factual finding that he hit the hook and not the wall. Therefore, there is no real dispute as to whether the hook was a cause-in-fact of the fall. The key inquiry is whether an ease of association exists between the injury and the duty which plaintiff asks us to apply to defendants. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). This inquiry involves the determination as to whether a truck driver could reasonably be anticipated to alight from the truck in close proximity to the hook so that the hook would present a risk of injury during the descending maneuver. And in argument before this court defendants pointed out that if plaintiff had followed the more reasonable procedure of descending onto the ground and then walking through the warehouse door, instead of jumping 3½ to 4 feet from the rear of the truck directly onto the warehouse floor in the proximity of the hook, the injury would not have occurred. Plaintiff testified he did not jump, but rather stepped down, and that he did not have room to step on the ground between the truck and the warehouse floor. There is some conflict in the testimony as to the distance from the back of the truck to the warehouse floor. Defendant lessee's employee (who did not witness the incident) estimated that a truck could only get within 3½ to 4 feet of the warehouse floor. The second photograph above, however, shows the doorjamb to be two bricks wide, so that if plaintiff had backed his truck straight into the doorway, the apron of the truck would have been only the width of two bricks plus the width of the protecting post from the warehouse floor. This photograph and others appear to be more supportive of plaintiff's estimate that he was about two feet from the warehouse floor when he stepped from the iron rail in the second phase of his two-step descent, and a two-foot long step from a height of one foot above the raised floor can hardly be considered a jump. We conclude that the rear of plaintiff's truck was near enough to the raised floor for him to reach the floor with a reasonable descending maneuver. In our opinion the hook constituted a hazard which involved an unreasonable risk of harm to plaintiff. Defendants should have reasonably anticipated that a truck driver, once the unloading of his truck was completed, might descend from the rear of the truck in close proximity to the hook, which was located near the freight-receiving desk, and might pass close enough to the hook to become entangled with it during his descent or during his entry into the warehouse.[2] The fact that the hook protruded only three inches lessened the likelihood of an occurrence such as befell plaintiff. Nevertheless, since a descending maneuver such as that undertaken by plaintiff was reasonably to be expected when a truck driver made a delivery at this door, defendants (with actual knowledge of the hook) had a duty to remedy the hazard or to take other steps to protect plaintiff against the danger. We hold that defendants' failure to discharge this duty was a legal cause of the accident. 801 II Defendants also pleaded contributory negligence, alleging that the "hook was in full view . . . ." Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, La., 276 So.2d 286 (1973). Defendant bears the burden of proving contributory negligence. Defendant lessee's employee testified that the rusty hook "is so small that no oneit is not noticeable by anyone." While the hook apparently was large enough to constitute a hazard, it was small enough to be virtually concealed. Furthermore, since the hook was lower than the apron of the truck and was not painted or marked so as to make its presence obvious, it was even more difficult for plaintiff to see the object. Additionally, in the consideration of negligence and contributory negligence, the law does not necessarily demand identical conduct of the plaintiff and the defendant. Hall v. Hartford Acc. & Indemnity Co., 278 So.2d 795 (La.App. 4th Cir. 1973); Prosser, The Law of Torts, Ch. 11, p. 419 (4th ed. 1971). Varying factors affect what conduct the standard of the reasonable man requires. As to the duty of discovering hazardous conditions on premises, there is a greater duty imposed on the owner or the lessee than on the visitor. The owner or lessee has a duty to discover all reasonably discoverable defects (in this case defendants had actual knowledge of the hook), while the visitor legally on the premises has only the duty to discover those hazards which are readily observable in the exercise of ordinary vigilance. In this respect we further note that plaintiff was making his first delivery at this entrance. Considering all the circumstances of this case, we conclude defendants have failed to prove that plaintiff was unreasonable or negligent in failing to discover this particular hazard or in descending from the truck in the manner in which he did. Had the hook not been located in the path of plaintiff's descent, the accident would not have occurred. III In the March 10, 1972 accident the 32-year old plaintiff struck his left knee on the hook, which caused him to fall with forceful flexion on both knees, more heavily on the right. He was treated at an industrial clinic and, because of recurrent knee pain, was eventually referred to Dr. George Cary, an orthopedic surgeon. Dr. Cary examined plaintiff on March 24, 1972 and found crepitation in both knees and tenderness on compression, as well as a healing laceration of the left knee and a slight lumbosacral sprain. He prescribed and administered a course of conservative treatment, and the back sprain resolved in due time. As to the knee injury, Dr. Cary ultimately diagnosed chondromalacia, worse in the right knee, which he attributed as the cause of plaintiff's persistent complaints of pain after working. When plaintiff's condition had not improved after 15 months, the doctor in June, 1973 recommended surgery to relieve the discomfort. Plaintiff at first consented to surgery, but changed his mind because he had to support his family and had been working consistently, although in pain. In February, 1974, however, plaintiff told the doctor that he had decided to submit to a bilateral patellectomy (which had not yet been performed at time of trial). Another orthopedist, Dr. Raymond Kitziger, also examined plaintiff and made generally the same findings and diagnosis (he additionally found a positive Mac-Murray 802 test for a torn ligament). This doctor, however, stated he would not "push for" surgery, since plaintiff was functioning in his work, but admitted the ultimate necessity for surgery was probable. Dr. Kitziger estimated the cost of surgery, including hospitalization, surgical fees and related expenses, at approximately $1,400.00 for each knee, with a recuperative period of at least four months required after each operation. He further opined that, after surgery, plaintiff will have a permanent partial disability of at least 20% and will have difficulty in performing such duties associated with truck driving as climbing onto the back of the truck and loading and unloading. Thus, plaintiff has endured substantial pain and suffering, although he has not yet incurred any considerable loss of wages. The recommended surgery will relieve the discomfort, but apparently will cause a further impairment of earning capacity, at least insofar as plaintiff's ability to earn wages as a truck driver with another employer.[3] Perhaps the most difficult quantum cases are those in which the plaintiff sustains a permanent partial disability which at time of trial has only potential effect on his future earnings because of continued employment with the same employer. A court's failure to recognize the impairment of earning capacity is unfair to the plaintiff; on the other hand, the court must recognize, in fairness to the defendant, that this impairment will perhaps have little effect on future earnings unless the plaintiff is thrust on the open labor market. In the present case the evidence is lacking as to the factors bearing on the amount of wages plaintiff will reasonably be expected to lose over his remaining work life. There was no evidence as to what other type of work plaintiff will or will not be able to perform after the surgery, and it was not established whether plaintiff's partial disability will worsen in the future. Furthermore, while we recognize that plaintiff continued to work (in pain) because of economic necessity, we note that the only medical testimony on the point established that plaintiff will be able to continue working as a truck driver as long as he does not have to perform heavy loading and unloading duties. Considering the pain and suffering plaintiff has already sustained, the $434.75 in medical expenses to date, the amount required for medical expenses in connection with the probable surgery and the amount of wages which will be lost during the periods of recuperation following two surgical procedures and the pain and suffering associated therewith, as well as the permanent partial disability and impairment of earning capacity, we set the amount of damages at $27,500.00. For these reasons, the judgment of the trial court is reversed, and it is now ordered that judgment be rendered in favor of plaintiff and against defendants in the sum of $27,500.00, together with legal interest thereon from the date of judicial demand until paid, and for all court costs, subject to the claim asserted in the intervention of plaintiff's employer's workmen's compensation insurer. REVERSED AND RENDERED. BEER, J., dissents and assigns reasons. BEER, Judge (dissenting). I do not agree with the majority's conclusion that defendants "should have reasonably 803 anticipated that a truck driver, once the unloading of his truck was completed, might descent from the rear of the truck in close proximity to the hook, which was located near the freight-receiving desk, and might pass close enough to the hook to become entangled with it during his descent or during his entry into the warehouse." I agree with the trial judge's finding that there was no negligence on the part of the defendants. In my view, the plaintiff has not carried the burden of proving that the defendants failed to keep the premises reasonably safe. The majority opinion has the effect of permitting the plaintiff to pull himself up by his own bootstraps by conjecturing that the fall would not have taken place if the hook had not been where it was and, thus, was a damage causing defect that defendants should have anticipated. Since I would affirm the trial court's judgment, I must respectfully dissent. NOTES [1] The truck shown in the photograph has the right rear corner angled into the door opening, while plaintiff testified that the left rear corner of his truck was angled into the door on the day of the accident. [2] In this respect we consider irrelevent the argument that the accident would not have occurred if plaintiff had descended from the truck in another manner. The relevent inquiry is whether the manner in which plaintiff did descend from the truck was reasonable and to be reasonably anticipated. [3] Plaintiff's present employer, who was condemned by judgment in a consolidated case to pay compensation benefits for a total and permanent disability, granted plaintiff's request, about a month after the accident, to drive a tractor-trailer unit. This unit is more difficult to drive, but the loading and unloading is done mostly by mechanized equipment. Plaintiff's average weekly earnings were $184.80.
Case: 13-60251 Document: 00512525831 Page: 1 Date Filed: 02/07/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 13-60251 United States Court of Appeals Fifth Circuit FILED February 7, 2014 In the Matter of: MICHAEL VERNON SHANKLE, Lyle W. Cayce Clerk Debtor ------------------------------------------------------------------------ MICHAEL VERNON SHANKLE, Appellant, versus DIANNE SHANKLE, Appellee. Appeal from the United States District Court for the Northern District of Mississippi No. 1:12-CV-117 Before SMITH, DeMOSS, and HIGGINSON, Circuit Judges. PER CURIAM:* *Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 13-60251 Document: 00512525831 Page: 2 Date Filed: 02/07/2014 No. 13-60251 Michael Shankle appeals the district court’s judgment affirming the bankruptcy court’s determination that the obligations stemming from a divorce decree and subsequent state-court judgments constituted a nondischargeable debt pursuant to 11 U.S.C. § 523(a)(6). We affirm. I. The Shankles divorced in 1999. The divorce court ordered Michael to pay alimony and child support to Dianne and to divide certain marital prop- erty. Paragraph eleven of the decree provided, in relevant part, The Court finds the following items of personal property are mar- ital property, and shall be equally divided by the parties: Idex Mutual Fund with an approximate balance of $80,000.00; Baker- Hughes Stock in the approximate amount of $4,000.00; Invesco Mutual Fund with an approximate balance of $100,000.00. Based on that division, each spouse was entitled to approximately $92,000. Instead of complying, however, Michael withdrew all funds in the Invesco account—$114,222.83—and remitted the proceeds to a John Hancock account in his name, later spending it all for his own benefit. He testified that he con- sidered the withdrawal to be his one-half of the proceeds from the three accounts but refused to tender the remaining two accounts, which were regis- tered in his name, to Dianne. The next year, an Arkansas state court found Michael in contempt for failing to divide the three accounts or pay other sums as ordered. Although the proceeds from the Invesco account had been spent by that time, the Idex account was worth about $99,000. Michael nevertheless continued his refusal to tender Dianne the money to which she was entitled under the divorce decree. In 2002, the state court again found Michael in willful contempt of its previous orders for refusing to divide the three accounts and ordered him to pay Dianne—within ten days—her share of the accounts listed in paragraph 2 Case: 13-60251 Document: 00512525831 Page: 3 Date Filed: 02/07/2014 No. 13-60251 eleven plus interest. Additionally, the court directed him to execute the docu- mentation necessary to transfer his interest in the Idex account and the Baker- Hughes stock to Dianne. Michael testified that because of steep market declines, the Idex account was worth only $50,456.13. Later that year, Dianne received that sum, slightly less than what she would have gotten from the Idex account had Michael com- plied with the divorce decree, taking into account the interest that had accrued. In 2006, the state court found Michael liable to Dianne for $149,934.40 and awarded a judgment in that amount plus interest from June 6, 2006. Of that amount, $97,435.91 was for “Marital Property awarded by Decree of Divorce to [Dianne] but never tendered by [Michael] (with interest).” This sum represented Dianne’s share of the Invesco and Idex accounts (plus interest) that she never had received. 1 A few months earlier, in late 2005, Michael filed a request for relief under Chapter 7 of the Bankruptcy Code. In a schedule filed with the bankruptcy court, he listed a disputed debt owed to Dianne. Dianne in turn filed an adver- sary proceeding to determine the dischargeability of that amount, which con- sisted of unpaid alimony, maintenance, child support, and other obligations Michael had been ordered to pay pursuant to the divorce decree and later state- court proceedings. The bankruptcy court held a trial with respect to the adversary proceed- ing in early 2012. Because the parties stipulated that the amounts owed for alimony, child support, and attorneys’ fees were nondischargeable, the only issue was whether a debt of $97,435.91 for marital property awarded to Dianne but never tendered by Michael was nondischargeable. The bankruptcy court 1 Dianne previously received the Baker-Hughes stock. The precise amount of the transfer, however, is unknown. 3 Case: 13-60251 Document: 00512525831 Page: 4 Date Filed: 02/07/2014 No. 13-60251 concluded that Michael’s conduct constituted willful and malicious injury to Dianne under § 523(a)(6) of the Bankruptcy Code and, therefore, was a nondis- chargeable debt. Michael appealed to the district court, which affirmed. II. “We review the decision of the district court by applying the same stan- dard to the bankruptcy court’s findings of fact and conclusions of law that the district court applied.” Morrison v. W. Builders of Amarillo, Inc. (In re Morri- son), 555 F.3d 473, 480 (5th Cir. 2009). Namely, the “bankruptcy court’s find- ings of fact are subject to review for clear error, and its conclusions of law are reviewed de novo.” Id. (citing Gen. Elec. Capital Corp. v. Acosta (In re Acosta), 406 F.3d 367, 372 (5th Cir. 2005)). “A finding of fact is clearly erroneous only if on the entire evidence, the court is left with the definite and firm conviction that a mistake has been committed.” Cadle Co. v. Duncan (In re Duncan), 562 F.3d 688, 694 (5th Cir. 2009) (per curiam) (citation and internal quotation marks omitted). III. The sole issue is whether Michael’s obligation resulting from paragraph eleven and subsequent state-court judgments is a nondischargeable debt under 11 U.S.C. § 523(a)(6), which states that a debt is nondischargeable “for willful and malicious injury by the debtor to another entity or to the property of another entity.” An injury is willful and malicious when there is either a sub- jective motive to cause harm or an objective substantial certainty of harm. Miller v. J.D. Abrams Inc. (In re Miller), 156 F.3d 598, 606 (5th Cir. 1998). The bankruptcy court, in concluding that Michael’s obligation to Dianne was nondischargeable, noted that several bankruptcy courts have found that a debtor’s failure to tender marital assets in contravention of a divorce decree 4 Case: 13-60251 Document: 00512525831 Page: 5 Date Filed: 02/07/2014 No. 13-60251 constitutes willful and malicious injury under § 523(a)(6). 2 It also noted that the amount of Michael’s indebtedness was established by the state-court order that had set the sum at $97,435.91 plus interest. Michael does not dispute that amount but instead attempts to distinguish those rulings on the basis that the debtors in those cases purportedly engaged in conduct more egregious than his own. Nevertheless, he has failed to show that the bankruptcy court clearly erred in concluding that his repeated failure to tender to Dianne her half of the marital assents constituted a “willful and malicious injury” because there was an objective substantial certainty of harm to Dianne in failing to do so. Taking each of Michael’s arguments in turn, first, he suggests that the bankruptcy court’s decision effectively penalizes him for exercising his right to appeal the judgment of the divorce court. The bankruptcy court commented that Michael’s actions “[did not] excuse not doing what you should have done back in 1999.” As the district court noted, the record does not contain any evidence that Michael’s appeal concerned paragraph eleven or that his 2 See Ker v. Ker (In re Ker), 365 B.R. 807, 814–15 (Bankr. S.D. Ohio 2007) (“[C]ourts within the Sixth Circuit and elsewhere have held that the kind of behavior in which Erik admittedly engaged—dissipating marital assets and violating court orders—warrants a find- ing of willful and malicious injury and nondischargeability under § 523(a)(6).” (emphasis added)); Heyne v. Heyne (In re Heyne), 277 B.R. 364, 368–69 (Bankr. N.D. Ohio 2002) (finding a debtor’s disposal of marital assets in violation of a divorce decree that resulted in civil con- tempt to be willful and malicious for the purposes of § 523(a)(6)); Lipira v. Kaczmarski (In re Kaczmarski), 245 B.R. 555, 561–62 (Bankr. N.D. Ill. 2000) (“By violating the restraining order that his wife had obtained for the purpose of preventing his dissipation of marital assets, Debtor was aware that his actions were substantially certain to lead to injury of Lipira or her property interest. Debtor’s actions were thus willful. . . . His actions were malicious because they were without just cause or excuse and contrary to his clear legal duty as found by state court orders. A convenient memory about state court orders in a divorce proceeding is not an excuse to violate these orders.”); Shteysel v. Shteysel (In re Shteysel), 221 B.R. 486, 489–91 (Bankr. E.D. Wis. 1998) (finding that a debtor’s actions in dissipating marital assets before a court order in divorce proceedings constituted willful and malicious conduct under § 523(a)(6)); see also Structured Invs. Co., LLC v. Smith (In re Smith), 302 B.R. 530, 534 (Bankr. N.D. Miss. 2003) (finding that deliberately diverting monthly pension plan payments contractually transferred to another constituted a nondischargeable debt under § 523(a)(6)). 5 Case: 13-60251 Document: 00512525831 Page: 6 Date Filed: 02/07/2014 No. 13-60251 obligation to comply with that decree was stayed pending his appeal. 3 Second, Michael contends that he “left” or “reserved” the Idex account for Dianne. Although it appears that the Idex account, along with the Baker- Hughes stock, would likely have satisfied Michael’s obligation under the divorce decree had he turned over possession when first ordered to do so, the bankruptcy court found that Michael took no action to transfer any part of the marital assets until the 2002 contempt order despite knowledge that failure to comply with the state court’s orders would cause Dianne economic injury. Michael’s belief that the Idex account—which at one point was worth roughly $99,000—would satisfy his obligation to Dianne, however, does not explain the almost three-year delay in turning over the marital assets. Third, Michael suggests that Dianne caused the Idex account to be frozen and that this, combined with market declines, excuses the dissipation in mari- tal assets. He also claims that when he learned that the Idex account had decreased in value, he tried to preserve the principal in the account. Although the record evidence is inconclusive with respect to who or what caused the Idex account to be frozen, the bankruptcy court correctly noted, “[h]ad the defendant not defied the divorce decree, this would not even be an issue.” Both the market-induced decline in value and the freeze occurred only after Michael had failed to tender Dianne her half of the value of the account at the time of the divorce decree. Finally, Michael underscores that, pre-divorce and of his own accord, he paid support to Dianne. Such conduct, although laudatory, does not explain his repeated failure to comply with his obligation to Dianne or his continued defiance of the state-court orders. 3In fact, Michael, in his brief before this court, describes his appeal as being “pri- marily” with respect to paragraph fifteen of the divorce decree. 6 Case: 13-60251 Document: 00512525831 Page: 7 Date Filed: 02/07/2014 No. 13-60251 Accordingly, we agree with the district court that the bankruptcy court correctly exercised its discretion in finding that Michael’s repeated refusal to transfer marital assets, despite multiple contempt orders, constituted an objective substantial certainty of harm to Dianne and, as a result, a willful and malicious injury under § 523(a)(6). Because the bankruptcy court did not clearly err, we AFFIRM the judgment of the district court. 7
312 S.E.2d 477 (1984) 310 N.C. 428 STATE of North Carolina v. Irving ROBERTS. No. 265A83. Supreme Court of North Carolina. March 6, 1984. 478 Rufus L. Edmisten, Atty. Gen. by Christopher P. Brewer, Asst. Atty. Gen., Raleigh, for the State. Adam Stein, Appellate Defender by Ann P. Petersen, Asst. Appellate Defender, and James R. Glover, Director, Appellate Defender Clinic, Raleigh, for defendant. FRYE, Justice. Defendant seeks a new trial and brings forward for review by this Court four alleged errors committed by the trial court. Defendant contends that: (1) the indictment for rape was insufficient to charge an offense greater than second degree rape; (2) the evidence was insufficient to convict him of first degree rape; (3) the trial court erred by entering judgment for both first degree rape and assault causing serious bodily injury; and, (4) the trial judge impermissibly expressed an opinion concerning the testimony of two witnesses. For the reasons stated in this opinion, we find no error in the trial proceedings leading to defendant's convictions of the crimes charged. I. Most of the State's evidence at trial consisted of the testimony of Pearlie Mae Roberts, the victim. Mrs. Roberts testified as follows: She lives in a trailer in an area of town known as Garnett Heights, which is located in Pollocksville, North Carolina. She is married to Edward Roberts, the defendant's cousin. On Saturday night, 4 December 1982, from approximately 7:30 to 9:30 p.m., Mrs. Roberts was across the street from her trailer visiting in the home of Ella Roberts, the defendant's mother. During the course of the visit, she drank a bottle of beer and some wine. The defendant was also present at his mother's house. After leaving defendant's mother's house, Mrs. Roberts returned home. At approximately 11:00 p.m. she was lying on her couch watching television. All of the doors to her trailer were locked. However, the back door, which had a broken window pane in it, could be opened from the outside, if someone reached their hand through the space from which the pane was missing. The defendant approached Mrs. Roberts from behind, coming from the general direction of the back door, and put a knife to her throat. Defendant told her that if she hollered he would kill her. Then the defendant, holding the victim by her neck and her arm, forced her out of the trailer and across the road to an unused tobacco barn. While in the barn, the defendant 479 beat her and tore all of her clothes off.[1] Next, defendant tied the victim's hands together and gagged her. He then proceeded to have sexual intercourse with her. Thereafter, he tied her feet together. Defendant left her lying nude on the ground and as he departed he said, "[i]f you ain't dead when I come back the next morning, you will be dead." Shortly thereafter, defendant returned and threw a quilt over her. After defendant left the barn, the victim was able to free her feet and run to a neighbor's house where she was given a coat. Then she ran to another neighbor's house who removed the gag from her mouth and untied her hands. After talking with her neighbor for a short period of time, she returned home and went to bed without calling the police. Her husband was not at home when she arrived. The next morning she went to her mother-in-law's house and was subsequently driven to the sheriff's department where the crime was reported. After reporting the crime, Mrs. Roberts and Deputy Sheriff Roger Smith returned to the scene of the crime. Outside of the tobacco barn the deputy sheriff discovered a rag and a twelve-inch butcher knife with a wooden handle sticking in the ground. A quilt was found inside the barn. Mrs. Roberts identified the knife that was found outside of the barn as being the knife that defendant had when he entered her trailer. Deputy Smith testified that one of the victim's eyes was swollen and "her lips were swollen real bad" when she came to the sheriff's department. He also testified that the dirt inside the barn was all scuffled up. Deputy Smith was unable to obtain any footprints from the ground of the barn. Additionally, no fingerprints could be taken from the knife because of the material of which the handle was composed. The defendant's evidence, presented through the testimony of his mother and two sisters, tended to show that on 4 December 1982, defendant was staying with his sister in Elizabeth City, North Carolina, which is approximately three hours from Pollocksville. Defendant's sister testified that defendant was at her house on 4 December 1982 at 9:30 p.m. just prior to her going to bed and that she saw him again on 5 December 1982 at approximately 12:00 o'clock noon, thereby making it impossible for him to have been in Pollocksville on 5 December 1982 as testified to by some witnesses for the State. Other facts necessary to a determination of the issues raised by defendant will be incorporated in the opinion. II. Defendant's first assignment of error alleges that the indictment for rape was insufficient to charge an offense greater than second degree rape because the indictment does not specify the essential elements which distinguish first degree rape from second degree rape. Therefore, defendant contends that the trial court's entry of judgment for the offense of first degree rape deprived him of his constitutional right to indictment by a grand jury as guaranteed by Article I, § 22 of the North Carolina Constitution. Basically, the defendant's contention is that the indictment, which was in the short form approved by G.S. § 15-144.1, was insufficient to charge first degree rape because the indictment does not allege that "defendant displayed a dangerous weapon or that he caused serious injury or that he was aided and abetted by another, essential elements of first degree rape." G.S. § 14-27.2 (Cum.Supp.1983) provides as follows: (a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse: .... 480 (2) With another person by force and against the will of the other person, and: a. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon; or b. Inflicts serious personal injury upon the victim or another person; or c. The person commits the offense aided and abetted by one or more other persons. The indictment for rape in the instant case provided in pertinent part as follows: The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did ravish and carnally know Pearly [sic] Mae Roberts, a female person, by force and against her will. [Note: This indictment is sufficient to charge both First and Second Degree Rape of a female person when force was used. G.S. 15-144.1(a); G.S. 15-155. A prosecutor who only intends to prosecute for Second Degree Rape may want "Second Degree" typed before "Rape" in the offense block. This indictment is not sufficient to charge first degree rape of a child of the age of 12 years or less or second degree rape of a handicapped person. See G.S. 15-144.1(b) and (c) to indict for these offenses.] In State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983), this Court addressed the same arguments which are being made in the instant case, while discussing whether a short form indictment for a sexual offense, drafted pursuant to G.S. § 15-144.2, satisfied a defendant's constitutional right to indictment by a grand jury even though the indictment did not specify all of the elements of the crime charged. In Effler we stated: We are satisfied that the indictment charging the defendant with first degree sexual offense was proper in every respect. In so holding, we merely emphasize that the purpose of Article I, § 23 of the North Carolina Constitution, which states that every person charged with a crime has the right to be informed of the accusation, is threefold: to enable a defendant to have a fair and reasonable opportunity to prepare his defense; to avail himself of his conviction or acquittal as a bar to subsequent prosecution for the same offense; and to enable the court to proceed to judgment according to the law in the case of a conviction. See State v. Squire, 292 N.C. 494, 234 S.E.2d 563, cert. denied, 434 U.S. 998 [98 S.Ct. 638, 54 L.Ed.2d 493] (1977); State v. Jenkins, 238 N.C. 396, 77 S.E.2d 796 (1953); State v. Thomas, 236 N.C. 454, 73 S.E.2d 283 (1952). The indictment in the present case meets these constitutional requirements. Id. at 747, 309 S.E.2d at 706. We find the above-quoted language from Effler to be equally applicable to the indictment in the instant case. Therefore, we hold that the indictment charging defendant with the crime of rape fully satisfied defendant's right to be indicted by a grand jury. Defendant's assignment of error is overruled. III. Next, defendant contends that the evidence adduced at trial was insufficient to convict him of first degree rape. Defendant correctly states that his conviction for first degree rape was based upon the fact that he employed or displayed a dangerous weapon during the course of the rape. However, defendant contends that the evidence only shows that the knife which he possessed was displayed during the course of the kidnapping but not during the rape. Defendant's assignment of error is without merit. During direct examination, the victim, Mrs. Roberts, testified as follows concerning defendant's actions while he engaged in intercourse with her: Q. When he was doing this, did he have any type of weapon when he was doing this in the tobacco barn? 481 A. He had a knife stuck right beside of him. Q. In the ground? A. Yes. On the side right there. (Witness indicated.) This testimonial evidence was definitely sufficient to support a finding of the element of first degree rape that the defendant employed or displayed a dangerous weapon during the course of the rape. G.S. § 14-27.2 (Cum.Supp.1983). This assignment of error is overruled. IV. Defendant next contends that judgment should be arrested on his "conviction for assault inflicting serious injury" because "[a]ll of the elements of assault inflicting serious injury are included in the offense of first degree rape inflicting serious injury." Assuming arguendo, that assault inflicting serious injury under G.S. 14-33(b)(1) is a lesser included offense of first degree rape under G.S. § 14-27.2(a)(2)b requiring the infliction of serious personal injury upon the victim, this will not help the defendant in the instant case. The defendant's first degree rape charge was not submitted to the jury on the theory that he inflicted serious personal injury on the victim. Rather, the case was submitted to the jury on the theory that defendant engaged in vaginal intercourse with the victim against her will and he employed or displayed a dangerous or deadly weapon. G.S. § 14-27.2(a)(2)a (Cum.Supp.1983). (Emphasis added). This is clear from the trial judge's charge to the jury, which included the following: And fourth, that the Defendant employed or displayed a dangerous or deadly weapon. A butcher knife, I instruct you members of the jury, is a dangerous or deadly weapon. So I charge, members of the jury, with respect to the charge of first degree rape, that if you find from the evidence and beyond a reasonable doubt that on or about the 4th day of December, 1982, Ervin Roberts engaged in vaginal intercourse with Pearlie Mae Roberts, and he did so by holding a knife to her throat and threatening to kill her, and that this was sufficient to overcome any resistance with Pearlie Mae Roberts, and that Pearlie Mae Roberts did not consent, and that it was against her will, and that Ervin Roberts employed or displayed a butcher knife, it would be your duty to return a verdict of guilty of first degree rape. However, if you do not so find, or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of "not guilty" as to this charge. In State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982), this Court, in discussing what determines whether an offense is a lesser included offense of a greater crime, stated that "[i]f the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense." Id. at 635, 295 S.E.2d at 379. Since the infliction of serious bodily injury upon the victim is not an essential element of the greater crime of first degree rape of which defendant was convicted, it was not improper for the jury to also find defendant guilty of assault inflicting serious bodily injury since this offense is not a lesser included offense of the first degree rape. Defendant's assignment of error is meritless. V. During the trial, the defendant offered evidence which tended to show that he was in Elizabeth City, North Carolina, on the day in which these crimes were committed and the day afterwards. In an attempt to rebut this evidence, the State presented McArthur Cherry who testified that on Sunday, 5 December 1982, he saw the defendant standing near the tobacco barn where the victim was raped. In an attempt to rebut the State's evidence, the defendant presented Edward Roberts, the victim's husband, who testified that he saw the defendant at the same time as McArthur Cherry, but he saw him near a packhouse and not near the barn. In summarizing the *482 testimony of Edward Roberts, the trial judge stated to the jury: And his testimony was that he recalls seeinghis testimony tends to show that he recalls seeing the Defendant at the same time on the morning of December the 5th, 1982, in the area where the witness, McArthur Cherry, said he saw the Defendant in the area of the tobacco barn and the packhouse as was testified to, as you will recall, by the witnesses. Defendant contends that the trial judge's recapitulation of the evidence forced the testimony of Edward Roberts into consistency with the testimony of McArthur Cherry, which was favorable to the State. Defendant also contends that the trial judge's mischaracterization of the evidence amounted to an improper expression of opinion by the trial judge in violation of G.S. § 15A-1222 and G.S. § 15A-1232. We disagree with defendant's contentions. A careful review of the evidence adduced at trial shows that both men were walking together on Sunday morning, 5 December 1982, when they observed the defendant. The evidence also shows that the tobacco barn and the packhouse are located in the same general area. Therefore, the trial judge's recapitulation of the evidence was substantially correct, and at most, it amounted to a slight inadvertent statement which was not prejudicial to the defendant. State v. Freeman, 295 N.C. 210, 244 S.E.2d 680 (1978); State v. Willard, 293 N.C. 394, 238 S.E.2d 509 (1977). We also hold that no impermissible expression of opinion occurred during the trial judge's summarization of the evidence. Lastly, we note that defendant did not object to the trial judge's summarization of the evidence at trial. Therefore, assuming arguendo that the trial judge's recapitulation of the evidence was erroneous, defendant has waived his objection to the trial judge's charge. See N.C. Rules of Appellate Procedure, Rule 10(b)(2); Freeman, 295 N.C. at 226, 244 S.E.2d at 689-90. Additionally, we hold that the slight inadvertence by the trial judge is insufficient to invoke the "plain error" exception to N.C. Rules of Appellate Procedure, Rule 10(b)(2), because there is no reasonable probability that the evidence, which tended to show that defendant was seen the next day near the packhouse or the tobacco barn, "tilted the scales" in favor of defendant's conviction. State v. Black, 308 N.C. 736, 303 S.E.2d 804 (1983). Defendant's assignment of error is overruled. For the reasons hereinabove stated, we find that defendant received a fair trial free from prejudicial error. NO ERROR. NOTES [1] The victim's testimony about the sequence of events was not entirely consistent. At one point, she testified the defendant beat her up and then tore her clothes off. Then she testified the defendant beat her after she was tied and gagged with the torn clothes and before he had sexual intercourse with her. Later she testified the beating took place while they were on the ground and during the act of sexual intercourse.
(Slip Opinion) Cite as: 582 U. S. ____ (2017) 1 Per Curiam NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 15–118 _________________ JESUS C. HERNANDEZ, ET AL., PETITIONERS v. JESUS MESA, JR., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 26, 2017] PER CURIAM. This case involves a tragic cross-border incident in which a United States Border Patrol agent standing on United States soil shot and killed a Mexican national standing on Mexican soil. The three questions presented concern whether the parents of the victim of that shooting may assert claims for damages against the agent under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971); whether the shooting violated the victim’s Fourth Amendment rights; and whether the agent is entitled to qualified immunity on a claim that the shooting violated the victim’s Fifth Amendment rights. Because this case was resolved on a motion to dismiss, the Court accepts the allegations in the complaint as true for purposes of this opinion. See Wood v. Moss, 572 U. S. ___, ___ (2014) (slip op., at 12). On June 7, 2010, Sergio Adrián Hernández Güereca, a 15-year-old Mexican na tional, was with a group of friends in the cement culvert that separates El Paso, Texas, from Ciudad Juarez, Mex- ico. Now all but dry, the culvert once contained the waters of the Rio Grande River. The international boundary runs 2 HERNANDEZ v. MESA Per Curiam down the middle of the culvert, and at the top of the em bankment on the United States side is a fence. According to the complaint, Hernández and his friends were playing a game in which they ran up the embankment on the United States side, touched the fence, and then ran back down. At some point, Border Patrol Agent Jesus Mesa, Jr., arrived on the scene by bicycle and detained one of Hernández’s friends in United States territory as the friend ran down the embankment. Hernández ran across the international boundary into Mexican territory and stood by a pillar that supports a railroad bridge spanning the culvert. While in United States territory, Mesa then fired at least two shots across the border at Hernández. One shot struck Hernández in the face and killed him. According to the complaint, Hernández was unarmed and unthreatening at the time. The Department of Justice investigated the incident. The Department concluded that the shooting “occurred while smugglers attempting an illegal border crossing hurled rocks from close range at a [Customs and Border Patrol] agent who was attempting to detain a suspect.” Dept. of Justice, Office of Public Affairs, Federal Officials Close Investigation Into the Death of Sergio Hernandez- Guereca (Apr. 27, 2012), online at http://www.justice. gov/opa/pr/federal-officials-close-investigation-death-sergio hernandez-guereca (as last visited June 23, 2017). “[O]n these particular facts,” the Department determined, “the agent did not act inconsistently with [Customs and Border Patrol] policy or training regarding use of force.” Ibid. The Department also declined to bring federal civil rights charges against Mesa. In the Department’s view, there was insufficient evidence that Mesa “acted willfully and with the deliberate and specific intent to do something the law forbids,” and, in any event, Hernández “was neither within the borders of the United States nor present on U. S. property, as required for jurisdiction to exist under Cite as: 582 U. S. ____ (2017) 3 Per Curiam the applicable federal civil rights statute.” Ibid. The Department expressed regret for the loss of life in the incident and pledged “to work with the Mexican govern ment within existing mechanisms and agreements to prevent future incidents.” Ibid. Petitioners—Hernández’s parents—brought suit. Among other claims, petitioners brought claims against Mesa for damages under Bivens, alleging that Mesa violated Her nández’s rights under the Fourth and Fifth Amendments. The United States District Court for the Western District of Texas granted Mesa’s motion to dismiss. A panel of the Court of Appeals for the Fifth Circuit affirmed in part and reversed in part. The panel held that Hernández lacked any Fourth Amendment rights under the circumstances, but that the shooting violated his Fifth Amendment rights. Hernandez v. United States, 757 F. 3d 249, 267, 272 (2014); id., at 280–281 (Dennis, J., concurring in part and concurring in judgment); id., at 281 (DeMoss, J., concurring in part and dissenting in part). The panel also found “no reason to hesitate in extending Bivens to this new context.” Id., at 275. And the panel held that Mesa was not entitled to qualified immunity, concluding that “[n]o reasonable officer would have understood Agent Mesa’s alleged conduct to be lawful.” Id., at 279. Judge DeMoss dissented in part, arguing that Hernández lacked any Fifth Amendment rights under the circumstances. Id., at 281–282. On rehearing en banc, the Court of Appeals unanimously affirmed the District Court’s dismissal of petitioners’ claims against Mesa. The en banc Court of Appeals first held that petitioners had failed to state a claim for a viola tion of the Fourth Amendment because Hernández was “a Mexican citizen who had no ‘significant voluntary connec tion’ to the United States” and “was on Mexican soil at the time he was shot.” Hernandez v. United States, 785 F. 3d 117, 119 (CA5 2015) (per curiam) (quoting United States v. 4 HERNANDEZ v. MESA Per Curiam Verdugo-Urquidez, 494 U. S. 259, 271 (1990)). As to peti tioners’ claim under the Fifth Amendment, the en banc Court of Appeals was “somewhat divided on the question of whether Agent Mesa’s conduct violated the Fifth Amendment,” but was “unanimous” in concluding that Mesa was entitled to qualified immunity. 785 F. 3d, at 120. The en banc Court of Appeals explained that “[n]o case law in 2010, when this episode occurred, reasonably warned Agent Mesa” that “the general prohibition of excessive force applies where the person injured by a U. S. official standing on U. S. soil is an alien who had no signif icant voluntary connection to, and was not in, the United States when the incident occurred.” Ibid. Because the en banc Court of Appeals resolved petitioners’ claims on other grounds, it “did not consider whether, even if a constitu tional claim had been stated, a tort remedy should be crafted under Bivens.” Id., at 121, n. 1 (Jones, J., concur ring). Ten judges filed or joined five separate concurring opinions. Id., at 121–143. This Court granted certiorari. 580 U. S. ___ (2016). The Court now vacates the judgment of the Court of Appeals and remands for further proceedings. The Court turns first to the Bivens question, which is “antecedent” to the other questions presented. Wood, 572 U. S., at ___ (slip op., at 11). In Bivens, this Court “recog nized for the first time an implied right of action for dam ages against federal officers alleged to have violated a citizen’s constitutional rights.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 66 (2001). A Bivens remedy is not available, however, where there are “ ‘special factors counselling hesitation in the absence of affirmative action by Congress.’ ” Carlson v. Green, 446 U. S. 14, 18 (1980) (quoting Bivens, 403 U. S., at 396). In the decision recently announced in Ziglar v. Abbasi, ante, p. ___, this Court has clarified what constitutes a “special facto[r] counsel- ling hesitation.” See ante, at 12–14, 17–23. “[T]he in Cite as: 582 U. S. ____ (2017) 5 Per Curiam quiry,” the Court explains, “must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Ante, at 12. The Court of Appeals here, of course, has not had the opportunity to consider how the reasoning and analysis in Abbasi may bear on this case. And the parties have not had the opportunity to brief and argue its significance. In these circumstances, it is appropriate for the Court of Appeals, rather than this Court, to address the Bivens question in the first instance. This Court, after all, is one “ ‘of review, not of first view.’ ” Expressions Hair Design v. Schneiderman, 581 U. S. ___, ___ (2017) (slip op., at 10) (quoting Nautilus, Inc. v. Biosig Instruments, Inc., 572 U. S. ___, ___ (2014) (slip op., at 14)). With respect to petitioners’ Fourth Amendment claim, the en banc Court of Appeals found it unnecessary to address the Bivens question because it concluded that Hernández lacked any Fourth Amendment rights under the circumstances. This approach—disposing of a Bivens claim by resolving the constitutional question, while as suming the existence of a Bivens remedy—is appropriate in many cases. This Court has taken that approach on occasion. See, e.g., Wood, supra, at ___ (slip op., at 11). The Fourth Amendment question in this case, however, is sensitive and may have consequences that are far reach ing. It would be imprudent for this Court to resolve that issue when, in light of the intervening guidance provided in Abbasi, doing so may be unnecessary to resolve this particular case. With respect to petitioners’ Fifth Amendment claim, the en banc Court of Appeals found it unnecessary to address the Bivens question because it held that Mesa was entitled to qualified immunity. In reaching that conclusion, the en banc Court of Appeals relied on the fact that Hernández was “an alien who had no significant voluntary connection 6 HERNANDEZ v. MESA Per Curiam to . . . the United States.” 785 F. 3d, at 120. It is undis puted, however, that Hernández’s nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting. The en banc Court of Appeals therefore erred in granting qualified immunity based on those facts. “The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established . . . constitutional rights of which a reasonable person would have known.’ ” Mullenix v. Luna, 577 U. S. ___, ___ (2015) (per curiam) (slip op., at 4–5) (quoting Pearson v. Callahan, 555 U. S. 223, 231 (2009)). The “dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a rea sonable officer that his conduct was unlawful in the situa tion he confronted.” Saucier v. Katz, 533 U. S. 194, 202 (2001). The qualified immunity analysis thus is limited to “the facts that were knowable to the defendant officers” at the time they engaged in the conduct in question. White v. Pauly, 580 U. S. ___, ___ (2017) (per curiam) (slip op., at 3). Facts an officer learns after the incident ends— whether those facts would support granting immunity or denying it—are not relevant. Mesa and the Government contend that Mesa is entitled to qualified immunity even if Mesa was uncertain about Hernández’s nationality and his ties to the United States at the time of the shooting. The Government also argues that, in any event, petitioners’ claim is cognizable only under the Fourth Amendment, and not under the Fifth Amendment. This Court declines to address these argu ments in the first instance. The Court of Appeals may address them, if necessary, on remand. The facts alleged in the complaint depict a disturbing incident resulting in a heartbreaking loss of life. Whether petitioners may recover damages for that loss in this suit depends on questions that are best answered by the Court Cite as: 582 U. S. ____ (2017) 7 Per Curiam of Appeals in the first instance. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of this case. Cite as: 582 U. S. ____ (2017) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 15–118 _________________ JESUS C. HERNANDEZ, ET AL., PETITIONERS v. JESUS MESA, JR., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 26, 2017] JUSTICE THOMAS, dissenting. When we granted certiorari in this case, we directed the parties to address, in addition to the questions presented by petitioners, “[w]hether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).” 580 U. S. ___ (2016). I would answer that question, rather than remand for the Court of Appeals to do so. I continue to adhere to the view that “Bivens and its progeny” should be limited “to the precise circumstances that they involved.” Ziglar v. Ab- basi, ante, at 2 (THOMAS, J., concurring in part and con- curring in judgment) (internal quotation marks omitted). This case arises in circumstances that are meaningfully different from those at issue in Bivens and its progeny. Most notably, this case involves cross-border conduct, and those cases did not. I would decline to extend Bivens and would affirm the judgment of the Court of Appeals on that basis. Cite as: 582 U. S. ____ (2017) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 15–118 _________________ JESUS C. HERNANDEZ, ET AL., PETITIONERS v. JESUS MESA, JR., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 26, 2017] JUSTICE BREYER, with whom JUSTICE GINSBURG joins, dissenting. The parents of Sergio Adrián Hernández Güereca brought this constitutional tort action against a United States Border Patrol agent, Jesus Mesa, Jr. They claim that Mesa violated their son’s constitutional rights when Mesa shot and killed him on June 7, 2010. Hernández and some of his friends had been running back and forth across a Rio Grande River culvert that straddles the bor der between the United States and Mexico. When Mesa shot him, Hernández had returned to, and was on, the Mexican side of the culvert. The Court of Appeals, affirming the District Court, held (among other things) that Hernández had no Fourth Amendment rights because he was not a citizen of the United States, he was “on Mexican soil at the time he was shot,” and he “had no ‘significant voluntary connection’ to the United States. ” Hernandez v. United States, 785 F. 3d 117, 119 (2015) (per curiam) (quoting United States v. Verdugo-Urquidez, 494 U. S. 259, 271 (1990)). I would reverse the Court of Appeals’ Fourth Amendment holding. And, in my view, that reversal would ordinarily bring with it the right to bring an action for damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). See Wood v. Moss, 572 U. S. ___, ___ (2014) (slip op., at 11) 2 HERNANDEZ v. MESA BREYER, J., dissenting (Bivens actions lie for Fourth Amendment violations); Tennessee v. Garner, 471 U. S. 1, 11 (1985) (officer’s appli cation of lethal force when there is no immediate threat to self or others violates the Fourth Amendment). See also Ziglar v. Abbasi, ante, p. 1 (BREYER, J., dissenting). I recognize that Hernández was on the Mexican side of the culvert when he was shot. But, we have written in a case involving the suspension of habeas corpus that “de jure sovereignty” is not and never has been “the only relevant consideration in determining the geographic reach of the Constitution.” Boumediene v. Bush, 553 U. S. 723, 764 (2008). We have added that our precedents make clear that “questions of extraterritoriality turn on objec tive factors and practical concerns, not formalism.” Ibid.; see also id., at 759–762. Those factors and concerns here convince me that Hernández was protected by the Fourth Amendment. First, the defendant is a federal officer. He knowingly shot from United States territory into the culvert. He did not know at the time whether he was shooting at a citizen of the United States or Mexico, nor has he asserted that he knew on which side of the boundary line the bullet would land. Second, the culvert itself has special border-related physical features. It does not itself contain any physical features of a border. Rather, fences and border crossing posts are not in the culvert itself but lie on either side. Those of Mexico are on the southern side of the culvert; those of the United States are on the northern side. The culvert (where the shooting took place) lies between the two fences, and consists of a concrete-lined empty space that is typically 270 feet wide. Third, history makes clear that nontechnically speaking, the culvert is the border; and more technically speaking, it is at the least a special border-related area (sometimes known as a “limitrophe” area, see infra, at 4). Originally, Cite as: 582 U. S. ____ (2017) 3 BREYER, J., dissenting the 1848 Treaty of Guadalupe Hidalgo provided that the boundary should run “up the middle” of the Rio Grande River “following the deepest channel.” See Art. V, July 4, 1848, 9 Stat. 926. It also provided that “navigation . . . shall be free . . . to the vessels and citizens of both coun tries.” Art. VII, id., at 928. Subsequently the river jumped its banks, setting a new course, and provoking serious disputes about the border’s location. See S. Liss, A Century of Disagreement: The Chamizal Conflict 1864– 1964, p. 15 (1965) (the river’s “ravages . . . irreparably destroyed any semblance of a discernable United States boundary line in the Ciudad Juarez-El Paso area”). In the 1960’s, however, the United States and Mexico negotiated a new boundary. The two nations working together would “relocat[e]” the river channel. Convention for the Solution of the Problem of the Chamizal, Art. 2, Aug. 29, 1963, 15 U. S. T. 23, T. I. A. S. No. 5515 (Chamizal Convention). They would jointly bear the costs of doing so; and they would charge a bilateral commission with “relocation of the river channel . . . and the maintenance, preservation and improvement of the new channel.” Art. 9, id., at 26. When final construction of the new channel concluded, President Johnson visited the site to celebrate the “chan nels between men, bridges between cultures” created by the countries’ joint effort. Kramer, A Border Crosses, The New Yorker, Sept. 20, 2014, online at http://www. newyorker.com / news / news - desk / moving-mexican - border (all internet materials as last visited June 23, 2017); see also Appendix, fig. 2, infra (photograph of President and Mrs. Johnson touring the culvert). That “channel” is the culvert now before us. Fourth, a jointly organized international boundary commission built, and now administers, the culvert. Once created, the Commission arranged for surveys, acquired rights of way, and built and paved the massive culvert structure. See Appendix, fig. 1, infra (typical cross-section 4 HERNANDEZ v. MESA BREYER, J., dissenting of the proposed concrete “culvert”); see also International Boundary and Water Commission, United States and Mexico, Preliminary Plan (July 25, 1963), Annex to Chamizal Convention, 15 U. S. T., following p. 36. The United States contributed approximately $45 million of the total cost. See Compliance With Convention on the Chamizal, S. Rep. No. 868, 88th Cong., 2d Sess., 2 (1963); Act To Facilitate Compliance With the Convention Be tween United States and United Mexican States, §8, 78 Stat. 186. The United States and Mexico have jointly agreed to maintain the Rio Grande and jointly to maintain the “limitrophe” areas. Treaty To Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International Boundary, Art. IV, Nov. 23, 1970, 23 U. S. T. 390, T. I. A. S. No. 7313 (Rio Grande and Colorado River Treaty). Today an Interna tional Boundary and Water Commission, with representa tives of both nations, exercises its “jurisdiction” over “limi trophe parts of the Rio Grande.” Treaty of Feb. 3, 1944, Art. 2, 59 Stat. 1224. Fifth, international law recognizes special duties and obligations that nations may have in respect to “limi trophe” areas. Traditionally, boundaries consisted of rivers, mountain ranges, and other areas that themselves had depth as well as length. Lord Curzon of Kedleston, Frontiers 12–13 (2d ed. 1908). It was not until the late 19th century that effective national boundaries came to consist of an engineer’s “imaginary line,” perhaps thou sands of miles long, but having “no width.” Reeves, Inter national Boundaries, 38 Am. J. Int’l L. 533, 544 (1944); see also 1 Oppenheim’s International Law 661, n. 1 (R. Jen nings & A. Watts eds., 9th ed. 1992). Modern precision may help avoid conflicts among nations, see, e.g., Rio Grande and Colorado River Treaty, preamble, 23 U. S. T., at 373, but it has also produced boundary areas—of the sort we have described—which are “ ‘subject to a special Cite as: 582 U. S. ____ (2017) 5 BREYER, J., dissenting legal, political and economic regime of internal and inter national law,’ ” Andrassy, Les Relations Internationales de Voisinage, in The Hague Academy of Int’l Law, 1951 Recuiel des Cours 131 (quoting Paul de Lapradelle, La Frontiere 14 (1928)). Those areas are subject to a special obligation of co-operation and good neighborliness, V. Lowe, International Law 151 (2007) (describing the “re gime of voisinage,” which includes “jointly administered infrastructure facilities . . . co-operation between neighbor ing police forces . . . bilingual road signs, . . . shared access to common resources,” and the like); cf. United Nations Convention on the Law of the Sea, Art. 111(8), Dec. 10, 1982, 1833 U. N. T. S. 396 (requiring compensation for loss arising from the erroneous exercise of a sovereign’s right of hot pursuit), as well as express duties of joint administration that adjoining states undertake by treaty. Sixth, not to apply the Fourth Amendment to the culvert would produce serious anomalies. Cf. Verdugo-Urquidez, 494 U. S., at 278 (KENNEDY, J., concurring). The Court of Appeals’ approach creates a protective difference depend ing upon whether Hernández had been hit just before or just after he crossed an imaginary mathematical border line running through the culvert’s middle. But nothing else would have changed. The behavior of the United States Border Patrol agent, along with every other rele vant feature of this case, would have remained the same. Given the near irrelevance of that midculvert line (as compared with the rest of the culvert) for most border- related purposes, as well as almost any other purpose, that result would seem anomalous. Moreover, the anomalies would multiply. Numerous bridges span the culvert, linking El Paso and Ciudad Juarez. See Chamizal Convention, Arts. 8–10, 15 U. S. T., at 25–26. “Across this boundary thousands of Americans and Mexicans pass daily, as casually as one living inland crosses a county line.” Liss, supra, at 4; Semuels, Cross 6 HERNANDEZ v. MESA BREYER, J., dissenting ing the Mexican-American Border, Every Day, The Atlan tic, Jan. 25, 2016, online at https://www.theatlantic.com/ business/archive/2016 /01 /crossing-the-mexican-american border-every-day/426678/; Brief for Border Scholars as Amici Curiae 21–22 (Fifty-five percent of households in the sister cities cross the border to comparison shop for everyday goods and Mexican shoppers spend $445 million each year in El Paso businesses). It does not make much sense to distinguish for Fourth Amendment purposes among these many thousands of individuals on the basis of an invisible line of which none of them is aware. These six sets of considerations taken together provide more than enough reason for treating the entire culvert as having sufficient involvement with, and connection to, the United States to subject the culvert to Fourth Amendment protections. I would consequently conclude that the Fourth Amendment applies. Finally, I note that neither court below reached the question whether Bivens applies to this case, likely be cause Mesa did not move to dismiss on that basis. I would decide the Fourth Amendment question before us and remand the case for consideration of the Bivens and quali fied immunity questions. See Ziglar v. Abbasi, ante, p. 1; but see ante, p. 1 (BREYER, J., dissenting). For these reasons, with respect, I dissent. Cite as: 582 U. S. ____ (2017) 7 BREYER Appendix , J., dissenting to opinion of BREYER, J. APPENDIX Figure 1. International Boundary and Water Commis sion, United States and Mexico, Relocation of Rio Grande, El Paso, Texas–Ciudad Juarez, Chihuahua, Preliminary Plan (July 25, 1963), Annex to Chamizal Convention, 15 U. S. T., following p. 36, T. I. A. S. No. 5515. Figure 2. President Lyndon Johnson and Mrs. Lady Bird Johnson view the new channel. Associated Press, Dec. 13, 1968.
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-1302 GUADALUPE DIAZ-VELASQUEZ, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: May 7, 2019 Decided: June 25, 2019 Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges. Petition for review granted in part, denied in part, and dismissed in part; remanded for further proceedings by unpublished opinion. Judge Harris wrote the opinion, in which Judge Richardson joined. Judge Quattlebaum wrote a separate concurring opinion. ARGUED: Anser Ahmad, AHMAD & ASSOCIATES, McLean, Virginia, for Petitioner. Paul Fiorino, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph E. Hunt, Assistant Attorney General, Rebekah Nahas, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PAMELA HARRIS, Circuit Judge: Guadalupe Diaz-Velasquez testified credibly that he fled Guatemala after he was threatened and attacked by MS-13 gang members who were attempting to extort his family. Fearing further attacks if he is returned to Guatemala, Diaz-Velasquez now seeks relief, primarily in the form of withholding of removal. An immigration judge and the Board of Immigration Appeals initially rejected Diaz- Velasquez’s application for withholding, finding that he failed to show the requisite “nexus” between MS-13’s threats against him and his membership in a cognizable “particular social group” – here, his family. We vacated the Board’s decision and remanded so that the agency could reconsider its nexus determination in light of intervening precedent counseling against “an excessively narrow reading” of the nexus requirement as applied to gang threats made to family members, Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015). On remand, the Board again found that Diaz- Velasquez could not show the necessary nexus between his family status and the threats to his safety. We conclude that the Board erred in holding that Diaz-Velasquez did not meet the nexus requirement. The record compels the conclusion that at least one central reason for Diaz-Velasquez’s past victimization was his membership in his family, a protected social group under the Immigration and Nationality Act. Accordingly, we vacate the denial of withholding of removal, and remand for further proceedings on that claim. I. 2 Guadalupe Diaz-Velasquez entered the United States without inspection in December 2000. Approximately 11 years later, the Department of Homeland Security served him with a notice to appear, charging him as removable for being present in the United States without proper admission or parole, see 8 U.S.C § 1182(a)(6)(A)(i). Diaz- Velasquez conceded his removability, but applied for withholding of removal under the Immigration and Nationality Act. 1 We begin by summarizing the testimony and evidence Diaz-Velasquez presented at his removal hearing and then outline the legal proceedings that followed. A. Diaz-Velasquez was born in rural Guatemala, where his family owned a small coffee bean farm. When he was 11 or 12 years old, members of the gang Mara Salvatrucha, known as “MS-13,” threatened and attempted to extort his father. Instead of yielding to the gang’s threats, Diaz-Velasquez’s father fled their home. Neither Diaz-Velasquez nor his family knew where his father had fled or even if he was alive. One month after his father’s disappearance, gang members returned and threatened Diaz-Velasquez, who was the oldest remaining male in the family. They gave Diaz- 1 Diaz-Velasquez also applied for asylum and for protection under the Convention Against Torture. As we explained in our previous decision, we lack jurisdiction to review the agency’s finding that Diaz-Velasquez’s asylum application was untimely. Diaz– Velasquez v. Lynch, 622 F. App’x 241, 242 (4th Cir. 2015) (per curiam). To the extent Diaz-Velasquez continues to challenge that determination, we dismiss that portion of his petition for review. We also held in our previous decision that Diaz-Velasquez had waived appellate review of his claim under the Convention Against Torture. Id. at 242 n.. Accordingly, our review here is limited to Diaz-Velasquez’s withholding of removal claim. 3 Velasquez 48 hours to turn his father over to the gang. After the 48 hours passed, gang members kidnapped Diaz-Velasquez on his way home from school, blindfolded him, and threatened to cut off his thumb if he did not tell them his father’s whereabouts. Because Diaz-Velasquez did not know where his father was, he had no answer, and the gang members slashed his thumb, leaving him with permanent scarring and nerve damage. The gang then gave Diaz-Velasquez an additional 30 days to locate his father. Still unaware of his father’s whereabouts and fearful of another attack, Diaz- Velasquez and his mother went to the authorities. They first contacted the town commissioner, who, fearing his own family would be harmed by MS-13, refused to take any action against the gang. Diaz-Velasquez then walked three hours to the nearest police station. Like the town commissioner, however, the police refused to intervene, and instead advised Diaz-Velasquez and his family to “cooperate” with the gang members. J.A. 225. Unable to secure help from the authorities, Diaz-Velasquez stopped attending school and then fled Guatemala altogether, moving first to Mexico and eventually to the United States. Diaz-Velasquez’s family moved away from their hometown but remained in Guatemala, where they continued to live at the time of the agency proceedings. B. To qualify for withholding of removal, an applicant must establish a clear probability that he will be persecuted – that is, his “life or freedom w[ill] be threatened” – in the proposed country of removal on account of one of several protected grounds, including race, religion, nationality, political opinion, or membership in a particular social group. 8 U.S.C. § 1231(b)(3)(A); see also Salgado-Sosa v. Sessions, 882 F.3d 451, 456 4 (4th Cir. 2018); 8 C.F.R. § 1208.16(b). Persecution is “on account of” a protected ground when that ground is “at least one central reason” for the harm faced by the applicant, Salgado-Sosa, 882 F.3d at 457 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). Generally, the applicant bears the burden of showing the likelihood of future persecution. 8 C.F.R. § 1208.16(b). But if an applicant has suffered past persecution on account of a protected ground, then he is entitled to a presumption that he would face similar persecution in the future. Id. § 1208.16(b)(1)(i); see also Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015). The government may rebut that presumption by establishing that circumstances have changed “fundamental[ly]” since the original persecution or that the applicant reasonably could avoid a future threat by relocating to a different part of the proposed country of removal. 8 C.F.R. § 1208.16(b)(1)(i)(A)–(B). Before the immigration judge (“IJ”), Diaz-Velasquez argued that he was entitled to a presumption of future persecution because MS-13 previously persecuted him on account of a protected ground – specifically, his membership in the “particular social group” of his family. The IJ credited Diaz-Velasquez’s account of the gang’s attack and threats against him. Nevertheless, he held, Diaz-Velasquez could not establish past persecution. Diaz- Velasquez’s family qualified as a “particular social group,” the IJ recognized, but Diaz- Velasquez had not shown that MS-13’s threats were the result of those family ties, rather than “an effort to find [his] father so that [the gang] could extort money and land.” J.A. 169–70. Accordingly, Diaz-Velasquez was not entitled to a presumption of future persecution. Nor, the IJ concluded, could Diaz-Velasquez meet his burden of proof by affirmatively demonstrating likely future persecution, given that his family continued to 5 live in Guatemala without incident. In a single-member decision, the Board of Immigration Appeals (“BIA” or “the Board”) affirmed the IJ’s findings and dismissed Diaz-Velasquez’s appeal. With respect to Diaz-Velasquez’s claim of past persecution, the Board agreed that Diaz-Velasquez “did not establish the required nexus” between his membership in his family and the threats against him: Diaz-Velasquez was targeted “as a consequence of the gang members’ efforts to find his father . . . to extort him, not because of their desire to punish [Diaz-Velasquez] because of his membership in his stated particular social group.” J.A. 95. Diaz-Velasquez appealed to this court, and we remanded his withholding claim for reconsideration in light of intervening circuit precedent. See Diaz–Velasquez v. Lynch, 622 F. App’x 241, 242 (4th Cir. 2015) (per curiam). Specifically, we cited our then-recent decision in Hernandez-Avalos, 784 F.3d at 949–50, in which we held that an applicant had shown the requisite nexus between a gang’s threats against her and her family ties and that the agency’s contrary determination was manifestly contrary to law and an abuse of discretion. The agency, we explained, had taken an “excessively narrow” approach to the nexus requirement in the context of gang threats to family members. Id. at 949. On remand, the IJ again found that Diaz-Velasquez could not establish the necessary nexus by showing that his family membership was “at least one central reason” for the gang’s threats against him. J.A. 33–34 (internal quotation marks omitted). Hernandez- Avalos was distinguishable, the IJ reasoned, because that case involved threats against a mother demanding that she turn her son over to a gang, “meaningful only because of her maternal authority” over her son, whereas in this case, Diaz-Velasquez had no authority 6 over his father. J.A. 34 (internal quotation marks omitted). Instead, Diaz-Velasquez “was harmed as a consequence of the gang members’ efforts to find his father to extort him, [] not on account of his membership in his family.” Id. (emphasis omitted). As a result, the IJ again concluded, Diaz-Velasquez did not “benefit from a presumption” of future persecution and instead bore the burden of demonstrating a likelihood that he would be persecuted if returned to Guatemala – which he could not do, because his family had remained in Guatemala for roughly 25 years without “further trouble.” J.A. 34–35. The BIA again affirmed the IJ’s findings in a single-member decision and dismissed Diaz-Velasquez’s appeal. Like the IJ, the BIA found Hernandez-Avalos distinguishable because that case involved threats to a “mother with parental authority and influence” over her son. J.A. 4. Here, by contrast, Diaz-Velasquez was threatened because the gang thought he had information about his father’s whereabouts – a fate that could have befallen any person with information about the father, regardless of familial status. The Board also agreed with the IJ that Diaz-Velasquez did not demonstrate a “clear probability” of future persecution in Guatemala, “[g]iven the absence of harm to similarly situated family members” in the country. Id. Diaz-Velasquez timely petitioned this court for review. II. Because the Board affirmed the IJ’s findings with an opinion of its own, we review both decisions. Sanchez v. Sessions, 885 F.3d 782, 786 n.2 (4th Cir. 2018). We review factual findings under the substantial evidence standard, and will reverse only where “a 7 reasonable adjudicator would be compelled to reach a contrary conclusion.” Cruz v. Sessions, 853 F.3d 122, 128, 130 (4th Cir. 2017). Legal determinations are reviewed de novo. Id. at 128. On appeal, Diaz-Velasquez argues that the BIA erred in denying his application for withholding of removal because he is entitled to a presumption, based on his past persecution, that his “life or freedom would be threatened” in Guatemala. For that presumption to apply, Diaz-Velasquez must establish, first, that he previously suffered harm rising to the level of persecution in Guatemala, and, second, that such harm was “on account of” a protected ground. See 8 C.F.R. § 1208.16(b)(1)(i). Because the IJ and BIA proceeded directly to the “nexus” requirement in rejecting Diaz-Velasquez’s withholding claim, we begin our analysis there. We then turn to whether Diaz-Velasquez’s past harm rises to the level of persecution and to the remaining aspects of his withholding claim. A. Diaz-Velasquez argues that the harm he suffered at the hands of MS-13 was the result of a protected ground – specifically, his membership in the “particular social group” of his family. As the IJ and Board recognized, our precedent makes clear that an applicant’s “family qualifies as a ‘particular social group,’ protected for purposes of . . . withholding of removal.” Salgado-Sosa, 882 F.3d at 457. The dispute here is over the nexus requirement: whether Diaz-Velasquez established that MS-13 targeted him “on account of” his family ties. We hold that the record in this case, measured against our binding precedent, compels the conclusion that family membership was “at least one central 8 reason” why Diaz-Velasquez, and not some other person, was targeted by MS-13, and therefore reverse the agency’s contrary determination. See Hernandez-Avalos, 784 F.3d at 950 (reversing, as manifestly contrary to law and an abuse of discretion, agency determination of lack of nexus because “any reasonable adjudicator would be compelled” to conclude that family membership was one central reason for gang threats); see also Salgado-Sosa, 882 F.3d at 457 (reversing agency determination of lack of nexus because court was “compelled to conclude” that kinship ties were at least one central reason for gang threats (internal quotation marks omitted)). The standard that governs the nexus inquiry is clear and well established. Persecution is “on account of” a protected ground so long as that protected ground is “at least one central reason” for the persecution. Hernandez-Avalos, 784 F.3d at 949 (internal quotation marks omitted). “To prove that persecution took place on account of family ties,” in other words, an applicant “need not show that his family ties provide the central reason or even a dominant central reason” for the persecution; it is enough that family status is “more than an incidental, tangential, superficial, or subordinate reason.” Id. (internal quotation marks omitted). Even where a gang has additional, unprotected grounds for a threat – for instance, recruiting new members into its ranks – the nexus requirement is satisfied if a family connection is one of “multiple central reasons” for the persecution, explaining why a particular person, and not somebody else, has been targeted. Id. at 950. Under that standard, we are compelled to conclude that Diaz-Velasquez’s connection to his father was “at least one central reason” “why [he], and not another person, was threatened,” id., by MS-13. Diaz-Velasquez’s credited testimony establishes that 9 when he was just 11 or 12 years old, MS-13 members kidnapped him outside of school, threatened to cut off his thumb, and threatened to kill him and his family – all because the gang was looking for his father. That familial relationship is the only fact in the record that can explain why the gang targeted Diaz-Velasquez, and not somebody else, in its efforts to find his father – why MS-13 assumed (incorrectly) that this particular school boy might know the whereabouts of the man for whom they were searching, or that its threats might prompt the man to reveal himself in order to protect the boy. On this record, we can conclude only that MS-13 singled out Diaz-Velasquez in order to exploit his kinship connection to his father, and that is enough to satisfy the nexus requirement. See id. (nexus requirement met where gang targeted mother in order to “leverage[]” mother-son relationship). The agency’s contrary determination cannot be reconciled with our precedent. The crux of the agency’s reasoning, both initially and on remand, is the same: The gang members who abused Diaz-Velasquez were motivated not by hostility to his family, but by a desire to find his father so that they could extort him. See J.A. 95 (finding that Diaz- Velasquez was harmed “as a consequence of the gang members’ efforts to find his father . . . to extort him, not because of their desire to punish” Diaz-Velasquez for his family membership); J.A. 3 (finding that Diaz-Velasquez was “seized by gang members who were searching for his father for the purpose of extorting money and land”). But that is precisely the rationale we rejected in Hernandez-Avalos, deeming it an “excessively narrow” reading of the nexus requirement. 784 F.3d at 949. In that case, a mother was threatened by gang members because she refused to let her son join their ranks. Id. at 947. We recognized 10 that recruitment, and not a free-standing grudge against the family, was the gang’s motive. Id. at 950. But that “recruitment motiv[e],” we explained, “did not preclude the existence of another central reason – family ties – for that same persecution,” because it was the mother’s tie to her son that explained why she, rather than another person, was targeted for threats. Id. The same rule applies here: One central reason for the gang’s attacks on Diaz- Velasquez was to find and extort his father, but another of the “multiple central reasons” for the attacks – and the one that led the gang to target Diaz-Velasquez and not somebody else – was Diaz-Velasquez’s “family connection” to his father, id. On remand, the agency attempted to distinguish Hernandez-Avalos, arguing that our nexus ruling in that case applies only to fact patterns in which gangs target family members with parental “authority” over the children in whom the gangs are interested. J.A. 34 (“The [c]ourt [in Hernandez-Avalos] noted that the threats directed to the [mother] to turn her son over to the gang ‘were meaningful only because of her maternal authority over her son’s actions.’” (quoting Hernandez-Avalos, 784 F.3d at 950 n.7)). We cannot agree. The “maternal authority” of the mother in Hernandez-Avalos was relevant as one reason why gang members might rely on kinship ties to advance a gang objective, like recruitment. But there are other ways in which a family relationship may be exploited, as this case demonstrates, and Hernandez-Avalos stands for the broader proposition that there can be “multiple central reasons” for threats against a family member. 784 F.3d at 950. If there were any doubt on this score, it would be resolved by our subsequent cases applying Hernandez-Avalos to threats against family members who do not have parental authority over a gang’s primary target. In Salgado-Sosa, for instance, we held that the 11 nexus requirement was satisfied when the stepson of a man who had resisted MS-13 extortion was targeted to avenge and deter the stepfather’s defiance. 882 F.3d at 457–59. We applied the logic of Hernandez-Avalos, reasoning that although the “immediate trigger” for MS-13’s attacks on the stepson was revenge or greed, the stepson’s family tie to his stepfather was “why he, and not another person,” was singled out, making it “at least one of multiple central reasons” for the gang’s abuse. Id. at 458 (internal quotation marks, alterations, and emphasis omitted). And in Zavaleta-Policiano v. Sessions, 873 F.3d 241, 249–50 (4th Cir. 2017), we expressly rejected the BIA’s efforts to distinguish Hernandez- Avalos, and instead applied it where a daughter was threatened immediately after her father refused to comply with a gang’s extortionate demands. Under our case law, “parental authority” – exercised by neither stepson Salgado-Sosa nor daughter Zavaleta Policiano – is not the key to the nexus inquiry. The agency also suggested that MS-13’s threats against Diaz-Velasquez were not “on account of” his family membership because they “could have been directed at anyone who had information concerning the father’s whereabouts.” J.A. 34. But the question is not whether the threats could have been directed at someone else; it is whether Diaz- Velasquez’s family tie to his father is at least “one central reason” why they were, in fact, directed at him. See Hernandez-Avalos, 784 F.3d at 950. And as discussed above, there is no record evidence that the gang would have targeted Diaz-Velasquez in its efforts to locate his father absent that kinship connection. It is Diaz-Velasquez’s relationship to his father, that is, that explains why he, rather than some other person, was thought to be a promising means of locating the missing extortion victim, and thus singled out for the gang’s abuse. 12 See Zavaleta-Policiano, 873 F.3d at 250 (holding that nexus requirement was satisfied because “Zavaleta Policiano’s relationship to her father is why she, rather than some other person, was targeted for extortion”). “This is not to say,” as we clarified in Hernandez-Avalos, that “every threat that references a family member is made on account of family ties.” 784 F.3d at 950 n.7. In that case, for instance, we found that “[i]t may well be” that a separate threat against the applicant – warning her not to identify gang members to the authorities as the men responsible for killing her cousin-in-law – was not a result of that family relationship, but instead a general effort to stop anyone who knew of the gang’s criminal activities from reporting them. Id. And there likely will be other cases in which a family connection is merely “incidental” or “tangential” to gang persecution, id. at 949 (internal quotation marks omitted), doing nothing to explain why a particular person was singled out by the gang. Here, however, the record compels the conclusion that Diaz-Velasquez’s connection to his father was “at least one central reason” why he, rather than another person, was targeted by gang members searching for his father, id. at 950. Under our precedent, Diaz-Velasquez has satisfied the nexus requirement. 2 B. Our nexus determination does not by itself resolve Diaz-Velasquez’s claim for withholding of removal. First, in order to invoke the presumption of future persecution, 2 At oral argument, the government took the straightforward position that our precedent on this issue is incorrect. But one panel, of course, may not overrule the holding of an earlier panel, United States v. Spinks, 770 F.3d 285, 289–90 (4th Cir. 2014), and we follow the precedent of our court. 13 Diaz-Velasquez must show not only that he has been subjected to past abuse “on account of” his family membership, but also that the past abuse rose to the level of “persecution.” See 8 C.F.R. § 1208.16(b)(1)(i). “To constitute persecution, actions must rise above the level of mere harassment, and must be of sufficient severity that they constitute a threat to life or freedom itself.” Cortez-Mendez v. Whitaker, 912 F.3d 205, 209 n. (4th Cir. 2019) (internal quotation marks and citations omitted). Here, Diaz-Velasquez testified – and credibly so – that he was kidnapped, threatened with death, and physically harmed. That testimony certainly suggests something more than “mere harassment.” See Zavaleta- Policiano, 873 F.3d at 247 (threat of death qualifies as persecution). But neither the IJ nor the BIA has made an express finding on this point, and as a general rule, “the proper course” where the agency has not resolved an issue in the first instance “is to remand to the agency for additional investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) (internal quotation marks omitted). We therefore remand to the BIA to determine in the first instance whether the harm Diaz-Velasquez suffered in Guatemala constitutes persecution. If it does, then Diaz-Velasquez is entitled to a presumption that his life or freedom would be threatened in Guatemala. That still would not close the matter, however, because the government may rebut that presumption by showing either a “fundamental change” in circumstances since the original persecution, or the viability of relocation within Guatemala as a means of avoiding future persecution. 8 C.F.R. § 1208.16(b)(1)(i)(A)–(B). Given the evidence that Diaz-Velasquez’s family has remained in Guatemala for roughly 25 years with no further incident, the government may be able to meet its burden in this 14 case. Again, however, neither the IJ nor the BIA has considered that question: Because both took the view that Diaz-Velasquez was not entitled to a presumption of future persecution, both considered only whether Diaz-Velasquez could demonstrate affirmatively, without the aid of the presumption, a likelihood of future persecution. See J.A. 4 (affirming IJ determination that Diaz-Velasquez “did not establish a clear probability of persecution in Guatemala”); J.A. 34–35 (finding that Diaz-Velasquez “bears the burden of demonstrating that it is more likely than not that he would be subject to persecution on account of a protected ground” if removed to Guatemala and that he cannot meet that burden). So here again, we remand to the BIA to consider whether, assuming the presumption of future persecution applies, the government can rebut that presumption. III. For the foregoing reasons, we grant Diaz-Velasquez’s petition for review with respect to his claim for withholding of removal. The Board’s decision on that claim is vacated, and its determination that Diaz-Velasquez failed to satisfy the nexus requirement is reversed. We remand that claim to the Board for further proceedings consistent with this opinion. To the extent Diaz-Velasquez’s petition for review challenges the denial of his asylum claim, it is dismissed for lack of jurisdiction, and to the extent the petition challenges the denial of protection under the Convention Against Torture, it is denied. PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART, AND DISMISSED IN PART; REMANDED FOR FURTHER PROCEEDINGS 15 QUATTLEBAUM, Circuit Judge, concurring: I concur in the majority’s opinion which appropriately follows Fourth Circuit precedent. In fact, I believe that this panel has no choice but to reverse and remand based on that precedent. See Chisolm v. TranSouth Fin. Corp., 95 F.3d 331, 337 n.7 (4th Cir. 1996). I write separately, however, because I believe that precedent regrettably deprives immigration judges of their proper discretion to make factual determinations on issues like the one before us. We have held that to qualify for withholding of removal, the petitioner must establish a nexus between persecution and a protected ground. See Salgado-Sosa v. Sessions, 882 F.3d 451, 457 (4th Cir. 2018). We have further held to establish that nexus, the petitioner must show that membership in a particular social group is “at least one central reason” for the harm faced. Id. at 459 (citing 8 U.S.C. § 1158(b)(1)(B)(i)). Here, the protected ground at issue is membership in a particular social group—Diaz- Velasquez’s family. Thus, our pivotal question is whether his family was one of the central reasons for his persecution. It is not enough to be an incidental, tangential, superficial or subordinate reason for the persecution. See Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015). ∗ In resolving this issue, we have held that the assessment of a persecutor’s motivation is a question of fact. See Cruz v. Sessions, 853 F.3d 122, 128 (4th Cir. 2017). To that end, ∗ If Diaz-Velasquez establishes that he suffered past persecution on account of his family ties, he is entitled to the presumption that he will suffer persecution if he is returned to his country. 8 C.F.R. § 1208.16(b)(1)(i). 16 we review the immigration judge and the BIA’s determination of this factual question under the deferential substantial evidence standard. Id. That of course means we are to treat the immigration judge’s factual findings as conclusive unless a reasonable adjudicator would be compelled to reach a contrary conclusion. Id. But despite professing allegiance to this standard, in my view, our decisions indicate otherwise. Based largely on our interpretation of the term “central,” we have repeatedly reversed denials of applications for asylum or withholding of removal based on evidence in the record inconsistent with the position that family ties were a central reason for the persecution. Under our precedent, an immigration judge cannot rely on the reason the persecutor articulates for the persecution. See, e.g., Hernandez-Avalos, 784 F.3d at 947; Cruz v. Sessions, 853 F.3d at 126. An immigration judge cannot rely on the fact that threatening notes do not mention family. See, e.g., Zavaleta-Policiano v. Sessions, 873 F.3d 241, 245 (4th Cir. 2017). An immigration judge cannot rely on the triggering event for the persecution. See, e.g., Salgado-Sosa, 882 F.3d at 458. An immigration judge cannot rely on the fact that the family as a whole was not the target. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 127, n.6 (4th Cir. 2011). Perhaps in those cases there was conflicting evidence that family ties were a central reason for the persecution. But the immigration judges who observed the witnesses, reviewed the evidence first hand and based their decisions on information in the record, found otherwise. By reversing those decisions, we have deviated from the standard of review we insist we are applying. The case before us today further illustrates the point. Here, the immigration judge concluded that Diaz-Velasquez failed to establish membership in his nuclear family was a 17 central reason for his past persecution. With the record evidence in view, he concluded that Diaz-Velasquez had no control over his father or his whereabouts and that he was harmed because gang members were trying to find his father, not because of his membership in the family. The judge concluded the same threats could have been directed at anyone who had information about the father. The immigration judge’s determination was based on the evidence in the record. For example, Diaz-Velasquez’s father abandoned his family a month before the incident and Diaz-Velasquez never saw him again. The attack on Diaz-Velasquez was a single event. In the almost twenty-five years following the isolated incident, neither Diaz-Velasquez’s mother or any of his six siblings were threatened or harmed. In fact, they all remained in Guatemala without incident. No other family members were subsequently targeted by gang members in order to find Diaz-Velasquez. Even Diaz-Velasquez’s father relocated within Guatemala and thereafter remained in the country. There is no evidence that he has been harmed either. The immigration judge made a specific finding of fact about the persecutor’s motives, based on the evidence in the record. And based on this evidence, the judge, in my view, could reasonably find that the motivation of the persecutor was to learn the whereabouts of Diaz-Velasquez’s father, information that could be asked of anyone— family member or not—who might know of his location. For that reason, it would be reasonable for the judge to conclude Diaz-Velasquez’s familial relationship was only incidental to that central motivation. Therefore, under the substantial evidence standard, I do not believe we should disturb that decision. 18 Nonetheless, I agree with the majority that our precedent precludes this result. In attempting to distinguish this case from our precedent, the immigration judge erred legally. And because I am constrained by our current precedent, I agree this matter should be reversed and remanded. But we have overstepped our bounds. Our role in these cases is “most narrow, exceedingly deferential, and ‘recognizes the respect we must accord both the BIA’s expertise in immigration matters and its status as the Attorney General’s designee in deportation decisions.’” Menghesha v. Gonzales, 450 F.3d 142, 152 (4th Cir. 2006) (Williams, J., dissenting) (quoting Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir. 1992)). Congress charges the Attorney General with the administration and enforcement of the Immigration and Nationalization Act in this context, and for that reason, “judicial deference to the Executive Branch is especially appropriate in the immigration context.” See I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). Despite our obligation to defer and our recognition of that obligation, our decisions have regrettably done the opposite. With the utmost respect for my colleagues, our recent decisions prevent immigration judges from doing their very important job and make the discretion we claim to afford them an illusion. 19
928 F.2d 398 Watson (Edward), Ballinger (Anne), Watson (Joseph)v.Paul Sims Rare Coin & Precious Metals Brokers, Inc., Coin World NO. 90-1441 United States Court of Appeals,Third Circuit. FEB 07, 1991 1 Appeal From: E.D.Pa. 2 AFFIRMED.
OFFICE OF THE AlTORNEY GENERAL OF TEXAS AUSTIN Bon. ilaokWleah county Attorney Csmexml county 8r~~~rille, Texas Bear 8lr: on the above stat.4 question hae b queetlon amben the taxing.agenoies e t5.M pa& prooeed- ire4 Civil Statutes o? forsoleea delinquent ow arrived at the point havin$ been u) foreolo1~4 upsn ortain .qwetions have arisen with e distrlbwtlon 09 oasb obtaIned ssdrrol'rruahsale. The two method8 ion eontended r0r cub set out in Q4 ftW Said pUmO6S and Wld08ed or better explanation ef the qnstSons "In the partioular trample &dcrr oonsidsm- tion, thore are ten aore of tin4 whloh are taxed by six munioipalfties, to wit: Bbats, Oounty, Wainage MStsiot, Water BUtriOt Wayi- gatson bietriot, aad~Inbepsn4dbntLsohaalD&?&et. Hon. Jack Wleoh, Page 2 The taxes for the State of ?exas County, and the Drainage Distriot are oo ileoted by the County bressor aa Collator, and delinquent tax eult8 for aal4 aaenoiecl are proaeouted by the County Attorney of thirr county. The Watar f$atriotr Navigation MatriOt, an4 Indepsndont Sohool Distriot caoh ha6 It6 own as6elsOr an4 OOlleOtOrl however, them three aunialpalltle~ have employed the same attorney to br9.mg8uit8 for them to oollaot delinquent taxes. "Upon the ten aore Involved tars8 worn delinquent ror 4 period of year% the total tax, penalty, lnterert an4 line ooat ror all agenoies totaling $m, for whloh prinolpal amount ju4gmnt wag taken in Our Dlatriot Court under 8416 Art. 7WSb. The Cmrt in ea%d proceeding fixed an adjudged velue undsr 8ao. 8 of maid ktlole, upon ths aaid ten 4or84 at &OO. The property was rold under order cf sale an4 purchased by the Water Mn- trlot fortha use and bemilt of ttsslt aad all other taxing unite whfsh were parties to z;g suit by authority of Sea. 0 of said Arti- Subsequent thereto, the aaid Water M&lot sold the said property tq a private individual at the pribe ot $BOC, muue be- the edjudged value oi~$Re aald property in 84id roreslceure suit;;.. an4 in add fbreoloaure suit in- oaats In thcarao~t of #lo &me prbvd-, au were ten per oant (1093)Of the tax, penalty, intereat, and line oost, on eamunte due the Water, WavigaCion, and Independent Bohool Mstriato, allowed a8 attorney's feea, whloh amounts were sritten into raid judemnt. Tt ia now the oontention of'the attorney repreaentbingSaid Water, Wtavlgatlonan4 Indo- pendent Bahool Metr;ri~tethat the prcioeedaflmw #aid sale should be dletributed 44 set out in Exhibit Bw snoloeed herewith, $n whtoh the distriot oaurt oosta ooete of inveetltlon, and ten pearoent (14) of the princrtpal4taOUaa Hon. Jaok Kleoh, Page 5 oi tax, penalty) Interest 4ml line 006t, due ths 6614 Wetar titrlot, R6vleatlon Pistrict an4 Independent 86hool M6trlot, 46 attorney6 fees, are deduoted fnm the amount obtained from the sale of eald pro- perty, and pal4 In oa8h, the remainder there- of to be prorated amongrt the varlou6 taxing 4g6nol66, pro rata an4 in proportion to the amounts of their respeotlve tax liens as e6- tablished In 66ld jud@mnt. " ........ Kindly let u6 have the opinion of your otiloe 46 to the proper 4istrlbutlon of pro- oe646 in the 6616 of property under delinquent tu lien foreoloaure. (Art. IS&b). ".W%thrererenoe to our 6e66Ib que6tlon. Art. 9SSe, Revl66d Civil Statute6 of Texa6, 19E5, provl4ee for the tees of the County Attorney ln repreeentlng the &ate an4 County In 411 suits agrln6t delinquent tax payer6 and also 6ets out the oompensatlbn for 6enloe6 ree4red therein by oertaln other oounty offl- The 64iieAat, 46 finally 46mndea In 1931,oertainly was eluotsd by the Leglrlature wlthout having before It Art. 'IMlllb, whloh latter A& w66 not passe4 until the M&h Legla- lature in 1987., “In lnetanees where th6 State inetltutea the prooeedlng under Art. 734Sb, or whm 6m other taxing agenay lMtltISte6 66m6 6nd it 16 oarrled to judgment, there is no.lnoanvenlenoe or dlffloulty in apply- the said Art. 753iZ fo~lo~~t4xlng of tees due the varlow oounty Hover, ln ln6tanoes ln whloh a suit 16 &ought under Art. IS&b by 6am other taxing agenoy and the St6t6~4M Dounty are ia- pleaded 46 part166 deienflant, but before the filing of the tax alaim,for the Btats and County In said duit, the ault 18 4lrml6ee4 at plaln- tiff'6 ooet, It haigbeen th6 oontsntion oi the taxing 6genoles brln@ng 6aYd Suit that th6 fees Jaok Wleoh, PagO 4 due the County Attorney an4 provided for in Art. 7332, & not 4oorue 664 4x-4not payable. Thsrefore, we llaoer6ly request your advloe as to whiiRoounty attorney** fees pro- vided for in Art. 9X31346orue in Suit6 ln- stltuted by tax unit6 UIklOr Art. 9S45b. "tftat6 an4 County are lmpl6a4- and In whloh the e4 a8 partlea defendant, or intervene th6rel.n.* WOquote fhdiOB6 5I;6, 0 ut4 th6 flmt pclragnph of Seotion 9 of Artlale 7MZlb, Vomona Clvll Annotated 6t4tutes 46 r0mtt: aeo. 5. bon the trial of 6414 oauae the Court 6hhallhear OVld~OO upon the r~aon- able fair ralue of the prop6rty tad ah611 inoorporat6 In its ~u4gIWat a findlna of th6 ma6anabl6 fair value thereof, la bulk or ln pamel6, either or both, a6 the Court my deem proper, whloh reaoonable felr value 60 round by th4 &Ul't 16 hereafter 6~6timO6 Stylsd ‘adjudged whet, whloh ta4du4ge4 v41uet 6hdll be the value an of the date ~of the trial an4 shall not neoesearlly be the value at the tiau, the 466e66ment of th4 tax60 was naae; provfll- 64, that the burden of proof shall be on the owner or ownare of euoh propsrty In 44tablirh- ing the Yalr valuet or a4judged WSue 46 pro- vld64 in thfe 6e0tlon md, provided further that thi6 SeOtiOn Shall. Odly apply to tax66 whloh are delinquent for the year lQS5 6nd prior yearn. '8'30.5. dll OOUPt OOSt6, ~inOludiI@ OOStit of aenlng proos66,~In any suit hereafter brought by or inbehalf of any taxing unlta for 4ellnquent taxes in whloh suite all other tax- ing unite having a delfnquent tat alaim again6t suoh prttpertyof any pati thersof,'he??ebeen impleaded, to&ether with all sxp6n666 of fore- oloaure 6616 an4 suoh re66onable 4ttOPAOy'S foes aa may be lnourred by the lnterpl6a&6a or interveni~ taxing wilts, n& 6xoee41 ten per oq (I@$? of the aemunt cued for, 6u0 "& attor- ney 6 fees to be aubjeat ta @o appreaf. of the oourt t0g6ther wlth 6uoh r6asoaabUt exp6n666 a6 the trring U&t6 may ln0ur in'progUti~@ data and lnrorm4tlon 46 to"&6 name, ldwiti~ty and hOatiOn of n600tJ64~ p4rtl46 and in ppoouring Hon. Jaok Wieoh, Page 5 neoesearp lo&al de6oriptions of the property, Shall be ohargeabls a6 00Urli006tS. "800. 0. 110JWQH'ty sold iOr tan6 under deoree in auoh suit shall be sold to the owner of said property, dlmotly or ln- dlreotly, or to 4nyono having 4n Interest th4reln, or to any party other than 4 taxlw unit vhrhichie a party to the suit, ior lees than the amount O? tb adjudged value afOre- said Of said property or the aggregate amount of the judgments a@nst the property In sail: suit, whlohever 16 l.cnrer,and the net proo4eda or any 44le or Suoh proJrrrtymad4 under de- ortttt Of OOUX% ln Sal6 4Ult t0 any p4rfy other than any auah taxing unit shall belong an4 be distributed to all taxing units whioh are parties to the suit whloh by the judgment ln said eult hava been found ta have tat liena againat 8uoh property, pro rata and in propor- tion to the amount8 of their respeoti?e tax 1lens a6 e6tabllehed in said judgment, but any ex8ea6 in the pmOttOd6 of sale over an4 above the amount neos6aary to defray the oost6 of Wit and sale and other expsn606 herein- above made ohargeabl4 against euoh prO46ed6 and to fully dlsoharge th4 judgment6 ag4ln6i 64ld property, 6ba11 be paid to the parties legally tntltlsd to such ex0466. YTeo. 9. If the property b6 tmld to any taxing unit whloh in 4 party to the juhgi, Psentunder tleoreeof oourt In said cult, the title to eeld property 8ha3.lbe.bld In and hold by the t4xi.w ,unl$$urohasing 6am6 for the US6 ': ;-e~;t k&4 &.w+&, ?@$6 tildi tire’pdrtlefi to ~the’btit taxing uti and whioh have been atYjud%edIn salt suit to have tax 1lene against Such progsrty, prC rata and in proportion to the amaunt of the tax liens in favor of said resp4otivs taxing units a6 eatabllehed by ths judgment in said suit, ancl cost8 and 4xpen646 shall not be payable until 6414 by suoh taxing unit 40 purch46lng 64me an4 euoh property 4ha11 not be &sold by the taxIn& unit purohas$ng 6am8 far leas than the adjudged value thorsof or ths amount of $he juU&leentaag6lz.M the pro- perty in 64ld 'i&t, WhiOh4VOr is 1CW4r, with- lion. Tack Wieah, rage 6 out the written consent of al1 taxing units whioh In said jubgmnt have been found to hav4 tax 1141~ against such propsrty; and wh4n such property is so1a by the taxing unit pumharlng earn, ths proo~~edethemof 4haU bet r4t34iv4aby it r0r aacount of lt- self and all other oadd taxlug units ad- jtiged In said suit to have a tax ll4n a@nst suoh property, and after paylng all ooets and expenses, shall bs distributed among euahtaxiw units pro rata and in pro- portion to the amount of their tax lisns against suoh proparty as established In said ju&fn4nt. Consent in behalf of the Stat4 of T4xat1 under thls Ssotion of this Aot may ba given by the County Tax Collector of the oounty in whloh the propsrtp is loaat- 46." Art1014 mse, V4rnon's Civil Statutes, proease that th4 oountp dr dlstriot attorner shall mpremnt the Btate aad oount]r”ln all suits 4galnst dellnqusnt tax pay- 4rs and Ueflnlteiy provid4r asrtain t44a forth4 oountp or distriot attorney for th4 servioss named therein. W4 quote rrm this art1014 as follows~ 0....Provlded. that the rses herein pro- vided for ia oonneotlon with asUnq,uent tax suite shall ometltute th4 only fess that shall be oharged br said 4ffloer4 for prrpar- $3~3,fillrig,lnatltuting, aud proseoutlag suits on delinquent tax4s and seourlug ooll4etlon thereof, au4 all laws ia oonfllot herswlth ar4 hereby rep4al46. ay t~I~h~~~~e,,'~~~'~~~~~~~~~~~~~t taxes for &hioh he Is Uable, togsther with admu- 4d fut4rset after the rlllng of suit berore~judg- mont Is taksn ageinst him inth4 oaae, then, only one-half ot the $444 taxable in suoh a ease, as provided ror herein, shall be charged against hlm....." Art1014 7555, Varona Civil Gtatutae, xeads as r0lm4: In eaoh ,easesuoh f4es shall be taxed as 409 Hon. Jaok Wiech, page 7 oorts against the land to be sold uuder Judg- mnt far tsxas, and paid out of~the proowds of sale or same after th4 taxe8, penalty anu lntersst duo th4raon ar4 paid, and in no oas4 shall the State or oounty b4 1labl.ether4ror." By Geotlon9 of Art1414 7ZWb, supra, the beis- lature ha8 ep4oifloally pmv%dsd that all oosts an4 4x- p4ns4s In the suit under this statute shall be paid prior to the agportlanment to th4 various taxing units of th4lr rwpeotlve shams and prw44d8 froa the tax sal4. It IS oalled to your attsntlon, however, that ths oosts and 4x1 p4neea Inourmd In such a tax suit are not payable Wtll titer sa1.eof the property Is made by th4taxlng unit whl4nkpurohasad ths sam at the original sal4. In S4otlon 9, supra, the &$iirrhltUXWepsclfdoally provld4d “and oosts and sxpenses shall not be papble until sale by suoh tax- ing unit 40 pumhasfng sane, Hone of the oourt oosts or axpmaes naa be paid until after the property has beea sold by the taxing unit whloh pumhassd the mm4 In th4 flxst sa14 and artsr tad sale, mid oosts ar4 to b4 paid ilret out or the prooseds or auoh sale and th4 balanos or the proaeads or suah sals, after all oosts an& exp4ns44 hata been paid, mu& ba distributed to all taxing unite whleh am partiss to th4 suit whioh by the judgment In said suit have ba4n found to hava tax llemagalnst said property, pro rata, and in proportion to ths miauntsor their m- apeotlvetax liens 88 4stablished In said Judgamnt. Geotlond of &%I014 IMlib, supra, deals with what my be allowed as oourt oosts. 80 whirs in thls s40- tlon does It provide that ta*ing units shall pay an attor- n4y.s is8 of 106 Furthsrmors, no where in this seotlon Is it provided that lO$ puy be ohargtsdIn every ease as oourt ooets for attorney's t448. It 16 provldsd, hou4v4r, that such reasonable ieea as rpalr bs inaurma by tba inter- pleader or intarvsnillg tax143 units and not 4xeerdlng lO$ 0r th4 amount 4~44 ror, may b4 ohargcrd. In other WOF&B, If a taxing unit oontmmted with an attornsy to pap him a% for his 44rvl440, th4n only this 5!8would bs ahargeable as oourt oosts bsoaum that would be the tsaaonablm~attor- ney's reee that would bs lnourred by that partlaularlnter- pleader ar intervening taxing unit. Hrm4ver, It that 88184 taxing al~trlct oontraots with an attormy to pap hla,23% Eon. Jack Wleah, Page 8 es his attorney's f4.;e,Only 10s Of that em0ur.twould be chargeable as court coete. To bear this out ie tfiefact that the .:4tdoes not provide fcr lO$ attorney's feea In evary oaee but providea for the allowanoe of attorney's retie a8 inourrad not exceeding 10$, While Ysotlon 6 of Artiole 7345b, eupre, appliee to all taxing unite, it is evident that the part whioh refers to attornsy'e faae se court costs dcee not apply to the oountg or dietriot attorney. This is true beoauee thie aaction reeds, in pert, ae follows: '...Suoh reaeonable attorneyPa fees as incry be incurred by the interpleader or intsr- venlng taxing unite....w The partlouler language..above quoted shows tha leglelatlva Intention that the same shall not apply to the county attorney'e is4 or dietrlot attorney's reee b4oaue4 of the raat that the State and oounty er4 prohibited by Astlole 7333, eupra, from inourring any attorney’s fee. Tha fess of the oounty or district attorney are eet out by Article 733Z, eupra.,and in no oae4 may the State or county be liable for the earn4under Artlale 7333, supra, whloh article also requires that said fee be charged a8 court oosts. In anewer to your eeoond qusetion you are reepeatrully edvisad that it is the opinion of this Ds- partmsnt that the dietriot or oounty attorney is not 4n- title&to the fees provldsd by Arti 7352, eupre, in tax euite f+l$edunder Article 7345b, by a taxing unit other then the State end oounty where the dletriot or county attorney does not file an answ4r or olalm for the State and oountp. Fee8 are primarily allowed ior some epeoifio service preformed end where no service la rendered no r44 oen be oharged or allowed unless epeclfioally auth- oriaed by statute. Trusting that the foregoing fully anawere your inquirk; we remain Very truly yours ATTORWEY 0EWERA.L OF TEXAS AW:AW
23 Ill. App.3d 758 (1974) 320 N.E.2d 90 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS HAWKINS, Defendant-Appellant. No. 59896. Illinois Appellate Court First District (5th Division). October 11, 1974. 759 James J. Doherty, Public Defender, of Chicago (Saul H. Brauner, Assistant Public Defender, of counsel), for appellant. Bernard Carey, State's Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State's Attorneys, of counsel, and Susan Vitullo Walters, Senior Law Student), for the People. Judgment affirmed. Mr. JUSTICE LORENZ delivered the opinion of the court: After a bench trial defendant was found guilty of the armed robbery of Dorothy Mae Carter and was sentenced to a term of not less than 8 nor more than 16 years. On appeal his sole contention is that he was denied effective assistance of counsel. On April 28, 1972, at approximately 8 P.M., complainant was robbed at gun point of her purse and radio by two men as she was walking near her home at 6517 South Harvard Avenue. The street lights which were on although it was not yet dark afforded her a view of defendant's face for a couple of minutes. She reported the incident to the police that night. On the evening of April 29, 1972, Chicago Police Investigators Paul Praski and Thomas Morley arrested defendant in connection with an unrelated robbery as he was walking with a companion in the vicinity of 65th Street and Harvard Avenue. Coincidentally, complainant was walking with her nephew on Harvard Avenue at the time of the arrest and recognized defendant. She did not approach the investigators, who were in civilian clothes, because she was unaware that they were police officers effectuating an arrest. She did, however, return home and called the police to report sighting her assailant. Later that night she was taken to the police station where defendant was being held on the unrelated charge.[1] She identified defendant in the lineup of six men. Defendant testifying in his own behalf denied the charge of armed robbery and offered an alibi. He further testified that complainant at 760 first shook her head no at the lineup, but after conferring with the police officer present she made the identification. OPINION Defendant contends that he was denied his constitutional right to effective assistance of counsel and he cites as evidence of incompetency and lack of diligence his counsel's failure to make a motion to quash the arrest, failure to object to the admission of the lineup photographs into evidence and failure to make pretrial motions for discovery and a list of witnesses. Defendant admits that he retained his counsel, but argues that a determination of adequate representation based on the distinction of whether counsel was court appointed or privately retained is a denial of equal protection of the law. 1, 2 It is true that Illinois decisions have in the past reviewed a defendant's claim of ineffective assistance of counsel by utilizing separate and distinct tests based on whether counsel was privately retained or court appointed. (People v. Morris, 3 Ill.2d 437, 121 N.E.2d 810.) However, recently, and in our view properly, it has been held that the constitutional right to a fair trial may not be subject to such an artificial distinction; that while no test can be formulated which will, in advance of close scrutiny of the trial record, furnish a definitive checklist of what is needed to sustain a defendant's assertion of ineffective assistance of counsel, the requisite standard is the same in both instances the incompetency of trial counsel must not be of such character as to reduce the trial to a farce. See People v. Long, 12 Ill. App.3d 974, 298 N.E.2d 784; People v. Ortiz, 22 Ill. App.3d 788, 317 N.E.2d 763. 3 Turning to defendant's particular claims, it is first argued that his counsel should have made a motion to quash the arrest since there was insufficient evidence to warrant it and no evidence of an arrest warrant. The record does not support this contention. The record indicates only that Investigators Praski and Morley were investigating a prior, unrelated robbery of an individual on the street and that they had been informed the previous day that an accusation had been made against defendant. Without evidence in the record to the contrary, it appears that there was probable cause for defendant's arrest without a warrant. (Ill. Rev. Stat. 1971, ch. 38, par. 107-2(c); People v. Wrona, 7 Ill. App.3d 1, 286 N.E.2d 370; People v. Taylor, 6 Ill. App.3d 343, 285 N.E.2d 489.) Under such circumstances, his subsequent detention for the armed robbery charge in the instant case was proper. (People v. Abrams, 15 Ill.2d 178, 154 N.E.2d 240; People v. Brown, 354 Ill. 480, 188 N.E. 529.) A motion to quash the arrest would therefore have been without merit. The gist of defendant's next argument is that his counsel was incompetent for failing to object to the in-court and out-of-court identification *761 procedures. It is asserted that the lineup at the police station, as exhibited by a photograph introduced into evidence, was suggestive and therefore led to a constitutionally inadmissible identification under the Wade-Gilbert-Stovall doctrine.[2] The evidence in the record disputes this contention. The six participants in the lineup were all Negroes, and with one exception, approximately the same height, build and skin tone. All six individuals wore their hair short and three of those had mustaches. We find the composition of the lineup fundamentally fair. 4 Moreover, there is no violation of due process where the in-court identification has an origin independent of the pretrial lineup. (People v. Harris, 46 Ill.2d 395, 263 N.E.2d 35.) In the instant case, the complainant viewed defendant's face in the light of a street lamp for a couple of minutes during the robbery. The following evening she recognized him as he stood on the street with the police investigators. Such observations provide an ample basis for the in-court identification, independent of the pretrial lineup. Finally, it is argued that defense counsel's failure to make pretrial motions for discovery and a list of witnesses evidence a lack of diligence. Defendant asserts that the lack of defense counsel's preparation denied him effective assistance of counsel. 5 The record discloses that defendant's attorney conducted a thorough cross-examination of the State's witnesses and introduced testimony by defendant which if believed, would have required defendant's acquittal. Defendant's entire defense rested upon the credibility of his alibi testimony in comparison with complainant's in-court identification of him as her assailant. For this reason, little significance can be placed on his attorney's failure to file discovery motions. (People v. Horton, 117 Ill. App.2d 465, 254 N.E.2d 666.) Moreover, the indictment returned by the grand jury listed the State's witnesses and the record does not reflect that their testimony at trial came as a surprise to defendant or his counsel. It cannot be said that defendant's attorney was unprepared to the substantial prejudice of defendant. See People v. Travis, 10 Ill. App.3d 714, 295 N.E.2d 325. We conclude that defendant was not denied his constitutional right to effective assistance of counsel and affirm the conviction. Affirmed. SULLIVAN, P.J., and BARRETT, J., concur. NOTES [1] Following the entry of sentence in the instant case, defendant pled guilty to armed robbery in an unrelated indictment and was sentenced to 8 to 16 years to run concurrently with the sentence imposed here. The record does not make clear whether that charge and subsequent conviction related to this arrest. [2] United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926; Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951; Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967.
826 So.2d 457 (2002) Jason S. LEE, Appellant, v. STATE of Florida, Appellee. No. 1D01-3097. District Court of Appeal of Florida, First District. September 12, 2002. Nancy A. Daniels, Public Defender, and Anne H. Dunlap, Assistant Public Defender, Tallahassee, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and James W. Rogers, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we agree that no reversible error occurred. We affirm the appellant's revocation of probation and imposition of judgment and sentence. However, we note that the corrected written order of revocation of probation does not conform to the oral pronouncement, an issue preserved for review by a timely motion under rule 3.800(b)(2). While the transcript of the hearing of revocation of probation shows that Appellant admitted violating only conditions (11) and (12) of his probation, the first paragraph of the written order of revocation of probation states that Appellant also admitted violating conditions (5) and (7) of his probation. An order of revocation of probation should conform to the trial court's oral pronouncement, and if it includes violations of conditions which were not addressed at the hearing on the violation of probation, those violations should be stricken. See Salvatierra v. State, 691 So.2d 32 (Fla. 3d DCA 1997); Narvaez v. State, 674 So.2d 868 (Fla. 2d DCA 1996). We therefore strike the language stating that Appellant violated conditions (5) and (7) of his probation and remand for entry of a corrected order. See Walker v. State, 686 So.2d 758 (Fla. 1st DCA 1997). Appellant need not be present. AFFIRMED. ALLEN, C.J., and BOOTH and BARFIELD, JJ., concur.
537 U.S. 1023 BAZANTEv.UNITED STATES. No. 02-6787. Supreme Court of United States. November 12, 2002. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. 2 C. A. 11th Cir. Certiorari denied. Reported below: 37 Fed. Appx. 505.
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170 Cal.App.2d 145 (1959) THE PEOPLE, Respondent, v. ALONZO CHARLES SPENCER, Appellant. Crim. No. 1413. California Court of Appeals. Fourth Dist. May 4, 1959. Alonzo Charles Spencer, in pro. per., and Manuel L. Kugler, under appointment by the District Court of Appeal, for Appellant. Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and S. Clark Moore, Deputy Attorney General, for Respondent. SHEPARD, J. Defendants Alonzo Charles Spencer, John Henry O'Neal and Phillip O'Neal were charged in Count 1 of the information with a violation of Penal Code, section 182 (conspiracy to commit the crime of forgery), on July 6, 1958. Said count alleged four overt acts but before trial overt act Number 4 was dismissed on motion of the district attorney. By the second count of the information they were charged with a violation of Penal Code, section 470 (uttering a forgery), on or about July 7, 1958. By the third count of the information they were charged with a violation of Penal Code, section 470 (uttering a forgery), on or about the 8th day of July, 1958. Defendant Alonzo Charles Spencer was charged with having, prior to the date of the offenses alleged in the information, been convicted of six separate felonies: (1) house breaking in South Carolina in 1943; (2) house breaking and larceny in South Carolina in 1943; (3) 147 house breaking and larceny in South Carolina in 1943; (4) assault and battery with a dangerous weapon in Massachusetts in 1950; (5) armed robbery in California in 1953; and (6) grand theft in California in 1953. Defendant Spencer admitted the three prior convictions alleged to have occurred in Massachusetts and in California, but denied the three prior convictions alleged to have occurred in South Carolina. Upon the conclusion of the trial the jury found defendant Spencer guilty of all three counts charged in the information, and further found that the allegation as to the three prior convictions which had been denied were true. Defendants John Henry O'Neal and Phillip O'Neal were each found guilty on Count 1 (the conspiracy charge) and of Count 3 (uttering a forgery on July 8), but the O'Neals were acquitted on Count 2 (uttering a forgery on July 7). Thus, the defendant Spencer stands convicted on the count of conspiracy, on both counts of uttering a forgery, and with six prior felony convictions. Defendant Spencer alone has appealed. The attorney for appellant has filed a report with this court stating that he had reviewed the record and his own memory of the whole proceeding, and that he has found no reversible error in the proceedings. The defendant on his own behalf has filed a brief in which he contends that the court committed prejudicial error in five different respects. [1] The first contention apparently is that the information is insufficient to charge the crime of conspiracy. We have examined Count 1 of the information carefully and if this is, in fact, defendant's contention it is without merit. The count in general substance charges the three defendants with "Conspiracy to Commit the Crime of Forgery ... on or about the 6th day of July, 1958, at the said County of San Diego, State of California, and before the filing of this information did wilfully, unlawfully and feloniously conspire, combine and agree together to commit the crime of Forgery, a felony"; Thereafter follow the allegations of the three overt acts retained for trial purposes, the quotation of the first of which will serve to exemplify all three. It states: "That thereafter, at and in the County of San Diego, on or about the 7th day of July, and in the pursuance of the object of said conspiracy, the said Alonzo Charles Spencer went to the Bank of America National Trust and Savings 148 Association, Main Office, San Diego, California, and attempted to pass a check"; It is clear from the foregoing that the language of the information gave to the defendant a clear and concise information as to what he was charged with, and sufficiently followed the charging requirements of Penal Code, section 182. [2] The second contention of the defendant is that Count 3 of the information failed to show the existence of forgery or fraud. Said count of the information reads as follows: "And the said Alonzo Charles Spencer, John Henry O'Neal and Phillip O'Neal are further accused by the said District Attorney of the County of San Diego, State of California, by this Information of the crime of Uttering a Forgery (PC 470) committed as follows: The said Alonzo Charles Spencer, John Henry O'Neal and Phillip O'Neal on or about the 8th day of July 1958, in said County of San Diego, State of California, and before the filing of this Information, did unlawfully and fraudulently utter, publish and pass as maker thereof, knowing that said check was false and forged, with intent to defraud Victor Petriks, and the Bank of America National Trust and Savings Association, La Jolla Branch, La Jolla, California, a national banking association;" A reading of this shows that the appellant was informed that he was charged with the crime of uttering a forgery. He was told the names of the people that he tried to defraud, the date of the offense, the fact that the check was false and forged, and that he did unlawfully and fraudulently utter the same. An examination of the transcript of the trial shows that the district attorney in his opening statement identified the check as one uttered by John Henry O'Neal in the amount of $650 on July 8. It was identified by several witnesses, placed in evidence, referred to by defense counsel for all defendants, and not once was any question raised about the sufficiency of said Count 3 of the information. From an examination of the entire record it is beyond question that defendant, both through his attorney and personally, fully understood with what crime he was charged and what check was identified to which count of the information. We are unable to see that the typographical deficiency caused the slightest misapprehension on the part of the defendant or in any other way prejudiced him. (Pen. Code, 960, 1404; People v. Haagen, 139 Cal. 115, 116 [2] [72 P. 836]; People v. Williams, 27 Cal.2d 220, 226 [3] [163 P.2d 692].) 149 [3] Defendant next contends that he was unlawfully compelled to be tried before a jury in that he waived trial by jury so that he could be tried by the judge sitting without a jury. While it is perfectly true that a trial by jury may be waived in criminal cases by the consent of both parties, an examination of the record in this case shows that the district attorney refused to waive trial by jury. It is necessary for a waiver of trial by jury to become effectual for the defendant, his counsel and the district attorney to all consent. (Cal. Const., art. I, 7; People v. Barnum, 147 Cal.App.2d 803, 808 [7] [305 P.2d 986]; People v. Garcia, 98 Cal.App. 702 [277 P. 747]; People v. Eubanks, 7 Cal.App.2d 588, 589 [1] [46 P.2d 789].) Defendant next contends that the district attorney made improper statements to the jury. We have examined all of the specifications in this respect and we can find nothing in any them that even remotely resembles impropriety. In addition thereto, we have examined the entire record and we nowhere find any statements by the district attorney which in our opinion constitute prejudicial misconduct. [4] Next the defendant contends there were inconsistencies in the testimony and cites conflicts between the defense testimony and the prosecution testimony. As we have said many times before, where the evidence is conflicting, the decision of the trial court on matters of fact will not be disturbed. This court cannot weigh the evidence. (Buckhantz v. R. G. Hamilton & Co., 71 Cal.App.2d 777 [163 P.2d 756]; Burrows v. Burrows, 18 Cal.App.2d 275 [63 P.2d 1135]; Berniker v. Berniker, 30 Cal.2d 439 [182 P.2d 557].) [5] Next the defendant contends that defendant was denied a fair trial because counsel for defense and prosecution at times conferred with the judge privately out of the hearing of defendant and out of the hearing of the jury. Some of these conversations appear in the record and some do not. Those that do show in the record show affirmatively that nothing was said which could possibly prejudice the defendant. Furthermore, all were out of the hearing of the jury and could not have prejudiced the defendant in any event. The defendant has not suggested to us how he might have been prejudiced. Defendant's attorney was present at all times and it is apparent from reading the entire record that he was assiduously and alertly protecting the rights of the defendant. The burden is on the appellant to show any prejudice 150 resulting to him. (People v. Isby, 30 Cal.2d 879, 894 [13] [186 P.2d 405]; People v. Justice, 167 Cal.App.2d 616, 623 [7] [334 P.2d 1031].) [6] The next contention contains the suggestion that there was an alternate juror who retired with the jury to deliberate. The record does not support this suggestion in any way, and we cannot consider matters which the record does not support. (People v. Hernandez, 150 Cal.App.2d 398, 402 [2b] [309 P.2d 969]; People v. McKinney, 152 Cal.App.2d 332, 336 [7] [313 P.2d 163].) This court has been at pains to read the entire record of this case and it appears to us therefrom that defendant was represented by alert and conscientious counsel, that he was accorded a full and fair trial, and that the evidence, although partially circumstantial and conflicting, was amply sufficient to support the verdict of the jury and the judgment of the court. The judgment is affirmed. Griffin, P. J., and Mussell, J., concurred.
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 18-BG-1034 IN RE SEAN K. HORNBECK 2018 DDN 76 A Suspended Member of the Bar of the District of Columbia Court of Appeals Bar Registration No. 460597 BEFORE: Beckwith, Associate Judge, and Nebeker and Ferren, Senior Judges. ORDER (FILED – December 20, 2018) On consideration of the certified order disbarring respondent from the practice of law in the state of Tennessee after he indicated that his disability had abated; this court’s October 5, 2018, order suspending respondent and directing him to show cause why reciprocal discipline should not be imposed; and the statement of Disciplinary Counsel; and it appearing that respondent did not file a response to the court order or the required D.C. Bar R. XI § 14 (g) affidavit, it is ORDERED that Sean K. Hornbeck is hereby disbarred from the practice of law in the District of Columbia. See In re Sibley, 990 A.2d 483 (D.C. 2010); In re Fuller, 930 A.2d 194, 198 (D.C. 2007) (rebuttable presumption of identical reciprocal discipline applies to all cases in which the respondent does not participate). It is FURTHER ORDERED that for purposes of reinstatement respondent’s period of disbarment will not begin to run until such time as he files a D.C. Bar R. XI, § 14 (g) affidavit. PER CURIAM
333 F.2d 426 AMERICAN STEAMSHIP COMPANY, Libelant-Appellant (Cross-Appellee),v.The GREAT LAKES TOWING COMPANY, Respondent-Appellee (Cross-Appellant). Nos. 14350, 14351. United States Court of Appeals Seventh Circuit. May 22, 1964, Rehearing Denied June 17, 1964, CertiorariDenied Oct. 26, 1964, See 85 S.Ct. 160. Fenton F. Harrison, Buffalo, N.Y., Palmer C. Singleton, Jr., Hammond, Ind., Coffey, Heffernan & Harrison, Buffalo, N.Y., Fenton F. Harrison, Buffalo, N.Y., of counsel, for American Steamship Co. Harney B. Stover, Jr., and Harney B. Stover, Milwaukee, Wis., Stover & Stover, Milwaukee, Wis., Peters, McHie, Enslen & Hand, Hammond, Ind., of counsel, for Great Lakes Towing Co. Before HASTINGS, Chief Judge, and CASTLE and KILEY, Circuit Judges. KILEY, Circuit Judge. 1 The questions raised are whether the district court erred in deciding respondent tug company was solely liable for negligence in causing damages to libelant's steamer, the Detroit Edison, and whether the court erred in applying respondent's tariff to limit alleged damages of $91,044.20 to the sum of $1,837.50. We hold the decision on liability was not erroneous, but that the court erred in deciding respondent's pertinent tariff provisions were valid and in limiting recovery accordingly. 2 The tug Montana, on May 23, 1961, was engaged by libelant to tow the Detroit Edison from a berth in the Indiana Harbor canal to Inland Steel Company's #4 dock in the Indiana Harbor Basin. Detroit Deison's own engines, aided by the Montana, moved her to the center of the canal. The Montana alone initiated the Detroit Edison's movement astern, working her starboard bow. She was pushed astern from the canal into the basin. The problem then was to move her 2,200 feet across the basin to the dock opposite the mouth of the canal. This required a turning (winding) maneuver of 90 degrees so that the Detroit Edison would be landed in her new berth parallel to the dock. Although the weather was good, the maneuver failed, Detroit Edison's rudder hit a wooden spile cluster near the concrete dock and was damaged. 3 The conclusion of negligence was based on ultimate fact findings that the tug Montana, in furnishing the sole motor power for the movement, gave the Detroit Edison 'too much sternway,' selected and indicated an unsafe course across the basin for approach to the #4 dock, and permitted the stern of the Detroit Edison to come too close to the dock before attempting to move her parallel for a landing. 4 There was testimony from which the district court could reasonably infer that the Montana's captain, who had knowledge of the basin and had undertaken the admittedly cooperative movement with one tug, negligently failed to begin the winding maneuver in time; that this negligence created an emergency in which the steamer's master, until then relying on the seamanship of the Montana's captain, to avoid collision ordered the steamer's engines ahead in gradual acceleration and signalled the Montana to bring the steamer's 'bow up'; and that the Montana's response was too late to complete the maneuver safely. 5 Cross-examination of both the master and captain developed some inconsistencies and contrarieties, but these presented credibility judgments for the district court and not for us. There is substantial evidence to support the district court's findings and they are not clearly erroneous. We have considered the entire evidence and are not left with a definite and firm conviction that a mistake has been made. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954), United States v. M/V Martin, 313 F.2d 851, 852 (7th Cir. 1963). The conclusion based on the findings is not erroneous. 6 Libelant contends that Articles 11 and 161 of respondent's tariff are invalid as contrary to public policy. Article 16 purports to limit respondent's liability for damages to $1,000 in cases of asternway movement by one tug, and Article 11 purports to limit respondent's liability for demurrage during repairs to $100 a day. Escalation provisions are provided in each article so that if the tow gives respondent prior notice and pays an additional fee respondent's liability will be increased-- $1,000 of additional liability for damages and $100 of additional demurrage for each additional fee increment of five per cent. 7 The limitation in Article 16 appeared first in 1956, and since its promulgation no customer had ever availed itself of the escalation provisions; nor had any customer availed itself of the escalation provisions of Article 11. When the tariff was published, libelant took exception to Article 16, reserving its right to question the ultimate legal effect of the limitation. To avail itself of the escalation provisions related to the damages at issue in this case, even if they could be anticipated, libelant demonstrated that the tug charges for the tow would have been increased almost six times-- to $1,798.03.2 8 In a number of recent admiralty cases the Supreme Court has laid down a strong policy against clauses attempting to release wrongdoers from the effects of their negligence. In Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (May 16, 1955), the Court held, on public policy grounds, that a towage company cannot release itself by contract from all liability for its negligence causing damage to its tow. The same day the Court in Boston Metals Co. v. The Winding Gulf, 349 U.S. 122, 75 S.Ct. 649, 99 L.Ed. 933, struck down a clause in a towage contract which provided the master and crew of the tug would be servants of the tow and not responsible for negligent towage. And in April, 1963, the Supreme Court, per curiam, 'adhered to the rule laid down in Bisso and Winding Gulf' and invalidated an indemnification clause in a towing contract reached after arm's length bargaining. Dixilyn Drilling Co. v. Crescent Towing & Salvage Co., 372 U.S. 697, 83 S.Ct. 967, 10 L.Ed.2d 78. 9 It is true that in Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411, 421, 79 S.Ct. 1210, 1217, 3 L.Ed.2d 1334 (1959), the Court stated: 10 'We hold that the Court of Appeals correctly ruled that the exculpatory clause here at issue should not be struck down as a matter of law, and that the parties should be afforded a reasonable opportunity to obtain from the I.C.C., in an appropriate form of proceeding, a determination as to the particular circumstances of the tugboat industry which lend justification to this form of clause, if any there be, or which militate toward a rule wholly invalidating such provisions regardless of the fact that the carrier which seeks to invoke them is subject to prospective and retrospective rate regulation.' 11 The Court refused 'automatically to extend the rule of Bisso' to Southwestern Sugar because Bisso did not involve 'a pervasive regulatory scheme.' The tariff before us, as in Bisso, was not subject to regulation by public authority.3 And Justice Harlan, who wrote the majority opinion in Southwestern Sugar, in a concurring opinion in the subsequent Dixilyn case stated that the 'overriding consideration' of certainty in the kind of commercial transaction involved, 'would not be promoted by opening the Bisso rule to indeterminate exceptions,' where, unlike Southwestern Sugar, no functions of a regulatory agency are involved. 12 The district court in the case at bar thought that since Article 16 limited liability only 'where there is asternway movement by one tug'-- an 'obviously * * * difficult and somewhat hazardous operation'-- the limitation was not unreasonable 'under such circumstances.' That this holding is based on conclusions seemingly contrary to its findings4 is immaterial, since it is our opinion that the Supreme Court's reversal of the court of appeals in Dixilyn Drilling Co. v. Crescent Towing & Salvage Co., 372 U.S. 697, 83 S.Ct. 967, 10 L.Ed.2d 78 (1963), reversing 303 F.2d 237 (5th Cir. 1962), has effectually repudiated the Court's statement in Southwestern Sugar that 'peculiar hazards' may not be bound by Bisso but may call for 'development of * * * a particularized rule to deal with particularized circumstances.' 360 U.S. at 419-420, 79 S.Ct. at 1216. 13 It is our opinion that the policy reasons underlying the Bisso decision-- '(1) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains,' 349 U.S. at 91, 75 S.Ct. at 632 and the consideration of commercial certainty called for by Justice Harlan in Dixilyn control our decision, even though the tariff provisions before us limit, rather than exclude, liability. 14 Respondent was the negligent wrongdoer liable for payment of libelant's damages; and with its monopolistic position in the Great Lakes5 it has the 'power to drive hard bargains.' Articles 11 and 16 must fall. An additional reason for invalidating Article 16 would be that there is no commercial 'certainty' as the escalation provision has little meaning where the owner cannot anticipate the measure of damages to its vessel, and make a judgment about higher valuations and rates accordingly. 15 We have considered the reasons advanced by respondent for upholding the validity of Articles 11 and 16 but find them unavailing. 16 The court did not err in deciding respondent's negligence was the sole cause of the damages. It did err, however, in deciding the tariff provisions in Articles 11 and 16 are valid. The judgment is vacated and the cause remanded for proof of damages unlimited by Articles 11 and 16 of respondent's tariff. 1 The relevant tariff provisions are as follows: '11. The rates for service named herein are made upon the express condition that no claim for delay of any vessel served (whether due to repairs of damage or other causes), for which the Towing Company may be legally liable, shall in any case exceed One Hundred Dollars ($100.00) per calendar day of such delay. Upon written notice from the owner, charterer, or person having control of the vessel or vessels to be served to the Towing Company before the service is commenced, the above mentioned limit of liability upon demurrage claims may be increased, in which event the regular tariff rates will be increased five per cent of such rates for every One Hundred Dollars ($100.00) of increase in the limit of the Towing Company's liability for demurrage specified in such notice, but in no event shall such liability exceed the actual legal liability of the Towing Company for such demurrage. Nothing herein contained shall be construed to deprive the Towing Company of any legal defense it may have whether by limitation of its liability under the Statutes of the United States or otherwise. '16. When a self-propelled vessel under power is towed or pushed stern first by one tug at her bow or stern, or is being winded by one tug at her bow or stern, or when a tug or tugs are assisting any vessel in conjunction with a tug not owned or operated by the Towing Company, the liability of the Towing Company for damages arising out of the service shall not exceed One Thousand Dollars ($1,000.00). This amount may be increased by written notice to the Towing Company given by the owner, charterer, or person having control of the vessel or vessels to be served before the service is commenced, provided any rate as set forth in this tariff and as applicable to the service to be performed is increased in the amount of five per cent for every One Thousand Dollars ($1,000.00) that the Towing Company's liability is increased. Such amount shall constitute the total maximum liability of the Towing Company irrespective of the number of vessels served in the same service and irrespective of the number of claims asserted arising out of such service. Nothing herein contained shall be construed to deprive the Towing Company of any legal defense it may have whether on the merits or by limitation of its liability under Statutes of the United States or otherwise.' 2 The charges for the operation in question were $304.75. By the terms of Article 16, if two tugs had been employed in the maneuver, at a cost of $609.50, the limitation in that article would not be effective 3 Respondent, though not a common carrier, has been put substantially on that basis through an anti-trust decree. United States v. Great Lakes Towing Co., 217 F. 656 (N.D.Ohio, 1914). It is not subject to the Interstate Commerce Commission, and its tariffs are under its own control subject only to the terms of the anti-trust decree 4 The court found: '16. The contemplated maneuver under weather conditions and daylight prevailing at the time of this disaster was not an unusual tug maneuver and is and was frequently performed by one tug assisting a steamer on her bow.' 5 The court found: '9. That the Great Lakes Towing Company has a virtual monopoly in the business of towing large bulk lake steamers for hire in all of the major United States port(s) of the Great Lakes except Green Bay-Manitowoc and Bay City-Saginaw.'
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0541-17T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHELET GLAUDE, Defendant-Appellant. ________________________ Submitted February 6, 2019 – Decided March 11, 2019 Before Judges Nugent and Reisner. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-01-0213. Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM Defendant Michelet Glaude appeals from a December 9, 2016 order denying his petition for post-conviction relief (PCR). Defendant raises the following points of argument in his counseled brief: Point One – THE PCR COURT ERRED BY DENYING DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING ON THE ISSUES OF THE TRIAL COURT'S DENIAL OF A PSYCHIATRIC EXAMINATION AND TRIAL COUNSEL'S FAILURE TO ENGAGE EXPERT WITNESSES. A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS FOR INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITITIONS FOR POST-CONVICTION RELIEF. B. The Denial of a Competency Hearing. C. The Failure to Engage Expert Witnesses. In a pro se supplemental brief that does not have point headings, defendant repeats essentially the same arguments. After reading the record, we conclude that all of defendant's arguments are without merit and, except as briefly addressed below, they do not warrant discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by the PCR judge in his written opinion issued with the order. We add these comments. A-0541-17T1 2 A jury convicted defendant of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); second-degree aggravated assault causing serious bodily injury, N.J.S.A. 2C:12- 1(b)(1); third-degree terroristic threats, N.J.S.A. 2C:12-3(b); third-degree criminal restraint, N.J.S.A. 2C:13-2; and third-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(c). He was sentenced to an aggregate term of twenty-five years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed the conviction and sentence on defendant's direct appeal. State v. Glaude, No. A-3425-11 (App. Div. Nov. 25, 2014), certif. denied, 221 N.J. 287 (2015). The trial evidence was detailed in our opinion on the direct appeal and need not be repeated here. To briefly summarize, defendant was accused of brutally assaulting and mutilating his former girlfriend. At his trial, defendant did not deny the charges but claimed that he was highly intoxicated at the time and could not remember assaulting the victim. However, as we noted in our opinion, an Alcotest administered about three hours after the incident did not reveal a very high blood alcohol level. Moreover, in his trial testimony defendant recalled many details surrounding the incident, although he claimed not to remember the attack itself. A-0541-17T1 3 In his PCR petition, defendant claimed that his trial counsel was ineffective because she did not present expert testimony to support an intoxication defense. Like the PCR judge, we find no merit in that assertion. On a PCR petition, if a defendant claims that his trial attorney should have called a witness to testify at the trial, the defendant must provide legally competent evidence of what the witness would have said if called at trial. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Bald assertions are insufficient to present a prima facie case of ineffective assistance of counsel. Ibid. Defendant did not provide the report of an expert witness to support his PCR claim that, had his trial counsel retained an expert, the expert would likely have provided testimony to support an intoxication defense. Further, neither defendant's blood alcohol level nor his trial testimony suggest the likelihood that his trial counsel could have found such an expert. Defendant also asserted that his trial counsel should have retained a psychiatric expert to support a claim that defendant was not competent to stand trial. He further claimed that his appellate counsel should have raised on appeal the trial court's denial of defense counsel's request for a court-ordered competency examination. However, defendant's PCR petition was devoid of medical records or an expert report to support his claim that he suffered from a A-0541-17T1 4 mental illness, much less one that rendered him incompetent to stand trial. In a pretrial hearing, the trial judge questioned defendant in detail and concluded that there was no basis to order a competency examination. We have reviewed the transcript of the voir dire and find no error in the judge's conclusion. Like his claim regarding the intoxication defense, defendant's PCR claims relating to his alleged lack of competency to stand trial were based on bald assertions. Cummings, 321 N.J. Super. at 170. Defendant did not provide legally competent evidence that his trial counsel was ineffective in failing to retain experts, or that the experts, if retained, would have provided testimony that could have changed the outcome of the trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Nor was his appellate counsel ineffective for failing to raise a meritless appellate argument. Having failed to present a prima facie case as to either prong of the Strickland test, defendant was not entitled to an evidentiary hearing on his PCR petition. See State v. Preciose, 129 N.J. 451, 462 (1992). Affirmed. A-0541-17T1 5
6 F.Supp.2d 13 (1998) Samuel G. KOORITZKY, Plaintiff, v. Alexis M. HERMAN, Secretary of Labor, Defendant. Civil Action No. 91-3011-LFO. United States District Court, District of Columbia. May 7, 1998. 14 Christopher A. Teras, Jaeger & Teras, Washington, DC, for Plaintiff. Samuel Kooritzky, Kooritzky & Associates, Arlington, VA, Pro se. Michael Joseph Ryan, U.S. Attorney's Office, Washington, DC, for Defendant. MEMORANDUM OBERDORFER, District Judge. A Memorandum and Order of December 17, 1997 resolved the majority of issues in plaintiff's long-pending fee application, and invited the parties to provide further information pertaining to the single outstanding issue compensation for services provided by paralegal James Moore. Defendant filed a Response on January 14, 1998, and plaintiff filed a supplemental Submission on February 4, 1998. On February 16, 1998, plaintiff filed a "Motion for Reconsideration of Certain Limited Aspects of the Court's Orders of December 17, 1997 and January 30, 1998." Defendant opposed this motion on February 27, 1998. For reasons stated herein, plaintiff is entitled to $25,441.50 for services rendered by James Moore. Plaintiff's motion for reconsideration is denied, except that plaintiff will be compensated for an additional 35 hours of work performed in 1992. I. A. Plaintiff moves for reconsideration of four previously decided issues. First, plaintiff argues that, contrary to the Order of January 30, 1998, he should now be permitted to supplement his fee request with claims for hours worked in the years 1995 and 1996, i.e. two to three years ago. Plaintiff faults the Court for not previously specifying a deadline for filing any supplemental petitions. However, the Court had no reason to establish such a deadline, where plaintiff gave no indication in over eighteen filings, two motions hearings, and seven days of evidentiary hearings that have occurred since he last supplemented his fee request on December 13, 1995 that he intended to file any further supplements. While plaintiff argues that there is no firm "rule" that specifies when a supplement to a fee request is to be submitted, the fee petition process is certainly governed by a rule of reasonableness. For reasons stated in the January 30, 1998 Memorandum and in Defendant's Opposition to the motion for reconsideration, plaintiff's request will be denied. Second, plaintiff requests that he be allowed to petition for fees based on the time expended in conjunction with the evidentiary hearings before Magistrate Judge Kay in 1997. For reasons stated in the January 30, 1998 Memorandum, that request will also be denied. Third, plaintiff states that the December 17, 1997 Memorandum incorrectly denied plaintiff's request for attorney hours expended on the defendant's motion for summary affirmance. Defendant concurs that, in fact, plaintiff prevailed on the motion for summary affirmance. See Defendant's Oppos. at 4. Accordingly, the hours granted in the December 15 17, 1997 Memorandum are amended as follows: 9/21/929/22/92. Granted: 5 hours. To the extent that this task included both reading defendant's motion for summary affirmance, and researching ("understanding") the standards for granting such a motion, five hours could reasonably have been expended on this activity. 9/22/929/27/92, 9/29/9210/5/92. Granted: 30 hours. In light of the fact that plaintiff had lost on summary judgment in the District Court, and that the summary affirmance motion could be dispositive of his claim in the Court of Appeals, thirty hours is a reasonable period of time for plaintiff to have expended on drafting his opposition. In sum, plaintiff will be compensated for an additional 35 hours of work performed in 1992. Finally, plaintiff requests reconsideration of the fees granted for work performed by attorney Christopher Teras. Plaintiff's counsel states that he "can find no evidence that he [Teras] recorded more than 24 attorney hours for a day as suggested" in the December 17 Memorandum. Plaintiff's attention is directed to pages 71 through 72 of the transcript of the January 24, 1997 hearing, and to the underlying documents discussed therein. More importantly, plaintiff's attention is again directed to pages 65 through 79 of the same transcript, which suggest that the hours claimed by Teras were based on speculative, retrospective estimates. Plaintiff also suggests that it is inconsistent to reduce the hours billed by Teras in 1995, the year in which he began to keep contemporaneous time records, but grant 100% of the hours billed by attorney Sean Purcell in the same year. Purcell did not become involved in plaintiff's case until June of 1995. See Feb. 19, 1997 Tr. at 36. The work he performed was straightforward legal work pertaining to plaintiff's attorneys' fee petition. Id. at 40. By contrast, a certain percentage of the work performed by Teras on plaintiff's fee petition in 1995 must be attributed to the need to calculate, recalculate, and explain his own hours as claimed in the fee petition, a task which would have been unnecessary but for his failure to keep accurate records of his time prior to 1995. In this sense, Teras is similarly situated not to Purcell, but to plaintiff Kooritzky. See December 17, 1997 Memorandum at 15. Moreover, as stated in the December 17 Memorandum, the reduction in hours claimed by Teras also reflects a concern about duplicative billing (i.e. for work identical to that performed by Kooritzky) that does not apply to Purcell, who seems to have been assigned discrete tasks. See December 17, 1997 Memorandum at 20; Feb. 19, 1997 Tr. at 41 (in which Purcell testifies that he only spoke with Kooritzky "a couple of times" while doing his work). Plaintiff's request for reconsideration of hours attributed to Teras will be denied. In sum, plaintiff's motion for reconsideration will be denied, except with respect to the calculation of attorney hours worked by plaintiff. After the 35-hour adjustment explained above, plaintiff is entitled to the following fees for his own work: 1991: 136 hrs × $113.48 = $15,433.28 1992: 122.5 hrs × $116.33 = $14,250.43 1993: 142.5 hrs × $120.00 = $17,100.00 1994: 44.1 hrs × $121.73 = $ 5,368.29 1995: 30.75 hrs × $124.88 = $ 3,840.66 _________________________________________________ Total = $55,992.06 B. Although the Court requested briefing on the limited issue of prevailing paralegal wages, both defendant and plaintiff have attempted in their briefs to reopen issues previously addressed by the Memorandum and Order of December 17, 1997, and a subsequent Memorandum & Order of January 30, 1998. These arguments can be dispensed with quickly. Defendant continues to insist that plaintiff is not entitled to any compensation for hours worked by Moore. This issue was addressed and resolved by the Court in pages 6 through 10 of the December 17 Memorandum. To buttress her argument, defendant now points to a rule of the Virginia Supreme Court pertaining to court appearances by third-year law students. This rule is entirely irrelevant to the present situation, where Moore made no court appearances on behalf of the plaintiff. The record contains no indication 16 that Moore held himself out to plaintiff as a practicing attorney; on the contrary, plaintiff's claim (and indeed, defendant's claim in her March 5, 1997 submission) is that Moore provided paralegal services. See also Feb. 6, 1997 Tr. at 83. The Court is not aware of any law in either Virginia or the District of Columbia which prohibits law students from working as paralegals, and accepting compensation for such work.[1] For his part, the plaintiff again asserts that $75.00 per hour, the rate at which the law firm of Teras & Jaeger bills paralegal services to their clients, is the appropriate rate at which he should be reimbursed for Moore's work. Plaintiff states that both he and Teras incurred "substantial overhead expenses for the current case in support of Mr. Moore's efforts," but provides no indication of what those expenses were, or possibly could possibly be. See also Feb. 6, 1997 Tr. at 36, 90 (testimony that Moore provided his own computer and printer at Kooritzky's office, and that he spent little time at Teras's office). As stated in the December 17 Memorandum, to the extent that plaintiff has repeatedly characterized Moore as an "independent contractor," the appropriate rate of compensation is that which plaintiff would have paid to Moore as an independent contractor, not what the Teras firm would charge clients for paralegal services performed by its employees. Lastly, plaintiff now, for the first time, submits time records for work performed by attorney Margot Champagne from the years 1991 through 1995. The December 17, 1997 Memorandum denied plaintiff's request for fees for work performed by Champagne on grounds that plaintiff's fee petition contained only an affidavit by Champagne, but no detailed records of Champagne's time. Plaintiff now offers documentation that Champagne mailed her time records to the plaintiff on October 23, 1995 via express mail, but states that "the mail was never located. As a result, Ms. Champagne's time records were not submitted to the court. The Plaintiff was without knowledge that Ms. Champagne's time records had not been submitted ... until December 1997 [when] Ms. Champagne saw the Court's order ...." Pltf.'s Submission at II.D. The time records now submitted on behalf of Champagne indicate that plaintiff himself requested Champagne to forward her time records during the week of October 16, 1995; if plaintiff "was without knowledge" that he failed to include those records in the supplemental submission he filed with the court eight weeks later, this lack of knowledge can only be attributed to his own negligence. Moreover, plaintiff had ample time and opportunity to discover this omission in the thirteen months that passed between his December 13, 1995 filing and the January, 1997 hearings before Magistrate Judge Kay. Although the omission of Champagne's hours is unfortunate, for reasons of judicial economy, and in fairness to the defendant, the Court cannot continually revisit its earlier rulings on the fee petition every time plaintiff discovers a previously omitted document. Adjudication of plaintiff's fee petition was initially delayed for over a year due to errors and omissions in the documents submitted by plaintiff to the Court. For the foregoing reasons, plaintiff's request to supplement his petition with time records of attorney Champagne is denied. II. A. The December 17 Memorandum found that plaintiff was eligible to be compensated for work performed by legal assistant Thomas Moore, but not at the $75 per hour rate requested in his fee petition. See December 17, 1997 Memorandum at 22-23. Accordingly, an accompanying Order invited the parties to submit "in affidavit or documentary form, evidence relevant to the `prevailing 17 market rate' at which legal assistants working as independent contractors in the Washington, D.C. area are compensated." 1. Plaintiff's Evidence Plaintiff's February 4, 1997 submission contains an affidavit by Moore, which indicates that Moore came to the Kooritzky's "team" with 30 years of service in the Department of Transportation. He had retired as Chief of the Tariff Division of the Department as a GS-15. Over those years he claims to have become "proficient and knowledgeable with the APA." Moore Affidavit at 1. He states that he was "in charge and oversaw the work of others in issuing and finalizing rules under the APA." In support of this assertion, Moore lists several rules and Notices of Proposed Rulemaking pursuant to the APA for which he had major responsibility. He attaches to his affidavit his superior's "special" recognition for "planning and drafting a proposed rule with respect to an electronic tariff filing and simplified tariff policy," the "product of hard and highly professional staff work." Id., Ex. 3. Jonathan B. Hill, a partner in a major Washington law firm who had known Moore's work in the government and, "impressed with his knowledge and understanding of the Administrative Procedures Act and related matters ... retained his services to `review and prepare a report on the Notice of Proposed Rulemaking issued by the Department of Transportation.'" Hill and his client found the report "to be thorough and professional and substantially accurate." Moore Affidavit, Ex. 4, Affidavit of Jonathan B. Hill. Moore's curriculum vitae features his government experience with APA rulemaking. As indicated in the December 17, 1997 memorandum, since Moore's retirement he has "read law" in preparation for the Virginia bar exam and in 1996 sat for it; there is no indication of the result. Plaintiff proffers two types of evidence about the market rates of fees payable to independent contractor paralegals, as distinguished from the $75 per hour charged by the Teras firm First, Moore's affidavit states that he recently surveyed eight area firms which specialize in providing paralegals or consultants on a contract basis to assist with APA litigation. Moore Affidavit at 2. According to Moore, the "market rates quoted ranged between twenty ($20.00) and thirty-five ($35.00) dollars per hour depending on experience." Id. Moore also surveyed three Washington, D.C. law firms, which were "willing to pay between forty-five ($45.00) and fifty-five ($55.00) dollars per hour for a paralegal/legal assistant or consultant with a substantial knowledge of the APA and some knowledge of litigating APA cases." Id. All firms surveyed by Moore stated that any work in excess of forty hours per week would be compensated at one and one-half times the quoted rate, and that work performed on Sundays or legal holidays would be compensated at twice the quoted rate. Moore Affidavit at 3. Moore does not indicate whether the quoted rates reflect the amount of money actually paid to independent paralegals, as requested in the Order, or whether these rates reflect the amounts paid to contracting agencies to procure the services of such independent paralegals. See December 17 Memorandum at 23. Second, the Jonathan Hill affidavit states that Moore was paid by his firm "to review and prepare a report on a Notice of Proposed Rulemaking issued by the Department of Transportation" at a rate of $50 per hour. Hill Affidavit at 1-2. In addition to these objective items of evidence about a market rate for paralegals generally, plaintiff and Moore have offered several somewhat inconsistent versions of their original understanding about Moore's compensation. Most recently, Moore's affidavit dated February 4, 1998, represents that Moore would be "willing to help [Kooritzky] under the auspices of Mr. Teras" with the expectation that he would receive "the same hourly rate that [he] had been receiving in [his] former position, i.e. $37 per hour." In response, according to Moore, Kooritzky explained that he "could not afford to pay currently any fee" but stated that "if we prevail and the rule is overturned by the court he would be able to afford to arrange with Mr. Teras ... to compensate [him] at the rate of $37 plus a premium of $13 per hour for a total of $50 per hour." Moore Affidavit at 3-4. 18 On earlier occasions, Kooritzky, Teras and Moore have testified variously that: 1. There was no understanding as to the amount of Moore's compensation (transcript of Jan. 24, 1997 at 104); 2. It would be the "going rate" for paralegals, possibly $60.00/hour (Id. at 67); and 3. Moore and Teras reached a "contingency agreement ... [that] Moore would be compensated at the rate of $75/hour if the rule was overturned and fees were recovered." (Kooritzky Affidavit, April 16, 1996 Reply to Def.'s Oppos., Ex. B at 3). 2. Defendant's Evidence. The defendant submits the current Register of Wage Determinations Under the Service Contract Act for the Washington, D.C. area, issued on July 14, 1997 ("Wage Determination"). See Def.'s Response at Ex. B. These rates reflect the current hourly rates paid by the United States government to paralegals hired from outside contractors. Def.'s Response at 3. The Wage Determination includes four types of paralegal positions, numbered I-IV, whose hourly wages range from $13.22 to $24.95. The Wage Determination states that the job titles and corresponding duties are drawn from the "Service Contract Act Directory of Occupations," as amended. Judicial notice is taken of the current Directory of Occupations job descriptions for each of the four categories of paralegals. See Appendix A (attached). 3. Rate of Compensation "[A] fee applicant's burden in establishing a reasonable hourly rate entails a showing of at least three elements: ... billing practices; ... skill, experience, and reputation; and the prevailing market rates in the relevant community." Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.Cir.1995). (a) Billing practices. The best evidence of a reasonable hourly rate a customary billing rate is unavailable in this case, where Moore appears to have had, at one time or another,[2] only one paralegal engagement in addition to his work on plaintiff's case. Moreover, the work performed by Moore for attorney Hill reviewing a Notice of Proposed Rulemaking issued by Moore's former employer, the Department of Transportation is somewhat different than the basic legal research and manual litigation support tasks that Moore performed for plaintiff. Tangentially relevant to the "billing practices" inquiry is the fact that, according to Moore's latest version, his fee agreement with plaintiff contemplated "a rate of $37 plus a premium of $13 for a total of $50." Moore Affidavit at 3-4 (emphasis in original). It is reasonable to infer from plaintiff's own description of a "contingency agreement" with Moore (Kooritzky Affidavit, April 16, 1996), and the total circumstances that the $37 was to be the rate for services and that the $13 premium was intended by plaintiff as compensation for the contingent nature of his obligation. However, it is the law of this Circuit that such contingency premiums are generally not compensable in the context of attorney's fee litigation. See King v. Palmer, 950 F.2d 771 (D.C.Cir.1991). It is a reasonable inference from the direct evidence that Moore's latest affidavit is an admission, after reflection, that he perceived the value of his services to be $37 per hour. (b) Skill, experience and reputation The record does not indicate that Moore has had enough experience as an independent contractor paralegal to acquire a "reputation" within the private sector. However, his limited paralegal experience, if any, prior to his work for plaintiff is balanced by his extensive experience with agency rulemaking under the APA and its notice requirements in particular, the controlling issue of plaintiff's case. Thus, no special adjustment to Moore's hourly rate either upward or downward is warranted on these grounds on account of his APA skills, experience and reputation. See Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.Cir.1995). (c) Prevailing market rate. Assessing the "prevailing market rate" for Moore's services 19 is difficult, where the market at issue that for independent contractor paralegals is ill-defined and unfamiliar, in the sense that it is not the market typically at issue in attorney's fee petitions before this Court or our Court of Appeals. However, the difficulties associated with determining a market rate cannot excuse a court from making such a calculation to the best of its ability. See Save Our Cumberland Mtns. v. Hodel, 857 F.2d 1516, 1525 (D.C.Cir.1988) ("the difficulty of application of the method Congress intended does not justify our abandoning it."). The December 17 Memorandum invited the parties to present their best evidence as to the "prevailing market rates" for independent contractor paralegals. The evidence offered by both parties establishes that, in fact, the hourly wages commanded by independent paralegals working as independent contractors vary widely depending on the nature of the work, the experience of the paralegal, and the means of the contracting employer. The ultimate task here is to extrapolate from the direct evidence a finding as to where the rate for Moore's services falls within that range. The evidence offered by the government represents the rates at which Moore would be paid were he working for the government. However, Moore was working in the private sector, and is entitled to be compensated at a private sector market rate. Given the downward pressure on government expenditures, the government rates are not a substitute for private sector market rates; however, they can be taken as a reliable measure of the bottom of the market range for Moore's services. A review of the Wage Determination offered by the United States, in conjunction with the Directory of Occupations, indicates that the description for "Paralegal/Legal Assistant III" most closely approximates Moore's work for plaintiff. According the Directory, a "Paralegal/Legal Assistant III" "participates in the substantive development of cases"; the duties include "review[ing] and analyz[ing] available precedents relevant to cases under consideration for use in presenting case summaries to trial attorneys." See Appendix A. This description fits the bulk of the time recorded after the fact by Moore as having been devoted to legal research. See March 1, 1995 Affirmation, Attachment I at 1. According to the Wage Determination, the hourly rate for this position in Washington, D.C. and Virginia is $20.62. Def.'s Response at Ex. B. Thus, $20.62 will be taken as the floor of the market range for Moore's services. This figure corresponds with the floor of the range ($20-35 per hour) at which the private contracting firms surveyed by Moore compensate their paralegals, as reported in his affidavit. While the Hill affidavit does not establish Moore's customary billing rate for purposes of plaintiff's fee petition, it can be viewed as evidence of the highest rate Moore could command in the private sector as an independent contractor. The work performed for Hill falls in the area of Moore's greatest expertise and experience: rulemaking at the Department of Transportation, where he had worked for 30 years. Moreover, prominent, established law firms like Hill's are the employers most likely to pay the highest rates to contractor employees. Thus, $50.00 will be taken as the ceiling for the value of Moore's services within the private sector market. For reasons stated above, the "prevailing market rate" for Moore's services to plaintiff appears to lie somewhere between $20.62 and $50.00 per hour. Both the pay scale offered by the government and the firms surveyed by Moore suggest that the most important factor in determining the wage of any individual paralegal within this range is experience. In this case, at the time Moore undertook his work for plaintiff, he had no previous experience as a paralegal, and thus, none of the litigation support skills e.g., organizing large numbers of documents, cite-checking, knowledge of court procedures which command a premium. At the same time, Moore's extensive prior experience in government is not only an indicator of reliability and competence, but gave him familiarity with the Administrative Procedure Act which was undoubtedly useful in his work for plaintiff in this particular case. Balancing these factors, Moore qualifies neither for the market rate applicable to government employees nor the rate paid by private practitioners 20 for the most experienced of paralegals, but directly in the middle of those two extremes. Thus, the Court's application of the method Congress intended for determining the prevailing market rate by extrapolation from the direct evidence yields a finding that Moore should be compensated at the rate of $35.00 per hour, i.e. the middle of the range between $20.62 and $50.00. See Save Our Cumberland Mtns. v. Hodel, 857 F.2d at 1516. Considering the above factors in determining a reasonably hourly rate for Moore, see Covington v. District of Columbia, 57 F.3d at 1107, the evidence supporting the prevailing market rate is most substantial and persuasive. Moreover, this rate inherently reflects Moore's particular level of skill and experience, and roughly coincides with Moore's constructive admission of the fee that was agreed to between plaintiff and himself, i.e. $37.00 per hour. For these reasons, the reasonable hourly rate at which Moore is entitled to be compensated is the prevailing market rate: $35.00 per hour. B. Having determined the hourly rate for Moore's services, the next question is to determine the number of hours expended by Moore for which plaintiff is reasonably entitled to compensation. Moore's work is summarized in plaintiff's July 6, 1995 "Supplemental Summary of Attorney's Fees and Expenses," and plaintiff's December 13, 1995 "Supplemental Petition for Attorney's Fees and Expenses." The total number of hours claimed by Moore for the years 1991 through 1995 is 1533.2. Dec. 13, 1995 Supp. Petition at 6. Adjusted for several small errors of addition and subtraction,[3] the correct total claim is for 1517.7 hours. As indicated in the December 17, 1997 Memorandum, time spent on clerical tasks, including the filing of documents with the Court, does not constitute compensable legal work, and therefore is not compensable under the Equal Access to Justice Act. See Dec. 17, 1997 Memorandum at 10. Thus, at the outset, time spent by Moore physically filing motions will be excluded from plaintiff's petition: 11/27/91 3 hours 12/13/91 3 hours 1/6/92 3 hours 1/14/91 6 hours 1/30/91 10 hours 6/19/92 6 hours 7/24/92 3 hours 9/1/92 3 hours 10/5/92 9 hours 9/14/93 3 hours 3/1/95 3 hours 5/8/95 3 hours 6/30/95 5 hours 7/6/95 1 hour 10/19/95 1 hour 11/24/95 1 hour ____________________________________ Total Reduction for Filing: 63 hours Thus, the revised total claimed by Moore (1517.7 hours minus 63 hours) is 1454.7 hours. C. The hours claimed for Moore's services exceed the number of hours claimed for any other attorney on this case, including plaintiff himself. As such, Moore's time records were a significant focus of the evidentiary hearings before Magistrate Judge Kay, which included three days of testimony by Moore himself. In his Report & Recommendation, Magistrate Judge Kay concluded: The Court is constrained to observe that the cavalier manner Kooritzky kept time records was equally pervasive in his claim for hours worked by Moore. Despite the opportunity afforded Kooritzky during seven days of hearings, he failed to fully cure or explain the inaccuracies that pervade even his modified request for fees. For 21 example, as pointed out during the hearings, the claim for Moore's fees contains a request for more hours worked during a three week period than there were actual hours in that period (Hr'g 1/16/97 at 69); a bill for 29 hours worked in a single day (Hr'g 1/16/97 at 67); a bill for 48 hours of work done on a pleading that had already been filed (Hr'g 1/21/97 at 47); a bill for 21 hours in a day working on a pleading before delivering that pleading at 2:24 p.m. on that day (Hr'g 1/21/97 at 49-50). R&R at 38. In his recent affidavit, Moore disputes the "inference" in the Report & Recommendation that he was incapable of working 20-hour days, Moore Affidavit at 4, and offers documents that suggest that he had a history of working long hours while employed at the Department of Transportation. Id. at Ex. 4. Indeed, the testimony of Moore, Teras and Kooritzky at the evidentiary hearings consistently suggests that Moore did expend an extraordinary amount of time working on plaintiffs behalf. However, this fact alone is not sufficient to justify compensating plaintiff for all hours claimed for Moore. First, plaintiff must support his fee request with detailed information, based on "contemporaneous, completed and standardized time records which accurately reflect the work done by each attorney." Nat'l Ass'n of Concerned Vets. v. Sec. of Defense, 675 F.2d 1319, 1327 (D.C.Cir.1982). On its face, as indicated by Judge Kay, the claim for Moore's fees falls short of this standard, thus requiring the fact-finder to discount some of the hours claimed due to insufficient documentation. Second, even if plaintiff's application were technically impeccable, and even if Moore is assumed to have worked all of the hours claimed, plaintiff would not be automatically entitled to compensation for all hours billed: the Court must still make a determination that those hours represent "time reasonably expended." Id. As was the case with plaintiff's own hours, see Dec. 17, 1997 Memorandum at 12-13, the record indicates that a significant percentage of the hours billed by Moore must be attributed to the combined inexperience of Moore and plaintiff. For example, plaintiff's claim includes 108 hours billed by Moore in a 9-day period for "Review[ing] Court rules and ma[king] recommendations to attorney to bring Motion into conformance with Court Rules." See July 6, 1995 Supp. Summ. of Attorney's Fees and Expenses, Ex. F at 9. In other instances, Moore's undisputed dedication to plaintiff's case appears itself to have resulted in excess hours. See Feb. 6, 1997 Tr. at 54 ("[O]nce I started working on that rule, I was just almost consumed by it ...."). The following colloquy between Moore and Magistrate Judge Kay is illustrative. Moore testified (and plaintiff's fee application reflects) that he spent numerous hours reviewing 109 comments filed in response to the Department of Labor rulemaking at issue in this litigation. Feb. 6, 1997 Tr. at 49. According to his testimony, Moore's review of the public comment files uncovered factual information that was useful to plaintiff at the trial court level, and instrumental to plaintiff's success in the Court of Appeals. Id. at 51, 60-62. However it also served as a springboard for further legal research: THE COURT: You said you went down and reviewed comments MOORE: Right. In other words, I would research the motion or the pleading, whatever [the defendant] filed submitted to the Court, and then I would go down to George Mason [law library], I would find the court cases that they were referring to to support their position THE COURT: In the comments. THE WITNESS: Right. THE COURT: So in other words, you would double check all of the ... research or the case citations in the comments that were filed by other parties? THE WITNESS: Right. THE COURT: Why did you do that? THE WITNESS: Because I have known some of those to be wrong. THE COURT: I see so you undertook to, in effect THE WITNESS: Tried to discredit it anyway we could. THE COURT: You were going to discredit the comments? THE WITNESS: Try to, yes. 22 ... THE COURT: So in effect, you researched all the cases that were cited in the comments that were filed both for and against the rule with the Department of Labor? THE WITNESS: That's right. And then we'd go through Shepherd [sic], and Shepardize them is another thing. Id. at 71-73. Similarly, Moore previously indicated that he located "each and every case" listed in the annotated version of 5 U.S.C. § 553, and "Shepardized" a certain number of these.[4] July 6, 1995 Summary of Supplemental Attorney's Fees, Ex. F. While such a thorough approach may be a useful exercise for a law student, it is an obviously inefficient way to conduct legal research on the Administrative Procedure Act and its interpretation within the District of Columbia Circuit, as Moore's supervising attorneys should have been aware. While Moore's diligence is commendable, the government cannot be expected to bear the costs of Moore's zeal beyond what was reasonably necessary to conduct plaintiff's case. For these reasons, the hours billed by Moore exceed that which is reasonable, and must be reduced. As stated in the December 17 Memorandum: [a] court's calculation of "reasonable" hours is, by nature, imprecise. With respect to Kooritzky's hours, the Report & Recommendation employed an item-by-item analysis, a method which provided invaluable information to this Court, and at the same time, far surpassed the degree of precision normally achieved in most attorneys' fees cases. For this Court to undertake a similarly detailed analysis ... would be an inefficient use of judicial resources. Cf. Copeland v. Marshall, 641 F.2d at 903 ("It is neither practical nor desirable to expect the trial court judge to have reviewed each paper in this massive case file to decide, for example, whether a particular motion could have been done in 9.6 hours instead of 14.3 hours.") ... Magistrate Judge Kay's analysis serves as a useful benchmark .... Dec. 17, 1997 Memorandum at 20. As indicated above, Magistrate Judge Kay found Moore's method of timekeeping to be similar to plaintiff Kooritzky's, and Moore's time entries, like Kooritzky's, often exceed the amount of time reasonably necessary to accomplish a given task. These findings and considerations lead to a conclusion that Moore's hours for the period 1991 through 1995 should be reduced by the same percentage by which plaintiff's own hours were ultimately reduced: 54%.[5] The hours claimed for 1997 and 1998, as explained infra in Section III., will be reimbursed in full. Accordingly, plaintiff is entitled to reimbursement for Moore's services as follows: Hours Hours Claimed Granted × Rate 1991: 374 × 46% = 172.0 × $35.00 = $ 6,020.00 1992: 595 × 46% = 273.7 × $35.00 = $ 9,579.50 1993: 394 × 46% = 181.2 × $35.00 = $ 6,342.00 1994: 44.5 × 46% = 20.5 × $35.00 = $ 717.50 1995: 110.2 × 46% = 50.7 × $35.00 = $ 1,774.50 1997: 9.3 × 100% = 9.3 × $35.00 = $ 325.50 1998: 19.5 × 100% = 19.5 × $35.00 = $ 682.50 ______________________________________________________ Total 726.9 × $35.00 = $25,441.50 III. In accordance with the Memorandum and Order of January 30, 1998, plaintiff has supplemented his fee petition with claims for 1997 and 1998, for legal work required to respond to Magistrate Judge Kay's Report & Recommendation, and to this Court's Order of December 17, 1998. See Pltf.'s Submission at II.A. According to plaintiff, these requests are based on contemporary time records. Id. The records are well organized and detailed, and defendant has offered no objections. The time billed by various personnel appears reasonable for the tasks described, with two minor exceptions: 1. On December 11, 1997, attorney Tae Kim, who has previously billed no time to this case, billed 3 hours to "Analyze status of fee application; Draft praecipe." For anyone previously 23 involved with this fee application, its "status" needed no analysis: the magistrate judge's report and recommendation, as well as the parties' objections thereto, were pending before the Court. The "Praecipe" filed on or about that date consisted of a three-sentence request to the Court for a hearing on the fee petition. These activities should have required no more than 30 minutes. 2. On February 3, 1998, attorney Christopher Teras billed 6 hours to "Revise Moore Affidavits; organize exhibits; complete outline for draft of submission; organize records and documents for all persons claiming time." The organization of exhibits, records and documents is a clerical task for which attorneys will not be compensated. See Missouri v. Jenkins, 491 U.S. 274, 288 n. 10, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989); Am. Petroleum Inst. v. Envt'l Protection Agency, 72 F.3d 907 (D.C.Cir.1996). Accordingly, this entry will be reduced by half. But for the exceptions noted above, plaintiffs Supplemental Fee Request for the Period July, 1997 February 4, 1998, included in his February 4, 1998 Submission in Compliance with Court's Orders, is approved in full. IV. In sum, for reasons stated herein, and in the Memorandum and Order of December 17, 1997, plaintiff is entitled to the following attorney's fees: SAMUEL G. KOORITZKY $ 55,992.06 1991: 136 × $113.48 = $15,433.28 1992: 122.5 × $116.33 = $14,250.43 1993: 142.5 × $120.00 = $17,100.00 1994: 44.1 × $121.73 = $ 5,368.29 1995: 30.75 × $124.88 = $ 3,840.66 _______________________________________________________ Total = $55,992.06 THOMAS G. MOORE, SR. $ 25,441.50 1991: 172.0 × $ 35.00 = $ 6,020.00 1992: 273.7 × $ 35.00 = $ 9,579.50 1993: 181.2 × $ 35.00 = $ 6,342.00 1994: 20.5 × $ 35.00 = $ 717.50 1995: 50.7 × $ 35.00 = $ 1,774.50 1997: 9.3 × $ 35.00 = $ 325.50 1998: 19.5 × $ 35.00 = $ 682.50 _______________________________________________________ Total = $25,441.50 CHRISTOPHER A. TERAS $ 40,815.76 1991: 65.7 × $113.48 = $ 7,455.64 1992: 69.0 × $116.33 = $ 8,026.78 1993: 96.9 × $120.00 = $11,628.00 1994: 24.3 × $121.73 = $ 2,958.04 1995: 54.4 × $124.88 = $ 6,793.47 1997: 8.3 × $130.06 = $ 1,079.50 1998: 22.1 × $130.06 = $ 2,874.33 _______________________________________________________ Total $40,815.76 M. SEAN PURCELL $ 14,481.79 1995: 86.7 × $124.88 = $10,827.10 1997: 28.1 × $130.06 = $ 3,654.69 _______________________________________________________ Total $14,481.79 TAE KIM $ 2,015.93 1997: 7.5 × $130.06 = $ 975.45 1998: 8.0 × $130.06 = $ 1040.48 _______________________________________________________ Total $ 2015.93 TOTAL FEES $138,747.04 EXPENSES JAEGER & TERAS $ 134.70 TOTAL EXPENSES $ 134.70 GRAND TOTAL FEES & EXPENSES $138,881.74 An accompanying Order implements the decisions announced herein. 24 APPENDIX A 25 26 27 28 ORDER For reasons stated in the accompanying Memorandum, and the Memorandum & Order of December 17, 1997, and the Report & Recommendation of July 17, 1997, it is this 7th day of April, 1998 hereby ORDERED: that plaintiff's motion for reconsideration (152-1) is GRANTED IN PART AND DENIED IN PART; and it is further ORDERED: that plaintiff's petition for attorneys' fees and expenses (46-1, 46-2) is 29 GRANTED IN PART AND DENIED IN PART; and it is further ORDERED: defendant shall, on or before June 15, 1998, pay $138,881.74 to plaintiff. NOTES [1] In his Report & Recommendation, Magistrate Judge Kay refers to rules that permit students like Moore to "read" for the Virginia bar without attending law school, as authorized by Va. Stat. § 54.1-3926 (1997). According to testimony at the evidentiary hearings, students in this program are prohibited from accepting compensation for the 18.5 hours per week that they are required to study in the office of an attorney. R & R at 2. However, as stated on page 2 of the Report & Recommendation, and reiterated on page 9 of the December 17, 1997 Memorandum, Moore agreed to work on plaintiff's lawsuit during his remaining time. [2] While the Hill affidavit indicates that Moore has received $50 per hour for his services as an independent contractor, it does not specify at what point in time Moore was able to command such a rate, i.e., before his work for plaintiff, concurrently with it, or sometime after that engagement had terminated. [3] Comparing the time sheets submitted by Moore with the total hours claimed for Moore in Plaintiff's December 12, 1995 Supplemental Petition, Moore appears to have overstated his total hours for 1991 by 10 (see July 6, 1995 Supplemental Summary, Ex. F, Statement at 4); overstated his total hours for 1994 by 8.6 (compare July 6, 1995, Supplemental Summary, Ex. F. Statement at 14) (total hours for 1991-1993), Id. at 15-16 (time sheets for 1994); Dec. 12, 1995 Supplemental Petition at 6 (total hours for 1991-1994); and understated his hours for 1995 by 3 (compare Dec. 12, 1995 Supplemental Petition at 6, Id. at Ex. D). [4] The current version of West's United States Code Annotated contains 482 case annotations to 5 U.S.C. § 553. [5] As a result of the adjustment explained supra, plaintiff Kooritzky is being reimbursed for 475.85 of the total 1043.5 hours claimed, i.e. 46%.
391 F.2d 278 Henry Albert GOODWIN, Appellant,v.UNITED STATES of America, Appellee. No. 25082. United States Court of Appeals Fifth Circuit. March 6, 1968. Henry Albert Goodwin, pro se. Robert E. Hauberg, U.S. Atty., E. Donald Strange, Asst. U.S. Atty., Jackson, Miss., for appellee. Before BROWN, Chief Judge, and JONES and CLAYTON, Circuit Judges. PER CURIAM: 1 This is an appeal from denial of a motion to vacate the sentence of a federal prisoner, 28 U.S.C. 2255. 2 The appellant, represented by court-appointed counsel, was convicted upon his plea of guilty of a Dyer Act violation, 18 U.S.C. 2312. He was sentenced on February 24, 1966, to serve three years; and there was no direct appeal. 3 The appellant contended that his court-appointed counsel improperly induced his guilty plea by falsely promising him an eighteen-month sentence and a probated sentence for his cousin, who was his co-defendant. He also contended that he should have been permitted to confer with counsel in greater privacy, and that the same attorney should not have been appointed to represent both defendants. 4 The district court was entitled to conclude that appellant's testimony attacking the guilty plea was convincingly refuted by that of the appointed counsel, as well as by that of appellant's cousin and of a Deputy U.S. Marshal. We find no error in the proceedings below. See Smith v. Heard, 5 Cir. 1963, 315 F.2d 692. The judgment of the district court is 5 Affirmed.
United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 97-2009 Michael C. Liddell, a minor,* by Minnie Liddell, his mother and * next friend; Kendra Liddell, a minor, * by Minnie Liddell, her mother * and next friend; Minnie Liddell; Roderick * D. LeGrand, a minor, by Lois LeGrand, * his mother and next friend; Lois LeGrand; Clodis Yarber, a minor, by Samuel Yarber, his father and * Appeal next from the United States friend; Samuel Yarber; Earline * District Caldwell; Court for the Lillie Caldwell; Gwendolyn Daniels; * Eastern District of Missouri. National Association for the* Advancement of Colored People; * United States of America; * * Plaintiffs-Appellees; * * City of St. Louis; * * Plaintiff; * * v. * * The Board of Education of the * City of St. Louis; Hattie R. Jackson, * President, Board of Education of the City * of St. Louis; Rev. Earl E. Nance, Jr., * a member of the Board of Education * of the City of St. Louis; Renni* B. Shuter, a member of the Board of Education; * of the City of St. Louis; Paula * V. Smith, a member of the Board* of Educa- tion of the City of St. Louis; * Dr. Albert D. Bender, Sr., a member of the Board of Education of the City of St. Louis; Eddie G. Davis, a member of the Board of Education of the City of St. Louis; Eddie G. Davis, a member of the Board of Education of the City of St. Louis; Dr. John P. Mahoney, a member* of the Board of Education of the City * of St. Louis; Marybeth McBryan, a member * of the Board of Education of* the City of St. Louis; Thomas M. Nolan, * a member of the Board of Education * of the City of St. Louis; William * Purdy, a member of the Board of Education * of the City of St. Louis; Robbyn* G. Wahby, a member of the Board of Education * of the City of St. Louis; Madye* Henson Whithead, a member of the Board * of Education of the City of St.* Louis; Dr. Cleveland Hammonds, Jr.,* Super- intendent of Schools for* the City of St. Louis; * * Defendants-Appellees;* * Ronald Leggett, St. Louis Collector * of Revenue; * Defendant; * * State of Missouri; Mel Carnahan, * Governor of the State of Missouri; * Jeremiah (Jay) W. Nixon, Attorney * General; Bob Holden, Treasurer; * 2 Richard A. Hanson, Commissioner * of Administration; Robert E. Bartman, * Commissioner of Education; Missouri * State Board of Education, and * its members; Thomas R. Davis; Gary * M. Cunningham; Sharon M. Williams; * Peter F. Herschend; Jacqueline * D. Wellington; Betty E. Preston; * Russell V. Thompson; Rice Pete Burns; * * Defendants-Appellants;* * Special School District of St. * Louis County; Affton Board of Education; * Bayless Board of Education; Brentwood Board of Education; Clayton Board of Education; Ferguson-Florissant * Board of Education; Hancock Place Board of Education; Hazelwood Board of Education; Jennings Board of* Education; Kirkwood Board of Education;* LaDue Board of Education; Lindbergh * Board of Education; Maplewood-Richmond * Heights Board of Education; Mehlville Board of Education; Normandy Board of Education; Parkway Board of Education; Pattonville Board of Educa- tion; Ritenour Board of Education; * Riverview Gardens Board of Education; * Rockwood Board of Education;* University City Board of Education; * Valley Park Board of Education; * Webster Groves Board of Education; * Wellston Board of Education;* St. Louis County; Buzz Westfall, County * Executive; James Baker, Director * of Administration, St. Louis County, * 3 Missouri; Robert H. Peterson, * Collector of St. Louis County "Contract * Account," St. Louis County, Missouri; * * Defendants-Appellees;* * The St. Louis Career Education * District; * * Defendant; * * St. Louis Teachers' Union, Local * 420, AFT, AFL-CIO; * * Intervenor Below. * Submitted: July 17, 1997 Filed: September 25, 1997 Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges. HEANEY, Circuit Judge. The State of Missouri (State) appeals from an April 10, 1997 order of the United States District Court for the Eastern District of Missouri denying the State’s motion to end all efforts to recruit and admit new students into the voluntary interdistrict transfer plan (VITP) for the 1997-98 school year. The State contends that the district court acted contrary to the United States Supreme Court’s decision in Missouri v. Jenkins, 115 S. Ct. 2038 (1995) (Jenkins III) in denying its motion. We do not believe that it did. 4 On April 23, 1996, the district court appointed Dr. William H. Danforth as settlement coordinator with the responsibility and authority to conduct conferences with all persons involved in the case, to secure the services of experts, and to stimulate negotiations among the parties. Dr. Danforth continues in this capacity as of the date of this opinion. Moreover, the district court has under consideration a motion by the State to have the St. Louis School District declared unitary. Given the long history of state-mandated, segregated schools, the complexity of the issues, and the difficulty of developing a plan that will ensure that students of all races will have a continuing equal opportunity for a quality, integrated education, the district court did not abuse its discretion in denying the State’s motion to phase out the voluntary transfer of black city students to county districts pending settlement negotiations. We encourage the parties to proceed diligently with their negotiations and believe that the settlement coordinator should be permitted to complete this important assignment. We urge the district court to ascertain the status of the negotiations, and in the event the negotiations reach an impasse, the district court should promptly rule on the pending unitary status motion. We affirm the order of the district court. Background The early history of this litigation is chronicled in our earlier opinions and will only be summarized here.1 1 See Liddell v. Board of Educ., 882 F.2d 298 (8th Cir. 1989); Liddell v. Board of Educ., 873 F. 2d 191 (8th Cir. 1989); Liddell v. Missouri, 731 F.2d 1294 (8th Cir.) 5 In 1972, the plaintiffs brought an action against the Board of Education of the City of St. Louis (City Board) alleging that the city schools were segregated by race as a matter of state law and practice. Thereafter, the State of (en banc), cert. denied, 469 U.S. 816 (1984) (Liddell VII); Liddell v. Board of Educ., 677 F.2d 626 (8th Cir.), cert. denied, 459 U.S. 877 (1982) (Liddell V); Liddell v. Board of Educ., 667 F.2d 643 (8th Cir.), cert. denied, 454 U.S. 1081 (1981) (Liddell III); and Adams v. United States, 620 F.2d 1277 (8th Cir.) (en banc), cert. denied, 449 U.S. 826 (1980). 6 Missouri was joined as a party defendant. The plaintiffs and the United States as amicus submitted desegregation plans to the district court. The district court held a trial and found no constitutional violation. We reversed, holding that prior to 1865 the State prohibited the creation or maintenance of schools for teaching black children to read or write and that, after that date until 1980, the City Board and the State were jointly responsible for maintaining a segregated school system. Adams v. United States, 620 F.2d 1277, 1280 (8th Cir.) (en banc), cert. denied, 449 U.S. 826 (1980).2 We further noted that the City Board and the State failed to take effective measures to desegregate the school system in the years immediately following Brown v. Board of Education, 347 U.S. 483 (1954). We remanded the matter to the district court with directions to develop and implement a plan to integrate the St. Louis public schools. On remand, the district court ordered the implementation of a mandatory desegregation plan within the city schools with funding to be shared equally by the City Board and the State. The district court directed the City Board and the State to develop and submit plans to alleviate the segregated conditions within the city schools through interdistrict transfers between the city and the suburban school districts. Liddell v. Board of Educ., 491 F. Supp. 351 (E.D. Mo. 1980). The Liddell and Caldwell plaintiffs (representing black parents and students) and the Adams plaintiffs (representing white 2 Only one party, the Adams plaintiffs, petitioned the Supreme Court for a writ of certiorari. The State did not file a petition. 7 parents and students) appealed.3 The State contended that it should not be required to pay any of the costs of integration and specifically challenged paragraph 12 of the district court’s order which provided: 3 The Liddell plaintiffs contended that the plan did not go far enough to remedy the defendants’ discriminatory practices; and the Adams plaintiffs contended that the district court had gone too far in its St. Louis School District reassignment plan. 8 12. The State defendants, the United States, and the St. Louis Board of Education are ordered and directed as follows: a) To make every feasible effort to work out with the appropriate school districts in the St. Louis County and develop, for 1980-81 implementation, a voluntary, cooperative plan of pupil exchanges which will assist in alleviating the school segregation in the City of St. Louis, and which also insures that inter- district pupil transfers will not impair the desegregation of the St. Louis school district ordered herein, and submit such plan to the Court for approval by July 1, 1980. Id. at 353. We affirmed, noting that “the voluntary exchanges contemplated by section [12](a) must be viewed as a valid part of the attempt to fashion a workable remedy within the City.” Liddell v. Board of Educ., 667 F.2d 643, 651 (8th Cir.), cert. denied, 454 U.S. 1081 (1981). On August 24, 1981, the district court added eighteen St. Louis County suburban school districts (County Districts) as parties defendant and entered various other orders relating to desegregation of the city schools. The County Districts, the State, and the City Board appealed. The State contended that it could not be required to implement a remedy affecting County Districts until a hearing had been held. The Adams plaintiffs contended the district court could order the State to consolidate city and county schools if necessary to effectuate desegregation of the city schools and that 9 these actions could be taken without additional hearings or liability findings. The City Board argued that the district court orders were not reviewable. We held that the court order adding additional parties was not appealable. We stated: The district court has yet to issue an order that impacts any of the county schools or units of government. Thus, we are being asked not to rule on a specific plan but to anticipate what the district court may have in mind and to instruct it as to what it can or cannot do. The most that can be said 10 is that the district court has indicated in one or more of its orders that it may take actions which impact significantly on St. Louis County school districts. Liddell v. Board of Educ., 677 F.2d 626, 641 (8th Cir.), cert. denied, 459 U.S. 877 (1982). We remanded to the district court for action consistent with our opinion. On August 6, 1982, the district court entered an order in which it disclosed that if it held a hearing and found that the County Districts had committed constitutional violations that contributed to the segregation of the St. Louis School District, it would order the consolidation of the city and county schools. The court scheduled interdistrict liability hearings. Before the hearings were held, however, the City Board, the Liddell plaintiffs, the Caldwell plaintiffs, and all eighteen County Districts entered into a settlement agreement that settled the plaintiffs’ interdistrict claims against the eighteen County Districts. The agreement provided for voluntary interdistrict transfers between city and county schools and included fiscal incentives to be funded by the State to encourage the transfers. Each district receiving sufficient transfers within five years to satisfy its desegregation obligations would receive a final judgment.4 The State, having been found to be the primary constitutional violator, was ordered to fund the transfer of city 4 The settlement agreement further provided “that after a school district receives an order granting it final judgment, it has a continuing obligation to: ‘cooperate in the recruitment and promotion of transfers . . . .’” Liddell v. Board of Educ., 96 F.3d 1091, 1094 (8th Cir. 1996) (quoting Appellants’ Jt. App. at 108). 11 students to the County Districts. We affirmed the district court in an en banc opinion and set forth our reasons in great detail. Liddell v. Missouri (Liddell VII), 731 F.2d 1294, 1301-09 (8th Cir.) (en banc), cert. denied, 496 U.S. 816 (1984).5 5 In a subsequent opinion, Liddell v. Board of Educ., 851 F.2d 1104, 1105 (8th Cir. 1988), we noted that 12,000 black students were then enrolled in the County Districts. This number has remained relatively constant up to the present. The County Districts state in their current briefs that they are willing to continue to accept the voluntary transfers under the terms of the settlement agreement. Most, if not all, of the County Districts have achieved the plan ratios or goals established under the settlement agreement. 12 In Liddell v. Board of Education, 873 F.2d 191, 192 (8th Cir. 1989), the State appealed from a district court order “clarifying the extent of Missouri’s funding obligations for interdistrict student transfers in the . . . desegregation case.” It took the position that when a County District had achieved its designated plan ratio, the State was no longer required to pay for transfers. The State sought further clarification of its funding obligation. We stated: Missouri’s obligation is to fund interdistrict transfers necessary to reach 15,000 students--no more, no less. . . . The parties agree the total number of students currently attending county schools under the interdistrict transfer program is less than 15,000. Thus, Missouri’s obligation to fund interdistrict transfers has not yet been fulfilled. Insofar as the district court’s order restoring state funding complies with this portion of our opinion, we affirm. Furthermore, the parties shall take whatever steps are necessary to ensure that 15,000 city students are enrolled in the county schools. In light of the parties’ progress to date, this goal is attainable, and it must be achieved at the earliest opportunity. Id. at 194. No petition for a writ of certiorari was filed. We were asked to clarify our opinion a few months later. We again stated: 1. Missouri is obligated to fund voluntary transfer students up to a total of 15,000, regardless of any individual county district’s Plan Ratio and/or Plan Goal attainment. . . . 2. The state’s obligation to fund the voluntary transfer of students will continue 13 until such time as the state is relieved of that obligation. Liddell v. Board of Educ., 882 F.2d 298, 299 (8th Cir. 1989). Again, no petition for a writ of certiorari was filed. 14 In October 1991, the State filed the first of three motions to declare the St. Louis School District unitary, terminate desegregation funding, and release all defendants from court supervision. The United States, the City Board, and the plaintiffs responded that consideration of unitary status was premature. The State did not reply to the responses. Instead, it filed a new motion on May 7, 1992, requesting partial unitary status. The district court held that while the State’s request was premature, the State was entitled to answers to certain discovery requests because a future declaration of unitary status might be warranted. The State did not appeal this ruling to this court. In November 1993, the State filed an amended motion for unitary status. It informed the court that it would be prepared to present evidence in support of its amended motion within one year. Eleven months later the State asked the district court for a hearing date on its motion for unitary status. On February 28, 1995, the district court scheduled a hearing for September 1995. This hearing was later rescheduled for March 1996. On January 4, 1996, while the unitary status motion was still pending, the State filed a motion to terminate the VITP on the basis of Jenkins III. It described its motion as conditional and not ripe for court action because it desired a ruling on its motion only if the court failed to enter a finding of unitary status following the hearing scheduled for March 1996. The City Board and the plaintiffs requested that the hearing on unitary status be postponed while the State’s Jenkins III motion was adjudicated. The plaintiffs, joined by the 15 United States, alternatively requested that the court appoint a settlement coordinator to resolve the litigation without the need for trial. The State again requested that the Jenkins III issue be addressed only after a hearing on its unitary status motion and then only if the unitary status motion was not granted in full. On February 15, 1996, the court denied the State’s Jenkins III motion as not ripe. It also denied the request to postpone the hearing on unitary status and decided that the 16 appointment of a settlement coordinator would be more beneficial after a hearing on the State’s unitary status motion had been held. The court stated that: [It] agreed with plaintiffs that the best resolution of this case would be an agreed-upon plan for ending Court supervision of the St. Louis Public Schools. The Court however is reluctant to continue the hearing. It may well be that the possibility for settlement will be greater following the hearing, at which time the appointment of a Settlement Coordinator would be appropriate and beneficial. G(1939)96 at 2. The State did not appeal the order denying its Jenkins III motion. In March 1996, following extensive discovery, the district court conducted a three-week unitary status hearing. Following the hearing, it appointed Dr. William H. Danforth, former Chancellor of Washington University of St. Louis, as the settlement coordinator. It gave the coordinator broad powers designed to stimulate negotiations and directed the parties and their counsel to attend all meetings scheduled by the settlement coordinator and to participate in good faith in the negotiations. It ordered “that all components of the settlement agreement now in force shall continue as they are currently operating.” G(2062)96. On June 26, 1996, the district court, responding to a motion by the State, held that settlement negotiations would be kept confidential, that the settlement coordinator should not recommend to the court how the case should be resolved, and refused to set a time limit 17 for the parties to continue negotiations, indicating it was confident that the settlement coordinator would proceed with all diligence. G(2134)96. On July 24, 1996, the State appealed district court orders G(2062)96 and G(2134)96, and sought a stay of the interdistrict component of the desegregation remedy pending appeal of the order appointing the settlement coordinator. It sought alternative remedies limiting its obligations under the desegregation plan. The district 18 court denied motions for a stay pending appeal on August 14, 1996. G(2175)96. This court and Justice Thomas, as Circuit Justice, denied substantially similar motions for a stay. The State again appealed the denial of the stay motion. This court consolidated and then dismissed all pending appeals. We noted that G(2062)96 and G(2134)96 were interlocutory and related to settlement procedures and case management and could not be characterized as appeals from orders denying an injunction. We stated that “[a] district court, particularly in school desegregation cases, has broad discretion to control its docket and has the necessary flexibility to shape remedies that adjust public and private needs.” Liddell v. Board of Educ., 105 F.3d 1208, 1212 (8th Cir. 1997). With respect to G(2175)96, we stated: The State argues that the district court erred because it effectively denied its motion for unitary status. We disagree. The district court has yet to rule on the State’s unitary status motion. The district court in this case has not refused to rule on the State’s motion that the St. Louis School District be declared unitary. It has simply postponed post-hearing briefing and deferred final ruling on this matter. We cannot review a matter that has not been ruled on by the district court. We lack jurisdiction over the State’s claim that the district court has erroneously denied its motion for unitary status. Id. The State filed a petition for rehearing en banc; that petition was denied on May 7, 1997. No petition for a writ of certiorari was filed. 19 On March 14, 1997, the State moved the district court for an order directing that all parties immediately cease efforts to recruit and admit new students into the VITP and relieve the State from any funding obligations with respect to such students. The State made the same argument in this motion as it made in Liddell v. Board of Education, 105 F.3d 1208 (8th Cir. 1997), that the VITP violates Jenkins III. On April 10, 1997, the district court denied the State’s motion, stating that it did so for the 20 reasons set forth by the responses of certain county districts, the United States, the Caldwell-NAACP plaintiffs, and the City Board. The State now appeals.6 The District Court Did Not Abuse Its Discretion in Denying the State’s Motion to Phase Out the VITP The State appeals from a district court order denying its motion for an order (1) directing that all parties and all court advisory panels immediately cease all efforts to recruit and admit new students into the VITP, and (2) relieving the State from any funding obligations as to such students. We ruled against the State on a similar question only eight months ago and held that the district court did not abuse its discretion in denying the State’s request. Liddell, 105 F.3d at 1212. No new arguments are advanced that cause us to change our position at this time. Settlement negotiations are still ongoing. At oral argument, counsel for the State asserted that settlement negotiations have reached an 6 The County Districts maintained that, while they took no position regarding when the VITP might be phased out, a sufficient amount of “lead time” would be necessary to prevent disruption to students, parents, and staff as well as to preserve the interests of sound budgetary and operational management. The United States contended that the settlement process should be permitted to run its course and that the State’s Jenkins III motion was not yet ripe. The Caldwell plaintiffs argued that the State had already lost its challenge to the continuation of the VITP and questioned the State’s public posturing during the settlement process. They maintained that the State had made no showing that the city schools, faculty, etc. were capable of absorbing returning students if the VITP were terminated. The City Board argued that the State’s motion should be denied because it undermined the settlement process, failed on the merits, and violated the mandate from Freeman v. Pitts, 503 U.S. 467 (1992), that requires a transition phase for the orderly withdrawal of court supervision. 21 impasse, but counsel for all the other parties disagreed. As all parties are bound by a district court order to maintain confidentiality and as the settlement coordinator has not yet filed a report indicating an impasse, we 22 can only assume the settlement coordinator is making every effort to resolve the many complex issues that must be addressed.7 It is important to bear in mind that the current school desegregation plan is based on a “unique and comprehensive settlement agreement” approved by this court sitting en banc in 1984. Liddell, 731 F.2d at 8 1297. We note that all parties other than the State have indicated a willingness to continue essential elements of the plan, including the interdistrict transfer of black city students to the County Districts. Settlement is the preferred method of resolving protracted school desegregation cases. As recently as 7 We note that as recently as September 10, 1997, the attorney general of the State of Missouri made public a new proposal to end the litigation. We assume the settlement director and all parties to this litigation were notified of the proposal and that this proposal, as well as others, will be considered by the parties in settlement negotiations. 8 This desegregation plan resulted from a settlement agreement encouraged by the Honorable William L. Hungate, United States District Judge for the Eastern District of Missouri. In encouraging the parties to settle, he stated: Society’s greatest opportunities lie in encouraging human inclinations toward compromise, rather than stirring our tendencies for competition and rivalry. If lawyers, educators, and public officials do not help marshall cooperation and design mechanisms that promote peaceful resolution of conflicts, we shall miss an opportunity to participate in the most creative social experiments of our time. Liddell v. Board of Educ., 567 F. Supp. 1037, 1041 (E.D. Mo. 1983) (citation omitted). 23 1990 in considering the proposed settlement of the Little Rock School District desegregation case, we stated: 24 The law strongly favors settlements. Courts should hospitably receive them. This may be especially true in the present context--a protracted, highly divisive, even bitter [desegregation] litigation, any lasting solution to which necessarily depends on the good faith and cooperation of all the parties, especially the defendants. As a practical matter, a remedy that everyone agrees to is a lot more likely to succeed than one to which the defendants must be dragged kicking and screaming. Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 921 F.2d 1371, 1383 (8th Cir. 1990). Consistent with this court’s preference, we recently approved a settlement agreement in the Kansas City School District desegregation case. Jenkins v. Missouri, No. 97- 1968, slip op. at 35 (8th Cir. Aug. 12, 1997).9 Given the long history of state-mandated, segregated schools, the complexity of the issues, and the difficulty of developing a plan that will ensure that students of all races will have a continuing equal opportunity for a quality, integrated education, the district court did not abuse its discretion in denying the State’s motion to phase out the voluntary transfer of black city students to the County Districts pending settlement negotiations. 9 The general principle that the law favors settlement agreements has been recognized for over 100 years. See Williams v. First Nat’l Bank, 216 U.S. 582, 595 (1910) (compromises of disputed claims are favored by the courts) (citing Hennessy v. Bacon, 137 U.S. 78 (1890)). This principle is recognized in desegregation cases. Armstrong v. Board of Sch. Dirs., 616 F.2d 305, 313 (7th Cir. 1980)); Jones v. Caddo Parish Sch. Bd., 704 F.2d 206, 221 (5th Cir. 1983). See also Daniel J. McMullen and Irene Hirata McMullen, Stubborn Facts of History--The Vestiges of Past Discrimination in School Desegregation Cases, 44 Case W. Res. L. Rev. 75 (1993)). 25 There can be no doubt as to the complexity of the issues that need to be resolved either by settlement or court order. For example, over the course of several years, approximately 12,000 black city students per year have voluntarily transferred from city schools to county schools. Ending or phasing out this program will inevitably lead to 26 a significant increase in the black population of the St. Louis School District and may well result in the resegregation of the St. Louis schools through something other than a change in demographic factors. Moreover, the desegregation plan involves remedial programs, magnet schools, student assignments, teacher exchanges, and other programs designed to give students of all races an equal opportunity for a quality, integrated education, each of which must be independently considered pursuant to Green v. New Kent County School Board., 391 U.S. 430 (1968), and Freeman v. Pitts, 503 U.S. 467 (1992). From the beginning, the plan has relied on state and city funding. All elements of the plan have been repeatedly subject to district and circuit court review, many of which became the subject of petitions for writs of certiorari to the United States Supreme Court. See note 1, supra. Under these circumstances, we do not believe that the district court abused its discretion in refusing the State’s request to enjoin the parties and panels from immediately ceasing all efforts to recruit and admit new students into the VITP and relieve the State from any funding obligations as to such students pending settlement negotiations. The Unitary Status Motion In the event the district court determines that an impasse in the settlement negotiations has been reached, it must then decide the State’s pending motion to have the St. Louis School District declared unitary and determine the consequences that flow from that decision. In reaching these decisions, the district court shall be guided by the Supreme Court’s decisions in Freeman, 27 Dowell v. Board of Education of Oklahoma City Public Schools, 498 U.S. 237 (1991), and Green. It is clear from these decisions, particularly Freeman and Dowell, that the Supreme Court requires that once a school district has achieved unitary status, a district court should not deny that status to a school district because of demographic factors or changes since the desegregation plan was initiated. The Court made clear in Dowell 28 that on obtaining unitary status, the defendant school district would not return to its former ways.10 Herein lies the problem. The historical record reveals that significant progress has been made in providing equal opportunities through the programs that have been in effect for several years. As previously noted, if some or all of these programs are ended by a declaration that the St. Louis School District has achieved unitary status, then the immediate effect will most probably be a significant resegregation of the city schools. The inescapable result would be that approximately 12,000 black students would be reassigned to the city schools, thereby increasing the degree of segregation in those schools. Unlike the situation in Freeman and Dowell, the resegregation would not result from changed demographic factors. Moreover, segregation may very well be increased in the city schools if the magnet or remedial programs are either eliminated or limited in scope and the students are reassigned on the basis of neighborhood schools rather than on the current basis, which is designed to secure the maximum 10 The Court stated that: In the present case, a finding by the District Court that the Oklahoma City School District was being operated in compliance with the commands of the Equal Protection Clause of the Fourteenth Amendment, and that it was unlikely that the Board would return to its former ways, would be a finding that the purposes of the desegregation litigation had been fully achieved. No additional showing of ‘grievous wrong evoked by new and unforeseen conditions’ is required of the Board. Dowell, 498 U.S. at 247. 29 desegregation practicable.11 We do not say and are not prepared to say at this time how the mandate of the Supreme Court, particularly in Dowell that 11 It may well be, as Freeman points out, that some elements of the program are unitary and will remain so if that status is declared. The Supreme Court states that each element is to be treated independently. Freeman, 503 U.S. at 489. 30 resegregation should not result from a declaration of unitary status, can be achieved; but the issue is one that must be dealt with either in settlement negotiations or by district court order. The State does not dispute the fact that ending the voluntary interdistrict transfer of black city students to the County Districts and limiting its other responsibilities will probably result in some resegregation of the city schools. Nor does it dispute that black students in St. Louis were either denied an education or limited to attending segregated schools for at least 140 years, resulting in savings to the St. Louis School District and the State. See Adams v. United States, 620 F.2d 1277 (8th Cir. 1980). Rather than address these issues, the State argues that it has expended large sums of money in the twenty years that this program has been in effect, it has done its share, and the time has come to end its responsibilities in the matter. In support of ending its obligations, the State points to the fact that it has initiated a number of programs that have particular benefit to disadvantaged city students12 and has publicly proposed to settle its obligations by making a lump sum payment to the St. Louis School District. The district court must take all of these factors into consideration in determining whether to grant full 12 These programs include a comprehensive school improvement program, reading intervention programs, drug-free schools program, emphasis on early childhood education, early childhood programs, AIDS awareness education, unwed mothers’ education, gun-free schools, provision of medical services to Medicaid-eligible school children, and Missouri’s nationally-renowned “Parents as Teachers” program. See Mo. Rev. Stat. §§ 162.300; 167.268, .270, .294, .606; 191.668; 195.214; 571.030. 31 or partial unitary status and what the defendants’ continuing obligations will be if such status is granted. We will not prejudge that matter or issue an advisory opinion. We merely repeat that the complexity of the issues involved support the view heretofore expressed that the best way to resolve these problems and provide a quality, integrated education to all city students is through good-faith settlement negotiations. 32 The Jenkins III Issue The State’s principal argument is that the district court is without discretion in this matter and that Jenkins III requires that the VITP be phased out now. We do not agree that Jenkins III requires this result. A premise of Jenkins III was that the trial court specifically found that no interdistrict violation had taken place. No such determination has been made here.13 To the contrary, from the beginning the plaintiffs asserted interdistrict violations. Rather than contest these allegations, the County Districts entered into a settlement agreement under which they agreed to accept a significant number of transfer students and in return were promised judgments relieving them from any possible constitutional violations. Under these circumstances, it would be wholly inappropriate for this court to make an initial determination with respect to an interdistrict violation. Making such a determination would invade the province of the district court and would be unfair to the parties by denying them the opportunity, should it become necessary, to litigate the interdistrict violation issue. To require the County Districts to litigate this issue now, after voluntarily accepting thousands of city transfer students for twenty years, would violate their fundamental right to due process. The plaintiffs would 13 Justice O’Connor stated in Jenkins III in discussing the Kansas City School District, “Neither the legal responsibility for nor the causal effects of . . . racial segregation transgressed its boundaries, and absent such interdistrict violation or segregative effects, Milliken and Gatreaux do not permit a regional remedial plan.” Jenkins III, 115 S. Ct. at 2059 (O’Connor, J., concurring). 33 be equally deprived if they were denied the opportunity to prove interdistrict violations. Moreover, the fundamental and undisputed fact remains that the State has been found to be the primary constitutional violator, and this court has consistently held in panel and in en banc opinions that the State could be required to fund the VITP. See note 1, supra. Even if it were appropriate for us to address that issue today, however, this court could not make a proper determination without a complete record. In order 34 to apprehend fully the constitutional violations as they existed many years ago, we must employ something more rigorous than hindsight, guesswork, and speculation. In Jenkins III, Chief Justice Rehnquist, speaking for the Court, stated that the Kansas City desegregation plan was grounded in “improving the desegregative attractiveness of the” Kansas City, Missouri School District (KCMSD). Jenkins III, 115 S. Ct. at 2050. Here, neither “desegregative attractiveness” nor “suburban comparability” were the basis of the settlement agreement or the district court’s or this court’s approval of the settlement plan. Rather, the plan was premised on the fact that both the State and the County Districts opposed consolidation of the city and county districts and a voluntary transfer plan could and would be an integral factor in desegregating the city schools. Everyone but the State agreed to this solution, and it offered no alternative designed to secure the black city students an opportunity for an equal education. The premise has proven valid, and the St. Louis schools have achieved a high degree of integration. We also note that Justice O’Connor, who concurred in the plurality opinion in Jenkins III, stated that the district court found “that the segregative effects of KCMSD’s constitutional violation did not transcend its geographical boundaries.” Jenkins III, id. at 2060. As previously noted, there has been no such finding in this case. Indeed, the parties are still at odds as to whether interdistrict violations occurred; and rather than have this argument resolved after lengthy litigation, the plaintiffs, the City Board, the County Districts, and the United States agreed to the VITP. 35 Justice O’Connor also noted the limited nature of the Jenkins III decision and remand, stating that “[t]he Court today discusses desegregative attractiveness only insofar as it supports the salary increase order under review, . . . and properly refrains from addressing the 36 propriety of all the remedies that the District Court has ordered, revised, and extended in the 18-year history of this case.” Id. at 2061.14 There is, of course, language in the majority opinion in Jenkins III suggesting that no interdistrict relief can be granted unless an interdistrict violation or segregative effects have been proved. This language must be tempered by the facts in Jenkins III and limited nature of the actual holding. In our view, the question remains sufficiently open to permit us to follow our numerous precedents and hold that Jenkins III does not require us to hold that the VITP must be terminated or phased out at this time. Conclusion We affirm the order of the district court denying the State’s motion to end all efforts to recruit and admit new students into the VITP for the 1997-98 school year. The district court did not abuse its discretion in denying the State’s motion to phase out the voluntary transfer of black city students to the County Districts pending settlement negotiations. Its decision to do so was not contrary to the Supreme Court’s decision in Jenkins III. We renew our encouragement to the parties to make every effort to resolve this matter so that 14 The district court determined that the KCMSD had attained unitariness in only one of the five aspects enumerated in Green, 391 U.S. at 435. Jenkins v. Missouri, No. 77-0420-CV-W-RGC, slip op. at 28-37, 59 (W.D. Mo. Mar. 25, 1997). We affirmed the district court’s order. Jenkins v. Missouri, No. 97-1968, slip op. (8th Cir. Aug. 12, 1997). 37 students of all races will have a continuing equal opportunity for a quality, integrated education. In the unfortunate event that the negotiations reach an impasse, the district court should promptly rule on the pending unitary status motion. 38 A true copy. Attest. CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. 39
15 So.3d 583 (2009) THOMAS v. STATE. No. 1D09-1568. District Court of Appeal of Florida, First District. August 10, 2009. Decision without published opinion Belated Appeal denied.
39 Wn.2d 163 (1951) 234 P.2d 878 BEATRICE WHEATLEY et al., Respondents, v. WASHINGTON JOCKEY CLUB, Appellant.[1] No. 31646. The Supreme Court of Washington, Department Two. August 16, 1951. Preston, Thorgrimson & Horowitz, for appellant. Charles M. Stokes, for respondents. SCHWELLENBACH, C.J. This is an appeal from a judgment in favor of respondents and against appellant in the amount 164 of two hundred dollars and costs entered in an action for damages for unlawful arrest. [1] No statement of facts is brought up, and the sole question for review is whether or not the findings sustain the judgment. Leiva v. King County, 38 Wn. (2d) 850, 232 P. (2d) 532. The findings of fact and conclusions of law are as follows: "FINDINGS OF FACT I. "That on or about July 27, 1949, defendant, acting through its agent, one Vincent Murphy, ordered and directed two peace officers of the State of Washington who were employees of defendant, to bring plaintiff, BEATRICE WHEATLEY, a paying patron of defendant's race track, to said Murphy's office on defendant's premises for questioning with reference to the loss of a purse and contents by another patron of defendant's race track. That said peace officers carried out said order and direction and, the manner and means in which they did so constituted an arrest of said plaintiff. II. "That said Murphy, in ordering and directing said arrest had reasonable grounds to believe that the crime of grand larceny had been committed, and that said plaintiff was the perpetrator thereof. That said peace officers did not have said grounds in that they were only advised that a purse containing $21.00 had been stolen other than from the person of the owner. III. "That by reason of the aforesaid matters, said arrest was unlawful and caused embarrassment to the said plaintiff, all to plaintiff's damages in the sum of $200.00.... "And from the foregoing Findings of Fact, the Court now makes and enters its following CONCLUSIONS OF LAW I. "That plaintiffs are entitled to judgment against defendant in the sum of $200.00, and for their costs and disbursements herein." [2] Police officers may detain or arrest on suspicion of a felony without a warrant for an offense not committed in their presence, if they have reasonable grounds to believe the person arrested committed the felony. State v. Britton, 137 Wash. 360, 242 Pac. 377, 247 Pac. 9. 165 Appellant contends that the acts of its agent Murphy were the acts of appellant corporation; that, in turn, the acts of the police employees of appellant were those of Murphy, who ordered the arrest; that the arrest, therefore, was the act of appellant corporation and was ordered by its agent, who, as found by the trial court, had reasonable grounds on which to act; that, when an officer arrests a person as a result of instructions from another, such arrest is in law effected by him who gave the instruction. [3] This theory would be correct if the acts of the police officers were performed in carrying out their duties as public officers, but not when they were acting in the performance of the duties for which they were employed. The question is: Did they, at the time of making the arrest, represent the employer or the public? The rule is stated in 22 Am. Jur. 385, False Imprisonment, § 45: "The general rule is that in the absence of statute, a private person or corporation is not responsible for the acts of a special police officer, appointed by public authority, but employed and paid by the private person or corporation, when the acts complained of are performed in carrying out his duty as a public officer. The acts of such a person are, prima facie, those of a public officer, not rendering the private employer liable. It does not follow, however, that because a servant is also a police officer, all his acts are of a public nature; and where he is acting in the performance of the duties for which he is employed, or his movements are actively directed by his employer in other words, where he represents his employer and not the public such employer may become liable for his acts. The acts of a special policeman in making an arrest cannot be ratified so as to render his employer liable, where the policeman acts in the matter as an agent of the state and not of the employer." See, also, Hayes v. Sears, Roebuck & Co., 34 Wn. (2d) 666, 209 P. (2d) 468. The cases relied on by appellant are ones in which the arresting officers were acting in their public capacity, and are not in point. [4] The arrest here was the combined act of Murphy and the police officers. It is true that the actual confinement was made by the latter, upon the order and direction of *166 Murphy. However, there can be no question but that the officers, when they made the arrest, were representing their employer and not the public. Although they acted upon the order and direction of Murphy, their act of arresting respondent wife was not in the service of Murphy, but in the service of appellant corporation. At that time, they did not have reasonable grounds to believe that the crime of grand larceny had been committed. Appellant corporation cannot be heard to say that, because its right hand acted legally, it is not responsible for the illegal acts of its left hand. Appellant urges that the trial court was in error in holding that the arresting officers did not have reasonable grounds to believe that the crime of grand larceny had been committed because they were advised of the fact that $21 and a purse had been stolen. Appellant asks the question: "Unless the court can say as a matter of law that no purse is worth $4, would not the officers be justified in reasonably assuming that at least $25 was involved in the matter?" In answer, we say that, with no statement of facts, we are limited to the finding of the trial court that the officers did not have reasonable grounds to believe that the crime of grand larceny had been committed. The judgment is affirmed. MALLERY, GRADY, HAMLEY, and WEAVER, JJ., concur. September 5, 1951. Petition for rehearing denied. NOTES [1] Reported in 234 P. (2d) 878.
934 S.W.2d 771 (1996) Joanne H. PRICE, Appellant, v. PHILADELPHIA AMERICAN LIFE INSURANCE COMPANY and Gerald Noelle, Appellees. No. 14-95-00607-CV. Court of Appeals of Texas, Houston (14th Dist.). September 26, 1996. Rehearing Overruled December 12, 1996. Peter Costea, Houston, for appellant. John A. Sieger, Houston, for appellees. Before LEE, AMIDEI and EDELMAN, JJ. OPINION AMIDEI, Justice. Joanne H. Price (Price) appeals from a summary judgment dismissing her case for want of jurisdiction. Appellant filed suit against her employer, Philadelphia American Life Insurance Company (PALICO) and Gerald Noelle, a managerial employee of PALICO, for employment discrimination under sections 21.00l, et seq., of the Texas Labor Code. Appellee PALICO filed a motion for summary judgment alleging no complaint was filed by Price with the Texas Commission on Human Rights (TCHR) as required by section 21.201 of the Texas Labor Code. The court below granted summary judgment to PALICO and dismissed the case as to it for want of jurisdiction and appellee Noelle was thereafter nonsuited and dismissed. PALICO is the only appellee to this appeal; Noelle did not join as co-appellee. Appellant contends in one point of error the trial court erred in granting summary judgment dismissing her case for want of jurisdiction. We reverse and remand for trial. Price was employed by appellee between 1991 and 1994 as Director of Information Technology. Price applied for and was denied a promotion to Vice President of Information Technology. Price contends she was qualified for this position but was passed over because of her race and sex. Price is African-American and female. Appellee hired a male for the position who was not a member of a racial minority. Price filed an EEOC Form 5, "Charge of Discrimination," with the federal Equal Employment Opportunity Commission (EEOC), giving April 4, 1994, as the date of the alleged unlawful employment practice. Price signed the form 772 under the unsworn declaration portion which provided "I declare under penalty of perjury that the foregoing is true and correct," and dated it April 8, 1994, pursuant to 28 U.S.C. § 1746, which provides in pertinent part: Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form: (2) If executed within the United States, its territories, possessions, or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)". The heading on the "Charge of Discrimination" EEOC Form 5 submitted by Price to the EEOC was: "Texas Commission on Human Rights and EEOC." EEOC Form 212, "Charge Transmittal," dated April 12, 1994, was attached in support of Price's first amended response to appellee's motion for summary judgment and stated, in part: "Transmitted herewith is a charge of employment discrimination initially received by the: EEOC on April 7, 1994." The form had a block checked which provided, "Pursuant to the worksharing agreement, this charge is to be initially investigated by the EEOC." The transmittal form (EEOC Form 212) was mailed to TCHR by EEOC, and provided pre-printed form answers with blocks to be checked for the appropriate reply by TCHR. Mr. William Hale, the director of TCHR, signed the transmittal form sent to TCHR on April 19, 1994, and checked the block which provides: "This will acknowledge receipt of the referenced charge and indicate this Agency's intention not to initially investigate the charge." The form was returned to EEOC and made a part of their records in Price's complaint. "Notice of Right to Sue," EEOC Form 161-B, was issued and sent to Price on December 27, 1994. "Notice of Right to File a Civil Action," a letter form, was sent to Price's attorney by TCHR and dated November 2, 1994. Price filed her suit against appellees on December 22, 1994. An amended EEOC Form 5, "Charge of Discrimination," was mailed by Price's attorney to TCHR by letter dated April 26, 1995, after suit had been filed by Price, and over 180 days after April 4, 1994, the date the alleged act of discrimination occurred. The amended form added a jurat provided on the form which states: "When necessary to meet State and Local Requirements." Price signed on the line provided for her signature and a notary public, Kristin L. Boyd, acted as the officer administering the oath. Price again signed the unsworn declaration portion of the form and both verifications were dated April 24, 1995. PALICO argues the trial court had no jurisdiction unless Price filed a complaint with TCHR and since she filed nothing with TCHR, the trial court had no jurisdiction. We disagree. The issue in this case is: Did Price timely file a complaint with TCHR as required by sections 21.201 and 21.202 of the Texas Labor Code? Appellee has waived any claim to improper verification by Price in its brief stating there is no legitimate verification issue in this case. Appellee's attorney also advised this court on oral argument that it was not claiming improper verification of Price's EEOC Form 5 initially submitted by her to EEOC on April 8, 1994. Therefore, we address only the issue of filing of a complaint with TCHR as being dispositive of this appeal. The general purposes of Chapter 21 of the Texas Labor Code are to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments (42 U.S.C. § 2000e, et seq.) and provide for the execution of the policies embodied 773 in Title I of the Americans with Disabilities Act of 1990. Tex. Lab.Code Ann. § 21.001 (Vernon 1996). When Texas case law fails to address questions raised under the statute, we look to federal case law for guidance. Benavides v. Moore, 848 S.W.2d 190, 193 (Tex.App.Corpus Christi 1992, writ denied). The filing of a complaint under section 21.201 of the Texas Labor Code is mandatory. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 488 (Tex.1991). Price's EEOC Form 5 was timely filed with EEOC, on April 8, 1994, according to the date written on the form. The EEOC transmittal form to TCHR dated April 12, 1994, is date stamped by TCHR April 15, 1994, and receipt of the charge of discrimination was acknowledged by William Hale, director of TCHR, April 19, 1994. The EEOC Form 5, "Charge of Discrimination" was addressed to both TCHR and EEOC. The "filing" of the complaint occurred when TCHR received the "Charge of Discrimination," EEOC Form 5, dated April 8, 1994 (or April 7, 1994, which is the date shown on the transmittal form from EEOC) with the transmittal form from EEOC on April 15, 1994. Appellee argues that Price did not mail a complaint to TCHR or take it there and physically "file" the complaint with the Texas commission and the transmittal by EEOC was not a "filing" contemplated by Section 21.201(a), Texas Labor Code, requiring a filing with the TCHR before a suit for employment discrimination may be maintained. Section 21.201(a), Texas Labor Code, provides: "A person claiming to be aggrieved by an unlawful employment practice or the person's agent may file a complaint with the commission." In Urrutia v. Valero Energy Corp., 841 F.2d 123, 125 (5th Cir.1988) cert. denied, 488 U.S. 829, 109 S.Ct. 82, 102 L.Ed.2d 59 (1988), the court held, in pertinent part: [A]ll that was required to institute state proceedings was a minimal filing with the TCHR, which was accomplished when the EEOC transmitted appellant's discrimination charge on a standard form on August 8, 1985. We hold that such proceedings were thereby initially instituted. Id. at 125. The holding in Urrutia was reaffirmed in Washington v. Patlis, 868 F.2d 172 (5th Cir. 1989). In Griffin v. City of Dallas, 26 F.3d 610 (5th Cir.1994), the court discussed institution of state proceedings and stated, in pertinent part: In August 1989, the TCHR and the EEOC entered a Worksharing Agreement which was designed "to minimize duplication of effort in the processing of charges and to achieve maximum consistency of purpose and results." (footnote omitted). Worksharing Agreement § 1(a). The TCHR designated the EEOC as its limited agent for receiving charges in section 2(a) of the Worksharing Agreement: "The [TCHR] by this agreement designates and establishes the EEOC as limited agent of the [TCHR] for the purpose of receiving charges on behalf of the [TCHR] and EEOC agrees to receive such charges." Worksharing Agreement § 2(a). Under the plain terms of this agreement, when Mr. Griffin filed his discrimination complaint with the EEOCa complaint which was also addressed to the TCHR the EEOC accepted that complaint, not only for its own purposes, but also for the purposes of the TCHR. Hence, upon the EEOC's receipt of the complaint, the TCHR, for all legal and practical purposes, received the complaint. As in Urrutia, we hold here that once the TCHR received Mr. Griffin's complaint, even if only nominally, proceedings were instituted within the meaning of section 706(e) [Civil Rights Act, now 42 U.S.C. § 2000e-5(e)(1) (Supp. 1993)]. Id. at 612-13. Federal Title VII case law is recognized as persuasive authority in Texas courts. In Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70 (Tex.App.Austin 1990, no writ), the court held: "The stated purposes of the Texas act [Commission on Human Rights Act, now Tex. Lab.Code Ann. § 21.001, et seq. (Vernon 1996)] suggest that the state legislature *774 intended it to conform to policies contained in the federal act; therefore, we may consider how the federal act is implemented under clauses similar to those at issue in the Texas act." Id. at 72. "When Texas case law fails to address questions raised under the statute, we look to federal case law for guidance." Benavides, 848 S.W.2d at 193. See also William Conover Brooks, III (General Counsel, Texas Commission on Human Rights, Austin, Texas), Jurisdictional and Procedural Issues Under the Texas Commission on Human Rights Act, 47 Baylor L.Rev. 683, 683-692 (1995). We find that appellant has complied with the requirements of filing a complaint with TCHR as set out in Section 21.201, Texas Labor Code. We sustain appellant's sole point of error. The judgment of the trial court is reversed and the cause is remanded for trial. EDELMAN, Justice, concurring. PALICO was granted summary judgment in this case on the ground that Price failed to file a complaint with the TCHR as required by the Texas Labor Code. It was therefore PALICO's burden to establish as a matter of law that no complaint was filed with TCHR. I concur with the majority opinion that the evidence presented by PALICO did not conclusively establish that no such filing took place. However, Price did not move for summary judgment that she had made such a filing as a matter of law, and it is not necessary or proper for us to reach that issue in order to determine that PALICO's summary judgment was in error. Therefore, I disagree with the finding in the majority opinion that "appellant has complied with the requirements of filing a complaint with TCHR as set out in Section 21.201, Texas Labor Code."
63 B.R. 630 (1986) In re Michael Laverne NIGG and Phyllis Catherine Nigg, d/b/a Grain Farmers, Debtors. In re Nathanael John SCHULTZ and Delores Lovella Schultz, d/b/a Farmers/Ranchers, Debtors. Bankruptcy Nos. 185-00023, 485-00069. United States Bankruptcy Court, D. South Dakota. August 7, 1986. J. Bruce Blake, Sioux Falls, S.D., for The Northeast South Dakota Production Credit Ass'n, Plan Proponent in the Nigg Case, and The Mitchell-Huron Production Credit Ass'n, Plan Proponent in the Schultz Case. Andrew J. Schmid, Minneapolis, Minn., for U.S. Trustee William P. Westphal, Sr. William J. Pfeiffer, Aberdeen, S.D., for debtors Michael LaVerne Nigg and Phyllis Catherine Nigg. Wesley D. Schmidt, Sioux Falls, S.D., for debtors Nathanael John Schultz and Delores Lovella Schultz. MEMORANDUM DECISION PEDER K. ECKER, Bankruptcy Judge. These cases have been consolidated for the purpose of resolving a single issue: Whether a creditor's liquidating plan must be administered by a liquidating agent designated by the creditor/proponent of the plan or may be administered by a trustee appointed pursuant to the provisions of the Code by the United States Trustee. The United States Trustee's position is that a liquidation plan proposed by a creditor 631 must be self-executing. The plan itself must provide its own means, usually through a liquidating agent, to effectuate the provisions of the plan. The United States Trustee argues that the provisions of the Bankruptcy Code preclude the appointment of a trustee for the sole purpose of liquidation under a Chapter 11 plan and that the use of a trustee in this context is inconsistent with the fiduciary nature of a trustee in bankruptcy. The creditor/proponent in each of these cases takes the position that the appointment of a trustee, rather than the use of a liquidating agent hired by the creditor/proponent of the plan, is in the interest of all parties. They argue that only a trustee can perform certain functions under the Code, such as selling property of the estate other than in the ordinary course of business, and that a liquidation agent would not have the authority to execute sale documents and pass good and marketable title. Second, the creditor argues that the use of a trustee is also the best method of safeguarding the interests of the debtor because a trustee is a fiduciary and not the agent of one creditor. After careful consideration of the facts in these cases, the provisions of the Code, and the policy behind them, the Court concludes that it is in the interest of all parties to have a liquidation plan administered by a trustee rather than a liquidation agent and that the provisions of the Code do not prohibit the use of a trustee in that context. Section 1104 of the Code provides for the appointment of a trustee at any time after commencement of the case but before the confirmation of a plan "if such appointment is in the interests of creditors, any equity security holders, and other interests of the estate. . . ." The duties of a Chapter 11 trustee are set out in Section 1106. Subsection (1) directs the Chapter 11 trustee to perform certain of the duties set out for a Chapter 7 trustee in Section 704. The United States Trustee argues in the instant case that because liquidation is omitted from this list, a Chapter 11 trustee does not have the authority to sell property of the estate. This Court cannot agree. As a general rule, Chapter 11 contemplates reorganization, not liquidation. In the majority of cases, if a trustee was appointed, there would be no need and, certainly, no duty for a Chapter 11 trustee to liquidate property because reorganization would be the goal of any plan the Court ultimately confirmed. The Chapter 11 trustee would act in an interim management role until confirmation of a plan and the revesting of estate property in the debtor. This Court is of the opinion that liquidation is omitted from the list of duties under Section 1106 because the Code's drafters foresaw little or no need for a Chapter 11 trustee to liquidate property. Had the debtor desired liquidation of his property, he would have chosen to file for relief under Chapter 7; and if liquidation in Chapter 11 was to be the norm, there would be no provision for the 120-day period in which the debtor has the exclusive right to propose a plan. The United States Trustee also argues that the Section 105 prohibition against the appointment of a receiver means that the Court cannot authorize a Chapter 11 trustee to sell property. The omission of specific provisions for liquidation by a Chapter 11 trustee does not mean that the use of a trustee in this context is prohibited. Even though Section 105 of the Code prohibits appointment of a receiver, it states that the "court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title." The Notes of the Senate Committee on the Judiciary elaborate by saying that "the bankruptcy code has ample provision for the appointment of a trustee when needed. Appointment of a receiver would simply circumvent the established procedure." Far from being a prohibition against appointment of a Chapter 11 trustee to liquidate, this Court interprets that to mean that the Court should use a trustee in those circumstances where it might think it appropriate to appoint a receiver because 632 the Code provides guidelines for appointing a trustee and for the trustee's duties once appointed. By contrast, there is no authority at all for a liquidating "agent" hired by a creditor. There are no procedures for regulating conduct or compensation of a liquidating agent and no procedures for obtaining court approval for his actions. A liquidating agent is a non-entity to the Code. Finally, a trustee is an officer of the Court provided by the Code with fiduciary duties regardless of whether the case is a Chapter 7, 13 or 11. Just because the trustee is limited to carrying out the creditor plan rather than proposing a plan of his own does not make him any less of a fiduciary, nor are his duties inconsistent with that of a fiduciary. He is charged with carrying out the liquidation process in a commercially reasonable manner, transferring property and proceeds to buyers and creditors, and insuring that the interests of all the creditors and the debtor are protected. If we so scrupulously guard the rights of all in Chapter 7 liquidation proceedings by having a trustee administer the liquidation, surely the same concern for the rights of all must carry over to liquidation in the context of a Chapter 11 plan. The policy reasons for using a trustee do not disappear because the liquidation takes place in the Chapter 11 context. Perhaps they take on even more importance in the execution of a plan proposed by one creditor when it might be natural for a liquidating agent to neglect the rights of other creditors and the debtor in order to do a good job for his employer. As previously mentioned, a liquidation in Chapter 11 may also be contrary to the stated desires of the debtor, i.e., the debtor may have been unable to obtain the necessary acceptances from creditors to have the debtor's plan of reorganization confirmed. Surely, under circumstances of involuntary liquidation, a trustee is the appropriate agent in replacement of the debtor-in-possession to accomplish an orderly liquidation and to protect the integrity of the system by avoiding the problems inherent from placing the debtor in a position of direct conflict with the proponent creditor in the consummation of the plan. Accordingly, based on the foregoing, this Memorandum Decision constitutes the Court's Findings of Fact and Conclusions of Law in each of the above-entitled cases pursuant to Bankr.R.P. 7052 and 9014 and F.R.Civ.P. 52. Counsel for the creditors/proponents is directed to submit an appropriate order for each case in accordance with Bankr.R.P. 9021.
37 F.3d 1495NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Charles T. SHERWIN, Plaintiff Appellant,v.UNITED STATES AIR FORCE, Defendant Appellee, AN andRonald G. SPROVERO; Ronald L. Billmyer; A.D. Talley; B.R.Henderson; Celia Smith; Laverne Harper; M.R. Peters;Robert Cutrell; Robert Stroebel; Donald Robinson; JeffOsborne; Brad Adams; William Waller; R.S. Burrus, Defendants. No. 92-1678. United States Court of Appeals, Fourth Circuit. Submitted September 20, 1993.Decided October 11, 1994. Appeal from the United States District Court for the Eastern District of North Carolina, at Fayetteville. W. Earl Britt, District Judge. (CA-90-34-3-CIV-BR) Charles T. Sherwin, Appellant Pro Se. Eileen Coffey Moore, Office of the U.S. Atty., Raleigh, NC, for Appellee. E.D.N.C. AFFIRMED. Before WIDENER, HALL and HAMILTON, Circuit Judges. PER CURIAM: 1 Charles T. Sherwin appeals from the district court's order granting summary judgment to Defendant on his complaint alleging a violation of the Privacy Act, 5 U.S.C.A. Sec. 552a (West 1977 & Supp.1993). Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Sherwin v. United States Air Force, No. CA-90-34-3-CIV-BR (E.D.N.C. Apr. 15, 1992). 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
124 Ga. App. 300 (1971) 183 S.E.2d 605 PARKER v. VAUGHAN. 45789. Court of Appeals of Georgia. Argued January 4, 1971. Decided July 1, 1971. Rehearing Denied July 21, 1971. 301 Ross & Finch, Claude R. Ross, Ellis Ray Brown, for appellant. Kelly, Champion & Henson, S. E. Kelly, for appellee. BELL, Chief Judge. Although there have been cases in this jurisdiction dealing with foreign objects left in patients' bodies by surgeons during the course of operations, none of these cases is directly in point with the one here but each is in some pertinent fashion distinguishable. However, the holdings in Silvertooth v. Shallenberger, 49 Ga. App. 133 (174 SE 365) are rather obscure and are rendered more so by their explanation and the holding in the later case of Silvertooth v. Shallenberger, 49 Ga. App. 758 (176 SE 829). The second Silvertooth case does not seem to recognize that where the treatment of the patient by the same doctor continues after the operation, suit may be brought at any time within the limitation period following termination of treatment even though the original act of malpractice would have been barred. See 54 CJS 139, 144, § 174, where the case is so interpreted. In order to clarify this obscurity each of the two Silvertooth cases is expressly overruled insofar as it may be viewed as conflicting with the holding here. In Davis v. Boyett, 120 Ga. 649 (2) (48 SE 185) and Barrett v. Jackson, 44 Ga. App. 611 (162 SE 308) the appellate courts held that mere ignorance of the facts constituting a cause of action does not prevent the running of the statute of limitation. Each of these cases is also authority for the proposition that the statute 302 begins to run when the wrong is completed. These holdings, are, of course, the courts' way of interpreting what is meant by the statutory language "after the right of action accrues." Code Ann. § 3-1004. Under these holdings ignorance of the cause of action alone does not toll the statue. The determining question then is when did the wrong become a completed wrong. In this case if the wrong became a completed wrong at the time the defendant-doctor first closed the wound leaving the clamp in the patient's abdomen (December 26, 1962), then the statute ran from that date and was not tolled by the patient's ignorance. This finding would require affirmance of the trial judge's order terminating the case as the suit was not filed until December 22, 1966, much longer than the allowable time of two years. We do not feel, however, that the wrong was completed at the time of the closing of the wound on December 26, 1962. When the doctor placed the steel arterial clamp in the plaintiff's abdomen he did so with her permission and he therefore did no wrong. Thus the placing of the arterial clamp was no completed wrong for there was no wrong at all. When, however, the doctor left the clamp in his patient's abdomen and closed the wound, he commenced a wrong by imposing on the patient's physical being the harboring of a foreign body which could cause her discomfort or pain or be deleterious to her health. This wrong is not a completed wrong. This invasion was not transitory but constant. It is a wrong which continued to be an unlawful invasion of the patient's rights for as long as the clamp remained in its improper place. Until somehow recognized, this wrong existed in a suspended state of oblivion but exist it did. In this state of limbo the statute did not run. As to this type of wrong the statute can only begin to run from the time the patient has knowledge, or through the exercise of ordinary care could have learned, of the existence of the continuing tort. The action was timely brought on this continuing tort within two years of the day of its recognition. Interestingly, the Supreme Court in the case of Akridge v. Noble, 114 Ga. 949, 959 (41 SE 78), a malpractice case against a physician who allegedly had carelessly left a sponge or pad in the plaintiff's body and closed the wound, had this to say: "It seems to us that the operation begins when the opening is made into the 303 body and ends when this opening has been closed in a proper way after all appliances necessary to the successful operation have been removed from the body." See the case of Huysman v. Kirsch, 6 Cal. 2d 302 (57 P2d 908), where the Supreme Court of California cites and follows this statement of our Supreme Court in holding substantially what we hold here. Obviously, under the Supreme Court's view an operation is never completed until all appliances, including steel arterial clamps, necessary to the successful operation are removed from the body. This statement by the Supreme Court, followed by the Supreme Court of California, certainly bolsters our view that the leaving of the arterial clamp in the abdomen of this plaintiff constituted a continuing tort which tolled the statute as long as it remained in its ever present unknown status. The holdings in the malpractice cases of Saffold v. Scarborough, 91 Ga. App. 628 (86 SE2d 649) and Bryson v. Aven, 32 Ga. App. 721 (124 SE 553) merely reaffirm the principle that the statute begins to run from the time of the completed tort. Nothing in these cases, nor in any other malpractice case cited to us, is in conflict with the holding here. Indeed Saffold and Bryson, and all other cases of like nature, seemingly were preoccupied with the theory of fraud which greatly influenced their decisions. All other cases, of the Supreme Court and this court, which deal with the statute of limitation differ markedly on the facts and are not controlling. There is nothing new about the theory of the continuing tort as adopted here and applied to the facts of this alleged malpractice case. It is widely followed. See for example, Gaddis v. Smith, 417 S. W. 2d 577 (Texas); Berry v. Branner, 245 Ore. 307 (421 P2d 996); Morgan v. Grace Hospital, 149 W. Va. 783 (144 SE2d 156) and Huysman v. Kirsch, 6 Cal. 2d 302, supra, where the Supreme Courts of Texas, Oregon, West Virginia and California each specifically overruled previous decisions in announcing what amounts to the rule of the continuing tort. Note particularly the Berry case (Oregon) which covers many things well. Also see 54 CJS, p. 27, Cumulative Pocket Part, footnote 26. We specifically wish to make it clear that our holding here is limited to causes of action in which a surgeon negligently leaves a foreign object in the body of his patient. 304 Judgment reversed. Jordan, P. J., Pannell, Deen, Quillian, Whitman and Evans, JJ., concur. Hall, P. J., and Eberhardt, J., dissent. EBERHARDT, Judge, dissenting. If the matter were of first impression, or if it were dependent wholly upon decisions rendered by this court, I should not feel that any violence were done to the law by establishing the principle as proposed in the majority opinion. However, the Supreme Court has held in Crawford v. Gaulden, 33 Ga. 173 (8) that "In an action against an attorney for negligence or unskilfulness in the conduct of business, the Statute of Limitations commences to run from the time the negligent or unskilful act was committed, and plaintiff's ignorance of such act can not affect the bar of the statute." This case was followed in Lilly v. Boyd, 72 Ga. 83, 85, Gould v. Palmer & Read, 96 Ga. 798 (22 SE 583), and Irvin v. Bentley, 18 Ga. App. 662 (90 SE 359). And see McClaren v. Williams, 132 Ga. 352 (4) (64 SE 65); Barrett v. Jackson, 44 Ga. App. 611 (162 SE 308); Dalrymple v. Brunswick Coca-Cola Bottling Co., 51 Ga. App. 754 (181 SE 597); Saffold v. Scarborough, 91 Ga. App. 628 (86 SE2d 649). Cf. Bryson v. Aven, 32 Ga. App. 721 (124 SE 553). I am unable to justify the establishment of one standard as to the commencement of the running of the statute of limitation in a malpractice action against an attorney and another standard to be applied to a malpractice action against a doctor. We applied the standard established in other actions against attorneys in a case against a doctor in Silvertooth v. Shallenberger, 49 Ga. App. 133 (2) (174 SE 365), and 49 Ga. App. 758 (176 SE 829). The very same principle was established in Davis v. Boyett, 120 Ga. 649 (2, 3) (48 SE 185), though not against a doctor or a lawyer. And we equated all of them, citing both Crawford and Silvertooth for the principle in Wellston Co. v. Sam N. Hodges, Jr. & Co., 114 Ga. App. 424, 426 (151 SE2d 481). It is my view that we are bound here by the principle established in these Supreme Court decisions, and that we are not in position to overrule or to run counter to them. The case of Akridge v. Noble, 114 Ga. 949 (41 SE 78), cited by the majority, did not involve the statute of limitation in any *305 manner or respect. The excerpt, therefore, is out of context and does not change the rule. The court was simply holding there that the matter of placing or removing sponges from a body cavity during an operation is one within the skills and competence of the doctor, and thus that he is to be held for negligence in failing to remove them. It certainly did not hold that the operation had not been concluded and the tort committed when the opening was closed. I am authorized to state that Presiding Judge Hall concurs in this dissent.
983 F.2d 551 MELLON BANK (EAST) PSFS, N.A., a federally chartered bankingassociationv.DiVERONICA BROS., INC., Appellant. No. 92-1244. United States Court of Appeals,Third Circuit. Argued Nov. 3, 1992.Decided Jan. 15, 1993. Frank J. Vavonese (argued), Syracuse, NY, for appellant. Andrew D. Bershad (argued), Blank, Rome, Comisky & McCauley, Philadelphia, PA, for appellee. Before: SLOVITER, Chief Judge, STAPLETON and LAY, Circuit Judges. OPINION OF THE COURT SLOVITER, Chief Judge. 1 Defendant DiVeronica Bros., Inc. appeals from an order of the district court entering judgment for $78,889.13 in favor of plaintiff Mellon Bank (East) PSFS, N.A. on its breach of contract claim. DiVeronica contends that the district court erred in denying its motion to dismiss the complaint for lack of personal jurisdiction; in finding that its obligation was unconditional; and in finding it was not entitled to an offset. Because we find that DiVeronica had insufficient contacts with Pennsylvania to warrant the exercise of personal jurisdiction over it, we do not reach the other issues posed. I. Facts and Procedural History 2 On June 29, 1982, Girard Bank entered into a loan agreement with Hubbell Holding Corp. and its affiliated companies: O.W. Hubbell & Sons, Inc.; Hubbell Highway Signs, Inc.; Hubbell Electric, Inc.; Cable Guide Railing Construction Co., Inc.; Triboro Neon & Service Corp.; and Bundy Concrete Products, Inc. (referred to jointly as the Hubbell Companies unless otherwise noted). As collateral, the Hubbell Companies granted, inter alia, a continuing lien and security interest in their accounts receivable. The loan was cross-collateralized so that collateral from any one of the Hubbell Companies could be used by Girard Bank to discharge the debt of the others. App. at 531, 539. In the mid-1980s, Girard Bank was acquired by Mellon Bank (East) PSFS, N.A., a federally chartered banking association with its principal place of business in Pennsylvania. 3 In February 1990, the Hubbell Companies defaulted on their loan obligations. Mellon Bank first demanded payment, and then on March 23, 1990 took peaceful possession of the collateral, including the accounts receivable. When one of the companies, O.W. Hubbell & Sons, was brought into involuntary bankruptcy, later converted into a voluntary chapter 11 proceeding, Mellon Bank obtained permission from the bankruptcy court of the Northern District of New York to lift the automatic stay to continue to collect the accounts receivable. 4 Because defendant DiVeronica Bros., Inc. had operated as both a subcontractor to and a general contractor of some of the individual Hubbell Companies, resulting in a series of credits and debits between them, in May 1990, the Hubbell Companies and DiVeronica met to settle their accounts. The oral agreement they reached fixing the amounts of their debts was later confirmed in a letter from Mellon Bank to the president of DiVeronica (the Letter Agreement). The Letter Agreement stated that in total, DiVeronica owed the Hubbell Companies $86,877.13; that O.W. Hubbell & Sons (the company in bankruptcy) owed DiVeronica $86,788.71 for work completed; and that DiVeronica had applied for payment of that amount from the Reliance Insurance Company, a New York corporation, which had insured payment and performance by O.W. Hubbell & Sons on the construction project for which DiVeronica as subcontractor was owed the $86,788.71. It further stated that "Hubbell and Diveronica have agreed that upon receipt of $86,788.71 from Reliance Insurance Co., Diveronica will pay [an outstanding lien].... After the lien has been removed, Diveronica will pay Hubbell $86,877.13." At the meeting leading to this agreement, Robert Obernesser, the manager of the construction division of O.W. Hubbell & Sons, agreed to assist DiVeronica in asserting its claim on the Reliance bond. 5 Reliance apparently disclaimed on the surety bond, and there remain accounts outstanding to and from DiVeronica and several of the Hubbell Companies. As assignee of the receivables of the Hubbell Companies, Mellon Bank filed this diversity action in the Eastern District of Pennsylvania to recover the debts DiVeronica owed three of the Hubbell Companies.1 The district court denied DiVeronica's motion to dismiss for lack of personal jurisdiction. 6 At the bench trial that followed, DiVeronica contended that because O.W. Hubbell & Sons owed it some $8,000 more than DiVeronica owed the Hubbell Companies together, it was entitled to set off the debts and had no duty to pay. It further argued that receipt of the payment on the surety bond was a condition precedent to its obligation to pay the accounts due to the Hubbell Companies, and that therefore Mellon Bank could not collect as assignee. The district court rejected these contentions and entered judgment in the amount of $78,889.13 in favor of plaintiff Mellon Bank. DiVeronica filed a timely appeal, asserting lack of personal jurisdiction or, in the alternative, entry of judgment in favor of the defendant or a new trial based on errors of law and fact committed in the district court. II. Jurisdictional Facts 7 Because resolution of this appeal turns on the jurisdictional question, we proceed to consider separately those facts relevant to the exercise of personal jurisdiction over DiVeronica which were developed at the evidentiary hearing on this issue. 8 DiVeronica is a New York corporation with a single office in Canastota, New York. Its business is construction, primarily roads, bridges, and buildings. The highway construction contracts between the Hubbell Companies and DiVeronica were solicited, contracted, and completed within the State of New York, and were governed by the laws of that state. 9 DiVeronica has never performed a construction project outside the State of New York; it has never solicited any business or advertised outside the State of New York. It has no office, mailing address, or property in Pennsylvania; it is not authorized or licensed to do business in Pennsylvania; it has no agents in Pennsylvania; it has not paid any taxes in Pennsylvania; it has never shipped merchandise directly into or through Pennsylvania nor has it supplied services or items here. Finally, the work that DiVeronica performed for the Hubbell Companies that is the subject of its claim on the Reliance bond was performed in New York. 10 On appeal Mellon Bank seeks to sustain the district court's ruling denying the motion to dismiss by arguing that jurisdiction is appropriate over DiVeronica because it attempted to realize pecuniary benefit in Pennsylvania by depositing checks from O.W. Hubbell & Sons drawn on Hubbell's Mellon Bank account which is located in Philadelphia, by submitting a claim to Reliance in Pennsylvania in an effort to collect on the surety bond, and by executing a contract with Mellon Bank knowing that it is located in Philadelphia, Pennsylvania. We will consider the relevance of these facts in the context of the applicable law. III. Discussion 11 Whether personal jurisdiction may be exercised over an out-of-state defendant is a question of law, and this court's review is therefore plenary. Mesalic v. Fiberfloat Corp., 897 F.2d 696, 698 (3d Cir.1990). 12 A federal court may exercise personal jurisdiction over a non-resident defendant to the extent permitted by the law of the state in which it sits. Fed.R.Civ.P. 4(e). The Pennsylvania long-arm statute provides that jurisdiction may be exercised "to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States." 42 Pa.Cons.Stat.Ann. § 5322(b) (Purdon 1981). 13 Where the defendant has raised a jurisdictional defense, the plaintiff bears the burden of establishing either that the cause of action arose from the defendant's forum-related activities (specific jurisdiction) or that the defendant has "continuous and systematic" contacts with the forum state (general jurisdiction). Bane v. Netlink, Inc., 925 F.2d 637, 639 (3d Cir.1991) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 416, 104 S.Ct. 1868, 1872, 1873, 80 L.Ed.2d 404 (1984)). Inasmuch as DiVeronica has conducted no solicitation, advertisement, construction, or delivery in Pennsylvania, there can be no assertion that DiVeronica had the continuous and substantial affiliation with the forum necessary for general jurisdiction. See Gehling v. St. George's School of Medicine, Ltd., 773 F.2d 539, 541 (3d Cir.1985). Therefore, we assume that the district court found that there was specific jurisdiction over DiVeronica on the ground that Mellon Bank's cause of action arose from DiVeronica's contacts with Pennsylvania. 14 Specific jurisdiction exists only where the defendant has sufficient minimum contacts with the forum state that it "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). The " 'constitutional touchstone' " is whether the defendant purposefully established those minimum contacts. North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 690 (3d Cir.) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985)), cert. denied, 498 U.S. 847, 111 S.Ct. 133, 112 L.Ed.2d 101 (1990). A court must find that there was some act by which the defendant "purposefully avail[ed] itself" of the privilege of conducting activities within the forum. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). We consider in turn each of the acts alleged by Mellon Bank to support the assertion of personal jurisdiction over DiVeronica. A. The Checks 15 Mellon Bank claims that DiVeronica purposefully availed itself of the benefits of doing business in Pennsylvania by depositing checks drawn on O.W. Hubbell & Sons' Mellon Bank account. However, there is nothing to suggest that DiVeronica had any involvement in the selection by O.W. Hubbell & Sons of a Pennsylvania bank. The checks were cashed in New York and deposited in New York banks. 16 Under somewhat similar circumstances the Supreme Court rejected the plaintiff's contention that accepting checks drawn on a bank in the forum state was a basis for finding jurisdiction in that state. In Hall, the Court stated: 17 There is no indication that [defendant] ever requested that the checks be drawn on a Texas bank or that there was any negotiation between [defendant and the payor] with respect to the location or identity of the bank on which checks would be drawn. Common sense and everyday experience suggest that, absent unusual circumstances, the bank on which a check is drawn is generally of little consequence to the payee and is a matter left to the discretion of the drawer. 18 466 U.S. at 416-17, 104 S.Ct. at 1873 (footnote omitted). A similar analysis is appropriate here, particularly since Mellon Bank's claim does not arise out of the deposit by DiVeronica of checks drawn on Mellon Bank. B. The Bond 19 Mellon Bank contends that DiVeronica's submission of a claim to Reliance Insurance Company in Pennsylvania in an effort to collect on the bond insuring payment and performance by O.W. Hubbell & Sons was an attempt to realize pecuniary benefits of Pennsylvania law. There are several reasons why this act does not constitute a sufficient basis on which to predicate specific jurisdiction. In the first place, the selection of Reliance as the bonding company was made by O.W. Hubbell & Sons, not DiVeronica. As the Supreme Court stated in Hall, "unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction." 466 U.S. at 417, 104 S.Ct. at 1873. 20 Thus, in Hanson, the Court held that Florida could not exercise in personam jurisdiction over a Delaware trust company merely because the settlor of the trust in question, which was originally established in Delaware, had moved to Florida where she exercised her residual power of appointment. The Supreme Court stated: 21 The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. International Shoe Co. v. Washington, 326 U.S. 310, 319 [66 S.Ct. 154, 159, 90 L.Ed. 95]. The settlor's execution in Florida of her power of appointment cannot remedy the absence of such an act in this case. 22 357 U.S. at 253-54, 78 S.Ct. at 1239-40; see also Reliance Steel Prods. Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir.1982). Also, although the power of attorney accompanying the bond that Reliance provided to O.W. Hubbell & Sons was signed both in Albany, New York by counsel for Reliance and in Philadelphia, Pennsylvania by a vice-president of Reliance, DiVeronica was not involved in deciding where the power of attorney accompanying that bond was executed. 23 In the second place, DiVeronica sent its claim to Reliance's Pennsylvania office at the suggestion of Obernesser, Hubbell's employee who was also acting at the behest of Mellon Bank to assist it in marshaling assets and collecting collateral. App. at 601. Although the bond described the issuer as the "Reliance Insurance Company of New York" with its "principal office in the City of Fairport, New York," Obernesser gave DiVeronica the names and telephone numbers of contacts at Reliance in Pennsylvania, App. at 219-20, and told DiVeronica that the claim under the performance bond with Reliance had to be filed in Pennsylvania, App. at 220-21. Thus, contrary to Mellon Bank's assertion that DiVeronica's act of filing its claim with Reliance in Pennsylvania shows purposeful availment of this state's protection, it shows only that Obernesser's offer of assistance and provision of Reliance contacts and phone numbers in Pennsylvania affected DiVeronica's choice of where to file. 24 By the same reasoning, DiVeronica's follow-up telephone calls to officers of and counsel for Reliance in Pennsylvania cannot suffice as a basis for jurisdiction over it. In Reliance Steel Products Co., we held that telephone calls in which a Missouri defendant allegedly gave negligent legal advice to a Pennsylvania client, even combined with defendant's advertisement in a legal directory distributed in Pennsylvania and his action in billing the Pennsylvania plaintiff, constituted insufficient contacts by defendant with the state. 675 F.2d at 589. DiVeronica's calls of inquiry to Reliance's Pennsylvania office do not show the purposeful availment that can provide a basis for personal jurisdiction. 25 This is not to suggest that it is merely DiVeronica's physical absence from Pennsylvania which supports the conclusion that it had no contacts here. The Supreme Court has made clear that jurisdiction may constitutionally be asserted over a defendant who has never set foot in the forum state--so long as defendant "purposefully has directed his activities at forum residents." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 2184-85, 85 L.Ed.2d 528 (1985). In this case, DiVeronica is not only not physically present, but also it has never "purposefully directed" its activities to Pennsylvania. 26 Finally, we note that our conclusion that the mere presentation of a claim to a bonding company that posted surety for a contractor's payments does not support personal jurisdiction in the bonding company's state is in accord with the reasoning of the other appellate court to consider this issue. See Capital Dredge & Dock Corp. v. Midwest Dredging Co., 573 F.2d 377, 380 (6th Cir.1978). C. The Letter Agreement 27 Mellon Bank argues that DiVeronica attempted to realize a benefit in Pennsylvania when it "executed a contract with Mellon Bank, knowing that Mellon Bank is located in Philadelphia." Appellant's Br. at 13. Mellon Bank is referring to the Letter Agreement of May 31, 1990 that fixed the debts between the Hubbell Companies and DiVeronica. At the outset, it is important to note that we see no support for Mellon Bank's denomination of the Letter Agreement as a contract between it and DiVeronica. The Agreement, written by Mellon Bank on its stationery, states: 28 The purpose of this letter is to confirm in writing the verbal agreement you have reached with Bob Obenesser [sic] of O.W. Hubbell & Sons, Inc. relating to the outstanding indebtedness between Hubbell and Diveronica Bros. App. at 347. It concludes: 29 If the above accurately summarizes your agreement with Hubbell, please sign as indicated and return this letter to me at your earliest convenience. 30 App. at 348 (emphasis added). In the body of the Letter Agreement, DiVeronica merely acknowledged debts to the Hubbell Companies which had been assigned to Mellon Bank. 31 Even if the Letter Agreement could somehow be characterized as a contract between DiVeronica and Mellon Bank, it is important to review DiVeronica's role in the genesis of that document. DiVeronica was not a party to the original 1982 loan agreement between the Hubbell Companies and Girard Bank, and, of course, DiVeronica had no control over the Hubbell Companies' selection of the Pennsylvania based Girard Bank, Mellon Bank's predecessor, as their lender. Nor did DiVeronica have any involvement in the subsequent assignment of the accounts receivable to Mellon Bank. 32 Moreover, after the assignment, it was Mellon Bank that initiated the contacts from Pennsylvania to DiVeronica in New York. Mellon Bank sent a general notification letter on March 8, 1990 from its offices in Pennsylvania to DiVeronica in Canastota, New York, informing DiVeronica that the accounts receivable had been assigned. Thereafter, the oral negotiations leading to the execution of the Letter Agreement were initiated by Mellon Bank: in May of 1990, it asked Obernesser to compile a list of the outstanding debts between the Hubbell Companies and DiVeronica; Obernesser sent the document to an officer at Mellon Bank for review; and he then arranged a meeting with DiVeronica in New York. 33 After the meeting, which took place at DiVeronica's offices in New York on May 16, 1990, Daniel K. Clancy of Mellon Bank telephoned from Pennsylvania to DiVeronica in New York to work out the wording of the Letter Agreement. Thereafter, on May 31, 1990, Clancy sent the Letter Agreement from Mellon Bank's offices in Pennsylvania to DiVeronica in New York. Finally, counsel for Mellon Bank sent DiVeronica a letter on July 12, 1990 and another on November 12, 1990, requesting payment of the debts acknowledged in the Letter Agreement. 34 In connection with the Letter Agreement, the only "purposeful" action by DiVeronica (through its president) was signing and returning the Agreement to Mellon Bank in Pennsylvania, as requested. We do not believe this can be considered an act by DiVeronica directed at Pennsylvania to benefit from its laws. Contracting with a resident of the forum state does not alone justify the exercise of personal jurisdiction over a non-resident defendant, Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir.1992), particularly where, as here, the out-of-state defendant executed the "contract" only at the behest of the resident.2 35 The facts in Farino, where we sustained personal jurisdiction over the non-resident defendants, stand in contraposition to those in the present case. Defendants were limited partners in Virginia partnerships developing real estate in Virginia who applied to Mellon Bank, a Pennsylvania based lender, for loans that they personally guaranteed. After the partnership defaulted, Mellon Bank filed suit on the guarantees. 36 We examined the defendants' contacts for purposeful availment in Pennsylvania, concluding that jurisdiction was proper because the defendants had " 'reach[ed] out beyond one state and create[d] continuing relationships and obligations with citizens of another state.' " Id. at 1223 (quoting Travelers Health Ass'n v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950)). We found particularly compelling the fact that defendants had "purposely directed" their activities into Pennsylvania: they approached Mellon Bank; they chose to finance with Mellon Bank when they could have financed elsewhere; they provided Mellon Bank in Pennsylvania with sufficient documentation so that they would obtain the loans; they sent updated financial information to Mellon Bank; and they knew that payments were to be mailed to Mellon Bank in Pennsylvania. Id. at 1223. Even in view of all of these factors, we wrote that "this [was] a close case." Id. 37 In the case before us, Mellon Bank has shown no comparable deliberateness on the part of DiVeronica. DiVeronica merely confirmed to Mellon Bank, a party whom it did not deliberately seek out, its agreement with the Hubbell Companies. DiVeronica did not choose to deal with Mellon Bank; as noted, it had no involvement in the choice of Girard Bank as lender or in the subsequent assignment of the accounts receivable. In this case, "the only significant contact that exists between Pennsylvania and [the defendant] is the result of this lawsuit, not its cause." Reliance Steel Products Co., 675 F.2d at 589. Under these circumstances, we find that this is not a "close case." 38 None of DiVeronica's marginal activities in Pennsylvania justifies the exercise of specific jurisdiction over it. We therefore conclude that Mellon Bank has not shown that DiVeronica had even minimum contacts with Pennsylvania. It follows that maintenance of the suit would offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citation omitted). IV. Conclusion 39 For the foregoing reasons, we will reverse the order of the district court denying DiVeronica's motion to dismiss and remand for dismissal of the complaint.3 Honorable Donald P. Lay, Senior Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation 1 Although the Letter Agreement listed DiVeronica's debts to the Hubbell Companies as $86,877.13, Mellon Bank sought damages at trial in the amount of $78,889.13. This reflected DiVeronica's payment of approximately $8,000 to the Hubbell Companies after the Letter Agreement but before trial 2 The authority that Mellon Bank relied on in its argument before the district court, Sunn Classic Pictures, Inc. v. Budco, 481 F.Supp. 382 (E.D.Pa.1979), does not support the proposition for which it was presented. In that case the third-party defendant who contested jurisdiction was held to have caused harm within the state by its action elsewhere 3 The district court may, in its discretion, transfer this case pursuant to 28 U.S.C. § 1631 if a motion to do so is seasonably filed
538 U.S. 938 MATTHEWSv.UNITED STATES. No. 02-9053. Supreme Court of United States. March 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 2 C. A. 5th Cir. Certiorari denied. Reported below: 312 F. 3d 652.
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 05/17/2019 01:07 AM CDT - 365 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE INTEREST OF MAXIMUS B. Cite as 302 Neb. 365 In re I nterest ofM aximus B., a child under 18 years of age. State of Nebraska, appellant, v. M aximus B., appellee. ___ N.W.2d ___ Filed March 1, 2019. No. S-18-410. 1. Judgments: Jurisdiction: Appeal and Error. Determination of a juris- dictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach its conclusions indepen- dent from a trial court. 2. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case, as in any other appeal, before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. 3. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered. 4. Juvenile Courts: Final Orders: Appeal and Error. A proceeding before a juvenile court is a “special proceeding” for appellate purposes. 5. Final Orders: Appeal and Error. Numerous factors determine when an order affects a substantial right for purposes of appeal. Broadly, these factors relate to the importance of the right and the importance of the effect on the right by the order at issue. It is not enough that the right itself be substantial; the effect of the order on that right must also be substantial. 6. Final Orders. Whether the effect of an order is substantial depends on whether it affects with finality the rights of the parties in the sub- ject matter. - 366 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE INTEREST OF MAXIMUS B. Cite as 302 Neb. 365 7. Juvenile Courts: Minors. The substantial right of the State in a juve- nile proceeding is derived from its parens patriae interest, and the State has a right to protect the welfare of its resident children. Appeal from the Separate Juvenile Court of Douglas County: Douglas F. Johnson, Judge. Appeal dismissed. Donald W. Kleine, Douglas County Attorney, Elizabeth McClelland, Mark P. Hanna, and Joseph Fabian, Senior Certified Law Student, for appellant. No appearance for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Miller-Lerman, J. NATURE OF CASE The State of Nebraska appeals the order of the separate juvenile court of Douglas County which vacated a previous adjudication order based on acceptance of a “plea of no con- test” to allegations made by the State against Maximus B. in an amended petition filed under Neb. Rev. Stat. § 43-247 (Reissue 2016). Specifically, the juvenile court determined that a “plea of no contest” is not a permitted answer under Neb. Rev. Stat. § 43-279 (Reissue 2016), where the petition alleges that the child is a juvenile violator under § 43-247. We con- clude that the juvenile court’s order which vacated its previous order of adjudication and set the matter for further proceedings was not a final order appealable by the State, and we therefore dismiss this appeal for lack of jurisdiction. STATEMENT OF FACTS On October 6, 2017, the State filed a petition in the juve- nile court alleging that Maximus, born in August 2002, was within § 43-247, because in May, he had committed sexual assault in the first degree, a Class II felony under Neb. Rev. - 367 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE INTEREST OF MAXIMUS B. Cite as 302 Neb. 365 Stat. § 28-319(1)(a) (Reissue 2016). On November 1, Maximus appeared in court and entered a denial to the allegations in the State’s petition. On November 16, the juvenile court filed a pretrial order in which it, inter alia, set a date for an adjudica- tion hearing. On January 25, 2018, the date the juvenile court had set for adjudication, the State filed an amended petition in which it alleged that Maximus was a juvenile violator under § 43-247, because in May 2017, he had committed the offense of disturb- ing the peace, a Class III misdemeanor under Neb. Rev. Stat. § 28-1322 (Reissue 2016). Maximus and his parents appeared before the juvenile court. It should be noted that the juvenile court judge who presided at the January 25 adjudication was not the same judge who had presided at Maximus’ first appear- ance at which a pretrial order had been filed and who subse- quently vacated the adjudication order. At the adjudication hearing, Maximus stated that he wished to enter a “plea of no contest” to the allegations in the amended petition. After questioning Maximus and his parents and after determining that the State had presented a sufficient factual basis, the juvenile court accepted Maximus’ “plea of no con- test” and found him to be under its jurisdiction. The court set a date for a disposition hearing. The court filed an order that same day setting forth its findings and orders. The disposition hearing was held on March 22, 2018. The juvenile court heard arguments regarding disposition and took the matter under advisement. On March 27, the juvenile court filed an order in which it stated that it had reviewed the case procedural history and noted that Maximus had entered a “no contest plea” to the allegations in the amended petition. The court noted that although Neb. Rev. Stat. § 43-279.01(3) (Reissue 2016) allowed the court in an abuse or neglect case to “accept an in-court admission, an answer of no contest, or a denial from any parent, custodian, or guardian,” § 43-279 did not allow an alleged juvenile violator to enter a no contest plea. The court noted that § 43-279 limited the juvenile violator to - 368 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE INTEREST OF MAXIMUS B. Cite as 302 Neb. 365 an admission or denial. See § 43-279(1) and (2). The court therefore vacated the January 25 adjudicatory finding and order. As a result of its ruling which vacated the previous order of adjudication, the court stated that the disposition hearing was moot, and it set a date for a formal pretrial hearing. The State appeals the March 27, 2018, order which vacated the January 25 adjudication order. ASSIGNMENT OF ERROR The State claims, consolidated and restated, that the juve- nile court erred when it determined that a plea of no contest is not permitted under § 43-279 and vacated the order of adjudication. STANDARD OF REVIEW [1] Determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach its conclusions independent from a trial court. Sandoval v. Ricketts, ante p. 138, 922 N.W.2d 222 (2019). ANALYSIS [2] In a juvenile case, as in any other appeal, before reach- ing the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. In re Interest of Paxton H., 300 Neb. 446, 915 N.W.2d 45 (2018). We conclude that the March 27, 2018, order from which this case arises is not a final order appealable by the State, and we therefore dismiss this appeal. Neb. Rev. Stat. § 43-2,106.01 (Reissue 2016), which gov- erns appellate jurisdiction for orders of the juvenile courts, is applicable to this case. Section 43-2,106.01(1) provides in part that “[a]ny final order or judgment entered by a juvenile court may be appealed to the Court of Appeals in the same manner as an appeal from district court to the Court of Appeals.” And § 43-2,106.01(2) provides that “[a]n appeal may be taken by - 369 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE INTEREST OF MAXIMUS B. Cite as 302 Neb. 365 . . . (d) The county attorney or petitioner, except that in any case determining delinquency issues in which the juvenile has been placed legally in jeopardy, an appeal of such issues may only be taken by exception proceedings pursuant to sections 29-2317 to 29-2319.” Reading these subsections together, it is clear that whether the State seeks appellate review by appeal— as in this case—or by exception proceedings, the order or judgment must be final as required under the introductory language of § 43-2,106.01(1). We therefore consider whether the juvenile court’s order which vacated its earlier order was a final order that was appealable by the State, and we need not consider whether the appropriate path was by appeal or excep- tion proceedings. [3,4] Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on sum- mary application in an action after judgment is rendered. In re Interest of Zachary B., 299 Neb. 187, 907 N.W.2d 311 (2018). Neither the first nor third category applies here, and therefore, we examine whether under the second category, the juvenile court’s order is an order affecting a substantial right made dur- ing a special proceeding. A proceeding before a juvenile court is a “special proceeding” for appellate purposes, see id., and therefore, in order to determine whether the March 27, 2018, order is a final order, we must determine whether the order affected a substantial right of the State. [5,6] Numerous factors determine when an order affects a substantial right for purposes of appeal. In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017). Broadly, these factors relate to the importance of the right and the importance of the effect on the right by the order at issue. Id. It is not enough that the right itself be substantial; the effect - 370 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE INTEREST OF MAXIMUS B. Cite as 302 Neb. 365 of the order on that right must also be substantial. Id. Whether the effect of an order is substantial depends on whether it affects with finality the rights of the parties in the subject matter. Id. [7] We have recognized that the substantial right of the State in a juvenile proceeding is derived from its parens patriae interest and that the State has a right to protect the welfare of its resident children. See id. So, the inquiry in the present case is whether the March 27, 2018, order substantially dimin- ished the right of the State to pursue its obligations regard- ing Maximus. We recently considered appealability in In re Interest of Noah B. et al., supra. In that case, the State sought to appeal an order in which the juvenile court had dismissed a supplemental petition seeking adjudication under § 43-247(3)(a) based on allegations that a parent had subjected his children to sexual abuse. We determined that the order affected a substantial right of the State and was a final, appealable order, because the “order dismissed the supplemental petition in its entirety with no leave to amend, thus foreclosing the State from pursuing adjudication and disposition on grounds of sexual abuse, and preventing the State from seeking to protect the children from such abuse.” In re Interest of Noah B. et al., 295 Neb. at 775, 891 N.W.2d at 119-20. By contrast, the March 27, 2018, order in this case vacated the prior order of adjudication, but it did not dismiss the operative petition for adjudication, and instead, it set a date for further proceedings in the case. In the instant matter, the terms of the March 27 order did not foreclose the State from pursuing adjudication and disposition based on the allegations regarding Maximus, and consequently, it did not affect with finality the rights of the State. CONCLUSION We conclude that the juvenile court’s order vacating its previous order of adjudication and setting a date for further - 371 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE INTEREST OF MAXIMUS B. Cite as 302 Neb. 365 proceedings in the case was not a final order appealable by the State. We therefore dismiss this appeal for lack of jurisdiction. A ppeal dismissed. Freudenberg, J., concurring. I write separately only to note concern regarding a juvenile court’s acceptance of a nolo contendere or no contest plea in certain proceedings. Statutorily, there are limited responses available to juveniles after petitions are filed in juvenile court alleging violations under Neb. Rev. Stat. § 43-247(1), (2), (3)(b), or (4) (Reissue 2016). Neb. Rev. Stat. § 43-279(1) (Reissue 2016) allows a juvenile to enter an admission to all or part of the allegations made in the petition. Section 43-279(2) sets forth the juvenile court procedures when juve- niles deny the allegations contained in the petition or stand mute. However, the Legislature has not established the option for a juvenile to enter a nolo contendere or no contest response under this statute. This statutory absence is further highlighted by the Legislature’s decision in Neb. Rev. Stat. § 43-279.01 (Reissue 2016) to make no contest pleas avail- able to parents, custodians, or guardians in § 43-247(3)(a) and (6) proceedings. While such issue is not reached in the majority opinion, I felt it important to highlight the relevant statutory lan- guage which would have been considered had the issue been reached.
498 F.2d 1403 Ihlenfeldtv.Buchen 73-1054 UNITED STATES COURT OF APPEALS Seventh Circuit 6/21/74 1 E.D.Wis. AFFIRMED
MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2016 ME 132 Docket: Cum-15-559 Argued: May 3, 2016 Decided: August 16, 2016 Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ. ESTATE OF BARBARA M. FROST JABAR, J. [¶1] Nancy Gamash appeals from a summary judgment entered in the Cumberland County Probate Court (Mazziotti, J.) in a matter derivative to a will contest that she initiated regarding the estate of Barbara M. Frost. She contends that the court erred in concluding that Bank of America, N.A., (BANA) holds a valid note and mortgage encumbering property of Frost’s estate, and that the advances on BANA’s mortgage are valid obligations of Frost’s estate. In the absence of a genuine dispute of material fact on the issue, we affirm the judgment entered in BANA’s favor as to the validity of the note and mortgage. With respect to the validity of certain mortgage advances, however, we vacate the judgment entered in favor of BANA and remand for the entry of a summary judgment in favor of Gamash. 2 I. FACTUAL BACKGROUND [¶2] “Viewing the record in the light most favorable to the non-prevailing part[y], the summary judgment record contains the following facts, which are undisputed unless otherwise noted.” Remmes v. Mark Travel Corp., 2015 ME 63, ¶ 3, 116 A.3d 466 (citation omitted). [¶3] Frost, who was born in 1933, executed a will in March 2000, naming her half-sister, Gamash, as her sole beneficiary. Frost’s friend, Thomas Blair, began managing tenants, repairs, and renovations at Frost’s multi-unit property and residence in Old Orchard Beach (the property) at some point in the early 2000s. On September 9, 2005, Frost executed a durable financial power of attorney (the POA) appointing Blair as her agent. [¶4] In February 2007, Blair contacted an assisted living facility and paid a deposit to reserve the next available apartment for Frost. Frost moved to the assisted living facility in August 2007. On September 10, 2007, Frost executed another will, eliminating Gamash as legatee and naming Blair as her primary beneficiary. Frost was admitted to the hospital for spinal surgery on September 19, 2007, and discharged to a rehabilitation center on September 27, where she remained until October 10. 3 [¶5] In September 2007, Blair contacted Countrywide Bank and applied for a reverse mortgage on the property, using the POA to sign or initial numerous documents, including a “Certificate of Home Equity Conversion Mortgage Counseling” and a disclosure explaining that the loan could be accelerated if the property ceased to be the borrower’s primary residence. Blair also completed a residential reverse mortgage application in which he represented that he was Frost’s son and that the borrower, Frost, intended to occupy the property as her primary residence. Frost later signed the application that Blair had completed, personally acknowledging that “the property will be occupied as certified herein.” [¶6] In October 2007, Countrywide issued a letter to Frost stating that it had approved her application for a reverse mortgage subject to the satisfaction of several preconditions, including completion of another counseling certificate without the POA information and review and approval of the POA by the closing agent if the borrower planned to use the POA at closing. Frost then executed a “Certificate of Home Equity Conversion Mortgage Counseling,” and Countrywide’s closing agent, Absolute Title, reviewed and approved the POA for use at closing. In November 2007, Countrywide issued closing instructions to Absolute Title, directing Absolute 4 Title to postpone the closing if it “has knowledge or a belief that Borrower owns and occupies another residence not subject to this transaction and does not intend to occupy the Property.” Absolute Title thereafter faxed a message to Countrywide, stating that “[Frost] is currently in Rehab. Not certain if will be able to make closing. Son – Tom Blair is contact. . . . Attached are copies of Tom[’]s POA.” [¶7] On November 7, 2007, a loan closing agent met with Frost at her assisted living facility, and Frost signed and initialed each page of a promissory note and a deed of trust in connection with a Countrywide reverse mortgage loan in the original principal amount of $950,000. The note provided, inter alia, that “[a]ll outstanding principal, accrued interest, and other charges” would be immediately due and payable if the property ceased to be the borrower’s principal residence. During the closing, Frost signed or initialed numerous other documents, including another residential reverse mortgage application, wherein she affirmed that she intended to occupy the property as her primary residence; and a reverse mortgage loan agreement with an attached payment plan and a schedule of closing costs. The closing agent completed a mailing affidavit, directing that future correspondence from Absolute Title would go to Blair’s home address. 5 [¶8] On the closing date, $40,000 was advanced on the loan, and $128,634 was paid to Saco & Biddeford Savings to extinguish a preexisting mortgage on the property. Between March 2008 and December 2012, Frost, or Blair as POA for Frost, submitted credit request forms to the initial lender, Countrywide, and later to Countrywide’s successor, BANA, drawing more than $250,000 on the mortgage. Of that amount, $208,000 was advanced through Blair’s use of the POA. [¶9] When Frost died in December 2012, she owned the property encumbered by BANA’s mortgage.1 II. PROCEDURAL HISTORY [¶10] After Frost’s death, Gamash initiated a will contest, asserting that Frost’s 2007 will was a product of Blair’s undue influence. In conjunction with that contest, Gamash petitioned for a declaratory judgment that the note and mortgage held by BANA were invalid because they were “created through” a POA that lacked the statutory notices required by 18-A M.R.S.A. § 5-508 (1998 & Supp. 2004),2 and because the lender and its agents “were aware that it was 1 After Frost’s death, BANA assigned the mortgage to Reverse Mortgage Solutions, Inc. (RMSI). In May 2013, RMSI assigned the mortgage back to BANA. 2 Although Gamash’s petition referred to 18-A M.R.S.A § 5-508 (1998 & Supp. 2005), the amendments to the statute enacted in 2005 did not take effect until September 17, 2005, eight days after Frost executed the POA on September 9, 2005. See P.L. 2005, ch. 184, § 1 (effective Sept. 17, 2005); P.L. 2005, ch. 284, § 2 (effective Sept. 17, 2005). In this opinion, we refer to the statute that 6 Mr. Blair who wanted the reverse mortgage.” Gamash also requested a declaration that the mortgage advances were invalid because they were “secured through the use of” that same defective POA. BANA filed an answer, asserted defenses, and filed a counterclaim requesting a declaratory judgment either that the mortgage and note were valid or that BANA was entitled to an equitable lien on the property in the amount of the mortgage that was used to pay off the preexisting mortgage. [¶11] Gamash moved for a summary judgment, asking the court to declare that defects in the POA rendered the note, the mortgage, and the mortgage advances secured through the POA invalid, and that BANA was not entitled to an equitable lien on the property. BANA filed a cross-motion for summary judgment, requesting the same declaratory relief that it had requested in its counterclaim and arguing, inter alia, that (1) even if the POA was invalid, the mortgage was valid because (a) Blair had apparent authority to act as Frost’s agent and (b) Frost ratified Blair’s actions in the loan application process, and (2) there was no dispute of fact concerning fraud that would invalidate the mortgage. Gamash opposed BANA’s cross-motion, was in effect on September 9, 2005—i.e., 18-A M.R.S.A. § 5-508 (1998 & Supp. 2004). We also note that 18-A M.R.S. §§ 5-501 to 5-510 have since been repealed, and the notice requirements for powers of attorney have been reenacted in amended form at 18-A M.R.S. § 5-905 (2015). See P.L. 2009, ch. 292 §§ 1-2 (effective July 1, 2010). 7 arguing that the mortgage was invalid because BANA, through its predecessor Countrywide and Countrywide’s agent, Absolute Title, had “perpetuated and ratified” Blair’s fraud in the mortgage documents by proceeding with the transaction when “it knew or should have known” that Frost did not intend to occupy the property as her primary residence. [¶12] On August 19, 2015, the court entered a summary judgment in favor of BANA, concluding that, although the POA was invalid because it did not include certain mandatory notices, the note and mortgage were valid obligations of Frost’s estate because Frost had personally executed the loan closing documents and thereby ratified Blair’s use of the invalid POA in the loan application process. Gamash thereafter filed a “motion for clarification,” inquiring whether the summary judgment foreclosed a trial on (1) her claims that the note and mortgage were vitiated by fraud, and that the mortgage advances procured by Blair’s use of the invalid POA were invalid, or (2) BANA’s claim that it was entitled to an equitable lien. [¶13] On October 23, 2015, the court entered an order, pursuant to M.R. Prob. P. 59 and M.R. Civ. P. 59(e), issuing further conclusions and otherwise denying Gamash’s motion. The court concluded that Gamash had failed to generate a factual dispute as to fraud in the formation of the mortgage. With 8 respect to the validity of the mortgage advances, the court stated, “Where the loan and mortgage itself was valid, and any advances were made to and for the benefit of the mortgagor, it only makes sense that [BANA] has the right to recoup those payments . . . . There are no issues of fact to be tried regarding the advances.” The court did not reach the issue of whether BANA was entitled to an equitable lien on the property because it concluded that BANA had adequate remedies at law pursuant to its valid mortgage. [¶14] Gamash appealed. See 18-A M.R.S. § 1-308 (2015). III. DISCUSSION [¶15] We review a ruling on cross-motions for summary judgment de novo, considering the properly presented evidence and any reasonable inferences that may be drawn therefrom in the light most favorable to the nonprevailing party, in order to determine whether there is a genuine issue of material fact and whether any party is entitled to a judgment as a matter of law. See Budge v. Town of Millinocket, 2012 ME 122, ¶ 12, 55 A.3d 484; F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME 115, ¶ 8, 8 A.3d 646. “When the material facts are not in dispute, we review de novo the trial court’s interpretation and application of the relevant statutes and legal concepts.” Remmes, 2015 ME 63, ¶ 19, 116 A.3d 466. “Summary judgment is appropriate 9 when review of the parties’ statements of material fact and the record evidence to which the statements refer, considered in the light most favorable to the nonprevailing party, demonstrates that there is no genuine issue of material fact that is in dispute and the prevailing party is entitled to judgment as a matter of law.” Id. ¶ 18. [¶16] Gamash argues that the court erred by concluding that (1) Frost effectively ratified Blair’s use of the POA in the loan application process; (2) there was no dispute of fact as to whether the note and mortgage were vitiated by fraud; and (3) there was no dispute of fact that the mortgage advances were made for Frost’s benefit. We consider these issues in turn. A. Whether Frost Ratified Blair’s Use of the POA in the Application Process [¶17] When Frost executed the POA in September 2005, Title 18-A M.R.S.A. § 5-508(d) mandated the inclusion of certain statutory notices in any durable financial POA.3 There is no dispute that the POA of 3 At that time, 18-A M.R.S.A. § 5-508(d) provided as follows: (d) A durable financial power of attorney must contain the following language: “Notice to the Principal: As the “Principal,” you are using this Durable Power of Attorney to grant power to another person (called the “Agent” or “Attorney-in-fact”) to make decisions about your money, property or both and to use your money, property or both on your behalf. If this written Durable Power of Attorney does not limit the powers that you give your Agent, your Agent will have broad and sweeping powers to sell or otherwise dispose of your property and spend your money without advance notice to you or approval by you. Under this document, your Agent will continue to have these powers after you become incapacitated, and you may also 10 September 2005 did not contain the notices required by section 5-508(d). The Probate Court concluded that the omission of the statutory notices rendered the POA invalid. Because BANA did not file a cross-appeal from that conclusion, we do not consider BANA’s unpreserved contention that the POA was excepted from the statutory notice requirements. See MaineToday Media, Inc. v. State, 2013 ME 100, ¶ 28 n.17, 82 A.3d 104 (declining to consider an argument when its proponent failed to preserve it by filing an appeal). choose to authorize your Agent to use these powers before you become incapacitated. The powers that you give your Agent are explained more fully in the Maine Revised States, Title 18-A, sections 5-501 to 5-508 and in Maine case law. You have the right to revoke or take back this Durable Power of Attorney at any time as long as you are of sound mind. If there is anything about this Durable Power of Attorney that you do not understand, you should ask a lawyer to explain it to you. Notice to the Agent: As the “Agent” or “Attorney-in-fact,” you are given power under this Durable Power of Attorney to make decisions about the money, property or both belonging to the Principal and to spend the Principal’s money, property or both on that person’s behalf in accordance with the terms of this Durable Power of Attorney. This Durable Power of Attorney is valid only if the Principal is of sound mind when the Principal signs it. As the agent, you are under a duty (called a “fiduciary duty”) to observe the standards observed by a prudent person dealing with the property of another. The duty is explained more fully in the Maine Revised Statutes, Title 18-A, sections 5-501 to 5-508 and Title 18-B, sections 802 to 807 and chapter 9 and in Maine case law. As the Agent, you are not entitled to use the money or property for your own benefit or to make gifts to yourself or others unless the Durable Power of Attorney specifically gives you the authority to do so. As the Agent, your authority under this Durable Power of Attorney will end when the Principal dies and you will not have the authority to administer the estate unless you are authorized to do so in accordance with the Probate Code. If you violate your fiduciary duty under this Durable Power of Attorney, you may be liable for damages and may be subject to criminal prosecution. If there is anything about this Durable Power of Attorney or your duties under it that you do not understand, you should ask a lawyer to explain it to you.” This language does not confer powers not otherwise contained in the durable financial power of attorney. 11 [¶18] We do, however, consider Gamash’s argument that the court erred when it concluded that the note and mortgage are valid, notwithstanding Blair’s use of the invalid POA in the loan application process, because Frost effectively ratified Blair’s actions when she signed the operative loan documents. Our review is informed by the following principles of agency. [¶19] Although the action of a purported agent is of no legal effect if the action exceeds the authority granted by the principal, see Casco N. Bank, N.A. v. Edwards, 640 A.2d 213, 215 (Me. 1994), a principal may ratify the action and thereby give legal effect to a transaction otherwise inoperative as to the principal, see QAD Investors, Inc. v. Kelly, 2001 ME 116, ¶ 21, 776 A.2d 1244, by manifesting an intention to be a party to the transaction, Wilkins v. Waldo Lumber Co., 130 Me. 5, 12, 153 A. 191 (1931). In order to ratify an agent’s conduct, a principal must have knowledge of all material facts. QAD Investors, Inc., 2001 ME 116, ¶ 21, 776 A.2d 1244. “The intention to ratify may be manifested by express words or by conduct.” Wilkins, 130 Me. at 12 (quotation marks omitted). A principal may ratify the unauthorized action of a purported agent through conduct by accepting the benefits of the action. Id. [¶20] Here, it is undisputed that Blair used the invalid POA to execute a number of documents in the loan application process. It is also undisputed 12 that Frost signed multiple documents in the loan application process, as well as the promissory note, the deed of trust, and many other documents in the course of closing the loan.4 At oral argument, Gamash asserted—for the first time in this proceeding—that Frost was incompetent at the time of closing. This contention was not preceded by similar allegations in Gamash’s complaint, summary judgment pleadings, or appellate brief, and it is not supported by any evidence in the summary judgment record. Because Gamash failed to alert the trial court and the opposing party that she intended to litigate the issue of competence, we will not consider the issue now. See Foster v. Oral Surgery Assocs., P.A., 2008 ME 21, ¶ 22, 940 A.2d 1102. [¶21] Based upon the undisputed facts contained in this summary judgment record, we conclude that Frost demonstrated a knowledge of the material facts and indicated her consent to be bound by the mortgage when she signed the operative mortgage documents. Among those documents was a reverse mortgage loan agreement and an attached payment plan, showing that the reverse mortgage would be used to extinguish the preexisting 4 Although Gamash asserts that Blair induced Frost to sign the operative mortgage documents, and BANA asserts that Frost signed the application of her own free will, we conclude that the summary judgment record does not properly present a factual dispute on this issue because the conflicting assertions are not positively set forth, but instead appear as new facts in statements that qualify or object to affirmative statements of fact. See Doyle v. Dep’t of Human Servs., 2003 ME 61, ¶ 11, 824 A.2d 48 (“A court need not consider additional facts when, as here, they are improperly commingled in . . . [responsive] paragraphs . . . .”). 13 mortgage of $128,634, and that $40,000 would initially be advanced. The summary judgment record establishes, without any dispute, that the reverse mortgage inured to Frost’s benefit, at least to the extent that it was used to extinguish the preexisting mortgage. We therefore affirm the trial court’s conclusion that the mortgage and note are valid because Frost ratified Blair’s use of the invalid POA in the loan application process.5 B. Whether the Note and Mortgage Were Vitiated by Fraud [¶22] We next address Gamash’s argument that the court erred in concluding that the summary judgment record establishes, without any material dispute of fact, that the mortgage and note were not vitiated by fraud. Gamash specifically contends that the summary judgment record establishes that the mortgage and note are invalid because BANA, through its 5 Because Gamash has not provided any legal basis for voiding or avoiding the mortgage as a remedy for defects in the mortgage application process, we decline to consider her argument that the mortgage application documents that Blair executed pursuant to the invalid POA were “integral aspects of” and “regulatory predicates to” a valid mortgage, rendering it legally impossible for Frost to ratify the mortgage by signing the operative documents. We also reject Gamash’s argument that a principal cannot ever ratify actions undertaken under authority granted by a POA when the POA lacks required statutory notices. In support of this contention, Gamash cites Lubin v. Klein, 193 A.2d 46 (Md. 1963) and Citizens Bank of N. Ky., Inc. v. PBNK, Inc., No. 2004-CA-001351-MR, 2006 Ky. App. LEXIS 826 (Ky. Ct. App. Feb. 17, 2006), which concern the validity of a mortgage signed by a purported agent who lacked actual authority. These cases are inapposite to the issue here, which concerns the validity of a mortgage signed by the principal. In light of our conclusion that Frost ratified Blair’s actions in the loan application process and thereby validated the note and mortgage, we need not address BANA’s argument that Blair acted with apparent authority in the application process. It is also unnecessary to consider whether BANA is entitled to an equitable lien. 14 predecessor, Countrywide, and Countrywide’s agent, Absolute Title, ratified Blair’s misrepresentations in the mortgage documents by proceeding with the transaction when “it knew or should have known” of those misrepresentations. In the alternative, Gamash argues that the summary judgment record reflects a dispute of material fact as to whether the mortgage and note were vitiated by fraud. BANA contends that we should not reach the merits of this issue because Gamash lacks standing to assert a fraud claim. [¶23] We assume, without deciding, that Gamash has standing to assert a fraud claim as part of her challenge to the validity of Frost’s 2007 will. As the party that moved for summary judgment on the issue of fraud, BANA bears the burden of demonstrating that Gamash’s summary judgment materials do not establish a prima facie case for each element of fraud. See Budge, 2012 ME 122, ¶ 12, 55 A.3d 484. In reviewing the summary judgment entered on the issue of fraud, we therefore consider whether the evidence demonstrates specific facts that support Gamash’s claim that Countrywide or Absolute Title misrepresented a material fact, with knowledge of its falsity or in reckless disregard of its truth or falsity, and that Frost reasonably relied on the misrepresentation to her detriment. See Barnes 15 v. Zappia, 658 A.2d 1086, 1089 (Me. 1995) (setting forth the elements of fraud). [¶24] Even when viewed in the light most favorable to Gamash, the summary judgment record does not establish a prima facie case that the lender or its agent engaged in fraud with respect to the mortgage. Instead, the record demonstrates that (1) during the application process, Blair misrepresented that he was Frost’s son and that Frost intended to reside primarily at the property; and (2) at closing, Frost signed a document affirming that she intended to occupy the property as her principal residence. To the extent that these statements were misrepresentations, their effect was to increase the likelihood that Countrywide would issue the mortgage to Frost. To the extent that there was any fraud, the facts in the summary judgment record indicate that the fraud was perpetuated by Blair and Frost against the lender. Because Gamash has provided no basis for imputing any false statements to the lender, the statements provide no basis for Gamash, as Frost’s heir, to set the mortgage aside. For this reason, the trial court did not err by granting summary judgment in favor of BANA on Gamash’s fraud claim. 16 C. Whether Frost Ratified the Mortgage Advances [¶25] Finally, we consider whether the trial court erred by ruling that the mortgage advances are valid (notwithstanding Blair’s use of the invalid POA to procure some of them) because it is undisputed that Frost retained the benefit of the advances. As the party who moved for a summary judgment on this issue, Gamash bore the burden of establishing each element of her claim of invalidity by properly placing the facts material to that claim before the court. See N. Star Capital Acquisition, LLC v. Victor, 2009 ME 129, ¶ 8, 984 A.2d 1278. [¶26] In her statement of material facts, Gamash asserts, with reference to proper supporting evidence, that Blair used the invalid POA to secure advances on the mortgage totaling $208,000.6 Because BANA does not controvert this properly supported fact, it is deemed admitted. See M.R. Civ. P. 56(h)(4). Moreover, because the POA did not give Blair the authority to act on Frost’s behalf, the mortgage advances of $208,000 secured pursuant to the POA were not binding on Frost when they were made. See Perkins v. 6 As already noted, these funds were advanced after the mortgage instrument was executed and proceeds of $128,634 were applied from that loan to extinguish Frost’s preexisting mortgage on the property. 17 Philbrick, 443 A.2d 73, 74 (Me. 1982) (concluding that an attorney who settled a client’s claim without authority did not bind the client to the settlement). [¶27] However, as with the validity of the mortgage instrument itself, the validity of the mortgage advances could be established through proof that Frost subsequently ratified the advances. As the party relying on ratification to establish the validity of the unauthorized advances, BANA bore the burden of demonstrating that ratification occurred. See Hyams v. Old Dominion Co., 113 Me. 294, 300, 93 A. 747 (1915). In Gamash’s additional statement of material facts, she asserted that Blair was the primary beneficiary of the funds advanced on the mortgage. BANA did not file any response to this statement, or otherwise properly assert that it was Frost, rather than Blair, who benefited from the mortgage advances secured through the POA. [¶28] At oral argument, BANA averred that it had contested Gamash’s assertion that Blair benefited from the mortgage advances by referring in its statement of material facts to the affidavit of Blair. Although Blair’s affidavit states that Frost benefited from the mortgage advances, this statement was not properly before the court because it is not found anywhere in BANA’s statements of material facts. See Cach, LLC v. Kulas, 2011 ME 70, ¶ 10 n.3, 21 A.3d 1015 (“[A] court should consider only the portions of the record 18 referred to in the Rule 56(h) statements and is neither required nor permitted to independently search a record to find support for facts offered by a party.” (quotation marks omitted)); Chase Home Fin. LLC v. Higgins, 2009 ME 136, ¶ 12 n.4, 985 A.2d 508 (“Facts not set forth in the statement of material facts are . . . not in the summary judgment record.”); see also HSBC Bank USA, N.A. v. Gabay, 2011 ME 101, ¶ 17, 28 A.3d 1158 (explaining that the rigors of Rule 56 must be enforced on appeal). [¶29] In sum, the invalid POA was used to obtain $208,000 in mortgage advances that did not bind Frost. Unlike the mortgage instrument itself, which was signed by Frost and inured to her benefit to the extent that it extinguished a preexisting mortgage on the property, there is no evidence in the summary judgment record that the $208,000 in mortgage advances secured through the invalid POA were ratified by Frost’s words or conduct. Because Gamash established that BANA advanced $208,000 on the mortgage pursuant to an invalid POA, and BANA failed to carry its burden of presenting evidence that Frost ratified the advances obtained pursuant to the invalid POA, the court erred in concluding that the mortgage advances secured through the POA were valid. Summary judgment on this issue should have been entered in favor of Gamash. 19 The entry is: Summary judgment in BANA’s favor affirmed as to the validity of the note and mortgage. Summary judgment in BANA’s favor vacated as to the validity of the $208,000 in mortgage advances secured through the invalid POA. Remanded for the entry of a summary judgment in Gamash’s favor that the mortgage advances secured through the invalid POA are not binding on Frost’s estate. On the briefs: John F. Lambert, Jr., Esq., and Abigail C. Varga, Esq., Lambert Coffin, Portland, for appellant Nancy Gamash Bradley M. Lown, Esq., Coughlin, Rainboth, Murphy & Lown, P.A., Portsmouth, New Hampshire, for appellee Bank of America, N.A. At oral argument: Abigail C. Varga, Esq., for appellant Nancy Gamash Bradley M. Lown, Esq., for appellee Bank of America, N.A. Cumberland County Probate Court docket number 2013-451 FOR CLERK REFERENCE ONLY
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Order Michigan Supreme Court Lansing, Michigan October 11, 2018 Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M. McCormack 156498(25) David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement, PEOPLE OF THE STATE OF MICHIGAN, Justices Plaintiff-Appellee, SC: 156498 v COA: 338712 Iosco CC: 13-008088-FH CLYDE RICHARD GREEN, Defendant-Appellant. _____________________________________/ On order of the Chief Justice, the motion of plaintiff-appellee to extend the time for filing its answer to the application for leave to appeal is GRANTED. The answer submitted on October 8, 2018, is accepted as timely filed. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. October 11, 2018 Clerk
37 Cal.2d 644 (1951) 234 P.2d 625 DOROTHY L. HOCKING, Appellant, v. TITLE INSURANCE AND TRUST COMPANY (a Corporation) et al., Respondents. Docket No. L.A. 21917. Supreme Court of California. In Bank. August 10, 1951. 645 Wing, Wing & Brown and Merrill Brown for Appellant. Lawrence L. Otis, Gilbert E. Harris, James F. Healey, Jr., and Sarau, Adams, Neblett & Sarau for Respondents. SCHAUER, J. Plaintiff, in reliance on a policy of title insurance, seeks to recover from defendant title insurance companies for damages she claims to have sustained by reason of what is asserted to be a defect in the title to certain land purchased by her in the city of Palm Springs, county of Riverside. [1] Judgment on the pleadings was rendered in defendants' favor, and plaintiff appeals. The issue presented is whether plaintiff's complaint states a cause of action (see Union Flower Market, Ltd. v. Southern California Flower Market, Inc. (1938), 10 Cal.2d 671, 673 [76 P.2d 503]; Seeger v. Odel (1941), 18 Cal.2d 409, 412 [115 P.2d 977]). We have concluded that the judgment must be affirmed. [2a] Plaintiff alleges: She purchased for the sum of $13,550 two unimproved lots in a subdivision in Palm Springs 646 and received a grant deed therefor. Approximately one month later plaintiff purchased from defendants a policy of title insurance insuring her in a sum not in excess of her purchase price of $13,550 against loss or damage which she might sustain (1) by reason of title to the lots not being vested in plaintiff in fee simple, (2) by reason of unmarketability of plaintiff's title, (3) by reason of any defect, lien or encumbrance on such title. The lots are described in the policy as "Lots 5 and 10 of VISTA DEL CIELO No. 3, as shown by Map on file in Book 21 page 55 of Maps, records of Riverside County, California." The policy contains a provision setting forth certain exceptions to its coverage.[1] However, plaintiff did not (she alleges) have a "title as insured by defendants" in that the City Council of Palm Springs, in violation of a city ordinance numbered 39[2] "purportedly approved and accepted" 647 by "Resolution No. 1970" a subdivision map of the property involved "without first obtaining from owners of said subdivision" agreements and bonds providing for the grading and paving of the streets in the subdivision, as required by the ordinance; the county recorder of the county of Riverside, in violation of the terms of the Subdivision Map Act (Bus. & Prof. Code, div. 4, pt. 2, ch. 2) and in particular of section 11626[3] of the Business and Professions Code, "purportedly accepted, recorded and filed" the subdivision map of record. The land in the subdivision "is now and has always been open, barren desert land and not improved as set forth in Section 9" of the city ordinance relied upon by plaintiff; the city refuses to issue building permits "in said purported subdivision" by reason of the failure to comply with such ordinance; "it would cost" plaintiff in excess of $13,550 "to make the improvements required" by the city ordinance. Plaintiff contends that "by virtue of the absence of the bond supported agreement to grade and pave the streets" she does not have a fee simple title in Palm Springs "subdivision lots," that "whatever title she does have is defective by reason of the absence of the bond supported agreement," and that defendants are consequently liable to her under the terms of the title insurance policy. In this connection she points out that "Street improvements obviously enhance the value of subdivision lots," that "obviously the sales value of such property is a long ways from the sum of $13,550.00 which she paid for the property, if it has any value at all," and that "Certainly no one would pay that price for two small areas of vacant, unimproved desert land." She expressly disclaims any contention that the refusal of the city to issue building permits constituted a breach of the title policy,[4] but does state in the petition for hearing by this court that her "information 648 concerning the actions of the City Council and the County Recorder was obtained after the issuance of the policy and resulting from the information of the City that it would refuse and had refused any building permits in the subdivision by reason of the absence of the bond supported agreement to grade and pave the streets." Plaintiff relies upon the rule of construction of title policies set forth in National H. Co. v. Title I. & T. Co. (1941), 45 Cal. App.2d 215, 220-221 [113 P.2d 906], quoting from Coast Mutual Building-Loan Assn. v. Security Title Ins. & Guar. Co. (1936), 14 Cal. App.2d 225, 229 [57 P.2d 1392], as follows: "Not only the provisions of the policy as a whole, but also the exceptions to the liability of the insurer, must be construed so as to give the insured the protection which he reasonably had a right to expect, and to that end doubts, ambiguities, and uncertainties arising out of the language used in the policy must be resolved in his favor. "`The courts have also announced a rule ... to the effect that when the language employed in an insurance contract is ambiguous, or when a doubt arises in respect to the application, exceptions to, or limitations of, liability thereunder, they should be interpreted most favorably to the insured, ... Such contracts are to be interpreted in the light of the fact that they are drawn by the insurer, and are rarely understood by the insured, to whom every rational indulgence should be given, and in whose favor the policy should be liberally construed. Where the language and terms of a policy are framed and formulated by the insurer, every ambiguity and uncertainty therein should be resolved in favor of the insured.' (14 Cal.Jur. p. 445.) "The rule thus stated is supported by an unbroken line of authorities, a few of which are the following: [Authorities cited.]" Plaintiff also cites the statement appearing in Smith v. Bank of America etc. Assn. (1936), 14 Cal. App.2d 78, 85 [57 P.2d 1363], quoting from Skelly Oil Co. v. Kelly (1931), 134 Kan. 176 [5 P.2d 823, 824], that "The word title has a variety of meanings. It sometimes connotes the means by which property in land is established, as in the expression `chain of title.' It sometimes means `property' or `ownership' in the sense of the interest one has in land. A common meaning is complete ownership, in the sense of all the rights, privileges, powers and immunities an owner may have with respect to land." 649 In Sheehy v. Miles (1892), 93 Cal. 288, 292 [28 P. 1046], the following appears: "In the case of Turner v. McDonald, 76 Cal. 177 [18 P. 262, 9 Am.St.Rep. 189], this court said: `A perfect title must be one that is good and valid beyond all reasonable doubt'; and in that case it was conceded by counsel upon both sides that a title, to be good, `should be free from litigation, palpable defects, and grave doubts, should consist of both legal and equitable titles, and should be fairly deducible of record.' It would seem, in fairness to the vendee, that the foregoing requirements should be held absolutely necessary, in order to fully satisfy the covenant of perfect title. Certainly such a condition of title must exist before it can be said to be good and valid beyond reasonable doubt. [Citations.]" Other definitions of title are: "The words `good title' import that the owner has the title, legal and equitable, to all the land, and the words `defective title' mean that the party claiming to own has not the whole title, but some other person has title to a part or portion of the land." (Copertini v. Oppermann (1888), 76 Cal. 181, 186 [18 P. 256]; Bates v. Howard (1894), 105 Cal. 173, 184 [38 P. 715].) "A person who has contracted to purchase real estate is entitled to a perfect title; and if the estate or interest of the vendor is subject to defeasance upon the happening of a contingent event or the nonperformance of a condition, the title tendered is not perfect or `marketable.' Hence, where the vendor brings suit for specific performance, the purchaser may successfully defend the action upon the ground that the estate of the complainant is contingent or defeasible." (22 Cal.Jur. 818, § 22, Remainders and Reversions.) "A seller frequently agrees to furnish a `good and perfect title.' Such an agreement imports a title that must not only be good in point of fact, but it must also be apparently perfect when exhibited that is, free from reasonable objection, such as litigation, palpable defects and grave doubts fairly deducible of record, and unencumbered." (7 Cal.Jur. 751-752, § 31, Covenants; see, also, 25 Cal.Jur. 626-629, § 125, Vendor and Purchaser.) "Much learning has been expended in giving definitions as to good and marketable titles. The following appears to be one supported by the weight of authority, to wit: `A marketable title, to which the vendee in a contract for the sale of land is entitled, means a title which a reasonable purchaser, well informed as to the facts and their legal bearings, willing and anxious to perform his contract, would, in the exercise of 650 that prudence which business men ordinarily bring to bear on such transactions, be willing and ought to accept.' [Citations.]" (Staton v. Buster (1926), 79 Cal. App. 428, 432 [249 P. 878], holding wife's signature to deed to community real property acquired prior to 1917, in addition to that of husband, not required to convey good and marketable title to such community realty; see also Mertens v. Berendsen (1931), 213 Cal. 111 [1 P.2d 440].) In reliance upon the general principle that "All applicable laws in existence when an agreement is made necessarily enter into it and form a part of it as fully as if they were expressly referred to and incorporated in its terms" (4 Cal.Jur. 10-Yr. Supp. 138, § 186, and cases there cited; see also Lelande v. Lowery (1945), 26 Cal.2d 224, 226 [157 P.2d 639]), and upon the further statement that "It is the general rule that applicable municipal ordinances are `law' within the rule that every contract is made with reference to, subject to, and presumably in contemplation of, existing law" (110 A.L.R. 1048), plaintiff urges that Palm Springs ordinance No. 39 was a part of the contract of title insurance issued to her by defendant, and that violation by the city council of such ordinance and violation by the county recorder of the Subdivision Map Act, constituted a breach of the title policy. She further contends (apparently because the policy describes the lots by reference to the recorded subdivision map) that by the terms of the policy she was assured of a perfect title to "subdivision lots." [3] It is established law in this state that the title to such a lot embraces an easement to use all of the streets disclosed on the subdivision map. (Danielson v. Sykes (1910), 157 Cal. 686, 689 [109 P. 87].) Since, says plaintiff, "the Palm Springs subdivision ordinance required these easements to be in a certain condition, namely, graded and paved" and "As such conditions did not exist in this matter," plaintiff's title is not perfect. With respect to the statement in Smith v. Bank of America etc. Assn. (1936), supra, 14 Cal. App.2d 78, 85, that "A common meaning [of the word title] is complete ownership, in the sense of all the rights, privileges, powers and immunities an owner may have with respect to land," plaintiff further urges that "an owner of a subdivided lot in the City of Palm Springs would regard among his `rights and privileges' with respect to his lot the graded and paved streets." She argues additionally that such a Palm Springs lot owner has an "`immunity' of significance and value, for if the streets are not improved the city can improve them and charge him a 651 proportion of the price of the improvement by virtue of the various improvement acts contained in the Streets and Highways Code ..." Plaintiff also contends that the acceptance and recording of the subdivision map in violation of existing law "results in the entire subdivision being in a litigious state as the same is either wholly void or voidable," and she is deprived of a record title. She admits inability to find a case in point, but urges that the provisions of section 11626 of the Business and Professions Code, allegedly violated by the county recorder, are mandatory, and that the Subdivision Map Act is for the protection of the public. (See Smith v. Bach (1920), 183 Cal. 259, 262 [191 P. 14].) She therefore urges application of the general rule stated in 50 American Jurisprudence 43, 44, section 20, as follows: "There are numerous instances of instruments or proceedings held to be void because of the failure to comply with a statutory provision relating thereto. This is true of mandatory provisions, compliance with which is a condition precedent to the privilege conferred. In fact, a mandatory provision in a statute has been defined as one the omission to follow which renders the proceeding to which it relates illegal and void." [4] It is defendants' position that plaintiff confuses title with physical condition of the property she purchased and of the adjacent streets, and that "One can hold perfect title to land that is valueless; one can have marketable title to land while the land itself is unmarketable." The truth of this proposition would appear elementary. [2b] It appears to be the condition of her land in respect to improvements related thereto (graded and paved streets), rather than the condition of her title to the land, which is different from what she expected to get. Defendants also point out that under the provisions of section 11628[5] of the Business and Professions Code acceptance of the subdivision map by the recorder constituted such map a public record, reference to which in plaintiff's deed furnished her with a good record title, a title which is legally marketable whether or not a purchaser is available. [5] Concerning the rule of construction making applicable laws part of a contract, defendants rely upon the statement 652 in Wing v. Forest Lawn Cemetery Assn. (1940), 15 Cal.2d 472, 476 [101 P.2d 1099], that "This rule, however, should be limited to those laws which are `applicable' and which affect `the validity, construction, discharge or enforcement of the contract,' [citations] and care should be taken that its application is not extended to lengths which approach absurdity." It is defendants' argument that Palm Springs ordinance No. 39 simply prescribed certain requirements which were to be met before the city council accepted a subdivision map, and did not purport to affect the title to the lots therein plotted, and, further, such ordinance did not affect the "validity, discharge or enforcement" of the title insurance contract. We are persuaded that defendants' position is well taken. Not only do the ordinance provisions pleaded and relied on by plaintiff fail to suggest an intention to affect either land titles or title insurance contracts, but plaintiff has cited no authority and we are aware of none which would extend the rule of construction upon which she relies to import an undertaking (other than an express one) by the contracting parties that, prior to the making of the contract, other persons (here, the subdivider and the city council) had complied with all laws which might have a bearing upon the value of the land (here, as affected by the physical condition of adjacent streets), the title to which is the subject matter of the contract. [2c] Although it is unfortunate that plaintiff has been unable to use her lots for the building purposes she contemplated, it is our view that the facts which she pleads do not affect the marketability of her title to the land, but merely impair the market value of the property. She appears to possess fee simple title to the property for whatever it may be worth; if she has been damaged by false representations in respect to the condition and value of the land her remedy would seem to be against others than the insurers of the title she acquired. It follows that plaintiff has failed to state a cause of action under the title policy. The judgment is affirmed. Gibson, C.J., Shenk, J., Edmonds, J., Traynor, J., and Spence, J., concurred. CARTER, J. I dissent. The issue here presented is whether a title insurance company is liable for a defective title which it has insured. The majority opinion holds that it is not, proceeding upon the premise that plaintiff obtained a merchantable title, and losing 653 only, it is said, substantially the entire value of the property. That is to say, the basic theory of the majority is, that the defect ran to the value of the property rather than the title. This is a misconception of the legal problem involved herein. The facts are clear: Plaintiff purchased the property and received a grant deed therefor, describing it as two numbered lots in a certain block according to a subdivision map purportedly on record. The subdivider had failed, however, to comply with the city ordinances dealing with subdividing land and the state Subdivision Map Act. (Bus. & Prof. Code, § 11500 et seq.) I believe the majority opinion is erroneous from any angle of approach. The defect goes to the merchantability of the title whether we look at its effect on the value of the property, or technically, at the title. It is conceded that the title insurance policy guarantees the title to be merchantable. From the technical standpoint of title, the Subdivision Map Act must be examined. Thereunder, title to easements in streets do not pass until the map of the subdivision is "duly recorded." (Bus. & Prof. Code, § 11615.) No map may be recorded until compliance has been had with all the provisions of the act and local ordinances. (Id., § 11626.) It may be said, therefore, that there is at least a grave doubt that the streets were ever dedicated to the public or that plaintiff, as an abutting owner, obtained a private easement therein. But the conveyance of the property to plaintiff was made according to a map which showed streets, and hence her title on its face, would seem to embrace them as an appurtenance. (See Owsley v. Hamner, 36 Cal.2d 710 [227 P.2d 263].) And defendant by insuring the marketability of his title thereby guaranteed also the title to at least a private easement in the streets. Moreover, it was of importance to his title that the title to an easement for the streets be dedicated to and accepted by the city, for without it he could not compel a dedication or acceptance. Certainly, if title is conveyed which shows frontage on a public street, it is defective if there is no public street, or the existence thereof is gravely doubtful, and it has been so held. (Cleveland v. Bergen Bldg. & Imp. Co. (N.J.), 55 A. 117; Morris v. Avondale Heights Co., 218 Ky. 356, [291 S.W. 752].) It has been held that deprivation of an easement that was supposed to be appurtenant to the property conveyed is a defect in the title to the property making it non-merchantable. (Monogram Dev. Co. v. Natben Const. Co., 253 N.Y. 320 [171 N.E. 390].) 654 Mention has been made in the foregoing discussion of the existence of at least grave doubt as to the quality of the title with respect to the easements public and private. That is all that is required to render a title unmarketable. The rule is stated in Mertens v. Berendsen, 213 Cal. 111, 113 [1 P.2d 440]: "... a marketable title has been defined generally as one free from reasonable doubt. ... `Such a title must be free from reasonable doubt, and such that a reasonably prudent person, with full knowledge of the facts and their legal bearings, willing and anxious to perform his contract, would, in the exercise of that prudence which business men ordinarily bring to bear upon such transactions, be willing to accept and ought to accept. It must be so far free from defects as to enable the holder, not only to retain the land, but possess it in peace, and, if he wishes to sell it, to be reasonably sure that no flaw or doubt will arise to disturb its market value ...'" (Italics added.) The holdings of the case are thus summarized: "Title to land has been defined as the means whereby an owner has the just possession of his property. A good or perfect title, within the meaning of contracts for the sale of real property, is one which is free from litigation, palpable defects and grave doubts, which consists of both legal and equitable titles and is fairly deducible from the record. Such a title is one which is not only good in point of fact but which, when exhibited, is free from any reasonable objection. One contracting for such a title may demand a conveyance with such proof of title as will arm him with the recorded means of vindicating its validity in after times a good or perfect record title. He is not required to accept a title depending upon matters which rest in parol, such as one which can be shown to be good as the result of an action instituted for the purpose of reforming defects existing in any deed which is necessary to make the chain of title complete, or one which rests upon the statute of limitations. Nor is he required to rely upon an oral statement of the vendor as to the state of his title. If there should appear to be such an uncertainty about the title arising from the record as to affect its market value, a court of equity will not compel its acceptance, and the vendee may recover the purchase money paid by him. "Marketable title. A marketable title to real property is one in which there is no doubt involved, either as a matter of law or of fact in other words, a good and perfect title, one free from reasonable doubt or pending litigation." (25 Cal.Jur. 628.) Here there is more than a reasonable doubt 655 whether plaintiff has any easement in the street and whether the city has any interest or obligation in the street. Indeed the doubt has become a certainty because the city has refused permission to use the property at all for building, all of which springs from the defect in the title, consisting of the subdivider failing to comply with the law, a prerequisite to a clear chain of title where land is subdivided. It was the defendant's business and responsibility to ascertain whether there had been obedience to the law in perfecting the subdivision. In addition to the foregoing, in connection with the refusal of the city to issue a permit for the erection of a building on the property, such refusal plainly renders the property practically worthless. Obviously that is a defect in the title. It is something of record which renders the property valueless. It is of more serious consequence than a restrictive covenant which prohibits certain uses of the property. It is suggested in opposition to the foregoing discussion that the policy of insurance excepts from the coverage any governmental regulation restricting the use of the land. Clearly, that has no application to the title to the easement as affected by subdivision map laws, for the title to the property is involved, and it is a regulation as to how titles might be acquired. If the law required a witness' signature to a deed to validate it, noncompliance therewith would not permit the insurer to invoke the exception. Its business is to insure against imperfections in instruments in the chain of title. Here the map must meet certain requirements, as does a deed, and is, in effect, an instrument in the chain of title, a defect in which must be found by the insurer as a part of the risk assumed by it. Here it was not anything that was done or not done by the city that caused the imperfection in the title. The subdivider, by failing to follow the law caused the title to be in doubt, the same as if a grantor had given a void deed. The action of the city in denying the permit is merely one of the incidents flowing from the faulty title. Strictly construing the policy against the insurer, as we must, the exception can only embrace things, such as zoning regulations, which are no part of the chain of title and have no effect upon it. As above seen, the map requirements are, on the other hand, the same as deed requirements, that is, for land to be conveyed in parcels, certain procedure must be followed and certain documents must be executed and recorded. Moreover, it should be noted that the exception in the policy concerns itself solely with the use or occupancy of the property. The map regulations, 656 however, deal with the right to convey and it is obvious that plaintiff did not get a clear title to the property by the conveyance in question. I would therefore reverse the judgment. Appellant's petition for a rehearing was denied September 7, 1951. Carter, J., voted for a rehearing. NOTES [1] Such provision reads as follows: "The Company does not, by this policy, insure against loss by reason of: 1. Easements or liens which are not shown by the public records (a) of the District Court of the Federal District (b) of the county, or (c) of the city, in which said land or any part thereof is situated; 2. Rights or claims of persons in possession of said land which are not shown by those public records which impart constructive notice; 3. Any facts, rights, interests, or claims which are not shown by those public records which impart constructive notice, but which could be ascertained by an inspection of said land, or by making inquiry of persons in possession thereof, or by a correct survey; 4. Mining claims, reservations in patents, water rights, claims or title to water; 5. Any governmental acts or regulations restricting, regulating, or prohibiting the occupancy or use of said land or any building or structure thereon." [2] Sections 9 and 10 of the ordinance, as pleaded by plaintiff, read as follows: "(9) STREET IMPROVEMENTS. The subdivider will be required to improve or to agree to improve the land dedicated for streets, highways and public ways. Such improvements shall include the grading of all such rights-of-way to a sufficient standard that all portions of the subdivision are easily accessible by motor vehicle traffic and all streets and highways shall be treated with a permanent pavement of standard type of a width not less than 20 feet.... "(10) POSTING OF BONDS. If the improvement work above referred to be not completed satisfactorily, the owner or owners of the subdivision will be required, before the acceptance of the final map, to enter into an agreement with the City Council whereby in consideration of the acceptance by the City Council of the highways offered for dedication the owner agrees to furnish the equipment and materials necessary, and to complete the work specified in the agreement. To assure the City that this work will be completed, two bonds must be furnished, one in a sum equal to the cost of the work estimated by the City Planning Commission and the other a bond for the security of the material, men and labor in a sum equal to one-half of the estimated costs. The bonds must be furnished by a surety company, approved by the City Council and filed with the City Clerk." [3] Section 11626 provides: "Except as provided in Section 11537 [not here material], no final map of a subdivision shall be accepted by the county recorder for record unless there has been a compliance with all provisions of this chapter and of any local ordinance. "The recorder may have not more than 10 days to examine the final map before accepting or refusing it for recordation." [4] Such refusal would appear to fall within the fifth exception to the policy, quoted in footnote 1. [5] Section 11628 provides: "When any final map is presented to the county recorder and is accepted by him, he shall so certify on the face thereof and shall fasten the same securely in a book of maps of subdivisions or of cities and towns which he shall keep in his office. Upon acceptance by the recorder, the final map shall be a public record."
538 U.S. 999 PRISMA ZONA EXPLORATORIA DE PUERTO RICO, INC.v.CALDERON ET AL. No. 02-1236. Supreme Court of United States. April 28, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. 2 C. A. 1st Cir. Certiorari denied. Reported below: 310 F. 3d 1.
933 F.2d 1004 U.S.v.Smith* NO. 90-8397 United States Court of Appeals,Fifth Circuit. MAY 14, 1991 1 Appeal From: W.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2
855 F.Supp. 1120 (1994) Dora CORYELL, Plaintiff, v. UNITED STATES of America, Defendant. No. SACV 92-353-GLT. United States District Court, C.D. California. June 3, 1994. Anson D. Reynolds, Wellman & Associates, Newport Beach, CA, for plaintiff. 1121 Sara R. Robinson, Asst. U.S. Atty., U.S. Dept. of Justice, Los Angeles, CA, for defendant. ORDER ON MOTION FOR RECONSIDERATION OF SUMMARY JUDGMENT RULINGS TAYLOR, District Judge. In light of the Ninth Circuit's new Ravell opinion, the court is compelled to hold, inter alia, that the United States is protected from suit under California's landowner immunity statute for Plaintiff's injuries at a military air show, where an open invitation to attend the show was extended to the general public but not to plaintiff personally. I. BACKGROUND In this Federal Tort Claims action,[1] plaintiff alleges she was seriously injured by a fall at the Miramar Naval Air Station's 1990 Air Show and Open House, when her foot slipped into a gap between two metal ramps placed for the public to walk in and out of a cargo airplane. The Air Show event had been highly publicized to the general public, and the public was invited and encouraged to attend. This court first denied the government's motion for summary judgment brought on the ground of property owner immunity under California Civil Code section 846.[2] Then, this court granted plaintiff's motion for partial summary judgment, holding that section 846 does not immunize the government because plaintiff was "expressly invited." In so doing, the court held an express invitation may be extended to the general public, and no personal invitation is required. Coryell v. United States, 847 F.Supp. 148 (C.D.Cal. 1994). In April 1994, the Ninth Circuit held to the contrary in Ravell v. United States, 22 F.3d 960 (9th Cir.1994). Relying on a 1993 California appellate court case, the Ravell court held the "express invitation" exception to section 846 immunity requires a direct, personal invitation. Based on Ravell, the government now correctly seeks reconsideration of this court's prior rulings, and a grant of summary judgment in its favor.[3] II. DISCUSSION Based on the Ninth Circuit's new Ravell decision requiring a personal invitation for the "express invitation" exception, and the absence of evidence to raise a triable issue concerning the willful misconduct exception, the court grants summary judgment for defendant under California's landowner immunity statute. 1. "Express Invitation" Exception. Under the Federal Tort Claims Act, as in a diversity case, the court must follow the law of the state where the act or omission complained of occurred. The court should apply the law as the state's Supreme Court would apply it. Where the state's Supreme Court has not decided the issue, the federal court must predict how the Supreme Court would rule, and may consider the rulings of state intermediate appellate courts as data in making that analysis. Richardson v. United States, 841 F.2d 993, 996 (9th Cir. 1988) (applying diversity case holdings to Federal Tort Claims Act case). See also Air-Sea Forwarders, Inc. v. Air Asia Co. Ltd., 880 F.2d 176, 186 (9th Cir.1989) and 1122 Insurance Co. of North America v. Howard, 679 F.2d 147, 149 (9th Cir.1982), both diversity cases. The California Supreme Court has not ruled on the question of whether an "express invitation" under the section 846 exception must be a personal invitation. In 1981 the Ninth Circuit held in Simpson v. United States, 652 F.2d 831, 834-5 (9th Cir.1981) that California law permits an express invitation to be made to the general public. Simpson cited the California Supreme Court,[4] which in turn cited a California appellate court,[5] holding that "all are invitees who are expressly invited, ... even though the invitation be not individual, but to the public generally."[6]Simpson noted that the Ninth Circuit's earlier statement in Phillips v. United States, 590 F.2d 297, 299-300 (1979), that the section 846 exception required a personal invitation was merely dicta. However, in Ravell v. United States, 22 F.3d 960 (9th Cir.1994), the Ninth Circuit has now held that California law requires a personal invitation for a section 846 invitation, citing a California appellate court in Johnson v. Unocal Corp., 21 Cal.App.4th 310, 26 Cal. Rptr.2d 148 (1993). A sound argument can be made that Johnson does not hold or indicate that a personal invitation is required. Johnson did not even involve an invitation, but a hold-harmless permission granted by the landowner to Johnson's employer. In a terse rejection of Johnson's argument that this permission was an express invitation to him, the appellate court stated the obvious the execution of the permission agreement is not a direct, personal invitation to Johnson. Johnson does not hold an invitation must be personal, but merely rejects the argument that the permission was an invitation. At most, any implication to the contrary would appear to be dicta. The "express invitation" language of the statute seems unambiguous. The dictionary indicates that "express" means explicit, non-implied, specific, definite, exact, and made for or suited to a special purpose or event. An invitation to the general public may be all of these things. There is nothing in the plain language of the statute that would require an express invitation also be a personal invitation. They are simply different concepts. In view of the clear language of the statute, and the clear statement of California law that an express invitation may be to the public, one might reasonably predict that, when the California Supreme Court interprets section 846, it will hold an express invitation does not require a personal invitation. Nevertheless, pending clarification by the California Supreme Court, the Ninth Circuit's Ravell decision is controlling on this court. Under Ravell, this court grants summary judgment in favor of the government on the "express invitation" exception. 2. "Willful Misconduct" Exception. In the alternative, plaintiff argues her injury falls within a second exception in section 846 that immunity is not provided "for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity." She contends the ramp provided for public use had a dangerous gap which presented an obvious peril and was left uncorrected. The court holds this is insufficient to withstand summary judgment. The Ninth Circuit has treated this exception to section 846 immunity as requiring an intentional tort. Spires v. United States, 805 F.2d 832, 834 (9th Cir.1986). To establish willful misconduct under California law, a plaintiff must show that the defendant: (1) had actual or constructive knowledge of the peril; (2) had actual or constructive knowledge that injury was probable as opposed to possible; and (3) consciously failed to act to avoid the danger. Mattice v. U.S. *1123 Dept. of Interior, 969 F.2d 818, 822 (9th Cir.1992). As noted in Spires: We have analyzed this intentional tort standard in detail in Rost v. United States, 803 F.2d 448, 451 (9th Cir.1986). "The meaning assigned to wilful misconduct by the California courts is any intentional act of an unreasonable character undertaken in disregard of a known risk or a risk so obvious that the actor must be taken to have been aware of it, and so great as to make resulting harm highly probable." Id. (citations omitted). Id. 805 F.2d at 834. While the evidence presented here may suggest negligence, it does not rise to the level of an intentional tort. All the claims for such willful conduct that have been upheld by the Ninth Circuit involve a hidden peril (Mattice, supra, at 822), but the alleged peril here was open and obvious. While occurrence of prior incidents have been argued as the basis for knowledge of the danger (Mattice, supra, at 823; Spires, supra, at 834), the evidence here is there were no prior occurrence reports. No evidence establishes a question of fact regarding the government's actual or constructive knowledge of a peril, or that injury was probable as opposed to possible. Moreover, no evidence raises a question whether the government consciously failed to act to avoid the harm. Therefore, the court grants summary judgment in favor of the defendant government on plaintiff's "willful misconduct" theory. III. DISPOSITION For the reasons stated above, the court GRANTS reconsideration of its prior summary judgment rulings, and GRANTS summary judgment in favor of the defendant United States. Within ten days defendant shall submit a proposed judgment. NOTES [1] 28 U.S.C. § 2671 et seq. [2] The Federal Tort Claims Act extends liability to the United States in the same manner and to the same extent as a private individual under state law. California Civil Code section 846 provides that a landowner who gives permission to enter or use land for a recreational purpose does not extend any assurance that the premises are safe for that purpose, or incur liability for injury to one using the land. However, section 846 provides exceptions. One is that the section does not "limit the liability which otherwise exists ... to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner." Another is that immunity is not provided for willful or malicious failure to guard or warn against a dangerous condition. [3] Although this court's previous summary judgment rulings were in two separate motions at different times, this motion addresses them both. The parties have joined issue and fully briefed the entire matter, so all aspects of section 846 are properly before the court on this motion. [4] O'Keefe v. South End Rowing Club, 64 Cal.2d 729, 51 Cal.Rptr. 534, 414 P.2d 830 (1966). [5] Borgnis v. California-Oregon Power Co., 84 Cal. App. 465, 258 P. 394 (1927). [6] Id. at 468, 258 P. 394.
Order entered April 1, 2015 In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01224-CR TRAYVON DONTARIO HATTER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-80148-2014 ORDER Appellant’s March 30, 2015 third motion to extend the time to file appellant’s brief is GRANTED. The time to file appellant’s brief is EXTENDED to May 1, 2015. If appellant’s brief is not filed by May 1, 2015, this appeal will be abated so that the trial court can make findings in accordance with rule of appellate procedure 38.8. /s/ LANA MYERS JUSTICE
255 F.2d 854 Cecelia WATN, Administratrix and Administratrix Ad Prosequendum of the Estate of John Martin Watn, Deceased,v.The PENNSYLVANIA RAILROAD COMPANY and Pennsylvania-Reading Seashore Lines, Appellant.Cecelia WATN, Administratrix and Administratrix Ad Prosequendum of the Estate of John Martin Watn, Deceased,v.The PENNSYLVANIA RAILROAD COMPANY, Appellant, andPennsylvania-Reading Seashore Lines. No. 12351. No. 12352. United States Court of Appeals Third Circuit. Argued February 18, 1958. Decided June 13, 1958. John R. McConnell, Philadelphia, Pa. (Morgan, Lewis & Bockius, Philadelphia, Pa., on the brief), for Pennsylvania-Reading Seashore Lines. Theodore Voorhees, Philadelphia, Pa. (Matthew J. Broderick, Barnes, Dechert, Price, Myers & Rhoads, Philadelphia, Pa., on the brief), for Pennsylvania R. Co. B. Nathaniel Richter, Philadelphia, Pa. (Kenneth Syken, Charles A. Lord, Richter, Lord & Levy, Philadelphia, Pa., on the brief), for appellee. Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges. BIGGS, Chief Judge. 1 This action was brought by the administratrix of the estate of John Watn who was killed when the engine of a Pennsylvania-Reading Seashores Lines (Seashore) train struck him while he was in the employ of the Pennsylvania Railroad Company (Pennsylvania) as a fireman. The accident occurred in New Jersey. Recovery is sought against both Pennsylvania and Seashore. The cause of action against Pennsylvania is based on the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The cause of action against Seashore is based on diversity of citizenship, and the plaintiff seeks to enforce rights under the New Jersey Wrongful Death and Survival Statutes. N.J.S.A. 2A:31-1 et seq. The federal act and the law of New Jersey are respectively applicable. 2 The cause was tried by a jury. Seashore moved for a directed verdict asserting that Watn was guilty of contributory negligence as a matter of law. The trial court denied this motion, and thereafter the jury returned a verdict in favor of the plaintiff against both defendants in the amount of $63,000. After judgment both defendants moved for a new trial. The district court denied both motions. 3 On these appeals both defendants urge that they are entitled to new trials. Pennsylvania bases its motion on the theory that the verdict as to it was contrary to the weight of the evidence; that to its grave prejudice counsel for the plaintiff showed the jury a plan of the yard which had not been introduced into evidence; and that the charge of the trial judge was inadequate in that it failed to explain to the jury the difference between liability under the Federal Employers' Liability Act and liability under the New Jersey Wrongful Death and Survival Statutes. Seashore seeks a new trial only on the basis of the trial court's alleged erroneous charge. Seashore, however, seeks a new trial only as an alternative for it continues to contend that the overwhelming weight of the uncontradicted evidence establishes Watn's contributory negligence and that therefore it was entitled to a directed judgment as a matter of law. 4 We cannot agree that Seashore is entitled to judgment in its favor as a matter of law. It is established by the applicable New Jersey decisions that contributory negligence ceases to be a question of fact for the jury and becomes an issue of law for the court only in those cases where the "contrary hypothesis is not fairly admissible." Pangborn v. Central Railroad Co. of New Jersey, 1955, 18 N.J. 84, 93, 112 A.2d 705, 709.1 Where a determination of contributory negligence depends upon the conclusion to be reached from a variety of circumstances considered in relation one to the other, the question of contributory negligence remains one of fact for the jury. Mellon v. Pennsylvania-Reading Seashore Lines, 1951, 7 N.J. 415, 81 A.2d 747; Piacente v. New York Central R. Co., 1944, 131 N.J.L. 481, 36 A.2d 921. 5 Watn, a Pennsylvania fireman, immediately prior to the accident was riding on the rear portion of the left side steps of a Pennsylvania diesel locomotive which was backing slowly into the Camden Yard of Pennsylvania. Watn was riding on the left side of the diesel in relation to the front of the engine but was on the right side of the engine in relation to the direction in which it was proceeding. The Seashore train, en route from Wildwood to Camden, New Jersey, was proceeding to the Camden Yard on track No. 2. Moving at the rate of 8 to 10 miles an hour the Seashore train crossed-over to track No. 3, and eventually to track No. 4, the latter track being the one immediately alongside that on which the Pennsylvania diesel was moving. 6 When the Seashore train was at a distance of approximately a city block from the Pennsylvania diesel the fireman of the Seashore train observed Watn standing on the steps of the Pennsylvania diesel. He continued to observe Watn in that position but failed to notify his engineer of this fact. The engineer testified that a beam in the Seashore engine cab prevented him from seeing Watn until the Seashore train's engine was even with the front end of the Pennsylvania diesel, i. e., the other end of the engine from the steps on which Watn was standing. There is, however, evidence in the record that the Seashore engineer could have seen Watn at a distance of not less than 200 feet, had he been looking toward him. The Seashore Engineer testified, however, that instead of looking toward Watn he was looking beyond the point where Watn was to a yard flagman who was signalling him that the Seashore train had the right to enter the yard. There was testimony to the effect that the Seashore train could have been halted within 100 feet had this been attempted. 7 It seems clear from the evidence that the Seashore train did not blow its whistle until the forward part of the train, a Budd five-car train, with the engine and the engineer in the fore part of the leading car, was even with that portion of the Pennsylvania diesel farthest from the point where Watn was standing. There was evidence that this blast was not intended to warn Watn but rather as a signal to the flagman. So much is reasonably clear from the evidence. But immediately thereafter Watn was struck by the Seashore train and was fatally injured. No one saw Watn descend from the steps. His body was found on the tracks. It is reasonable to suppose if he had remained on the steps he would not have been injured. 8 The accident occurred in the Camden Yard between Second and Third Streets. A crucial question of fact arises as to whether the Seashore train came on to track No. 4 between Third and Second Streets or between Fourth and Third Streets. If the former was the case it follows that the Seashore train suddenly crossed-over to track No. 4 at a point where it was very close to the Pennsylvania diesel. Under the law of New Jersey there is a presumption of due care upon the part of a deceased in a negligence case. McConachy v. Skalerew, 1934, 113 N.J.L. 17; 171 A. 817; Danskin v. Pennsylvania R. Co., 1910, 79 N.J.L. 526, 76 A. 975. From the facts at bar the jury could have inferred that before descending from the diesel Watn looked up track No. 4 to see if it was safe for him to descend, and that having observed the Seashore train on track No. 3 and no train on track No. 4, he stepped down with no reason to anticipate a sudden cross-over by the Seashore train to track No. 4. If this was so the jury would have been entitled to infer that Watn was not guilty of contributory negligence. He was not required to go on looking down track No. 4 but was entitled to go on about his railroad business. If, on the other hand, the Seashore train was on track No. 4 for some considerable length of time and did not make a sudden cross-over from track No. 3 to track No. 4, the presumption of due care would have been rebutted and Watn could have been found guilty of contributory negligence. A pivotal issue of fact was therefore presented. Since the jury, with rational bases, could have found either way, it is clear that the issue of contributory negligence in this case was a question of fact for the jury and not an issue for the court. The court below did not err in sending this question to the jury. 9 The reliance placed by Seashore on the decision of the Supreme Court of New Jersey in Siegler Co. v. Norton, 1952, 8 N.J. 374, 86 A.2d 8 is misplaced. That case dealt with a railroad crossing situation in which the railroad's right of passage as against the right of the crossing traveller to enter a track area placed an extremely heavy duty of care on the traveller and allowed the engineer to make the reasonable assumption that the traveller would use the crossing with due regard to the railroad's right of way. Rafferty v. Erie R. Co., 1901, 66 N.J.L. 444, 49 A. 456. The situation presented is distant from the facts of the case at bar which involves the death of a railroad fireman lawfully working on railroad premises and whose presence should be anticipated by train engineers. See Pangborn v. Central Railroad Co. of New Jersey, supra. Seashore clearly is not entitled to judgment in its favor as a matter of law. 10 We come next to the issues presented by the requests for new trials. The first contention raised by Pennsylvania is that the verdict as to it was against the weight of the evidence. There is undisputed evidence in the record that Pennsylvania allowed large clinkers to lie in the spaces between tracks 4 and 5, and that several of the ties were a foot or so longer than other ties, this being caused by the failure of Pennsylvania to remove or trim the longer ties which had formerly carried a third rail which had been removed some years before the accident. There also was testimony to the effect that the space between the tracks at the point of the accident was four or five inches narrower than that between the neighboring tracks at that location. All of these factors created a hazardous place to work. While apparently conceding that it allowed these conditions to persist, Pennsylvania argues that there is no evidence from which the jury could infer that these conditions caused or contributed to the accident. 11 We cannot agree. Under the principles of causation and liability laid down by the Supreme Court of the United States in F.E.L.A. cases we conclude that the jury was entitled to infer that Watn descended from Pennsylvania's diesel engine to the No. 4 track and at that moment, finding himself in a position of peril due to a sudden cross-over to that track by the Seashore train, then tried to re-board the Pennsylvania diesel or took some other action in an attempt to avoid injury, and that because of the condition of the track and roadbed referred to either slipped on the clinkers or stumbled on the irregular ties or was unable to avoid being hit by the Seashore train because of the unusually narrow clearance. Rogers v. Missouri Pacific R. Co., 1957, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; Schulz v. Pennsylvania R. Co., 1956, 350 U.S. 523,76 S.Ct. 608, 100 L.Ed. 668; Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740, 744, 90 L.Ed. 916. 12 The jury, having found against both defendants, the plaintiff is entitled to every reasonable inference in her favor which may be drawn from the evidence. We are faced here with a disputed issue of fact which we are not free to redetermine in this court. That the jury's verdict necessarily involved some degree of speculation and conjecture is no basis for a new trial. As was stated in Lavender v. Kurn, supra, 327 U.S. at page 653, 66 S.Ct. at page 744, "[A] measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference." See also McBride v. Toledo Terminal R. Co., 1957, 354 U.S. 517, 77 S.Ct. 1398, 1 L.Ed.2d 1534; Gibson v. Thompson, 1957, 355 U.S. 18, 78 S.Ct. 2, 2 L.Ed.2d 1; Stinson v. Atlantic Coast Line Railroad Co., 1957, 355 U.S. 62, 78 S.Ct. 136, 2 L.Ed.2d 93; Shaw v. Atlantic Coast Line Railroad Co., 1957, 353 U.S. 920, 77 S.Ct. 680, 1 L.Ed.2d 718; Rogers v. Missouri Pacific Railroad Co., supra; Tennant v. Peoria & P. U. Ry. Co., 1944, 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520. 13 Pennsylvania's second major argument for a new trial is based on the exhibition by plaintiff's counsel of a plan of the Camden yard which he had drawn on the back of a hotel doily during the noon recess just before argument to the jury. It had not been identified or offered in evidence. It was not shown to the court or to counsel for the defendants prior to its exhibition to the jury. Such trial tactics are not to be countenanced. No paper or document should be exhibited to a jury which is not in evidence.2 But a new trial is not required in this particular instance for after this unfortunate happening the trial judge immediately before his charge inquired of the jury whether any of its members had considered the drawing as evidence or had given it weight up to that time. The jurors replied in the negative.3 The trial judge then said to the jury that "[I]t [the jury] couldn't possibly give it [the doily drawing] any consideration at all." Pennsylvania argues that this admonition could not have cured the effect which the exhibition of the doily had on the jury. In view of the fact that the record is clear that it had no effect upon the jury, we feel the admonition of the court was adequate to cure counsel's egregious error. 14 Both Pennsylvania and Seashore contend that serious errors in the charge require the granting of a new trial. We have studied the charge and are not persuaded that the contentions of the railroads are supportable. We conclude that the trial judge explained adequately the two different theories of liability in the case. The law relating to the standard of care and the law of contributory negligence were presented appropriately to the jury. Nor can we agree with the contention of Seashore that the trial judge, after charging on contributory negligence, instructed the jury that its members could accept or reject the applicable rules of law as stated by the court. Nowhere in the charge do we find such a direction. Actually, the trial judge told the jury that they were to apply the law to the facts of this particular case. 15 The judgment of the court below will be affirmed. Notes: 1 Mr. Justice Brennan, then an Associate Justice of the Supreme Court of New Jersey, stated in the cited case: "We have only recently reiterated the rule that `only in the clearest case of contributory fault, where the contrary hypothesis is not fairly admissible, does the question become one of law for decisive action by the court. Care is to be taken that the reasonable man be not endowed with attributes which properly belong to a person of exceptional perspicuity and foresight.'", citing Battaglia v. Norton, 1954, 16 N.J. 171, 179, 108 A.2d 1, 5 2 The counsel committing this solecism was not an inexperienced member of the bar. On the contrary he is a trial lawyer of long experience. In this instance he may have been forgetful of what the rules of evidence and courtroom decorum required. We give him the benefit of that doubt 3 The colloquy was as follows: The Court: "Members of the jury: Before I start my charge there is a little matter I want to take up with you which was raised by counsel after the arguments were all in yesterday, and I want you to answer me how you feel about it. "It is a rule of law, members of the jury, in the trial in these cases here that if any document is to be given to the jury for their consideration it first has to be identified and then qualified as being admissible, the judge rules on it; and then, as you saw happen in this case here, various documents were brought in, photographs, and so forth; that is the procedure which was followed, and then we permitted them to be passed among the jurors so that you could get an idea what the whole area of this yard was like, the tracks, and so forth, to help you understand the testimony that came later. These were properly (351) brought up at the very beginning of the trial, almost equivalent to a visit down there yourself and looking at the yard. That is what that was for. "Now, yesterday when Mr. Richter was giving his closing speech in answer to Mr. Voorhees, — Mr. McConnell had not spoken yet — Mr. Richter told you that he had at lunchtime with his partner, Mr. Lord, outlined to him, that is, to Mr. Lord, something of the situation there. He said Mr. Lord had asked what kind of a case he was trying, and so forth, and he was in the courtroom here from time to time because he was in another case in an adjoining room and had another case to be tried by me later when I got through here. So, he came in and wanted to know what the case was about. I am trying to lay this matter before you just as it happened; it is awfully important and I am taking the trouble to give you the whole situation and I would like to know how you feel about it. He said that he himself made this sketch there — you can see it — it is a rough drawing, and he went on to tell you in his closing remarks what his conception was of the location of the tracks and certain deductions that could be drawn from the location of the different objects, the trains, and so forth, and held it up to you in this manner, as I understand. (Demonstrating.) It wasn't passed to you (352) but he held it up. Now, what I want to ask you is this, that happened right in the presence of all of us, and so that there will be no misunderstanding if this case goes up to another court for trial, I want to knew whether or not when Mr. Richter held up the paper and spoke about it that way whether that carried any conviction to you, or brought about an impression on you — the drawing itself, not the inferences to be drawn, but whether the drawing was considered by you as being in evidence before you or did it have any weight in the formation of your opinion up to that time. "If it did with any of you, will you raise your hand? (Juror No. 11 raises hand.) "The Court: It had weight with you? "Juror No. 11: I couldn't see it very good. "The Court: You couldn't see it? "Juror No. 11: He kept shaking it. "The Court: That is Juror No. 11, he couldn't see it. "Could any of you make that out with sufficient clarity to be led to a conclusion or have your judgment affected by it in any way? "A Juror (No. 3): It seems to me — I saw it, (353) but the photographs were much more clearer. "The Court: Will you repeat that? "A Juror (No. 3): I saw it when it was held up, but — "The Court: You are No. 3 juror? "A Juror (No. 3): Yes, I saw it, but I thought that the photographs were clearer. "The Court: Did it have any weight with you at all? "A Juror (No. 3): No, not at all. "The Court: The answer is `No'. That is all I wanted to know because if it did then I might have to charge you further because the only thing that the jurors can consider, members of the jury, are the things that are properly passed upon, and I wouldn't want to have a paper not passed upon submitted to you in any way. I would have to tell you that this couldn't possibly have any legal weight with you. You couldn't possibly give it any consideration at all. You know that. All right. Now, I am going to charge. * * *"
[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1753 MARTHA MOISE LOUIS, Plaintiff, Appellant, v. FLAGSHIP AIRLINES, INC. D/B/A AMERICAN EAGLE, AMERICAN AIRLINES, INC., AND ICALM GROUP, INC., Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Robert E. Keeton, U.S. District Judge] Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge. Marian H. Glaser for appellant. Dennis J. Kelly with whom Mark J. Ventola and Christopher D. Engebretson were on brief for appellees. February 5, 1999 COFFIN, Senior Circuit Judge. After sustaining injuries while descending stairs from an airplane, Martha Moise Louis ("Louis") filed suit against the airline and its insurance adjuster, ICALM. The court: 1) dismissed the claim against ICALM for lack of personal jurisdiction; 2) denied Louis's motion to amend the complaint; and 3) denied her motion for post-judgment discovery regarding the identity of other possible defendants. Louis now appeals all three decisions. Because the court's rulings were entirely appropriate, we affirm. I. Background In the first leg of a journey to Haiti, Louis boarded an American Eagle ("American") commuter flight at Boston's Logan airport on January 6, 1994. The flight was subsequently canceled, and the passengers were asked to deplane. When descending the stairs to the tarmac, Louis slipped and fell on an icy patch. She declined American's offer to arrange and pay for immediate medical assistance. More than a year and a half later, in August 1995, her attorney sent a letter to American seeking a report of the incident. American responded in October 1995 that it was commencing an investigation of the accident and requested information about Louis's injuries. Her counsel sent the material on November 5, 1995. American forwarded the package to its insurance adjuster, ICALM, a New York corporation with its principal place of business in North Carolina. On November 20, 1995, ICALM sent Louis a letter requesting that she provide the medical and employment authorizations necessary to verify the nature and extent of her injuries. Louis provided the materials on January 29, 1996, two years and twenty-three days after the accident. After conducting its own investigation, ICALM denied her claim because the Warsaw Convention's two-year statute of limitations had expired. During the entire period, ICALM contacted Louis or her attorney four times: once to request the authorizations, twice to return calls from Louis's attorney, and once to inform Louis that her claim had been denied. Louis subsequently filed suit in Massachusetts against American for negligence and against ICALM for unfair or deceptive insurance practices. When both American and ICALM moved for summary judgment, the court dismissed the claim against American as barred by the statute of limitations. It also expressed doubt about its ability to exercise personal jurisdiction over ICALM, and asked Louis to file a supplemental memorandum detailing ICALM's relevant in-state activities. Louis filed both the supplemental memorandum and a motion to amend the complaint to add "Underwriters of Lloyd's of London" as a defendant. The court denied her motion to amend, and dismissed the claims against ICALM for lack of personal jurisdiction. Louis then filed a post-judgment discovery motion in an attempt the learn the names of other defendants who might not be covered by the same statute of limitations as American, but again the court denied her entreaty. II. Discussion The district court's opinions are lengthy and thoughtful, and we need not linger in our discussion of the issues. A. Personal Jurisdiction District courts may exercise personal jurisdiction over out-of-state defendants if "such jurisdiction is authorized by state statute or rule and its exercise does not offend due process." United Elec. Workers v. 163 Pleasant Street Corp., 960 F.2d 1080, 1086 (1st Cir. 1992). In relevant part the Massachusetts long-arm statute provides for personal jurisdiction over a defendant in another state if he: (a) transact[s] any business in [Massachusetts]; . . . (c) caus[es] tortious injury by an act or omission in [Massachusetts]; [or] (d) caus[es] tortious injury in [Massachusetts] by an act or omission outside [Massachusetts] if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in [Massachusetts]; Mass. Gen. L. ch. 223A, 3. In its opinion, the district court correctly found that none of these standards had been met. Subsection (a) requires the defendant to have transacted business in Massachusetts. ICALM, a New York corporation with its principal place of business in North Carolina, marketed its services to American, a Delaware corporation with principal places of business in Texas and Tennessee. ICALM has never maintained any presence in Massachusetts, nor is it registered to do business there. Its only contacts with Massachusetts arise from adjusting claims made by Massachusetts residents against its clients located elsewhere. Most cases exploring the reach of the "transacting business" language involve direct contractual relations between the parties. See, e.g., Tatro v. Manor Care, Inc., 625 N.E.2d 549, 553 (Mass. 1994). In non-contractual cases such as this one Massachusetts has required more than the four contacts that occurred here for its courts to exercise jurisdiction. See New Hampshire Ins. Guar. Ass'n v. Markem Corp., 676 N.E.2d 809, 812 (Mass. 1997) (finding in action by third party that foreign insured had not transacted business in Massachusetts simply because foreign insurer had conducted some administration of insured's policies in Massachusetts). Even the most liberal interpretation of ICALM's in-state activities would not permit personal jurisdiction under this prong of the statute. Subsection (c) is equally inapplicable since it requires the tortious act to be within Massachusetts. The complaint alleged that ICALM delayed its investigation and failed to affirm or deny coverage within a reasonable time. ICALM's actions and alleged omissions, consisting solely of examining the related documents and denying coverage, took place entirely at its offices in North Carolina. Subsection (d) does allow a plaintiff to file suit for injuries in Massachusetts based on tortious acts or omissions outside the state. However, Louis's complaint cannot meet the other element of that subsection, which requires a finding that ICALM "regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from . . . services rendered, in [Massachusetts]." As stated earlier, ICALM does not do business in Massachusetts, or solicit business there. Nor does it derive substantial revenue from services rendered there. A finding that ICALM's two letters and two phone calls constituted a "persistent course of conduct" would stretch that term beyond all recognition. The long arm statute simply does not allow courts in Massachusetts to exercise jurisdiction over ICALM under the facts of this case, as the district court correctly ruled. B. Motion to amend After the court permitted Louis to fortify her filing with respect to ICALM's in-state activities, Louis filed a supplemental memorandum and a motion to amend the complaint to add "Underwriters of Lloyd's of London" as a defendant. Noting both that it was an attempt to delay the inevitable dismissal of the action against the current defendants and that Louis had learned about the insurance company's identity four months earlier, the court denied her motion. We review such a decision under an abuse of discretion standard, and "defer to the district court if any adequate reason for the denial is apparent on the record." Grantv. News Group Boston, Inc., 55 F.3d 1, 5 (1st Cir. 1995). It is evident that the court did not abuse its discretion. A finding that Louis unduly delayed filing the motion is an adequate reason to deny it. See Acosta-Mestre v. Hilton Int'l of Puerto Rico, Inc., 156 F.3d 49, 51 (1st Cir. 1998). The action began on December 31, 1996. On October 1, 1997, Louis learned that Lloyd's was the insurer. However, she neglected to move to amend until February 19, 1998, fourteen months after the original complaint was filed and more than four months after she discovered the insurer's identity. The district court found that this four month wait constituted undue delay, especially in light of the court's intervening ruling that the claim against American was dismissed and the claims against ICALM would likely be as well. The district court's reason for denying her motion is sufficient. C. Post-Judgment Discovery Louis subsequently filed a motion asking the court to stay judgment, to reconsider and to permit discovery of other possible defendants. It was denied. The district court has considerable discretion in ruling on discovery motions and will be overruled only if it abused that discretion. Daigle v. Maine Med. Ctr., Inc., 14 F.3d 684, 692 (1st Cir. 1994); see also Mack v. Great Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 186 (1st Cir. 1989) (requiring the ruling to be "plainly wrong and result[] in substantial prejudice"). Since the district court succinctly and aptly disposed of this issue, we quote its language here at length: Essentially, plaintiff asks the court to stay the case until defendants, after the court has ruled that plaintiff does not have any legally cognizable claims against them, tell plaintiff who was the owner of the staircase on which plaintiff fell. Plaintiff's request for discovery after a final judgment in this civil action, without even a contention that the requested discovery would be material to the outcome of this civil action, is simply unprecedented and has no support at law. Because all three decisions challenged on appeal were entirely appropriate, the decision is affirmed.
Case: 11-50359 Document: 00511699739 Page: 1 Date Filed: 12/19/2011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 19, 2011 No. 11-50359 Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. PAUL JASON ALVAREZ, also known as Jason Alvarez, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 7:08-CR-219-1 Before KING, HAYNES, and GRAVES, Circuit Judges. PER CURIAM:* The attorney appointed to represent Paul Jason Alvarez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Alvarez has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-50359 Document: 00511699739 Page: 2 Date Filed: 12/19/2011 No. 11-50359 excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 2
263 F.2d 263 Alphonse WARREN, Appellant,v.UNITED STATES of America, Appellee. No. ____. United States Court of Appeals Eighth Circuit. February 10, 1959. Before GARDNER, Chief Judge, and SANBORN, Circuit Judge. PER CURIAM. 1 Alphonse Warren was sentenced on February 24, 1958, to twenty years imprisonment upon the verdict of a jury finding him guilty under an indictment in five counts which charged five violations of the laws of the United States proscribing the sale and possession of contraband narcotics. The sentence was well within the maximum term of imprisonment authorized by law for the offenses. 2 At his trial, Warren was represented by counsel appointed by the court. Since his conviction and sentence, he has acted as his own counsel. He has appealed from the judgment and sentence. He was permitted by the District Court to file his notice of appeal without prepayment of costs, but was denied leave to prosecute the appeal further in forma pauperis, the trial judge certifying in writing that the appeal is without merit and not taken in good faith. Warren now petitions this Court for leave to proceed here in forma pauperis, notwithstanding the certificate of the trial judge and the following provision of 28 U.S.C. § 1915(a): 3 "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 4 We are confronted with virtually the same dilemma with which we had to deal in the case of Weber v. United States, 254 F.2d 713, 256 F.2d 119, 257 F.2d 585, certiorari denied 358 U.S. 912, 79 S.Ct. 241, 3 L.Ed.2d 233, namely, how to give some meaning and effect to the statutory provision quoted, without contravening the teachings of the Supreme Court in Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593; Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529; and Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060. 5 We have the District Court's file, which contains a detailed statement by Chief Judge Duncan, the trial judge, in support of his certificate, showing what occurred at the trial. The statement indicates that this was a conventional narcotic case, made by government agents, through the use of an informer drug addict, against a peddler of contraband narcotics, who was apprehended with such narcotics in his possession. 6 We do not, of course, have a typewritten transcript of the evidence taken at the trial nor an agreed statement of the case by trial counsel. While we have reason to believe that Warren's appeal presents no substantial questions for review, we shall follow the course which we pursued in the Weber case and which we understand the Supreme Court regards as essential. 7 We appoint Sol M. Yarowsky, of the Kansas City Bar, who was Warren's trial counsel, to represent him in this Court in connection with his petition to prosecute his appeal in forma pauperis, and request Mr. Yarowsky to see that the procedural requirements specified in the Johnson, Farley and Ellis cases are complied with. He is also requested to procure, if possible, an agreed statement of the case by trial counsel, and to file it, together with a typewritten report, with the Clerk of this Court before April 1, 1959, pointing out in what respects, if any, the trial judge erred in certifying that the appeal of Warren is not taken in good faith. A copy of the report shall be served upon the United States Attorney, who, if so advised, may file, within 20 days thereafter a typewritten response. The appellant may file a reply to the response prior to May 1, 1959. 8 The appellant's petition for leave to proceed in forma pauperis, notwithstanding the certificate of the trial judge, will be set for submission to this Court at its May session in St. Louis, Missouri.
200 F.Supp. 142 (1961) Agnes B. FAGAN, Elizabeth A. O'Rourke, Jane K. Cleary and William D. Fagan, Plaintiffs, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Defendant. No. KC-1032. United States District Court D. Kansas. December 29, 1961. 143 Carl E. Enggas and Colvin A. Peterson, Jr., of Watson, Ess, Marshall & Enggas, and Blake A. Williamson and A. C. Cooke, of Williamson, Cubbison & Vaughan, Kansas City, Kan., for plaintiffs. Willard L. Phillips and John J. Jurcyk, Jr., of McAnany, Van Cleave & Phillips, Kansas City, Kan., for defendant. ARTHUR J. STANLEY, Jr., Chief Judge. This is an action by beneficiaries to recover the proceeds of a group life insurance policy. The case has been submitted on stipulated facts for decision on its merits. In 1942, Group Policy No. 83-G, hereinafter called the master policy, was issued by defendant, John Hancock Mutual Life Insurance Company, hereinafter called the Company, covering the deceased and certain other employees of Wilson & Company, Inc., hereinafter called Wilson. Also in 1942, individual Certificate No. 5353 was issued by the Company pursuant to the master policy and delivered to Wilson at Chicago, Illinois. Wilson in turn delivered it to the deceased. Thereafter, deceased received a "rider" notifying him that in accordance with the master policy his insurance would terminate upon cessation of full-time permanent salaried employment with Wilson. In 1949, Wilson and the Company agreed to amend the master policy by providing for termination of coverage when an employee reached his normal retirement age if the employee was a member of the Wilson Retirement Plan at that time. The retirement plan was disassociated from the insurance plan and deceased was a member of the former. No "rider" containing the amendment was sent to deceased. Deceased learned of the change through correspondence with Wilson approximately three months before his normal retirement date. The deceased continued to work for Wilson, past his normal retirement date, until his death on July 27, 1953. Simply stated, the question is whether the insurance terminated at the normal retirement date or whether deceased was still insured at the time of his death. The initial question is what law governs the construction of this contract. The doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, applies to conflict of laws problems, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), so I must follow the rule laid down by Kansas. It has long been the law of Kansas that the lex loci contractus governs the construction of contracts. Hefferlin v. Sinsinderfer, 2 Kan. 401 (1864). Thus Kansas sends us to the place where the contract was made, but offers no further guidance as to where that place is under the peculiar circumstances surrounding issuance and delivery of a group insurance contract. It is generally held that such contracts are made where the master policy and the individual certificate are delivered. Burns v. Aetna Life Ins. Co., 234 Mo. App. 1207, 123 S.W.2d 185 (1939); Murphy v. Equitable Life Assur. Soc'y, 197 S.C. 393, 15 S.E.2d 646 (1941). Where the master policy is delivered in one State and the certificate in another, the courts go both ways. E. g., Metropolitan Life Ins. Co. v. Anderson, 101 F.Supp. 808 (E.D.La.1951) (law of place where master policy delivered controls); Thieme v. Union Labor Life Ins. Co., 12 Ill.App. 2d 110, 138 N.E.2d 857 (1956) (law of place where certificate delivered controls). Without deciding which rule Kansas would follow, I shall apply the law of Illinois because it is the only State with which any connection is shown. Plaintiffs allege that the insurance was in effect at deceased's death because the "rider" received by him so provided. Illinois law requires that individual certificates and "riders" be construed as part of the contract of insurance. 144 Thieme v. Union Labor Life Ins. Co., supra. Also, that in the event the terms of a master policy and a certificate are in conflict, the certificate will control. Konrad v. Hartford Acc. & Indem. Co., 11 Ill.App.2d 503, 137 N.E.2d 855 (1956). These cases, however, are not dispositive of the present question. The Thieme and Konrad cases dealt with resolution of ambiguities between different parts of a contract. The case at hand deals with contractual rights to modify a contract. Plaintiffs next urge upon the court cases which hold that the consent of the employee must be obtained to modify the contract. A contracting party must give consent, but it is difficult to see how the deceased employee can be placed in that category. The fact that a master policy and certificate are construed together does not create a contractual relationship between employee and insurer. Kloidt v. Metropolitan Life Ins. Co., 18 N.J.Misc. 661, 16 A.2d 274 (1939). I shall, therefore, follow the majority rule, which I believe to be the better reasoned one, that no consent is necessary. Metropolitan Life Ins. Co. v. Korneghy, 37 Ala. App. 497, 71 So.2d 292, 68 A.L.R.2d 239, petition for cert. dismissed, 260 Ala. 521, 71 So.2d 301 (1954); Butler v. Equitable Life Assur. Soc'y, 233 Mo.App. 94, 93 S.W.2d 1019 (1936); Miller v. Travelers Ins. Co., 143 Pa.Super. 270, 17 A.2d 907 (1941). At this juncture, plaintiffs allege that since no notice of the amendment was given to deceased, it was not effective. Although deceased was not a party to the insurance contract, he did have rights under it. For example, he could designate beneficiaries. He could also convert to an individual policy within thirty-one days after termination of coverage under the group policy. The weight of authority is that notice must be given the employee of any modification of the contract which affects his rights. Hayes v. Equitable Life Assur. Soc'y, 235 Mo.App. 1261, 150 S.W.2d 1113 (1941); Poch v. Equitable Life Assur. Soc'y, 343 Pa. 119, 22 A.2d 590, 142 A.L.R. 1279 (1941); Johnson v. Inter-Ocean Cas. Co., 112 W.Va. 396, 164 S.E. 411 (1932). This is a sound rule. Unless an employee is notified of coverage termination, he cannot take advantage of his conversion rights. The remaining question is whether deceased received notice. Neither the Company nor Wilson sent a notice to deceased prior to September 3, 1952. On that date, three months before deceased's normal retirement date and after he had agreed to postpone his retirement, deceased received a letter from the Wilson Employees' Retirement Board. The second paragraph of the letter reads: "Since your retirement allowance vests on December 1, 1952, your group life insurance with the Company will be cancelled as of that date. However, you have the privilege of converting all or any part of it within 31 days after cancellation into another form of insurance at the rates in effect for your age." The deceased replied to the Board's letter on September 12, 1952: "I am also under the impression that inasmuch as I elected to defer my retirement until December 1, 1953, that my insurance should carry on as long as I am employed by the Company. I mean, on the same basis I am on at present." The Board wrote again on September 16, 1952: "As stated in our letter of September 3 your Group Life Insurance will be cancelled as of your normal retirement date, which is December 1, 1952. The fact that you will continue in the employment of the Company does not change the status for Group Insurance. In other words, your Insurance will be cancelled the first of the month after attainment of age 65 regardless of whether or not you continue your employment with the Company." On December 16, 1952, a Mr. P. W. Seyl of Wilson's Chicago office replied to a letter from deceased who apparently had made further inquiry about the insurance. *145 The letter from Seyl reads in part: "As for the group insurance, this is automatically discontinued when an employee reaches age sixty-five with the privilege of converting all or part of it within a period of thirty-one days at rates in effect at age sixty-five. Also, you are not required to submit to a physical examination to continue the policy or to convert it to another form of insurance." The reason for the rule of notice is to secure to the employee an opportunity to take advantage of his conversion right or to procure other insurance coverage. No formal notice is required. I hold that the three letters to deceased were sufficient notice of the amendment. Such notice afforded him ample opportunity to exercise his rights under the insurance contract. Judgment will be for the defendant. Counsel will submit an appropriate journal entry.
78 Cal.Rptr.2d 847 (1998) 67 Cal.App.4th 159 CALIFORNIA FIRST AMENDMENT COALITION, Petitioner, v. SUPERIOR COURT, Sacramento County, Respondent; Pete Wilson, as Governor, etc., Real Party in Interest. No. C024109. Court of Appeal, Third District. October 9, 1998. Review Denied December 22, 1998.[] 848 Law Offices of Skjerven, Morrill, Mac-Pherson, Franklin & Friel, Edward P. Davis, Jr., James M. Chadwick, San Jose, for Petitioner. No appearance for Respondent. Daniel E. Lungren, Attorney General, Linda A. Cabatic, Senior Assistant Attorney General, and Ted Prim, Deputy Attorney General, for Real Party in Interest. RAYE, Associate Justice. This case requires us to examine the delicate balance in a democracy between knowledge and power, accountability and quality decision making. The issue arises in the midst of conflict that frequently results when a government agency denies access to documents desired by the press. The California First Amendment Coalition (CFAC) seeks access to the documents, invoking the statutory imperative that "access to information concerning the conduct of the people's business is a fundamental and necessary right" (Gov.Code, § 6250)[1] and stressing the abhorrence of "government by secrecy" reflected in numerous cases. The Attorney General, as counsel for the Governor, reminds us that while open government should be the norm, it is not an absolute; government must maintain some measure of secrecy to be effective. The narrow issue before us is whether the California Public Records Act (§ 6250 et seq.) compels the Governor to disclose the names and qualifications of applicants for a temporary appointment to a local Board of Supervisors, an appointment necessitated by the death of an elected supervisor. Governor Pete Wilson denied CFAC's request for disclosure of the applicants' names, claiming their applications are exempt from disclosure as correspondence (§ 6254, subd. (1)) and asserting a deliberative process privilege (§ 6255; Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 283 Cal.Rptr. 893, 813 P.2d 240). Acceding to the Governor's position, the trial court denied CFAC's petition for a writ of mandate compelling disclosure. We shall affirm. FACTS AND PROCEDURAL BACKGROUND A member of the Plumas County Board of Supervisors died on September 5, 1995. Governor Pete Wilson was charged with filling the vacancy. (§ 25060.) On October 16, 1995, CFAC requested the Governor to disclose "any document containing the names of those who have applied for the position." The Governor denied the request on October 27, asserting the request was ambiguous and sought information protected from disclosure under Government Code section 6254, subdivisions (c) and (k), and section 6255. Subsequently, on November 29, the Governor made an appointment to fill the vacancy. CFAC filed a petition for a writ of mandate on February 15, 1996. In his opposition, the Governor repeated the grounds asserted in his earlier letter denying the request and advanced an additional basis, the exemption for correspondence to the Governor, set further in section 6254, subdivision (1). In support of his opposition, the Governor submitted declarations of his appointments secretary and her assistant. According to the appointments secretary, the consideration of individuals for a Governor's appointment typically begins with a letter from the prospective appointee to the Governor's 849 appointments secretary requesting an application form. The appointments secretary replies by letter enclosing the application form. Following this exchange of correspondence, an appointment file is opened, which becomes the repository for the application form, letters of recommendation, interviews and notes from staff members. The files are "maintained in the strictest confidence." Names of applicants "are kept confidential in and outside the office, in part, to encourage qualified applicants to seek consideration." The policy of confidentiality has obtained during the last four gubernatorial administrations at least. No additional evidence was offered. The trial court considered the request as embracing two categories of documents: 1) written applications for appointment submitted by the applicants; and 2) written materials concerning the suitability of the applicant. In its written ruling the court concluded the first category was exempt from disclosure under the correspondence exemption set forth in Government Code section 6254, subdivision (1), and determined the second category constituted "executive communications" exempt from disclosure under Government Code section 6255. The court entered judgment in favor of the Governor. CFAC thereupon timely filed the present petition for writ of mandate, requesting this court to reverse the judgment and direct the trial court to issue a writ of mandate compelling the Governor to provide it with records containing the names of applicants for the vacancy including information submitted by the applicant as documenting the applicant's fitness for the position. DISCUSSION I We first consider the Governor's assertion that CFAC's request is excessively vague and overbroad. Citing the decisional requirement of a "specific and focused request," (Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 481, 23 Cal.Rptr.2d 412) the Governor complains that CFAC's request lacks the required focus and is a "model of ambiguity," thereby justifying its denial. Unquestionably, public records must be described clearly enough to permit the agency to determine whether writings of the type described in the request are under its control. Section 6257 compels an agency to provide a copy of non-exempt records upon a request "which reasonably describes an identifiable record, or information produced therefrom ..." However, the requirement of clarity must be tempered by the reality that a requester, having no access to agency files, may be unable to precisely identify the documents sought. Thus, writings may be described by their content. The agency must then determine whether it has such writings under its control and the applicability of any exemption. An agency is thus obliged to search for records based on criteria set forth in the search request.[2] The claim of overbreadth raises a separate issue. A clearly framed request which requires an agency to search an enormous volume of data for a "needle in the haystack" or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome. (American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 186 Cal.Rptr. 235, 651 P.2d 822.) Records requests, however, inevitably impose some burden on government agencies. An agency is obliged to comply so long as the record can be located with reasonable effort. (State Bd. of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177, 1186, 13 Cal. Rptr.2d 342.)[3] CFAC's request is neither fatally vague nor overbroad. Reasonably construed, 850 it sought the production of ail documents containing information regarding applicants for appointment to the vacant county supervisor's office including, specifically, "information submitted by the applicant as documenting his or her fitness for the position."[4] True, taken literally, a request for "any document containing the names of those who have applied for the position" could be construed to include telephone directories, rolodex entries and a host of similar writings. However, such a construction would not be reasonable in light of the clear purpose of the request as explained in CFAC's three page letter. There is no indication the Governor was perplexed. In his opposition to CFAC's petition, he describes the information requested: "the names of applicants considered by the Governor in filling a vacancy on the Plumas County Board of Supervisors (and their application forms)." Feigned confusion based on a literal interpretation of the request is not grounds for denial. The only significant uncertainty presented by CFAC's request was whether it sought not only information provided by applicants (the applications and associated letters) but also written assessments of the applicants prepared by the Governor's staff and others. The Governor clearly intended to deny access to both categories of information. A clarification of the request would not have affected that outcome. II As clarified in the trial court, CFAC seeks the applications of persons who sought appointment to the vacant Plumas County Supervisor office.[5] The Governor acknowledges the requested documents are public records.[6] Accordingly, the Act mandates access to them unless they fall within one or more categories of exempt records. Two general exceptions to the policy of disclosure are set forth in the Act. Section 6254 enumerates specific categories of exempt records, while section 6255 "establishes a catchall exception that permits the government to withhold a record if it can demonstrate that `on the facts of a particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.'" (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 652, 230 Cal.Rptr. 362, 725 P.2d 470, original emphasis.) In considering claims for exemption, we are guided by the general principle that "exemptions are construed narrowly, and the burden is on the public agency to show that the records should not be disclosed." (Rogers v. Superior Court, supra, 19 Cal.App.4th at p. 476, 23 Cal.Rptr.2d 412.) The Governor claims, and the trial court determined, that the requested documents constitute correspondence within the meaning of section 6254, subdivision (1) and are protected by the deliberative process privilege, an exemption recognized by the Supreme Court based on the language of section 6255. We consider each claim in turn. A. The Correspondence Exemption Section 6254, subdivision (I) provides an exemption for "[correspondence of and to the Governor or employees of the Governor's office." In Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at p. 1337, 283 Cal. Rptr. 893, 813 P.2d 240, the Supreme Court determined that correspondence refers to "communication by letters," rejecting an argument that correspondence encompasses all written communications. The documents at issue in Times Mirror, the Governor's appointment calendars and schedules, "plainly [did] not meet this definition." (Ibid.) 851 CFAC asserts the applications here at issue also fall clearly outside the definition. We disagree. According to the Governor's appointments secretary, all written communication between the Governor's Office and applicants for the supervisor's position was by letter. Prospective applicants expressed interest in the position by letter. Application forms were transmitted to the applicants by letter. The application form is the end product of an exchange of correspondence between the Governor's Office and an outside correspondent. Unlike the calendars and scheduling materials requested in Times Mirror, the application form is not a document "generated by the Governor's office." (Ibid.) In Times Mirror, the Supreme Court feared that treating internally generated documents as correspondence would create an exemption so broad that all records in the custody of the Governor or employees of the Governor's would be exempt from disclosure. "[T]he exception would swallow the rule." (Ibid.) Prior to 1975, the Act provided for such a broad exemption, but it was amended in 1975 to limit the exemption to correspondence.[7] CFAC's suggested reading of subdivision (l) would emasculate the exemption. In essence, CFAC argues that an application is not a "letter," presumably because it does not begin with a salutation or end with formal closing. Thus, if applicants were given a questionnaire and told to submit a letter containing the answers, the ensuing correspondence would constitute "communication by letters." However, attaching a completed application form to a letter would not. We are not disposed to so formalistic a resolution of the issue. In our view, the correspondence exemption was intended to protect communications to the Governor and members of the Governor's staff from correspondents outside of government. The Governor's calendar and schedule was a public record when created; its transmission to the Governor within the Governor's office did not alter its character or entitle it to any greater protection than it would otherwise De entitled. The application forms herein from private citizens, like formal letters and other mail from citizens, did not become public records until received by the Governor's office. Section 6254 permits the Governor to receive such communications in confidence. We therefore conclude that letters and application forms received by the Governor's office from applicants for appointment to the vacant supervisor position constitutes "[c]orrespondence of and to the Governor or employees of the Governor's office" within the meaning of section 6254, subdivision (l). B. The Deliberative Process Exemption The trial court determined that written materials discussing the applicants' suitability for appointment are exempt from disclosure under Section 6255. CFAC concedes such materials are exempt and disavows any interest in examining them. The concession is appropriate. As pointed out in Times Mirror, "To prevent injury to the quality of executive decisions, the courts have been particularly vigilant to protect communications to the decision maker before the decision is made." (Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at p. 1341, 283 Cal.Rptr. 893, 813 P.2d 240.) Staff evaluations and recommendations discussing an applicant's fitness for appointment are clearly "communications to the decision maker" that are protected from disclosure. While CFAC concedes evaluations and recommendations are protected from disclosure, it insists that applications from supervisorial aspirants are not. Although applications are primarily factual, we are persuaded that section 6255 also protects them from disclosure. To understand why this is so requires a review of principles underlying the deliberative process privilege. There are few California precedents relating to the deliberative process privilege. The privilege is largely a product of cases decided under the Federal Freedom of Information Act (FOIA).[8] Its origin was traced in 852 Times mirror to "the traditional common law privilege that attached to confidential intraagency advisory opinions, a privilege which was later codified in exemption 5 [of the FOIA.]" (Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at pp. 1339-1340, fn. 10, 283 Cal.Rptr. 893, 813 P.2d 240.) Exemption 5 covers "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." (Tit. 5 U.S.C. § 552(b)(5).) There is no exact counterpart to exemption 5 in our Public Records Act. Section 6254, subdivision (a) exempts from disclosure "Preliminary drafts, notes, or interagency or intra-agency memoranda which are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure." Section 6255 permits an agency to withhold any record by demonstrating "that on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record." In Times Mirror, the Supreme Court constructed a deliberative process privilege from federal decisions applying exemption 5, and from the broad language of section 6255 which permits the creation of a privilege in any factual circumstance where the public interest in confidentiality clearly outweighs the interest in disclosure. The "deliberative process privilege" in California simply describes factual circumstances, drawn from litigation under exemption 5, where the balance tilts in favor of confidentiality. While the language of exemption 5 finds no analog in the Public Records Act, the policies underlying exemption 5 are policies which find expression in section 6255. The deliberative process privilege delineated in federal decisions under exemption 5 and articulated in Times Mirror reflects a concern that the quality of decision making suffers when the deliberative process is prematurely exposed to public scrutiny. "There are essentially three policy bases for this privilege. First, it protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions. Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon. And third, it protects the integrity of the decision-making process itself by confirming that `officials should be judged by what they decided(,) not for matters they considered before making up their minds.'" (Jordan v. United States Dept. of Justice (1978) 192 U.S.App.D.C. 144, 591 F.2d 753, 772-773.) In Times Mirror, the Supreme Court emphasized the first of the policy bases: "The key question in every case is `whether the disclosure of materials would expose an agency's decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.' (Dudman Communications v. Dept. of Air Force [D.C.Cir. 1987] [259 U.S.App.D.C. 364] 815 F.2d [1565] at p. 1568.)" (Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at p. 1342, 283 Cal. Rptr. 893, 813 P.2d 240; see also Rogers v. Superior Court, supra, 19 Cal.App.4th 469, 23 Cal.Rptr.2d 412.) CFAC recognizes these general principles. It acknowledges the disclosure of staff evaluations and recommendations regarding the suitability of individuals for appointment would be protected by the deliberative process privilege. However, self-disclosed information provided by an applicant, according to CFAC, "is precisely the kind of factual information that the courts have consistently held is not subject to [the] privilege." (Emphasis in original.) CFAC likens applications to "unevaluated factual reports or summaries" which have been held not to fall within the federal deliberative process privilege. CFAC notes the Governor can appoint individuals who did not submit applications and there is no assurance the Governor will even review an application. Because the applications disclose nothing of the Governor's thought processes disclosure of the applications would not impair the Governor's decision-making process. CFAC's view of the consequences flowing from the disclosure of applications for appointment is too narrow. The deliberative 853 process privilege recognizes that the deliberative process can be impaired by exposure to public scrutiny. The disclosure of records containing only factual matters can impair the deliberative process by revealing the thought processes of the government decision maker. However, the deliberative process can be impaired in other ways as well. As noted in Times Mirror: "Brockway v. Department of the Air Force (8th Cir.1975) 518 F.2d 1184 illuminates another pertinent facet of the issue before us. The father of an Air Force pilot sought disclosure of certain witnesses' statements concerning an airplane crash in which his son was killed. Although the information was factual rather than advisory in nature, the court nevertheless held that confidentiality was necessary to prevent "`inhibition of the free flow of information'" to the Air Force. (Id. at p. 1193, quoting Note, The Freedom of Information Act and the Exemption for Intra-Agency Memoranda (1976) 86 Harv.L.Rev. 1047, 1052-1053.) `[W]ithout the assurances of confidentiality,' the court concluded, the `flow of information to the Air Force' might be sharply curtailed, and the deliberative processes and efficiency of the agency greatly hindered. (518 F.2d at pp. 1193-1194.)" (Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at p. 1343, 283 Cal.Rptr. 893, 813 P.2d 240.) While not obliged to fill supervisorial vacancies from persons who seek appointment to the position, the Governor encourages qualified applicants to seek consideration. To assist in evaluating their qualifications, applicants must respond to questions that probe deeply into their personal and political backgrounds. Thus, for example, applicants were required to answer the following: "Is there anything in your background, which if made known to the general public through your appointment, would cause an embarrassment to you or the administration?" While CFAC may believe this is "exactly the kind of information, which ... should be made available to the public," for reasons eloquently stated in Times Mirror, we disagree. "The answer to th[is] argument[] is not that [it] lack[s] substance, but pragmatism. The deliberative process privilege is grounded in the unromantic reality of politics; it rests on the understanding that if the public and the Governor were entitled to precisely the same information, neither would likely receive it." (Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at p. 1345, 283 Cal.Rptr. 893, 813 P.2d 240.) In an accusatory political system where blame frequently flows upward and public officials, whether appointed or elected, are judged by standards that vary with the shifting political winds, the Governor is well advised to delve deeply into a candidate's background. That process of review is greatly benefited by an applicant's candor in disclosing potentially embarrassing facts that may be of only marginal relevance to the person's abilities. Candor is less likely to be forthcoming if the applicant knows the facts will be disclosed regardless of the outcome. Perhaps probing inquiries and public disclosures are the price one pays to be a public official but it is not likely a cost that one who is merely an applicant for appointment to a position would be willing to suffer. Like the statements considered in Brockway, "`[W]ithout the assurance of confidentiality.'... `the flow of information to [the Governor]' might be sharply curtailed, and the deliberative processes and efficiency of the [Governor] greatly hindered. [Citation.]" (Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at p. 1343, 283 Cal.Rptr. 893, 813 P.2d 240.) The pool of quality applicants from which the Governor might select could be reduced; worthy prospects might elect to forego the opportunity. Moreover, those choosing to apply may be less forthright in their responses. "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances ... to the detriment of the decisionmaking process." (United States v. Nixon (1974) 418 U.S. 683, 705, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039, 1062.) The selection process is enhanced by a large applicant pool and by detailed information regarding each applicant, in the same manner that decision making in other contexts is enhanced by access to information and opinions from a variety of sources. Disclosure would likely reduce the applicant pool and the candor of those who apply. While we find the public interest in favor of confidentiality is great, we must still 854 consider whether the public interest in disclosure is greater. Not every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence. The burden is on the Governor to establish the conditions for creation of the privilege. The trial court's determination is subject to de novo review by this court, although we defer to any express or implied factual findings of the superior court. (Connell v. Superior Court (1997) 56 Cal.App.4th 601, 65 Cal.Rptr.2d 738.) CFAC finds the interest in disclosure is overwhelming because of the unique nature of the appointment here at issue. Without conceding that applications for other executive positions are exempt from disclosure, CFAC argues that applicants for supervisor vacancies stand on a different footing. Because they are seeking a position normally decided by the voters, public scrutiny of their qualifications is a natural and critical concomitant of their quest. Indeed, disclosure enhances the decision-making process by providing more information to the Governor on which he can base a decision. We are unmoved by CFAC's balancing assessment for several reasons. First, there is nothing in the legislative scheme governing appointments to vacant supervisor positions to suggest the Governor must depart from the decision-making process he has established for appointment to other offices. As with other appointments, so with supervisor appointments, the Governor is free to consider the sentiments of those affected by the appointment. The fact that the person ultimately selected must later stand for election should make the Governor extremely sensitive to the views of voters in the affected district and ever more mindful of how the appointment will be received by constituent groups. However, the method the Governor uses to gather such information is not restricted by statute; he is not compelled to release a list of prospects for public comment or open his appointment riles to public examination. Nor would it appear that such a move would be necessary to assure public input. As CFAC suggests, timidity is not a common characteristic of those seeking the office of county supervisors. It is difficult to imagine that a Governor would lack for public comment from supporters and detractors of supervisor aspirants. Second, the fact that appointed supervisors are ultimately accountable to the people is not necessarily a compelling reason for disclosure. With respect to county supervisors, the ballot box, not public disclosure of applications, provides the ultimate check on the Governor's appointment authority. While other executive appointees wield greater authority over more people than a supervisor in a small county, such appointees are never compelled to appear before the electorate and are never subject to the "intense public scrutiny" that, according to CFAC, attends a county supervisor. After the Governor's decision-making process is complete and the successful applicant is appointed, the press may probe and report on the appointee with all the vigor we expect from our free press. It is difficult to understand how disclosure of information revealed in confidence by unsuccessful applicants for the office advances the cause of open government when the successful applicant must ultimately face the voters in a contested election.[9] Our conclusion comports with Wilson v. Superior Court (1996) 51 Cal.App.4th 1136, 59 Cal.Rptr.2d 537, a case involving the identical issue but raised in a writ proceeding filed by the Governor following an order compelling his disclosure of applications for appointment. In Wilson, the Court of Appeal appeared to resolve the issue on evidentiary grounds. The court concluded the trial court's determination that the newspaper's public records request did not impinge on the deliberative process was not supported by substantial evidence. (Id. at p. 1141, 59 Cal. Rptr.2d 537.) This suggests there was a 855 failure of proof which could be remedied in future litigation. However, apart from a few facts concerning the creation and content of the records here at issue, the facts which drive our legal conclusions are not adjudicative but legislative in character. "Legislative facts" refer to the basic generalized knowledge that a fact finder possesses regarding human affairs, and the way the world works. (See 9 Wigmore on Evidence (1981) § 2565(b); Saks, Judicial Attention to the Way the World Works (1990) 75 Iowa L.Rev. 1011.) Thus, like the United States Supreme Court, our perception that "those who expect public dissemination of their remarks may well temper candor with a concern for appearance," is based on "human experience" and not testimony of psychiatrists admitted at trial. (United States v. Nixon, supra, 418 U.S. at p. 705, 94 S.Ct. at p. 3106, 41 L.Ed.2d at p. 1062.) We also agree with the court in Wilson that an in-camera hearing is not always necessary to resolve the weighing process required by section 6255. The request sought all applications and was not confined to a particular candidate or information of a particular character. CFAC offered no reasons for disclosure beyond public policies which underlie the Public Records Act generally. While an in-camera review may be indicated in an appropriate case, this is not such a case. A review of individual applications was simply unnecessary. (Cf. Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at p. 1347, fn. 15, 283 Cal.Rptr. 893, 813 P.2d 240.) DISPOSITION The petition for writ of mandate is denied, and the alternative writ is discharged. The real party in interest shall recover costs on appeal. BLEASE, Acting P.J., and NICHOLSON, J., concur. NOTES [] Kennard, J., dissented. [1] Further references to sections of an undesignated code are to the Government Code. [2] In federal litigation under the Freedom of Information Act an agency may be compelled to prepare a Vaughn index which identifies the author, recipient, and subject matter of each document meeting the request criteria. Having confirmed and identified the existence of documents comporting with the request, the agency then asserts any claim of exemption. (Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at p. 1356, 283 Cal.Rptr. 893, 813 P.2d 240.) [3] The breadth of a request may affect the balancing of interests required by section 6255. The public interest in nondisclosure may be less where the request is carefully focused and confined to a few documents. (Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at pp. 1344-1345, 283 Cal.Rptr. 893, 813 P.2d 240.) [4] Although the request could be taken to include internal memoranda between the Governor and staff members, CFAC later made clear it sought only the names and application materials submitted by applicants for the position. According to counsel for CFAC, "We are only asking for the application the potential candidates are submitting, and the documents submitted along with the application form...." [5] While the analysis herein is so premised, it would also apply to other documents: e.g., staff appraisals and letters of recommendation. [6] "`Public records' includes any writing containing information relating to the conduct of the public's business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics. `Public records' in the custody of, or maintained by, the Governor's office means any writing prepared on or after January 6, 1975." (§ 6252, subd. (d).) [7] The act exempted all records "[i]n the custody of or maintained by the Governor or employees of the Governor's office employed directly in his office...." (Stats. 1970, ch. 1295, § 1.5, p. 2397.) [8] Because the Public Records Act is modeled after the federal Freedom of Information Act and serves the same purpose, federal decisions under the FOIA are often relied on to construe California's Act. (Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at p. 1338, 283 Cal.Rptr. 893, 813 P.2d 240.) [9] We note that compelling the disclosure of applications would not ensure that the information sought by CFAC would be disclosed in the future. The parties acknowledge that supervisorial vacancies occur infrequently. Were we to order the disclosure of applications, the Governor could eliminate written applications altogether and rely on other means to communicate with prospective applicants for the few vacancies that occur.
493 F.Supp. 1001 (1980) UNITED STATES of America, Plaintiff, v. MIDWEST LIVESTOCK PRODUCERS, COOPERATIVE, Defendant. Civ. A. No. 79-C-275. United States District Court, E. D. Wisconsin. July 18, 1980. Joan F. Kessler, U. S. Atty. by Elizabeth Adelman, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff. Robert J. Schwab, Stroud, Stroud, Willink, Thompson & Howard, Madison, Wis., for defendant. 1002 DECISION AND ORDER REYNOLDS, Chief Judge. This is an action brought pursuant to 28 U.S.C. § 1345 for damages arising out of the alleged tortious conversion by the defendant Midwest Livestock Producers Cooperative of collateral belonging to the Farmers Home Administration under the terms of a chattel mortgage. The action is before the court on plaintiff's motion for summary judgment, which will be granted. The uncontroverted affidavit filed January 30, 1980, of Henry Tolliver, Jr., who is the county supervisor for the Farmers Home Administration for Winnebago and Outagamie Counties, establishes that on January 23, 1974, the plaintiff made a $45,700 farm operating loan to one John R. Zehner which was secured by a security agreement prohibiting Zehner from selling any of his crops or farm animals without the plaintiff's prior consent and providing that in the event of such sale without consent Zehner would be considered to be in default on the loan. (See also exhibits B, C, and D to the amended complaint filed June 21, 1979.) The defendant's answers to plaintiff's interrogatories, filed with the plaintiff's motion for summary judgment on January 30, 1980, establish that the defendant in April, May, and September 1974 and February 1975 sold 15 calves, 9 cows, and 1 bull belonging to John R. Zehner for the total sum of $3,251.36. Plaintiff seeks to recover that amount, plus interest, from the defendant. The defendant argues, first, that the sale of culled animals, meaning dry, diseased, or injured cattle, is standard practice for a herdsman and therefore the Farmers Home Administration's consent to Zehner's sale of the animals can be implied and Zehner was not in default under the security agreement. See the affidavit of Edwin Carley filed March 20, 1980. Second, defendant argues that on September 11, 1975, Zehner's debts were discharged in bankruptcy and therefore plaintiff is precluded from using this forum in an attempt to hold the debt at issue non-dischargeable. The affidavit of Henry Tolliver, Jr., filed January 30, 1980, establishes in ¶ 7 that no agent, employee, or official of the Farmers Home Administration consented orally or in writing to Zehner's sale of the animals. His affidavit filed April 7, 1980, establishes that the Farmers Home Administration does not permit the sale of culled animals without prior authorization. The affidavits are uncontroverted and therefore, even granting that the sale of culled animals is standard practice for a herdsman, no issue of material fact exists with regard to the defendant's first allegation. As for the second allegation, a discharge in bankruptcy does not result in extinguishment of debts, but merely frees the debtor from personal liability and provides him with a personal defense to debt collection actions. 1A Collier's on Bankruptcy ¶ 16.02 at 1523 (14th Ed. 1978); In re Innis, 140 F.2d 479 (7th Cir. 1944); Wagner v. United States, 573 F.2d 447, 453 (7th Cir. 1978); United States v. Gallatin Livestock Auction, Inc., 448 F.Supp. 616 (W.D.Mo. 1978), aff'd 589 F.2d 353 (8th Cir. 1978). Consequently the liability of a third party on the debt is unaffected by the debtor's discharge. The circuit courts of appeal are divided on the issue of whether an auctioneer's liability for the sale of livestock covered by a security agreement held by the federal government is determined under federal common law or state law. The majority of circuits hold that the rights of the United States under a chattel mortgage are a matter of federal common law, see, e. g., United States v. Matthews, 244 F.2d 626 (9th Cir. 1957); United States v. Sommerville, 324 F.2d 712 (3d Cir. 1964); United States v. Carson, 372 F.2d 429 (6th Cir. 1967); Cassidy Commission Company v. United States, 387 F.2d 875 (10th Cir. 1967); and all of those courts have concluded that an auctioneer is liable on a theory of tortious conversion for the full market value of livestock sold without the government's consent, even if the auctioneer lacked actual knowledge of the security interest. Compare United States v. Gallatin Livestock 1003 Auction, Inc., supra, and United States v. Union Livestock Sales Company, 298 F.2d 755 (4th Cir. 1962), holding that state law governs. The issue has not been decided by the Seventh Circuit. Even assuming, however, that Wisconsin law governs in this case, the Wisconsin law on an auctioneer's liability is the same as the federal common law rule. See § 409.503, Wis.Stats., and Production Credit Association of Chippewa Falls v. Equity Coop Livestock Sales, 82 Wis.2d 5, 8-9, 261 N.W.2d 127 (1978). Therefore, the defendant in this case is liable to the plaintiff for the full sum which defendant received from the sale of Zehner's livestock. IT IS THEREFORE ORDERED that the plaintiff's motion for summary judgment is granted, and that the plaintiff recover from the defendant the sum of $3,251.36, plus interest as allowed by law.
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1684 WORKINEH GETACHEW AYELE, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: February 16, 2012 Decided: February 29, 2012 Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. Alan M. Parra, LAW OFFICES OF ALAN M. PARRA, Silver Spring, Maryland, for Petitioner. Tony West, Assistant Attorney General, Melissa Neiman-Kelting, Senior Litigation Counsel, Sara J. Bergene, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Workineh Getachew Ayele, a native and citizen of Ethiopia, petitions for review of an order of the Board of Immigration Appeals (“Board”) dismissing his appeal from the immigration judge’s order denying his applications for asylum, withholding of removal and withholding under the Convention Against Torture (“CAT”). Ayele claims that the adverse credibility finding is not supported by substantial evidence, the Board and the immigration judge failed to consider the entire record and his stateside political activities established a well-founded fear of persecution. We deny the petition for review. We recently summarized the law regarding this Court’s review of a Board’s final order in Djadjou v. Holder, 662 F.3d 265, 272-74 (4th Cir. 2011). As we noted in Djadjou, an alien has the burden of showing he is eligible for relief. In order to show eligibility for asylum, he must show that he was subjected to past persecution or has a well-founded fear of persecution on account of a protected ground such as political opinion. See 8 C.F.R. § 208.13(b)(1) (2011). If the applicant establishes past persecution, he has the benefit of a rebuttable presumption of a well-founded fear of persecution. In order to be eligible for withholding from removal, an alien must show a 2 clear probability of persecution on account of a protected ground. This Court will uphold the Board’s decision unless it is manifestly contrary to the law and an abuse of discretion. The standard of review of the agency’s findings is narrow and deferential. Factual findings are affirmed if supported by substantial evidence. Substantial evidence exists to support a finding unless the evidence was such that any reasonable adjudicator would have been compelled to conclude to the contrary. Therefore, we review an adverse credibility determination for substantial evidence and give broad deference to the Board’s credibility determination. The Board and the immigration judge must provide specific, cogent reasons for making an adverse credibility determination. We recognize that omissions, inconsistent statements, contradictory evidence, and inherently improbable testimony are appropriate reasons for making an adverse credibility determination. The existence of only a few such inconsistencies, omissions, or contradictions can be sufficient for the Board to make an adverse credibility determination as to the alien’s entire testimony regarding past persecution. An inconsistency can serve as a basis for an adverse credibility determination even if it does not go to the heart of the alien’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii) 3 (2006); see also Djadjou, 662 F.3d at 272-74 (case citations omitted). An adverse credibility finding can support a conclusion that the alien did not establish past persecution. See Dankam v. Gonzales, 495 F.3d 113, 121-23 (4th Cir. 2007); see also Chen v. Attorney Gen., 463 F.3d 1228, 1231 (11th Cir. 2006) (denial of asylum relief can be based solely upon an adverse credibility finding). We conclude that substantial evidence supports the adverse credibility finding. The immigration judge and the Board listed specific and cogent reasons for making the finding. It was not an abuse of discretion for the immigration judge and the Board to find that Ayele’s numerous omissions were related directly to his claim for relief. We further conclude that the immigration judge considered the entire record and substantial evidence supports the finding that Ayele’s independent evidence falls short of overcoming the adverse credibility finding. We also conclude that substantial evidence supports the finding that Ayele failed to show that he had a well-founded fear of persecution based on his political activities in the United States. * * Ayele has abandoned any challenge to the denial of relief under the CAT by failing to raise it in his brief. Accordingly, this Court need not review the issue. See Ngarurih v. Ashcroft, 371 F.3d 182, 189 n.7 (4th Cir. 2004) (finding that the failure (Continued) 4 We deny the petition for review. 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. PETITION DENIED to raise a challenge in an opening brief results in abandonment of that challenge); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (same). 5

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